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The opinion of the court was delivered by West, J.: The plaintiff sued to recover a commission for procuring a contract of exchange between the defendant and G. A. Rucker for certain real properties. He averred that under the contract Rucker was to convey a certain tract of land free and clear of all incumbrances except a mortgage of $6000, all Water rights to be paid and all taxes up to date. The defendant answered that G. A. Rucker was not able to carry out the terms of the contract and charged fraud in its procurement and alteration. The testimony showed that the land in question had been sold at foreclosure and the only con veyances offered to the defendant consisted of a general warranty deed from thé fee owner to Glen A. Rucker conveying the land subject to a mortgage of $7063.00 with interest thereon from October 2, 1911, back taxes $207.63 and water tax $298.07, and a general warranty deed from Glen A. Rucker to the defendant conveying the land subject to'an incumbrance of $6000 which, by the terms of the deed, the grantee was to assume and agree to pay. It appeared that the incumbrances above the $6000 could not be taken care of until Rucker procured the money for that purpose and that he desired to use the property to be conveyed by the defendant as a basis for a loan to raise such money. The jury found for the defendant generally and also in answer to special questions that the defendant did not agree to pay the plaintiff for procuring the contract, that the contract had by the plaintiff been materially altered since its execution by changing a name and inserting approval, and that G. A. Rucker was not ready, willing and able to carry out his part of the agreement for the exchange of properties. Findings were made in relation to other matters which need not be considered. Various questions are argued, but the findings referred to, sufficiently supported by the evidence, preclude recovery by the plaintiff. The judgment is affirmed.	[ 80, 120, -71, -115, -118, -32, 56, 24, 72, -95, -74, 95, 121, -122, 28, 117, -26, 121, 100, 106, 86, -78, 6, 43, -45, -13, -13, -51, -75, -20, -76, 87, 76, 32, -62, 21, -26, -62, -59, 20, 74, -122, 25, 108, -39, 80, 52, 59, 52, 73, 113, -113, -29, 38, 61, 67, 109, 42, 91, 57, -48, -72, -70, -123, 127, 7, 0, 37, -40, 1, 104, 26, -112, 53, 0, -24, 115, 38, -122, 116, 77, -101, 41, 34, 102, 0, 37, 105, -24, -104, 7, -65, -115, -90, -122, 88, -126, 64, -66, -97, 96, 80, -92, -10, -28, 5, 31, 108, 3, -118, -42, -77, -113, 46, -113, 10, -9, 11, 53, 112, -51, -32, 77, 103, 59, -101, -99, -79 ]
The opinion of the court was delivered by Johnston, C. J.: This was an attachment proceeding which involved the question whether a certain tract of land that had been allotted to an Indian of the Iowa tribe and subsequently patented to an heir was subject to an attachment, and whether a certain deed was delivered prior to the levy of the attachment. The land had been allotted to Min-Cath-Way, a member of the Iowa tribe, under an act of congress which provided that it should be held by the government in trust for a period of twenty-five years, after which it should be conveyed by patent in fee' simple to the allottee or his heirs. The allotment appears to have been made in 1891, and before the expiration of the trust period Min-Cath-Way died, leaving as his heirs his wife, Catherine, and a daughter. Catherine also died before the trust period ended, and left as her heirs the daughter of the allottee and Joseph Springer, who was the son of Catherine by a former husband, and inherited a share of the land from his mother. After her death, and on November 21, 1910, the secretary of the interior issued a patent to the tract in question, giving an interest to Joseph Springer, who then resided in Oklahoma. Prior to that time Springer had executed a number of promissory notes in favor of George Nuzum, and to recover on these Nuzum brought an action against Springer on January 6, 1911, and caused an attachment to be levied on the land as the property of Springer. William Ogden inter-pleaded in the action and alleged that he was the owner of the land, Springer having executed a deed to him on the day of the attachment but before the time it was levied upon the land. Springer filed a motion in the case to dissolve the attachment, but based it on the ground that he had conveyed the land and had no interest in it. At the trial a question arose as to whether the levy of attachment was prior to the delivery of the deed from Springer to Ogden. It appears that the deed was signed on the morning of January 6, 1911, and that Ogden then turned over to him two checks as payment for the land. Ogden testified that the deed was then formally delivered to him. On the other hand, testimony was offered to the effect that the deed was to be delivered when the money was paid upon the checks and that Springer accompanied Ogden to Kansas City for the purpose of having the checks cashed. The checks were in the possession of Ogden in Kansas City, and on the morning of January 7, 1911, they were presented to a bank in Kansas City, payment was made, and the deed was then delivered. The trial court found and adjudged that Springer had an interest in the land subject to attachment, and that the attachment was levied before the Ogden deed was delivered. On this appeal it is contended that the land was not subject to attachment as it had been allotted under an act which prohibited the forced sale of the land for debt during the trust period of twenty-five years, which had not expired when the attachment was levied. (24 U. S. Stat. at Large, ch. 47, p. 367.) Reliance is also placed upon an amendment to the Dawes act, which is to the effect that lands shall not be levied on to be taken in satisfaction of a debt contracted prior to the issuance of the patent. (Part 1, 34 U. S. Stat. at Large, ch. 2348, p. 182.) As we have seen, the land in controversy was not allotted under the Dawes act, but the allotment was made under the special act applicable to the Sac and Fox and Iowa reservations in Nebraska and Kansas. (24 U. S. Stat. at Large, ch. 47, p. 367.) That act provides that when the allotment is made a trust patent shall be issued to the allottee and the United States will hold the land in trust for the sole use and benefit of the allottee or his heirs for the period of twenty-five years, and at the end of the trust period shall convey the same to the Indian or his heirs by a patent in fee simple, discharged of the trust, and that during the trust no conveyance or contract to convey shall be valid “and such lands, during such time, shall not be subject to taxation, alienation, or forced sale, under execution or otherwise.” Under that act the trust period may be ended by the issuance of a patent in fee simple conveying the land, discharged of the trust. The trust power was ended and the lands patented, not under the Dawes act, but in virtue of a special provision in an act of congress approved June 1, 1906, which provided: “That the Secretary of the Interior be, and he is hereby, authorized, in his discretion, to issue patents in fee simple to the members of the Sac and Fox of Missouri and Iowa tribes of Indians for the lands heretofore allotted them in Kansas and Nebraska; and the issuance of such patents shall operate to remove all restrictions as to sale, taxation and incumbrance of the lands so patented.” (Part 1, 34 U. S. Stat. at Large, ch. 3504, p. 349.) The patent issued under this provision conveyed the land free from any prior conveyance or contract to convey, and at the same time it also conveyed it to the grantee free from the restrictions imposed in the act of allotment. The secretary of the interior was authorized to ascertain the heirs of the deceased allottee, and if satisfied of their ability to manage their own affairs he was empowered to issue a patent in fee simple to them. (Part 1, 35 U. S. Stat. at Large, ch. 216, p. 444.) When the patent in fee simple was issued, the land was dis charged of the trust as effectually as if the twenty-five-year period had expired, and thereafter it was subject to alienation, taxation or forced sale under execution for the debts of the owner. Congress might have provided, as it did in the case of-some other Indians, that the land should never be taken for debts • contracted prior to the issuance of the patent, but no such restriction was placed in the allotment act, nor in the one authorizing the issuance of the patent and the removal of the restrictions. The restrictions of the Dawes act have no application to the Iowa tribe of Indians or to the conveyance of their lands. Springer, therefore, was at liberty to convey the land at the time the deed was signed on January 6, 1911, and his land was likewise subject to attachment in satisfaction of his debts at that time. The only question remaining arises on a ruling admitting testimony. The plaintiff took the deposition of Springer in Oklahoma, and while some of the testimony given supports the theory of the plaintiff that the deed was delivered in Kansas City, other of his answers tended to show that Springer accepted'the checks of Ogden as payment for the land in Oklahoma and at the same time delivered the deed to Ogden. While testifying he was shown an affidavit previously made by himself, to the -effect that he had refused to accept the checks or to deliver the deed until the checks were cashed, and that he kept possession of the deed until he and Ogden arrived in Kansas City and the money was paid on the checks at a bank in that city. His explanation was that he was frequently under the influence of intoxicating liquor and that he had no recollection of making the statements contained in the affidavit. It is contended that by the admission of the statement the plaintiff who took Springer’s deposition was allowed to contradict or impeach his witness. The general rule is that a party may not impeach his own witness, but in the interest of truth and justice it may sometimes be done, and when a departure from this general rule is justified is largely within the discretion of the court. (Johnson v. Leggett, 28 Kan. 590; The State v. Sorter, 52 Kan. 531, 34 Pac. 1036; The State v. Moon, 71 Kan. 349, 80 Pac. 597; Tacoma Ry. & Power Co. v. Hays, 110 Fed. 496.) The affidavit so identified was attached to and included in the deposition, and this appears to have been done over the ob jection of the defendants. It does not appear from the defendants’ abstract that the court made any ruling on the objection that was made when the deposition was taken, and so far as their abstract is concerned the testimony would appear to have been received without calling it to the attention of the court or obtaining a ruling on the objection. However, in the counter-abstract-of the plaintiff it is stated that an objection was made to the admission of the affidavit by the defendants and that it was sustained by,the court. We must therefore assume that the testimony was not received, and in any view no error is shown. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: T. J. Patterson, at the age of eighty-nine, executed a deed conveying to W. S. Patterson, his son, a quarter section of land, worth about $10,000, the expressed consideration being one dollar, love and affection, and the grantee’s promise to support him and provide him with a home during his life. A contract was signed at the same time allowing the grantor to collect the rent during his lifetime. He died two months later. Other heirs brought an action to set aside the deed on the ground of want of capacity and undue influence. A jury found in favor of the plaintiffs upon both propositions, answering a number of questions in harmony with that view. The court approved all the findings excepting one which gave an affirmative answer to the question, “Did the defendant urge, ask, or solicit his father, Thomas Patterson, to deed him the land in question?” Judgment was rendered for the plaintiffs and the defendant appeals. (1) The defendant maintains that there was no substantial evidence to warrant the findings or the judgment. Testimony was given by witnesses who had opportunity to observe him, and who were present at the trial, to the effect that at about the time the deed -was made the grantor was forgetful; that “his memory did n’t seem to be good”; that “he would sit down and tell something and in ten or fifteen minutes tell the same thing over”; that he would tell it three or four times within an hour; that he would tell the same story repeatedly, apparently having no recollection that he had told it the first time; that he failed to recognize old acquaintances, whom he had known for years; that “his mental condition was very weak”; that he was childish; that “he was a feeble and childish old man in his talk”; that “he was like a child”; that he was “feeble-minded”; that “his mind appeared weak”; that he seemed to be “very childish and feeble”; that he was “just as childish as he could be”; that “he was awfully feeble and he was lots different from what he had been in years before, more a child than he was a man”; that he was “failing pretty fast”; that he was “failing in mind.” One witness said: “I considered him like a little child.” Another: “I can not think he was capable of transacting business.” While there was much evidence to the contrary, we think this testimony tended to show incompetence to do business, and therefore afforded a substantial basis for a finding that the grantor lacked mental capacity to make the deed. That being the case, the decision of the trial court on the subject is final. Special objection is made to a finding that at the time the deed was executed the grantor did not know, even in a general way, what property he owned. There was no direct evidence which specifically supported this proposition, although one witness said that he had expressed a wish that his children should share his property equally, and another that he did not make inquiries about this land or his business. But the evidence of his enfeebled mental condition justified an inference supporting this answer, as well as others to which similar objection is made. (2) As the finding of want of capacity is upheld, and is sufficient to sustain the judgment, we need not decide whether there was any evidence of the deed having been procured through undue influence, or whether any error was committed with reference to that feature of the case. An instruction concerning the burden of proof in that respect is complained of, but for the reason stated the question so raised need not be considered. (3) In response to a question submitted to them the jury-answered that the consideration expressed in the deed was not adequate for a conveyance of the land. This finding is criticised in part upon the theory that it means that the deed was not supported by a sufficient consideration, whereas the element of love and affection would alone serve that purpose. The word “adequate” in this connection, however, is not to be interpreted as the equivalent of “legally sufficient.” (Rosseau v. Rouss, 91 App. Div. 230, 238, 86 N. Y. Supp. 497, 502.) It refers rather to the proportion between the value of what is given and what is received. (9 Cyc. 365.) But in any event, whatever bearing this finding has is upon the question of undue influence rather than upon that of mental capacity. The judgment is affirmed.	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The opinion of the court was delivered by Dawson, J.: On October 20, 1911, the plaintiff, J. 0. Brady, and defendant, The Farmers Cooperative Creamery & Supply Company, of Omaha, Neb., entered into a contract whereby Brady became the agent of the creamery company for the purchase of milk and cream at Dwight, in Morris county, Kansas. The contract provided: “First party to pay second party a commission of 2 cents per pound for each pound of butter fat received and shipped in good condition, as shown by weights and tests made by said first party at Omaha, said commission to be paid by said first party on the tenth of each month for all butter fat shipped during the preceding month, drayage 5c per can, rent $5.00, station supplied, stamps, etc. If routes are run, 3c on route, 2e less than station price, l%c for testing route cream.” The plaintiff worked for the defendant until about January 1, 1912, when for some reason not shown the state dairy commissioner cancelled Brady’s license as a cream tester. Brady resigned, and his son, A. M. Brady, a lad of eighteen years, applied for the position; and the plaintiff wrote the company urging that his son’s application be given consideration. The younger Brady had a license as cream tester, and on January 23, 1912, the company and young Brady entered into a written contract substantially similar to the former one between his father and the company. The father and son continued the business about as they had done before the cancellation of the father’s license and his resignation. Checks, in payment of commissions were made by the company payable to the order of J. O. and A. M. Brady. . The plaintiff brought this action to recover commissions on shipments of cream during April and May, 1912. The defendant denied the allegations touching the shipments in April and May; it set up the termination of its contract with J. 0. Brady; and alleged that at the instance of the plaintiff it had entered into a contract with A. M. Brady, the plaintiff’s son, on January 23, 1912. The. defendant further pleaded: “And the defendant further answering says, that all of the butter fat or cream purchased for it at its station of Dwight, Kansas, during the month of April and May, 1912, was purchased by the said J. 0. Brady and the said A. M. Brady under and by virtue of said Agreements, by the terms of which the commission to be paid for such services was to be as shown by weights and tests made by said defendant at Omaha, and the said plaintiff and the said A. M. Brady thereby guaranteed to sample and weigh all cream carefully and correctly and it avers that such service was not rendered by them in accordance with the terms of said guarantee, and it further alleges that it has fully complied with the terms of said agreements and paid to the said J. O. Brady and A. M. Brady the full amounts due to them after deducting the amounts due to the defendant for shortage in the amount of butter fat received from said station during said months, on account of the negligence and want of care or skill of the said J. 0. Brady and A. M. Brady, and also for errors made by said parties in checks, issued by them for butter fat. And the said defendant denies that it is indebted to the said plaintiff in any amount whatsoever,” etc. The court without a jury heard the evidence and gave judgment for the defendant. The plaintiff assigns error (1) in overruling demurrer to de fendant’s evidence, and (2) in not giving judgment for plaintiff “upon the law and the evidence.” 1. Appellant does not show in what particulars the defendant’s evidence was insufficient as against a demurrer, so far as the burden of proof devolved upon it. There was no jury to be misled by extraneous or irrelevant facts, and the court let in everything which would be of any value in determining the rights of the parties. Whether the plaintiff could sue directly for his son’s commissions on account of the son’s nonage, if any were due him, without laying claim to those commissions under his right to the proceeds of his son’s services, and after urging the defendant to make a contract with his son on account of his own disqualification, is doubtful. However,-the whole matter was considered by the district court, and on the evidence it found nothing due the plaintiff on any view of the case. 2. It is not easy to see how it can be said by this court that plaintiff was entitled to judgment “upon the law and the evidence.” The credence to be given to the testimony was for the trial court. It made a general finding for defendant. Every issuable fact upon which judgment might.rest is by the general finding resolved in defendant’s favor. (Wood v. Davis, 12 Kan. 575.) Appellant contends that he should not lose his commission on cream lost in transit between Dwight and Omaha. But the contracts of employment speak for themselves and the district court could not make a new or amendatory contract for the parties. The commissions were to be based on the tests on the amount of cream received in Omaha. There was no claim on a quantum meruit, nor was any issue raised touching the loss of cream in transit. Since the pleadings were those originally filed before a justice of the peace, they were properly considered with great liberality, but we can discern no tangible basis upon which to reverse this case. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: Walter Pyles, the engineer of an incoming extra freight train, was killed in a collision with a switch engine, attached to a number of box cars, at work in the yards of the Santa Fe company, at South Winfield. Under the federal employer’s liability act his widow recovered a judgment for $12,000 against the company, and it appeals. The- defendant maintains that the accident was the result solely of the negligence of the decedent in passing the yard limits without having his train under control, contrary to the rules of the company. The petition alleged various forms of negligence, but the basis of liability adopted by the jury was the failure of the switching crew to keep out of the way of the incoming train. These facts are covered by the special findings, or shown by evidence which is not disputed: The track from the South Winfield station runs somewhat east of south; at about a thousand feet from the station it curves to the east for a like distance, and then maintains a steady curve to the west until it crosses the Walnut river, just south of which it curves back to the east, before again making a turn to the west. The house track switch, near which the yard crew were working when the accident occurred, is about half a mile south of the station. The collision took place some 900 feet south of the switch. The north end of the bridge over the river is 1315 feet further to the south, and the yard limits 655 feet beyond that. The wreck occurred between nine and ten o’clock on a dark and rainy night. Shortly before it took place the switch engine was at the station, running backward and drawing twenty-two cars, some of which were to be placed on the house track. While the switching crew were at the station they saw the reflection in the sky of the electric headlight of the extra freight approaching from the south. The foreman told the switchman whose duty it was to “follow the engine” to stay on the footboard at its south end and hold up the incoming train until the cars were placed on the sidetrack. They pulléd down to the switch at the rate of six to eight miles an hour. The switchman referred to saw the headlight of the freight train just before it reached the bridge. As it was coming over the bridge he swung his lantern across the track as a signal for it to stop, the distance between them at this time being about 1500 feet, although he estimated it at a half mile. He received an answer — two short whistles. He then dropped off his engine and walked out a little ways from the track, so that he could see his own engineer and the other switchman (called the “man in the field”), and gave his engineer a signal to stop. His engineer then “whistled out a flag,” that is, signaled him to flag the incoming train again. He did so, but it was too late. The train was coming down grade; it was not under control when it passed the yard limits, but was running twenty-five to thirty miles an hour; it still had a speed of fifteen to eighteen miles when the collision occurred. The switch engine had about come to a stop. It carried an oil headlight at its south end. Evidence given at a former trial by the head brakeman of the freight train was introduced, to the effect that as the engine passed over the bridge he heard the fireman say he could see something ahead, but he didn’t know whether it was in the clear. (1) The jury returned an affirmative answer to the question : “If the deceased, Walter Pyles, had had his engine and train under control, as required by the rules, when he entered the yard limits at South Winfield on April 1, 1912, would the accident have happened?” This finding, among others, is attacked by the defendant as without support in the evidence. “Under control” was defined by the rules as meaning — “ability to stop a train within the distance track is seen to be clear.” Inasmuch aá the switchman’s flag, or signal made by swinging his lantern across the track, given while the incoming train was on the bridge, something over 1500 feet away, was seen by the engine crew (as shown by the answering whistle) it seems clear that if the train had been even then under control the collision would have been prevented. Moreover the jury also answered affirmatively the question: “Did the negligence of the deceased contribute in any degree to the accident which caused his death?” The two findings, in view of the whole situation, are in absolute conflict — they can not be reconciled. Nor can it be ascertained upon which of them the jury acted. Whether any deduction from the amount of the verdict which would otherwise have been returned was made on account of the negligence of the decedent is not disclosed by the record, no question on that subject having been submitted. This conflict in the findings upon a vital point in the case requires the setting aside of the verdict. (2) The defendant maintains that upon the evidence and findings judgment should be ordered against the plaintiff, on the ground that they show the accident to have resulted solely from the negligence of the decedent, no other employee of the company having been at fault. The decision of this question turns in part upon the construction and application of a rule reading as follows, particularly with respect to the phrase here italicized: “Stations having yard limits will he designated in special rule in time-table. [South Winfield was one of the stations so designated.] All trains and engines will have the right to work within such yard limits regardless of second or third-class trains or extras, but will give way as soon as possible upon their approach. All except first-class trains will approach yard limits under control, and responsibility for accident at such points will rest with the approaching trains.” As the defendant interprets the rule, the approaching train having been an extra, the switching crew were under no duty to keep out of its way for the purpose of avoiding a collision; the requirement that they should give way “as soon as possible” meaning merely that they should be diligent in getting out of the way in order not to delay traffic more than was necessary. The plaintiff, however, insists that inasmuch as those in charge of the switch engine, while they were still at the station, saw the reflection of the headlight of the approaching train and knew that it would arrive shortly, the rule made it their duty to get off the main line immediately, leaving a clear track for the freight, and that their negligent omission to do so was at least a contributing cause of the wreck, rendering the company liable. Up to this point we concur in the view of the defendant. Upon the entrance of an extra into a yard where switching is being done, the primary duty of avoiding a collision is cast upon its engineer, who is required to have his train under control, in order that if any obstacle is seen he may stop before it is reached. (Central R. Co. of New Jersey v. Young, 200 Fed. 359; Rosney v. Erie R. Co., 135 Fed. 311.) The switching crew is given the right to work regardless of such a train, but must give way as soon as possible in order not to make unnecessary delay. The crew at work in the yard are not required, in order to make a collision impossible, to withdraw from the main track the instant they learn of the approach of an extra, at any distance. - The instructions embodied substantially this view, the jury being told that the employees at work in the yard had a right to assume that the train would come in under control, and to act accordingly, until they had some notice to the contrary. (3) On the other hand, the rule can not be regarded as exempting the switching crew from taking any precautions to avoid a collision that under all the circumstances would constitute an exercise of reasonable care. Such a construction would render it unreasonable and void. (Chicago, Rock Island Ry. v. Wright, 239 U. S. 548; Southern Ry. Co. v. Craig, 113 Fed. 76.) The jury found specially that the liability of the defendant was based upon the negligence of the switching crew in not getting off the track on the approach of the train; that únder the rules they had no right on the main track because they had notice of the approaching extra by the reflection of its headlight. These findings indicate the adoption of the theory that the switch engine should have been 'sidetracked as soon as the reflection of the headlight of the train was seen in the distance. But the jury also found that when the engine of the train was on the bridge its rate of speed showed the switching crew that its engineer was not going to obey the rule. An instruction was given that from the time the employees had notice of this fact it was their duty to exercise ordinary care to avoid a collision. This is objected to on the ground that it was conclusively shown that they had no such knowledge until it was too late to prevent the catastrophe. We think under, all the evidence it was a fair question for the jury whether in the exercise of reasonable prudence the switching crew could not have anticipated that the engineer might, in the darkness and fog, inadvertently run past the yard limit without reducing speed, and whether, after the train was near enough so that its speed could be ascertained, they could not have backed away from it in time to prevent the accident or materially lessen the consequent injury. These considerations preclude a judgment for the defendant at this time. (4) The defendant complains of an instruction reading as follows: “It was the duty of the Railway Company ... to provide suitable means whereby those managing trains may have notice of switch engines and trains upon its tracks in such positions as are likely to be dangerous to such employees, and to exercise ordinary care in order not to place such switch engine or other obstructions upon its tracks without such notice, in such a position as to be likely to endanger those engaged in managing other engines or trains.” It argues that the rule already quoted was the means provided for the end indicated; and that therefore an instruction given elsewhere, that the rules introduced in evidence were “reasonable and sufficient,” amounted to a statement that sufficient means had been adopted to advise the crews of incoming trains of the presence of engines and cars on the track. The argument gives too much scope to the word “sufficient,” which must be taken to mean sufficient for the particular and limited purpose to which the rule was directed — not sufficient to cover the whole field and give all the protection needed by those for whose benefit it was promulgated. There was some evidence from which an inference might be drawn that the deceased engineer, being unfamiliar with the run, and unable by reason of the weather to tell when he had reached the yard limits, passed them at a high speed without knowing it. Whether the rules gave all the protection reasonably needed to meet a situation of that kind was a fair jury question. The judgment is reversed and the cause remanded for a new trial.	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The opinion of the court was delivered by Dawson, J.: The appellee was given judgment against the appellant for personal injuries and for damages to his wagon and harness in a collision at a railway crossing on a street in Rosedale. Appellee testified that as he was about to cross the defendant’s railway tracks at Rosedale, a switch engine and a number of cars passed the crossing and stopped and the defendant’s employee beckoned to him to cross and said “Come on.” He started to drive across, but before his wagon had cleared the tracks the cars suddenly backed, smashed his wagon and threw him out. Three of the defendant’s employees and another witness, the flagman of another railway company which also had a crossing on the same street about sixty feet distant, testified that he was not signalled or told to cross but on the contrary was told by one of them, “Stop,” “Wait a minute,” but the jury chose to believe the appellee and to disbelieve the defendant’s witnesses. The errors assigned are: (1) misconduct of counsel; (2) instructions given and refused; and (3) excessive verdict. 1. From the record it appears that the conduct of counsel for the appellee was subject to criticism. He insinuated before the jury that a rough draft of a map used to explain the location of the scene of the accident was made for the purpose of suggesting to a witness for defendant how he should testify, that it had “been blocked out for him . . . and he just testifies to what counsel has already made up for him.” He repeatedly accused the defendant’s counsel and a witness for defendant of having procured the names of other witnesses not used at the trial, leaving it to be inferred by the jury that the defendant was withholding the testimony of witnesses un favorable to defendant, and he made a spectacular demand before the jury for the production of the statements of bystanders who saw the accident. There was no evidence to show that the railway’s employees or its counsel had procured such statements nor any evidence of the existence of such documents. There was a good deal of this sort of performance, all of which was improper, and the court should have firmly suppressed it. Eventually the trial judge seems to have taken a tighter grip on the discipline of his court, by saying: “The Court: It seems to me that that thing on both sides is foolishness. These men that are on this jury are sensible men, and all this byplay I don’t think will have any effect upon them and it ought not to be indulged in. “The Court: There is nothing to prevent counsel asking you to produce anything that he thinks you have got, but he understands, I suppose, that you are not bound to produce anything of that kind, and if he wants to see it there is a regular way to get it. That is why I say it is , no — ■ . . . statements of this kind ought not to be indulged in. ■ Go ahead.” This showing goes almost to the border line where a reversal would be required, but the court’s remarks are in the nature of a finding that the jury would not be affected by it, and with some reluctance we will let it stand. 2. Objection is made because the court did not instruct the jury as to the stereotyped rule that the defendant must look and listen before crossing the track. The rule had no application here. What good would it do to look and listen in such a case? Looking, he would see the cars and the signal to cross. He did see them. Listening, he would have heard nothing but what he did hear — the railway employee’s invitation to “come on.” The court did instruct the jury that the appellee was bound to use reasonable and ordinary care and that his failure to do so or his contributory negligence would bar a recovery. 3. It is urged that the verdict is excessive. The appellee testified that the damage to his harness was $3; that he paid a blacksmith $10 to repair the wagon; that he paid $4 or $5 for drugs and bandages; that his earning capacity was $4.40 per day and he was unable to work for seven weeks. This showed damages amounting to about $233.60, and consequently the allowance for pain, suffering, and permanent in juries was about $300. Hardly an excessive allowance, when we accept as true the jury’s findings; and this, the appellant’s counsel will not gainsay, we are bound to do. The judgment is affirmed.	[ -78, 120, -40, -81, -86, 98, 58, -54, 117, -127, -89, 115, -81, -49, 1, 35, -14, 61, -44, 43, 86, -109, 7, -93, -14, -13, 115, -59, -75, -56, -12, 95, 77, 50, -118, 85, 102, 72, -60, 86, -50, 62, -88, -22, -102, 48, 32, 57, 20, 79, 113, -98, -13, 46, 24, -61, 40, 60, 107, -7, -48, 113, -114, 5, 93, 0, -77, 36, -98, 7, 120, 58, -48, 49, -125, -8, 115, -74, -111, -12, 41, -71, 76, -26, 99, 33, 85, -29, -68, -120, 46, 122, 13, -89, -106, 25, -119, 13, -105, -35, 117, 48, 38, -20, -4, 93, 89, 36, 3, -49, -106, -128, -49, 44, -98, 31, -21, -95, 18, 116, -116, -22, 93, 69, 18, -101, -97, -74 ]
The opinion of the court was delivered by Larson, J.: These 10 combined interlocutory appeals arise out of 5 of the numerous pending cases filed by the Kansas Public Employees Retirement System (KPERS) against a number of individuals, accounting firms, and law. firms to recover amounts lost in KPERS’s direct placement investment programs. The defendants filed motions for summary judgment, alleging KPERS’s claims were barred by the statute of limitations. The issue submitted was limited to which, if any, statute of limitations applies to KPERS’s claims arising from its investment activities. The trial court denied the defendants’ motions, holding that KPERS’s investment activity is a governmental and not a proprietary function, and, as such, no statute of limitations applies. It also held that if a period of limitations did apply, K.S.A. 60-522, which established a 10-year statute of limitations on any claims brought by KPERS, applies retroactively to revive any time-barred claims. The order was certified for an interlocutory appeal and accepted pursuant to K.S.A. 60-2102(b). We have jurisdiction under K.S.A. 20-3018(c). Factual background The five cases from which these appeals arise are as follows: 1. In KPERS v. Reimer & Koger Assocs., Inc., 93 CV 588, KPERS sued its investment advisor, Reimer & Koger Associates, Inc., (Reimer & Koger) for about $14.2 million in losses from investments made in Tallgrass Technologies Corporation. The suit was filed on May 20, 1993, for the investment course followed by Reimer & Koger starting in 1985. 2. In KPERS v. Russell, et al., 93 CV 389, KPERS sued to recover about $7.85 million from investments made in Emblem Graphics Systems and Emblem Tape & Label Corporation (Emblem) from September 1985 to December 1988. KPERS alleged that various defendants intentionally assisted Reimer & Koger and Michael Russell, then a KPERS board member, to breach their duties to KPERS. These defendants include Frank L. Victor, a former director of a creditor of Emblem; the George K. Baum Company, Emblem’s investment banking consulting service; George K. Baum and William D. Thomas, officers and directors of both Emblem and the Baum Company; Linde Thomson Langworthy Kohn & Van Dyke, a law firm alleged to have represented Emblem, KPERS, and Reimer & Koger; and Blackwell Sanders Matheny Weaiy & Lombardi, a law firm alleged to have been retained by Reimer & Koger to represent KPERS’s interests in the Emblem transactions. 3. In KPERS v. Ward, et al., 92 CV 433A, KPERS sued to recover about $4,425 million invested in Affinity Systems, Inc., (Affinity) from November 1987 to August 1990. KPERS alleged securities fraud and participation in a breach of trust. This suit was filed in 1992, but in 1995, KPERS moved to amend its petition to add claims against other parties, including Fran Jabara, who was alleged to have been Affinity’s director. 4. In KPERS v. Byrd, et al., 92 CV 923, KPERS sought to recover about $2.5 million for investments made from April 1985 to April 1987 in the Hydrogen Energy Corporation (Hydrogen). KPERS initially sued in 1992, but an amended petition filed in 1994 added as defendants the law firms of Lewis, Rice & Fingersh a/k/a Brown, Koralchik & Fingersh, and Shook, Hardy & Bacon, alleging that they had breached their duties to KPERS after being retained to represent KPERS’s interests in the Hydrogen investments. 5. In KPERS v. Cohen, Brame & Smith, et al., 92 CV 805, KPERS filed suit to recover for investment losses of $6.38 million in Sharoff Food Services, Inc. (Sharoff). KPERS claimed that Cohen, Brame & Smith, a law firm representing Sharoff, issued false opinion letters, thereby participating in Reimer & Koger’s breach of its duties to KPERS. KPERS amended its petition in 1996 to add claims against Kutak Rock, which allegedly represented KPERS in the Sharoff investments between April 1987 to June 1987. On February 12, 1993, the trial court ruled against Cohen, Brame & Smith’s motion for summary judgment on grounds similar to the consolidated rulings of April 3,1996, on appeal before us now. The trial court, however, on June 10, 1996, amended its order of April 3, 1996, in order to allow Cohen, Brame & Smith to join in the interlocutory appeal regarding its statute of limitations defense. Each defendant filed summary judgment motions which essentially contended KPERS’s tort and statutory claims are barred under the general statutes of limitations of K.S.A 60-512 and K.S.A. 60-513. The parties framed the issues in such a manner that the trial court was not asked to determine any question of fact as to when the claims accrued. Rather, the trial court was asked to decide whether KPERS’s claims arose out of a proprietary function so that the general statute of limitations would apply pursuant to K.S.A. 60-521. Further, the court also considered tire applicability and constitutionality of K.S.A. 60-522, enacted in 1992 to grant KPERS a 10-year statute of limitations and amended in 1993 “to be construed and applied retroactively.” On April 3, 1996, the trial court ruled in favor of KPERS on all questions regarding the limitations defenses. The trial court’s decision reaffirmed a prior decision of August 21, 1992, in an earlier filed KPERS case, KPERS v. Reimer & Koger Assocs., Inc., et al., 91 CV 786 (Home Savings), which was removed by the Resolution Trust Corporation to the United States District Court for the Western District of Missouri. Before removal, the Kansas trial court determined KPERS’s claims arose from a governmental rather than a proprietary function, so that general statutes of limitations did not apply to its claims pursuant to K.S.A. 60-521. After removal, however, the United States District Court determined KPERS’s claims in Home Savings arose out of a proprietary function. But, the newly enacted K.S.A. 60-522, which granted KPERS a 10-year statute of limitations, was held to apply to KPERS’s claims, so the claims were not time barred. KPERS v. Reimer & Koger (Home Savings), 92-0922-CV-W-9, filed May 3, 1994. On appeal, the Eighth Circuit Court of Appeals reversed, finding that K.S.A. 60-522 was not intended to apply retroactively to revive previously time-barred claims. Kansas Pub. Emp. Retirement v. Reimer ir Koger (Home Savings), 61 F.3d 608, 614-16 (8th Cir. 1995). In a later appeal, the Eighth Circuit determined that KPERS’s investment activities were proprietary. Kansas Pub. Emp. Retirement v. Reimer & Koger (Home Savings) (No. 96-3262, filed May 13, 1997). Reimer & Koger was named a defendant in the Home Savings case. Two of the other defendants in the current cases below, Shook, Hardy & Bacon and Blackwell Sanders Matheny Weary & Lombardi were permitted, over KPERS’s objection, to intervene in the Home Savings case while the appeal to the Eighth Circuit was pending. Irrespective of the federal courts’ Home Savings decisions, the state trial court in the present cases reaffirmed its holding from Home Savings, and then went on to analyze the impact of the subsequent enactment of K.S.A. 60-522. The court stated the statute was enacted to remove the uncertainty of applying K.S.A. 60-521 to KPERS’s claims as reflected by the varying interpretations by the state and federal district courts. The court ruled that K.S.A. 60-522 applied retroactively to claims that may have been time barred and established a period of limitations that did not heretofore exist. The court held that the retroactive application of 60-522 to revive what may have been time-barred claims was not unconstitutional. The court concluded by declaring that the doctrine of collateral estoppel did not bar redetermination of these matters. It is from these rulings that the numerous defendants in the KPERS cases appeal. Issues presented to the court: 1. Do KPERS’s claims arise out of a proprietary function so that the general statutes of limitation apply as directed by K.S.A. 60-521? 2. Is KPERS collaterally estopped from relitigating the application and interpretation of K.S.A. 60-521 and 60-522 against all defendants? 3. Is K.S.A. 60-522 unconstitutional under either the United States or the Kansas Constitutions for the following reasons? A. Does the statute violate equal protection? B. Does the statute violate due process? C. Was the statute enacted in violation of the single bill subject provision of Article 2, § 16 of the Kansas Constitution? 4. Does K.S.A. 60-522 revive claims previously time barred? 5. Are any of the defendants employees of KPERS so that if KPERS’s claims arise from a proprietary function, K.S.A. 60-521 would prevent the statute of limitations from applying to KPERS’s claims? Because of the result we reach, several of the issues raised are of limited applicability. However, we will consider the distinction between proprietary and governmental functions in detail and will address die collateral estoppel argument. We will treat the remaining issues somewhat summarily. Standard of review Although the issues were initially raised by summary judgment motions, our standard of review of such rulings is not applicable here. The parties have appealed what are clearly only questions of law without any agreed or existing factual determinations. As such, we concur with the parties’ contention that these are questions of law and of statutory construction over which we have unlimited review. See T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924 P.2d 1239 (1996). Before beginning our analysis of the issues raised, which are in part based upon interpretation of the applicable statutes, we again restate certain basic rules of statutory construction set forth in Todd v. Kelly, 251 Kan. 512, 515-16, 837 P.2d 381 (1992), by which we are bound: “Interpretation of statutes is a question of law. The function of the court is to interpret the statutes, giving the statutes the effect intended by the legislature. State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990). ‘As a general rule, statutes are construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). There is a presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 7, 643 P.2d 168 (1982).’ City of Olathe v. Board of Toning Appeals, 10 Kan. App. 2d 218, 221, 696 P.2d 409 (1985). ‘A construction of a statute should be avoided which would render the application of a statute impracticable or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act.’ In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 8, 643 P.2d 168 (1982). See 73 Am. Jur. 2d, Statutes § 251. ‘In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989). ‘[T]he court must give effect to the legislature’s intent even though words, phrases or clauses at some place in the statute must be omitted or inserted.’ Ross, 245 Kan. at 594. ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. . . .’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).” Arguments and authorities We begin our analysis of the first and most important issue raised, subject to the scope of review stated and the rules of construction recognized. Governmental or proprietary function The fundamental issue we must decide, which was almost totally ignored by the federal court decisions available to the trial court, is whether the investment activity of KPERS is a governmental function or a proprietary function. ■ In commencing this analysis; we begin by setting forth a brief history of KPERS and its purposes, directives, and obligations. In Shapiro v. Kansas Public Employees Retirement System, 211 Kan. 452, 455, 457, 507 P.2d 281 (1973), we recognized that KPERS was established in 1961 by K.S.A. 74-4901 et seq. and its purposes have remained unaltered to date: “The purpose of this act is to provide an orderly means whereby employees of ,the participating employers who have attained retirement age as herein set forth may be retired from active service without prejudice and without inflicting a hardship upon the employees retired and to enable such employees to accumulate reserves for themselves and their dependents to provide for old age, death and termination of employment, and for the purpose of effecting economy and efficiency in the administration of governmental affairs.” K.S.A. 74-4901. Another provision of the act further states: “There is hereby created the ‘Kansas public employees retirement system’ which shall be a body corporate and instrumentality of the state of Kansas. The system shall be vested with the powers and duties specified in this act and such other powers as may be necessary or proper to enable it, its officers, employees and agents to carry out fully and effectively the purposes and intent of this act.” K.S.A. 74-4903. The right to sue and be sued exists in the act pursuant to K.S.A. 1996 Supp. 74-4904(1): “The system may sue and be sued in its official name, but its trustees, officers, employees and agents shall not be personally hable for acts of the system unless such person acted with willful, wanton or fraudulent misconduct or intentionally tortious conduct.” KPERS is governed by a board of trustees as provided in K.S.A. 1996 Supp. 74-4905. Participating employers are provided for in K.S.A. 1996 Supp. 74-4910. Eligible employees are designated in K.S.A. 1996 Supp. 74-4911. The normal retirement date for a member of the system is set forth in K.S.A. 1996 Supp. 74-4914. Retirement benefits are described in K.S.A. 1996 Supp. 74-4915. Payments of accidental death benefits and accumulated contributions upon death are included in K.S.A. 1996 Supp. 74-4916. Retirement benefits options are set forth in K.S.A. 1996 Supp. 74-4918. Employer contributions to the fund are required by K.S.A. 1996 Supp. 74-4920 from the employers of all fund members. Provisions for the investment of the fund are found in K.S.A. 1996 Supp. 74-4921, which reads: “(1) There is hereby created in the state treasury the Kansas public employees retirement fund. All employee and employer contributions shall be deposited in the state treasury to be credited to the Kansas public employees retirement fund. The fund is a trust fund and shall be used solely for the exclusive purpose of providing benefits to members and member beneficiaries and defraying reasonable expenses of administering the fund. Investment income of the fund shall be added or credited to the fund as provided by law. All benefits payable under the system, refund of contributions and overpayments, purchases or investments under the law and expenses in connection with the system unless otherwise provided by law shall be paid from the fund. . . . “(2) The board shall have the responsibility for the management of the fund and shall discharge the board’s duties with respect to the fund solely in the interests of the members and beneficiaries of the system for the exclusive purpose of providing benefits to members and such member’s beneficiaries and defraying reasonable expenses of administering the fund and shall invest and reinvest moneys in the fund and acquire, retain, manage, including the exercise of any voting rights and disposal of investments of the fund within the limitations and according to the powers, duties and purposes as prescribed by this section. “(3) Moneys in the fund shall be invested and reinvested to achieve the investment objective which is preservation of the fund to provide benefits to members and member beneficiaries, as provided by law and accordingly providing that the moneys are as productive as possible, subject to the standards set forth in this act. No moneys in the fund shall be invested or reinvested if the sole or primary investment objective is for economic development or social purposes or objectives. “(4) In investing and reinvesting moneys in the fund and in acquiring, retaining, managing and disposing of investments of the fund, the board shall exercise the judgment, care, skill, prudence and diligence under the circumstances then prevailing, which persons of prudence, discretion and intelligence acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims by diversifying the investments of the fund so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so, and not in regard to speculation but in regard to the permanent disposition of similar funds, considering the probable income as well as the probable safety of their capital.” Under KPERS’s statutory provisions, contributions are made by both employees and employers, but our cases have uniformly held that employees’ retirement, disability, and death benefits are contractual in nature between the state and the employee members of the system. In Shapiro, 216 Kan. 353, Syl. ¶ 1, we held: “State retirement systems create contracts between the state and its employees who are members of the system.” In Brazelton v. Kansas Public Employees Retirement System, 227 Kan. 443, Syl. ¶ 4, 607 P.2d 510 (1980), we stated: “Retirement benefits are a valuable part of the consideration for entering into and continuing in public service and a participating member of a governmental pension system has certain vested rights in the pension plan.” In addition, Brazelton stated: “Public employment seldom pays as much as a comparable job in the private sector. A pension to be received upon retirement is a prime inducement in securing qualified workers and avoiding the expense of a high turnover rate. Retirement benefits are a valuable part of the consideration for entering into and continuing in public service. A member of a governmental pension system has certain vested rights in the pension plan because it is a vital part of the consideration for entering into and performing under the employment contract.” 227 Kan. at 449. It is clear that fully vested benefits payable to retired or disabled employees or their beneficiaries are contractual obligations of the State. KPERS is a classic “defined benefit” retirement plan. See K.S.A. 1996 Supp. 74-4920. The State of Kansas and the numerous public entities whose employees are subject to the plan have an unequivocal constitutional, statutory, and contractual obligation to ensure that KPERS has sufficient funds to pay the defined benefits to public employees who are participating in the plan. See Brazelton, 227 Kan. at 447-48. Additionally, K.S.A. 1996 Supp. 74-4923(a) reads: “No alteration, amendment or repeal of this act shall affect the then existing rights of members and beneficiaries but shall be effective only as to rights which would otherwise accrue under this act as a result of services rendered by an employee after the alteration, amendment or repeal.” K.S.A. 1996 Supp. 74-4920(2) further directs: “The division of the budget and the governor shall include in the budget and in the budget request for appropriations for personal services the sum required to satisfy the state’s obligation under this act as certified by the board and shall present the same to the legislature for allowance and appropriation.” If the State of Kansas and involved local entities of government do not adequately fund KPERS, they would be liable for breach of contract and will have violated both the KPERS Act and the constitutional prohibition against impairment of contracts. See Article 1, § 10 of the United States Constitution. Yet, the success or failure of KPERS’ investments does not affect the employees’ .contributions. These contributions are fixed percentages of their salaries, entitling employees to certain defined benefits. K.S.A. 74-4919. Employee benefits could not be reduced to cover any underfunding of KPERS, nor could employees be forced to contribute more to pay for their already vested benefits. The defendants’ argument that KPERS’s investments benefit only members and not taxpayers is clearly erroneous. The beneficiaries of KPERS’s investments activities are not KPERS members and beneficiaries, but rather Kansas taxpayers and the taxpayers of hundreds of public entities throughout the state who provide retirement plans to their employees through KPERS’s provisions. From die standpoint of employees covered by KPERS, the success or failure of KPERS’s investment plan is not critical, as they receive their defined benefits regardless. However, as to every taxpaying citizen of the state of Kansas or the various other public entities whose employees are part of KPERS, the increase in funds from KPERS’s investments in turn reduces the taxes required to fund KPERS’s liability to its beneficiaries. As such, KPERS’s investment function is “ primarily for the advantage of the state as a whole.’ ” Grover v. City of Manhattan, 198 Kan. 307, 309, 424 P.2d 256 (1967). With this background, we return to the issue of the distinction between proprietary and governmental functions. The cases are innumerable, but may be divided for our purposes into (1) those where the State or some governmental entity has sought immunity from suit, (2) those where the State or some governmental unit has sought to avoid a statute of limitations barring a petition for recovery, and (3) several cases where the distinction between governmental and proprietary functions was collaterally involved and which were deemed to be persuasive authority by the parties. The cases dealing with immunity from liability are legion. The doctrine of governmental or sovereign immunity, as it is sometimes interchangeably and possibly improperly called, has its origin in the ancient concept of rex non potest peccare (the king can do no wrong). Black’s Law Dictionary 1323 (6th ed. 1990). We described the history of this concept in Kansas in Wendler v. City of Great Bend, 181 Kan. 753, 758, 316 P.2d 265 (1957), a case concerning whether the operation of an airport by a municipality was a governmental or proprietary function. Our opinion harkened back to a 1788 English case involving a claim for damages to a wagon from a defective bridge and the English court’s determination that an infinity of actions would be produced if recovery was allowed. In commenting on this ancient decision, we stated: “Thus, on such slender grounds have rested thousands of decisions. Shadowy distinctions between ‘governmental’ functions and ‘proprietary’ affairs, between acts of the servants and acts of public corporate entities, between revenue-producing enterprises and those of a strictly gratuitous nature, have been used to decide cases, all without much rhyme or reason.” 181 Kan. at 758. No attempt will be made to summarize most of these cases, although several are instructive to give a flavor of the long Kansas history resulting in the 1979 enactment of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The KTCA makes governmental entities, including the State and its political subdivisions, liable for damages in the same circumstances as a private person would be liable under the laws of this state. K.S.A. 75-6103. Litigation, however, still flourishes as we now struggle with the issues of the exceptions from liability established by K.S.A. 1996 Supp. 75-6104. See, e.g., Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121 (1997). An example of the governmental-proprietary litigation is the 1948 case of Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P.2d 227 (1948). The Krantzes sought to recover from the city for property damaged by overflowing floodwaters alleged to have resulted from the construction of a dike authorized by city officials. After recognizing the dual capacity of municipal corporations as both governmental and proprietary, we acknowledged: “The trend of judicial decisions generally is to restrict rather than to expand the doctrine of municipal immunity” (Syl. ¶ 7), but then stated: “Among typical governmental functions of a municipality may be mentioned: Assessment and collection of its proportion of the state tax, police regulations, suppression of crime, protection of the public health, the exercise of eminent domain, operating a fire department, administration of justice. “In 43 C.J. 182,183, it is said that: “When properly applied the term “governmental functions” should be limited to legal duties imposed by the state upon its creature, which it may not omit with impunity but must perform at its peril.’ (Italics supplied.) and that these governmental functions are those that are exercised for the public good, generally, and ‘for the exercise of which the municipality receives no compensation or particular benefit.’ (Italics supplied.)” 165 Kan. at 454. The opinion proceeded to discuss certain proprietary functions of a city, acknowledged the cases “are legion and replete with conflict and with inconsistencies,” and recognized that the trend was to restrict rather than extend the doctrine of municipal immunity. The Krantz court found: “[W]e are unable to say that the acts of the city officials here complained of were in furtherance of a governmental function. They were not acts performed as an agency of the state, expressive of its sovereignty. They were not performed in promotion of the public welfare generally. They were performed for the special financial benefit of the city and its property, and of its property owners. That was the controlling consideration. The acts were essentially transactions by and for the city in its individual corporate capacity.” 165 Kan. 456-57. Then, the real basis for the decision surfaces, and the opinion asks: “Why should a city, however proper its purposes and however justifiable its course, be permitted to damage the property of private individuals outside the city in order to prevent damage to its own property and other property within the city, without compensation to such individuals for the damage they have sustained?” 165 Kan. at 457. With this observation, the die was cast, and the opinion declared: “[N]o technical fiction should stand in the way of fair play and common justice.” 165 Kan. at 447. The petition was held to have stated a valid cause of action against the city. In reaching the conclusion that the operation of an airport is proprietary in nature, we said in Wendler, 181 Kan. 753, that when considering proprietary functions, actual pecuniary profit or gain has been disregarded by the courts, which have treated with more significance whether the activity is commercial in nature. We then recited that the airport in question was essentially a part of the city’s transportation system, but in its operation, the city was engaged in a purely corporate capacity. With this we determined that the operation of the airport was a proprietary function of the municipality. Another chapter in our history of governmental immunity is Carroll v. Kittle, 203 Kan. 841, 846, 457 P.2d 21 (1969), where we held that in operating the hospital at the University of Kansas Medical Center, the Board of Regents acted in a proprietary capacity. We there recognized that we had at times referred to sovereign immunity, but determined at that point to use the term “governmental immunity.” We concluded “that the rule of governmental immunity from liability for torts committed while engaged in proprietary functions is today without rational basis and hence there is no logical compulsion to extend it because there is a voluntary mingling of governmental and proprietary functions.” 203 Kan. at 850. We pointed out the futility of looking to laws of other states, overruled McCoy v. Board of Regents, 196 Kan. 506, 413 P.2d 73 (1966), and decided that in operating a hospital receiving paying patients, the Board of Regents should be held to the sáme responsibilities and liabilities as privately-owned hospitals. 203 Kan. at 850-51. This was a 4 to 3 decision, with the dissenters believing that McCoy should not be overruled and suggesting: “The difficulties which this court will encounter in determining whether the activity of government giving rise to possible tort liability is governmental or propriety are myriad.” 203 Kan. at 853. Finally, we come to the last cases of note in this area. Brown v. Wichita State University, 217 Kan. 279, 540 P.2d 66 (1975), aff’d in part and vacated in part 219 Kan. 2, 547 P.2d 1015 (1976) and Brown v. Wichita State University, P.E.C., Inc., 217 Kan. 661, 538 P.2d 713 (1975). These cases arose out of the tragic deaths resulting from the crash of a chartered airplane carrying members of the 1970 Wichita State University football team, members of the faculty, and university supporters. By these opinions, the historical development of governmental immunity was exhaustively discussed, and the doctrine of governmental immunity as codified in K.S.A. 46-909 and K.S.A. 46-902 was declared to be unconstitutional as denying equal protection of the law, violating the guarantee of due process of the law, and violating the guarantees declared in § 18 of the Kansas Constitution Bill of Rights. The Brown v. Wichita State University decisions, as well as the history established by all other immunity cases, were the impetus for the 1979 enactment of the KTCA. This brief history brings us down to the present regarding the doctrine of governmental immunity in Kansas. Although the doctrine is collaterally involved in our case and of historical significance, it does not in the final analysis give us much comfort or assistance in reaching any decision on the related issue of how statutes of Mmitations have been applied when the State and its subdivisions seek to recover damages for actions to the detriment of its citizens. The line of cases much , more applicable to our issue involves whether statutes of limitation may bar actions by the State or other governmental entities. These cases rely on a principle differing in origin from the doctrine of governmental immunity and have their emphasis in the maxim nullum tempus occurrit regí (time does not run against the king). Black’s Law Dictionary 1068 (6th ed. 1990). The law as it relates to the application of general statutes of limitations on actions brought by die State, an agency, or subdivision was set forth in State v. School District, 34 Kan. 237, 242, 8 Pac. 208 (1885), where this court said: “Now it is universally held by courts that no statute of limitations will run against the state or the sovereign authority unless the statute itself expressly so provides, or unless the implications of the statute to that effect are so strong as to be utterly unavoidable. It requires no citation of authorities to sustain this proposition.’’ This strong pronouncement was restated in Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670 (1908), a case in which both sides of the present controversy derive comfort from different portions of the opinion. The ruling in Osawatomie, however, was: “The rule that statutes of limitation do not apply to actions by the state unless a legislative intention that they shall do so is shown by express language or appears by the clearest implication also applies to subordinate political bodies, including municipal corporations, with respect to any litigation to enforce governmental rights.” 78 Kan. 270, Syl. ¶ 1. KPERS asks us to rely on this off-quoted case because of its statement that “ ‘[t]he statute does not run against the state unless expressly so provided, and all doubts as to whether it does so run are to be resolved in favor of the state.’ ” 78 Kan. at 272. The opinion added: “ ‘Theoretically, the rule that statutes of limitation do not run against governmental bodies when asserting a public right ór protecting property held for public use, and that such statutes do run against such bodies when asserting private rights or enforcing rights arising from out of ordinary business transactions is sound. ... It would seem that when all the people of-the United States or of the state (both of which seem to be recognized as representing the sovereignty) are interested in the subject-matter of the litigation, that there is no question about the maxim applying, but that when only a portion of the people of the state — for instance, that part of the people residing in some minor subdivision of the state, such as a county or municipal corporation — are the sole parties interested in the subject-matter of the litigation, then the maxim does not apply. . . .’ “The geographical or territorial test proposed may be helpful in some instances, and even determinative in certain' classes of eases, but we doubt its universal applicability. Inasmuch as the city exists in part as an agency of the state for general governmental purposes, and its maintenance depends upon its power to levy and collect taxes, it might be argued that the state itself, or the general public, has an interest in protecting the exercise of that power. But the same argument might apply, although with less force, to the prosecution of any money demand, upon the ground that the purpose of enforcing it is to aid in meeting the expenses of maintaining the municipality. We think the more vital consideration has relation to the character of the power in exercise of which the demand originates. The power of taxation is an essential attribute of sovereignty. This is true no less of taxes levied by minor political divisions than of those directly imposed by the state. [Citation omitted.] No statute of limitation should apply to any step in the exercise of that power unless a legislative intention that it should do so is expressly stated or appears by the clearest implication.” 78 Kan. at 274-76. In this case, the City of Osawatomie sued Miami County, alleging that for a period of 15 years, the county had retained for its own benefit a part of the money collected from taxes levied by the City. The statute of limitations was held not to have run on these claims, and the opinion further noted: “Although the county may have misappropriated the city’s money, and thereby obliged the latter to sue for its recovery, the action is essentially to compel the performance of a public duty, and not to enforce a private contract. “The present controversy involves no element of private contract. It does not concern the vindication of any private right. It is between public officers or public bodies with respect to the performance of a public duty, in which the people of the state at large have at least an indirect interest. It is not affected by mere general provisions of the statute, and no statutory limitation is made to apply to it either in express terms or by necessary implication.” 78 Kan. at 277. In the intervening years, no decision of great import has moved away from these principles. A more modem case is represented by Western Shale Products Co. v. City of Fort Scott, 175 Kan. 643, 266 P.2d 327 (1954), which held that neither laches nor the statute of limitations applied to bar a claim based on the construction and maintenance of a city sewer, ordinarily deemed a governmental function. After pointing out that in some jurisdictions the determining question is whether the particular action seeks to enforce a public as distinguished from a private right, the court wént on to remark: “In this state it was early decided the source of the action must be considered, that is, whether the particular action is properly related to an exercise of some governmental rather than a mere proprietary function. Where it is the former, the statute of limitations is not a bar. [Citations omitted] Where it is the latter, a proprietaiy function, the statute is a bar. [Citations omitted.] This distinction was clearly indicated in a careful consideration of conflicting views on the subject in the early case of Osawatomie v. Miami County, supra, where it was held: ‘The rule that statutes of limitation do not apply to actions by the state unless a legislative intention that they shall do so is shown by express language or appears by die clearest implication also applies to subordinate political bodies, including municipal corporations, with respect to any litigation to enforce governmental rights.’ ” 175 Kan. at 649. We recognized in Western Shale that Osawatomie pinpointed the distinction between governmental and proprietary functions as follows: “ We think the more vital consideration has relation to the character of the power in exercise of which the demand originates.’ ” 175 Kan. at 649. With this background, we arrive at the 1963 adoption by the Kansas Legislature of K.S.A. 60-521, a new provision applicable to suits by governmental bodies as a part of our new Code of Civil Procedure: “As to any cause of action accruing to the state, any political subdivision, or any other public body, which cause of action arises out of any proprietaiy function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the , same manner as to actions by private parties, except in (1) aétions for the recovery of real property or any interest therein, or (2) actions to recover from any former officer or employee for his or her own wrongdoing or default in the performance of his or her duties.” The advisory committee notes applicable to this new statute reported that this section abolished tíre common-law maxim nullum tempus occurrit regi where public bodies operate in a proprietary capacity. They also indicated the common-law principle was no longer applicable in view of the complicated activities of such bodies. In Vernon’s Kansas C. Civ. Proc. § 60-521 (1967), the following comments are found: “The authors are pleased to set out the following comments, written by Professor V. C. Martin of the Washburn University School of Law. “This section is new. It recognizes the distinction between proprietary and governmental functions and codifies the prior case law that causes of action arising out of the proprietary function are subject to statutes of limitation. See, Western Shale Products Co. v. City of Fort Scott, 1954, 175 Kan. 643, 266 P.2d 327, for a discussion of the law and citation of cases. The rule that causes of action arising out of the governmental function are not subject to statutes of limitation is recognized by omission from this section. “Real property actions are excepted from statutes of limitation whether arising out of the governmental or proprietary function. See also, K.S.A. 60-509. “The exception, from statutes of limitation, of actions to recover from officers and employees appears to be a clear statement of the Legislature’s intention.” The first case where this new statutory provision was applied was Board of County Commissioners v. Lewis, 203 Kan. 188, 453 P.2d 46 (1969). This was an action to recover overcharges and penalties for materials and supplies purchased by the Sedgwick County Board of County Commissioners. The purchased materials were used by the county to maintain its roads and bridges and also included fire control equipment. In response to a defense that the claim was time barred, Lewis held that application of general statutes of limitations is subject to the specific provisions of K.S.A. 60-521, which “does not apply, nor was it intended to apply, to actions brought by the state or by a county since the governmental-proprietary distinction as applied to cities in certain instances has never been applied in this jurisdiction to the functions and activities of an organized county.” 203 Kan. 188, Syl. ¶ 4. The unanimous Lewis court decided the early rule of State v. School District, 34 Kan. at 242, was still good law. That case enunciated the rule still applicable in this jurisdiction: “ ‘A statute of limitations will not run against the state or the sovereign authority unless the statute itself expressly so provides.’ ” 203 Kan. at 190 (quoting State v. School District, 34 Kan. 237, Syl. ¶ 3). The court then stated that Osawatomie, 78 Kan. 270, had reaffirmed the rule of State v. School District and made it applicable not only to the State, but also to political subdivisions such as counties with respect to any litigation to enforce governmental rights. 203 Kan. at 191. The Lewis opinion then cited Caywood v. Board of County Commissioners, 194 Kan. 419, 421, 399 P.2d 561 (1965), and McCoy, 196 Kan. 506, to justify holding that “[c]ounties, being agencies of the state, partake of attributes of the state itself insofar as the application of the doctrine of sovereign immunity, the statute of limitations, and particularly the lack of ability to engage in proprietary functions and activities. [Citation omitted]. “Applying the foregoing legal principles, it follows that 60-521 does not apply, nor was it intended to apply, to actions brought by the state or its subordinate political subdivisions such as counties, to enforce governmental rights. In the instant case, the county was not engaged in a proprietary function or activity — in fact and in law it could not engage in such a function or activity since there does not exist such a thing as a proprietary function at the state or county level.” 203 Kan. at 194. This specific holding, if it were still the law of Kansas, would be fatal to the defendants’ position. But, it is not the present rule in Kansas, as later in the same term the Kansas Supreme Court held in Carroll, 203 Kan. at 850-51, a 4 to 3 decision, that McCoy and all other cases holding that the State and its agencies could not be liable for tortious acts committed while engaged in a proprietary function were overruled. This subsequent change had absolutely no effect on the result in Lewis. The opinion therein held that if the governmental-proprietary distinction was determinative, the building of bridges, maintenance of public roads, and prevention of fires were all governmental functions so that under K.S.A. 60-521, the statutes of limitations did not apply. Lewis was followed by numerous cases which elaborated on and confirmed this clear statement of our law. In State Highway Commission v. Steele, 215 Kan. 837, 528 P.2d 1242 (1974), we held that an action by the State Highway Commission to recover damages to a bridge caused by an automobile was not barred by the 2-year statute of limitations. This opinion quoted from the same portion of Vernon’s previously referred to herein and went on to hold: “In a long line of cases, the most recent of which are Board of County Commissioners v. Lewis, 203 Kan. 188, 453 P.2d 46; and Riggan v. Director of Revenue, 203 Kan. 129, 453 P.2d 52, this court has consistently held that the statutes of limitation do not run against the state unless specifically provided by statute.” 215 Kan. at 839. The appellate courts again stated in State ex rel. Schneider v. McAfee, 2 Kan. App. 2d 274, Syl. ¶ 2, 578 P.2d 281, rev. denied 225 Kan. 845 (1978), that “[statutes of limitations do not run against the state unless specifically provided by statute.” The Court of Appeals ruled: “(1) The procuring of architect’s services was incidental to and a part of the state’s overall duty to provide education for the citizens of the state, and (2) the hiring of an associate architect pursuant to K.S.A. 75-5401, et seq., is a governmental function of the state. Accordingly, the trial court erred in holding that the cause of action was barred by the two-year statute of limitations for tort set forth in K.S.A. 60-513(4).” 2 Kan. App. 2d 274, Syl. ¶ 3. The McAfee opinion relied on the Steele, Lewis, and Riggan cases that distinguished governmental-proprietary functions in this manner: “Governmental functions are those which are performed for the general public with respect to the common welfare for which no compensation or particular benefit is received, while proprietary functions are exercised when an enterprise is commercial in character or is usually carried on by private individuals or is for the profit, benefit or advantage of the governmental unit conducting the activity.” 2 Kan. App. 2d at 276. A case with a similar holding involved the leaking roof of a school district building. It was determined in U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d.346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981), that statutes of limitations do not run against the State when the action arises out of the performance of a governmental function such as a school board’s construction of a school building. Here, it was noted that the construction of a school building is incidental to and a part of the State’s overall duty to provide public education for the citizens of the state. The operation of a high school building by a school board was found to be a governmental function. The next interesting case regarding this issue was State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 649 P.2d 419, rev. denied 232 Kan. 876 (1982). This case held that an action arising out of the attorney general’s duty to enforce the Kansas Consumer Protection Act is in furtherance of a governmental function, notwithstanding the fact that the underlying action involved a transaction between two individuals. In describing the distinction between governmental and proprietary functions, the court reiterated that governmental functions are performed for the common welfare and proprietary functions are commercial, as declared in McAfee, 2 Kan. App. 2d 274, Syl. ¶ 3, and previously set forth. Next in the chronology of our Court of Appeals’ decisions is City of Attica v. Mull Drilling Co., 9 Kan. App. 2d 325, 676 P.2d 769 (1984), which does not fit into, but is not inconsistent with, the earlier pattern. The City of Attica sued numerous oil and gas operators for salt water contamination of the city’s water wells. Here, K.S.A. 60-521 was found not to exempt the city from application of the statute of limitations because the cause of action arose out of the exercise of a purely proprietary function. City of Attica cited Cross v. City of Kansas City, 230 Kan. 545, 549, 638 P.2d 933 (1982), which found that a municipality in the operation of public waterworks, which also serves as a water supply for fire fighting, does so in a dual capacity so that the furnishing of water for fire fighting is governmental and the remaining portion of the waterworks function is proprietary. Cross was an immunity rather than a limitations case, but it appears to show that an agency of government can be acting in either a governmental or a proprietary function depending on who is expected to benefit from its actions. This dual power of a municipal corporation was again referred to in International Ass’n of Firefighters v. City of Lawrence, 14 Kan. App. 2d 788, Syl. ¶ 3, 798 P.2d 960, rev. denied, 248 Kan. 996 (1991), which stated: “Governmental or legislative powers are exercised to administer the affairs of the state and promote the public welfare generally. Proprietary or administrative powers are exercised to accomplish private corporate purposes in which the public is only indirectly concerned and as to which the municipality is regarded as a legal individual.” Additional holdings of a similar nature include State v. Graham, 12 Kan. App. 2d 803, 758 P.2d 247 (1988) (holding K.S.A. 60-514[c] is not applicable to a habitual violator action under K.S.A. 8-284 et seq. because the State’s cause of action arises out of the governmental function of regulating highway safety); State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 747 P.2d 1326 (1987) (finding fraud claims for roof damage to state building not subject to period of limitations). The GAF decision also made the important point that “[t]he reasons supporting tort immunity are not the same as those which support an extension of time limitations to the State beyond those limits governing individuals.” 242 Kan. at 163. The issue before us was central to a recent decision by the United States District Court for the District of Kansas and the Tenth Circuit Court of Appeals in City of Wichita, Kan. v. U.S. Gypsum Co., 828 F. Supp. 851 (D. Kan. 1993), aff’d in part and rev’d in part on other grounds City of Wichita, Kan. v. U.S. Gypsum Co., 72 F.3d 1491 (10th Cir. 1996). This case involved suits against manufacturers of asbestos used in the construction of a public library and the Century II Civic Cultural Center in Wichita. The statute of limitations was at issue, giving rise to the question of whether the claim for relief accrued or arose out of a proprietary or a governmental function. The well-reasoned district court opinion cited many of the cases we have previously referred to and ultimately focused on the factual and legal elements from which the city derived the right to maintain the action, rather than the concerns that prompted the exercise of those rights. It concluded that the operation of the public library was a governmental function, while the predominant function of the Century II building was to provide commercial benefits to the city and, thus, its operation was characterized as proprietary. 828 F. Supp. at 862-63. K.S.A. 60-521 was central to the district court opinion that cited both sovereign immunity and statutes of limitations cases that recognized “the reasons for restricting immunity of the sovereign from suit do not support a restriction of the sovereign’s immunity from the statute of limitations.” 828 F. Supp. at 861. Further, the district court stated: " The court can agree with plaintiff that Kansas has taken a more favorable view of governmental immunity from the statute of hmitations than governmental immunity from suit. Indeed, the importance that Kansas attaches to the preservation of public rights from the bar of the statute may be inferred from the enactment of K.S.A. § 60-521, which, by negative implication, retains govemmentalimmunity from the statute of hmitations for causes of action arising out of governmental functions. State Highway Comm’n v. Steele, 215 Kan. 837, 839, 528 P.2d 1242, 1244 (1974). As plaintiff states, ‘the doctrine of governmental immunity from statutes of limitation has been and remains supported in modem law by the im portant policy that public rights and causes of action should not be lost by the acts or omissions of public officers.’ [Citations omitted.] “Public rights, however, are not at issue when a municipality’s cause of action arises out of a proprietary function. The court finds no authority for the proposition that the court should resolve ‘all doubts’ in favor of the governmental entity, merely by virtue of that status, on the question of whether its cause of action arises out of a governmental as opposed to proprietary function. Plaintiff attempts to support this proposition with language from City of Osawatomie v. Board of County Comm’rs, 78 Kan. 270, 96 P. 670 (1980), where the court stated: ‘The statute does not run against the state unless expressly so provided, and all doubts as to whether it does so run are to be resolved in favor of the state. This rule extends to minor municipalities created as local governmental agencies in respect to governmental affairs affecting the general public.’ [Citation omitted.] “Contrary to plaintiff’s belief, neither this nor any other case cited by plaintiff requires the court to grant municipalities a favorable resolution of ‘all doubts’ regarding whether their cause of action arises out of a proprietary or governmental function. The rule of statutory construction cited by plaintiff is a rule that does not favor application of time restrictions to the sovereign for its actions arising out of governmental functions when it is doubtful whether the legislature intended for time restrictions to bar such actions. See State v. Dixon, 90 Kan. 594, 596, 135 P. 568, 569 (1913) (‘statutory limitations do not run against the state when it sues in its sovereign capacity, unless the statute expressly includes the state, or the intention to include the state is shown by the clearest implication’); State v. Graham, 12 Kan. App. 2d 803, 807, 758 P.2d 247, 251 (1988); Badaracco v. Commissioner, 464 U.S. 386, 391, 104 S. Ct. 756, 760, 78 L. Ed. 2d 549 (1984). The question presented in this case, however, is whether the City’s cause of action arises out of a governmental function. If it does, then K.S.A. § 60-521 leaves no room for doubt that the City’s action is not subject to the statute of limitations. If it does not, then the two-year statute of limitations under K.S.A. 60-513 comes into play. “The court concludes that no rule of law favors either defendants or plaintiff in determining whether plaintiff’s cause of action arises out of a proprietary or governmental function.” 828 F. Supp. at 861-62. The district court then analyzed the functions of the City of Wichita’s two buildings and reached the conclusions we previously recited. The Tenth Circuit essentially agreed with the trial court’s decision and the underlying authority it cited and utilized. The final authority which covers the identical issue we now consider arose from the KPERS v. Reimer & Koger (Home Savings) litigation that has been previously discussed. The federal district court’s opinion filed May 3,1994, contained no analysis, büt simply held that KPERS’s cause of action arose out of a proprietary function or activity as opposed to a governmental function. On appeal to the Eighth Circuit this important issue was not even mentioned in an opinion centered on the retroactivity of K.S.A. 60-522. As such, neither of these opinions is of assistance to us. However, the governmental-proprietary distinction was considered by the Eighth Circuit in its opinion filed May 13, 1997, and submitted to us as additional authority on May 22,1997, after oral argument in our case. The most recent Eighth Circuit opinion dealt primarily with the defendants’ assertions that KPERS’s claims were time barred by K.S.A. 60-512 and K.S.A. 60-513(a) and suggested that KPERS’s contention that its claims are not subject to any statute of limitations may not be relitigated under the law of the case doctrine. (Slip opinion at 16). Nevertheless, the opinion stated the law of the case doctrine does not apply when it results in manifest injustice and proceeded with the following discussion and holding: “KPERS argues that its investment in Home Savings was a governmental function, and therefore, its claims arising out of that investment are not subject to any statute of limitations. “The Kansas Supreme Court has stated that ‘[mjaintaining KPERS is a proprietary function of the state.’ In re Midland Indus., [237 Kan. 867, 870,] 703 P.2d 840, 843 (1985) (discussing the holding of Shapiro v. KPERS, [216 Kan. 353,] 532 P.2d 1081 (1975)). In Shapiro, the Kansas Supreme Court rejected the argument that sovereign immunity barred payment of interest on a claim for benefits made by an employee’s widow. Shapiro, [216 Kan. at 357,] 532 P.2d at 1085. Shapiro looked to the statutes creating KPERS as a body corporate with the power to sue and be sued, and held that if a government enters into business ordinarily reserved to the field of private enterprise, it should be held to the same responsibilities and liabilities. Id. at 1083-84. A member of KPERS or his beneficiary should be provided the same protection and the same redress as if the breach of contract had been committed by a private insurance company. Id. at 1084-85. While the issue in Shapiro involved a claim for benefits only, Midland’s explanation of the holding in Shapiro demonstrates the broad scope of the ruling. These clear holdings compel rejection of KPERS’s argument. •' “Indeed, the Kansas legislature in enacting section 60-522, Kan. Stat. Ann. § 60-522 (1994), which we discussed at length in KPERS III, has acknowledged that statutes of limitation run as to claims asserted by KPERS. “KPERS has made extended arguments that its operations are governmental functions as opposed to proprietary. The Kansas Supreme Court has made clear that an activity is a proprietary function if it is commercial in character, usually carried on by private parties, or conducted for profit. See Carroll v. Kittle, [203 Kan. 841, 848,] 457 P.2d 21,28 (1969); State ex rel. Schneider v. McAfee, [2 Kan. App. 2d 274, 276,] 578 P.2d 281, 283 (1978). KPERS’s actions arising from its investment activities meet this description fully, and do not differ from the suit for contractual benefits involved in Shapiro. “Similarly, KPERS argues that the investments are governmental because the profits reduce the burden on Kansas taxpayers to fund KPERS, the funds were invested to stimulate the Kansas economy, and Kansas statutes require the funds to be invested. Insofar as these arguments are not answered by those cases we have cited above, the Kansas Supreme Court’s decisions in Wendler v. City of Great Bend, [181 Kan. 753, ] 316 P.2d 265, 269, 274 (1957), and Grover v. City of Manhattan, [198 Kan. 307,] 424 P.2d 256, 259 (1967), compel rejection of KPERS’s arguments. This analysis also forecloses KPERS’s argument that its claims against Peat Marwick arise out of governmental functions.” (Slip opinion at 17-19.) Our foregoing discussion has developed the two ways the governmental-proprietary distinction has evolved in immunity and statute of limitations cases. Before we apply these cases to KPERS’s activities in this appeal and reach the conclusion these cases compel, we will briefly discuss several cases which are claimed by the parties to be applicable authority. In Greeley County Comm’rs v. Horace State Bank, 135 Kan. 126, 9 P.2d 986 (1932), we determined that a nonclaim statute ran against a county that made a late claim against a failed bank in which it was a depositor. We said: “[N]o attribute of sovereignty or governmental function is involved in the matter of a county keeping a bank account. . . . The doing of ordinary business is not governmental.” 135 Kan. at 127. The defendants seize on this wording to argue that investing money is just like maintaining a bank account. As both are commercial in nature, the defendants contend it follows that the investing of state funds is also commercial and, thus, a proprietary action. KPERS groups Greeley County Comm'rs among those cases where the question of the governmental-proprietary distinction arose in the context of governmental immunity, and it claims such cases have little value in determining the distinction for the purpose of deciding whether the government is barred by a period of hmitation. We believe that KPERS improperly groups Greeley County Comm’rs with the governmental immunity cases. However, KPERS is correct in the sense that this case also is not one where a statute of limitations was applied to a governmental claim. The Greeley County Comm’rs opinion clearly stated that the result it reached was necessary to allow the affairs of a failed bank to be wound up in a “businesslike and beneficial manner.” 135 Kan. at 127. The opinion went on to hold: “But, the statute is not a statute of limitation. It is a nonclaim statute, similar in purpose and effect to the statutes requiring presentation within limited periods of claims against decedents’ estates. According to what this court regards as the better view and the weight of authority, such statutes apply to a common claim of the state, and of a county.” 135 Kan. at 127-28. An excellent discussion of the differences between a nonclaim statute and a statute of limitations is found in Sovereign Immunity from Statutes of Limitation, 46 Maryland L. Rev. 408, 426-27 (1987). The article explains that nonclaim statutes are preconditions of suit, with their time limits applying to government irrespective of sovereign immunity. This is the logical explanation of the result in Greeley County Comm’rs. We look at it only as holding that nonclaim statutes apply to governmental units. As such, it has little significance in reaching our decision herein. We place a similar lack of significance in a statement of pure dicta in In re Tax Protests of Midland Industries, Inc., 237 Kan. 867, 870, 703 P.2d 840 (1985), that maintaining KPERS is a proprietary function. We previously held in Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 532 P.2d 1081 (1975) (Shapiro II), that state retirement systems create contracts between the State and its employees, so that employees could sue for KPERS’s breach of contract and obtain interest as a proper element of damages. An earlier case, Shapiro v. Kansas Public Employees Retirement System, 211 Kan. 452, 507 P.2d 281 (1973) (Shapiro I), had allowed recovery of accidental death benefits, and Shapiro II merely held the earlier award also included the right to recover interest. Ten years later, in Midland, we held that under the doctrine of sovereign immunity, a county is not liable for interest on its obligations unless some statute expressly so provides. The taxpayers attempted to argue that this rule had been abrogated by the decision in Shapiro II, and we answered this contention with the following comments: “In Shapiro, the issue was whether a widow of a member of the Kansas Public Employees Retirement System (KPERS) was entitled to recover interest on accidental death benefits wrongfully withheld by the system. KPERS is a state retirement system which creates contracts between the state and its employees who are members of the system. Maintaining KPERS is a proprietary function of the state, and the state has expressly provided that KPERS may be sued on its contractual obligations. “We determined that where a state legislature has consented that one of its agencies may be sued on its express contracts, the waiver of sovereign immunity should extend to every aspect of its contractual liability including the right of the contracting party to recover interest where it is customarily included as a part of the damages to be awarded for breaches of contracts. This court has held on numerous occasions that where the state is involved in a proprietary or private function, it will be held to the same responsibility as a private person for injuries resulting from failure to meet its contractual obligations or as a result of its negligence. Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). “Absent a statute expressly imposing liability, a municipality is not hable for its performance of a governmental function. Ordinarily a municipality is engaged in the performance of a governmental function when it exercises the sovereign power delegated to it to look after the general public good and after the peace, health and well being of the citizens of the state at large. Grover v. City of Manhattan, 198 Kan. 307, 424 P.2d 256 (1967); Wendler v. City of Great Bend, 181 Kan. 753, 316 P.2d 265 (1957). The collection of taxes by a municipality is a governmental function and not a proprietary one. “Therefore, the rule of Shapiro is not applicable to the present case, and the general rule that a county is not hable for interest on its obligations unless some statute expressly so provides does apply.” 237 Kan. at 870-71. When our statement that “[mjaintaining KPERS is a proprietary function” is read in context with the entire Midland opinion, it is clear we were looking at a different question (the allowance of interest), and the statement was based on the Shapiro I holding of protecting state employees from any breach of their contractual rights by KPERS. We did not, as the defendants claim, decide that maintaining KPERS is always a proprietary function, but only held that employees have contractual rights which, in the vernacular of the time, were translated as proprietary rather than governmental. We deem the statement to be unprecedential in nature and not binding in any manner on the considerations we make herein. Defendants point to the most recent Home Savings case, filed May 13, 1997, as authority for the proposition that KPERS’s investment activities are proprietary. In this decision, the Eighth Circuit looked to Midland and Shapiro II in its analysis, finding that KPERS’s activities are proprietary. The Home Savings opinion failed to recognize the distinction between governmental immunity cases and those involving statutes of limitations. It also failed to recognize that there is a significant distinction between a suit by employees to recover contractual benefits and a suit by KPERS arising from its investment activities. Due to these failures, and the heavy reliance upon Midland, we place little persuasive value on the Eighth Circuit opinion. While the defendants champion Greeley County Comm’rs and Midland, KPERS points to the recent holding in K.D.F. v. Rex, 878 S.W.2d 589 (Tex. 1994), where the Supreme Court of Texas held that because KPERS’s functions are governmental, Texas must recognize its sovereign immunity in a tort action by a debtor against a secured creditor alleging wrongful refusal to release a security interest. Regarding the debtor’s allegation that KPERS was engaged in a commercial rather than a governmental activity, the Texas Supreme Court stated: “We disagree. Initially, it is not clear to us that investing the retirement savings of state employees can be categorized as purely, or even primarily, a commercial activity. Kansas is not, for example, operating a mutual fluid in which the general public may invest. Rather, KPERS exists to permit the Kansas government to fulfill its governmental function as a public employer.” 878 S.W.2d at 595. KD.F. is again a sovereign immunity case and not one where the question of the application of a statute of limitations was in issue. However, its reading does support the arguments of KPERS that its overall investment function is purely governmental for the benefit of the public at large. As we begin to analyze the various tests of the cases we have reviewed, it is readily apparent that the nature and extent of our view of the overall issue will in a large degree determine the result we reach. See In re Estate of Koch, 18 Kan. App. 2d 188, 215, 849 P.2d 977, rev. denied 253 Kan. 858 (1993). If we viewed each investment action and decision separately as only a commercial transaction, as did the Eighth Circuit in the recent Home Savings case, we could find the acts to be proprietary in nature. However, if we take a broader perspective of the entire problem, it is more realistic to determine that the investment of KPERS funds is necessary to promote the public welfare generally and to satisfy the contractual and taxation obligations of the State of Kansas, the school districts, the municipalities, and the other governmental entitles to their employees. This view indicates KPERS’s investment activities are governmental in nature. In making this analysis, we are not guided by the governmental immunity cases but rather by those that are directly related to our question — the application of statutes of .limitations to actions brought by the State or its agencies, counties, municipalities, school districts, or other governmental units. K.S.A. 60-521 sets forth the Kansas Legislature’s intention to have periods of limitations apply to proprietary functions or activities. But, the rule of State v. School District, 34 Kan. 237, Syl. ¶ 3, 8 Pac. 208 (1885), that “[n]o statute of limitations will run against the state or the sovereign authority unless the statute itself expressly so provides,” requires that we find causes of action arising out of a governmental function are not subject to any statute of limitations. In applying Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670 (1908), it is clear that here KPERS is “asserting a public right or protecting property held for public use.” 78 Kan. at 274. All taxpayers of Kansas and those of any city, county, school district, or other governmental entity within the KPERS system are interested in the subject matter of this litigation because it may have a very direct effect on the amount of taxes levied in the future. Osawatomie recognizes: “The power of taxation is an essential attribute of sovereignty.” 78 Kan. at 275. Therefore, “[n]o statute of limitation should apply to any step in the exercise of that power unless a legislative intention that it should do so is expressly stated or appears by the clearest implication.” 78 Kan. at 275-76. The defendants’ claim that KPERS is only attempting to “enforce rights arising out of ordinary business transaction[s]” has merit, but fails to view the KPERS litigation in its overall significance. Applying the language of Osawatomie as the defendants desire would make KPERS’s litigation trivial when in reality KPERS is seeking to recover millions of dollars which the public will otherwise be forced to pay in higher taxes. In Western Shale Products Co. v. City of Fort Scott, 175 Kan. 643, 649, 266 P.2d 327 (1954), we find “ ‘the more vital consideration has relation to the character of the power in exercise of which the demand originates.’ ” (quoting Osawatomie, 78 Kan. at 275.) In the KPERS cases, this is clearly the investment of tax dollars necessary to satisfy contractual obligations of governmental bodies. Again, this is a governmental function. Board of County Commissioners v. Lewis, 203 Kan. 188, 453 P.2d 46 (1969), must be read in the limited context we earlier discussed, but it remains valid precedent for a rule that building bridges, maintaining roads, and preventing fires are all governmental functions to which, under K.S.A. 60-521, the statutes of limitations do not apply. Each of these acts is for the overall benefit of the citizens of our state, as is KPERS’s duty to satisfy contractual obligations for pension benefits to employees. In State Highway Commission v. Steele, 215 Kan. 837, 528 P.2d 1242 (1974), the limitations period did not run against an action to recover damages to a bridge. The expense of such a repair should come from the tortfeasor rather than the taxpayers. A similar result is asked for by KPERS herein, as it argues that the KPERS fund should be restored by the potential tortfeasors rather than Kansas taxpayers. Investment advice and services can be equated to an architect’s services which were dealt with in the holding of State ex rel. Schneider v. McAfee, 2 Kan. App. 2d 274, 578 P.2d 281, rev. denied 225 Kan. 845 (1978). Both jobs relate to governmental functions of the State. The same result is justified as to the builder of a leaking roof of a school district building, in which the construction of a school building also was found to be a governmental function. U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 649 P.2d 419, rev. denied 232 Kan. 876 (1982), related to the enforcement by the attorney general of the Kansas Consumer Protection Act, with the governmental-proprietary distinction clearly defined as in the earlier cases. Nevertheless, although the underlying transaction was between two individuals, it was deemed to be a governmental function to enforce the State’s rights in that case. That is actually what KPERS is doing here, enforcing the rights of all contributors of tax dollars to the funds necessary to satisfy KPERS’s contractual obligations. City of Attica v. Mull Drilling Co., 9 Kan. App. 2d 325, 676 P.2d 769 (1984), does not fit into the preceding chronology but is best explained by its reliance on Cross v. City of Kansas City, 230 Kan. 545, 638 P.2d 933 (1982), where the operation of public waterworks had dual purposes, both proprietary and governmental. Under City of Attica’s facts, the city’s action was deemed proprietary. International Ass’n of Firefighters v. City of Lawrence, 14 Kan. App. 2d 788, 798 P.2d 960, rev. denied 248 Kan. 996 (1991), speaks of proprietary powers as those in which the pubhc is only indirectly concerned. The pubhc is much more than indirectly interested in the investment affairs of KPERS when it has the tax obligation to uphold KPERS’s financial integrity. KPERS’s investments are in fact “affairs of the state and promote the pubhc welfare generally,” thus making them governmental in nature. 14 Kan. App. 2d at 794. We have exhaustively quoted from City of Wichita, Kan. v. U.S. Gypsum Co., 828 F. Supp. 851 (D. Kan. 1993), and believe that its holding is consistent with the result we reach herein. The Century II building was found to be primarily for the city’s commercial benefit, making it proprietary in nature, while the pubhc nature of the library made it governmental. Our holding is not inconsistent with this result. Finally, as we previously indicated, we hold that the decisions in KPERS v. Reimer & Koger (Home Savings), regarding governmental-proprietary functions were incorrectly decided and never reached a proper analysis of the underlying Kansas law on the governmental-proprietary distinction involving the application of stat utes of limitations to governmental entities. As such, these opinions offer no persuasive authority to assist us in this case. We hold the actions of KPERS involved in this litigation are all governmental in character, to which no statute of limitations applied until the Kansas Legislature enacted K.S.A. 60-522 in 1992. Thus, the trial court’s ruling refusing to grant summary judgment to the defendants was proper. Collateral estoppel Three of the defendants to the cases herein, Reimer & Koger; Shook, Hardy & Bacon; and Blackwell Sanders Matheny Weary & Lombardi were parties to KPERS v. Reimer & Koger (Home Savings) and argue that KPERS should be collaterally estopped from relitigating the issues herein because of the rulings by die United States District Court for the Western District of Missouri and the Eighth Circuit Court of Appeals. All the other defendants assert we should abandon the mutuality requirement of collateral estoppel and hold that the federal decisions should apply to them as well. We decline both invitations. Collateral estoppel serves three salutary purposes: (1) to avoid the expense and vexation attending multiple lawsuits, (2) to conserve judicial resources, and (3) to foster reliance on judicial action by minimizing the possibility of inconsistent decisions. Montana v. United States, 440 U.S. 147, 153-54, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979). None of these purposes exist here. In actuality, for the many different reasons we hereafter briefly recite, application of collateral estoppel under the uniqué facts of the KPERS litigation would have the effect of fostering injustice and allowing a federal court to preclude consideration of its erroneous determination of state law. Additionally, an authoritative decision by this court will prevent, not promote, inconsistent decisions. Any suggestion that this court is precluded from deciding a question of our state law is without merit. Federal court decisions on issues of state law are not binding on and have limited precedential effect in state courts. Erie R. Co. v. Tompkins, 304 U.S, 64, 78-79, 82 L. Ed. 2d 1188, 58 S. Ct. 817 (1938). As we said in State ex rel. Stephan v. Finney, 254 Kan. 632, 633, 867 P.2d 1034 (1994): “The interpretation of the laws ... of Kansas by the Supreme Court of Kansas is controlling upon the federal and all Kansas courts. Quality Oil Co. v. du Pont & Co., 182 Kan. 488, 493, 322 P.2d 731 (1958).” In addition, the First Circuit noted in Commerce Oil Refining Corporation v. Miner, 303 F.2d 125, 128 (1962): “Indeed, since Erie v. Tompkins, there can be even less claim to a ‘right’ to have a federal court resolve questions of local law. No one could seriously suggest that an ‘informed prophecy” as to the meaning of a state statute is to be preferred to an ‘authoritative decision”, let alone that the former is to be protected from the latter.” Those defendants who were not parties to the KPERS v. Reimer ir Roger (Home Savings) litigation would not, under any circumstances, be allowed the benefit of collateral estoppel unless we abandon the mutuality of the parties requirement. This, we decline to do. In Bank of Kansas v. Davison, 253 Kan. 780, 784, 861 P.2d 806 (1993), we said: “ ‘Collateral estoppel prevents a second litigation of the same issues between parties or their privies.’ In re Estate of Beason, 248 Kan. 803, 813, 811 P.2d 848 (1991). The requirements of coUateral estoppel are: ‘(1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment.’ Estate of Beason, 248 Kan. at 813.” In McDermott v. Kansas Public Serv. Co., 238 Kan. 462, 712 P.2d 1199 (1986), we examined the issue of whether we should abandon the absolute mutuality requirement in order to apply collateral estoppel. We determined that mutuality remained the majority rule in the United States and that abandonment of the rule would not be fair. We again reached this result in Jones v. Bordman, 243 Kan. 444, 460, 759 P.2d 953 (1988), where we said we have “held that collateral estoppel, or issue preclusion, required mutuality; i.e., the issue subject to preclusion must have arisen in a prior case in which both of the current parties were adequately represented.” This decision resolves the issue of the application of collateral estoppel to those KPERS defendants without mutuality. But, we have three defendants who did take part in the Home Savings cáse. Although two were intervenors, our law is clear that those who intervene in a lawsuit are bound by judgments rendered in that suit the same as any other party. Brent v. McDonald, 180 Kan. 142, 155, 300 P.2d 396 (1956). There are, however, exceptions to the application of collateral estoppel, and we believe the unique facts here show collateral estoppel should not be applied to those three defendants. The present status and ultimate disposition of the Home Savings case remains in issue as shown by the opinion of the Eighth Circuit of May 13, 1997, recently called to our attention. As such, it may be significant that in Delano v. Kitch, 663 F.2d 990, 996 (10th Cir. 1981), a federal appeals court stated: “[Ajfter a federal court decided an issue of Kansas substantive law, the Kansas Supreme Court made a contrary decision on the same issue. Under such circumstances, we said, ‘it is the duty of the Federal court that still has jurisdiction of the case to conform its decision and judgment to the latest decision of the supreme court of the state.’ ” If such is the case here, our judgment on a matter of Kansas law should be allowed to have controlling effect. One authority, 46 Am. Jur. 2d, Judgments § 540, states that certain cases have not applied the rule of collateral estoppel to bar relitigation of unmixed questions of law erroneously reached in a decision. This rule is derived from the Restatement (Second) of Judgments § 28 (1982), which reads: “Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances: “(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws.” Several United States Supreme Court decisions have recognized the existence of this exception to the rule, even if under the facts of the cases being decided it determined that the exception should not apply. In United States v. Stauffer Chemical Co., 464 U.S. 165, 78 L. Ed. 2d 388, 104 S. Ct. 575 (1984), the court said: “Our cases, however, recognize an exception to the applicability of the principles of collateral estoppel for unmixed questions of law’ arising in ‘successive actions involving unrelated subject matter.’ ” 464 U.S. at 171 (quoting Montana v. United States, 440 U.S. 147, 162, 59 L. Ed. 2d 210, 99 S. Ct. 970 [1979]). In choosing not to apply the exception in Stauffer, the Court declared the litigation was substantially related with virtually identical facts. In Montana, 440 U.S. 147, the Court also decided the exception should not apply, but it did make some statements indicating that the decision might have been different under other circumstances, which may apply here. First, it noted that no major changes had occurred in die law governing the issue in between the two suits. Second, the Court pointed out that the plaintiff in the first case freely submitted federal claims to a state court and had them decided there. In the present case, a major change has occurred, albeit concurrentiy, in state law since Home Savings was decided, as we are required to decide the merits of the issues alleged by KPERS as against all those defendants to whom we have decided collateral estoppel does not apply. Second, KPERS did not willingly litigate this undecided issue of state law in federal court. KPERS cites several cases where courts have decided not to apply collateral estoppel despite the fact that the rule would traditionally apply. In Wright v. Chicago Mun. Emp. Cr. Union, 265 Ill. App. 3d 1110, 639 N.E.2d 203 (1994), an Illinois court stated it declined to apply collateral estoppel to unmixed questions of law, although there also was no mutuality under the facts of the case. In Am. Home Assur. Co. v. Intl. Ins. Co., 219 App. Div. 2d 143, 147, 641 N.Y.S.2d 241 (1996), the court said: “This court has interpreted the doctrine of collateral estoppel to mean that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated by the losing party in any future lawsuit, but that collateral estoppel does not apply to an unmixed or pure question of law. [Citations omitted.] That this case presents a purely legal issue constituted, in and of itself, a sufficient basis upon which to preclude application of collateral estoppel. Furthermore, it has been observed that collateral estoppel is a flexible doctrine which can never be rigidly or mechanically applied.” Finally, in Tankersley v. Durish, 855 S.W.2d 241, 245 (Tex. App. 1993), a case where a third parly alleged that neither party to the first action could relitigate a matter, the court noted: “Courts disfavor applying collateral estoppel in the context of a pure question of law.” In deciding that collateral estoppel did not apply and that the state court should consider the merits of the case under Texas law, the court also pointed out that absent application of collateral estoppel, the state court would not have been bound by an Eighth Circuit opinion interpreting Texas law. The defendants cite one case, Fidler v. E.M. Parker Co., 394 Mass. 534, 476 N.E.2d 595 (1985), where the court insisted on applying collateral estoppel despite the question being one of pure law. Obviously, the issue is one where states are likely to come down on both sides. However, this case is also somewhat distinguishable. First, apparently Massachusetts courts look to federal law in deciding whether collateral estoppel applies. Second, that court did not have to reach the merits of the issue for other parties, as we do here; thus, there was no intervening change in state law such that the second requirement of the Restatement rule could be met. Third, the court went into a discussion of the merits anyway and apparently agreed with the federal court’s interpretation of the state law. These are all distinguishing factors. We are not bound by any previous Kansas holding on this issue, and Kansas law, not federal rules, applies to our decision of whether to collaterally estop KPERS from litigating these issues of purely state law. See, e.g., Edens v. Laubach, 838 F. Supp. 510, 514 (D. Kan. 1993) (“The Full Faith and Credit Statute, 28 U.S.C. § 1738, requires that this court apply Kansas law to determine the preclusive effect of prior state court decisions.”). Under all of the facts and circumstances of this case and for all the reasons previously set forth, we decline to apply the doctrine of collateral estoppel in this case. Constitutionality and retroactivity of KS.A. 60-522 Under our holding herein, no period of limitations would have applied to civil actions brought for governmental functions of KPERS until the 1992 Kansas Legislature enacted K.S.A. 60-522. The law became effective July 1, 1992, and reads as follows: “(a) Notwithstanding any other limitations contained in article 5 of chapter 60 of the Kansas Statutes Annotated, any civil action brought by, or on behalf of, the Kansas public employees retirement system shall be brought within 10 years of the time in which such cause of action shall have accrued. “(b) The provisions of this section shall be part of and supplemental to the provisions of article 5 of chapter 60 of the Kansas Statutes Annotated.” This provision appears to have been enacted as a part of the recommendation of the Report to the 1992 Kansas Legislature by the Joint Committee on Kansas Public Employees Retirement System (KPERS) Investment Practices, p. 46, paragraph 8, which states: “Extension of the Statute of Limitations. The Joint Committee recommends legislation that would extend for a period of ten years to the statute of limitations on civil and criminal matters where KPERS is the alleged victim. The extension would apply only if the statute of limitations has not already expired.” What the 1992 Kansas Legislature did was grant to all parties that may be sued by KPERS for claims arising from a governmental function a 10-year period of limitations where none had previously existed. As such, the provision does not violate the Equal Protection or Due Process Clauses of either the United States or Kansas Constitutions. The provision did not violate any existing rights because none in fact existed, and it certainly forms no basis for a discrimination claim. All of the arguments made by the defendants as to the validity of these provisions are premised on our holding KPERS’s actions to be proprietaiy. Because we declined to do so, they are left without any arguments which require our consideration, except for the claimed violation of Article 2, § 16 of the Kansas Constitution, which we will shortly address. We said in State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 162-63, 747 P.2d 1326 (1987): “Statutes of limitation are measures of public policy and are entirely subject to the will of the legislature.” Accord State v. Bentley, 239 Kan. 334, 339, 721 P.2d 227 (1986); State v. Mills, 238 Kan. 189, 191, 707 P.2d 1079 (1985). K.S.A. 60-522 clearly stated the public policy of the State of Kansas, and while its enactment may not have been necessary to see that public policy fulfilled, in light of our holding herein, it was certainly not unconstitutional. The legislative history is clear that the 1993 Kansas Legislature wished to be certain that K.S.A. 60-522 would be construed to act retroactively, so it adopted the present subsection (c), which reads as follows: “The limitations set forth in subsection (a) are to be construed and applied retroactively.” The Minutes of the Senate Committee on Ways and Means on April 2, 1993, state: “KPERS INVESTMENT/OTHER CHANGES “Senator Rock queried whether the statute of limitations could be applied retroactively (item 3, Attachment 1-21). Meredith Williams, Executive Director of KPERS, stated that the retroactive issue is in court and the recommendation was made because the KPERS Board of Trustees requested clarification of legislative intent in 1992 HB 2096.” The supplemental notes on Substitute for H.B. 2211, as it was amended by the House Committee on Appropriations and the Senate Committee on Appropriations, both state: “3. CIVIL ACTIONS STATUTE OF LIMITATIONS. Clarify that the ten-year statute of limitations for civil actions brought by on or behalf of KPERS as provided by 1992 H.B. 2096 is to be applied retroactively.” The legislative intent is clear. The legislature intended K.S.A. 60-522 to be applied retroactively, and we hold it should be so applied. We will not enter into a discussion of the application of Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 831 P.2d 958 (1992), on this issue as the Eighth Circuit did in Home Savings, other than to hold we disapprove of the result reached in Home Savings. Harding is instructive in that it discusses Chase Securities Corp. v. Donaldson, 325 U.S. 304, 89 L. Ed. 1628, 65 S. Ct. 1137, reh. denied 325 U.S. 896 (1945), and notes: “The Court stated ‘[statutes of limitations find their justification in necessity and convenience rather than in logic’ representing expedients rather than principles. 325 U.S. at 314. The Court found they are for the practical purpose of sparing the courts from litigation of stale claims and people from being put to the defense of claims after memories have faded and witnesses have disappeared. The Court further stated statutes of limitations are arbitrary, do not discriminate between just and unjust claims, and are creatures of the legislature and not the judiciary, expressing public policy on the right to litigate. The shelter afforded by the running of the statutes of limitations does not amount to a fundamental right and the defense is subject to a large degree of legislative control.” 250 Kan. at 667. The issues involving the constitutionality and retroactivity of 60-522 have been briefed and argued to us based on an entirely different expected result of the governmental-proprietary issue. However, having resolved that issue as we have, the defendants do not lose any rights by the enactment of K.S.A. 60-522 and gain a possible defense. As such, we are hard pressed to see how they can have any complaints about the enactment of this provision and its amendment. Finally, K.S.A. 60-522(c) does not violate Article 2, § 16 of the Kansas Constitution. This court, heeding the directive that § 16 be “liberally construed to effectuate the acts of the legislature,” has held that “[a] court should not declare a statute violative of Article 2, Section 16, of the Constitution of the State of Kansas unless invalidity is manifest.” State v. Roseberry, 222 Kan. 715, 717, 567 P.2d 883 (1977). Legislation is valid under § 16 so long as the provisions of the bill “are all germane to the subject expressed in the title.” 222 Kan. at 716. Kansas courts will invalidate duly enacted legislation “only where an act embraces two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other.” Harding, 250 Kan. at 671. (quoting State v. Reves, 233 Kan. 972, Syl. ¶ 1, 666 P.2d 1190 [1983]). 1993 H.B. 2211 meets this test. All of its provisions are germane to one subject: KPERS. Defendants’ suggestion that the Kansas Legislature conspired to surreptitiously pass a bill with provisions otherwise unrelated to aspects of KPERS and its statute of limitations is unwarranted. As this court explained in State ex rel. Ste phan v. Thiessen, 228 Kan. 136, 612 P.2d 172 (1980), a case upon which defendants rely: “ ‘[T]he tide of an act may be as broad and comprehensive as die legislature may choose to make it; .... It may be so broad and comprehensive as to include innumerable minor subjects provided all these minor subjects are capable of being so combined and united as to form only one grand and comprehensive subject.’ ” 228 Kan. at 143 (quoting State v. Barrett, 27 Kan. 213 [1882]). Statutes of limitations are frequently among those “innumerable minor subjects” that are properly included in a broad and comprehensive bill. In Harding, 250 Kan. at 671-72, we found it proper for the legislature to have included a statute of limitations relating to latent diseases in a broader act relating to products liability. In Hiett v. Brier, 2 Kan. App. 2d 610, 586 P.2d 55, rev. denied 225 Kan. 844 (1978), the Court of Appeals held that a general bill relating to elections which included a period of limitations requiring that mandamus and injunction proceedings be brought no less than 30 days before the election being challénged satisfied § 16. Only defendants Baum, Thomas, and G.B.K., Inc., allege one further ground for unconstitutionality, which is that the statute violates Article 12, § 1, of the Kansas Constitution, which bars the legislature from passing special acts conferring corporate powers. They cite no good authority that this article makes K.S.A 60-522 unconstitutional. This issue has no merit. Although our analysis of K.S.A. 60-522 may differ from that of the trial court, we agree that the provision is constitutional and may be retroactively applied. Government employees In light of everything we have previously said, resolution of this issue as KPERS requests would only show another reason why the denial of summary judgment was proper. Based on our holdings herein, the provision of K.S.A. 60-521 exempting claims against governmental employees from statutes of limitation would have no effect on the decision we reach. Finally, we decline to comment on any other issues raised because we accepted jurisdiction of this appeal pursuant to K.S.A. 60-2102(b), which reads: “When a district judge, in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the judge shall so state in writing in such order.” In its decision below, the trial court found: “[Tjhese issues concerning the applicability of K.S.A. 60-522 (1993) and K.S.A. 60-521 to the claims in these proceedings involve controlling questions of law as to which there is substantial ground for difference of opinion and that an immediate appeal from such orders and judgments may materially advance the ultimate termination of these and other like cases.” The other issues raised by various defendants involving whether KPERS has stated a claim sounding in tort or in contract were not certified to this court. We have no jurisdiction to decide these issues on appeal. In addition, any other issues reached by the trial court as an additional ground in support of its ruling need not be addressed on appeal. We have considered all of the arguments raised by all parties herein, whether specifically discussed or not, and hold that none affect our decision. The trial court is affirmed.	[ 112, 106, -35, -2, 26, 34, 122, -78, 121, -25, 55, 83, -55, -54, -111, 123, -37, 41, 64, 106, -105, -77, 87, -40, -58, -69, -40, -35, -79, 95, -92, -42, -116, 48, 74, -43, -42, -54, 77, 92, 46, 4, 24, -20, 121, 96, 48, 115, 48, 9, 113, -51, -5, 45, 28, -18, 73, 44, 41, -83, -58, -72, -93, 5, 127, 21, -95, 5, -68, 71, 80, 30, -100, -72, -96, -88, 50, -90, -58, -12, 59, 57, 36, 98, 99, 32, 17, -25, -36, -88, 14, -42, 31, -121, -112, 24, 3, 37, -73, -97, 120, 4, -125, -2, -2, 12, 31, 124, 7, -102, -58, -109, 15, 119, -97, 11, -1, -127, -78, 97, -52, -32, 92, -41, 50, 7, -34, -16 ]
The opinion of the court was delivered by Davis, J.: Cherokee County, Kansas, issued revenue bonds for construction of an adult care facility. All bonds were issued on parity secured by the facility. The tenant of the facility defaulted on rent owed, which constituted the sole source of bond repayment. The defendant Glenn Mumma’s $50,000 bond matured after default. The trustee appointed by the county sought a declaratory judgment, asking among other things that moneys accumulated in the principal and interest account be paid pro rata on past due interest payments to all bondholders before payment on Mumma’s principal indebtedness. The trial court agreed with the trustee and certified Mumma’s appeal under the provision of K.S.A. 60-254(b). We affirm. The facts are not in dispute. Pursuant to K.S.A. 12-1740 et seq., the Board of Cherokee County Commissioners (County) issued revenue bonds to fund construction of a nursing home and assisted living facility, as well as for the purpose of paying the cost of issuance and the interest on the bonds during the construction period. The bonds were issued in the following series, years, and principal amounts: Series A, 1991: $1,575,000; Series B, 1991: $175,000; Series A, 1993: $300,000; and Series B, 1993: $150,000. The Series A and B, 1991 bonds are secured by the project and certain other funds to be deposited and held under a special con tractual agreement collectively comprised of the trust indenture dated December 1, 1991, and the first supplemental trust indenture, dated on the same date, by and between the County and the trustee appointed by the County to manage the property on behalf of the bondholders, the Sunflower Bank, formerly First National Bank and Trust of Salina. The Series A and B, 1993 bonds are secured on a parity basis with the 1991 bonds under a contractual amendment by the original parties to the trust indenture, and the first supplemental trust indenture, which amendment takes the form of a second supplemental trust indenture, dated February 1, 1993. Section 209(a) of the 1991 trust indenture states that “[additional Bonds may be issued under and equally and ratably secured by this Indenture on a parity with the Series A, 1991 Bonds and any other Additional Bonds Outstanding at any time and from time to time.” Section 203 of the 1991 first supplemental trust indenture provides: “Additional Bonds may be issued under and equally and ratably secured under the Indenture on a parity with the Series A, 1991 Bonds and the Series B, 1991 Bonds and any other Additional Bonds Outstanding at any time and from time to time, upon compliance with the conditions and for any of the purposes provided in the Series A, 1991 Bonds.” The 1993 second supplemental trust indenture provides that “[t]he 1993 Bonds are on a parity and co-equal in all respects with the 1991 Bonds.” Section 201 of that same document provides in part that “[t]he 1993 Bonds and the interest thereon shall be limited obligations of the Issuer payable on a parity and co-equally with the 1991 Bonds, solely and only from the Trust Estate created pursuant to the [Trust] Indenture.” (Emphasis added.) The nursing home and assisted living facility was, and is, operated by the Cherokee County Health Care Corporation (CCHCC), a not-for-profit Kansas corporation which qualifies under § 501(c)(3) of the Internal Revenue Code as a tax-exempt organization. In order to secure payment of the bonds, CCHCC entered into a lease agreement which provided for rental payments in amounts and for a period sufficient to retire the bonds through regular monthly payments. The rent was to be deposited into a principal and interest payment account (P&I account) from which bondholders would be paid interest and principal as due. CCHCC also signed a guaranty that a separate account, the bond reserve account, would maintain a minimum balance of $150,000 and that CCHCC would deposit funds should the balance drop. The lease and guaranty, along with the facility buildings and property, were pledged by the County to secure full payment to the bondholders. The bonds were purchased by Chapman Securities, Inc., and resold to bondholders across the country. Mumma is an equitable owner of a Series B, 1991, bond registered of record in the name of DBM Company, c/o Security Bank. Mumma's bond, in the principal amount of $50,000, matured on December 1, 1993. Prior to December 1, 1993, CCHCC defaulted on the payment of rent. The parties stipulated that as a result of the tenant’s default, the trustee was unable to make the scheduled payments due the bondholders as of December 1, 1993, from the P&I account. Additionally, as of December 1, 1993, the bond reserve account contained funds of only $75,908.75, substantially below the $150,000 required minimum balance. No principal payments have been made on any outstanding bonds. Based on the record before this court, three scheduled principal amounts of Series B, 1991 bonds have matured and remain unpaid: $50,000 as of December 1,1993; $60,000 as of December 1, 1994; and $65,000 as of December 1, 1995. None of the semiannual interest payments that were due to the bondholders pursuant to the 1991 bonds and the 1993 bonds have been paid. The total amount of funds on deposit in the P&I account is insufficient to pay the matured principal and the past due interest payments. Remedies on default are provided for in the trust indenture under Article IX, sections 901, 902, 903, and 904 provide as follows: “Section 901. Acceleration of Maturity in Event of Default. “(a) If an Event of Default shall have occurred and be continuing, the Trustee may, and upon the written request of the Owners of not less than 51% in aggregate principal amount of Bonds then Outstanding shall, by notice in writing delivered to the Issuer and the Tenant, declare the principal of all Bonds then Outstanding and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable. “(b) If, at any time after such declaration, but before the Bonds shall have matured by their terms, all overdue installments of principal and interest on the Bonds, together with the reasonable and proper expenses of the Trustee, and all other sums then payable by the Issuer under this Indenture shall either by paid or provision satisfactory to the Trustee shall be made for such payment, then and in every such case the Trustee shall, but only with the approval of the Owners of not less than 51% in aggregate principal amount of the Bonds Outstanding, rescind such declaration and annul such default in its entirety. “(c) In case of any rescission, then and in every such case the Issuer, the Trustee and the Bondowners shall be restored to their former position and rights hereunder respectively, but no such rescission shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. “Section 902. Exercise of Remedies by the Trustee. “(a) If an Event of Default shall have occurred and be continuing, the Trustee shall pursue and exercise any available remedy at law or in equity by suit, action, mandamus or other proceeding or exercise such one or more of the rights and powers conferred by this Article as the Trustee, being advised by counsel, shall deem most expedient in the interests of the Bondowners to enforce the payment of the principal of, premium, if any, and interest on the Bonds then Outstanding, and to enforce and compel the performance of the duties and obligations of the Issuer as herein set forth. “(b) All rights of action under this Indenture or under any of the Bonds may be enforced by the Trustee without the,possession of any of the Bonds or the production thereof in any trial or other proceedings relating thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee without necessity of joining as plaintiffs or defendants any Owners of the Bonds, and any recovery of judgment shall, be for the equal benefit of all the Owners of the Outstanding Bonds. “Section 903. Limitation on Exercise of Remedies by Bondowners. “No Owner of any Bond shall have any right to institute any suit, action or proceeding in equity or at law for the enforcement of this Indenture or for the execution of any trust hereunder or for the appointment of a receiver or any other remedy hereunder, unless (i) a default has occurred of which the Trustee has knowledge, (ii) such default shall have become an Event of Default, (iii) the Owners of 51% in aggregate principal amount of Bonds then Outstanding shall have made written request to the Trustee, shall have offered it reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name, or shall have offered to the Trustee indemnity for all [costs] and expenses in the exercise of such powers and (iv) the Trustee shall thereafter fail or refuse to exercise the powers herein granted or to institute such action, suit or proceeding in its own name; and such knowledge and request are hereby declared in eveiy case, at the option of the Trustee, to be conditions precedent to the execution of the powers and trusts of this Indenture, and to any action or cause of action for the enforcement of this Indenture, or for the appointment of a receiver or for any other remedy hereunder, it being un derstood and intended that no one or more Owners of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice this Indenture by its, his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of the Owners of all Bonds then Outstanding. Nothing in this Indenture contained shall, however, affect or impair the right of any Bondowner to payment of the principal of and interest on any Bond at and after the maturity thereof or the obligation of the Issuer to pay the principal of, premium, if any, and interest on each of the Bonds issued hereunder to the respective Owners thereof at the time, place, from the source and in the manner herein and in the Bonds expressed. “Section 904. Right of Bondowners to Direct Proceedings. “Anything in this Indenture to the contrary notwithstanding, the Owners of 51% in aggregate principal amount of Bonds then Outstanding shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the time, method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture and provided further said Bond-owners shall reasonable indemnify Trustee for all costs and expenses in the exercise of said rights and remedies.” In its petition for declaratory judgment, the trustee states that it is entitled to invoke numerous remedies and is contemplating a variety of options with respect to the facility, the additional property, and the lease, which actions may include, but are not limited to: (a) canceling the lease and foreclosing on the facility and personal properly with sale proceeds being distributed to bondholders (which may result in significant losses to bondholders); (b) pursuing an “exchange refunding” (essentially a “workout” or “adjustment of payments” to better meet the tenant’s performance and thereby distribute any losses pro rata among the bondholders, with the intent of sharing losses and maximizing payments which would minimize the overall loss to bondholders while making the facility itself financially viable); or (c) finding a substitute not-for-profit tenant which could properly manage, market, and operate the facility, and assume the scheduled lease payments. The trustee seeks the court’s guidance and instruction with respect to its pursuit of these alternatives, recognizing that some of them may require bondholders’ approval. The above matters, while of critical importance to all parties, are not issues before this court. The trustee filed a motion for an order approving a pro rata distribution of funds to the bondholders, declaring the tenant’s default, and for setting a deadline for tenant to obtain bondholders’ approval of its refunding proposal. In that motion, the trustee proposed a pro rata distribution of funds in the amount of $100,000 (the amount accumulated less expenses) to be paid to the bondholders from the funds on deposit in the P&I account representing a pro rata payment of part of the interest in arrears due and owing to the bondholders. The tenant, CCHCC, has offered a workout proposal consisting of an exchange refunding. Generally, the intent of the tenant’s proposed exchange refunding is to adjust the tenant’s payments to better meet the tenant’s performance and thereby distribute any losses pro rata among the bondholders, with the intent of sharing losses and maximizing payments and minimizing the overall losses to the bondholders while making the facility financially viable. More particularly, the tenant’s exchange refunding proposal is that the bond payment periods will be extended by 5 years and that the interest rates on the bonds will be reduced by 50% with the bond principal amounts remaining the same. The trustee favors exploration of the tenant’s proposal, but according to the terms of the bond indenture the exchange refunding proposal requires the bondholders’ consent and approval in order to be accepted. The trustee sought an order of the court setting a deadline of November 10,1995, for the tenant to obtain the bondholders’ written consent, approval, and acceptance of the exchange refunding offer as proposed by the tenant. By order of the court the tenant’s time to obtain consent of the bondholders was extended to June 1, 1996. As can readily be seen and as the trial court acknowledges, “[t]his action involves multiple claims, multiple issues and multiple parties.” The trial court approved a pro rata distribution of the $100,000 in the P&I fund to all bondholders. Thus, we deal with this very narrow question of whether the trial court was correct in providing for the distribution of the $100,000 accumulated in the P&I account pro rata to all bondholders for past due interest before distribution of $50,000, the principal amount due and owing to Mumma. At the hearing on the trustee’s motion for pro rata distribution to all bondholders, Mumma lodged the only objection to the proposed distribution. He claimed that he was entitled to his principal payment of $50,000 from his matured bond prior to any pro rata distribution of funds for interest owed to all of the other parity bonds. The district court rejected Mumma’s cláim, holding that any distribution of funds to the bondholders must be paid first to the accrued interest that is due on all bonds prior to the payment of principal that is due on any bond. In pertinent part, the reasoning and decision of the trial court was as follows: “8. All of the Bonds are issued on ‘parity’ (equal priority) and secured under one Trust Indenture, as amended, and all collateral is required to be held in trust for the equal and proportionate benefit, protection and security of all Bondholders without preference, priority or distinction as to lien or otherwise of any of the Bonds over any of the other Bonds. “9. The Bonds were to be retired from funds received from the Tenant through regular monthly payments pursuant to a Lease. However, an Event of Default occurred with respect to each and all Series of Bonds prior to December 1,1993 stemming from the Tenant’s failure to make the required rental payments under the Lease. None of the parity Bonds matured prior to the Event of Default. “10. Immediately upon the occurrence of an Event of Default and during its continuance, the Trustee has a first and prior contractual hen that is prior to the payment of principal, redemption premium, or interest on any Bond, as well as a first and prior hen on all moneys on deposit. “11. Pursuant to the contractual terms of the parity Bonds, accrued interest is due and payable bi-annually. As a result of the Event of Default that occurred prior to December 1, 1993, the subsequent interest payments to all the Bondholders have 'been missed. As of December 10, 1995, ¿here is accrued interest past due and in arrears owed to all the Bondholders in excess of $447,000. “12. In addition to the accrued interest that is past due and owed to all Bondholders, as of December 10,1995, there have also been three (3) missed principal payments in the total amount of $175,000 that are past due. The three (3) scheduled principal amounts that are past due and remain unpaid are $50,000 as of December 1, 1993 (Mumma Bond), $60,000 as of September 1, 1994, and $65,000 as of December 1,1995. (Additional accrued interest and Bond principal continues to become due periodically.) “13. Accrued interest is past due and owed to all the Bondholders pursuant to the contractual terms of the Bonds and acceleration of the Bonds is not a prerequisite requirement for accrued interest to become due and payable. “14. There is no contractual provision providing that the principal of the Mumma Bond is entitled to priority of payment over the payment of accrued interest that is past due and in arrears on all of the parity Bonds following an Event of Default. “15. The contract between the Bondholders and the Issuer did not intend at the time of its making to give the Mumma Bond or any Bond preference or priority over the other parity bonds. “16. Kansas follows the ‘United States Rule’ in situations involving ambiguity over the proper allocation of partial payments on interest bearing debt (i.e. Bonds) as between principal and interest. Barring any express agreement or statute to the contrary, the United States Rule requires payment of all accrued interest that is due prior to the payment of any principal that is due. “17. The Court generally adopts the arguments and authorities submitted by the Trustee in its Motion for Reconsideration. Pursuant to the United States Rule, any distribution of funds to the Bondholders must be paid first to the accrued interest that is due on all Bonds, prior to the payment of principal that is due on any Bond. The Court’s Memorandum Decision of November 30,1995 is reversed and it is specifically found that the Mumma Bond is not entitled to the payment of principal prior to the payment of accrued interest that is due to all the Bondholders. “18. The Court hereby grants the Trustee’s Motion of August 2,1995 requesting an Order Approving and Permitting a Pro-rata Distribution of Funds to the Bondholders Toward the Partial Payment of Accrued Interest that is Due. Since the proposed distribution of funds in the amount of $100,000 will not pay the accrued interest in full that is due to the Bondholders, it is proper for such a distribution to be made to the Bondholders on a pro-rata basis in the amounts outlined and identified on Exhibit ‘A’ that is attached to the Trustee’s Motion of August 2, 1995. . . . “19. Any distribution of funds to the Bondholders must be paid first to the accrued interest that is due on all Bonds prior to the payment of principal that is due on any Bond.” The trial court directed entry of judgment pursuant to K.S.A. 60-254(b). The question presented is a question of law. Our scope of review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). The bonds we deal with are revenue bonds. A revenue bond is one that is payable exclusively from revenues derived from tolls, charges, or rents paid by those who use the facilities constructed with the proceeds from the bonds. Revenue bonds are authorized and issued under state statutes. Revenue bonds are distinguished by the single source of payment, as opposed to general obligation bonds, which pledge the full faith and credit of the issuer for repayment. Sands & Libonati, Local Government Law § 25.05 (1991). Revenue bonds also constitute a contract between the obligor and obligee. City of Chanute v. Polson, 17 Kan. App. 2d 159, 161, 863 P.2d 6 (1992); 64 Am. Jur. 2d, Public Securities and Obligations § 27. In this case, the contractual rights and duties of all parties are set forth in the bond indentures, trust agreement, and lease agreement. “The payment of bonds is governed by the law in effect at the date of their issuance. Such law forms a part of the bond contract, and the contract may not validly be impaired by subsequent legislation.” 15 McQuiilin, Municipal Corporations § 43.122 (3d ed. rev. 1995); see Sebem v. Cobb, 41 Idaho 386, 389, 238 Pac. 1023 (1925); Lucas v. First Nat. Bank of Pawnee, 171 Okla. 606, 607, 43 P.2d 752 (1935). To the extent that the provisions of the bond contract do not conflict with state law, they are subject to enforcement in accordance with the written terms of the agreement. “On appeal, a written instrument or contract may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court.” Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 2, 885 P.2d 1246 (1994). The resolution of the very narrow issue under the particular undisputed facts of this case requires that we examine state law and the bond contract (indenture) to ascertain whether either or both provide an answer. If we find that neither speaks to the question, then we must look to Kansas common law to resolve the question. STATE LAW Kansas statutes do not speak to payment of revenue bonds. In K.S.A. 12-1747, the legislature defined “revenue bond” as follows: “Revenue bonds, as the term is used in this act, are defined to be bonds issued by any such city or county to be paid exclusively from the revenue produced by the facilities purchased, acquired, constructed,- reconstructed, improved, equipped, furnished, repaired, enlarged or remodeled by the proceeds of such revenue bonds. The revenue bonds shall not be general obligations of the city or county, and shall not contain the recitals set forth in K.S.A. 10-112, or any amend ments thereto. The revenue bonds shall, however, contain the following recitals, viz.: Such bonds shall recite the authority under which such revenue bonds are issued, and that they are issued in conformity with the provisions, restrictions and limitations thereof, and that such bonds and the interest thereon are to be paid from the money and revenue received from the fees charged and rental received for the use of the property and facilities purchased, acquired, constructed, reconstructed, improved, equipped, furnished, repaired, enlarged or remodeled by the proceeds, in whole or in part, of such revenue bonds when issued and sold.” Further discussion is found in K.S.A. 12-1743: “Nothing in this act shall be so construed as to authorize or permit any city or county to make any contract or to incur any obligation of any kind or nature except such as shall be evidenced by the issuance of revenue bonds payable solely out of the rentals received from such facilities. “Revenue bonds issued under the provisions of this act are declared to be negotiable instruments, shall be executed by the mayor and clerk of the city or the chairperson of the board of county commissioners and the clerk of the county and the corporate seal of the city or county shall be affixed to or imprinted thereon. The principal of and interest on the revenue bonds shall be payable solely and only from the special fund herein authorized for such payments, and the revenue bonds shall not in any respect be a general obligation of such city or county, nor shall they be payable in any manner by taxation. All details pertaining to the issuance of the revenue bonds and the terms and conditions thereof shall be determined by ordinance of the city or resolution of the county.” These provisions, while instructive on the nature of revenue bonds, :.to not address bond payment or priority. Further, a copy of the county resolution whereby the bonds were issued is not included in tiie record on appeal. CONTRACT INTERPRETATION Mumma argues that the trust indenture and supplemental documents mandate the payment of his principal before the payment of interest owed all bondholders. He asserts that upon default, the trustee must act according to Article IX of the trust indenture dealing with remedies on default. Section 901 states in relevant part: “(a) If an Event of Default shall have occurred and be continuing, the Trustee may, and upon the written request of the Owners of not less than 51% in aggregate principal amount of Bonds then Outstanding shall, by notice in writing delivered to the Issuer and the Tenant, declare the principal of all Bonds then Outstanding and the interest accrued thereon immediately due and payable, and such principal and interest shall thereupon become and be immediately due and payable.” Mumma notes that upon CCHCC’s default, the trastee did not exercise its option to accelerate the debt under this provision and distribute the funds pro rata. Therefore, he asserts that section 603 directs a precise method of distribution of funds. This section states in part: “(a) . . . [MJoneys in the Principal and Interest Payment Account shall be expended solely for the payment of the principal of, premium, if any, and interest on the Bonds as the same mature and become due or upon the redemption thereof prior to maturity. “(b) The Issuer hereby authorizes and directs the Trustee to withdraw sufficient funds from the Principal and Interest Payment Account to pay the principal of, premium, if any, and interest on the Bonds as the same become due and payable and to make said funds so withdrawn available to the Paying Agents for the purpose of paying said principal, premium, if any, and interest.” (Emphasis added.) Mumma contends that these provisions delineate the order of payment. Thus, the principal of his matured bond must be paid prior to any premiums and accrued interest. Mumma also relies upon section 606 of the trust indenture: “In the event funds credited to and deposited in the Principal and Interest Payment Account are insufficient to provide for payment when due of the principal of and interest on the Bonds, the Trustee shall and is hereby directed to withdraw from the Bond Reserve Account and transfer to the Principal and Interest Payment Account such sum as shall be necessary to provide for payment of such principal and interest, which shall be applied by Trustee in accordance with the provisions of Section 603 hereof.” (Emphasis added.) The trustee challenges Mumma’s interpretation of the sections cited by Mumma as directing the order of distribution. It asserts that the language of those sections only explains the general use of the funds in the P&I account rather than requiring that the principal of a mature bond to be paid prior to premiums or interest. This argument pinpoints the precise issue before us, i.e., whether the language “moneys in the Principal and Interest Payment Account shall be expended solely for the payment of the principal of, premium, if any, and interest on the Bonds as the same mature and become due or upon the redemption thereof prior to maturity” directs the trustee to pay upon CCHCC’s default the principal first, followed by any premiums, and finally any interest due. We deter mine that this language does not support the interpretation advanced by Mumma. In construing the language of the trust indenture, we note the following rules of interpretation: “The cardinal rule of contract construction requires courts to determine the parties’ intent from the four comers of the instrument by construing all provisions together and in harmony with each other rather than by critical analysis of a single or isolated provision.” Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 671, 876 P.2d 1362 (1994). “ ‘As a general rule, if the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction.’ ” Gore v. Beren, 254 Kan. 418, 427, 867 P.2d 330 (1994) (quoting Simon v. National Farmers Organization, Inc., 250 Kan. 676, 680, 829 P.2d 884 [1992]). The language cited by Mumma gives no indication that the parties intended to mandate a specific order of payment as between principal, premiums, and interest. Rather, the language is simply a list which is silent on the issue of priority of payment. We find no support for Mumma’s interpretation. The bond contract (indenture) does not by its terms provide for an order or priority of payment from the fund upon default. The trial court was correct in its conclusion that the trust indenture does not mandate payment of Mumma’s principal prior to the interest accrued by all bondholders. In very broad terms the bond indentures clearly indicate an intent to treat all bondholders alike. As the trial court concludes, all bonds are-issues in parity and coequal with all other bondholders. Moreover, the intent expressed generally throughout the indentures is that all bondholders are to be treated alike. For example, in addressing limitations on the exercise of remedies by bondholders section 903 provides agreement by the owners of 52% in aggregate principal amount of bonds, “it being understood and intended that no one or more Owners of the Bonds shall have any right in any manner whatsoever to affect, disturb or prejudice this Indenture by its, his or their action or to enforce any right hereunder except in the manner herein provided, and that all proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of the Owners of all Bonds then Outstanding.” The distribution of the $100,000 accumulated in the P&I account to all bondholders for past interest due and owing rather than the distribution of $50,000 to Mumma for his principal amount due and owning on his bond more closely reflects the general intent of the indentures. We, however, must emphasize that we are not called upon to determine distribution under circumstances where the trustee has accelerated payment, whereby all obligations under the bond issues would become due and owing. Nor are we called upon to determine priority among bondholders with regard to principal amounts due. As the trial court noted: “20. The issue of whether the payment of principal on any Bond has priority over the payment of principal on any other Bond is not before the Court at this time. This issue shall be reserved for later determination in the event that all accrued interest due on the Bonds is paid in full or in the event the maturity of the Bonds are accelerated.” In affirming the trial court, not only do we rely on the general intent expressed in the indenture, but by way of analogy from the private sector, we note that the trial court relied on what has been referred to as the “United States Rule.” COMMON LAW The trial court based its decision upon a rule adopted by this court in regard to partial payments on a private interest-bearing debt. This rule, referred to as the “United States Rule,” provides that “in applying partial payments to an interest-bearing debt which is due, in the absence of an agreement or statute to the contrary, the payment should first be applied to the interest due.” Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, Syl. ¶ 24, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978). We first applied the United States Rule in Christie v. Scott, 77 Kan. 257, 94 Pac. 214 (1908), and then cited the rule favorably in Jones v. Nossaman, 114 Kan. 886, 221 Pac. 271 (1923). See Wortman v. Sun Oil Co., 236 Kan. 266, 690 P.2d 385 (1984), vacated and remanded on other grounds 474 U.S. 806, 106 S. Ct. 40, 88 L. Ed. 2d 33 (1985), and Gray v. Amoco Production Company, 1 Kan. App. 2d 338, 564 P.2d 579 (1977), aff’d in part, rev'd in part, 223 Kan. 441, 573 P.2d 1080 (1978). Neither state law nor the bond contract addresses the question of priorities upon default except to say that all bonds are of equal dignity and are on a parity and coequal in all respects. The trial court determined that the narrow issue presented for resolution involved the question of priority between a matured bondholder claiming full payment of his principal and all bondholders’ claim to a pro rata payment of the interest due upon defaulted bonds. We acknowledge that the case we deal with is one involving public debt. Unlike a private debt, public revenue bonds are payable exclusively from revenues derived from rents paid by those who use the facilities constructed with the proceeds from the bonds. Moreover, the rights and obligations of the parties involved in the issuance of revenue bonds are governed by statute and written contract (indenture). Generally, die United States Rule would have limited application in a case of a public bond issue. However, where Kansas statutes are silent and the bond indentures and Kansas case law provide no guidance, die United States Rule by analogy is helpful in resolving the question. An early Kansas case cited by none of the parties would seem at first blush to provide authority for Mumma’s position. Ward v. Piper, 69 Kan. 773, 77 Pac. 699 (1904), involved an action in mandamus to compel Isabel Township in Scott County to pay four judgments obtained for past due interest on bonds issued by the township in default. At the time of the suit there was in the township treasury the sum of $357.79, levied and collected for the purpose of paying interest on bonds. In addition, the township also had the sum of $1,003 levied and collected to meet the general current expenses of die township. The plaintiff sought payment of his four judgments for past due interest in the amount of $1,166.29 upon the defaulted bonds. In the absence of a showing to the contrary, the court assumed that the discretion vested in the township in accumulating funds for operating expenses of the township had been honesdy exercised, that taxes levied for one purpose cannot be diverted and applied to another, and that the township must be maintained and its current expenses met even though creditors of the township must wait for payment of their bonds and judgments. 69 Kan. at 775/ The township defendant argued that there were other creditors holding like claims for past due interest on the defaulted bonds and that the plaintiff should not be given a preference over them. In rejecting this argument, the court said: “The contention that there are other creditors holding like claims, and that plaintiff should not be given a preference over them, is not good. They are not here demanding payment, or asking that the fund which plaintiff is seeking to obtain be distributed equally with them. The defendants are not competent to speak for them, and it will be time enough to consider the rights of other creditors when they intervene or invoke the action of the court. Upon an application for mandamus to compel the payment of a debt out of a particular fund, and where the municipality made a similar objection, the supreme court of California remarked: ‘Nor is the fact, if it easts, that there are other creditors interested in the fund provided for their payment, who have not demanded payment, any answer to the application of the petitioner. Non-action by others having equal rights with him, in a matter on which his right is founded, cannot prejudice him in the assertion of his right nor excuse non-performance of a duty in connection with it specially enjoined by law.’ ” Ward, 69 Kan. 776-77 (citing Meyer v. Porter, 65 Cal. 67, 70-71, 2 Pac. 884 [1884]). Ward established a “first in time — first in right” rule which remains the law in this state. As noted by McQuillin, according to the prevailing view: “If . . . there is a means through which all the bondholders may be paid in full, as where the bond fund may be replenished by the exercise of an unexhausted power of taxation, a bondholder who exercises a higher degree of diligence than others is entitled to have payment in full for the bonds, even though the fund, at the time, is insufficient to pay all of the bonds which have matured. In such a ease, the rule of first come, first served, is applied.” 15 McQuillin, Municipal Corporations § 43.125. Ward, however, provides no support for Mumma because Ward involved general obligation bonds of a township. Unlike the revenue bonds we deal with in this decision, all bondholders in Ward were secure because the bond fund could be replenished by the exercise of an unexhausted power of taxation. “The township or ganization must be maintained and its current expenses met, although creditors of the township must wait for payment of their bonds and judgments.” (Emphasis added.) 69 Kan. at 775. Moreover, there was no mention of insolvency or the inability of the township to meet all of its obligations under the defaulted bond issue. In such a case, the first in time — first in right rule makes good sense. Equity rewards the vigilant. Upon the particular undisputed facts involved, we affirm the trial court on the very narrow issue presented in accordance with the provisions of K.S.A. 60-254(b) that interest due and owing to all bondholders be distributed from moneys in the principal and interest fund before payment of principal indebtedness due on Mumma’s bond. Affirmed. Six, J., concurs in the result.	[ -48, 106, -107, 94, 10, 96, 58, -104, 123, -11, -80, 83, -87, -50, 21, 107, -74, 127, -60, 104, 65, -77, 99, 105, -48, -78, -49, -43, -71, 95, -12, -42, 72, 48, 10, 85, -26, 10, -43, 94, -50, -117, -118, -63, -47, -64, 52, 127, 112, 8, 49, -115, -13, 41, 52, 107, 108, 44, 89, 59, 64, -15, -118, -121, 93, 21, 17, 5, -100, -57, -8, 46, -112, 49, 0, -24, 122, 38, -122, -76, 15, -103, 9, 102, 98, 33, 52, -19, -80, -56, 15, -41, -99, -25, -105, 88, 98, 13, -108, -99, 80, 84, -121, -10, -25, -123, 91, 108, 3, -50, -14, -111, 13, 124, 26, 27, -1, 32, 48, 97, -49, -94, 76, -25, 58, 27, -85, -72 ]
The opinion of the court was delivered by Lockett, J.: Defendant Myma Eisele appeals the trial court’s imposition of a departure sentence at her conversion hearing after her plea of no contest to aggravated assault of a law enforcement officer, K.S.A. 21-3411 (Ensley 1988). The district court granted an upward durational departure because the fact that she threatened to kill, had the means to do so, and fired a gun at the law enforcement officer manifested “excessive brutality to the victim” in a manner not normally present in aggravated assault. The Court of Appeals affirmed. We granted the defendant’s petition for review to determine if the discharge of a firearm during the commission of an aggravated assault of a law enforcement officer always manifests excessive brutality to the victim. On October 26, 1992, Richard Henson, a Salina police officer, observed Eisele speeding and driving her vehicle in an erratic manner. Henson followed Eisele’s car into a parking lot. After Eisele exited her car and started walking toward the store, Henson ordered Eisele to stop and asked to see her driver’s license. Eisele turned toward Henson and approached him with her hand in her purse. She shouted at Henson that she had a gun and was going to kill him. Eisele pulled a gun from her purse and repeated her threats. She then turned and headed toward the store. Henson drew his weapon, took cover behind a car, and ordered Eisele to stop. Eisele turned back, yelled that she was going to kill Henson, and fired one shot in his direction. Eisele, who had a history of mental imbalance, was arrested and charged with attempted first-degree murder of Henson. She was found incompetent to stand trial on. December 2, 1992, and was committed to Lamed State Security Hospital. Subsequently, the State filed an amended information charging Eisele with aggravated assault on a law enforcement officer. The amended information alleged that Eisele unlawfully attempted to do bodily harm to a uniformed city law enforcement officer by assaulting him with a deadly weapon while he was engaged in the performance of his duty, resulting in immediate apprehension of bodily harm to the officer and with the apparent ability to cause such harm. Eisele was found competent to stand trial on February 12,1993, and discharged on March 4, 1993. After her return from Lamed State Security Hospital, plea negotiations with the State resulted in Eisele pleading no contest to aggravated assault on a law enforcement officer. At Eisele’s séntencing hearing, the district court imposed a sentence of 5 to 15 years. Eisele filed a “motion for hearing regarding conversion of sentence under Kansas sentencing guidelines act.” She alleged she had been denied the retroactive application of the sentencing guidelines to her indeterminate sentence. Subsequently,, the State filed a motion for departure. After a hearing, the district court found that Eisele was entitled to a conversion of her sentence to a guidelines sentence. The court also granted the State’s motion for upward durational departure and imposed a sentence of 42 months, which was later modified to 36 months due to the court’s error in identification of the mid-line presumptive sentence. In sentencing the defendant, the court’s sole reason for.imposing a departure was excessive brutality to the victim in a manner not normally present in the offense. The court stated: “The probable cause affidavit filed in this litigation and the presentence investigation report both narrate the underlying factual circumstances of the defendant’s crime. [Eisele] not only committed an aggravated assault. She threatened to kill the police officer, had the means to do so, and in fact fired at him. The court finds there was excessive brutality to the victim in the commission of this criminal offense and as a result there is a substantial and compelling reason to grant the upward departure requested by the State.” Eisele appealed, arguing that the facts of her crime, particularly the discharge of the weapon, were no different than the usual criminal conduct inherent in the crime of aggravated assault of a law enforcement officer. The Court of Appeals affirmed in an unpublished opinion filed October 18, 1996, determining that the facts supported a finding of excessive brutality because they went beyond an intentional “attempt to do bodily harm” as defined in K.S.A. 21-3408. The appellate court concluded by stating: “Discharge of a weapon is not conduct inherent in the commission of an aggravated assault, it is not a statutory element of the crime of aggravated assault on a law enforcement officer, and it does not serve to subclassify the crime of the crime severity scale.” Standard of Review The sole question on review is whether the discharge of a gun during the commission of the crime of aggravated assault of a law enforcement officer always supports a finding of “excessive brutality” and requires an upward durational departure. Pursuant to K.S.A. 21-4721(d), in an appeal from a departure sentence, an appellate court must determine whether the sentencing court’s findings of fact and reasons justifying departure (1) are supported by substantial competent evidence and (2) constitute substantial and compelling reasons for departure as a matter of law. The applicable standard of review is keyed to the language of K.S.A. 21-4721(d)(l) which requires an evidentiary test — are the facts stated by the sentencing court in justification of departure supported by the record? K.S.A. 21-4721(d)(2) requires a law test — are the reasons stated on the record for departure adequate to justify a sentence outside the presumptive sentence? State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901 P.2d 1 (1995). K.S.A. 21-4719(c) provides: “When a sentencing judge imposes a prison term as a dispositional departure: . . . (2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within the sentencing grid. Any sentence inconsistent with the provisions of this section shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure.” K.S.A. 21-4716 governs imposition of departure sentences. In part, that statute provides: “(a) The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines . . . unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” K.S.A. 21-4721(d) and (f) provide for appellate review of departure sentences: “(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure: (1) Are supported by the evidence in the record; and (2) constitute substantial and compelling reasons for departure. “(f) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing.” A claim that the departure factors are not supported by evidence in the record is reviewed to determine whether there is substantial evidence supporting the court’s findings or whether the court’s findings are clearly erroneous. A claim that the departure factors relied upon by the court are not substantial and compelling presents a question of law. State v. Gideon, 257 Kan. 591, Syl. ¶ 20, 894 P.2d 850 (1995). The term “substantial” means something that is real, not imagined, something with substance and not ephemeral. The term “compelling” implies that a court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinaiy. State v. Rhoads, 20 Kan. App. 2d 790, 799, 892 P.2d 918 (1995). “Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” State v. Grady, 258 Kan. 72, 79, 900 P.2d 227 (1995). The court’s comments at the time of sentencing govern as to the reasons for departure. State v. Gideon, 257 Kan. 591, Syl. ¶ 21. Substantial and Compelling Reasons K.S.A. 21-4716(b)(2) provides in part: “Subject to the provision of subsection (b)(3), the following nonexclusive list of aggravating factors may be considered in determining whether substantial and compelling reasons for departure exist: (B) The defendant’s conduct during the commission of the current offense manifested excessive brutality to the victim in a manner not normally present in that offense.” K.S.A. 21-4716(b)(3) provides: “If a factual aspect of a crime is a statutoiy element of the crime or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor only if the criminal conduct constituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.” In K.S.A. 21-4716(b)(2)(B), the legislature specifically listed excessive brutality as an aggravating factor which may be considered in determining whether substantial and compelling reasons exist for departure. Thus, excessive brutality may constitute a substantial and compelling reason for departure. See State v. Valentine, 260 Kan. 431, 444, 921 P.2d 770 (1996) (citing State v. Duke, 256 Kan. 703, 721, 887 P.2d 110 [1994]). The State argued on appeal that the district court found that the factual basis summarized on Eisele’s probable cause affidavit and presentence investigation report indicated excessive brutality to the victim. We note that the State’s probable cause affidavit and report indicated that Officer Henson had never fired his weapon in his previous 5 years as a city police officer and that Henson was affected by the incident to the extent that he suffered nightmares and other physical and emotional reactions and had to seek counseling. It is well established that an appellate court’s review of the sentencing court’s reasons for departing is limited to the court’s findings enunciated at sentencing. State v. Richardson, 20 Kan. App. 2d at 942. The Court of Appeals did not address this issue because the district court did not rely upon the affidavit and report in imposing the upward departure sentence. The district court found that the upward departure was justified solely because Eisele’s conduct of threatening the officer, pointing the pistol, and firing a shot during the commission of the aggra vated battery of the police officer manifested excessive brutality in a manner not normally present in that offense. In affirming the district court’s imposition of an upward departure sentence, the Court of Appeals also relied upon die fact that Eisele had a deadly weapon, threatened to kill the officer, and fired a shot from the pistol in his direction. Aggravated assault of a law enforcement officer is intentionally placing the officer in reasonable apprehension of immediate bodily harm with a deadly weapon committed against a uniformed or properly identified state, county, or city law enforcement officer while such officer is engaged in the performance of such officer’s duty. K.S.A. 21-3408 (Ensley 1988); K.S.A. 21-3410 (Ensley 1988); K.S.A. 21-3411 (Ensley 1988). In State v. Cox, 258 Kan. 557, 579, 908 P.2d 603 (1995), we interpreted 21-4716(b)(2)(B) to require conduct of a defendant “ ‘in a manner not normally present in that offense,’ i.e., conduct going beyond what is minimally needed to satisfy the elements of the offense.” Eisele’s verbalization of her intent to kill a law enforcement officer, pointing a deadly weapon at the officer, and her apparent ability to do so are elements of the offense of aggravated assault of a law enforcement officer and are not substantial and compelling reasons distinguishing her offense from any other aggravated assault. Is the act of firing the gun a substantial and compelling factor? Under the facts, was Eisele’s firing the gun “excessively brutal” in a manner not normally present in the offense? We have reviewed the sufficiency of the evidence supporting the aggravating factor “excessive brutality” in several prior aggravated battery cases. In State v. Valentine, 260 Kan. 431, the court found that the facts justified the trial court’s imposition of an upward departure sentence for defendant’s conviction for aggravated battery. In Valentine, the defendant surprised the victim when he put a gun to the victim’s head without provocation. He forced the victim over to his car as if to attempt an assassination. In addition, the record indicated that the victim feared he was going to be killed because he knew the defendant, who was not wearing a mask; thus, the victim tried to escape. In so doing, the victim was shot by the defendant and knocked to the ground. While the victim was injured on the ground and still trying to escape, the defendant fired several more shots at the victim. The victim realized he was paralyzed and thought he was going to die. The victim was unarmed, and nothing in the record provided any explanation for shooting the victim. 260 Kan. at 442. In State v. Gideon, 257 Kan. 591, the defendant argued that the court erred in imposing an upward departure on his aggravated kidnapping, rape, and aggravated criminal sodomy convictions. In part, the defendant argued that the factors of pain and humiliation or excessive brutality to the victim were riot supported by the evidence because they were inherent in the offenses. This court disagreed and, in affirming the trial court, noted that the excessive brutality inflicted by the defendant went beyond that normally present in this offense. The court relied upon the fact that the victim knew she would not survive the incident. The defendant had stated to the victim that he might be capable of hurting her, he prevented her from getting out of his truck, and he took her to an area where he raped and sodomized her. Subsequently, the defendant became enraged while the victim waited for what “one can reasonably conclude she knew was certain death.” 257 Kan. at 629. The court stated: “Whether we call it pain and humiliation or excessive brutality or recognize it as a separate unspecified aggravating factor, it is sufficient to be used as a substantial and compelling reason for an upward departure of the sentencing guidelines.” 257 Kan. at 629. In State v. Hunter, 22 Kan. App. 2d 103, 911 P.2d 1121 (1996), the Court of Appeals affirmed the trial court’s imposition of an upward durational departure on defendant’s sentence for aiding a felon, K.S.A. 21-3812. The basis for the departure was, in part, that Hunter’s conduct had been excessively brutal in a manner not normally present in that offense. The court determined that the defendant’s excessive brutality in his actions against the victim, who had suffered a gunshot wound to the head, provided a substantial and compelling reason for durational sentencing departure. The court noted that the victim was still alive at the time defendant dragged her down the stairs and through an alley, and as he left her in the alley in freezing temperatures, “he threatened to take from her family any comfort they were to receive from donating her organs.” 22 Kan. App. 2d at 107-108. In State v. Keniston, 21 Kan. App. 2d 818, 908 P.2d 656 (1995), defendant appealed his departure sentence imposed following a nolo contendere plea to one count of rape. Defendant argued that the victim suffered no more emotional harm than is normally associated with a “typical” rape. In deciding that there were substantial and compelling reasons to impose a departure sentence for the rape conviction, the court noted that the victim was 80 years old.and that the defendant should have known her age. The record established that during the attack, defendant knocked the victim to the floor, dragged her to her bed, and tied her up. Defendant repeatedly threatened to cut off the victim’s head. Further, because of the brutality of the crime, the victim suffered either a fractured pelvis or femur and had a tooth knocked out. After the attack she was unable to care for herself, had to use a walker or wheelchair, and suffered emotional trauma resulting in flashbacks and nightmares. 21 Kan. App. 2d at 820-21. The Court of Appeals noted several cases in which a conviction for aggravated assault has been upheld where no gun was fired: one in which loading a shotgun was a sufficient overt act to establish attempt to do bodily harm, In re T.K, 11 Kan. App. 2d 632, 638, 731 P.2d 887 (1987), and one in which an attempt was established when the defendant unsnapped an officer’s holster and pulled the weapon partially out of the holster, State v. Clanton, 219 Kan. 531, 533, 548 P.2d 768 (1976). These cases were decided prior to the enactment of the Kansas Sentencing Guidelines Act; even so, they do not stand for the proposition that firing a gun in and of itself constitutes excessive brutality. Eisele relies upon prior cases which support her argument that a conviction for aggravated assault on a law enforcement officer often involves the firing of a weapon. See State v. Tyler, 251 Kan. 616, 840 P.2d 413 (1992) (shots fired at officers during a drug raid); State v. Lawton, 241 Kan. 140, 734 P.2d 1138 (1987) (defendant fired a shotgun on police who were responding to a domestic disturbance call); State v. Wood, 235 Kan. 915, 686 P.2d 128 (1984) (shots fired at police through an apartment window); State v. Boan, 235 Kan. 800, 686 P.2d 160 (1984) (shot fired at police officer); State v. Martin, 234 Kan. 115, 670 P.2d 1331 (1983) (defendant fired shots at police from upstairs window of house); State v. Howell & Taylor, 226 Kan. 511, 601 P.2d 1141 (1979) (defendant fired shots at a state highway patrol trooper during a chase); State v. Hatch & Smith, 223 Kan. 783, 576 P.2d 687 (1978) (shots fired at officer during high speed chase); State v. McKinney, 221 Kan. 691, 561 P.2d 432 (1977) (shots fired at detectives investigating a robbery); State v. Bradley, 215 Kan. 642, 527 P.2d 988 (1974) (one shot fired at officer); State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974) (shots fired at an off-duty police officer); State v. Hollaway, 214 Kan. 636, 522 P.2d 364 (1974) (shots fired at three police officers); State v. Duncan, 3 Kan. App. 2d 271, 593 P.2d 427 (1979) (shots fired at officer responding to a silent alarm). In State v. Cox, 258 Kan. at 575, we reviewed a departure sentence and how to determine if there is substantial evidence to support a trial court’s finding or if the findings are clearly erroneous. We quoted from the legislative history of the Kansas Sentencing Guidelines: “ ‘[T]he Committee recognized that the guidelines are designed to regulate judicial discretion, not to eliminate it. The guidelines contemplate that a typical offense and offender will be sentenced within the guidelines. For an individual somewhat more or less culpable than a typical offender, the court may choose a sentence at the top or bottom of the applicable guideline. However, when the individual is substantially more or less culpable than the typical offender, the court may consider a departure.’ Minutes of the Senate Committee on Judiciary, p. 2, January 24, 1992.” 258 Kan. at 575. Eisele essentially argues the act of firing the gun did not render her more culpable than the typical offender. She states: “The Court of Appeals appears to be creating a sliding scale where any act above the constitutional minimum quantum of evidence for a conviction will support a departure for excessive brutality. The act of firing a weapon should not be automatically transformed into an excessively brutal act or even an act not normally present in the offense simply because other defendants have been convicted of aggravated assault on less overt threats.” Here, the district court noted that Eisele threatened to kill Henson, had the means to carry out the threat, and actually fired the gun. Eisele contends that the firing of her weapon and her statement, “I’m going to kill you,” were insufficient to constitute the quantum of excessive brutality necessary to support an upward departure of her presumptive sentence. She claims that threatening to kill the officer is not substantial and compelling because pursuant to K.S.A. 21-3408 (Ensley 1988), every assault involves at least the element that a person place another person in “immediate apprehension of bodily harm.” In addition, Eisele argues, the use of a firearm is one of the three statutory bases to elevate a simple assault to an aggravated assault, and the use of a deadly weapon in the commission of an assault necessarily implies a threat to kill. Since one of the purposes of the sentencing guidelines is to ensure uniformity in sentencing, departures should only be allowed in extraordinary cases. State v. Zuck, 21 Kan. App. 2d 597, Syl. ¶ 3, 904 P.2d 1005, rev. denied 258 Kan. 863 (1995). Here, the threat to kill the officer, possessing the means to do so, and pointing the deadly weapon at the officer are the elements of the offense of aggravated assault of a law enforcement officer. The fact that a gun is fired during an aggravated assault is not per se “excessive brutality.” We agree that factual situations could arise in which the discharge of a weapon toward a law enforcement officer might amount to conduct the legislature intended when it used the term “excessive brutality” in K.S.A. 21-4716(b)(2)(B). However, here, the facts do not support a substantial and compelling reason to depart; therefore, we reverse the Court of Appeals and remand the case to the district court for resentencing. Judgment of the Court of Appeals is reversed; judgment of the district court is reversed and the case is remanded for resentencing.	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The opinion of the court was delivered by Allegrucci, J.: This is an appeal from the decision of the district court denying one-half of the estate of Morris and Deanne Van Der Veen to their biological grandchild, D.B.B. Decedents’ son, Kent Van Der Veen, was disqualified under K.S.A. 1996 Supp. 59-513 (slayer statute) from inheriting any portion of their estate. The case was transferred from the Court of Appeals to this court pursuant to K.S.A. 20-3018(c). The facts are not in dispute. The matter was decided by the district court on the following stipulated facts: The decedents, Morris and Deanne Van Der Veen, were the parents of Kent. On or about April 30, 1993, Kent murdered his parents. Kent was 19 years old at the time. Two years earlier, Kent fathered a child, who had been legally adopted by unknown persons prior to April 30, 1993. The decedents never were aware of the existence of the minor child. Laura Ann Van Der Veen is the decedents’ daughter. Decedents had no other heirs, devisees, or legatees. At the time Kent killed his parents, he had no testamentary instrument of his own. The 1989 joint will of Morris and Deanne Van Der Veen provides for the following distribution of assets that remain after their debts and obligations are satisfied: “Upon the death of the survivor of us, each of us hereby gives, devises, and bequeaths all of the rest, residue, and remainder of our property of every kind, character, and description, and wherever located, unto our children, Laura Ann Van Der Veen and Kent Phillip Van Der Veen, equally and per stirpes.” This court has de novo review of this case for several reasons. It was decided on the basis of stipulated facts. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987). It involves interpretation of a statute, a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). And it involves the construction of a written instrument, the Van Der Veens’ will, and determination of its legal effect. See Galindo v. City of Coffey ville, 256 Kan. 455, Syl. ¶ 2, 885 P.2d 1246 (1994). In their will, the Van Der Veens bequeathed one-half of their estate to each of their children, Laura and Kent. It is agreed that Kent is statutorily disqualified from inheriting property from his parents. At all pertinent times, it has been provided by statute: “No person convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will[,] by intestate succession, as a surviving joint tenant, as a beneficiary under a trust or otherwise from such other person any portion of the estate or property in which the decedent had an interest.” K.S.A. 1996 Supp. 59-513. This appeal challenges the district court’s determination that the statute prevails over the express terms of the Van Der Veens’ will, resulting in D.B.B.’s being disinherited. The argument made on behalf of D.B.B. by her guardian ad litem is that the language of her grandparents’ bequest to their children, “equally and per stirpes,” must be construed to give what would have been Kent’s share, if he had not been disqualified, to his heir, D.B.B. D.B.B.’s guardian ad litem further argues that D.B.B.’s adoptive status is irrelevant because K.S.A. 59-2118(b) provides that “[a]n adoption shall not terminate the right of the child to inherit . . . through the birth parent.” Appellee Laura Van Der Veen counters that the language of 59-2118(b), on which D.B.B. relies, was added in 1993 and became effective after the Van Der Veens’ deaths. If the effective date of the amendment does not prevent it from applying in the present case, appellee further argues, the statute should be construed to restrict inheritance “through the birth parent” to instances where the birth parent has died. In other words, it should be interpreted so as to exclude inheritance through a birth parent who is alive but disqualified. In appellee’s words, the statute should be interpreted so that the disqualified killer is treated as if he never existed rather than as if he had died. We first address whether D.B.B.’s adoption affects her right to inherit from her biological grandparents. There is no doubt that the legislature intended that 59-2118(b), at all pertinent times, permitted an adoptee to inherit from and through his or her biological parents. A thorough exploration of the question whether adopted children may inherit from their biological parents was undertaken by the Court of Appeals in In re Estate of Hinderliter, 20 Kan. App. 2d 29, 882 P.2d 1001, rev. denied 256 Kan. 995 (1994), where the court stated: “By enacting L. 1993, ch. 195, concerning inter alia inheritance rights of adopted children, the Kansas Legislature codified early Kansas case law that allowed adopted children to inherit from their biological parents and rejected more recent decisions that did not allow children to inherit from biological parents whose parental rights had been severed.” Syl. ¶ 4. In that enactment, the sentence, “An adoption shall not terminate the right of the child to inherit from or through the birth parent,” was added to 59-2118(b). L. 1993, ch. 195, § 4. The “early Kansas case law” referred to by the Court of Appeals is: “Bartram v. Holcomb, 109 Kan. 87, 198 Pac. 192 (1921); Baird v. Yates, 108 Kan. 721, 196 Pac. 1077 (1921); and Dreyer v. Schrick, 105 Kan. 495, 185 Pac. 30 (1919). “In Dreyer, the court held a child adopted by one set of parents, then subsequently adopted by another set of parents, may inherit from the first set of adoptive parents. 105 Kan. 495, Syl. ¶ 2. In Baird, the court held that absent a statute to the contrary, a biological parent may inherit from a child adopted by another. 108 Kan. 721, Syl. ¶ 2. And in Bartram, the court held a child adopted by a grandparent after the death of the child’s parent may inherit from the grandparent in a dual capacity: as both a child and as a grandchild. 109 Kan. 87, Syl.” 20 Kan. App. 2d at 31. The Court of Appeals quoted from House Judiciary Attachment # 4, which the Judicial Council offered in support of the amendment. It confirms that the early cases “ ‘hold that, absent a statute to the contrary, a child inherits from both natural and adoptive parents.’ ” 20 Kan. App. 2d at 32. Thus, the Court of Appeals concluded that the 1993 amendment to 59-2118 merely codified existing law so that the rule should be given effect whether decedent died before or after the effective date of the statutory amendment, July 1, 1993. 20 Kan. App. 2d at 32. Although the circumstances in Hinderliter did not include inheritance through a biological parent, Bartram v. Holcomb, 109 Kan. 87, 198 Pac. 192 (1921), one of the cases considered by the Court of Appeals, did. Bartram is authority for applying the rule codified in 59-2118(b) without regard to the date of death, and the statute expressly provides for inheritance through a biological parent as well as from one. Hinderliter is a convincingly documented and well-reasoned opinion, and nothing has been brought to this court’s attention that would weaken or alter its axiom. We find the Court of Appeals’ rationale persuasive and conclude that D.B.B.’s adoption would not bar her from inheriting from or through her biological parent. We next consider whether Kent’s being barred from inheriting from his parents prevents the inheritance from passing through him to his child. This was the basis for the trial court’s decision and has not been decided by the appellate courts of this state. The question has arisen in other jurisdictions, however, and has been pondered by commentators, scholars, and the National Conference of Commissioners on Uniform State Laws. In In re Estate of Benson, 548 So. 2d 775 (Fla. Dist. App. 1989), a murderer’s minor children were allowed to inherit his share of intestate and testate estates. Margaret Benson, the deceased testator, was the mother of Carol Benson Kendall, Steven Benson, and Scott Benson. Steven had minor children; Scott had no heirs. Steven killed Margaret and Scott. Margaret’s will devised her property to her three children in equal shares and per stirpes. Scott died intestate. An intestacy section of Florida’s probate code provides that the property of a decedent such as Scott, without parents or lineal descendants, passes to the decedent’s siblings and the descendants of deceased siblings. Florida’s “slayer statute” provides that “the estate of the decedent passes as if the killer had predeceased the decedent.” 548 So. 2d at 777. The trial judge applied Florida’s anti-lapse statute in concluding that Steven’s minor children inherited through him. The District Court of Appeals reached the same conclusion for somewhat different reasons: “It would have been the correct result in any event, i.e., whether the express provisions of the will were utilized or whether the Anti-Lapse Statute was used. Margaret Benson’s will devised her property to her children ‘per stirpes.’ Even though the drafter of the will testified in the murder trial that she intended a class gift to her children, since a class gift is not expressly provided by the terms of the will even if the term ‘per stirpes’ had been omitted from the will, section 732.611, Florida Statutes (1985), would have applied to make the devises and bequests ‘per stirpes.’ Further, even if Margaret Benson’s will had provided for a class gift to her three children, the Anti-Lapse Statute would have substituted Steven Benson’s minor children in his place as a devisee under the will in the absence of a contrary intent expressed in the will.” 548 So. 2d at 778. At the time Benson was being considered by the Florida District Court of Appeals, the pertinent section of the Uniform Probate Code (UPC) was worded like the Florida statute. Unif. Probate Code § 2-803(a), 8 U.L.A. 172 (1983) provided that a surviving heir or devisee who intentionally and feloniously killed the decedent “is not entitled to any benefits under the will or under this Article, and the estate of decedent passes as if the killer had predeceased the decedent.” Although the section was “substantially revised” in 1993, “the main thrust of the pre-1990 version” was not altered. Unif. Probate Code § 2-803, Comment, 8 U.L.A. 200 (1996 Supp.). Subsections (b), (c), and (e) of the current version of § 2-803 provide that a decedent’s estate, intestate or under a will, passes as if the killer disclaimed his or her share. The effect of disclaimer, as established in Unif. Probate Code § 2-801(d), 8 U.L.A. 196 (1996 Supp.) is as follows: “If property or an interest therein devolves to a disclaimant under a testamentary instrument ... or under the laws of intestacy . . . the disclaimed interest devolves as if the disclaimant had predeceased the decedent, but if by law or under the testamentary instrument the descendants of the disclaimant would share in the disclaimed interest by representation or otherwise were the disclaimant to predecease the decedent, then the disclaimed interest passes by representation, or passes as directed by the governing instrument, to the descendants of the disclaimant who survives the decedent.” The Kansas statute that sets out the effect of disclaimer is K.S.A. 59-2293(a). It provides generally that disclaimed property shall descend or be distributed as if the disclaimant had predeceased the decedent. With regard to the UPC, the Tennessee Court of Appeals, in Carter v. Hutchison, 707 S.W.2d 533, 537 n.10 (Tenn. App. 1985), noted: “A vast majority of states enacting the forfeiture statutes have patterned them after the model statute proposed by Dean Wade in 1936, see J. Wade, [Acquisition of Property by Willfully Killing Another — A Statutory Solution, 49 Harv. L. Rev. 715, 753-55 (1936)], or the Uniform Probate Code. Thus, in twenty-nine states there is a statutory presumption that the victim’s property passes to his estate as if the slayer had predeceased the decedent. See Uniform Probate Code § 2-803 (1983) and J. Wade, supra n. 5 at 753 Section 4. Four states provide for forfeiture but are silent as to distribution. Tennessee is among ten states that provide for forfeiture and for distribution to the decedent’s heirs through the laws of intestate succession. The eight remaining states without statutes have forfeiture provisions by court decision. See generally Maid & Kaplan, [Elmer’s Case Revisited: The Problem of the Murdering Heir, 41 Ohio St. L.J. 905, 957 (1980)].” See McGovern, Homicide and Succession to Property, 68 Mich. L. Rev. 65, 66-67 (1969). It appears that Kansas is one of the few states that does not expressly provide for distribution of the forfeited share. Turning to the present case, it is clear that under either version of the UPC, appellee would take one-half of the estate of her parents. The other half would be taken by her disqualified brother’s minor child. Kansas’ anti-lapse statute, K.S.A. 59-615(a), provides, in part: “If a devise or bequest is made to . . . any relative by hneal descent . . . and such . . . relative dies before the testator, leaving issue who survive the testator, such issue shall take the same estate which said devisee or legatee would have taken if he or she had survived, unless a different disposition is made or required by the will.” The anti-lapse provision is not applicable in the present case. The possibility that one or both of their children would predecease them was taken into account in the Van Der Veens’ will by the inclusion of the phrase “per stirpes.” That phrase is defined in Black’s Law Dictionary by reference to a Kansas case, Buxton v. Noble, 146 Kan. 671, 676-77, 73 P.2d 43 (1937). Black’s defines “per stirpes” as the “method of dividing an intestate estate where a class or group of distributees take the share which their deceased would have been entitled to, had he or she lived, taking thus by their right of representing such ancestor, and not as so many individuals. It is the antithesis of per capita . . . ." Black’s Law Dictionary 1144 (6th ed. 1990). In Buxton, the court quoted a treatise to the effect .that the principle of distribution by representation generally applies “only when the claimants are related to the intestate in unequal degrees.” 146 Kan. at 676-77. For example, if X had been the mother of three children and had died before her parents did, her three children would have been entitled to take.the one-half of their grandparents’ estate that was bequeathed to their mother per stirpes. If Y, X’s brother, had not predeceased his parents or had not been disqualified from doing so, he would have taken the other one-half of their estate. X’s three children and Y would be related, to the testators in unequal degrees, grandchildren and child, respectively. Thus, under die terms of the testators’ will, the resulting distribution would have been the same as if the anti-lapse statute had been applied. The disposition of the slayer’s share is one of four issues identified as unresolved by 59-513 and discussed in a 1984 law review article. Kuether, Barring the Slayers Bounty: An Analysis of Kansas’ Troubled Experience, 23 Washburn L.J. 494, 495, 519-26 (1984). In introducing the topic, Professor-Kuether stated: “Some jurisdictions have held [that the slayer’s share] should pass as though the slayer predeceased the victim. It would thus pass to the victim’s other heirs, including those who would be the slayer’s heirs if they also would be the victim’s heirs. Others have barred all those who would take through the slayer.” 23 Wash-bum L.J. at 519. Professor Kuether did not cite case law to support his assertions. He also stated that there was scholarly opinion favoring both dispositions: “Professor Wade suggested that anti-lapse and representation should not be allowed, but gave no reason for this conclusion. [Wade, Acquisition of Property by Wilfully Killing Another — A Statutory Solution, 49 Harv. L. Rev. 715 (1936).] Professor McGovern recognized the problem and suggested that the slayer’s heirs should take. [McGovern, Homicide and Succession to Property, 68 Mich. L. Rev. 65 (1969).]” 23 Washburn L.J. at 521. In Professor Kuether’s opinion, McGovern’s suggestion “is the better solution and probably reflects the victim’s intent.” 23 Washburn L.J. at 521. Kuether continued: “Taking by representation and the anti-lapse statute both represent the state’s policy regarding the decedent’s presumed intent if the primary taker, the slayer, cannot take. In most cases this will be accurate, as where a grandchild takes from the victim grandparent’s estate as a representative of the slayer-child. It is unlikely the grandparent would wish to punish the innocent grandchild.” 23 Washburn L.J. at 521. Professor Kuether points out several other aspects of Kansas law, past and present, that may have some persuasive value in this matter. First, he notes that “Kansas cases have held that those talcing by representation take subject to their ancestor’s equities.” 23 Wash-bum L.J. at 519. Kuether recommends distinguishing those cases (not identified in the article) on the ground that they “involve different policies.” 23 Washburn L.J. at 520. Second, from 1907 until 1939 the slayer statute “provided that the share which would have passed to the slayer ‘shall descend and be distributed to such other person or persons as may be entitled thereto by the laws of descent and distribution, as if the person so convicted were dead.’ ” 23 Wash-bum L.J. at 520 (quoting L. 1907, ch. 193, § 1). Among other changes made in 1939 was the removal of the provision for disposition of the slayer’s share. Kuether asserts that the primary purpose of the amendment was to clarify an ambiguous statute, and he speculates that the amendment was not intended to change disposition of the slayer’s share. 23 Washburn L.J. at 520. The 1907 version stated: “Any person who shall hereafter be convicted of killing or of conspiring with another to kill, or of procuring to be killed, any other person from whom such person so killing or conspiring to kill or procuring said killing would inherit the property, real, personal, or mixed, or any part thereof, belonging to such deceased person at the time of death, or who would take said property by deed, will or otherwise at the death of the deceased, shall be denied all right, interest and estate in or to said property or any part thereof, and the same shall descend and be distributed to such other person or persons as may be entitled thereto by the laws of descent and distribution, as if the person so convicted were dead.” L. 1907, ch. 193, § 1. As explained by Professor Kuether, the potential problem in this statute is that if the victim bequeathed property to the killer with a gift over to another should the killer predecease the testator, a literal reading of the statute would have voided the gift over and passed the property to the killer s heirs. In Kuether’s view, the 1939 amendment of the slayer statute was intended to avoid the problem by eliminating the provision for disposition of the slayer’s share. Although the specified ambiguity could have been remedied by deleting the references to descent and the laws of descent, the legislature eliminated the entire directive for disposition of the slayer’s share. The well-known axiom that the legislature’s revising an existing law raises a presumption that the legislature intended to change its effect, Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990), however, could lead to a different conclusion. This court has stated: “[T]his presumption may be strong or weak according to the circumstances, and may be wanting altogether in a particular case. The presumption, is fairly strong in the case of an isolated, independent amendment, but is of little force in the case of amendments adopted in a general revision or codification of the law. [Citations omitted.]” Board of Education ofU.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982). The 1939 amendment of the slayer statute was one provision out of the 281 sections making up the extensive act that established the Kansas Probate Code. L. 1939, ch. 180, § 35; L. 1939, ch. 180, §§ 1-281. Thus, the presumption would be weak at best in the circumstances of the present case. Professor Kuether also found support for construing the slayer statute as disposing of the slayer’s share as if he or she predeceased the testator in Russell v. Estate of Russell, 216 Kan. 730, 534 P.2d 261 (1975). 23 Washburn L.J. at 520-21. Under K.S.A. 59-610, a will written during marriage is revoked as to the spouse upon divorce. In Russell, this court ruled that the statute would be applied and the property would pass as if the former spouse failed to survive the decedent. 216 Kan. at 733. After citing cases from other jurisdictions that reached the same conclusion, the court stated: “The rule of these cases also finds support in the Uniform Probate Code § 2-508 which provides in pertinent part as follows: \ . . Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, . . .’ While the Kansas statute does not contain this provision of § 2-508 of the Uniform Probate Code, we are impressed by the fact that it was approved by the National Conference of Commissioners on Uniform State Laws and by the American Bar Association in 1969. “We have concluded that the rule applied by the trial court and asserted by the appellee on this appeal should be adopted and followed in this jurisdiction. We hold that under the factual circumstances and the will provisions in this case, property which is prevented from passing to a former spouse because of revocation by divorce or annulment under the provisions of K.S.A. 59-610 passes as if the former spouse failed to survive the decedent. We take this position not only because of the fact that it represents the majority, view but also because we consider it the better reasoned rule and more in line with the rationale of prior decisions of this court.” 216 Kan. at 733-34. Finally, Professor- Kuether undertook to show why two possible objections to considering the slayer to have predeceased the victim were not significant. The first is that the slayer might act in order to benefit his heirs. He suggests that “[t]his will be rare since it is a very costly gift by the slayer.” 23 Washburn L.J. at 523. Furthermore, to bar all taking by representation and by anti-lapse with the exceptional slayer in mind would be unjust and typically contrary to die victim’s intent. The second “is Kansas’ traditional position that those who take by representation take subject to the equities against their ancestors.” 23 Washburn L.J. at 523. Kuether’s analysis why this principle is not applicable in the case of a slayer/beneficiary is convincing. He states that the principle was developed in cases where an heir claims through a person who was indebted to the decedent. The shares of the other beneficiaries were reduced by the amount of the indebtedness. In contrast, the other beneficiaries’ shares have not been reduced by the slayer’s lolling the decedent. In fact, their benefits have been accelerated. Thus, just treatment of the other beneficiaries does not demand that the slayer’s heirs be disqualified or penalized. 23 Washburn L.J. at 523-24. To illustrate this proposition in the circumstances of the present case, we need only look at appellee’s situation. She would take one-half of her parents’ estate if they had died from natural causes, and she would take the same if Kent is disqualified for killing their parents and his share passes as if he predeceased them. In contrast, if Kent’s child were disqualified because Kent killed his parents, the innocent child would be penalized, and appellee would take twice what the testators intended and what she expected. Appellee argues that the court might more profitably examine analogies involving bona fide purchasers. She urges the court to apply an analogue to the rule that a bona fide purchaser takes no better title than the seller had. The revocation-by-divorce statute considered by the court in Russell, however, is much more closely analogous than bona fide purchaser principles. It is also more persuasive. We conclude that the better rule where the slayer’s heir or heirs are wholly innocent would be to dispose of the disqualified slayer’s share as if the slayer predeceased the victim(s). We find authority for this rule in this court’s reasoning in Russell with regard to the analogous revocation-by-divorce statute. Moreover, when the rules that this court has developed in construing wills are applied in the circumstances of this case along with K.S.A. 1996 Supp. 59-513, we reach the same conclusion. In Russell, the court stated: “In construing a will courts must (a) arrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator, and (e) when the language found in such instrument is clearly and unequivocally expressed determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms. (Following In re Estate of Porter, 164 Kan. 92, 187 P.2d 520.)” 216 Kan. 730, Syl. ¶ 1. The Van Der Veens intended for their daughter to take one-half of their estate. Their knowledge of Kent’s troubled nature is reflected in a provision of the Van Der Veens’ will that nominates Laura to serve as Kent’s guardian and conservator. Nonetheless, they bequeathed one-half of their estate to him. There is nothing in the instrument from which the court could conclude that the Van Der Veens intended for Laura to receive the entire estate in the event of Kent’s incapacity or disqualification. By extension, it may reasonably be inferred that they would not have intended for Kent’s innocent child to be disqualified in order for Laura to receive the' entire estate. Appellee invites the court to speculate that the Van Der Veens would not have intended for their unknown, illegitimate grandchild to share in their estate. We decline the invitation and note there is no factual support in the record for such a speculation. The judgment of the district court is reversed.	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The opinion of the court was delivered by McFarland, C.J.: This is an appeal from the denial of the adoption of a Chinese national being sought by a Kansas couple. The facts maybe summarized as follows: Mr. and Mrs. C. sought to adopt a Chinese infant. Due to Chinese governmental restrictions on family size and the Chinese people’s preference for male children, large numbers of female infants are abandoned to orphanages each year. Various organizations have sprung up to assist Americans seeking adoption of such children. Working with one of these organizations, Mr. and Mrs. C. made arrangements to adopt W.J., who was bom in Jiangxi Province, The People’s Republic of China, on August 11, 1995, and abandoned by her parents at an orphanage in Wanzai. Mr. and Mrs. C. had three other children, and it was decided that Mrs. C. would remain at home with the children and only Mr. C. would go to China to complete the Chinese adoption process and bring the child home. This was accomplished in January 1996. Mr. C. returned to Kansas with: 1. The little girl, W.J.; 2. W.J.’s Chinese birth certificate; 3. a Chinese certificate of abandonment; 4. an official Chinese adoption certificate showing W.J.’s adoption by both Mr. and Mrs. C.; 5. W.J.’s Chinese passport; 6. W.J.’s United States visa authorizing her admission under “IR4” status; 7. English translations of the various Chinese documents. Although not directly involved in the case herein, W.J.’s IR4 status is important as it plays a significant role in what Mr. and Mrs. C. were attempting to accomplish by instituting this adoption proceeding. This aspect will be set forth in the discussion later in this opinion. On July 31, 1996, Mr. and Mrs. C. filed a petition in Johnson County District Court seeking a Kansas decree of adoption for W.J., which was accompanied by the above-referenced documents and a glowing home study prepared by a licensed social worker. Notice of the upcoming September 9, 1996, hearing was sent to the social worker (who appeared) and the representative of China’s Children, the United States organization that had arranged the Chinese adoption. Mr. and Mrs. C. testified. There was no one present in opposition to the adoption. At the conclusion of the hearing the court stated: “The Court is going to deny the adoption without consent. In addition, no action to terminate parental rights has been made. The Court notes that the child was returned [sic] to the United States under the IR4 designation of Immigration and Naturalization. The parties should note that consent to the adoption has to be given by a proper party vested under Kansas statute, and no such consent has been received. Therefore, the matter will be denied and dismissed with prejudice. “I would urge you to look at the statute. There’s several different ways of doing it correctly.'We will stand in recess.” These statements from the bench were journalized as follows: “Thereupon, the Court, having reviewed the file, heard and considered the evidence and statements of counsel, and being fully advised in the premises, finds that: “1. Proper consents to the adoption of the child have not been filed in this action. “2. No action to terminate parental rights has been made. “3. The child was returned [sic] to the United States under the IR4 designation of Immigration and Naturalization. “4. Consent to the adoption has to [have] been given by a proper party under Kansas statute, and no such consent has been received. “It Is Therefore By The Court Considered, Ordered And Decreed that the Petition for Adoption of W.J. should be denied and this cause should be dismissed, with prejudice.” Mr. and Mrs. C. appealed to the Court of Appeals. The case was transferred to this court on our own motion, pursuant to K.S.A. 20-3018(c). The transnational adoption of children has become an increasingly popular option for Americans seeking the adoption of children but who are daunted by the shortage of adoptable infants bom in the United States. See Carlson, Transnational Adoption of Children, 23 Tulsa L.J. 317 (1988). The completion of such an adoption involves the execution of carefully orchestrated sequential official acts of various governments. As different countries have different requirements for freeing a child for adoption by foreign nationals, great care must be taken to comply with the requirements of the particular country involved. This may or may not involve actual adoption in the infant’s country of birth. Such adoption is necessary under Chinese law. See 23 Tulsa L.J. at 318-20, 335-36. The Chinese documents accompanying W.J. show the date of her birth, her parental abandonment less than a month later to an orphanage, the adoption of W.J. by the petitioners herein, and her passport allowing her to leave the country. There is no apparent defect in any of the Chinese documents or in the Chinese adoption proceeding. The Chinese proceedings have been carefully scrutinized by the United States Immigration and Naturalization Service (INS) and found to be lawful. This is a requirement for the issuance by ÍNS of the visa which authorized W.J.’s entry into this country. Her visa grants her IR4 classification. Had both Mr. and Mrs. C. travelled to China and been physically present through the Chinese proceedings there, W.J. would have been granted IR3 classification. INS would then have considered W.J.’s Chinese adoption valid and complete, not requiring a subsequent state adoption. The failure of Mrs. C. to personally see the infant prior to or during the Chinese adoption resulted in the IR4 classification, which mandates a state adoption proceeding before United States citizenship will be granted. See 23 Tulsa L.J. at 342, 344; 8 U.S.C. § 1101(b)(1)(F) (1994); 8 U.S.C. § 1151 (b)(2)(A)(i) (1994); 8 C.F.R. § 204.3 (1996); 62 Fed. Reg. 614 (January 6, 1997). By virtue of her IR4 classification, then, petitioner asserts that W.J. must have a Kansas adoption proceeding if she is to be ultimately granted United States citizenship by INS. This is why the petitioners elected to file this action seeking the adoption of W.J. So, in summary, it appears that four official governmental- proceedings are required for W.J. to become the child of the petitioners and a citizen of the United States: (1) adoption in China; (2) issuance of a visa by the INS; (3) a Kansas decree of adoption; and (4) granting of United States citizenship by INS. Petitioners contend the denial of the adoption herein has the effect of knocking the train off the tracks at station 3 and precluding its arrival at station 4. The 1996 amendment to K.S.A. 59-2144 (effective July 1, 1996 — 30 days prior to the filing of this action) may have been a factor in the trial court’s decision to deny the adoption, although no reference is made thereto. In 1994, K.S.A. 59-2144 was first enacted and provided: “(a) When an adoption occurs in a.foreign country and is recognized as a valid adoption by the immigration and naturalization service of United States department of justice, the adoptive parent or parents may petition the court, pursuant to K.S.A. 59-2128, and amendments thereto, for a subsequent adoption in the state of Kansas, pursuant to the applicable provisions of the Kansas adoption and relinquishment act, and amendments thereto. In an adoption under this section, the court shall recognize and give effect to the laws of the foreign country and proceedings conducted in accordance with the laws of the foreign country per taining to relinquishment, termination of parental rights and consent to the adoption. “(b) If the adoption is granted, the adoptive parent or parents may request a birth certificate pursuant to K.S.A. 65-2423, and amendments thereto. “(c) This section shall be part of and supplemental to the Kansas adoption and relinquishment act.” In 1996, K.S.A. 59-2144 was amended to read: “(a) When a Kansas resident adopts a child in a foreign country in accordance with the laws of the foreign country pertaining to relinquishment, termination of parental rights and consent to the adoption, the decree of adoption or a similar document or documents which evidences finalization of the adoption in the foreign country, and evidence of lawful admission into the United States, when filed with and entered in the records of the clerk of the district court of any county in this state, has the same force and effect as if the decree of adoption, or a similar document or documents which evidences finalization of the adoption in the foreign country, was granted in accordance with the provisions of the Kansas adoption and relinquishment act. “(b) When such decree or document is filed and entered, the adoptive parent or parents may request a birth certificate pursuant to K.S.A. 65-2423, and amendments thereto. “(c) This section shall be part of and supplemental to the Kansas adoption and relinquishment act.” K.S.A. 1996 Supp. 59-2144. The legislative history of this 1996 amendment reflects that the purpose of the amendment was to simplify the adoption of foreign nationals — to eliminate the need for adoptive parents to go through a full Kansas adoption proceeding in order to secure just a Kansas birth certificate for the child when they already had a valid foreign adoption decree. As the sponsor of H.B. 2875, which amended K.S.A. 59-2144, Rep. Phyllis Gilmore testified, in part: “This bill has been requested in order to simplify the foreign adoption process. Currently, after an adoption has been finalized in a foreign country an adoptive couple must go through another entire adoption process in Kansas to obtain a Kansas birth certificate for their child. The intent of this bill is to simplify obtaining the Kansas birth certificate by making it a clerical procedure. There would be no need for any judicial involvement. “This would obviously save considerable time and money for the adoptive parents as well as allowing additional space in the court docket.” Minutes of the House Committee on Judiciary, February 23, 1996, Attachment 1. Obviously, parents who have adopted a child with an IR3 classification would benefit by the streamlined procedure for securing a birth certificate. However, because the purely clerical filing procedure under K.S.A. 1996 Supp. 59-2144 involves no judicial determination, petitioners contend that the mere filing of the Chinese adoption papers and the INS visa will not satisfy the INS requirements for the granting of citizenship to a child with an IR4 classification. Hence, they opted for the filing of a petition seeking a decree of adoption and appealed its denial. This was an unopposed proceeding. There is no one contending this interpretation of INS requirements is incorrect, and our research does not disclose that it is incorrect. There is no indication that the adoption was denied by the trial court based upon K.S.A. 1996 Supp. 59-2144. In fact, the language employed in its holding indicates the petition was held to be deficient on its merits — namely, lack of consent, presumably by the birth parents or a Chinese official, and/or failure to institute an action to terminate the parental rights of the birth parents. We believe that resolution of the issue herein does not depend upon whether or not petitioners’ contention that a fifing under K.S.A. 1996 Supp. 59-2144 is insufficient for INS naturalization purposes is correct. The preceding discussion is necessary, however, for a full understanding of this case in view of the existence of a statute which would appear to offer a simple expedited procedure for accomplishing what petitioners seek. The legislature may well desire to reexamine K.S.A. 1996 Supp. 59-2144 to determine if it truly reflects the intended legislative purpose behind its enactment. We turn now to the merits of the appeal. Did the trial court err in denying the petition for the adoption? Although stated with little specificity, the trial court’s basis for denial lay in perceived defects in the area of W.J.’s eligibility for adoption — her adoptability. The trial court’s stated rationale is repeated for convenience, as follows: “The Court is going to deny the adoption without consent. In addition, no action to terminate parental rights has been made. The Court notes that the child was returned [sic] to the United States under the IR4 designation of Immigration and Naturalization. The parties should note that consent to the adoption has to be given by a proper party vested under Kansas statute, and no such consent has been received. Therefore, the matter will be denied and dismissed with prejudice. “I would urge you to look at the statute. There’s several different ways of doing it correctly. We will stand in recess.” The trial court’s reference to the lack of an action to terminate parental rights and improper consents to the adoption must refer to the failure to institute an action to terminate the parental rights of the birth parents and the Chinese consent to the adoption. K.S.A. 59-2117 addresses, inter alia, a consent executed and acknowledged outside of Kansas: “(a) A consent or relinquishment executed and acknowledged outside of this state, either in accordance with the law of this state or in accordance with the law of the place where executed, is valid. “(b) Where a consent or relinquishment is signed in a foreign country, the execution of the consent or relinquishment shall be acknowledged or affirmed in accordance with the law and procedure of the foreign country.” Presented to the court was a Chinese decree of adoption stating when and where W.J. had been abandoned and that her parents were unknown. The head of the orphanage where she had been abandoned was named and was a party to the proceedings. The Chinese government was obviously satisfied that, under Chinese law, W.J. was eligible for adoption when it granted the adoption to Mr. and Mrs. C. and when it issued her passport to travel to the United States. INS was required by law to investigate the validity of the Chinese proceedings before issuing its visa to W.J. to enter the United States with an IR4 classification. There is no indication of any red flags anywhere even hinting at any defects or insufficiencies in W.J.’s Chinese adoption proceedings or her INS admission under INS regulations. Nothing was said nor was evidence admitted at the hearing herein raising any doubt as to the propriety of W.J.’s adoption or admission to the United States. Likewise, there was nothing offered or even alluded to at the hearing which would cast any doubt or question as to the petitioners being anything less than ideal adoptive parents. The home study herein prepared by a licensed social worker glows with favorable findings. Both petitioners testified, and there is nothing suspect in their testimony nor did the trial court find that there was. Uncontradicted evidence which is not improbable or unreasonable is ordinarily regarded as conclusive and cannot be disregarded unless it is shown to be untrustworthy. Anderson v. Kinsley Sand ir Gravel, Inc., 221 Kan. 191, Syl. ¶ 2, 558 P.2d 146 (1976). See also Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 380, 573 P.2d 1036 (1978) (workers compensation); Berry v. Wondra, 173 Kan. 273, Syl. ¶ 3,246 P.2d 282 (1952) (oil and gas lease). The trial court’s rationale shows it wholly disregarded the determinations of the Chinese government and the INS as to W.J.’s adoptability and, in essence, would require the petitioners to return to square one and establish W.J.’s adoptability as though these prior determinations had not been made. Our adoption statutes do not indicate any such legislatively intended procedure. Clearly, the legislature has attempted to simplify transnational adoptions. We therefore conclude that the trial court’s disregard of the Chinese government’s procedures and determinations was error where nothing in the record raised any questions as to W.J.’s adoptability. As previously noted, the trial court made no finding that the petitioners were unsuitable adoptive parents for W.J., and indeed, the record shows them to be highly qualified in all respects. Under the circumstances, we conclude the trial court erred in denying the petition for adoption. The judgment of the district court is reversed, and the case is remanded with directions to enter the decree of adoption in favor of petitioners, including the requested name change for W.J.	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The opinion of the court was delivered by Valentine, J.: This was an action for divorce, and for the custody of the children, five in number, and all minors, brought in the district court of Sedgwick county on September 5, 1889, by Robert T. Leach against his wife, Susan H. Leach, charging her with gross neglect of duty in refusing to cohabit with him as his wife, and in refusing to perform the household duties of a wife for more than five years. The defendant filed an answer and cross-petition, charging the plaintiff with gross neglect of duty, and cruelty, and asking for a divorce and the custody of the children, and for alimony. The case was tried from March 1 to 22,1890, before the court without a jury, and the court found generally in favor of the plaintiff and against the defendant, and also found specially as follows: “The court further finds that the defendant has been guilty of gross neglect of duty as charged in the petition. The court further finds that the defendant is not a proper person to be entrusted with the custody and management of the said minor children. The court further finds that the plaintiff is a proper person to be entrusted with the custody, management and maintenance of the said children. The court further finds that the defendant is entitled to alimony in the sum of $2,500.” Upon these findings, general and special, the court granted the plaintiff the divorce prayed for in his petition and the custody of the children, and granted to the defendant, as alimony, the sum of $2,500, and awarded to her a large'number of articles of personal property, and adjudged that the plaintiff should pay all the costs of the suit; and the defendant, as plaintiff in error, brings the case to this court, making the plaintiff below the defendant in error. There was ample evidence to support the findings and judgment of the court below. According to the plaintiff’s evidence, the defendant had refused to cohabit with him as his wife for more than five years before the commencement of this action, and she admitted that she had so refused for a year and a half or more; and the plaintiff’s evidence also showed that she had neglected and refused to perform various other duties as a wife for an equally great period of time. Such conduct, we think, is sufficient to authorize the granting of a divorce to the aggrieved party upon the ground of “gross neglect of duty,” within the meaning of the statutes. (Civil Code, § 639.) Indeed, we think, the refusal of the defendant to cohabit with the plaintiff as his wife for more than five years, as he alleged in his petition, and as was shown on the trial, was sufficient. Probably a much shorter period of time would be sufficient; but whether it would or not, it is not necessary now to express any opinion. * Errors, however, are alleged as occurring during the trial as follows: It is claimed that the court below erred in overruling the defendant’s motion to suppress depositions. It is claimed that the notice to take the depositions specified that the depositions would be taken at Detroit, Mich., on Friday, February 21, 1890, and from day to day until the taking of the same should be completed; but that the depositions were not so taken; that one of the depositions was taken on an adjournment from February 21 to 24, 1890. It appears that two.of the depositions were taken on February 21, 1890, and that an adjournment was then had to February 24, 1890, when the remaining deposition, that of Mrs. Mary Elizabeth Joslin was taken. The defendant did not make any appearance at any time, and there is no pretense that the adjourn ment caused her any inconvenience. With regard to the adjournment, the officer before whom the depositions were taken certifies as follows: “Thereupon I adjourned the taking of said depositions to Monday, February 24, 1890, between the hours of 8 o’clock A. M. to 6 o’clock p. M.; Saturday, February 22, 1890, being a legal holiday (Washington’s birthday), and February 23, 1890, being Sunday. Said adjournment was taken on account of the illness of Mary Elizabeth Joslin, a witness produced by said plaintiff. Thereupon, on Monday, February 24,1890, the said plaintiff produced said witness Mary Elizabeth Joslin, who testified as follows, to wit.” Now, Washington’s birthday is everywhere in the United States considered in the nature of a holiday, and it is in fact under the statutes of Michigan a legal holiday. (Howell’s Annot. Stat. of Mich., 1882, §1591.) And Sunday is certainly not a day for the taking of depositions. And the witness Mrs. Joslin was ill. We think the court below did not err in refusing to suppress the depositions. Besides, the depositions taken on February 24,1890, had but little materiality, and could not have materially affected any of the substantial rights of the defendant. The plaintiff further complains that the court below erred in admitting “ the testimony of the witnesses Mrs. York, Mrs. Buck, and Mrs. Wheaton, as to the declarations and conduct of Mrs. Leach from 7 to 12 years prior to this action, about raising children,” etc. The object of this testimony was to show the hatred and ill-feelings entertained by Mrs. Leach toward her husband, the plaintiff, and as tending to corroborate his testimony that she had refused to cohabit with him as his wife for a very long period of time. We think the evidence was competent. The plaintiff alleged in his petition that the defendant’s gross neglect of duty commenced more than five years before he commenced his action, and she, in her answer and cross-petition in denial and asking for affirmative relief, alleged “that ever since her marriage with the plaintiff, (which was on March 14, 1872,) she has conducted herself in all respects as an obedient, dutiful and affectionate wife, and conscientiously fulfilled all her marital duties.” The plaintiff in error also complains “of error in the admission of the evidence of Mrs. Reeves as to Mrs. Leach’s desire to leave Kansas, etc.; also the evidencexrelating to her conduct shortly after the birth of her last child.” Her last child was born on January 8, 1882. The first of the above complaints has no importance one way or the other; and the second shows that a few months after the birth of the defendant’s last child she had a dance at her house, and danced herself. This was for the purpose of showing that her health was good. It was also shown that she danced on many other occasions. As before stated, the defendant’s last child was born on January 8, 1882, and prior to that time and in the early part of 1881, when she first discovered that she was pregnant with that child, was the time when the principal troubles between the parties commenced, and from that time on they have had but very little, if any, sexual intercourse with each other. We shall now consider the question of alimony, and probably the plaintiff in error, defendant below, considers this the most important question in the case. Both the parties asked for a divorce in their pleadings, and probably both desire that it should be granted; but each wants the bulk of the property. It appears that the plaintiff below, while still a single man, and in 1871, removed from Michigan to Kansas, and purchased a quarter-section of land in Sedgwick county. Afterward, he returned to Michigan, and there, on March 14, 1872, married the defendant, and immediately brought her to Kansas, and they arrived at his farm about April 2, 1872. At the time of his marriage he owned a quarter-section of land in Sedgwick county, had $1,400 in money, and had debts coming to him, secured by mortgage, from which he realized about $12,500. She had nothing. At the time of the divorce he owned two quarter-sections of land in Sedgwick county, had some personal property, worth perhaps $1,500, had no money of any consequence, was owing debts to the amount of $500 or more, was made liable for and required to pay all the costs in this present action, which will be a very large amount, and is required to support all his children, five in number, and required to pay to the defendant the sum of $2,500 as alimony, and to surrender to her a large number of articles of personal property, the value of which is not shown. At the time of the plaintiff’s marriage he was probably worth about $15,000; at the time of the divorce he was not worth that amount. The counsel for the plaintiff in error, defendant below, state the amount to be $14,000, but probably it was not more than $10,000 to $12,000; and even that amount is made up largely from the increased value of his real estate, caused by the settlement and the growth in population and in wealth of the country. The defendant’s case is not like the case of that class of wives who bring something to their husbands, or who after marriage assist their husbands in accumulating wealth or property, for she brought nothing to her husband, and afterwards largely retarded arid hindered him from accumulating wealth and property, and was largely the cause of reducing his wealth. Ordinarily, $2,500 or $3,000 alimony, out of an estate worth from $10,000 to $14,000, would be too small, yet in this case it is probably right. At most, we cannot say that the court below erred in not granting a larger amount of alimony. As to the custody of the children, the district court had better means of knowing what was right than we have, and we cannot say that the court erred in awarding the custody of all of them to the plaintiff. The .. . tip t youngest child is a boy, and, as before stated, was born on January 8, 1882. Whether, however,' the plaintiff shall continue to have the custody of the children, or whether the defendant may at some future time have their custody, or the custody of some of them, is a question that will remain open, and may at any time be further considered and adjudicated by the courts. Circumstances may change, and it may at some time be for the best interests of the chil dren, or some of them, that the defendant shall have their custody, and the court may then award them to her. But at the present, all that this court can do will be to affirm the ruling of the district court upon this subject. It can make no difference that one of the quarter-sections of land was the homestead of the parties. It was decided some years ago, in the case of Brandon v. Brandon, 14 Kas. 342, 346, that the homestead.of the husband and wife “is the homestead of each, and upon a divorce the court has power to assign it to either.” We cannot say that any substantial error has been committed in this case, and therefore the judgment of the court below will be affirmed. All the Justices concurring.	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Opinion by Stjrang, C.: This is an action for contempt, growing out of the same publication that was alleged to constitute contempt in the case of The State v. Henthorn, just decided. In this case, as in that, the defendant was arrested and brought into court on a warrant or order issued by the district court of Cowley county, without any affidavit or information of any kind, containing a statement of the facts constituting the alleged contempt, having first been filed in said court. This case must therefore be reversed upon the strength of that case. It is also the opinion of this court that this defendant should have been held to have purged himself by his answer, and been discharged. His answer, which was verified by his oath, showed that J. W. Henthorn was the sole editor of the Winfield Telegram, the paper in which the article constituting the alleged contempt was published at the time of its publication, and that this defendant had nothing to do with the publication of the article complained of, and had no knowledge of said article or its publication until the order of arrest in this case, which contained a copy thereof, was served on him. There was no evidence before the court tending to show that such answer was not true. On the other hand, the verified answer of J. W. Hen-thorn, who was arrested at the same time with this defendant, and on the same process, also stated that Henthorn was the sole editor of the paper in which the article complained of appeared, and that he was solely responsible for its publication. Under these circumstances, we think this defendant should have been discharged. agents, or with his knowledge; hence, it is clear that he must be discharged, with his costs.” (Murdock’s Case, 2 Bland, [Md.] 487.) “In this instance, Gilbert Murdock has, in the most complete, positive manner, denied all the charges made against himself, and the other two persons, who stand accused, sustain his answer by their assertion that they did not act as his It is recommended that the judgment of the district court be reversed, and defendant discharged, with costs. By the Court: It is so ordered. All the Justices concurring. Per Curiam: Upon the authority of the case of The State v. H. Vincent, just decided, which case is in all respects like this one — The State of Kansas v. L. Vincent, .also from Cowley district court — the judgment of the district court will be reversed, and the defendant discharged, with costs.	[ -76, -24, -31, 30, 10, -32, 34, -98, -45, -111, -9, 115, -55, -126, 5, 115, -14, 111, 85, 121, -60, -73, 55, -95, 114, -13, -45, -43, -77, 79, -18, 93, 13, 56, -102, 85, 6, -54, -127, -36, -122, -92, 9, -16, -61, -64, 52, 105, 16, 75, 113, 15, -13, 42, 26, -61, 72, 58, -33, -119, -62, -47, -98, -113, 77, 22, 3, 54, -100, 3, 80, 62, -104, 57, 1, -4, 115, -76, 6, -12, 15, -103, 40, 102, 98, 32, -12, -31, -84, -120, 47, 59, -99, -89, -103, 69, 107, 9, -106, -103, 119, 20, 7, -18, -29, 5, 60, -20, 27, -50, -12, -77, 15, 44, -100, 87, -29, 35, 48, 96, -115, -32, 93, 103, 50, -69, -34, -76 ]
The opinion of the court was delivered by Johnston, J.: This was an action by Charles W. DeWolf & Son to recover from E. M. Armstrong the sum of $147.01. They obtained an order of attachment, alleging that the defendant had sold, conveyed and disposed of his property, with the intent to cheat and defraud his creditors, and to hinder and delay them in the collection of their debts. After the order of attachment had been issued and served, the defendant filed an affidavit alleging that the grounds alleged for an attachment were untrue, and upon the proofs offered at the hearing of the motion the attachment was discharged. The case was submitted upon the same testimony as was Furniture Co. v. Armstrong, ante, p. 270. It appears that the debts which were paid and secured by the defendant were bona fide; and it is settled that a debtor in failing circumstances may in good faith prefer one creditor to another, and may transfer and mortgage his property to secure a bona fide debt, although such action may result in depriving other creditors of either satisfaction of or security for their claims. In the case cited the bona fides of the debt and the good faith of the preference have been found, and following the decision in the cited case, there must be an order and judgment of affirmance in this. All the Justices concurring.	[ -14, 124, -40, -20, 10, 96, 34, -70, 19, 33, -73, 83, 107, -30, 4, 99, -16, 89, 113, 114, 77, -77, 55, -21, -46, -109, -13, -43, -79, 108, -27, 85, 76, 32, -54, -107, -26, -128, -59, 28, -50, -128, 25, 109, -7, 8, 52, 59, 20, 15, 101, 15, -13, 46, 29, 67, 105, 43, -21, 41, -48, -15, -86, -121, 111, 31, 19, 69, -104, 101, 72, 44, -128, 49, 6, -23, 113, -74, -122, 84, 101, -69, 9, 98, 103, 3, -107, -23, -100, -40, 42, -114, -97, -90, -109, 88, -117, 105, -66, -99, 118, 16, 7, 126, -17, -99, 29, 100, 13, -49, -108, -93, -97, 116, -100, 10, -17, -93, 17, 112, -51, -96, 92, 86, 26, -101, -98, -72 ]
Opinion by Stjrang, C.: This was a proceeding in mandamus to compel the plaintiffs in error to canvass the votes cast at an election held in the. outlying territory attached to Garden City for school purposes, on the 1st day of April, 1890, for the election of a member of the school board of said city. On the hearing of the application, the defendants below demurred to the application, which demurrer was overruled. An answer was then filed, which was in turn demurred to by the plaintiff below. This demurrer was sustained, and thereupon the court allowed the writ, ordering the defendants below to canvass the returns of said election, to declare the plaintiff below elected as a member of the school board of said city, and issue to him a certificate of election. To such action on the part of the court the defendants below objected, and bring the matter here for review. The court, in allowing the peremptory writ in this case, required the defendants below to not only canvass the returns of the election described in the petition as having been held, but required them to declare the plaintiff below elected as a member of the school board of said city, and also issue to him a certificate of his election. In this the court exceeded its authority. It had no power, in any event, to require the defendants below to declare that Hall had been elected a member of said school board. This action of the court therefore was erroneous. But should the defendants below, on the petition in this case, have been required to canvass .the returns of said election at all? We think not. The law never, under any circumstances, requires the performance, or attempted performance of an impossibility. Nor does it ever require a useless thing to be done. The petition in this case, with the exhibit attached thereto as a part of it, shows that, with but one officer to elect,.27 electors cast 44 votes. The petition thus shows that illegal votes were cast at that elec tion. The petition does not show, nor attempt to show, how many of the votes cast were illegal, nor for whom such illegal votes were counted. Nor is it possible from the face of the returns, made a part of the petition, to ascertain for whom the illegal votes were cast and counted.It is easy to discern, from the returns, that at least 17 illegal votes were cast, (and there may have been more than that number,) because there was but one officer to be elected, and there were 44 votes polled with but 27 electors voting. The plaintiff below, in the body of his petition, assumes that there were 27 legal votes cast, and that he received 17 of them. This he attempts to establish by attaching to his petition the returns of the election board of said election. But the exhibit fails to support the allegation in the body of his petition, but on the other hand shows that it is impossible to ascertain from said exhibit the number of legal votes cast at said election, or for whom they were cast. The petition, as it stands, showing that it was impossible for the defendants below to separate the legal votes from the illegal votes cast at said election, or to tell therefrom for whom the legal votes were cast, it was impossible for them to canvass the votes of said election and declare the result thereof. It follows, then, that the plaintiff below, by his petition, did not make a sufficient showing to entitle him to the writ allowed. We think the demurrer to said petition should, therefore, have been sustained. As to the answer, if the plaintiff below had otherwise been entitled to the writ, we think the third defense set up in the answer was a sufficient defense to any right the plaintiff below claimed in his petition as ground for the writ, and that the demurrer thereto should, therefore, have been overruled. For these reasons, we recommend that the judgment of the district court be reversed and the cause remanded for new trial. By the Court: It is so ordered. All the Justices concurring.	[ 48, -20, -79, -3, 10, -128, 66, -98, 64, -77, 103, 115, -23, -45, 28, 49, -5, 47, 49, 107, -60, -94, 87, -62, -78, -45, -55, -43, 53, 79, -2, 121, 76, -80, -62, -43, 70, 70, -25, -36, -114, -94, -119, 66, -37, -78, 52, 122, 98, 75, 113, 46, -13, 44, 24, 67, -55, 45, -37, -3, -31, -71, -100, -123, 121, 14, -74, -89, -104, -125, -8, 46, -36, 57, 0, -24, 51, -90, 6, -26, 11, -119, 8, -26, 102, -127, -75, -81, -72, -119, 46, 55, 13, -26, 22, 89, 107, 45, -106, -103, 113, 80, -125, -2, 101, -123, 20, 124, 79, -114, -44, -77, -113, -74, -116, 3, -61, 42, 16, 113, -52, -80, 92, 67, 19, 59, -49, -8 ]
The opinion of the court was delivered by Johnston, J.: This case is founded on the alleged fraud and deceit practiced by Davis on Jenkins in a transaction relating to a timber-culture claim, and we fail to see why the petition does not set forth a cause of action. In substance, it avers that Davis, who claimed a right under the United States laws to a tract of land, and that he owned and controlled the relinquishment of the same, represented it to be well-located, good, level, tillable land, suitable for timber-culture and agricultural purposes, and especially adapted to the wants of Jenkins, who wished to enter a timber-culture claim under the United States land laws. He confided in the truth of the representations made by Davis, and purchased and paid him for the relinquishment and claim. He avers that the representations were false in every particular; that Davis had no right in the claim, and did not own or control the relinquishment thereto; that the tract was not located where he represented that it was; that it was not level, tillable land, and not suitable for agricultural and timber-culture purposes; but, on the contrary, was rough, hilly, mountainous sand hills, and untillable piles of pure sand, and wholly worthless. Jenkins alleged that, by reason of the fraud and deceit practiced upon him by Davis, he had parted with his property, exhausted his rights under the timber-culture laws of the United States, and been otherwise damaged, in the total sum of $1,500. The fact that Jenkins was required to make an affidavit when he placed his timber-culture filing on the land does not debar him from recovering the damages which he actually sustained. It is claimed that if he complied with the act of congress in making the affidavit, he must have known the character of the land, and therefore could not have relied upon the representations of Davis. In this affidavit the applicant swears that the land was prairie, or devoid of timber, •but is not required to state anything in regard to the quality of the soil or the purposes for which it was adapted. (1 Supp. Rev. Stats, of U. S. 348.) Jenkins may have been acquainted with the fact that the land was prairie, and devoid of timber, without having a knowledge of the exact location, or whether it was good, tillable land, suitable for agriculture and the cultivation of timber. If he relied upon the representations, as alleged, and was thereby deceived to his injury, he may recover for the damage sustained, although he might have ascertained by a further search and inquiry that the statements made by Davis were untrue. (McKee v. Eaton, 22 Kas. 226; Claggett v. Crall, 12 id. 393.) In instructing the jury the court stated that land entered under the timber-culture act was not taxable from the time the entry is made until final proof is made and a final certificate is received from the register of the land office, and that final proof may be made at the expiration of eight years, but it is not necessarily made until the expiration of thirteen years. It is not claimed that this is. an incorrect statement of the law, but it is contended that it is inapplicable in the case. The non-taxable feature of a timber-culture claim was a proper consideration for the jury in determining the value of such a claim, and of the right to enter the same. No error was committed by the court in granting an attachment after the return of the verdict. The statute provides that an attachment may issue “at or after the commencement” of an action. The order may therefore be granted at any time during the pendency of the action, and before the final determination of the same. In the present case, after the verdict was returned, notice of a motion for a new trial was immediately given, and the motion was duly filed within the statutory time. It is true, that after a judgment is recorded it is effectual, notwithstanding the pendency of a motion for a new trial; (Church v. Goodin, 22 Kas. 527;) but here the judgment was reserved until the disposition of the motion for a new trial. The plaintiff in error asks, What is to be gained by the levy of an attachment after verdict upon real estate, since the judgment when finally rendered becomes a lien upon the real estate from the first day of the term of court? A sufficient answer to the inquiry is, that no judgment was recorded; and if the court had set aside the verdict which had been returned and had granted a new trial, there would have been no lien nor any protection against the fraudulent disposition of the real estate by the plaintiff in error. The purpose of an attachment is to seize and hold the property until it can be subjected to execution; and a party is entitled to the benefit of an attachment until the entry of a judgment upon which an execution may issue. Until the judgment is finally entered an attachment may be had, and a lien of the same continues till it is merged in the judgment finally rendered and recorded. The priority obtained by the attachment continues after the entry of judgment until execution issues. (Speelman v. Chaffee, 5 Col. 247; Lynch v. Crary, 52 N. Y. 181; Bagley v.Ward, 37 Cal. 121; Schieb v. Baldwin, 22 How. Pr. 278; Drake, Attach., § 224.) There is some contention with respect to the sufficiency of the evidence, but the record does not properly show that all of the evidence is preserved, and hence no consideration of that subject is demanded. (Hill v. National Bank, 42 Kas. 364.) We have read the testimony contained in the record, however, and are inclined to the opinion that it is sufficient to sustain the verdict and judgment that were given. Judgment affirmed. All the Justices concurring.	[ -14, 110, -4, -65, 10, -32, 40, -70, 21, -95, -89, 83, -3, -62, -100, 33, -30, 45, -16, 106, 70, -93, 87, -61, 86, -109, -5, -35, 48, 108, -12, 92, 76, 20, -62, -11, 102, 8, -63, -40, -50, -123, 25, -53, -39, 96, 60, -53, 80, 75, 117, -66, -13, 42, 25, -61, 33, 44, 107, -83, 97, -8, -66, 28, 93, 22, 49, 38, -100, -127, 106, 106, -112, 49, 0, -55, 95, -74, 22, -12, 79, -119, 8, 98, 103, 33, -3, -17, -72, -120, 47, -98, 31, -90, -44, 24, 67, 113, -68, -99, 116, 16, 36, 120, -14, 77, -99, 104, 3, -117, -42, -95, -113, 48, -104, 83, -9, -93, -112, 100, -57, -94, 92, 103, 48, -101, -114, -7 ]
Opinion by Simpson, C.: The material facts are, that on or before the 5th day of September, 1873, all the territory embraced in the present city of Wellington, the township of Wellington, and, a portion of that embraced in each of the other defendant townships, constituted one single township, known as “Wellington township;” that on that day, one Henry H. Davidson, being the owner in fee-simple of certain real estate, conveyed to the said township of Wellington lots 11 and 12, in block 53, in the original town (now city) of Wellington; that a part consideration for said conveyance (was the agreement of the township of Wellington to build upon said lots a township hall by the 1st day of June, 1874; that after an extension of time, by mutual agreement, the hall was built, and the title to the lots became absolute in the township of Wellington. On the 24th day of February, 1874, a portion of the original township of Wellington was detached and made a part of the township of Jackson. On the 22d of February, 1876, another portion was detached and made a part of the township of Seventy-six. On the 3d day of January, 1876, another portion was detached and made a portion of the township of Osborn. On the 30th day of August, 1879, another portion was detached and made a part of the township of Downs. On the 14th day of February, 1880, the city of Wellington, which before that time had been a city of the third class, was incorporated as a city of the second class, but was composed entirely of territory that had belonged to the township of Wellington. The township hall was included within the limits of the city of Wellington as a city of the second class, and has been used by the city of Wellington, ever since its organization as a city of the second class, as a town-hall. The deed of conveyance from Davidson to the township of Wellington recites that it is made “in consideration of the sum of $1 and the enhanced value of lots that are owned by the said grantor that lie in the vicinity of the herein-granted lots, to the said grantee, for the express purpose of erecting a township hall on herein-described real estate.” The lots are granted “to the township of Wellington, its successor or successors.” The lots are described as being in the late town, now city, of Wellington. At the date of this conveyance Wellington was a city of the third class, and a part of Wellington township. This action was commenced by the city of Wellington, a city of the second class, alleging that the city of Wellington was in the actual possession and occupancy of said property, and was the owner in fee-simple thereof; that the defendants each and all claimed to have an interest .therein, and that such claims constituted a cloud on the title of the city, etc. It ought to have been stated at the proper place, that the costs and expenses incurred in the purchase and improvement of these lots were contributed by the tax-payers of Wellington township as it was constituted on the 5th day of September, 1873. Each of the- defendants demurred to the petition of the city of Wellington, on the ground that it did not state facts sufficient to constitute a cause of action, because it did not show that the city was the owner of the property in controversy. These demurrers were sustained by the trial court, and the questions presented by them are here for review. I. Some preliminary questions were discussed by counsel. It was claimed that there was not attached to the petition in error any authenticated transcript containing the judgment or final order of the court, and hence, that the petition in error ought to be dismissed. The clerk of the district court of Sumner county attaches to the petition and exhibits, to the bond for costs, to the prsecipe, to the summons, to the demurrers, and to the judgment, a separate certificate under the seal of the court, stating that each of these papers is a true, full and complete copy of the originals as they remain on file in his office in the foregoing case, the same .being duly entitled. The better and the usual practice is for the clerk to attach at the end of a transcript a general certificate to the effect that the foregoing is a true, full and complete transcript of the pleadings and judgment; but, as each pleading and the judgment are properly certified, we have no doubt but that in this particular ease, being a judgment on demurrer, and the only necessary papers being the pleadings and judgment showing the exception to the ruling, the transcript is sufficient to review the ruling below. It is also insisted that, as the record presented shows only that this case came on for trial before Hon. R. B. Shepard, a member of the bar-of this court, and does not show that he was selected in any manner known to the law as a judge pro tem. for the trial of this cause, this court will not review the proceedings. The record does recite this: “And the hearing and trial heretofore having been submitted to the said R. B. Shepard, Esq., by and with the consent of all of said parties, plaintiff and defendants, who appeared herein by their respective counsel.” Now, this is one of the modes prescribed by statute for the selection of a pro tem. judge. (Gen. Stab of 1889, ¶ 1966.) It is true that the record does not designate the attorney selected to try the case as judge pro tem., but it does recite that he is a member of the bar of that court, and that he was agreed upon to try the cause by all the parties in interest, and that the regular judge was disqualified to try the case because he had been of counsel. Apart from all this, no question was raised in the court below as to the power or authority of the judge pro tem. to hear the case, but all parties consented thereto, and therefore such question cannot be raised for the first time in this court. This is expressly decided in the case of Higby v. Ayres, 14 Kas. 331, and this is a stronger case, because this record affirmatively shows that the judge of the district court of Sumner county was disqualified. II. The principal question to be determined by the demurrers filed to the petition in this case is, When territory is detached from an original municipal township to aid in the formation of four additional townships, and when a city of the second class is created within the remaining limits of the original township, how do these detachments and this creation affect the title to lots and a township hall erected thereon, owned by the original municipality, and built by taxes levied on the property of the original township, but situated within the limits of such city of the second class, and within its limits when it was a city of the third class, and a part of the original municipality? So far as the briefs of counsel and our own research are concerned, there is no statutory rule to determine this controversy, unless it be chapter 62 of the Laws of 1889. In the case of Laramie Co. v. Albany Co., 92 U. S. 307, de cided in 1875, Mr. Justice Clifford, speaking for a unanimous court, says: “Sixty-five years before the decree under review was rendered, a case was presented to the supreme court of Massachusetts, sitting in Maine, which involved the same principle as that which arises in the case before the court. Learned counsel were employed on both sides, and Parsons was chief justice of the court, and delivered the opinion. First he adverted to the rights and privileges, obligations and duties of a town, and then proceeded to say: ‘ If a part of its territory and inhabitants are separated from it by annexation to another, or by the erection of a new corporation, the former corporation still retains all its property, powers, rights, privileges, and remains subject to all its obligations and duties, unless some new provision should be made by the act authorizing the separation/ (Windham v. Portland, 4 Mass. 389.) Decisions to the same effect have been made since that time in nearly all the states in the union where such municipal subdivisions are known, until the reported cases have become quite too numerous for citation. Nor are such citations necessary, as they are all one way, showing that the principle is one of universal application. Concede its correctness, and it follows that the old town, unless the legislature otherwise provides, continues to be seized of all its lands held in a proprietary right, continues to be the sole owner of all its personal property, is entitled to all its rights of action, is bound by all its contracts, and is subject to all the duties and obligations it owed before the act was passed effecting the separation.” This was said in a case wherein Laramie county brought an action against Albany and Carbon counties to compel them to contribute their just proportion to an indebtedness incurred when these two counties were a part of Laramie county, they having been established wholly out of territory included within the limits of Laramie county. This case is cited with approbation by this court in the case of Comm’rs of Sedgwick Co. v. Bunker, 16 Kas. 498, Mr. Justice Valentine saying: “Now in all cases, as we understand the law, where the legislature divides a county without making any legal provision for a division or apportionment of the debts or property thereof, the old county pays all the debts and takes all the property.” ■ Territory was detached from the township of Wellington as follows: On the 24th day of .February, 1874, the north half of congressional township No. 33, range 1 west, was detached and made a part of Jackson township. On February 22, 1876, the south half of township 31, range 1 west, was detached and made a part of the township of Seventy-six. On January 3, 1876, the east half of township No. 32, range 2 west, was detached and made a part of the township of Osborn. On the 13th day of August, 1879, the northeast quarter of township 33, range 2 west, was detached and made a part of the township of Downs. At and during the times' when these various parts of territory were detached from the township of Wellington, and aided in the formation of other townships, § 3 of chapter 142, Laws of 1873 was in force, which provided: “All real estate heretofore and hereafter detached by a change of boundary lines from any county or township wherein any bonds shall have been previous to such change of boundary lines legally authorized and issued by a vote of the electors of such county or township, shall be subject to taxation for the payment of such bonds and the interest thereon in the same manner as though no such change of boundary lines had been made.” This is still the law. (See ¶439, Gen. Stat. of 1889.) It is alleged in the petition in this case, and of course admitted by the demurrers, that the money for the purchase of the lots and for the erection of the town-hall was raised by taxation; and it is not alleged or shown that any bonds have been issued or were now outstanding. Under the cases of Comm’rs of Sedgwick Co. v. Bunker, 16 Kas. 498; Chandler v. Reynolds 19 id. 249; Craft v. Lofinck, 34 id. 369, this section of chapter 142 of the Laws of 1873 only applies in cases where bonds have been legally issued before a change of county or township boundaries. The fair implication arising from this legislative action is that, when a part of a township is detached, it is relieved of all obligations of the municipality from which it is taken, except in the simple instance of bonds having been legally issued when it was a part of that township. No bonds having been issued by Wellington township, the principle that, unless by the act authorizing sepa ration some division of property is declared, the original municipality retains all the property, applies in this case in favor of Wellington township, and the townships of Seventy-six, Osborn, Downs and Jackson have no interest in or claim to any part of the lots and township hall in controversy. Counsel for the defendants in error insist that, as this is an equitable action, the plaintiff in error is in no attitude to claim relief, because, among other reasons, the property is public property, and their clients have equities in it to the extent of their contributions to the purchase and improvements thereof. A very brief statement will dissipate these foggy mists of error. Counsel represent separate and distinct’municipalities, and the petition shows that small portions of the territory embraced within the original tbwnship of Wellington were at various times annexed to the townships of Seventy-six, Osborn, Downs, and Jackson. Possibly these townships were created after this transaction; but be that as it may, it is perfectly clear that by no possibilities could these organizations, as public corporations, have any equitable claims on the property in controversy, because some of the land and a few of the people of their respective townships at one time were situate and resided within the limits of Wellington township, and contributed by taxation to the improvement of it. It is true that the people in these townships who paid a part of the taxes might by such payment have acquired a moral obligation against the original township, which by legislative action might have Opened into a legal demand, but it would accrue to these people, and not to the municipalities. So that neither a fair application of legal principles nor a generous appeal to equitable considerations gives these municipalities any claim or interest in the property. This conclusion is abundantly sustained by numerous adjudicated cases, and, while there may be found a few cases that seem to hold a contrary doctrine, the very great weight of authority establishes the principle applied. See, among other cases, those of Town of Depere v. Town of Bellevue, 31 Wis. 120; Town of Milwaukee v. City of Milwaukee, 12 id. 93; Crawford Co. v. Iowa Co., 2 Chand. 14; Hampshire v. Franklin, 16 Mass. 76; North Yarmouth v. Skillings, 45 Me. 133; Veazie v. Howland, 47 id. 127. III. This narrows the controversy down to the city of Wellington and the township of Wellington, and invokes the application of other principles. It will be observed that at the time the town of Wellington became a city of the second class, it was composed of territory that had been exclusively within the boundaries of the township of Wellington, after certain portions of that township had been annexed to the other townships, and constituted a part of Wellington township. This inquiry arises on this state of facts: When a city of the second class is created out of the territory of a municipal township, and the public property of the township is situated within the boundaries of such city, which municipality owns the property ? In the absence of legislative regulation, the presumption is that the legislature did not consider that any regulation was necessary. (Mount Pleasant v. Beckwith, 100 U. S. 514.) It is said in this case: “Where there is no legislation on the subject, the old corporation owns all the public property within its limits, and is responsible for all debts of the corporation contracted before the separation, nor has the new municipality any claim to any portion of the public property except what falls within its boundaries, and to that the old corporation has no claim whatever,” and cites in support the cases of Laramie Co. v. Albany Co., 92 U. S. 307; and Bristol v. New Chester, 3 N. H. 524. It is further said, in the case of Mount Pleasant v. Beckwith, supra— “That it is not a case where the legislature creates a new town out of the territory of an old one, without making any provision for the payment of the debts antecedently contracted, as in that case it is settled law that the old corporation retains all the public property, not included within the limits of the new municipality, and is liable for all the debts contracted by it before the separation took place.” The case of School Township of Allen v. School Town of Macy, 109 Ind. 559, was one in which prior to the incorporation of the town of Macy, it constituted, a part of the township of Allen, and constituted a greater part of School District No. 1 in that township. The school township had purchased a tract of land, received a conveyance therefor, and had erected a school-house thereon. When the town of Macy was incorporated, this land, and the school-house thereon, which had been used exclusively for school purposes, were situated wholly within the territorial limits of said town of Macy; but the school township of Allen was claiming the exclusive control and ownership of said school-house, and the land upon which it was situated, asserting the right to sell and dispose of it without the consent of the school town of Macy. The school town of Macy commenced an action to quiet its title to said land and school-house, and to require the township to convey said tract of land to it for school purposes. In Indiana an incorporated town is as much a distinct municipal corporation for school purposes as is a civil township. The court say, in affirming a decree of the court below in favor of the town of Macy: “There cannot be, at the same time, within the same territory, two distinct municipal corporations exercising the same powers, jurisdictions, and privileges; [citing Dillon on Municipal Corporations, 3d ed., § 184.] When the town of Macy, was incorporated and was organized as a school corporation, it became the successor of the school township of Allen in all educational matters connected with the public schools within its territorial limits, and, as a necessary consequence, the jurisdiction which said school township had theretofore exercised was thereafter entirely excluded. It was held in the case of School District No. 1 v. Richardson, 23 Pick. 62, that when a township abolishes its existing school districts and forms new ones, the title to the school-houses then in existence vests in the new districts in which they happen to fall. This case was followed in School District No. 6 v. Tapley, 83 Mass. 49, and this authority has been expressly or impliedly recognized in Carson v. The State, 27 Ind. 465; The State, ex rel., v. Shields, 56 Ind. 521; and School Town of Leesburg v. Plain School Township, 86 Ind. 582. These conclusions were in accordance with the general principles governing the use, occupation and control of public property situate within the territory which has been transferred to a new governmental jurisdiction.” In the ease of City of Lynn v. Inhabitants of Nahant, 113 Mass. 433, it is expressly decided that lands held by a town by virtue of being within its municipal boundaries, necessarily, upon the division of the town by the general court, were held in like manner by the town within whose limits they fell upon division, unless the general court expressly provided otherwise. One of the earliest, and possibly the earliest, cases which directly involved this question is North Hempstead v. Hempstead, 2 Wend. 110. The town of North Hempstead was created out of the territory of the town of Hempstead, which owned certain land, and the question in dispute was as to the ownership of that part of the land that fell within the limits of the new town of North Hempstead, and the unanimous opinion of the court of errors was that the new town was entitled to hold in severalty the public property that fell within its limits. We have carefully examined all the cases cited in both briefs, and some in addition thereto. A very great majority of these cases are devoted to a discussion and application of the principle that when a part of a township is annexed to another, or is detached to form a new township, the old municipality retains the property, and is liable for the debts, unless other provision is made by the act of separation. Very few reported cases adjudicate the question as to which municipality is entitled to the public property that falls within a city created out of a township, because, as a rule, the legislature has made provision for an equitable division. The strongest case that can be found in the books in favor of the defendant in error (the township of Wellington) is that of Parish of West Carroll v. Gaddis, 34 La. Ann. 928; but, like many of the other cases, the point embraced in the controversy was not precisely the same as here, but the general observations of the court in the course of the argument were to the effect that the township of Wellington would retain all the property. We have examined the cases of Board of Health v. East Saginaw, 45 Mich. 257, and find it very largely controlled by statutory considerations. The case of People v. Trustees, 86 Ill. 613, is one in which the president of the board of education of the city of Chicago claimed that, because the boundaries of the city had been extended so as to include a small portion of a country school district, they were entitled to a part of the revenues arising from school section No. 16, that remained wholly within the limits of the'country school district, and his claim was denied. The later case of McGurn v. Board of Education, 24 N. E. Rep. 529, (decided in May, 1890,) turns entirely upon statutory provisions. It may be fairly said that, in every case in which the question was a controlling one, and it was free from statutory control, it has been held that in cases of a new and different municipality carved out of a municipal township, the public property falling within its limits belongs to the new. IV. We take note of the distinction made in the brief of counsel for the township of Wellington between the governmental character of a municipality and its proprietary powers. In its governmental character, the corporation is made by the state a local depository of certain limited and prescribed political powers, to be exercised for the public good of the state rather than for itself. In its proprietary character, the theory is that the powers are not supposed to be conferred chiefly from considerations connected with the government of the state at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual. This distinction is well founded, and upon it is based the doctrine that, as to property acquired under such powers, and as to contracts with reference thereto, the corporation is not to be regarded as a public one to the extent that the legislative power over it with reference to such property is omnipotent. In the long list of authorities cited by Judge Dillon, in his work on Municipal Corporations, sustaining this distinction, we do not find that it exists any where, except in cities, and from its nature it must only apply to large cities, and in these it seems to be confined to property held by cities not absolutely necessary for the transaction of the public business, but for revenue, improvement, and development, such as bridges, wharfs, and structures of that character. It seems clear to us that the property in question was used solely and distinctly for a public purpose, and was a necessity municipal existence, because it had to have a place at which to transact the public business, and was not of that character that fell within the proprietary power of the township. Neither can it be claimed that the township of Wellington held this property in trust for sPecific uses- But the conveyance by Davidson t° the township contained a limitation of the manner in which the property should be used. (Curtis v. Board of Education, 43 Kas. 138.) Neither do we think that the possession and use of the lots and the building thereon by the city of Wellington for public purposes would depart from the express purpose of the conveyance so as to create any forfeiture of the estate. A city of the second class, for its mayor, common council, police judge, marshal and other officers, has more use for a town-hall than a township can have, and the use by both is so similar that it does not appear that there is any substantial departure from the literal terms of the grant. In fact the conveyance expressly provides for the same use, both by the township and its successor, and, as we have said, the use can only differ in degree and not in character. V. There is another question arising on the facts in this case, that seems to be more controlling in its operation than the one just discussed. The coveyance made by Davidson to the township of Wellington was of lots in the town of Wellington, which at that time was a city of the third class. This conveyance was made for the consideration “of $1, and the enhanced value of lots that are owned by the grantor that lie in the vicinity of the herein-granted lots.” The conveyance was made to the township of Wellington, “its successor or successors,” and it is made for the express purpose of erecting a township hall. The city of Wellington, as a city of the second class, has become the successor by operation of law of all the territory embraced within the boundaries of the city. This succession embraces the exercise of all the powers of taxation, even for county purposes, of local legislative powers which are granted to such cities, for all educational purposes, for election purposes, and for all local administrative powers known to the law. We have already seen by a quotation from Dillon on Municipal Corporations, and it is a philosophical proposition, that there cannot be, at the same time, within the same territory, two distinct municipal corporations exercising the same power and jurisdiction. Hence the control of these lots must vest entirely in one or the other of these municipalities. Beyond all question these lots and the buildings thereon are no longer a part or parcel of the territory of Wellington township, and are a part of the territory of the .city of Wellington. Has the township of Wellington the legal attribute of owning real estate, even for a public purpose, outside of its territorial limits? It will not be claimed that such power exists except by express legislative enactment. It would seem that the city of Wellington, as successor of Wellington township, became invested by the express terms of the conveyance with the legal title to the lots in dispute; that at the time of the conveyance such succession was in the contemplation of the grantor, and that the words “successor or successors” were used in anticipation that Wellington, then a city of the third class, and a part of the township, would eventually grow into such proportions that its legal identity would be separated from the township, and by the operation of the natural laws of growth and development it would emerge into a distinct and separate municipality. There can be no question but that the city of Wellington is the legal successor, so far as the territory within its limits is concerned, of the township of Wellington. (Curtis v. Board of Education, 43 Kas. 138.) As such successor, it takes the lots and the buildings thereon, subject to the limitation in the manner of their use. "VI. In the recent case of Board of Education v. School District, 45 Kas. 560, some expressions in the opinion are in conflict with this decision. That was a purely equitable action, its object being to restrain the officers of School District No. 7 from any interference with the control by the board of the school-house. It seemed to us then that the cases of Heizer v. Yohn, 37 Ind. 415, and Reckert v. City of Peru, 60 id. 473, were in point and were controlling. It will be noticed by a critical examination of these cases that the decisions were largely controlled by the fact that only a portion of the school district was taken into the city of Indianapolis in the one case, and into the city of Peru in the other; and hence the court concluded that it would not be equitable to grant the, relief prayed for. The distinction between these cases and that of School Township of Allen v. Town of Macy, 109 Ind. 559, is clearly stated in the latter case, and, as we think, it is just the difference between Board of Education v. School District, supra, and the case we are now considering. There is this marked difference between the cases: This is an action to quiet title under the code by a party who for many years has been in the exclusive possession of the property, claiming to be the holder of the legal title. The Wyandotte county case was one in which a party claimed to be entitled to possession by virtue of an extension of the boundaries of the city, but whose right of possession was denied, and it was sought to settle the title by injunction; and the universal rule is, that to prevent interference of possession and control by injunction, the party applying for the provisional remedy must hold the title. The real question in that case was, Who owned the school-house and the ground upon which it was built? and this question ought not to be determined on a motion to vacate a temporary injunction. Be that as it may, we are now of the opinion that the city of Wellington is the legal successor of the township of Wellington, so far as this property is concerned, both by operation of law, by the express terms , r , ,, ., ¿ or the conveyance, by the necessity oí a municipality having jurisdiction of property exclusively within its limits, and by the fact that no power is given to townships' by the statutes of the state to hold real estate outside of its limits, as it cannot be used when so situated for any public purpose of the township, and it cannot be subjected to the free and unrestrained possession and control of the authorities of the township without collisions with the authority of the city. • VII. Attention is called to an act of the legislature, being chapter 62 of the Laws of 1889, which it is claimed disposes of the interests of these various municipalities on equitable principles. This act reads as follows: “An Act to provide for the apportionment of public property in Sumner county, Kansas, by a sale of lots 11 and 12, in block 53, in Wellington, Kansas, and apportion the proceeds of the same among the townships of Seventy-six, Downs, Osborn, Jackson, Wellington, and the city of Wellington, in said county. “PREAMBLE. “ Whereas, That in 1873 the present city of Wellington, the present townships of Wellington, Seventy-six, Osborn, Downs and Jackson were one single township, known as Wellington township, in Sumner county, Kansas; and “ Whereas, While said city and townships so composed one township, there, was purchased by said township lots 11 and 12, in block 53, in Wellington, Sumner county, Kansas, and erected upon the same, at a cost of $10,829.79, a township hall, now known as the old court-house; and “ Whereas, Since the erection of said building the city of Wellington has been organized into a city of the second class, and then [there] has been detached from the territory of the original township of Wellington the territory now making the townships of Seventy-six, Osborn, Downs, Jackson, and the city of Wellington; and “ Whereas, The proportional part of said cost of erecting the said township hall which was contributed by the present city of Wellington was $4,928.83; by the present township of Seventy-six, was $814.76; by the present township of Osborn, was $625.10; by the present township of Downs, was $251; by the present township of Jackson, was $595.99; by the present township of Wellington, was $3,614.11; and “ Whereas, There still remains in the treasury of the township of Wellington of said sum contributed toward the erection of said building the sum of $678.69; and “ Whereas, The legal title to said building and lots is in the township of Wellington: therefore, “Section 1. Be it enacted by the legislature of Kansas, That the sheriff of Sumner county, Kansas, shall within thirty days after this act takes effect, proceed to have advertised, appraised and sold, in the same manner as is now provided by law for selling real estate under order of sale from the district court, lots 11 and 12, in block 53, in Wellington, Sumner county, Kansas, and make a report of said sale to the district court of said county and state in like mariner as is now provided by law in sales of real estate as far as applicable. “Sec. 2. It shall be the duty of said district court to confirm the sale mentioned in this act if the same is made in accordance with this act, and order the sheriff of Sumner courity, Kansas, upon the payment into court the purchase-money, a deed to the purchaser, which deed shall be in all respects binding, and confer upon the purchaser a full and complete title in fee-simple to said lots 11 and 12, in block 53, in Wellington, Kansas. “Sec. 3. The district judge of said court shall, by an order under his hand, direct the clerk of the district court to disburse the sum realized from the sale of the lots named in this act among the following-named municipalities in Sumner county, Kansas, and in the proportion as follows: To the township of Seventy-six, that per cent, of the proceeds of sale that $814.76 is of $10,829.79; to the township of Osborn, that per centum of the proceeds of the sale that $625.10 is of $10,829.79; to the township of Downs, that per centum of the proceeds of sale that $251 is of $10,829.79; to the township of Wellington, that per centum of the proceeds of sale that $3,614 is of $10,829.79; to the township of Jackson, that per centum of the proceeds of sale that $595.99 is of $10,829.79; and to the city of Wellington, that per cent, of the proceeds of sale that $4,928.83 is of $10,829.79: Provided, That shall said judge find that any part of the moneys contributed toward the erection of the building mentioned in this act has not been disbursed by the township of Wellington, then the sum so found to remain with said township shall be deducted from said township pro rata. “ Sec. 4. The purchaser of said lots shall have all unpaid rents, and is hereby empowered to maintain an action in any court of competent jurisdiction for the same. “Sec. 5. This act shall take effect and be in force from and after its publication in the official state paper.” Discarding the preamble, and considering the body of the act only, it may be at first said that it is doubtful whether the legislature can decide a case pending in the courts, and if, when there is a controversy about the title to real estate, the legislative branch of the state government can declare the title to be vested in one or the other of the litigants. In the second place, if force and effect are given to this act of the legislature, the express purpose of the conveyance by Davidson to the township and its successor is not only defeated, but compliance with its terms is rendered impossible. As we have remarked elsewhere, the manner of the use of the property is expressly limited by the language- used in the deed of conveyance, and the absolute sale of the property as directed by this act of the legislature is in violation of that use or manner of use. This act provides that the property shall be sold, and that a sheriff’s deed shall be made to the purchaser that will vest in him the absolute fee-simple title to the same. This is not a proper exercise of legislative power, in any view, and cannot have the effect to make any final disposition of this property contrary to and in violation of the avowed purpose and express object of the grant. It follows from all these considerations that we are constrained to recommend that the judgment of the district court be reversed, and the cause remanded, with -instructions to overrule the demurrers. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Green, C.: R. J. Berkley sued J. E. Bebb, sheriff of Decatur county, in replevin, to recover a stock of goods claimed by her under a chattel mortgage executed by J. M. Berkley, her husband, and P. A. Kahnan, doing business under the firm-name of Berkley & Kahnan, and P. A. Kahnan & Co., upon a stock of boots, shoes, rubber goods, tools, sewing machines, fixtures and furniture, in a building known as the “blue front,” in Oberlin, given to secure the payment of $3,500, and dated and filed for record on the 27th day of December, 1887. Subsequently the stock was levied upon by the sheriff for certain execution and attachment creditors of Berkley & Kahnan, and before the trial commenced the creditors were substituted for the sheriff, as defendants. The action was tried by the court on the 27th day of April, 1888, in Decatur county, and resulted in a general finding and judgment for the defendants; and the plaintiff in error brings the case here, claiming error. It is insisted that there was no evidence to support the findings and judgment of the trial court; that there was no fraud shown in the execution of the chattel mortgage by J. M. Berkley and P. A. Kahnan, and that there was an existing and valid debt to support the mortgage. It seems from the evidence that J. M. Berkley had executed a note to his wife for the sum of $2,190, on the 30th day of March, 1875, and'that this money came from her father’s estate; that on the 15th day of December, 1886, J. M. Berkley executed another note for $2,500 in place of the other note, which had been mislaid, and delivered the same to his wife; and that he afterward gave his wife a note for $1,000, which had been executed by P. A. Kahnan to him on the 1st day of June, 1887, for money that the plaintiff had given her husband, and he had loaned it to Kahnan to go into business with him. This money also came from her father’s estate. This last note had a credit of $263, on September 1, 1887. According to the plaintiff’s testimony, the mortgage was given to secure the payment of these two notes. We do not know upon what theory the court below decided this case, and have not been furnished with a brief upon the part of the defendants in error, and, hence, are not advised as to their position in regard to this transaction. It is obvious, from the examination of the evidence which we have made, that there was a bona fide and existing indebtedness from Berkley and Kahnan to the plaintiff. Now, it would seem that if such indebtedness existed at the time the chattel mortgage was executed, the firm would have the right to secure the plaintiff. This court has said: “The weight of authority seems to be that mere insolvency, where no actual fraud intervenes, will not deprive the partners of their legal control over the property, and of the right to dispose of the same as they may choose; and, where the separate creditor purchases from the firm in good faith, and the individual indebtedness is a fair price for the property purchased, such purchase cannot of itself be held fraudulent as against the general creditors of the firm.” (Woodmansie v. Holcomb, 34 Kas., and authorities there cited.) While the relation existing between the parties called for'a more critical examination of the dealings between them than if two of the parties had not been husband and wife, still, if the evidence clearly established an existing and bona fide debt to the wife, she would have the same right as any other individual creditor to have her debt secured. The debtors would have the undoubted legal right to prefer her as a creditor, even if the giving of the security would have the effect to consume the property thus pledged in satisfaction of her debt. (Monroe v. May, 9 Kas. 473; Kennedy v. Powell, 34 id. 22; Chapman v. Summerfield, 36 id. 610.) We recommend a reversal of the judgment. By the Court: It is so ordered. All the Justices concurring.	[ -14, 104, -72, -50, -104, -32, 41, -102, 99, -127, -79, 119, -7, -58, 9, 45, 112, 13, 113, 104, -60, -93, 23, 99, -46, 51, -103, 93, -80, -52, -92, -41, 77, 48, -22, 93, 71, -48, -59, 86, -54, -124, -69, 68, -35, 64, 52, -69, 37, 8, 113, -18, -9, 41, 61, 71, 73, 42, -17, -66, -48, -8, -70, 4, 95, 22, -111, 118, -104, 7, -40, 30, -128, 53, -128, -24, 112, -90, -26, 84, 1, 11, 9, 102, 38, 16, 5, -17, -8, -100, 47, -10, -97, -89, -111, 120, 75, 41, -66, -99, 127, 80, 7, -12, -94, -44, 25, 104, 3, -17, -108, -111, -113, 118, -104, 11, -25, -94, 51, 81, -115, 41, 85, 38, 50, 59, -114, -15 ]
Opinion by Strang, C.: November 7, 1887, the plaintiff company commenced its action in the district court of Crawford county, to foreclose a lien and recover the value of a certain windmill furnished and erected by the plaintiff upon the land of the defendant. The amount claimed was $221.28. Defendant alleges in his answer that the windmill entirely failed to perform the services for which it was erected, and that there was therefore no consideration for the claim sued on. Plaintiff" replied by a general denial. The case was tried by the court and a jury, which rendered a general verdict for the plaintiff for $98.44, and also made the following special findings of fact: “Ques. 1. Did the windmill placed on A. Buchanan’s premises work well for a period of 30 days after November 24, 1886 ? Ans. Did not. “Q. 2. Did the defendant, A. Buchanan, notify plaintiff, December 12, 1886, (or within 30 days from November 24, 1886,) that said windmill did not work well? A. Yes, he did. “Q. 3. If yea, did plaintiff fix, or cause to be fixed, said windmill after receiving said notice, and within 30 days after receiving said notice? A. Yes, it did. “Q. 4. Did plaintiff or its agents ‘remedy the defects’in said windmill within 30 days (if there were any such defects), so that said windmill would run well? A. Yes. “Q. 5. Was the order [set out in plaintiff’s petition] presented to defendant, A. Buchanan, prior to the commencement of this action by the plaintiff herein ? A. Yes. “Q. 6. Did the defendant, A. Buchanan, refuse to execute notes mentioned in plaintiff’s petition prior to the commencement of this action ? If so, why ? A. He did, because he claimed the mill did not work well. “ Q. 7. Did defendant, A. Buchanan, fail and neglect to execute said notes after he had been requested to do so by the plaintiff? If so, why? A. He did, because he claimed the mill would not work well. “Q. 8. Was said mill built according to the contract set out in plaintiff’s petition ? A. Yes, in its material construction.” The plaintiff, ignoring the general verdict, moved the court for judgment on the special verdict for the amount of its claim, as shown in its petition. The court sustained the motion for judgment on the findings, to the extent of the amount returned by the jury in the general verdict, which was a practical denial of the motion of the plaintiff. No motion for new trial was filed, but the plaintiff comes to this court and alleges that the court below erred in not sustaining its motion for the full amount of its claim. The defendant says this case cannot be reviewed by this court, because the plaintiff filed no motion for new trial. We think the error, if any there is, is apparent upon the face of the judgment, and therefore no motion for a new trial was necessary to a review of the question here. (Lender v. Caldwell, 4 Kas. 339; Dutton v. Hobson, 7 id. 196; Sawyer v. Bryson, 10 id. 199; Coburn v. Weed, 12 id. 146; Stapleton v. Orr, 43 id. 170.) Was there any error committed in this case by the trial court? The petition in the case alleged that the defendant was indebted to the plaintiff upon a written order for a windmill and fixtures, and the erection of the same, in the sum of $221.28. The defendant, in his answer, admitted the execution of the order sued on, but claimed the mill failed to perform the work for which it was erected, and was therefore useless and of no value. The jury in the general verdict, say ' they find the issues in favor of the plaintiff and against the defendant, and then assess the amount of the plaintiff’s recovery at $98.44. This verdict carries with it a finding in the plaintiff’s favor upon all questions at issue, except, perhaps, as to the value of the mill erected. The order admitted to have been executed by the defendant expressly fixes the value of the improvement, the mill and fixtures, at $221.28. It is true the order required the company, upon notice within 30 days of the failure of the mill to work well, to make it so work. The jury found specially that the mill was constructed in accordance with the terms of the contract, and that, while the mill did not work well at first, the company, upon notice, remedied the defects therein, after which it did work well. Considering the pleadings in the case and these findings together, we think the plaintiff was entitled to a judgment for the full amount of its claim, and that the refusal of the court to sustain the plaintiff’s motion for judgment in such amount was error. It is therefore recommended that the district court be directed to modify its judgment, so as to give the plaintiff judgment for the full amount of its claim, and a foreclosure of its lien. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Simpson, C.: The material facts in this case are substantially undisputed, and are that Long is the owner and has been in the possession of the land described in his petition for a long time prior to the commencement of this action, and to the building of the railroad by the plaintiff' in error, and is still the owner and in the possession and daily occupancy thereof; that into and over the land of Long there ran a natural water-course which was fed largely, and in excessive dry weather entirely, from and by a spring on the land of an adjoining proprietor. The land is a part of the homestead of Long, and the spring furnished a never-failing flow of water through said land. When the plaintiff in error constructed its road through the land of the adjoining proprietor, this spring, being located within its right-of-way, was filled up by the building of an embankment from 20 to 30 feet high, and probably 100 feet wide at its base, and by that means the flow of the water was completely shut off and diverted from the land of Long. The railroad does not run through Long’s land, but near his line. The spring was located about 200 feet from his laud. The water of the spring branch was also diverted from its natural channel by a ditch dug by the railroad company to Four-Mile creek, so that the water was completely diverted from the land of the defendant in error at all times and in any event by the filling up of the spring and the construction of the ditch. The railroad was constructed about one year before the commencement of this action. The court below granted Long a perpetual injunction against the plaintiffs in error from stopping and diverting the flow of the water through the spring branch, and from the spring thereon, from his land. The railroad companies bring the case here for review, and insist that the damages, both present and future, resulting from diverting the flow of the water, can be easily measured and assessed in one action; that the benefit to Long is small, and the inconvenience to the railroad companies great; that the courts will not issue a mandatory injunction unless a very great necessity exists, and for other reasons. A mandatory injunction is rarely granted. The case must be an extreme one to authorize its issue. It is universally restricted to cases where a court of law cannot grant adequate relief, or where full compensation cannot be made in damages. Is this such a case? It must be conceded that the defendant in error has the undoubted legal right to the use and enjoyment of the flow of the water in a natural water-course that runs through his land. This right is an immemorial one, and is protected by all courts. It may be conceded also, that the railroad company had the right to construct its track along or over this water-course, but in such construction it must observe the right of landed proprietors to the natural flow of the water. In this state there is a special statutory provision requiring a railroad company “ which constructs its track along or across a water-course, to restore the water-course to its former state, or to such a state as not necessarily to impair its usefulness.” (Gen. Stat. of 1889, ¶1207, § 47, subdiv. 4.) Long has the legal right to the uninterrupted flow of the water. The railroad company has the legal right to construct its road across the water-course on the condition that it does not impair the usefulness of the stream to Long. It is evident that the railroad company has deprived Long of his legal right, and at the same time violated the statutes of the state. Can the damages sustained by Long be estimated in dollars and cents, and he be awarded a sum sufficient to remunerate him for the past and compensate him for the future? It would be a perplexing question, and, with the varying conditions surrounding it, we doubt whether any just method or equitable admeasurement of his damages could be adopted so as to render exact justice. The railroad company by a culvert, probably by a pipe, or in some other comparatively inexpensive manner, can permit the water to flow from the spring into the natural channel of the stream. The railroad company says that Long has a larger natural water-course running through the same land, and hence we ought not to grant the writ. That might affect the question of the damages; but because Long has the right to the use and enjoyment of the two water-courses, it is no reason why the railroad company should divert one of them from his land. We are supported in the conclusion we reach by the cases of Webb v. Portland Mfg. Co., 3 Sumn. 189; Corning v. Troy &c. Factory, 40 N. Y. 191; Kerr, Inj. 330; High, Inj. 478. We recommend that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action brought in the district court of Allen county by Charles F. Merriman against the city of Iola, to recover upon certain interest coupons of certain negotiable bonds issued by the city of Iola, to pay for a subscription to the capital stock of the St. Louis, Ft. Scott & Wichita Railroad Company. The bonds and coupons were issued on July 1, 1881. They seem to be regular in form and are valid, provided the city of Iola had at the time any power to issue them. A recital is contained in each of the bonds, which reads as follows: “This bond is one of a series of 53, each for $500, of like tenor and effect, and are issued under and by virtue of an act entitled ‘An act to enable counties, townships and cities to aid in the construction of railroads, and to repeal section eight of chapter thirty-nine (39) of the Laws of 1874, approved February 25, 1876.’” The defendant answered, setting forth as a second defense to the plaintiff’s action the following, among other things: “ The defendant alleges that it is now and always has been a city of the third class and a part of the municipal township of Iola, in the county of Allen. . . • . And it further avers that said township of Iola, on or about the 11th day of August, 1880, voted and thereafter did issue to said railroad company the full amount of the bonds which it was authorized under the law to issue to any railroad corporation whatever, to wit, the sum of $33,500. . . . That the city council of said city of Iola did not, at the next city election after the passage by the legislature of the state of Kansas of an act entitled ‘An act to kmend section 4 of chapter 60 of the Laws of 1871, providing for the organization and government of cities of the third class; also, providing for the appointment of assessors for said cities/ — which act is chapter 55, on page 148, of the Laws of 1876 — nor did said city council at any other time, submit to the qualified voters of said city of Iola the question whether said city should be and constitute a separate township for all township purposes, and for voting and issuing bonds and subscribing stock for and in aid of building or constructing railroads.” The defendant also alleged in this second defense, that while the township of Iola had within its borders more than $150,-000 worth of real and personal property, and, indeed, more than double that amount, according to the assessed valuation thereof for each of several years prior to the issuing of the bonds and coupons in controversy, yet, according to the various assessments of the property within the city of Iola, the city never had that amount of property within its borders. The plaintiff demurred to this second defense, upon the ground that it did not state facts sufficient to constitute any defense to the plaintiff’s action, which demurrer was sustained by the court; and the defendant, as plaintiff in error, brings the case to this court for review. It is claimed that the city of Iola had no legal power or authority to issue the bonds and coupons in controversy: First? because no city of the third class has any power to issue bonds in aid of the construction of a railroad; and second, because the, city of Iola, which was a city of the third class, formed a part of the township of Iola, and that the township of Iola had already issued all the bonds which it as a township was authorized to issue under the statutes. The statutes under which the present bonds and coupons were issued, to wit, Laws of 1876, ch. 107, as amended in 1877 — Laws of 1877, eh. 142, 144, (Gen. Stat. of 1889, ¶¶ 1283, et seq.,) provide, among other things, that under certain terms and conditions, and within certain limitations, the electors of “ any county,” “ any municipal township,” or “ any incorporated city,” may vote at an election called for the purpose, upon “a proposition to subscribe to the capital stock of, or to loan the credit of such county, township or city to, any railroad company constructing or proposing to construct a railroad through or into such county, township, or city,” (§1,) and “if a majority of the qualified electors voting at such election shall vote for such subscription or loan, the board of county commissioners for and on behalf of such county or township, or the mayor and council for and on behalf of such city, shall order the county or city clerk, as the case may be, to make such subscription or loan in the name of such county, township or city, and shall cause such bonds, with coupons attached as may be required by the terms of said proposition, to be issued in the name of such county, township, or city, which bonds, when issued for such county or township, shall be signed by the chairman of the board of county commissioners, and attested by the county clerk under the seal of such county, and when issued for such city, shall be signed by the mayor, and attested by the city clerk under the seal of said city.” (Section 5, as amended in 1877 — Laws of 1877, ch. 144, § 1; Gen. Stat. of 1889, ¶ 1289.) Indeed, ample power is given by this statute to “any county,” “any municipal township,” or “any incorporated city,” under certain conditions to subscribe to the capital stock of “any railroad company,” and to issue its bonds in payment therefor, just as the city of Iola, which was and is an “incorporated city” of the third class, did in the present case; and such county, township or city certainly has such power unless some other statute can be found limiting the same. Counsel for the plaintiff in error refers to § 4 of the third-class-city act of 1871, as amended by § 1, chapter 55, of the Laws of 1876, as fur nishing such a limitation. That section, so far as it is applicable to the question now under consideration, and so far as it is necessary to quote it, reads as follows: “Municipal corporations regulated and.governed by this act shall be and remain a part of the corporate limits of the municipal township in which the same are situated tor all township purposes of electing justices of the peace, constables, for the purpose of building bridges and subscribing stock in aid of constructing railroads. All elections for justices of the peace and constables, and for issuing township bonds for building bridges and railroads, shall be held at such place as shall be prescribed for holding the township elections.” This section, so far as we have quoted it, is precisely the same as the section was in 1871, and up to the time when it was amended in 1876. Section 63 of the same third-class-city act, which section is still in force (Gen. Stat. of 1889, ¶ 988), reads as follows: “The council shall take all needful steps to protect the interests of the city, present or prospective, in any railroad leading from or toward the same; but they shall not take or subscribe any stock in any railroad, unless at least two-thirds of the electors of such city voting at a legal election vote in favor thereof.” And under § 35 of the same third-class-city act, which section is still in force (Gen. Stat. of 1889, ¶ 960), the city had and has the power to issue bonds for the payment of “any and all indebtedness” then existing or which might afterward be created against the city. Now it does not follow that because the city of Iola has remained and is a part of the corporate limits of the municipal township of Iola “for all township purposes,” or for various “township purposes,” including that of “subscribing stock in aid of constructing railroads,” “and for issuing township bonds for building bridges and railroads,” that the city might not, as a city and for itself, also subscribe for stock and issue its o.wn city bonds in aid of the construction of railroads. When a township subscription for stock is made, the stock will, of course, be taken in the name of the township, and township bonds will be issued there for, as is contemplated by the aforesaid §4 of the third-class-city act, and other statute's; and when stock is subscribed for by the city, the stock will be taken in the name of the city, and city bonds will be issued therefor, as was done in this present case. Every city, whether of the first, second, or third class, and every township in the state of Kansas, is included within the corporate limits of the county within which such city or township is situated, and is so included for all county purposes, and for the purpose of subscribing for stock and issuing bonds in aid of the construction of railroads; but still it will not be claimed that, because of such fact, and the particular fact that the county may subscribe for stock and issue its bonds therefor in aid of the construction of railroads, that the included city of the first or second class, or the included township, cannot also subscribe for stock and issue its own bonds for a like purpose; “provided, . . . in no case shall the total amount of county, township and city aid to any railroad company exceed $4,000 per mile for each mile of railroad constructed in said county.” (Laws of 1876, ch. 107, §1, as amended by the Laws of 1877, ch. 142, §1; amended in 1887, and $2,000 instead of $4,000 prescribed — Laws of 1887, ch. 183, §1; Gen. Stat.,of 1889, ¶ 1283.) There are .various limitations prescribed by the statutes upon the power of counties, townships and cities to subscribe to the capital stock of railroad companies, and to issue bonds in payment therefor, some as to amounts, and some with respect to other matters; but if the city of Iola had the power at all, under chapter 107 of the Laws of 1876, to subscribe for stock and to issue its bonds in aid of railroads, then it will not be claimed, under the facts of this case as far as they are now disclosed, that such city transcended its powers in making the present subscription and in issuing the present bonds. The order and judgment of the district court will be affirmed. All the Justices concurring.	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Per Curiam: This was an action brought in the district court of Sherman county by John C. Fletcher against the Sherman Center Town Company, upon a certain contract for the recovery of $200; and the plaintiff recovering that amount in the district court, with interest and costs, the Sherman Center Town Company then, as plaintiff in error, brought the case to this court for review. Every material question involved in this case, we think, has already, in effect, been decided by this court in the following cases, to wit: Town Co. v. Morris, 43 Kas. 282; same case, 23 Pac. Rep. 569; Town Co. v. Swigart, 43 Kas. 292; same case, 23 Pac. Rep. 569; Town Co. v. Russell, ante, p. 382. Upon the authority of the foregoing cases, the judgment of the court below will be affirmed.	[ -16, 106, -16, -99, 10, -32, 50, -104, 76, -95, -25, 83, -17, 0, 21, 125, -93, 121, 117, 123, -25, -78, 19, -61, -78, -77, -93, -41, -69, 93, -10, -42, 77, 52, -54, -107, 6, -118, -59, 28, -50, 7, 41, -19, -43, 32, 48, 59, 16, 11, 113, 14, -14, 44, 25, 75, 41, 60, 109, -7, 81, -79, -72, 15, 109, 7, -96, 70, -99, 67, -24, 62, -112, 49, -120, -24, 123, -74, -58, 84, 9, -71, -88, 98, 98, 3, 9, -51, -56, -104, 38, -6, -115, -90, -16, 24, -38, 66, -73, 31, 124, 18, -124, -6, -18, -107, 27, 36, 3, -113, -108, -75, -49, -4, -104, 23, -18, 23, 48, 84, -57, -70, 89, 2, 50, -101, -50, -74 ]
The opinion of the court was delivered by Johnston, J.: Martha A. Buffington brought two actions in the district court of Kingman county, one against William S. Grosvenor and the other against John G. Sears, to recover from each one-half of certain real property situate in King-man county. She was unsuccessful in each case, and is here complaining of the judgments that were given. The material facts of the cases are alike, and as they present but one question, they may be disposed of in a single opinion. Martha A. Buffington became the wife of Pierce Buffington in 1865, and continued in that relation until the time of his death, in 1884. He removed to Kansas five or six years before his death, and shortly after coming here he acquired the absolute legal title to the property in controversy. Afterward, he conveyed the property by warranty deeds to certain grantees, and the defendants, by subsequent conveyances, have acquired all the title obtained by such grantees. Martha A. Buffington did not join her husband in conveying the property, and has never executed a conveyance of the same to anyone, but she was never a resident or citizen of Kansas, and was never in the state prior to the death of husband. She now claims to be entitled to a one-half interest in the real estate of her husband of which she had made no conveyance; but the trial' court held, under the proviso of §8 of the act concerning descents and distributions, that, as she had not been a resident of Kansas, she never had any interest in the land .conveyed, and her signature or conveyance was unnecessary to a complete transfer of the land by her husband. The section referred to reads as follows: “One-half in value of all the real estate in which the hus band, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property in fee-simple upon the death of the husband, if she survives him: Provided, That the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance when the wife, at the time of the conveyance, is not or never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid.” (Gen. Stat. of 1889, ¶ 2599.) The plaintiff’s contention is, that the proviso of the section violates both the state and federal constitutions, in that it discriminates against the citizens of other states and aliens. It is first contended that the proviso falls within the inhibition of §17 of the bill of rights, which at the date of the conveyance of the land in controversy by Pierce Buffington read as follows: “No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property.” Does the proviso mentioned make “a distinction between citizens and aliens in reference to the purchase, enjoyment or descent of property?” We are inclined to think that it is a regulation of the manner of transferring property within the state, instead of a restriction upon its descent. However, that question is immaterial in this case, so far as §17 of the bill of rights is concerned. In no event can it be-said that there is a distinction between citizens and aliens in the present case, for it does not appear that the plaintiff is an alien within the proper meaning of that term. It is alleged by plaintiff, and conceded on the other side, that she is a citizen of the United States. The wife of a- citizen of Kansas, who resides in another state, cannot be regarded as an alien. Webster defines the word as, “One born out of the jurisdiction of the United States and not naturalized,” and Bouvier gives a like definition. Anderson’s Dictionary of Law defines an alien to be, “One born in a strange country, under obedience to a strange prince, or out of the liegance of the king.” The amendment to this constitutional provision, which was adopted in 1888,, shows that that is the sense in which it is used in our constitution. Section 17 of the bill of rights, as amended, reads as follows: “No distinction shall ever be made between citizens of the state of Kansas and the citizens of other states and territories of the United States in reference to the purchase, enjoyment or descent of property. The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law.” Before this amendment was adopted, citizens and aliens stood upon an equality with reference to the purchase, enjoyment and descent of real property, but by the amendment the people ordained that the restriction upon the legislature should be removed, and authorized such discriminating regulations against aliens in this respect as might be deemed wise. The use of the term “alien” in the amendment leaves no doubt of the sense in which the word is used, and furnishes an argument that it was used in the same sense in the original provision. We agree with counsel for plaintiff that the term “citizen,'” as used in the original provision, refers to citizens of the state of Kansas. Counsel who filed a brief by the . . n . . . , , permission ot the court as amicus cunee contend, that the term includes all citizens of the United States, but we are not inclined to agree with that view. We conclude, then, that §17 of the bill of rights had no application to this case. It is next contended that the proviso is repugnant to that provision of the federal constitution which ordains that “the citizens of each state shall be entitled to all the privileges and immunities of the several states,” and also violative of a like limitation in the fourteenth amendment. We think the proviso is not in conflict with either of these provisions. It makes no discrimination against the citizens of other states in respect to any of the privileges or immunities of general citizenship. The proviso, in connection with other statutes, furnishes a rule regulating the manner of the transfer and transmission of real property. Where a person owns the absolute title to land in Kansas, and his wife is a resident of the state, she must join in the conveyance; but when she is not a resident of Kansas, and therefore not subject to its laws, her signature and conveyance are unnecessary, and the husband alone may convey a good title. It is competent for the legislature of each state to declare the mode and manner by which real property situate within the state may be transferred by the husband or by the husband and wife, or by a judgment and process of court, so as to divest the husband or husband and wife of all estate or interest therein, and also to provide for the distribution of and the right of succession to the estate of deceased persons. “The power of the state to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated.” (United States v. Fox, 94 U. S. 315.) It is urged by the plaintiff that the wife is an heir, and as such is entitled to inherit one-half of her deceased husband’s property; but that the proviso discriminates against widows who reside outside of the state, and deprives them of the right which is accorded to a resident widow. The wife, strictly speaking, is not an heir of the husband, although she is generally spoken of as such; but still, if she is regarded as an heir, the non-resident widow is not deprived of any “privilege or immunity.” Under our statute, the property of the husband belongs exclusively to him, as the wife’s property is exclusively her own. Neither has any vested interest or control over the property of the other by virtue of the marriage relation. The wife has no estate in the land of the husband. It is a mere possibility, depending upon the death of the husband, or whether he has divested himself of the title prior to his death. If he survives her, no interest is taken by nor transmitted to her heirs. If she survives him, but before his death he conveys the land, or it has been sold on execution or other judicial sale, nothing remains for her to take, and she has been deprived of no right. If there was an attempt to convey by the husband alone, when his wife was a resident, the title would remain in her, because the manner of conveying land prescribed by statute had not been pursued; and if there was no judicial sale of the land and it was not necessary for the payment of. debts, a one-half interest would descend to her. In such a case, if she was a non-resident of the state, the conveyance by the husband alone would, under the rules prescribed for conveying, be sufficient to divest the title, and hence there would be nothing for her to inherit. It therefore appears that, if the conveyance is made in the manner prescribed by statute, there is nothing for either the resident or non-resident widow to inherit. There is really no discrimination between the resident and non-resident widow, for each'takes one-half of all the real property which her husband owned at the time of his death. When the husband’s land has been conveyed in accordance with law during his life, there is no descent to either, for there is nothing to descend. For reasons that were deemed sufficient, the legislature made the signature and conveyance of the non-resident wife unnecessary. The fact that the wife did not accompany her husband to Kansas, or had abandoned him and gone to another state, and may or may not have obtained a divorce elsewhere, thus leaving the status of the parties in doubt, and making it difficult to obtain a perfect transfer of land in many cases, may have been deemed sufficient reason for prescribing this rule of conveyance. The statute was enacted shortly after the admission of the state, and when it was rapidly increasing in population through immigration from many of the eastern states and also foreign countries, many coming without their wives and families; and possibly the rule was adopted to avoid inconvenience and deception in the transfer of real property. The “immunities” and “privileges” referred to in the federal constitution would not in any event include the claim made by the plaintiff. Those terms “ mean that all citizens of the United States shall have the right to acquire property and hold it, and this property shall be protected and secured by the laws of the state in the same manner as the property of the citizens of the state is protected ; that this property shall not be subject to any burdens or taxes not imposed on the property of citizens of the state.” (3 Am. & Eng. Encyc. of Law, 253. See, also, the cases there cited, and Corfield v. Coryell, 4 Wash. C. C. 380; McCready v. Virginia, 94 U. S. 391.) According to these authorities, many rights and privileges may be granted by a state, depending to some extent upon the residence of those to whom they are granted, without infringing upon this provision of the constitution. The privilege of voting, of holding office, or of acting as an administrator of estates, may be withheld until after persons have resided within the state a reasonable period of time without violating the constitution; and it is not violated by allowing an attachment against the property of a non-resident debtor without an undertaking, although such process cannot be obtained against a resident without an undertaking. (Head v. Daniels, 38 Kas. 1; Cooley, Const. Lim. [6th ed.], 490.) These and many other distinctions do not fall within the privileges and immunities of general citizenship. In treating upon this question, Judge Cooley says: “Although the precise meaning of ‘privileges’ and ‘immunities’ is not very clearly settled as yet, it appears to be conceded that the constitution secures in each state to the citizens of all the other states the right to remove to and carry on business therein; the right, by the usual modes, to acquire and hold property, and to protect and defend the same in the law; the right to the usual remedies for the collection of debts, and the enforcement of other personal rights; and the right to be exempt in property and person from taxes or burdens which the property or persons of citizens of the same state are not subject to. To this extent, at least, discriminations could not be made by state laws against them. But it is unquestionable that many other rights and privileges may be made, as they usually are, to depend upon actual residence, such as the right to vote, to have the benefit of exemption laws, to take fish in the waters of the state, and the like.” (Cooley, Const. Lim. [6th ed.], 490, also note on page 25.) There are several adjudicated cases in other states sustaining a provision of statute substantially similar to the proviso in question. In Pratt v. Tefft, 14 Mich. 191, it was decided that a woman residing out of the state at the time of her husband’s death was not entitled to lands lying within the state, owned by him, but which had been conveyed without her joining in the deed. Although the estate of dower has been abolished in Kansas, the contingent interest of the wife in the real property of the husband is similar to dower in its inchoate stage; at least, it is substantially similar, so far as the validity of such a provision as we are considering is concerned. In Ligare v. Semple, 32 Mich. 438, it was again decided that— “A wife who is a non-resident of the state at the time the husband makes an absolute conveyance of lands, divesting himself entirely of his seizin and estate, has no right of dower under the statutes of this state in lands so conveyed.” The supreme court of Nebraska held that “where a husband conveys lands in this state while his wife is a non-resident thereof, she has no dower interest in the land thus conveyed.” (Atkins v. Atkins, 18 Neb. 474.) In Bennett v. Harms, 51 Wis. 251, a like provision of the statute was under consideration, and the point was directly made that it conflicted with the constitution of the United States by discriminating against non-resident citizens, but the validity of the statute is sustained in an elaborate opinion. A like question has been decided by the supreme court of the United States under a .law of Louisiana, which discriminated in favor of women who contracted marriage within the state, or who contracted marriage out of the state and afterward went there to live, and it was claimed to be in conflict with the provision of the federal constitution that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states;” but it was ruled, Judge Curtis delivering the opinion, that such discrimination had no connection with that clause of the constitution. (Connor v. Elliott, 18 How. 591.) Following these decisions, we conclude that the statute is not repugnant to the fe(jerax constitution; and if we are in error in this regard, the parties are entitled to have the decision reviewed in the supreme court of the United States. We find no error in the record, and therefore the judgment of the district court will be affirmed. All the Justices concurring.	[ -46, 107, -48, 29, 42, 100, 10, -104, 106, -79, 53, 95, -21, -102, 16, 125, 114, 47, 85, 105, -26, -77, 23, -127, 18, -13, -47, -35, 51, 92, -11, -42, 76, 40, -54, 85, 70, -53, 67, 28, -116, 1, 8, -60, -37, -32, 48, 107, 22, 11, 85, -82, -13, 43, 61, 67, 108, 42, -53, 37, 80, -72, -86, -123, 93, 6, 16, 35, -124, -93, 72, -82, -112, 21, 8, -20, 115, -90, -122, 116, 127, -103, 13, -26, 102, 1, -108, -17, -72, -120, 15, 114, -115, -25, -126, 88, 107, 3, -74, -99, 125, -108, 3, -4, -26, 12, 92, 108, 5, -113, -42, -79, 11, 60, -104, -125, -13, -125, 36, 97, -51, -94, 93, 70, 58, 27, -113, -72 ]
Opinion by Strang, C.: In this case the grand jury of Finney county, Kas., found an indictment against the defendant, J. "W. Gregory, charging him with the crime of perjury in taking the following oath, attached to an account against the county of Finney, in favor of the Garden Oity Sentinel: “County Voucher. — The county of Finney, in the State of Kansas, To the Garden City Sentinel, Dr. September 27, 1886. To publishing election proclamation, Kansas, Texas & S. W. Rly.................. $1,106 30 To publishing petition same................................ 444 75 $R551 05 “Statement. — Finney county, Kansas, ss. “ I do solemnly swear that I am the within-named claimant, and that I have had the means of knowing personally the facts therein set forth; that I have given credit to said county for all payments and offsets to which it is entitled; that the charges therein are the legal and ordinary charges for such services, dollar for dollar, and that the within account is just and correct, is due and unpaid. So help me God. J. W. Gregory. “Sworn to and subscribed before me, this 17th day of November, 1888. O. V. Folsom, County Clerk" Attached to said account and affidavit was a further itemized statement of the same account, and also copies of the proclamation and petition for the publication of which the account was rendered, with proof of their publication. When sworn to, the account was presented by the defendant to the county clerk, to be filed as a claim against said county of Finney. The indictment alleges that said statement so sworn to was not true; that an account for the same services had previously been presented to the board of county commissioners and allowed, and a warrant issued in payment therefor; that said charges were not the usual and ordinary charges for such services, but were greatly in excess of the usual and ordinary charges for such services; that one item of $444.75, a part of said account, was not a proper or legal charge against said county under any circumstances; that the defendant, in taking said oath, acted unlawfully, feloniously, willfully, and corruptly. A motion to quash the indictment was presented to the district court and overruled. Trial by the court and a jury was had, resulting in a conviction of the defendant. Motions for a new trial and in arrest of judgment were argued and overruled. These motions were heard and passed upon August 1, 1889. August 19, thereafter, a new motion for a new trial was heard by the same court and sustained. Then a second motion to quash the indictment was entertained by the court, and this time it too was sustained. The state appeals, and the question is, Does the indictment charge an offense? We think it does. Section 148 of the crimes act reads as follows: “Every person who shall willfully and corruptly swear, testify, or affirm falsely to any material matter, upon any oath or affirmation or declaration legally administered in any cause, matter, or proceeding, before any court, tribunal, public body or officer, shall be deemed guilty of perjury.” Counsel for defendant exhibit a good deal of industry and skill in the preparation of their brief in this court, but the result of their labor consists principally in technical objections to the indictment, with argument and citations in support of them, all of which is unsuited to the condition of things under our statutes. We have statutes providing for the presentation of claims against the counties of the state to the board of county commissioners oi" the respective counties for allowance and payment. Such statutes provide that claims so presented shall be accompanied by a statement that the charges therein are the legal and ordinary charges for the kind of services for which the claim is made; that credit has been given the county for all payments thereon, and for all offsets which the county has a right to recoup against the same; and that the account is just and correct, is due and unpaid. The statute also provides that this statement must be verified upon the oath of the claimant. The indictment charges, and counsel for defendant admit in their brief, that the defendant made out a claim against the county of Finney for services rendered the county, and attached thereto the statement required by law, and swore to the same before the clerk of the county, who is ex officio the clerk of the board of county commissioners, and filed said statement with said clerk, to be presented to the board of county commissioners, to be acted on by them when they should meet. We think, when this was done, if done willfully and corruptly, the crime of perjury was accomplished. All argument that the oath was not in a material matter, that it was not taken in a judicial proceeding-nor before a judicial tribunal, is unavailing in the presence of our statutes, which provide for the very thing to be done which was done, and also of § 148, above quoted, which provides that the oath may be taken before a public officer, and that if it is false and is made willfully and corruptly it shall constitute perjury. The matter in connection with which the oath was taken was a claim against the county for the sum of $1,551.05. Can it be said that a claim for such an amount against the county is not a material matter? Or, can it be said that the oath to such a claim is not material to the claim, when the statute expressly provides that the claim shall be verified by oath? But it is said by counsel in their brief that the matter of the claim and oath thereto are not material, because the statement of the claim which was sworn to shows upon its face that it was barred by the statute relating to the presentation of claims against counties. We do not think this relieves the defendant from the result of his conduct in making and swearing to the claim, but, if material in this connection at all, should operate rather as an aggravation of the offense, since it necessarily admits an attempt on the part of the defendant to collect a claim that counsel say the board of county commissioners is by statute expressly prohibited from paying. We think the information states an offense. It follows, therefore, that the court committed error in sustaining the motion to quash. It is recommended that the action of the court in quashing the indictment be reversed, and the cause remanded for further proceedings. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Simpson, C.: An information was filed against one F. Keifer, in the district court of Chautauqua county, charging that the defendant, on the 23d day of August, 1889^ unlawfully, willfully and maliciously made, composed, and circulated, against the appellant, S. Lowe, a certain false, malicious, defamatory and scandalous letter, writing, and communication, set forth in full in said information. A change of venue was taken to Elk county, and the case was tried in the district court of that county before a jury, and a verdict returned October 14, 1889, finding the defendant not guilty; that the prosecution was instituted without probable cause, and from malicious motives, and stated the name of the prosecuting witness to be S. Lowe. The defendant, Keifer, was discharged from custody without day. On the 17th day of October, 1890, the appellant, as prosecuting witness, filed a motion for a new trial, so far as the verdict related to him as a prosecuting witness, which was overruled. On the 18th day of October he filed a motion in arrest of judgment, and this was overruled. The distinct causes for a new trial and arrest of judgment were: First, That upon the trial had he had not been heard either in person or by his attorney in his own defense touching the matter in controversy, being neither plaintiff nor defendant in the action. Second, That the trial court erred in matters of law, permitting certain depositions to be read, and in certain instructions respecting the same. Third, Error in instruction respecting § 326, chapter 82, criminal procedure. Fourth, That the verdict is contrary to the law and the evidence in the case. Fifth,'That the court erred in its instructions respecting §275, chapter 31, General Statutes; that said section is unconstitutional and void. On motion for arrest of judgment, he claimed he had a right to be heard, and that he had a right to a separate trial, which he demands. The court pronounced judgment on the verdict that S. Lowe pay all costs of said action, taxed at $1,053.40; that he be committed to the jail of Elk county until such costs are paid, or until he executes a good and sufficient bond, with two or more sureties, in the sum of $2,500, to be approved by the sheriff of said county, conditioned that he pay all costs in said action within six months from the date of said judgment. At the time the judgment for costs was rendered, and the various rulings of the trial court were made, the appellant saved exceptions. A bill of exceptions was duly signed by the court and attested, and an appeal taken to this court. .Some of the questions discussed by the counsel for the appellant, both in his oral argument and his elaborate brief, have been decided adversely to his views. He claims that both § 275 of the crimes act and § 326 of .the code of criminal procedure are unconstitutional and void for a variety of reasons. I. We are met by a very serious question on the threshold of the consideration of this record, and that is whether this court can review the rulings and proceedings of the court below. We are asked to set aside the judgment of the court below against this appellant for costs, for the reason that the lower court committed many grievous errors of law at the trial, and because the statutes authorizing such a judgment for costs are unconstitutional and void. In the case of The State v. Zimmerman, 31 Kas. 85, which was a prosecution for criminal libel, the jury acquitted the defendant, and found that the prosecution was instituted without probable cause and from malicious motives. On motion of the defendant, the part of the verdict was set aside that found want of probable cause and malicious motives, and a judgment for costs was rendered against Leavenworth county. The state reserved the question of costs under § 283 of the criminal code, and appealed to this court. This court says: “In all prosecutions for libel, the jury have the right to determine, at their discretion, the law and the fact; and therefore the instructions of the court are not to bind the consciences of the jury, but only to inform their judgments. (Comp. Laws of 1879, p. 366, §275.) Under §326 of the criminal code, the jury trying the case exercised the right permitted by the statute of stating in their finding the name of the prosecutor,, and that the prosecution was instituted without probable cause and from malicious motives. The court had no power to set aside the verdict in such a case, and it was equally powerless to set aside a part thereof. Therefore, in the absence of such power, the order of the court was erroneous, and must be reversed.” Counsel for appellant criticise this decision, and very earnestly inquire “ Why the trial court had no power to set aside a part of the verdict?” The reason is an obvious one; it is because a statute of the state expressly gives the jury in such an action the right, power and discretion to determine the law and the fact for themselves. Counsel attack this provision of the statute, and say it is unconstitutional and void, but they forget that within their memory the practice in criminal cases in almost all, if not all, of the states was for the jury to pass upon the law and the facts. The force of another universal practice of courts everywhere ought to be adverted to, and that is, when a jury return a verdict of not guilty in a criminal case, the trial court has no power to set it aside, or modify it in any respect. These findings against the prose euting witness were a part of a verdict of a jury in a criminal case, wherein express power by statutory enactment is given a jury to determine both the law and the facts. The trial court has no power to interfere with that verdict in any prejudicial respect, and this court is as powerless as the court below. II. The constitutionality of the other statute has been upheld by this court in the case of In re Ebenhack, 17 Kas. 618, decided many years ago. III. It is not necessary for us to attempt a construction of §§ 252 and 326 of the criminal code, as there was no motion to re-tax the hosts filed in the court below, and the record discloses no ruling on that question. It is true that there is a statement made by the clerk, attached to the record, long after its filing in this court, showing that the full amount of costs accruing in the case is $1,585.90, and of this it is said that $1,181 are the costs of prosecution and $404.90 of the defense; but we are governed by the record, and that recites a judgment for costs against the prosecuting witness of $1,053.40. All that we can do in the present condition of the record, on the question of costs, is to recommend that the judgment for the amount of costs named therein be affirmed. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Strang, C.: This was an action on a promissory note for $131, alleged to have been given by the defendant below to the plaintiff below in final settlement of a contract for building a house. Action was begun before a justice of the peace. Defendant admitted the giving of the note, but claimed it was not given on final settlement of said contract, but was given before any settlement was had upon said contract, for the purpose of making a payment thereon. And the defendant below further claimed that when he came to look over his receipts for money paid on said contract, together with some offsets he had against it, he found he had overpaid the plaintiff, including the note sued on, in the sum of $21.50, and that the plaintiff below actually owed him, over and above the amount of the note sued on, the said sum of $21.50. Judgment was rendered by the justice in favor of the defendant below for the sum of $21.50 and costs. Plaintiff appealed to the district court, where the case was tried by the court and a jury at the June term, 1888, resulting in a verdict and judgment for the plaintiff below for the amount of his note, $138.20. Motion for new trial was overruled. Coates brings the case here for review. - The plaintiff in error first complains of the character of the impeaching testimony offered by the plaintiff below, and received in evidence in the case over his objection. He asserts that such' evidence was not competent; that the question put to the impeaching witnesses did not call for the general reputation of the defendant below as to truth and veracity. The question would have been better if the word “general” had been used in framing it, but the answers show that each of the several witnesses understood the question as calling for the general reputation of the defendant below. The answers of the several witnesses were much alike, except that some of them added that, in a matter in which Coates had a pecuniary interest, they would not believe him under oath. Each of the witnesses answered substantially as follows: “I am well acquainted with Coates’s reputation in this community for truth and veracity.” They speak of his reputation in the community. That means in the whole community, and is as general as reputation can be. “Reputation” is what is said of one; “'general reputation” is what is said of one by the people in general in the neighborhood or community where he resides, and where, therefore, the people are acquainted with him. We think the evidence sufficiently general in its character. Where the answers show that the questions are understood in a general sense by the witnesses, and the answers themselves are sufficiently general, the fact that the word “general” is omitted in framing the question will not render the evidence incompetent. . The plaintiff also alleges that impeaching evidence must be confined to the present character of the witness. Coates lived for many years in Cumminsville, which is now the twenty-fifth ward of Cincinnati, Ohio. He left there and came to Kansas City, Kas., and at the time of the trial had lived there a few months less than a year. The evidence complained of was as to his reputation at his old home, in Cincinnati; and it is objected that it was incompetent for the reason that such evidence must be confined to the present character of the witness ; and it is alleged that Coates had no present character at Cincinnati, because he left there several months before. We do not think this position of the plaintiff tenable. The evidence related to Coates’s character in the community and among the people where he had lived a long time, and from whom he had been absent but a few months. He had not lived in Kansas City long enough to have a reputation there, and if such evidence is needed, we think it proper to seek it from among his old neighbors, among whom he had lived until recently before the trial. If it could not be got there, it could not be got anywhere until he had lived in a new community long enough to have a reputation there. The fact that a person has moved away from a community in which he has lived a long time, when his change of residence is recent, does not render the evidence of his old neighbors as to his reputation incompetent. There is no arbitrary, iron-clad rule in relation to such evidence. It must depend largely upon the circumstances of the particular case. Sometimes it may be sought some distance away, both in point of time and space. The plaintiff also says such evidence must be confined to the reputation of the witness “in the neighborhood — his reputation among his neighbors.” That is exactly what was done in this case. The impeaching witnesses all lived in the same neighborhood in which Coates lived for years before moving to Kansas. We do not think any substantial error was committed in the admission of the impeaching testimony. The jury would have been justified in returning the verdict they did without any of the impeaching testimony. It is true Coates says he did not owe the note, “ that at the time he executed it, he supposed he owed Sulau the money, but that when he got home and looked up his receipts, he found he did not.” This was in Cincinnati; and yet when the first note came due it went to protest, and afterward he made the note sued on to take up the first. After he came to Kansas, he wrote back acknowledging the debt and promising to pay it. These facts are so inconsistent with the claim that he did not owe the note, that the jury were justified in rendering a verdict against him for the amount of the note on his own evidence, taken in connection with his former acts relating to the transaction. Complaint is made of the admission of the evidence of A. G. Cutler and Charles Stork, who testified in explanation of the written plans and specifications as part of the building contract. They gave no evidence by way of contradiction of anything in the plans and specifications. Their evidence was simply explanatory of the plans and specifications, and was exactly the same kind of evidence that was introduced by the defendant below, by the witness Martin. That the plans and specifications were ambiguous and were subject to explanation, is manifest from the fact that the witness Martin finally admitted he couldn’t tell from them how many gables were contemplated thereby. We see no error in connection with this complaint. It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ 48, 108, -80, 127, 10, 32, 42, -38, -3, -96, 55, 115, -23, -58, 16, 97, -11, 41, 81, 107, 69, -77, 23, 65, -14, -109, -13, 21, -79, -3, -28, 95, 76, 112, -64, 85, 103, -54, -91, -100, -114, -116, -88, -20, -33, -64, 48, 27, 16, 73, 117, -50, -13, 42, 24, 75, 105, 40, 123, 41, -64, -111, -98, -115, 123, 3, -109, 102, -100, 75, -56, 14, -112, 53, 1, -24, 123, -74, 6, 86, 41, -119, 8, 38, 98, -79, -27, -83, -104, -116, 47, -34, -113, -89, -112, 124, 11, 45, -73, -99, 124, 16, 7, 86, -8, 21, 29, 109, 11, -81, -42, -78, 63, -90, -98, -109, -1, -109, 20, 65, -57, -80, 85, 103, 121, -101, 13, -69 ]
The opinion of the court was delivered by Johnston, J.: The plaintiffs brought an action against L. W. Crowl, as sheriff, and W. W. Emmons, E. Walker, and A. Richards, as sureties on the official bond of Crowl, to recover damages for the seizure and detention of a stock of merchandise. In their petition, after setting forth the election of Sheriff Crowl, and the execution and acceptance of his official bond, they alleged that certain orders of attachment, issued from the district court of Pottawatomie county, directing the sheriff to attach the property of one T. J. Coverdale, were placed in the hands of the sheriff to be executed accord ing to law; but that, instead of levying upon the property of Coverdale, he wrongfully attached and took into his possession a stock of general merchandise which was the property of the plaintiffs, valued at about $5,000, and retained’ the possession of the same from the 20th day of September, 1886, until the 16th day of March, 1887. They allege that by reason of the unlawful seizure and detention of the goods, and the cost and expense of recovering the same, they were damaged in the sum of $5,000. The answer of the defendants was a general denial, except that Crowl was sheriff, and the other defendants were sureties on his official bond as such sheriff; and, for a second defense, alleged — “That on the 23d day of December, 1886, in the district court of Pottawatomie county, state of Kansas, said Ellis & Osborn, the plaintiffs herein, duly filed their petition against L. W. Crowl, one of the defendants herein, setting forth and alleging their right to the immediate possession of the stock of goods and merchandise mentioned and described in the plaintiff’s petition herein, and demanding a return thereof, and a judgment for the sum of $1,500 damages, alleged to have been sustained by reason of the detention; and such proceedings were thereupon had in said suit that said L. W. Crowl appeared and answered to the petition, and a final judgment was therein rendered; that in said action one of the questions litigated and decided was the amount of damage, if any, which the said plaintiffs had sustained by reason of the detention of the said goods by the said L. W. Crowl; that in and by a judgment and decree of said court it was adjudged and determined that the said plaintiffs were entitled to the return of the goods mentioned and described in said petition, and that in default thereof for their value therein stated, and that said plaintiffs also have and recover of and from said L. W. Crowl their costs herein, taxed at $-, which said judgment was fully satisfied and discharged by the return of said goods and chattels, and the full payment of said costs before the commencement of this action; that said plaintiffs utterly failed to recover a judgment for the damages alleged to have been sustained by them in their said petition, or any part thereof.” The plaintiffs demurred to the second count of the answer, for the reason that the facts therein stated did not constitute a defense. The demurrer was overruled by the court, and, the plaintiffs electing to stand on their demurrer, judgment was rendered in favor of the defendants for their costs. The only question involved is, whether the former adjudication in the replevin action against Crowl is a bar to this action brought by the same plaintiffs against him and the sureties on his official bond. This question the district court answered in the affirmative, and, we think, correctly. The plaintiffs had the choice of several remedies for the wrong that had been committed. They were entitled to damages for the wrongful taking and detention, and, among other remedies, had their action against the sheriff on his bond for the conversion of the property, and also the action of replevin to recover the property or its value, and all damages sustained for its wrongful seizure and detention; and they chose the latter. In that action, according to the allegations of the answer, they- not only asked for the recovery of the property attached, but they asked for the damages which they had sustained by reason of the seizure and detention. It is true, they did not recover damages in that action, but the right to damages was an issue in the case, and was necessarily tried and determined. The judgment in that case was satisfied before the commencement of this proceeding, and is conclusive upon the parties and their privies upon every question which, under the pleadings, was or might have been litigated and determined. In the former action the plaintiffs could have recovered full compensation for the loss sustained by the taking and detention of their property, and to as full a measure of damages as if they had first chosen the present remedy. (Bell v. Campbell, 17 Kas. 211.) In the case cited, the question of what was the proper measure of damages in a replevin case was under consideration, and Mr. Justice Valentine, who delivered the opinion, said: “In some cases, deterioration of the property from injury, neglect, etc., while wrongfully detained, must be considered as an element in the allowance of damages. In other cases, the decrease in the market value of the property must be taken into consideration. In other cases, perhaps few, gross malice, fraud and oppression may be taken into consideration for the purpose of giving exemplary damages. In other cases, the value of the use of the property must be taken into consideration for the purpose of giving compensatory damages. . . . And still in other cases, other damages than those above mentioned are sometimes allowed in actions of replevin. . . . Indeed, in every action of replevin, the plaintiff or the defendant, as the case may be, should be allowed to recover all the damages, not too remote, which he has actually sustained by reason of the wrongful detention of the property, in whatever way such damages may have resulted. Exact compensation for his loss is the true rule.” If plaintiffs had first instituted this action instead of replevin, they could have had no more than “exact compensation” for the injury suffered. The issue in this case, so far as damages for detention is concerned, is substantially the same as in the former. The same elements of damages are to be considered, and substantially the same proof would be required to sustain the issue in. either case. It is claimed that there is not the requisite identity of parties to constitute the former adjudication a bar to the present action; and this for the reason that the replevin action was brought against the sheriff only, while the present action is against him and his sureties. The determination of any issue or fact by a court of competent jurisdiction is conclusive upon both the parties and their privies. If the sheriff can avail himself of the bar of the former adjudication, then there is no question but that his sureties are relieved from responsibility. They are only responsible for his default, and any adjudication which exonerates him is equally effectual in releasing his sureties from liability. (Wells, Res Adj., §105.) The matter in controversy here, as presented by the pleadings, was fairly embraced within the issues of the replevin action; and as it was there determined by a court of competent jurisdiction, and the judgment then given has been satisfied and discharged, the controversy must be regarded as forever at rest. Public policy and the well-established rules of law forbid that the unsuccessful party should be allowed to renew the contest or continue a litigation which has been once considered and decided. (Bank v. Rude, 23 Kas. 146; Comm’rs of Wilson Co. v. McIntosh, 30 id. 234; Whitaker v. Hawley, 30 id. 317; Hoisington v. Brakey, 31 id. 560; Shepard v. Stockham, 45 id. 244; same case, 25 Pac. Rep. 559; Dawson v. Baum, Wash. T., 19 Pac. Rep. 46; Sullivan v. Baxter, 150 Mass. 261; Bridge Co. v. Sargent, 27 Ohio St. 233; Freeman, Judgm., § 272; Wells, Res Adj., §§ 249-253.) The judgment of the district court will be affirmed. All the Justices concurring.	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Opinion by Strang, C.: This was an action for bastardy, tried in the district court of Finney county on September 4, 1888, before the court and a jury, resulting in a verdict and a judgment that the defendant, Guilford J. Reed, was the father of the bastard child of Barbara Hertlein. There are a large number of errors assigned, but as this court is of the opinion that the judgment of the district court must be reversed because of error in the instructions of the trial court, the other errors, the cause for many of which will not exist in connection with another trial of the case, need not now be considered. The instruction complained of reads as follows: “You are instructed that, under the law, the interest of the mother of the child and of the defendant in this suit are not equal. The mother is a mere witness for the state in a proceeding to compel the father of her child to contribute to its support, and so save the public from the expense of sustaining it, while the defendant has a direct pecuniary interest in the result of the proceeding. The defendant, being liable to be charged with such support, is directly interested in the result, while the mother has no such interest. These facts may be considered by the jury in weighing their testimony.” This instruction is faulty in several respects. It states that the mother has no pecuniary interest in the support of her child. This statement could only have been made by the trial court upon the assumption that the mother of a bastard child is in no way responsible, under the law, for the support of such child. This is not the law. Under the law, the mother of an illegitimate child is all the while known, and is at all times, at least during its infancy, liable for its support, while the father of such child is unknown until ascertained by judicial proceedings, unless he acknowledge its paternity; and therefore, he is liable only when the paternity of the child is acknowledged by him, or it is established by judicial inquiry. And when the paternity of the child is established by the judgment of the court, the law does not relieve the mother from liability for the support of her child, but compels the father, thus ascertained, to contribute his share to the support of such child. The mother must' still do her part towards caring for and supporting her child. And again, so far as the judicial inquiry is concerned, the mother, who under the law must alone support her illegitimate child, unless its paternity is ascertained by such inquiry, has an interest in the result of the proceeding, to the full extent of the contribution the court’ requires the accused, if found to be the father of her child, to make towards its support; and that is the measure also of the pecuniary interest the accused has in the in quiry. It follows, therefore, that the pecuniary interest of the mother of the illegitimate child in this case, and that of the reputed father, were not so unlike upon the trial as the district court seemed to think when the above instruction was given. The court says, in the instruction given, “the mother is a mere witness in a proceeding to compel the father of her child to contribute to its support.” This instruction is also faulty in this, that it comes too near telling the jury that the accused is the father of the child. The instruction does not say, to compel the reputed father of her child, or the alleged father of her child, to contribute to its support, but it says, “to compel the father of her child to so contribute.” Some qualifying word should have accompanied the word “father” in this part of the instruction. This instruction does not correctly state the rule in relation to the interests of the mother of an illegitimate child and the reputed father thereof, in an inquiry to ascertain whether the accused is the father of such child, and it is faulty in the other respect as pointed out, and it is therefore erroneous. We also think the error prejudicial to the substantial rights of the appellant. It is therefore recommended that the judgment of the district be reversed, and the cause remanded for a new trial. By the Court: It is so ordered. All the Justices concurring.	[ -80, 108, -35, 124, 90, 96, 34, 24, 67, -103, -29, -13, -55, -54, 4, 121, -93, 41, 116, 43, -45, -77, 31, 113, -14, -13, -79, -41, -78, 77, 111, -42, 76, 48, -54, -43, 67, 2, -123, -48, -118, -100, 43, 33, 89, -30, 52, 51, 20, 77, 53, -106, -74, 42, 61, -57, 42, 14, 109, 57, 72, -80, -113, 5, 127, 7, -79, -106, -68, 102, -56, 38, -120, 57, 0, -7, 122, -76, -122, 117, 77, 25, 9, 118, 106, -127, 5, -49, -72, -120, -81, 118, -99, -91, -102, 105, 11, 14, -73, -9, 13, 116, 6, -12, -26, 13, 84, -15, 0, -113, -108, -71, -116, -80, -104, 3, -26, -25, 48, 97, -49, -28, 93, 71, 58, -101, -116, -2 ]
The opinion of the court was delivered by JOHNSTON, C. J.: On March 4, 1911, B. Rockwell began an action to enjoin the city of Junction City from paving a street in front of his abutting lots and from collecting a special assessment levied upon them. He challenged the sufficiency of the petition upon which the mayor and council of the city had acted, and also the validity of the statute under which the proceedings were taken. Upon a trial judgment was rendered in favor of Rockwell, but while the case was pending in this court upon an appeal taken by the city a settlement was effected between the parties, and the appeal was dismissed. On June 14, 1911, the day on which the district court rendered its decision in favor of Rockwell, Bernard O’Malley, E. W. Roediger and W. O. Mullins filed a petition of intervention, alleging substantially the same facts and setting up the same grounds for injunction that had been pleaded by Rockwell. In its answer to the intervenors’ petition the city alleged, among other things, that the ordinance authorizing the special assessment was passed on March 13, 1911, and that as the proceeding of the intervenors was not commenced until June 14,1911, more than ninety days after the enactment of the city ordinance by which the assessment due on éach lot was. ascertained and the liability of the owner fixed, it was barred by the statutory limitation which prohibits the bringing of any action to set aside an assessment which is not begun within thirty days after such assessment is ascertained. While the court allowed the filing of intervenor’s petition, it finally sustained the contention of the city and held that the action of the intervenors. was barred by the thirty-day statute of limitation1. The validity of this ruling is the principal question, upon this appeal. The statute provides that: “No suit to set aside the said assessments shall be brought after the expiration. of thirty days from the time the amount due on such lot liable for such assessment is ascertained.” (Gen. Stat. 1909, § 1420.) This limitation is valid and covers all irregularities and defects in the proceedings. It is contended that by reason of the insufficiency of the petition the mayor and council had no jurisdiction to act, and that therefore the thirty-day statute of limitation did not begin to run, but it has been often held that such defects are waived and cured by the limitation. (Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068; Doran v. Barnes, 54 Kan. 238, 38 Pac. 300; Railroad Co. v. Kansas City, 73 Kan. 571, 85 Pac. 603.) It has been ruled that the statute applies and cuts off defenses that the improvement proceedings are void by reason of fraud or other defects. (City of Topeka v. Gage, 44 Kan. 87, 24 Pac. 82; Kansas City v. McGrew, 78 Kan. 335, 96 Pac. 484.) The contention that the action begun by Rockwell before the bar of limitation was complete inured to the benefit of the intervening appellants can not be sustained. While all of the owners of property abutting on the street to be improved might have united in an action, each would have been seeking to enjoin the levying of an assessment on his own particular property, and an order of injunction in favor of Rockwell would not have relieved the property of the appellants from the assessment. There was no privity of estate or community of interest between appellants and Rockwell, and hence the intervention of appellants did not relate back to the commencement of the action by Rockwell. Each was entitled to attack the proceedings for the protection of his own property within the thirty-day period, and until he did intervene the statute-of limitation continued to run. In Toby v. Allen, 3 Kan. 399, an action was brought to recover on a note and to foreclose a mortgage. A defendant against whom a judgment was rendered upon service by publication intervened and procured an opening up of the judgment, and then set up another note and a subsequent mortgage given by the same party on the same premises and claimed a recovery against a codefendant, and it was held that while he had the right to intervene and set up his claim in the action, the statute of limitations did not cease to run until his application was made. In another case a property owner brought an action against a railroad company to recover for the appropriation of a street in front of his property which prevented ingress and egress to and from his premises. After the limitation period had expired the plaintiff sought to bring in another railroad company, charging that it had conspired with the first in the appropriation of the street, and it was held that the statute of limitations had continued to run as to the new defendant until it had been brought in, and that the action was therefore barred. (Anderson v. Railroad Co., 71 Kan. 458, 80 Pac. 946. See, also, Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467; Thompson v. Beeler, 69 Kan. 462, 77 Pac. 100; Insurance Co. v. Buford, 8 Kan. App. 36, 54 Pac. 6.) Maurer v. Miller, 77 Kan. 92, 93 Pac. 596, 15 A. & E. Ann. Cas. 663, is cited as an authority sustaining the claim that the bringing of the action by Rockwell inured to the benefit of the subsequent intervenors. That was an action to contest a will; a proceeding in rem which affected the interests of all the ■parties who had an interest in it. That was a case where there was community or privity of interest between the intervenor and the other parties, as the will was an indivisible thing and the judgment on the contest either established it as a whole or wholly set it aside. In a case note in 15 A. & E. Ann. Cas. 664, many cases are cited to the effect that if an action is begun before the statute of limitations has run it will inure to the benefit of persons who intervene after the time when an action would be barred, providing there is a community of interest or privity of estate existing between the intervenor and the other plaintiffs; but it is-also added: “Where no community of interest or privity of estate exists between the intervener and another party or parties to the original action, the commencement of the action before the statute of limitations has run does not inure to the benefit of a person who intervenes after the time when an action would be barred.” (p. 665.) Other cases bearing upon the question are: Mason v. City of Chicago, 163 Ill. 351, 45 N. E. 567; Duwphy v. Riddle et al., 86 Ill. 22; Burleson v. Burleson, 28 Tex. 383; Forrey v. Holmes, 65 Mo. App. 114; Jaicks v. Sullivan, 128 Mo. 177, 30 S. W. 890. It is contended that the statute under which the street was improved is unconstitutional in that it delegates legislative authority to the petitioners, and is therefore invalid. This contention is based on the language of the section, wherein it provides that whenever three-fourths of the resident property owners fronting on a street shall petition the council for an improvement the council “shall” cause it to be made. (Gen. Stat. 1909, § 1420.) The word “shall” is often used interchangeably with “may,” and may very well be so construed where to give it the compulsory meaning would strike down the statute in which it appears. {Bank v. Lyman, 59 Kan. 410, 53 Pac. 125; The State v. Franklin County, 84 Kan. 404, 114 Pac. 247.) A similar question was before the court in Salt Co. v. Hutchinson, 72 Kan. 99, 82 Pac. 721, and it was there held that the term should be treated as directory, as that meaning seemed to be more in harmony with the legislative purpose as shown by other provisions of the law. The defects in the preliminary proceedings, whatever they may have been, were waived by the failure of appellants to challenge their sufficiency within thirty days after the assessment was ascertained. The judgment of the district court will be affirmed.	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The opinion of the court was delivered by Smith, J.: A general statement of the case and of the proceedings is given in the former decision. (Smith, Carey & Co. v. Live Stock Co., 90 Kan. 258, 133 Pac. 723.) The principal ground of error urged on the rehearing is the admission over appellant’s objection of the affidavit and testimony of William McDermott, intervener, as to the contents of a letter written by him to E. D. Small in reply to an application for the original loan of $10,000; the contention on the part of appellant being that the loan was made to the Small brothers, and that the name of the Atchison Live Stock Company as indorsed on the back of the note by one of the Small brothers, as manager of the Atchison Live Stock Company, as security. On the other hand, the appellee contends that the loan was made to the Atchison Live Stock Company and the note was secured by the Small 'brothers, individually, as sureties. The letter of E. D. Small, one of the partners and an officer of the Atchison Live Stock Company, applying for the loan, and the reply of Mr. McDermott thereto constituted, the contract antecedent to the execution of the note for the loan. This letter was produced in evidence and was clearly an application of the Small brothers for the loan. McDermott’s contention is that in his letter, replying to the application, he proposed to make the loan to the Atchison Live Stock Company and that the loan was consummated in accordance therewith to the corporation. It is conceded that the note for the loan was signed on the face by the individual members of the firm of Small Brothers and was indorsed on the back, “Atchison Live Stock Company, by J. D. Small, Mgr.” As to the presumptions arising therefrom the court correctly instructed the jury as follows: “The jury is instructed that where the name of one who is neither the payor or payee of a note-appears on the back thereof, his relation to such note is prima facie that of guarantor and not as principal, and one who seeks to show that his relation to such note is that of principal has the burden of proving that fact.” The contents of the McDermott letter in reply to the application was therefore of.vital importance in the determination of the issues; it was addressed and ■mailed to E. D. Small, who wrote the application. After procuring an order for the inspection of the books, papers, etc., as indicated in the former decision, the appellee took the deposition of E. D. Small, in the state of California, to which place Small had removed. Neither the plaintiif nor the receiver appeared at the taking of the deposition, but on the trial made full objections to each question and answer as incompetent, immaterial and irrelevant, which objections were overruled. As stated in the abstract, without objection, E. D. Small testified as follows: “I wrote the letter dated May 10, 1901, addressed to Wm. McDermott at Milwaukee, Wise., attached to the deposition and marked ‘Exhibit B’.; there was but one loan of $10,000 made by Wm. McDermott, which was spoken of in this letter; the application for such loan was made in this letter; I have not the original letter of Wm. McDermott in answer to my letter making the application for this loan and dated May 10, 1901; I do not know where it is; I do not remember of having received it, but I know I received it in answer to that.” Referring further to the McDermott letter, the following questions were asked of E. D. Small, and the answers given: “Q. Can you state what became of the letter. Would you say it was lost or destroyed? A. It was.lost or destroyed as far as I know. “Q. State whether or not that letter was lost or destroyed. A. It was lost or destroyed as far as my knowledge goes.” No evidence was given by the witness in his deposition nor was he asked whether he had made any search for the letter or made any attempt to find it or when or where he last had it or saw it. Relying upon this proof of the loss of the letter, the intervener was allowed, over the objection of the appellant, to introduce his affidavit setting forth, from recollection, a copy of his letter. He also went upon the witness stand and testified orally, in substance, to the same effect. The appellant objected and excepted on the ground that it was secondary evidence and that no. proper foundation had been laid that the primary evidence could not have been procured, and that there was no evidence that the original evidence was either-lost beyond recovery or was destroyed. The objection should have been sustained. There was no other competent evidence of the inception of the transaction except the note was pleaded and not put in issue. The so-called admission of J. D. Small, at Battle Creek, Mich., seems also to have been in his own interest. . If the loan was not in fact made to the Atchison Live Stock Company, it was made to the Small Brothers copartnership, of which witness E. D. Small was a member and against whom a personal judgment in another action was possible. The loss or destruction of the McDermott letter was not properly established. The answers of the witness E. D. Small seem to be evasive, and while he says he received the letter he did not testify • positively that it was either lost or destroyed. Where evidence in writing is shown to have existed which would establish a fact very material in the trial of an action and such writing is admitted to have been in the possession of a party to the action whose liability in a large sum may depend upon the words in the writing, it is error to admit other evidence of the contents of the writing until it fairly appears thát the writing is lost beyond recovery or has been destroyed. The judgment is reversed and the case is remanded for a new trial.	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The opinion of the court was delivered by Valentine, J.: This was an action brought in the district court of Norton county by John S. Welch, under the firm-name of Studebaker & Welch, against O. J. Burwell, James E. Bur-well, and C. M. Ryan, on two promissory notes, each executed on March 17, 1886, by O. J. Burwell and James E. Burwell, payable to the order of C. M. Ryan, one for $119, due in six months, and the other for $112, due in three months, and each indorsed on the back with the name of C. M. Ryan. Ryan made the defense that he was only an indorser, and that he was relieved from all liability on the notes for the reason that no proper demand for payment or protest was ever made, and no notice of non-payment was ever given to him. The plaintiff admitted the facts of this defense, but claimed and now claims that they were not and are not material, and not applicable to this case for the reason that a special agreement in writing had previously been entered into between him and Ryan, whereby he was relieved from making any demand or protest, or from giving any notice of non-payment. The aforesaid written agreement between the plaintiff and Ryan provided among other things that the plaintiff should furnish to Ryan a lot of wagons, to be sold by Ryan on commission, at Lenora, Kas., and that Ryan might take promissory notes therefor, payable not to exceed six months after the date of sale, with interest at 10 per cent.; and that all the notes should be taken upon blanks furnished by the plaintiff, with the following stipulation by Ryan, that he “will indorse them, waiving protest, notice of protest and non-payment, and should any of said notes not be paid at maturity, I agree to pay them within thirty days thereafter.” The case was tried before the court without a jury, and on the trial it was shown that the notes in controversy were not taken upon blanks furnished by the plaintiff, nor for wagons, nor for any property in which the plaintiff had any interest, nor were they indorsed “waiving protest, notice of protest and non-payment;” but they were taken for a span of horses belonging to Ryan and sold by him to the Burwells, and they were indorsed merely with Ryan’s name, and they were then transferred by such indorsement and by delivery by Ryan to the plaintiff in final settlement of their affairs. The court below held upon these facts that Ryan was not liable upon the notes, because they were not given in pursuance of the aforesaid contract, and because no proper notice of non-payment was ever given to Ryan, and rendered judgment in favor of Ryan and against the plaintiff for costs; and to reverse this j udgment the plaintiff, as plaintiff in error, brings the case to this court for review. No special findings of fact were made by the court below, and upon the evidence we cannot reverse its judgment. The judgment of the court below will therefore be affirmed. All the Justices concurring.	[ -14, 108, -79, -68, 10, 96, 40, 42, 67, -93, 118, 115, -119, -62, 1, 97, 102, 29, 85, 121, 68, -77, 23, -30, -45, -77, -63, 77, -75, 73, -92, 119, 93, 48, -22, 29, -26, 72, -63, 26, -114, -96, -71, -20, -39, 72, 52, 123, 118, 73, 49, -114, -53, 46, 28, 83, 109, 44, 105, 9, -64, -15, -78, 71, 111, 6, -78, 34, -116, 1, -38, 46, -112, 53, -112, -7, 114, -74, -124, -12, 9, -119, 8, 102, 39, 33, 21, -49, 116, -100, 47, -34, -119, 39, -16, 88, 10, 33, -106, -107, 80, 18, -121, -2, -17, 21, 25, 40, 6, -53, -78, -125, -17, 126, -110, 2, -5, -91, 57, 113, -51, -14, 93, 69, 48, -101, -113, 116 ]
Opinion by Green, C.: The defendant in this ease was convicted in the district court of Wyandotte county of obtaining money under false pretenses. It was charged in the information that he obtained the sum of $5,600 from the Stock-Yards Bank, at Kansas City, Kansas, by falsely representing to the agent of the bank that he was the owner of 143 head of native Missouri four-year-old steers, and had good right to mortgage the same. The evidence for the state disclosed the fact that the defendant was indebted to the firm of Irwin, Allen & Co., of Kansas City, in the sum of $3,100, at the time the money was charged to have been obtained. To procure the loan of $5,600, the defendant gave a chattel mortgage upon the 143 head of steers, and some other stock, and also furnished, as indorsers upon the note which he executed, Irwin, Allen & Co. and W. H. Conklin. Out of the loan thus procured the defendant paid Irwin, Allen & Co. the amount due them, and received from the bank three cashier’s checks for the balance of the $5,600. Some six weeks after the mortgage was given, it was discovered that the defendant did not have all of the cattle he had included in the mortgage, and the bank took possession of the stock described in the mortgage which could be found and sold the same, realizing therefrom the sum of $3,969, leaving a balance of $1,831 upon the note given for the debt, and interest. The evidence upon the part of the state and the defense showed that the indorsers upon this note were good, and the balance could have been collected if suit had been instituted, but no effort was made before the filing of the information in this case to collect the amount due, except some conferences over the matter and personal requests to pay the balance due. It seems to have been conceded that Irwin, Allen & Co. and W. H. Conklin were financially responsible. Can it be said, under this state of facts, that an offense, under the statute, for obtaining money or property from the bank by false pretenses, has been made out? To constitute the offense charged in the information, under § 94 of the crimes act, four elements must concur, which should be averred and proved: (1) There must be an intent to defraud; (2) there must be an actual fraud committed; (3) false pretenses must have been used for the purpose of perpetrating the fraud, and (4) the fraud must be accomplished by means of the false pretenses made use of for the purpose, viz.: They must be the cause, in whole or in part, which induced the owner to part with his property. (The State v. Matthews, 44 Kas. 596; same case, 25 Pac. Rep. 36; Commonwealth v. Drew, 19 Pick. 179; The People v. Jordan, 66 Cal. 10; 2 Bish. Crim. Proc., § 163; The People v. Wakeley, 62 Mich. 297.) Tested by the above rules, which seem to be supported by reason and authority, it must appear that some one has been defrauded to insure a conviction. This one element is essential. Can it be said that the Stock-Yards Bank has actually been defrauded by the defendant, when it holds a note upon which there is a balance of less than $2,000 and the indorsers thereon are solvent, and no steps are taken to enforce the collection? The language of the court, in the case of People v. Wakeley, supra, is: “But it does not amount, in law, to a false pretense unless made with a fraudulent intent, and the person parting with the property is actually defrauded.” Was the Stock-Yards Bank actually defrauded? What right was it deprived of in the business transaction? It had parted with its money, but it held a note which was conceded to be good, aside from the security given by the defendant, and we fail to see in what way it was injured. If it was not defrauded, this essential ingredient of the crime charged was lacking, and, unless evidence can be produced to show that the bank was actually defrauded, the defendant should be discharged. It is recommended that the judgment of the court below be reversed. By the Court: It is so ordered. All the Justices concurring.	[ 80, -18, -72, 45, -118, -32, 40, -102, 67, -93, -74, 83, -19, -54, 5, 121, -26, -115, 84, 104, -60, -73, 39, 75, -14, -77, -39, -59, -67, 79, -26, -43, 77, 16, -62, 29, 38, -126, -63, -36, -114, 4, -87, -63, -47, 64, 56, 107, 22, 10, 49, 44, -5, 42, 60, 67, 73, 46, 111, 45, -64, -16, -78, 71, -3, 22, -93, 100, -104, 65, -56, 47, -104, 57, 33, -24, 122, -74, -122, 116, 79, -119, 9, 34, 98, 35, -76, -53, -20, -116, 47, 127, -113, -90, -112, 72, 3, 40, -66, -99, 118, 16, 6, -8, -15, 28, 25, 108, 7, -49, -48, -77, -113, -76, -102, 75, -17, -73, 0, 97, -49, -94, 93, 87, 120, 27, -114, -75 ]
Opinion by Green, C.: This was an action to recover a commission as a real-estate agent,_by C. D. Fitzhugh, against William Pate, brought originally in a justice’s court, and appealed to the district court of Finney county, where the same was tried before a jury, and resulted in a verdict and judgment for the plaintiff for the sum of $75. The plaintiff in error asks a reversal of this judgment, upon the grounds— (1) that the plaintiff’s bill of particulars did not state facts sufficient to constitute a cause of action; (2) that the court erred in excluding certain evidence; (3) in admitting certain statements as to what the purchaser of the real estate said; and (4) that the damages recovered were excessive. The bill of particulars is sufficient. It alleged an indebtedness; that the defendant employed the plaintiff to solicit a customer to purchase a certain quarter-section of land in Finney county; that defendant agreed to pay 5 per cent., or the customary commission for selling land; that he secured a customer, who purchased the land for $2,000; and that the defendant refused to pay the plaintiff. These statements were followed with an allegation that there was due the plaintiff on the sale, $100. We think the bill of particulars stated a good cause of action. Pleadings in actions before justices of the peace are not to be viewed with great strictness, and mere technical objections should be disregarded. (Krouse v. Pratt, 37 Kas. 651; M. K. & T. Rly. Co. v. Brown, 14 id. 557; Lobenstein v. McGraw, 11 id. 645.) The ruling of the court upon the admission of certain evidence, and admitting statements that the purchaser of the land made, was immaterial error. The statement that Gove, the purchaser, had bought or traded for the land, was admitted by Pate in his own evidence; and this statement made to the plaintiff became immaterial, as it did not materially prejudice the rights of the defendant, and should not cause a reversal of the case. (Chellis v. Coble, 37 Kas. 558.) The last error complained of is, that the damages were excessive. The evidence of other real-estate agents was to the effect that 5 per cent, upon the first $1,000 and 2-\|- per cent, upon sums over $1,000, was the usual commission. There was some evidence that the plaintiff demanded only $10, but the plaintiff’s explanation of this was that it was an offer made by way of a compromise. The jury fairly passed upon the evidence and returned a verdict for $75, and there was evidence to support it. The judgment of the district court should be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ -110, -2, -16, 44, -120, -28, 40, -78, 65, -31, -73, 83, 109, -62, 24, 39, -25, -19, 81, 104, 71, -77, 7, 51, -10, -77, -47, 93, -75, 77, 102, -41, 77, 48, -54, 21, -25, -54, -27, 86, -86, 12, 8, -20, -7, 72, 52, 29, 16, 11, 113, -113, -13, 46, 53, 67, -87, 42, 111, -77, -31, -72, -115, -99, 123, 1, -79, 116, -36, 3, -38, 74, -112, 61, 0, -24, 115, -74, -58, 84, 5, -87, 8, 98, 102, 48, 65, -83, 120, -100, 39, -4, -115, 38, -108, 88, 75, 104, -66, -97, 85, 16, 7, 116, -20, -51, 29, 108, 7, -86, -106, -77, -51, 54, 28, 3, -1, 19, 52, 113, -49, -96, 92, 99, 114, -101, -113, -113 ]
The opinion of the court was delivered by Horton, C. J.: The error alleged in this case is that the trial court erred in discharging the attachment. The question is one of fact, and the testimony wholly by affidavits. It is apparent that on the 12th day of December, 1887, E. M. Armstrong gave a statement, signed ,by himself, to the Abernathy Furniture Company that he had property, goods and merchandise of the value of $8,147, and that his debts were only $142. It is also clearly apparent that this statement was untrue, and at that time he owed his father $4,000 on account of a farm which he had purchased from him. The statement of the value of his property was also greatly above its true value. This attachment, however, was obtained upon the ground that E. M. Armstrong had sold, assigned and disposed of his property, and was about to sell, assign and dispose of his property, with the fraudulent intent to hinder, cheat and delay his creditors. It was not obtained upon the ground that he had fraudulently contracted the debt, or fraudulently incurred any liability or obligation. Therefore, the written statement given to the furniture company does not figure very much in this case. It is also apparent that, before the attachment was levied, E. M. Armstrong had sold, transferred and mortgaged all of his property for the purpose of paying bona fide debts. This he had the right to do. It was said, in Tootle v. Coldwell, 30 Kas. 125, 134— “That a debtor even in failing circumstances may prefer creditors, if the same is done in good faith, and this not only in the form of actual payment of money, to the particular creditors preferred, but also in the form of the sale or appropriation of property, or the giving of chattel mortgages to such creditors.” There is a great conflict in the affidavits; but it is clearly shown by the affidavits upon the part of the defense that the. indebtedness of James G. Armstrong, E. M. Jamison, and the other creditors who were secured, was all bona fide indebtedness. E. M. Armstrong had the right under the law to prefer the creditors whom he did prefer, if the same was done in good faith. The evidence shows this to be the case. All of' the creditors were paid, excepting the plaintiff and others, having claims amounting to about $900. The order and judgment of the district court must be affirmed. All the Justices concurring.	[ 48, 108, -40, 63, 72, 96, 40, -102, 19, 1, -89, 83, 107, -62, 20, 35, -16, 77, 113, 98, 69, -77, 55, 107, -46, -77, 113, -43, -79, 108, -28, 87, 77, 32, -30, 21, -26, -120, -59, 28, -50, -128, 9, -27, -7, -124, 52, -65, 21, 79, 97, 14, -73, 42, 28, -53, 105, 43, 107, 41, 112, -7, -114, 13, 95, 19, -77, 38, -104, 5, 72, 44, -72, 49, 5, -24, 113, -74, -122, 116, 77, -119, 8, 102, 99, 17, 13, 111, -8, 28, 47, -26, -97, -25, 83, 88, 11, 105, -100, -103, 121, 80, 6, -4, -25, -99, 28, 100, 9, -113, -106, -125, 15, 124, -98, 11, -21, -89, 17, 113, -51, -96, 92, 6, 26, -101, -114, -72 ]
The opinion of the court was delivered by Valentine, J.: This' was an action brought in the district-court of Wilson county by O. V. Small against the Leroy & Caney Valley Air-Line Railroad Company and the Missouri Pacific Railway Company, in which the plaintiff alleged, among other things, that the defendants had constructed their railroad across his land under a contract; that they had not fulfilled their contract, but had committed a breach thereof; that they had procured condemnation proceedings to be instituted and carried on to consummation without his knowledge, in which he was allowed only nominal damages; that he had received no compensation for his losses; and asked that the condemnation proceedings be set aside, and for general relief. The case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendants, that they should pay him the sum of $1,200 within 60 days or relinquish their right-of-way; or, if they should do neither, then that the plaintiff should recover of and from the defendants the sum of $1,200; and the defendants, as plaintiffs in error, bring the case to this court for review. It appears from the pleadings and the evidence, among other things, that the Leroy & Caney "Valley Air-Line Railroad Company was organized in 1885, for the purpose of constructing a line of railroad from a certain point in Wilson county to Elgin, in Chautauqua county. The company was composed entirely of persons living along the line of the proposed railroad. Some time afterward a committee was sent by the company to New York city, which, in pursuance of their authority, succeeded in procuring the Missouri Pacific Railway Company and one Warren H. Loss to enter into a written contract with this new company for the purpose of constructing this new line of railroad. By the terms of the contract Loss was the contractor to construct the railroad, and was also to procure the right-of-way for the railroad companies at his own expense. Afterward hé assigned ail his rights and interests under the contract to Simmons & Sidell, a partnership firm composed of James A. Simmons and Cornelius V. Sidell, who afterward constructed the railroad under the contract. Prior, however, to their construction of the railroad, they employed Isaac Hudson to procure the right-of-way through Wilson county. Commissioners were also appointed to procure the right-of-way through that county by virtue of condemnation proceedings. Hudson afterward, for the contractors and the railroad companies, entered into the ■ contract sued on, which was and is a contract with the plain tiff Small and his wife for a right-of-way through Small’s premises. Upon the face of this contract, Small and wife were the parties of the first part, and the Leroy & Caney Valley Air-Line Railroad Company was the party of the second part; and the right-of-way was procured for such railroad company. The contract, however, was not signed by either of the railroad companies, nor-by Hudson, nor by the contractors, but only by Small and wife. The commissioners appointed to procure the right-of-way were instructed by Hudson, on account of said contract with Small and wife, to assess only nominal damages for the right-of-way through Small’s land, and through other lands where similar contracts had been entered into between Hudson and the owners of the lands; and the commissioners in fact assessed only nominal damages for the right-of-way through Small’s land, to wit, $1 for one quarter-section of land, $1 for a half quarter-section of land, and $80 for another half quarter-section of land, and nothing for the remainder. Small had no knowledge of this assessment until after it was too late to take an appeal, and therefore never took an appeal. The railroad was afterward constructed by the contractors, and is now operated by the railroad companies. The Leroy & Caney Valley Air-Line Railroad Company was and is the nominal owner thereof; but the Missouri Pacific Railway Company was and is the real owner thereof. The first alleged error is the ruling of the court below refusing to strike from the files the plaintiff’s amended petition. This amended petition had been filed upon leave of the. court previously given, but it is claimed that it is a departure from the original petition. It is not such a departure, however, from the original petition as to make it objectionable; besides, the allowing of amendments to pleadings by the trial court is very largely within its discretion, 7 and so much so that it is very seldom that a reviewing court can say that error has been committed in such cases. The reviewing court cannot do so unless it can say that the trial court has abused its discretion. We cannot say so in this case. There are various other complaints made concerning the various rulings of the court below, but they do not require any separate or special consideration. Grouping the most of them together, we think they amount substantially to this: It is claimed that, as the contract with Small and wife for the right-of-way through his premises was not signed by either of the railroad companies, nor filed for record in tue office of the register of deeds, nor made by any direct agent of either of the railroad companies, but only by an agent of the contractors, it cannot affect any of their rights or interests in the least. It was alleged, however, in the plaintiff’s petition that the contract was executed between the plaintiff, Small, and the Leroy & Caney Valley Air-Line Railroad Company, and this allegation was not denied by anyone under oath, and therefore it must be taken as true. (Civil Code, § 108.) Besides, the argument proves too much; for if Hudson and the contractors had no authority to procure the right-of-way for the railroad companies by any direct contract with the owner of the land through which the railroad was constructed, then Hudson and the contractors would have mo authority to procure the right-of-way in any other manner for the railroad companies; and as the whole of the right-of-way through Small’s land and through all the other lands in Wilson county was procured only through the intervention of Hudson and the contractors, the railroad companies would not have and have not any right-of-way through the plaintiff Small’s lands, or through any other person’s lands. The evidence shows that Hudson and the contractors did everything in procuring the right-of-way — that procured by virtue of condemnation proceedings as well as that procured by contract. The contractors and Hudson were really the agents of the railroad companies to procure the right-of-way, and the railroad companies are bound by their agents’ acts. And if they are so bound — that is, if they are bound by the acts of the contractors and Hudson in procuring their right-of-way — then the judgment of the court below is correct. But if they are not so bound, still the judgment is correct; for if they are not bound, then they can take no benefits from the acts of Hudson and the contractors in procuring the right-of-way for the railroad companies, and in that event they have obtained no right-of-way through the plaintiff’s (Small’s) premises, neither by contract nor by condemnation proceedings; and as they have actually constructed their railroad through such premises and are now operating the same, they are still liable for the resulting damages, and this makes the judgment of the court below correct. We think it is correct upon the view that the railroad companies are bound by the acts of Hudson and the contractors. It cannot be possible that a railroad company, with its contractors and their agent, can, by the methods resorted to in the present case, procure a right-of-way through a man’s land for nothing. Such is not the constitutional or statutory mode of procuring a right-of-way, and we do not think that it can be upheld. We do not think that there is anything further in this case that requires consideration or comment. The judgment of the court below will be affirmed. All the Justices concurring.	[ -16, 110, -80, 30, 122, 34, 56, 24, 66, -95, -92, 115, -53, -56, 0, 107, -26, 61, -12, 123, 64, -105, 21, -94, -109, -109, -5, -51, -71, -39, -28, -41, 72, 32, 74, 29, -26, 64, 69, 30, -114, 44, -87, -20, 88, 72, 48, 123, 82, 110, 21, -85, -5, 45, 28, -29, 105, 44, 121, 1, 9, 89, -110, -41, 95, 4, 1, 36, -100, 3, 72, 58, -104, 53, 65, -68, 67, -90, -121, 116, 1, -39, 12, -94, 103, 97, 4, -57, -20, -104, 23, -74, -119, -25, -90, 24, -125, 69, -100, -97, 88, 82, 6, 126, -18, 1, 89, 44, 7, -113, -78, -77, -33, -88, -102, 99, -53, 33, 34, 100, -59, -78, 95, 69, 50, -101, -34, -106 ]
The opinion of the court was delivered by Horton, C. J.: It was declared in the former opinion handed down, (ante, p. 707,) among other things, that— “The assent of the beneficiary in the deed may be given any time after the deed, is executed, and, in the absence of proof to the contrary, will always be presumed. (Field v. Arrowsmith, 3 Humph. 442.) ‘It will be presumed, on the part of the beneficiaries under a deed of trust, in the absence of proof to the contrary, that each accepts the provisions made for his benefit, and such acceptance may be given at any time after the conveyance is made, unless renounced or waived;.' and such acceptance in fact will relate back to the day of registration. (Furman v. Fisher, 4 Coldw. 626.)’” Upon this declaration of law we held that the chattel mort gage of $10,000, executed by Messrs. Lovejoy & Glasscock on the 30th of August, 1886, to secure the indebtedness due the First National Bank of Emporia, was a prior lien to the attachments on the goods of the firm made by their creditors several days after the filing of the mortgage, and upon such conclusion, we reversed the judgment of the trial court, and directed judgment accordingly. This declaration of law and the reversal of the judgment of the trial court were vigorously assailed at the rehearing, upon the ground that the chattel mortgage was executed by the firm of Lovejoy & Glasscock with the intent to hinder, delay and defraud their creditors, and therefore that it had no force or effect in favor of the bank until the bank actually assented to or accepted the mortgage; and upon this it is maintained, even if the chattel mortgage was valid between the parties, that it had no validity or force as to the attaching creditors until after the assent or acceptance of the bank, which it is alleged was subsequent to the levy of the attachments. Therefore it is urged that in any event the attachment liens were prior to the chattel mortgage lien. We concede, as stated by Burrill on Assignments, that the assent of a creditor to a void or fraudulent assignment or chattel mortgage must be actually given, and will not be presumed. (Fifth ed., §295, p. 444.) In Benning v. Nelson, 23 Ala. 801, it is said by Phelan, J., that— “If a jury should find the fact to be that a deed was made by the grantor with intent ‘to hinder, delay and defraud creditors,’ the law will not presume the assent of a beneficiary to such a deed, however much it might really be for his benefit, ■because this would be to put it in the power of the grantor, by the aid of a legal presumption, to make valid his own fraudulent deed. Such a deed can only become valid by the actual assent of the beneficiary in some form. Until such actual assent, any creditor may levy or attach and hold in defiance of the deed.” See, also, Townsend v. Harwell, 18 Ala. 301; Stewart v. Spencer, 1 Curtis, 157; Ashley v. Robinson, 29 Ala. 112; Baldwin v. Peet, 22 Tex. 708. We do not construe the findings of the trial court, however, when considered together, as showing that the chattel mortgage to the First National Bank was given to hinder, delay and defraud the creditors of the firm of Lovejoy & Glasscock. It is true that the trial court made such a finding, or rather made such a general conclusion of law; but this general statement or conclusion is greatly modified by the further findings of the trial court, which stated that the First National Bank had no knowledge or notice of any intent upon the part of the firm of Lovejoy & Glasscock to hinder, delay and defraud its creditors, and did not participate in any such fraud or intent, and that the value of the property embraced in the chattel mortgage was not in excess of the debts due to the First National Bank from the firm of Lovejoy & Glasscock, as described in the mortgage. From all the findings of fact, we must construe that the finding or conclusion of the trial court, that the chattel mortgage “was given to hinder, delay and defraud the creditors of the firm of Lovejoy & Glass-cock,” meant that, as the effect of the mortgage was to hinder and delay all the other creditors of the firm excepting the First National Bank of Emporia, such chattel mortgage was given to defraud. Every preference by an insolvent debtor to one creditor over another tends to hinder and delay the creditor not secured or paid, but we have decided time and again that “a debtor, even in failing circumstances, may prefer creditors if the same is done in good faith; and this, not only in the form of actual payment of money to the particular creditors preferred, but also in the form of the sale or appropriation of the property, or the giving of chattel mortgages to such creditors.” (Tootle v. Coldwell, 30 Kas. 125; Bailey v. Manufacturing Co., 32 id. 73.) It is well settled that an insolvent, as long as he retains a jus disponendi of his property, may appropriate it to the payment of his debts, and may prefer creditoi’s. He may use all his property this way, or he may so use a part, and make a general assignment of the remainder. (Lampson v. Arnold, 19 Iowa, 479; Dodd v. Hills, 21 Kas. 707; Randall v. Shaw, 28 id. 419. See also National Bank v. Croco, ante, p. 620; same case, 26 Pac. Rep. 843, and the cases there cited.) It is true that the chattel mortgage was made to the national bank while the firm of Lovejoy & Glasscock was insolvent, and that such preference or chattel mortgage operated to hinder and delay the other creditors in the colleclion of their claims; and we may further say from gn(-]ingSj that it was the intention of the firm of Lovejoy & Glasscock to prefer and pay the claim of the First National Bank in preference to the claims of the other creditors, even if such payment exhausted all of their property ; but all of these things, under the frequent prior decisions of this court, do not affect the validity of the chattel mortgage, as it was executed in good faith to pay a hona fide debt, and the value of the property mortgaged was not in excess of the debt described therein and actually due from the firm of Love-joy & Glasscock to the bank. Under these circumstances, as there was no fraud in fact within the prior rulings of this court, we repeat what we said before, that the assent of the ^rsl National Bank of Emporia to the chattel mortgage, although given after it was executed au(j eveQ a£ter jevy q£ ^ attachments, must be presumed, and such assent or acceptance in fact will relate back to the day of the filing of the mortgage. This is the law where the chattel mortgage is not fraudulent or void. But opposing counsel say, that any deed, any chattel mortgage or auy assignment may be fraudulent, although made in consideration of an honest debt, and a large number of authorities are cited supporting this view. We concur in what is said in the authorities upon this matter, but hold that the findings of fact do not show that the chattel mortgage or transfer is fraudulent. In the cases where the transfers were fraudulent, but the considerations on honest debts, it appeared that the deeds or conveyances were made for the ease and favor of the debtor, or for some other purpose to aid and assist the debtor, rather than to protect and prefer the honest creditor. Thus, it is said in Devries v. Phillips, 63 N. C. 53: “ It is well settled, that a conveyance to secure a bona fide debt, or for a valuable consideration, will be fraudulent if made for the ease and favor of the debtor.” In Shelley v. Boothe, 73 Mo. 74, it was ruled: “ That if it appeared from the circumstances attending the transaction that the preferred creditor was not acting from an honest purpose to secure the payment of his own debt, but from a desire to aid the debtor in defeating other creditors, or in covering up his property, or in giving him a secret interest therein, or in locking it up for the debtor’s own use and benefit, he will not be protected, and the sale would be fraudulent as to other creditors, because in such cases the fraud of the debtor becomes the fraud of the preferred creditor because of his participancy therein.” In Smith v. Schwed, 9 Fed. Rep. 483, it was decided “that if the purpose of the preferred creditor is not to secure his debt, but to help the debtor cover up his property, he cannot shield himself by showing that his debt was bona fide.” In Drury v. Cross, 7 Wall. 299, the preferred creditors unlawfully combined together to raise the decree to an extent which prevented all fair competition at the sale of the property, and therefore, in that case, they were not protected. James v. Railroad Co., 6 Wall. 752, was a similar case of actual fraud by certain parties to prevent fair competition at a sale. In the case of Cox v. Miller, 54 Tex. 16, there is a discussion of whether the facts in that case show that the mortgage was given to secure a bona fide debt, or whether it was simply a colorable pretense resorted to for the purpose of covering up the property. The facts were set forth, among which were, that the property conveyed was greatly in excess of the pretended debt, and that the security was only a part consideration for the conveyance, and that the motive of the conveyance was to transfer to the grantee a large amount of property under the false claim that it really belonged to her, and for the purpose of putting it beyond the reach of creditors. In Thompson v. Furr, 57 Miss. 478, it appeared that there was a secret agreement between the debtor and creditor se cured by a mortgage, that a one-half interest in the property conveyed was to be held by a secret trust for the benefit of the debtor, and was not to apply to the payment of the debt; and the consideration of the conveyance was falsely set at about double the actual debt for the purpose of misleading the creditors, which of course would be a fraud upon the creditors in fact; and wherever there is a fraud in fact, notwithstanding a bona fide debt may be incidentally secured, it vitiates the transaction. These and many other cases which are cited show that where the conveyance to a creditor having a bona fide claim is in excess of the actual debt, or is given to favor the debtor, or to merely cover up the property from other creditors, or to prevent a fair sale of the. property, then the transaction, sale or conveyance, so fraudulently made to the creditor having the honest debt, is void, at least as to the creditors not preferred. (See Wallach v. Wylie, 28 Kas. 138; Winstead v. Hulme, 32 id. 568.) But in this case, the findings, taken as a whole, bear no such interpretation. The chattel mortgage, according to the findings, was not given to favor the insolvent firm, but to protect honest debts'due the bank. The mortgage was not in excess of the debts secured, or given to cover up property, or to prevent a fair sale thereof. The rehearing will Be denied. All the Justices concurring.	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Per Curiam: This case is controlled by the decision in Ora v. Bane, ante, p. 567, and for the reasons given in the opinion in that case the judgment is reversed and a new trial ordered.	[ -80, -8, -3, 62, 10, 96, 48, -110, 9, -31, 39, -15, 47, -61, -108, 111, -105, 105, 116, 115, -44, -77, 22, -63, 118, -14, -109, -43, -77, -35, 103, -4, 12, 112, -118, -43, 70, -53, 101, 86, -114, -108, -119, 101, 64, 83, 48, 47, -48, 31, 53, 23, -29, 42, 19, 71, -24, 56, -7, -19, 80, -7, -104, 15, -17, 4, -77, 38, -66, -58, -104, 46, -48, 49, 1, -24, 114, -12, 6, -12, 107, -5, -92, 66, 96, -64, 76, 111, 56, -120, 53, 124, -99, -90, -103, 28, -23, 103, -106, 95, 103, 20, 6, 126, -27, -43, 63, 36, 16, -57, -42, -77, -41, 105, -68, 82, -30, 115, 48, 20, -115, -88, 86, -62, 51, -77, -66, -106 ]
Per Curiam: This action was brought by the appellee to recover from the appellant damages for the failure of appellant to execute and deliver a written lease in accordance with an oral agreement for such lease. On the authority of Rains v. Schermerhorn, 86 Kan. 854, 122 Pac. 883, and under the evidence and findings of the jury in this case, the appellee was entitled to recover. We have examined the various assignments of error as to the instructions and find no error therein. Also, it appears the evidence was sufficient to support the verdict of the jury and the judgment rendered thereon. The judgment is affirmed.	[ -46, 120, -23, -19, 10, 96, 50, -120, 99, 37, 55, 83, -85, -125, 20, 109, -25, 123, 113, 121, 87, -93, 102, 82, -14, -77, -13, 69, -80, 110, -11, 92, 76, -95, -62, 87, -62, -118, -59, 92, -114, -121, -120, 100, -39, 67, 52, 123, 80, 13, 49, -50, -13, 46, 17, -57, 45, 44, -23, 101, -64, -80, -39, 5, 127, 23, -79, -124, -36, 67, 92, 78, -128, 57, 3, -24, 114, 54, -58, 84, 97, 27, -115, 98, 102, 34, 45, -23, -48, -103, 38, -34, -115, -26, -109, 88, 74, 37, -74, -99, 125, 71, 5, -4, -18, -123, 61, 100, 3, -49, -44, -77, 15, -24, -106, 2, -17, 19, 33, 116, -51, 118, 88, 71, 19, -101, -98, -77 ]
Per Curiam: The plaintiff was in the employ of defendants, who were engaged in repairing a roof on a two-story building. He had worked for them on two other buildings and had been at work on this roof about two days prior to his injury. He was past eighteen years of age, a young man of more than average intelligence. His duties required him to take a roll of paper, which he held with a stick through the center of the roll, and to walk backwards from a point about midway of the roof to the east end. Another employee held the other end of the paper, walking backwards in the opposite direction, and the paper was thus unrolled. At the east end of the roof there was a fire wall eighteen inches high. The plaintiff knew the fire wall was there; that it was twenty-five or thirty feet to the alley below, and that there was nothing to prevent his falling over this eighteen-inch wall if he became overbalanced. He walked backwards with the roll of paper without look ing to see how near he was to the edge of the roof, and continued walking until he struck the fire wall, fell over it to the ground, and was injured. The danger was open to common observation and was as fully known to him as it was to the defendants. His own evidence showed that he was fully capable of knowing and measuring the risk of his employment, and that his injury was caused solely by his failure to take ordinary care to protect himself from an obvious and apparent danger. No negligence was shown on the part of the defendants. All that the court could do was to sustain the demurrer. The judgment is affirmed.	[ -112, 120, -40, -65, -104, 96, 58, -102, 93, -107, -73, 81, -19, -125, -51, 99, -11, 105, 81, 51, 92, -93, 23, -53, -10, -9, -77, -59, -71, 110, 118, 87, 77, 48, -54, -43, -26, 8, -59, 28, -122, 5, 42, -20, 25, 81, 56, 122, -64, 79, 49, -98, -13, 42, 28, -49, 40, 44, 74, -95, -13, -15, -120, 5, 127, 17, -93, 4, -98, 7, -8, 12, -36, 53, 1, -24, 114, -74, -122, 124, 43, -87, 4, 98, 98, 32, 29, 101, -8, -72, 47, -18, -115, -89, -111, 56, 27, 38, -67, -99, 116, 4, 52, 110, -27, 93, 31, 108, 3, -121, -44, -77, -49, 104, -108, -89, -17, 3, 49, 117, -34, -94, 94, -62, 115, -97, -98, -34 ]
The opinion of the court was delivered by Mason, J.: An action was brought in the district court of Crawford county against the Missouri, Kansas & Texas Railway Company, a Kansas corporation, for damages on account of personal injuries received by the plaintiff while working in a coal mine of the defendant in Cherokee county. Service was made by delivering a copy of the summons to an agent of the company in Crawford county. The defendant filed what is called a special plea to the jurisdiction, limiting its appearance to that purpose. The plea alleged that the principal place of business of the defendant is in Labette county; that none of its principal officers reside in Crawford county or may be summoned therein; that the injuries complained of were not received upon the defendant’s railroad, nor within Crawford county; that the action was not brought upon its liability as a carrier; and that therefore the court had no jurisdiction of the defendant or the subject matter of the action. A demurrer to this plea was sustained, and the defendant appeals. The plaintiff maintains that the order sought to be reviewed is not appealable. The code authorizes an appeal from the overruling of a demurrer, and we shall assume without deciding that the ruling here involved is of that character, although the special plea partakes of the nature of a motion to quash the summons, and the demurrer to it may be regarded as a challenge of the sufficiency of the motion on its face. The defendant maintains that the action was not rightfully brought in Crawford county, and relies upon a section of the statute reading as follows: “An action, other than one of those mentioned in the first three sections of this article, against a corporation created by the laws of this state or of the territory of Kansas, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or may be summoned; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose, or where the plaintiff resides. But the provisions of this article shall not apply in the case of any corporation created by a law of this state or the territory of Kansas whose charter prescribes the place where alone a suit against such corporation may be brought.” (Civ. Code, § 51.) The contention that this section does not authorize the bringing of the present action in Crawford county is apparently sound. But the language of the statute is that actions may be brought in the counties there described, not that they must be. The three preceding sections referred to in the part of the statute quoted relate to strictly local actions, which “must” be brought in specified counties. . The several subsequent sections are by their terms permissive only; their reading is that the actions they describe “may,” not “must,” be-brought in certain counties. Then follows this section: “Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned.” (Civ. Code, § 55.) This is essentially declaratory of the common law. In the absence of a statute to the contrary, a transitory action may be brought wherever the defendant may be summoned. (40 Cyc. 107. ) The substance of the section is that, except in the cases previously enumerated, an action can only be brought in the county where the defendant resides or may be summoned. The preceding section, which prior to the revision of 1909 provided merely that actions of divorce might be brought in the county of the plaintiff’s residence, was rendered exclusive and mandatory by the statute requiring the plaintiff to be a resident of the county. (Civ. Code, § 664.) The distinction between strictly local and quasi-local actions was recognized in Reynolds v. Williamson, 68 Kan. 239, 74 Pac. 1122, where the section above quoted was said to “relate to actions not strictly local, but which may be brought in special counties, determined by various conditions.” (p. 241.) An action by an employee against his employer for damages on account of personal injuries is not local, but transjtory. It may be brought wherever the defendant may be summoned. A railroad corporation may be summoned in any county where it has a station agent, because service may be had upon him unless some other agent has been designated for the purpose. (Civ. Code, § 72.) We think the demurrer to the defendant’s special plea to the jurisdiction was properly sustained on the grounds indicated, and the judgment is therefore affirmed.	[ -12, -26, -3, -68, -117, -32, 48, 56, 81, -93, 36, 115, -19, -50, -127, 121, -30, 61, 85, 121, 85, -73, 19, 99, -110, -77, -79, -59, -78, 91, -26, -26, 76, 48, 74, -43, -58, 74, -59, 28, -50, 12, -103, 96, 81, 0, 48, -21, 86, 75, 113, -113, -13, 40, 27, -61, 41, 44, -5, -84, -47, -48, -6, 85, 127, 0, 33, 4, -100, 39, 72, 30, -104, 57, 0, -24, 83, -94, -122, -12, 45, -103, 9, 46, 99, 33, 28, -49, -84, -104, 14, 127, -99, -90, -80, 24, 107, 15, -106, -99, 125, 86, 3, -4, -18, 4, 19, 108, -125, -17, -80, -77, -113, 101, 26, 87, -21, -123, 32, 100, -44, -78, 95, 71, 50, 27, -50, -68 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action brought by the appellant, John F. Hanson, to recover $50,100 as damages for alleged false imprisonment. It was brought against the appellees, Swen A. Sward, the probate j udge of McPherson county, and the three sureties upon his official bond, O. Emil Gustafson, the sheriff, and the twenty sureties upon his official bond, John Ekblad, who was the administrator of the Hannah Linderholm estate, and his attorney, Frank O. Johnson. In the petition the appellant alleged that he was subpoenaed as a witness in behalf of the administrator of the Linderholm estate in a controversy wherein Anton Linderholm and others had presented claims against the estate, and to bring with him books of account, receipts for payments, checks and other evidences of the payment of money to Anton Linderholm, Emil E. Linderholm, Justus Linderholm and Ida A. Tarnstrom, and also all papers, notes or accounts showing the transactions had or made by Hannah Linderholm while she was acting as the administratrix of the estate of Swan Linderholm, deceased. It was alleged that in answer to the subpoena appellant appeared before the probate court, and after affirmation he was asked a question pertaining to the claims filed against the estate by Anton Linderholm which he declined to answer, saying that the question did not pertain to the controversy upon which he had been subpoenaed to testify. The probate court then ruled that the appellant must answer the question but he asserted that the court had no, jurisdiction to require him to ánswer, and still refusing he was held to be in contempt of court and it was adjudged that he should pay a fine of $25 and stand committed until the fine should be paid and the question answered. It was further averred that under this order the appellant was committed to the county jail by the sheriff, that afterwards he was released on a bond given pending a hearing on a writ of habeas corpus before the supreme court, and that subsequently that court remanded him to custody and he was held in jail for a period of about eight months, when he was released. He further alleged that the contempt proceedings were void and his punishment illegal because the probate court had no jurisdiction to compel him to testify in the proceedings before it; that Ekblad, who was moving in the proceedings, was not next of kin to the deceased and was therefore not legally appointed administrator; that the order of commitment was void because it did not state the extenuations offered by the appellant nor comply with the code provisions relating to punishment for contempt. A demurrer to the petition was sustained and appellant complains of the ruling. Most of the questions raised on this appeal have already been determined adversely to appellant’s contention. It was decided in habeas corpus proceedings and upon similar averments that it was the duty of appellant-to answer the question propounded to him in the probate court. (In re Hanson, 80 Kan. 783, 105 Pac. 694; In re Hanson, 81 Kan. 608, 106 Pac. 276.) The allegations of appellant’s petition indicate that the question was relevant and, besides, the probate-court which had jurisdiction of the case determined that the question asked was pertinent and proper. Being vested with jurisdiction of the subject matter and of the person the relevancy of the inquiry was a question to be determined by the court and not by the witness. It has also been determined that the probata court had the power to make the particular order that was made. (In re Hanson, 80 Kan. 783, 105 Pac. 694.) On a hairsplitting theory as to the propriety of the question asked, which was utterly untenable, the appellant persisted in his contumacy and hence was held in jail for a long time. However, he could have secured his release at any time by answering a few simple questions, which he now says he would willingly have answered if they had been asked in a different way. He was held in custody not alone as punishment fox-contumacy in willfully disobeying a lawful order of the court, but also to compel obedience to an order which the court had a right to make and which was deemed necessary to the administration of justice. While the imprisonment was long the court had the power to continue the commitment of appellant as long as his contumacy continued. As was well remarked by Mr. Justice Graves in the habeas corpus proceeding: “If courts were limited in their power to enforce proper orders, as urged here, contumacious witnesses could effectually impede and embarrass them to such an extent as practically to prevent the administration of justice.” (In re Hanson, 80 Kan. 783, 787, 105 Pac. 694.) There is nothing substantial in the claim of appellant that the imprisonment was illegal because Ekblad, who was appointed administrator, was not next of kin to Hannah Linderholm, deceased. The probate court had authority to appoint an administrator, and even if the wrong person was appointed his appointment would be valid until it was set aside in a proceeding brought for that purpose. Letters of administration are not open to collateral attack such as appellant is attempting to make. This was determined in Ekblad, Adm’r, v. Hanson, 85 Kan. 541, 117 Pac. 1028. (See, also, Taylor v. Hosick, Adm’r, &c., 13 Kan. 518; Brubaker v. Jones, 23 Kan. 411.) Some other questions have been discussed by appellant but all not specifically mentioned here have, like those mentioned, been considered and decided in earlier cases brought in or to this court by appellant. The appellant did not state a cause of action against any of the appellees and the ruling of the district court sustaining the demurrer to his petition must be affirmed.	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Per Curiam: In the former opinion in this case (The Y. M. C. A. v. Ritter, 90 Kan. 332, 133 Pac. 894) the judgment was reversed and the cause remanded with directions to render judgment for the appellant because of the failure of the Association, the owner of the building, to retain the required percentage of the estimates for work and labor furnished until notice to and consent of the surety company. A rehearing was granted on the sole question of whether or not the failure to retain the required1 percentage caused any loss to the appellant. We find it impossible to determine this from the state of the record. The trial1, court adopted plaintiff’s theory of the case, which was that the-contract and bond did not require the retention of 20 per cent of the estimates, and submitted the case to the jury upon that, theory. We construe the contract differently, and adhere to what, was said in the former opinion, but in view of the fact that the-case was tried upon the wrong theory, the judgment will be reversed and remanded with directions to find the amount of each estimate and the payments thereon, and the amount retained in the hands of the Association, and to find whether or not the surety company lost by reason of the failure to comply with this provision of the contract and bond. The appellant is only entitled to defend the action to the extent it has been injured, if any, by such failure. None of the other questions discussed in the original briefs or in the briefs on rehearing is to be retried.	[ -112, 106, -16, -20, -118, 96, 58, -104, 85, -28, 55, 83, -23, -54, 20, 107, -42, 127, 117, 104, -42, -93, 23, 65, -42, -41, -13, -59, -79, 127, -12, -44, 76, 48, -62, -105, 102, -119, -43, 92, 46, 4, -102, 101, -39, 96, 48, 123, 20, 67, 49, -102, -29, 36, -111, 75, 73, 40, 106, 113, -32, -7, -101, 5, 111, 5, -79, 52, -100, 71, -40, 30, -100, 53, 1, -56, 115, -74, -122, 84, 41, -101, 45, 98, 99, 16, 117, -51, -16, -100, 46, -105, 13, -89, -111, 88, 11, 96, -74, -35, 117, 22, 6, 126, -10, -108, 95, 100, 3, -49, -12, -77, 15, 120, -68, -125, -1, -125, 48, 112, -52, -88, 94, 66, 19, -101, -114, -40 ]
The opinion of the court was delivered by Porter, J.: The question involved is whether a partnership existed between H. A. Martin and J. L. Brady, the appellants, and W. E. Hornaday, by which the appellants were bound to answer for an indebted ness incurred by Hornaday in the name of the partnership. The action was brought to recover for certain advertising printed in the Kansas City Drovers Daily Telegram, the account having been assigned to the appellee. The advertisement invited subscriptions to the capital stock of the United States- Rapid Mail Service Company, a corporation, with which on or about July 3, 1909, Hornaday had entered into an agreement to sell 1500 shares of its capital stock. On July 20, 1909, H. A. Martin and J. L. Brady, the appellants, entered into an arrangement or contract with Hornaday whereby they undertook to render him certain assistance in the sale of 250 shares of the capital stock above referred to. Neither Martin nor Brady authorized the insertion of any advertising in the Daily Telegram, and neither of them knew of its publication until long afterwards. If they are liable in this case it must be on the theory that by their agreement with Hornaday a partnership was created which gave him authority to bind them upon any contract for advertising which he might see fit to make in furtherance of the sale of stock, whether or not they were jointly interested therein, for it appears that the advertisement mentioned not only the 250 shares of stock in the sale of which the appellants were interested, but also other shares of stock in the same corporation. The jury returned a general verdict in favor of the plaintiff. From the judgment Martin and Brady have appealed. ,The contract between the appellants and Hornaday recites that Hornaday had undertaken under a contract with the United States Rapid Mail Service Company to sell 250 shares of its capital stock at a certain price, and that Brady and Martin desired to work in cooperation with him in the sale of the stock for their mutual benefit and gain; that Hornaday should have charge of the sale of the stock and of the advertising and correspondence; that J. L. Brady was to furnish the free use of the columns of the Lawrence Journal and such advertising and reading notices as should be deemed necessary to sell the stock, and in addition should “supply needed job printing free to this partnership.” Martin was to allow the free use of his offices in Lawrence for the sale of the stock and also to assist in selling the same to the best of his ability. The contract provides that Hornaday should bear his own traveling expenses and that additional expenses in connection with the sale of the stock should be borne equally between the parties. There is a provision that the profits on the sale of the stock over and above 25 per cent of the par value, which was to be paid to the company issuing it, should be divided equally between the parties to the agreement, each to receive one-third. Nothing is said with respect to losses. The question is, Did the contract, conduct and proceedings of the appellants constitute them partners as to third persons? As a test of partnerships the so-called net-profit rule, which dates back to the year 1775, has, since 1860, been abandoned as a result of the decision in Cox v. Hickman, 8 H. L. Cas. 268. Prior to 1860 mere participation in the profits, regardless of the intention of the parties, was by the English courts held conclusive of the liability of the participant to the creditors of the concern. The change in the rule in England was readily adopted by the American courts, and since then the fact that there was to be a participation in the profits is only regarded as a circumstance to be taken into consideration with all the circumstances and the whole transaction in determining whether or not a partnership existed. (Shepard v. Pratt, 16 Kan. 209, 213; Beard v. Rotvland, 71 Kan. 873, 81 Pac. 188; Weiland v. Sell, 83 Kan. 229, 109 Pac. 771; and see the cases cited in Note, 18 L. R. A., n. s., 963, 1006.) Numerous attempts have been made to formulate a definition of partnership, but it has been said to be beyond the capacity of courts to make a definition which is at once accurate, comprehensive and exclusive. (Langley v. Sanborn, 135 Wis. 178, 114 N. W. 787.) In Fechteler v. Palm Bros. & Co., 66 C. C. A. 336, 133 Fed. 462, Judge Lurton expressed the opinion that “it is not very prudent to define a partnership.” (p. 340.) The mere fact that the parties call themselves partners or refer to their business relation as a partnership will not necessarily make them partners nor make the business a partnership. {Thompson v. Holden, 117 Mo. 118, 22 S. W. 905; Jordan v. Wilkins, 3 Wash. C. C. Rep. 110; Sailors v. Nixon-Jones Printing Co., 20 Ill. App. 509.) On the other hand, a contract may create a partnership although there is no mention in it of the word. {Johnson Bros. v. Carter & Co., 120 Iowa, 355, 94 N. W. 850; Griffon v. Cooper, 50 Ill. App. 257; Spaulding v. Stubbings, 86 Wis. 255, 56 N. W. 469, 39 Am. St. Rep. 888.) It has also been repeatedly declared that a man can not be made a partner against his will, by accident, or by the conduct of others, for the reason that, partnership is a matter of contract. {Cook v. Carpenter & Cook, 34 Vt. 121, 80 Am. Dec. 670; Freeman v. Bloomfield, 43 Mo. 391.) Nor will it arise by operation of law. The courts will no more create such a contract against the will of a party than they will contracts of any other character. {Fairly v. Nash, 70 Miss. 193,12 South. 149; Phillips v. Phillips, 49 Ill. 437; Hankey v. Becht, 25 Minn. 212.) So that the fact that the appellants in this case signed a contract which defined the relation between themselves and Hornaday as a “partnership” is of very slight consequence. We think it is clear that under the contract in question no partnership was created; that is, no commercial or trading partnership. The arrangement was formed not for the purpose of buying and selling stock in general, nor did it contemplate the general sale of the stock of the particular corporation mentioned in the agreement; it was for the sole purpose of selling on commission 250 shares of that stock in the city of Lawrence. Similar arrangements between parties for sharing both profits and losses in a single venture, where the division was clearly intended to be in lieu of compensation for services or of office rent and advertising, and matters of that kind, have been held not to create a partnership in the sense that one partner could bind the other by his- contract. In Lee v. National Bank, 45 Kan. 8, 25 Pac. 196, a partnership was formed for the purpose of carrying on á real estate, loan ánd insurance business on commission, but it was held to be a nontrading partnership. In Shepard v. Pratt, 16 Kan. 209, 213, and in Beard v. Rowland, 71 Kan. 873, 81 Pac. 188, it was ruled that profit-sharing is not an unfailing. test of the existence of partnership, but merely a fact which may be taken into consideration to determine the question, and is often controlled by other considerations. In Weiland v. Sell, 83 Kan. 229, 109 Pac. 771, it was held that the arrangement for a division of the net profits or commissions on certain sales in lieu of office rent and advertising did not create a partnership, and that the sharing of the profits was a circumstance overborne by other controlling facts. In Horn v. Newton City Bank, 32 Kan. 518, 522, 4 Pac. 1022, the distinction was drawn between a non-trading partnership and a commercial or trading one. In that case it was held that Horn and Long were partners only in the running of a threshing machine, and it was said that “such a partnership is one of occupation or employment only. It is not a commercial or trading partnership” (p. 522), and although the contract provided for a division of the profits and losses equally, it was held that whoever deals with an individual j ointly interested with another in such a matter' “must, at his peril, inform himself of the nature of the partnership” (p. 522). The present case falls within the principle of many cases which have arisen where parties undertake jointly a single enterprise or venture, as, for instance, that of buying a tract- of- land and selling it again at an advance, the profits or losses to be shared equally, the profits to be in lieu of services in the joint enterprise undertaken, that of selling the particular land. Arrangements like these have repeatedly been held not sufficient to constitute a partnership. (Gottschalk v. Smith, 156 Ill. 377, 40 N. E. 937; Adams v. Funk, 53 Ill. 219; Coward v. Clanton, 122 Cal. 451, 55 Pac. 147; Sain v. Rooney, 125 Mo. App. 176, 101 S. W. 1127.) A case in point is that of Bruce v. Hastings, 41 Vt. 380, 98 Am. Dec. 593. In the opinion it was said: “But we think a partnership does not arise on the agreement which the evidence tends to show was made between these parties. ... It was not an agreement to put in capital and labor for the purpose of trade generally, but the agreement, as shown by the evidence, was limited to a single specific purchase by the defendant, with the understanding that the property should be sold as soon as a purchaser or purchasers could be found, and that the defendant would give the plaintiff one-half that should be made in the enterprise, in consideration of his agreement to aid and assist the defendant in carrying out his contract with Nelson. The form of the contract has very much the appearance of being a mode of determining the plaintiff’s compensation for the assistance which he contributed to the defendant in the purchase and sale of the property.” (p. 383.) The contract-itself shows that there was no commercial or trading partnership formed. The court should have sustained a demurrer to the evidence. The judgment will be reversed and the cause remanded with instructions to render judgment in favor of the defendants.	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The opinion of the court was delivered by Burch, J.: The actions were instituted to enjoin the defendants from maintaining common nuisances contrary to the provisions of the intoxicating-liquor law. The cases were tried together and the state prevailed. The defendants took separate appeals which may be considered together. The defendants are druggists owning and conducting retail drug stores in the city of Junction City. The judgments rest on proof that the defendants kept for sale and sold the article known as Jamaica ginger. On occasions they manufactured the article according to the formula found in the United States Pharmacopoeia. The following stipulation was made: “It is herewith agreed that the testimony as to sales that will be introduced in these cases will relate to the following articles or compound, to-wit: That tincture, extract or essence that is designated in the United States Dispensatory as Tincture of Ginger,’ and is commonly called and known as ‘Jamaica Ginger.’ Is in the United States Dispensatory classed with those of lemon, vanilla, cinnamon, cloves, camphor, cologne, paregoric, peppermint, wintergreen, and many others of like character; and also that said tincture of ginger is composed of ingredients, as shown by the formulae in the United States Dispensatory, as follows: 93 to 94 per cent alcohol, the balance being a fluid extract of ginger.” The evidence was that the use of Jamaica ginger as a substitute for whisky has become quite extensive in Junction City. The preparation is intoxicating, the ginger — itself a stimulant — working no change in the intoxicating character of the alcohol, and the effect produced is about the same as that of whisky. It is capable of being used as an intoxicating liquor, the method being to dilute it with water, and it was so used to such an extent that blacklists were kept of persons who were known to be using it too freely. The city marshal furnished the druggists of the city with a list of the names of eleven of such persons. Some of the defendants had other persons in mind also. Persons on the blacklist would send unsuspected persons to the drug stores to buy for them. The preparation seems to have been sold in two-, three-, and four-ounce bottles. One witness paid twenty-five cents per bottle (size not stated) for what he drank. The defendants were quite indefinite as to the matter of total daily sales. One of them who was pressed for an estimate said he did not think his sales were as much as three or four dollars per day. One habitué said there was a difference in the color and strength of the liquid procured from different drug stores. Sometimes bot- ties were sold without a label. Sometimes bottles were refilled. In one instance two young men, referred to in the course of the trial as boys, drank a bottle together. When giving judgment in the case the court said: “It is true, these druggists took precautions, and I don’t think they intended, really, to sell to any one that they found out was really using it as a beverage, but yet they must have known that it was being used in that way.” Two of the defendants possessed internal revenue stamps. The other did not. Possession of such a stamp Was explained in this way: “Ques. Mr. Miller, you may state whether or not you have any drugs, medicines or compounds in your establishment that require a Government stamp for intoxicating liquors. Ans. Yes, sir, we have a good many of them. “Ques. About how many of them ? Ans. I wouldn’t dare to say how many of them. There are 247 patent medicines we are notified by the Government of the United States that we must have a stamp to carry. I could n’t say how many of them I have. “Ques. State whether that is the reason you had a stamp. Ans. Yes, sir, and we were notified by Mr. Jackson at the time.” “Ans. Ever since I have carried a stamp, because none of those 247 patents, we are not furnished with a list of them, and every once in a while there are twenty or thirty added to it, and every once in a while an Internal Revenue man might drop in.” The law of 1881 contains these provisions: “Any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be guilty of a misdemeanor, and punished as hereinafter provided: Provided, however, That such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act. “All liquors mentioned in section one of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquors within the meaning of this act.” (Laws 1881, ch. 128, §§ 1, 10, Gen. Stat. 1901, §§ 2451, 2460.) Material portions of the injunction statute under which the present proceedings were commenced are the following: “All places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, 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 the law, and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances.” (Laws 1901, ch. 232, § 1, Gen. Stat. 1909, § 4387.) “The attorney-general, county attorney, or any citizen of the county where such a nuisance as is defined in section 1, chapter 232, Session Laws of 1901, exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same.” (Laws 1903, ch. 338, § 1, Gen. Stat. 1909, § 4388.) The liquor law of 1881 was interpreted in the Intoxicating-Liquor Cases, 25 Kan. 751, decided in 1881. Speaking through Mr. Justice Brewer, the court said: “This section [10] whose language is unfortunately chosen, is the one which has provoked this litigation, and has tended to create so much prejudice against the statute; for its letter reaches to preparations which no man can believe were within the intent of the legislature, and any interference with whose sale, if within the power of the legislature, would be felt by every one to be unnecessary and unreasonable. Alcohol is the intoxicating principle, the basis of all intoxicating drinks. Whatever contains alcohol, will, if a sufficient quantity be taken, produce intoxication. Hence, whatever liquor contains alcohol is within the statute. So reads its letter. But when we come to inquire as to the liquors which contain alcohol, we find a lengthy list of fluids which are never used as beverages. Cologne, extract of lemon, bay rum, paregoric, tincture of gentian and many other medicinal preparations con tain alcohol and all will produce intoxication. They are seldom used as a beverage, and yet they may be. Intoxication produced by drinking bay rum has been known. Yet few will drink it. Its uses are for the toilet. But three of the cases before us are prosecutions for the sale of bay rum, essence of lemon and tincture of gentian, respectively. These preparations contain alcohol, and will each, it is charged, produce intoxication. If the statute includes such articles, many of them are absolutely and wholly shut out from sale. . . . But the legislature never intended such a sweeping prohibition. The use of intoxicating liquors as a beverage was the evil, and the statute must be read in the light thereof. It intended to put a stop to such use, and limit the use to the necessities of medicine. Now the cases before us group themselves into three classes; and the same division is far reaching and of general application. The first embraces what are generally and popularly known as intoxicating liquors, unmixed with any other substances. Thus in one case the sale of brandy is charged. The second includes articles equally well known, standard articles, and which, while containing alcohol, are never classed as intoxicating beverages. Their uses are culinary, medical, or for the toilet. They are named in the United States dispensatory and other similar standard authorities; the formula for their preparation are there given; their uses and character are as well recognized and known by their names as those of a horse, a spade, or an arithmetic. The possibility of a different and occasional use does not change their recognized and established character. A particular spade may be fixed up for a parlor ornament, but the spade does not belong there. So, essence of lemon may contain enough alcohol to produce intoxication, more alcohol proportionately than many kinds of wine or beer. It is possible that a man may get drunk upon it, but it is no intoxicating liquor. Bay rum, cologne, paregoric, tinctures generally, all contain alcohol, but in no fair or reasonable sense are they intoxicating liquors or mixtures thereof. The third class embraces compounds, preparations, in which the alcoholic stimulant is present, which are not of established name and character, which are not found in the United States dispensatory, or other like standard authorities, and which may be purely medicinal in their purpose and effect, or mere substitutes for the usual intoxicating beverages. If not intoxicating liquors they may be ‘mixtures thereof’ within the scope of the statute. Here belong many of the patent medicines, the bitters, cordials, and tonics of the day. Here also are such compounds as that charged in one of the informations before us, a compound of whisky, tolu and wild cherry.” (pp. 762, 766.) The conclusion was that the first class was within the statute, the second class was without the statute, and the courts could so declare as a matter of law. Whether or not articles belonging to the third class were within the statute presented a question of fact for the jury. The defendants argue that the stipulation entered into places Jamaica ginger in the second class referred to in the Intoxicating-Liquor Cases as a medicinal article whose ordinary use is the relief of colic, diarrhoea and similar disorders; the use of culinary toilet and medicinal articles belonging to this class as substitutes for whisky not having been in the legislative mind in 1881, the statute does not embrace them now; and judgment should in strictness have been rendered against the state on the stipulation. The difficulty with this argument is that the statute of 1881 as interpreted in the Intoxicating-Liquor Cases is no longer in force. In 1909 the legislature passed a new act which extended the prohibition of the law to the manufacture and sale of intoxicating liquors for medical, scientific and mechanical purposes, and which superseded the old definition of intoxicating liquors. Sections 1 and 4 of chapter 164 of the Laws of 1909 read as follows: “Section 1. That section 2451 of the General Statutes of Kansas, 1901, be amended so as to read as follows: Sec. 2451. Any person or persons who shall manufacure, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors shall be guilty of a misdemeanor and punished as hereinafter provided. “Sec. 4. That section 2460 of the General Statutes of Kansas, 1901, be amended so as to read as follows: Sec. 2460. All liquors mentioned in section 1 of this act shall be construed and held to be intoxicating liquors within the meaning of this act.” (Gen. Stat. 1909, §§ 4361, 4364.) The only modification of the act of 1909 is that, under an act passed in 1911, wholesale druggists of a certain class may sell alcohol for medicinal, scientific and mechanical purposes to registered pharmacists engaged in good faith in the retail drug business, in quantities of not less than one gallon and not more than five gallons. The result is that the court has before it for interpretation a statute substituted for the one on which the defendants rely, for the purpose of meeting conditions which have arisen since 1881, and for the purpose of extending and strengthening the prohibitory law. In the case of The State v. Ross, 86 Kan. 799, 121 Pac. 908, an interpretation given the act of 1881 by a decision rendered in 1887 was pressed upon the court. In response it was said: “The legislature has traveled very far since that statute was enacted and that case was decided, and a person would make a great mistake to rest conduct upon the liquor law as it then stood. The schemes and shifts and devices to evade the law have been so numerous and cunning, and the social benefits hoped for from regulation of the liquor traffic have been so persistently circumvented, that the legislature has felt it necessary again and again to call upon the people to make personal forbearances in the interest of what has been esteemed the general welfare.” (p. 802.) One of the perfectly natural and inevitable consequences of the strict enforcement of the prohibitory law was that persons with alcoholic addictions and others desiring the stimulating effect of alcohol should turn to the nearest substitutes for the usual intoxicating agents. In 1881 it was known that persons would use bay rum for purposes of intoxication. (In toxicating-Liquor Cases, 25 Kan. 751, 762.) Extract of lemon has been used for the same purpose with success. (Holcomb v. The People, 49 Ill. App. 73.) The same is true of essence of cinnamon (State v. Muncey, 28 W. Va. 494), and Jamaica ginger cases are common in the books (Mitchell v. Commonwealth, 106 Ky. 602, 51 S. W. 17; Arbuthnot v. State, 56 Tex. Crim. Rep. 517, 120 S. W. 478; Bertrand v. State, 73 Miss. 51, 18 South. 545). In thé case of Mitchell v. Commonwealth, the opinion reads: “Appellant was convicted of the offense of selling intoxicating liquors in violation of a special act applicable to Laurel and four other counties. The sole proof was of a phial of Jamaica ginger, White’s brand. It is claimed that this was a variance. It'was not a variance, if Jamaica ginger was a spirituous liquor. The jury found that it was. But the objection is urged that there was no evidence to support this finding, as both the vendor and vendee swore it was not intoxicating. Evidence of a druggist was introduced that the regulation requirement of Jamaica ginger was 96 per cent alcohol and 4 per cent ginger. If the jury believed this testimony, and believed that the phial contained Jamaica ginger (and it was bought and sold as such), they were authorized to conclude that it was intoxicating. Moreover, we think that, without the druggist’s evidence, it is a matter of common knowledge that Jamaica ginger is an intoxicant and a spirituous liquor, and it is hardly more necessary to introduce testimony of that fact than it would be of whiskey.” (p. 603.) It will not be assumed that the legislature was ignorant of the fact that persons deprived of their usual stimulants would resort to substitutes, or that dealers with an eye to profit would supply customers desiring stimulants with fair substitutes. In 1909 the small remedial value of alcoholic stimulants as compared with the former popular notion regarding their curative properties had been established. The pathway to inebriety through the. use of patent and other medicines, consisting of intoxicating liquor containing some barks or drugs or roots or seeds having more or less medicinal property, had been unmasked. The United States Pharmacopoeia, which lists straight alcohol — the common beverage of a certain class of drinkers — was no longer the touchstone by which to divide medicine from intoxicants. None of the social disasters which had been predicted as results of the law of 1881 had befallen the state. Fear lest the law might be brought into disrepute by encroachment on the right to use preparations containing alcohol was no longer entertained. Nearly thirty years’ experience disclosed that restraints, which year by year had been continually imposed and which would have been regarded as unnecessary and unreasonable when the law was new and strange, were fit and wholesome and were approved by public sentiment. The progress of events had been such, when the ■ legislature approached a revision of the law in 1909, that the intellectual, moral, social, and legal atmosphere had become a wholly different medium from that in which the legislature of 1881 labored. If in the act of 1909, which cut off the sale of intoxicating liquors for even medicinal purposes, the legislature had inserted the following definition: All liquors mentioned in section 1 of this act, and all other liquors or mixtures thereof, by whatever name called, which will produce intoxication, shall be considered and held to be intoxicating liquors, no one would have regarded the language as unfortunately chosen, or as tending to produce prejudice against the law, or as unnecessary or unreasonable because reaching culinary, toilet, or medicinal preparations in fact intoxicating and used as substitutes for whisky. The spirit and internal sense of the law would have been regarded, as identical with the ordinary and popular signification of the plain words. The suggested definition is precisely the one contained in the law of 1881. Since the court, acting according to its light in 1881, had interpreted the definition contained in the earlier statute to exclude from the class “intoxicating liquors” a class of liquors which were intoxicating, the legislature repealed the definition and substituted another which, when read, as it must be, with section 1 of the act of 1909, means and says this: Any spirituous, malt, vinous, or fermented liquor shall be construed and held to be intoxicating liquor and any other liquor which is intoxicating in fact shall be deemed and held to be an intoxicating liquor. The legislature was not doing an idle thing by repealing one definition and substituting another. It intended to change the law, and the result is that the classification established by the Intoxicating-L/iquor Cases is abrogated. Liquors belonging to the first class there described, such as whisky, brandy, gin, wine, beer, and the like, are still to be construed to be intoxicating. All other liquors belong to the third class, and the rule or test is this: If the liquor be such that the distinctive character and effect of intoxicating liquor be absent, it is outside the statute; if the distinctive character and effect of intoxicating liquor be present, it is within the statute. The fact is to be determined by the jury, or by the court when sitting as a trier of the facts. If in any case the liquor sold or kept for sale be identified, by the proof as plain whisky or brandy or gin or wine or beer, or other spirituous, malt, vinous, or fermented liquor of the kind specifically mentioned in the statute, it shall be construed and held to be intoxicating. As to such liquors the statute simply declares what the courts and everybody else know. If the liquor sold or kept for sale be not so identified, but belongs by name or qualification of name to some other class, or be unclassified, its intoxicating character must be submitted to the jury, or to the court when trying the facts, as a question of fact. In such cases the evidence may relate to its nature and constituent elements, its ordinary use, its susceptibility to use as an intoxicant, the extent of such use, and all other matters which in the particular instance will aid in determining the issue. The evidence in the cases under consideration was amply sufficient to warrant a finding that Jamaica ginger is an intoxicating liquor within the meaning of the statute. The court has repeatedly held that the various provisions of the intoxicating-liquor statutes are to be construed as a comprehensve whole directed to a common end. When the act of 1909 became effective the injunction statute was not amended in any sense of the term, but the words “intoxicating liquors” used there, and used elsewhere throughout the body of the prohibitory law, became impressed with the signification given them by the statute of 1909. The judgment in each of the three cases is affirmed.	[ -16, -18, -4, -116, 58, -12, 44, -8, 64, -117, -28, 115, -55, 82, 5, 35, -73, 125, 116, 107, -31, -74, 7, 3, -126, -45, -21, -125, -75, 78, -41, 92, 12, 36, -62, 117, 103, -40, -14, 30, -58, 25, -23, 105, -13, -101, 60, 58, 7, 11, 97, 30, -25, 44, 88, -101, 105, 40, 75, 29, -48, -8, -102, 85, -19, 22, -93, 34, -100, -107, -38, 14, -100, 49, 1, 104, 115, -108, -122, -12, 7, -7, -124, 102, 98, -96, 85, -17, -24, -116, 38, -82, -99, -122, -72, 89, 65, -120, -67, -107, 126, 24, -91, -38, -5, 85, 31, 124, -107, -122, -74, -93, -113, 48, -126, 7, -17, -89, 48, 85, -49, 42, 92, 85, 48, 27, -113, 84 ]
The opinion of the court was delivered by Johnston, G. J.: This is a proceeding to compel J. D. Botkin, the warden of the state penitentiary, to restore B. D. Jones to the position formerly held by him as cell-house man of the institution, and from which he had been removed by the warden. In his pleading Jones alleged that he had been an attendant at the penitentiary for over nine years, and that for some time prior to October 31, 1913, he had been in charge of the insane ward of the institution, and had nursed and taken care of prisoners who were insane. It was also alleged that he had been trained fdr that work, and had faithfully and efficiently performed the duties of the place, and had received as compensation for his services the sum of $800 per year. It was' further averred that, although serving under and protected by the civil service law (Laws 1905, ch. 487, Gen. Stat. 1909, §§7970-7972), which prohibits the removal of subordinate officers and employees from the state penitentiary and other institutions of the state because of political affiliations or actions and never except for cause, the warden, in willful disregard of the law and of his duties under the law, discharged Jones from his position as cell-house man and refused to permit him to perform the duties or to receive his salary as such employee. It is further expressly alleged that J ones was removed by the warden for political reasons, and to enable that officer to appoint a political friend to the position, and that there was no charge of inefficiency or unfitness for the position, and no notice was given Jones that he was to be removed because of any such charge. On a motion to quash the alternative writ it is contended that as Jones is alleged to be a cell-house man working in the insane ward, and nursing and caring for prisoners under treatment for the disease of insanity, he was not under the jurisdiction or control of the warden, nor an attendant or employee of the state penitentiary. It is argued that he is an officer or attendant of the state asylum for the dangerous insane, for which provision was made in chapter 299 of the Laws of 1911. That act, in effect, provides for enlarging the scope of the insane ward of the penitentiary, for which provision had theretofore been made. In addition to convicts who have become insane, the act provides for holding and caring for such insane persons, idiots, imbeciles and epileptics as may be committed thereto by the courts of criminal jurisdiction. According to the act, the asylum is to be erected, equipped and maintained by the board of directors of the penitentiary, and is to be supervised and managed by the board in connection with that institution. The appropriation to maintain the hospital for the criminal insane is to be expended by the prison authorities. The warden is the chief executive officer of the penitentiary, who superintends every department of the institution, including the hospital for the criminal insane. The averments of the alternative writ show that he is in fact exercising control of the attendants in that ward or hospital, and he did remove Jones from serving as cell-house man and nurse in that hospital. There is some contention that Jones voluntarily surrendered the office, and that this may be inferred from letters written by the warden which are attached to the alternative writ. In the first letter the warden said: “In the reorganization of the prison force, which has always been the custom under cbnditions that now exist in Kansas, it becomes necessary for me to request your resignation, to take effect the last day of the present month. “I am sure your sense of fairness will prompt you to do this cheerfully.' You will leave the service with my hearty good will and best wishes.” In the second letter, written five days later and addressed “To Whom It May Concern,” the warden said: “In the case of Mr. B. D. Jones, who will retire from the penitentiary service on October 31, it is proper for me to say that he has been an excellent officer for a number of years. “He is a gentleman of first-class habits and character anti is not wanting in valuable accomplishments. In fact, I wish to say that as. an officer, he has been loyal to the authorities of the institution, efficient in every position in which he has served, and I do not hesitate to say that his place will be difficult to fill. “I have authorized Mr. Jones to refer any interested party to me for further endorsement.” The first letter was in fact a demand for a resignation and the equivalent of an order of removal. The second was a friendly endorsement of Jones and given with the evident purpose of aiding him in securing a position elsewhere. If there is any doubt as to the inference to be drawn from the letters of the warden or as to the reason why Jones is no longer in the service or upon the pay roll of the institution it is set at rest by the averments in the writ, 'which are to the effect that Jones was removed arbitrarily, unlawfully and without cause by the warden and who since that time has refused to allow him to serve in the institution in any capacity. The import of all the averments of the writ, when considered together, is that Jones was removed for political reasons contrary to the civil service laws, which, it has been said, “are designed to break up the spoils system of filling public offices and employments, and to promote efficiency in the administration of public business.” (Jagger v. Green, 90 Kan. 153, 158, 133 Pac. 174.) It is finally contended that a cell-house man is an officer within the meaning of section 2 of article 15 of the state constitution and under that provision he is only holding his place at the pleasure of the appointing power and may be removed at the will of the warden. The section reads: “The tenure of any office not herein provided for may be declared by law; when not so declared such office shall be held during the pleasure of the authority making the appointment, but the legislature shall not create any office the tenure of which shall be longer than four years.” It is argued that no tenure is prescribed for the office held by Jones, and accordingly, by the express terms of the constitution, he holds only during the pleasure of the warden and subject to removal by him without regard to the civil service act. Whether this limitation applies to officers' who hold during the pleasure- of the appointing power and whose tenure may terminate on the occurrence of some uncertain event is not open for decision in this proceeding. The position of cell-house man is not an office within the meaning of that section of the constitution. He is an ordinary attendant such as farmer, towerman, doorkeeper or other ordinary employee who performs services under direction of the governing officers of the institution. In one provision of the statute warden, clerk, physician, chaplain, deputy warden and such keepers as the warden and directors may deem necessary are spoken of as officers. (Gen. Stat. 1909, § 8560.) An attendant, such as a cell-house man, does not come within this classification, and in any event it is clear that he does not come within the officers referred to in the constitutional provision. That is indicated by the character of the service which' he performs, the manner of appointment and the fact that an official bond is not required of him. (Jagger v. Green, supra.) The statute provides that only the warden, deputy warden and clerk of the institution shall give official bonds. -(Gen. Stat. 1909, §8578.) The purpose of the constitutional limitation makes it clear that the makers of the constitution were not concerned about subordinate officers and employees that might be called to public service of the kind to be performed by cell-house men. The legislature was given power to create offices not named in the constitution and to fix the tenures of the same, and the object was to prevent an abuse of that power by unduly extending the tenure of such officers as exercised the powers of sovereignty and shaped the policies of government and in that way might encroach on other departments of the government. The position held by Jones is within the protection of the civil service law and therefore the motion to quash the alternative writ must be overruled.	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The decision of the court was delivered by West, J.: On March 11, 1914, the state on the relation of the attorney-general filed its petition (case No. 19,352) alleging the enactment of ordinance No. 28, authorizing the issuance of bonds of the city of Pratt in the sum of $50,000 to provide funds for the purpose of constructing and equipping an electric light plant, to be owned and operated by the city, for the purpose of supplying such city and its inhabitants with electric light, and providing for the form and contents of such bonds and interest coupons attached, and for the manner of execution of the same; that such ordinance, in accordance with the provision of section 4 thereof, was to take effect and be in force from and after ten days from the time of its final passage, approval and publication as by law provided; that such ordinance was not for the immediate preservation of public peace, health and safety, and contained ho statement of its urgency; that on the 27th day of February, 1914, a petition legally sufficient and signed by the requisite number of electors of the city (more than 25 per cent of the entire vote cast at the preceding general municipal election) was presented to the board of commissioners, protesting- against the passage of the ordinance in question; that upon such presentation it became the duty of the commissioners -to repeal such ordinance or submit the same to popular vote; that on the 5th day of March, 1914, the commissioners denied the petition, and refused to repeal the ordinance; that thereupon application was made to the city clerk to attach a certificate of sufficiency to the petition, and that he refused so to do. A writ of mandamus was sought against the board of commissioners compelling them to repeal the ordinance or, in the event of their failure so to do, to compel the clerk to attach the certificate of sufficiency to such petition, and this being done, that the commissioners be ordered to submit such ordinance to popular vote at the general municipal election to be held April 7, 1914. On March 21, 1914, the plaintiff filed another petition (case No. 19,377) reciting the publication of the ordinance, the filing on March 9,' 1914, of a petition to repeal or submit such ordinance at the next general municipal election, and alleging that on the 11th day of March, 1914, the city clerk canvassed the signatures to such petition and attached thereto his certificate that they amounted to more than 10 and less than 25 per cent of the number of votes cast for mayor and commissioners at the last, general. city election, and that the commissioners, on the-day of March, 1914, by formal action refused to pass or submit such ordinance, and praying for a peremptory writ of mandamus directing the commissioners either to pass the proposed ordinance or submit it at the general city election in April. The commissioners answered, reciting the history and enactment of ordinance No. 28, and their refusal to repeal such ordinance or submit the petition filed February 27, alleging that the latter was filed more than ten days after the final passage of ordinance No. 28, and that such ordinance is required by the gen eral laws of the state and is not subject to protest, and that they are without authority to act as demanded by the plaintiff, and that the ordinance is not subject to the provisions of section 1503 of the General Statutes of 1909. An agreed statement of facts has been presented, reciting, among other things, that ordinance No. 28 was duly published according to law on February 16, 1914, and that thereafter, on February 27, the petition was filed to which the clerk’s certificate of sufficiency was attached, dated March 5, 1914; that on the 9th of March, 1914, another petition was filed containing a sufficient number of signatures and proposing an ordinance to repeal ordinance No. 28, to which petition was attached the clerk’s certificate of sufficiency; that on March 12,1914, the commissioners considered this petition and refused to pass the proposed ordinance, and also refused to submit the same at the next general city election. It appears that on the 28th of July, 1913, an ordinance was passed directing the mayor to call an election for the purpose' of submitting a bond proposition; that such proposition was submitted on September 16, and carried, in pursuance of which ordinance No. 28 was enacted, which as already indicated provides for the preparation, execution and registration of the bonds. The proposition voted upon September 16 was whether the commissioners should issue and sell bonds in the sum of $50,000 to provide funds for the purpose of constructing and equipping an electric light plant for the purpose of supplying the city and its inhabitants with electric light, such bonds to be for $500 each, payable 20 years from date with option of redemption at date of any interest payment after ten years, and bearing interest at 5 per cent, payable semiannually, so that the election gave the commissioners full authority to proceed by ordinance to issue the bonds, and ordi nance No. 28 simply provides for the form of such bonds and the manner of their execution. The law touching the matter is found in sections 1503 and 1504 of the General Statutes of 1909. It is plain that the petition in No. 19,352 shows an attempt to suspend the operation of ordinance No. 28 under section 1504, which provides, in substance, that with certain exceptions no ordinance shall go into effect “before ten days from the time of its final passage,” and if “during said ten days” a petition signed by at least 25 per cent of the votes cast for all candidates at the preceding general municipal election protesting against the passage of such ordinance be presented to the commissioners, such ordinance shall be suspended from going into operation, and if not repealed by the commissioners they shall submit it to a vote either at a general or special election. The petition in No. 19,377 clearly shows an attempt to comply with section 1503, which provides that any proposed ordinance may be submitted by petition signed by the electors of the city; that if the petition accompanying the proposed ordinance be signed by 40 per cent of the votes cast for all candidates at the last preceding general municipal election such ordinance must be passed without alteration in 20 days after the clerk has attached his certificate of sufficiency thereto or shall be submitted at a special or general election. If the petition be signed by not less than ten or more than twenty-five per cent of such electors then the board is required to pass such ordinance without change within twenty days or submit the same at the next general city election occurring not more than thirty days after the clerk’s certificate is attached. The agreed statement of facts shows that this provision of section 1503 was complied with. A petition was presented signed by not less than ten and not more than twenty-five per cent, which was certified by the clerk March 11, 1914, and that the next general city election will occur in not more than thirty days from such date. This petition contained the repealing ordinance sought to be passed or submitted, and the plain terms of section 1503 appear to require favorable action thereon by the commissioners either by way of repeal or by submission. It is not necessary, therefore, to consider the requirements of section 1504 or to determine whether the petition by which it was sought to suspend the operation of the ordinance was filed in time or not. It was suggested on the argument that the repeal of ordinance No. 28 would not take away the authority of the commission to pass another ordinance for the execution of the bonds. Even if this were true it is quite plain that the bonds could not be issued until the enactment of another ordinance. But section 1503 provides that an ordinance proposed by petition or adopted by the vote of the people can not be repealed or amended except by a vote of the people, and if a repealing ordinance should be adopted by popular vote the commission would hardly of its own motion reenact the ordinance repealed. When the matter is submitted at the next municipal election the people of Pratt will have full opportunity to express themselves in a way which may well be regarded as making an end of a controversy which appears to have been for some time a burden and perplexity. The peremptory writ is allowed.	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The opinion of the court was delivered by West, J.: On December 3, 1913, the parties by their counsel stipulated in writing that Honorable Robeit C. Heizer, judge of the thirty-fifth judicial district, who had appeared on request of the parties, should try the cause as judge pro tern, and render judgment any day of the term the clerk desired. The journal entry recited that the cause came on for hearing and trial before Judge Heizer, as judge pro tern., by written consent and agreement of the parties, and continued in progress until the 5th of December; that both parties appeared in person and by their attorneys, and introduced their respective evidence, and rested. It was decreed*that the parties be denied a divorce and the plaintiff be given alimony, and provision was made for the-custody of the children. This journal entry was approved by the attorneys for both parties. Within three days a motion for new trial was filed. Long afterwards a verified amended motion to vacate and set aside the judgment was filed, setting up that Judge Meckel of the Chase district court was not disqualified, sick or absent; that Judge Heizer had no jurisdiction to try any cause outside of his own judicial district; that he was not chosen judge pro tern, by the bar of Chase county and did not take the oath of office; that he was not a judge pro tern, acting in the place of Judge Meckel, but merely tried the cause by virtue of an agreement of the parties; that the term of Judge Meckel expired January 13, 1913, and that therefore his successor, Judge Harris, should set aside the judgment and grant a new trial. On June 3, 1913, this motion was denied, the journal entry reciting that the judgment and decree “was rendered and entered by the agreement and consent of all the parties thereto.” On February 27 a statement was filed by certain of the counsel that the attached stipulation had been misplaced by oversight, which stipulation recited that the trial might be had before Judge Heizer, and no party should raise any question caused by the expiration of the term of Judge Meckel. The sole question presented by the appeal is the validity of the decree rendered by Judge Heizer, the plaintiif contending that it is utterly void for want of jurisdiction. Counsel asserts with vigor and confidence that mere consent can not confer jurisdiction of the subject matter, and in this he is correct. He urges that this is a direct attack on the judgment which can be made by appeal, and he is correct in this also. (Higby v. Ayres and Martin, 14 Kan. 331, 338; Earls v. Earls, 27 Kan. 538; Shaffer, Adm’r, v. Brinkman, 31 Kan. 124; A. T. & S. F. Rld. Co. v. Keller, 31 Kan. 439, 2 Pac. 771; Fleeman v. Railway Co., 82 Kan. 574, 109 Pac. 287; Nason v. Patten, 88 Kan. 472, 474, 129 Pac. 138.) It is argued, further, that as the constitution requires that provision be made by law for the selection by the bar of a pro tern, judge when the judge is absent or otherwise disqualified to sit (Const, art. 3, § 20) the legislature went beyond its power in providing (Gen. Stat. 1909, § 2395) that the parties, or their attorneys, in any case may select a judge to sit in such case. But we are not ready to concede that this constitutional requirement precludes other methods of se lecting a judge pro tem. A very similar question was up in The State v. Durein, 70 Kan. 13, 80 Pac. 987, and in The State v. Weiss, 84 Kan. 165, 113 Pac. 388, wherein it was held that the prohibition of the manufacture and sale of intoxicating liquor for all but the excepted purposes was no bar to complete legislative prohibition. In re Norton, 64 Kan. 842, 68 Pac. 639, is cited, but that case decided that a court, to be legal must be created either by the constitution or by an act of the legislature. The language of the statute is peculiar, “A judge pro tem. of the district court may be selected in the following cases.” (Gen. Stat. 1909, § 2394.) “Such selection shall be made by the members of the bar present. . . . The parties, or their attorneys, in any case may select a judge to sit in such case.” (§ 2395.) Here the word “cases” seems to mean occasions and not lawsuits, and it is significant that the word “selection” and hot “election” is used in the statute and in the constitution. The exact question was considered in Kansas Pacific Rly. Co. v. Reynolds, 8 Kan. 623, and it was there said: “Now this constitutional provision can affect this question only for one of two reasons, either because it restricts the power of the legislature to dispose of a case pending in a court whose judge is disqualified to try it, or because in such a case it guarantees to a party litigant a triál in the same court before a judge pro tem. It is not in terms a denial of power. It does not purport to withhold or limit. Nor is it couched in the form of a grant. The act required is an act of legislative power. It would pass to the legislature under the general grant. Without it, unless restrained by some other clause of the constitution, the legislature could do just what it has done, and what it is authorized to do under this section. If, therefore, it neither grants power otherwise reserved, nor restricts power otherwise granted, why was it incorporated into the constitution, and what function does it perform ? It is directory in its nature. It calls the attention of the legislature to a particular subject, and imposes a duty in that respect. It emphasizes the will of the people in reference to certain legislation; and, being such, we know no reason for construing an imposition of duty as a restriction of power.” (p. 630.) In Davis v. Wilson, 11 Kan. 74, it was held that when the regular judge had left before all the cases for trial had been reached and a judge pro tem. had been elected to dispose of the remaining cases, and he had been of counsel and could not sit in one of them, it was proper to elect another judge pro tem. for that case, “the parties not being able to agree,” the necessary inference being that a selection by their agreement would have been sufficient. In City of Wellington v. Wellington Township, 46 Kan. 213, 26 Pac. 415, the record recited that the trial was submitted to a judge pro tem. by and with the consent of all the parties, and it was said: “Now, this is one of the modes prescribed by statute for the selection of a pro tem. judge.” (p. 217.) Chapter 155 of the Laws of 1911, amending section 2398 of the General. Statutes of 1909, provides that the judge pro tem. shall have the same power and authority as the regular judge “in respect to cases tried before him, or in which he may have been selected to act,” and that there shall be filed with the clerk a certificate of the regular judge that he is physically incapacitated from holding the term, and the judge selected for the term shall receive a certain per diem, “but no such certificate shall be required where a judge pro tem. is selected to try or hear any particular case or proceeding.” This indicates a legislative distinction between a regular selection for the purpose of holding out the term and a choice of one to try a given case, and we think that such distinction marks all the legislation on the subject and accords with practical experience and necessity. In Higby v. Ayres and Martin, 14 Kan. 331, the regular judge was engaged in the trial of a cause, and there being no statutory disqualification to prevent his trying the case in question the parties consented to its trial before another as judge pro tem. It was argued there as here that consent could not confer jurisdiction, but the court said that the authority of the judge pro tem. had been duly recognized by the parties to the cause and by the officers of the court and it was held that he was a pro tem. judge de facto and his acts binding and could not be attacked in this court for the first time. It was held by Brewer, J., in the case of In re Watson, Petitioner, 30 Kan. 753, 1 Pac. 775, that although the opinion and announcement of the decision were made outside the district by one who was no longer judge, yet as the parties had voluntarily proceeded to a hearing before him and accepted his de-. cisión as the action of the court, such acceptance was equivalent to a recognition of him as a judge pro tem. and precluded them from questioning his decision on the ground that he had not been selected and sworn as such. In Railway Co. v. Preston, 63 Kan. 819, 66 Pac. 1050, it appeared that the regular judge was disqualified and the judge of another district was called upon to try the cause, and was duly elected by the bar and presided at the trial with the acquiescence of the parties and officers whose authority could not be questioned in this court for the first time. It was held to be a question of recognition rather than one of jurisdiction conferred by consent. The case is in point in respect to the claim here made that Judge Heizer could not sit outside his own district. The failure to take the oath did not avoid his acts. (In re Hewes, 61 Kan. 288, 62 Pac. 673.) From a consideration of the constitutional and statutory provisions, together with the foregoing decisions and the practical necessities often arising in similar cases, we conclude and hold that the selection made by the agreement of the parties was a valid statutory method of choosing a pro tem. judge to try the case, and such selection being followed by full recognition and acquiescence until long after the decision was ren dered the power of Judge Heizer to sit was and is beyond question. But it is contended that as Judge Meckel’s term expired long before the motion to vacate was filed, Judge Heizer’s powers, if any, had ceased with the expiration of the term and it became the duty of Judge Meckel’s successor to grant the motion, and Bass v. Swingley, 42 Kan. 729, 22 Pac. 714, and Insurance Co. v. Neff, 43 Kan. 457, 23 Pac. 606, are cited. Counsel for plaintiff regards the motion as one to set aside the judgment and also to grant a new trial, and calls attention to the language in the journal entry that the court did “deny and overrule each of said motions.” But if we are to assume that such was the intent and effect of the court’s order it does not follow that it was incumbent upon Judge Harris to grant a motion for new trial. In Bass v. Swingley the point decided was that when the motion is based on the ground that the verdict is not sustained by sufficient evidence it is the duty of the new judge to grant the motion because he could not know what the evidence was. In the Ñeff case a new trial was granted, and this was affirmed and the Swingley case referred to, but what was really involved in the motion does not clearly appear. In Linker v. Railroad Co., 87 Kan. 186, 123 Pac. 745, the matter is placed on the ground stated in Bass v. Sivingley. The point presented by the verified amended motion was the invalidity of the judgment arising out of the alleged lack of jurisdiction in Judge Heizer, and this involved no examination or weighing of evidence in the ordinary sense, or the credibility of witnesses, and one judge could act as well as another. The last legislature provided that the motion shall not be granted, for the reason of the change in judges, when the evidence is available so that the new judge has the facts before him (Laws 1913, ch. 243), and this, though not applicable here, indicates a purpose in line with the decision in the Swingley case. The only question sought to be raised by the appeal, as stated by counsel for the plaintiff, is the validity of the decree, and hence we need not discuss or determine the point suggested as to the effect upon the power of Judge Heizer the expiration of Judge Meckel’s term had. For the reasons already indicated we must regard the decree as valid and binding, and the order refusing to set aside is therefore affirmed.	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The opinion of the court was delivered by' Smith, J.: The appellees, in their petition, alleged' that they are the father and mother of Matteson Harper, deceased; that on December 5, 1911, and prior thereto, the defendant city owned and maintained a public park, known as Central Park, within the limits of the city, and kept and maintained therein a pond of water which had been constructed by the city; that near the south end of the park the pond was seven or eight feet deep and on the date named was frozen over and covered with ice about one inch thick; that the park was in a residence portion of the city where many children lived and passed by; that the city kept and maintained open gates to the park and paths and walks therein upon which the public was permitted to walk, one of which paths was along the south end of the pond;. that for a long time prior to the accident numerous children of the locality frequently resorted to the park to play and for amusement, and especially when the park was covered with ice to slide and skate thereon; that the city neglected to make any effort to keep the children from playing about the pond or from skating- and sliding thereon, and provided no watchman to-patrol the pond or to rescue children therefrom if any got into the pond; that on the above date Matteson Harper, then about seven years old, was going from the Central Park school, located west of Central' Park, to his home on Western avenue in the city, and in so doing passed through the park and along the south bank of the pond, which was the direct route from the school to his home; that observing that the= pond was frozen over and lacking in judgment and discretion by reason of his youth, he was attracted thereby and went upon the ice to slide; that he broke through the ice, fell into the water and was drowned at a point where the water was eight feet deep; that the deceased did not know the dangerous condition of the ice but the condition was well known to the city, its officers, agents and employees; that when the deceased was drowned he was a healthy, strong boy and affectionate to his parents; that had he lived his services would have been of the value of $10,000 to the appellees, for which sum they prayed judgment. To this petition the city filed a demurrer on the ground that the petition did not state facts sufficient to constitute a cause of action. Upon the hearing of the demurrer, it was overruled by the court and the city appeals. Ordinarily, cities and other municipal .corporations in the exercise of their governmental functions are not liable in damages for any neglect, or even wrongdoing, of their officers in the discharge of such duties unless such liability is expressly imposed upon them by law. (Pfefferle v. Comm’rs of Lyon Co., 39 Kan. 432, 18 Pac. 506; Peters v. City of Lindsborg, 40 Kan. 654, 20 Pac. 490; La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272; City of New Kiowa v. Craven, 46 Kan. 114, 26 Pac. 426; City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949; 4 Dillon, Municipal Corporations, 5th ed., § 1660, p. 2895; 28 Cyc. 1305.) An exception to the rule has been made which holds cities liable for damages resulting from defects in their highways or certain conditions of notice. In Jensen v. City of Atchison, 16 Kan. 358, it was said: “Cities, having the powers ordinarily conferred upon them respecting bridges, streets and sidewalks within their limits, owe to the public the duty of keeping them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for special injuries resulting from neglect to perform this duty.” (Syl. ¶ 1.) In the second edition of the reports containing the latter case, numerous authorities are cited approving the doctrine. Neither counties nor townships, however, were held liable in this state for injuries caused by defects in bridges, culverts or highways until the enactment of chapter 237 of the Laws of 1887 (Gen. Stat. 1909, § 658). (Eikenberry v. Township of Bazaar, 22 Kan. 556; Comm’rs of Marion Co. v. Riggs, 24 Kan. 255; Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449.) Another exception to the general rule stated as to the liability of cities in the state was adjudicated in Kansas City v. Siese, 71 Kan. 283, 80 Pac. 626. In that case the city was held liable in damages for maintaining an attractive nuisance in or adjacent to a street in a thickly settled district of the city, and the doctrine was reaffirmed in Roman v. City of Leavenworth, 90 Kan. 379, 133 Pac. 551. There are, however, limitations upon the application of the doctrine. In Tavis v. Kansas City, 89 Kan. 547, 132 Pac. 185, the following quotation from Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598, was made with approval: “ ‘The owner of a thing dangerous and attractive to children is not always and universally liable for an in-j ury to a child tempted by the attraction. His liability bears a relation to the character of the thing, whether natural and common, or artificial and uncommon, to the comparative ease or difficulty of preventing the danger without destroying or impairing the usefulness of the thing, and, in short, to the reasonableness and propriety of his own conduct, in view of all surrounding circumstances and conditions. As to common dangers existing in the order of nature, it is the duty of parents to guard and warn their children, and, failing to do so, they should not expect to hold others responsible for their own want of care. But, with respect to dangers specially created by the act of the owner, novel in character, attractive and dangerous to children, easily guarded and rendered safe, the rule is, as it ought to be, different.’ (p.356.)” (p.553.) The maintenance of the park as described in the petition is clearly a governmental function. The city as a corporation derives no benefit therefrom, but the park is maintained for the benefit of the public without regard to residence. The park is not a public highway, and unless the pond therein is an attractive nuisance the city can not be held liable for the accident upon any principle heretofore recognized by the courts of this state. As described in the petition, and as a matter of common knowledge, the park is not an annoyance to the public, but is a beneficent provision made by the city for open-air recreation and diversion. It adds to the happiness and healthfulness of the thousands who avail themselves of its benefits. The pond in the park adds to its beauty and is accessory to all the beneficent purposes for which the park was established and is maintained. By the allegations of the petition it appears that the pond proved not only dangerous but destructive to the little boy who ventured thereon and who, by reason of his tender years, was incapable of appreciating and avoiding the dangers encountered. The suggestion in the petition that the pond should have been fenced by the city or that patrolmen should have been at the place to keep the boy from going upon the ice is evidently impracticable. A fence about the pond would disfigure the park and rob the pond of much of its attractiveness. So far as appears, the boy went there and upon the ice alone, and there was nothing to attract the attention of patrolmen if such had been employed to watch the pond. The pond was dangerous at the time only because covered with a thin coating of ice. The pond appears to be of like character and, although made by the city, is virtually a reproduction of the ponds found in nature, and nature does not maintain attractive nuisances. That there was possible danger of a child going upon the ice and falling into the water is true, but such an accident, is as likely to •occur on any like pond in nature. It has been said that there is possible danger in every step of life from the cradle to the grave, although the danger may not be foreseen. Every tree that stands in the park or in the city presents the possible danger that some boy may climb it and fall, to his injury or even death. Ordinary care requires only that means be taken to avoid such dangers as are reasonably to be apprehended — probable dangers, not possible dangers. The imminence of the danger is ordinarily the measure of care to be taken to avoid it. There seems to be no reason in this case to hold the city liable which would not have been equally cogent had the boy, in going to or from school, gone through a neighbor’s pasture, with the owner’s consent, and met a like fate upon a pond therein. We know of no rule that imposes higher care upon a city than upon an individual. Much reliance is placed by the appellees in the case of Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573. The syllabus reads: “A municipal corporation is performing a ministerial public duty in maintaining a fire station, and is liable in damages to an employee for personal injuries resulting from the neglect of the corporation to furnish him a reasonably safe place in which to work.” Notwithstanding the use of the word “ministerial” in the syllabus, the real principle involved was the relation of employer and employee as stated in the opinion. We have examined the authorities cited by counsel on the question submitted for additional briefs, and also the collection of authorities in extended notes to three cases in 19 L. R. A., n. s., 1094-1136. The general rule we have stated is sustained by much the greater number of cases, and upon what appears to be the better Reasoning, in cases brought against cities or municipalities where the question of immunity from liability is raised. It is strenuously urged that a city should be liable for any defect or negligence in the maintenance of its parks on the same grounds as in the maintenance of its highways. The necessities of public travel at all times and under all conditions presumably impelled the courts to make the exception regarding the maintenance of the highways in cities as we have noted. Like reasons do not seem to require the extension of the exception to the maintenance of parks; at least this has not been done in this state, and we do not feel that justice would be promoted by making the further exception. On the facts stated in the petition, it does not appear that the pond is an attractive nuisance. The demurrer should therefore have been sustained.. The order and j udgment is reversed.	[ -16, 124, -108, -114, 59, -32, -88, -101, 75, -15, -31, 115, 11, 19, 29, 33, -21, 127, 80, 43, -57, -13, 23, -118, -110, -13, 123, -43, -15, -20, -20, -35, 76, 32, -54, -75, -18, -113, -35, -46, 6, 49, -104, -27, -7, 18, 52, 123, 50, 6, 49, 27, -13, 42, 24, -25, -88, 45, -37, -83, -48, 113, -119, 13, -33, 18, -94, -10, -66, -55, 90, 24, -39, 49, 0, -24, 49, -90, -121, -12, 69, -119, -120, 66, 70, 9, 77, -1, -80, -104, 14, -38, -115, -90, -75, 89, 97, -91, -106, -33, -15, 16, 47, 122, -25, -43, 28, -92, 67, -46, -106, -111, -58, -88, -108, -77, -49, 11, 34, 117, -36, -22, 94, -27, 52, -47, -114, -40 ]
Per Curiam,: The opinion in this case is reported in 91 Kan. 851, 137 Pac. 991. By leave of court a supplemental petition for rehearing has been filed by the manager of the defendant company, to which are attached photographs of defendant’s refinery for the purpose of explaining to the court the various processes through which crude petroleum passes before it is refined; also a supplemental abstract setting forth some additional testimony of the defendant’s witnesses at the trial, for the purpose of showing that the verdict of the jury is contrary to the weight of the evidence. It is insisted that both the trial court and the jury, as well as this court, failed to understand the methods by which the defendant conducts its refinery, and that by reason of this misunderstanding the defendant will, unless a rehearing is granted, be compelled to pay an unjust judgment. It is claimed that the expert witnesses called by the defendant were better qualified by experience and should be believed in preference to the expert witnesses who testified for the plaintiff. On the trial the plaintiff testified that on the morning of the accident he was instructed by Mr. Woodward, the manager, to do just what he was doing at the time he was injured. Mr. Woodward died before the trial; and we are now presented with an abstract of the testimony of Mr. Knapp, who was a witness for the defendant and who testified that Mr. Woodward did not arrive at the plant on that morning until after the accident occurred. It is sufficient answer to all these contentions to say that the jury passed upon the evidence and saw fit to believe the testimony of the plaintiff’s witnesses in preference to those of the defendant, and that it is no part of the duty of this court to weigh the evidence. The pump may or may not have been out of repair; the jury found that it was. The statements in the opinion respecting the manner in which the plaintiff was injured and the methods by which the crude oil is refined may or may not be scientifically correct. They are supported, however, by the testimony of the plaintiff’s witnesses and by the verdict and special findings. That the testimony introduced by the defendant contradicts some of the statements made in the opinion is true. The case here must be decided' upon the theory that the facts found by the jury are the facts of the case. The petition is denied.	[ -16, -22, 100, -83, 8, 96, 56, -38, 81, -89, 103, 83, -27, -53, 12, 105, 126, 63, 84, 99, -46, -94, 67, 83, -42, -77, 56, -57, -80, 110, -10, -9, 76, 48, -53, -43, 38, 8, -57, 84, -114, 4, -103, -32, 89, 24, 52, 114, -14, 15, 49, -116, 99, 42, 29, -57, 109, 44, -5, -19, 81, -15, -118, 5, 47, 16, -94, 38, -100, 111, -40, 30, -40, -79, 40, -24, 114, -74, -62, -12, 43, -85, 12, 98, 98, 33, 21, 107, -4, -88, 31, -34, -115, -91, -47, 40, -53, -94, -106, -97, 112, 114, 15, 126, -2, 21, 95, -12, 23, -117, -74, -79, 79, 36, -100, 64, -21, -125, 20, 101, -51, -70, 92, 5, 83, -97, -41, -66 ]
The opinion of the court was delivered by Burch, J.: By permission of the court, the plaintiff presents a second petition for a rehearing. It is said that the court misapprehended the facts in its two former opinions, that the case is important, that the plaintiff is a physical wreck, is poor, and that justice should be done. Just why the court should be reminded that the case is important is not apparent. It heard the parties in oral argument, considered in consultation the briefs and abstracts, and wrote an opinion covering every essential feature of the controversy. (Gilbert v. Rail way Co., 91 Kan. 711, 139 Pac. 380.) It then considered the petition for a rehearing, again considered the briefs and abstracts, and wrote a second opinion. (Ante, p. 281.) Hence the case has already been given the consideration which an important case might claim. That the plaintiff has suffered grievously from his injuries and is in embarrassed financial condition is a matter greatly to be lamented. But however much the members of the court may deplore the plaintiffs misfortunes, justice demands that the court find a legal liability on the part of the defendant before it compels the defendant by judicial process to contribute to the plaintiff’s relief. While the cases of other litigants wait, the court will take the time necessary to make another disposition of the plaintiff’s two principal contentions — that the court misstates the facts and refuses to follow a former decision (Railway Co. v. Baker, 79 Kan. 183, 98 Pac. 804), settling the law of the case. It will be remembered that the defendant’s track crosses Fourth street of the town of Centraba. The plaintiff, without giving any attention to a train approaching in full view, drove his team, hitched to a farm wagon, on the track in front of the train. A collision occurred and the plaintiff was severely injured. At the trial the court instructed the jury that the plaintiff was guilty of negligence, and could not recover because the defendant was also negligent, but submitted to the jury the question of wantonness on the part of the trainmen. The fireman had observed the plaintiff’s approach and did not call the engineer’s attention soon enough to give the alarm by whistling to avert the collision. The jury returned special findings of fact, and with them a general verdict for the plaintiff. The judgment was reversed and judgment was ordered for the defendant on the ground that the special findings did not warrant the inference of wantonness. The first petition for a rehearing presented the precise points urged now, and was overruled. The material findings of the jury, except No. 47, that the bell was rung when the engine was near the crossing, and No. 43, that the engineer and fireman were in their proper places on the engine just before the collision, are printed in the original opinion at pages 714, 715. In narrating the essential fact's, and elsewhere in the original opinion, it was said, on the basis of the special findings of fact, that the alarm whistle was sounded just before the collision occurred. The plaintiff disputes this statement and says the jury found to the contrary. The court quoted at length from its decision in the Baker case, and held that that case did not apply. (91 Kan. 716.) The plaintiff disputes the court’s estimate of the Baker case and says it does govern the present controversy. - The plaintiff adds nothing to what has already been considered in the two former opinions except this: It is said that the plaintiff made the “one statement of facts before this court” in his brief responding to the defendant’s (appellant’s) brief. In this brief the statement was made that the last time the train whistled was 1500 feet east of Fourth street. In a reply brief by the defendant this statement was not referred to. Starting with these two facts, a statement in one brief not corrected in another, the plaintiff devotes something like a page of typewriting to them, when fihey suddenly swell to this remarkable proportion: “It was a fixed settled fact between the attorneys for plaintiff and defendant. Neither of them doubted but what the jury had settled this point. And we believe “that when the attorneys for the parties agree upon the facts that were established upon the trial, that it is not the duty of the Appellate Court to interfere, especially in behalf of a railroad company who always employs attorneys thoroughly competent to take care of the interest of their clients.” The defendant filed the first brief. The very first thing contained in that brief, after a statement as to the character of the case and the assignment of errors, is a specific statement of the facts which were conceded.. Oif course the “agreement” and other things contained in the plaintiff’s brief which followed are not among-the conceded things. - The defendant’s brief then went on, and under the various assignments of error stated. the testimony essential to an understanding of them, and so, taken as a whole, presented the defendant’s view of the facts. The reply brief wa°s devoted to answering the plaintiff’s argument on matters of law. When the plaintiff’s brief was examined the court-found that the parties were not of one mind as to the facts, and so it went to the abstracts to find out the actuakfacts for itself. As frequently occurs in vigorously contested cases, the court is not able to say that it agrees entirely with either of the parties. The statement in the plaintiff’s brief, however, was fortified by authority. It gave the page of the abstract where the supposed fact could be found. It referred, specifically to page 57 of the abstract. That page of the abstract contains findings 41 to 49, inclusive. The-plaintiff makes no contention that these findings have any relation whatever to an alarm whistle given after it appeared the plaintiff was about to attempt the crossing in front of the train. Both petitions for a rehearing plant themselves squarely on finding 52 alone, to be found on page 58 of the abstract, and, as will be shown hereafter, the plaintiff studiously ignores-, finding 42, to be found on page 57 of the abstract. The court is not assisted to just conclusions by the plaintiff’s injecting into the case assertions of the character of the one under consideration, and it is not the first. In the first petition for a rehearing, responding-to a statement by the court that the whistle was sounded and the bell rung, the plaintiff said that all his witnesses testified to the contrary and that the jury found to the contrary. This was said in face of the record that the plaintiff’s witness, Haskett, testified positively to the sounding of the whistle, and the jury found specially that the bell was rung. The figment that the plaintiff “had his back turned toward the train,” adverted to in the opinion on rehearing (ante, p. 283), belongs to the same class. The daily crossing of the track by a large number of school children has been reiterated as a fact showing the evil-mindedness' of the trainmen, although there was no pretense at the trial that any school child was anywhere in the neighborhood of the crossing at the time of day the train passed. To make it appear that the trainmen were recklessly threatening the lives of the people of Centraba, it has been repeatedly said that the crossings were “two a minute during business hours.” One witness for the plaintiff said he held a watch on the plaintiff during the time the plaintiff walked over to the south of the track, got his team, and then drove back— a period of two minutes. Not a word comes from this witness, or from any other witness in the case, that anybody else crossed the track during that time — the very time the train was approaching — and, as shown in the original opinion, the possible number of people who might cross the track in the course of a day became inconsequential in view of the actual conditions at the time this train approached. The court is compelled to advert to this men-in-buckram method of dealing with facts because one ostensible ground for the petition for a rehearing is to set the court right concerning the facts in the case. The action of the court is likewise given implications that are unwarranted. For example, it is said that the court can not take the fireman’s and engineer’s testimony as against a finding of the jury. The court has twice announced, once in the original opinion and once in the opinion on rehearing, that the decision was rested on the findings of the jury. The court has not adopted the testimony of this witness or of that witness as the basis of its decision, and no language will be found in either opinion warranting such an inference. The evidence was used as a source of light by which to interpret the findings but for no other purpose. The findings of fact constitute a written document signed by the foreman of the jury, the meaning and legal effect of which the court is qualified to determine. Neither the court nor the plaintiff can add to or detract from those findings. In considering them, however, the court is limited to legal and rational methods of interpretation. It does not have the privilege of picking out a single finding of fact from a series relating to a subj ect, excluding all others from consideration, and making a decision accordingly. What then are the facts ? The jury found that when those in charge of the engine discovered that the plaintiff was going to attempt to cross in front of the train they should have given an alarm by whistling, which would have prevented the accident. (Finding 52.) But the jury further found that what should have been done to prevent the collision when the men in charge of the engine found the plaintiff was going to attempt to cross in front of the train was that the fireman should have called the engineer’s attention sooner to give the alarm by whistling (Finding 42), and then the jury found that when the plaintiff left a place where the train could have passed without striking the team the men in charge of the engine could have done nothing which they did not do which would have prevented the accident (Finding 56). What was there to do when the plaintiff left his place of safety and attempted to drive in front of the train? The answer is, ring the bell and blow the whistle to alarm the plaintiff, and set the emergency brakes to stop the train. The jury found specially that the bell was rung. (Finding 47.) They were not asked specially about the alarm whistle, but they made the comprehensive finding that the engine men omitted to do nothing which could have been done. What then do all of the findings, and not one alone, mean? They manifestly mean that as the plaintiff approached the track he ought to have been warned by blasts of the whistle, which would have saved him from injury; that the fireman delayed calling the engineer’s attention to give the alarm by whistling; that the fireman called the engineer’s attention to give the alarm by whistling, but not soon enough; that the bell was rung'; and that in all other respects everything was done that could have been done that would have prevented the accident, including an alarm by whistling. To test this conclusion respecting the meaning of the findings the evidence and the instructions to the jury may be scanned'. The plaintiff produced five witnesses who gave negative testimony that they did not hear, or did not remember of hearing, the bell rung just before the collision." One was paying no attention to the train. Others said the bell might have been rung. Witnesses were produced by the defendant that the bell was ringing just before the collision. The court instructed the jury that the testimony of credible witnesses who positively testified .that the bell was rung and the whistle sounded was of more value than the statements of equally credible witnesses that they did not hear the bell rung or the whistle sounded. The negative testimony of the plaintiff’s witnesses was rejected by the jury in accordance with the instructions they had received, and they found specially that the bell was rung when near the crossing. The testimony that the alarm whistle was sounded just before the collision was produced side by side with the testimony that the bell was rung. Aside from the trainmen and other em ployees of the defendant, residents of Centralia and of the vicinity, who were near the place of the collision and heard and saw what occurred, told of what was called the “stock alarm” being given just before the train struck the plaintiff. The peculiar noise of the whistle was described as being “shrill,” “a screech,” a “screaming whistle.” This evidence was fortified by evidence produced by the plaintiff himself. One of his own witnesses heard the alarm and described the whistle as others had done, as a screech. The fireman called the engineer’s attention to do what? To give the alarm by whistling. The engineer told what occurred when he received the notification from the fireman. He applied the air, raised up and got hold of the whistle which was a little higher, and gave two or three toots, all the alarm he could in the time he had. The fireman was ringing the bell on his side of the cab. After these details had been stated by the engineer his entire conduct was summarized in the following question and answer: “Was there anything you could have done that you didn’t do to have prevented this accident? Ans. No, sir.” This summary of the conduct of the engineer was placed bodily in special question 56 propounded to the jury, which was answered by the jury precisely as the engineer had answered. Tested by the rule that the findings presumably respond to the evidence and to instructions of the court on how to treat the evidence; tested by the finding of the jury relating to the ringing of the bell on the same kind of evidence relating to the whistle; tested by the rule requiring the several findings to be construed together; tested by the rule that findings are to be harmonized if possible and read in such a .way as to be consistent; tested by the inherent probability that when the engineer received the alarm from the fireman his action in sounding the whistle was as spontaneous and automatic as the application of the air to the brakes; and tested by the rules of right thinking and common sense, finding 56 embodies a finding that the alarm whistle was sounded when the fireman called the engineer’s attention to do so. Here again let it be understood that the court adopts no testimony given by anybody. The testimony and the instructions of the jury have simply been searched in order that the findings returned by the jury may be understood, and to the mind of the court, whose data and whose method have thus been described in detail, no conclusion is rational except the one which has been announced. What answer does the plaintiff make to this interpretation of the findings? In his brief he said that finding 56, which the court regards as vital to the decision, is meaningless. In the present petition for a rehearing he does not mention finding 42, that the engineer’s attention should have been called sooner to give the alarm by whistling, does not mention finding 47, that the bell was rung at the critical moment, and does not mention finding 56. He simply ignores the findings which interfere with a judgment in his favor and says the court misstates the facts. This being his attitude, the discussion of this branch of the case is closed. In the petition for a rehearing it is said: “We have been unable to obtain from either of the Court’s opinions a satisfactory explanation of why the facts in the case at bar do not fall squarely within the rule of law laid down in the Baker case.” What the court undertook to do in the original opinion was to point out the distinction between the Baker case and this one in all material particulars. After reading the first petition for a rehearing, and reexamining the subject, the court expressed itself as satisfied with the original opinion. The nature of a lawsuit is such that one party generally prevails, who is not always satisfied, while the other loses, who is seldom satisfied. This being true, the court’s own satisfaction is the only standard to which it feels itself bound to conform. The essence of the Baker case was this: “In an action to recover damages on account of an injury to a pedestrian resulting from a locomotive being driven along the public street of a city at an unlawful and dangerous rate of speed, with no signal being given of its approach and with no outlook being kept, the misconduct of. those in charge of it may amount to such recklessness and wantonness as to cut off the defense of contributory negligence.” (Syl. ¶ 1.) “The running of a train at an excessive speed along or across a busy street of a populous city, without either outlook or signal, may well be held to exhibit such contempt for the rights of others as to supply the place of positive malice.” (79 Kan. 186.) In the petition for a rehearing the plaintiff uses the “deadly parallel.” He says the elements which made u.p wanton negligence in the Baker case were these: • 1. Speed of the train. 2. Busy crossing. 3. Proper warnings. It is then said that those elements are found in the Baker case as follows : 1. Speed of train, 15 miles per hour. 2. Busy crossing; crossing used by pedestrians in wet weather; had been dry some time before the accident. 3. Warnings, 750 feet from the accident. From this it will be observed that the plaintiff suppresses a vital fact of the Baker case — that neither lookout nor signal was employed while the engine was. going at a dangerous rate of speed along the public street. The trainmen might as well have deliberately projected an unmanned engine at a dangerous rate of speed along the street. The other side of the parallel is constructed in this way: 1. Speed, 30 miles an hour. 2. Busy crossing, 1500 people daily or more; two a minute during business hours. 3. Warnings, 1500 feet from the accident. It will be observed that the plaintiff here'puts in on his side the speculative number of crossings instead of the actual situation. On the other hand, he suppresses the lookout kept by the engineer and fireman, who were in their proper places (finding 43), and who were in control of the agencies for giving warnings and for stopping the train; he suppresses the ringing of the bell, specially found by the jury in finding 47; and he suppresses the alarm given by the engineer at the call of the fireman, found by the jury in finding 56. Since the plaintiff’s parallel presents a case which is not the Baker case, and compares it with a case which is not this case, it would be unprofitable to pursue the subject further. The court gave the jury an instruction which was necessary in view of the testimony by the fireman that he did not notify the engineer sooner because he supposed the plaintiff would stop when he got within five or ten feet of the track. The plaintiff does not complain of this instruction, which states the law of the case and which reads as follows: “The trainmen in charge of said engine had the right to assume and rely upon the fact that plaintiff was in the possession of all his faculties, and that he having an unobstructed view of said approaching train, knew of said approaching train, and that he had a team that was safe and that he would stop said team and would not attempt to cross over said track in front of said train, or drive so close to said track that the train passing along would collide with said team.” Therefore there was no absolute duty on the part of the fireman to notify the engineer - until the fireman realized that the plaintiff was not going to stop, con trary to what he had the right to suppose. Then immediate action was essential. The fault imputed to the fireman by the jury is that he did not call the engineer’s attention sooner to give the alarm by whistling, but since he did ring the bell and did call the engineer’s attention to do just the things required to prevent the collision, and which would have prevented the collision if done a moment sooner, that malice, or its equivalent, which would have made the fireman guilty of murder or voluntary manslaughter if death had resulted, is wanting. The only legitimate inference that can be derived from the findings is that the fireman was not quick enough in action, and possibly in apprehension. This is not wantonness, and the plaintiffs own inexcusable negligence in driving in front of the train bars recovery under settled principles of law which the court is not at liberty to disregard. The petition for a rehearing is denied.	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Per Curiam: On rehearing the former judgment is adhered to.	[ -80, -4, -59, -4, -118, 99, 49, -104, 71, 101, 119, 81, 59, -62, 21, 69, 23, 111, 84, 99, 86, -77, 86, -47, -26, -13, -62, 87, 59, -2, -25, 60, 76, 56, -30, -43, 102, -56, -39, 82, -122, 15, -39, 109, 107, 112, 48, 49, -112, -99, 113, 82, -29, 44, 23, -58, 40, 40, 110, -23, 97, -8, -97, 7, 109, 1, -109, -90, 30, -121, 88, 46, -116, 57, 1, -24, 115, -12, 6, -48, -21, -69, 32, 102, 98, -112, 77, 99, -72, -44, 119, -2, 13, -89, 27, 88, -53, 103, -122, -3, 36, 112, 39, -18, -52, -43, 95, 100, 90, -113, -58, -77, -105, 121, -40, 66, -30, -79, -80, 21, -63, -8, 86, -54, 19, -45, -98, -78 ]
The opinion of the court was delivered by BENSON, J.: This is an action to quiet title arising out of litigation beginning in an action brought by Carey McLain against M. V. B. Parker in a circuit court of Missouri, resulting in a judgment on April 16, 1906,-against Parker for a large amount. An action was commenced on that judgment on May 5, 1906, in the district court of Johnson county in which the following real estate situated in that county was attached, viz., a half section of land, called the home farm; seven lots comprising about eight acres in Olathe, called the homestead; and an undivided one-tenth of 120 acres, called the Fairview property. Other property also attached is not involved in this appeal. On a motion in that action by the wife of M. V. B. Parker, who is the plaintiff in this action, the district court dissolved the attachment upon the home farm, and upon all of the homestead except lots 3 and 4. On October 3, 1911, a judgment was rendered in favor of the defendant, M. V. B. Parker, in the action referred to. That judgment was reversed by this court, and thereupon, on May 5, 1913, a judgment was rendered in that action against the defendant therein, M. V. B. Parker, for the amount of the Missouri judgment with accrued interest. This action was begun August 30, 1907, and was tried in May, 1913. The district court stated findings and conclusions as follows: “2. The title to lots 5, 6, 7, 8 and 9, block 2, Stevenson’s First Addition to the city of Olathe, was conveyed to plaintiff by warranty deeds of record dated from 1869 to 1879, and the record title still remains in the plaintiff. “3. The record title to fractional lots 3 and 4 in the same block was conveyed to M. V. B. Parker in 1880, and remained in him until 1911, when it was conveyed by said M. V. B. Parker to plaintiff. “4. Plaintiff and M. V. B. Parker are husband and wife, and have lived since 1868 continuously in the dwelling house situated on lots 8 and 9, above described, and the lots mentioned in Findings 2 and 3 have been enclosed by the same enclosure since about 1880. “5. The record title to the northwest quarter of section 29, township 13, range 24, was vested in the plaintiff by warranty deeds in 1876 and 1878, and the record title to the southwest quarter of the same section was vested in M. V. B. Parker by deed from J. C. Fairbanks, an uncle of the plaintiff, in 1880, and so remained of record until 1890, when M. V. B. Parker quitclaimed said southwest quarter to. plaintiff. The deeds above mentioned were recorded near about said dates and the record title remains as above stated at this time. “6. One A. Anderson holds title as trustee to the east half and the northwest quarter of the southwest quarter of section 26, township 13, range 23, known as Fairview Addition, for a number of parties, and in March, 1905, one Hoard made an assignment of a one-tenth' interest in same to the plaintiff in writing. “7. Carey McLain, defendant's testator, filed suit against M. V. B. Parker in the Circuit Court of Jackson county, Missouri, and on April 16/1906, recovered a judgment for $17,840.60 and costs, and on May 5, 1906, brought suit on said judgment against M. V. B. Parker in the District court of Johnson County, Kansas, and attached all of the real estate described in these findings, together with a large amount of other property, this was case numbered 6724. “8. The plaintiff in this case filed her motion in case 6724 to dissolve the attachment as to all of the property above described and on the 17th day of September, 1907, the Honorable C. A. Smart, sitting as judge pro tern,., dissolved the said attachment as to all the real estate described in Findings Nos. 2 and 5 above. “9. Plaintiff has at all times claimed to be the owner of the real estate described in Findings Nos. 2 and 5, and has been in open possession of the same for from twenty-three to forty-five years. “10. The interest in what is known as Fairview property described in Finding No. 6 was purchased by M. Y. B. Parker and the assignment to the same was taken in the name of the plaintiff in this action. “11. Fractional lots 3 and 4 were the property of M. V. B. Parker at the time of the levy of the attachment in case No. 6724. CONCLUSIONS. “1. Plaintiff should have her title quieted as to all the real estate described in findings numbered 2 and 5. “2. Plaintiff’s title to fractional lots 3 and 4 mentioned in Finding No. 3 and to the Fairview property described in Finding 6, is subject to the attachment lien of the defendant Julia Á. McLain, executrix.” Judgment was entered in favor of the plaintiff, quieting her title to the home farm and to lots 5, 6, 7, 8 and 9 of the homestead, and for the defendant that she had a valid lien upon lots 3 and 4 and the Fairview property. Both parties appeal. The evidence consists mainly of the testimony of the plaintiff and her husband relating to the origin of the titles to the property in question. It appears that Mr. and Mrs. Parker settled in Lees Summit, Mo., in 1866, where they had a home and some other property. Some of that property was conveyed to the wife and some of it to the husband. They removed to Olathe about the year 1868. Four of the homestead lots were purchased more than forty years before the trial. Upon two of them the family residence was established in the year 1868. Two houses have been built since; the one now occupied cost $3000. Another lot was added in the year 1879. These five lots were all conveyed to Mrs. Parker when purchased. The adjoining lots 3 and 4 were purchased in the year 1880, and conveyed to Mr. Parker, and by him conveyed to his wife in the year 1911. They have been in the same enclosure with the other lots since they were purchased, all being occupied and used together. The north half of the home farm was purchased in the years 1876 and 1878 and conveyed to Mrs. Parker. In 1880 the south half was purchased and conveyed to Mr. Parker, and the title stood in his name until the year 1890, when he conveyed it to his wife. The land has been used as a farm ever since the purchase; occupied, it seems, by tenants. A contract was made on June 14, 1904, by the owner of the Fairview land to convey it to A. Anderson, trustee for ten persons named in the instrument. It seems that a town-site addition was platted upon this land. L. L. Hoard, one of the ten persons named in the contract, took and held a one-tenth interest at the instance of Mr. Parker, having in fact no interest in the property. On the 27th day of March, 1905, Hoard assigned all his right and interest in the contract to Mrs. Parker, upon the request of her husband. The evidence tends to prove that the home farm and lots 5, 6, 7, 8 and 9 of the homestead were purchased with money belonging to Mrs. Parker, which came to her by inheritance, although Mr. Parker managed the investments and attended to the business. No accounts were kept of the money so received and invested, and. neither Mr. nor Mrs. Parker was able to give definite dates and amounts. A detailed statement of the evidence upon this question would require considerable space, and is not necessary in view of the fact that it. was sufficient, if believed, to uphold the findings. From, the dates of the respective purchases Mrs. Parker has claimed to be the .owner of the property, and, except the 160 acres conveyed to her husband in 1880, has held the title in her own name. Her possession all this time has been as complete as that of a wife would be whose husband was managing her property. Referring now to the 160 acres last mentioned, the testimony tended to prove that it was conveyed to Mr. Parker for a share in money or property due to his wife by inheritance, and by mistake the deed was made to him instead of to her; and that this mistake was rectified by the conveyance to her ten years later. It will be observed that this was before any claims accrued against him in favor of McLain. The good faith of the transactions by which these various titles were taken in the name of Mrs. Parker is vigorously assailed. It is insisted that the examination of Mr. Parker shows that the property was his; that the amount of Mrs. Parker’s inheritance was trifling; that her alleged ownership is unreal and fictitious ; and that at most she should be held only to have a community or partnership interest in the property jointly with her husband. These matters, however, are settled by the findings. Whether the inability or refusal of Mr. and Mrs. Parker to give details should be ascribed to the failure of memory by reason of the intervening years, or to evasion, as claimed, was necessarily determined by the district court, and the facts so determined, in the absence of erroneous rulings, conclude the inquiry. It must be remembered that the defendant represents a subsequent creditor, one whose claims could not have been anticipated in the years from 1869 to 1880, when the investments in the name of Mrs. Parker were made. It can not be held as matter of law that Mrs. Parker held these titles as a mere' trustee for her husband. Whether she held these titles in her own right because the purchases were made with her own money, or as -gifts from her husband, or merely in trust for him, were questions of fact, settled by the findings in favor of the plaintiff’s title. Various rulings are complained of. A book,-or memorandum taken from a book, kept by Mr. Parker in 1903, purporting to contain a “list of property owned by M. V. B. Parker and Emma Parker,” was offered in evidence by the plaintiff and excluded, although various items thereof were admitted. The memorandum was produced, however, and Mr. Parker was thoroughly examined concerning it. Everything that it contained was necessarily brought to the attention of the court. Very little if any additional light would have been afforded by a formal admission of the writing in evidence. The same ruling was complained of in Parker v. McLain, 88 Kan. 657, 129 Pac. 939,. where a branch of this general litigation was reviewed, and the same ruling was held not to be prejudicial. That view is adhered to. Another ruling complained of in that case, and in this, was the refusal of the court to compel Mr. Parker to disclose what other property he had. A contrary ruling might not have been erroneous, but it was within the discretion of the court to exclude the proposed testimony. As suggested in the opinion just cited, the inquiry would have been more appropriate upon proceedings against Mr. Parker himself supplementary to execution. Some other rulings respecting the evidence are criticized, but the complaint does not appear to be substantial. A thorough examination of the witnesses was allowed, and it does not appear that the inquiries were unreasonably restricted. Consideration will now be given to the contention of the plaintiff that the findings of the district court against her respecting the Fairview property and lots 3 and 4 should be set aside. Here again we are concluded by the findings. While Mr. Parker testified with respect to the Fairview property, that he made the investment for his wife in the name of Hoard, and that he used her money in making the payment, the fact remains that he did not buy the property in her own name, but sought and induced Mr. Hoard to take it for him and not for her. She was holding much valuable property in her own name, and no good reason is apparent why she should not so hold this also. The district court was not concluded by Mr. Parker’s testimony. All the circumstances were in evidence. This transaction was not remote in time from the matters involved in the Missouri judgment. The court, considering the whole situation upon all the evidence, determined the fact against the plaintiff, and that determination will not be disturbed. Lots 3 and 4 were conveyed to Mr. Parker in 1880, and the title remained in his name when the attachment in the original suit of McLain v. Parker was levied, and was not conveyed to Mrs. Parker until after the first judgment in that suit. Although there was testimony that Mrs. Parker’s money paid for the lots, the finding that they belonged, as the record showed, to her husband will, for the reasons already stated respecting the other findings, be sustained. A motion is made by the defendant for leave to present upon this appeal the testimony of M. V. B. Parker and members of his family given in proceedings in bankruptcy instituted by him. The motion indicates that the testimony referred to, but not set out, is of the same nature as that taken in this case, and mainly that of Mr. Parker himself, relating to investments made by him in his wife’s name, his bank accounts, purchases and transfers of other property and kindred matters upon which he was fully examined at the trial of this action. It is not stated that the proffered evidence contradicts in material matters the testimony given in this action. Without determining the scope of section 580 of the code, no good reason appears why this court should reopen the case to consider the new evidence. No sufficient reason appears for sustaining the appeal of either party, and the judgment is affirmed.	[ -80, 108, -111, 13, 74, 96, -88, -8, 96, -109, -26, -45, 111, -40, 21, 105, -22, 61, -47, 105, -26, -78, 27, -110, -46, -13, -45, 69, -71, 88, -28, -41, 76, 80, 74, 119, -58, -54, -59, 84, -114, 36, 43, 77, -55, 64, 52, 127, 16, 10, 17, -98, -13, 45, 25, -61, 41, 62, -21, 61, 17, -8, -85, 95, 111, 22, 33, 54, -104, -61, 104, 72, -112, 57, 0, -24, 83, 54, -58, 116, 1, -101, 40, 38, 102, 33, -3, -17, -88, -102, 47, 127, -99, 38, -76, 72, 3, 46, -66, -99, 117, 82, 6, -2, -26, 5, 28, 104, 15, -117, -108, -111, 15, 120, -104, 11, -5, -123, -80, 112, -55, -22, 93, 66, 52, -109, -113, -71 ]
The opinion of the court was delivered by Mason, J.: The question presented is whether the trial court erred in holding that the allegations of a pleading were sufficient to show that an arbitration had resulted in an award binding upon the parties. It was alleged that two of the three arbitrators had signed a writing purporting to be such &n award. The appellant contends that the absence of the signature of the third arbitrator is fatal to its validity. The accepted rule is that an agreement to submit a controversy to the decision of a number of arbitrators, in the absence of a provision to the contrary, implies that such decision, to be effective, must be unanimous. (Fish v. Vermillion, 70 Kan. 348, 78 Pac. 811; 5 Enc. L. & P. 147; Note, 15 Ann. Cas. 507.) The statute provides that persons may submit a controversy to arbitration (Gen. Stat. 1909, § 359), and that the award of the arbitrators, or a majority of them, shall be in writing, and signed by them or a'majority of them (§ 365). The specific question to be decided is whether the pleading shows that the statute applies. This involves a determination of what is necessary to constitute a “statutory” arbitration. We reach the conclusion that nothing is essential to that purpose except an agreement to arbitrate, followed by an award in writing, signed by the arbitrators or a majority of them. The statute provides that the parties “may” make the submission a rule of court (§ 359), but this is not necessary, for the law says that the parties may enter into bonds, which shall recite that the submission is to be made a rule of court, “when such is the agreement” (§ 360). The statute also says' that the bonds shall specify the time and place of hearing and the time of deciding the matter. In the present case bonds were given which omitted such speci fication. The giving of bonds is not made obligatory, and the fact that the bonds actually given contained no reference to time and place does not take the agreement out of the operation of the statute. The statute provides that the arbitrators and witnesses shall be sworn, and that copies of the award shall be delivered to the parties. Compliance with these provisions is not alleged, but if they were not observed the result was a mere irregularity, not fatal to jurisdiction (Weir v. West, 27 Kan. 650), and not sufficient to prevent the operation of the statute. Provision is made for the taxing of fees by the arbitrators, to be inserted in the award. (Gen. Stat. 1909, § 371.) Here the award does not mention fees, but an omission in that regard is not more vital than in the matters already mentioned. The judgment is affirmed.	[ 112, 120, 92, -3, -118, 32, 58, -104, 112, -63, 109, 83, 109, -33, -104, 115, 115, 47, 80, 74, 86, -78, 23, 65, -9, -9, -15, 69, -79, 111, -12, 94, 76, -92, -62, -43, 102, -82, -127, 90, -50, -99, -102, -28, -39, -64, 48, 119, 84, -37, 33, -34, -29, 37, 25, -57, -20, 40, 123, 125, -48, -79, -104, 13, 125, 4, -77, 54, -98, -114, -8, 44, -128, 57, 3, 104, 113, 54, -46, -12, 105, -71, 8, 102, 99, 0, 81, -19, -100, -100, 47, 94, -115, -90, -79, 88, 107, 5, -106, -3, 55, 18, 38, 126, -3, 21, 30, -92, 8, -113, -90, -93, 15, 126, -98, 5, -21, -62, 18, 112, -50, -10, 92, 69, 56, -45, -113, -82 ]
Per Curiam: The deceased, father of the appellee, left á will giving all his property, real and personal, to his wife for her life; then, at her death, to be divided equally among his five children. The will was duly probated and the widow, Elizabeth Schaffner, was appointed executrix thereof. Thereafter the appellee, a son of the deceased and of the executrix, filed a bill against the estate, claiming that, at the request of his father, he quit employment as a farm hand, where he had steady employment at thirty dollars per month, and came home and worked for his father for nine years; that the father agreed that if he would do so and do the general farm work necessary, the father would give the appellee a part of the farm; that' he diligently worked and managed for his father for nine years, and has received no compensation or settlement therefor; that the father before his death willed all his property, real and personal, fco his widow during her lifetime and at her death to his children; that the will makes no extra allowance for the services of the claimant; that the claimant’s services were worth thirty dollars per month. He prayed judgment for $3200. The bill was disallowed by the probate court and the costs taxed to the appellee. The case was appealed to the district court and tried therein. The executrix did not appear in the action and failed to appear on subpoena as a witness therein. Notice, however, was given, and her deposition was taken, and numerous objections are made to the questions and answers therein. In the deposition the witness testified to various statements which she says her husband made in his lifetime. Many of the questions and answers do not indicate whether the statement had been made by her husband to her or whether she had overheard the statement in his conversation with another. The following question was asked her: “Did you hear your husband say he was entitled to $30 per month?” The .answer was, “That is what he told me. ' He said Jack was worth $30 per month and he said he would have to have it if he asked for it, but as long as he did not ask for it he would get it when he died.” This question and answer was repeated one or more times, and from the connection it might be fairly inferred that all that she had heard her husband say about the matter was in conversations and communications between them as husband and wife. Proper objections were made to the foregoing questions and answers on the ground that it developed a conversation between husband and wife while that relation existed. The witness was ^clearly not incompetent to testify to what her husband had told her. Part of section 321 of the civil code reads: ' “The following persons shall be incompetent to testify: . . . Third, husband and wife, for or against each other, concerning any communication made by one to the other during the marriage, whether called while that relation subsisted or afterward.” The question did not tend to elicit any evidence for or against the deceased husband. He was not a party to the action and his interest in the matter had, upon his decease, passed to others. The restriction of the statute is to be strictly construed. (Higbee v. McMillan, 18 Kan. 133; banning v. Gay, 70 Kan. 353, 78 Pac. 810, 85 Pac. 407.) Again, the following question was asked: “In your opinion is the claim of Jack against the estate of John Schaffner just and should it be allowed?” The objection that it was incompetent, calling for a conclusion of the witness, was overruled on the ground that no written objection had been filed. The answer was as follows, “Yes, sir; it is; he earned it all, and it is just and should be allowed, and the people who are now fighting it - are the people who left the place and refused to help my husband. Jack saved it for us and he,is the only one that did the work; the rest refused to work. Jack is entitled to everything he claims. He did all the work and worked hard and is entitled to thirty dollars per month and nothing has been paid to him. The money that Jack made was paid on the mortgage and the indebtedness against the farm. My husband was not able to pay him anything in his lifetime, but said Jack should get it when he died. I think Jack’s claim is just. He worked hard and kept the farm up. . Raised the crops and harvested them and sold them and delivered the money to my husband and my husband used it in paying off the indebtedness.. Jack saved the farm and we would not have it if it had not been for him.” By implication, section 362 of the civil code provides that the objection of incompetency and irrelevancy may be made on the trial and without written objection filed before the trial. It follows that the reason stated by the court for overruling the objection is not good. The question, however, called for opinion evidence, which is usually incompetent, except in cases where expert evidence is proper, and it does not appear that this was a proper case therefor. The opinions given by the witness in this case involved the very conclusion the jury was impaneled to try, and are incompetent. The fact of her relationship to the parties and her knowledge of their transactions rendered her evidence especially prejudicial to the appellants. The judgment is reversed and the case is remanded for a new trial.	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The opinion of the court was delivered by Porter, J.: This is an original proceeding in mandamus to compel defendants as county commissioners to levy a tax for the purpose of maintaining a high school at Santa Fe, the county seat of Haskell county. On the 5th day of August, 1912, a petition signed by 190 persons, school electors of the county, was presented to the county superintendent and the county board, asking them to make a levy for the maintenance of a county high school at Santa Fe. The county has a population of less than 3000, and the proceedings were under chapter 263 of the Laws of 1911. On the same day the superintendent and the board considered the petition and granted it, and the board ordered a levy of one-half mill for the maintenance of the school. On the 4th day of August, 1913, the county superintendent filed with the county treasurer and the board of county commissioners a certificate that a levy of one-half mill was necessary to aid the high school for the ensuing year. On the same date the board refused to make the levy. The alternative writ issued on the 22d day of September, 1913. The return denies that the petition filed with the county board on the 5th of August, 1912, was signed by a majority of the school electors, and denies that there is or ever has been any high school established or maintained at Santa Fe, or at any other place in the county. It alleges that at a regular meeting of the county board on October 7, 1912, the previous action levying a tax for the maintenance of the high school at Santa Fe was rescinded. It is also claimed that the provisions of chapter 263 of the Laws of 1911 have never been complied with; that proper certificates have not been filed by the county superintendent, as provided for in the act; that no report was ever made by any principal of any high school at Santa Fe showing the total enrollment at the school or the number of months attended by any pupil. As a further defense it is alleged that during the summer of 1912 a railroad was constructed in an easterly and westerly direction across the county, about seven miles south of Santa Fe, the county seat, and that Sublette, a new town on the railroad, has since been built, and that most of the inhabitants of the county seat have moved from Santa Fe to Sublette, or to other towns on the line of railroad; and it is alleged that there are now in Santa Fe only the courthouse, the schoolhouse, one or two dwellings, a real estate office, a printing office, and a grocery store carried on in a room of the courthouse. It is alleged there are not at this time more than twenty people living within the limits of the former city of Santa Fe; that school district No. 23, in which it is claimed by the plaintiffs that the high school is located, is about eight miles long and seven miles wide and contains from fifteen to twenty children of school age, only five of whom are eligible to high school admission; that the population of the county is about 1000; that only about fifteen persons in the county are eligible for entrance to the high school, and that if a high school is established or main tained in Santa Fe the average attendance would only be from five to ten pupils. Chapter 263 of the Laws of 1911 provides for county aid to high schools in counties having a population of-less than 10,000, and the act authorizes the county superintendent and county commissioners of such counties to make provision for aid to high schools and to provide for the support of the same. Section 4 of the act provides that such high schools when aided shall be under the supervision and control of the county superintendent and district board of the district or city where the school is located. Section 5 declares that no high school shall be eligible for aid under the act except upon a petition to the county superintendent and county commissioners, signed by a majority of the school electors of the county, with the further provision that in counties having a population of less than 3000 “one school only shall be aided, and that one located at the-county seat of such county.” The petition for granting aid to the school did not state that the petitioners constituted a majority of the school electors of the county, but this is not required by the statute. (City of Argentine v. Simmons, 54 Kan. 699, 700, 39 Pac. 181.) There is the presumption that the officers proceeded regularly and satisfied themselves in this instance that the petition was signed by a majority. (City of Argentine v. Simmons, supra.) A great deal of evidence has been taken, but no attempt is made by the defendants to show that the petition was not signed by a sufficient number. The power to allow the petition does not rest alone with the commissioners. They act with the county superintendent in passing upon it; and their action in this instance was a recognition of the high school as a school entitled to have county aid. The subsequent action of the board of county commissioners in rescinding the tax levy was without authority and void. Section 10 of the act provides that if upon presentation of the petition the county superintendent and commissioners decide to provide the aid petitioned for, the board shall, at the regular meeting held by it on the first Monday in August, levy such tax sufficient to raise the amount necessary. This the board did on the first Monday in August, 1912. It was obliged to do so under the provisions of section 10. It had no discretion, and it could not thereafter rescind the levy. Of course it could not rescind the order allowing the petition, which the statute provided was to be made, if made at all, by the county superintendent and the board acting together. We are not concerned with the action of the board in 1912 further than to hold that it was a recognition of the high school sufficient thereafter to devolve upon the commissioners the duty of levying an. annual tax sufficient to raise the amount of money necessary according to the certificate filed by the county superintendent with the board. Section 11 of the act makes it the duty of the county superintendent to certify to the commissioners, and also to the county treasurer, on or before the first day of July in each year, the amount of money necessary to aid districts maintaining high schools under the provisions of this act. The statute provides that after aid is secured the high school shall maintain certain standards, but manifestly these provisions have nothing to do with the power of the county superintendent and the board to vote the aid in the first instance. It is not contended by the plaintiff that there was a regularly established county high school prior to the action of the board in August, 1912; but it is contended, and the evidence shows, that a high school had been maintained in connection with the regular district school during the years 1911 and 1912. The Barnes law provides that before a high school shall be eligible to aid it shall have been maintained for the preceding school year. The act of 1911 was intended to authorize the granting of aid to a school district or districts for the maintenance therein of a high school located in counties of this class at the county seat, and the act makes no requirement as to the character of the school previous to the granting of the aid. It appears, however, from the evidence, that during 1911 and 1912 high-school studies were taught in this school to students regularly enrolled, and that the work of the high school was recognized by other high schools in the admission of students. The fact that there are few people residing on the town site at the county seat furnishes no excuse for defendants’ failure to perform their duty. The school is a county high school, and while it is required to be located at the county seat, it is for the benefit of the whole county, and there is no requirement in the statute as to the population of the county seat. The attendance at the high school in 1912 and 1913, according to-the evidence, ran down to as low as four students, but, as suggested, it may have been affected by the refusal of the board to. comply with its duty and furnish the aid. The testimony of some of the witnesses, including that of the county superintendent, is to the effect that there would probably be an attendance of twenty students and possibly more if the aid were granted and the school properly maintained.' There are some technical objections to the report the principal of the high school filed with the county superintendent, which is required by section 9 of chapter 263 of the Laws of 1911, on the ground that it does not show the number of months attended by each pupil and some other facts which it ought to state, but the report, we think, was sufficient to furnish information to the county superintendent upon which to base his estimate of the amount of levy required. In Board of Education v. Allen County, 82 Kan. 782, 109 Pac. 415, it was held that when the county superintendent certifies to the board the amount required it becomes -the duty of the commissioners to make the levy, and they have no discretion in the matter. To the same effect see School District v. Wilson County, 82 Kan. 806, 109 Pac. 168, and Board of Education v. Shepherd, 90 Kan. 628, 135 Pac. 605. These cases were brought under the Barnes high school law, but there is no difference in the two statutes in regard, to the duty of the board to make the levy when the county superintendent has certified the amount. While it is too late to compel a levy for the tax of 1913, the effect of the decision will control the action of the board in the levy of taxes for the future. It follows from what has been said that the writ will issue.	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The opinion of the court was delivered by Porter, J: The railway company has appealed from a judgment in plaintiff’s favor for damages and attorney’s fees on account of shrinkage in weight in a shipment of live stock from Protection, Kan., to Wichita, Kan. The petition alleged negligence on account of delay in transportation and delivery of the cattle at their destination by which the cattle “became jaded, gaunt and emaciated,” and “greatly disturbed” and “deprived of necessary rest”; that after being unloaded they “became restless and in unfit condition” and refused “to tak^the usual and customary fill that was required to put them in prime condition for sale on the market, in consequence of which plaintiff suffered a loss and extra shrinkage of weight, towit, 30 pounds per head.” It was alleged that the defendant failed to transport the live stock at a rate of speed of fifteen miles per hour as required by sections 7116 and 7117 of the General Statutes of 1909. The shipment was under the ordinary live-stock shipping contract, which provided that as a condition precedent to plaintiff’s right to recover damages for loss or injury to his stock during the transportation he should give notice in writing of his claim before the stock was removed and intermingled with other stock. No notice of loss was given. The court charged the jury that if the damages were the direct result of the failure to comply with the fifteen-mile statute then the contract was no defense. The instruction was erroneous. The statute does not attempt to create a new liability or cause of action against the carrier but merely prescribes a n-ifnfmn-m rate of speed at which live stock shall be transported. In effect it declares that any less rate of speed shall be prima facie negligence on the part of the carrier. Before the statute was passed it was the duty of the carrier under the common law to transport and deliver at destination within a reasonable time, and he was liable for any damages resulting from delay occasioned by his negligence; but a stipulation in a contract of shipment of live stock that as a condition precedent to his right to recover damages for loss or injury during transportation the shipper shall give notice of his claim before the stock is mingled with other stock has been repeatedly held to be a reasonable stipulation. (Sprague v. Mo. Pac. Rly. Co., 34 Kan. 347, 8 Pac. 465; Railway Co. v. Kirkham, 63 Kan. 255, 65 Pac. 261; Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132; Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421; Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847.) A provision requiring such notice as a condition precedent to recovery is not a stipulation against the carrier’s negligence. (Railway Co. v. Morris, 65 Kan. 532, 70 Pac. 651.) The supreme court of the United States, in Mo., Kan. & Tex. Ry. v. Harriman, 227 U. S. 657, has upheld the same kind of a stipulation where the liability arose under the Car-mack amendment, on the ground that the liability which the act of congress imposes upon the carrier is only a continuation or extension of common-law liability, “and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence.” (p. 672.) Irrespective of the fifteen-mile statute, the facts found by the jury are sufficient to make the defendant liable for the loss except for the failure to give the notice as provided in the written contract. The plaintiff concedes that the shrinkage resulted ■from delay in transportation but seeks to avoid the failure to give the required notice by the contention that the loss or injury occurred after the cattle were delivered at destination, and therefore no notice was required. We think this contention can not be sustained. The findings of the jury are that the cattle arrived at the stockyards in Wichita fifteen minutes .after mid night and were delivered to the consignee at seven in the morning of that day; that after being unloaded from, the cars the cattle did not settle down and rest before the opening of the market, and that they were sold on the market at half past ten o’clock in the forenoon of the day they arrived. The plaintiff claims that because of the long delay his cattle were restless and jaded, and after being unloaded refused to lie down and rest or to drink the customary amount of water before the time arrived for their sale. He must necessarily and does contend, however, that his loss was occasioned by and was the direct and proximate result of defendant’s delay in transporting the cattle. His case therefore falls clearly within the rule of Railway Co. v. Wright, supra, where it was held that shrinkage in weight occasioned by the unnecessary length of time the cattle were on the road is an injury during transportation and hence comes within the contract requiring notice. An exception to this rule has been allowed where the shrinkage resulted from the cattle having to be carried over to next day’s market. In such a situation it has been held that notice of the loss was not a reasonable requirement and therefore the shipper could recover without first giving the notice. Here the cattle arrived in time for the market and were sold three and one-half hours after being unloaded; the shrinkage was not caused by any delay occurring after the transportation ended. On the contrary, the condition the cattle were in resulted from the delay that occurred during transportation, and therefor the notice required by the contract was a condition precedent to the right to recover. It follows that the judgment will be reversed and the cause remanded with directions to enter judgment for the defendant.	[ -14, 106, -100, -99, 10, 106, 42, -102, 65, -95, 38, 83, -51, -61, -108, 107, -25, 61, 117, 42, 116, -61, 71, -30, -109, -109, 51, -121, 59, 75, 100, -26, 77, 0, 10, -107, -26, -54, 65, -36, -50, 36, 9, -19, -39, 8, 56, 104, 22, 70, 17, -113, 107, 34, 24, -57, 41, 40, -69, 45, -63, -15, -70, 15, 119, 6, 19, 36, -102, 5, -40, 62, -104, 17, 9, -4, 114, -92, -122, 84, 41, -39, 8, 102, 103, 33, 13, 111, 14, -88, 39, -38, -113, -26, -112, 28, 35, 97, -106, -99, 32, 22, 6, -2, -1, 13, 91, 52, 1, -54, -76, -73, -81, 36, -102, 31, -53, -89, 50, 113, -60, -94, 93, 71, 122, 27, -106, -98 ]
The opinion of the court was delivered by West, J.: The plaintiff in her petition set up a note and mortgage executed by the defendant and a transfer thereof before maturity to the plaintiff. The answer contained a general denial and a specific denial that the plaintiff was the owner and holder of the mortgage, and alleged that the original payee was still the owner and holder and had conspired with the plaintiff to cheat the defendant and avoid a counterclaim which the plaintiff had against the original payee for a breach of warranty for the land mentioned in the mortgage. To this answer a general denial was filed by way of reply. From statements in the briefs it appears that when the case was called for trial the plaintiff moved for judgment for the reason that the answer was not .verified. The defendant asked leave to verify, but withdrew the request and announced that he. would not verify, whereupon the court rendered judgment for the plaintiff under section 110 of the civihcode. The plaintiff stands upon the letter of the statute and contends that there was nothing to do but to enter judgment. The defendant suggests that the provision relied upon does not apply when the defense is not a denial of execution but a denial of ownership of the note sued on, and fraud and collusion in its use by the payee and one not its owner. This was doubtless true under the former code (Jewelry Co. v. Bennett, 75 Kan. 743, 90 Pac. 246), but the amendment of 1909 calls for a construction. Section 108 of the code of 1868 provided that allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation, of partnership, or of any appointment or authority, should be taken as true unless the denial of the same should be verified by the affidavit of the party, his agent or attorney. In 1886 (Laws 1886, ch. 61, § 1), this was amended by adding “or the correctness of any account duly verified by the affidavit of the party, his agent or attorney.” In the new civil code former section 108 became section 110 and was retained exactly in the form effected by the amendment of 1886, and there was added this-sentence: “In all actions founded on written instruments for the unconditional payment of money or on a verified account for goods sold and delivered, or a verified claim for the wages of the plaintiff for his personal services, the answer shall be verified by the defendant, his agent or attorney.” This action was one mentioned in the amendment, the wording of which amendment taken in its ordinary acceptation and meaning according to the approved usage of the language (Gen. Stat. 1909, § 9037, subdiv. 2; Olsson v. City of Topeka, 42 Kan. 709, 713, 21 Pac. 219; Larned v. Boyd, 76 Kan. 37, 40, 90 Pac. 814; The State, ex rel., v. Innes, 89 Kan. 168, 174, 130 Pac. 677; The State v. Miller, 90 Kan. 230, 133 Pac. 878) appears to require that in order for the answer in this kind of a case to have effect it must be verified, and unless verified as required it léaves the defendant practically in default, and of course a default in an ordinary action on a promissory note entitles the plaintiff to judgment on the pleadings. The judgment is therefore affirmed.	[ 48, 104, -16, -82, -54, -32, -86, -102, -31, -127, -89, 115, 125, -62, -108, 45, -28, 41, -11, 122, 71, 50, 39, 73, 114, -13, -48, 93, -79, -19, -12, 29, 76, 48, -30, -43, 102, -126, -61, 16, 14, 6, 24, 76, -39, -64, 48, -45, 90, 13, 101, -113, -13, 45, 29, 77, 105, 44, 107, -67, -48, -4, -101, 5, 125, 1, -77, 117, -40, 73, -22, 34, -112, 53, 1, -56, 50, -74, -58, 116, 107, 27, 0, 102, 102, 48, -31, -55, -72, -104, 39, 126, 15, -90, -45, 89, 10, 42, -74, -99, 124, 16, 38, -12, 126, -99, 25, 108, 15, -113, -42, -79, 29, 126, -104, -117, -1, -110, 16, 97, -50, 96, 95, 102, 57, -37, -114, -15 ]
The opinion of the court was delivered by Porter, J.: W. M. Bell appeals from an order of the district court refusing him a new trial upon a petition filed at the same term at which the judgment was rendered against him. The action was upon a promissory note dated April 9, 1908, due on demand after date, executed by The Bell Land & Loan Company, endorsed by W. M. Bell and B. M. McCue. The petition was filed April 1,1912. It alleged that the plaintiff, B. W. Nolen, is the owner, and holder of the note, a purported copy of which is attached to the petition. McCue and Bell were both made defendants. Bell entered his written appearance in the action on April 9; the judgment was rendred against both defendants by default on June 8. At the same term, and on the 6th day of July, Bell filed his motion for a new trial, and on July 8 filed in the same action a petition to set aside the judgment and grant a new trial, the motion and the petition setting up the same grounds. Application for a new trial was heard before the court on evidence and a new trial was refused. W. M. Bell and B. M. McCue were partners engaged in business at Garden City under the name of The Bell Land & Loan Company. The partnership borrowed from the First National Bank at Garden City $2000 and gave to the bank the note upon which the suit was brought. In August following the execution of the note the partnership was dissolved by written agreement, in which McCue assumed and agreed to pay the note. The original agreement was deposited with the bank, and the answer which Bell filed at the time he asked to have the judgment set aside alleges that the bank knew what the agreement contained and assented thereto. Bell subsequently moved to Kansas City. In September, 1911, he received a letter from an agent of B. W. Nolen, the plaintiff, stating that he held the note for collection; that McCue had refused to pay it, and that he would have to look to Bell for payment. The letter stated that the loan was made through the cashier of the First National Bank of Garden City. This appears to have been the first information Bell received that the note had not been paid. In answer to that letter he wrote informing the agent of the dissolution of the partnership and the fact that he had been led to believe that the note had been paid by McCue, and declined to pay it himself. Before the entry of appearance was filed McCue wrote to Bell, apologizing for his allowing the note to remain unpaid, and in the letter made the following statement: “I had a talk with Fred Evans about two weeks ago, all of which he agreed to give me a little more time, as much as those people were so insistent on the judgment, and he thought that it would be nothing out of the way just to bring a friendly suit and drif (t) it from time to time until I could relieve the situation, all of which 1 will do at the very first possible moment and without any inconvenience to any one. “Tell your wife not to worry, as this matter will be taken care of in some way without anyone being distressed.” The exhibit attached to the petition set up a note in the following form: “ ‘Exhibit A.’ “Garden City, Kan., April 9,1908. “On demand after date, for value received, we promise to pay to .the order of B. W. Nolen at The First National Bank, Garden City, Kan., Two Thousand and n%00 Dollars, at its Banking Office in Garden City, Kan., with interest at eight per cent per annum from date until paid, payable annually; and if the interest be not paid annually to become as principal and bear the same rate of interest. The Bell Land & Loan Company, By W. M. Bell, Sec. “No. 17,411. $2000.00. Due Demand. (Endorsed on back.) W. M. Bell. B. M. McCue. 8/10/08 Int. Pd to 7/9/08. 2/9/11 Int. 437.33 paid to 2/9/11.” We have the original notes before us; and they were offered in evidence in support of the motion for a new trial. The demand note upon which the judgment was rendered differs materially from the purported copy set out in the plaintiff’s petition, and shows, we -think, a material alteration. It reads: “Garden City, Kan., April 9, 1908. On Demand after date, for value received, We promise to pay to the order of-B. W. NolenThe First National Bank, Garden City, Kansas, Two Thousand and no/ia0-Dollars, at its Banking Office in Garden City, Kan., with interest at eight per cent per annum from Date until paid, payable annually; and if the interest be not paid annually to become as principal and bear the same rate of interest. The Bell Land & Loan Co., By W. M. Bell, Sec.” All the written portions of this note are in the handwriting of W. M. Bell except the name “B. W. Nolen”; that is in a different handwriting and was obviously written in the blank line by the same person who wrote the body of the memorandum note; and the circumstances indicate very strongly that the alteration was made at the time the memorandum note was executed by McCue, which was four years after the date of the original note. The plaintiff sues as the original payee and alleges the execution of a note payable to his order “at” the First National Bank, but the note itself shows that it was originally given payable to the order of the bank; that the place of payment was not specified, and further, that the note was never by the bank endorsed to Nolen. Bell filed an answer along with his application for a new trial which set up facts showing a defense to the note in the hands of the bank. That the judgment was rendered upon a note which was changed or altered long after its execution, without Bell’s knowledge or consent, by inserting the name of another and-a different payee, is not denied in the briefs filed by the appellee. The fact of the alteration was not known to Bell until after his entry of appearance and the taking of the default judgment. Apparently he was led to believe from the letters written him that the note had been endorsed by the bank to Nolen. It also appears that the First National Bank held ¿ copy of the dissolution agreement by which McCue agreed to pay the note; and there was some evidence tending to show that officers of the bank informed Bell the note had been paid. It was more than four years after the note had been given that an agent of Nolen wrote to Bell that he held the note for collection and that it had been obtained through the First National Bank. In the letter from his former partner Bell was led to believe that the suit was a friendly one which would be allowed to drift along with the consent of the attorney for the plaintiff until McCue could take care of it, and it appears that Bell did not know until after the default judgment was rendered against him that the bank had never endorsed the note and that the note had been altered by the writing of Nolen’s name in it as payee. Immediately after learning these facts, and at the same term of court, he filed his motion and petition for a new trial and used proper diligence to obtain it. While the granting of a new trial in a situation of this kind was in the discretion of the trial court, we must not lose sight of the fact, as was said by the court in Atyeo v. Kelsey, 13 Kan. 212: “Where a new trial has been granted, both parties have another opportunity of having a fair and impartial trial upon the merits of the action. But where a new trial has been refused, the matter is ended unless a reversal can be had. Hence new trials should be favored instead of being disfavored, wherever any question can arise as to the correctness of . the verdict.” (p. 216.) There is some objection to the form of the application because no summons was issued, but the commencement of a new action to obtain another trial would have been a useless formality. The matter was called to the attention of the court at the same term at which the judgment was rendered. Moreover, the plaintiff’s attorney appeared and cross-examined the witnesses at the hearing, and so far as the record discloses raised no technical objections at that time, and they should not be regarded as of importance now. In view of all the circumstances, and particularly as the judgment appears to have been rendered upon a note that had been altered after its execution and delivery to the bank, we think a case was presented which requires that in justice to the parties a new trial be granted. The judgment will therefore be reversed and the cause remanded with directions to grant a new trial.	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Per Curiam: The appellant brought this action for a divorce, for alimony, and for custody of the minor child of the parties. The trial resulted in a refusal of a decree of divorce, and a division of the property which appellant claims was unjust and unfair; also, the custody and control of the child was awarded to the appellee. The grounds alleged for the divorce were, in substance, extreme cruelty, gross neglect of duty, and drunkenness. On all these issues the court found in favor of the appellee, as must be inferred from its refusal of the divorce. The appellant makes four assignments of error, the ■first being, that whereas it appeared that the real property, consisting of a house and lot in the city of Parsons, had cost about $5900, against which there was an unpaid mortgage of $2500, the court awarded the property to the appellee and gave judgment in favor of appellant against appellee for $1000 and a lien on the real estate to secure the payment thereof. The appellant is shown to have kept a boarding house for years, and the appellee to have been an engineer on a railroad, both being physically able to labor. The custody of the boy being awarded to the father, the appellant is relieved of expense so far, and there is nothing to show what ■the residence property was worth at the time of the trial except proof of the original cost. With the $2500 mortgage already thereon, and the lien of appellant for $1000, the court may have concluded that the property was not worth the difference between $3500 and the •original cost of the property, $5900. We can not say that the court erred on this ground. The second assignment is that the court erred in assigning the custody of the five-year-old son to the appellee. There is no hard-and-fast rule by which it can be determined which one of two contesting parents is entitled to the custody of the child on their separation. The appellant brought the action for divorce on the ground of extreme cruelty, gross neglect of duty, and drunkenness. The court found the issues on these allegations apparently against her and refused the divorce, and possibly awarded the custody of the son to the appellee and awarded the appellant only a moderate allowance of the property with the idea of inducing the parties to become reconciled and to resume their relations and make a home for the child. It is a matter of discretion and for equitable consideration, and we can not say that the court erred therein. The third assignment is that the court erred in overruling appellant’s motion for new trial. What has been said in regard to the decree and judgment is applicable to the consideration of the motion for new trial. It appears that the appellant on the same day filed two motions for new trial without leave of court sought or obtained.' The court refused to consider the second motion, but decided upon the first motion. If a party has filed a motion for any purpose, and afterwards he concludes his motion is defective or insufficient in any respect, he should apply to the court and obtain leave to amend or withdraw his first motion before filing a second. In the absence of such an application the court may, under the general practice, disregard the second motion. It is unfair to the court and to the opposite party in any action to file successive pleading or motions for the same purpose and without leave of court; If one may file two motions for the same purpose, he-may file three or more. It is entirely proper for the court to maintain the simplicity of the practice by refusing to recognize papers filed out of the usual order, but of course on application a liberal order should be made for the amendment or withdrawal of pleadings or of amendments to the same, to the end that the real issues may be fairly presented and tried. There is no claim that the court erred in refusing a divorce. ' If the appellant had, without just cause, sought a permanent separation from her husband, this was a matter for the consideration of the court, with other matters, in determining what was a proper allowance, and to which of the two parents the custody of the boy should be awarded. There is no specific rule of law for determining any of the questions raised here, and all the remedies rest in equitable considerations and judicial discretion. It does not appear that the court abused its discretion. The order and judgment are affirmed.	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The opinion of the court was delivered by Smith, J.: The appellant does not appear to have obtained any transcript of the stenographer’s notes of the testimony and proceedings in this case, as authorized by section 574 of the civil code, nor has he served upon the appellee any abstract as required by section 576, and by Rule 9 of this court. It should be certified and signed as required by Railway Co. v. Conlon, 77 Kan. 324, 94 Pac. 148, and should refer to pages of the transcript or record where the statements may be verified. As the case of the appellant is presented, it is impossible for the court to ascertain the facts as to many of the statements in the brief. There is, however, a judgment for costs presented in the record, and which is not required to be included in a transcript. We can, therefore, consider only the question whether there was error in the judgment for costs as claimed by appellant. The county surveyor had made a survey and filed a report thereof, and an appeal therefrom was taken. Upon a hearing of the appeal the survey was set aside and another surveyor was appointed by the court to make the survey. The second survey was made and a report thereof filed and approved. The appellant contends, correctly, that the adjudication of costs as between the parties to an action was not known at the common law, but each party was left liable for the costs made by himself. Section 2276 of the General Statutes of 1909, however, authorizes a county surveyor to apportion such costs among landowners affected thereby according to their respective interests. Section 4 of chapter 177 of the Laws of 1879 provided for the taxation of costs on appeal from a survey, but, in effect, this section was repealed by the omission thereof in the reenactment of the laws relating to surveys, published' as chapter 89 of the Laws of 1891 (Gen. Stat. 1909, §§2275, 2276). See Dent v. Simpson, 81 Kan. 217, 105 Pac. 542. As to the taxing of costs, there being no other statutory direction, the case falls within the provisions of section 615 of the civil code, and the judgment will not be disturbed, under the well-recognized rule, unless the discretion of the court was abused, which we do not find. The paragraph of appellant's brief beginning and ending on page 42 thereof is stricken from the files. The journal entries show that the case has been fully decided, and the judgment is affirmed.	[ -16, 106, -12, -99, -21, -32, -94, -101, 65, -95, -94, 83, -19, 66, 20, 107, -94, 31, 81, 42, 71, -77, 19, 99, -102, -13, -13, -60, -75, -35, -20, -12, 76, 36, 74, -107, 102, 66, 69, 80, -114, -116, -87, 77, 89, 96, 52, 105, 118, 79, 53, -49, -13, 40, 24, -29, 41, 44, -21, 40, 64, -16, -86, -113, 95, 4, 49, 118, -40, 69, 72, 8, -104, 49, 0, -20, 115, -90, 6, -12, 45, -7, 8, 104, -30, 57, 93, -17, 124, -104, 47, -41, -99, -89, -110, 24, 99, 77, -105, -99, 117, 80, 7, -2, -27, 5, 27, 108, -125, -113, -46, -79, -113, 124, -118, 3, -17, -93, 16, 113, -60, -30, 92, -57, 50, -101, -114, -100 ]
The opinion of the court was delivered by Benson, J.: Upon rehearing, the opinion in this case reported in 91 Kan. 815, 139 Pac. 387, is criticised in an able and elaborate argument in behalf of the defendants. It is asserted that they owed no duty to the plaintiff except the duty not to wantonly or willfully injure him. The district court instructed the jury that the defendants, employing the plaintiff, might be held for damages caused by their negligence in furnishing unwholesome food; that is, for failure to exercise ordinary and reasonable care. The divergence between the instruction and the views of the 'defendants’ counsel are thus clearly presented. Many authorities are cited holding that manufacturers of articles not inherently dangerous are not liable to a customer of the vendee of the manufacturer for a defect in the quality of the articles. Among the cases cited in support of this principle is Railway Co. v. Merrill, 65 Kan. 436, 70 Pac. 358. Others are cited in the opinion in that case. It will be found, however, that the general doctrine is subject to limitations which must be carefully noticed in its application to various situations. This is made quite apparent by an illuminating review of the cases in 19 L. R. A., n. s., 923, where Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 Atl. 314, cited in the former opinion, is reported. One of the limitations referred to is pointed out in Mastin v. Levagood, 47 Kan. 36, 27 Pac. 122, 27 Am. St. Rep. 277, referred to in the opinion in the Merrill case: “There is this marked distinction between an act of negligence imminently dangerous and one that is not so; the guilty party being- liable in the former case to the party injured, whether there was any relation of contract between them or not, but not so in the latter case” (p. 42.) In the note above referred to it is said: “In the following cases, which also assent to the general rule that a manufacturer or vendor was not liable to those not in privity of contract with him, for injuries resulting from his negligence, unless the article was dangerous in itself, it will be noticed that the rule was further limited to cases where he was ignorant of the defective condition of the article sold.” (Note, 19 L. R. A., n. s., 926.) This is followed by a reference to adjudicated cases, among them Holmvik v. Parsons Band Cutter & Self-feeder Co., 98 Minn. 424, 108 N. W. 810, where a recovery was sustained for the death of an employee of the owner of a separator, caused by a defect in a covering upon which the deceased was walking. The action appears to have been based upon the negligence of the manufacturer in using a board on the covering so obviously defective as to be in reason known to the manufacturer. Another case decided by the same court is referred to, where it was held that the manufacturer of a defective stepladder was liable to one using it for damages resulting from concealed defects, on the ground that a manufacturer of an article, although not ordinarily dangerous, which was so negligently made as to be obviously unsafe is liable to one into whose hands it comes in the usual course of business. (Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103.) Another case referred to in the same classification declaring the same principle is Pierce v. C. H. Bidwell Thresher Co., 153 Mich. 323, 116 N. W. 1104. Several others are also referred to. In Huset v. J. I. Case Threshing Mach. Co., 57 C. C. A. 237, 61 L. R. A. 303, in an opinion delivered by Judge Sanborn, it was decided that there were three exceptions to the general rule that a manufacturer is not liable to third parties with whom he has no contractual relations for negligence in the manufacture or sale of the articles he handles: (1) Where his negligence is imminently dangerous to the life or health of mankind, which occurs in the preparation or sale of an article intended to preserve, destroy, or affect human life; (2) where he has invited the use of the defective article; or (3) where he sells or delivers an article which he knows to be imminently dangerous to life or limb without giving notice of its qualities, in which case he is liable to one who suffers an injury therefrom which might reasonably have been anticipated. While the foregoing decisions, and others declaring the same principles, are useful by analogy, they are not necessarily decisive of the questions here presented, and cases relating to food will now be referred to. It was held in Skinn v. Reuter, 135 Mich. 57, 97 N. W. 152, 106 Am. St. Rep. 384, that where the owner of hogs, knowing them to be diseased, sold them to a dealer who in ignorance of their condition sold them to a third person, who placed them with other hogs, the original vendor was liable for the resulting damages. It was said: “It has been held that the wrongdoer is responsible for all consequences naturally resulting from his wrong, whether he could have anticipated those consequences or not. (1 Sutherland on Damages, § 16; Wharton on Negligence, § 77; Stevens v. Dudley, 56 Vt. 158.) On the other hand, it is held that his responsibility is limited to such consequences as a person of average intelligence and knowledge should have anticipated. (Pollock on Torts, p. 28.) As the application in this case of either rule leads to the same result, it is unnecessary to determine which is correct.” (p. 60.) In another case, where the plaintiff sought to recover damages for injuries sustained in eating an unwholesome food product, it was held that a packer who had sold the product to a dealer was liable to a consumer who purchased it from the dealer. In the opinion it was said: “The remedies of injured consumers ought not to be made to depend upon the intricacies of the law of sales. The obligation of the manufacturer should not be based alone upon privity of contract. It should rest, as was once said, upon 'the demands of social justice.’ The producer should be held responsible for the results of negligent acts which he can readily foresee. . . . But the meat packer who fails to inspect his products for poisonous parasites or ingredients knows that poison will poison and that the persons to be poisoned through his neglect will be those who eat his products and no one else. The natural, probable and almost inevitable result of his negligence will be injury to the consumer, and, in my opinion, every consideration of law and public policy requires that the consumer should have a remedy. If there are no authorities which grant one it is high time for such an authority.” (Ketterer v. Armour & Co., 200 Fed. 322, 323.) In a note in 100 Am. St. Rep. 198 the author • states that the furnishing of food which endangers human life or health stands on much the same ground as the administering of improper drugs or medicines, from which a liability springs irrespective of any question of privity of contract between the parties. Among other citations the case of Craft v. Parker, Webb & Co., 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139, is cited. In that case it was held that a dealer who sells meat for consumption which is dangerous to those eating it is answerable for consequences to others than the purchaser, for the dealer knew, or should have known, its condition and its intended use. It will be noticed in the case last cited that responsibility is declared where the original vendor should have known the defective condition, as well as in cases of actual knowledge. This view is also taken in Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245, 11 L. R. A., n. s., 238, where it was held that an employee might recover for an injury caused by the explosion of oil sold to his employer by the defendant, who knew, or in the exercise of ordinary care could have known, of the dangerous character of the oil. In Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, jt was held that a caterer who furnished unwholesome food, partaken of by a guest, was liable for the injurious consequences. It was said in the opinion that one employed to furnish food for an entertainment for all who may attend stands in such a relation toward the guests as to be liable to an action for negligence in furnishing unwholesome food. The court said: “This liability does not rest so much upon an implied contract, as upon a violated or neglected duty voluntarily assumed. Indeed, where the guests are entertained without pay, it would be hard to establish an implied contract with each individual. The duty, however, arises from the relation of the caterer to the guests. The latter have a right to assume that he will furnish for their consumption provisions which are not unwholesome and injurious through any neglect on his. part. The furnishing of provisions which endanger human life or health stands clearly' upon the same ground as the administering of improper medicines, from which a liability springs irrespective of any question of privity of contract between the parties.” (p. 417.) The rule that the keeper of a public restaurant is liable for damages to a person who partakes of unfit food served through his negligence is held in Sheffer v. Willoughby, 163 Ill. 518, 45 N. E. 253, 34 L. R. A. 464. In that case the plaintiff failed to recover only because of the insufficiency of the proof of negligence. It was said in the opinion: “If a person keeping a public restaurant fails to exercise ordinary care in furnishing food, to his patrons, and damages result, he would be liable if his business be conducted in a careless or negligent manner, and through such negligence a patron is injured.” (p. 522.) (See, also, Note, 40 L. R. A., n. s., 480.) In Bark v. Dixson, 115 Minn. 172, 131 N. W. 1078, a recovery was sustained against the proprietor of a hotel for injuries suffered by a chambermaid in eating tainted meat. Her board was furnished as a part of her compensation. An instruction that the burden of proof was on the defendants to prove that they used ordinary care in the selection and preparation of the food was held to be fully as favorable to the defendants as they were entitled to. The court said: “It does not seem important whether the action was based on negligence or on contract and breach of an implied warranty. The evidence is sufficient to justify the verdict on either theory.” (p. 173.) Many of the principles discussed in the cases above referred to are stated in Tomlinson v. Armour & Co., 75 N. J. Law, 748, 70 Atl. 314, 19 L. R. A., n. s., 923, cited in the former opinion, wherein it was also said: “Among the'most fundamental of personal rights, without which man could not live in a state of society, is the right of personal security, including ‘the preservation of a man’s health from such practices as may prejudice or annoy it’ (1 Bl. Com. 129, Í34), a right recognized, needless to say, in almost the first words of our written Constitution (Const, art. 1, ¶1). To assert, therefore, that one living in a state of society, organized, as ours is, according to the principles of the common law need not be careful that his acts do not endanger the life or impair the health of his neighbor seems to offend against the fundamentals.” (p. 757.) In reason and justice these principles apply to a person who for pay furnishes board at his table for laborers, whether employed by him or another, as well as to manufacturers of food products or the keepers of hotels or restaurants. It may be that greater care is required of the latter because they may be presumed to have superior knowledge. But in either case the exercise of ordinary care, that is, the care of persons of reasonable prudence, in like occupations should be required. It is true that the ordinary housewife who furnishes food for employees may not have the skill or experience in detecting unwholesome or tainted food that one in the occupations mentioned may be presumed to have, still she is required to exercise the ordinary care of reasonably prudent persons in the same occupaUon, in like circumstances. “What is due care and caution in given circumstances has to be worked out under the head of negligence. Here we may say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence.” (Pollock on Torts, 8th ed., ¶ 28.) In this case there was evidence tending to prove that Mrs. Jones’ attention was called to maggots in the beef when it was brought up from the cellar; that she removed the maggots and cut away a part of the meat. Mrs. Jones in her testimony stated that she saw fly-blows on the bone which she cut off, “quite a large piece.” Her husband was with her when she examined the meat. She testified: “I heard blow flies in the cellar and I told Mr. Jones to take the meat out and see if there was any flies blows on it. . . . The first thing we did with this meat after we brought it up out of the cellar was to take it out on the porch and look at it, Mr. Jones and I. At that time we saw fly blows on the bone. We cut off a piece of the meat and looked at it. The meat had •hung in the cellar from Monday until Friday.” It is true that Mrs. Jones also testified that she saw no maggots in the meat, believed that it was wholesome, and that she would not have cooked it had she known that it was tainted, but the finding upon all the evidence that she, as well as her husband, was negligent in cooking it can not be set aside here, supported as it is by competent evidence. The statement in the second paragraph of the syllabus of the former opinion that the father did not know of the tainted condition of the' meat until it was on the table should be withdrawn. There was evidence from which the jury might find such knowledge. We are indebted to counsel for both parties for the careful research shown by their briefs upon this very interesting and important question. For the reasons stated in the former opinion, supported, as we find them to be, by principle and authority, the views there expressed are adhered to, and the judgment is therefore affirmed.	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The opinion of the court was delivered by Burch, J.: This proceeding is brought to determine the rights of two claimants to the office of police judge of the city of Lawrence, a city of the second class. The legislature of 1909 passed an act (amending a previous act) authorizing cities of the second class to adopt the commission form of government. (Laws 1909, ch. 82.) On April 1, 1913, the defendant was elected to the office of police judge under the general law governing cities of the second class, for a term of two years, commencing May 1, 1913, and received a certificate of election accordingly. He duly qualified and took possession of the office. On April 28,1913, the city adopted the commission form of government by a maj ority vote of the electors at a special election called for the purpose of determining the matter. At the next regular election, held on May 7, 1914, a mayor and two commissioners were duly chosen as provided by the act of 1909, who qualified as such officers and thereupon became the governing body of the city. Section 22 of the act of 1909 reads as follows: “The board of commissioners shall appoint, by a maj ority vote of all the members thereof, the following officers, to wit: A city attorney, a city clerk, a city treasurer, a police judge, a city engineer, a city marshal, a fire chief, and such other officers, assistants and employes as they may deem necessary for the best interests of the city; but no such officer shall be appointed until his term and salary shall be fixed by ordinance. The terms of all appointive officers shall be for two years: Provided, That they shall hold their respective offices until their successors are appointed and qualified; Provided, That in case of appointment to fill a vacancy such appointee shall only serve for the remainder of the term for which his predecessor was appointed.” (Gen. Stat. 1909, § 1494.) Pursuant to the authority thus granted, the board of commissioners appointed the plaintiff police judge for a term of two years commencing June 1, 1914. The plaintiff duly qualified, but his demand for possession of the office and its records was resisted by the defendant. The office of police judge in cities of the second class is one of legislative creation, and the legislature has plenary power over its existence and tenure. The office being an agency of government, established for public convenience and welfare, there is no contract, express or implied, with an incumbent, or other obligation, which deprives the legislature of power to abridge the term or to provide new or additional methods of removal. When the defendant received his certificate of election in 1913 he took it subject to the power of the electorate, under the act of 1909, to terminate his authority and to eliminate him as a holder of a city office by the adoption of a new form of city government. The essence of the commission form' of government authorized by the act of 1909 is this: The entire management of the city’s affairs is committed to three men elected by a vote of the qualified electors. These men are paid a salary for their services and entire responsibility for the administration of the government of the municipality in all its branches is rested upon them. They are the source of all authority, including the enactment of ordinances for every purpose, the appointment and removal of all subordinate officers, assistants, and employees, the collection of ail taxes,. and the making of all appropriations. The ends in view were to eliminate ward lines and partisan politics, to elevate the character and dignity of municipal service, to promote efficiency, and above all to center all responsibility for the city’s welfare in every department upon a very limited number of perons who must act in the open and who can not evade or shift duties, obligations, and consequences of policies and conduct. With the foregoing ends in view the legislature opened the act of 1909 with the following declaration: “All cities of the second class which shall adopt the provisions of this act by a majority vote of all electors voting at a special election called for that purpose, as hereinafter provided, shall be governed by the provisions of this act.” (Gen. Stat. 1909, § 1473.) As a feature of the form of government established by adopting the provisions of the act, the governing body of the city, made accountable for the administration of the various subordinate municipal offices, is entitled to fill them with its own appointees, under section 1494, already quoted. This authority is given notwithstanding such offices will be filled with incumbents when the board of commissioners comes into power, and irrespective of the fact that some of such incumbents will hold title to their offices by election while others will hold by appointment. Two sections of the act of 1909 read as follows: “Sec. 15. The board of commissioners shall constitute the municipal government of such city, and shall be the successors of the mayor and council, and upon the qualifications of the members of said board of commissioners all rights, powers, duties and emoluments of the then mayor and councilmen of any city adopting this act shall cease and terminate. “Sec. 36. Before the provisions of this act shall apply to any city of the second class in this state, it shall be submitted to a vote of the legally qualified electors of such city for adoption and shall receive a majority of all votes cast at such election. . . If a majority of all the votes cast at such election shall be in favor of the adoption of this act, then at the next annual city election a mayor and two commissioners shall be elected as provided herein; and upon their election and qualification the right, powers, duties and emoluments of the then mayor and councilmen of such city shall cease and terminate.” (Gen. Stat. 1909, §§ 1487, 1508.) The defendant invokes, the maxim, expressio unius est exelusio alterius, and argues that because the mayor and councilmen are mentioned in these sections the office of police judge is not affected by a change in the form of government. The argument proves too much, because if the proposed interpretation were sound the city marshal, city attorney, and city clerk, appointed for terms under the general law, would hold over, as well as elective officers like police judge and city treasurer, and so one of the fundamental purposes of the commission government act would be thwarted. The sections referred to, however, were not framed for the purpose of limiting the classes of officers who must surrender their offices with the advent of commission government but were intended to provide for a succession of power and to fix the time when the transfer should take effect. The defendant also refers to the section of the commission government act which provides that existing ordinances shall remain in force until amended or repealed and that tax proceedings, contracts, and property rights shall not be affected by the change in the form of government. (Gen. Stat. 1909, § 1505.) This section manifestly has no reference to the agencies by which municipal affairs are to be administered under the new regime. The result is that the plaintiff and not the defendant is the police judge of the city of Lawrence and as such is entitled to possession of the office, its records and. appurtenances, to exercise its powers, to enjoy its privileges, and to receive its emoluments. Judgment is entered accordingly for the plaintiff.	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Per Curiam: The rule is well established that when no demurrer has been filed to. a pleading, and it is attacked for the first time by an objection to the introduction of evidence, it must be liberally construed, and any cause of action fairly indicated may be proved although neither fully nor formally expressed. Applying this rule, the answer fairly presented the claim that the consideration for the dissolution settlement by the parties was apportioned, $500 in cash being given for the physical assets, and the note for $500 being given for the plaintiff’s agreement not to engage in business. Consistently with this theory, counsel for the defendant, in his opening statement, said that the whole consideration for the note sued on was the plaintiff’s agreement not to engage in business. The plaintiff should have been allowed to offer evidence to support this theory. The judgment of the district court is reversed and the cause is remanded with direction to proceed as indicated.	[ -77, -4, -76, 109, -118, -96, 58, -40, 65, 97, 55, 83, 109, -6, -112, 101, -10, 105, 85, 106, -41, -93, 54, 66, -2, -45, -127, 85, -75, -18, -19, 93, 76, -78, -62, -43, 67, -118, -63, 80, 70, -95, -103, -20, -7, -62, -80, 51, 80, 77, 101, -57, -13, 42, 61, -55, 41, 44, 110, 49, -64, -72, -116, 5, 109, 1, -109, 52, -36, 86, -40, 14, -100, 57, -127, -24, 50, 54, 6, 116, 99, -71, 32, 98, 96, 21, -15, -19, -104, -116, 39, -1, 15, -90, -45, 88, -55, 97, -65, -67, 117, 1, 15, 110, -4, 21, 30, 100, 21, -114, -42, -77, -81, 116, 30, 3, -18, -125, 16, 101, -57, -12, 92, 67, 24, -101, -35, -107 ]
The opinion of the court was delivered by Porter, J.: This is an action in forcible entry and detainer to recover possession of property which plaintiff claims the defendants occupied as his tenants. It was commenced in the city court of Kansas City and afterwards appealed to the district court, where the court directed a verdict for the plaintiff and rendered judgment in his favor, from which defendants appeal. The property originally belonged to Trower, who lost it by foreclosure proceedings, the title passing to Bramwell by the sheriff’s deed. Trower with his family remained in possession of the premises as tenants of Bramwell, and while such tenants Trower claims to have made a contract with Bramwell to purchase the property, and that the contract was partially performed by payment of $100 of the purchase money and by making valuable and lasting improvements. The case is an apt illustration of the established rule that an action in forcible entry and detainer brought in a justice court is not a suitable remedy to recover possession of real estate from one who is in possession under a substantial claim, legal or equitable, that he is the owner thereof. The assignments of error relate entirely to rulings of the court in the admission of evidence; and aside from this the only questions discussed in the briefs relate to whether the written memorandum upon which Trower relied in part to establish his contract is sufficient under the statute of frauds. In our view of the case none of these questions need be considered for the reason that they have no place in an action in forcible entry and detainer. It was sufficiently shown in this case that Trower was claiming to be the equitable owner of the property under a contract of purchase; that his claim is substantial, not a mere pretext; and the law is well settled that he can not be ousted from possession by a sum mary proceeding of this nature. Upon the showing of a claim with as much substantial merit as the evidence of defendants establish in this case it became the duty of the trial court to dismiss the proceeding and leave the parties to litigate the question of title in some more suitable form of action. See the case of Linder v. Warnock, decided in January, 91 Kan. 272, 137 Pac. 962, and cases cited in the opinion. While the point upon which the case is determined is not raised in the briefs it is nevertheless our duty in furtherance of justice to reverse the judgment and remand the case with directions to dismiss the action (Civ. Code, § 581), and it is so ordered.	[ -48, -18, -7, 13, 90, 96, 42, -103, 104, -13, 38, 115, 109, -55, 0, 107, 115, 77, 113, 105, 86, -77, 79, -29, -42, -77, 81, 85, -71, 77, 116, 86, 76, 33, -62, -43, -122, -54, -47, 92, -114, 5, 8, 65, -47, 64, 52, 27, 0, 10, 81, -113, -13, 47, 25, -61, -51, 44, -85, 61, -16, -8, -101, 13, 91, 7, -95, 37, -4, 103, 104, 46, -110, 49, 1, -24, 115, 54, -122, 116, 111, -117, 9, 38, 98, 34, 21, -21, -8, -104, 14, -102, -105, -90, -80, 24, 67, 105, -66, -99, 116, 16, 97, -4, -28, 12, 29, 108, 3, -17, -44, -77, 15, 52, -118, 11, -45, -127, 33, 112, -49, -16, 92, 71, 115, -101, -116, -69 ]
Per Curiam: This is an action by appellee to enjoin -the city of Washington and city officers from building a sidewalk along the west side of lot 19, block 9, in the city, on the line claimed by the city as the west line of the lot. The city was surveyed and platted in 1860, and the corners of the blocks, streets and alleys were marked by wooden stakes, which, by decay or fire, had, at the time of the trial, long since disappeared. There is evidence, however, that buildings had been erected on the town site prior to the disappearance of the stakes from which by measurement the parties respectively claimed to locate the west line of the lot conceded to be owned by the appellee, who also owns or has owned the two lots on the east. The appellee acquired title to lot 49 in 1876, and to the two adjoining lots, 20 and 21, two years prior thereto. The appellee alleged in her petition that the city was about to construct a cement sidewalk along lot 19, 165 feet long and 4 or 5 feet wide, the eastern line of which would be 12 feet from the western line of the lot. The appellants, admitting that the proposed line- of the sidewalk was as alleged by appellee, claimed that it was in line with sidewalks and street crossings to be constructed along the other lots’and blocks of the street, along which appellee’s lot extended, and was upon the correct line of the street; also that appellee is1 estopped from claiming any estate in the land upon which it is proposed to build the sidewalk, as against the city, for the reason that the appellee and her agents by their acts and conduct have dedicated the strip of land in question for the purpose of a street, and the right to build a sidewalk thereon, which dedication has been accepted by the city and is irrevocable; that the strip of land in question has been used and occupied by the city continuously for more than thirty years; that if the city is forced to place the sidewalk as far west as the appellee claims it should be, it will make a break or jog in the sidewalk and destroy the beauty and usefulness of the walk and street and cause irreparable injury to the public and property owners of the city. Appellants also deny that the construction of the sidewalk as contemplated would appropriate 12 feet or .any other width of the ground along appellee’s property. The reply was a general denial to the allegations of the answer. The cáse was tried by the court without a jury. Special findings of fact and law were made (not all separately), one of which is that the east line of the sidewalk as proposed to be constructed was 10.1 feet east of the west line of lot 19, and that the construction of the sidewalk at that place would wrongfully appropriate to the use of the city that portion of appellee’s lot and permanently, deprive her. thereof. Judgment was rendered that the appellants be permanently enjoined from the construction of the sidewalk as proposed and for costs. Motion for new trial was overruled and the case appealed. The location of the west line-of the lot in question, according to the original plat of the city, was a question of fact, as was also the question whether the strip along the lot which the city claimed a right to appropriate had been used and occupied by the city with the consent of the owner in the manner and for the length of time alleged by the appellants. The appellants produced in evidence a deed from the appellee to one Powell, in the year 1901, to a part of lot 21, being the eastern of the three lots owned by the appellee. The description in the deed reads: “The east 20 feet of lot 21 in block nine (9) in the City of Washington, according to the original plat of the town of Washington. The west line of the property herein conveyed is indicated by an iron rod driven at the southwest corner of said property arid one at the northwest corner thereof, and it is agreed between the parties hereto that a line drawn between said two iron rods is the west line of the property herein conveyed.” The deed is evidence of the understanding of the parties thereto, at the time it was made, of the eastern boundary of lot 21, and incidentally of the western boundary of lot 19. The city .is in no way interested in or affected by the deed or whether there was 20 feet of lot 21 east of the line fixed by the iron rods. The deed constitutes no estoppel against the appellee. In view of the general uncertainty as to the location of property in the city, it was for the court to give such weight to the evidence in. the deed as it considered it entitled to. Again, it is contended that the court erred in omitting to make separate findings of fact and conclusions of law in accordance with the request of appellants at the close of the evidence. A rule of the'court required that such application should be made, if at all, before the introduction of evidence. This is a reasonable rule, and the party who violates it can not predicate error upon the failure of the court to comply with an untimely request. (Marquis v. Ireland, 86 Kan. 416, 121 Pac. 486; Lehnen v. Hines & Co., 88 Kan. 58, 127 Pac. 612.) The ordinance under which the sidewalk was to be built was also produced in evidence. It provides that the sidewalk should be built along the west line of appellee’s lot 19, but in no way aids in the determination of such line as established by the original plat of the city. The location of the line was, in a sense, a matter of original investigation in this case, and there is evidence sufficient to sustain the finding of the court therein. The judgment is affirmed.	[ -15, 120, -44, -18, 26, 32, 24, -104, 123, -95, -75, 95, -83, -53, 28, 17, -93, -7, 80, 59, -59, -93, 71, -61, -76, -13, -13, -43, -16, 125, -12, 86, 76, 49, -54, -107, 70, -62, -51, 92, -114, -91, 11, 77, -103, 96, 36, 123, 114, 79, 113, 94, -13, 44, 24, -61, -88, 44, 75, 45, -47, -8, -87, -108, 121, 6, -128, 102, -100, -125, -50, 10, -112, 53, 4, -24, 55, -90, -122, 118, 79, -69, 8, 98, 98, 1, 109, -73, -40, -104, 14, -34, 45, -92, -111, 25, 65, 33, -75, -105, 117, 16, 38, 126, -18, -51, 95, 108, 15, -117, -44, -15, -33, -8, -124, 67, -49, 3, 16, 84, -50, 118, 94, 99, 55, 91, -114, -23 ]
The opinion of the court was delivered by Johnston, C. J.: The sole question presented on this appeal is whether or not certain letters set out in appellant’s petition were sufficient to toll the statute of limitations on a certain promissory note. Holding that they did not, the trial court sustained appellee’s demurrer to the petition. It appears that on May 20, 1907, the appellee, H. E. Beaubien, gave his certain promissory note, by which he promised to pay, in seventy days thereafter, $300, with interest at ten per cent per annum from dáte until paid, to Dr. W. C. Hamilton or order. Hamilton, as it was alleged, transferred the note by indorsement on September 1, 1912, to the appellant, Lela Hamilton. It was also alleged that after the maturity of the note and up to December 1, 1912, Hamilton, the payee, made frequent demands on Beaubien for payment, and in answer to an urgent demand the. appellee wrote Hamilton under date of February 11, 1910, in which appellee said that he had “expected to make a little raise of some money and go down to Topeka to see you this winter, but was disappointed,” and then added, “Just as soon as I get hold of a little money I will either send it to you or come down myself.” On August 3, 1911, appellee answéred a letter of the payee and said in part, “I will send you all the money I can as soon as I thresh. Probably about the first of September.” To one of appellant’s attorneys, with whom the note had been placed for collection, the appellee wrote, in part, under date of October 6, 1912: “I regret to hear of Dr. Hamilton’s illness and regret still more on account that I can do nothing at this time to help out. If I could even send him a little something so he might know .1 had not forgotten him I would feel better. “You don’t realize how I regret it for Dr. Hamilton has been a good friend to me and it hurts me more than I can tell that I am unable to do my duty by him. I am getting better now and am in hopes that in a short time I may be able to send them some money. I would like very much to go and see the Dr. He has been on my mind a great deal this summer but I can’t go near him until I can bring him some money. I sincerely hope my old friend will regain his health, and that I may be able to send him some money in .the near future. Will you kindly explain this to Mrs. Hamilton and tell her that I will do my best to raise some money for her.” These- are the only statements in Beaubien’s letters which bear upon the acknowledgment of the indebtedness. It will be observed that the debtor does not mention his note nor refer to any particular demand or debt and nothing is said about the character or amount of the debt. If we may look to other sources for the identification of the demand there is still nothing in the letters which constitutes an unqualified acknowledgment of a present, subsisting debt upon which he is liable. In Hanson v. Towle, Adm’r, 19 Kan. 273, it was held that a mere reference to an obligation or instrument wherein the debtor spoke of raising and paying money and did not even question the binding obligation of an instrument was not such an acknowledgment as was contemplated by the statute, but that in order to bar the limitation “There must be an unqualified and direct admission of a present subsisting debt on whieh the party is liable, and which he is willing to pay.” (Syl. ¶ 4.) In Elder v. Dyer, 26 Kan. 604, 40 Am. Rep. 320, the court disapproved of the clause used in Hanson v. Towle, Adm’r, “which he is willing to pay.” It was reiterated there, however, that a reference to a demand or instrument which might or might not be valid did not, of itself, constitute an acknowledgment of a present.and subsisting liability. Some language was used in Elder v. Dyer which might seem to modify the rule of Hanson v. Towle, Adm’r, in other respects, but the doctrine of that case was expressly reaffirmed in Haythorn v. Cooper, 65 Kan. 338, 69 Pac. 333, where the debtor, in terms, referred to a mortgage made by him and owned by the holder, and it was held that notwithstanding the expression in Elder v. Dyer there must be an unqualified and direct admission of a present, subsisting debt on which the party is liable. It was also remarked that: “Statutes of limitation are statutes of repose. One seeking to evade their result must bring himself within the terms of the statute which raises the bar. A writing which is no more consistent with the claim that an acknowledgment was intended than with the claim that it was not is not sufficient to remove the bar.” (p. 340.) In the recent case of Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479, the rule of Hanson v. Towle, AdM’r, was again approved, and it was there held that: “An acknowledgment in writing that a debt once existed, but which does not contain an admission of a present, subsisting debt on which the party is liable, is insufficient to avoid the bar of the statute of limitations.” (Syl. ¶ 3.) Other cases supporting that view are: Durban v. Knowles, 66 Kan. 397, 71 Pac. 829; Good v. Ehrlich, 67 Kan. 94, 72 Pac. 545; Richards v. Hayden, 8 Kan. App. 816, 57 Pac. 978. The phraseology of an acknowledgment is not important, but to remove the bar something more than vague general expressions of a desire and purpose to pay money to another is necessary, and nothing short of a distinct, direct and unequivocal admission of a present, subsisting liability is sufficient. Beaubien’s letters contain expressions of a desire to help Hamilton and of a purpose to raise and pay money to him, and they also contain an expression of regret that he has not been able to do his duty towards Hamilton, but an examination of the letters shows that they fall short of an admission from which an acknowledgment such as the statute contemplates may be implied. The judgment of the district court will be affirmed.	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The opinion of the court was delivered by ' Burch, J.: The defendant was charged and convicted as a persistent violator of the liquor law, and was sentenced to imprisonment in the penitentiary at hard labor for the period of one year. In this appeal two questions are presented, the unconstitutionality of the act providing punishment for persistent violators of the liquor law, and the insufficiency of the information because of indefiniteness and uncertainty, in charging the offense. The first question was decided adversely to the appellant’s contention in the case of The State v. Adams, 89 Kan. 674, 182 Pac. 171, and the second was decided adversely to her contention in the case of The State v. Schmidt, ante, p. 457, 140 Pac. 843. It is said that the act involved does not meet the requirements of section 16 of article 2 of the constitution, providing that no bill shall contain more than one subject, which shall be clearly expressed in its title. The title and section 1 of the act read as follows: “An act providing a punishment for persistent violators of the prohibitory liquor law. “Section 1. Any person or persons who having once been duly convicted of the violations of the prohibitory liquor law and who shall thereafter directly or indirectly violate the provisions of the prohibitory liquor law shall be considered a persistent violator of the prohibitory liquor law and shall be deemed guilty of a felony, and upon conviction thereof shall be imprisoned in the State Penitentiary at hard labor for not more than one year.” (Laws 1911, ch. 165.) The title embraces a single subject, which is clearly expressed. It does not relate to punishment alone, or generally, or in the abstract. It relates to punishment of a designated class of persons not previously discriminated in any statute, and the punishment of a designated class of persons is a single subject. Under this title the legislature could deal with both elements of the subject, the class of persons named and the punishment they were to receive, without multifariousness. Just as it could define the character and limit the quantity of punishment, so it could define and limit the class of persons, and when all this was done but one subject, accurately disclosed by the title, was treated. Strictly speaking the act does not create a new felony. It merely provides a severer punishment for persistent offenders. But conceding that the purpose was to create a new offense, the legislature was not limited to any particular mode of expression in doing so. It was not obliged to adopt the common formula, “An act defining the crime of (persistent violation of the prohibitory law), and providing punishment therefor.” It could employ, whatever language it chose provided it observed the. constitutional requirement of singleness of subject in the body of the act and clearness of expression in the title. These requirements having been sufficiently observed, the act is valid. The charging part of the information reads as follows : “That on the 28th day of May, A. D., 1910, in said County of Saline and State of Kansas, one Mary V. King was convicted in said Court of keeping and maintaining a nuisance contrary to the provisions of the prohibitory liquor law of said state and that since the date of said conviction towit, on the 20th day of February, 1918, said Mary V. King did unlawfully sell and barter malt, vinous, fermented, spirituous and other intoxicating liquor within said county and state.” Under the statute two things are necessary to constitute a person a persistent violator; first, a conviction for violating the prohibitory law, and, second, subsequent violation of such law. A violation of the prohibitory law by means of a sale is always sufficiently charged by stating that on a specified date the defendant unlawfully sold intoxicating liquor within the county and state. It is not necessary to describe the kind of- liquor sold or to name the person to whom the sale was made, or to describe the offense with more particularity in any other respect. The fact that such a violation of law is aggravated in punishment by a previous conviction, or becomes an element of a crime of a higher grade, does not affect in any way the method of pleading. Viewed in either aspect, violation of the liquor law is pleaded with definiteness and certainty by use of the form suggested, as in the present instance. The other element of the felony charged — former conviction of a violation of the prohibitory law — was well pleaded, and consequently the information, as a whole, was not open to the objection made to it. The judgment of the district court is affirmed.'	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The opinion of the court was delivered by Mason, J.: U. G. Mason and W. L. Johnston were partners engaged in the business of buying and selling live stock. Johnston undertook to sell practically all the property of the firm to .Eugene Bauman, to whom he executed a bill of sale, receiving payment by a check, which he cashed, retaining the money. The property was in the manual possession of Mason, who had taken no part in the deal. -He refused to deliver it to Johnston, who brought replevin, giving a bond and obtaining possession. He sold a part of the property, depositing a portion of the proceeds in the First National Bank of Olathe, as he says to indemnify it against loss through having furnished him a bond in the replevin suit. The bank received the money with notice of its origin. D. M. Rothweiler, a creditor of the firm, brought action against its members on a note, joining Bauman as a defendant on the ground that the conveyance to him had been made with the fraudulent purpose, to which he was a party, of hindering firm creditors in the collection of their claims. An attachment was issued, and levied on that part of the property transferred to Bauman which had'not been resold, and the bank was made a garnishee. Judgment was rendered against all the defendants, the attachment was confirmed, and the bank was held liable to the extent of the deposit made by Bauman. Johnston, Bauman, and the bank appeal. Bauman contends that no cause of action against him was pleaded or proved. The petition alleged that the transfer from Johnston (assuming to act for the firm) to Bauman was intended by both to delay and defraud creditors of the partnership; that a part of the property had been sold and a part of the proceeds deposited in the bank. One purpose of the action was to subject the property to the payment of the partnership debt, but the petition included also averments sufficient to charge Bauman with personal liability, because of his having resold a part of the property. (20 Cyc. 631, 821; 14 A, & E. Encycl. of L. 341.) He suffered no prejudice from the joinder in the same proceeding of an effort to reach the property by asserting a specific lien upon it,, and also by attachment and garnishment. There was circumstantial evidence from which a fraudulent purpose could be inferred, and therefore the finding of the trial court as to the fact can not be disturbed. The original affidavit for attachment did not state specifically the character of the cause of action against Bauman. . This defect was cured by a subsequent amendment, which was permissible under our practice. (Eckhardt v. Taylor, 90 Kan. 698, 136 Pac. 218.) Bauman contends that as he held the property in virtue of a bond given in the replevin action it was in custody of the law and therefore was not subject to attachment. All claimants of the property in the replevin case were also parties to the present proceeding, one purpose of which was to subject it to the payment of their indebtedness. This situation does not call for the application of the rule which in some circumstances forbids the attachment of property held by virtue of a replevin bond. The contention is made, apparently in behalf of Johnston and Mason, that a creditor can not attach partnership property before his claim is in judgment, or question a sale of partnership property until his right has been adjudged in an equitable suit. The present action may be regarded as including an equita ble proceeding to subject partnership property to the payment of partnership debts. The obligation of Mason and Johnston on the note was not questioned in any way, but was specifically admitted. Since the claimants of the fund on deposit are all in court, the bank is fully protected, and is not injured by the order as to its disposition. From statements made in the oral argument, and from the record in this and other cases brought to this court, it seems probable that the judgment has been paid in full, and under such circumstances that the rulings already considered are not really reviewable. Because of some doubt on this point, however, they have been examined upon their merits. The judgment is affirmed.	[ 114, 126, -8, 12, 26, 96, 42, -70, 81, -92, 37, 83, -23, -54, 0, 105, -13, 45, -16, 104, -26, -73, 7, -94, -46, -77, 89, -51, -79, 78, -92, 87, 77, 48, 74, 53, -26, -46, -63, 30, 78, 4, 58, -20, -3, 96, 48, -113, 20, 74, 81, -114, -13, 40, 29, -54, 105, 46, 111, 61, -16, -8, -69, -59, 127, 23, 17, 38, -40, 103, 72, 46, -48, 49, 9, -55, 114, -90, 22, 116, 47, -67, 40, -30, 98, 35, 53, -17, 32, -120, 46, -98, -99, -89, -112, 88, -126, 33, -66, -97, -1, 0, 38, 124, -2, 13, 29, 108, 1, -50, -42, -95, -113, 126, 26, 29, -2, -111, 50, 112, -50, -96, 92, 87, 122, -101, -114, -11 ]
The opinion of the court was delivered by Smith, J.: The appellees in their original petition in this action stated, or attempted to state, two causes of action (not separately stated or numbered) against the appellants. As a basis for one cause of action it was alleged that the appellees had contracted in writing to buy several tracts of land in Atchison, Jackson and Nemaha counties, and had made a payment on such contract; that the appellants had agreed and guaranteed to secure for appellees the amount of loans required at certain rates and commissions, the loans to be secured by real-estate mortgages; also, that the appellants had failed to comply with their contract and warranty in securing the loans within the time specified and required, and that the appellees were compelled to and did make another contract with appellants to secure a smaller amount of loans for the same purpose but for which the appellees were required to pay a larger commission or bonus; that the appellants did secure for the appellees real-estate loans for a part of the amount contracted for in the second contract, but required the appellees to pay, and the appellants deducted and retained from the amount so borrowed, the sum of $1425 as a bonus for securing the entire amount of loans contracted to be secured and in addition to a commission therefor. Further, that the appellants failed to secure the loan of $17,500 of the amount contracted for in the second contract. On motion of the appellants the appellees were required to separately state and number their causes of action, and-time was given to file an amended petition. In accordance with the order, an amended petition was filed, and the first cause of action set forth therein was upon the first contract before referred to. The second cause of action was based upon the second contract. In the second cause of action, however, there were references to the allegations in the first cause of action in such manner as to practically' make the first cause of action a part of the second. A m.otion to strike out such references was overruled. This motion should have been sustained, but, as we-shall see, no prejudice resulted to the appellants from the overruling of the motion. The appellants also moved to strike out the allegations of the petition relating to the original contract for loans. Whether this-motion was properly or improperly overruled, the ruling was also not prejudicial in view of the verdict and judgment rendered. The same may be said of appellants’ demurrer to the first cause of action in the amended petition. The theory of the appellants in these objections to the petition is that in making the second contract for loans the appellees waived all rights under the first contract and all claims for damages for the violation thereof. It is apparent from the items set forth in the petition'that in the verdict and judgment nothing was allowed against the appellants upon the first cause of action. Indeed, the appellants say in their brief, “The amount of the verdict shows clearly just what items were allowed by the jury. The verdict was for $1806 or the $1425 item plus the item, $881,..for extension of time on the draft.” These items were set forth in the second cause of action in the amended petition and were not in the first cause of action therein. It follows that the first cause of action in the amended petition may be ignored, and that no.discussion is necessary of the question whether the .appellees were entitled to any damages for the failure of appellees to comply with the first contract for loans after they had made and accepted part performance of the second contract for loans; in short, whether the making of the second contract did not set aside thé first and waive any claim for damages thereunder. . We shall therefore not notice the requests for instructions bearing upon this question. If the appellees had any rights under the first contract for loans the result of the trial was to their prejudice, and not to the prejudice of appellants. The appellees are not complaining thereof. It is contended by the appellees, in substance, that the item of $1425, as itemized by the appellants in the above quotation, deducted by the appellants from the loans actually made, was a bonus or cash commission paid upon the entire amount to be secured as loans under the second contract for loans and including a- loan of $17,500 which was agreed to be made but was not made. There was also evidence on behalf of the appellants that they were required to pay and did pay the sum of $881 for an extension of time on a draft they had given as payment on the land which they had contracted to buy. Also, that they were compelled to sell a part of the lands they had contracted to buy at a price considerably less than their actual value to enable them to fulfill their contract of purchase, and that such sale was made necessary by the failure of appellants to make ■the $17,50.0 loan. It is said by the appellants that they did not guarantee the securing of loans for the $17,500, and that the item of $1425 was a cash commission on the $14,-500 actually loaned. The evidence was conflicting as to just what the contracts were, and there is abundant evidence to support the findings of the jury. The jury did not make any special finding as to the amount which constituted the verdict, but returned a gross verdict in the sum of $1806. However, the analysis made by the appellants in their brief is suggested from the evidence and probably is correct. It is said by appellants that the $1425 item as claimed by the appellees was paid in part for loans which they did receive, but it is also true that appellants produced evidence which would have justified a finding of damages on the loss suffered by appellees oil the sale of the lands which was made necessary to secure the $17,500 loan. The evidence fully justifies the verdict, if not a greater allowance, but the jury had these two items in the evidence and evidently put them together as their •estimate of the amount of damages which should be recovered. We find no substantial error in the proceedings, and the judgment is affirmed.	[ -14, 122, -32, -18, 10, 96, 40, -70, 125, -32, -89, 83, 109, -49, 4, 109, -18, 45, 80, 106, 103, -77, 7, 104, -46, -77, -15, 93, -80, 79, -12, 22, 76, 52, -54, -41, -26, -62, -59, 28, 78, -123, 9, -27, -39, -62, 52, 111, 86, 73, 21, -113, -13, 40, 29, 67, 41, 46, -37, 45, -48, -16, -102, 13, 93, 5, 49, 101, -36, 71, -56, 42, -112, 49, 25, -24, 82, -74, -122, 52, 77, 27, 8, 34, 98, 34, -15, -49, 28, -40, 46, 86, -99, -90, -109, 88, 35, 33, -66, -99, 124, 20, 7, 126, -26, 5, 25, 108, 23, -53, -44, -109, -115, 116, -101, 3, -26, -126, 32, 112, -49, -94, 92, 71, 59, -101, -114, -104 ]
The opinion of the court was delivered by West, J.: This is an appeal from a judgment confirming the report of commissioners in favor of the construction of a certain drainage ditch. (Gen. Stat. 1909, §§ 3057-3070.) In March, 1910, a petition was filed to which a demurrer and written objections were interposed. These were overruled and commissioners appointed, who, on June 6, 1910, made a preliminary report recommending a ditch as therein described. Objections and remonstrances were made to this report, which was set aside, one of the commissioners was removed and another appointed in his place with orders to file a preliminary report on the first day of November, which was done, and to this report written objections were also filed. March 22, 1912, the third and final report was made, which was likewise met with exceptions and remonstrances. These were overruled and the report was confirmed June 13, 1912. On the next day Boyer and Buzzi each moved for a new trial, and on June 29, 1912, their motions were overruled, but the court modified the assessment of damages by making the benefits awarded against the property of these defendants somewhat smaller. On July 10, 1912, Boyer and Buzzi filed their notices of appeal to the supreme court, each of which notices bore acceptance and acknowledgment of service, dated July 3, 1912. September 9, 1912, Boyer filed a motion for rehearing, which was denied January 2, 1913. The defendants insist that the petition left out the essential averment that the drainage-in question could not be accomplished in the best and cheapest manner without affecting the lands of others, but section 3057 prescribes certain matters which the petition shall contain, including a statement of the method by which it is believed that such drainage can be accomplished in the cheapest and best manner, and the belief of the petitioners that the cost, damage, and expense of such drainage will be less than the benefit which will result to the “owners of the lands and other properties and easements . . . likely to be benefited thereby.” These' the petition contained, .and we find that the effect of the omitted averment was covered by the al legations fairly construed, hence the, court was not without jurisdiction. It is also urged that the final location of the ditch differs materially from the one specified in the original petition, but section 3061 expressly provides that the ■drainage commissioners, in locating the line or line of work of drainage, may vary from the line prescribed in the petition as they may deem best, and may fix the beginning and outlet so as to procure the best results. Considering this wide discretion, we find no ground for complaint in this respect, especially in view of the repeated hearings and considerations given the matter by the district court. It is asserted that no report was made or testimony offered as to the number of acres drained, but in the second report of the commissioners the land affected by the drainage was set forth by lots and subdivisions, which would seem to be equivalent to giving the area. It is suggested that the court failed to find affirmatively that the ditch would improve the public health, and this is put forward as a fatal omission. But this affirmative finding was made when the second preliminary report came in, as shown by the counter-abstract, which was the proper time, and thus the .statute was, in that respect, complied with. (§ 3058.) The point that no affirmative evidence was offered to show that the ditch would improve the public health is answered by the fact that the finding of the commissioners to that effect is made prima facie evidence. (§ 3058.) While the proceeding seems to have been attended with spirited opposition, the defendants were repeatedly heard and the trial court' appears to have given the matter great consideration. The plaintiffs urge that their former motion to dismiss should have been granted for the reason that the required procedure was not followed. If section 3058, •enacted in 1907 and amended in 1909, and section 3062, enacted in 1907, still control they were not complied with. If the civil code, amended in 1909, applies, the defendants are in court. ■ But as our view of the merits compels an affirmance-we do not deem it necessary to decide this” question. The judgment is affirmed.	[ -95, 104, -43, -20, 42, -32, 18, -104, 73, -79, -26, 115, -113, -46, 4, 97, -29, 61, 80, 43, -42, -78, 118, -125, -102, -13, 103, 79, -11, 125, -10, 87, 76, 40, -126, -107, 102, 8, 67, 18, -114, 23, -87, 69, -39, -56, 52, 111, 118, 79, 21, 60, -29, 46, 16, -61, -88, 44, -21, 61, 80, -16, -102, -97, 91, 4, 32, -89, -104, 33, 122, 56, -104, 21, 1, -20, 119, -90, -105, 116, 75, -71, 8, 50, 103, 3, 117, -17, -24, -104, 14, -97, -83, -90, -112, 24, 10, -96, -66, -99, 113, 82, -89, 126, -18, -59, 91, 108, 5, -117, -108, -29, -105, -76, -113, 0, -21, -117, 16, 112, -57, -62, 78, 101, 81, -101, -114, -104 ]
The opinion of the court was delivered by Mason, J.: The Van Arsdale - Osborne Brokerage Company employed A. E. Jones as an agent to solicit fire insurance, under a written contract which among other things provided that he should receive a commission upon the premiums; that where premium notes were given the brokerage company would remit to Jones on the first of the ensuing month the amount of his commissions thereon, but that “in all cases where notes are taken by him for insurance and said notes remain unpaid for six months after due, the commission advanced by said Company shall be refunded by said solicitor.” Provision wa,s also made for charging back to the solicitor commissions on policies that were subsequently canceled. Jones worked under the contract from August 1, 1909, to March 30, 1912, at which time the agency was transferred. On April 14, 1913, the company brought action against Jones, joining as a defendant T. M. Jones, who had signed a bond for his faithful performance of his contract, upon an account for $184.64, con sisting of items charged to the agent because of the cancellation of policies, and because of the nonpayment within six months after maturity of premium notes on which he had received a commission. Upon trial the court directed a verdict for the plaintiff, on which judgment was rendered. The defendants appeal. (1) A reversal is asked on the ground that service in Sedgwick county was procured by fraud, in that A. E. Jones, a resident of Kingman county, was induced to come to Wichita on the representation that the company desired to discuss a settlement with him, when in fact the purpose was to have him served with summons in the present action. In the plaintiff’s abstract it is said that at the hearing of the motion to set aside the service oral evidence was introduced, of which no transcript or abstract was made. If that is the case, and the statement has not been challenged, no review of the ruling on the motion can be had unless the admitted facts show that fraud was practiced in obtaining service. The parties agree that the account against A. E. Jones was placed for collection in the hands of a Kingman attorney, who told Jones that unless it was paid he would have to bring an action upon it; that there was talk between them of the withholding of the suit for a time, of his entering an appearance later, and of his going to Wichita to confer with the plaintiff, the evidence being in conflict as to the details of the conversations; that a little later Jones called at the plaintiff’s office in Wichita to discuss a settlement, and was there served with summons. These facts fall short of making out a case of procuring service- in Sedgwick county by fraud, there being no admission that the defendant was induced by the plaintiff’s representative to make the trip to Wichita for the purpose of discussing a settlement. (McLain v. Parker, 88 Kan. 717, 129 Pac. 1140.) (2) The answer of A. E. Jones alleged that the plaintiff had extended the time of payment of the notes the nonpayment of which was the basis of the demand for the refunding of his commissions. The reply was a general denial. At the trial the plaintiff was permitted to amend the reply by pleading that any extension of time that was given was a mere indulgence, not supported by any consideration. The defendants objected unless a continuance were had, and now complain of the ruling. The allowance of the amendment was within the discretion of the court, and it does not appear that a delay would have benefitted the defendants. And in any event the matter presented in the amendment is not vital to the result, as will appear from what is hereinafter said. (3) Technically a case was presented for submission to the jury, the burden of proof being on the plaintiff. A formal issue had been raised as to the terms of the written contract of agency, but the document was produced at the trial and its genuineness is not controverted, so that no real question exists in that regard. Upon the matters of substantial dispute the plaintiff relied upon the testimony of its secretary, May 0. Jones, who had charge of the accounts of all agents. She testified, largely from the records of the company, concerning the transactions had with respect to each of the controverted items. The defendants were entitled as an abstract proposition to have the jury pass on the credibility of the witness, but no challenge of her veracity is made, and in other respects the effect of her statements depends upon the soundness of the propositions of law upon which the defendants ask a reversal. Under these circumstances the omission to refer the matter to a jury is not regarded as material. (4) The substantial controversy between the parties turns upon the force of this sentence of the agency contract: “And it is further agreed by said solicitor that in all cases where notes are taken by him for insurance and said notes remain unpaid for six months after due, the commission advanced by said Company shall be refunded by said solicitor.” It was shown that in a number of instances in which the company had charged back to the agent the commission paid him on a particular premium note, the company had extended the time of payment, sometimes upon the giving of security; and that in other instances, after a commission had been charged back to the agent, the company had collected the note without giving the agent any credit therefor. But no such extension or collection was shown to have been made until after the expiration of six months from the original maturity of the note. The defendants are right in asserting that there was an implied obligation on the part of the company not to do anything to interfere with the prompt payment of the premium notes. (Currier v. Mutual Reserve Fund Life Ass’n, 108 Fed. 737; Reed v. Union Life Insurance Co., 21 Utah, 295, 61 Pac. 21.) And if the company, before a note had become six months overdue, had granted the maker an extension, whether for a consideration or otherwise, it would thereby have waived its right to charge back the agent’s commission because of a nonpayment within the time originally fixed. But the defendants also maintain that even where a commission had properly been charged back to the agent because of the nonpayment of-a note for six months after maturity, he was entitled to a credit whenever it was collected; and that even where an extension was granted after a note had remained six months overdue, the right of the agent to a contingent credit revived, and he could not be required to refund the commission until the expiration of six months from the new date of maturity. We can not agree that such is the fair construction of the contract. It provides that whenever a note remains unpaid for six months after maturity the commission is to be refunded by the agent. No provision is expressly made for reopening the'account in that regard, and we think none is to be implied. By the literal terms of the contract the right to the commission is destroyed by a default of six months in the payment of the note. The requirement that the commission shall be contingent not only upon the payment of the note but upon its prompt payment is somewhat strict, but not so harsh as to justify a strained construction to avoid its enforcement. Its obvious purpose is to give the agent a strong motive to see that the notes taken shall be such as will be paid without delay and without inconvenience or expense being caused to the company. As the right of the agent to a commission' was absolutely cut off whenever (without fault of the company) a note remained unpaid for six months after maturity, it was of no consequence to him what extensions were made after that time, for a consideration or otherwise, or whether collection was' ever effected. And the liability of the bondsman is measured by that of the agent, whose faithful performance of the contract he had guaranteed. (Milwaukee Mechanics’ Ins. Co. v. Warren, 150 Cal. 346, 89 Pac. 93; Van Arsdale-Osborne Brokerage Co. v. Riner, [Okla. 1915] 153 Pac. 859.) (5) The defendants argue that the burden of proof was on the plaintiff to show that it had diligently endeavored to collect the notes. There is nothing in the record that suggests a want of reasonable diligence in that regard. The company was bound not to do anything to encourage delay, but was not required to take any particular steps in the effort to enforce collection. (6) Complaint is made of the sustaining of objections to two questions asked of the plaintiff’s witness on cross-examination. One of them referred to a matter already held to be immaterial. The other is not regarded as of sufficient importance to be the basis of a reversal whether the ruling was correct or not. An objection is made to a part of her testimony as immaterial. If it was immaterial it could not under the circumstances have been prejudicial. A. E. Jones pleaded that after the written contract had been executed a representative of the plaintiff orally agreed with him that the commissions on unpaid notes should not be charged back to him. Presumably in support of this allegation he offered to testify to a conversation with an agent of the plaintiff, but his testimony was ruled out, apparently for want of proof of the agent’s authority. The ruling seems to have been correct, but in any event it can not be reviewed, for the character of the excluded evidence was not shown. (Civ. Code, § 307.) The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: John Butler sued the city of Kansas City to recover damages for personal injuries alleged to have been caused by the city’s negligence. The city maintains a pest-house where persons affected with smallpox are taken for isolation and treatment. The petition alleged that Butler became sick with smallpox and was taken by employees of the city and confined in one of the rooms or wards of the pesthouse, where each morning he was obliged to start a fire, and that blood-poisoning resulted from a splinter of the flooring which entered his bare foot as he walked from the bed to the stove. The petition alleged that the city was negligent in maintaining the floor of the room in a defective and dangerous condition, A demurrer to the petition was overruled. The city elected to stand upon the demurrer and has appealed. The contention of the city is, that in maintaining a pest-house it was performing a governmental duty under the police power of the state, and therefore can not be held liable for negligence causing injuries to persons who were in the pest-house for treatment and isolation while affected with smallpox. On the same principle a similar immunity from liability has been held to exist in a case where a county is sued by an inmate of a jail for injuries resulting from negligence in the manner in which the jail was maintained. (Pfefferle v. Comm’rs of Lyon Co., 39 Kan. 432, 18 Pac. 506.) The decision in that case was placed upon the ground that in respect to persons committed to its custody, the county was engaged in the performance of a governmental duty for the benefit of the state and possessed the same immunity as the state. In Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409, it was said: “Counties are mere auxiliary agencies of the state government, and, like the state, are immune from liability on account of damages occasioned by the manner in which they exercise-or fail to exercise their govermental powers.” (Syl. ¶ 1.) (See, also, The State v. Lawrence, 79 Kan. 234, 250, 100 Pac. 485.) The same doctrine was applied in a case of malicious prosecution. (City of Caldwell v. Prunelle, 57 Kan. 511, 46 Pac. 949.) It was there held that in enforcing a police regulation the officers of the city were exercising a public and governmental function. In the opinion it was said: “For the manner in which they exercise their powers and duties in this respect the city is not liable.” (p. 513.) The case of Edson v. Olathe, 81 Kan. 328, 105 Pac. 521 (rehearing denied, 82 Kan. 4, 107 Pac. 539), recognized the distinction between the governmental and proprietary functions of municipal corporations generally, and as affecting property and contract rights. (See authorities cited in opinion.) Another case more nearly in. point as to the facts, and in which the controlling question was the distinction between the liability of a city for an act done by it in its public capacity as a part of the political subdivisions of the state and its liability for an act done to its private advantage in relation to which the state at large has no interest, 4s La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272. There the plaintiff brought an action to recover damages to his health by the negligent condition of a jail in which he was confined for the violation of a city ordinance.. It was held that the city in maintaining the jail stands in the same attitude as counties and is not liable for injuries resulting from the enforcement of public laws affecting the state at large. It- is a general -rule that the govermental agencies of the state are not liable in an action of tort for either nonfeasance or misfeasance. (Fowle v. The Common Council of Alexandria, 28 U. S. 398, 7 L. Ed. 719; Maxmilian v. Mayor, 62 N. Y. 160, 164, 165, 20 Am. Rep. 468.) Judge Dillon states the law as follows: “The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute, appertains to it in its govermental or public, and not in its corporate, or as it is sofnetimes called, private capacity. And therefore where a city, under its charter, and the general law of the state enacted to prevent the spread of contagious diseases, establishes a hospital, it is not responsible to persons injured by reason of the misconduct of its agents and employees therein.” (4 Dillon, Municipal Corporations, 5th Ed., § 1661.) Among the cases cited in the notes which are directly in point, see, Evans v. City of Kankakee, 231 Ill. 223, 83 N. E. 223; Sherbourne v. Yuba County, 21 Cal. 113; Summers v. The Board of Commissioners of Daviess County, 103 Ind. 262, 2 N. E. 725; City of Richmond v. Long’s Adm’rs, 17 Gratt. (Va.) 375; Murtaugh v. The City of St. Louis, 44 Mo. 479. In Barbour v. Ellsworth, 67 Maine, 294, a well person was taken to a hospital for smallpox, where he contracted the disease. Alleging that he had not been suitably or sufficiently cared for, he sued the city for damages, and it was held there was no liability. In Lynch v. North Yakima, 37 Wash. 657, 80 Pac. 79, it was held that the city was not liable for the act of a policeman who took a person exposed to smallpox into a building occupied by the fire department, thereby exposing the employees to contagion. The duty of a municipal corporation to conserve the public health is govermental, and it is not liable for injuries inflicted while performing such duty. '(6 McQuillin, Municipal Corporations, § 2669.) The petition failed to state a cause of action against the city, and the judgment is reversed with directions to sustain the demurrer.	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The opinion of the court was delivered by Porter, J.: A. C. Means executed and delivered to the Merchants State Bank of Wichita two promissory notes, each for the sum of $5000, dated April 19, 1913. One of the notes was payable directly to the bank; the other, which is the one involved in controversy here, was payable to Means himself and he indorsed it to the bank. After he had renewed it once the renewal note was sold to a bank in Kansas City, which subsequently sued Means thereon and recovered judgment for the full amount and interest. In the meantime the Merchants State Bank and the Merchants Reserve State Bank, both of Wichita, consolidated, and Means brought this action against both banks to compel them to pay the judgment. The petition alleged that the notes were executed as an accommodation to the Merchants State Bank, without any consideration being given, and under an agreement with J. W. Dice, president of the bank, by which the bank was to hold plaintiff harmless and free from any liability upon the notes. The defendants answered that the arrangement between Diee and Means was an individual transaction; that Dice acted without authority of the board of directors and without their knowledge and consent; and further, that the transaction was' for the fraudulent purpose of deceiving the state bank commissioner and the stockholders and creditors of the bank as to its condition, and that the plaintiff was estopped to say that he was not bound by the note. At the trial the defendants objected to having a jury called, and claimed that the case was an equitable one for the court to decide. The court called a jury in an advisory capacity, and the jury made certain findings of fact. Without approving or disapproving the findings of the jury the court rendered a general judgment in plaintiff’s favor for the expenses of defending the action brought against him on the note and directing the defendants to pay the judgment.' Plaintiff claims that the notes were given without consideration and under the following circumstances: In 1912 one W. H. Kelchner, who had been operating a meat market in Wichita, was largely indebted to the bank on notes, and the bank was compelled to take over the business. For a while it employed Kelchner to manage the business. Later it employed John Chain, paying him $25 a week, and in lieu of Kelchner’s notes Chain gave his notes to the bank. Sometime in March, 1913, Means applied to the bank for employment, and the cashier told him that Chain’s management of the meat market was not satisfactory, that the bank might give him the position under the same arrangement, and that if he wanted it, to see Mr. Dice, president of the bank. Mr. Dice told him that they were carrying $10,000 of Kelchner’s notes in Chain’s name, and said: “Of course, your notes will simply replace Chain’s. There is no liability whatever on it. There will be no liability in any way at all. You will never be asked-to pay the notes or the interest. You are simply loaning your credit to the bank. In addition to this I will give you my personal guarantee that you will never get into trouble or be asked to pay these.” Several days later Means executed the notes for the accommodation of the bank, and took charge of the management of the meat market and continued there until sometime in November. Before the notes fell due Mr. Dice had severed his connection with the bank, and the president who succeeded him and one of the directors spoke-to Means about the notes. Means testified that he told them he did not owe the notes, that they were accommodation paper and the bank had agreed to protect him; but that the new officers stated in substance that they understood the notes had been given to the bank in the regular course of business. Sometime later, at the request of Dice, the plaintiff renewéd both notes. The question is, whether upon the facts the plaintiff was entitled to judgment. One contention of the defendants is that Dice acted as an individual in the transaction, without authority from the board of directors, and therefore the bank is not bound by his agreement with the plaintiff. A number of authorities are cited which hold that an agreement with the president or cashier of a bank that the indorser of a promissory note shall not be liable on his indorsement will not bind the bank for the reason that it is no part of the duties of the president or cashier to make such contracts. (Bank of the United States v. Dunn, 31 U. S. 51, 8 L. Ed. 316.) The correctness of this general rule may be conceded. On the other hand, plaintiff relies upon the well-settled doctrine that a principal can not repudiate the authority of an agent and at the same time ratify it by accepting and retaining the benefits therefrom. (Bank of Lakin v. National Bank, 57 Kan. 183, 185, 45 Pac. 587; McKinstry v. Citizens’ Bank, 57 Kan. 279, 46 Pac. 302; Aultman v. Knoll, 71 Kan. 109, 79 Pac. 1074; Watt v. Railway Co., 82 Kan. 458, 463, 108 Pac. 811.) In our opinion, however, the case can not be made to turn upon the question of the authority of Dice as president to bind the bank by the agreement that Means should not be liable on the notes. If it be true that the notes were given solely for accommodation of the bank and the bank received the benefits of the transaction, the plaintiff, independent of any promise made by Dice, has the right to maintain this suit to compel the bank to take care of the obligation unless he be estopped on the ground that the transaction with the bank is against public policy. And this brings us to the second contention of the defendants — that the entire transaction is void for the reason that the evidence conclusively shows that the transaction was entered into for the purpose of deceiving the bank commissioner and making it appear to the creditors and stockholders that the bank held these notes as valid notes. Authorities are cited holding that where an officer of a bank enters into a transaction with an individual with such a purpose, and executes legal instruments of an obligatory character for that purpose, the maker of the obligation can not thereafter be heard to say they are invalid. Thus, in State Bank of Moore v. Forsyth, 41 Mont. 249, 108 Pac. 914, it was held that under .such circumstances “it is sound reason, as well as pure justice, to leave him bound who has bound himself.” (p. 267.) The .soundness of the general rule contended for by the defendants can not be doubted. A more serious question is, How can this principle of law be said to apply to the facts of this case, with .a general finding by the trial court in plaintiff’s favor, aided by the inferences and presumptions to which it is entitled, and keeping in mind the well-established rule that if there be a theory fairly sustained by evidence and upon which plaintiff is entitled to recover we must affirm the judgment? The defendants offered testimony showing that the bank commissioner had directed the Kelchner loans reduced; but we find nothing in the plaintiff’s testimony showing that he had heard or known of this fact, and there is nothing in his testimony indicating that in executing the notes he had any thought or purpose of deceiving the bank commissioner or of misleading the stockholders and creditors of the bank. His testimony is, in substance, that Dice told him the bank did not care to have the public know it was operating a meat market. The bank had been operating this market for a considerable time before that, and presumably with the knowledge and consent of the bank commissioner. Banks are sometimes compelled to take over a mercantile enterprise in order to protect themselves from loss, and it is not necessarily fraudulent, or against public policy for a bank which is obliged to do so to conceal the fact from the public. We think the plaintiff’s evidénce tended to support his theory that Dice had no individual interest in the transaction and was acting solely for the bank. The bank had taken over and was operating the Kelchner market long before either Chain or the plaintiff had anything to do with the business; and the evidence shows that the bank had found it necessary, in order to protect itself from loss, to purchase a chattel mortgage held by a packing company which was a prior lien. It paid $6600 and took an assignment of the mortgage, which it foreclosed. The money used to purchase the mortgage was derived from the sale to the Kansas City bank of one of Chain’s notes for $5000, and in part from the proceeds of the other Chain note which the bank carried as an asset. Clearly, the Merchants State Bank received full consideration for the Chain notes. The note involved in this controversy is the one executed' by Means which the bank used to replace Chain’s note held by the Kansas City bank. It appears Chain loaned his credit to the Merchants State Bank, which it used to obtain $5000 from the bank in Kansas City; and when the note came due, the Merchants State Bank replaced it with the note obtained from the plaintiff. In fact it-surrendered to Chain both his notes, substituting therefor those executed by the plaintiff. To> sustain the judgment in plaintiff’s favor he is entitled to every reasonable inference which may be derived from the evidence-independent of the agreement with Dice to hold the plaintiff' harmless, the bank on this theory of the case is liable as the-accommodated party and should reimburse the accommodation-maker or assume liability for the outstanding obligation. It is difficult to see how it can be said that Means by.loaning his credit to the bank assisted it in any fraud upon its stockholders and creditors, and it is not suggested that the bank sustained any loss by the transaction. The bank received the consideration for the note, and, moreover, it seems to have been used for a legitimate purpose. Through the sale of the note the bank received the full benefit of the arrangement, and to permit it to repudiate the transaction would result in a serious wrong to the plaintiff. It has been held that a national bank can not set up its. want of legal capacity in order to escape a just responsibility. (National Bank v. Case, 99 U. S. 628.) It is suggested by the defendants that the transaction was in violation of the penal statute -(Gen. Stat. 1909, § 473) which forbids the making of false reports and entries by officers of banks. The defendants assume that in order to carry out the transaction it became necessary for some officer to make-false entries upon the books of the bank and false reports to the banking department. The evidence does not show that any false entries or- reports were made, or that if they were made it was with the knowledge or consent of the plaintiff. It was urged in the court below that the notes were executed by Means for the purpose of enabling the bank to conceal its ■true condition from the bank commissioner, but the judgment is a finding against the defendants on this contention. We think the cases relied upon by the defendants, where obligations were entered into for the purpose of deceiving stockholders and creditors of a bank or state officers charged with the control of banks, have no application to the facts in view of the general judgment in plaintiff’s favor. It follows that the judgment will be affirmed.	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The opinion of the court was delivered by Porter, J.: This is an appeal from a judgment in plaintiff’s favor under the workmen’s compensation act. The plaintiff was in the employ of the defendants at their mattress factory in Topeka. He was in charge of a felting machine the cylinders and rollers of which are covered with sharp teeth and prongs to tear cotton apart. In order to protect workmen from injury by these revolving surfaces there are safety covers or hoods which completely coyer the cylinders or rolls when in operation. It becomes necessary from time to time to clean the machine because the teeth of the cylinders become matted with cotton. In cleaning the machine the safety covers are removed. Some rolls are removed from the machine and scraped separately with a wire brush. Other cylinders and rolls are not removable and are scraped as they are turned by hand. Compressed air is used to blow out bits of cotton and dust remaining on the surfaces of the cylinders. There is a tube from a tank of compressed air with a hose and nozzle by which the air is applied. On the morning of the accident the plaintiff took off the five removable cylinders and cleaned them. He then cleaned with the wire brush the remaining cylinders or rolls in the machine, turning each by hand little by little as became necessary. He then put the machine in motion under the power of the factory, applied the air, took the hose and climbed upon the endless belt of wooden slats in the middle of the machine with the cylinders revolving under power beyond his control. In some way he lost his balance, and in trying to save himself struck his hand on the inturning surface of the main cylinder and received his injuries. There is practically but one contention raised by the defendants, and it is, that the act of the plaintiff in turning on the power and climbing upon the machine after the hoods or covers were removed constitutes a willful failure to use a guard or protection provided by his employer for his protection against accident — a willful failure within the terms of the compensation act which provides that an injury so resulting to the Workman shall be disallowed. It is claimed that upon the undisputed evidence the court must assume that plain tiff’s injury resulted from his deliberate intention to cause the injury. The workmen’s compensation act contains a provision that — — “If it is proved that the injury to the workman results from his deliberate intention to cause such injury, or from his willful failure to use a guard or protection against accident required pursuant to any statute and provided for him, or a reasonable and proper guard and protection voluntarily furnished him by said employer, or solely from his deliberate breach of statutory regulations affecting safety of life or limb, or from his intoxication, any compensation in respect to that injury shall be disallowed.” (Laws 1911, ch. 218, § 1.) The plaintiff testified that he had always cleaned the rolls and cylinders in the same way. We take this to mean, not that he always climbed upon the machine when applying the compressed air, but that he used the air while the machine was in motion. A witness for defendants testified that the' machine could not be cleaned without taking off the hoods and that the hoods afforded no protection when the machine was cleaned while running. The foreman of defendants’ factory testified that he had frequently seen the plaintiff have the machine running while he used the blower, that he never saw it cleaned any other way, and that he had seen defendants clean it in that manner. No witness testified, however, to seeing any other person do as plaintiff did on the occasion of the accident, that is, get in or upon the machine to use the blower with the machine in operation, and the testimony was that the plaintiff could have stood on the floor and used the air to clean the rolls while the machine was running. The evidence therefore establishes the fact that in attempting to use the blower with the machine running the plaintiff was following his usual method as well as that in common use by other employees and by defendants. It is conclusively shown that the guards or hoods for protecting employees from injury by the revolving cylinders were not provided for nor intended to afford any protection while the rolls were being cleaned. Therefore, plaintiff’s injury did not result from his failure, willful or otherwise, to use the guard or protection provided for him. Of course, it did not result from his “deliberate intention” to injure himself, and the particular provision of the statute relied upon by defendants can not possi bly apply. We may concede that, in getting into or upon the machine to apply the air while the machinery was operating rapidly and beyond his control, with the hoods or guards removed, plaintiff was guilty of negligence — probably negligence of a gross kind; but the statute does not make his negligence, gross or ordinary, a bar to his right to recover compensation. Nothing save his deliberate intention to cause the injury, his willful failure to use guards or protection provided for him, his deliberate breach of some statutory regulation, or his intoxication can deprive him of his statutory right to compensation for an injury. This is not an action to recover under the factory act, but for compensation under the workmen’s compensation act. Doubtless if plaintiff had used the blower while standing on the ground he would not have been injured; but his failure to do so was only negligence. We agree with defendants’ statement in their brief that the question of where the burden of proof rested was immaterial, because “either the admitted facts were sufficient to disallow compensation, or they were not.” It is unnecessary, therefore, to consider the alleged errors in the instructions. Upon the admitted facts plaintiff’s injury did not result from his failure to use a guard provided for his protection for the reason that he was injured while cleaning the machine at a time when the guards or covers had to be removed. Defendants’ counsel, who are also counsel for an employers’ interinsurers association, conclude their brief with one more effort to “thresh out old straw” by protesting against previous decisions where in construing the workmen’s compensation act this court has repeatedly held that the legislature meant exactly what it said in the following provision of the act: “The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments as in an award.” (Laws 1911, ch. 218, § 36. Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413; McCracken v. Bridge Co., 96 Kan. 353, 150 Pac. 832, modified, 96 Kan. 799, 153 Pac. 525.) Their contentions that judgments for lump sums are contrary to the spirit and purpose of the act, that this court can control the sound discretion exercised by the trial courts in refusing to render judgments for periodical payments, have not, as counsel suggest, met with our approval. In fact, we have dismissed appeals in compensation cases 'as being without merit where it was shown that counsel persisted in urging these same contentions as grounds for reversal. (McCracken v. Bridge Co., supra.) However desirable it may be to have the law read as compensation acts in some states read, that the judgment shall be for periodical payments, and may in the trial court’s discretion be rendered for a lump sum, the change can not be made by the courts. The legislature alone possesses the necessary power. The judgment is affirmed.	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The opinion of the court was delivered by Burch, J.: The action was one for damages for personal injuries sustained through the neglect of the defendant to inspect and make secure the traveling ways of its coal mine. A demurrer was sustained to the plaintiff’s evidence and he appeals. The proof was that the plaintiff, who was an air man, was injured in a hauling crosscut which had been closed some months before the accident. The crosscut was no longer used and could not be used as a traveling way. The only occasion any one had to use it after the manner of a traveling way was to step into it twice a month to inspect the stopping, and the place was perfectly safe for that purpose. As will shortly appear, when the plaintiff was injured the place was no more a traveling way or in use as a traveling way than a miner’s room would have been. Consequently the negligence charged was not established. The stopping was not air-tight, and the plaintiff was directed to make it so. To do this it was necessary to build a wall on one side of the defective stopping and fill the space between the wall and the defective stopping with fine dirt. Dirt for the purpose was taken from the bottom of the crosscut. In doing. this the plaintiff dug a hole about two feet deep, which loosened a rock which fell and injured him. The plaintiff and his principal witness, his brother, who was assisting him when the accident occurred, testified that digging in the bottom of the crosscut loosened the rock and caused it to fall. The plaintiff further testified that digging in the ground there was bound to be dangerous, that he was “leery” all the time, and' that the more he dug the more dangerous he made the place. The case, therefore, is one in which the plaintiff, with knowledge of the conditions, made the place unsafe by the very repair work he was doing. The duty of the employer to provide a reasonably safe place to work does not extend to such situations. The defendant had elected not to be governed by the workmen’s compensation act, and the plaintiff argues that the defenses of contributory negligence and assumption of risk were not available. The defendant does not seek to avail itself of those defenses. The defense is want of actionable negligence. Want of actionable negligence appeared from the plaintiff’s proof, and the demurrer to the evidence was properly sustained. The judgment of the district court is affirmed.'	[ -12, 122, -43, -115, 27, 96, 58, -40, 97, -123, 37, 115, -51, -61, -119, 35, -14, -67, 116, 43, 85, -77, 3, -94, -46, -109, 49, 69, -16, 74, -18, 86, 76, 48, 10, -43, -26, 72, 81, 88, -114, 44, -70, -50, 89, 0, 48, 122, 84, 75, 33, -98, 115, 42, 24, -57, 45, 44, 107, -67, 112, -7, -78, 5, 111, 16, -95, 6, -98, 39, -40, 10, -104, 48, 9, -24, 114, -90, -48, -12, 99, -69, 13, 66, 98, 33, 21, 103, -20, -72, 39, -66, 15, -90, -123, 24, -119, 62, -114, -67, 126, 53, 38, -18, -27, 77, 91, 45, 7, -121, -10, -79, -49, 36, -108, -29, -53, 3, 37, 101, -50, -86, 92, 7, 112, -97, -97, -102 ]
The opinion of the court was delivered by Johnston, C. J.: In an action to quiet the title to certain lots in Fostoria the controlling consideration was the meaning and effect of a will executed by John Wade. The provisions of the will material to this consideration are: “Item 1st. I give and devise to my beloved Wife the house and six lots, viz: No’s 13, 14, 15, 16 and No’s 1 and 2 on which we now reside situated in Fostoria, Pott. Co., Kansas, and all the household goods, furniture, provisions and all the improvements that may be made thereon at the time of my decease. “Item 2nd. I give and devise to my beloved Wife one hundred acres of land situated in the county of Morris and State of Kansas, to-wit — • The East ten sixteenth (Rfie) of the Northeast quarter (N. E. 1-4) of Section seven (7), Township seventeen (17), Range six (6) East of the Sixth Principal Meridian, containing one hundred acres (100) more or less. “Item 3rd. I give and devise to Melvina Wade, my beloved wife, all the above named property for her to have and to hold the use of the same to her for and during her natural life. “Item 4. I give and devise to my daughter, Mrs. Julia Drew, the one hundred acres of land mentioned in the above Will, with all the improvements that may be made for her to have and to hold the use of the same to her for and during her natural life and to become in possession of the same after the decease of my beloved Wife, and at the decease of my Daughter, Mrs. Julia Drew, the above mentioned one hundred acres of land with all the improvements made thereon, I give and devise to Mrs. Julia Drew’s children, to be equally divided among them, that is the children living at the time of the decease of their mother.” About three years after the execution of the .will John Wade died, leaving as his surviving heirs, his widow Melvina Wade, a daughter Julia Drew, four sons and five grandchildren. The widow duly consented in writing to the provisions of the will. In a will executed by Melvina Wade shortly before her death she undertook to devise the real estate in suit to M. P. Morse, a son of hers by a former marriage. He brought this action claiming title to the real estate and asking to have his title quieted as against the defendants, the heirs of John Wade, deceased. After the action was begun the plaintiff died and the action was revived in the name of Samantha Morse as administratrix. The plaintiff insists that under the first item of the will Mel vina Wade was given an absolute estate in fee simple in the lots devised, and that the subsequent provision in which only a life estate was given to Melvina Wade was repugnant to the prior devise and therefore invalid. It is a well-recognized rule that where a will in clear and express terms gives a fee simple title to land with the full power of disposition it can not be diminished by any general or doubtful expressions in the later clauses of the instrument. The primary consideration in the interpretation of a will is the intention of the testator, and if it can be ascertained, that intention must govern if it is not contrary to a settled rule of positive law or in violation of public policy. The intention is t'o be gathered from all parts of the will as well as the circumstances surrounding the testator at the time of its execution. When all the provisions of the instrument in question are read and considered together the intention of the testator was manifestly to give his wife a life interest in the real estate devised. It is so obvious that a resort to rules of interpretation is hardly warranted. Because the scrivener divided that portion of the will which expressed the gift of the testator to his wife into three sentences or paragraphs, it is contended that they are not so connected as to express a common purpose and that the later expressions are repugnant to the earlier ones. While the scrivener employed three sentences or paragraphs in stating the extent and nature of the gift to the wife of the testator, he might have included all in one with the same effect. He might have written that the testator gave the lots, improvements and personal property as well as the farm in Morris county to the wife of the testator to have and to hold the same “for and during her natural life.” The purpose of the testator would hardly have been more apparent in such a recital than in the form in which it was expressed. The intention of the testator was not obscured by the fact that the scrivener broke the statement of the gift to the wife into three parts. These parts were so related to each other and were so obviously united in the expression of a common purpose that they must be read and given the same meaning as if all had been embraced in a single sentence or clause of the will. In Williams v. McKinney, 34 Kan. 514, 9 Pac. 265, it was said: “We are not to determine the legal effect of the will from any detached portion thereof, nor from any single phrase which it may contain.. All parts of it should be considered and construed together, and if possible it should be construed in such a way as to arrive at the intention of the testator.” (p. 518.) In Ernst v. Foster, 58 Kan. 438, 49 Pac. 527, it was said: “It is a general rule that a will should be construed so as to give effect to every part thereof, providing an effect can be given to it which appears to be consistent with the general purpose of the testator as gathered from the entire instrument.” (p. 443.) In Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950, considerable stress was laid on the methods employed in punctuating and paragraphing the words of a will, and it led to the remark: “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. . . . Technical rules of construction ought never to be resorted to where their application defeats the manifest intention of the testator.” (p. 904.) It is true that a part of the testator’s property was not disposed of by the will, and that there is a presumption that a testator intends to dispose of his entire estate unless a contrary purpose clearly appears. (40 Cyc. 1409.) That presumption, however, is overcome in this instance by plain and unambiguous language which clearly evinces an intention that only a life estate in the property in question was intended to be given to the wife, and it follows that his purpose was to allow the estate not included in the devise to descend to his heirs in the manner provided by law. The judgment is affirmed.	[ -14, 110, -99, -100, 42, -32, 42, -112, 97, -78, 100, 83, 79, -38, 4, 105, 106, 13, -47, 121, -26, -77, 31, -71, 82, -13, -47, -35, -77, -36, -9, -41, 72, 32, 10, -107, -58, -62, 67, -44, -114, 67, -117, 101, -37, 2, 52, 47, 86, 10, -43, -117, -13, 43, 61, -48, 40, 44, -5, 37, 64, -80, -82, -122, -33, 23, 16, 32, -100, -89, 72, 14, -112, 49, 8, -20, 123, 54, 22, 116, 41, -117, 41, -90, 99, 67, -27, -18, 56, -102, 14, -37, -115, -89, 22, 88, -96, 64, -74, -99, 124, 20, -113, 118, -18, 5, 29, 108, 4, -117, -106, -93, 13, 61, -98, 3, -13, 37, 32, 96, -55, -94, 77, 67, 112, 19, -114, -37 ]
The opinion of the court was delivered by Burch, J.: A petition for rehearing has been filed which has been supplmented quite copiously. Some of the mattery urged may be given such attention as they deserve. Much stress is laid on the fact that the trial court made a finding that the district court of Wabaunsee county determined the issue of fraud no further than that the contract should not be set aside, the finding being that the issue “was not determined in any other respect. The fact that the trial court made the quoted finding was of no consequence whatever. The district court made the following findings, which were briefly but accurately summarized in the opinion: “11. The issues of fact raised by the pleadings in said action in Wabaunsee county, including the question of fraud charged in the petition, were tried and determined by said district court of Wabaunsee county, Kansas. Substantially the ■ same evidence was introduced in support of the charge of fraud in this action as was introduced in the action in Wabaunsee county. “22a. . . . This alleged misrepresentation as to the value of the property was expressly pleaded by the defendant in her petition in the suit in Wabaunsee county as a ground for the rescission of the contract and such allegation was denied by the plaintiff in his answer.” The district court also made this finding: “10. . . . Afterwards and on February 7th, 1911, the case was decided by the court in favor of the defendant in that action, plaintiff in this, and against plaintiff in that action. Copy of the journal entry of said judgment is attached to plaintiff’s reply herein and is hereby referred to and made a part hereof.” With the issues, the evidence and the judgment found, any statement of the trial court as to the extent of the former adjudication was pure supererogation. The judgment.spoke for itself. This court could interpret it just as well as the trial court, and the trial court could not by any finding it might make add to or limit the scope of the judgment. The issue before the Wabaunsee district court was whether or not the contract should be set aside for fraud. It would have been a most remarkable circumstance if the Wabaunsee district court had undertaken to determine, this issue in any other or further respect than that the contract should not be set aside, and if it had done so the result would have been without effect as res judicata because beyond the issue under investigation. Without the judgment before it and without the finding of the trial court before it this court would have been obliged to assume that the Wabaunsee district court determined the issue before it no further than that the contract should not be set aside. Consequently the fact that the trial court made a finding of that which was perfectly obvious and could not be otherwise was not deemed of sufficient importance to be given space in the statement of facts contained in the opinion. The fact that the judgment of the Wabaunsee district court was limited to the issue before it, determined that issue to the extent that the contract should not be canceled, and determined nothing more, was of consequence. That fact furnished the foundation for the defendant’s contention that the conduct investigated in the former cancellation suit was open to investigation again in this specific-performance suit. The case was argued orally. The point indicated was made on one side and answered on the other. The written briefs did the same thing. From these sources the court was able to comprehend the question presented for decision, which was not abstruse, and the court stated it in the opinion with sufficient definiteness for all purposes of the decision, as follows: “The defendant argues that the former adjudication extended no further than that sufficient cause for cancellation ivas not established, that sometimes specific performance will not be decreed although cancellation would not be ordered on the same evidence, and consequently that the charge of fraud based on the same facts as before was open to investigation in this suit. The premises may be conceded, but the conclusion does not follow.” (Greenwood v. Greenwood, 96 Kan. 591, 593, 152 Pac. 657.) Then followed more than a page of matter in which the court tendered some reasons for not agreeing with the defendant’s contention. The conclusion was stated in the first paragraph of the syllabus. The treatment of this subject in the opinion begins with the major premise, conceded to be true, that the former adjudication extended no further than that sufficient cause for cancellation was not established. All that followed related to the effect of that kind of an adjudication upon the rights of the parties in this suit. That is what the court had in mind; it had nothing different in mind, and statements by one of defendant’s'counsel that the opinion mistates the record, that the opinion is based upon facts not shown by the record and facts contrary to those shown by the record, that the appellant has had no consideration of the real question decided by the trial court, and that she has been prevented from having the consideration of the court upon the merits of her appeal, not only have no foundation in fact but are contradicted by the plain language of the opinion itself. The case of Shoop v. Burnside, 78 Kan. 871, 98 Pac. 202, is referred to again and again.- That cáse was not overlooked. Quotations from both the syllabus and the opinion appear in the opinion in this case. This court understands the doctrine of Shoop v. Burnside, having decided the case and promulgated the opinion. The court declined and still declines to extend the doctrine of that case to permit the charge of fraudulent representations, decided to be insufficient to warrant setting aside a contract, to be re-pleaded and re-litigated in an action between the same parties for specific performance of the same contract. To the mind of the court the decision in Shoop v. Burnside and the decision in this case may stand side by side without impinging upon one another. If there be any conflict, the private interest which alone is involved in specific performance must yield to the public policy which lies at the foundation of res judicata. The application of the doctrine of res judicata is sought to be avoided by a discussion of the difference between facts and issues. The petition in the cancellation suit made certain allegations of fact. The denial of those allegations of fact made an issue of fact and raised the question of the existence of fraud. That issue, including the question of fraud (Finding No. 11, quoted above), was determined against the plaintiff in that suit. What the doctrine of res judicata prevents is the investigation of the same issue of fact made in the same way and raising the same question of fraud in another suit between the same parties rélating to the same subject matter, the form of the second action being immaterial. A suit was commenced to rescind a contract on the ground of fraud. Relief was denied. In a subsequent suit for damages resulting from the same fraud the former adjudication was pleaded in bar. The court said: “Where a pleading states the facts as were set out in a former pleading in an action between the same real parties in interest, their representatives or privies, suing or being sued in the same quality or character — which facts were either admitted or traversed in the former action — and it appears that there was a final adjudication of the matters so in issue by a court of competent jurisdiction, then the question of the truth or falsity of the matters so in issue, as between the same parties, their representatives or privies, is considered as forever settled by the adjudication upon them. And by the term, ‘matters in issue,’ we think must be included not only the object of the suit or the particular right or defense sought to be recovered or established, but all the facts material to the issue from which such object or remedy, cause of action or defense, was deduced.” (Gutheil v. Goodrich, 160 Ind. 92, 95, 66 N. E. 446.) In the Wabaunsee county case one general fact was involved, the existence of fraud at the inception of the contract. (See Barber v. Kendall, 158 N. Y. 401, 404, 53 N. E. 1, action to rescind after judgment for specific performance.) Whether the vendee said this or that, what of his statements, if any, were untrue or how far they were untrue, and to what extent the then plaintiff relied on them or Was entitled to rely on them, were all matters going to the single fact, Was the contract the product of a motive improperly created in the present defendant’s mind by fraud? Sometimes the making of statements, their falsity, reliance upon them, etc., are called elements or ingredients of fraud. Under a rule of pleading they must be set out, but when set out, collectively they state fraud, which is a fact, (Pomeroy, Specific Performance of Contracts, 2d ed., § 194), and whenever the cause of action is one for relief on the ground of fraud, and relief is denied by a judgment on the merits, the subject of fraud in the matter complained of is set at rest. “So far as that cause is concerned, nothing remains upon which to base any litigation. So, also, a final judgment on the merits determining any issue of law or fact, after a contest over it, forever sets it at rest, and fixes it as a fact or as the law in any other litigation between the parties or their respective privies.” (1 Van Fleet’s Former Adjudication, § 1.) The rule goes to the extent that the effect, and the entire effect, of the facts constituting fraud is adjudicated by a former judgment denying relief, and such facts can not be considered in a subsequent suit as a part of a different combination of facts. (Clark v. Krause, 17 D. C. 108.) Leaving at one side the subject of res judicata, it would not be difficult to demonstrate that the findings of fact authorized a judgment for specific performance, but the court declines, as it did in the former opinion, to consume space with the analysis of the findings and the application of the rules of law which would be necessary. Whether or not the district court in its conclusions of law gave weight to the former adjudication, the facts having been found, this court is able to apply the proper rules of law to them. With the subject of fraud eliminated little was left of the defense. It is said that the third subdivision of the syllabus is that “inadequacy of consideration is not a defense to specific performance,” that every lawyer knows mere inadequacy of consideration alone is not sufficient as a defense, and that the defendant has made no claim that it was. The syllabus does not make the statement attributed to it, and neither the syllabus nor the opinion attribute to counsel reliance upon mere inadequacy of consideration alone as a defense. One grievance of the defendant is that she did not get enough for her land. Since that was a material subj ect of the lawsuit, and since insufficiency of consideration may go to the extent of producing inequity, it was deemed proper to say something about it. The discussion inevitably led up to the question, What is adequate consideration? and a definition was adopted and stated in the syllabus. That this discussion was pertinent is shown by the documents filed in connection with the application for a rehearing. In one of them the subject of “inequity of the contract itself” is discussed, the sole point of the discussion being the profit to the plaintiff and the loss to the defendant resulting from the contract, ascertained by deducting the price paid from the value of the land. The figures presented show a value of from $7600 to $7980 while the price paid was from $760 to $1140 less. The court can not accept counsel’s judgment, if such be his judgment, that this disparity, under the circumstances, fraud being eliminated, ought to prevent specific performance. The court is inclined to be guided by the authorities, which are abundant. Two of them, one English and the other American, will indicate the trend. In Abbott v. Sworder, 4 De Gex & Smale, 448, a contract to purchase land worth only 3500 pounds at a price of 5000 pounds was specifically enforced against the purchaser. In Nickerson v. Bridges, 216 Mass. 416, 103 N. E. 939, decided in January, 1914, a contract to pay $16,000 for property which the evidence indicated was worth several thousand dollars more than that sum was specifically enforced against the seller. Part of the opinion reads much as if the court were discussing the findings of fact in this case. “Where the party to be charged has been overreached, or great hardship may be entailed, the court will exercise its discretion to prevent oppression and injustice, and this form of relief [specific perform- • anee] will be refused, although the bill, if the plaintiff desires, may be retained for the assessment of damages, rather than to remit him to his remedy at law. Seton v. Slade, 2 White & Tudor’s Lead. Cas. in Eq. (4th Am. ed.) 513, 526. American Stay Co. v. Delaney, 211 Mass. 229. The evidence as to the market value of the land was conflicting. Undoubtedly the plaintiff sought to obtain it as cheaply as possible, and he and his brokers were better acquainted with its value than the vendors. But the judge has found that one of the defendants, who acted for herself and her sister the co-defendant, while advanced in years, was a business woman of experience, familiar with the location and the valuation made by the assessors of taxes. The bargain, moreover, was not entered into precipitately under pressure of the plaintiff’s presence and urgency, nor were the defendants ignorant of their legal rights. During a period Of five days, as he further finds, they could have made inquiries and obtained information and advice, as to whether the price offered ought to be accepted. It can not be said under these conditions, that the difference was so grossly inadequate as to lead to the inference of constructive fraud by the plaintiff, or of mistake in the making of the contract.” (p. 421.) The subject of what benefit the children received from the original divorce decree is reargued at length, the contention being that the decree created a trust. The opinion said, as the court had said before, that the language of the decree was very-indefinite. The opinion stated the general rule with reference to definiteness in the declaration of a trust, given by a writer who has enriched American jurisprudence by a number of text books as brilliant as they are profound. The statement was taken from section 1009 of 3 Pomeroy’s Equity Jurisprudence, 3d ed., where it was said: “The declaration of trust, whether written or oral, must be reasonably certain in its material terms; and this requisite of certainty includes the subject-matter or property embraced within the trust, the beneficiaries or persons in whose behalf it is created, the nature and quantity of interests which they are to have, and the manner in which the trust is to be performed. If the language is so vague, general, or equivocal that any of these necessary elements of the trust is left in real uncertainty, then the trust must fail.” The opinion then cited a case decided by a supreme court of high repute in which the general rule was applied to a divorce decree which, it was argued, undertook to create a trust in land for the benefit of children, but which failed to do so because of indefiniteness. The syllabus of that case reads as follows: “When, upon a decree of divorce in favor of the wife, for extreme cruelty and habitual drunkenness of the husband, the homestead property is awarded to the wife, and the decree declares that the property so awarded to her is to ‘be held in trust for her support, and for that of the children of the parties,’ no definite or certain trust is created, but an absolute and unlimited estate in the homestead property is transfered to the wife.” (Simpson v. Simpson, 80 Cal. 237, 22 Pac. 167.) In the opinion it was said: “As to the inference of a trust from the use of the words ‘for her support and for that of the children,’ and like words and phrases, Mr. Pomeroy says (section 1012) : ‘No definite rule can be laid down; each ease must stand upon its own circumstances. If the language is sufficient for the intention to be clearly inferred, the trust will be enforced; otherwise the donee will take an absolute estate, and the provisions concerning maintenance will be regarded as mere motives for the gift and recommendations addressed to his discretion.’ “The words in the divorce decree from which it is claimed that a trust may be inferred immediately follow the paragraph giving the wife the custody of seven minor children, and thereby casting upon her the duty of supporting and educating them, regardless of any aid which the court might allow her from the property of her husband. Under these circumstances it seems not to have been inappropriate for the court to express, as a reason or motive for giving her the homestead, that it was intended for the support of herself and children, for which, by the decree, she had been made solely responsible.” (p. 241.) There has been some undiscriminating thinking and careless writing about the subject of trusts by some of the courts of this country. Cases may be found in which the simple use of the words “in trust for” a person or persons described have been held to create a trust for what seemed to the court to be a good thing for the person designated. In such cases the general principles are often stated correctly, but it is not perceived that in applying the principles the court creates out of whole cloth the uses and purposes which are attributed to the trust instrument. The decided cases being as multitudinous as they are multifarious, no review of them will be attempted. In the case of Tenney v. Simpson, 37 Kan. 579, 15 Pac. 512, it was said that no particular form of expression is required to create an express trust but that the declaration of trust will be valid if the writing or writings “clearly point out the nature and objects of the trust.” (p. 588.) The divorce decree did not specify any estate or title or interest whatever in the land in controversy which the children were to possess or enjoy, did not specify any use to be made of it for their benefit, and did not specify any act or duty with reference to it which the trustee was to perform for their benefit. Essential elements of a trust were lacking, and the award of the land to the mother for her alimony and as her separate estate vested in her the entire title and estate; if Pomeroy and the supreme court of California are competent witnesses to the law, and if the rule indicated in Tenney v. Simpson, supra, is a trustworthy guide. Counsel for the defendant undertakes to enlighten the court by means of a parallel. The declaration of trust in the divorce decree, and the declaration of trust in the divorce decree involved in the case of Arnold v. Arnold, 83 Kan. 539, 112 Pac. 163, are placed side by side. The question is asked, Which is the more definite and certain? and the challenge is made to point out what element is omitted in one which makes the trust void, which is found in the other and makes it valid. Here are the two decrees. “ ‘And it is further ordered and decreed that the said plaintiff shall have, and there is hereby set apart to her as her separate estate, as and for her alimony in said action the following-described real estate [describing it], to be held by the said Annie Greenwood, in trust for Grace and Helen Greenwood until the said Helen Greenwood shall attain her majority, and at the expiration of said time or upon the death of both of said children before said time the title to said property shall vest in the said Annie Greenwood absolutely and in fee.’ ” (Greenwood v. Greenwood, 96 Kan. 591, 592, 152 Pac. 657.) “ ‘That the plaintiff be and is hereby divorced from the said defendant and that she do have the complete, absolute and full control of said minor children during their minority, and that the legal title to said above-described homestead real estate be vested in the plaintiff in trust for and to the use and benefit of said children and any that may be hereafter born unto the plaintiff and defendant, or the survivors of them, until the youngest of said children of the survivor shall come to the age of maturity, to be held and used as the home of the plaintiff and the said children until said children or the youngest survivor of them shall come to. his majority; and it is further ordered that said plaintiff do have all of the aforesaid personal property, including all growing crops on said farm, and that plaintiff do have the control of the contract of purchase of said land, and is authorized to perfect and complete the said purchase.’ ” (Arnold v. Arnold, 83 Kan. 539, 540, 112 Pac. 163.) The difference between the two decrees is that in the Arnold case the use is clearly stated in express words in the part of the declaration of trust in which such limitation should appear, —“to be held and used as the home of the plaintiff and the said children.” This indispensable declaration is pointed out in the opinion in the Arnold case as follows: “The language of the decree is clear and leaves no room for construction; it vests the legal title in her as trustee for the use and benefit of the children until the youngest shall come to the age of maturity, to be used as a home for her and her children until that time. The trust, the use and the limitation are clearly stated.” (p. 543.) The words of the decree in this case,'“in trust for Grace and Helen Greenwood” do nothing whatever but designate the beneficiaries, and there is just as much reason for reading into the decree the limitation expressed in the Arnold decree as any other. The district court found that the defendant leased the land in her own name and kept no account with her children as to the amount of money she received as rental, or how it was disbursed, but treated the income from the land as her own funds. She was well within her rights because the decree gave the children no property in a penny of the income from the land any more than it gave them title to the land itself, and charged the defendant with no duty to account to them for her management of the farm or her use of the proceeds derived from it. Because the decree is utterly barren of any description of the nature and purpose of the trust, it fails to meet the requirement of a declaration of trust. It is asked why, if the court in the original opinion and in the opinion in Greenwood v. Greenwood, 85 Kan. 303, 116 Pac. 828, was able to define the nature and quantity of the children’s interest and the manner in which the trust was to be performed, the trust is now held void for uncertainty. The court has not at any time been able to define the nature of any trust created by the divorce decree or the manner in which any trust created by that decree might be performed. In the case just cited the opinion summarized the terms of the decree and then said: “We assume that the effect of the original decree was to charge the income from the land with the support and maintenance of the children, if necessary for that purpose.” (p. 307.) The word “trust” does not occur in that opinion except in stating the terms of the decree. In the original opinion in the present case the court said: “The divorce decree charged the defendant with the duty of maintaining and educating the children. In order that the defendant might have means with which to discharge that duty the court gave her the land in controversy. It was supposed the land would be a source of income, and the purpose was that such income should be devoted so far as might be necessary to the support of the children during their minority. That was the full extent of their interest.” (Greenwood v. Greenwood, 96 Kan. 591, 597, 152 Pac. 657.) There is not a word here about any trust, and in the paragraph just preceding the one quoted the court had pointed out that essential elements of a trust were wanting. If the defendant had complied with her contract and had surrendered possession of the land, the children would have had no standing in court as beneficiaries of a trust to call the defendant to account as their trustee. It is said that the present decision conflicts with the decision rendered in. the case of Greenwood v. Greenwood, 85 Kan. 803, 116 Pac. 828. The court not only upholds that decision as stare decisis, but fully approves it. The decision was that the ■ divorce court had no power to cancel or set aside the contract between the plaintiff and the defendant “so far as such contract in no respect interfered-with the rights of the children” (Syl.), but that the interest of the children might be protected. The divorce court had original and continuing power to make any reasonable order for the support of the children. Having made an order upon that subject, the parties to the decree could not take away that support, and any attempt to do so or to substitute some other kind of support would have no effect on the rights of the children. But the divorce court, neither at the time of the original decree nor at the time when the attempt to cancel the contract was made, had any power to lay its hand on a contract between the plaintiff and the defendant further than might be necessary to protect the children. With the validity and the binding quality of the contract as between the plaintiff and. the defendant the court had nothing whatever to do. It was concerned solely with the results of the contract on the rights and interests of the children, and had no concern whatever with the results of the contract on the rights and interests of the contracting parties as between themselves. The divorce court conceived that the interests of the children extended so far as to require cancellation of the contract, and as a consequence the cancellation of the defendant’s obligation to the plaintiff. This court reversed the judgment because it was not necessary, in order to protect the children, that the obligation of the plaintiff to the defendant should be destroyed. The contract embraced two subjects now of importance, conveyance of title and delivery of possession. Title was not to be conveyed until ali relation of the children to the land was at an end and consequently they had no interest in that feature of the contract. Surrender of possession might cut off a source of income which might be material to their maintenance. They were interested in that subject, but they were interested no further than that possession should not be surrendered. Protection of their interest required no more than that the defendant keep the possession she had contracted to deliver. It did not require cancellation of' the contract as between the plaintiff and the defendant or any impairment of the obligation of the defendant to the plaintiff which the contract created. In the original opinion it was said that certain facts, which were summarized, were stage properties employed to give scenic effect to the defendant’s presentation of her case and had nothing whatever to do with the merits of the book. One of the defendant's counsel feels aggrieved at the remark as a personal reflection upon him. Instead of meaning to reflect upon the counsel the court undertook to give the best turn it could to a serious matter with reference to which he stood on narrow ground. On the face of the brief his denunciation of the plaintiff and his denunciation of the decision of the trial court went dangerously near the limit of propriety. Printed briefs which become records of this court are not proper vehicles for invective against persons. The attorney for the plaintiff remonstrated against the intemperance of counsel’s language. In a reply brief, counsel disclaimed any personal reflection upon the trial judge for making a decree resulting in “monstrous iniquity.” The disclaimer is accepted, but it would have been better had it been extended to include an explanation of what was meant by characterizing the result of the decision as “abhorrent to the dullest sense of justice,” and what was meant by twice drawing the distinction between the decision rendered and the decision expected of the “just judge.” The reply brief renewed the virulent personal attack on the plaintiff and stated that counsel had no apology to offer for it. The document passed beyond the bounds of legitimate argument to aspersion and revilement. Conceding something to zeal and to genuine emotion, the court passed the matter by as calcium light employed to bring into strong relief the merits of the controversy as counsel saw them. Counsel’s statement that he believed the facts referred to in the original opinion to be relevant and material will be accepted, but the court disagrees With him and again states its opinion to be that they had nothing whatever to do with the merits of the case. The foregoing covers the principal features of the application for a rehearing and for a reversal, and it is not deemed necessary to extend this opinion further. The application for a rehearing is denied. The judgment of the district court is again affirmed, and the district court is directed to enter and carry into effect the mandate which has been forwarded to it.	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The opinion of the court was delivered by Mason, J.: Rena Buck Young on June 6, 1914, obtained a judgment, upon a charge of slander, against L. D. Buck. On the 24th of the same month she brought an action to subject to the payment of the judgment lands which on November 11, 1911, the defendant had conveyed to his wife and to his foster son, the plaintiff alleging such conveyances to have been fraudulently made for the purpose of preventing the enforcement of her demand. Demurrers to the petition filed by the grantees were sustained, on the ground that the action was begun too late. The plaintiff appeals. (1) An action in the nature of a creditor’s bill can not be brought until the claim on which it is based is reduced to judgment. The plaintiff, however, is required to sue upon the original demand within a reasonable time, which could ordinarily not exceed the period of limitation — two years — from the discovery of the fraud. (Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; 25 Cyc. 1198, 1199.) And of course to preserve his rights he is required to follow up his suit with reasonable diligence. Here the slander case was started November 9, 1911, and within three weeks after judgment was obtained the present action was begun. The defense of limitation or laches must therefore be based on the theory that sufficient diligence was not shown in prosecuting the original action. The interval between its beginning and end was substantially two years and seven months. No facts are pleaded showing why it was not brought to an earlier termination. We do not regard that interval as long enough to create a presumption that the plaintiff voluntarily suffered such a delay as to convict her of a want of reasonable diligence in the prosecution of the ease. In Underwood v. Fosha, 96 Kan. 549, 152 Pac. 638, it was. held that the creditor was not chargeable with such laches as to bar a recovery, although ten years elapsed between the bringing of his action and the procuring of judgment. It is true that there the general history of the litigation was shown, while here nothing is pleaded to explain the delay. But as the action to set aside the deed was brought in less than eight months after the expiration of two years from the execution of the deeds, the pendency of the slander case must be deemed a sufficient explanation as against a demurrer. (2) The considerations just stated dispose of the controversy so far as it is formally before us. On both sides, however, it seems to be assumed that the ruling of the trial court was based upon its judicial knowledge of the record in the slander action. As there is a substantial agreement concerning the material facts in this regard, their bearing upon the issue of diligence may be determined at this time. The defendants’ brief presents a chronology of the proceedings, from which it appears that a motion to make the petition more definite was filed by the defendant, and also a demurrer, both being overruled. An answer was filed February 27, 1912.. Matter was stricken from the answer on motion of the plaintiff on April 23, 1912. The plaintiff was given until May 30 to reply, carrying the case to the October term, when a trial resulted in a disagreement of the jury. The plaintiff then took leave to amend her petition by changing the date on which the slanderous words were alleged to have been spoken from September 16, 1911, to September 15, 1911. This amendment carried the case to the January term, 1913. It was continued by agreement until the May term, when, following an order with reference to the making of the amendment to the petition, the defendant was given twenty days to plead to the amended petition, carrying the case over the term. Illness of the defendant prevented a trial at the September, 1913, term. In February, 1914, a trial was had, resulting in a verdict for the plaintiff. This was set aside on the ground of misconduct on the part of the plaintiff’s attorney, a new trial being had in May. Treating these recitals as though incorporated in the petition, that pleading must still be regarded as stating a cause of action. The facts that one continuance was had by the consent of the plaintiff, and that others resulted from mistake or even misconduct on the part of her attorney, do not show such a want of reasonable diligence in prosecuting the action as to make the delay thereby occasioned fatal to a recovery. The judgment is reversed and the cause remanded with directions to overrule the demurrer.	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The opinion of the court was delivered by Mason, J.: Affidavits were presented to the board of bar examiners charging Otto J. Briley, of Chanute, a member of the bar, with unprofessional conduct. Most of the affidavits had been made during an investigation by a committee of lawyers of Neosho county, in March, 1913. The board on August 5, 1914, filed in this court an accusation upon which his disbarment was asked. Notice was served on Briley as required by law. An answer was filed September 15, 1914, and a reply ten days later. On June 16, 1915, the affidavits which had been before the board were filed here, and a copy of them was served upon the accused, with the intent that they should become admissible as evidence unless he should give notice of objection within five days, in accordance with the statute (Civ. Code, § 350). He gave no such notice. The case was set for trial in October, 1915, and as no further appearance was made by or for the accused it was submitted on the evidence of the prosecution and a judgment of disbarment was rendered against him. Within twenty days he filed a verified petition for rehearing, giving his version of the transactions on which the prosecution was based, and alleging “that he had never been advised of there being any rule of law or court that an exception must be taken to an affidavit in five days or that it should be considered as a deposition in the case, and if such a rule of law exists, that it is not to be applicable in this case, for the affidavits were taken in another proceeding, before another tribunal, and nearly two years before this action was instituted.” A rehearing was granted, and time was given for the taking of any evidence desired, additional to that already on file. The case has again been submitted on the same evidence, together with a few additional affidavits, including those of the accused, and some documents. The court is asked to disregard the affidavits presented by the prosecution on the grounds indicated in the part of the petition for a rehearing above quoted. Whether the objection would have been sustained if seasonably made need not be determined. In view of what has already been stated, the accused is not now in a position to urge it. The affidavits will not be excluded, but all the circumstances attending their making will be considered in determining their weight. The accusation contains four charges. The first one is that he brought two actions without the authority of the plaintiffs, and in violation of their express direction not to do so. The following facts in regard to the matter are not disputed. In November, 1908, Briley brought thirty-two attachment actions before F. M. Groome, a justice of the peace, against the proprietor of a traveling show, for the wages of employees. The showman replevined the attached property and began a suit against Groome and another justice of the peace, before whom some other similar cases had been brought, and two constables, to enjoin any further attachments, a restraining order being allowed. Briley filed a demurrer in the injunction, suit for Groome, and for B. F. Nye, one of the constables. On June 28, 1909, the suit was dismissed by the plaintiff. On October 29, 1909, Briley, as attorney for Groome and Nye, began an action for each of them upon the injunction bond. In July, 1910, each filed an affidavit stating that he had not authorized such a suit. A hearing was had on the matter, at which they testified orally, and the court dismissed the cases at the cost of Briley. It is quite clear that on the day the injunction action was dismissed (June 28, 1909) Groome and Nye each signed a cost bond for the other as a basis for an action on the injunction bond. It appears that at one time they denied signing the cost bonds, but this denial was doubtless due to the long interval between their execution and the bringing of the actions. It was natural that they should at first fail to connect the papers they had signed in June with the actions that were brought in their names in October. An affidavit' of Groome is to the effect that.he and Nye told Briley they did n’t want to be made subject to any costs in the matter, and that as an offset to any costs that were likely to follow they “gave him a bond for claiming fees” in case they were taken to Erie; that the same evening they received word that the injunction case had been dismissed and the costs paid; that the next morning they went to Briley’s office and instructed him not to file the cases, as the injunction suit had been dismissed, and they thought that should satisfy everybody; that Briley said he thought so too — thought they were right; that Groome and Nye only learned of the filing of the actions in their names about a year later, by reading of it in the papers. An affidavit of Nye confirms Groome’s version of the conversation with regard to dropping the proposed actions on the bond, and as to the actions being begun without their knowledge. Briley denies the conversation referred to, and asserts -that Groome and Nye authorized him to bring the actions for them. In one of his affidavits he says that the attorney for the showman “bluffed the said Groome and Nye into making a statement that they had not authorized suit.” He also verifies by his oath an assertion that the district court assessed to him the costs in the Groome and Nye cases “without authority of law” and “arbitrarily.” These declarations of course amount only to an expression of opinion. There is a direct issue of fact between Groome and Nye on the one hand and Briley on the other. The district court, having heard the oral testimony, evidently accepted their version of the affair or it would not have taxed the costs to Briley. This evidence is quite persuasive that Briley was not in fact authorized to bring the actions, but does not to the same extent exclude the possibility that he may have been under, a misapprehension in the matter, and- may have supposed his bourse was satisfactory to Groome and Nye. The second charge is that the accused, having begun an action upon several notes in the name of one claiming to have purchased them from the payee, and having attached to the bill of particulars the original notes, which were not indorsed,, afterwards withdrew them, supplying copies in their place, and. at the trial undertook to introduce them in evidence, the indorsement of the payee having in the meantime been placed.' upon them; but upon the attention of the court being called to> the change, dismissed the case. Briley’s version of the affair-is that the letter transmitting to him the notes for collection-, stated that they had been indorsed, and that he attached them to the petition supposing that to be the case; that upon discovering the omission he withdrew them, with' the consent of the justice of the peace, substituting copies, and returned them to the sender to have the indorsement made, receiving them back.after they had been indorsed by the payee. So far his statement is supported by the record and documentary evidence. He further testifies, in substance, that after receiving the notes the second time he told the maker he would dismiss the case if shown that the goods for which the notes were given had been returned; that the defendant showed him bills of lading indicating such return, and he thereupon dismissed the case. The attorney who represented the maker of the notes states in an affidavit that when the case was called for trial Briley introduced the notes in evidence, and only dismissed the case after objection had been made on the ground that the indorsements had been written since the commencement of the action. Letters written to Briley by the lawyer from whom he received the notes laid stress upon the fact that his desire was to cut off the defense based on the return of the goods by invoking the protection given by the law to innocent indorsees. Briley’s own statement indicates that he had become convinced that the defense referred to could be established if it were open. The fact that after acquiring this information he offered the indorsed notes in evidence seems to three members of the court strongly to support the view that it was his purpose to obtain judgment upon the notes, if possible, upon the theory that they had been indorsed to the plaintiff before maturity, while he knew the fact to be otherwise, and that he dismissed the case only when he found that the time of the indorsement was known to his opponent. The statute makes the willful violation of his oath a ground for disbarring or suspending an attorney. (Laws 1913, ch. 64, ¶ 2.) Attorneys of ■ this court are required to swear that they will not knowingly foster or promote, or give their assent to, any fraudulent, groundless or unjust suit. (Rule 23.) The action upon the notes in question, so far as it was based upon the plaintiff’s •claim to be a holder in due course, was a fraudulent, groundless and unjust suit. The third charge is that the accused refused to pay over on demand money collected for a client. The undisputed facts in the matter are these: Briley was employed by Ed McClane to prosecute a personal-injury action under an agreement that he was to receive a fee equal to half the amount recovered, McClane to pay all costs and expenses. With the consent of Briley, McClane later employed another attorney to assist in the case. A settlement was had for $300, which was collected by the other attorney, who paid the costs, amounting to about $30, and retained his own fee, remitting the balance, $201.01, to Briley. Briley paid McClane $75 and kept the remainder. In the accusation it is assumed that the compensation of the other attorney was to come out of Briley’s fee of fifty per cent, but no showing is made on either side as to what the agreement was in that regard. Briley testifies that he had incurred expenses in the matter for which under the contract he was entitled to reimbursement in excess of what he deducted <on that account, the amount of the expense or the deduction -.not being stated, and that McClane was satisfied with the ¡¡settlement. McClane’s testimony was not produced. This «charge therefore is not established. The fourth charge is that the accused told an attorney who held for collection a note given by him for law books, title to which was reserved as security therefor, that he would deliver the books or pay the money at once; that later he told him the books were in his office, but that he had decided not to deliver them, and would pay for them when he could; that the attorney at once brought replevin, but the accused then said that the books had been in Oklahoma for two months. Briley states that the publishers have his title-note, on which $89 remains unpaid, for the books referred to, and that he shipped them to Oklahoma; but he denies that he did so to evade the replevin process, denies the statements attributed to him regarding the delivery of the books, and says that he offered to pay $92 in full of the claim against them, and the offer was refused. Some controversy exists as to the amount owing on the books, but this is not vital. The important question is whether Briley delayed the replevin action by promises in order to get the property beyond the reach of process. This turns largely upon the issue of veracity or memory between Briley and the attorney representing the book company, there being, however, some room for mutual misunderstanding. Two members of the court do not participate in the hearing, one of them having signed the accusation as attorney-general and the other having been consulted regarding the matter while still in the practice. Of the remaining five members three think a case has been made out against the accused requiring discipline in some form, and the other two are of the contrary opinion. As the concurrence of four justices is necessary to a decision in a case heard by the whole court — by the court when not sitting in divisions — no determination on the merits can be had, and the proceeding must be dismissed. Marshall, J., and Dawson, J., not sitting.	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The opinion of the court was delivered by Dawson, J.: This action invokes the original jurisdiction of this court for a writ of mandamus to compel the county treasurer of Leavenworth county to pay certain county warrants held by the plaintiffs-, which are the principal banking houses of the city of Leavenworth. The petition alleges that in March, 1915, Leavenworth county was without funds to pay its current obligations, matured and maturing, during the year 1915, except by issuing county warrants, and that the board of county commissioners requested a conference with the bankers of Leavenworth, and that such conference was held and it was orally agreed thereat that the plaintiff banks would cash all warrants lawfully issued, not to exceed the amount that could be levied and raised by taxation for current expenses during the year 1915, which was approximately $52,000, and it was further orally agreed that the county warrants would be taken by the banks at par, and would be paid out of the first money available, “collected for taxes under the levy made by the board of county commissioners in August, 1915, for the current general taxes of that year.” The plaintiffs cashed warrants amounting to $24,793.95, which were issued between April 1, 1915, and November 1, 1915. The warrants were presented to the county treasurer, and registered, numbered, and stamped “Not paid for want of funds.” On November 1, 1915, the warrants were presented for payment, there being then ample funds in the county treasury raised by the levy made in August, 1915; but payment was refused by the treasurer on the ground that the funds raised'by the levy of 1915 could not be devoted to the payment of these warrants. The board of county commissioners make no defense to this lawsuit. In his return to the alternative writ of mandamus, the county treasurer alleges that there is no record of the alleged agreement between the plaintiffs and the county commissioners ; that the fiscal year of Leavenworth county begins on the second Tuesday of- October; that he has been in the public service in the county treasurer’s office almost continuously for over twenty years, and that during all that time the financial affairs of the county had been conducted on that basis; that when he became county treasurer, in October, 1915, he found that between April 1, 1915, and October 1, 1915, warrants amounting to $39,601.93 had been issued and stamped “Not paid for want of funds”; that he immediately examined the records and found that the general fund for the year 1914 had commenced on the second Tuesday in October, 1914; and that (by order of the board of county commissioners) the general fund for the year 1914, was changed to begin January 1, 1915, but that the other funds continued as theretofore, the only changes being those affecting the general funds of 1914 and 1915. Answering further, the county treasurer recites that he discovered that the sum of $14,987.05 remained in the general fund for 1914, and thereupon he paid out that amount to the plaintiffs on the warrants held by them; that the total amount of warrants between October, 1914, and October, 1915, was $76,580.48, and that the levy for that year raised $53,261.67, and that (by law) no part of the next succeeding year’s levy and revenue could be devoted to the payment of the excess warrants of the preceding year; that he is at all times ready to pay the plaintiffs’ warrants out of any funds which may yet be realized from the levy of 1914; that he has no personal interest in this action except to protect himself and his bondsmen from the consequences of paying out public moneys illegally, and asks for his costs and a reasonable attorney’s fee. Reduced to shorter terms, the questions to be considered are: (1) Does the fiscal year of Leavenworth county begin on the second Tuesday in October in each year? (2) Are the general expenditures of the county limited to the revenues raised by the levy of that year, together with the miscellaneous fees and . minor items which accrue to the general revenues ? or can the board of county commissioners disregard the maximum general revenues possible in any year and issue warrants in excess thereof? and (3) Can the county commissioners change the date of the fiscal year to suit the temporary financial convenience of the county? Before examining these questions, we note that there is nothing vicious, fraudulent, or questionable in the slightest degree inhering in any of the warrants, and that the county got value received for each of them. Whether their payment can be compelled at this time by mandamus is the gist of this controversy. 1. There is no general uniformity throughout the state touching the beginning of the fiscal year. A fiscal year is simply the year embraced in the annual term for the opening and closing of financial accounts. In Moose v. State, 49 Ark. 499, 5 S. W. 885, which was a prosecution of a county clerk for failing to publish a financial report of the county within thirty days after the annual settlement with the collector (treasurer) of the county for the fiscal year, it was held that the fiscal year, so far as it relates to the financial affairs of the counties, must mean the current year embraced between the dates of the collector’s (county treasurer’s) annual settlements; and that the “fiscal year ending 1887” covered the period from the collector’s settlement in 1886 to his settlement in 1887. In the state’s own financial affairs, the fiscal year begins on July 1. (Gen. Stat. 1909, § 8955.) In first-class cities under the old form of government the fiscal year begins on April 1. (Gen. Stat. 1909, § 1038.) In first- and second-class cities under commission government the fiscal year begins on January 1. (Gen. Stat. 1909, §§ 1328, 1500.) The defendant alleges, and the fact is not denied, that for many years the fiscal year of Leavenworth county has been considered and dealt with by the county authorities as beginning on the second Tuesday in October in each year. Whether this is true of the counties of this state generally may not have to be determined here. In 1871 a special law was enacted relating to levies, county revenues, and taxation in Leavenworth county. (Laws 1871, ch. 148.) In 1876 another special law was enacted, concerning bond issues, funding indebtedness, issue of warrants, etc. (Laws 1876, ch. 36.), In that year, also, another special act relating to Leavenworth county tax levies was adopted by the legislature. (Laws 1876, ch. 90.) In 1879 another special law was enacted relating to taxation in Leavenworth county, fixing the fiscal year of that county, limiting the issue of warrants to the sum raised by the levy for each fiscal year and providing penalties for its violation, etc. (Laws 1879, ch. 120.) By this act the fiscal year of Leavenworth county was thus defined: “Sec. 2. The fiscal year of the county of Leavenworth shall begin with the second Tuesday of October, and the tax levied by virtue of section one of this act,' in the year eighteen hundred and seventy-nine, and each year thereafter, shall be applied to the expenses of the fiscal year beginning the second Tuesday of October in each year; and no part of the tax levied in any one year shall be used to pay indebtedness due before the beginning of the fiscal year for which such levy was made.” Other sections of this special act restrict the issue of warrants, forbid the remissions of taxes and penalties, and make elaborate provisions for the discipline and punishment of county officials who violate its terms. In 1885 a general'law relating to county tax levies was enacted (Laws 1885, ch. 110); and this was followed by a lawsuit to determine whether the special act of 1879 or the general act of 1885 controlled the legal limit of general tax levies in Leavenworth county. This was the case of Howard v. Hulbert, 63 Kan. 793, 66 Pac. 1041. In stating the question, Mr. Justice Cunningham said: “Did the general law of 1885 repeal, by implication, the special act of 1879? .' . . We do not overlook the rule that repeals by implication are not favored, but we are equally well aware of the rule ‘that where two statutes are in any respect, in both language and meaning, irreconcilably repugnant, the provisions of the statute last enacted repeal those of the former, with which they conflict.’ . . . That the two acts are repugnant we may not doubt. ... We conclude that the general act of 1885 repealed the special act of 1879 and that the tax levy in Leavenworth county for 1890, being in excess of the amount the commissioners were authorized to levy, the sale of the real estate in question for the delinquent taxes was unauthorized.” (pp. 795, 798.) Of course, the only matter before the court in Howard v. Hulbert, supra, was the legality of the tax levy, and this only involved a consideration of section 1 of the special act of 1879, relating to the amount of tax levies and current expenses in Leavenworth county. When the court was impelled to hold that the later general act superseded the earlier Leavenworth special act by implication, the question of the levy was the only one under consideration. It had no concern with the other provisions of the Leavenworth special act, nor with the provision in section 2 of that act defining the Leavenworth county fiscal year. We see no reason for holding that the other sections of the special act of 1879, limiting indebtedness, the issue of warrants, providing punishment for official misconduct and the like, have been repealed by implication. It does not appear that the decision in Howard v. Hulbert was given the operative interpretation of repealing section 2. Howard v. Hulbert was decided in December, 1901. ' For fourteen years thereafter, and until the spring of 1915, the operative interpretation of the law by those officially charged with its administration in Leavenworth county was that section 2 of the act of 1879 defining the fiscal year was still in effect. The significance to be attached to the operative interpretation of an act is one which this court has heretofore considered. In 1899 a question arose as to whether an act relating to the fees of the clerk of the supreme court had been repealed. It was shown that the clerk had exacted the disputed fees for nearly thirty years and that the legislature had impliedly recognized them as legal by repeated reference to them. The court said: “In all cases of ambiguity of statutes, the contemporaneous construction of the legislative and executive departments, and of the officials whose duty it is to carry the laws into effect will be allowed great and, oftentimes, determining weight.” (Harrison v. Benefit Society, 61 Kan. 134, syl. ¶ 2, 59 Pac. 266.) In the opinion it was said: “The rule is well settled that ‘in all cases of ambiguity the contemporaneous construction not only of the courts but of the departments, and even of the officials whose duty it is to carry the law into effect, is controlling.’ (Shell’s Executors v. Fauche, 138 U. S. 562, 11 Sup. Ct. Rep. 376, 34 L. Ed. 1040.)” (p. 140.) Following this reasoning a little further, we note that some twelve years after the enactment of the general tax law of 1885 the legislature took cognizance of the Leavenworth special act of 1879. In 1897 two short acts were passed by the legislature amending section 2 of the Leavenworth special act of 1879. They both read as follows: “Section 1. That section 2, of chapter 120, of the laws of 1879, be amended to read as follows: The fiscal year of the county of Leavenworth in the state of Kansas shall begin with the second Tuesday of October in each year.” (Laws 1897, chs. 250 and 251.) One of these acts was a house bill and the other a senate bill. The enactment of duplicates might argue that the legislature did not pay much attention to what it was doing; but on the other hand it might be urged that the legislature intended to be emphatic about it. At all events, it is clear that the legislature intended, not-withstanding its general act of 1885, that the fiscal year in Leavenworth county should continue, as theretofore, to begin on the second Tuesday in October. 2. Proceeding now to consider whether the general expenditures of the county are limited in any one fiscal year to the amount of money which may be expected from that year’s levy (and the minor items which accrue to the general revenue fund and which need not be considered here), we find that this matter is about as fully covered by the General Statutes as by the Leavenworth special act of 1879. Section 2311 of the General Statutes of 1909 provides: “It shall be the duty of the board of county commissioners of each county in this state to levy in each year, in addition to the taxes for other purposes, a county tax sufficient to defray all county charges and expenses incurred during such year, and twenty per centum in addition to make up for delinquent taxes of the same year; and it shall be unlawful for any board of county commissioners or county clerk to issue county warrants or orders in any one year to a greater amount than the amount of the county tax levied in the same year to defray county charges and expenses, less the amount levied for delinquencies.” Section 2313 provides: “Any board of county commissioners, or any county commissioner, or county clerk, who shall violate any of the provisions of this act, or neglect, or refuse to perform any duty herein imposed, shall' be deemed guilty of a misdemeanor, and upon conviction thereof in a court of competent jurisdiction shall be subject to a fine of not less than ten dollars nor more than ten thousand dollars, and shall, moreover, be removed from office.” We do not overlook the cases of Garfield Township v. Dodsworth, 9 Kan. App. 752, 58 Pac. 565, and Garfield Township v. Hubbell, 9 Kan. App. 785, 59 Pac. 600, which have construed the year referred to in section 2311 of the General Statutes of 1909 to mean the calendar year. Of what significance has a calendar year on the fiscal affairs of a county? None whatever. The statutes provide for the year’s levies to be made in August to provide revenues for the ensuing fiscal year. (Gen. Stat. 1909, § 9389.) The statutes provide for the county treasurer’s quarterly fiscal settlements, the last quarter of the year being in October at the close of each year of his official term. (Gen. Stat. 1909, §§ 2144, 2145.) He takes his office on the second Tuesday in October immediately following the close of his predecessor’s official term. (Gen. Stat. 1909, § 2138.) This is simultaneous with the close of the fiscal year for which his outgoing predecessor is required to render his financial account. The taxes levied in August to provide revenues for the ensuing fiscal year are due November 1, shortly and con veniently after the new fiscal year begins. (Gen. Stat. 1909, § 9391.) The first of January is designated as the date when the county treasurer’s report for the first quarter of the fiscal year shall be published (Gen. Stat. 1909, §2146), which negatives every assumption that it might be deemed the commencement of the fiscal year. With all due deference to the late courts of appeals, we can not see how its decisions just cited can be approved. Whether the year mentioned in the statute can in any case be said to be the calendar year we need not decide. Read in connection with the Leavenworth special acts of 1897 it must be said that the year referred to in section 2311 of the General Statutes of 1909 is the fiscal year. From this it follows that in the county of Leavenworth the maximum amount of warrants which could lawfully be issued between the second Tuesday in October, 1914, and the second Tuesday in October, 1915, was controlled by the levy made in August, 1914, with such minor incidental items as may inure by law to the general revenue fund during that year and from the collection of such items overdue from preceding years. We are keeping in mind that each year’s general revenue includes not only the receipts from the general tax levy but delinquent taxes of other years not needful for prior years’ expenses, and also incidental fees, other stale claims collected, proceeds from the sale of property, etc., which properly inure to the general revenue fund. In other words, it must be held that Leavenworth county can not in any one fiscal year issue more warrants than that year’s revenues may reasonably be expected to meet; and it can not anticipate and impair the revenues of future years by an extraordinary issue of warrants in any one fiscal year. This proposition is fortified from two viewpoints; first, no power to do so has been granted by the legislature; and second, it has been forbidden by positive statutes, whether the inhibitions of. the special act of 1879 or those of the general statutes be held to control in Leavenworth county. We need scarcely add the other obvious proposition, that if this were not the correct law of this case nothing would stand between the county and bankruptcy except the discretion of the board of county commissioners. There is probably no government, national, state, provincial or local, which does not in some manner provide a check upon public expenditures, and if . the contentions of plaintiffs were correct, where would be the check upon the power of the board of county, commissioners of Leavenworth county? In Comm’rs of Osborne Co. v. Blake, 25 Kan. 356, a case not unlike the present, it was said: “All the statutes upon the subject seem to contemplate that the county board will not create, nor allow to be created, liabilities against the county faster than the legal and proper taxes will pay them. But suppose the county board should allow liabilities to be thus created, then may all the creditors of the county convert their claims into judgments, and then compel the county board to levy county taxes vastly beyond the limits prescribed by said section 181? We think not.” (p. 358.) 3. It needs but a word to dispose of the order of the board of county commissioners changing the fiscal year from October to January. Such action was in derogation of the statute. (Laws 1897, chs. 250 and 251.) It was done in an attempt to evade the statutory limitations upon county expenditures. It was only attempted to be done so far as affected the general fund out of which these warrants were to be paid. It did not pretend to make a change of the fiscal year so far as the other county funds were concerned. The order changing the fiscal year was without any legal effect whatsoever. From the foregoing it must be apparent that the statutory restrictions and the precedents cited above are too formidable to be waived aside by a writ of mandamus directing the payment of these warrants at this time. This would ordinarily conclude our opinion. But the matter is one of such public interest that we may be permitted to make some suggestions to the end that no injustice be done to the parties who have acquired these warrants in actual if not technical good faith. It is conceded that the claims for which these warrants were issued were valid and that the county got value received therefor. The present holders of the warrants are therefore subrogated to the rights of the original claimants. Although the warrants are void, the claims are valid. (School District v. Dudley, 28 Kan. 160, syl. ¶ 2; Irvine v. Board of Com’rs [of Kearny Co., Kan.], 75 Fed. 765.) The county must pay its valid debts. It did not pay them by issuing void warrants. The indebtedness is still outstanding. Presumably the indebt edness was incurred for salaries of county officials, stationery, lights, fuel and equipment for the county offices, jurors’ fees, witness’ fees and kindred legitimate county expenses. If the county has the money now to meet these debts — the claims for which the void warrants were issued — new vouchers should be made, new warrants issued and the claims paid. If the funds on hand will not pay all these claims and the levy for this current year will not produce sufficient revenues to pay them, these outstanding debts or claims should be taken into account in making next year’s levy and they can all be paid in time. The safeguarding of the rights of the taxpayers, in the last analysis, is the statutory maximum levy for county expenses. (Gen. Stat. 1909, §§ 9394-9424.) SYLLABUS BY THE COURT. 1. Statute op 1862 — Restraining Issue of County Warrants — Still in Force and Effect. The act of March 5, 1862, entitled, “An act to restrain the issuing of county warrants,” is still in full force and effect, except as modified by later enactments fixing maximum tax levies for current county expenses. 2. Same — Former Decision Distinguished.. The case of Bartlett, Treas., v. A. T. & S. F. Rid. Co., 32 Kan. 134, 4 Pac. 178, examined and held to have had no concern with the inhibitions in the act of March 5, 1862, forbidding boards of county commissioners and county clerks from issuing county warrants in any one year in excess of the revenues to be derived from the tax levy for such year. We have treated the warrants as void for the reasons given. In one sense they are not void. Without the aid of the doctrine of subrogation and the presentation of new vouchers and the issue of new warrants they could be lawfully paid out of any funds which may yet be collected from the levy of 1914 and preceding years. But that would be slow and probably altogether insufficient. It is also true that the legislature might authorize their payment by the county. (The State v. Paulcy, 83 Kan. 456, 112 Pac. 141; Rose v. Estudillo, 39 Cal. 270, syl. ¶ 4; 11 Cyc. 552.) The writ is denied.	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The opinion of the court was delivered by Porter, J.: Ed Reynolds sued the New Century Zinc and Lead Mining Company, a corporation organized under the laws of Delaware, to recover damages for personal injuries. In his petition he described the company as “The New Century Mining Company,” and alleged that it was a Kansas corporation. ' The summons contained the same misnomer, but was served personally upon the president of the company. The Maryland Casualty Company had issued a policy to the New Century Zinc and Lead Mining Company indemnifying it from loss by liability for injuries to its employees, and agreeing to defend at its own cost all suits brought by employees against the company. The summons and papers in the Reynolds case were sent to the attorneys for the casualty company at the request of the latter company, and they filed an answer for “The New Century Mining Company” and defended the action in the district court, where Reynolds obtained a judgment. The true name of the mining company was not disclosed by any pleading filed in its behalf, but an appeal was taken to the supreme court by the attorneys for the casualty company, the title of the cause remaining the same. The supersedeas bond, however, was signed in the true name of the defendant company as principal, and also by the American Surety Company as surety. The New Century Zinc and Lead Mining Company advanced the premium for the supersedeas bond and the premium for its renewal a year later, but the casualty company reimbursed it for these payments. The judgment in Reynolds’ favor was affirmed in this court at the July term, 1913. (Reynolds v. Mining Co., 90 Kan. 208, 133 Pac. 844.) When the mandate was sent down the New Century Zinc and Lead Mining Company satisfied the judgment and costs. It obtained the money to do this by a loan made by the American Surety Company, which had signed the supersedeas bond. In order to secure the loan or advancement of the money, it assigned to the surety company its interest in thé policy of insurance issued by the American Casualty Company. That company denied any liability to the surety company on the policy, and the surety company brought this action to recover the amount of the judgment and costs in the Reynolds case. A jury returned a verdict in favor of the surety company and judgment was rendered in its favor, from which the casualty company has appealed. We are unable to discover any reason why the judgment should not be affirmed or any way by which the casualty company can escape liability on its policy of indemnity. The judgment in the Reynolds case was enforceable against the New Century Zinc and Lead Mining Company notwithstanding the company was sued in the wrong name. The summons was served upon its president, an answer was filed and the action contested on its merits as though there had been no misnomer. If the company objected to being sued in the wrong name it should have filed a plea in abatement or called the court’s attention to the mistake in some way. Failing to do so or to disclose its true name, it waived the misnomer. (School District v. Griner, 8 Kan. 224; Clark v. Clark, 19 Kan. 522; Wilton Town Co. v. Humphrey, 15 Kan. 372.) The court would have authorized an amendment correcting the mistake if its attention had been challenged to it. (Weaver v. Young, 37 Kan. 70, 14 Pac. 458; Service v. Bank, 62 Kan. 857, 860, 62 Pac. 670.) But to have the mistake corrected was not what either the mining company or the casualty company desired. From the statement of counsel for defendant at the.trial of the present case, it appears that the casualty company thought some advantage could be gained by defending the Reynolds action in the name under which he sued the mining company and by concealing the misnomer. It is well-established law that where process is served upon a defendant in a wrong name and he answers in the named sued upon, a judgment against him is as binding as if rendered against him in his right name. If he'fail to plead the misnomer he waives it. (37 Cent. Dig. cc. 2607-2610, § 177, and cases cited.) Although when the Reynolds judgment was affirmed the American Surety Company became liable on the supersedeas bond, its liability was that of a surety, and the mining company, the judgment debtor, was primarily liable. Officers of the surety company and of the- mining company testified to the fact that the money to pay the judgment was obtained by a loan from the surety company, and that the policy was assigned and transferred as security for the loan. It made no difference whether any note was given or any charge or account made. There was no ground upon which to sustain the demurrer to the evidence. It is difficult to see how the trial court could have erred in charging the jury that the New-Century Zinc and Lead Mining Company was the same thing as the New Century Mining Company. For all purposes of this action they are the same, or, putting it another way, the mining company’s legal name is as stated in its charter, but it is sometimes known by the name in which it was sued and the judgment in Reynolds’ favor rendered; because the fact remains that the suit was defended through the courts just as though the company had been sued in its charter name. The instructions were quite favorable to the defendant. Some of the special questions submitted by the defendant might well have been refused, but the jury seem to have answered them properly. Their affirmative answer to the question whether Reynolds ever brought an action against the New Century Zinc and Lead Mining Company was correct. He sued that company under the wrong name; the company waived the misnomer and defended the action. After the judgment it is too late for that company, or for the casualty company which was in privity with it, to question the fact that the company was sued. The same may be said respecting the special question whether defendant ever issued an indemnity policy to a corporation by the name of the New Century Mining Company. The jury answered Yes'; and under the court’s instructions and the law as we have stated it, for every purpose connected with this case, the answer, though not literally correct, is substantially so. The question should not have been submitted, for no one claimed that the policy was issued to a company of that name, so it makes no difference how it was answered. The defendant’s liability on the policy could not be affected by any of the answers returned by the jury. The judgment is affirmed.	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The opinion of the court was delivered by West, J.: This appeal presents the one question, “What’s in a name?” The defendant, Amanda E. Collinson, is the widow of S. D. Collinson, who departed this life over fifteen years ago. In March, 1913, being the owner of certain real estate which she acquired a few years previously, Mrs. Collinson made an oral contract with one D. C. Allen to furnish labor and material and make certain improvements on this property. Allen contracted with the plaintiff, The Badger Lumber Company, to furnish the material, which it did, and the improvements were made. Afterwards the lumber company filed a lien statement and caused a notice thereof to be served upon the defendant. This suit was brought to foreclose the lien, the petition alleging a payment of over $300 on the material account. In the exhibits it appeared that in the statement for a subcontractor’s lien the defendant’s name was given as S. D. Collinson, while in the notice of filing it was given as Mrs. S. D. Collinson, but it was averred that the real estate belonged to Amanda E. Collinson and that she is the same person as Mrs. S. D. Collinson mentioned in the exhibits. A demurrer to the petition was overruled, and afterwards by leave of court the prefix “Mrs.” was placed before the name S. D. Collinson in the lien statement. After this was done the defendant filed a motion for judgment on the pleadings,- which motion was sustained, and from this ruling the plaintiff appeals. The motion for judgment confessed the allegations of the petition, including the averment that Amanda E. Collinson and Mrs. S. D. Collinson named the same person, the defendant. But it is sought to uphold the ruling on the ground that as the statute requires the name of the owner to be set forth (Civ. Code, § 651) the notice in question was deficient, and Blattner v. Wadleigh, 48 Kan. 290, 29 Pac. 165, is cited. It was there held that a statement which does not charge some particular person by name as owner is invalid. Attention was called to the fact that the statement of lien nowhere gave the name of the owner of the lot. But it has never been held by this court that the designation of the owner by the name which he has chosen to use in his business affairs is insufficient. Excessive strictness of construction is not required or permitted either by statute or by decision in this state. (Gen. Stat. 1909, § 9850; Presbyterian Church v. Santy, 52 Kan. 462, 34 Pac. 974; Wall Payer Co. v. Perkins, 90 Kan. 725, 136 Pac. 324.) Indeed the mechanic’s-lien statute itself makes express provisions that “in case of action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed.” (Civ. Code, § 653.) This was fully recognized in Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640. (See, also, De Klyn v. Gould, 165 N. Y. 282, 59 N. E. 95, 80 Am. St. Rep. 719; Phillips on Mechanics’ Liens, § 342; Bloom, Law on Mechanics’ Liens, § 848.) It is urged that the amendment was erroneously permitted after the statute of limitations had run, contrary to the decision in Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254. The distinction is that in that case there was a total failure to allege an essential fact and here a failure merely to set out in one statement the prefix in addition to the initials of the name under which the court found the defendant had been transacting business. Whether or not the amendment availed anything, no material error was committed in allowing it to be made. (Alberti v. Moore, et al., 20 Okla. 78, 93 Pac. 543, 14 L. R. A., n. s., 1036; Eberle et al. v. Drennan et al., 40 Okla. 59, 136 Pac. 162, 51 L. R. A., n. s., 68.) In Clark v. Clark, 19 Kan. 522, it was held that a married woman who deserted her husband in another state, and eloped with another man and took up her residence with him in this state, assumed his surname and was introduced as his wife and became known by his name, could maintain in her assumed name an action against her paramour to recover borrowed money. In the opinion it was said that the real party in interest brought the action and that she brought it in the name by which alone she was known in the community in which she lived, (p. 524.) It appears from the record before us that in ruling upon the motion for leave to amend the court found— “That the S. D. Collinson owner in the lien statement ... is the same person as Amanda E. Collinson named as the defendant in this action; that the defendant Amanda E. Collinson, has been commonly known and designated in her business transactions in the community in which she lives as Mrs. S. D. Collinson.” “The Christian name is that which is given one after his birth or at baptism, or is.afterward assumed by him in addition to his family name. . . . Without abandoning his real name, a person may adopt any name, style, or signature, wholly different from his own name, by which he may transact business, execute contracts, issue negotiable paper, and sue or be sued.” (29 Cyc. 264, 270.) (See, also, 5 Words and Phrases, p. 4659.) “A man’s name is the designation by which he is distinctively known in the community.” (Laflin & Rand Co. v. Steytler, 146 Pa. St. 434, 442, 23 Atl. 215, 14 L. R. A. 690, and Note, 693. See, also, Valiquette v. Clark Bros. Coal Mining Co., 83 Vt. 538, 77 Atl. 869, 34 L. R. A., n. s., 440; De Renzes v. His Wife, 115 La. 675, 39 South. 805, 2 L. R. A., n. s., 1089, and Note.) The judgment is reversed and the cause remanded for further proceedings.	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The opinion of the court was delivered by DAWSON, J.: Sometime in 1912 Gonder & McDonald, a real-estate firm in Cimarron, arranged a real-estate deal between Benewell Cline and Emma Hawk and her husband. For this service Emma Hawk, the appellee, gave Gonder & McDonald her promissory note for $1280, dated August 7, 1912, and due October 1, 1912. Not long afterwards Emma Hawk became dissatisfied with the deal and employed a Garden City lawyer to protect her interests. About September 7, 1912, the appellant, Harry Brice, a lawyer and abstracter of Cimarron, called .on Mrs. Hawk’s lawyer in Garden City, on behalf of Gonder & McDonald, seeking to effect a settlement of the trouble about the land deal between Hawk and Cline. Gonder and McDonald were also present at the conference. There was some discussion of a settlement whereby the note and land contract should be canceled. Mrs. Hawk’s attorney contended that they could not enforce the contract; that Mrs. Hawk “had been taken advantage of, and on account of her age and inexperience in such matters and the condition of Mrs. Hawk’s health as well as her mind.” Mrs. Hawk’s attorney testified:' “There was nothing said as to the enforcement or the collection of the note for the same reason. We discussed both the note and the contract, the discussion was with reference to a settlement by the delivery of the note and the cancellation of this contract. Of course I could n’t say at that time that there was any defense to the note outside of what-would be to the contract, because that is the first time I knew there was a note. “I first heard of the note from Mr. Brice. I heard his testimony in which he said that I stated at that time, that I did not know anything about the note and that I said if she had given a note she would probably have to pay it, . . . My theory was that the payment of this note was by way of compromise to secure the cancellation of that contract.” The appellant’s testimony in part reads : “Well, all that was said about the note, Mr. Hoskinson did n’t know there was a note given at that time, and he said the contract could be set aside; but he did n’t know about the note, and I said ‘What are you going to do about this note given by Mrs. Hawk?’ and he said, ‘Of course, if there is a note, they will have to pay it.’ ” No settlement was effected. A lawsuit followed between Benewell Cline and Emma Hawk over the land contract, in which the appellant, Harry Brice, was attorney for Cline. About two weeks after the conference in Garden City, between Mrs. Hawk’s attorney and Gonder, McDonald and Brice, the note was endorsed by the payees to Brice and he brought this action on it. The record shows that Mrs. Hawk prevailed in the action brought by Cline, and Brice, as his attorney; but whether that suit was commenced or whether Brice had been employed by Cline to prepare and file that suit before Brice acquired the note from Gonder & McDonald is not shown. Among the several defenses to the note were want of' con sideration, fraud on the part of the payees, and plaintiff’s notice of the note’s infirmities before he acquired it. The appellant testified that the note was transferred to him in consideration of services as a lawyer and also for'an equity in a quarter section of land. Then he testified: ' “Q. And you bought this note for a valuable consideration, before maturity? A. Yes, sir. “Q. And without knowledge of any defense against it? A. Yes, sir. “Whereupon the defendant'moved the court to strike from the record that part of the testimony of the witness in regard to buying this note for a valuable consideration, same being a question of law. “Motion sustained and that part of testimony stricken out and withdrawn from the consideration of the jury, by the court. “To which ruling of the court, the plaintiff, at the time duly excepted.” The jury returned a general verdict for the defendant; and this appeal seeks a review of the ruling of the district court recited above. The time when the note was acquired by Brice, the consideration, the facts pertinent to show the good faith of Brice, his knowledge of the Cline-Hawk land trade for which the note was given to his clients, his employment and efforts to settle the controversy about the land trade — every pertinent fact necessary to determine the question of notice to plaintiff was in evidence. The two questions which brought the affirmative responses from the witness added no additional facts to what had been already developed. They were objectionable as merely calling for the affirmative assent of the witness to mere’ conclusions couched in the form of leading questions by plaintiff’s counsel. No question is raised touching the sufficiency of defendant’s proof to show want of consideration on the part of Gonder & McDonald, so that phase of the case need not be reviewed. It is urged that appellant relied upon the statement of Mrs. Hawk’s counsel: “If she had given a note, she would probably have to pay it.” Mrs. Hawk’s attorney heard of the note for the first time in that conversation, and his answer was based upon the theory, as he testified, “That the payment of this note was by way of compromise to secure the cancellation of that contract.” The facts were submitted to the jury under careful and appropriate instructions, to which no exceptions were taken, and the result can not be disturbed. The judgment is affirmed.	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The opinion of the court was delivered by MASON, J.: Pauline Milberger sued Anna Veselsky for alienation of her husband’s affection, and obtained a judgment for $500, which is not appealed from. At the commencement of the action an attachment was issued and levied- upon a note for $2000 (on which $400 had been paid), payable to the defendant, executed by her former husband, John Veselsky. A motion was made to discharge the note from the attachment on the ground that it was exempt for these two reasons: (1) the consideration of the note was a part of the proceeds of her interest in the sale of her homestead, and she had at all times intended to reinvest it in another homestead for herself and her dependent children; and (2) it Was given her as alimony. On November 9, 1914, just before the trial of the main case, the motion to discharge the attachment was heard and sustained. The plaintiff appeals. . The following facts may be regarded as established beyond controversy: On March 28, 1912, John and Anna Veselsky, being then husband and wife, entered into a written agree-, ment, which recited that they could not continue that relation, and desired to make a division of their property and to arrange as to the custody of their minor children. It made these provisions: the husband was to pay the wife $1000 at once, and $2000 within a year, the deferred payment to bear interest; if he sold the land which was occupied as a homestead (and which was all the real estate that either owned) within a year he was to pay the $2000, with interest, at the time of sale, and in the meantime that amount was to be a lien against it; with this exception the husband was to own absolutely all the property, real and personal, the latter being worth $2000; the wife was to have the custody of their two daughters, and the husband that of their four minor sons; in case of a divorce these provisions were to be in settlement of all rights to either party, including alimony, costs and the care and custody of the children. The arrangement thus outlined was carried out. The cash payment of $1000 was made, and on April 29, 1912, John Veselsky gave to his wife his note for $2000, secured by a mortgage on the homestead, which is the note now in controversy. On March 5, 1913, John Veselsky was granted a divorce on the ground of his wife’s having abandoned him to live with Alex Milberger, the plaintiff’s husband. He remarried, and on March 28, 1914, sold the land referred to. The $400 was paid on the note in March, 1913. Anna Veselsky moved to the county of Saskatchewan, in the province of Saskatchewan, Canada. Alex Milberger also moved to that county. The plaintiff asserts that the defendant and Alex Milberger formed illicit relations in this country which have ever since continued, and that they are living together as husband and wife. The defendant denies such present relationship and avers that her home and that of Alex Milberger are two miles and a half apart. (1) With respect to the claim of exemption founded upon the homestead theory a number of serious legal questions are suggested, such as whether that privilege can be asserted by a resident of another country; whether the homestead right should be deemed to have been lost by abandonment; and whether the note on which the attachment was levied is to be regarded as the proceeds of a homestead. In this connection it is to be borne in mind that the note represents a part of the lump sum of $3000, which it was agreed should be paid to the wife on a division with her husband of all their property, consisting of personalty worth $2000, as well as the homestead. While it was made a lien on the land, the maker was at liberty to satisfy it with funds derived from any other source. He retained the homestead, and did not sell it until later. The divorce was granted on the ground of Anna Veselsky having abandoned her husband. However, it will not be necessary to decide these questions, because of the conclusion reached with regard to the facts. (2) The evidence on which the motion was heard was all in writing, and therefore this court may determine its effect as though it were presented here in the first instance. (Robinson v. Melvin, 14 Kan. 484; Mathewson v. Campbell, 91 Kan. 625, 138 Pac. 637.) There can be no exemption based upon the homestead theory unless the defendant formed an intention at the time the property was divided, to which she has adhered ever since, to purchase a home with her share. (Smith v. Gore, 23 Kan. 488.) The burden of proof is ordinarily upon one claiming an exemption. (18 Cyc. 1493.) While that rule is not universal there are obvious reasons why it should apply in such a case as the present, where the existence of the exemption is dependent in part upon the operations of the claimant’s mind (State ex rel. v. Hull, 99 Mo. App. 703, 74 S. W. 888), and where the privilege is one not directly given by statute (Huskins, Bryson & Co. v. Hanlon et al., 72 Iowa, 37, 33 N. W. 352). In a first affidavit for the discharge of the attachment the defendant swore that at the time she had received the thousand dollars and the note now in question it was, and had ever since been, her intention to use both for the purchase of a home. In one subsequently made she said she had spent all that she had received, including the $400 paid on the note, largely for clothing,- provisions, board, household and traveling expenses, but that she still intended to buy a home with the proceeds of the attached note. The statement of her intention is not corroborated in any way. There is no showing of any steps taken in that direction, or of any specific plans formed, or of any outward expression whatever of the purpose alleged. On the other hand, it is admitted that over $1400 (all that was available) of the fund which the defendant says she intended to use in the purchase of a home has been expended for other purposes. The question whether the defendant has been living in Canada with her paramour is material to the issue, as it bears upon the likelihood of her having formed and retained a purpose to use the proceeds of the note in buying a home. The evidence on the subject is in direct conflict. The denial of the defendant is supported by that of her mother, two brothers and Alex Milberger. It is contradicted by three witnesses who are not shown to be interested, two of whom swore that the defendant is the mother of a child born about the middle of September, 1914. A conclusion as to which set of witnesses is to be believed is aided by two letters between the defendant and Alex Milberger, the authenticity of which is not challenged, written in March and April, 1912, which clearly establish the illicit relations then existing between them. We are constrained to believe that the defendant’s statement in this matter is untrue, and also that the assertion of a consistent purpose from the first to hold the proceeds of the note as a fund for the purchase of a home is a mere pretense — a device to secure its release from the attachment. (3) The trial court held that the note was not exempt as alimony, and this ruling is approved. Alimony, being an allowance to the wife in pursuance of the husband’s obligation of support, is exempt from seizure to satisfy any of her debts except those contracted after the decree, but this exemption does not extend to a payment ordered as her share in a division of community property. (1 R. C. L. 869, 870.) The note involved was not alimony. Nor was it given in lieu of alimony. It was executed by the husband to the wife in pursuance of an agreement for the division of their property, which contained a provision that all rights of either party, including possible alimony, were settled by it. The divorce was granted for the fault of the wife, and no obligation for her continued support was cast upon her husband. When the property was divided, doubtless the wife’s share was fixed with reference to the fact that she was to have the custody of two of the children, but no specific part of it was shown to have been appropriated to that use. The judgment is reversed and the cause remanded with directions to overrule the motion to discharge the attachment.	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The opinion of the court was delivered by Johnston, C. J.: This was an action to recover taxes paid under protest by the railway company which it alleges exceeded the amount the company was legally bound to pay. The facts relating to valuations, the levies made, the total amount paid and the amount paid under protest were included in an agreed statement of facts, and upon these facts the trial court decided that the taxes were legal obligations of the company. In levying a tax upon property for 1908 it was provided by the legislature; in effect, that the board of county commissioners could not impose a tax that would produce a sum of money in excess of two per cent more than would have been produced by the -levy of the maximum rate on the assessed valuation of the property for the year 1907. (Laws 1908, ch. 78, § 1.) The levy authorized by that act being founded on the assessment made in 1907, it becomes important to examine the act under which the levy was made in 1907. It was- competent for the legislature to provide that the taxing officers should usé the valuation of 1907 and the maximum levy authorized at that time as the basis of the .assessment in 1908. (Railway Co. v. Harper County, 88 Kan. 651, 129 Pac. 1165.) It is contended, however, that the act of 1907 is itself invalid and afforded no legal basis for the levy of 1908. The contention is that the classification in the act is arbitrary and unreasonable, giving it a special effect which renders it unconstitutional. It provides: “The board of county commissioners of any county shall not levy upon the taxable property of such county a tax for current expenses of said county of any one year in excess of the following amounts: Upon a valuation of five million dollars and under, one per cent; over five millions and under six millions, eight and one-half mills; over six millions and under seven millions, seven and one-half mills; over .seven millions and under, eight millions, six and one-half mills; over eight millions and under nine millions, five and three-fourths mills; over nine millions, one-half of one per cent; provided, that in counties having a population of thirty thousand or more the board of county commissioners is authorized and empowered to levy one and one-half per cent upon the valuation when the same is seven million dollars or under; provided further, that the electors of any county in the state, by a direct vote, may order an increase of such levies.” (Laws 1907, ch. 409, § 1.) ■ If this act and that of 1908 are invalid it would follow that the act of 1885, which the act of 1907 purported to repeal, would be in force, and if still in force would authorize a larger levy than the one actually made under the law of 1907. But is the act of 1907 invalid? Is the classification so arbitrary, capricious and unreasonable as to conflict with the constitution ? It will be observed that the classification is founded on valuations, and these have long been recognized as a proper basis of classification in legislation providing for taxation and the expenses of municipal government. Under the provisions the rates decrease as the valuation ascends, but it is provided that when the population exceeds thirty thousand and the valuation is less than seven millions an increased rate may be levied. It is insisted that this feature of the law renders the act inoperative. A classification on the basis of population and on valuations is frequently made and is sustained where it is based upon substantial distinctions which are reasonably germane and pertinent to the subject matter. (Parker-Washington Co. v. Kan sas City, 73 Kan. 722, 85 Pac. 781.) If there is an essential difference between counties having a large population and a low valuation, and those counties where the population is more nearly in proportion with the valuation, then it may be said that there is a reasonable basis for the classification. It is not easy to find an absolutely just basis for taxation, but it is generally recognized that equality of taxation can only be attained by classification. Is there a substantial distinction for the classification that has been made for counties which ha,ve a great number of people and a small valuation of taxable property ? - It appears that Cowley county had a population of about thirty-four thousand and that the assessed valuation of the property was less than seven millions. It is well known that the salaries of officers increase as the population of a county increases, and also that other expenses of government are augmented as the county becomes more populous. This condition then appears to afford a reasonable basis for a classification so that counties of that class may be able to meet the general expenses under the prescribed rates. It is said that the fixing of the limitations of population at thirty thousand and the valuation at seven millions is arbitrary and that there is little reason for a different rate in counties where the population is thirty thousand instead of twenty-nine-thousand, or the valuation a little less than seven millions, instead of a little more. It may be that there is little difference where the population is a few more or less than the number fixed, or a little more or less in the valuation than that prescribed by the act; but if there is a real basis for a distinction where the population is high and the valuation low it devolves upon the legislature to determine where the limitation shall be placed, and if not obviously unreasonable their determination will be valid. In such a case the limitation must be placed somewhere, and it belongs to the legislature to decide what the necessities of the municipalities are and to fix the line where the limitation shall be placed. A limitation based on a particular number or amount is ártificial to some extent, but it has to be fixed and the lawmakers are the ones to decide what classification is the most judicious and the most appropriate, and where the line of division between the classes shall be fixed. Such limitations are found' in the constitution itself, ’ and although in a sense arbitrary, it was deemed necessary and reasonable to make the particular limitations that were made. For instance, it is ordained that a county shall be entitled to a representative in the legislature, in which 250 legal votes were cast at the next preceding general election, and yet it may not readily appear why it was fixed at that number rather than at ten more or less than the limit fixed. In providing a scheme of taxation the constitution requires that each family shall be entitled to an exemption on its personal property to át least the amount of two hundred dollars. The wisdom of placing it at exactly two hundred instead of two hundred and fifty or three hundred may not be readily apparent, but a limit had to be fixed and the wisdom of fixing the limits was vested in the makers of the constitution. In legislation where there is an essential difference and a real basis for the classification which is made, the mere fact that the line dividing the classes is placed at one point rather than another will not impair the validity of the classification. It is the function of the legislature to adopt the classification, and within the limits of the constitution it may place the line of division between them at the point which it decides is most suitable and will bring the best results. The function of the court is not to decide whether the classification is the wisest or the best that could be made, but only to inquire whether it rests on a substantial basis and is germane to the purposes of the law. The court can go no farther than to decide whether the legislature has kept within the limits of the constitution. In our view, the classification herein appears to be germane to the subject matter of the law and to be based on substantial distinctions. The law applies to all within the classes established and appears substantially to cover the entire ground of classification. In that respect it differs from the cited case of Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885, which excluded a number of municipalities from the classes created and made classes for which no rational theory or basis could be found. The objection that the act fixes the' valuation at over seven million and under eight million and made no provision for cases where the valuation is exactly seven million or eight million is hot substantial. The judgment of the district court is affirmed.	[ -10, -18, -68, -2, -22, -64, 34, -110, 65, -95, -75, 83, -17, -54, 16, 97, -93, -67, 113, 104, 68, -77, 23, 35, -110, -13, -39, -33, -73, 73, -28, 102, 76, 48, -54, -75, 102, -62, 85, -36, -114, 14, -88, -51, 88, 0, 52, 75, 118, 75, -47, -113, -5, 40, 28, -61, 73, 46, -37, -86, -127, -79, -102, -115, 127, 6, 1, 38, -100, -125, -56, -84, -104, 17, -62, -24, 119, -90, -58, -44, 13, -7, 9, 110, 98, 1, 45, -17, 60, -100, 46, -34, -115, -25, -106, 88, 106, 75, -74, -99, 84, 82, -121, 126, -32, -59, -35, 108, -125, -113, -42, -93, -113, 100, -118, 3, -33, -95, -112, 97, -121, -78, 94, -41, 58, -101, -97, -36 ]
The opinion of the court was delivered by Porter, J.: In a suit to set aside a conveyance of real estate and for partition two defendants recovered judgment for costs. The other parties appeal. All of them except the administrator are the children of Annie Parr, deceased. Mrs. Parr was a widow and lived alone. Her four daughters were married and had homes of their own. One of the defendants is a son who made no appearance in the action. The real estate consists of a house in Ottawa, valued at $750, which Mrs. Parr owned and occupied as her home. She died intestate October 18, 1914. For a year before her death she was quite sick and required attention. Two of her daughters, Mrs. Rodgers and Mrs. Alumbaugh, left their families, came to Ottawa, and took care of her almost constantly from 'May until her death in October. On September 12 she executed a warranty deed conveying the property to these two daughters. Although weak and suffering from her sickness, she was perfectly rational at the time she made the conveyance. She informed Doctor Pennington, her family physician, that she desired to make the deed in order to repay her daughters in part for their services to her, and stated that she was not indebted to any one except what she owed the doctor for his services, and that her daughters to whom she wanted to convey the property had agreed to pay the doctor what would be owing to him. She asked him to have a lawyer come to the house to prepare the deed. The grantees were not present at this conversation. The deed was executed in the presence of Doctor Pennington and the notary and when neither of the grantees was present, the consideration being “one dollar and other considerations.” Some days thereafter Mrs. Parr directed the doctor to have the deed recorded, which he did. After her death, and before the commencement of this action, when the execution of the deed was discovered, the plaintiff, Mrs. Scott, made proof of death and ‘secured the appointment of an administrator of the estate. Subsequently Mrs. Scott and her sister, Mrs Whiteneck, filed claims in the probate court for services alleged to have been rendered by them at other times in caring for the deceased. Their claims have since been allowed in the probate court. It was contended by the appellants that at the time the deed was executed Mrs. Parr was old and feeble, and that the grantees obtained the deed by undue influence; also that the deed was executed for the purpose of defrauding the creditors of Mrs. Parr. The findings are adverse to all the contentions of the appellants as to the facts. The court finds that Mrs. Parr was perfectly rational when she made the deed, that she did not believe she was indebted to any person except Doctor Pennington, and that one of the grantees expressed at the trial a willingness to pay the doctor’s bill and the funeral expenses. It is insisted by the appellants that Mrs. Parr had no right to make a gift of the property to the grantees and thus defraud her creditors, and that if the conveyance was made in repayment for services rendered by the grantees, it is void as against the creditors because the services rendered were not equal to the value of the property. For several reasons these con tentions can not be sustained, whether we regard the conveyance as a gift outright or as a payment for services, or as in part a gift and in part a payment for care and attention rendered her by the grantees. The actual intent to defraud creditors can not be inferred merely because the probate court has allowed the claims of the other daughters. When the deed was executed Mrs. Parr did not know she had a creditor other than Doctor Pennington and she made arrangements to have that debt and the expenses of her last illness and burial satisfied. No motion for a new trial was filed and the findings of fact are not disputed. The appellants’ contention is that on the findings the court erred in holding that the conveyance was not in fraud of creditors. There is a finding that Mrs. Parr occupied the premises as her homestead. Authorities, therefore, holding that proof of an intent to defraud is not necessary where the effect of the conveyance is to hinder, delay or defraud an existing creditor can have no application to the facts here. “A debtor cannot commit a fraud upon his creditor by disposing of his homestead. (Hixon v. George, 18 Kan. 253, 260.)” (Winter v. Ritchie, 57 Kan. 212, 214, 45 Pac. 595, 57 Am. St. Rep. 331. See, also, Wilson v. Taylor, 49 Kan. 774, 31 Pac. 697; Roser v. National Bank, 56 Kan. 129, 42 Pac. 341.) A debtor may convey the homestead with or without consideration, and the creditor can not complain. (Hixon v. George, supra.) The judgment is affirmed.	[ -46, 108, -44, -83, 106, 98, 40, -40, 96, -63, 33, 95, -85, 67, 9, 41, 35, 111, 65, 105, 117, -77, 31, 11, -45, -45, -77, -60, -67, -19, 101, -57, 76, 32, -118, 21, -58, -54, -59, 80, -122, -128, -56, -19, -39, 96, 52, 123, -44, 76, 85, -114, -77, 46, 53, 102, 104, 43, 121, 61, -80, -72, -86, 5, 91, 11, -112, 38, -4, 3, 104, 12, -104, 53, 8, -28, 51, -74, -122, 112, 7, -101, 8, 102, 102, 48, 69, -17, -24, -116, 42, -6, 63, 39, 54, 72, -117, -21, -74, -111, 121, 80, 35, -2, -26, -107, 92, 104, 5, -117, -42, -109, -119, 120, -104, -118, -18, -123, 48, 113, -55, 96, 76, -63, 123, -101, -114, -72 ]
The opinion of the court was delivered by Porter, J.: In September, 1913, W. L. Gunn and R. E. Bridge entered into an arrangement by which Bridge was to buy horses and mules on their joint account and Gunn was to furnish money to pay for them. Gunn signed blank checks drawn on the National Bank of Commerce of Wichita, which he gave to Bridge, and which were to be filled out by Bridge as he had occasion to use them in the business. For more than a year previous thereto Bridge had kept an individual account with the Stock Yards State Bank of Wichita and had done considerable business through that bank. Bridge filled out nine of the checks and deposited them to his individual account in the Stock Yards bank' on various dates from September 16 to October 25. At the time the first check was deposited he owed the bank a note which was not then due. On October 9, after the note matured, the bank charged his individual account with $418.95, the amount due on the note. Gunn first learned on the 19th of October that the checks had been deposited to the credit of Bridge in the Stock Yards bank. He thereupon demanded of the bank the balance of the fund, and learned for the first time that part of it had been applied upon the note. Upon the refusal of the bank to refund the amount, he brought this action. The case was tried without a jury and the court found in favor of the bank. From this judgment the plaintiff appeals. The only question is whether the bank had the right to apply the deposit to the payment of Bridge’s indebtedness. Plaintiff argues that the bank had no right to charge the note to the account of Bridge, first, because it knew that the deposit did not belong to Bridge. The evidence to sustain this contention was quite meager and the court has found in the bank’s favor and against the plaintiff upon the facts. Second, it is said the bank knew Bridge was insolvent and was obtaining this money from “some other source,” and therefore it was its duty to inquire into the circumstances. The president of the bank testified that Bridge had been a heavy depositor for a year previous, depositing at one time $2645. The cashier testified that he knew the Bridge Horse and Mule Company was insolvent but that he thought Bridge himself was solvent, although he would not have loaned him any money at the time these checks were deposited because he did not think he was entitled to more credit. He understood Bridge was borrowing money to do business on, but he did not know from whom he was borrowing. We are at a loss to understand how the mere fact that he deposited checks drawn by the plaintiff in his favor was sufficient to put the bank upon inquiry as to any interest the drawer of the checks might have in the funds. The third reason suggested is, that Bridge never directly or impliedly gave the bank authority to charge the note to his account. But the right of a bank to enforce its lien or off-set against a general deposit and to apply the deposit to the matured indebtedness of the depositor does not depend upon any express direction or authority of the depositor, where there is no understanding or agreement to the contrary between the depositor and the bank. What is called a banker’s lien is well recognized in commercial law. As applied to a deposit of money it is more accurate to speak of it as a right of offset; but when applied to securities it is appropriately called a lien. “Ordinarily that [the lien] attaches in favor of the hank upon the securities and moneys of the customer deposited in the usual course of business, for advances which are supposed to be made upon their credit. It attaches to such securities and funds, not only against the depositor, but against the unknown equities of all others in interest, unless modified or waived by some agreement, express or implied, or by conduct inconsistent with its assertion.” (National Bank v. Insurance Co., 104 U. S. 54, 71, 26 L. Ed. 693.) “When a depositor opens an account in a bank that very act, in the absence of an agreement to the contrary, authorizes the appropriation of his deposit balance to any matured claims the bank may hold against him, the same as if he then executed an agreement in writing to that effect.” (Meyers v. New York County Nat. Bank, 36 App. Div. 482, 484, 55 N. Y. Supp. 504.) The bank had the same right to apply the deposit of Bridge to the payment of his overdue note that it had to cash a check drawn by him in payment of his house rent or grocer’s bill. And if there was nothing in the circumstances under which the deposits were made to put the bank upon inquiry as to the interest of the plaintiff so that he could have recovered from the bank the amount of a check drawn by Bridge for the latter’s personal use and paid by the bank, then there is no reason why upon the facts in this case the bank should be liable to the plaintiff. /' The authorities make no distinction between the right of a /bank to apply a general deposit to a debt due the bank upon an (overdue note of the depositor and its right to apply the deposit to his overdraft. The only difference would seem to be in the steps necessary to make the application. As a matter of bookkeeping an overdraft is automatically reduced by the amount of a subsequent deposit, while in order to apply a balance of deposit to a note the note must have matured and must be charged to the account by the bank with or without direction from the depositor. In Kimmel v. Bean, 68 Kan. 598, 75 Pac. 1118, the syllabus reads: “A bank which receives from an agent for deposit in. his own name the money of his principal, without notice of the agency, is protected in applying it to a past due debt of the depositor to the same extent as in paying it out upon his checks, whenever such application is authorized by the agent, either expressly or by legal implication; and such' authority ordinarily arises from the making of a deposit without other directions, where the debt to which it is applied is an overdraft.” As already observed, there is no difference between the payment of a past due debt evidenced by a note and the payment of an overdraft. The opinion in Kimmel v. Bean, supra, cites numerous authorities which are quite applicable to the present case and it is unnecessary to review them. Bridge might have cashed the checks at the National Bank of Commerce and deposited the cash in the Stock Yards bank, and, as was said in Kimmel v. Bean, supra, “the question presented would not have been materially different.” (p. 605.) To the same effect see Hatch v. National Bank, 147 N. Y. 184, 41 N. E. 403, where it was said: “If, therefore, Smith had come with the money, and with it had paid his debt over the counter, the amount, could not have been recovered by the plaintiff, although admitted to have been actual proceeds of the stolen certificate. I think the situation was not at all changed because the debtor came with Ferris & Kimball’s check which the bank collected.” (p. 192.) The adoption of the rule contended for by the plaintiff is opposed to that principle of justice which determines as between innocent parties upon whom shall fall the loss in the circumstances shown in this case. Gunn placed the checks, duly signed, in the hands of Bridge, with implied authority to fill in and cash them. We fail to discover any circumstances sufficient to authorize the court to declare as a matter of law that the bank had such notice of the equities or rights of the plaintiff as would put it on inquiry. In Martin v. Bank, 66 Kan. 655, 72 Pac. 218, it was held the bank was not liable to account to the owner of a fund deposited by an agent in his own name and which the bank paid on his check without knowledge of any want of authority on the part of the agent. A case more directly in point is Tough v. Bank, 89 Kan. 583, 132 Pac. 174. In that case it was held that upon the facts stated a bank which had credited a deposit upon the depositor’s note was not charged with notice of an interest of a third person in the fund. An attempt is made to distinguish that case from this because there the application was made with the depositor’s approval. There is no claim in this case that Bridge told the cashier it was all right to charge the note to his account, but if the bank had the right to offset the one debt against the other, it would make no difference that it was done without the knowledge or consent of the depositor. The judgment is affirmed.	[ 118, -22, -16, -35, 74, -32, 42, -102, 90, -128, 53, 27, -55, 83, 4, 105, 119, -19, -47, 114, -9, -77, 103, -24, -46, -13, -15, -59, -75, 89, -28, 85, 76, 48, 10, -107, -26, -118, -63, 92, -114, 4, 10, -28, -7, -39, 48, -21, 20, 75, 49, -114, -5, 36, -68, 82, 109, 44, 111, -83, -48, -15, -86, 4, 125, 21, 19, 38, -66, 5, -56, 46, -104, 49, 1, 120, 122, -74, -98, -12, 105, -71, 9, 102, 98, 33, -75, -53, -116, -55, 46, -42, -115, -121, -106, 88, 34, 39, -65, -99, 115, 2, -122, -4, -6, -99, 31, -24, 3, -50, -42, -45, -113, 62, -101, 7, -5, -93, 16, 113, -58, -32, 93, 85, 116, 27, -113, -44 ]
The opinion of the court was delivered by MASON, J.: The Wichita Acetylene Manufacturing Company sued John Haughton for the price of a lighting plant, including its installation. The defendant denied liability. A jury trial resulted in a verdict against him on October 28, 1914. A motion for a new trial was overruled on November 27, 1914, at which time judgment was rendered. The journal entry of the proceedings on that day, after reciting the ruling on the motion, continues: “The Court further finds that the cause of action involved in this case and the verdict of the jury rendered herein was on an obligation contracted for the erection of improvements on Defendant, John Haughton’s home described in plaintiff’s petition.” The remainder of the entry recites merely a money judgment for the amount of the verdict. On February 19, 1915, the defendant appealed from the judgment. (1) It appears that after the appeal was taken (no stay bond having been given) an execution was issued, upon which the property referred to has been sold, the sale having been confirmed on July 7, 1915. The defendant complains of the confirmation of the sale; but if that ruling would otherwise be open to review, it is not a proper subject of consideration in this proceeding, because it was made after the present appeal was perfected. (4 Ene. L. & P. 330.) (2) The only other matter complained of is the inclusion in the entry of judgment of the words quoted in the foregoing statement. The plaintiff contends that they constitute no part of the judgment itself, but a mere finding of fact, which is not open to examination here, because no motion was made in the district court with regard to it. In view of the entire record, we think the words referred to must be regarded as recording the decision of the court upon a question of law affecting the means open for the enforcement of the plaintiff’s claim, and therefore as being a substantial part of the judgment rendered. The pleadings and instructions, as well as the evidence, show that while the material for the purpose was delivered to the defendant, the lighting plant never was installed; the generator was never set up — never placed upon a foundation — nor were the fixtures attached. The cause of action pleaded was based upon the refusal of the defendant to allow the installation. On the undisputed facts the material did not become a part of the realty. (Machine Co. v. Elevator Co., ante, p. 464. In this situation the language in question is fairly to be construed as a declaration, as a matter of law, that the debt to be enforced was one contracted for the erection of improvements on the defendant’s homestead, within the meaning of the exception, on that ground, incorporated in the provision of the state constitution exempting a homestead from forced sale. (Const., art. 15, § 9.) That is a matter which may be adjudicated in an action for a money judgment. (See King v. Wilson, 95 Kan. 390, 148 Pac. 752.) And the apparent intention of the court in this instance was to decide that question, there being otherwise no purpose in referring to the matter in the journal entry. Such a decision, in the circumstances stated, forms a part of the final judgment, and is open to challenge on appeal without having been attacked in the trial court. (Comm’rs of Wyandotte Co. v. Arnold, 49 Kan. 279, 30 Pac. 486.) (3) Whether the decision was correctly made depends upon the construction of the language of the constitutional provision.» Read literally it might cover such a case as the present, for, in a sense, an obligation may be contracted for the erection of improvements which are never in fact made. But the accepted rule is to construe an exception to the exemption with some strictness. (21 Cyc. 518.) Our statute gives a mechanic’s lien, to one who furnishes material “for the erection” "of improvements on real estate. (Civ. Code, § 649.) This is held to apply only where the material actually becomes a part of the realty, although somewhat similar statutes have been given a different construction elsewhere. (Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563.) If any distinction is to be made, a provision limiting the homestead right should be more strictly construed than one giving a lien to material men. We conclude that a homestead may not be sold to satisfy a judgment for materials furnished for its improvement unless they were actually used for that purpose. The judgment will be modified by striking from it the language quoted, leaving it as one merely for the recovery of money, the question of exemption not being determined.	[ -16, 124, -40, -115, 26, -32, 106, -40, 100, -95, -89, 87, -83, -33, 20, 111, 117, 93, 81, 106, 76, -109, 3, 67, -46, -13, -45, -43, 57, 76, -12, -42, 12, 32, -54, -75, -26, -126, -59, 92, -50, -123, 56, 104, -39, 96, 116, 123, 118, 75, 85, -114, -13, 41, 29, -53, 106, 56, -21, -68, 97, -7, -126, 13, 95, 18, 49, 54, -104, -59, 104, 36, -104, 49, 2, -24, 115, -90, -58, -12, 45, -71, 8, 102, 98, 33, 13, -17, -24, -104, 47, 94, -115, -90, 16, 48, 11, 41, -98, -99, 97, 18, -25, 126, -18, -99, 93, 121, 19, -121, -108, -79, 15, 118, -104, -108, -17, -125, 48, 96, -115, -70, 92, 70, 58, -65, -114, -98 ]
The opinion of the court was delivered by Mason, J.: In October, 1912, Henry Ebel obtained in the district court of Logan county personal judgments, for $2237.20 and $803.06, against Frederick and Margaret Steinwand, which were decreed to constitute a first lien against the northwest quarter of one section of land, and a second lien against the southwest quarter of another. An order of sale was issued on which a sale was made on October 24, 1913. The sheriff’s return showed the sale of both tracts to Ebel, the northwest quarter for $2100, and the southwest for $1400. On April 30, 1914, on Ebel’s motion an order was made confirming the sale. On July 6, 1914, Ebel filed a motion asking that the order of confirmation and the sale be set aside. This motion was heard on the same day, and allowed.- From this order the Steinwands appeal. The terms of court in Logan county begin on the fourth Tuesdays of April and October. (Laws 1913, ch. 175, § 1.) The decree of confirmation was therefore set aside at the same term at which it was rendered. The court consequently had a wide discretion in determining whether the matter should be reopened. (Hemme v. School District, 30 Kan. 377, 1 Pac. 104.) Its decision that there should be a further inquiry is not open to review, and the question before us is whether error was committed in the final refusal to confirm the sale. Evidence was given to this effect: Ebel’s attorney had instructions from his client to bid $300 for the southwest quarter, subject to a prior mortgage for $1100; he telegraphed to the sheriff authorizing a bid of $300 “over” the first mortgage, using the quoted word erronously for “subj ect to.” The appellants contend that the evidence was not admissible to impeach the return of the sheriff. The rule that the return of a sheriff is conclusive upon the parties does not prevent its being amended upon a proper showing (Stetson v. Freeman, 35 Kan. 523, 11 Pac. 431), and the proceedings had in the district court may perhaps be regarded as having substantially that effect. But apart from that, under the present statute a sale may be set aside, although regularly made in accordance with law, upon equitable grounds. (Bank v. Murray, 84 Kan. 524, 114 Pac. 847.) The court, having found that the appellee’s bid, even if it-must be regarded as having been made as shown by the return, was the result of inadvertence or mistake, was authorized, in the exercise of a sound discretion and to promote substantial justice, to set the sale aside. (24 Cyc. 31; 25 A. & E. Encycl. of L. 785.) Ebel asked to have the sale set aside as to the southwest quarter, expressing his willingness that as to the other quarter it should stand or be set aside as the court should prefer. Doubtless the whole sale was set aside on the theory that if one tract was to be again offered, both should be. We do not understand that the appellants object to this feature of the order. The judgment is affirmed:	[ -11, -20, -8, -115, 58, 96, 42, -104, 105, -79, 39, 115, 109, -54, 0, 105, -122, 41, 117, 105, -59, -73, 23, -63, 82, -77, -47, -43, -75, -4, 118, 87, 76, 48, 74, -107, 70, -62, -49, 84, -114, -124, 56, 69, -39, 0, 52, 63, 118, 74, 101, -82, -13, 46, 24, 79, 105, 40, -53, 61, -48, -72, -69, 15, 79, 19, -127, 53, -102, 7, 120, -82, -112, 49, 8, -24, 123, -74, -58, 52, 9, 9, 40, -90, 98, 17, 9, -17, -8, -120, 46, 63, -123, -90, 22, 88, -94, 41, -74, -103, 117, 80, 6, -2, -18, -123, 29, 108, 15, -50, -106, -109, -97, 126, -102, 19, -13, -123, 48, 112, -49, 114, 94, 71, 80, -101, -116, -3 ]
The opinion of the court was delivered by Mason, J.: The St. Marys Machine Company sold two gas engines to the Iola Mill & Elevator Company, under a written contract providing that title should remain in the vendor until the purchase price was paid. Payment was not made, and the seller brought replevin for the engines, which in the meantime had been set up and bolted to concrete bases in a building erected by the buyer. Caroline Frantz, who by a sheriff’s deed had acquired title to the building, intervened and claimed the engines as a part of the real estate. The plaintiff recovered, and the intervenor appeals. The sheriff’s deed was based upon a judgment foreclosing a mechanic’s lien. The machinery must be regarded as having become attached to the realty so as to pass with it, unless this result was precluded by the existence and record of the contract reserving title in the plaintiff. The contract was filed with the register of deeds on June 29, 1910. The engines were delivered to the mill company and deposited in the building March 6, 1910, but they were not set up or fastened to the bases until the following December. The statement for the mechanic’s lien was filed March 22, 1910. The action to foreclose it was begun February 6, 1911, the machine company not being a party, and judgment was rendered in July of the same year. (1) The engines were not made a part of the real estate by merely depositing them in the building. To change their character as personalty it was necessary that they should be set up and permanently attached. The contract reserving to the machine company the title to the engines had no validity as against any one acquiring a claim upon them before it was filed for record. But no claim to them was asserted except by virtue of proceedings which affected only real estate, and irrespective of the contract they were personal property until they.were set up and bolted to the floor, in December, 1910. Before this time the contract had been made of record, and being thereby validated, it prevented their, becoming a part of the realty so as to be subject to any then existing lien. These conclusions are not only consistent with what has been decided in a somewhat similar case, but are regarded as following from what was there said. (Geppelt v. Stone Co., 90 Kan. 539, 135 Pac. 573, 94 Kan. 560, 146 Pac. 1157.) (2) While there is some conflict on the subject, we think the better view, as well as that supported by the weight of authority, is that a valid agreement between the owner of personal property, who is guilty of no misconduct or concealment, and the owner of the real estate to which it is annexed, that its character as personalty shall not thereby be affected, binds not only these parties, but all other persons, unless an exception be made in favor of purchasers for a valuable consideration without notice. (19 Cyc. 1050-1055; Note, 49 L. R. A., n. s., 396.) A buyer of land sold at a sheriff’s sale may sometimes be regarded as an innocent purchaser. (Lee v. Bermingham, 30 Kan. 312, 1 Pac. 73.) But the intervenor in this case can not be accorded that standing. There was testimony that she was represented in the matter by her husband, who knew of the existence of the contract. Moreover the petition in the action on which the sale was based recited that the machine company claimed a lien under a chattel mortgage. The evidence justified a finding, which the trial court must be deemed to have made, that the property was bought with notice of the machine company’s rights.. The judgment is affirmed.	[ -16, 120, -36, -116, 90, 96, 34, -102, 96, -92, 38, 23, -19, -54, 17, 105, -25, 125, -15, 106, -9, -93, 3, 59, -46, -13, -47, -35, -67, 77, 116, 71, 76, 36, 74, -107, -26, -126, -51, 84, 78, -123, 42, -20, -39, 64, 52, 58, 84, 74, 81, -114, -77, 44, 29, -53, 105, 42, -23, 57, -16, -8, -69, -123, 127, 22, 33, 36, -108, 67, -24, -114, -112, 25, 4, -24, 115, 54, -58, 84, 13, 9, 8, 102, 98, 18, 5, -17, -24, -72, 6, -42, -97, -89, 52, 88, -125, 105, -65, -97, 104, 0, 70, 126, -26, -107, 93, 108, 23, -49, -42, -125, 15, 114, -98, 5, -49, -125, 48, 112, -50, 58, 92, 65, 51, 27, -114, -8 ]
The opinion of the court was delivered' by Marshall, J.: The plaintiff recovered judgment for damages sustained by reason of the purchase of gasoline mixed with coal oil from the defendant. The defendant appeals. The plaintiff conducted a clothes-cleaning establishment. He purchased gasoline from the defendant to use in his business. This gasoline was mixed with coal oil. He used it in cleaning clothes, whereby they were damaged and he was compelled to reclean them. On account of the coal oil being in the gasoline used by the plaintiff, he lost a number of his customers. The jury returned a verdict in favor of the plaintiff for $575 but deducted $95.29 due the defendant for gasoline sold the plaintiff, leaving a balance of $479.71 for the plaintiff; and answered special questions as follows: “1. Did the plaintiff on or about December 12, 1913, discover the odor and oily appearance of coal oil in the gasoline he had received from defendant? Answer: Yes, about that time. “2. If you answer Question 1 in the affirmative, did he make any examination of the gasoline to determine the quality thereof before continuing its use in his business? Answer: No. “3. Was all of the cleaning which was unsatisfactory to plaintiff’s customers done by plaintiff after, he had discovered the odor and oily appearance of coal oil in the gasoline used by him? Answer: No. “4. If you find for plaintiff, how much do you allow him? (а) For his labor in recleaning? (б) For expense of recleaning? (c) For gasoline affected? (d) For cleaning storage tank system and machinery? (e) For soap? Answer: (а) 75. (б) 25. (e) 60. (d) .20. (e) 10. 190. “5. If you find for plaintiff, how much do you allow him for loss of trade? Answer: 385.” 1. 'The defendant filed a motion asking the court to require the plaintiff to make his petition more definite and certain. This motion was sustained in part and denied in part. The defendant’s contention is that the entire motion should have been sustained. The plaintiff then filed an amended petition. No good purpose will be served by setting out either the petition or the amended petition. It is sufficient for the purposes of the present consideration to say that the amended petition stated facts which, when proved, established a cause of action against the defendant. It stated these facts with sufficient particularity to inform the defendant of each element of the plaintiff’s cause of action. It was hot necessary to state evidentiary facts. The defendant’s motion, so far as it was denied, asked that the plaintiff be required to set out evidentiary facts. It was not error to deny the motion in these particulars. 2. The defendant demurred to the amended petition on the ground that there were two causes of action improperly joined, that the petition did not state facts sufficient to constitute , a cause of action, that the plaintiff did not use any care or caution to avoid the damage sustained by him, and that the petition did not state facts sufficient to entitle the plaintiff to recover certain specific items of damage set out therein. If the allegations of the plaintiff’s petition were true — and the demurrer admits they were true — a recovery should be had against the defendant on the petition as a whole and on each of the items against which the demurrer was directed. The demurrer was properly overruled. 3. The defendant contends that the court erred in assisting the plaintiff’s counsel in the conduct of the trial by sustaining objections to questions before objections were made, and by suggesting to counsel for the plaintiff that an objection to certain evidence would be sustained if made. We have examined these rulings of the court and the questions asked by the counsel for the defendant, and are unable to see that the court abused its discretion in anything that it did in these matters. It was the court’s duty to control the introduction of evidence and to confine counsel to the introduction of evidence that was material and relevant to the issues on trial, although counsel for both sides may have consented to the introduction of the evidence excluded. 4. Other contentions are that the court erred in admitting illegal, irrelevant, incompetent and immaterial evidence; and in excluding legal, competent, relevant and material evidence. The abstracts submitted to this court do not disclose any substantial or prejudicial error in the admission or exclusion of evidence. Section 581 of the code of civil procedure requires this court to disregard all mere technical errors and irregularities which do not appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court. 5. Other complaints are that the court erred in not withdrawing and excluding from the consideration of the jury all evidence of damage sustained by the plaintiff; and that the court erred in overruling the defendant’s demurrer to the evi- ■ dence. . The evidence tended to prove that damage was sustained by the plaintiff as alleged in his petition, and to prove all the allegations of the petition necessary to establish a cause of action against the defendant. 6. The defendant’s next contention is that the court erred in giving the fifth, sixth, seventh, eighth, ninth, tenth, thirteenth, fourteenth, and fifteenth instructions. The fifth, sixth, seventh, eighth, ninth and tenth instructions were applicable to'the facts shown by the evidence and correctly stated the-law. The thirteenth, fourteenth and fifteenth instructions concern punitive damages. They state the law correctly. Admitting that they should not have been given for the reason that there was no evidence on which to base them or to justify the jury in including in the verdict any amount for punitive or exemplary damages, it does not necessarily follow that the judgment must be reversed and a new trial granted. This court in K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kan. 671, 21 Pac. 770, said: “Where there is no testimony showing that the negligence is so gross as to amount to wantonness, and no willful or malicious acts are proven, actual or compensatory damages merely, is the rule. Therefore, to leave the question of punitive or exemplary damages to the jury, when there is no testimony which would warrant a verdict for such damages, is improper.” (Syl.) In that case the verdict was for $7000. The court directed a remission of $2000 and allowed judgment for $5000. In K. P. Rly. Co. v. Cutter, 19 Kan. 83, an action for wrongful death, damages beyond pecuniary loss sustained were assessed by the jury amounting to $2200. The pecuniary loss was found to be $1320. This court said that the case did not warrant exemplary or punitive damages. The judgment was modified by striking out the $2200 awarded for exemplary damages, and affirmed as to the rest. In C. K. & W. Bld. Co. v. O’Connell, 46 Kan. 581, 26 Pac. 947, the judgment was reversed because of an instruction permitting the jury to find punitive damages, there being no evidence to sustain such damages. There was nothing to indicate any way to separate actual damages allowed from the punitive damages that might have been allowed. This is also true of A. T. & S. F. Bld. Co. v. Winston, 56 Kan. 456, 460, 43 Pac. 777. In the present case the jury did not allow anything for exemplary damages. It comes within the principles of K. P. Rly. Co. v. Cutter, supra, and K. C. Ft. S. & G. Rld. Co. v. Kier, supra. Under these cases and section 581 of the code of civil procedure, the error, if any, committed in giving instructions concerning exemplary damages must be disregarded. 7. The defendant’s last contention is that the court erred in refusing to set aside the general verdict and in denying the defendant’s motion for judgment on the answers of the jury. This matter is practically determined by what has been said. The several items of damage allowed by the jury were proved by ample evidence. The findings of the jury are consistent with each other and with the general verdict. The judgment is affirmed.	[ -14, 126, 124, -116, 26, 96, 42, -38, 69, -95, -73, 83, -19, -62, 28, 105, -6, 125, -11, 107, -34, -93, 3, 83, -42, -13, 57, -63, 53, -34, -20, -33, 76, 36, -118, -107, 102, 64, -63, 84, -118, 5, -87, 97, 89, 40, -76, 58, 32, 75, 113, 6, 99, 44, 24, -49, 105, 40, 123, 57, -48, -72, -117, -121, 45, 18, -109, 38, -98, 39, -8, 14, -104, -79, 8, -24, 115, -74, -122, -12, 107, -85, 8, 32, 99, 33, 5, -19, -8, -104, 39, -2, -113, -89, 16, 56, 9, 35, -97, -100, 124, 18, -113, -38, -38, -107, 95, 108, 7, -117, -106, -31, 15, 100, 28, 24, -49, -93, 48, 100, -51, -70, 84, 7, 94, -101, -113, -98 ]
The opinion of the court was delivered by West, J.: The city of Pratt brings this original proceeding in mandamus to compel the state auditor to register certain sewer bonds issued by the city. The refusal to register is upon the grounds that while the bonds bear five per cent interest the special assessments draw seven per cent, and that, therefore, the auditor can not certify under the seal of his office upon such bonds the fact that they have been regularly and legally issued. (Gen. Stat. 1909, § 581.) Section 1466 of the General Statutes of 1909 provides that when bonds are issued for the payment of the cost of any improvements which are a charge against specific property the mayor and council shall apportion such special assessment by ordinance, and the city clerk shall annually certify the amounts due on the tracts, which shall include the annual installments “and interest on all unpaid balances for one year at a rate not to exceed seven per centum per annum.” Prior to this enactment section 1022 of the General Statutes of 1901 required an interest rate of eight per cent. Section 1 of chapter 124 of the Laws of 1911 provides that such assessment shall be certified to the county clerk and by him placed upon the tax roll for collection, “subj ect to the same penalties, entitled to the same rebates, and collected in the same manner as other taxes”; that none of the bonds shall bear interest at a rate exceeding six per cent per annum; that such bonds shall not be issued in excess of the actual cost of improvement except that the installment coupon shall include interest on such installment to the maturity thereof; that when the cost is charged against specific property by special assessment “the mayor and council shall levy special assessments each year sufficient to redeem the installment of such bonds next thereafter maturing.” Section 1 of chapter 111 of the Laws of 1915, concerning such improvements in cities of the first class, expressly provides that the interest shall be the same as the rate provided for in the bonds, but no such provision is found in the law relating to cities of the second class. The statutes already referred to make the two requirements that the assessment shall bear interest and shall be sufficient to provide for the installment due. With the rebates allowed, the proceeds of these assessments may not be any more than ■sufficient.' Nothing irregular appears in the proceedings so far as the bonds themselves are concerned, and the thirty-day limitation for bringing proceedings to enjoin the levy of special assessments had expired when the bonds were presented to the auditor and he may properly certify and should certify that they were legally and regularly issuedi The writ is allowed.	[ 116, 121, -108, -2, -54, -64, 26, -104, -37, -96, -92, 95, -83, -22, 20, 65, -12, 125, 117, 73, -43, -74, 102, 75, -48, -13, -117, -41, 123, 93, -10, 7, 76, 53, -61, -107, 38, -117, 71, 92, 78, -113, -117, -51, -3, 64, 52, 79, 50, 13, 113, 88, -93, 44, 21, 99, 105, 40, -39, -87, -47, -7, -88, -107, 107, 21, -111, 71, -108, 65, -62, -114, -72, 49, 4, -24, 115, -90, -122, 86, 109, -37, 12, 102, 98, 0, 37, -1, -40, -52, 14, -38, -83, -122, -109, 121, 42, -90, -76, -97, 100, 6, -90, -2, -26, -108, 95, 108, 5, -114, -28, -45, -117, -20, -120, 67, -1, 35, 48, 101, -50, -74, 94, 39, 3, 91, -105, -56 ]
The opinion of the court was delivered by Johnston, C. J.: Josephus Minor asked for and obtained a judgment against the Atchison, Topeka & Santa Fe Railway Company for damages for the burning and destruction of a barn and other property alleged to have been set on fire by the defendant in the operation of its railroad. The barn, which was eight hundred feet distant from the railroad, was filled with dry hay. The fire occurred during a very dry period, and on the day of the burning the wind was blowing at the rate of thirty-one miles an hour and directly from the railroad towards the barn. Fire was seen in the barn shortly after a train passed, and the jury found that it broke out about thirty minutes after the train passed. No fire was set nor was anything burned between the railroad and the barn, and there is a contention that the distance between the passing train and the barn was so great that it was impossible for igniting sparks to be carried from a locomotive to the bam. Attention is called to the opinion of certain authors who argue that sparks emitted from a locomotive will ordinarily carry fire no farther than fifty feet, and under the most favorable conditions to the setting of a fire, not more than one hundred and fifty feet. Witnesses in the case, however, testified that igniting sparks and cinders from passing trains may, under certain conditions, be carried and start a fire as great a distance as it was from the track to the barn. It is well known that the size of the sparks or cinders thrown from a locomotive, the atmospheric conditions existing at the time, and the velocity of the wind materially affect the fire-carrying quality of sparks and cinders. Under the testimony it can not be said to be an impossibility for igniting sparks and cinders to be1 carried the distance mentioned. The plaintiff must, therefore, be regarded as having made a prima facie case showing that the fire was the result of the defendant’s negligence; (Tuttle v. Railway Co., 86 Kan. 28, 119 Pac. 870.) There was testimony in the case to the effect that about the time in question live sparks and cinders were carried more than five hundred feet. Another witness stated that after the barn was burned, and shortly after the train passed, fire was set on the plaintiff’s premises a distance of six hundred feet from the track; while another witness stated that he observed sparks from a passing train falling near the site of the barn when the wind was blowing about twenty miles an hour. One witness said that the locomtive of the train which passed just before the fire was started was throwing out black smoke as if the fireman had just been putting coal in the firebox. The testimony tended to show that there was no other source from which the fire might have originated. Some testimony tended to show a defect in the locomotive which passed about the time of the fire. Under our decisions it must be held that a prima facie case against the defendant was made and that no error was committed in overruling the defendant’s demurrer to the plaintiff’s evidence. (Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68; Lillard v. Railway Co., 79 Kan. 25, 98 Pac. 213; Tuttle v. Railway Co., supra; White v. Railway Co., 91 Kan. 526, 138 Pac. 589.) There is a claim of error in the ruling admitting testimony as to fires set out at other times by the defendant. Some of this testimony is within the rule permitting the admission of testimony of that character in Tuttle v. Railway Co., 86 Kan. 28, 119 Pac. 370, and Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156. A more complete answer to the claim of error is that the court instructed the jury that all testimony of that character was admitted and could be considered only for the purpose of showing that live sparks from locomotives could be carried as far as the barn was from the track. So limited, the reception of the testimony could not be error, as it was undoubtedly admissible for that purpose. The testimony as to the distance that burning shingles were carried at the time of the fire was admissible for the same purpose as well as to show the velocity of the wind. Objection is made because of the refusal of the court to admit testimony of a statement made by one Miller, who was called as a witness in behalf of the defendant, said to be inconsistent with the testimony given by him on the trial. He testified that he reached Minor’s place before the fire burned out, and that it was about 11 o’clock eastern time. On further examination he testified that he might have made the statement that it was about 11 o’clock western time. The offer to show that he made that statement was refused. Assuming that it was competent for the defendant to contradict its own witness in this particular or use the offered testimony for any purpose, it must be held under all the evidence in the case that the exclusion of the offered testimony was not material error. Error is next assigned on the refusal to set aside the special finding to the effect that the engineer did not handle the train properly in that he undertook to make up eight minutes of time in running from Howell to Dodge City, a distance of nine miles. The negligence upon which the verdict and judgment are based is not excessive speed of the train, but it was the using of a defective engine. The train was scheduled to run this distance in twenty minutes, but it appears to have made the run in twelve minutes. It appears that the rate of speed of the train was forty-five miles an hour, and running at that rate in the open country can hardly be declared to be excessive or negligent. It was running faster, it is true, than the prescribed schedule, but ordinarily it is not negligence to run a train faster than the scheduled rate when it is deemed to be necessary, and it can not be regarded as a culpable want of care unless some peculiar circumstances require a diminished rate of speed. It may be that the pushing of the locomotive up to the high pressure of steam and the increased speed may have contributed somewhat to the throwing of sparks which were carried by the wind to the barn, but as we have seen, the recovery is not based on that negligence, and if the finding were stricken from the record there would still be sufficient support for the verdict. It is next charged that there was no support for the finding that about thirty minutes elapsed after the train passed before the fire broke out. There was some confusion in the testimony in regard to the time of the occurrences there, due, in part at least, to the fact that the line of division between central time and mountain time is near the plaintiff’s premises, and hence not all the witnesses used the same standard when speaking of time. There is testimony that the fire started in the hay inside of the barn within a few minutes after the train passed, and that it burned some time before it broke through the roof of the barn. The jury in their finding probably referred to the time the fire broke through the roof of the barn, and we see no error in upholding the finding. Although the testimony is slight it appears to be sufficient to warrant the jury in finding that the engine was defective in that the plates were out of place, and it also appears to be sufficient to uphold the verdict and the judgment that have been rendered. After giving consideration to all of the assignments of error and the arguments thereon we are of opinion that the judgment of the trial court should be upheld. The judgment is affirmed.	[ -12, 122, -36, -100, 10, 104, 106, 88, 103, -79, -74, -45, -51, -53, 17, 35, -26, 45, -48, 59, 68, -121, 23, 115, -106, -45, 115, -51, -100, 72, 126, 95, 72, 52, -118, 21, -90, -56, -59, 20, -114, 29, -23, -31, 25, -72, 60, 122, 86, 79, 17, -102, -45, 42, 88, -62, 73, 57, -5, -95, -47, -15, -118, -57, 95, 16, -93, 32, -98, 39, 72, 62, -40, 21, 1, -4, 115, -28, -112, -4, 33, -87, 8, -26, 103, 33, 61, -85, 108, -119, 46, 22, -121, -89, 16, 8, 11, 41, -74, -99, 48, 80, -89, 106, -25, 81, 92, 100, 0, -117, -76, -25, 79, 52, -98, 37, -53, -93, 0, 116, -49, -70, 92, 69, 18, -101, -114, -66 ]
The opinion of the court was delivered by West, J.: Plaintiff filed his petition alleging ownership and possession of certain land, that the defendant unlawfully and with force entered and began the erection of a building thereon, and had attempted without due process of law to oust the plaintiff and by force and stealth acquire possession; that the defendant was insolvent, and asked that he be enjoined from further interference with the property. A restraining order was issued, and the defendant filed an answer containing a general denial and alleging that he entered upon a portion of the premises not occupied by the plaintiff for any purpose, either as a residence or for agriculture, and began the erection of a small frame house with the intention of occupying so much of the premises as should be necessary for such house; that the plaintiff had no title to the real estate in question, that his. pretended title was derived by mesne conveyances from the United States, and that the United States never had any title thereto; that the land is an island which grew up in the bed of the Arkansas river, its ownership being in the state of Kansas as school land and subject to entry, settlement, occupation and proof as such, and that the defendant entered for the purpose of complying with the school-land law and proving up and obtaining title in accordance therewith; “that this court has no jurisdiction to determine the title to said land upon an injunction suit for the reason above stated; that no injunction order should issue in this cause, for the reasons above stated and for the further reason that plaintiff has an adequate remedy at law by way of ejectment or entry and forcible detainer.” Upon final hearing the injunction was made permanent. The defendant declined to offer any testimony, objected to the introduction of any evidence, and appeals, asserting that as title was involved in the suit the court had no right to proceed without a jury, and that the school-land act (Laws 1913, ch. 295), which took effect February 24, 1913, provides a full, complete and adequate remedy at law, thus taking the suit out of the domain of the court’s equitable cognizance. It was stipulated that the land was surveyed by the United States in 1874 and patented in 1875, and the plaintiff made a prima facie showing that it was an island before the admission of the state. The act of 1913 repealed the act of 1907 (Laws 1907, ch. 378), devoting certain islands to the use of the permanent school fund, and authorized the sale as school land of such islands only as had not been surveyed and entered under the authority of the federal government within twenty years prior to the taking effect of the act. While it is argued that this twenty-year provision of chapter 295, and the whole of chapter 296 of the Laws of 1913 assuming to disclaim as to certain islands, are void — on which we express no opinion — still until its repeal by chapter 322 of the Laws of 1915 neither chapter 295 nor any other statute authorized the sale of islands surveyed and entered under federal authority when the land in controversy was concededly surveyed and patented. Defendant’s theory is that the government had no title and its patent granted none because the island belonged to the state, and neither such governmental action nor such legislative enactment as we have before us can divert the state’s title. But even if all this be true, no method existed for selling as school ■ land the island in question. Hence the other very interesting questions arising on the appeal become academic. The decree is affirmed.	[ -15, -22, -12, 30, -118, -64, 106, -102, 104, -77, 36, 83, 109, -45, 4, 121, -13, 41, 81, 120, -57, -73, 66, -53, -112, -13, -48, -35, -67, 93, -18, -41, 72, 48, -54, -41, -58, -64, -63, -36, -114, 5, 11, 76, -45, 72, 52, 123, 82, 11, 49, 59, -13, 45, 24, -61, -23, 44, -53, -83, -87, -8, -114, -105, -33, 6, 17, 37, -6, -127, 104, -88, -112, 49, 4, -24, 115, 38, -122, -12, 79, -103, 40, 38, 98, 17, 61, -17, -8, -103, 14, -67, -83, -90, -110, 72, 66, 96, -66, -103, 117, 16, 7, 114, -25, 4, 30, 104, 7, -117, -42, -77, 15, 60, -111, 3, -21, 35, 32, 113, -61, -90, 94, 97, 114, -101, -113, -104 ]
The opinion of the court was delivered by West, J.: The plaintiff sued to redeem from a deed which he prayed might be decreed a mortgage and for an accounting and to recover $8000 alleged to be due from the defendant executor. After the former decision holding the petition good as against a demurrer (Clark v. Shoesmith, 91 Kan. 797, 139 Pac. 426), it was stated when the trial was reached that no judgment would be asked for any balance, that the plaintiff was asking simply for an accounting to determine whether or not the mortgage had been paid in full and as to whether or not he was entitled to a reconveyance and interest in the land. The trial resulted in a general holding in favor of the defendants, no special findings being returned. The plaintiff appeals upon the theory that the trial court determined the case upon a misapprehension as to correct rules governing such a controversy, and upon the theory that a deed can not be declared a mortgage without direct evidence detailing all the terms and conditions of the agreement. In reality, however, thp appeal practically presents the question: Was the general finding of the trial court supported by the evidence? It is also argued that the action was barred by the statute of limitations and by laches of the plaintiff. The testimony of the plaintiff’s wife was to the effect that in 1894, her brother, John Shoesmith, loaned her husband $4000, taking a note therefor, due in five years at 7 per cent interest, secured by mortgage on a half section of land in Republic county owned by the husband, who also had a school-land contract for forty acres adjoining in Jewell county. In addition to the loan, Shoesmith was to complete the payments for the school land and receive the patent therefor, the plaintiff, however, to retain the management and receive the proceeds. In 1898, in addition to the $4000 already mentioned, the plaintiff owed a $2000 mortgage on the land to one party and a $1500 mortgage to another, and his brother-in-law, Shoe-smith, had paid out about $390 on the school-land tract; that John Shoesmith suggested taking a deed to the land instead of a mortgage and that he would hold it for a while, that plaintiff could manage the land just as he had been doing, and at any time Shoesmith would deed it back. ' The witness drew the deed, and having written the consideration of $1 she testified that Shoesmith remarked that as they had refused $9500 for the half section of land covered by the deed the consideration might be stated at that amount and it was so done; that Shoesmith said, among other things: “I will manage the farm and make it pay off and any time you want the deed back you shall have it.” That he had idle money and would charge a lower rate of interest than those holding mortgages upon the land, and that he could be repaid from the proceeds of the farm; that he thought it advisable to sell the school land and one eighty of the half section and apply it on the indebtedness. The deed for the Republic county land was not immediately delivered, but after having been retained a few months by the plaintiff was by him recorded and sent to Shoesmith. The plaintiff had a tenant on the land named Bothwell, who was farming it on shares, considerable stock was handled, and there was a large amount of personal property on the place. The witness further testified that after a time the relations between Shoesmith and Clark became strained, and that in. about three years from the time the deed was made Shoesmith stated to her that he would deed the land back to her provided she would deed it to the children, reserving a life estate for herself and husband. She testified that upon reporting this declaration to her husband he expressed some dissatisfaction, but stated that it had better be left that way. . Bothwell remained on the farm and seems to have managed it to the satisfaction of Shoesmith. To Bothwell, Clark found fault with Shoesmith, claiming he had not treated him properly. Shoesmith kept a memorandum book in which he entered a detailed account of the transactions concerning the farm, which he’nearly always referred to as “my farm.” With the consent of the plaintiff’s wife and by the aid of Bothwell the one eighty of the Republic county land and the school-land tract were sold. It appears that when the deed was made the land was burdened with debts, including accrued interest on the three mortgages, amounting to eight or nine thousand dollars and possibly more. There was an abundance of testimony that at that time it was worth only $20 an acre, or $6400. It has since become much more valuable. Shoesmith having died, his executor was sued, and the decedent, having willed one-half of the land to the plaintiff’s wife She was joined as a defendant. There was evidence entirely sufficient' to establish the claim that the deed was taken on account of the indebtedness against the land, and while some of the testimony tends strongly to show an understanding and agreement at the.time that upon repayment of the debt the land was to be reconveyed to the plaintiff, other evidence is about as clear that, it was to be deeded back to whomsoever Shoesmith might choose. After receiving the deed Shoesmith in many ways treated the land as his own, referred to it as his own, and seemed inclined to use it for the benefit of his sister, and seems early in the history of the transaction to have abandoned any possible intention to reconvey to Clark- in whom he had no confidence as a business manager. Bothwell testified that in February, 1899, the plaintiff told him he did not own the farm any more, that John owned it, meaning Shoesmith, that he turned it over to John to protect himself, that he expected to have it back inside of eighteen months or probably never; that Shoesmith in conversations frequently stated to Bothwell that so far as Mrs. Clark was concerned he would see that she was cared for but he would not help the plaintiff any more; that Mrs. Clark told the witness in 1905 that her husband thought he was going to get the land but that John was going to give it to her; that she had forgotten just what Shoesmith paid for it, but it was something over $10,000 that he had taken the farm at. In addition to •various statements of Shoesmith and certain entries in his account book apparently recognizing his interest as that of mortgagee, there was other testimony showing statements by him indicating that he considered the land his own, including his will in which he devised to his sister one-half of the remaining 240 acres. The record is voluminous, and numerous items and incidents could be given in line with those already mentioned. John Shoesmith was a wealthy man who was evidently attached to his sister, plaintiff’s wife, and while her testimony as to the transaction in 1898 would of itself amply support the contention that the deed was intended as a mortgage, still much of the other evidence, and especially that showing the way John Shoesmith treated, mentioned and regarded the land and' the complete and absolute dominion over it which he exercised up to the time of his death, all lend support to the conclusion of the trial court — so much support that without undertaking to weigh conflicting oral evidence we can not say that the decision is wrong. „ The wife has already by the will received all or more than would accrue to her by the plaintiff’s success in this action, while the plaintiff himself, who claims now that the evidence shows a payment of the indebtedness, permitted his brother- in-law for some nine years to proceed in practical and open disregard and renunciation of any trust or obligation to re-convey to him; and in view of the entire evidence in the case, the result reached by the trial court must be allowed to stand. . The judgment is therefore affirmed.	[ 82, 110, -76, 61, 74, -32, 35, -118, 64, -95, 37, 115, 127, -126, 4, 109, 112, 41, 80, 106, 71, -77, 7, -55, -110, -77, -39, -51, -11, 89, -12, 87, 76, 48, 66, -75, 102, -62, -63, 80, -114, -124, -119, 76, -39, -64, 48, 35, 16, 8, 53, -82, -13, 47, 61, 67, 109, 46, 107, -67, -48, -8, -102, -123, 125, 7, -111, 37, -100, -63, 72, -86, -108, 53, 0, -24, 115, 54, -122, 116, 73, -103, 40, 102, 98, 48, 49, 107, -104, -104, 47, 119, 29, 38, -46, 88, 3, 109, -66, -99, 125, 16, 7, -10, -26, 13, 28, 108, 5, -49, -42, -79, -113, 60, -125, 3, -21, 3, 48, 113, -51, -30, 92, 67, 50, -69, -114, -39 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action to recover damages for the death of William King, who was killed on May 9, 1914, in a ■collision between two switch engines in the city of Wichita. The action was brought by Sadie King, as administratrix of King’s estate, for the benefit of herself as his widow. The jury returned a general verdict for the plaintiff and answers to certain special questions. The collision occurred about 5 o’clock in the morning at a crossing of the Missouri Pacific and Rock Island tracks near Twenty-first street. The Rock Island track runs nearly north and south and that of the Missouri Pacific nearly northeast and southwest. To the northwest and near the crossing was a transfer track connecting the tracks of the two railroads, on which several box cars were standing. King was the engineer ■of the Rock Island engine, which shortly before the accident was running south towards the crossing, tender foremost, pulling several cars. Besides King and his fireman, there were two switchmen aboard. At Twenty-first street, which crosses the Rock Island track at a point three hundred thirty-two feet north of the crossing, the engine stopped and whistled twice for the crossing, and then proceeded again at a rate of about three or four miles an hour. As the engine was leaving Twenty-first street, one of the switchmen noticed the Missouri Pacific engine coming toward the crossing from the southwest and told the fireman about it. The latter immediately climbed up into his seat and observed that the Missouri Pacific engine, which was then about one thousand feet away, was coming at a rapid rate, and thereafter he kept a watch on the progress of the Missouri Pacific engine until the collision took place, except for a brief moment while the engine was passing the box cars on the transfer track. The fireman had immediately notified King of the approach of the Missouri Pacific engine, telling him that the engine was still coming and that he did not believe it was going to stop for the crossing, and the reply of King was, “Watch him,” or an expression of that import. According to the fireman’s testimony, the approaching engine at this time was still within the limits for stopping; that is, between two hundred and eight hundred feet from the crossing. King made no effort to stop his engine afterwards except that there was a little slackening of speed immediately before the collision. The Missouri Pacific engine, which had no cars attached, approached the railway crossing at a rate of speed estimated by some of the witnesses to be twenty-five miles an hour. King and those with him seemed to have proceeded on the theory that he had the right of way, and that those in charge of the Missouri Pacific engine would stop and give the Rock Island engine time to pass over. The Missouri Pacific engine struck the tender of the Rock Island engine, pinning King underneath and killing him. The jury found that the defendant was negligent in not keeping a proper lookout for the Rock Island engine, also in approaching the crossing at an unlawful rate of speed, and further in running the crossing without stopping and giving the required signals. There were additional findings that the Rock Island engine had the right of way over the crossing, that the fireman saw the Missouri Pacific engine approaching in the distance and informed King that it was coming. It was also found that the fireman said to King that he did not believe that the engine was going to stop, and in reply King said, “Watch him.” There was a further finding that King at that time had his engine under control and could have stopped it in a distance of twenty-five feet but did nothing toward stopping it. It is insisted by the defendant that under the evidence as well as the findings King was guilty of contributory negligence which bars a recovery. The contention is that he was given timely warning of the approach of the Missouri Pacific engine, that his own was then under control running at a rate of about four miles an hour, and yet he did nothing to stop his engine or to avoid the collision. It can hardly be said, however, that the neglect of King was the proximate cause of the collision and of his own death. He had the right of way over the crossing, and when he stopped and whistled, about three hundred and thirty feet from the crossing, the Missouri Pacific engine was then more than a thousand feet from the crossing. He proceeded slowly towards the crossing, and when about three car-lengths from the crossing, or one hundred feet, and although he was told by the fireman that the Missouri Pacific engine was coming and that those in charge of it acted as if they were not going to stop, it can hardly be said he was inattentive to his duties or took no precaution thereafter, because he admonished the fireman to watch them. The fireman who made this statement testified that he did not know whether or.not the Missouri Pacific engine was going to stop, saying: “I did not know positively whether it was going to stop until it hit us.” Notwithstanding the remark of the fireman, King had a right to expect that the other engine would stop and whistle as the rules and regulations required. The Missouri Pacific engine was still beyond the whistling post and in the limits within which the stop was to be made. Naturally he would think that the surmise of the fireman was not well founded, but at any rate he did not neglect the warning, as he said: “See if they stop and whistle.” It does not appear that the fireman told King the result of the watch he was admonished to keep. According to the testimony of the defendant’s witnesses the Missouri Pacific engine afterwards almost came to a stop when it was between two and three hundred feet from the crossing, where it is said one of the switch-men jumped off and went in front of the engine to obtain an order from the bill box. Whatever the fact may have been in this regard, the statement of the fireman that the engine was not going to stop was only a surmise, and the fact that it was made neither convicts nor absolves King of the charge of negligence. He could not absolutely rely on or be governed by the speculation of the' fireman as to whether there was danger in proceeding nor upon his assurances that there was no danger. It still devolved upon him to use his eyes and ears and to exercise ordinary care in handling the engine and in avoiding the collision. The warning of the fireman was, of course, to be taken into account by the jury in determining whether he was exercising due care, but it was still incumbent on King to decide for himself whether or not he could proceed over the crossing. Whether he exercised ordinary care under the circumstances in proceeding was a question for the determination of the jury. The jury have said that notwithstanding the statement of the fireman, King did not fail to exercise due care'; that is, the care which ordinarily prudent persons exercise under similar circumstances. He had a right to assume, and probably did assume, that those operating the Missouri Pacific engine would obey the rules requiring them to stop and signal when they approached the crossing, and that they would yield the crossing to his engine, which clearly had the right of way and was then almost on the crossing. The special findings are not deemed to be inconsistent with the general finding which held King to be free from negligence, and upon the evidence it can not be said as a matter of law that King was guilty of contributory negligence. An objection was made to the admission in evidence of statements made by the engineer and fireman in charge of the Missouri Pacific engine immediately after the collision, wherein it was testified that Norris, the engineer, said to Dotts, the fireman: “I thought you said the crossing was clear,” and Dotts answered: “I did n’t tell you any such damn thing,” or words to that effect. The objection then made was that the evidence was incompetent, was not proper impeaching testimony, and no proper foundation had been laid. The contention now is that the objection should have been sustained because it was hearsay testimony, but, as has been seen, that was not the objection which was made when the testimony was produced. It is next said that the testimony could not be admitted in the case unless it was part of the res gestee. The statements made by them immediately after their engine had struck and overturned that of King, killing him, was, in the nature of things, instinctive and spontaneous. They were made, too, by participants in the collision and so closely connected with the collision as to be a part of it. Within the authority of Denver v. Railway Co., 96 Kan. 154, 150 Pac. 562, the statements were admissible as res gestee. There is some complaint of an instruction as to which of the engines had the right of way at the crossing. There is a rule to the effect that the senior company, which is the Mis souri Pacific, has the right of way where the engines simultaneously approach a crossing, and the jury were advised that if the two engines approached simultaneously the Missouri Pacific became entitled to the right of way, and in that event it was the duty of King to yield it to those in charge of the Missouri Pacific engine. On the other hand, they were told that if the engines did not approach - the crossing simultaneously, but that King’s engine came to a stop and gave the signal before the other had reached the crossing-post or had stopped and given the signal, it could not be said that there was a simultaneous approach to the crossing, and that King would therefore have the right of way over the crossing. Under the testimony, the approach of the Rock Island engine was so much earlier than that of the Missouri Pacific that there is no substantial basis for a claim of simultaneous approach and no possible error could have resulted from the instruction. The charge given fairly covered all the issues in the case, and we find nothing material in the complaint made as to those given or refused. The judgment is affirmed.	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The opinion of the court was delivered by Porter, J.: The action in the district court was to recover the sum of $4490.58, the balance claimed on an account for goods and merchandise sold and delivered by the plaintiff to the defendants from August 2 to November 25, 1913. The defendants filed a voluminous answer, setting up several defenses, including misrepresentation as to the quality of the goods; fraud and deceit; damages to their business; and the further defense of a settlement. Some of the defenses were eliminated by the rulings of the court; others were submitted to the jury, but the only one which needs to be considered in this appeal is that involving the question of a settlement. There is no controversy over the fact that the defendants owed the plaintiff the amount sued for, as the balance due on the account, unless the indebtedness is discharged by the alleged settlement. The jury returned a general verdict in fávor of the defendants and answered certain special questions, and found that the account had been settled as claimed by the defendants. A number of questions are raised by the plaintiff’s appeal, but the only real question remaining for determination is whether the special finding that there was a settlement which bars the plaintiff’s right to.recover is contrary to the law and the evidence. The plaintiff is engaged in the manufacture of automobile tires, casings and tubes. On the 15th of January, 1913, it entered into a written agreement with the defendants by which the latter were to purchase, sell and distribute goods manufactured by the plaintiff. The contract expired by its terms on August 1, 1913. The defendants handled the goods of the plaintiff for the territory surrounding Hutchinson, and did a jobbing and retail business. The contract provided that they were to settle on the 10th of each month for goods purchased and delivered during the month previous, and were to make all adjustments on tires and, tubes that might become necessary under the guarantee of the tire company, in accord with instructions from the plaintiff from time to time; and credit was to be given the defendants for all proper replacements and adjustments made with customers according to the terms of the guarantee, which was on a mileage basis of 3500 miles. Prior to August 1, when the contract expired, the business transacted between the parties amounted to about $40,000. All goods purchased previous to that date had been settled for at the end of each month. As early as July the defendants complained of the quality of - the casings and tubes, and claimed they were obliged to make too many adjustments with customers. There was considerable correspondence between the parties from that time, involving complaints on the part of defendants in regard to the quality of the goods and complaints on the part of the plaintiff that the defendants were too liberal in their allowances to customers in adjustments. Notwithstanding these complaints, the defendants early in September applied for a renewal of the contract for the ensuing season, but two weeks later, while their application was being considered by plaintiff, they entered into a contract for the coming year with another tire company. Meanwhile they continued to order goods from the plaintiff, and their aggregate purchases from August 2 to November 25 amounted to over $15,000. Cash payments were made by them during this time to the amount of $5000. The credits to which they were entitled for adjustments left the balance for which the plaintiff sued. The settlement is pleaded in the answer substantially as follows: The defendants demanded of. plaintiff that the latter accept a return of the goods on hand because of the inferior quality thereof, and give the defendants credit for the cost price; that— “81. . . . thereupon the plaintiff, through its agent, L. A. Brown, informed the defendants that it would settle with them and accept the said tubes, tires and casings which were unsold and promised the defendants that it would send their representative to check over all of the said tires, casings and tubes on hand and give the defendants credit for the amount thereof and accept a return of the saicf goods and discontinue the business dealings provided for in the said contract with the defendants. That thereupon the defendants and the plaintiff, through the said agent, L. A. Brown, and other agents of the plaintiff, G. S. Shugart and Jno. J. Watts, did proceed to make a complete check and invoice of all the tires, casings and tubes on hand in the defendants’ possession in accordance with the said agreement and contract and thereupon these defendants tendered to the said plaintiff all of said tubes, tires and casings unsold and of the aggregate invoice price of about $4800 to the plaintiff and thereupon the plaintiff’s agent, G. S. Shugart, refused to carry out the contract made for a settlement of the matter between the plaintiff and defendants and refused to accept the said tires and casings. “82. Defendants say that said adjustments and settlements were made in good faith by the defendants and that by reason thereof, the refendants are entitled to a credit upon the itemized account exhibited to the plaintiff’s petition, for the full amount of all of said casings, tires and tubes.” L. A. Brown was the sales manager of the plaintiff at Kansas City and the business with the defendants was transacted through his office, except that all payments by defendants were made direct to the general office of the plaintiff at New York City. Albert E. Kirk, one of the defendants, transacted most of the business for the defendants, and his testimony-with reference to the settlement is, that in September, while his application for a renewal of the contract was pending, he had the first conversation concerning a settlement with Brown at Kansas City, in which he informed Brown that he was contemplating making a contract with another tire company for the coming season, and said: “ ‘Brown, you have n’t got anything for me only a lot of junk, I have got to get something else or lose my business,’ and he said, ‘I will take it up with the company.’ He came to Hutchinson — in the meantime he had Mr. Watt come here and check up our tires to see if we had enough to check up our account. Mr. Brown says to me, he said ‘Can I have these tires if I want them?’ I said, ‘Take them, they are yours.’ He said, T will let you know in two or three days,’ and he went back to Kansas City; in a short time after that he called up and said, ‘On Tuesday Mr. Shugart and I will be down to check this stuff out; we will probably want to send it to Kansas City or Wichita.’ ” Kirk further testified: “Q. Did you go over all your accounts and check the whole thing over? A. Yes, sir. “Q. According to this agreement? A. Yes, sir; and we checked up the tires and found that there was plenty to cover the account. “Q. How many tires did you have on hand, in dollars, compared with the. amount of the accounts? A. $6500 and their claimed account was about $4,490, I think, in that neighborhood. “Q. Where were these tubes and casings at that time? A. All setting in the tire racks in our place of business. “Q. You may state whether or not you were able to pay the freight on them to Wichita or Kansas City. A. Yes, sir. “Q. And were you willing to do so. A. Yes, sir. “Q. Did you inform them of that fact? A. Yes, sir. We paid plaintiff under this contract between $35,000 and $36,000 which does not include goods on hand at the time of this settlement.” Over plaintiff’s objections the court admitted in evidence a letter written by the defendants to the plaintiff company dated October 31, 1913, which contained the following statements.: “On July 28th we wrote a letter to your Kansas City branch telling them that unless your tires of the G. & J. line was made to give better service, it would be necessary for us to change to another line. “We have had a constant fight in regard to adjustments we have been making. Have been compelled to raise our percentage of adjustments or lose the privilege of adjusting tires. This was all previous to our signing for the new contract. We were then having considerable trouble, but in the last 40 days we have adjusted $3,000.00 worth of tires. These tires are coming in on us so fast that we notified your Mr. Brown at Kansas City that we would change to another line and that we could not continue to fight with you people in our efforts to give our customers service, and it was injuring our prospects for tire business in this territory. “We later arranged for the Fisk line of tires. Last week your Mr. Brown called the writer up and told him not to ship any of these tires back to the factory, that we had on hand which amounts to hetween $4,000.00 and $4,600.00 worth that had not been settled for, that he and Mr. Shugart would be here the following Tuesday and would probably want to ship them to Wichita or Kansas City, and that they would check them out, inasmuch as we were dissatisfied with them. “Mr. Brown and Mr. Shugart came and we checked up tires unpaid for and found that we were entitled to check back about $4,400.00 worth of tires. However, this does not include Bed tubes, or Wrapped tread casings with the G. & J. brand on them, as these tires and tubes have been giving us good service, and we have paid for these and expect to sell them. “Mr. Shugart positively declined to take these tires over as per Mr. Brown’s agreement over the phone while in Kansas City, and demanded his money and finally wound up by promising us that he would put this matter in the hands of a collector. . . . We would like to know just what disposition you mean to make of this matter, as these tires are here subject to your disposition. These tires were never checked over to the Hutchinson Motor Car Company after dissolution, and the new concern has nothing to do with them. “The writer offered to box the tires in question up and deliver them to the depot, and in case the company wished it, ship them to either Wichita or Kansas City, freight prepaid. We give you timely notice in regard to this matter. . . . Trusting we will hear from you as to what disposition you are making of these tires, at an early date, we are.” The objection to the admission of the letter to support defendants’ contention as to the settlement relied upon are, that it contains many self-serving declarations as to the facts, including statements of an alleged conversation with Brown in which, he is said to have agreed to accept a return of the goods, and the letter appears by its date to have been written after the refusal to accept a return of the goods and when defendants knew that plaintiff was intending to hold them liable for their purchase price. If it was not competent evidence there is force in the claim that its admission was prejudicial error, inasmuch as it is largely made up of a statement by defendants of facts favorable to defendants’ contention relating to the alleged settlement, and the burden of proving the settlement rested upon defendants. The majority of the court are of opinion that, since the writer of the letter appears to have testified substantially to the same facts, and the plaintiff had an opportunity to answer the letter with a denial of the facts if it desired to do so, there was no prejudicial error in the admission of the letter in evidence. Brown was a witness for the plaintiff, and denied that he had ever agreed to take back the goods and credit them on the account, and also denied that he had authority to enter into such an agreement. No testimony was offered to contradict his statement that his authority as agent of the plaintiff was limited to the usual duties of a sales agent and that he was not authorized to receive goods and credit them on a customer’s account. The testimony of defendants is that all remittances for payment in cash were made direct to the company at its New York office. It appears, too, that while Brown made the preliminary arrangements for the contract covering the season of 1913, the contract itself was made with the New York office; that the defendants, when they applied to Brown for a renewal of the contract, knew that the application had to be approved by the company at headquarters. In the first conversation which Kirk testified he had with Brown when the question of the settlement was broached, Kirk said Brown had told him he would “take it up with the company.” On these facts plaintiff insists that no authority to make the alleged settlement is shown, and that, on the contrary, it is self-evident that defendants were fully aware that Brown, as agent, lacked authority to make such an agreement, and decisions are cited to the effect that a sales agent has no implied authority to collect the purchase price of merchandise sold nor to agree to accept a return of the goods in lieu of payment. The majority of the court are of the opinion that there was evidence for the jury to determine the question of the implied, which means the actual, authority of Brown. (See discussion of the law in reference to an agent’s implied as distinguished from his ostensible authority in Wilson v. Haun, ante, p. 445.) From the evidence showing that after Brown agreed to “take it up with the company” he went to Hutchinson, checked up the stock on hand and made the statements testified to by Kirk, the jury might have believed he had obtained from his principal the necessary authority to make the arrangements for accepting the goods in lieu of the cash price. Brown’s testimony is that he went to Hutchinson and checked up the goods on hand and the account with the defendants at the request of the credit department of the plaintiff company, because there was some question respecting the financial responsibility of defendants. It appears that the defendants, who had conducted their business under the name of the Hutchinson Motor Car Company, dissolved their partnership— just when is not stated, but apparently the plaintiff had been informed of the fact before Brown and Shugart, the latter, plaintiff claims, representing the credit department, went to Hutchinson. The jury may have disbelieved Brown’s statement of the purpose of his presence and conduct in checking over the accounts and stock. The conclusion of the court is, that there was sufficient evidence from which the jury might infer that he had actual authority to make the settlement. The plaintiff, conceding, for the purposes of argument, that Brown possessed the necessary authority, strenuously urges that there was no agreement that the contract for the settlement should satisfy the debt, but only that the goods should be taken back and defendants’ account credited with the cost price thereof; that as the agreement was not executed and the goods remained in the possession of the purchaser, there was and could be no payment of the debt by virtue of the agreement until it was fully executed by an acceptance of the goods. On this question the majority of the court holds there was evidence to sustain a finding (which must be regarded as included in the general verdict) to the effect that there was a constructive delivery. Kirk’s testimony is that he said to Brown, “The goods are yours, take them”; also that he informed Brown that he was able, ready and willing to prepay the freight to the place where plaintiff desired them shipped. For the reasons stated, the judgment will be affirmed.	[ -16, 104, -8, -83, 26, 96, 34, -38, 108, -96, -75, -37, -87, -49, 4, 121, -13, 89, 84, 106, -9, -93, 23, -109, -110, -109, -103, -51, -71, 89, 36, -42, 76, 48, -54, -107, 102, -128, 65, 28, -50, -128, 43, -20, -7, 0, 48, 120, 20, 77, 81, -84, -13, 46, 24, -49, 105, 40, -21, 57, -47, -16, -86, 13, 127, 21, 3, 36, -100, 37, -40, 12, -100, 49, 9, -24, 122, -90, -58, 116, 107, -119, 12, 34, 103, 33, 17, -49, -36, -104, 46, -7, -115, -90, 16, 80, 11, 73, -66, -99, 110, 2, 7, -2, -2, 21, 95, 44, 7, -49, -76, -110, 15, 110, -99, 11, -1, -93, 53, 113, -51, -78, 89, 70, 90, -109, -97, -80 ]
Per Curiam: This action was brought by Elias Moser and Simon Fraser upon two promissory notes given by John H. Fraser and secured by said John H. Fraser and his wife, Margaret J. Fraser, by a mortgage upon a lot in Hiawatha, dated May 23, 1888. The petition alleges that on May 30, 1884, said lot was the property of Thomas G. Wagstaff, and said Thomas G. Wagstaff and his wife, Martha P. Wagstaff, conveyed the lot to William Welcome; and William Welcome and his wife, Fannie Welcome, conveyed it to said Martha P. Wagstaff; and that said deed from the Wagstaffs to Welcome and the one from Welcome to said Martha P. Wagstaff were without consideration and made solely to defraud the creditors of said Thomas G. Wagstaff; that in 1887 John H. Fraser recovered a judgment in said court against Thomas G. Wagstaff, and said town lot which had been therein attached was ordered sold to pay said judgment, and said property was on April 6, 1888, sold to said John H. Fraser; that said sale was duly confirmed and a deed made therefor; that since the year 1884 said Martha P. Wagstaff has been a nonresident of this state, and has not been in the state since said date; that Arnold Moser obtained a tax deed on said lot, which was void; and praying-judgment against the said John H. Fraser upon the notes sued on and a foreclosure of the mortgage securing the same; that the deed by which the title was attempted to be conveyed to said Martha P. Wagstaff be declared fraudulent and void and the tax deed set aside. The principal issues in the casé, and the only ones which we are called upon to consider, were between the plaintiffs therein and the defendant, Martha P. Wagstaff, and relate: First, to the question of the validity of the proceedings which culminated in the sheriff’s deed to John H. Fraser; and second, to the validity of the transfer of the lot in question from Thomas G. Wagstaff through William Welcome to said Martha P. Wag-staff. These issues were tried to the court, who submitted certain special questions of fact to a jury and made certain additional findings of his own. As conclusions of law the court found: 1. That the tax deed of Arnold Moser is void and that said Arnold Moser has a first lien on said lot for $219.27. 2. That the plaintiffs recover a judgment against the defendants John H. Fraser and Margaret J. Fraser for $2221.63, to draw interest a,t ten per cent per annum; that the same is a valid mortgage lien on said lot, second and subject only to the lien for taxes in favor or said tax-deed holder. 3. , That the excess in value of said lot over the two liens belongs to Martha P. Wagstaff. 4. That the plaintiff recover costs of said Martha P. Wag-staff. Thereupon judgment was rendered accordingly and the matter brought to this court for review. 1. It is contended by the defendant that the court erred in admitting the attachment order and, return, judgment, order of sale and sheriff’s deed in the case of John H. Fraser v. Thomas J. Wagstaff; first, because no copy of the attachment order was left with the occupant or posted on the premises; second, because the property attached was not described in the return; third, that no lien was created thereby and that the sheriff’s deed was void. The return itself did not describe the property attached, but it referred to the inventory and appraisement which formed a part of it, in which was the necessary description. On the authority of Dunlap v. McFarland, Adm’r, 25 Kan. 488, and Wilkins v. Tourtellott, 42 Kan. 176, 22 Pac. 11, the omission in the return of the statement of service of a copy is a mere irregularity and does not render the attachment void. As the second allegation of error as argued in the defendant’s brief is founded upon the supposed invalidity of the attachment, it requires no special consideration. The second reason why it is claimed the demurrer to the evidence should have been sustained is that there was no evidence to sustain the allegation of the plaintiff that the transfer of title to the lot from Wagstaff to his wife was fraudulent. As was said by Brewer, J., in Kurtz v. Miller, 26 Kan. 314: “A fraudulent purpose is known only to the parties to the transaction, and they do not hasten to tell it. As a rule, fraud, therefore, only is disclosed by the condition of the parties, the details of the transaction, and the surrounding circumstances. The evidence is usually circumstantial.” (p. 318.) We think there was sufficient evidence to go to the jury, and the court did not err in overruling the demurrer nor in overruling the motions of said defendant based upon the alleged insufficiency of the evidence. We have examined the instructions refused and the instructions given, complained of by the defendant, and we are satisfied that the court properly and correctly instructed the jury on the law of fraud as applicable to this case. A careful consideration of all the allegations of error argued by the plaintiffs in their brief fails to satisfy us that the court below committed any reversible error herein. The judgment of the court below is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: A temporary restraining order was obtained, at the instance of the state, against R. S. Litchfield and John M. Landon, receivers of the Kansas Natural Gas Company, and also the Olathe Gas Company, preventing them from advancing the existing rate for gas in the city of Olathe and. in Johnson county. The Olathe Gas Company moved to dissolve the injunction, and it was agreed by the parties that the' hearing upon the motion should be treated as one on the application of the Olathe Gas Company to vacate and on the application of the plaintiff for a temporary injunction. The motion was denied and the temporary injunction issued, and. the Olathe Gas Company appeals. The Olathe Gas Company was engaged in furnishing natural gas to the inhabitants of Olathe and a number of patrons along its line in Johnson county. The gas furnished was partly obtained from its local fields and an additional supply was obtained from the Kansas Natural Gas Company, with whom it had entered into a contract for a portion of its supply. The Olathe Gas Company was operated under a franchise granted by the city of Olathe on August 7, 1908, to parties whose rights, had been assigned to that company, which authorized the company to charge twenty-five cents per thousand feet of gas for one year after the franchise became effective and thereafter thirty cents per thousand. At the time of this suit the one-year limit had expired and the company had given notice of a proposed advance in the rate. At the time the. franchise was-granted the Olathe Gas Company had been supplying its. customers from the local wells which it owned, but within a few days after the franchise was obtained the company entered' into the contract with the Kansas Natural Gas Company for an additional supply of gas. In fact, the Olathe franchise was obtained in contemplation of making the contract with the Kansas Natural Gas Company. Since the execution of that contract the principal part of the gas has been furnished by the Kansas Natural Gas Company, and that, with the gas obtained from the local wells, has made, we are told, an adequate supply for the people of the city. The Kansas Natural Gas Company, with which the Olathe Gas Company contracted, has been engaged in transporting gas through Kansas and into Missouri. The gas which it has sold has been delivered to consumers in the communities and cities along its pipe lines by distributing companies that were operating under franchises granted by the respective municipalities. The contract with the Olathe Gas Company differs from that made with other distributing companies in that part of the supply of gas furnished the people of Olathe and the nineteen patrons outside has been obtained from its own wells. In a litigation between the state and the receivers of the Kansas Natural Gas Company as well as the distributing companies, it was determined that the power of fixing the rates to be charged consumers was vested in the public utilities commission and that application for an increase in rates must first be presented to that commission. (The State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22.) The trial court at first granted the temporary injunction preventing the proposed increase of the rate from twenty-five cents to thirty cents per thousand, but at a later time and after a showing that the public utilities commission ■had made an order permitting distributing companies to charge .twenty-eight cents per thousand, the court modified its former '¡order so as to permit the Olathe Gas Company to charge the itwenty-eight-cent rate as fixed by the utilities commission. The contention of the Olathe Gas Company is that it has a franchise from the city of Olathe, a city of the second class, which permits it to charge the thirty-cent rate; that the company is principally engaged in supplying the people of the city of Olathe, since it furnishes gas to no one outside of the city except to nineteen farmers residing near its pipe line; and that the public utilities commission has no authority to fix the rate which it shall charge. On behalf of the state it is contended that the Olathe Gas Company, under its contract with the Kansas Natural Gas Company in contemplation of which the Olathe franchise was obtained, became the agent of the Kansas Natural Gas Company and is therefore subject to the jurisdiction of the public utilities commission. If the contention of the state is correct the order of the district court must be upheld. No question is raised as to the validity of the franchise obtained from the city of Olathe nor as to the purpose of any of its provisions. It does not appear that the city has attempted to change the rates specified in the franchise and it does appear that the public utilities commission has not authorized an increase of the rate. Neither party has offered testimony as to what would be a reasonable or compensatory rate to be charged for gas. The controlling question in the case is whether the Olathe Gas Company, in the position which it has chosen to take, is subject to the jurisdiction of the public utilities commission so that the rate to be charged for gas can not be increased except with the concurrence and authority of that tribunal. If it is an agency of the Kansas Natural Gas Company and its receivers in the sale and delivery of gas to the consumers, it is necessarily within the jurisdiction of the utilities commission.. In The State, ex rel., v. Flannelly, supra, the relation of the distributing companies to the Kansas Natural Gas Company was considered, and it was said “these distributing companies act as the agents of the Kansas Natural Gas Company in the distribution and sale of gas.” (p. 378.) The relationship of the distributing companies to the Kansas Natural Gas Company was practically conceded in that case, but it is insisted here that the Olathe Gas Company stands in a different relation because of the peculiar provisions in its contract and under which it sells and distributes more gas than is obtained from the Kansas Natural Gas Company. The provisions of the contract which it made with that gas company must determine the capacity in which it is acting. In describing the parties to the contract the Kansas Natural Gas Company is designated as the “gas company” and the Olathe Gas Company as the “agent.” The relations of the parties were considered when the contract was executed, and that the franchise from the city must be considered in connection with the contract in determining the relationship follows from the recitals in the latter. It is recited that the agent is about to become the owner of a franchise to maintain a system for the sale and distribution of gas in the city, and has some wells about nine miles from the city from which it has been obtaining gas, but this supply has become insufficient and is expected to diminish until it is exhausted, and that therefore the Olathe Gas Company has asked for the appointment as agent of the Kansas Natural Gas Company, and that the appointment had been made. It is agreed, in effect, that the gas company would lay a branch line from its trunk line to the limits of the city and should install a reducing station there through which gas would be delivered into the system of the agent; that the gas company should deliver a volume of gas sufficient, with what the agent obtained from the local wells, to maintain a pressure not exceeding six ounces to the square inch, and if unable to furnish that pressure to all distributors it would furnish a pro rata share of its production. The agent of the company is specifically given “the sole and exclusive agency to distribute, market and sell its natural gas for domestic and manufacturing purposes,” the agency to continue until August 7, 1928. This exclusive agency is declared to be a personal one which can not be transferred without the consent of the gas company. It is agreed that the agent shall keep up its system of pipes, mains and attachments in a condition sufficient to supply the inhabitants with gas and distribute and sell the same to the people, and that all the expense of maintaining the system and of making the sale and distribution is to be borne by the agent. It is required to charge a certain maximum rate to consumers, and a penalty is to be assessed against those who fail to pay bills promptly when due, and a minimum rate is to be fixed. The agent agrees to sell no gas for other than domestic purposes without the written consent of the gas company, and it is provided that it may sell for manufacturing purposes at prices to be fixed by the gas company, but that the right to do this may be withdrawn by the gas company absolutely or it may fix new prices and terms which likewise will be subject to withdrawal at its pleasure. The agent agrees to furnish and install meters through which it shall receive gas from its local fields, and during the months of December, January and February it is to receive all the gas which, with that obtained from the local fields, will fully supply the demand, and through each of the other nine months to receive the same proportion sold for that month as the amount received by it from the gas company during the three preceding months of December, January and February bears to the total receipts from the gas company and local wells during those three months, but that during each of the nine months the agent shall account and settle for such proportion of gas “whether it receives the same in that month or not, the Gas Company being ready and able to deliver it.” Provisions are made for measuring the gas received from the different sources of supply, and it is specified that no part of the gas furnished free by the agent to the city shall be charged against the gas company until, the supply from the local fields is exhausted. It is further provided that the agent shall distribute and sell the gas delivered to it and account to the gas company for sixty-six and two-thirds per cent of the gross sales, including the minimum charges and penalties for delinquencies in payment, and seventy-five per cent of that sold for manufacturing purposes. The agent agrees to read its meters, and to keep copies of all contracts and accounts with consumers, which shall always be open for inspection by the gas company. In consideration of the exclusive agency granted by the gas company, the agent agrees that it will not distribute and sell the gas of other persons and companies. In the contract “it is expressly understood and agreed that the title to the gas which shall be delivered to the Agent by the Gas Company for sale under the terms hereof shall be and remain in the gas company until sold and delivered to the consumer,” but that the agent is to accept the gas at the reducing station and bear all the risk and expense of distribution after the gas has passed that station. There are many other provisions in the contract, but these are the ones that bear most directly on the relationship of the parties. The provisions of the contract indicate that the Olathe Gas Company, which designated itself as agent of the Kansas Natural Gas Company, intentionally entered into the relationship of agency with that company. The name given or assumed is not controlling, of course, but the intention and character of the relationship is sufficiently shown by the undertakings of the parties. The contract contains evidence both of the appointment by the principal and its acceptance by the agent. While the agent bears the expense in the distribution and includes some of its own gas in that which it distributes through its mains, it is done under the supervision and control of the gas company; and that there might be no question of its control and of its position as principal, the contract expressly recites that the gas company shall remain the owner of the gas until its delivery to the consumers. By the contract the Olathe Gas Company has in effect made itself and its system of distribution a part of the system of the Kansas Natural Gas Company. As we have seen, the obtaining of the franchise was one of the considerations for entering into the relationship and the privileges of the franchise are made subjects of the contract. Together they show that the re-relationship is that of principal and agent father than buyer and seller. Nothing is seen in the contract with the Olathe Gas Company which takes it out of the decision made in The State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22, as to the attitude of the distributors, where it was held that the distributing companies are to be regarded as the agents of the gas company, and in the matter of rates are subject to the control of the public utilities commission. The judgment of the district court is affirmed.	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The opinion of the court was delivered by DAWSON, J.: The appellees brought this action in the district court of Wyandotte county against the appellant, in which they alleged their ownership of a certain lot in a suburb of Kansas City; that the defendant for long prior to May, 1910, had owned certain lands known as Spring Valley Addition adjacent thereto on the west; that prior to May, 1910, there was a run ning stream which flowed through the defendant’s lands and along the west side of the plaintiffs’ lot; that the defendant carelessly and negligently filled up the channel of the stream so that it flowed directly east to plaintiffs’ lot and away from its natural channel, and that in May, 1910, the waters of the stream flowed over ijhe plaintiffs’ lot and damaged their building, fences, household goods and clothing to the extent of $400, and permanently depreciated their property in the sum of $600. They asked judgment for $1000. Defendant’s answer was a general denial. Thé jury made special findings of fact, and awarded damages to plaintiffs in the sum of $475. The court overruled defendant’s motion for a new trial upon condition that the plaintiffs would remit $200 on the verdict. This the plaintiffs did; and judgment was rendered against defendant accordingly. The defendant appeals and assigns error: (1) in overruling defendant’s demurrer to the evidence; (2) in refusing certain instructions; (3) in overruling defendant’s motion for judgment; and (4) in refusing judgment on the special findings. 1. It is urged that the demurrer should have been sustained because the plaintiffs were not the owners of the property. There can be no cavil about their ownership of the household goods and clothing. Touching their ownership of the realty, it was shown that the plaintiffs had bought the land and entered into possession under a contract of purchase in 1907, although they did not receive a warranty deed to the realty until October, 1910, some months after the damages alleged. Ordinarily one who buys real estate and enters into possession under a contract of purchase is the owner of it against all comers, excepting possibly the vendor holding the legal title, and may maintain an action as owner for damages to the property. (Civ. Code, § 25; St. L. L. & D. Rld. Co. v. Wilder, 17 Kan. 239, syl. ¶ 6; Mooney v. Olsen, 21 Kan. 691; Burke v. Johnson, 37 Kan. 337, 15 Pac. 204; Goodrich v. Comm’rs of Atchison Co., 47 Kan. 355, 361, 27 Pac. 1006; Christy v. Richolson, 48 Kan. 177, 29 Pac. 398; Mulvane v. Lumber Co., 56 Kan. 675, 44 Pac. 613; Steele v. Dye, 81 Kan. 286, 290, 105 Pac. 700; Banchor v. Proctor, 88 Kan. 510, 129 Pac. 526; 25 Cyc. 1549; 6 Words and Phrases;, p. 5134.) Defendant also contends that the waters which flooded plaintiffs’ property constituted “an act of God.” An “act of God” as known in the law is an irresistible superhuman cause such as no ordinary or reasonable human foresight, prudence, diligence and care could have anticipated and prevented. (1 Cyc. 758.) It is usually applied to convulsions of nature, like earthquakes, unprecedented floods, violent winds, tempests and droughts. (1 Bouvier’s Law Diet., Rawle’s Revision, p. 79.) There was testimony that the May flood in 1910 which caused the damage was not unprecedented; that “many a time’-’ such heavy rains had fallen before. Clearly this was a question for the jury. The court’s instructions fully covered the point and ■the demurrer was properly overruled. 2. It is next urged that defendant was entitled to a peremptory instruction that the jury should return a verdict in his favor, on the ground that he was not the owner of the property upon which the new channel was dug and which ■carried the flood waters on to plaintiffs’ lot and destroyed their property. While the fee was held by the defendant’s wife, much of the evidence tended to show that his business firm advanced a large sum of money for its purchase, that he had caused the change to be made in.the channel of the stream, that he participated in platting the land, that he paid the taxes, advertised the platted lots for sale, sold lots, received payments and gave receipts in payment for lots, directed workmen in filling the old channel and in making the new channel. The defendant’s ownership could not have been settled by a peremptory instruction to the jury under this state of the.evidence. S. Nor can it be doubted that plaintiffs sufficiently alleged and that their evidence tended to prove actionable negligence. If the new channel had been adequate to carry the flood waters, plaintiffs would not have been damaged. As the old channel flowed, their property, real and personal, would have been above, or chiefly above, the point where the waters left defendant’s land. There was some evidence that the flood waters which did the damage came from another direction and not from defendant’s land. That was only a question for the jury. 4. But it is said that the jury found specially that the waters which did the damage were flood waters. But as the flood waters were wont to flow before defendant changed the channel, they could do no damage to plaintiffs. When he changed the channel he should have taken into account the capacity needed to carry off the probable volume of waters in a freshet. This, according to some of the testimony, he did not do. Nor can it be fairly said that the water was all surface water. Some of the evidence showed that the old channel, colloquially known as the “Sea Serpent,” was a living stream with natural springs in its course, and that men brought their horses there for water. (Rait v. Furrow, 74 Kan. 101, 85 Pac. 934; Manufacturing Co. v. Bridge Co., 81 Kan. 616, 106 Pac. 1034; Roland v. Railway Co., 82 Kan. 546, 108 Pac. 808.) Objection is made that the evidence did not warrant the jury’s special finding that the defendant was the “joint owner” of the property. No hypercritical interpretation should be given to this language. Obviously the jury sought for a practical term to characterize the defendant’s ownership or interest in. the property, taking into account the fact that the fee was vested in his wife and that under the evidence and the court’s instructions the defendant also had such interest in and dominion over the property as to rise to the dignity of ownership. Reviewing this case in full, it appears that it presents no legal difficulties whatsoever. It was a case which turned largely upon facts which had to be sifted from conflicting testimony; and since the result is practically free from such errors as would warrant the interference of an appellate court, the judgment must be affirmed.	[ -13, 110, -80, 15, -100, 104, 40, -120, 91, -79, -76, 91, 11, -54, 8, 121, -30, 121, -15, 121, 68, -77, 15, -126, -46, -13, -8, 69, -71, 93, 116, -57, 76, 48, 74, -107, -58, -62, -43, -36, -114, -122, -119, 68, -61, 64, 52, 107, 66, 74, 49, 31, -13, 42, 25, -61, 41, 44, -21, 57, 97, -8, -118, 87, 127, 22, 33, 37, -108, 3, 72, -86, -112, 49, 3, -20, 119, 38, -106, 116, 37, -101, 44, -30, 99, 35, 5, -17, -8, -104, 46, 95, -115, -90, -112, 88, 67, 105, -74, -99, 125, 6, 7, -10, -20, -123, 93, -20, 7, -49, -108, -77, -113, 52, -118, 1, -33, 3, 33, 96, -51, -30, 92, 67, 18, -101, -113, -7 ]

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