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The opinion of- the court was delivered by
Porter, J.:
In this case the father of a deceased employee of a railroad company is suing a hospital association for neglect of its physicians and attendants in not giving to the son suitable care and attention. The defendant is an association maintained by the railroad company for the treatment of its 'employees while sick, and is supported by the monthly contributions of all its employees; and, so long as they continue in the employ of the railroad company, contributors to the fund are entitled to medical aid, surgical attendance and medicines free of charge.
The petition alleges that plaintiff’s son became ill at his boarding house in Topeka while in the employ of the railroad company and was being cared for and treated there by competent physicians; that while in that condition he was removed against his protest to the hospital by the agent of the company; that they carried him from a warm, comfortable room into the outer air and failed to protect his person from the cold; that he became chilled and suffered an attack of pneumonia from the effects of which he died. It is further alleged that after his removal to the hospital the defendant wholly failed to give him medical treatment and professional care during his illness; that he was taken to what is known as the convalescent ward of the hospital where the windows were kept open, subjecting him to drafts of cold air without sufficient bed covering; that no stethoscope was used to discover the condition of his lungs, and no effort was made by any of the physicians, servants or attendants of defendant to deter mine his condition until a few hours before his death. It is alleged that his death was the result of these acts of negligence on the part of the association by its physicians and attendants.
The trial cpurt sustained a demurrer to the petition. Plaintiff elected to stand upon his petition, and appeals.
All contributors to the fund by which the association is maintained are entitled, so long as they remain in the employ of the railroad company, to the benefits of the hospital. They may in case of accident, sickness or disease of any kind be taken to the hospital where they are given, free of all expense, such medical or surgical care and attention as may be necessary. The institution is maintained for the mutual benefit of the contributors to the fund, and in no sense is it maintained for profit. Its liability to a patient for injuries resulting from negligent failure of the physicians and attendants in its employ properly to care for the patient must be determined upon the same principles of law which govern similar actions against eleemosynary or charitable associations conducting hospitals. The rule seems fairly well established that charitable associations conducting hospitals are not liable for the negligence of their physicians and attendants resulting in injury to patients unless it is shown that the association maintaining the hospital has not exercised reasonable care in the employment of its servants and physicians. This rule has been applied to a case where the patient who claimed to have been injured occupied a room in a building maintained in part by donations notwithstanding she paid full compensation for her own care and treatment. (Duncan v. Nebraska Sanitarium & Benevolent Ass’n., 92 Neb. 162, 137 N. W. 1120.)
On the other hand it was held that where a railroad company maintained a hospital under the same plan as in the present case, but made each year a profit of several thousand dollars which went to the credit of the railroad company, it was liable for the negligence of its hospital employees. (Texas and Pacific Coal Company v. Connaughton, 20 Tex. Civ. App. 642, 50 S. W. 173.)
A case more directly in point is Union Pac. Ry. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14. The action there was sought to be maintained against the railroad company. It was held that if the company had used reasonable care in the selection of its physicians and attendants, that was all the law required of it.
This court, in A. T. & S. F. Rld. Co. v. Zeiler, 54 Kan. 340, 38 Pac. 282, approved the doctrine of the Artist case, swpra, so far as it applies to the duties and liabilities of a railroad company in calling a physician or surgeon to care for an injured employee or passenger. In the opinion the court said:
“The law is well settled that a railroad' company having used reasonable care in his selection is not chargeable with the want of skill in a physician or surgeon whom it calls for a passenger or injured employé, and this is so even where the law requires a steamship company transporting immigrant passengers to carry a physician. (O’Brien v. Steamship Co., 154 Mass. 272, 28 N. E. 266; Laubheim v. Steamship Co., 107 N. Y. 228, 13 N. E. 781; Secord v. Railway Co., 18 Fed. 221; U. P. Rly. Co. v. Artist, 60 Fed. 365.) ” (p. 350.)
In the present case the petition does not state that the hospital association failed to use reasonable care in this respect. Plaintiff attempts to avoid the necessity of such an allegation by insisting that it makes no difference how skilled or efficient the servants and physicians of defendant may have been, for the reason that he seeks only to recover for the failure of the physicians and servants to give his son treatment of any kind. But this is a narrow contention, in view of all that is said in the petition. The names of several physicians in the employ of the association are given in the petition; it is said that plaintiff’s son was taken there while sick; that the physicians and attendants in the employ of the defendant neglected him, and that from the neglect his death resulted. There is a complaint that a stethoscope was not used to determine the nature of the disease or the condition of the patient’s lungs. The whole petition taken together shows that plaintiff is attempting to recover damages for the negligence of the physicians and attendants who are said to be employees of the defendant, in their failure to give to his son proper medical care and attention. Of course it is not claimed that the physicians neglected the patient intentionally or maliciously; all that is claimed is that the physicians and attendants at the hospital neglected to give him proper medical attention in time to prevent his death.
Under the authorities cited as well as by the weight of reason the plaintiff is not entitled to recover on the facts stated. Suits of this nature against associations not established for profit, but for the purpose of mutual benefit, ought not for reasons of sound public policy to be encouraged. Employers of large numbers of workmen should be encouraged to establish institutions of this kind for the mutual benefit of their employees. It is well known that the employees of the railroad company are entitled to medical and surgical care in the hospital regardless of the nature of their employment or the cause or occasion of their sickness. Doubtless in many instances employees are enabled to avail themselves of these benefits when otherwise, because of their financial condition, they would be unable to obtain necessary' medical care and attention.
The judgment sustaining the demurrer to the petition is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to determine the rights of the parties to a contract for the exchange of property. The plaintiff agreed to convey a tract of land in Kansas to the deféndant. The defendant agreed to convey land in Nebraska and to transfer other property in Nebraska to the plaintiff. Besides this, the defendant agreed to make a cash payment, give his note to the plaintiff for $1750, and assume a mort gage on the Kansas land. The contract provided that the plaintiff should not convey the Kansas land until the defendant paid the note and that if the note were not paid when due the defendant should forfeit all money paid and property transferred to the plaintiff. The defendant gave the note,made the cash payment, and conveyed and transferred the Nebraska property. When the note became due he refused to pay it. The plaintiff then brought suit to enforce the forfeiture provided for in the contract and to quiet his title to the Kansas land, the defendant having filed the contract for record. The defense was that the plaintiff was not entitled to enforce forfeiture, that the contract had been procured by fraud, and that the defendant was entitled to rescission, cancellation and damages. After a trial the court found the contract had not been induced by fraud, and stated the following among other conclusions of law.
“Second: A provision for forfeiture should not be enforced when it is inequitable to do so, or when the amount is not of proportion to the loss sustained by the party claiming the forfeiture.
“Third: No fraud in the procurement of the contract being shown, it should be enforced to the extent that the deeds to the Kansas land be delivered to the defendant, and his title quieted therein.
“Fourth: The prayer of the plaintiff to quiet title should be denied.”
The judgment was that the plaintiff convey the Kansas land to the defendant. The plaintiff asked that he be given a lien on the Kansas land for the amount of the note with right to sell as upon execution. The request was denied, and the court declined to make any adjudication whatever respecting the note. The plaintiff appeals.
The note is an enforceable obligation against the defendant or it is not. If it is enforceable the amount of it should be declared to be a lien upon the Kansas land. If it is not enforceable it should be delivered up and canceled. The judgent of the district court should not have halted in the solution of" the rights of the parties, but should have-put an end to the entire controversy.
The defendant argues that the plaintiff framed his own case, demanded relief which equity forbids should be granted, and consequently can not complain because the court did not award some other relief. The petition and the answer, however, brought before the court the entire transaction and all the differences between the parties respecting it. When this was done the statements in the petition and answer of the relief to which the pleaders supposed themselves to be entitled became of minor importance. The policy of equity to make a full and complete adjudication of any subject presented for adjudication, the policy of the revised civil code to avoid a multiplicity of suits and to make one complete adjustment of disputes between litigants, and justice to the plaintiff and defendant under the particular circumstances of this case, all required that the court should leave nothing undetermined which might be the foundation of further litigation respecting the transaction investigated.
The findings of fact and conclusions of law already stated will stand, but the cause is remanded to the district court to proceed further in accordance with this opinion.
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The opinion of the court was delivered by
Burch, J.:
The will of T. J. Collins, deceased, contained the following bequest.
“Eleventh. I give, devise and bequeath to the Old Ladies Home of Leavenworth, Kansas, the sum of eight thousand ($8,000.00) dollars.”
Claiming to be the beneficiary intended, the plaintiff made application to the probate court for an order for payment of the amount of the bequest to the plaintiff. The application was denied and the plaintiff appealed to the district court. After a trial the district court sustained the action of the probate court and the plaintiff appeals.
The district court made very full findings of fact. The last finding reads as follows:
“Prom the evidence I find as a fact that by the eleventh paragraph of said will Mr. T. J. Collins did not intend to give to ‘The William Small Memorial Home for Aged Women, at Leavenworth, Kansas, $8,000.00 or any other sum.”
It is argued that this finding is merely a conclusion of fact derived from specific facts previously found. The finding is a finding of the ultimate fact in issue, the intention of the testator. Conceding that the validity of the finding might be affected by other findings, there is none which is inconsistent with it. The plaintiff argues that the will must be interpreted to prevent intestacy if possible, and then argues from other provisions of the will and the facts and circumstances stated in the findings that the plaintiff sufficiently identified itself as the beneficiary named in the will. No useful purpose would be subserved by debating the facts with the plaintiff. This court is satisfied with the conclusion reached by the district court and its judgment is affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
Robert Hadley was convicted of driving under the influence (DUI) and transportation of an open alcoholic beverage container and sentenced. Hadley filed a notice of appeal from the judgment of conviction. The Court of Appeals dismissed the appeal on the ground that the notice of appeal had not been filed within the 10-day limitation period of K.S.A. 22-3608(c). Hadley’s petition for review was granted by this court on November 8, 1996. The parties were directed to brief the jurisdictional issue as well as the issues on appeal.
On December 6,1994, the dispatcher sent Officer Ernest Mazza of the Dodge City Police to a convenience store on East Trail “in reference to a disorderly male, who they identified by the name of Robert Hadley.” Before Officer Mazza got to the convenience store, his attention was diverted to a truck stop. At the truck stop, an employee told Officer Mazza that Robert Hadley had left in a red Ford pickup and had gone “over the overpass south.” When Mazza got to the top of the overpass, he could see a red Ford pickup turning into the parking lot of the convenience store. A check of the license tag showed that it belonged to Robert Hadley.
Officer Mazza went over to the red truck. The driver, Hadley, rolled his window down and asked in a slurred manner what the officer wanted. Getting out of the truck at the officer’s request, Hadley almost fell. Officer Mazza could smell a strong odor of alcohol on his breath. Hadley showed other indications of intoxication — a wooden expression and glazed eyes.
Officer Mazza asked Hadley to perform field sobriety tests. Hadley said he was stiff and unable to do the walk-and-tum because he was old. Mazza testified, “He had to keep holding himself up on a vehicle.” According to Mazza, “Due to his obvious intoxication, I placed him under arrest.”
In the meantime, Officer Schwearing arrived. After defendant was arrested, Schwearing searched the vehicle and found an open bottle of whiskey behind the driver’s seat. The bottle was admitted into evidence.
Defendant was taken to the police station. After being read the implied consent advisory form, defendant refused to take a breath test. He was asked to repeat the sobriety tests. Defendant was able to stand on one leg only 7 seconds, and he was unable to do the walk-and-tum properly or complete it. His attempts were videotaped, and 8 minutes of the videotape were admitted into evidence and viewed by the trial judge. When asked to recite a short segment of the alphabet beginning with a letter somewhere in the middle, Hadley started with A and went through Z. He also failed to follow instructions when asked to touch his finger to his nose with his head tilted back.
Officer Mazza had 8Vz years’ experience in law enforcement, approximately 80 hours of DUI detection and apprehension training, and had made approximately 150 arrests. On this occasion, Officer Mazza observed Hadley driving his truck for a short distance and further observed him for approximately 30 minutes after stopping him. In Officer Mazza’s opinion, Hadley was under the influence of alcohol and, as a result, was unable to operate a vehicle safely. His opinion testimony was admitted over defense counsel’s objection.
Sergeant Robert Strader of the Dodge City Police was at the police station when Officer Mazza brought Hadley in. Strader testified that there was a strong odor of alcoholic beverage from Hadley’s breath, his speech was slurred, and his eyes were bloodshot. He also testified that Hadley was unable to keep his balance while trying to do the sobriety tests. Although Strader had not observed Hadley driving on the night of the arrest, he was of the opinion that Hadley could not have operated a vehicle safely due to his being under the influence of alcohol. His opinion testimony was admitted over defense counsel’s objection.
Judgment was entered in municipal court against Hadley on charges of DUI and transportation of an open alcoholic beverage container. After sentencing, Hadley filed a notice of appeal of his convictions and sentence to district court. Trial took place in the district court on February 14, 1996. Before adjourning, the trial judge announced from the bench that he found Hadley guilty of both offenses. Upon being advised that Hadley already was in treatment for alcohol abuse, the trial judge stated to the city prosecutor and defense counsel: “[I]f you would, please prepare a release for your treatment providers, Mr. Hadley. And, I will leave the sched uling to the two of you for sentencing. I suppose that could occur any time after we get [Hadley’s treatment records] released.” The journal entry of conviction is file-stamped July 2, 1996. According to the journal entry of sentencing, sentencing occurred on March 15, 1996. The journal entry of sentencing is file-stamped June 17, 1996. The notice of appeal to the Court of Appeals was filed in the district court on July 2, 1996. It states that Hadley “does hereby appeal to the Court of Appeals . . . from the decision made and entered on the 14th day of February, 1996, and filed on the 2nd day of July, 1996.”
In an order dated September 11, 1996, the Court of Appeals dismissed the appeal for lack of jurisdiction. The reasoning of the Court of Appeals was as follows:
“A criminal defendant has 10 days from judgment to file a notice of appeal. K.S.A. 22-3608(c). Judgment in a criminal case is sentencing, and the time to file a notice of appeal runs from oral pronouncement of sentence instead of the filing of a journal entry. State v. Bost, 21 Kan. App. 2d 560, Syl. ¶ 1, 903 P.2d 160 (1995).
“In the present case, Hadley was sentenced on March 15, 1996, but did not file his notice of appeal until July 2,1996, beyond the 10-day limitation of K.S.A. 22-3608(c). . . . This court lacks jurisdiction over the appeal because the notice of appeal is untimely.”
We first determine if this court has jurisdiction of the appeal. K.S.A. 22-3608 provides:
“(a) If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court’s power to modify the sentence. The power to revoke or modify the conditions of probation or the conditions of assignment to a community correctional services program shall not be deemed power to modify the sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.
“(b) If the imposition of sentence is suspended, the defendant may appeal from the judgment of the district court within 10 days after the order suspending imposition of sentence. The provisions of this subsection shall not apply to crimes committed on or after July 1, 1993.
“(c) For crimes committed on or after July 1, 1993, the defendant shall have 10 days after the judgment of the district court to appeal.”
By eliminating variables and conditions, the legislature simplified calculation of the deadline for filing a notice of appeal for crimes committed on or after July 1, 1993. It does not appear, however, that the legislature succeeded in enacting a plain and completely unambiguous formulation. Defense counsel attached to the petition for review an affidavit, which states in part:
“1. My name is Leslie Phelps Hess and I was counsel for the defendant/appellant during the district court trial of his D.U.I. and transportation of an open container ticket in Ford County and the subsequent appeal to the Court of Appeals.
“2. After the court trial’s finding of guilt upon the defendant/appellant, the defendant/appellant requested trial counsel to appeal the judge’s decision.
“3. The defendant/appellant was notified by counsel that an appeal could not be filed until such time as the journal entry of conviction had been filed and the sentencing had occurred.
“4. It has always been the defendant/appellant’s intention to appeal the district court’s finding of his guilt on the D.U.I. charge and the transportation of an open container charge.
“5. The sole reason the appeal was not timely filed was based upon the mistake of defense counsel in this matter.”
The possibility of construing K.S.A. 22-3608(c) as Ms. Hess did lies in the legislature’s use of the term “judgment” rather than a more descriptive phrase such as “pronouncement of sentence in open court.” The Court of Appeals cited State v. Bost, 21 Kan. App. 2d 560, Syl. ¶ 1, 903 P.2d 160 (1995), for the definition of judgment in a criminal case as sentencing and the rule that the time to file a notice of appeal runs from oral pronouncement of sentence instead of the filing of a journal entry. Thus, it appears that accurate construction of the statute requires knowledge of or reference to case law in addition to consultation of the statute.
In State v. Shortey, 256 Kan. 166, 884 P.2d 426 (1994), the court considered the request of a defendant in circumstances similar to those in which Hadley finds himself. The notice of appeal filed by Shortey’s counsel was untimely. An affidavit of the appointed counsel responsible for the fifing of the notice of appeal stated: “ 1 didn’t realize that Notice of Appeal needed to be filed earlier. If that is indeed the case, it is wholly my fault, as Mr. Shortey has taken every step to insure that his appeal is prosecuted.’ ” 256 Kan. at 168. The court summarized the applicable principles as follows:
“[I]n general, Kansas appellate courts do not have jurisdiction to entertain an appeal in a criminal case unless a notice of appeal is filed within the time established by the statute. However, in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), we recognized an exception to the general rule where in the interest of fundamental fairness ‘a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or wasfurnished an attorney for that purpose who failed to perfect and complete an appeal.’ (Emphasis supplied.)” 256 Kan. at 167-68.
The court concluded that in the circumstances described in the affidavit of Shortey s counsel, “the exception set forth in Ortiz should be applied.” 256 Kan. at 168. Accordingly, the court entertained the appeal.
The City argues that the court wrongly recognized an exception to the strict rule governing appellate jurisdiction. The City would have this court overrule cases such as Shortey, 256 Kan. 166, State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and Brizendine v. State, 210 Kan. 241, 242-44, 499 P.2d 525 (1972). We decline to do so.
The uncontroverted affidavit of Hadley’s counsel, in which she assumes complete responsibility for the untimely filing of the notice of appeal, sufficiently establishes that it was the attorney who failed to perfect the appeal. We find Shortey to be controlling and will consider the appeal on its merits.
We first consider the admission of the opinion testimony of the police officers regarding Hadley’s intoxication. Hadley suggests that the court’s review of this issue is unlimited because it involves a conclusion of law. In fact, the measure applied by this court to questions of the admissibility of opinion testimony is as follows:
“ The admissibility of expert testimony is a matter to be determined by the trial court in the exercise of its discretion. The trial court’s determination will not be overturned absent an abuse of such discretion which results in prejudice to the party whose testimony was excluded. Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 3, 822 P.2d 591 (1991). ” Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762, 915 P.2d 86 (1996).
Hadley relies on State v. Steadman, 253 Kan. 297, 855 P.2d 919 (1993), for the proposition that a police witness’ opinion about defendant’s guilt is inadmissible. There, the court stated:
“In a criminal trial, the defendant has the right to have the jury determine from the evidence whether the defendant is guilty or not. The police witnesses can testify from their experience as to a role the defendant played in an illegal enterprise — they cannot testify that in their opinion the defendant was guilty of the crime.” 253 Kan. at 304.
In Steadman, the police witnesses were permitted to testify “that in their opinion[s] the defendant was guilty of the crime and exhibited the pressure felt by a guilty person, other persons interviewed were not guilty of the crime, and there was sufficient probable cause for the issuance of a search warrant for the defendant’s residence.” 253 Kan. at 304. For example, one officer testified with regard to Steadman, “ ‘In my opinion he killed Mr. Haislip.’ ” 253 Kan. at 300. The court concluded that the opinion testimony deprived Steadman of a fair trial and consequently reversed his conviction of second-degree murder. We do not find Steadman- to be applicable in the present case.
K.S.A. 60-456 governs the admissibility of opinion testimony and provides:
“(a) If the witness is not testifying as an expert his or her testimony in the form of. opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
In State v. Shultz, 225 Kan. 135, 587 P.2d 901 (1978), a former deputy county attorney was permitted to testify as to the defendant’s sanity at the time he committed the offense. This court found no error, stating:
“It has been the rule in this state for many years that nonexpert witnesses who are shown to have had special opportunities to observe may give opinion evidence as to sanity. See State v. Randol, 212 Kan. 461, 468, 513 P.2d 248 (1973) and cases therein cited; State v. Truskett, 85 Kan. 804, 821, 118 Pac. 1047 (1911); State v. Beuerman, 59 Kan. 586, 589, 53 Pac. 874 (1898); and see K.S.A. 60-456. The weight to be given such testimony, as well as the weight to be accorded expert testimony, is for the jrny to determine. State v. Randol, 212 Kan. at 468; and see State v. Sanders, 225 Kan. 147, 587 P.2d 893 (1978).” 225 Kan. at 137.
Lay witnesses’ opinions as to intoxication were permitted in State v. Townsend, 146 Kan. 982, 986, 73 P.2d 1124 (1937). This court said:
“Appellant next argues that the court erred in permitting any of the witnesses to testify that he was under the influence of intoxicating liquor. If the fact was observable to those who soon came to the scene of the collision no reason suggests itself to exclude it, any more than to exclude testimony of other pertinent facts.”
As with expert testimony, the admission of lay opinion testimony lies within the sound discretion of the district court. Smith v. United Technologies, 240 Kan. 562, 565, 731 P.2d 871 (1987).
In the present case, following the defendant’s objection, the trial court inquired of counsel for the City if he was attempting to qualify the officer as an expert. Counsel responded, “To give his opinion, yes, Your Honor.” The court then overruled defendant’s objection. The trial court allowed the officer to render an opinion as an expert on the defendant’s intoxication and his ability to safely operate a motor vehicle.
In State v. Carr, 230 Kan. 322, 324-25, 634 P.2d 1104 (1981), this court found no error in allowing an officer to give such an opinion as an expert:
“Officer Masters had an opportunity to observe Thomas Carr briefly in the bedroom and at some length during the arrest procedure. Masters’ qualifications as an expert were established. He had been with the police department a number of years and, in the course of his work, had had an opportunity to observe intoxicated persons. In allowing Masters to testify, the trial judge observed, ‘Police officers soon become experts on intoxication and the degrees and level thereof.’
“Masters testified that upon initial contact Carr had an odor of alcohol on his breath but was not intoxicated to the state he didn’t realize what he was doing or where he was. The trial court allowed similar expert testimony from Officer Marceau and received lay opinions reaching a contrary conclusion as to Carr’s intoxication. '
“The basis for admission of expert testimony is the need to assist the trier of fact. State v. Reed, 226 Kan. 519, 521, 601 P.2d 1125 (1979); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). In allowing Masters’ expert testimony, the court as trier of fact apparently felt the testimony would be of assistance. This court has often held the admissibility of expert testimony lies within the power of discretion of the trial court, and the trial court will not be reversed on appeal absent a showing of abuse of the exercise of that power of discretion. State v. Washington, 229 Kan. 47, 56, 622 P.2d 986 (1981); State v. Reed, 226 Kan. at 521; Plains Transp. of Kan., Inc. v. King, 224 Kan. at 21. We find no abuse of discretion in allowing Masters to testify.”
Unlike Steadman, the officers in the present case are not expressing an opinion that the defendant is guilty. Also, unlike Stead-man, this case was tried without a jury and, as the trial judge pointed out, he would presume that the officer believed the defendant was under the influence because he issued the complaint. “So his opinion as to whether the defendant was under the influence really is superfluous.” The officer’s testimony as to the defendant’s sobriety and his ability to safely operate the motor vehicle was based on personal observations and expertise as a police officer, and we find no abuse of discretion in allowing the testimony.
Even if the trial court’s ruling had been error, it would be harmless. First, the evidence of guilt is of such a direct and overwhelming nature that it can be said that the challenged error could not have affected the result of the trial. See State v. Denney, 258 Kan. 437, 445, 905 P.2d 657 (1995). Second, as noted above, this case was tried without a jury. “Where trial is by the district court, on appellate review the supreme court indulges in the presumption the lower court considered only properly admissible evidence in reaching its decision unless the contrary is shown by the record.” State v. Gordon, 219 Kan. 643, Syl. ¶ 11, 549 P.2d 886 (1976).
Hadley next challenges the legality of the search of his truck which produced the open bottle of whiskey. He relies on K.S.A. 22-2501 and State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996). The City contends that the court should not consider this issue because Hadley failed to follow the procedure set out in K.S.A. 22-3216 for requesting the court to suppress evidence. The statute, however, provides in part: “[A] motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the trial.” At trial, Hadley’s attorney objected to the introduction of the whiskey bottle on several grounds, including that the search was not “incidental to an arrest.” The trial judge disagreed, and the objection was overruled.
Hadley makes the following assertions in his brief:
“[T]he defendant was already under arrest, . . . handcuffed and in the officer’s vehicle when the search of the vehicle was conducted. . . . There was no need to perform the search to protect the officer from attack. There was no area in the vehicle in which the defendant could have obtained any weapon since he was handcuffed. The search was not going to prevent the defendant from escaping since he was handcuffed and out of the immediate area.”
Officer Mazza testified:
“Q. Can you describe to us what attempts you did to have him perform the field sobriety tests?
“A. It was cold, and the parking lot was icy. I got him on the sidewalk part. I asked him if he had problems with [his] hips, legs, knees, and ankles. He said he was stiff and was unable to do the walk-and-tum because he was old. He had to keep holding himself up on a vehicle. Officer Schwearing arrived shortly after that. Due to his obvious intoxication, I placed him under arrest.
“Q. Okay. The — after placing him under arrest, what did you do?
“A. A search after the arrest.”
Officer Mazza also testified that he was standing right next to Officer Schwearing while Schwearing searched the vehicle. There is no testimony in the record before us which would place Hadley in the patrol car in handcuffs before his truck was searched.
Thus, the only question is whether the facts establish that the search was conducted in accord with the statute. K.S.A. 22-2501 provides:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
It is the Ciiy’s position that the search was proper for the purpose of discovering the instrumentalities or evidence of the DUI offense and that the open bottle of whiskey served that purpose for the DUI as well as establishing the second offense. Hadley argues that “the City has failed to establish that any of the three requirements set forth in K.S.A. 22-2501 were fulfilled.” He failed, however, to create a record for any of his factual assertions, and on the record before us we cannot say that the search was not properly conducted incidental to the arrest.
We next consider if the arresting officer had reasonable suspicion to stop Hadley and/or probable cause to arrest him. The record contains defendant’s pretrial filing entitled “Motion to Suppress.” In fact, the relief sought was dismissal of the charges. Grounds stated in the motion were that Officer Mazza did not have reasonable suspicion to stop Hadley and that Officer Mazza did not have probable cause to arrest him.
In State v. Field, 252 Kan. 657, 664-65, 847 P.2d 1280 (1993), the court set out the standard of review applicable to this issue: “[T]he determination of whether an officer has reasonable suspicion to stop a vehicle is a question of law, or in some cases a mixed question of law and fact, for the appellate court to determine under die totality of the facts and circumstances.”
Hadley cites K.S.A. 22-2402(1), which provides: ‘Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.” He contends that Officer Mazza had no basis for believing at the time of the stop that Hadley “is committing, has committed or is about to commit a crime.” Hadley asserts: “No traffic infractions had been made and the defendant had parked his vehicle correctly.” Hadley cites vehicle stop cases, State v. Weaver, 259 Kan. 844, 847, 915 P.2d 746 (1996), and State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991), for the proposition that the “officer must have articulable facts sufficient to constitute reasonable suspicion.”
In McKeown, the court stated: “The stop of a vehicle being driven upon the streets . . . always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry [v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)].” (Emphasis added.) 249 Kan. at 510. In Weaver, the court made it clear that there is no stop for the purpose of applying the rule from McKeown until the defendant has submitted to the officer s authority. 259 Kan. at 849. By Hadley s own account, he had parked his truck before Officer Mazza approached it. When Officer Mazza got out of his patrol car and went over to the truck, Hadley rolled down his window and asked what the officer wanted. We question whether there was a “vehicle stop” under the circumstances of this case. In any event, the parties seem to agree that the appropriate inquiry is under K.S.A. 22-2402. Whether it was a vehicle stop or some other type of stop, it would have occurred no earlier than when Hadley rolled down his window to talk to Officer Mazza. Long before that, Officer Mazza knew from dispatches that police had been asked by persons at two separate retail outlets to check on the disorderly conduct of a man identified as Robert Hadley. He knew from his own conversation with a witness that Hadley was driving a red Ford pickup. He knew from checking records that the red Ford pickup he saw turn into the lot and park was registered to Hadley. Under 22-2402, an officer is permitted to stop a person in a public place when the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. Officer Mazza reasonably suspected the man in the red Ford pickup of engaging in disorderly conduct. Even if this was a vehicle stop, under Kansas law, disorderly conduct is a misdemeanor crime against the public peace. K.S.A. 21-4101. He reasonably suspected that Hadley had committed a crime.
Hadley farther contends that Officer Mazza lacked probable cause to arrest him because Mazza had not observed Hadley violate any traffic ordinances. In other words, his argument seems to be that the officer must testify that he observed the defendant’s driving and that it was impaired in order to establish probable cause to arrest a suspect for driving under the influence.
K.S.A. 1996 Supp. 22-2401 provides, in part:
“A law enforcement officer may arrest a person under any of the following circumstances:
“(c) The officer has probable cause to believe that the person is committing or has committed:
(2) a misdemeanor, and the law enforcement officer has probable cause to believe that:
(A) The person will not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested;
(B) the person may cause injury to self or others or damage to property unless immediately arrested.”
With regard to the provisions of this statute, the court has stated: “In determining whether probable cause to arrest exists, all information in the officer’s possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.” State v. Strauch, 239 Kan. 203, Syl. ¶ 2, 718 P.2d 613 (1986). Furthermore,
“[i]t is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. It is only necessary the evidence lead the officer to believe that guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information.” State v. Clark, 218 Kan. 726, 731, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976).
The record shows that the following facts, which are consistent with Hadley’s being intoxicated, were known to Officer Mazza before he arrested Hadley: Hadley smelled strongly of alcohol, his speech was slurred, he almost fell getting out of his truck, his expression was wooden, his gaze was glazed, and he had difficulty trying to perform the field sobriety test. In addition, the officer knew that the police had received complaints from two retail establishments that a man named Robert Hadley was behaving in a disorderly manner, had been told by someone at the second retail establishment that Hadley was driving south in a red Ford pickup, and knew that the red Ford pickup he saw traveling south was registered to a man named Robert Hadley. These facts are sufficient to support the officer’s belief that guilt was more than a possibility. Officer Mazza had probable cause to arrest Hadley. See City of Dodge City v. Norton, 262 Kan. 199, 936, P.2d 1356 (1997).
Moreover, evidence that a person is driving under the influence of alcohol more than likely will be irretrievably lost unless the per son is arrested immediately. Finally, concern for public safety is an important factor in the circumstances of this case. There was probable cause for Officer Mazza to believe that Hadley might injure himself or others unless arrested immediately.
Hadley s final argument is that the evidence was insufficient to support a rational factfinder s determination that he was guilty beyond a reasonable doubt.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 (1996).
It is Hadley s contention that, “[u]nder the city ordinance, which the defendant was convicted under, the City must prove that the defendant was under the influence of alcohol to a degree that rendered him incapable of safely driving a vehicle.” He did not provide the court with the text of the city ordinance or of any authority for his contention. He ignores evidence favorable to the prosecution and plays up inconsequential conduct of the arresting officer as if it were not only relevant but also dispositive. Moreover, he wants the court to treat his refusal to submit to a breath alcohol test as a significant gap in the City’s proof. Contrary to defendant’s assertions, a review of all the evidence in the light most favorable to the prosecution shows that a rational factfinder could have found him guilty beyond a reasonable doubt.
The decision of the Court of Appeals dismissing the appeal is reversed. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Davis, J.:
This appeal comes before this court upon a question reserved. K.S.A. 22-3602(b)(3). During á de novo appeal from a municipal court conviction, at the close of the prosecution’s case, the district court directed a verdict for the defendant because the municipal charge or citation had not been entered into evidence. We conclude there is no requirement to enter into evidence the complaint or citation issued against the defendant.
The defendant was tried and convicted in municipal court of failure to yield the right of way, in violation of Overland Park Municipal Code 12.04.064. He perfected an appeal to the district court. The record before the municipal court, including the original citation issued, was certified by the clerk of the municipal coúrt and filed with the Johnson County District Court. K.S.A. 22-3609(3). There is no contention that the citation was in any way defective.
The matter proceeded to trial de novo in the district court. The prosecution presented testimony by Paula Volker and Overland Park Police Officer McNeely. Both witnesses identified the defendant as the driver of the vehicle that struck Volker. McNeely testified that the location of the accident was within the city limits of Overland Park. Volker detailed how she, a pedestrian, was struck by the defendant’s car.
At the close of the prosecution’s case, the defendant moved for a directed verdict because there had been no evidence of a traffic violation marked or submitted. The prosecution responded that the court may take judicial notice of its own file, that the citation is usually never offered into evidence, and that the citation is not an element of the offense. The district court agreed with the defendant and dismissed the case.
An appeal on a question reserved by the prosecution will not be entertained merely to demonstrate whether errors have been committed by the trial court. The question must be of statewide interest and vital to a correct and uniform administration of the criminal law. State v. Wilson, 261 Kan. 924 Syl. ¶ 3, 933 P.2d 696 (1997). We elect to hear this appeal because the question is one of statewide interest important to the correct and uniform administration of the criminal law.
The complaint is defined under the Kansas Code of Procedure for Municipal Courts as “a sworn written statement, or a written statement by a law enforcement officer, of the essential facts constituting a violation of the ordinance.” K.S.A. 12-4113(g). The complaint is the jurisdictional instrument on which the defendant stands trial. Carmichael v. State, 255 Kan. 10, Syl. ¶ 4, 872 P.2d 240 (1994). K.S.A. 8-2108 requires that prosecution formally must be commenced by the filing of a complaint in the court having jurisdiction.” See State v. Donlay, 253 Kan. 132, 136, 853 P.2d 680 (1993).
In this case, the district court had the original complaint before it, and there was no dispute that the complaint adequately set forth a municipal violation of failure to yield right away against the defendant. There is no requirement under Kansas law that a complaint or citation be admitted into evidence for the charge upon which prosecution is being sought. The charge or complaint is provided to the defendant well before trial. The issue before the court upon trial is whether the prosecution has sustained its burden to prove the charge beyond a reasonable doubt.
The trial court erred by granting a directed verdict to the defendant at the close of the State’s case on the basis that the complaint or citation had not been entered into evidence.
Appeal sustained.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Manuel Salcido-Corral, from his convictions of first-degree felony murder, aggravated criminal sodomy, aggravated indecent liberties with a child, and attempted aggravated indecent liberties with a child.
The defendant appeals, contending the evidence is insufficient to support a conviction for felony murder; that his statement and consent to search were involuntary because they were obtained using the English language even though the defendant’s primary language is Spanish. The defendant also alleges the trial court erred in imposing upward durational departure sentences on the three sex crimes.
At the time of the crime, the defendant had been living with Arline and her three children, R.R., age 5, Y.R., age 7, and L.R., age 12.
L.R. was found dead in her bedroom by Arline and Y.R. Arline did not testify at the trial. Y.R. testified that she found L.R. lying on her bedroom floor with her panties pulled down to her knees, with her legs apart, and with her nightgown and bra pulled up, exposing her breasts. Y.R. testified that her mother pulled up L.R.’s panties and rearranged L.R.’s nightgown to cover up L.R.’s body before the police arrived.
The coroner testified that the cause of L.R.’s death was asphyxiation. L.R. had bruises and scratches on her face which, the coroner testified, indicated that a hand was held over L.R.’s nose and mouth, causing the asphyxiation. The coroner characterized the injuries to L.R.’s face as consistent with injuries that occur during a struggle. The coroner found brown areas around L.R.’s vagina that concerned her. However, the coroner was not sure that the brown areas were specific injuries. She could neither confirm nor deny that a sexual assault occurred. No seminal fluid was found on L.R.’s body. L.R. also had several abrasions on her leg, right arm, left shoulder, face, and nose. The coroner noted that a fingernail could have caused some of the abrasions on L.R.’s body and that the bruise on L.R.’s shoulder was consistent with an injury occurring when a person is forced down on an object. A few spots of blood were found on L.R.’s halter top and slip and on her foot. The State conducted DNA tests on the blood.
From the DNA tests, testimony was given that the spots of blood on the halter top and slip came from two blood sources, while the blood on L.R.’s foot came from only one blood source. The blood spots on the halter top and slip were consistent with a combination of the defendant’s blood and L.R.’s blood. After several different tests, neither L.R.’s blood nor the defendant’s blood could be ex- eluded as the source of the blood spots on L.R.’s halter top and slip. The defendant’s blood could be excluded as the source of the blood on L.R.’s foot. L.R.’s blood could not be excluded as the source of this blood spot.
Y.R., who was 7 years old when the crimes occurred and 9 years old at the time of trial, testified at trial that the defendant had sexually assaulted her. According to Y.R., approximately 1 month prior to L.R.’s murder, on Valentine’s Day, Y.R. had been lying on the couch watching television when the defendant laid down beside her, pulled down her pants, and attempted to touch her vagina. At this time, Y.R.’s mother called for her from Y.R.’s bedroom and Y.R. ran away from the defendant. Y.R. did not tell anyone about this incident until several months after her sister died.
Y.R. also testified that 1 month later, on the night of her sister’s death, the defendant sexually assaulted her again. Y.R. stated that she had been sleeping alone in her mother’s bed when the defendant entered the room. According to Y.R., the defendant put his hand over Y.R.’s mouth so she could not yell and held her so she could not run away. Then, the defendant partially put his penis in her rectum. The defendant also rubbed Y.R.’s vagina under her clothes. Y.R. eventually got away from the defendant, and she went to sleep with her mother on the couch in the living room. Then, Y.R. testified, the defendant left through the front door. The three incidents described above concerning Y.R. formed the basis for the aggravated sodomy and two indecent liberties with a child convictions.
After L.R.’s body was discovered, the police were contacted. Y.R. testified she saw the defendant drive by the house while the police were investigating the crime scene. The defendant left the Wichita area and went to Mexico and Texas to visit his family. The police who investigated the crime scene wanted to talk to the defendant. They eventually found him 1 month later at his sister’s house in Arlington, Texas. A detective from the Wichita Police Department interviewed the defendant in Texas.
During the interview, the defendant admitted that he had been living with Arline several days a week during the time that the crime occurred. On the night L.R. was killed, the defendant stated he had worked on Arline’s car until 11:30 p.m. He then went to a nearby club. The defendant explained that when he left the club at 2 a.m., he got into a fight with a man who' owed him money. During this fight, the defendant claimed he sustained a bleeding cut on his finger when he knocked out the other combatant’s front teeth.
Then, according to the defendant, he went back to Arline’s house. The defendant said that he looked in on Y.R. who was in bed in Arline’s room. He talked to Y.R., told her he was leaving, and left the room. The defendant also told the detective that he looked into L.R.’s room but did not go in. The defendant said he checked in L.R.’s room because she had a habit of sneaking out of the house at night and he wanted to make sure she was still home. According to the defendant, L.R. called him an “asshole” in Spanish when he checked her room. At that time, the defendant said he left Arline’s house and went to his wife’s house to pick up some clothes. He then left to go on to Texas and then Mexico in order to meet his family there for a vacation as he had planned to do.
The defendant told the detective that he later found out L.R. was dead, but he did not contact Arline because he did not have a telephone and he was too lazy to write. At the end of the interview, the defendant made two spontaneous statements: “After you get the results of the test, I’ll tell you what happened,” and “What do you think of people that kill their kids?” The defendant would not elaborate on these statements. At trial, the defendant said he made these statements because he thought the tests would show that Arline killed L.R.
The State charged the defendant with alternative counts of premeditated murder and felony murder of L.R. The court instructed the jury that if it did not find the defendant guilty of first-degree premeditated murder, then it should consider the alternative charge of first-degree felony murder. The underlying crimes for the felony murder charge were aggravated criminal sodomy or rape of L.R. (or attempts at these crimes). The State did not charge those crimes as separate counts.
The defendant took the stand and denied committing the crimes. Nevertheless, the jury found the defendant guilty of felony murder of L.R. and guilty of the three sex crimes against Y.R. The trial court imposed an upward durational departure for the three crimes committed against Y.R., and ran the four sentences consecutively, sentencing the defendant to life plus 362 months.
I. SUFFICIENCY OF THE EVIDENCE
“If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.” State v. Tirrdey, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
The defendant argues the evidence was insufficient to convict him of felony murder. The State charged the defendant with felony murder based on the underlying felonies of aggravated criminal sodomy or rape against L.R. or attempts to commit those crimes. In the felony-murder instruction, .the court provided the elements of rape and aggravated criminal sodomy. According to the defendant, there is no evidence whatsoever that he committed aggravated sodomy or rape against L.R.
Looking at this evidence in the light most favorable to the prosecution, the defendant admits that the evidence might support his involvement in the killing of L.R. However, the defendant claims that this evidence does not support the fact that he attempted to commit or did in fact commit aggravated criminal sodomy or rape against L.R. According to the defendant, the only evidence which supports the fact he committed or attempted to commit aggravated sodomy or rape against L.R. is as follows:
1. Some of L.R.’s family members found L.R. dead with her panties pulled down to her knees and her breasts exposed.
2. Y.R. had been sexually assaulted on the same night.
3. The defendant’s blood was on L.R.’s clothing.
The defendant asserts that such evidence is insufficient to support a finding that he committed or attempted to commit aggravated sodomy or rape against L.R. The defendant concedes that this evidence might support a finding that he committed the crime of indecent liberties against L.R. However, this crime was not charged as an underlying felony of the felony-murder charge. Rather, the State based its felony-murder charge on the underlying felonies of aggravated criminal sodomy or rape, or an attempt to commit these crimes. Thus, the defendant claims that the evidence is insufficient to support his felony-murder conviction and that this conviction should be overturned.
An attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301(a). There is “ ‘[n]o definite rule as to what constitutes an overt act for the purposes of attempt .... Each case must depend largely on its particular facts and the inferences which the jury may reasonably draw therefrom.’ ” State v. William, 248 Kan. 389, 404, 807 P.2d 1292, cert. denied 502 U.S. 837 (1991) (quoting State v. Garner, 237 Kan. 227, Syl. ¶ 3, 699 P.2d 468 [1985]).
In order to prove the defendant attempted an underlying felony (and thereby committed felony murder), the State must show that the defendant took a step beyond mere preparation so that some appreciable fragment of the underlying crime was committed. State v. Chism, 243 Kan. 484, 490, 759 P.2d 468 (1988). The overt act requirement in the context of attempted rape and attempted aggravated criminal sodomy has been interpreted broadly. Further, in regard to the intent element of attempted rape or attempted aggravated criminal sodomy, “intent . . . may be shown by acts, circumstances, and inferences reasonably deductible therefrom.” William, 248 Kan. at 402.
The amount and type of evidence sufficient to support a finding that a defendant attempted to commit rape or aggravated criminal sodomy has been before this court before in State v. Zimmerman, 251 Kan. 54,60-61, 833 P.2d 925 (1992); William, 248 Kan. at 402-03; State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978) (the facts in Arnold were set out in the Court of Appeals opinion, 1 Kan. App. 2d 642, 573 P.2d 1087 [1977]; the Supreme Court relied on those statements of fact, but reversed the Court of Appeals on the sole issue of whether a batteiy instruction was required as a lesser included offense of attempted rape); and State v. Lora, 213 Kan. 184, 191-92, 515 P.2d 1086 (1973).
In Lora, the overt act toward the perpetration of the rape necessary to constitute the crime of attempted rape consisted of seizing the victim and attempting to keep her in the residence. 213 Kan. at 192. In Zimmerman, the defendant entered an unlocked apartment with the alleged intent to steal a purse that he saw from outside through a window. However, the victim testified that a purse was not visible from the outside. The defendant hit the victim over the head with a gun, dragged her to a secluded place in the apartment, and pulled down the victim’s shorts. The defendant told the police that he considered raping the victim, “but mainly I just looked.” The defendant claimed he did not fondle the victim. The victim had no memory of the incident. This court held that a rational factfinder could find beyond a reasonable doubt that the defendant performed an overt act toward committing a rape and had the intent to commit a rape. Thus, this court found the defendant’s conviction for attempted rape was supported by sufficient evidence. 251 Kan. at 60-61.
In William, the defendant was convicted of felony murder and he appealed, contending that the evidence was insufficient to prove the underlying felony of attempted aggravated criminal sodomy. According to the defendant, the only evidence of a sexual assault on the victim was the defendant’s confession that he attempted to have sex with the victim after the victim was dead. The question was whether the defendant committed an overt act toward the perpetration of aggravated sodomy while the victim was still alive or while the defendant thought the victim was still alive. At trial, a police officer testified that when asked what led to the killing, the defendant stated that he had been fighting the desire to have sexual contact with the victim for a long time. Further, the evidence indicated that neither the defendant nor the victim was wearing pants when the victim was killed. Also, there was circumstantial evidence that the victim was bound up before he died. Finally, the defendant took the victim to a remote, dark area. This court found that a reasonable jury could conclude the defendant did this in order to have sex with the victim unobserved. Thus, this court ruled the evidence was sufficient to support a finding that the defendant attempted aggravated criminal sodomy and the evidence was suf ficient to support the defendant’s conviction for felony murder. This was so even though specific scientific evidence of sodomy was not introduced at trial. 248 Kan. at 399-404.
In Arnold, the defendant was convicted of attempted rape based on the following evidence. The victim spotted the defendant crouched behind her as she walked across a college campus. He had no shoes or shirt on. The defendant ended up on top of the victim. The defendant did not touch or tug on the victim’s purse. He told her to be quiet or he would kill her. The defendant had one hand on the victim’s mouth, trying to close her mouth, and choke her. The defendant placed one hand on the center of the victim’s lower abdomen. The victim commanded the defendant to leave in the name of Jesus, and he did. The defendant argued that the evidence he intended to rape the victim was mere suspicion. He could have simply intended to rob her or beat up the victim, he argued. The Court of Appeals found, based on the defendant’s stealth, the threats, and the position of the parties, that the jury reasonably drew the inference that the defendant intended to rape the victim. See 1 Kan. App. 2d at 643-44. The defendant’s attempted rape conviction was upheld. See 223 Kan. 715.
Looking at the evidence herein, in the light most favorable to the prosecution, the evidence indicates that the defendant had previously made sexual advances toward L.R. On the evening of L.R.’s death, the defendant sexually assaulted Y.R. by holding her down and putting his hand over her mouth so she would not yell. He then sodomized Y.R. and touched her vagina. L.R.’s cause of death, asphyxiation, is consistent with someone putting his hand over her mouth and nose. When L.R. was found, her slip was pulled up, exposing her breasts, and her panties were pulled down, with her legs apart, very similar to tihe attack on Y.R. in that her panties were pulled down but not removed. She had suspicious brown marks on her vagina. There is evidence that L.R. struggled with her assailant. The blood found on L.R.’s halter top and slip could not be excluded as coming from the defendant.
Based on this circumstantial evidence, a rational factfinder could have found beyond a reasonable doubt that after the defendant sexually assaulted Y.R., he went into L.R.’s room to sexually assault her later that night. He put his hand on L.R.’s mouth to prevent her from yelling, just as he had with Y.R. He then pulled down L.R.’s panties and pulled up her slip to sodomize or rape her. L.R. struggled with the defendant, causing drops of his blood to be found on her halter top and slip. In the struggle, the defendant continued to push down on L.R.’s nose and mouth to prevent her from alerting other people in the house, and this asphyxiated her. A rational factfinder could have found beyond a reasonable doubt that the defendant was guilty of felony murder based on an attempt to commit the underlying felony of rape or aggravated criminal sodomy. The evidence is sufficient to support the defendant’s conviction for felony murder.
II. VOLUNTARINESS OF STATEMENT AND CONSENT
Wichita police officers found the defendant at his sister’s home in Arlington, Texas, 1 month after L.R. was found dead. Before leaving for Texas, the detective who planned to question the defendant asked around about whether the defendant had a language barrier problem. The detective was informed that the defendant spoke English veiy well and that people spoke both English and Spanish with him. The detective was aware that most of the defendant’s family spoke only Spanish, but Arline told the detective that everyone living in her house, including the defendant, spoke English.
The police arrived at the defendant’s sister’s house in Texas at 3 a.m. on April 13, 1994. They observed the house until they saw light and movement in the house at 7 a.m. At this time, the police approached the house and asked to speak to the defendant. The police asked the defendant, in English, if he would accompany them to the Arlington police station for an interview. The defendant agreed. The defendant was not under arrest at this time.
At the police station, the police talked to the defendant in English, and, according to the questioning detective, the defendant acted as if he understood them. The detective specifically asked the defendant if he understood English and he said that he did. The defendant never said that he could not understand English. The detective read the defendant’s Miranda rights to him in Eng lish from a card provided by the Arlington Police Department. After each warning, the questioning detective asked the defendant if he understood this right and each time the defendant responded, “Yes,” in English. The defendant then initialed the Miranda card, as opposed to writing his whole name, just as the detective asked him to in English. The back of the Miranda rights card listed the Miranda rights in Spanish. However, the detective who read the defendant his rights was not aware of the Spanish version and could not have read the rights to the defendant in Spanish anyway because the detective did not speak Spanish. After having been read his Miranda rights in English, the defendant said he understood his Miranda rights and he agreed to talk without an attorney present.
Early in the interview, the detective asked the defendant in English if they could take blood, hair, and saliva samples from him. The detective read a waiver form to the defendant. The defendant dated and signed the waiver form and agreed to allow the samples to be taken. The detective took the defendant to a forensic lab and hospital to have his hair, saliva, and blood samples taken. The technicians collecting these samples spoke to the defendant in English, and he followed their instructions.
After the samples were taken, the interview continued. The detective asked questions in English, and the defendant responded in English. The defendant described his activities during the 2 days before his departure from Wichita in English. He gave detailed answers to the detective’s questions. According to the questioning detective, the defendant’s answers made sense in regard to the questions being asked and the two carried on a regular conversation. The questioning detective could only remember the defendant using one Spanish word throughout the entire interview. On the night L.R. died, the defendant said he checked L.R.’s bedroom to make sure she had not sneaked out of the house. When the defendant did this, he said L.R. called him the Spanish word for “asshole.” The defendant used this term in the interview when describing L.R.’s response, and then he translated the Spanish word into English for the detective’s benefit.
While the defendant did not have an interpreter at the interview in Texas, he did utilize an interpreter for the preliminary hearing and the trial.
Eventually, the defendant filed a motion to suppress his statement, alleging that he did not intelligently and voluntarily waive his Miranda rights or consent to the samples being taken because he was read his Miranda rights and asked for consent in English, not in Spanish, and without an interpreter.
The State presented the testimony of the questioning detective regarding the use of English at the interview. The defendant, using an interpreter, then took the stand. The defendant testified that his primary language was Spanish and that Spanish was the language his family used. He said he understood some English and that his brother Jose was fluent in English. According to the defendant, when the police found him at his sister’s house, they did not arrest him, but they did tell him he had to go with them to the police station.
The defendant testified that the detective told him he had a right to remain silent, but that they also told him he had to speak. According to the defendant, the detective told him that there was no other way out so he had to talk. In regard to the detective’s reading of the defendant’s Miranda rights, the defendant testified as follows:
“Q. Did you ask for anybody to interpret it [the Miranda card] for you?
“A. They didn’t give me a chance to do it.
“Q. Did you understand what it is that they were reading to you off that card?
“A. Not all very good.”
The defendant also testified, through an interpreter, that the police told him he had to give a blood sample and that no one told him he did not have to give a sample. On cross-examination, the following exchange occurred:
“Q. You knew exactly what they were talking about when they asked you for blood, didn’t you?
“A. Yeah. They told me they wanted blood, they told me they wanted blood and they wanted hair.
“Q. But, they didn’t say that in Spanish, did they?
“A. No. They told me in English.
“Q. And you understood it?
“A. I understood it because I knew what they wanted.
“Q. After the officers went through or the detectives went through this information with you, you carried on a conversation with them in English, did you not?
“A. Yeah, the little that I knew, yes.
“Q. Well, Officer O’Mara testified that you carried on a conversation in English with him. Would he be lying then?
“A. Not tell a lie, but—
“Q. But what?
“A. But I told him there were a lot of words that I wasn’t going to understand, but he could explain them to me.
“Q. Did he ever have to — he didn’t ever have to explain any words to you, though, did he?
“A. Say yes? Yes.”
The defendant also testified that he had never been read his Miranda rights before, even though he had been arrested for DUI seven or eight times.
During the defendant’s testimony, the State noted for the record that on three different occasions the defendant answered the question asked before it was interpreted for him, although all three of these questions were asking the name of the defendant, his brother, or the person who told the defendant he had to give blood.
Based on this evidence, the trial court denied the defendant’s motion to suppress his statement and the sample results, finding that the defendant’s rights were not violated.
Without an interpreter, the defendant contends that he did not knowingly and intelligently waive his Miranda rights or knowingly and intelligently consent to the samples being taken. As such, the defendant asserts that his statement and the samples should have been suppressed. Presumably, the defendant wants his conviction to be set aside and desires a new trial without the admission of the statement or sample results.
The State asserts that this issue must fail because the defendant did not object to the admission of the statement or the sample results at trial. See K.S.A. 60-404: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” See also State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 (1995) (“A party must make a timely specific objection to the admission of evidence at trial in order to preserve the issue for appeal.”).
In our examination of the record, we find no objection by the defendant to the admission of his interview statement or to the admission of the hair, blood, and saliva samples, and the defendant does not point to any such objection. Thus, this issue was not properly objected to at trial and is not properly raised on appeal. Even if the defendant had properly objected to the admission of this evidence at trial, this issue fails.
The defendant’s brother told the questioning detective that the defendant spoke English well. Arline told the questioning detective that she and the defendant spoke English around the house. The defendant indicated to the questioning detective that he understood English and answered the questions as if he did. The defendant said he understood his Miranda rights and waived them. The defendant also signed a consent for blood and hair samples. The only Spanish term used by the defendant during the interview was the term for the word “asshole,” which the defendant translated for the detectives. Throughout the 2x/2-hour interview, the defendant never indicated to the detectives that he did not understand English. Thus, the State asserts that the defendant knowingly and intelligently waived his Miranda rights, voluntarily made a statement, and voluntarily consented to the taking of the blood, hair, and saliva samples. As such, the State claims that the trial court properly refused to suppress the defendant’s statement and sample results. We agree.
Waiver of Miranda rights must be knowing, voluntary, and intelligent under the totality of the circumstances test. See State v. Matson, 260 Kan. 366, Syl. ¶ 4, 921 P.2d 790 (1996). The ultimate test regarding the admissibility of a statement is whether the statement was voluntary under the totality of the circumstance. See State v. Morris, 255 Kan. 964, Syl. ¶ 1, 880 P.2d 1244 (1994).
“If there is substantial competent evidence to support the trial court’s findings that the defendant voluntarily, knowingly and intelligently waived his Fifth . . . Amendment rights, such findings will not be disturbed on appellate review.” State v. Melton, 207 Kan. 700, Syl. ¶ 2, 486 P.2d 1361 (1971).
“When a trial court conducts a pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement into evidence at trial, the appellate court should accept that determination if it is supported by substantial competent evidence.” State v. Snodgrass, 252 Kan. 253, Syl. ¶ 1, 843 P.2d 720 (1992).
“If the findings of the trial court on a motion to suppress evidence are based on substantial evidence this court on review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979).”
“Wftien reviewing a trial court’s suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. The ultimate determination of the trial court’s suppression of evidence is a legal question requiring independent appellate determination.” State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995).
While neither party cites it, K.S.A. 1996 Supp. 75-4351 governs the appointment of interpreters for persons whose primaiy language is not English. The statute emphasizes the public policy of providing interpreters to defendants whose primary language is not English during significant events of a criminal prosecution. State v. Zuniga, 237 Kan. 788, 791, 703 P.2d 805 (1985), discusses the applicability of the statute to a defendant who was arrested and interrogated in English, without an interpreter, even though his primary language was not English. The defendant challenged the admissibility of a statement he made during the interrogation, but this court upheld the trial court’s admission of the statement into evidence. 237 Kan. at 791-92. In so holding, this court stated:
“K.S.A. 75-4351 and the sections that follow it provide the machinery for the selection, appointment and compensation of interpreters under various circumstances. They authorize the expenditure of public funds for that purpose. The statutes do not contain any sanctions for violations thereof. Suppression is a severe sanction, much criticized. While the purpose is to encourage peace officers to follow statutes or constitutional guidelines, it may prevent otherwise proper evidence from being introduced in the case at hand.
“There is no question here but that the statute was not complied with, and the trial court so found. When the statement was challenged, the trial court held a Jackson v. Denno hearing, out of the presence of the jury, to determine the admissibility of the statement. There was evidence that the defendant, a native of Mexico, had been in this country seven or eight years. He spoke English to the victim. He apparently had no difficulty in understanding the speech of the officers and the directions given to him by them at the time of his arrest. Detective Clark first filled out a personal history sheet. All of the conversation was in English. Defendant never indicated that he could not understand. Both the arresting officers and Detective Clark read a statement of the Miranda rights to the defendant, and he appeared to understand those. When Detective Clark first questioned the defendant about the alleged rape, he denied that he had had intercourse with the victim. Later, he admitted that they had had intercourse, but stated that it was with her consent. Detective Clark wrote the statement out, read it to the defendant, and asked him if he wished to add, delete or change anything, and the defendant responded that he did not. The trial court held that the statement was admissible, finding that it was knowingly and voluntarily made with a knowing and voluntary waiver of the right not to speak.” 237 Kan. at 791.
Based on these facts, we concluded in Zuniga:
“The trial court below conducted a full hearing on the matter and its determination is supported by substantial, competent evidence. We conclude that the trial court did not abuse its discretion or otherwise err in admitting in evidence Zuniga’s statement to the officers.” 237 Kan. at 792. See also State v. Garcia, 243 Kan. 662, Syl. ¶ 9, 763 P.2d 585 (1988) (‘When an in-custody statement is taken in English from an accused whose primary language is not English, but who also speaks English, failure of the officers to have an interpreter in attendance pursuant to K.S.A. 75-4351[e] does not vitiate the statement if it was freely, voluntarily, knowingly, and understanding^ made with full knowledge of the Miranda rights.”).
In State v. Nguyen, 251 Kan. 69, 74, 833 P.2d 937 (1992), the defendant claimed that he did not voluntarily and knowingly waive his Miranda rights because he was not provided with an interpreter prior to making his statement. The defendant was bom and raised in Viet Nam, and he informed the questioning police officer that he could understand a little English to a certain extent but not very well. However, the questioning police officer stated that when he was reading the Miranda rights to the defendant, he stopped after each right and the defendant said he understood. The defendant then signed the appropriate box on the waiver form. Apparently, the defendant’s answers did not always relate to the questions asked, but by the end of the interrogation, the defendant’s answers and communication had greatly improved. This court noted that the trial court had the opportunity to observe the defendant communicate. Thus, this court found that substantial competent evidence supported the trial court’s ruling that the defendant’s statements were freely, voluntarily, knowingly, and understandingly made. 251 Kan. at 77-78.
There is substantial and competent evidence to support the trial court’s finding herein that the defendant knowingly and intelligently waived his Miranda rights and knowingly and voluntarily consented to.the hair, saliva, and blood samples. Further, under the totality of the circumstances, the defendant’s statement and consent to the samples were freely, voluntarily, knowingly, and understandingly made. The duration of the questioning was short— only 2Vz hours. The defendant appeared, from the record, to be of average intelligence. From the record, it does not appear that the defendant asked to communicate with others. The fairness of the interrogating officers depends on whose testimony is believed— the officers or the defendant. The trial judge believed the officers. Great deference should be given to the factual findings of the trial court. Substantial competent evidence supports the trial court’s finding that tire defendant’s statement and consent to the samples were freely and voluntarily made. Thus, this court accepts the determination of the trial court and will not substitute its own view for that of the trial court. The defendant’s statement and sample results did not need to be suppressed and were properly admitted into trial. This issue fails.
III. DEPARTURE SENTENCES
At the time he was sentenced, the defendant had a prior record of several DUIs, driving with a suspended license, and driving without proof of liability insurance. Since the defendant had one nonperson felony, a felony DUI based on three or more DUI misdemeanor convictions, he had a criminal history score of G. The sentence for the defendant’s felony-murder conviction was life imprisonment. The presumptive sentence for the defendant’s aggravated criminal sodomy conviction, applied consecutive to the life sentence, was a prison term of 86 to 96 months. The presumptive sentence for the defendant’s aggravated indecent liberties conviction, applied consecutive to the other two sentences, was a prison term of 46 to 51 months. The presumptive guidelines sentence for the defendant’s conviction of attempted aggravated indecent liberties, applied consecutive to the other three sentences, was a prison term of 31 to 34 months.
The State moved for an upward durational departure sentence on the latter three crimes committed against Y.R. The State’s motion for an upward departure gave the following reasons for the request:
“In support of its Motion the State would show:
1. The victim, [L.R.], was particularly vulnerable due to age which was known to the defendant.
2. The defendant’s conduct during the commission of the offense of Felony Murder of [L.R.] manifested excessive brutality to the victim in a manner not normally present in that offense.
3. The defendant is a predatory sex offender convicted of crime of extreme sexual violence as defined in K.S.A. 1993 Supp. 21-4716 and amendments thereto.
WHEREFORE, the State submits that these are substantial and compelling reasons to depart from the presumptive sentence in this case and to impose double and consecutive sentences as allowed by law.”
The trial court granted the State’s motion for upward departure. The court, in imposing an upward durational sentence on the three crimes committed against Y.R., stated its reasons for departing as follows:
“[A]fter hearing testimony, [the court] finds that most of the testimony had to come through a nine-year-old girl who was a victim in this case. She was seven at the time ... of the crimes that Mr. Salcido Corral was convicted of. She was very forthright and, I believe, very honest. She came across as a very good witness. I don’t believe she was coached. She described many things that happened in her household, including the abuse that she — sexual abuse that she took from the defendant. . . .
“. . . And I believe in such a maimer that it was very heinous. It was a brutal, brutal killing. It was actually asphyxiation, as testified to by the coroner. The DNA linked the defendant in this case. There is nothing that I can do to protect society except to keep Mr. Corral in the State penitentiaiy for the lengthy period of time I think he should be in there, and these were sexually related crimes, also, on both victims, not just the one victim, so I will sustain the motion for an . . . upward durational departure.”
In its judgment and order, the trial court listed its reasons for departure as follows:
“AGGRAVATING factors cited as a basis for departure sentence Cts: 4, 5, & 6 The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity which was known or should have been known to the offender.
Cts: 4, 5, & 6 The defendant’s conduct during the commission of the current offenses manifested excessive brutality to the victim in a manner not normally present in that offense.
Cts: 4, 5, & 6 The defendant’s current crimes of conviction are crimes of extreme sexual violence against both victims and the defendant is a predatory sex offender.
Cts: 1, 4, 5, & 6 Other: The defendant’s current crimes of conviction were especially cruel, atrocious and heinous.”
Count I is the felony murder, and Counts 4, 5, and 6 are the sex crimes committed against Y.R.
The court sentenced the defendant to life imprisonment for the felony murder conviction. The court departed upward on the sentence for the aggravated criminal sodomy conviction. Instead of sentencing the defendant to the presumptive sentence of 86 to 96 months in prison, the court doubled the highest guidelines sentence and sentenced the defendant to 192 months in prison for the aggravated criminal sodomy conviction. The court also departed upward on the sentence for the aggravated indecent liberties conviction. The court doubled the highest guidelines sentence and sentenced the defendant to 102 months in prison for the aggravated indecent liberties conviction. Finally, the court departed upward on the sentence for the attempted aggravated indecent liberties conviction. The court doubled the highest guidelines sentence and sentenced the defendant to 68 months in prison for attempted aggravated indecent liberties. The court ran all four sentences consecutive to each other and, in total, sentenced the defendant to life plus 362 months. The defendant challenges the departure sentences.
K.S.A. 21-4721 provides in pertinent part:
“(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.”
An appellate court must give effect to the plain meaning of a statute as written, rather than attempt to determine what the law should or should not be. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994).
The applicable standard of review for a departure sentence is keyed to the language of the statute: K.S.A. 21-4721(d)(l) requires an evidentiaiy 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, i.e., do the reasons supported by the record constitute substantial and compelling reasons for departure? State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901 P.2d 1 (1995).
The trial court imposed fife in prison for the felony-murder conviction. This was the only charge brought against the defendant in which L.R. was the victim. The trial court imposed a departure sentence on the three sex crime convictions. In ¿1 three sex crimes, Y.R., L.R.’s younger sister, was the victim. The aggravated criminal sodomy conviction punished the defendant for partially putting his penis in Y.R.’s rectum on the night of L.R.’s death. The aggravated indecent liberties conviction punished the defendant for touching Y.R.’s vagina on the night of L.R.’s death, and the attempted aggravated indecent liberties conviction punished the defendant for attempting to touch Y.R.’s vagina 1 month before L.R.’s death. An understanding of what crimes the district court departed upward on in sentencing and who was the victim of these crimes is impor tant because some of the departure factors relied on by the trial court apply to the felony murder of L.R. The court did not depart in sentencing the defendant for the felony-murder conviction because it was an off-grid crime.
Under the above standard of review, the first question is whether the reasons enumerated by the sentencing court as justifying sentencing departure are supported by evidence in the record. The first aggravating factor listed by the trial court is that the victim of the three sex crimes, Y.R., was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity, which was known or should have been known to the offender. Y.R. was 7 years old at the time these crimes were perpetrated against her. The defendant lived with Y.R.’s family and knew she was a young child. The evidence in the record supports the fact that the victim of the sex crimes, Y.R., was particularly vulnerable due to age when the crime occurred and that the offender knew her age and her vulnerability.
The second aggravating factor listed by the trial court as justifying departure is that the defendant’s conduct during the commission of the current offenses manifested excessive brutality in a manner not normally present in such an offense. When the defendant attempted to commit aggravated indecent liberties against Y.R., he did not use excessive brutality in a manner beyond that normally present in such an offense. When the defendant sexually assaulted Y.R. the next time, the night L.R. died, he pulled down her pants, put his penis in her rectum, and rubbed her vagina. Y.R. eventually got away and ran into the living room to sleep next to her mother. There is no evidence that Y.R. had bruises, scrapes, or cuts on her face or body. In most sexual assaults, the attacker will try to prevent the victim from escaping the attack or from alerting others that a sexual assault is occurring. All sexual assaults are brutal. The legislature expressed an intent that the brutality be more than that normally present in such offenses. The evidence in the record before us does not support a finding that the defendant’s conduct during the commission of the sex crimes manifested excessive brutality to Y.R. in a manner not normally present in such offenses. This aggravating factor does not support the trial court’s imposition of a departure sentence for each of the defendant’s sex crime convictions.
The third aggravating factor listed by the trial court as justifying departure is that the defendant’s convictions were crimes of extreme sexual violence against both victims and that the defendant is a predatory sex offender.
K.S.A. 21-4716(b)(2)(G) provides:
“[T]he following nonexclusive list of aggravating factors may be considered in determining whether substantial and compelling reasons for departure exist:
“(G) The defendant’s current crime of conviction is a crime of extreme sexual violence and the defendant is a predatory sex offender. As used in this subsection: “(i) ‘Crime of extreme sexual violence’ is a felony limited to the following:
“(c) a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is less than 14 years of age.
“(ii) ‘Predatory sex offender’ is an offender who has been convicted of a crime of extreme sexual violence as the current crime of conviction and who:
“(a) Has one or more prior convictions of any crimes of extreme sexual violence. Any prior conviction used to establish the defendant as a predatory sex offender pursuant to this subsection shall also be counted in determining the criminal history category.” (Emphasis added.)
The defendant was convicted of aggravated criminal sodomy, one count of aggravated indecent liberties, and one count of attempted aggravated indecent liberties. All of these crimes involved an act of sodomy or lewd fondling and touching of a child who was less than 14 years of age. Thus, all three of the defendant’s current crimes of conviction are crimes of “extreme sexual violence.”
The defendant does not qualify, however, as having one or more prior convictions of extreme sexual violence. The defendant’s criminal history category consists only of prior convictions for DUI, driving with a suspended license, and driving without proof of liability insurance. Since the defendant did not have one or more prior convictions of any crimes of extreme sexual violence, the defendant does not meet the statutory definition of a “predatory sex offender.” This aggravating factor requires that the defendant’s current crime of conviction be a crime of “extreme sexual violence” and that the defendant be a “predatory sex offender.” Since the defendant was not a "predatory sex offender,” this aggravating factor is not supported by evidence in the record and cannot justify a sentencing departure.
The final factor listed by the trial court as justifying the departure sentences is that the defendant’s current crimes of conviction were especially cruel, atrocious, and heinous. Clearly, the murder fits the definition of cruel, atrocious, and heinous. However, it occurred at a different time and to a victim other than Y.R. Y.R. was not aware the murder occurred until the following day. The defendant was given the maximum sentence for the murder. To use the murder under the facts of this case to enhance the sentence of a crime or crimes that occurred earlier and have no direct connection to the murder does not appear to us to come within the legislative guidelines for imposing an upward durational departure. See K.S.A. 21-4716(b)(2)(B); State v. Cox, 258 Kan. 557, 579, 908 P.2d 603 (1995).
Only one of the aggravating factors relied on by the trial court to justify the departure sentences is supported by evidence in the record. This factor is: The victim was particularly vulnerable due to age, infirmity, or reduced physical or mental capacity which was known or should have been known to the offender. The next question is whether this aggravating factor constitutes a substantial and compelling reason for departure.
The defendant was convicted of aggravated indecent liberties and attempted aggravated indecent liberties, which required that the victim be under 14 years of age (K.S.A. 21-3504[a][3][A]), and the defendant was convicted of aggravated criminal sodomy, which required that the victim be under 14 years of age (K.S.A. 21-3506[a][1]). K.S.A. 21-4716(b)(3) provides:
“If a factual aspect of a crime [such as the age of the victim] is a statutory element of the crime [such as aggravated criminal sodomy and aggravated indecent liberties] or is used to subclassify the crime on the crime severity scale, that aspect of the current crime of consed as an aggravating . . . factor only if the criminal conduct constituting that aspect stituting that aspect of the current crime of conviction is significantly different from the usual criminal conduct captured by the aspect of the crime.”
The trial court used the vulnerability of the victim, based on her young age, as an aggravating factor to justify a sentencing departure for the three sex crimes of which the defendant was convicted. The young age of the victim was also a statutory element of all three sex crime convictions. There is nothing in the record to suggest that the 7-year-old victim in this case was any more vulnerable than any other 7-year-old would be. Thus, the vulnerability of the victim, based on her age, was an improper aggravating factor to justify the sentencing departures because the victim’s age was already a statutory element of all three sex crimes. This aggravating factor does not constitute a substantial and compelling reason for departure.
Since all the aggravating factors relied on by the trial court to justify the sentencing departures are either not supported by evidence in the record or not substantial and compelling reasons for departure, the departure sentences were improper.
“If a departure sentence is issued, the court shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. [K.S.A. 21-4716(a)]. The court’s comments at the time of sentencing govern as to the reasons for departure.” State v. Gideon, 257 Kan. 591, Syl. ¶ 21, 894 P.2d 850 (1995).
“An appellate court’s review pursuant to [K.S.A. 21-4721(d)] is limited to the findings of fact and reasons justifying departure specifically enunciated by the sentencing court. An appellate court reviewing a sentencing court’s reasons for departure will not conduct a broader search of the record to examine all facts available to the sentencing court to determine whether there were substantial and compelling reasons for departure.” Richardson, 20 Kan. App. 2d 932, Syl. ¶ 3.
The aggravating factors enunciated by the trial court were not sufficient to justify departure, and this court will not review the record for aggravating factors which might have justified departure if enunciated.
We affirm the four convictions and the sentence for felony murder. We vacate the sentences for aggravated sodomy, aggravated indecent liberties with a child, and attempted aggravated indecent liberties with a child.
Convictions affirmed, sentences vacated in part, and case remanded for resentencing as to the three sex crimes.
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Opinion by
Green, C.:
This action was brought by the plaintiffs in error to set aside a deed made by Beverly Anderson and wife for two lots on Clay street, in the city of Topeka, to their two sons, William Mack and Jones Anderson, on the 20th day of January, 1885. On the 29th day of December, 1884, the plaintiffs recovered a judgment against Beverly Anderson, before a justice of the peace in Shawnee county, and caused an abstract of such judgment to be filed in the office of the clerk of the district court on the 30th day of July, 1886. An execution was issued thereon, which was returned, “no property found.” The plaintiffs then commenced this suit, and a trial was had and special findings of fact returned by the jury, and judgment was rendered for the defendants, and the plaintiffs ask a review of the record by which such judgment was obtained.
It seems from the evidence upon the trial that Beverly Anderson had agreed to give his two sons $150, if they would go ahead and do the best they could in working on the homestead farm owned by the father; that the sons, one of whom was 22 and the other 19, resided with their parents, except at such times as they worked out for themselves; that, instead of paying them the $150, the father deeded to them the two lots in question, and the jury found this consideration in support of the deed. Was this consideration sufficient to uphold the deed as to Jones Anderson? The evidence clearly established the fact of his minority when the promise was made by the father, and there was no evidence that he had reached his majority when the deed was executed. The jury found that when the deed was signed by Beverly Anderson and wife, he was indebted to his two sons in the sum of $150. Now, this indebtedness, so far as it related to the minor son, was created by the promise of the father to pay the son for doing that which the law says it was his duty to do. The father had not relinquished the right he had to the son’s services until he reached his majority. He was entitled to the very labor the son was to perform, without compensation; and it is difficult to see how any debt or obligation could be created which would support a consideration for the deed, so far as it related to this minor, as against existing and bona fide creditors of the father. The obligation rested upon the father to support the son, who in turn owed the father his services until he became of age. .The conveyance was voluntary so far as it related to the minor son, and was without consideration. A promise to do what one is already bound to do is not a consideration. (3 Am. & Eng. Encyc. of Law, p. 834, and authorities there cited.) While a voluntary conveyance of land from a parent to his infant would be valid, where the claims of creditors do not intervene, yet if creditors are prejudiced by such conveyance, they would have an equitable right to set it aside, or to avoid it to the extent at least of the' debts due them. (Field, Law of Infants, §51; Reeve, Dom. Rel. 422; Bump, Fraud. Conv. 232; Swartz v. Hazlett, 8 Cal. 118.) In the latter case, the court said:
“Where a parent executes to his infant son a conveyance of property in consideration of services performed,' it must be considered as a voluntary conveyance, without legal consideration, as he is not legally bound to pay for his son’s services. Such a deed is therefore void against the creditors of the parent, if made when his remaining property is insufficient to pay his debts.”
We think there was no evidence to support a consideration in the deed for the lots in question, from Beverly Anderson and wife to their minor son. We do not deem it necessary at this time to pass upon the sufficiency of the consideration of the conveyance as to William Mack Anderson.
We recommend a reversal of the judgment, and that a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
This case was tried in the court below on the following agreed statement of facts:
“That the plaintiff is now and for more than two years last past has been a railroad incorporation duly incorporated under the laws of the state of Kansas; that during all of said time it has been the owner of a right-of-way for its railroad across a part of section 31, township 25, range 11 east, in Greenwood county, state of Kansas; that its ownership of the aforesaid right-of-way was created by due and legal condemnation proceedings had by it to condemn a right-of-way through Greenwood county, Kansas, for its railroad, in accordance with the provisions of the laws of the state of Kansas, and that its only interest in the land is that acquired by such condemnation; that during the time aforesaid it has had and maintained a railroad over said right-of-way, which has been in and still is in operation, and that during said time it has been in the actual possession of said right-of-way; that in September, 1885, a road or highway, known as the ‘Wackett road/ was duly surveyed and viewed across said right-of-way and railroad in accordance with the provisions of law, and under due and proper proceedings and orders had and made by and before the board of county commissioners of Greenwood county, Kansas; that no notice of any kind or description of the meeting of said viewers, or of the view and survey of said road, was ever served upon the plaintiff or any of its agents, and that the plaintiff had no knowledge of the meeting of said viewers; that no person representing the plaintiff was present at the meeting of said viewers at the time they viewed and surveyed said road, and no claim for damages was presented to them on behalf of said plaintiff; that at the October, 1885, session of the board of county commissioners, the said road was duly and legally laid out and established by due orders, of all of which plaintiff had no knowledge, and that thereupon the said board duly and legally ordered said road to be opened; that the first knowledge plaintiff ever had of the establishing of said road, or of any proceedings for the establishment of the same, was when it was ordered by the township trustee and road overseer to open the same across its right-of-way, and to build and establish a crossing for the same over its railroad, after the same had been ordered opened; that pursuant to such notice by the township trustee and road overseer, the plaintiff built a crossing for said road, over and across its track and right-of-way, at the necessary expense of $134, as follows:
For one new cattle-guard.................................. $65 00
For moving old cattle-guard............................... 30 00
For moving fences to connect cattle-guards with fences..... 19 00
For two drain boxes...................................... 20 00
$134 00
“That the viewers in viewing said road did not allow plaintiff any damages, and that within a year after the viewing of said road and its establishment, the plaintiff caused a claim for its damages as herein above stated, to be duly presented to the board of county commissioners of Greenwood county, Kansas, at a regular session, for' allowance; that the said board at such session refused to allow said claim in part or in whole, and rejected the same; that thereupon the plaintiff duly appealed from said action to the district court of Greenwood county, Kansas, which said appeal constitutes this case; that if the plaintiff is in law entitled to recover upon the facts stated, it is- entitled to recover said sum of $134.”
The trial court rendered the following judgment:
“And now on this 5th day of March, of the January term of this court, in 1888, the above cause having been submitted to the court on agreed statement of facts here on file, and written briefs filed by counsel on each side, and duly considered by the court, the court finds for the plaintiff; and it is hereby ordered and adjudged by the court that the plaintiff recover of the defendant in the sum of $134, and the costs of this suit, taxed at $ — , to which defendant duly excepted.”
All exceptions and a motion for a new trial was overruled, and the cause brought here for review. The two questions discussed on each side are: First. Is a county liable in damages to a railroad company for laying out a public highway across its right-of-way when that is an easement only? Second. Are the damages claimed too remote? This court has decided in a similar case, K. C. Hid. Co. v. Comm’rs of Jackson Co., 45 Kas. 716, that “where a public highway is located and established across a railroad company’s right-of-way, the railroad company is entitled to just compensation for all its necessary expenditures in constructing cattle-guards and such other things as are required by the statutes to be constructed by the railroad company by reason of the highway.” An examination of the facts in each case will show that the only material difference in the proceedings in both cases is, that in the one no notice was given to the railroad company either of the petition for or the order of the board locating the highway; and the first knowledge the railroad company had of the proceedings to establish the highway was when the township trustee ordered the railroad company to open the same across its track or right-of-way. In the other case, the railroad was being operated by a lessee, and notice was given to the lessee, but not to the company that owned the railroad. With this difference, the cases are identical, and present the same questions.
Guided by the case cited, it is recommended that the judgment of the district court in favor of the railroad company be affirmed.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring; Johnston, J., dissenting.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Finney county, by E. A. Bagby against A. J. Hoshinson and 15 others, on a promissory note, which, omitting signatures, reads as follows:
“$3,892.28. Garden City, Kas., December 27, 1886.
“For value received, six months after date, we promise to pay to the order of the Banh of Western Kansas, thirty-eight hundred ninety-two and dollars, at its office in Garden City, Kas., with interest at the rate of 12 per cent, per annum from maturity until paid, and we hereby waive all notice of protest, and agree to extensions of this note without notice.”
The note was signed by all the defendants. The plaintiff alleged in his petition that he was the owner of the note, and he attached a copy thereof, with all the indorsements thereon, to his petition, and made the same a part thereof. The indorsements read as follows:
“Pay the within to E. A. Bagby, without recourse to the Bank of Western Kansas. 22d July, 1887. F. M. Dickey, cashier of Bank of Western Kansas.”
Each defendant answered separately, setting forth that he had signed the note, but that the note was intended to be given as a renewal, and in lieu of another note signed by all the defendants and H. P. Myton, with the agreement that the note sued on should not have force or effect unless all the makers of the original note should sign the new one, and that H. P. Myton did not sign the new one, and that the new note now in suit “was assigned to the plaintiff by the Bank of Western Kansas” after maturity, and with a full knowledge on his part of the above facts; and that the new note was given without consideration. The answer of each of the defendants was verified by affidavit, and the plaintiff replied to each answer by filing a general denial, except as to matters admitted by the defendants, and the replies were not verified by affidavit. The case was tried before the court and a jury, and the jury found generally and specially in favor of the plaintiff and against the defendants, assessing the amount of the plaintiff’s recovery at $4,189.39; and, upon the general verdict and special findings of the jury, the court rendered judgment in favor of the plaintiff and against the defendants for the amount found due by the jury; and 12 of the defendants, as plaintiffs in error, have brought the case to this court, making the plaintiff below the defendant in error.
The first alleged error is as follows : “ The court erred in refusing the defendants each a separate trial, and in overruling their applications for separate trials.” Section 268 of the civil code provides as follows:
“Sec. 268. A separate trial between the plaintiff and any and all of several defendants may be allowed by the court whenever justice will be thereby promoted.”
It is within the discretion of the trial court to allow separate trials to the several defendants in an action, or to refuse the same, and its ruling upon the subject will never be reversed, unless it can be clearly seen that the trial court abused its discretion. ([Rice v. Hodge, 26 Kas. 164.)
The next alleged error is as follows: “ The court erred in permitting the plaintiff to read the note sued on in evidence over the objections of the defendants.” There was certainly no error in this, and for several reasons: It was admitted by the defendants that they signed the note sued on, and that the same “was assigned to the plaintiff by the Bank of Western Kansas,” the payee thereof; and the plaintiff before reading the note in evidence showed that he was in the possession of the same, and had been for some time prior to the commencement of this action. Indeed, sufficient was admitted by the defendants in their several answers to make out a prima facie case against them and in favor of the plaintiff. The following instruction given by the court to the jury states the law correctly, to wit:
“ Y ou are instructed that the possession of the note by the payee thereof is prima facie evidence of its delivery, which must be overcome by evidence of the defendants; otherwise it must be regarded as sufficiently proved.”
As the plaintiff by the pleadings and also by the evidence made out a prima facie case concerning the execution of the note and its delivery, as well as everything else necessary to entitle him to recover, it then devolved upon the defendants to prove their affirmative defenses, that there was a parol agreement, and other facts on account of which the note was not regularly executed or delivered, and that it was without consideration. There can really be no pretense that the note was without consideration; and as to whether it was properly executed and delivered or not, the jury found against the defendants and in favor of the plaintiff, both generally and specially, and upon sufficient evidence. From the evidence in the case, it would seem that the note, from its inception up to the time when it was transferred to the plaintiff, was in the possession of the Bank of Western Kansas by one or more of its agents, and since, it has been in the possession of the plaintiff. It was an agent of the bank who procured the signatures of the defendants to the note.
There are some other questions presented and claims of error made, but we do not think that any of the questions are of a substantial character, or that any of the claims of error are tenable.
Upon the entire record in the case we think the judgment of the court below is correct, and it will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action upon a promissory note, executed by John M. Ostrander, on the 2d day of September, 1885, to Frank G. Willard, for the sum of $965, payable in 1 year and 11 months after date, with interest at 12 per cent, per annum. The answer of Ostrander admitted the execution of the note, but alleged that it was given in part payment for a flock of sheep purchased of Willard; that Charles Weeks, the duly-authorized agent of Willard, sold and delivered to Ostrander 2,173 head of sheep for $5,358, and warranted them to be sound, healthy, and free from all disease; that the entire purchase-price for said sheep had been paid except the note sued upon and one other note for $965.11, of which $200 had been paid; that the two notes mentioned were secured by a chattel mortgage upon the sheep so sold, but not upon the wool. The answer further alleged that at the time of the sale and delivery the sheep were not in a healthy condition and free from disease, but had a contagious disease known as mange, scab, or itch, all of which was well known to the plaintiff; that at the time of the purchase Ostrander was the owner of a large herd of other valuable sheep, and that the sheep purchased of the plaintiff were bought for the purpose of increasing his herd, and to be kept with them on his sheep ranch in Trego county, all of which was made known to the plaintiff; that the defendant relied upon the representations and warranty of the plaintiff, took said sheep into his possession and upon his ranch, and permitted them to mix indiscriminately with his other sheep, until he discovered their diseased condition; that the disease was communicated to the defendant’s other sheep, by reason of which 300 sheep and lambs belonging to the defendant died, and that he was thereby damaged in the sum of $750; that the remainder of this flock, consisting of 1,873 sheep, were depreciated in value in the sum of 75 cents per head, aggregating $1,404.75; that he had been damaged by labor and expenses necessarily incurred in the care of the sheep to arrest the spread of and to cure the disease, for medicine and costs of dipping 2,700 sheep, $200, making a total loss and damage to the defendant in the sum of $2,354.75. The answer further alleged that the notes were the property of the plaintiff, and that they were fraudulent and void-in law, and asked judgment that the plaintiff be ordered to bring each of the notes mentioned into court" for cancellation; and also asked judgment for $424, the balance due him for his damages after the cancellation of said notes, with 7 per cent, interest; that in case the plaintiff, from any cause, should fail to bring the notes into court for cancellation, then that he have judgment against the plaintiff for the sum of $2,354.75, his damages and costs, with interest on $1,930, from September 2, 1885. A general denial was filed to the answer. The action was tried on the 19th day of September, 1888, in the district court of Trego county. The jury returned a verdict in favor of the defendant, assessing his damages at $2,191.56.
It is claimed that the’ defendant’s right of recovery, if any, was based exclusively upon a written bill of sale executed by Weeks as agent for the plaintiff in error, and that the court erred in permitting oral evidence to be introduced in relation to the warranty. It seems from the evidence that negotiations had been pending for some time between Ostrander and Weeks, the agent of the plaintiff in error, for the purchase of the flock of sheep in question. The sale was consummated on the 2d day of September, 1885, and the notes and a chattel mortgage were executed, but the cash payment of $1,500 was not made until the 14th day of September, when the following bill of sale was executed and delivered to the defendant in error:
“Know all Men by these Presents: That, in consideration of the sum of $5,358, the receipt of which is hereby acknowledged, I do grant, sell, transfer and deliver unto John M. Ostrander, of Wa Keeney, Kas., him and his heirs, executors, and administrators and assigns, the following goods and chattels, viz.: Eleven hundred grade ewes, known as the Willard ewes, said ewes are all over-to four years of age, except 50, which may be over four years of age; also 433 lambs and 640 wethers, from one to two years of age, all of which are free from disease, and in a healthy condition, to the best of my knowledge and belief: To have and to hold all and singular the said goods and chattels forever. And the said grantor hereby covenants with the said grantee that he is the lawful agent of the said goods and chattels; that they are free from all incumbrances; that he has good right to sell the same as aforesaid, and that he will warrant and defend the same against the lawful claims and demands of all persons whomsoever.
“ In Witness Whereof, The said grantor has hereunto set his hand this 14th day of September, 1885.
Charles Weeks, Agent.
“Executed in the presence of John H. March.”
It was claimed by the defendant in error, that after he had prepared this bill of sale and delivered it to Weeks for execution, he inserted after the words “healthy condition,” “to the best of my knowledge and belief;” that after obtaining the signature Ostrander placed the paper in his pocket, and did not examine it until some weeks after, when he discovered that some of the sheep were diseased. The court below permitted oral evidence to be introduced in relation to the purchase of the sheep, and, when it was disclosed that a bill of sale had been given, refused to exclude from the jury all evidence as to a parol contract. This is the controlling question in this case. A careful examination of the evidence in this case convinces us that this purchase was concluded and is evidenced by this bill of sale, and that all parol evidence should have been excluded when it was ascertained that the bill of sale had been executed. The pleadings were silent as to this instrument. There was no pretense that fraud had been practiced in its execution, but the claim is made by the defendant in error that this bill of sale is not the contract the parties entered into; that he did not accept it as such contract; that he affirms instead the contract set up in his answer; that after Weeks had executed the bill of sale he put it in his pocket, but did not accept it, because he found that the words “to the best of my knowledge and belief” had been added to the instrument after it had been delivered to Weeks for his signature. It is not claimed that there was any change in the writing after Weeks had signed it. The paper remained in the possession of the defendant in error or his attorneys all the time until it was produced in court. We do not think he can now be heard to say that the bill of sale is not the contract of purchase. He held it for two years, admitted to several parties that he had a warranty, and never intimated to the plaintiff in error that there was anything wrong with the bill of sale, but refused to let him examine it. The action of the defendant in error showed that he accepted the bill of sale. It was clearly his duty to read it after its execution and delivery, and he cannot now say that it is not the contract of purchase. If a change had been made in the instrument without his knowledge, he should ha.ve repudiated the contract as soon as he discovered the change. He admitted that he looked at the contract a few weeks after it had been, delivered to him, and found there had been an alteration, but he said nothing about it. He met the plaintiff in error frequently, and paid him different sums of money upon the said transaction, and yet made no objection to the bill of sale. In the case of Grace v. Adams, 100 Mass. 507, the supreme court of that state held that a party accepting a receipt was bound by its terms. The court, through Colt, J., said:
“The receipt was delivered to the plaintiff as the contract, of the defendants; it is in proper form, and the terms and conditions are expressed in the body of it in a way not calculated to escape attention. The acceptance of it by the plaintiff, at the time of the delivery of his package, without notice of his dissent from the terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know, when he took it, that it was a shipping contract or bill of lading. It was his duty to read it. The law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, and was willing to assent to its terms without reading it. Any other rule would fail to conform to the experience of all men. Written contracts are intended to preserve the exact terms of the obligations assumed, so that they may not be subject to the chances of a want of recollection or an intentional misstatement. The defendants have a right to this protection, and are not to be deprived of it by the willful or negligent omission of the plaintiff to read the paper.”
The same doctrine is stated in Bigelow on Fraud, 525:
“No doubt it would be imprudent, in a sense, not to read or to require the reading of an instrument before signing or accepting it; indeed, the courts would turn a deaf ear to a man who sought to get rid of a contract solely on the ground that its terms were not what he supposed them to be.”
The same rule is laid down it Hawkins v. Hawkins, 50 Cal. 558; Bacon v. Markley, 46 Ind. 116; Taylor v. Fleckenstein, 30 Fed. Rep. 103; Hazard v. Griswold, 21 id. 178; Ricev. Mfg. Co., 2 Cush. 87; and Jaeger v. Whitsett, 3 Colo. 105.
The validity of the bill of sale was not challenged by the ■ pleading, and, the defendant below having accepted it, we think he cannot now be heard to say that it was not the contract. When it was disclosed that there was a bill of sale given at the final consummation of the purchase of this flock of sheep, it was clearly the duty of the court to have excluded all oral evidence in relation to the sale. The rule is stated by the supreme court of Mississippi:
“When parties have deliberately put their engagements in writing, it is conclusively presumed that the whole contract, and the entire extent of their undertakings, were reduced to writing; and oral testimony of a previous, contemporaneous or subsequent colloquium is rejected, as it would tend to substitute a new contract for the one really agreed on.” ( Wren v. Hoffman, 41 Miss. 619, and authorities there cited; Kerr v. Kuykendall, 44 id. 146.)
This court has said in one of the early cases that where one of the main questions in dispute, the initital point in the case, is an alleged purchase, and it is disclosed that the alleged purchase was concluded in and is evidenced by a bill of sale, all parol testimony should be excluded until the writing is produced. The latter is the best evidence. (Barnett v. Williams, 7 Kas. 341.)
In Dunn v. Hewitt, 2 Denio, 637, it was held that where a bill of sale had been given for the purchase of personal property, a party making title by virtue of such purchase must produce the writing, and,cannot prove the transfer by parol; and where the existence of the bill of sale was first disclosed on cross-examination of a witness who had orally proved the transfer on his direct examination, the parol testimony should be stricken out.
In Van Ostrand v. Reed, 1 Wend. 424, it was decided that a party, on the sale of an article, made representations amounting to a warranty, and the sale was consummated by a written transfer without a clause of warranty being inserted. The vendee, in an action of assumpsit, was not permitted to show the representations and assertions made previous to the execution of the instrument of transfer, the presumption of the law being that the writing contained the whole contract. The supreme court of Iowa has enunciated the same rule. All agreements and negotiations preliminary or contemporaneous to the written contract are merged therein, and the party signing a contract without having read it, or taken precautions to ascertain its contents, is bound thereby. (M. & St L. Rly. Co. v. Cox, 76 Iowa, 306; McCormack v. Molburg, 43 id. 561; McKinney v. Herrick, 66 id. 414.)
It is contended by the defendant in error that the warranty was given after the sale was consummated, and was therefore void. The evidence does not sustain this position. The cash payment of $1,500 was made the same day the bill of sale was executed, and the defendant below insisted that he should have a contract in writing.
The view we take of the law applicable to this case necessitates a reversal, for the reasons stated upon the first assignment of error. It will not be necessary for us to consider the other numerous assigned errors, as they will not likely occur again upon a second trial. It is recommended that the judgment of the district court be reversed, and a new trial be granted.
By the Court: It is so ordered.
All the- Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Dennis Moran was informed against by the county attorney of Bourbon county for an assault with intent to kill Alexander Mason, on the 16th day of November, 1888. He was tried, and convicted “of an assault with intent to commit manslaughter.” He was sentenced to confinement at hard labor in the penitentiary of the state for the term of 18 months. From the sentence and judgment rendered against him he appeals to this court. The evidence of Alexander Mason, the prosecuting witness, was as follows:
“I live in Bourbon county in this state, two miles south and one-half mile east of Fulton. I am acquainted with the defendant, Dennis Moran. On or about the 16th day of November, two years ago, in the evening between 5 and 6 o’clock, in Bourbon county, in this state, I was doing up my chores, and somebody called me, and I answered. I was in the barn putting in corn for the team, and I answered and asked who it was. I stepped out and saw it was Den. Moran; I walked out toward him and said, ‘Den., go home; I don’t want to talk to you.’ He said, ‘You God damn son of a bitch, I am going to kill you,’ and shot. When I saw him draw his revolver I hallooed to Mrs. Graham; she stepped to the door and saw him shoot. I hallooed to her to get me my gun. He snapped his revolver twice, and then put spurs to his horse. I was about 15 or 16 steps from Moran when he shot at me; I heard the bullet whiz by me about a foot or two from my face; I had been shot at before, and had heard a bullet whiz by me once before. The bullet struck the ground after it passed me about 12 or 15 feet; I looked for the bullet the next day and dug it out of the ground; I have that bullet now in my pocket; here is the bullet; I have kept it ever since in my possession. Moran, when he rode up, after he stopped, drew his revolver, held it in his right hand and shot at me; and after he snapped his revolver twice and it did not go off, went east up the road as far as I could see him. I afterward went on and did up the night’s work, and then went over home, and they informed me that Dennis Moran had had trouble in town that afternoon with my brother Robert. Then I came to town and got out the papers. I did not have any weapons on me at the time Dennis Moran shot at me; had been plowing on the farm all day, and had just come in from work and was putting up the team and feeding them; I looked at the clock when I went to the house, to see what time it was; it was just about sunset the time the shooting took place.”
The defendant, Dennis Moran, testified in his own behalf as follows:
“On November 16, 1888, I was in Fulton; I had some trouble with Robert Mason; I had left town and was going out home that night along just before dark, and as I was going by Alee Mason’s, Mason came running out with a scoop shovel in his hand, and said to me, ‘Come in, you son of a bitch; you licked my brother, but you can’t lick me.’ This was the first thing that was said between Alec Mason and myself. Then he called for his revolver, and started for the house to get it, and after he started for the house, I pulled my revolver and shot twice in the ground, near the fence; I did not shoot at Alec Mason, I merely shot in the ground; I did not see anybody there; I did not see Mrs. Graham; I had known and heard of a great many threats made by Alec Mason. Several parties had told me he intended to kill me as soon as he got a chance, and when he made the threat that he did and called for his revolver, on November 16,1 shot twice as I said, into the ground, to scare him, in order that I might have the opportunity to run my horse and get away from him before he could get his revolver and shoot me; that is the reason that I shot twice as I did; I expected him to kill me at that time if he could get his revolver. I have always shunned him if I could; I have always been afraid that he would shoot me, or that I would have trouble with him when I met him. Mrs. Foster had told me of his threats, and several others; I never made any threats against him in my life; I had had enough trouble with the Masons; they had sworn a bastard child on me, and I afterward brought suit for malicious prosecution against them, and recovered a $700 judgment off of them, and I was tired of having anything more to do with them.” ’
The court charged the jury, among other things, as follows:
“In order that you may convict the defendant of assault with intent to commit manslaughter, it is incumbent on the prosecution to prove to your satisfaction, beyond a reasonable doubt, that the defendant, at the county of Bourbon, state of Kansas, on or about the 16th day of November, 1888, did shoot at the said Alexander Mason with a pistol loaded with gunpowder and ball, with the intent to kill said Mason. In order to convict the defendant of the crime of assault with intent to commit manslaughter, it is not necessary that the defendant should have had a settled and premeditated design formed before the shooting, if he did shoot to kill said Mason, but he must have shot, with the intent in his mind at the time of the shooting, to kill said Mason. Within' the charge are included the minor offenses of assault with intent to commit manslaughter and simple assault.”
Upon the facts testified to by the prosecuting witness, the trial court committed error in charging the'jury concerning manslaughter. If the assault was made as testified to by the prosecuting witness, the defendant was guilty of assault with intent to kill and murder. If Alexander Mason had been shot and killed by Dennis Moran at the time of the alleged shooting, Moran would have been guilty of murder in the first degree, or murder in the second degree. Within the provisions of the statute, he would not have been guilty of manslaughter in any degree. (Gen. Stat. of 1889, ¶¶2133-2151, 2159.) Where an assault is made by a person with intent to take the life of another, and the killing is not lawful or excusable, if death should ensue, the party would be guilty of murder. Excepting under certain circumstances not embraced within the facts testified to in this case, a defendant could not be convicted of an assault with intent to commit manslaughter, where the facts show that he intended to commit murder. (The People v. Lilley, 43 Mich. 521; The State v. White, 41 Iowa, 316; 5 Lawson, Def. Crime, p. 783.) The use of the word manslaughter ” in the charge of the district court may have misled the jury, and therefore the charge was prejudicial. (The State v. Mize, 36 Kas. 187.)
- Further, it appears from the record that the defendant, Moran, was absent, with the consent of the court, while one of the witnesses upon the part of the state was testifying. This is fatal error. (The State v. Myrick, 38 Kas. 238.) In that case it was said
“ Section 207 of the criminal code prohibits the trial of any person accused of felony, unless he is personally present throughout the trial; and it is therefore error for the court, in a prosecution for felony, to recall the jury and give further instructions while the defendant is absent and under confinement in jail. In such case, the presence and consent of defendant’s counsel did not waive or cure the illegality.”
The other questions presented need not be discussed. The judgment of the district court will be reversed, and the case remanded for a new trial.
Johnston, J. concurring.
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus, brought originally in this court by the Columbus Water-works Company against the city of Columbus and its officers and others, to compel the defendants to levy and collect certain taxes, especially a tax sufficient to raise the sum of $3,000, with which to pay for the use of 50 hydrants for the year 1891. The facts supposed to be involved in the decision of this controversy have been largely agreed upon by the parties, and evidence has also been introduced. It is admitted by the parties that from a time prior to March 23, 1887, up to the present time, the city of Columbus has been a city of the second class; and it is claimed by the plaintiff that on that day an ordinance was duly passed by the city council, and approved by the mayor, and afterward published, granting to R. A. Long and L. L. Doubleday, and their heirs and assigns, the exclusive right and privilege to construct a system of waterworks in such city, and to maintain the same for a period of 99 years, and binding the city to pay for the use of at least 50 hydrants the sum of $60 a.year for each hydrant, for the period of 21 years; that the provisions of the ordinance were duly accepted by Long and Doubleday, and that afterward they constructed the water-works in accordance with the terms and provisions of the ordinance, and that the water-works and hydrants were approved and accepted by the city. Afterward, and on February 9,1888, Long and Doubleday sold, assigned and conveyed all their rights and interests in and to the water-works to the present plaintiff, the Columbus Water-works Company. Afterward the city levied taxes to pay for the rent of the hydrants for the years 1888, 1889, and 1890, and paid the rent for such hydrants up to the middle of the year 1890, the payments being made semi-annually, when the city refused to levy any further taxes or to pay any further rent; and this action is brought principally to require the city to levy a tax for the payment of such rent for the year 1891.
The question as to whether an action of mandamus is the proper remedy or not is waived by the defendants so far as to enable this court to determine the question whether the city is liable or not under or in accordance with the terms and provisions of the aforesaid city ordinance. They claim that the ordinance is wholly void for the reasons hereafter stated. It is claimed on the part of the city that a city of the second class has no power by ordinance, or in any other manner, to enter into a contract such as was attempted to be made between the city of Columbus and Long and Doubleday in the present case; and this for the following reasons: First, it is claimed that the contract grants exclusive rights and privileges, and this for such a great length of time that they amount in effect to a perpetuity. Second, it is claimed that no such contract, as was attempted to be made in the present case, nor any contract like it, can be made except under or by virtue of a valid city ordinance, properly passed and published. Third, it is claimed that the ordinance under which the plaintiff claims in the present case is not a valid ordinance, for the reason that the records of the city do not show that, on the final passage of the ordinance, the yeas and nays were taken and entered upon the journal by the city clerk, but on the contrary show otherwise; and that in fact the yeas and nays were not taken, nor was there any vote taken upon the final passage of the ordinance. Fourth, it is claimed that the journal of the city council’s proceedings is the only evidence that can be considered in ascertaining the facts with regard to whether a city ordinance was passed or not, and the manner in which it was passed. Fifth, it is also claimed that nothing could afterward be done by the city or Long and Doubleday, or between the parties, that would make the aforesaid ordinance valid, or that would make the contract entered into under it valid, or that would give to either any force or effect whatever.
The plaintiff claims the reverse of all this. It claims that a valid contract, such as was made in the present case between the city and Long and Doubleday, requiring, among other things, the city to pay rent for hydrants, could be made by the city either by means of an ordinance or otherwise; that the ordinance in the present case was regularly passed, approved, and published; that the yeas and nays on its final passage were in fact taken; that this may be shown and has been shown by the evidence introduced in this case, and the facts agreed upon outside of the journal; that this evidence and the agreed facts do not contradict the journal, but simply supply an omission; but whether they do contradict the journal or not, or whether the original ordinance and the original contract were valid or not in their inception, is now immaterial, for the reason that the parties have since so acted as to ratify and confirm the contract, and make it valid and binding upon both parties.
The facts with respect to the passage of the original ordinance, which was numbered 70, and the facts claimed by the plaintiff to show a ratification and affirmance of the ordinance and of the contract made under it, and the facts claimed to create an estoppel against the city, are substantially as follows: On March 23,1887, the council of the city of Columbus were regularly convened in special session, the mayor, E. A. Crew-son, presiding. The aforesaid ordinance was presented to them for their consideration. It contained 16 sections. Each of these sections was considered separately by the council, and a vote taken thereon by yeas and nays, and upon each section there were five yeas and one nay — Councilmen Lea, Malone, Morris, Spencer and Bowles voting yea, and Councilman Vincent voting nay. It does not appear that there were any other councilmen of the city of Columbus at that time, and probably there were not. As to whether any vote was taken upon the final passage of the ordinance, the journal shows as follows:
“Section 1 was read. The mayor then submitted the question: ‘Shall said section 1 of ordinance No. 70 be passed as read?’ On call of roll, the members voted as follows: Vincent, no; Lea, aye; Malone, aye; Morris, aye; Spencer, aye; Bowles, aye. There being a majority of the council elect voting for the passage of said section, the same was declared duly passed and adopted.
“Each subsequent section of said ordinance, from i to 16, inclusive, was read separately and voted on separately by calling the ayes and nays, and each vote on each section separately resulted in five votes for the passage of each section of said ordinance; Morris, Malone, Spencer, Lea and Bowles voted aye, and Vincent voting nay upon each section. The mayor now declared that each section of said ordinance from 1 to 16, inclusive, has been separately passed by a majority of the council elect; that therefore he declared said ordinance duly passed; that he thereupon approved and signed said ordinance. The same was duly attested by the city clerk, and the city clerk was ordered to have the same published as provided by law. On motion the council now adjourned.’-’
Affidavits of Councilmen Vincent and Malone, which affidavits were by consent introduced in evidence, show that no vote was had upon the final passage of the ordinance; while, on the contrary, the deposition of E. M. Tracewell, who was the city clerk and also the city attorney, and the affidavits of Councilmen Lea and Bowles, all of which were by consent introduced in evidence, show that a vote was had upon the final passage of the ordinance, that the yeas and nays were taken, and that Councilmen Lea, Malone, Morris, Spencer and Bowles voted in favor of the ordinance, while Councilman Vincent voted against it. Also the ordinance appears to be valid upon its face. It was duly approved by the mayor, attested by the clerk, and published. Afterward, and on April-8, 1887, the council were in regular adjourned session. Mayor Crewson and Councilmen .Lea, Bowles, Malone, Spencer, Morris and Vincent were present, and at such meeting the minutes show, the written acceptance of Long and Doubleday “ of ordinance No. 70, as passed by the council on the 23d day of March, 1887, granting to the said Long and Doubleday a franchise and contract for the erection of water-works in the said city,” was presented to the council, and by order of the council was spread upon the record as a part of the minutes; and the acceptance itself shows that it was an acceptance of the provisions of “ordinance No. (70) seventy, passed by the mayor and councilmen of the city of Columbus, Kas., at a special meeting called for the purpose and held on the 23d day of March, 1887.” Long and Doubleday then commenced openly and publicly to construct the water-works in accordance with the provisions of said ordinance No. 70, and continued to so construct them until they were finally completed, in December, 1887, without objection on the part of anyone; and in constructing them they expended a great deal of money and labor. On May 25, 1887, after there had been a change with regard to the person occupying the mayor’s office, and a partial change with regard to the members of the council, another ordinance, numbered 71, was duly passed, purporting to amend sections 6 and 7 of the original ordinance, No. 70, authorizing the use of a stand-pipe, etc., upon the passage of which ordinance all the members of the city council present, to wit, Malone, Morris, Butler, Crisman, Wilson, and Bowles, voted for the amendatory ordinance. Couneilmen Vincent and Best were absent. This ordinance was approved by the new mayor, R. N. Cheshire. On June 13, 1887, at a special meeting of the city council, called by the mayor at the request of Couneilmen Crisman, Vincent, and Bowles, at which meeting all the members of the council and the mayor were present, the hydrapts provided for by the original ordinance No. 70 were located. At the regular meeting of the city council, on October 3, 1887, Long and Doubleday were present and asked for an extension of time for the completion of the water-works; and the city council then passed an ordinance, No. 75, purporting to amend section 16 of the original ordinance, No. 70, so as to extend the time for the completion of the water-works to January 1, 1888; on the final passage of which ordinance No. 75, Couneilmen Morris, Crisman, Wilson, Malone, Butler and Bowles voted yea, and Councilman Vincent voted nay. This ordinance was approved by the mayor, Cheshire, and was duly published. At a special meeting called by the mayor, upon the request of Couneilmen Wilson, Butler, and Morris, and held on January 27, 1888, the following proceedings were had, as shown by the minutes, which read as follows:
“Pursuant to the foregoing call, the council met at 8 o’clock p. M., Mayor Cheshire presiding. On roll-call the following couneilmen responded ‘present:’ Morris, Crisman, Butler, Malone, and Bowles. The mayor then stated that all councilmen elect had been personally notified of the call for this special meeting, and announced that the council would now proceed with business before them, there being a quorum present. Councilman Malone then requested a report from Councilman Crisman as chief of the fire department, as to the efficiency of the water-works and the test made of same. Councilman Crisman then stated in open council that in accordance with § 9 of ordinance 70, granting to R. A. Long and L. L. Doubleday a franchise to construct and operate water-works in the city of Columbus, Kas., that a test of the water-works aforesaid having been made by the fire department, mayor and council of said city, on or about the 30th day of December, 1887, and a second test made January 6, 1888, and that from such test said water-works fulfilled the requirements of said ordinance. He thereupon introduced the following resolution:
“ ‘Be it Resolved by the Mayor and Council of the city of Columbus now in Council Assembled, That the water-works constructed in the city of Columbus, by Messrs. R. A. Long and L. L. Doubleday, under and by virtue of ordinance No. 70, entitled ‘An ordinance granting to R. A. Long and L. L. Doubleday, their heirs and assigns, the right to construct and operate water-works in the city of Columbus, Kas., also contracting for the supply of water for extinguishing fires and other purposes,’ and also under ordinances numbered 71 and 75, being amendments to said ordinance No. 70, be and are hereby approved and accepted, and that the rental of the fire hydrants of said water-works constructed as aforesaid shall commence on January 1, 1888.
J. A. Chisman, Chief of Columbus Fire Department.’
“By motion, Councilman Bowles moved that said resolution be adopted, and that it be voted upon by yeas and nays. The roll of councilmen then being called, the-vote was as follows: Morris, aye; Crisman, aye; Butler, aye; Malone, aye; and Bowles, aye. The mayor then declared the resolution unanimously adopted.' There being no further business, the council adjourned. R. M. Cheshire, Mayor.
“Attest: W. J. Moore, City Cleric.”
Afterward, and for the years 1888, 1889, and 1890, taxes were levied by the city to pay for the use of the hydrants, as provided for in the original ordinance No. 70, and the rent for such hydrants was in fact paid for the years 1888, 1889, and the first half of the year 1890. The plaintiff, the waterworks company, and its predecessors, Long and Doubleday,' complied with all the terms and provisions of all the ordinances, and fulfilled their part of the contract in every respect, furnishing to the city the hydrants and the water contracted for; while the city, on its part, complied with all the terms and provisions of the ordinances, and fulfilled its part of the contract by receiving the hydrants and the water, and levying taxes to pay for the same, and paying for the same up to July, 1890, when the city refused to levy any further taxes or to pay any further rent for the hydrants.
The only grounds upon which it is now claimed that ordinance No. 70 is not valid are, that no vote was taken upon’ its final passage; that the yeas and nays upon its'final passage were not taken, and that they were not entered upon the journal by the city clerk; and it is claimed that all these things must occur in order to render the ordinance valid. Section 9 of the second-class-city act, so far as it is necessary to quote it, reads as follows:
“ Sec. 9. All ordinances of the city shall be read and considered by sections at a public meeting of the council, and the vote on their final passage shall be taken by yeas and nays, which shall be entered on the journal by the clerk, and no ordinance shall be valid unless a majority of all the members elect vote in favor thereof.”
In our opinion the evidence satisfactorily shows that the ordinance was finally passed; that a vote was taken upon its final passage; that the vote was taken by yeas and nays; that Councilmen Morris, Malone, Spencer, Lea and Bowles voted yea, and that Councilman Vincent voted nay; but that such vote was not entered upon the journal by the city clerk; and the clerk himself testifies with reference to how this failure happened. The clerk at the time was Edward M. Tracewell. He was also at the same time the city attorney, and he advised the council not to pass the ordinance. The meeting was held in the office of the mayor, while the journal was'at his own office, in another part of the city. Tracewell, at the time the ordinance was passed, had, as the city attorney, the statutes prescribing how city ordinances should be passed open before him, and he remembers not only that a vote on the final passage of the ordinance was taken, and that it was taken by yeas and nays, but also that it was taken in exact accordance with the statutes, as he then had them open before him. He took minutes of the meeting at the time on slips of paper, but afterward, when he came to record the minutes, he thinks he must have lost the slip containing the final vote, and by that means failed to enter it upon the journal. His evidence is contained in a deposition, and counsel for the city appeared at the time the deposition was taken and cross-examined him. Upon the entire evidence, we think the ordinance was legally and properly passed; that the vote on its final passage was taken by yeas and nays, and was in all probability entered upon a slip of paper, but was not properly entered upon the journal; and this is the only irregularity. Will this irregularity render the ordinance invalid? It is not every irregularity that will invalidate an ordinance. Many irregularities may occur in bringing an ordinance into existence, or in recording or preserving the evidence of its existence, and the ordinance still be valid. (City of Troy v. A. & N. Rld. Co., 11 Kas. 519; City of Solomon v. Hughes, 24 id. 211.) The ordinance in the present case was passed by the city council, approved by the mayor, and attested by the clerk, all on March 23, 1887, and it was duly published on April 8, 1887; and it appears to be valid upon its face-Whether at the time of its publication any of the minutes of the meeting of March 23, 1887, had been entered upon the journal, the evidence does not show. That some of such minutes had not been so entered, the evidence does, however, show. And will this failure, or any failure on the part of the clerk to properly enter the minutes upon the journal, ren-" der the ordinance invalid, or place it in abeyance until he does so enter the minutes upon the journal? Usually the failure of the clerk to make proper entries of the proceedings of the body or tribunal for which he acts as clerk will not invalidate such proceedings. (Gillett v. Comm’rs of Lyon Co., 18 Kas. 410; K C. Ft. S. & G. Rld. Co. v. Tontz, 29 id. 460.) Even a judgment may be valid and binding before any entry thereof is made, or notwithstanding an improper entry thereof. Upon this subject Mr. Black, in his work on Judgments, (Yol. 1, §§106, 110,) uses the following language:
“The rendition of a judgment is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy, as ascertained by the pleadings and the verdict. The entry of a judgment is a ministerial act, which consists in spreading upon the record a statement of the final conclusion reached by the court in the matter, thus furnishing external and incontestable evidence of the sentence given, and .designed to stand as a perpetual memorial of its action. It is the former, therefore, that is the effective result of the litigation. In the nature of things, a judgment must be rendered before it can be entered. And not only that, but though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor ■ does its vitality remain in abeyance until it is put upon the record. The entry may be supplied, perhaps after the lapse of years, 'by an order nunc pro tunc. But it must not be supposed that this proceeding is required to give existence and force, by retrospection, to that which before had none. As is said by the supreme court of California: ‘The enforcement of a judgment does not depend upon its entry or docketing. These are merely ministerial acts, the first of which is required to be done for putting in motion the right of appeal from the judgment itself, or of limiting the time within which the right may be exercised, or in which the judgment may b.e enforced ; and the other, for the purpose of creating a lien by the judgment upon the real property of the debtor. But neither is necessary for the issuance of an execution upon a judgment which has been duly rendered. Without docketing or entry, execution may be issued on the judgment and land levied upon and sold, and the deed executed by the sheriff in fulfillment of the sale, not only proves the sale, but also estops the defendant from controverting the title acquired by it/ And it follows, a fortiori, that if the entry, though attempted to be made in due form, does not correctly record the sentence of the court, or is defective or ambiguous or otherwise exceptionable, still this will not weaken the force of the judgment as a judgment/7 (Sec. 106.)
“The object of this entry is to furnish an enduring memorial and incontestable evidence of the judgment, and to fix its date for purposes of appeal or creating a lien. But, as was stated in the beginning of this chapter, this proceeding is min isterial only, and is not essential to the validity of the judgment itself. It is none the less the judgment of the court because not entered by the clerk; and, except for certain special purposes, it does not remain inchoate or unfinished until so entered. Hence the neglect or failure of the clerk to make a proper entry of record of the judgment, or his defective or inaccurate entry of it, will not, as between the parties, operate to invalidate the judgment. ‘The fact that the clerk did not perform his entire duty in making up the record cannot deprive parties of their rights.’” (Sec. 110.)
' Suppose that in the present case, after the ordinance was passed, approved, published, and accepted, Long and Doubleday had immediately constructed the water-works at a cost of perhaps $75,000, and suppose that the minutes of the passage of the ordinance had not yet been entered by the clerk upon the journal, or had been entered inaccurately: would all that had been done be void, and would Long and Doubleday have no remedy? This certainly cannot be the law. Could the city clerk, by his failure to perform his duty, defeat the ordinance and everything done under it? Or could all the officers of the city combined, after the ordinance has been acted upon by others, destroy its effect, and repudiate all obligation under it on behalf of the city? For the purposes of this case, but without so deciding, we shall assume that an ordinance in the nature of a law regulating future conduct would be void unless the journal kept by the city clerk should show that the ordinance was regularly passed; but can it be possible that an ordinance in the nature of a contract between the city and an individual person should be void because of any failure on the part of the city clerk to enter upon the journal an accurate statement of the passage of the ordinance ? Can contracts between cities and individual persons be destroyed, canceled or annulled in that manner? Can a city, after inducing persons to expend time, labor and money under an ordinance regularly passed, approved, attested, published, and accepted, then take advantage of any failures on the part of its own officers to perform their duties, and repudiate its own obligations? It must be remembered that in this case the work of constructing the water-works went on at great cost, openly and publicly, from month to month, under the eyes of the officers of the city and its inhabitants, without objection, but really with encouragement, until they were finally completed ; and can the contract now be repudiated by the city ? We would think not, and, as we have all the interested parties before us — the city in its corporate capacity, and nearly all its officers, its mayor, its councilmen, the city clerk, the city treasurer, and others — we think we can make an order that will do full justice in the case. It is our opinion that a peremptory writ of mandamus should be allowed and , 1 . . issue(l this case, requiring that the entry now on the city’s journal concerning the passage of the ordinance No. 70 should be so corrected by an entry nunc pro tuno as to make it show that the ordinance was regularly passed as required by law, and in accordance with the findings and judgment of this court, and that the mayor and council shall levy the tax asked for in the alternative writ, and perform all other duties which may be incumbent upon them under the provisions of the ordinance as a valid ordinance. With reference to the ratification of irregular or void contracts, see the following authorities: Tube-Works Co. v. City of Chamberlain, 5 Dak. 54; same case, 37 N. W. Rep. 761; Moore v. Mayor, 73 N. Y. 238; Peterson v. Mayor, 17 id. 449; Board of Agriculture v. Street Rly. Co., 47 Ind. 407; Mills v. Gleason, 11 Wis. 470; Knapp v. Grant, 27 id. 147; Supervisors v. Schenck, 5 Wall. 772; Howe v. Keeler, 27 Conn. 538; Brown v. City of Atchison, 39 Kas. 37; Sullivan v. School District, 39 id. 347; 1 Dill., Mun. Corp., (4th ed.,) § 463; 15 Am, & Eng. Encyc. of Law, 1102.
Some further questions have been presented to this court by the briefs and oral arguments of counsel, but we do not think that they require any further comment on our part. Whether a city can grant a special or exclusive privilege to-any one for either a long or a short period of time, we do not think it is necessary now to consider, for we do not think that any such question is fairly presented by the facts of the case. A city has the power to grant a privilege to a person or corporation to establish water-works in the city, and has the power to rent hydrants from such person or corporation. (Manley v. Emlen, ante, p. 655.) But it is not necessary now to consider the question whether such privilege can be made special and exclusive or not, or whether it would be valid or not after the lapse of 5, 10, 15 or 20 years, or after a substantial change had taken place in the affairs of the city, or in its wants or needs, or those of its inhabitants.
The peremptory writ of mandamus will be allowed and issued as heretofore stated.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding to review an order of the district court distributing among the creditors of E. C. Boyle & Co. the proceeds arising from a judicial sale of the debtors’ property. In 1885, E. C. Boyle & Co. were engaged in the hardware trade at Augusta, Kas., and were largely indebted to numerous creditors, among which were Deere, Mansur & Co. and the Excelsior Manufacturing Co. On November 16, 1885, Deere, Mansur & Co. obtained several judgments against E. C. Boyle, which in the aggregate amounted to over $1,200. Abstracts of the judgments were filed in the office of the clerk of the district court, and on November 3, 1886, and before any judgments were rendered in favor of the other creditors of E. C. Boyle, Deere, Mansur & Co. caused executions to be issued upon their several judgments, and in their behalf it is claimed that these executions were levied upon the real estate of E. C. Boyle & Co. on November 6, 1886. On December 20, 1886, two others of the creditors of Boyle recovered judgments against him, and during the January term, 1887, of the district court, the Excelsior Manufacturing Co. and the remaining creditors recovered judgments against Boyle in the district court. Boyle was then the owner of real estate in the town of Augusta, upon which the executions of Deere, Mansur & Co. were claimed to have been levied, and against which there was a mortgage in favor, of the Farmers’ State Bank. On April 8, 1887, the Farmers’ State Bank brought an action in the district court to subject certain real estate of E. C. Boyle to the satisfaction of its judgment, and to adjust and establish the priority of liens of the mortgagees and judgment creditors, and all the creditors claiming an interest in the real estate were made parties defendant. On July 15, 1887, a trial of this action was had, and the court found the dates of the rendering of the several judgments against E. C. Boyle, and also found that the mortgage lien of the Farmers’ State Bank was a first and paramount lien on the real estate in question, and decreed a foreclosure and sale of the property, and that the proceeds of sale should be applied, first, to the payment of costs; second, to the satisfaction of the mortgage; and that the balance should be brought into court to await its further orders. The court did not at that time undertake to establish the priorities of the liens of the judgment creditors. In pursuance to the decree, the property was sold for $1,600. From this sum the mortgage lien of the Farmers’ State Bank was paid, with costs, which left a balance in the hands of the sheriff of $651.20.
On December 21, 1887, application was made to the court for a distribution of the surplus proceeds among the judgment creditors, according to their respective priorities. Upon the hearing of this application, it was conceded by all that Deere, Mansur & Co. obtained a first judgment against E. C. Boyle, which was dated November 16, 1885, and that an execution was issued thereon November 3, 1886. They then offered in evidence their several executions issued on the date last named, and upon which they claimed that a levy had been made upon the real estate of Boyle. An objection was made to the reception of a certain execution and the return of the sheriff, because it appeared that the return had not been signed by any one. Deere, Mansur & Co. then asked leave of the court to permit the sheriff to amend his return on the execution by signing the same, which the court allowed. A further objection was made because the answer filed by Deere, Mansur & Co. in the action did not show that a levy had been made, and also that the real estate was not subject to levy and sale upon execution, for the reason that the statutes provided another and different remedy. The court permitted the answer to be amended, but the amendment was never actually made. After hearing all the testimony, the court made an order of distribution, providing, first, for paying the costs of the action; second, for the satisfaction of the judgment of Deere, Mansur & Co., upon which execution was issued and levied upon the property sold; and third, that the remainder should be applied to the satisfaction of the judgment of the Excelsior Manufacturing Company.
Did the court err in allowing the sheriff to amend his return and in permitting Deere, Mansur & Co. to amend their answer? The courts are vested with a large discretion in allowing amendments to process and pleadings, and unless there has been a clear abuse of discretion, the ruling of the court will not be disturbed. The failure of the sheriff to sign his return to the execution is an amendable defect. The levy had been actually made, and it was proper to permit an amendment in conformity with the facts. There was no attempt to supplement or affect the levy, but the amendment related only to the evidence of the levy that was actually made; “and generally amendments are permissible when they simply run to perfecting the proof of a service which was in fact made.” ( Wilkins v. Tourtellott, 28 Kas. 834; Kirkwood v. Reedy, 10 id. 453.) Neither do we think that the court abused its discretion in permitting the answer to be amended. The trial had not yet been completed, nor had the priorities of the several judgment creditors been determined. It was an equitable action, for the purpose of establishing priorities of the several liens existing against the Boyle property, and this question depended upon the time of the rendition of the judgments as well as upon whether they had been duly kept alive by the issuance and levy of executions. The Deere, Mansur & Co. judgment had been rendered long prior to any of the others, and it is admitted that an execution had been levied before the expiration of one year next after the rendition of their judgment. In their answer, they had omitted to allege the levy, and the amendment showing this circumstance did not change the defense, nor can it be said that it was not in furtherance of justice. If additional time had been necessary in order that the plaintiff might contest the truth of the allegation, it might have been obtained upon application to the court; but no de lay was asked, and we think no injustice was done in permitting the defendants to plead and prove the fact showing that their lien was prior and paramount to that of the plaintiff.
Some objection is made because the amendment to the answer was not written, or actually made. Permission to amend was granted by the court, proof was offered, and the parties proceeded with the trial as if the answer had actually been amended. Under these circumstances, we will treat the answer as having been amended to conform to the facts shown. “A defect in the pleadings or proceedings which ought to have been corrected below by amendment will be disregarded here or considered as amended.” ( Wilkins v. Tourtelott, 29 Kas. 514; Organ Company v. Lasley, 40 id. 521.)
The final contention is that the execution was levied upon a mere equity of E. C. Boyle, which could not be sold by means of an ordinary execution. It is said that they should have employed the proceedings as directed by §481 of the civil code; that the levy was made prior to 1887, when § 448 of the civil' code was amended so that the mere interest of the mortgagor might be separately appraised and sold; and hence the officer could not sell the mere equitable interest, and the levy as made was ineffectual. The record, however, does not sustain the contention of the plaintiff below as to the facts. The return of the officer is, that the levy was made upon the land itself — upon the whole estate, and not upon a mere equity. It recites that the sheriff “did forthwith levy said writ upon the following-described real estate of said debtor, situated in Butler county, in state of Kansas, to wit: Lots 9 and 11, in block 16, in the original town of Augusta, Butler county, Kansas.” Prior to the amendment of §448 of the code, made in 1887, the sheriff could not take into account the fact that the land upon which he levied an execution was subject to a mortgage or other lien, as there was then no authority to have it appraised and sold subject to such liens. The fact that the land was mortgaged, however, did not prevent a levy upon the whole estate; and if it was appraised and sold without reference to the incumbrances, the purchaser would acquire the title, subject, of course, to any lien or incumbrance that might exist against it. (De Jarnette v. Verner, 40 Kas. 224.) Under the levy that was made in this case, the property was erroneously appraised subject to the mortgage that has been mentioned; and hence no valid sale could be made under the appraisement. But the error of ^le appraisers did not invalidate the levy, nor did the fact that the attorneys of the execution creditor directed the sheriff not to advertise and sell the land under the illegal appraisement destroy the levy or postpone the lien of the judgment to that of the plaintiff in error. The execution, as we have' seen, was taken out before the expiration of one year next after the rendition of the judgment, and levy was made upon the land itself, and not upon a mere equity, and thus the preference and priority of the lien was preserved. (Smith v. Kimball, 36 Kas. 490.)
We find no error in the rulings of the district court, and therefore its judgment will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
The appellant was convicted in the district court of Wyandotte county for a violation of the prohibitory liquor law on four counts, and sentenced to pay a fine of $100, and to be imprisoned in the county jail for 30 days, on each of the four counts. He appeals to this court from the judgment of conviction, and complains that the information was not verified, and that two jurors were improperly placed in the box by the trial court. In view of other and more serious errors, we do not deem it necessary to discuss these questions.
He was convicted on the first count upon a sale to a party unknown, in the month of July, 1889. There was filed with the information the testimony of one witness named John M. O’Neil, and the information was not supported by any other testimony. On the examination of O’Neil by the county attorney, he was asked to “state the names and residences of all persons you have seen buy and pay him for intoxicating liquors since the 1st day of June, 1890.” O’Neil answered this by giving the names of 20 persons. This conviction was based upon a sale to a party unknown. O’Neil enumerated all persons to whom he had knowledge of sales having been made. This conviction was based upon a sale made in 1889. The sales testified to by O’Neil were made since June 1, 1890. It is consequently shown that the prosecuting witness had no knowledge of the sale upon which conviction was had at the time the information was filed. These facts bring this particular sale within the cases of The State v. Brooks, 33 Kas. 708, The State v. Skinner, 34 id. 265, and the subsequent cases; so, as to the conviction upon the eleventh count, which was for a sale to one W. W. Berry, in August, 1890, he not being one of the persons enumerated in the testimony of O’Neil. (The State v. Whisner, 35 Kas. 271; The State v. Lawson, 45 id. 339.)
On the third and fourth counts the conviction was based upon a somewhat different state of facts. But the defendant asked the trial court to instruct the jury as follows:
“The court further instructs the jury that no conviction can be had of any offense except such as the county attorney, or the party who made the statement that was filed in this action with the information, knew of at the time; and if you believe, from all the facts and circumstances surrounding this case, that any offense relied upon for conviction by the prosecutor was not known by the county attorney, or such person who made such statement, or that said county attorney, or such other person who made such statement, had some infor mation in relation to it, then you cannot convict of such offense.”
This instruction, as asked for, had application to the facts as presented on the trial; it embodies the law as declared by this court; and it was material error to refuse to give it unless the substance of it was embraced in the general instructions given to the jury. Unfortunately we have not been able to find the substance of this instruction, or the question presented by it, referred to in the instructions that went to the jury.
We recommend that the judgment of conviction be reversed, and a new trial granted.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
R. S. Parker commenced an action in replevin in the district court of Elk county against Richolson and H. and Winfield Baird, claiming that he had a special interest in and the right to the immediate possession of certain horses described in a chattel mortgage made by H. Baird to W. D. Parker on the 11th day of March, 1887, to secure a promissory note for $700 of that date, payable on or before the 18th of December, 1890, with 10 per cent, interest, payable annually, made by Baird and in favor of W. D. Parker, and assigned by W. D. Parker to R. S. Parker on the 9th day of February 1888; that said chattel mortgage was renewed by affidavit as provided by law, and kept in force and effect. Richolson and other parties defendant filed a general denial, and a jury was waived and a trial had by the court that resulted in a general finding and judgment in favor of the defendants in error. Certain judgment creditors of W. D. Parker, by proceedings in aid of execution, procured the appointment of Richolson as receiver of the property of Parker, and the mortgaged chattels, for the recovery of which this suit was brought, were in the possession of the receiver. At the trial, the sole question of fact was as to the ownership of the note and chattel mortgage executed by H. Baird to W. D. Parker. The plaintiff in error claimed to be the owner by virtue of a purchase from his father, W. D. Parker; while, on the other side, the creditors of W. D. Parker claimed that he was the owner, and that his son was aiding him in an attempt to defraud his creditors.
Whatever may be the technical construction of the pleadings, the case was tried by both sides upon the theory that the main question was whether the note and chattel mortgage were the property of the father or the son, and upon this issue the plaintiff in error voluntarily assumed the affirmative. It is now too late to complain of the order of trial, the burden of proof, or the condition of the pleadings. The renewal affidavit made by W. D. Parker, the notice of sale, in which he described himself as mortgagee, his continued possession of the note and chattel mortgage, his apparent complete control and exclusive management of the entire business, are enough to enable us to say that there is some evidence to sustain the general finding of the trial court.
Complaint is made of the admission of the proceedings in aid of execution before the probate court, but it is a glittering generality, and does not specifically point out particular parts as erroneous. A part of these proceedings was an absolute necessity so far as Richolson was concerned, because by them alone was he connected with this controversy. These proceedings were admissible to show the official character of Richolson, his right to the possession of the mortgaged property, and to fix his status in the litigation. They may not have been the best or the original evidence of the indebtedness of Parker, the father, or to establish some other facts; but being admissible to establish necessary things, we are not to infer that they were used for other things prejudicial to this plaintiff in error, without some showing to that effect.
Again, the material and controlling,fact was as to the ownership of the note and chattel mortgage. All other facts were subordinate and perhaps immaterial, and hence we say that all parts of the transcript of the supplemental proceedings in aid of execution except such as showed the appointment of the receiver and his authority to take possession of the mortgaged property were, under the theory of the trial court, immaterial.
As we have said, there is evidence sufficient to sustain the general finding, and we can only recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
This was an appeal to the district court of Montgomery county from the award of commissioners, who assessed damages for the right-of-way of the railroad company through the land of the appellant. The case was tried by a jury at the March term, 1888, and is brought here by the railroad company to reverse certain rulings made at the trial. The appellant claimed for the particular land taken; for damages to the entire tract; for the increased inconvenience in farming; for increased labor and expense in fencing and maintaining fences; for interference with the natural drainage; for causing an overflow of water on certain portions of the farm; for increased care, trouble and expense in handling stock; for expenses incurred in constructing and maintaining proper crossings;. for increased labor in handling crops growing thereon; for increased cost in cultivating land adjoining the right-of-way; for damage to dwelling-house and out-buildings; for running immediately in front thereof and making a deep cut; for destruction of hedge and apple trees; and for depreciation in market value by increased exposure to fire from the operation of the road. Before the trial the railroad company tendered the sum of $1,185 and costs, which was refused. The jury returned a verdict in favor of the appellant for $3,327.08.
The jury returned answers to special interrogatories, as follows:
“Ques. 1. Plow many acres of land does plaintiff own in section 30? Ans. One hundred and fifty-three acres.
“Q. 2. Does this acreage include one-half of the river? A. Yes.
“Q. 3. What was the fair market value per acre of this tract of land immediately before the right-of-way for the defendant was condemned across it? A. Fifty dollars per acre.
“Q. 4. For what particular purpose, if any, was this tract intended and used by plaintiff? A. Agricultural and stock raising.
“Q,. 5. How many acres of this tract were appropriated by defendant for its right-of-way, and what was its value? A. Seven and one-tenth acres, at $50 per acre.
“Q,. 7. Immediately after the railroad was laid out and the right-of-way appropriated therefor across this tract of land in section 30, what was the fair market value per acre of the residue? A. Forty dollars per acre.
“Q,. 8. What was the fair market value of the residue of this tract in section 30, in the aggregate, immediately after the condemnation and appropriation of their right-of-way? A. Five thousand eight hundred and thirty-six dollars.
“Q. 9. If you find any damage to this tract beyond the value of the land taken, state particularly the items of such damage and the amount of each item. A. Inconvenience and loss of time in cultivating and harvesting crops, $400.
“Q,. 10. Do you find any damage to this tract in section 30 outside of the value of the land taken because of the inconvenience in handling stock; and if yes, then how much, and is this amount included in your award ? A. Yes; amount, $200, which amount enters into our award.
“Q,. 11. Do you award any damage to this tract for additional fences required to be built; and if so, for what fences, and how much do you allow for that? A. No.
“Q,. 12. Do you allow any damage to this tract of land in section 30 by reason of the railroad embankment obstructing the flow of water, thereby overflowing plaintiff’s land outside of the right-of-way, and if so, how much? A. No.
“Q,. 13. If you find any damage resulting from such obstruction and consequent overflow, could it not be avoided by proper and sufficient openings through defendant’s embankments? A. -.
“Q,. 14. Do you find any damage to this tract in section 30 by reason of inconvenience and loss of time in plowing, planting, cultivating and harvesting upon the triangular pieces of ground on either side of the railroad; and if so, how much do you find, and does that amount enter into and form a part of your award? A. Yes; amount, $400; item first, question 9. This amount enters into our award.
“Q. 15. What was the fair market value per acre of the 20-acre tract in section 36, immediately prior to the condemnation proceedings before referred to? A. Sixty dollars per acre.
“Q,. 16. How much of this tract was appropriated by the defendant railroad for its right-of-way, and what was its fair market value at the time of such appropriation ? A. One and sixty-three hundredths acres, at $60 per acre, $97.80.
“Q. 17. How much of this tract is south and east of the right-of-way of the railroad, and what was its fair market value immediately after the condemnation proceedings and appropriation of the right-of-way? A. One and one-half acres; no value.
“ Q,. 18. What was the fair market value per acre of that portion of the 20 acres lying north and west of defendant’s right-of-way, immediately after the condemnation and appropriation of the strip to railroad purposes? A.' Twenty-five dollars per acre.
“Q. 19. If you find that portion of the 20-acre tract described in the last question to have depreciated in value by reason of the appropriation of this right-of-way and construction of defendant’s road, does any portion of that depreciation result from damage to the natural building-spot; and if yes, how much does this amount enter into and form a part of your award? A. Yes; $35 per acre on 17 acres; amount, $595.
“Q,. 20. How much land does plaintiff own in section 25, south of the river and east of the Southern Kansas Railroad ? A. About 35 acres.
“Q,. 21. What was the fair market value of this land per acre immediately before the right-of-way for defendant’s railroad was condemned and appropriated through the tracts in sections 30 and 36 ? A. Fifty dollars per acre.
“ Q. 22. What is the distance between defendant’s railroad and the tract described at the nearest point? A. Two hundred and seventy-five feet.
“ Q,. 23. Do you find that the land owned by plaintiff in section 25 is or was in any way depreciated in value or damaged by reason of the condemnation and appropriation of the right-of-way for and construction of defendant’s railroad through the lands of plaintiff in sections 30 and 36 ? A. No.
“Q. 24. If you should answer the last question in the negative, the following question need not be answered: What is the amount of such damage; state particularly the items thereof, and the amount of each of these? A. -.
“ Q. 25. Do you allow any damages to any of the land described for smoke, dirt, noise, or jarring of ground caused by passing trains; and if so, does this amount so allowed enter into your award? A. No.
“Q,. 26. In estimating the value of the land taken, do you include in it the value of any fencing which was then on the land taken for defendant’s right-of-way? A. No.
“ Q. 27. Do you allow damages to any of the land described by reason of increased danger of fire caused by the negligent escape of sparks and cinders from the locomotives of defendant in the operation of its road; and if yes, does the amount allowed enter into your award ? A. No.
“Q,. 28. Which way does plaintiff’s house front, and is there any public highway on that side of the 20-acre tract ? A. South, and no highway.
“Q. 29. Do you allow anything for increased danger to stock, caused by the negligence of defendant’s employés in the operation of its road; and if yes, does that amount enter into your award? [Refused, and excepted to by defendant.] A.
“Q,. 30. Do you allow anything for increased hazard to animals, teams, or stock, caused by being frightened by defendant’s trains of cars; and if yes, do you include that in your award? [Refused, and excepted to by defendant.] A.
“Q,. 31. Was it a part of the plan of construction of the defendant’s road across that tract in section 30 to put in an under-pass for stock about 800 feet west of the river bridge ? A. No, it not being shown on profile or map.
“Q. 32. Were the commissioners for the defendant’s right-of-way informed of this plan by the engineer having in hand the construction of said road, and did they take it into consideration in their assessment of damages thereto? [Refused, and excepted to by defendant.] A. -.
“Q,. 33. Are those plans being carried out in the construction of defendant’s road across said tract in section 30? A. No evidence that it is.
“Q,. 34. Do you take that into your consideration in your award and assess your damage to that land on the theory that such pass is now or is to be made? A. No.”
The following is a part of the final judgment of the court:
“And the court finds, from said general award of the jury, and their answers to the special questions, that the amount of plaintiff’s damages for the actual value of the strip of land appropriated by the defendant, 100 feet wide, through plaintiff’s premises, namely: All of the southeast quarter of section 25 south of the Verdigris river, and east of the Southern Kansas railroad, and the north half of the northeast quarter of the northeast quarter of section 36, all in township 34 south, of range 16 east.
“Also all of lots 10 and 11, and that portion of lot 12 west of, and all of lots 8 and 9 south of the Verdigris river, all in section 30, in township 34 south, of range 17 east, in Montgomery county, Kansas, and for the consequential diminution in value of the remaining portion of plaintiff’s said land, in said sections 30 and 36 aforesaid, and for the value of buildings and other improvements on said last-named tracts of land, and for all other damages sustained by the plaintiff by reason of defendant’s appropriation of its said right-of-way through, upon and across said last-named tracts, and the interest thereon from the date of the appropriation of said strip of land, to be said sum to which the court reduced the award of the jury as aforesaid.
“It is therefore by the court considered, ordered, and adjudged, that the said award of damages and assessment of the condemnation commissioners, from which the plaintiff appealed in this case-made, to the plaintiff and against the defendant, for its right-of-way of 100 feet wide through plaintiff’s said premises, be revised, enlarged, corrected and increased to said sum of $2,589, and that the general award of the jury herein be modified, reduced and decreased to said amount, which amount shall draw interest from the date of the award of the jury, at the rate of 7 per cent, per annum, which said amount, with interest as aforesaid, shall stand in the place and in lieu of the award of the said commissioners appealed from as aforesaid by plaintiff, and in the place of the award of the jury as aforesaid, and shall be paid by the defendant, its successors, or assigns, to the plaintiff, the owner of said above-described premises, before the defendant shall appropriate said strip as aforesaid, and before it shall have the possession thereof; and plaintiff shall have and recover of and from the defendant herein the costs of this action as a personal judgment against the defendant, taxed at $238.05, for which execution is awarded.”
The trial court denied a new trial, but reduced the verdict, against the consent of the land-owner, to $2,589, and rendered judgment for that amount. The land through which the railroad secured the right-of-way consisted of a large tract of rich bottom soil. The particular part injured by the location of the road and the construction of the track was south of the Verdigris river and east of the track of the Southern Kansas Railroad. The farm was used for stock and agricultural purposes. The evidence fairly shows that it was the best farm for general agricultural purposes in that neighborhood. The only questions that we can consider, and that are fairly raised by the motion for a new trial and the record, are, first, that the award is not sustained by sufficient evidence; second, that said award is in conflict with and against the special findings of the jury; third, that said award is excessive, and •the damages appear to have been' given under the influence of passion and prejudice; fourth, errors of law occurring during the trial and excepted to at the time.
I. Considering these- assignments of error in their order, it may be said of the first, that there is some evidence to sustain the award.
II. There are some things in the record which tend to show that the jury was actuated by passion and prejudice. We are not unmindful of the fact that the general disposition of jurors in this class of cases is to award liberal compensation to landowners for the land taken from their farms for railroad purposes, and so long as that liberality does not run to excess, or is not caused by passion or prejudice, we will not interfere. But in this case there is hardly an item of depreciation, or an element of damage, but has been assessed by the jury at the very highest estimate placed upon it by the most extreme witness. A general average of the opinion of the various witnesses is the better rule, and generally results in substantial justice, and is a clear indication of the absence of passion or prejudice. Apart from the evident disposition of the jury to adopt the highest and most extreme estimate of value, depreciation, and damage, the action of the trial court reducing the award as returned by the jury from $3,327.08 to $2,589 is to be regarded as very suggestive of the fact that the jury was influenced by passion and actuated by prejudice in returning an excessive verdict. We have searched the record in vain to discover, if possible, the reason that induced or the motive that controlled the trial judge in the reduction of the verdict. It may have seemed to him, as it does,to us, that, taking into consideration all the facts established by the evidence, the mere size of the verdict created a conviction that it was too large. If this is so, he ought to have set aside the verdict and granted a new trial, rather than have attempted to substitute his judgment for that of the jury. The railroad company is entitled to have a fair estimate of damages made by an impartial jury, and we have grave doubts as to whether there has been a due observance of its legal rights in this respect. While it appears to us that the award of the jury is excessive, it is not the function of the court to say how much. The amount ought to be determined by a fair and impartial jury, without prejudice or passion. All we can do in such a case is to see that the jury, in making an award in a case like this, is not influenced by sympathy, feeling, or prejudice, and does not go beyond what is a fair compensation. (A. T. & S. F. Rld. Co. v. Young, 26 Kas. 443.)
Going back again to the reduction of the verdict by the trial court, it does not affirmatively appear from the record that the sum of $738.08, which was deducted from the verdict of the jury, was on account of the jury taking into consideration some element of damage not existing in the case, or on account of some error in computation, or some other error occurring at the trial. According to the special findings of the jury, the value of the land taken and the damage to the remainder of the tract aggregated $2,596.80, and this sum comes very close to the verdiGt as modified by the trial court; but we cannot presume that all the other elements of damage —some of which were sustained by evidence at the trial — would be arbitrarily excluded. Hence the conviction grows stronger that the trial judge reduced the verdict because he thought that it was so excessive that it must have been given under the influence of passion and prejudice. It may be that cases will arise where the verdict and special findings will show some particular fact or some element of damage r # ° which would authorize the trial judge to reduce the amount thereof, and that in such a case the judgment rendered upon the reduced verdict would be allowed to stand; but the general rule is, when the damages are so excessive as to show that the verdict is rendered under the influence of passion or prejudice, it should be set aside, and the questions in dispute submitted to the judgment of another jury. The reason for this is, that the parties are entitled to the judgment of a fair and impartial jury, and the judgment of the trial court ought not to be substituted for that of a jury; for, if such a rule should be recognized and maintained, the trial by jury in such cases would be practically denied. (See the cases of the U. P. Rly. Co. v. Hand, 7 Kas. 380; A. T. & S. F. Rld. Co. v. Cone, 37 id. 567; Steinbuchel v. Wright, 43 id. 307; Cassin v. Delaney, 38 N. Y. 178.)
Another very good reason for granting a new trial in such a case is, that when the verdict of a jury is tainted by passion or prejudice, the court cannot separate that part of the verdict that is so tainted from the other part, even in a case where the record shows that the prevailing party ought to recover. In this case it appears to us that the plaintiff below was entitled to a verdict for a sum in excess of that allowed by the award appealed from; but when we agree with the trial court that it ought to be reduced, that in fact the verdict was for too much, the only remedy that ought to be applied to this particular case is to grant a new trial. It is a case that comes peculiarly within the province of a jury to determine, and as a matter of legal -right either party is entitled to a jury trial, and ought not to be compelled to abide by the judgment of a trial court. For these reasons we are compelled-to reverse the judgment. The other errors assigned are serious, but as the case must be reversed it is not necessary to pass upon them, as they may not arise on another trial.
It is recommended that the judgment be reversed, and a new trial ordered.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
October 12,1886, Jane McGinnis, desiring to go from Great Bend, in Barton county, to the town of Chase, in Rice county, purchased a ticket at the former for the latter place. She rode on the early passenger train from Great Bend to Ellinwood, where she had to change from the main line of plaintiff’s railroad to the M. & M. branch of the same. At Ellin wood'she got on the way-car qí a freight train which carried passengers. The train, which consisted of 14 freight cars and the way-car, left Ellinwood early in the morning, just as day was breaking. It ran out from the station to the switch which connects the main line with the branch, some half or three-quarters of a mile from the station, where, by reason of the switch having been left open, the engine, tender and two cars ran off the track. Mrs. McGinnis was sitting on the seat against the side of the car. The sudden stopping of the train threw her from the seat, across the car, and down upon the floor. When she got up it was found that her ear' was somewhat bruised and scratched, but no other injuries were visible. She walked over to the town, and remained until evening, and then took the passenger train for Chase, where she got into a wagon and rode intp the country a short distance, and remained all night, going back on the train in the morning to Great Bend. Just after the accident, and before Mrs. McGinnis left the car, she was asked if she was hurt, and she said not seriously. Some weeks after the accident she called a physician, and claimed to be injured in the spine, shoulder, breast, eye, and arm. The physician examined her, and found no visible evidence of injury at any of these points.' She, however, claimed to be injured, and the doctor said there was some evidence from the pulse and the appearance of her tongue of some disturbance of the system, but he could not tell what it was, nor what produced it, only as he got the cause from Mrs. McGinnis. August 13, 1887, she brought her suit against the company for damages. It was tried by the court and a jury, resulting in both a general and a special verdict for the plaintiff below. A motion was made by the defendant below to set aside the general verdict, which was for $2,000, because it did not correspond with the special verdict, which motion was sustained. A motion was then made by the defendant below for a new trial, and one by the plaintiff below for a judgment on the special verdict. The motion for a new trial was overruled; and after the plaintiff had remitted $235, and the court had stricken out $765, the motion for judgment was sustained, and judgment entered for $1,000. The company brings the case here for .review.-
In view of the remittitur made by the plaintiff below, the first alleged error we will notice, is the action of the court in giving the instruction complained of. The seventh instruction complained of reads as follows:
“The jury are instructed that the petition alleges that the defendant, not regarding its duty, conducted itself so carelessly, negligently and unskillfully that the train upon which plaintiff was riding ran off the track, whereby and by reason of which the plaintiff was injured. It is the law that in actions of this kind, if the evidence proves that the complaining party received personal injury, and thereby suffered actual damages, and if the evidence further proves that such injuries and damages were sustained by reason of the gross negligence or gross carelessness of the defendant in operating its train, then the jury are not limited in their finding to the mere compensation for the actual damages sustained, but they may give in addition a further sum as exemplary or punitive damages as a salutary example, and as a sort of punishment to deter the party committing the injury, as well as others from again offending in like manner.”
We think this instruction clearly wrong. There is no allegation in the petition that the defendant below was guilty of gross negligence in connection with the accident; and there is no evidence in the case to justify such an instruction. The accident occurred by reason of the switch having being left open. It was not left open by any one connected with the train on which the plaintiff below was injured, and there is no evidence in the case to show who left it open. So far as the evidence in the case is concerned, it may have been turned and left open by a stranger, for whose act the company could not be held responsible. There is nothing in the evidence tending to show wantonness, malice, or reckless disregard of the life of the passenger by any of the agents of the company. On the other hand, the evidence shows that the agents of the company expressed their sorrow that Mrs. McGinnis was hurt, and were sympathetic and gentlemanly in their de meanor. In the case of K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kas. 671, this court laid down the rule, as follows:
“In an action to recover damages for personal injuries, the negligence established must be wanton, willful, or malicious, to justify punitive or exemplary damages. 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.”
In this case the jury found that the company was guilty of gross negligence, and said that such gross negligence consisted in leaving the switch open; and yet, as stated above, the evidence does not disclose who left the switch open — whether an agent or servant of the company, or a stranger. This case fairly illustrates the impropriety and danger of leaving the question of punitive or exemplary damages to the jury without evidence to warrant a finding of such damages. (M. & St. P. Rld. Co. v. Arms, 91 U. S. 489; Dorrah v. Ill. Cent. Rld. Co., 30 Am. & Eng. Rld. Cases, 576; Batterson v. Chicago & Grand Trunk Rld. Co., 8 id. 123; K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kas. 501-504.)
The jury found that the plaintiff below was damaged $500 by reason of impaired capacity to labor. This, and the item of $200 found in favor of the plaintiff for loss of time, which was afterward remitted, are matters for which the plaintiff below cannot recover. She is and was a married woman, living with and keeping house for her husband. She was not engaged in any other business. Her services as the wife of her husband were due to him. She received no compensation therefor, and could not suffer any damages by reason of loss of time or impaired ability to serve him. He alone could recover for such damages. (City of Wyandotte v. Agan, 37 Kas. 528.)
The jury found that the plaintiff below was damaged $65 by reason of peril and fright. Damages of this kind are too remote. A person who is placed in peril by the negligence of another, but who escapes without injury, may not recover damages simply because he had been placed in a perilous position. Nor is mere fright the subject of damages. Fright must be accompanied by some actual injury caused thereby, and traceable directly thereto, to be the subject of damages. Mere fright, unaccompanied by any injury resulting therefrom, cannot be the subject of damages. (Victorian Rly. Comm’rs v. Coultas, L. R. 13 App. Cases, 222.)
The jury found that the plaintiff below had suffered $500 actual damages. It also found the items constituting these actual damages. It found $200 for loss of time, $35 for cost of medical attendance, $65 for peril and fright, $100 for physical pain and suffering, and $100 for mental anguish. All these itemized parts of the $500 are parts of the actual damages, and included within the whole sum of actual damages as found, to wit, the sum of $500. But the sum of $235 was remitted by the plaintiff herself, as not recoverable in this action. The sum of $65 found for peril and fright must be eliminated, because damages may not be recovered for peril and fright. This reduces the actual damages to $200, constituted as follows: $100 for physical pain and suffering, and $100 for mental anguish. The plaintiff in error says that this last item should not be allowed, because there is no- distinct claim for it in the petition. We think there is sufficient in the petition to permit this finding to stand, and, the jury having passed upon the evidence in relation thereto, we decline to strike it out. This leaves $200 of the judgment in favor of the plaintiff to stand. We recommend, therefore, that the judgment be so modified as to reduce it to $200, or a new trial be granted.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
This action was brought by the plaintiff in error in the district court of Seward county, to recover the possession of lot 1, in block 44, in the city of Springfield. The plaintiff in error claimed to be the equitable owner of the premises, which were a part of the Springfield town-site, which was located and laid out on the public lands of the United States, some time prior to the 9th day of November, 1885. The lot in question had been previously occupied by John Kauble, who had made some improvements thereon. On the day named, Kauble sold the improvements and his right to possession of the premises to the plaintiff, who entered into possession of the same and erected a dugout which was habitable, and continued to hold possession, through a tenant,, until ousted by the defendant below, about the 6th day of April, 1886. It seems that there were no other improvements upon this lot at the time the plaintiff purchased the same except those of Kauble; neither was there anyone claiming the premises adversely to him. In June, 1886, the probate judge made application to the United States land office for a patent to the town-site' in trust for the occupants, according to their respective interests, and the final entry was made and recorded in the office of the register of deeds of Seward county in 1887. The court below found “that the plaintiff never was and never became, prior to the application and final entry of the town-site for a United States patent, an actual resident on the town-site of Springfield, Seward county, Kansas, or any part thereof; and that the plaintiff did not contribute to the making of final proof on the town-site;” and sustained the demurrer of the defendant to the evidence, and rendered judgment against the plaintiff for costs. The plaintiff brings the case here.
The contest in this case arises out of rival claims to a lot in a town-site, upon government land, and the trial court seemed to have sustained the demurrer to the evidence upon the ground that occupancy and residence were both prerequisite conditions to obtain title under the provisions of §§ 2387, 2388 and 2389 of the Revised Statutes of the United States, and chapter 109 of the Compiled Laws of 1885. The language of § 2387 of the Revised Statutes is:
“Whenever any portion of the public lands have been or may be settled upon and occupied as a town-site, not subject to entry under the agricultural preemption laws, it is lawful, in case such town be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge for the county court for the county in which such town is situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests.55
The supreme court of Minnesota has construed this section of the Eevised Statutes:
“The language of the preemption act of 1841 is essentially different from that of the municipal preemption act of 1844. The former is limited as to the age of the person entitled to its benefits; as to his nativity; requires the party to make settlement ‘in person,5 and to ‘inhabit and improve the same,5 and ‘erect a dwelling thereon;5 prohibits him from leaving his own land to make settlement on the government land; and also from owning 320 acres at the time of,making his preemption. On all of these points the act of 1844 is silent, and where the preemption right has been so carefully guarded in the one case, and in another and subsequent act all these restrictions are omitted, it would certainly be a strange construction to hold that they must be supplied by implication. It is true both acts speak of a settlement, but the act of 1844 defines what settlement is intended, viz., ‘settled upon and occupied as a town-site,5 while the previous act, both in terms, and in the construction which the department has placed upon it, limits the settlement to agricultural purposes. Nor, going outside the letter of the statute, do we find any authority in the reason of the case for placing such construction upon the act as was given by the court below. The object and idea of settling and building a town is not for the purpose of agriculture, but for that of trade. And being used for purposes of trade, it cannot (at least only to a limited extent) be used for cultivation of the soil. And this idea was evidently entertained by congress in framing the law of 1844, in the use of the language, ‘and therefore not subject to entry under the existing preemption laws.5 The intent was to provide for cases to which no law then in existence applied. As the object of the settlement and occupancy of a town-site is totally different from that of a settlement under the act of 1841, no legitimate inference can be drawn that the particular manner or requisites of settlement and occupancy in each case must be the same. And the requisites of the act of 1844, as to settlement and occupancy, are complied with when these are such as to attain the object in .view, namely, the use of the land as a town-site, for purposes of trade, commerce, or manufactures. It is obvious that such a settlement need not necessarily be in person, nor require any cultivation of the soil.” (Leech v. Rauch, 3 Minn. 448.)
In a very recent ease, involving the question of a town-site trust and the duty of the probate judge, under the same act of congress, this court has said:
“The occupants of the town-site, whoever they may have been, were the equitable owners of the land settled upon and occupied, and they were entitled to a conveyance from the probate judge. Their rights were fixed by the act of congress, and the legislature was powerless to prescribe a rule which would give the land and lots to others than the occupants thereof. The provisions of the legislative act mainly conform to the act of congress, but so far as they may conflict with that act, they must be held to be void. If the town company was an occupant of any portion of the town-site, it was entitled to a conveyance of its respective interest.” (Investment Co. v. Munson, 44 Kas. 491; same case, 24 Pac. Rep. 977.)
This decision clearly recognizes the right of an occupant to a title. It could hardly be claimed that a town company could become a resident; yet it said it would be entitled to a conveyance. (See, also, Town Co. v. Maris, 11 Kas. 128; Town Co. v. De Long, 11 id. 153; Sherry v. Sampson, 11 id. 611; Carson v. Smith, 12 Minn. 546; Cook v. Rice, 2 Colo. 131; Clayton v. Spencer, 2 id. 378; Adams v. Binkley, 4 id. 247; Mayor of Aspen v. Aspen T. & L. Co., 10 id. 191.) There was some evidence upon the part of the plaintiff to indicate that he had in good faith occupied the premises in question, and that the defendant had ousted him of that possession. The'court should not have sustained the demurrer to the evidence.
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
It is contended upon the part of the defendants, first, that the petition of plaintiff filed in the court below does not state a cause of action in his favor against the board of county commissioners of Douglas county; second, that if plaintiff ever had a cause of action against the board of county commissioners, it is barred by the statute of limitations. The amended petition of plaintiff contains 30 causes of action. They are all of the same general tenor. They allege, first, ownership of certificates; second, a sale of lands by the county treasurer of Douglas county and issue of tax-sale certificates to purchaser; third, the illegality of the tax-sale certificates, and the facts showing why the tax sales were illegal, to wit, imperfect descriptions of land, illegal charges for advertising the land, and certificates outstanding in the county at the time of the sales. The petition closes as follows: •
“Wherefore your petitioner prays this honorable court to order the county clerk of said county not to convey the several tracts and parcels of land hereinbefore described, (because of the alleged errors and irregularities set out,) under and by virtue of any of the sales respectively hereinbefore set out; and for such other and further order and relief in the premises as may be necessary to enable your petitioner to have refunded to him by the county treasurer of said county of Douglas the several amounts and sums of money hereinbefore mentioned, with interest as provided by law in such cases.”
The tax-sale certificates described in the petition were signed and issued by the county treasurer of Douglas county in 1870, 1871, 1872,1873, and 1874. The statutes relating to refunding the amount paid upon tax-sale certificates, when errors or. irregularities are discovered, so that the land sold at the tax-sales ought not to be conveyed, are as follows: Gen. Stat. of 1868, ch. 107, § 120, p. 1058; .Laws of 1876, ch. 34, § 145, p. 96; Gen. Stat. of 1889, ch. 107, § 145, p. 2137. A careful comparison of these statutes will aid in determining the questions involved:
“Sec. 120. . . . And if, after any certificate shall be granted upon such sale, the county clerk shall discover that, for any error or irregularity such land ought not to be conveyed, he shall not convey the same; and the county treasurer shall, on the return of the tax certificate, refund the amount paid therefor on such sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of 10 per cent, per annum. (Gen. Stat. of 1868, p. 1058.)
“Sec. 145. . . . And if, after any certificate shall have been granted upon any sale, the county clerk shall discover that, for any error or irregularity such land ought not to be conveyed, he shall not convey the same; and the county treasurer shall, on the return of the tax certificate with the refusal of the county clerk endorsed thereon, refund the amount paid therefor on such sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of 10 per cent, per annum. (Laws of 1876, p. 96.)
Sec. 145. . . . And if, after any certificate shall have been granted upon any sale, the board of county commissioners shall discover that, for any error or irregularity, such lands or lots ought not to be conveyed, they may order the county clerk not to convey the same, and the county treasurer shall, on the return of the tax certificate, with a certified copy of such order of the board of county commissioners, refund the amount paid therefor on such sale, and such of the subsequent taxes and charges paid thereon by the purchaser, or his assigns, as may be so ordered by the board of county commissioners, out of the county treasury, with interest on the amount so ordered refunded at the rate of 10 per cent, per annum. . . . (Gen. Stat. of 1889, ¶6999.)
It is claimed upon the part of the defendants that the plaintiff’s petition is insufficient, because the tax certificates can only be refunded under the provisions of the statute in force at the time of the tax sales. This is the statute of 1868. This claim is answered adversely by the decisions of Comm’rs of Lyon Co. v. Goddard, 22 Kas. 389, and Comm’rs of Lincoln Co. v. Faulkner, 27 id. 164. The amendments to ^he statute of 1868 by the statutes of 1876 and X889 do not “affect any right which accrued under any prior statute, but simply give new direction for the return of the money.”
We think, if fatal errors or irregularities actually exist, so that the land or lot described in a tax-sale certificate ought n°f be conveyed, and the certificate is presented in proper time, that it is the duty of the board of county commissioners to discover them, when its attention is especially called thereto, and that it has not the option to purposely refuse to discover such fatal errors or irregularities. (Comm’rs of Lyon Co. v. Goddard, supra.)
The contention that the claim or claims of the plaintiff were barred by the statute of limitations is of much force. If not barred by the two-years’ statute of limitations, (¶1676, Gen. Stat. of 1889,) then they were barred by the three-years’ stat ute of limitatons. (Civil Code, §18, subdiv. 2; Richards v. Comm’rs of Wyandotte Co., 28 Kas. 326.) The record shows that this action was commenced on October 6,1879, and all of the tax-sale certificates were issued more than five years prior to that date. In Comm’rs of Lyon Co. v. Goddard, supra, it is said that—
“A purchaser at a tax sale is a mere volunteer in the payment of the tax. Buying, as he does, property from a person who is not the owner, such party comes strictly and rigidly within the rule of caveat emptor. He has the same means of knowing whether the proceedings relating to the assessment of the taxes, the tax sale and the issuance of the certificate are valid or not as the county has, and he is bound to inquire whether the officers have authority to make the sale. As all the proceedings are matters of record, it is not only prudent for such a purchaser to examine into the matter for his own safety, but if he fails to inform himself of the authority of the officers he does so at his own risk, excepting that he may have his money refunded where the statute expressly makes such a provision, if he pursues the remedy pointed out. The officers of a county can only act in accordance with positive law; and neither the board of commissioners nor the county treasurer can refund any moneys upon the failure of tax titles, except as some statute requires it.”
In Sullivan v. Davis, 29 Kas. 28, it is said:
“Except as limited and qualified by express statutory provisions, the rule of caveat emptor applies to all purchases at tax sales, and if the public has nothing to sell, the purchaser gets nothing. So, also, the risk of all mistakes is with the tax purchaser.”
It was decided in Railroad Co. v. Burlingame Township, 36 Kas. 628, “that a person cannot prevent the operation of the statute of limitations by delay in taking action incumbent upon him.” It was also said in that case, that “to permit a long and indefinite postponement would tend to defeat the purpose of the statutes of limitation, which are statutes of repose, founded on sound policy,, and which should be so construed as to advance the policy they were designed- to promote.” If the plaintiff could delay the presentation of his certificates to the board of county commissioners for five years, then he could delay for 10, 15, or any indefinite period of time. He should have presented his tax certificates to the board of county commissioners “ for refunding” (for the return of his taxes, interest, etc.) before the expiration of three years after their issue. This he failed to do; and he also failed to allege any reason or excuse for his delay.
In the case of Comm’rs of Saline Co. v. Young, 18 Kas. 440, the “'error or irregularity” actually “discovered” by the county clerk was probably and presumably one of fact. It consisted in supposing that the land did not belong to the United States, and that it was taxable, while in fact the laud did belong to the United States, and was not taxable. Such an “ error or irregularity ” is a mistake of fact. In that case, unlike this, the errors or irregularities in the tax certificates were not matters of record in the'offices of the county clerk or county treasurer; and in that case, until the owner of the tax certificate had ascertained that the land belonged to the United States when it was taxed, he did not know and could not have known of any error or irregularity to be discovered. In this case the fatal defects in the tax certificates were known, or ought to have been known, by the owner of the' same, for more than five years before he took any preliminary or other steps to obtain a return of his taxes, interest, etc. .
In Richards v. Commr’s of Wyandotte Co., supra, it was necessary for the party to determine whether the Indian title to the lands had been extinguished — a matter which he could not ascertain from the public records of the county, or from any records within his control. The liability of the county to refund the taxes is a statutory liability, and, in order that it shall be liable, the plaintiff was bound to take some action within a reasonable time, and he should have acted more promptly. Before the county could be made liable, the certificates must have been presented, and some act on its part committed, or some failure to perform some act imposed by law. But the plaintiff failed to act promptly, or in any reasonable time. (A. T. & S. F. Rld. Co. v. Burlingame Township, supra; Civil Code, § 18, subdiv.2; Comp. Laws of 1879, ch. 107, § 138; Gen. Stat. of 1889, ¶ 6991.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Stkang-, C.:
This was an action to foreclose certain mechanics’ and material-men’s liens. The JarvisConklin Mortgage Trust Company filed a cross-petition, setting up a cause of action on a note and mortgage against the defendants Byers and Tuttle, owners of the property described in the petition of the plaintiffs below, and claiming a lien upon the premises prior to the other .liens sought to be foreclosed. The issue was thus joined between the parties claiming liens upon the property as material-men and mechanics on one side, and the holder of the mortgage lien on the other, to determine whose liens were first. The case was tried by the court, which found in favor of Sutton & Murphy, against the owners of the premises, for the amount of the material furnished by them ; and for the defendant Tarr against them for the amount of his claim as a mechanic; and also in favor of the Jarvis-Conklin Mortgage Trust Company against the same defendants for the amount of their claim. The court ordered a foreclosure and sale of the premises described in the petition and cross-petition. The court further found that the liens of Sutton & Murphy and J. W. Tarr were of equal rank, and superior to the mortgage lien of the mortgage trust company, and ordered the proceeds of the sale to be applied -first, to the payment of the costs of the case; second, to the payment of the judgments of Sutton & Murphy and Tarr; and the balance, if any, applied to the payment of the judgment of the mortgage trust company; and the overplus, if any, to be turned over to Byers and Tuttle, the owners of the premises. The Jarvis-Conklin Mortgage Trust Company objected to the decree of the court, and excepted. The company filed a motion for a new trial, which was overruled, upon which it brings the case here, and alleges for errors, first, that the court erred in overruling the objection to the reception of evidence under the petition in the case, upon the ground that it did not state facts sufficient to constitute a cause of action. The particular defect pointed out in the petition is, an alleged failure to state therein that the contract for furnishing the material was made with the owners of the premises upon which the building was to be erected. There is no statement to that effect in the body of the petition; but the lien statement of the plaintiff is attached to his petition as a part thereof, and therein it is alleged that the contract was with Byers and Tuttle, and that they are the owners of the premises. We think this is sufficient as against a demurrer or general objection to evidence under the petition. There was no motion to make the petition more definite.
The next complaint is, that the petition does not allege that the materials furnished were of any value. The petition says that the plaintiffs furnished material amounting to $537.93, but does not add any further allegation of value. We think' the statement that the plaintiffs furnished material to the amount of $537.93 is a sufficient statement of value.
The plaintiff says that the court below ought to have granted a new trial, because there was not sufficient evidence to sustain the judgment. If there was any proper evidence upon all the questions at issue, the judgment, under the rule of this court, should be affirmed. The particular failure of proof here alleged is, that there was no evidence that the contract for the material furnished was with the owner or owners of the lots upon which the building was erected. The evidence shows that the contract was with J. F. Byers, and that the material was “charged to Byers, or to Byers and Tuttle.” Byers and Tuttle were partners at the time the material was purchased, and it was purchased for the partnership. The partnership erected the building. The evidence upon the question of ownership was somewhat uncertain, but there was some evidence tending to prove that the contract was with the owners of the premises on which the building was erected, and the district judge having found that it was sufficient, this court will not disturb such finding.
It is also said that Byers and Tuttle were not the owners of the lots on which the building was erected, at the time the material was contracted for. This contention is technically true. But Byers and Tuttle had examined and priced these lots, together with others belonging to the same party, before making the contract for the material in controversy. They intended buying some of the lots looked at .and priced, upon which to place the building subsequently erected by them. They had not notified the owner of the lots that they would take these particular lots, at the time when they contracted for the material, but they must have decided in their own minds, because Byers told Sutton where to deliver the lumber. The material-men commenced the delivery of the lumber on these lots a few days after they contracted to deliver it. Some of the evidence shows that the building was begun on said lots as early as the 21st of January, 1887, only a few days after the contract for material was entered into. Byers and Tuttle followed up their election to take the particular lots in controversy by completing their title thereto, and obtained a deed February 23, 1887. Paragraph 4733 of the General Statutes of 1889 provides that —
“Any person who shall, under contract with the owner of any tract or piece of land, or with the trustee, agent, husband or wife of such owner, furnish material for the erection, alteration or repair of any building, improvement or structure thereon, . . . shall have a lien upon the whole of said piece or tract of land, the building and* appurtenances, in the manner herein provided, for the amount due to him for such material.”
To obtain a lien under this paragraph, we do not think it necessary that the person to whom the material is furnished should have a perfect title to the land upon which the building or improvements are to be erected at the time of making the contract for the material. It is sufficient, if at that time he has equitable title. Byers and Tuttle perfected their title on February 23, 1887. The material was delivered in January, February and March of that year. The parties who contracted for the material became the owners of the lots, and used the material in a building upon these lots; therefore, the material-men have their lien as claimed. (Seitz v. U. P. Rly. Co., 16 Kas. 140; Phillips, Mech. Liens, 2d ed., § 81.)
This case is different from Lumber Co. v. Schweiter, 45 Kas. 207, because there the purchasers of the material had no legal or equitable estate in the lots upon which the house was erected. We do not, therefore, think the objection that Byers and Tuttle were not the owners of the land upon which the building was erected, and upon which the lien for the material was claimed, is good, especially as the mortgage lien did not attach thereto until several days after the title was complete in Byers and Tuttle, and after, as we believe under the law, the right of the material-men had attached thereto.
We have examined the judgment of the court; and while it is not as full and formal as it might, and perhaps should, have been, we do not think there is any prejudicial error therein.
We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
This ease has been fully and ably reargued. After carefully considering all the questions raised upon the rehearing, the former decision (Weeks v. Packing Co., 90 Kan. 365, 133 Pac. 713) is adhered to.
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The opinion of the court was delivered by ;
Horton, C. J.:
It appears from the findings of the court ■ that B. M. Delano, who complains of the city of Hutchinson and its officers and employés on account of their action in constructing a system of sewers in that city, and of permitting the sewage to empty into Cow creek, lives five miles below the city of Hutchinson; that Cow creek is a clear, running stream of water, fitted for domestic and stock purposes; .that it runs through the city of Hutchinson and the premises of the plaintiff below; that the city of Hutchinson is con structing a system of sewers for 4,000 of its inhabitants, which will carry off the sewage from hotels, livery stables, private residences, etc.; that plaintiff below does not use the water of Cow creek for any other purpose than for his stock; that he has no occasion to use it for any other purpose; that he has two wells, one at his house and the other at his barn; that the emptying of the sewage into Cow creek will not endanger the lives of plaintiff below or his family, or anyone residing on his land, and will not be liable to cause any person to have disease; that Cow creek is from 25 to 50 feet wide and 1 or 2 feet deep, with sandy bottom and banks; that the fall of the creek from the mouth of the sewer to the plaintiff’s farm is 17-f feet; that no time has been fixed for the completion of the entire system of sewers, but the intention is to extend the same as the exigencies of the city may demand; that the sewage of 15,000 people of Hutchinson into Cow creek would probably injure the water of the farm of plaintiff so as to unfit it for drinking and cooking purposes and for the use of milch cows; that the sewage of the people of Hutchinson who will use the sewers now constructed and in immediate process of construction will not probably injure the water of Cow creek for either domestic or stock purposes at the farm of the plaintiff.
Upon these findings, the most that can be said is that there is an apprehensive pollution or fouling of the water at some future time — possibly when sewers shall have been constructed for the whole population of Hutchinson, comprising 15,000 people. But, under the findings of the court, this is not certain, only probable. Clearly, it cannot be said that any immediate danger exists to plaintiff below from the sewage into Cow creek from Hutchinson. The findings disclose that the danger is not imminent, but is wholly contingent — in the future, if certain things are done. (Aqueduct Board v. Passaic, N. J. 1890, 20 Atl. Rep. 54; Coach Co. v. Horse-Car Co., 29 N. J. Eq. 299; Stitt v. Hilton, 31 id. 285; Delaware &c. R. Co. v. Stock Yards Co., 43 id. 605; Hagerty v. Lee, 45 id. 255; Stoudinger v. City of Newark, 28 id. 187; Merrifield v. Worces ter, 110 Mass. 216; Brookline v. Mackintosh, 133 id. 215; Morgan v. City of Binghampton, 102 N. Y. 500; Dunn v. City of Austin, Tex. 1889, 11 S. W. Rep. 1125; High, Inj., § 742; Wood, Nuis., §§ 796, 797.)
The order for the injunction is so doubtful in its language, that really it is of little benefit to anyone. It forbids the city from emptying its sewage into Cow creek at some time in the future, if such sewage will pollute or corrupt the waters to the injury of plaintiff. It does not forbid the emptying of the present sewage from all of the sewers constructed or now being constructed. The injunction has but little force. It is unsatisfactory in its terms. It is not definite or certain. It merely declares a proposition of equity, not shown to be applicable in this case. Upon the findings of fact, we do not think that the injunction should have been granted, and therefore the judgment of the district court will be reversed, and the cause remanded, with direction to the district court to enter judgment in favor of the defendants below and against the plaintiff.
If the exigencies of Hutchinson shall demand in the future the extension or completion of its entire system of sewers, and if the sewage from all of the sewers when fully completed should foul or pollute the waters of Cow creek so as to affect in any way the rights of plaintiff below, other and different questions will then be presented. It is sufficient at this time to say, there is no pressing necessity for an injunction. The danger is contingent — not immediate and imminent.
All the Justices concurring.
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Per Curiam:
Thomas Viekroy appealed from an award made by commissioners to lay off and condemn a right-of-way through his premises in Wyandotte county for the Kan sas City & Topeka Railway Company. The award made by the commissioners was as follows:
Amount of land taken, 37*0% acres.
Value of land taken........................................ $29,850
Amount of damages to land not taken....................... 2,500
House................................................................ 450
Total...........................................................$32,800
The jury returned a verdict for Vickroy, and assessed his damages at $49,525.50. They valued the land actually taken for a right-of-way at $10,000 per acre, and upon this they allowed interest amounting to $2,425.50. They allowed $7,500 as damages to the land not taken. The trial court rendered judgment upon the verdict of the jury, of which the railway company complains. The tract of land out of which the right-of-way was appropriated is acre property, amounting to about fifteen acres. It is in the town of Armourdale. No part of the tract has ever been platted as a part of or as an addition to the town. The tract is 990 feet long by 666 feet wide. The right-of-way was condemned out of the northern portion of the tract, leaving a strip of land about 136 feet wide on the north, and a strip about 350 feet wide on the south side of the right-of-way. It was claimed by the plaintiff below that the market value of the strip of land north of the right-of-way was depreciated by the appropriation, and the jury so found. No claim was made for damages to the land south of the right-of-way, the plaintiff having testified that that part of the land sustained no damage or injury. The north side of the property is bounded by a large tract of unsettled and unimproved land, belonging to the Union Pacific Railroad Company. The south side is bounded by acre property, subdivided into blocks, and on the east and west are alleys 15 feet wide. On the east and west of the alleys, the land has been platted into lots. The land was called by the owner “a farm on a small scale.” On the north strip, above the right-of-way, is a frame house, the main building of which is 36x20 feet, with an “L” addition 15x20 feet — a two-story building. The house cost about $1,900.
Upon the trial, the plaintiff below, over the objections and exceptions of the railway company, introduced evidence showing the market value of the lots adjoining and also adjacent to the tract of land upon the east and west sides thereof. These lots were on different streets of Armourdale. Some of the lots were upon business streets, with business houses upon them, others were residence lots, improved. Some of the lots were near the tract of land through which the right-of-way was taken, and others were several hundred feet away. Some of the lots were on Kansas avenue, the principal business street of Armourdale, and about three hundred feet south of the tract of land. The plaintiff also offered evidence of the number of lots that his tract of land could be divided into, the size of the lots, and the value of the lots, if the tract were platted and so divided. Among other evidence of this kind was the following:
Thomas Vickroy:
“Ques. How many lots of the size of the lots that you have estimated to be worth from $1,250 to $1,800 could be made out of your property, per acre?
“By Mr. Hutchings: We object to that as incompetent, irrelevant, immaterial, and cross-examination of the witness.
“By the Court: Has not been shown to know anything about it, or that he has had any experience in platting.
“Q. By Mr. Fenlon: You know the size of these lots, do you? A. Yes.
“ Q. Taking the size of these lots, how many would constitute an acre?
“[Objected to by defendant's counsel on grounds last before stated. Objection overruled by the court. Defendant duly excepted.]
“A. Ten; it will make ten lots out of an acre.”
In K. C. & T. Rly. Co. v. Splitlog, 45 Kas. 68, (25 Pac. Rep. 202,) it was said in a case very much like this that—
“ While there is a want of harmony in the authorities, we think the weight of authority holds that where expert witnesses are called to testify as to value in damage cases, or where, under the exception to the' general rule that none but experts may give opinions, non-expert witnesses, familiar with the subject of the controversy, are permitted to give opinions as to values, such evidence — that is, such opinions as to values —should be confined to the market value of the property in controversy in all cases where witnesses can be obtained who are familiar therewith. . . . Witnesses testifying as to the value of such land may consider any use to which the ground may be presently put in forming their opinions as to its value, and its surroundings may be shown to the jury, its nearness to or distance from a town, village, or city, or other improvements that tend to affect its value; but the jury are to value the land as a whole in the condition in which it was when taken. They have nothing to do with its subdivision into lots or blocks. They may consider its location, and the effect its location has upon its value as a whole; but the evidence as to how many lots it would make, and what they would sell for after the subdivision, is wholly improper.”
The principle announced in that decision controls this. As already decided by this court, opinions as to the value of property in such cases as this should be confined to the property in question, unless on cross-examination, for the purpose of testing the knowledge and competency of the witness, the value of adjoining property is inquired of. (Lewis, Em. Dom., § 435; Wyman v. Railroad Co., 13 Metc. 316.)
Among other of the cogent reasons why the foregoing evidence referred to should have been rejected, is, that such evidence introduced into the case collateral issues as to the value of lots, improved or unimproved, near by and also distant from the tract of land in controversy. Further, in this case, Thomas Vickroy, R. B. Armstrong, George W. Betts, and others, testified that they knew the market value of the tract of land from which the right-of-way was taken, and also testified as to its market value; hence there was no difficulty in finding witnesses who could testify as to the value of the property. Exceptional evidence was not needed. The trial court attempted to correct, by its instructions, the error into which it fell, but it did not expressly withdraw from the consideration of the jury the erroneous evidence commented upon; hence the errors were not cured.
Counsel for plaintiff below refer to Railroad Co. v. Chap man, 38 Kas. 307; Railroad Co. v. Ehret, 41 id. 22; Railroad Co. v. Cosper, 42 id. 561; and several other similar decisions of this court. These decisions do not conflict with the recent opinion handed down in K. C. & T. Rly. Co. v. Splitlog, supra. In all of these decisions, the witnesses testified as to the value of the land in controversy. They did not testify as to the specific value of adjoining farms, or adjacent farms, or adjoining lots or adjacent lots, or other farms or lots in the vicinity. In the Chapman case, unlike this case, the property had no market value. But even in that case it was said:
“ Where property has a market value the rule is strict, and requires only that value to be shown; but where it is shown that the property is without a market value, then the law allows the next best evidence to be given to ascertain its value. The property then may be compared with other property; its value may be determined by persons who are shown to be judges, or who have knowledge of the values of real estate in that vicinity; and their opinions may be given of the value of the property [in question], which in this case was the best evidence it was possible to secure.”
We approve all that was said in the Chapman case, and all of the other decisions of this court referred to, concerning opinion evidence as to the value of the property taken or injured; but those cases do not reach the Splitlog, or this case. We expressly affirm all that was said by Mr. Justice Brewer in Railway Co. v. Paul, 28 Kas. 281, as follows:
“The values of real estate, especially in localities where there are few changes in property, are not so absolutely certain, and cannot be determined with absolute exactness; and in respect to them the testimony of witnesses partakes largely of the nature of opinions. And yet, from the necessities of the case, it has come to be recognized that such testimony is competent. It is the best that, in the nature of things, can be obtained; for a description by a witness of the locality of any given tract, its improvements and surroundings, would ordinarily throw little light upon the question of its value. So many things enter into and affect such value that a witness would be unable to describe them all, or even to comprehend them all fully. Hence it has become pretty generally established that a witness who testifies that he is acquainted with the values of real estate in the locality, may give his opinion as to the value of any particular tract” [in question].
If the rule thus stated had been followed in the introduction of the evidence in this case, and the witnesses who resided in the vicinity of the tract of land appropriated or injured, and who were familiarly acquainted with the tract, its location, advantages, character, etc., had merely testified to the value of the land taken, and the value of the land not taken before and since the injury of which complaint is made, there would not have been any ground for reversal upon the matters commented upon.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
BURCH, J.:
On.April 15, 1908, Nelson Gleason executed and delivered his negotiable promissory note to the Peerless Machinery and Supply Company for $1000, due on September 1, 1908. The note was given for stock in the machinery company and was accompanied by a written contract permitting Gleason to return the stock and receive his note duly canceled by giving notice of his intention to the machinery company on or before August 1, 1908. On July 25, 1908, the notice was given but the note was not returned.
The machinery company indorsed the note in blank before maturity and left it with the Andale State Bank as security for money to be advanced to the machinery company under a contract providing that advancements should be made up to the sum of $3500 when collateral security indorsed by Michael Lili was deposited with the bank. The bank refused to make any advancement on the .note until it was indorsed by Lili. Lili then went to the bank and wrote his name on the back of the note, pursuant to a contract with the machinery company to do so, which contract provided for security to Lili for his indorsement out of the company’s assets. The bank then cashed the note. Gleason had no concern with any of these transactions. When Lili indorsed the note and the advancement was made neither he nor the bank had any notice of the contract between Gleason and the machinery company. When • the note matured Gleason refused to pay. Upon demand of the bank Lili took up the note and received it without indorsement from the bank. .
In an action by Lili against Gleason the court found the foregoing facts and held that Lili was not a holder in due course and that Gleason’s defense to the note under his, stock contract with the machinery company was good. Lili appeals.
The rights of the parties are governed by the negotiable-instruments law.' (Gen. Stat. 1909, §§ 5247-5446.)
Lili became a party to the note for the • accommodation of the payee (§ 36), and his original status, so far as liability was concerned, was that of an indorser, since he did not indicate an intention to be bound in some other capacity (§ 70). He thus became secondarily liable to all parties subsequent to the payee (§71), in this instance to the Andale State Bank. ■
When Lili paid the note it was not discharged. It was the policy of the law merchant and is the policy of the negotiable-instruments law to keep a negotiable instrument alive and negotiable as far jas possible until the principal debtor has discharged his obligation. Discharge could not take place under either section 128 or section 128, and the general rule is that payment by a party other than the principal debtor does not discharge parties prior to the one making the payment, and the payment, instead of extinguishing the instrument, operates as a transfer of it to the party paying. (7 Cyc. 927, 1020; Note, 46 L. R. A. 781.)
The contract of an indorser for the accommodation of the payee is wholly independent of that of the maker, and such indorser, upon making payment, succeeds to the title and rights of the holder as against the maker. (1. A. & E. Encycl. of L. 356; Stanley v. McElrath, 86 Cal. 449, 25 Pac. 16; Rinehart v. Schall, 69 Md. 352, 16 Atl. 126; Shaw v. Knox, 98 Mass. 214; Heaton v. Dickson and Trust Co., 153 Mo. App. 312, 318, 133 S. W. 159; Sheahan v. Davis, 27 Ore. 278, 40 Pac. 405.)
The nóte having been indorsed by the payee in blank it became payable to bearer and négotiable by delivery (§41). When it was delivered by the bank to Lili he became the bearer and holder (§2). Having derived title from the bank, which was a holder in due course, and not having been a party to any fraud or illegality affecting the instrument, Lili became possessed of all the rights of the bank against the maker (§65). It made no difference that the paper was overdue and unpaid, and would have made no difference if it had been shown that when he acquired title Lili had learned of the contract between Gleason and the supply company, to which, as between them, the note was subject; Section 65 of the negotiable-instruments law merely affirms the settled principle of the law merchant that when a negotiable instrument once passes into the hands of a holder by indorsement in due course the maker’s right to interpose defenses good against the payee is cut off as to all subsequent holders not parties to fraud or illegality affecting the instrument. The reason is that if a holder in due course could not invest his transferee with his own capacity to recover on the paper his property rights would be materially and prejudicially reduced.
Section 128 of the negotiable-instruments law reads as follows:
“Where the instrument is paid by a.party secondarily liable thereon it is not discharged, but the party so paying it is remitted to his former rights as regards all prior parties, and he may strike out his own and all subsequent indorsements and again negotiate the.instrument, except: (1) Where it is payable to the order of a third person and has been paid by the drawer; and (2) where it was made or accepted for accommodation and has been paid by the party accommodated.” (Gen. Stat. 1909, § 5374.)
It is plain that the expression “remitted to his former rights” does not apply to Lili. He was a party secondarily liable who paid the instrument, but he had no former rights to which he might be remitted. After the payee had indorsed the note Lili indorsed it to accommodate the payee in disposing of it to the bank. Standing in that situation Lili had no title to the note or claim on either the maker, or the payee. After he paid the note he had a right of some kind against somebody— the right to reimbursement from the party accommodated, the right to enforce the note against the defaulting maker, or both — but until he paid the note no obligation arose in his favor on the part of anybody, and of course the statute did not remit him to a situation in which he was entirely remediless. The words “remitted to his former rights” must therefore be restricted in their application to a party secondarily liable who has himself been connected with the title to the in - strument.
“Manifestly, this section refers only to indorsers for value and not for mere accommodation. An indorser for value at some timé prior’ to his indorsement owned the note with the right to sue upon it at maturity. With this right he parted when he discounted the paper by indorsement to a purchaser for^alue, who'in turn by like process may transfer the title, becoming liable by his indorsement to the new indorsee, and so on without limit until the maturity of the instrument. Then, whichever of the successive indo'rsers is compelled to pay is restored to his former rights within the meaning of this section, upon striking out his own and subsequent indorsements.
“The case is entirely different, in reason, concerning an accommodation indorser or a guarantor. Neither of them has any ‘former rights,’ nor, indeed, any right whatever, until he pays the note or bill.” (Noble v. Beeman-Spaulding-Woodward Co., 65 Ore. 93, 107, 131 Pac. 1006, 46 L. R. A. 162.)
In the case of Quimby v. Varnum, 190 Mass. 211, 76 N. E. 671, it was well said that section 128 was in-, tended to apply where the person secondarily liable can trace his title on the face of the note and its indorsements through the prior parties to the party whom he seeks to hold. This case, however, seems to decide generally that because an accommodation indorser has no rights before he has made payment to which he could be remitted, payment by him extinguishes the note. Such a result as to one in Lill’s situation can not be deduced from section 126 or any other section of the negotiable-instruments law, is opposed to the express declaration of section 128 that payment by a party secondarily liable- does not discharge the instrument, and is contrary to the policy of the law merchant. No reason is apparent why Lili, after having acquired the paper, might not have negotiated it to another had he seen fit to do so.
Some early Kansas cases are cited to the effect that prima facie Lili was a guarantor. His liability was governed by section 70 of the negotiable-instruments law, which supersedes the cases cited.
It is said that on default of the maker proper steps were not taken to charge Lili as an indorser, and consequently that he was released from liability on the note. This circumstance does not defeat his action. (Stanley v. McElrath, 86 Cal. 449, 25 Pac. 16; Pinney v. McGregory, 102 Mass. 186.)
One of the defenses to the action was that Lili acquired title to the note in December, 1909, from the trustee in bankruptcy of the machinery company.
Lili was a creditor of the machinery company, and held as collateral security for his indebtedness a number of notes which had been given to the machinery company. Lili compounded his indebtedness with the trustee, by order of the bankruptcy court duly obtained in December, 1909, and accepted in satisfaction the collateral notes in his possession. For some reason the Gleason note was included in the list of securities. Lili paid the note and received it from the bank on March 6, 1909. At the time the machinery company was adjudged bankrupt the note belonged to the bank as a holder in due course. After the bank transferred it to Lili the note belonged to him, and consequently the trustee in bankruptcy had no title whatever to the instrument which he could pass to Lili. If in the adjustment of his affairs with the estate of the bankrupt Lili secured a release of whatever claim the trustee made to the note, it was no concern of the maker and the title acquired from the bank was not impaired:
The judgment of the district court is reversed and the cause is remanded with direction to enter judgment for the plaintiff.
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Opinion by
Strang, C.:
This is an appeal from a judgment of the district court of Wyandotte county, refusing a new trial. March 10, 1890, the defendant was tried and convicted of the larceny of a horse, and sentenced to the penitentiary for the period of seven years. September 29, of the same year, the defendant filed his petition for a new trial, which was heard and overruled. The defendant alleges that he was entitled to a new trial, first, because of the negligence of his counsel in the preparation and conduct of his defense. We have examined the record, and, outside of the allegation of the defendant in his petition for a new trial, we discover no indication of negligence in the'conduct of the trial on the part of the attorneys for the defendant. He complains that no motion for a new trial was filed. It is true no motion for a new trial was filed by the attorneys for the defendant; but, so far as we know, they had nothing upon which to base a motion for a new trial, and if they had not, the filing of a motion for a new trial would have been a mere idle ceremony. We are also bound to believe that the defendant did not, at the conclusion of his trial and before sentence, know of anything upon which to base a motion for a new trial, since he alleges in his petition that it was since the trial and verdict that he discovered the evidence upon which he bases his right to a new trial. Besides, if he had known of the newly-discovered evidence at the time of the trial, it would not have constituted any cause for a new trial, though not used on the trial. Again, the defendant testifies in his affidavit for a continuance that it was not until the 4th of March that he came into possession of money to employ counsel to defend him. On the same day they prepared and filed an application for a continuance, which was heard by the court the next day, the 5th, and the case was continued thereon until the 10th of the month. This evidence shows that the counsel for the appellant were not employed until the day before the application for a continuance was heard. The application for continuance also shows that counsel and the appellant got their information in regard to what witnesses.therein named would swear to from one Riley Miller, a friend of the appellant, from Leavenworth. The appellant alleges negligence in the preparation of the affidavit for the continuance in this, that it did not correctly state what the witnesses therein named would swear to. It is pretty certain that the application for a continuance, so far as it purported to give facts that could be proved upon the trial of the case if a continuance was had, was a fraud; but it is equally certain that it was no fault of the counsel for the appellant that it was so, for they got their information from the friend of the appellant, and having just been employed, they had no time in which to verify the information thus obtained. Appellant alleges in his petition for a new trial that he did not know about the alleged evidence contained in the affidavit for a continuance, except as he got it from his counsel. This is very unlikely, since he states in the affidavit for a continuance that he was entirely without money or means to employ counsel to advise him or prepare for his defense in said action, or to hunt up the whereabouts of his witnesses, until the 4th day of March, 1890, when his friend Riley Miller arrived from. Leavenworth and informed him of the whereabouts of witnesses material to his defense. It is unreasonable to suppose that this man, the appellant’s friend, as he swears in his affidavit, came from Leavenworth to inform him of the whereabouts of material witnesses for his defense, and did not tell him what the witnesses would testify to; or that he gave appellant one version of what they would swear to, and his counsel another and a different one, or that his counsel did not correctly embody in said affidavit the information thus obtained. A perusal of this affidavit for a continuance satisfies us that appellant’s complaint of negligence on the part of his counsel is without foundation. He knew whether Miller was a friend of his or not when he made the affidavit, and whether he was from Leavenworth, and, much better than counsel, must have known whether Miller’s story of the evidence which witnesses named in the affidavit would give was true or false. It is alleged in the brief of the appellant that his counsel in the court below did not except to rulings of the court below, nor to the instructions. But appellant makes no complaint in his petition for a new trial of any errors in the rulings of the court or in the instructions, and therefore he cannot complain of them.
The second contention of the appellant is, that he should have a new trial on account of newly-discovered evidence, which is shown by, the affidavits of the witnesses through whom it is alleged it can be secured. Mary Allen is the first witness by whom it is said new evidence can be made. In the first place, the matter set up in her affidavit is but hearsay and is not evidence, and then any fact contained in her affidavit was fully within the knowledge of the appellant before he was tried, and therefore, if evidence at all, was not newly-discovered evidence. Nor is there any newly-discovered evidencefiisclosed in the affidavits of Givens and Mrs. Givens. If the appellant purchased the horse he was charged with having stolen, at the house of Mr. and Mrs. Givens, January 30, 1890, in the presence of the Givenses, he knew that fact as well as they did, and he knew it at and before his trial. It was his duty to have had Mr. and Mrs. Givens subpoenaed to attend his trial. They lived, as their affidavits show, in Kansas City, Kas., at the time of the alleged purchase of the horse in their presence. If they had removed in the meantime to Leavenworth — and we do not know that they had, though the affidavits they make are sworn to at Leavenworth, September 24, 1890 — yet if it were true that he purchased the horse he was charged with having stolen at the house of the Givenses, in their presence, at the time they say he did, he knew as well before his trial that he could prove that fact by them as he did six months afterward. But no intimation of their knowledge finds its way into the case until September 24, 1890, six months after the trial. We do not think there is anything in the affidavits of Mary Allen and the Givenses entitling the appellant to a new trial, or to justify the granting of a new trial. The verdict in the case was amply supported by the evidence. There is very little or no room for doubt of the defendant’s guilt. The appellant was seen near the barn whence the horse was taken the evening that he was stolen. It is admitted that he had the horse and traded him off very soon after he was stolen. And when en route from Leavenworth to jail, he inquired of the officer having him in charge if he knew the prosecutor, and if he was a hard man to deal with, and said he would give him $100 to drop the case against him. Afterward, while in jail awaiting trial, he offered the prosecutor $100 to abandon the case against him. That was not the conduct of an innocent man, who had purchased the horse, and^who knew he could prove that fact by two witnesses who were present when he purchased him.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
Action by the plaintiff to foreclose a chattel mortgage, begun in the district court of Barber county, Kansas, October 2,1886. August 30, 1886, the firm of Lovejoy & Glasscock, being indebted to the plaintiff in the sum of $10,000 and accrued interest, executed a chattel mortgage to C. J. Lovejoy to secure said indebtedness, which mortgage was filed in the office of the register of deeds of Barber county September 1, 1886, at half-past 7 o’clock A. M. On the same day Lovejoy & Glasscock executed a chattel mortgage to C. J. Lovejoy, to secure an alleged indebtedness of said firm to him, the said C. J. Lovejoy, in the sum of $4,500, which mortgage was filed with the register of deeds of said county at the same time with the first above-mentioned mortgage. No claim is made by C. J. Lovejoy under this latter mortgage so far as this case is concerned. Several days after the filing of said mortgage with the register of deeds, attachments were levied upon the goods therein described, in suits against Lovejoy & Glasscock, in favor of Eidenour, Baker & Co., the National Bank of the State of Illinois, and Kuh, Nathan & Fisher, in each of which cases judgment was obtained against Lovejoy & Glasscock. Each of said attaching creditors was made a defendant in this case. October 15, 1887, the case was tried by the court without a jury, the court making the following findings of fact and conclusions of law, and rendering a personal judgment in favor of the plaintiff upon its note against C. J. Lovejoy, H. C. Lovejoy, and. A. C. Glasscock, but holding the mortgage of the plaintiff void as against Eidenour, Baker & Co., the National Bank of the State of Illinois, and the other attaching creditors of the defendants, Lovejoy & Glasscock, represented in the case:
“findings of fact.
“1. The firm of Lovejoy & Glasscock executed the mortgage described in the plaintiff’s petition, and delivered the same to C. J. Lovejoy.
“2. At the time of the execution of said mortgage, the firm of Lovejoy & Glasscock was justly indebted to plaintiff to the amount of the note described in the petition, which is the indebtedness to the First National Bank of Emporia, in said mortgage described, and was also justly indebted to the National Bank of the State of Illinois, which is also described in said mortgage, neither of which debts has been paid.
“3. At the time of the execution of said mortgage, the said C. J. Lovejoy was a member of the firm of Lovejoy & Glass-cock, and íiable for all the debts of said firm. At and prior to the time of the levy of the several attachments mentioned in this case, the said C. J. Lovejoy was in the actual and exclusive possession of the property involved in this action, claiming the same under said mortgage.
“4. The said mortgage was given to hinder, delay and defraud the creditors of the firm of Lovejoy & Glasscock, which said intent was known to and participated in by the defendants, C. J. Lovejoy, H. C. Lovejoy, and A. C. Glasscock.
“5. The plaintiff had no knowledge or notice of such intent, and did not participate therein.
“6. The value of the mortgaged property was not in excess of the debts described in said mortgage.
“ 7. At the time of the execution of the notes to the First National Bank of Emporia, and the National Bank of the State of Illinois, mentioned in the chattel mortgage set out in •the petition, the defendant G. J. Lovejoy was a member of the firm of Lovejoy & Glasscock, and he was one of the principals of said notes, and not simply a surety therein.
“8. At the time of the commencement of the action the defendants, Eidenour, Baker & Co., the National Bank of the State of Illinois, Kuh, Nathan & Fisher, the Alcott Packing Company, the Gauss-Shelton Hat Company, and Charles Nelson, each had a valid attachment lien upon the property, or some portion of it, which was included in the chattel mortgage set out in the plaintiff’s petition, and which' was taken possession of by the receiver herein.”
“conclusions of law.
“As conclusions of law based upon the foregoing findings of fact, the court finds that the chattel mortgage set out in plaintiff’s petition is void; and that plaintiff has no right to or lien upon any of the funds in the hands of the receiver herein, and that the defendants, Eidenour, Baker & Co., the National Bank of the State of Illinois, Kuh, Nathan & Fisher, the Alcott Packing Company, the Gauss-Shelton Hat Company, and Charles Nelson, are entitled to said funds in the hands of the receiver in accordance with their several attachments.”
It is asserted that all the evidence which was received and considered on the trial of the cause in the court below is not returned in the record to this court; and an examination of the record seems to sustain the claim. But as, from our view of the case, the findings of fact made by the court below are not to be disturbed, we have not examined the record to see whether sufficient evidence is returned to sustain such findings.
The next contention of the defendants is, that there is such a want of parties in the case as presented to this court that the case here must necessarily be dismissed. Defendants claim that the Alcott Packing Company, the Gauss-Shelton Hat Company and Charles Nelson were parties defendant in the case below, and are therefore necessary parties to the case in this court, and, not having been made parties herein, this case must be dismissed. It is true that the parties mentioned were included in the petition of the plaintiff filed in the district court, but there is no evidence in the record that they were ever served with process. So far as appears from the record, none of them filed any pleadings in the cáse, or in any other way appeared on the trial thereof. We find in the record the following stipulation:
“It is admitted by the plaintiffs that the goods in controversy were attached in the case of Ridenour, Baker & Co. and the case of the National Bank of the State of Illinois against the Lovejoy-Glasscock Trading Company, otherwise Lovejoy & Glasscock, H. C. Lovejoy, and A. C. Glasscock, also Kuh, Nathan & Fisher against the same parties, in actions pending in the district court in Comanche county, Kansas; that the levying of the attachments and all proceedings in said cause were regular; that judgments have been procured in said causes against all the defendants in the following sums: In favor of the National Bank of the State of Illinois, for the sum of $21,500; in the case of Kuh, Nathan & Fisher, $2,100; and in case of Ridenour, Baker & Co., for $1,907.45, and that said judgments have not been paid.”
There is no evidence in this record of the pendency of any suit on the part of the Alcott Packing Company, the Gauss-Shelton Hat Company, or Charles Nelson, or any other party, against Lovejoy & Glasscock, not included as defendant here. There is no judgment in favor of any other parties against Lovejoy & Glasscock, affecting the goods in controversy, so far as we can learn from the record. It is true that the court in its 8th finding says that, in addition to the parties to this record, the Alcott Packing Company, the Gauss-Shelton Hat Company and Charles D. Nelson each had a valid attachment lien upon the property, or some portion of it, which was included in the chattel mortgage set out in plaintiff’s petition. Rut as there was no pleading or other appearance by such parties on the trial of the case in the court below, and no stipulation in respect to them, and there being a stipulation in respect to the cases of the parties made defendants in this court, we do not think it sufficiently appears that these alleged omitted .parties were parties to the trial of this cause in the court below in such a way as to make them necessary parties here. They obtained no judgments in the court below. The journal entry showing the judgment of the court below contains the following significant words. After reciting the National Bank of the State of Illinois and Ridenour, Baker & Co. as parties to the judgment, the court adds: “And the other attaching creditors of the defendants Lovejoy & Glasscock, represented herein.” The words “represented herein” show that there were attaching creditors of Lovejoy & Glasscock not represented in this cause in the court below.
The real question upon the merits of the case arises out of the character to be given the mortgage sought to be foreclosed by the plaintiff. The mortgage was either given by the firm of Lovejoy & Glasscock, whoever that might include, to indemnify C. J. Lovejoy for some liability or assumed liability of his for the debt of the firm, or it was given and intended as security for the plaintiff, the First National Bank of Emporia. It was not given to C. J. Lovejoy to secure any principal debt from the firm to him, in which a third party or stranger to the instrument could only take under it by assignment, for there was no pretense that there was any principal debt owing by the firm to C. J. Lovejoy, except the debt of $4,500 secured by the other mortgage, and no pretense that the debt named in the mortgage of plaintiff was due from the firm to C. J. Lovejoy in any way, except as by their contention he was a surety on their note to the plaintiff. Was the mortgage in controversy given to indemnify C. J. Lovejoy as surety on their debt to the bank? This question must be answered. in the light of the findings of fact made by the court below, as well as the other matters in the record bearing upon the question. The note representing the indebtedness secured by the mortgage was signed by G. J. Lovejoy, H. C. Lovejoy, and A. C. Glasscock, each an apparent principal on the note. If he had not been a partner in the firm, he might have signed as an apparent principal, and still have been, as between himself and the other makers of the note, a surety. But the finding of the court makes him a partner with H. C. Lovejoy and A. C. Glasscock in the firm of Lovejoy & Glasscock; and it is difficult to see how, if he was primarily liable as a partner for the debt of the firm to the plaintiff, and signed the note as an apparent principal, he was anything but a principal debtor on the note. If he was principal on the note as between himself and his co-makers, he could not be a surety thereon, and the mortgage could not have been made to him to indemnify himself. The court also' finds that he was a principal, and not a surety on said note. The security tendered in a mortgage like the one in controversy is not to him who may be nominated therein as a party of the second part, but to the owner and holder of the debt therein identified as the debt to secure which the mortgage is given. While C. J. Lovejoy is nominated as party of the second part in this mortgage, the mortgage upon its face declares it is given to secure the debt due the Emporia National Bank, the plaintiff in this case, and, so far as this case is concerned, for no other purpose, because it provides that upon the payment of the debt of the plaintiff such mortgage shall be null and void. It is apparent that C. J. Love-j°v is a mere nominal party to said mortgage, and that all the rights accruing thereunder inure directly to the beneficiary therein named, the Emporia National Bank, and that Lovejoy took nothing thereunder. By the execution and delivery of said mortgage, the mortgagors undertook to and did set apart] property for a specific purpose, to secure the payment of a specified debt, and thereby conferred upon the owner and holder of the debt named an equitable lien that could not be dischai’ged or otherwise interfered with by the nominal mortgagee. Such lien having attached, it remains good against all persons, except purchasers without notice. In this case there were no such purchasers, and the attachments were levied several days after the mortgage was filed with the register of deeds.
In the case of Eastman v. Foster, 8 Metc. (Mass.) 19, it is said:
“The court are of the opinion that the mortgage made by Cushmans, the principal debtors, to Eastman, the surety, conditioned to pay the notes and indemnify him, did create a trust, and an equitable lien for the holders of the several notes; that the mortgagee held the property subject to such trust; and that it created an equitable lien thereon for the security and payment of the specified debts.”
In Bank v. Lee, 27 Am. Dec. 713, it is held:
“ Property mortgaged to a surety to secure him for indorsing the mortgagor’s note, whether such property be real or personal, may be subjected to the payment of such note by a bill filed by the creditor, where the debtor is insolvent. In such,case the creditor need not levy execution so as to obtain a lien upon property mortgaged to a surety for the same debt for his indemnity, as he has an equitable lien upon the property so mortgaged. The security or fund is created for the payment of the debt, and is a trust existing for that specific purpose, and whether the creditor or the surety be trustee is very immaterial. The trust is created ultimately for the benefit of the creditor.”
In Russell v. Clark, 7 Cranch, 69, the court declare —
“That the person for whose benefit a trust is created, who is ultimately to recover the money, may sustain a suit in equity to have it paid directly to himself.”
“In some states a distinction seems to be drawn between cases where security is given for indemnity only, and where it is given both for indemnity to the surety, and to secure the debt. Where it is given to secure the debt as well as indemnity, there would seem to be little doubt that the creditor, whether cognizant of the assignment and its purpose or not, at the time of the assignment, could, when it came to his knowledge, avail himself of it as effectually on maturity of his debt as he could had it been assigned to him directly. But when the assignment is for indemnity only, some courts have held that the surety’s right to apply the security as he pleased is inconsistent with the idea of a trust in favor of the creditor, and that the creditor can only reach the security by way of subrogation after the surety has been damnified, actually or constructively. The great weight of authority, however, is against the proposition that the creditor’s right is rooted in the doctrine of subrogation. The assignment of security by the principal to his surety is an appropriation of funds for the ultimate discharge of the debt for which he is holden. The surety has the right to apply the security directly to the payment of the debt. If the surety pays with his own funds, he keeps his principal’s debt on foot against him, and then applies the security to its payment. Thus, in any event, the funds of the principal are made to satisfy the principal’s debt, and this accords with the purpose of the principal when he gave the security. If the surety, after assignment of the security, becomes insolvent, or by any act of the creditor is discharged from liability, he holds the security in trust for the creditor.” (Cullum v. Br. Bank, 23 Ala. 797; Clark v. Ely, 2 Sandf. Ch. 166.)
“The clear deduction from the cases is, that an assignment of securities by the principal to his surety for indemnity merely raises an implied trust in favor' of the creditor, which, on maturity of his debt, he may enforce, whether the surety has been damnified or not, and irrespective of the question whether the surety or principal, either or both, are solvent.”
(New Bedford Inst. for Savings v. Fairhaven Bank, 9 Allen, 175; Kramer’s Appeal, 37 Pa. St. 71; Rice’s Appeal, 79 id. 168; Insurance Co. v. Ledyard, 8 Ala. 866; Moore v. Moberly, 7 B. Mon. 299; Curtis v. Tyler, 9 Paige, 432; Ten Eyck v. Holmes, 3 Sandf. Ch. 428; Paris v. Hulett, 26 Vt. 308; 1 Story, Eq. Jur., § 499 (Redf. Ed.); Brandt, Sur., §293.)
“A mortgage deed, given by the principal maker of a promissory note, conditioned that the principal will pay the note and save the surety harmless, creates a trust and an equitable lien for the holder of the note, and the surety holds the mortgaged property subject to such trust and lien, even after the holder’s claim on him to pay the note is barred by the statute of limitations, and though the property, as between the mortgagor and mortgagee, may have become absolute by foreclosure. The trust created by such mortgage is not secret; and when the mortgage is recorded, it gives constructive notice of the trust to all creditors-and purchasers, so that they cannot, by attachment or grant, take it discharged of the trust.” (8 Mete., Mass., 19.)
It will be seen from the authorities cited that, even where the security is given to indemnify the surety solely, an equitable lien attaches to the securities in favor of the principal debtor, which he may enforce by a direct proceeding. His right does not depend on the law of subrogation. This right becomes stronger when the securities are delivered not only to indemnify the surety, but to secure the principal debt; and where, as in this case, from the terms of the mortgage, and the finding of the court, the nominal mortgagee is not a surety, and the security by its terms is delivered for the sole purpose of securing the principal debt, which it clearly identifies, it seems there can be little doubt about the right of the principal debtor to enforce, in a direct proceeding, the payment of his debt out of the security given. The execution and delivery of the mortgage sued on was the setting apart of the property to pay the debt therein named and identified; and the principal debtor at once obtained an equitable lien thereon, which, when the mortgage security was recorded, was good against any act of the mortgagor or nominal mortgagee, or any lien of creditors of the mortgagor obtained subsequent thereto, and that, too, though the principal debtor did not at the time know of the execution and delivery of the security, provided he afterward accept the security tendered. This right of the owner and holder of such security may be enforced in the name of such owner, without any regard to the nominal mortgagee.
“The beneficiary will be presumed to have accepted the fund deposited or raised for the ultimate satisfaction of his demand. It is the trust fund, and not the trustee as an individual, that gives a court of equity jurisdiction; and having the fund under its control, the court will decree in favor of the parties entitled.” (Breedlove v. Stumph, 3 Yerg. 257.)
“The assent of the person selected as trustee is not necessary to the validity of the deed. If he refuse to execute it, a court of chancery will execute it. 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; 94 Am. Dec. 210.)
Finally, it is contended that because C. J. Lovejoy was made the nominal mortgagee in the security claimed by the plaintiff, and the trial court found that the mortgage was made by the mortgagors to hinder and delay their creditors, and that C. J. Lovejoy participated in the fraudulent intent of the mortgagors,- that the mortgage is necessarily void as a security in favor of the plaintiff, though the court also found that the plaintiff knew nothing of such fraudulent intent of the mortgagors. It is said that C. J. Lovejoy took nothing under the mortgage because of the fraudulent intent in which he participated, and that the plaintiff could get no more rights under the mortgage than C. J. Lovejoy got; that whatever rights the plaintiff got under the mortgage came to it from C. J. Lovejoy. If the plaintiff got no more rights under the mortgage than C. J. Lovejoy got, then, indeed, it might as well go out of court, for C. J. Lovejoy got no rights at all under the mortgage except that of mere nominal mortgagee, or the right of a mere naked trustee. He got no right to any of the security for any purpose. If he had refused to act as trustee of the trust, the plaintiff’s rights would not thereby have been affected. Its lien upon the security would have remained the same, and it could have enforced it without his aid. He had no power to affect its rights. He could not have discharged its lien, nor could he have satisfied the mortgage. The plaintiff took nothing by, through or under him, but had and has its lien upon the security without regard to him, by the direct act of the mortgagors in setting aside property to secure and pay its debt, and, when once the assignment of the security was made, in spite of him, or any act of his. He did not in any way represent the plaintiff by any act, request, or authority from it. Nor does the plaintiff take from him by assignment, or any other act of his, nor by being in law subrogated to any rights of his. The firm of Lovejoy & Glasscock owed the plaintiff a bona fide debt of $10,000. The firm had the right to secure such debt by making the mortgage, and the fact that it used C. J. Lovejoy as a nominal mortgagee in the security it was assigning to the plaintiff could not invalidate the security in the hands of the plaintiff, no matter what its intent was in making the mortgage, nor how much he whom it chose to act as nominal mortgagee knew of its intent. The plaiMiff bank knew nothing of any wrongful intent; and it is probably true, under the authorities, that any amount of knowledge of the intent of the mortgagors, on the part of the plaintiff, would not render the mortgage void in its hands in favor of liens created after the recording of the mortgage, so long as the debt to secure which it was given was bona fide, and it got by its security no more than the fair value in property of the debt secured. (Worland v. Kimberlin, 6 B. Mon. 608; 44 Am. Dec. 785, and cases there cited; Covanhovan v. Hart, 21 Pa. St. 495 [60 Am. Dec. 57]; Cooper v. National Bank, 40 Kas. 5.)
We are of the opinion that the court below was mistaken in its conclusion of law. upon the facts as found. The judgment of the court below is therefore reversed, and the cause remanded with instructions for the court below to enter a decree in favor of the plaintiff for the foreclosure of its mortgage, and the application of the proceeds thereof to the payment of its debt.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
In a petition for a rehearing it is charged that the following statement in the opinion is not true: “Upon a challenge of the abstract, however, it is admitted that these tables are not in the transcript.” (Chambers v. Trust Co., ante, pp. 30, 41, 139 Pac. 1178.)
In view of this charge, the challenge, and reply to the challenge, are now stated. The challenge is:
“The appellees . . . challenge the correctness of appellant’s abstract . . . and show that the following matter, contained in said abstract . . . namely
“ ‘Plaintiff’s Counsel:
“ ‘We offer in evidence all the books, papers, records and evidences of debt belonging to The Land Credit Trust Company, in the hands of the trustee and manager. But in order to relieve the court from examining them it is admitted that Exhibits A, B-l, B-2, and B-3 annexed to the amendment to the petition state the truth.
“ ‘By the Court: Is that admitted?
“ ‘Judge Sluss, after consultation with Mr. Reach: Let it go.’ is incorrect; that no such proceedings as is stated in the said matter took place in the trial court.”
The reply to the challenge is:
“The appellants acknowledge the service of the annexed challenge on this 20th day of February, 1914, and in reply thereto admit that the transcript does not show the language and matter sought to be excluded from the abstract.
“Appellants' do not know why it is that said matter does not appear in the abstract as it should. In this connection the appellants offer and ask to have considered the annexed affidavit of W. P. Campbell. The affidavit is made only for the purpose of showing good faith in the preparation of the abstract.”
The affidavit is of considerable length, but its contents are summarized in the petition for rehearing as follows:
“But the affidavit stated that the proceedings were truly set forth in the abstract. That it was in pursuance of a distinct understanding between counsel for appellant and Judge Sluss, of counsel for the directors, arrived at out of court. It would have been very inconvenient to bring into court the great mass of documentary evidence which would have showed the truth of the tables in the abstract, which are abstracted from the original exhibits attached to the amendment to the petition in the bondholders’ suit.” .
Upon an examination of the transcript it appears that the petition in the Peter Brandt suit was introduced in evidence in the trial of «this action. Attached to this petition are certain exhibits, including the tables referred to. That petition was competent evidence in this action upon the issue of estoppel by judgment, but was not evidence that the tables stated the truth. Plaintiff’s attorney insists that their truthfulness was admitted before the trial of this action, but in his reply to the challenge he concedes that the admission is not in the transcript.
These exhibits are not in the transcript of the evidence. It is not necessary, however, that they should be, as they were among the files of the case at the time of the trial. (Civ. Code, § 575.) But the statement in the opinion that it was admitted that the tables were not in the transcript is inconsequential. The important fact is that it was not admitted that they stated the truth, and the reply to the challenge may be construed, as its author insists, to concede only that the transcript does not contain such an admission.
It is not claimed that the correctness of these tables was proved, and as the purported admission of their truthfulness contained in the abstract is not in the transcript they had no probative force, except as parts of a pleading in another action tending to show what issues had been previously tried.
While the affidavit states that the attorney for several of the defendants admitted out of court the correctness of these exhibits, there was no proof of such an admission on the trial, nor among the documents on file when the case was tried and decided. The code provides for a review in this court upon the record, of which the stenographer’s transcript of evidence, and papers and exhibits filed with the clerk, including affidavits and depositions, are parts (Civ. Code, §§ 574, 575), but affidavits filed after the judgment on an appeal to this court are not parts of the record to be reviewed here.
It is stated in the petition for a rehearing that no charges of negligence were made in the pleading of the bondholders in the Peter Brandt suit against the trust company and that the state ment in the syllabus that the same charges of negligence were made against both the company and the directors is a mistake. In paragraph 7 of the petition in the Peter Brandt suit it was alleged that the trust company had permitted securities to be withdrawn without the substitution of other securities, as printed in the trust agreement; that it had received on deposit worthless securities, and invalid and uncollectable mortgages; had received securities which it had never placed on record as it was its duty to do, and that such record was necessary to preserve the securities. In paragraph 13 of the same pleading there is an allegation that to the knowledge of the trust company the mortgage company did not comply with its agreement concerning the valuation of lands, insurance, abstracts, and annual statements, and that the mortgage company in other ways, to the knowledge of the trust company, openly and shamefully violated the trust; that the trust company did not take title to notes and mortgages deposited with it as provided in the agreement, nor have the mortgages assigned; that securities amounting to thousands of dollars are not payable to any one and not enforceable; that “many of the mortgages have not been paid out upon, are valueless and represent a debt instead of a credit,” although the trust company had agreed with the bondholders to faithfully discharge its duties as a trustee. In the cross-petition of other bondholders — after stating the trust agreement — it is alleged that believing and relying upon the representations of the trust company and the directors that the trust company and the directors would faithfully perform their duties, the bondholders purchased bonds of the mortgage company, but that “neither the defendant trust company nor the defendant directors performed any of the duties of said trust, but were guilty of a breach of said trust in each and every particular in which any duty was to be performed by either of them under said trust.” This general claim is followed by specific charges that the trust company failed to safely keep the securities deposited with it, wrongfully permitted the withdrawal of securities, and wrongfully permitted the agents of the mortgage company to have possession and control of the securities so deposited. Other misconduct of the trust company is charged in the pleading, followed by a statement that “by reason of said wrongful acts and proceedings . . . on the part of the defendant trust company, and . . . the defendant mortgage company and its said officers, agents and employees, all induced, permitted and empowered by the negligence of the defendant directors,” the amount of securities had been reduced to an amount stated; and that by reason of the premises the trust company and the directors are obligated to account to the bondholders for the amount of bonds so deposited, and an account was prayed for accordingly, together with a personal judgment against the trust company as well as the directors.
These and other averments contained in the pleadings in the Peter Brandt suit, here referred to, show that the averment in the petition for rehearing, “that there is not a statement in any pleading charging negligence against the trust company,” is a mistake.
It is again argued with great vigor and ability that the admission of parol proof to show that the judgment was entered upon a compromise was erroneous. It is also again insisted that the findings of the district court that negligence of the directors was not shown should he set aside. Upon both of these propositions the court adheres to the views expressed in the opinion.
The petition for a rehearing is denied.
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The opinion of the court was delivered by
Smith, J.:
This action was brought upon a written contract which was attached to and made a part of the petition. The contract is copied in full in Mills v. Cleveland, 87 Kan. 549, 550, 125 Pac. 58.
The answer was a general denial, “save and except the allegations of partnership which they admit.”
The case was tried without a jury. There was no counterclaim or set-off pleaded in the answer, and the answer not being verified the allegation of the execution of the contract was admitted. The issue, therefore, was strictly under the written contract as to whether the plaintiff Was entitled to recover for his services thereunder. All other issues could have been excluded by the appellant upon timely objection to any evidence constituting a departure from the issue tendered by the petition.
It appears by the written contract that prior to the making of the contract Dr. Cleveland and Dr. Mills had been partners in conducting a sanitarium, treating patients, and selling formulas used by them in healing patients, and the right to sell such formulas was thereafter to be exercised by both the new firm and by Dr. Cleveland, and the proceeds of such sales were to be divided. No question as to such sales is in issue in the case.
Dr. Cleveland was a witness for himself, testified as to the patients he had attended or assisted in attending both in and away from the sanitarium, and testified that the appellees had kept the books and that he did not know in all cases what charges were made or what collections had been made, but testified that to the best of his memory the fees for January were $1150, and that he also did work thereafter for which he claimed one-half the compensation.
H. E. Thompson, one of the defendants, called as a witness, was asked:
“Q. And now what was said, if anything, shortly after this contract had been made and signed up by all the parties, about the treatment of patients in the sanitarium by the new firm, during the month of January? A. After the contract was signed and in triplicate, to reach all the parties, the question was brought up whether or not Dr. Mills would be well enough to go ahead with the business, providing there was -any during the month of January, and it was, at this time, that Dr. Cleveland said that if he would be allowed to go ahead and live in the sanitarium; finish up his old patients that he had prior to the making of the contract and board and room them — let Mother Cleveland have the money — he would do the work through January free or until such time as his house was built, if Dr. Mills was not able to do the work and he would not charge anything for it.”
Also, the following question was asked and answer given:
“Q. Well, was that agreed to by-the new firm — that proposition made by Dr. Cleveland? A. That was the understanding all around. Dr. Cleveland completed his building so that ‘he moved out of the sanitarium after the middle of February. He did some work for the firm at the sanitarium after he moved into his own house. For the cases, that he treated at the sanitarium and was paid for, he received 33-|- per cent. Dr. Cleveland, in just one case, did work for Mills & Thompson in which he, under this contract, was to receive half of the net proceeds and that was a case at Cunningham, northwest of Kingman. Dr. Cleveland collected that himself and divided it as per contract, after the expenses were taken out. During the month of January, while Dr. Cleveland was at the sanitarium doing the work, he collected $50 from Forsythe, $50 from Sellman, $95 from Clay and $100 from Charles for treatments and turned it over to me. He made no claim at that time that he was entitled to any portion of it. The first time that I ever heard that he made any claim that he was entitled to any share of the money that was earned there during the month of January, was when Mr. Washbon came down to the sanitarium sometime last summer or fall and said that Dr. Cleveland had been up there time and again to see him and Mr. Noftzger and that Dr. Cleveland would not hear of anything else but what he should come down and ask for the books and said we owed him a certain sum of money. He did not know what it was and had not paid much attention to it, but to relieve Dr. Cleveland’s mind he came down and he made the remark at the time that he supposed I would turn the books over but I refused to do it. During the month of January, when these patients were being treated, Dr. Mills was at the sanitarium every day and he had as much to do with it as Dr. Cleveland did — they worked together.”
This presents the principal question in this case. The pleadings presented no issue in regard to an oral contract made after the written contract was executed. A great deal of evidence was offered in reference to such oral contract, and we find no objection made thereto, except to the one question above, that it was “incompetent.”
The attention of the court does not seem to have been called to the fact that the evidence was not within the issues, and the objection as made was not well taken. The evidence was competent if it was relevant.
By a liberal construction of the objection “incompetent” it might be applied as meaning that the ■evidence called for by the question, viz., that some talk was had that, notwithstanding the writing, affected the rights of the parties, was not pertinent or relevant to the issues made by the pleadings. In the connection in which the word was used, however, this does not appear to be the ordinary meaning thereof. However this may be, the case should not be reversed on account of the ruling. The issue was fully tried out on this oral agreement. The plaintiff as well as the defendants produced evidence in reference thereto.
It also appears that for much of the business attended to by Dr. Cleveland while Dr. Mills was sick or away, during the month of January following the making of the contract, that he was paid one-third of the amount received from the patients whom he treated, and that the doctor himself collected the first fee that was divided in this way, and that the fees for all patients subsequently treated by him at the sanitarium, for which settlement was made, were divided in the same proportions as he had divided the first fee, and without objection on his part.
Dr. Mills was sick or absent, as said, from the sanitarium, and during that time Dr. Cleveland wrote many of the contracts with the patients in the name of the new firm, using the old blanks which contained his name, and from which he scratched his name in making the contract. It is contended by the appellees that in so doing he- did not comply with the written contract which provided that in cases where he assisted in treating patients by request of the appellees said Cleveland “shall assume equal responsibility, and for his personal services and the assumption of such responsibility shall receive as compensation one-half of the net fees in each and every such case.”
As we have seen, both parties departed from the provisions of the written contract in their dealings. Neither'the written contract nor the oral contract was strictly followed, but different settlements were made from time to time as to different patients. These settlements include a large share, if not all, of the. claims litigated in this case, and no substantial disagreement seems to have existed between them in regard to the division of fees until thirty months after the contracts' were made and until another lawsuit had been had between them.
Plaintiff made no claim to defendants for any additional compensation or asked for any settlement until about June 1, 1912, and more than two years after his last treatment of a patient in the sanitarium.
In its conclusions of law the court found that the parties to the contract have construed the contract, and their construction should not be disturbed. As before said, the case was fully tried out, and we think that while strict adherence to the issues set forth in-the pleadings was not adhered to, that substantial justice in the case was done.
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
The plaintiff, a coal miner, was injured at the defendant’s mine on July 29, 1912, by a rock falling upon him from the roof .of the room in which he was working. He recovered a judgment for $1200, and the defendant appeals.
The plaintiff was 53 years old at the time of his injury, and had been working in that miné for eleven years, and in the same room for about three months. His room extended northward from the entry for a distance of 150 or 160 feet. The plaintiff and his son Theodor were working together. The vein of coal was two feet and eight inches thick, and that was the height of the room. The rock which fell was twenty feet long, six feet wide, and four inches thick, and was in the roof at the end farthest from the entry, at or near the face of the coal. Its presence had been known to the plaintiff for about fifteen days before it fell, and he had been working under it all that time. There had been three props, each two feet eight inches in length, under the rock the day before the accident, but they had been blown down by the shots fired that night, and the next morning had been replaced by the plaintiff or his son when they commenced work. These props were under the rock when it fell. One prop was placed four feet from each end of the- rock, and the third one in the middle of the rock, forming a sort of triangle. When these props were put up that morning, both the plaintiff and his son sounded the rock with their picks, and in the language of the plaintiff, “It did n’t sound bad.” About half past twelve o’clock that day, after the plaintiff had picked coal under the rock for four or five minutes and had taken out three or four shovelfuls, the rock fell. It broke in two or more pieces, and one of the pieces fell upon the plaintiff’s back, bearing him down in a kneeling position. The rock broke off right on top of the props and fell on each side, leaving the props standing. The plaintiff’s son and other miners came to his assistance, and lifted the rock and released the plaintiff.
The sole negligence alleged in the petition was the failure of the defendant to furnish prop timbers of suitable length and size, whereby the plaintiff was unable to prop the roof of his room and prevent it from falling. The evidence disclosed that it was the duty of the driver to furnish props at the request of the miners, and that it was the duty of the miners to make their working place safe by the use of the props supplied by the company. The plaintiff testified that on the day in question he had in his room some loose props three and one-half and four feet in length, but claimed that they were too long to put under the rock. At nine o’clock that morning he ordered props two feet eight inches long from the driver. On his second trip thereafter the driver brought a load of props and delivered them at 11 o’clock or 11:30 o’clock at the switch entering the plaintiff’s room, and said to the plaintiff, “There ar.e no two-foot-eight props at the bottom, and I have brought you some three-foot props and some three-and-one-half-foot props.” Two or three of the props which the driver brought were three feet long, and the rest were three and one-half feet in length. They were unloaded by the plaintiff and his son. The plaintiff, was using in his room props of various lengths, two feet eight inches, three feet, three and one-half feet and four feet long, depending upon the varying height of the roof at different places. Most of the props they were using were two feet eight and three feet long. The floor of the room was composed of a substance called blackjack, from four to ten inches thick. This bottom could be dug out so as to admit of the use of a prop at least as long as three and one-half feet.
The jury found the following additional facts:
“Q. 7. Did the plaintiff, just prior to the falling of the rock complained of, think that it was safe? A. Yes.
“Q. 8. Did the plaintiff, when he went under this rock to mine out the shot, think the rock .was safe? A. Yes.”
The contention of the defendant is:
“First, that the company had substantially complied with the statute by furnishing props of such a length as could, with proper diligence on the part of the plaintiff, have been used by him in supporting the rock; Second, that even though he had had props of the exact length ordered by him, he would not have used them under this rock, as he considered that it was sufficiently propped already and reasonably safe for him to work under. So it appears conclusively that it was the plaintiff’s own negligence, or lack of judgment, and not the want of props, that was the cause of the accident.”
These questions were presented to the district court by a demurrer to the evidence and a motion for judgment on the findings. The question here is whether upon the facts found by the jury, and others which the evidence tends to prove, these contentions of the defendant should be sustained. In other words, whether the findings and verdict are supported by the evidence.
The petition alleges negligence on the part of the defendant in willfully failing to supply sufficient prop timber of suitable length and size for the place where the plaintiff was working, and that this failure was the proximate cause of his injury. The statute, among other things, declares:
“Every mine shall be supplied with sufficient prop timber of suitable length and size for the places where it is to be used, and kept in easy access to.” (Gen. Stat. 1909, § 4987.) .
The vein of coal was two feet eight inches in thickness, and most of the props used in the room were of that length, longer ones being used at places where the roof varied from its ordinary height. To support the rock in question, however, the length required was two feet and eight inches; and the plaintiff asked for props of that length for that purpose. It is argued that longer ones might easily have been used by excavating places for them in the black jack, constituting the floor of the room, to the depth that might be necessary, and there is evidence that this' had been done in other rooms. One witness testified:
“I ought to have used two-foot-eight, but I could not get two-foot-eight; I used three-foot props, and sunk them in the bottom to be safe.
“Q. You used three-foot props in propping up the roof in your room, did you? A. Yes, sir; because there were no two-foot-eight.”
There was other testimony of the same nature. The plaintiff testified that to use a three-foot prop he would have to dig up the bottom five inches; that in some places it was too hard to dig; and that he was not paid to sink props; that below the black jack there was rock, and to use a prop three and one-half feet long would require digging down a foot and a half.
There was evidence tending to show that when the driver came in without any props, after the first order had been made, the plaintiff told him to bring them the next time. When the driver again returned bringing props of a greater length than had been asked for, the plaintiff said, “What did you bring these to me for, they are not serviceable.” The evidence did not show a sudden emergency causing an insufficiency in the supply of props of the required length, but tended to prove a condition that had existed for several days.
The defendant contends that the plaintiff was warned of the danger, and was alone responsible for the consequences; and that his failure to use the props he had was the proximate cause of the injury. In support of this contention reference is made to the testimony of the pit boss, who was in Ricci’s room between ten and eleven o’clock on the day the rock fell, and testified: “I told him he had a bad rock there, and I told him to take it down, or to put some more props under it, and he said he would watch it himself; and I walked away and went on out of the room.” It does not appear that the pit boss apprehended such imminent danger as to require immediate removal of the bad rock, but believed that with further propping work might proceed, and this is consistent with the plaintiff’s claim that props were desired for that purpose.
It can not be held as a matter of law that the plaintiff is precluded from a recovery by his failure to' dig into the black jack, or rock below, if that was necessary, and in that way use the props that were furnished. But the evidence relating to that matter was material upon the question whether the props so furnished were of suitable length, or reasonably sufficient for use.
Referring to the contention of the defendant that the plaintiff would not have used the shorter props had they been furnished, it will be observed that he called for them and repeated the call when the driver returned without them. True, he testified that if he had believed that the rock would fall he would not have gone under it. But immediately following this statement he testified:
“Q. Then since you thought the rock was safe, what did you order these props for? A. Because, if he had brought some more props, it would have been safe.”
Having also testified that props that had been under this rock were blown down the night before the injury, and were set under it again but in different places that morning, he was asked the question and gave the answer following:
“Q. Well then, did you put anything in the place that these props had been in the day before, so as to hold the rock at that point? A. No sir, I did not have any more.”
His son, who had, it seems, placed the three props in position under this rock, testified:
“The reason I did not put up more props under that rock was because I did not have any two-foot-eight props, they were all too long. , The length of the props that I did put under the rock was about two-feet-eight. . . . I will not say that there were not any three-foot props. I could not have put a three-foot prop under that rock.”
On this and other testimony, and some evidence conflicting with it, the question whether the props would have been placed under the rock had they been furnished was properly left to the jury.
The plaintiff is criticized for incurring the risk of death or serious injury rather than to do the extra work necessary in order to use the props that were furnished. But the jury were not bound to infer that he took that risk while knowing or apprehending the danger. The ordinary motive of self-preservation, and the love of life, suggest a contrary inference.
It must be remembered that contributory negligence is not available as a defense in cases like this where the cause of action arises from the violation of a statutory duty. (LeRoy v. Railway Co., 91 Kan. 548, 138 Pac. 646; Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617.)
The discussion of the scope and effect of statutes enacted for the protection of life in the cases cited and other recent decisions makes comment upon their interpretation unnecessary. (Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657; Slater v. Railway Co., 91 Kan. 226, 137 Pac. 943.) No objection to the instructions or to the rulings, other than those already referred to, is urged.
It is concluded that there is competent evidence to support the findings and verdict, and the judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In the district court the cause was tried without objection upon the theory that it was an action to recover damages for fraud and deceit. The petition alleged among other things that the defendant, for the purpose of inducing the plaintiff to exchange her property for his land and with intent to defraud her, stated and pretended that a certain ordinarily dry hole on the land was a good well; that in fact he had her taste the same and pretended that it was water from the well and that in ordinary weather the well contained much more water than at that time. It alleged that the situation of the land was such that it was impossible to make a more complete examination of the well and that she relied upon his representations. The jury returned a verdict in her favor for $350, and the court rendered judgment thereon, from which the defendant appeals.
It is now too late for the defendant to claim the petition was not drawn upon a definite theory or that it stated facts showing a cause of action for rescinding the contract as well as one for damages on account of deceit and fraud. In the cases which the defendant cites (Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619; Lapere v. Luckey, 23 Kan. 534; Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785) the petitions were attacked before trial by motions and by demurrers. In the present case there was no motion or demurrer filed. The defendant answered by a general denial and a counterclaim in which he asked judgment against plaintiff upon a promissory note given by her as part payment for the land. At the trial he objected to the introduction of evidence on the ground that the petition failed to state a cause of action. While it may not have stated facts sufficient to entitle the plaintiff to a rescission óf the contract it stated a good cause of action for damages for fraud and deceit. There was no objection to the instructions by which the court presented the theory adopted by all the parties on the trial, and as the evidence of the plaintiff sustained her cause of action the demurrer to the evidence was properly overruled. We find no error in the instructions, and besides, there was no objection made to any of them at the trial.
The evidence offered by the plaintiff tended to show that the defendant made certain representations respecting the well, that they were false, and that she believed them to be true and relied and acted upon them. This is all that was held to be necessary in a similar case upon which the defendant relies. (Grantner v. Fehrenschield, supra.)
The judgment is sustained by sufficient evidence, and as no error is shown it will be affirmed.
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Per Curiam:
The plaintiff was seriously injured by a fall on a sidewalk. She alleged negligence against the city and recovered a small judgment, from which the city has appealed.
The defect in the sidewalk consisted in a gas stop box. which stood about an inch and a quarter above the surface of the walk. It had a cover or top projecting from it which caught the toe of plaintiff’s shoe and caused, her to fall. The petition stated a cause of action and was not subject to demurrer. The plaintiff testified that she had been over the walk a number of times and had seen the stop box, but had not paid particular attention to it. The jury by their general verdict found that she was not guilty of contributory negligence. The. mere fact that she had seen the obstruction before did not require her to be constantly on the lookout for it.. The demurrer to the evidence was rightly overruled.. All the contentions raised by the defendant have been, answered in previous decisions, including the case of Spencer v. Kansas City, post, p. 161. It has been repeatedly held that it is not contributory negligence- per se for one to. walk upon a sidewalk that he knows is defective. All that is required is that he must exercise such care as an ordinarily prudent man would under similar circumstances. (Garnett v. Smith, 72 Kan. 664, 83 Pac. 615; Smith v. City of Rosedale, 83 Kan. 813, 112 Pac. 626; McCoy v. City of Wichita, 86 Kan. 943, 122 Pac. 894.)
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff appeals from an order refusing her application to open up and vacate a decree of divorce.
November 11, 1912, the defendant was by the district court of Jefferson county granted a divorce from the plaintiff. The service was by publication, the affidavit stating that with due diligence the plaintiff was unable to procure personal service within the state, “that the whereabouts of said defendant is unknown to affiant, and that her post-office address can not be ascertained by plaintiff by any means within his control.” In January, 1914, the plaintiff filed her petition in the same court to open up the decree, and in March, 1914, filed her amended petition. To this a demurrer was filed, on the ground of. failure to state facts sufficient to constitute a cause of action, and sustained.
The plaintiff contends that the court was without jurisdiction to grant the divorce for the reason that no proper affidavit for publication was made, such affidavit being insufficient for failure to show diligent inquiry as to the residence of the defendant, citing Van Gundy v. Shewey, 90 Kan. 253, 133 Pac. 720. The affidavit there held insufficient failed to show even by inference that diligent inquiry had been made or that the affiant had been unable to learn the place of residence. While the statute (Civ. Code, § 79) requires a statement that the plaintiff has diligently inquired as to the residence, a statement that the address can not be ascertained by the plaintiff by any means within his control carries the inference that diligent inquiry has failed to discover such address, at least an inference sufficient to save such affidavit from total insufficiency.
Plaintiff’s petition averred that the decree of divorce was procured by fraud in that she, during all of the time, was living at Fairview in Brown county, where she was a resident in good faith, which was well known to the plaintiff, who falsely and fraudulently and with intent to deceive the court and to cheat and defraud the plaintiff made the false affidavit; that the ground for divorce alleged and sworn to by the plaintiff was false and the decree was procured by the defendant’s perjury and deceit, and that the plaintiff had no notice of the proceeding until long after the trial was had. Further, that she had.a complete defense to the action and would have appeared and defended had she been duly summoned or had proper notice. She set forth a complete defense, and also a sufficient affirmative ground for divorce.
The defendant takes the position that a decree of divorce can not be opened up for fraud in its procurement unless the proceeding therefor is begun within the six-months period at the close of which the decree becomes absolute. (Civ. Code, § 674.)
In case of an ordinary judgment or decree plaintiff’s amended petition would be fully sufficient for the purpose intended, (Daniel Hill v. Elias Williams, 6 Kan. 17; Laithe v. McDonald, 7 Kan. 254;. Laithe v. McDonald, 12 Kan. 340; Fullenwider v. Ewing, 30 Kan. 15, 1 Pac. 300; Mulvaney v. Lovejoy, 37 Kan. 305, 15 Pac. 181; The State v. Soffietti, 90 Kan. 742, 136 Pac. 260; Milling Co. v. Stevens, 94 Kan. 745, 748, 147 Pac. 815.)
The real question for determination is whether or not a decree of divorce is governed by a different rule on account of public policy and the consequences involved. Lewis v. Lewis, 15 Kan. 181, is relied on. It was there held, after considering various decisions of other states, that former section 77 of the civil code (Civ. Code, 1909, § 83), providing for opening up judgments, did not apply to proceedings for divorce. It was said to apply only when the judgment had been rendered without other service than by publication in a newspaper, and that as a copy of the petition and notice had been mailed as required by section 641 (Civ. Code, 1909, § 666) this must be deemed a part of the service. It was also said that ofttimes the hardness of an adverse ruling had induced the magnifying of matters of minor importance. In Hemphill v. Hemphill, 38 Kan. 220, 16 Pac. 457, it was decided that section 77 applied if availed of within the six-months period, and that the filing of the affidavit that the defendant’s whereabouts was unknown did not amount to service other than by publication in a newspaper. It was pointed out that since the Lewis decision section 647 of the civil code had been amended (Civ. Code, 1909, § 674) and its operation enlarged so as to apply to divorce actions if the proceeding to open up be begun within six months from the rendition of the judgment. In Larimer v. Knoyle, 43 Kan. 338, 23 Pac. 487, it was said (p. 349) that the affidavits for publication and in lieu of sending a copy are no parts of the service itself. Also, that if actual notice were not received within the six-months period so as to proceed under section 77. the judgment might be opened up and vacated under some provision of section 568 of the former code, or by any action in the nature of a suit in equity. It is significant that by the amendment of former section 647 (Civ. Code, 1909, § 674), it was provided that “no proceeding for reversing or vacating the judgment or decree divorcing said parties shall be commenced unless within six months after the rendition of said judgment or decree.” (Laws 1881, ch. 126, § 1.) This expression was omitted by the amendment of 1889, and the section made to read as it does in the present code. (Laws 1889, ch. 107, § 6, Civ. Code, 1909, §674.) Hence, since this amendment the only provisions for vacating a decree of divorce, aside from an ordinary reversal, are those found in sections 596 to 602 of the present code. The question is set at rest, however, by the decision in Blair v. Blair, 9,6 Kan. 757, 153 Pac. 544, where it was said (p. 768) that the Lewis decision is supported by some rather artful reasoning because the court was appalled at disastrous social consequences in cases involving a second marriage. It was held that in respect to opening up judgments, “The statute does not make an exception of divorce decrees, or of divorce decrees in case a second marriage occur, and the statute itself is notice of power retained over the decree for a limited time.” (p. 763.)
It is stated in the brief of the defendant that he has remarried and a child has been born of the union. But lamentable as the consequences may be to the innocent child and its mother, the right of the plaintiff to clear herself and her child from a stigma still more unjust, if her petition is true, is in no wise impaired.
The statute having provided a way, which the plaintiff has followed, for vacating decrees procured by the fraud of the prevailing party, and having made no exception in favor of a ■decree of divorce it was error to sustain the demurrer to the amended petition.
The judgment is therefore reversed and the cause remanded for further proceedings.
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Per Curiam:
A petition for a rehearing was filed in this case and time was given to file a more extended supplemental petition, both of which have now been considered. In these it is shown that the lawyers for the bank acted in good faith in raising debatable questions as to the validity of the bonds. We gladly chronicle that fact. This showing was made by depositions taken for use in the trial below; but, since the district court struck out that defense, the depositions were not offered in evidence.
Aside from recognizing the good faith of the bank’s attorneys, however, we do not wish to modify our opinion of the law as stated in the original decision, nor do we find in the petition for a rehearing any occasion to amplify what was there decided.
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The opinion of the court was delivered by
Marshall, J.:
This action was brought by the city of Topeka to recover from the defendant the sum of $631.15, with interest, which the plaintiff alleged it was compelled to pay out in satisfaction of a judgment obtained against it for personal injuries sustained by a pedestrian on account of a defective sidewalk. The defendant demurred to the petition. This demurrer was overruled. From this the defendant appeals.
The petition alleges that the defective condition of the sidewalk was caused by the defendant in driving horses and wagons over the walk in front of a building owned and used by the defendant in its private business; that the defendant then permitted the walk to remain in that defective condition; that the ordinances of the city prohibited riding or driving over the sidewalk; that the defendant was notified of the action against the city and asked to defend in that action; that no defense was made by the defendant; and that the city paid the judgment rendered against it.
The argument of the defendant is that the parties to this action are in pari delicto and that therefore the one can not recover from the other; that because the defendant is an abutting property owner and had a right to use the walk, it was under no duty to repair and therefore it is not liable; that the ordinances of the city do not render the defendant liable; and that because there was no notice pleaded requiring the defendant to repair the sidewalk, it is not liable.
1. The defendant caused the defective condition of the sidewalk. The plaintiff did not participate in producing that condition. The plaintiff was negligent in permitting the conditon to remain, but it did not in any manner cause the condition. The plaintiff was not in equal wrong with the defendant. In 40 L. R. A., n. s., 1165-1172, is found an exhaustive note on “Right of municipality to recover indemnity or contribution from one for whose tort.it has been held liable.” A large number of cases are there cited to support the proposition that where municipalities have been held liable for injuries sustained by persons lawfully using defective streets or sidewalks, the cities can recover from those whose negligence or active fault as abutters, licensees or volunteers caused the defective conditions. (See, also, Note, 61 L. R. A. 591.) The fact that the defendant was an abutting property owner and had a right to use the walk does not.relieve it from liability to the city. (Note, 12 L. R. A., n. s., 951.)
2. This liability of the original wrongdoer is not dependent on the existence of any ordinance declaring his liability, nor on the fact that there has been no notice given to the wrongdoer to repair the sidewalk. He is liable because of his .active fault in producing the defective condition.
The demurrer to the petition was properly overruled. The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Lodie T. Bruce against William Mathewson and his wife to recover an undivided three-eighths interest in a tract of land near the. city of Wichita, in which action she also asked for a share of the rents and profits, that the land be partitioned, and that she have her share, of certain money paid to the defendants by the city of Wichita under condemnation proceedings for part of the land taken by the city.
In answer to the petition the defendants alleged that the, plaintiff is the daughter of one Caroline Mathewson, a former wife of defendant William Mathewson, and that the plaintiff’s claim of title is based upon a deed purporting to convey the land to Caroline Mathewson, executed by William Mathewson in 1894 while the latter was engaged in a hazardous undertaking in New Mexico, but that it was the intention that the deed should take effect as a conveyance of the land only in case he should lose his life while in New Mexico; that the deed was never delivered to Caroline Mathewson; and that the only possession she ever had of the deed was holding it for Mathewson. Mathewson also claimed to be entitled to the entire estate by adverse possession for over fifteen years. The plaintiff’s reply alleged that the deed was made for a valuable consideration, that it was duly executed and delivered to Caroline Mathewson and recorded, and that she was the owner of the property at the time of her death. It was further alleged that whatever possession defendant Mathewson may have had was not adverse to the rights of Caroline Mathewson and the plaintiff, and that his possession was as the agent and husband of Caroline Mathewson.
It appears that Elizabeth Mathewson was the first wife of William Mathewson, that she owned the land in controversy, and when she died, in 1884, William Mathewson inherited one-half of the same and each of their two children, Lucy E. and Alfred, W., inherited one-fourth of it. In 1886 Mathewson married Caroline Tarlton, a widow with two children, Richard B., and Lodie Tarlton the plaintiff herein, and Mathewson a.nd Caroline lived together as husband and wife until her death in 1909. In 1901 Lucy Mathewson executed a deed in blank purporting to convey her one-fourth interest in the land and subsequently the name of Caroline Mathewson was written in the instrument as grantee, this being done without the consent of Lucy, she having stated that the deed was to be made to her father.
The case was tried by the court without a jury, and the main controversy which divided the parties was whether the deed executed by Mathewson to his wife in 1894 was intended to be delivered as an absolute conveyance of the land. Mathewson testified that he had obtained and was executing a contract for carrying the United States mail through the Indian country in New Mexico and occupied in part by the Apache Indians, who were then on the warpath, and that he had prepared and signed the deed to his wife, which was not to be delivered unless he was killed by the Indians, but in case he never came back the deed was to be recorded and the land would belong to his wife. There had been correspondence between him and attorneys who had been acting for him and his wife in a number of business transactions. In a letter written in August, 1894, he stated to his attorney that his business was not successful, that he was owing his wife, he presumed, about eight thousand dollars, and suggested that .she select such of his property as she desired, and for them to prepare and send to him a deed conveying the land selected by her and that he would execute it and forward it to Kansas. He added: “Out in this wild country a man is not sure of anything but death. This is why I desire to have everything fixed up in case there should anything happen to me.” A deed was prepared and sent to him, which he executed in New Mexico, but he says that it was sent with a letter either to his attorneys or to his wife with an instruction to the effect that it was not to be recorded nor to take effect unless he was killed. This letter had been lost and secondary evidence of its contents was received. Mathewson testified that he did not owe his wife any money, that he never received any consideration for a transfer of the land, and that he never surrendered possession or control of it. The trial court found that Mathewson executed the deed and sent it with a letter written either to his lawyers or to his wife, that it was not to take effect unless he should die before his return home, and that he did not intend that the deed so forwarded should be delivered or become effective as a conveyance of title to his wife except on the happening of the contingency mentioned— that he should lose his life before his return home. The conclusion of law of the court was that the deed never became effective as a conveyance. There was a further holding that the instrument signed by Lucy to Caroline Mathewson, the validity of which was contested, had become effective through the operation of the statute of limitations, and the plaintiff was therefore adjudged to be the owner of a one-eighth interest in the land.
An examination of the abstract shows that there is testimony which fairly supports the finding of the court. It is true that there is much in the correspondence and surrounding circumstances which strongly tends to uphold the theory of the plaintiff that it was the purpose of Mathewson to make an absolute conveyance of the land to his wife. Where the evidence is conflicting and the credibility of witnesses is involved, the finding of the trial court must control. If .the evidence in behalf of the defendants, standing alone and considered apart from that offered by the plaintiff, is legally sufficient to support the finding of the trial court, the end of the inquiry on the disputed fact has been reached. That offered on behalf of the defendants, although contradicted, was believed by the trial court, and some of the circumstances in the case are confirmatory of it, and it supports the conclusion reached by the court. It was shown that subsequent to the execution of the deed, and after his return to Kansas, Mathewson continued in possession of the land, claiming it to be his own, and continued to claim and exercise rights of ownership while his wife was living and all the time from 1896 to the time of trial, a period of more than eighteen years. During this period he paid all of the taxes assessed against the property and made valuable and permanent improvements thereon with his own funds, and he appears to have appropriated as his own all of the proceeds of the products of the land. It also appears and was found that Caroline Mathewson at no time after the execution of the deed ever took possession of the land or asserted ownership of it and that the plaintiff never made any claim of right or interest in the land during all the years until about the time the action was begun.
There is some complaint that more elaborate findings were not made by the court, but those made appear to sufficiently cover the essential facts in the case.
Objection was made to the admission of testimony as to the delivery of the deed and that no consideration was paid for it. The primary question was whether there was a delivery of the instrument with the intention that it should transfer title to the land. Before it could operate as a transfer of title there must have been an intention of the grantor that it should become effective as a present conveyance. Such intention is to be derived from the testimony as to the acts and words of the grantor relating to the execution and delivery of the deed and may be shown by.parol. (Doty v. Barker, 78 Kan. 636, 97 Pac. 964; Worth v. Butler, 83 Kan. 513, 112 Pac. 111; Morris v. Blazer, 96 Kan. 466, 152 Pac. 767.) It having been found on sufficient testimony that the deed was never intended as a transfer of title and did not become effective, questions as to varying its terms hy parol proof are not material.
Sufficient testimony was offered to show that the letter which accompanied the instrument signed by Mathewson was lost or beyond his reach and control, and therefore secondary evidence of its contents was admissible.
The exclusion of the files and records in a case of a bank against certain defendants, including Mathewson, wherein a judgment was rendered against defendants in 1896, and of a return made upon an execution issued in the case that no property could be found on which to levy, and an affidavit of garnishment in the action, was not material error.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Joshua Haskins from the sentence imposed after his plea of guilty to aggravated battery contrary to K.S.A. 21-3414(a)(l)(A), a severity level 4 person felony. The battery was on his 2-monfh-old daughter who received broken ribs, a broken wrist and hand, and injuries to her face and eye.
At issue is the following question: When the parties make a mutual mistake as to the defendant’s criminal history score prior to and at the entry of a guilty plea, can the trial court impose a sentence on the more serious criminal history score discovered after the guilty plea but prior to sentencing?
Here, the defendant pled guilty to one count of aggravated battery. At the time of the plea, both the defendant and the State thought the defendant’s criminal history score was F, which carries a presumptive prison sentence of 52 to 59 months. The defendant actually had a criminal history score of C, which was subsequently revealed in the defendant’s presentence investigation (PSI) report. All parties agree that C is the proper criminal history score. Based on the defendant’s criminal history score of C, the trial court sentenced the defendant to a 71-month term of imprisonment and a post-release supervision term of 36 months.
The defendant appeals, contending that the State failed to abide by the plea agreement when it informed the court that the defendant’s criminal history score was C instead of F. The parties mistakenly thought a prior juvenile adjudication was not a person felony when, in fact, it was. The defendant recognizes that the Kansas sentencing guidelines state that “the prosecutor shall not . . . make any agreement to exclude any prior conviction from the criminal history of the defendant.” K.S.A. 21-4713(f). Further, K.S.A. 21-4707(c)(4) provides in pertinent part: “Any such prior convictions discovered after the plea, has been accepted by the court shall be counted in the determination of the criminal history of the offender.” However, the defendant argues that a juvenile adjudication is not a “conviction” and, thus, a prosecutor can plea bargain to mischaracterize a juvenile adjudication, which would have been a person felony if committed by an adult, as a nonperson felony. As such, the defendant claims that the prosecutor entered into a valid plea agreement promising to agree that the defendant’s criminal history score was F. Claiming that the prosecutor violated the plea agreement, the défendant requests that we vacate the sentence and remand for resentencing as if he had a criminal history score of F.
The first question is whether a plea agreement between the State and the defendant existed at all. The defendant pled guilty and filed with the court a document entitled Defendant’s Acknowledgement of Rights and Entry of Plea. It is from this document that the appellate defender concludes there is a plea agreement. Paragraph 2 of the document sets forth the plea negotiations. It states, “Defendant pleads guilty without a recommendation from the State. Defense gives notice of its intent to file a motion for downward departure.” (Emphasis added.)
Paragraph 4 of the Defendant’s Acknowledgement of Rights and Entry of Plea sets forth the defendant’s understanding of what his counsel and the court had informed him concerning the penalties that could be imposed. The defendant, both in the signed document and on the oral record, was informed the possible sentence ranged from 38 months to 172 months and a $300,000 fine. He was also informed that the penalty for a criminal history score of F is a minimum of 52 months to a maximum of 59 months. The defendant bases his belief that the State promised to agree to a criminal history score of F in a plea agreement in paragraph 4 of the Defendant’s Acknowledgement of Rights and Entiy of Plea form.
There was no plea agreement. The testimony at trial was that the State had made no plea agreement. The defendant’s argument that the State agreed to fix the defendant’s criminal history score at F has no . support in the record. The record is clear that the defendant pled without a deal, albeit he pled thinking he had a criminal history score of F. The State did not agree to fix the defendant’s criminal history score of F or to give him any benefit in exchange for a plea of guilty. Paragraph 4 of the Defendant’s Acknowledgement of Rights and Entry of Plea, relied upon by the defendant to support a plea agreement, only indicates what the defendant’s sentence would be if the defendant’s criminal history score is, in fact, F.
Obviously, it would be better if the preprinted “fill-in-the-blank” plea form included the fact that any prior conviction discovered after the plea has been accepted by the court shall be counted in determining criminal history. Nonetheless, since there was no plea agreement, the State did not violate a plea agreement when it informed the trial court that the defendant actually had a criminal history score of C instead of F. Further, even if a plea agreement had been made, the defendant knew the court was not bound by any agreement.
The next question is whether the defendant knowingly entered into a guilty plea, even though he (and the State) were mistaken about his criminal history score at the time of the plea. At trial, the defendant argued that he did not have full knowledge of his criminal history score when he pled guilty.
The trial court held that the defendant knowingly entered a guilty plea, even though the defendant was mistaken about his criminal history score at the time he entered the plea. The trial court based this conclusion on the following findings of fact. The trial court found the defendant was aware that he could be sentenced to 172 months in prison with a $300,000 fine when he pled guilty. The trial court also ruled that the defendant knew when he pled guilty that the sentencing court would not be bound by any plea agreement or recommendation. Further, the trial court found that the defendant knew his sentence was going to be fairly substantial. Finally, the court ruled that the defendant was not a stranger to the judicial system.
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
The trial court’s findings of fact are supported by substantial competent evidence. The maximum prison term and maximum fine for the charged crime were listed on the Defendant’s Acknowledgement of Rights and Entry of Plea form, which the defendant signed. At the plea hearing, which was conducted by Judge Lahey, the court told the defendant, “[Y]ou understand the judge who sentences you will be Judge Wilbert and he is not required to follow any plea agreement or any recommendation by your lawyer to depart from what the guidelines sentence is in this [case] .... The judge can make his own decision and sentence you to whatever prison sentence he [feels] is appropriate under the law . . . (Emphasis added.) The defendant said he understood this. Finally, the fact that the defendant was not a stranger to. the judicial system is supported by evidence that the defendant’s PSI report indicated the defendant had two prior juvenile adjudications. As such, the trial court’s findings of fact are supported by substantial competent evidence. These findings are sufficient to support the trial court’s conclusion of law that the defendant knowingly entered into a guilty plea, even though he was mistaken about his criminal history score at the time of the plea.
We hold that the defendant did not have an agreement with the State concerning his criminal history score and that the trial court did not err in sentencing the defendant under a criminal history score of C. The State is prohibited by law from entering into a plea agreement that excludes prior convictions from the criminal history of a defendant. K.S.A. 21-4713(f). Prior convictions discovered after a plea has been accepted are properly considered in a defendant’s criminal history at sentencing. K.S.A. 21-4707(c)(4). The legislature has also clearly expressed an intention that juvenile adjudications for a residential burglary are to be counted as a person felony. K.S.A. 21-3715(a); K.S.A. 21-4711(d)(1). We conclude the State is not obligated to insist that the defendant be sentenced under a criminal history score of F, and that, in any event, the trial court would be required by statute to sentence the defendant under a criminal history score of C. We further hold that the defendant knowingly entered his guilty plea, even though he was mistaken about his criminal history score.
Affirmed.
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Opinion by
Green, C.:
Appellant was prosecuted and convicted of the crime of subornation of perjury in the district court of Coffey county, and sentenced to confinement in the penitentiary for three years, and adjudged to pay the costs of the prosecution. He appeals from such sentence and judgment. The information charged substantially that Margaret F. Mickens unlawfully, feloniously, willfully, corruptly and falsely committed willful and corrupt perjury, by swearing and subscribing to a complaint before L. S. Robinson, a justice of the peace of Coffey county, in which she charged her. father, John Mickens, with rape, incest, and bastardy; and that the defendant persuaded, incited, procured and suborned her to make the false oath. The information did not charge that the complaint was to be used in any proceeding pending or about to be instituted in any court or tribunal, or' that it was made to be used as a complaint for the arrest, apprehension and examination of the person therein charged with crime; or that it was ever used or offered in any court or tribunal, or before any public body or officer. The information was challenged by a motion to quash before trial, and by a motion in arrest of judgment after a verdict of guilty.
Paragraph 2287 of the General Statutes of 1889, under which the information was filed in this case, reads:
“ Every person who shall procure any other person, by any means whatsoever, to commit, a willful or corrupt perjury, in any cause, matter or proceeding, in or concerning which such other person shall be legally sworn or affirmed, shall be adjudged guilty of subornation of perjury.”
We think the information is materially defective. In a prosecution for subornation of perjury, it is necessary that all of the elements constituting the offense of perjury should be alleged and proved. It was nowhere alleged in this information that the false affidavit solicited and procured by the defendant was to be used as evidence in any cause, matter or proceeding, or before any court, tribunal, or public body or officer, or that such evidence was even material. In prosecutions for subornation of perjury, the same rule as to the materiality of testimony prevails as in perjury. (2 Whar. Crim. Law, § 1330.) This court has recently decided, that to constitute perjury the false oath must be in some material matter, and that an information in a prosecution for perjury is insufficient where there is no allegation that the false testimony was given in any cause, matter or proceeding, before any court, tribunal, public body, or officer. (The State v. Ayer, 40 Kas. 43; The State v. Smith, 40 id. 631. See, also, The State v. Simons, 30 Vt. 620; United States v. Wilcox, 4 Blatchf. C. C. 391.)
We think the motion to quash the information should have been sustained, for the reason that it failed to state a public offense.
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The question for determination is the sufficiency of the petition. Do the facts alleged authorize the interference of the state by a proceeding of injunction? It appears that the city of Argentine is proposing to purchase a site upon which to erect a city hall, in order to provide office rooms for the various officers of the city. An ordinance has been enacted authorizing the mayor to purchase four certain lots for that purpose at the specified price of $1,600, and another ordinance was enacted appropriating that sum to pay for the site. A fund of about $10,000 has been provided for the construction of a city hall, and the mayor and council are proposing to use a portion of this fund to pay for the site. It is said that their action is unwarranted, because the city is without power to purchase such a site; but there is no ground for this contention. Express authority is given a city of the second class to purchase and hold real J % L estate for the use of the city, and to sell and convey any which it. owns, and to make such orders respecting the same as may be conducive to the interests of the city. (Gen. Stat. of 1889, ¶759.) Then there is the further provision empowering the council to purchase grounds for and to erect market houses and all other necessary buildings. (Gen. Stat. of 1889, ¶ 813.) It is proper for the city to provide a public building for the accommodation of its officers, and, as we have seen, abundant authority is expressly given to purchase real estate, and to construct a public building thereon. The wisdom and expediency of purchasing a site and constructing a building are to be determined by the mayor and council, and, as a general rule, the court cannot interfere with their discretion, either in the selection of the site or the time when such a building shall be constructed.
The objection that the city already owns a lot which was acquired as a site for a city hall is not good. Authority is vested in the city, as we have seen, to sell any real property which it owns. A site or building which is suitable and sufficient at one time may by the growth of the city become entirely unsuitable and inadequate. The expediency of selling the real estate which the city owns, and purchasing another location deemed to be more convenient and suitable, is to be determined by the mayor and council, and not by the court. When they determine that it is expedient and necessary to construct a city hall an'd to purchase a new site therefor, there is no reason why they may not proceed to do so before the old one is sold and disposed of. The city is authorized in general terms to sell real property, without specification as to time or manner. It may, therefore, dispose of the same at such time and upon such terms of payment as may be deemed most conducive to the interests of the city. (City of Wyandotte v. Zeitz, 21 Kas. 660.) It is contended that if the statutory authority referred to carries the power to purchase a site for a city hall, then before a new site can be purchased it must appear that a new city hall is to be built, and an ordinance must be enacted for that purpose. In reply to this it may be said, that the enactment of the ordinances, providing for the purchase of and payment for the lots for a new site was practically a determination that a new city hall was to be erected. Even if it were not, the purchase of a site is a necessary preliminary before proceeding
w^h the construction of the building; and until tjje pUrehase js effected, an ordinance providing for the construction does not seem to be absolutely necessary. When the location is determined and the site procured, the mayor and council may thereafter exercise their discretion and provide by ordinance the time and manner of constructing the building.
The objection that there has been no vote instructing the mayor and council to purchase a site or to construct a city hall, is not material. The statute prescribes no such requirement. If bonds are to be issued or money borrowed for making an improvement of a general nature, a vote of a majority of the electors is necessary. (Gen. Stat. of 1889, ¶792.) This provision however, applies only where bonds are to be issued or money borrowed, but it is not absolutely essential to the purchase of a site or the determination to construct a necessary public building. For these purposes authority is given elsewhere; and if there is sufficient money in the treasury belonging to general fund, it may doubtless be appropriated to pay for the same. As has already been said, the purchase of necessary real estate and the construction of public buildings rests in the discretion of the city officers, and in the absence of fraud or some statutory restriction, the courts cannot interfere.
According to the allegations of the petition, the city had on hand a city hall building fund of about $10,000, which appears to have been derived from the issue and negotiation of bonds issued in pursuance of an election; but it is averred that the officers have never been instructed by a majority of the votes cast to issue the bonds for the purchase of a site or the erection of a hall, and it is therefore contended that the city cannot appropriate or expend any portion of the proceeds of these bonds, either for the purchase of a site or the erection of the building. It is not alleged that the site which has been purchased is in an inconvenient location, nor that the price paid for the same was excessive, nor yet that there was any fraud connected with its purchase; neither is there any statement that the officers corruptly issued or negotiated the bonds, nor that they were sold for less than their value. From the allegations that are made, it must be taken that the bonds were illegally issued; but whether they were void on their face, or whether they had passed into and were good in the hands of innocent holders, is not alleged. Whatever may have been the defects in the election proceedings preliminary to the execution and sale of the bonds, it appears that they have been issued, negotiated, and sold, and the proceeds of the same are now in the hands of the city treasurer. No complaint is made of the proposed expenditure either by the city or any tax-payer of the city, and why should the state or the county attorney in its behalf intervene? It is contended by the state that, if the bonds that have been illegally issued are valid in the hands of bona fide purchasers, or if the bonds are held to be void, the funds derived from the same in either event belong to the city, and, as we have seen, the right of the city to expend money for the purchase of real estate and the construction of public buildings is undoubted. Under the allegations of the petition and the previous rulings of this court, the interference on the part of the county attorney in behalf of the state is unnecessary to prevent the perpetration of an irremediable wrong, and unwarranted by law. In The State, ex rel., v. McLaughlin, 15 Kas. 228, a school district had issued bonds in excess of its powers, which were void in the hands of their holders, and a tax had been levied to pay them off, and it was held that an action to enjoin the collection of taxes to pay the bonds would not lie in the name of the state on the relation of the attorney general. City of Atchison v. The State, 34 Kas. 379, was an action brought by the state in the name of the county attorney against the city of Atchison and others, to enjoin the city of Atchison and certain officers from collecting taxes or paying out certain bridge funds which were in the hands of the treasurer. It ,was alleged that bonds issued to build certain bridges in the city were illegally issued, and that the tax levied-for the payment of the bonds was illegal and void, and the plaintiff asked the court to enjoin the disbursement of the money collected upon the levy; but it was held that as the bonds alleged to be unauthorized and illegal had long since been executed and delivered, and the bridges for the payment of which the bonds were issued had been built and paid for, the community at large had no such interest in the controversy as warranted the interference of the state. So here the bonds have been executed and issued without objection or interference by the state or anyone else; they have passed into the hands of the purchaser, and their validity, as between the holders and the city, cannot be tried in this proceeding; nor, indeed, does it appear that the city, or any officer or tax-payer of the city, desires to question the validity of the bonds. The money derived from their sale is in the hands of the treasurer, and if it is treated as a special fund to provide a city hall, the expenditure of the same for the purchase of a site is not unauthorized; and if the bonds are void on their face, so that-the proceeds cannot be recovered, then such proceeds would become a part of the general fund, and might be legally appropriated for the purchase of a site or the construction of the building. In' either case the right of the state to interfere with the city in the appropriation of the fund is not apparent. From the argument of counsel, it' would seem that the principal objections to the appropriation have been the location of the site, and the supposed want of power in the city to purchase the site, but neither of these objections can be sustained; and, so far as the question of expending the money which the city has provided that purpose is concerned, we must hold, under the authorities, that the public has no such interest in the same as will warrant the interference of the county attorney. As the site is essential to the construction of the building, we think the money provided for the building may properly be used for the purchase of the site. We are also of opinion that an estimate of the cost of the site by the city engineer is not essential or required in advance of a contract of purchase by the city council.
The judgment of the district court will be reversed, and the cause remanded with instructions to sustain the demurrer of the city to the petition of the state.
All the Justices concurring.
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Opinion by
Strang, C.:
Action for damages. On the last day of November, 1886, the defendant in error, Blevins, a bridge carpenter, was working for the plaintiff in error on a bridge on its right-of-way over Fall river, in Wilson county, Kansas. It became necessary for some one to go up on the top of the structure to put certain timbers, called “corbels,” in place. The defendant in error went up to assist in doing this work. It was necessary to drive the timbers to place, and one Murray, having charge of that immediate work for the plaintiff in error, handed Blevins a wooden maul with which to drive the corbels into position. Blevins received the maul, and striking the outside corbel on its side, drove it to its side position, and then turned to drive it endways to place. He struck the timber once on the end all right, but when he delivered the second blow he lost his balance and fell some 30 feet, seriously and dangerously injuring his spine and hip, from the effects of which he is still badly crippled, with no prospect of recovery. Blevins claims that he was thrown off his balance by the rebound of the maul he wa,s using, and that the rebound was caused by the unsafe and dangerous condition of the maul furnished him by the company for the work he was at the time doing. He says that the maul had a cracked and crooked handle in it, and had become so badly worn and battered that it was uneven on the surface, which, when the blow was struck with it, caused it to glance and rebound in such a way as to jerk him over and off his balance, causing him to fall. This cause was three times tried in the district court, the first trial resulting in a verdict for $10,000 in favor of the plaintiff below, which was set aside by the trial court as excessive; at the second trial the jury disagreed; and the last trial resulted in a verdict for the plaintiff for $5,000. The jury also returned a special verdict consisting of answers to a large number of questions submitted to them by the court on behalf of the defendant below. It moved for judgment for costs on the special verdict, notwithstanding the general verdict. Motion overruled.' Motion for a new trial heard and overruled.
The first and most important question raised by the plaintiff in error is, whether the verdict is sustained by the evidence. That this is one of those cases into which the element of doubt largely enters, so far as the merits of the case are concerned, is evidenced by the fact that it was three times tried in the court below. The court in which the case was tried is presided over by a learned and careful judge; and the history of the trial in the court below shows that he did not hesitate, in the exercise of his authority, to protect the rights of the plaintiff in error when he thought they had been trampled upon by the jury trying the case. These things should count for something in favor of the judgment when this court is reviewing a close case like the present. The jury tryiug the case returned a general verdict, and also found specially the existence of certain facts, among which are the following:
“Was the man Murray also a foreman, under Carter, who had general supervision of the work? Ans. Yes.
“Did the plaintiff, pursuant to the directions of Carter and Murray, go upon the pier of defendant’s bridge for the purpose of assisting in the adjustment of the corbel block? A. Yes.
“Did Murray, one of the defendant’s foremen, while the plaintiff was standing upon the pier, procure and hand to him the maul referred to in the evidence for the purpose of adjusting this timber? A. Yes.
“Did the plaintiff, in obedience to the directions of Murray, proceed to strike the corbel blocks with the maul handed to him by Murray? A. Yes.
“Did the uneven face of this maul, when it came in contact with the end of the timber, bound to one side, and cause Blevins to lose his balance and fall from the bridge? A. Yes.
“Was the defendant in great haste for the completion of this bridge? A. Yes.
“Was the maul which caused the plaintiff to fall a defective and dangerous tool to work with ? A. Yes.
“Did Blevins know of the uneven face of this maul and dangerous condition at the time that he used it ? A. No.
“Did Carter, the foreman of the defendant, have notice of the defective and dangerous condition of this maul, or could the defendant, by the exercise of ordinary care, have discovered its dangerous condition ? A. Yes.
“Was the work on the bridge where the plaintiff was employed being done about as usual on the day of the plaintiff’s alleged injuries? A. No; they were hurried.
“Did the plaintiff use great care when he was using the maul, just before he fell ? A. Yes.
“What acts of negligence, if any, was the defendant guilty of, causing plaintiff to fall ? A. Neglecting to furnish suitable maul.
“What caused the plaintiff to fall ? A. By defendant furnishing him with a defective tool.
“Could the plaintiff, by ordinary care, have discovered the condition of the maul and handle at the time he used it? A. No.
“ If you answer the above in the negative, state fully what prevented him from so discovering the condition of the maul. A. Lack of time to consider.”
The liability of the railroad company depends, first, upon the negligence of its agents; and, secondly, upon-the absence of contributory negligence on the part of Blevins. The negligence of the railroad company, if any, consists solely in furnishing Blevins with an unsafe tool with which to perform the work he was directed to do by the agent of the company, and in the performance of which he was engaged when he suffered the injury complained of. Upon this question, the findings of the jury are very strong against the company. The twelfth question, submitted to the jury by the plaintiff below, and the answer thereto, are as follows:
“ Did the uneven face of this maul, when it came in contact with the end of the timber, bound to one side and cause Blevins to lose his balance and fall from the bridge? A. Yes.”
While question 15 and answer read as follows:
“Was the maul which caused the plaintiff to fall a defective and dangerous tool to work with? A. Yes.”
The answers to other questions show that Murray procured the maul, and gave it to Blevins to use in driving the corbels to place. They also show that Murray knew, or could have known by the exercise of ordinary care, of the dangerous condition of the maul. It necessarily follows, then, that if these findings are supported by evidence, the railroad company was guilty of negligence. The plaintiff testified as follows in relation to his fall:
“After you got it adjusted, you struck it upon the end? A. Where, I don’t recollect; it seems to me there was one or two licks; I wouldn’t be positive as to that, that I struck upon the end; I don’t know whether it was one or two; I can’t call to mind now. It was not over two licks, I am satisfied.
“Q. What was the result of the strike? A. Well, the maul rebounded when I struck and jerked me. I was standing with my face in this direction, and the maul rolled with me to the right and jerked me off. I fell down in there somewhere upon the breakwater.”
Dick Yaney, a witness for the plaintiff below, testified as follows:
“He stepped round and turned as though he was going to hit it, and upon that he made a second lick. The maul bounced and rolled, bounced in his hands and throwed him off his balance head foremost down.
“ Q. Which way did the maul spring when it rolled ? A. To the right.
“Q. He struck it, and the second lick he struck the maul swung to the right? A. Yes, sir.
“Q. And threw him off? A. Yes, sir.”
It would seem as though this, and other evidence like it in the record, was sufficient to support the finding that the maul, in the condition'it was in at the time it was given Blevins for use by him in driving the corbels to place, was an unsafe tool to use, especially in the dangerous position in which he was required to use it, and that the company was guilty of negli gence in handing it to Blevins to be used by him in the position occupied by him at the time.
Was the plaintiff below guilty of contributory negligence? Upon this branch of the case the findings of the jury, or a part of them, are as follows:
“Did Blevins know of the uneven face of this maul and dangerous condition at the time he used it ? A. No.
“ Was the defendant not in great haste for the completion of this bridge? A. Yes.
“Was the work on the bridge being done about as usual on the day of the plaintiff’s alleged injuries? A. No, they were hurried.
“Did the plaintiff use great care when he was using the maul just before he fell ? A. Yes.
“ Could the plaintiff by ordinary care have discovered the condition of the maul and handle at the time he used it ? A. No.
“ If you answer the above in the negative, state fully what prevented him from so discovering the condition of the maul. A. Lack of time to consider.”
These findings clearly exonerate Blevins from any contributory negligence. Are they justified under the evidence? There is no evidence showing that Blevins was, in fact, careless or negligent. He himself testified as follows upon this question:
“Q,. In using that maul and driving the timbers, what degree of care did you use? A. I used all the care that I could. I did not want to be crippled.”
Blevins also testified that he had never seen the maul before it was handed him to use at the time he fell, except as it lay on the dump 15 to 20 feet away; that he did not inspect it when handed to him; noticed the edges of the maul were battered some, but did not see the face of the maul, and did not know it was uneven. He says the work that morning was under more of a rush than usual, because Mr. Carter, the bridge boss, wanted to get to raise the timbers; that he was hurried, and did not stop to inspect the face of the maul.
The law requires employés to use ordinary care to discover whether or not the tools furnished them by the master are such as can be used with safety, especially when the defects are obvious. But whether an employé has used ordinary care or not in a given case must be determined after an examination of the surrounding circumstances and conditions at the time its exercise is required. What will be held sufficient care under some circumstances will not under others. So, in this case, while there does not seem to have been a great degree of care exercised by Blevins, yet, when we consider that the maul was handed him by the representative of the railroad company, which gave him a right to suppose it was safe; that he was in a high and dangerous position, which limited his opportunities for the inspection of the maul; and that the work at the time was being rushed, so that he was hurried and his opportunity for inspection of the maul thus interfered with, we do not care to say he did not exercise ordinary care under the circumstances.
' The plaintiff in error complains of the latter part of the third general instruction given to the jury. We have examined this instruction, and, taken as a whole, we do not think it is erroneous. It is therefore recommended 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
Horton, C. J.:_
This was an action in the court below, brought by C. A. Bliss, E. S. Bliss, and B. F. Wood, partners ■doing business under the firm-name of Bliss & Wood, against I. P. Couch, as sheriff of Harper county, in replevin, to recover the possession of certain merchandise, goods, and chattels, of the value of $3,000. Trial by the court without a jury, and finding in favor of I. P. Couch, as sheriff, and judgment for the amount of an execution in his possession, as such sheriff, of $396.20. The facts in this case are substantially as follows: On the 15th day of March, 1886, U. E. Millspaugh, Robert Highman, and J. F. Millspaugh, comprising the firm of Millspaugh, Highman & Co., made, executed and delivered to C. A. Bliss, E. S. Bliss, and B. F. Wood, comprising the firm of Bliss & Wood, a chattel mortgage on all the goods and merchandise owned by them in Attica. The mortgage was given to secure the payment of $3,518.59. The indebtedness was evidenced by four promissory notes, one for $1,000, dated January 1, 1886, due iii three months from its date; one note for $800, dated January 1, 1886, due in four months from its date; one note for $1,000, dated January 1, 1886, due in six months from its date; and one note for $645, dated February 13, 1886, due in ten days from its date, all bearing interest at the rate of 12 per cent, per annum, from their respective dates, and all signed by the firm of Millspaugh, Highman & Co., and payable to the firm of Bliss & Wood. The chattel mortgage provided that Bliss & Wood might appoint the firm of Millspaugh, Highman & Co. agents to make sale of the goods and merchandise in the ordinary course of trade, and to keep an accurate account of such sales, and to forward such accounts and proceeds of all sales, less the expenses of carrying on the business, to the firm of Bliss & Wood, at Winfield, in this state, on the first of each and every month after the date of the chattel mortgage until the indebtedness was fully paid. This mortgage was filed for record on the 16th day of March, 1886. On the same day Bliss & Wood took possession of the property, under and by virtue of the mortgage, and appointed Millspaugh, Highman & Co. their agents to sell and dispose of the property in the usual course of trade, and to account to the firm of Bliss & Wood for the money realized on account of the sales of the property, less what was actually necessary to pay running expenses, and less what was necessary to be used in purchasing such staple articles as were essential and necessary to have, to keep the stock up so as to meet the demands of the trade. The note calling for the sum of $645 and interest on same was paid, and credits amounting to the sum of $267 were made upon the note calling for the sum of $800, with money realized from the sale of the goods described in the chattel mortgage. Bliss & Wood held the possession of the mortgaged property from the 16th day of March, 1886, to the 3d day of December, 1886, at which time I. P. Couch took possession of the property, under and by virtue of an execution issued out of the district court of Harper county, at the instance of Smith & Co., creditors of Millspaugh, Highman & Co. The execution was dated on the 12th day of November, 1886.
It is contended that there is no evidence to sustain the general finding of the court in favor of I. P. Couch, the sheriff. We have carefully examined the record, and do not find that there is any evidence tending to show that the chattel mortgage executed by Millspaugh, Highman & Co. to Bliss & Wood was fraudulent or void. It appears from all the evidence that the mortgage was given to secure the payment of a bona fide indebtedness for flour.
In Frankhouser v. Ellett, 22 Kas. 147, a majority of the court decided that—
“The statute authorizes a stipulation in a chattel mortgage for a retention of the possession by the mortgagor, and that a possession retained in accordance with the terms of such mortgage, is not, when duly filed, per se fraudulent, or even prima facie evidence of fraud as against creditors and subsequent purchasers.”
A majority of the court further decided in that case that—
“The mortgagor, if he may keep the possession, may as well make the sales as a stranger. He acts in that respect as a quasi agent, at least, of the mortgagee, and as such agent and salesman is entitled to compensation for his services.”
See, also, Swiggett v. Dodson, 38 Kas. 702; Rankine v. Greer, 38 id. 343.
We know that—
“Fraud is rarely susceptible of positive proof, for the obvious reason that it does not cry aloud in the streets, nor proclaim its iniquitous purposes from the housetops. Its vermiculations are chiefly traceable by covered tracks and studious concealments.”
Notwithstanding this general doctrine, fraud is never presumed, but must be established by some evidence. If a creditor of a mortgagor assails the mortgage or transfer for fraud,, the burden of proof rests upon him. (Baughman v. Penn, 33 Kas. 504.) In Long v. West, 31 Kas. 293, it was decided that —
“ In the absence of evidence to the contrary, honesty and fair dealing in all transactions are always presumed, and if any person claims that there was fraud in any transaction, it devolves upon such person to prove the fraud, and it does not devolve upon the party charged with committing the fraud to prove that the transaction was honest and bona fide.”
Although Millspaugh, Highman & Co. were insolvent at the time of the execution of the chattel mortgage to Bliss & Wood, they had the right to prefer Bliss & Wood as creditors, if the same was done in good faith. (Arn v. Hoerseman, 26 Kas. 413; Randall v. Shaw, 28 id. 419; Avery v. Eastes, 18 id. 505; Bishop v. Jones, 28 id. 680; McPike v. Atwell, 34 id. 142; Cuendet v. Lahmer, 16 id. 527.) It was decided in Randall v. Shaw, 28 Kas. 419, that “the vigilant creditor is entitled to the advantage secured by his watchfulness and attention to his own interest.”
There was some evidence introduced upon the trial on the part of the defendant below showing that the members of the firm of Millspaugh, Highman & Co. were brothers-in-law of E. S. Bliss; that other mortgages were also executed by Millspaugh, Highman & Co. to Bliss & Wood, to secure the same indebtedness embraced in the chattel mortgage; that a mortgage by Millspaugh, Highman & Co., to secure E. S. Bliss, as a surety, had been paid, but not released; that after this action was commenced. Bliss & Wood traded off the stock of goods for a farm worth about $4,000. But we do not think that any of these things, or these all together, with some other matters that were presented upon the trial, establish that the chattel mortgage of Millspaugh, Highman & Co. to Bliss & Wood was given without consideration, or was fraudulent.
We think it was proper for the trial court to admit evidence of everything connected with .the possession of the property under the chattel mortgage, and the sale and transfer of the goods by Bliss & Wood, as throwing light on the transactions between the parties to the chattel mortgage. But all of the mortgages given to secure the indebtedness existing from Millspaugh, Highman & Co. to Bliss & Wood were not excessive in value, and the amount of the indebtedness in the mortgages was not exaggerated or over-valued. It is possible that, upon a new trial, something may develop the mala fides of the transactions between Millspaugh, Highman & Co. and Bliss & Wood, but, upon the evidence presented in this record, we cannot see how the chattel mortgage can be defeated or set aside. If Bliss & Wood have received under their mortgage more than sufficient proceeds to pay their indebtedness, they may be held to account to the creditors for any overplus.
It is claimed upon the part of plaintiff below, that I. P. Couch, as sheriff, did not have in his possession the goods and merchandise in dispute at the time that the last order of delivery was issued and served. He did have, however, the actual possession of the goods' when the petition was filed, and when the first summons and the first order of delivery were issued. These were set aside on account of the irregularities and alias orders issued.
On January 27, 1887, the court directed the goods and merchandise to be turned over to the defendant below. He did not file any disclaimer, but attempted to show title in himself, and the right of possession incident thereto, under an execution properly issued and placed in his hands. There fore no proof of demand or refusal was required. (Raper v. Harrison, 37 Kas. 243; Bogle v. Gordon, 39 id. 31; Machine Co. v. Mann, 42 id. 372; Civil Code, § 184; Morrill v. Douglass, 14 Kas. 293; Higbee v. McMillan, 18 id. 133.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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Opinion by
Simpson, C.:
The plaintiffs in error commenced an action in the district court of Wyandotte county to set aside certain proceedings theretofore had, by ■which it was attempted to make their land, consisting of 30 acres devoted to agriculture and horticulture, a part of the city of Kansas City, by an extension of the limits of said city; and also commenced an action against the county treasurer of said county to enjoin the levy and collection of the taxes of 1890 on said land. The petitions specifically alleged that, on the 30th day of December, 1887, the city of Kansas City attempted, by ordinance duly published, to extend its boundaries so that the same should include the territory of the original cities of Kansas City, Armourdale, and Wyandotte, together with all the ad-, ditions thereto, and all of the territory embraced in the original consolidated city of Kansas City, Kas., and all the territory within certain boundary lines fully described in said ordinance; that said ordinance was attempted to be passed on the 30th day of December, 1887; was approved on the 4th day of January, 1888, and was duly published in the Kansas Pioneer, the official paper of said city, and designated in said ordinance, within 20 days after its passage; that, after the publication of said ordinance, the mayor of said city, at the first regular term of the district court of Wyandotte county, Kansas, commenced after said 20 days, presented to the court a copy of said ordinance, together with the affidavit showing the proper publication thereof, which were filed with the clerk of said court; and thereupon said court did determine that said publication had been made as by law required, and by its judgment approved, but modified, said ordinance, first hearing all objections, if any, and proofs, if any, offered by the city or persons affected by said ordinance; and the limits or area of the said city wei;e attempted to be enlarged or extended, as designated in said ordinance and modified by court, as of the date of the approval or modification, to wit, on the-day of-, 1888; and the limits of said city were attempted to be extended as in said judgment specified, which limits as so modified embraced the said land of plaintiffs; and that the said district court made a record of its finding and determination in the premises. And plaintiffs further alleged that, at the time of the passage of the said pretended ordinance, and at the time of the said proceedings in said district court, the said property of plaintiffs was bounded and completely surrounded by unplatted territory, and by territory which did not at said time adjoin to the city limits of said defendant city; that it was not subdivided into lots, blocks, streets, and alleys; that the land at said time was used exclusively for horticultural and agricultural purposes, and was surrounded completely and entirely by land of similar kind, and used in the same manner for horticultural and agricultural purposes; that no street of said defendant city was opened to it or touched it anywhere, nor was any street of said city open to or touching upon the land surrounding said property of plaintiffs; that the plaintiffs’ land was not accessible by any street leading to the business part of said city, nor was the land surrounding the land of said plaintiffs as aforesaid accessible by any street leading to the business part of said city; that by reason of the premises, the said defendant city had no power or authority to pass any ordinance including the land of plaintiffs within the corporate limits of said city, nor did said district court have any power or authority, in passing upon said ordinance, to include the land of plaintiffs within the corporate limits of said city, and said ordinance, and the said judgment of said district court thereon, were and are each thereof absolutely null and void, and of no effect whatever; that neither of the plaintiffs had ever done, or suffered to be done on their bebalf, anything by which they had ratified or confirmed in law or equity the said void proceedings of said city and of said district court. Said plaintiffs further alleged that their said land was attempted to be assessed by the authorities of said defendant city at the sum of $13,700, and taxes were levied thereon for the year 1890 in the sum of $730, which taxes were duly extended upon the tax-rolls, and that the said defendant county treasurer threatens to sell the property of plaintiffs therefor; that the assessed valuation of said property, before said attempted proceedings were had by which it was pretended to be incorporated into said defendant city, was the sum of $2,500, and the taxes thereon amounted to $125; that their land is of no greater value at this time than it was at said time; that the said sum of $125 would be a just amount of taxes upon the said land'of plaintiffs for the year 1890, and that the plaintiffs tendered said sum of $125 to the county treasurer, which was refused, and they tendered said sum in court.
To these petitions the defendant city filed demurrers, and upon the hearing of these demurrers it was agreed that the petitions should be amended by incorporating a statement therein, as follows:
“All land brought into said city under said proceedings — taken in its entirety — composed a continuous body of land lying contiguous to the prior limits of said city, but considering the portions or tracts owned by different parties as separate tracts, they did not all adjoin the city, and the land of the plaintiffs, so considered separately, did not so adjoin the city.”
These demurrers were sustained by the district court, and the plaintiffs in error bring the ease here for review. They claim that the statute did not authorize land situated as theirs is to be brought within the city limits; that the statute is unconstitutional and void as an attempted delegation of legislative power; that, if their land is property within the city limits, it must be taxed as agricultural land, and not as city property.
The act of the legislature first authorizes “territory adjoining the city limits that has been subdivided into lots, blocks, streets and alleys to be added to the city with the approval of the city council and mayor.” It then provides “that no unplatted territory of over five acres shall betaken into said city against the protest of the owner thereof, unless the same is circumscribed by platted territory that is taken into the city.” It then provides that—
“Any city of the first class may enlarge or extend its limits or area by an ordinance specifying with accuracy the new line or lines to which it is proposed to enlarge or extend such limits or area. Within 20 days after the passage of such ordinance, the same shall be published in the city official paper, published in said city, to be designated in said ordinance. When said publication shall have been made, the mayor of said city, at the first regular term of the district court of the county in which said city is situated, commencing after said 20 days, shall present to said court a copy of said ordinance, duly certified by the clerk of said city under 'its seal, and also therewith an affidavit or affidavits showing the publication of said ordinance as hereinbefore provided, which said certified copy of said ordinance and said affidavits shall be filed with the clerk of said court. Thereupon said court shall determine whether said publication has been made as herein required, and shall then consider said ordinance, and by its judgment either approve, disapprove or modify the same, first hearing all objections, if any, and proofs, if any, offered by said city or persons affected by said ordinance. Should said ordinance be approved or modified by said court, then the limits or area of said city shall be enlarged or extended as therein designated, from the date of such approval or modification; but should it be approved entirely, or modified and approved, the judgment of said court shall stand, and the limits of such city shall be extended as is in said judgment specified, and the determination of the matter thus submitted to said court shall be final, and all courts of the state shall take judicial notice of the limits or area of such city, as thus enlai’ged or extended, and of all the steps in the proceedings leading thereto. The district court shall make a record of its finding and determination in the pi’emises, which shall be conclusive evidence of the facts so found and determined; and after the disapproval or modification of one ordinance, another or others may be passed and acted on.” (First-Class-City Act, §8.)
The land in question is about 30 acres, used for horticult oral and agricultural purposes, and is entirely surrounded by lands of like character. It does not adjoin the city; it is not subdivided into lots, blocks, streets, and alleys; nor is it surrounded or circumscribed by platted lands; but it is one of several tracts that, taken in their entirety, compose a continuous body of land lying contiguous to the prior limits of the city, some of which tracts do adjoin the city, and this tract does adjoin some that adjoin the city limits.
I. The controlling question in this case therefore is: Can the city limits be extended under the section of the law of 1887, above quoted, so as to include a tract of land that is part and parcel of a large, compact and contiguous body that does adjoin the prior city limits, although this particular piece does not so adjoin the city limits? This question we answer in the affirmative, because of these words contained in the section: “Any city of the first class may enlarge or extend its limits or area by an ordinance specifying with accuracy the new line or lines to which it is proposed to enlarge or extend such limits or area.” We think this expressly authorizes the city council to take into the limits of the city such land as adjoins the city, and such other land as adjoins land that adjoins the city, so as to make a continuous and compact body, as may be approved of by the district court as provided in the other provisions of the section. In other words, we think the proper construction to be given to the act of 1887 is this: First, the mayor and council have power to embrace within the limits of the city all land that has been subdivided into lots, blocks, streets, and alleys, without reference to the extent of the land so divided, if such platted land adjoins the city; this part of the section being framed on the theory that by so platting the land the proprietor himself establishes its character as city property, and assents to its absorption by the city. Second, the mayor and council have power to extend the limits of the city so as to embrace tracts of unplatted land not exceeding five acres, and exceeding five acres when the owner does not protest against such absorption. When the unplatted land is circumscribed by platted land that is taken into the city, the unplatted land can be taken in without regard to its extent. Third, any city of the first class can enlarge or extend its limits or area so as to embrace a continuous body of land lying contiguous to the prior limits of the city, composed of different tracts, but this extension must be approved by the judgment of the district court had in the manner prescribed by the law of 1887. If the land sought to be incorporated into the city was detached, so as not only not to join the city, or not to join land adjoining the city, we would have grave doubts about the power to extend the city limits so as to embrace a detached tract. That is, we doubt, under the power delegated in this section, if the city council is authorized to leave out or disregard small tracts adjoining the city limits, and pass them over and attempt to take within the city a detached tract not adjoining the city and entirely surrounded by tracts that do or do not adjoin the city limits; but as we understand the amendment to these petitions, descriptive of the location and surroundings of the land of the plaintiffs in error, we think it could, by proper proceedings in conformity to the provisions of the act of 1887, be brought within the city limits. This being so, the district court acquired jurisdiction, and had the power to hear and determine the questions presented by the ordinance, and, having jurisdiction, the plaintiffs in error are bound by .the result. As we understand the contention of the counsel for the plaintiffs in error, they do not attack the regularity of the proceedings either before the council or the district court. All they claim in this respect is, that as the statute does not authorize the city to take the land of the plaintiffs in error into the city by an extension of its limits, the council of the city had no power to pass the ordinance, and the district court had no' power to approve it; but as we hold that they have the power, and the district court having jurisdiction, the ordinance is valid for this reason.
II. Their next contention is, that the part of the act of 1887 that confers upon the district court of the proper county the power to approve, disapprove or modify such an ordinance is unconstitutional, for the reason that it is a delegation of a purely legislative power. We had occasion to consider, discuss and determine practically the same question in the case of Callen v. Junction City, 43 Kas. 629. That case involved the constitutionality of § 1 of chapter 69 of the Laws of 1886. A comparison of the act of 1886 with that of 1887 will demonstrate that there is no substantial difference between them so far as the delegation of power is concerned. In one, it is to the district judge; in the other, it is to the district court. In the one case, the action of the district judge precedes that of the council; in the other, the action of the district court reviews that of the council; but in both there must be concurrent action to legalize the ordinance. It must be evident that if the delegation of power to the district judge under the act of 1886 can stand, that to the district court under the act of 1887 must be sustained. So that the conclusion is, that the act of 1887 is constitutional and valid against the objection now urged against it.
III. This leaves the question of the legality of the taxes to be passed upon. This question was considered by this court in the case of Mendenhall v. Burton, 42 Kas. 570, and the cases now cited by counsel for plaintiffs in error were then commented upon. In addition to what was said in that case, it appears to us that when it is determined that the land of the plaintiffs in error is a part of the city of Kansas City, there must exist some extraordinary condition to exempt it from the payment of the ordinary city taxation. If the assessment was too high, resort Could have been had to the board of equalization, and possibly other remedies might have been used to have equalized its assessment. The rule is that all property situate within the city must bear its proper proportion of taxes, and must be assessed as city property. We regard the judicial determination of the district court of Wyandotte county, making this land a part of the city of Kansas City, as permanently fixing it as city property, and as such it must be assessed and taxed. It would breed unwarranted confusion with our assessments, and produce end less strife in our taxation, to permit any body of land that has been declared a part of an incorporated city to be taxed as farming land, the same as if it was not embraced within the city limits. Under our system of the extension of the limits' of a city of the first class, all questions of this character are considered and passed upon by the district court when it approves an annexation ordinance. The character of the land is fixed as city property, and its assessment and taxation as such arbitrarily follows. We think it was properly assessed and taxed as city property. These conclusions compel us to recommend that the judgment of the district court sustaining demurrers to the petitions 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
Horton, C. J.:
This was an action in the nature of ejectment. John J. O’Brien claims to be the owner of and entitled to the immediate possession of 200 acres of land in Johnson county. David Updegraff, one of the defendants, in his separate answer claims to be the owner of and entitled to the immediate possession of an undivided one-half of the land. Thomas JBugbee and Henry W. Cresswell claim both title and possession. Polly Manture, a Shawnee Indian woman, was the common source of title. The land was patented to her by the United States on the 28th day of December, 1859, as her allotment under the provisions of a treaty between the United States and the Shawnee Indians concluded on the 10th day of May, 1854, and the act of congress approved March 3, 1859. This patent contained the following restriction upon the alienation of the land by Polly Manture and her heirs, to wit:
“Have given and granted, and by these presents do give and grant unto the said Polly Manture and to her heirs, the tracts of land above described, but with the stipulation, prescribed by the secretary of the interior, under the act of congress aforesaid of March 3, 1859, that the said tract shall never be conveyed by the grantee or her heirs without the consent of the secretary of the interior for the time being.”
In the spring of 1855, Polly Manture was joined in marriage to one George Buchannan, a white man, in Johnson county, in this state. Buchannan and wife took actual possession, in 1856, of and improved the lands, and cultivated them until their deaths, respectively. They had one child born unto them, named Sally Buchannan, who married Gotlieb Zeigler. Polly died on the farm in 1860, leaving surviving her a husband and the child, Sally. Buchannan remained on the farm, cultivated it all, except a few acres he used for pasture; what he did not use he leased to others. After the death of his wife, Polly, he married a widow by the name of Gibbs, with whom he continued to live upon the land until August, 1879, at which time he died, leaving a will, which was probated, by which he attempted to bequeath all of the land to Marow Gibbs, a son of his last wife by a former husband. George Buchannan had no children by his last wife.
The plaintiff, John J. O’Brien, claims the land through a conveyance from Marow Gibbs and wife, dated February 9, 1883, and recorded February 26, 1883. Gibbs was a white man. Sally Buchannan, the only child of Polly and George Buchannan, was married to Gotlieb Zeigler, a white man, in 1874, and died within three or four months after her marriage, leaving no issue, and without having disposed of her interest in the land. Gotlieb Zeigler conveyed an undivided one-half of the land to James H. McCartney on the 10th day of June, 1875, and David Updegraff claims this undivided one-half through a conveyance from McCartney. On the 2d day of April, 1866, George Buchannan and his then wife conveyed eighty acres of the land in controversy to Joachim Rathjen, who afterward conveyed the same to the defendant John C. McCoy, sr. Neither the will of George Buchannan nor any of the conveyances above mentioned were approved by the secretary of the interior. On the 3d day of February, 1882, Charles Bluejacket and Charles Tucker, chiefs of the Shawnee tribe of Indians, in consideration of $1,500, by deed of general warranty conveyed all the lands to John C. McCoy, sr., which deed was on the same day duly acknowledged before John D. Tufts, United States Indian agent, and on the 27th day of October, 1882, was approved by the secretary of the interior, and recorded in the records of the county of Johnson on the 13th day of November, 1882. The defendant, John C. McCoy, sr., on the 3d day of March, 1883, took possession of the land under the two last-mentioned deeds, and continued in the uninterrupted possession thereof until he conveyed the same through his sons, on the 1st of March, 1887, in consideration of the sum of $14,662.50, to the defendants Thomas Bugbee and Henry W. Cresswell, and delivered possession thereof to them; and Bugbee and Cresswell have continued in the possession of the land until the present time. The trial court decided against O’Brien and Updegraff, and in favor of Bugbee and Cresswell. The former excepted, and complain of tbe judgment of the court.
The 200 acres in controversy are known as “ Shawnee Indian lands,” and are included in the 200,000 acres or more ceded by the United States government to the tribe of Shawnee Indians by treaty of May 10, 1854, between the government and the Indians. (See 10 U. S. Stat. at Large, p. 1053.) One of the articles of the treaty provides for the issuing of patents to the several members of the tribes and “heads of families,” as follows: “ Congress may hereafter provide for the issuing to such Shawnees as may make separate selections, patents for the same, with such guards and restrictions as may seem advisable for their protection therein.” By an act approved March 3, 1859, congress authorized the secretary of the interior to issue patents to certain Indians, including the Shawnees, “ under such conditions and limitations, and under such guards and restrictions, as may be prescribed by the secretary.”
The principal question in this case is, Was descent cast upon-George Buchannan, the husband, and upon Sally, the child, when Polly Buchannan, née Manture, died in 1860, in possession of the land ? The trial court made the following special findings of fact:
“In the year 1861, and while James B. Abbott was United States local agent for the tribe of Shawnee Indians in Kansas, the said tribe of Indians, through its chiefs and councilmen, adopted orally the written laws of the state of Kansas, then in force, relating to descent, distribution and inheritance of real and personal property, and thenceforth until said tribe left the state the said laws were their guidance; and that prior to said period the said tribe of Indians had no law, written or unwritten, nor any custom or usage of their own regulating the descent, distribution and inheritance of real property of which any member of the tribe died seized.”
“That from 1864 up the year 1868, the tribe of Shawnee Indians operated under the laws of Kansas relative to and governing the descent, distribution and inheriting of the lands of individual Shawnees, deceased, by the council and chiefs adopting for the tribe the said laws of Kansas.”
James B. Abbott, United States local agent for the tribe of the Shawnees from June, 1861, to 1868, testified upon the trial that some time in the year 1868 he understood that the Shawnee tribe passed a resolution about descents, distributions, and inheritance of lands, differing from the laws of the state of Kansas. In view of the evidence and the findings of the trial court, it cannot be said that at the time Polly Buchannan, née Manture, died, the laws of Kansas concerning descent or distribution of the lands of the Shawnee tribe had any operation; nor can any presumption be indulged in that the customs or laws of the Shawnees in this matter followed the Kansas law, or were similar to it. The evidence and the findings are against any such presumption.
In Brown v. Steele, 23 Kas. 672, it was said:
“ That it appearing that the tribal organization of the Shawnee Indians was still recognized by the political department of the United States government, under the decision of the supreme court of the United States in the ease of The Kansas Indians, 5 Wall. 737, the descent is cast, not under the Kansas law, but in accordance with the Shawnee law and decision.”
Sally Zeigler, née Buchannan, died in 1874, and there is no evidence or finding showing, or tending to show, that the laws of Kansas concerning descent or distribution had any operation among the Shawnee tribe at that time. As O’Brien, in order to have any title or possession to the land in dispute, must have established heirship or title to the land in George Buchannan, he is not entitled to recover the land or any part thereof, if he failed to make satisfactory proof thereof. The same may be said concerning the alleged title of David Updegraff, who claimed through a conveyance from Gotleib Zeigler, who married Sallie Buchannan, even if we assume that Sallie Zeigler, née Buchannan, inherited anything from her mother, Polly Buchannan, née Manture.
In the case of The Kansas Indians, 5 Wall. 737, Mr. Justice Davis, for the court, said:
“This people [the Shawnees] have their own customs and laws by which they are governed. Because some of these customs have been abandoned, owing to the proximity of their white neighbors, may be an evidence of the superior influence of our race, it does not tend to prove that their tribal organization is not preserved. There is no evidence in the record to show that the Indians with separate estates have not the same rights in the tribe as those whose estates are held in common. Their machinery of government, though simple, is adapted to their intelligence and wants, and effective, with faithful agents to watch over them. ... It may be that they cannot exist much longer as a distinct people in the presence of the civilization of Kansas, ‘but until they are clothed with the rights and bound to all the duties of citizens/ they enjoy the privilege of total immunity from state taxation. . . . While the general government has a superintending care over their interests, and continues to treat with them as a nation, the state of Kansas is estopped from denying their title to it. . . . As long as the United States recognizes their national character, they are under the protection of treaties and the laws of congress, and their property is withdrawn from the operation of state laws.”
At the time that this action was brought, Bugbee and Cresswell were in the actual possession of the land. John C. McCoy, sr., under whom they claim title, took actual possession on the 3d day of March, 1883; therefore, the defendants, through themselves and their grantors, had been in possession of the land when this action was brought for more than four years. It is elementary, that a party seeking to recover possession of real property must do so upon the strength of his own title, not upon the weakness of the title of his adversary. Therefore, as there is no evidence in the record showing, or tending to show, that George Buchannan or Sally Buchannan inherited any interest in the land from Polly Buchannan, née Manture, the judgment of the trial court refusing possession to O’Brien and Updegraff, who claim through these parties, must be sustained.
O’Brien and Updegraff claim that George Buchannan and Sally Buchannan were the heirs at law of Polly Buchannan. On the other hand, Bugbee and Cresswell claim that, by the law and decision of the Shawnees, the title escheated to the tribe, and therefore that the chiefs of the tribe had full authority to execute, with the approval of the secretary of the interior, the deed of February 3, 1882, to John C. McCoy, sr. The burden of proof in this matter was upon O’Brien and Updegraff. They ought to have shown that in 1860, at the death of Polly Buchannan, the descent was cast upon George Buchannan or Sally Buchannan, or both, under the law and decision of the Shawnee tribe. This was not done. The law or decision • of a country, a state or an Indian tribe may make any person an heir. An heir at law is simply one who succeeds to the estate of a deceased person under the statute of a country, a state, or the decision of an Indian tribe. (McKinney v. Stewart, 5 Kas. 384; Delashmutt v. Parrent, 40 id. 641; Caldwell v. Miller, 44 id. 12; Brown v. Steele, 23 id. 672.)
The probabilities are, from some of the evidence offered, that under the law and decision of the Shawnee tribe of Indians in force in 1860, when Polly Buchannan died, and in force in 1874, when Sally Zeigler died, that, as George Buchannan and Gotleib Zeigler were white men, they could not inherit from either Polly Buchannan or Sally Zeigler, and that after the death of Polly Buchannan and Sally Zeigler no one, excepting the Shawnee tribe, or their chiefs, or the government, could confer legal title to the land upon anyone-But this was not established, unless we indulge in presumptions. In the absence of any evidence tending to show the law or decision of the Shawnee tribe of Indians relating to descent or distribution of lands in 1860, we cannot say what person, if any, succeeded to the estate of Polly Buchannan, deceased. It is shown by the record that Bugbee and Cress-well hold under a deed from the chiefs of the Shawnee tribe, dated February 3, 1882. This deed was approved by the secretary of the interior on October 27, 1882. If any presumptions are to be indulged in, as the general government has the superintending care over the interests of the Shawnee Indians, and as their property is withdrawn from the opera tion of the state laws, we might presume that the deed of February 3, 1882, approved by the secretary of the interior, was made in accordance with the Shawnee law, and conferred title. We need not go that far in this case.
Clearly John C. McCoy, sr., and his grantees were not and are not trespassers upon the land. John C. McCoy, sr., took possession of the land on the 3d day of March, 1883, after he had obtained his deed from the chiefs of the Shawnee tribe, and after it had been approved by the secretary of the interior, and properly recorded in the office of the register of deeds in Johnson county; therefore his. possession was with color and claim of title. His grantees, including Bugbee and Cresswell, held and now hold possession with color and claim of title. Even if the chiefs of the Shawnee tribe, with the approval of the secretary of the interior, could not confer title, we think it is clearly evident, from the control that the government exercises over the Shawnees and their lands, that they had authority, with the consent of the secretary of the interior, to give John C. McCoy, sr., possession of the land, in the absence of proof showing that any other person had any legal title, or the right of possession.
The case of Douglass v. Ruffin, 38 Kas. 530, in this view,, does not militate against the judgment of the court below. The case of Hale v. Wilder, 8 Kas. 545, has no application, because this court held in that case that the secretary of the interior was not authorized to approve a deed to the land therein referred to:
Neither O’Brien nor Updegraff is, or has been, in the possession of the land, and both have failed to establish better title than Bugbee and Cresswell, who are in actual possession. 'Neither can O’Brien nor Updegraff claim any title under the statute of limitations on account of the p0ssessj0n 0f their grantors, or the parties through whom they claim, because the title or possession of Polly Manture was so restricted and limited that adverse possession could not give title without the consent of the secretary of the interior. Again, the deed from George Buchannan to Joachim Rathjen, who quitclaimed to John C. McCoy, sr., on the 12th of August, 1881, counts for nothing. It was never approved by the secretary of the interior, and was void; therefore, neither McCoy nor his grantees are estopped by any recitations therein contained. (7 Am. & Eng. Encyc. of Law, p. 5, note 2; Merriam v. Railroad Co., 117 Mass. 241; 3 Washb., Real Prop., p. 106.)
Further, if George Buchannan had inherited, under the Kansas laws, one-half of the land free from the restrictions of the patent, eighty acres of it would have gone to John C. McCoy, sr., under his deed of April 2, 1866, although not approved by the secretary of the interior, as he did not die until August, 1879. O’Brien only claims from Marow Gibbs under the will of George Buchannan. Clearly, Buchannan’s deed of April 2, 1866, is as valid to eighty acres as his will of 1879 to any other part. So, upon any legal view of the case, O’Brien has no claim or title to eighty acres of the land in dispute. But the actual possession of all the land being in Bugbee and Cresswell under color and claim of title, and their right of possession not having been overthrown by any facts disclosed in the record, the judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
A. M. Hough and T. J. Wolfley brought their action against Howell, Jewett & Co., upon a written agreement dated January 16, 1885, entered into between Howell, Jewett & Co., Buzan, Hough & Co., and Buzan, Házeltine & Co. In this written agreement, Howell, Jewett & Co. agreed to turn over sufficient accounts or notes, received by them from Buzan, Hough & Co., to satisfy $1,000 and interest, on a note held by the Nemaha County Bank, dated December 11, 1884, payable 60 days after December 19, 1884, and executed by Buzan, Hough & Co., and, also, by A. M. Hough and T. J. Wolfley. A. M. Hough and T. J. Wolfley claimed in their petition that they were sureties upon the note; that they had been sued thereon, and that judgment had been rendered against them, which they satisfied. They further alleged that they were entitled to enforce the written agreement of January 16, 1885, against Howell, Jewett & Co., because the firm had realized from the accounts and notes large amounts of money, and had refused, although a demand had been made upon them, to turn over sufficient accounts and notes to satisfy $1,000 and interest, on the note given to the Nemaha County Bank. Hough and Wolfley recovered from Howell, Jewett & Co., upon the trial, $1,021.40 and costs. The defendants below excepted, and bring the case here.
It appears from the findings of the j ury that after the execution of the contract of January 16, 1885, the cashier of the Nemaha County Bank said to an agent of Howell, Jewett & Co., that the bank would not receive accounts or notes from them to satisfy the note of December 11, 1884, or any part thereof, because he considered the sureties upon the note good; that the cashier refused to receive from Howell, Jewett & Co. any accounts or notes to satisfy the claim of the bank, and that Howell, Jewett & Co. were garnished in three cases by the creditors of Buzan, Hough & Co., or Buzan, Hazeltine & Co., soon after they came into the possession of the accounts or notes mentioned in the contract of January 16, 1885, but before being garnished they collected on the accounts or notes $1,400.
It also appears from the record that, on the 29th day of April, 1885, in an action then pending in the district court of Nemaha county, wherein the Wetmore State Bank was the plaintiff, and Buzan, Hazeltine & Co. and other parties were defendants, that a receiver was appointed to take charge of the accounts and notes turned over to Howell, Jewett & Co. by Buzan, Hazeltine & Co. and Buzan, Hough & Co. On the same day, in an action then pending in the district court of Nemaha county, wherein Jacob Haish was the plaintiff, and Buzan, Hazeltine & Co. were the defendants, the same person who was appointed receiver in the action of the Wet-more State Bank against Buzan, Hazeltine & Co. was also appointed the receiver in the Haish action, to take charge of and collect the same accounts and notes referred to in the petition in this case. The accounts and notes were directed to be collected by the receiver, and from the proceeds thereof it was ordered that there should first be paid the claim of Howell, Jewett & Co. against Buzan, Hazeltine & Co. and Buzan, Hough & Co.; second, the claim of the Wetmore State Bank against Buzan, Hazeltine & Co., and the claim of Jacob Haish against Buzan, Hazeltine & Co., according to their respective priorities. It also appears from the record that the receiver, who was appointed in both actions to take charge of the accounts and notes, has not yet been discharged.
The offer of Howell, Jewett & Co. to the Nemaha County Bank to turn over accounts or notes to the bank to satisfy $1,000 and interest on the note of December 11, 1884, was made about the time the note became payable. The judgment upon the note of December 11, 1884, was rendered on the 29th day of April, 1885, but Hough and Wolfley did not pay or satisfy any part thereof until after that time. They obtained a transfer or assignment of this judgment on October 3, 1887. The demand made by A. M. Hough and T. J. Wolfley upon Howell,. Jewett & Co., to turn over sufficient accounts or notes to satisfy the claim of the Nemaha County Bank for $1,000 and interest, which they had satisfied, was not made until after the transfer or assignment of the judgment to them. This, of course, was long after the receiver had been appointed and had taken possession of the accounts and notes. Upon the trial, Howell, Jewett & Co. asked the court to instruct the jury as follows:
“1. The jury are instructed that, as a receiver had been appointed on April 29, 1885, in the district court of Nemaha county, to take charge of the accounts and notes formerly be longing to Buzan, Hough & Co., that the possession of the receiver of the accounts and notes took the same out of the control of Howell, Jewett & Co. and placed them in the hands of the court, and after the receiver took possession of the accounts and notes, the defendants were excused from any failure to deliver or tender any part of the same to the Bank of Nemaha County.
“2. The jury are instructed that it can make no difference in which case the receiver was appointed; his possession of the accounts and notes could not be disturbed by Howell, Jewett & Co. or any other person, so long as he was acting as such receiver.
“3. The jury are instructed that it is admitted in this case that John Stowell was appointed receiver in the district court of Nemaha county on the 29th of April, 1885, in the case of Jacob H.aish v. Buzan, Hough & Co.; that he took charge of the accounts and notes formerly belonging to Buzan, Hough & Co., and that he has never been discharged, and is now the duly acting and qualified receiver in said case.”
The court refused to give these instructions, but instructed the jury that—
“If you believe from the evidence that the note described in plaintiffs’ petition was executed as therein stated, and that the Nemaha County Bank brought suit against the plaintiffs, as sureties on the note, and that plaintiffs, by reason of being sureties on the note, were required to pay the same, and you further believe from the evidence that Buzan, Hough & Co. and Buzan, Hazeltine & Co. assigned and set over to Howell, Jewett & Co., on the 16th day of January, 1885, all accounts and notes due and to be due, and also other accounts and other evidences of debt due to them, and that by such assignment Howell, Jewett & Co. agreed to turn over sufficient accounts or notes to satisfy the claim of the Nemaha County Bank for $1,000, as claimed in plaintiffs’ petition, and you further believe from the evidence that Howell, Jewett & Co. have in no manner paid plaintiffs their claim sued on, or that Howell, Jewett & Co. have not turned over to the Nemaha County Bank, or to J. H. Johnson, as cashier of the bank, sufficient accounts or notes to satisfy the claim of the Nemaha County Bank for $1,000, or that the defendants have never tendered to the bank or to the cashier sufficient accounts or notes to satisfy the claim, you will return a verdict for the plaintiffs, unless you further believe from the evidence that John Stowell was appointed as receiver by the district court of Nemaha county, and as such receiver took charge of the accounts and notes assigned to Howell, Jewett & Co. by Buzan, Hough & Co. and Buzan, Hazeltine & Co. before the defendants had realized anything from the accounts and notes. In such case, you will return a verdict for the defendants.”
The court below seems to have tried this case upon the theory that Howell, Jewett & Co. were obligated by the agreement of January 16, 1885, to pay to the Nemaha County Bank $1,000 and interest, in money, and that, as they had collected on the accounts and notes turned-over to them more than that amount before the appointment of the receiver, they were liable to Hough and Wolfley. Such is not the proper construction of the contract of January 16, 1885. “It is unquestionably true, that in this state a person for whose benefit a promise to another, upon a sufficient consideration, is made, may maintain an action on the contract in his own name against the promisor.” (Burton v. Larkin, 36 Kas. 246.) Therefore, under the contract of January 16, 1885, the Nemaha County Bank could have made a demand upon Howell, Jewett & Co. for sufficient accounts or notes to satisfy its claim against Buzan, Hough & Co., of $1,000 and interest-, but it was not obliged to accept or act upon the contract of January 16, 1885, and it could not be compelled to act upon or accept that contract. When the bank refused to receive any accounts or notes from Howell, Jewett & Co., that firm was not compelled to pay money in place of the accounts or notes, and was excused or relieved from turning over to the bank any accounts or notes, until a notice or demand was given to or made upon them. Such notice or demand was not given or made until after the appointment of the receiver in the several actions pending in the district court of Nemaha county. Then, it was too late to make a demand upon Howell, Jewett & Co. for the accounts or notes, because, after the receiver was appointed, the accounts and notes were in eustodia legis. After the receiver was appointed, A. M. Hough and T. J. Wolfley ought to have made their claim for the accounts or notes to satisfy the judgment rendered upon the note of December 11, 1884, to the district court of Nemaha county — not to Howell, Jewett & Co.
“The appointment of a receiver does not determine any right or affect the title of either party in any manner whatever. He is the officer of the court, and truly the hand of the court. His holding is the holding of the court from him from whom the possession was taken. He is appointed on behalf of all parties, and not of the plaintiff or of one defendant only. His appointment is not to oust any party of his right to the possession of the property, but merely to retain it for the benéfit of the party who may ultimately appear to be entitled to it.” (Ellicott v. Warford, 4 Md. 85; High Receivers, pp. 2, 3.)
In Savings Bank v. Simpson, 22 Kas. 414, it was said that —
“ The appointment of a receiver of the effects and property of the partnership in the action of Simpson against Crippen, by the court below, secured to that court the to control ak discretion all controversies which affected *"he property placed in his custody. It thereafter had the right to take to itself all such controversies and compel parties to proceed nowhere else than in its own forum. (Railroad Co. v. Smith, 19 Kas. 229.)”
The instructions prayed for by the plaintiffs below, concerning the possession of the accounts and notes by the receiver, ought to have been given to the jury; and the instruction concerning the receiver which was given, in view of the facts disclosed by the record, was misleading, and therefore erroneous.
It is suggested on the part of the plaintiffs below that, as the appointment of the receiver by the district,court of Nemaha county was consented to by Howell, Jewett & Co., and the other parties to the actions, Howell, Jewett & Co. are not excused or relieved from complying with the demand of Hough and Wolfley. The proceedings in the actions in the district court of Nemaha county of the Wetmore State Bank and Jacob Haish against Buzan, Hazeltine & Co., and other parties, are not void, even if made with the consent of the parties to the actions. Unless those proceedings were without jurisdiction or fraudulent, they are binding upon all parties. It is not shown that these proceedings were without jurisdiction or fraudulent. We must therefore consider them valid.
A great many other questions were discussed upon the oral argument, and are also referred to in the briefs, but as the evidence clearly shows that the Nemaha County Bank refused to act upon or accept the contract of January 16, 1885, and as it is undisputed that the receiver was appointed to take charge of the accounts and notes in controversy on the 29th of April, 1885, before A. M. Hough and T. J. Woifley had made any demand or had the right to make any demand upon Howell, Jewett & Co., for the accounts or notes, it is unnecessary, in view of what has already been said, to pass upon these questions.
The judgment of the district court will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring.
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Opinion by
Strang, C.:
This is an appeal from a proceeding for contempt. On the 7th day of January, 1890, there was pending in the • district court of Cowley county a certain case, in which Barbara Croco and John Croco were plaintiffs, and the Winfield National Bank was defendant. This case had been tried and a judgment therein had been rendered, but it was pending on a motion for a new trial. Thére was another case pending in said court at that time, in which the state of Kansas was plaintiff and C. Perry defendant, said cause being a contempt proceeding instituted by said court against said Perry, charging him with contempt for writing and publishing in the papers of said city a certain card, which it was alleged was calculated to impede and obstruct the business of the court, and to impeach the integrity of said court and the judge thereof. On said 7th day of January, 1890, said card was published in the Daily Telegram with comments thereon, as follows:
“arrested eor contempt.
“Dr. C. Perry was arrested to-day on a bench-warrant and arraigned on a charge of contempt of court. Dr. Perry’s crime (and it must be a crime, else he would not be so charged and arraigned) consists in the following card, published in the daily newspapers:
“‘A OABD.
‘“In relation to the case of Croco v. The Winfield National Bank, I am not a little surprised that the daily papers should so industriously lay before a public ignorant of the facts the allegation of the plaintiff, and at the same time should so entirely ignore the testimony on the part of the defendant. However, this is only in the line of the action of the judge, who evidently believed the allegation of the plaintiff, and gave no credence to the testimony on the part of the defendant, which testimony (so far as the writer’s knowledge of the facts of the case) was nevertheless absolutely true. I make only this comment: that if the judge believed what he is reported to have asserted, it is his bounden duty to direct the county attorney to file a criminal action against Messrs. McDonald, E. T. and G. H. Schuler, and myself. O. Pebby.’
“At this time the result of the ease is not known.
“ Morad : Don’t express your contempt of a court. Think all you please, but say nothing and saw wood. Probably the court will dismiss the charge. We fail to see wherein any contempt was expressed.
“Later, — The court gave Dr. Perry until next Monday to make a showing in defense of his rights as an American citizen.”
On the next day, January 8, 1890, without any affidavit, complaint or information first having been filed therein, the district court of said county being in session, a warrant was issued by said court, or the judge thereof, for the arrest of the defendant, J. W. Henthorn, together with H. Vincent, and L. Vincent, on a charge of contempt of court; the contempt consisting in the publishing of the card of C. Perry, quoted abcive, and comments thereon by the editor of the Telegram. The defendant, Henthorn, was arrested and brought before the court. Afterward he filed his answer to the charge contained in the warrant, admitting the publication of the article, and averring that he was the sole editor of the Daily Telegram. The answer, which was verified by the oath of the defendant, also averred that-the article was not published for the purpose of prejudicing the public against the said court, nor the judge thereof, nor was it published willfully and with intent to influence or in any way to impede or obstruct the administration of justice therein. There was no evidence heard in the matter. The court, however, found the defendant guilty on the admission in the answer, and fined him $100 and costs, and ordered him committed to the county jail until the costs were paid. From such judgment the defendant appeals, and demands his discharge at the hands of this court.
“A contempt of court is either direct or constructive. A direct contempt is an open insult, in the face of the court, to the person of the judges while presiding, or a resistance to its powers in their presence. A constructive contempt is an act done, not in the presence of the court, but at a distance, which tends to belittle, degrade, or to obstruct, interrupt, prevent or embarrass the administration of justice.”
When the contempt sought to be punished is committed in facie curice, the' punishment is summary, and generally immediately follows its commission. In such case no preliminary process or evidence is necessary, except what is gathered by the sense of seeing and hearing. The court takes judicial notice of the offense, and punishes without a hearing of any kind, except in some cases to give the guilty parties an opportunity to apologize, upon which the court may discharge, or it may receive the apology in mitigation of the offense in fixing the punishment. But where the contempt is constructive, that is, where the contempt is not committed in facie curice, but where the act or omission which constitutes the contempt occurs away from the court, beyond its powérs of observation, a proceeding in contempt must be instituted to bring the matter before the court. There were a number of methods whereby such proceedings were commenced under the English practice, several of which obtained more or less countenance in this country under the common-law practice. But at this time, iu this country, the common and more approved methods of instituting a proceeding for contempt are, first, when an attachment, or warrant, or order of arrest for contempt issues in the first instance; or, secondly, when a rule to show cause why an attachment for contempt shall not issue, or why the alleged contemnor shall not be punished for contempt. Under either of these methods, the defendant is entitled to a hearing. And a careful examination of the authorities satisfies us that in all cases of constructive contempt, whether the process of arrest issues in the first instance, or a rule to show cause is served, a preliminary affidavit or information must be filed in the court before the process can issue. This is necessary to bring the matter to the attention of the court, since the court cannot take judicial notice of an offense committed out of court and beyond its power of observation.
There are a few cases in the books where the courts have taken notice of constructive contempts, and issued process without any affidavit or information having been filed to bring the subject-matter of the contempt to the attention of the court; but such cases are very rare in this country, and the practice nearly or quite obsolete. The great weight of authority is certainly opposed to such practice. Courts should never be required to go about looking for contempts of their authority. To do so is sufficient to lower their dignity and bring them into contempt.'
The case of Wilson v. Wyoming Territory, 1 Wyo. 156, is exactly in point with this case. In that case Wilson was arrested on an order of arrest issued by the court without an affidavit or information having been filed therein. He was charged with constructive contempt, for writing and securing the publication in the Omaha Herald of an article reflecting upon the first district court of Wyoming, and upon the judge of said court. He answered; no other evidence was intro duced, and the accused was found guilty and fined. He appealed to the supreme court of that territory. That court used the following language, in expressing its opinion in the case:
“Without entering upon the question of contempt in this case, ... we are of the opinion that an error was committed by the district court at the very commencement of the proceedings, which renders it necessary to set aside the judgment thereof. This consisted in issuing the process of attachment without any valid evidence whatever before the court upon which to found such a proceeding.”
In In re Daves, 81 N. C. 72, the court holds—
“That a rule to show cause why a party should not be attached for contempt in disregarding the order of the court should not be granted on mere motion, but should be based on the affidavit of the party to the attachment, or other satisfactory evidence.”
In the case of Ex parte Wright, 65 Ind. 508, the court says:
“ The grounds of a constructive contempt should be stated by affidavit, by the return of some officer, or in some way made known to the court prima fade, by witnesses, or otherwise, so that they may be made a part of the record; and this should be done before a rule or writ is granted against the alleged offender.”
In The State v. Blackwell, 10 S. C. 35, it is said:
“ It is a fatal objection to a rule to show cause why”a party should not be attached for contempt, for an offense not committed in the presence of the court, that it was issued without affidavit.”
In the case of Young v. Cannon, 2 Utah, 561, the court says:
“In all proceedings for contempt which are not committed in the presence of the court, in order to give the court jurisdiction, it is necessary that an affidavit be filed stating the facts constituting the contempt.”
“When the alleged contempt is not committed in the presence of the court, an affidavit of the facts constituting the contempt must be presented, in order to set the power of the court in motion.” (Batchelder v. Moore, 42 Cal. 412.)
“Proceedings for contempt, not committed in the presence of the court, are instituted by filing an information under oath stating the facts constituting the alleged contempt. An attachment or order to show/cause will then be issued, and the party accused brought before the court. As the proceeding is solely to protect public justice from obstruction, the accused is not entitled to a trial by jury.” (Gandy v. The State, 13 Neb. 445.)
See also Bond v. Bond, 69 N. C. 97; Worland v. The State, 82 Ind. 50; McConnell v. The State, 46 id. 298; Rugg v. Spencer, 59 Barb. 397; The State v. Mott, 4 Jones (N. C.), 449.
This case must be reversed upon the ground that the court had no jurisdiction of the defendant, because no affidavit or information was filed, in the court as a basis for the warrant of arrest upon which the defendant was taken into court and tried.
We therefore recommend that the judgment of the district court be reversed, and the defendant discharged, with costs.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
The material facts are: On the 1st day of December, 1888, the plaintiff in error was in the possession of a stock of drugs and drug-store fixtures, situate in a building on lot 10, in block 36, in Garden City, known as the “George H. De Waters drug store.” The plaintiff in error took possession of these goods under a claim that he had a chattel mortgage that was a first lien on said stock of drugs, to secure a bona fide indebtedness to him, and that the conditions of said chattel mortgage had been broken. On that day, to wit, the 1st day of December, 1888, the said George H. De Waters executed and delivered to the Finney County National Bank, to F. Finnup and E. M. Morton, a chattel mortgage on the same stock of drugs and drug-store fixtures, to secure the bank in the sum of $1,500, Morton in the sum of $550, and Finnup in the sum of $360. On this day these parties — the bank, Morton, and Finnup — commenced an action against De Waters, asking judgments for the respective amounts due the plaintiffs, and making other creditors of De Waters parties defendant, requiring them to answer and set up their respective liens, asking for the appointment of a receiver, the sale of the stock of merchandise, and an application of the proceeds of sale to the payment of the liens thereon in the order of their priority. An ex parte application by the plaintiffs in this action was made to the judge at chambers for the appointment of a receiver, and one was appointed on the said 1st day of December, 1888. The receiver took the oath and filed a bond as required by law, which was duly approved, and made a demand on Conwell for the stock of drugs and fixtures. Conwell refused to deliver them to the receiver. The judge of the district court made an order at chambers directing the sheriff to take the stock of drugs from Conwell and deliver them to the receiver, and this was done. The sheriff was ordered to bring Conwell before the judge to show cause why he should not be punished for contempt. The judge finally concluded that he had no power at chambers to punish Conwell for contempt, and ordered him to appear before the court on the 1st day of January, 1889, it being one of the judicial days of the regular January term of the district court of Finney county. On the 13th day of December, 1888, Conwell made an application for leave to sue the receiver in replevin to the judge of the district court at chambers, and leave was granted. Under the order granting leave to sue, and on the 14th day of December, 1888, Conwell commenced an action in replevin against the receiver, an order of delivery was issued, and the sheriff put Conwell in possession of the stock of drugs. On the 14th day of January, 1889, the court, of its own motion, set aside the order allowing Conwell to sue the receiver in replevin, and then dismissed the action brought by Conwell. All proper exceptions were saved, a motion for a new trial was made and overruled, and the cause brought here for review.
On the hearing of the motion to vacate the order granting Conwell permission to sue the receiver in replevin, Conwell offered to show by DeWaters that he had a valid bona fide chattel mortgage upon the property that was a first lien thereon, but this was refused. It appears from the record that the defendant in error alleges that Conwell held possession of the stock of goods under and by virtue of a bill of sale that was claimed to be fraudulent.
The power of the court to appoint’ a receiver must be exercised with great caution, and with a due regard to the rights and interests of ail parties interested in the property. ■ It is not to be allowed when other adequate remedy exists. (High, Receivers, 369.) It is only in extreme cases that a' court will appoint a receiver for chattel property in possession of a mortgagee having the first lien, and the obvious reason for this is, that the statutes of the state authorize the mortgagee to take possession on condition broken, and this gives him the absolute legal right to possession; and, to authorize a receiver to take the possession of the mortgaged chattels away from one having apparently the first lien, there must be a very strong showing of fraud. This is familiar doctrine, to be found both in Beach and High on Receivers.
It is said by Jones on Chattel Mortgages, §439:
“The appointment of a receiver of mortgaged chattels held by a mortgagee in possession will only be made in cases of pressing necessity, in order to secure the rights of the mortgagor, or others claiming under him.”
A mortgagee in possession will not be dispossessed by the appointment of a receiver, on the ground that the property in controversy is a newspaper and printing establishment, which it is desirous to sell as an active business in actual operation. (Rapier v. Paper Co., 64 Ala. 330.) A mortgagee rightfully in the possession of mortgaged property cannot be deprived of it by the levy of an execution upon it, or the making of an attachment on it by a creditor of the mortgagor. (Pike v. Colvin, 67 Ill. 227; Marsh v. Lawrence, 4 Cow. 461; Moore v. Murdock, 26 Cal. 514; Volney Stamps v. Gilman, 43 Miss. 456; Troy v. Smith, 33 Ala. 469.) If an officer attempt to take the property upon an execution issued against the mortgagor, the execution not being a lien prior to the mortgage, the mortgagee is justified in forcibly resisting the officer. (Wentworth v. People, 4 Scam., Ill., 550.) But if the officer succeeds in taking the property, the mortgagee may sue him for conversion, and recover the value of the property, (Worthington v. Hanna, 23 Mich. 530; Nelson v. Wheelock, 46 Ill. 25,) or the value of his interest in the goods. (Becker v. Dunham, 27 Minn. 32; Bailey v. Godfrey, 54 Ill. 507.) A mortgagee of a chattel is entitled to the possession of it against a collector of taxes who, after the mortgage, has distrained it for a tax due the mortgagor. (Fuller v. Day, 103 Mass. 481.)
These citations are sufficient to show how strongly the courts regard the right of possession of a first mortgagee of chattels. Applying this principle to the facts in this case so far as they are developed by the record, we doubt whether the showing was sufficient to authorize the appointment of a receiver. The appointment was made on an ex parte application, in an action on chattel mortgages executed by the debtor to the plaintiffs at a time when the mortgaged property was in the actual possession of Conwell, the action being commenced within a few hours after the execution of the chattel mortgages. Conwell ought to have had notice of the application ; he resided and the goods were situate in the same town in which the order was made. Under these circumstances, we regard the order made to allow Conwell to sue the receiver in replevin and determine his statutory right to the possession of the goods as one in the interest of justice, and as one having a tendency to correct the doubtful order appointing the receiver. Conwell obeyed in letter and spirit the order allowing him to sue, and no good cause is shown why the permission to sue should be revoked. It is a matter resting very largely in the discretion of the court, but it is a legal discretion and not arbitrary power, and is to be exercised with due regard to the rights of parties. Under the peculiar circumstances of this case, we do not think it was a fair exercise of the discretionary power of the court to dismiss the action of replevin brought by Conwell against the receiver after permission to sue had been granted, in the interests of justice, as we deem it, after Conwell had complied with all the requirements of the order, after a large amount of costs must have been necessarily created, and after it is apparent that Con-well’s right to possession can. be speedily determined by this form of action. Of course, the appointment of the receiver cannot be questioned or passed upon in such action; the only inquiry being whether Conwell, by virtue of his chattel mortgage being a first lien on the chattels, is entitled to possession, or the receiver, by virtue of his appointment, and the order of the court directing him to take possession. If the chattel mortgage of Conwell is void, or fraudulent for any reason, it can be shown in this action as affecting his right to possession.
We recommend that the order of the district court revoking permission to sue the receiver and dismissing the action be reversed, and the cause remanded for trial.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
In this case there was some evidence tending to show that the animal was injured at the crossing of a road over the track and right-of-way. The railroad company attempted to show that this crossing was used and traveled by the public as a highway, and, therefore, that the company was not bound to fence or inclose such crossing. The trial court refused to receive most of this evidence, and also refused to submit the question to the jury whether the animal was killed at a crossing used by the public. This was error, and material error. It was decided in A. T. & S. F. Rld. Co. v. Griffis, 28 Kas. 539, that a railroad company is not liable, under chapter 94, Laws of 1874, for stock killed at the crossing of a road used and traveled by the public as a highway, though the crossing and route thus traveled is in fact not a regularly laid out and established highway. (See, also, 13 Am. & Eng. Rld. Cases, 532, 533, and cases there cited.) In a note to the principal case it is stated —
“That the true test whether or not a railroad company is bound to fence at a particular point is, whether there is a practical user of the land at such point as a public place, either as a highway or otherwise. This is irrespective of the questions of dedication, statutory appropriation,” etc.
■ The judgment of the district court will be reversed, and the case remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Hokton, C. J.:
On the. 15th day of December, 1874, C. S.. Charlott recovered a judgment against Joseph Pulitzer and Gen. James G. Blunt, in the circuit court of the city of St. Louis, in the state of Missouri, for $1,023.72. General Blunt died on the 25th of July, 1881. On the 14th day of December, 1885, J. P. Bauserman was appointed administrator of his estate by the probate court of Leavenworth county. On' the 14th day of December, 1888, C. S. Charlott brought his action in the district court of Leavenworth county against J. P. Bauserman, as administrator of the estate of General Blunt, deceased, to recover a balance of $535 upon the Missouri judgment. The defendant pleaded the statute of limitations. Judgment was rendered in favor of Charlott for $535, and costs. The defendant below excepted, and brings the case here.
It was admitted upon the trial that during all the time from December 15, 1874, and prior thereto, until the death of General Blunt, on July 25, 1881, he had kept and maintained his home and usual place of residence in Leavenworth city, in this state; that during all said time this was continuously open and occupied by his family, consisting of his wife and children, where service of a summons could have been made upon him by leaving at his usual place of residence a copy thereof. It was also admitted upon the trial that General Blunt was personally absent, or “out of the state” so much of the time from the 15th day of December, 1874, to the date of his death, on the 25th of July, 1881, that, if such personal absence from the state prevented the running of the statute of limitations, the judgment was not barred at his death. But it is further admitted that if the periods of time during which General Blunt was personally present in Kansas, from the 15th of December, 1874, to his death, on the 25th of July, 1881, were taken with and added to the time from July 25, 1881, to the appointment of Bauserman as the administrator of his estate, on the 14th of December, 1885, less the time allowed by the statute for the widow or next of kin to be granted administration, they aggregated more than five years. It is also admitted that, if the periods of time which General Blunt was present in Kansas after the 15th day of December, 1874, to the 25th of July, 1881, (the date of his death,) were added to the time from his death to the commencement of this action, (the 14th day of December, 1888,) more than six years had elapsed. The administrator was appointed more than 11 years after the rendition of the Missouri judgment; more than four years after the death of General Blunt; and this action in this state to recover upon that judgment was not commenced until three years after the appointment of the administrator. This action was therefore commenced 14 years after the rendition of the judgment in Missouri, and more than seven years after the death of General Blunt.
We are asked, in a very able argument presented by the counsel representing the estate of General Blunt, to reexamine and reconsider the prior decisions of this court, ruling that, if the debtor is out of the state for a temporary purpose, such temporary absence cannot be computed as any part of the period within which the action must be brought. (Civil Code, § 21.) And we are further asked to reexamine and reconsider the prior decisions of this court, holding that the death of the debtor suspends the running of the- statute, where the statute has commenced to run in the life-time of the debtor.
For the purposes of this case, and the full protection of estates of decedents from all liability for stale or dishonest claims, which in the nature of things the heirs of a decedent could not as successfully defend against as- if the intestates were living, it is not necessary at this time to reconsider any of the former decisions of this court, and therefore it is not necessary now for us to comment upon the prior decisions referred to. It is true that this court has said that the question of personal absence of the debtor from the state, and not the question of residence or non-residence, affects the running of the statute under the provisions of § 21 of the civil code. (Bonifant v. Doniphan, 3 Kas. 26; Lane v. Bank, 6 id. 74; Hoggett v. Emerson, 8 id. 262; Morrell v. Ingle, 23 id. 32; Conlon v. Lanphear, 37 id. 431; C. K. & N. Rly. Co. v. Cook, 43 id. 83.) It is also true that this court has said that the death of the debtor operates to suspend the statute. (Toby v. Allen, 3 Kas. 399; Hanson v. Towle, 19 id. 273; Nelson v. Herkel, 30 id. 456; Mills v. Mills, 39 id. 455.) But this court has never said, when the question was properly presented, that the creditor can indefinitely prolong the time of limitation by his own omission or refusal to act, or that the death of the debtor operates to suspend the statute of limitations indefinitely. Within the provisions of our civil code concerning limitations, an action can only be brought within this state upon a Missouri judgment within five t ® years after its rendition, if during all that time the judgment debtor is personally present within the state. (Civil Code, § 18, subdiv. 1, 6; Mawhinney v. Doane, 40 Kas. 676.)
The precise question is, if, under the prior decisions of this court, the death of the debtor operates to suspend the statute of limitations, is the statute indefinitely suspended? Clearly, a creditor ought not to gain any advantage by his own laches or by his own delay.
“When a party knows that he has a cause of action, it is his own fault if he does not avail himself of those means which the law provides for prosecuting his claim or instituting such proceedings as the law regards sufficient to preserve it.” (Amy v. Watertown, 130 U. S. 325; Tynan v. Walker, 35 Cal. 643.)
“In a case where some act is to be done or condition precedent to be performed by a party to entitle him to his right to sue, and no definite time is fixed at which the act is to be done or condition performed, he must exercise reasonable diligence to do the one or perform the other, or he will be barred by the statute of limitations; otherwise it would be in his power to defeat the law by his own negligence and wrong.” (Shelburne v. Robinson, 8 Ill. 597, 598.)
It is the contention of the counsel of the plaintiff below that the statute of limitations was suspended all the time General Blunt was “out of the state,” from the 15th of December, 1874, to his death, on the 25th of July, 1881, and also all the time from the 25th of July, 1881, to the 14th of December, 1885, when the administrator was appointed at the instance of the alleged creditors. This latter period of time was over four years. Under the provisions of ¶2796, Gen. Stat. of 1889, (Gen. Stat. of 1868, ch. 37, § 12,) 30 days are given the widow or next of kin to take out letters of administration. If they do not do so, then, upon the application of anyone interested, they may be cited by the probate court or the judge thereof for that purpose, and if they neglect for 20 days after the service of the citation to take administration, the court must commit it to one or more of the principal creditors, if any are competent or willing to undertake the trust. Therefore, if the plaintiff below had availed himself of those means which the law provides for prosecuting his claim, he could have taken action as soon as 50 days had elapsed after the death of his alleged debtor. If a creditor would save his debt from the statute bar, he should take out administration himself. (Granger v. Granger, 6 Ohio, 35.) The statute of limitations in this state is a statute of repose. ^ was en acted for the benefit of defendants, “to exempt them from being called to account in respect to transactions long gone by.” Such statutes are favorably considered. (Taylor v. Miles, 5 Kas. 498.) In that case, it was said:
“When the statute has run its full time, the effect is to leave the parties in possession of just what they had before, nothing more and nothing less; and neither party has a right of action against the other. The injured party has lost his remedy.” (Sibert v. Wilder, 16 Kas. 176; Freeman v. Hill, 45 id. 435; 25 Pac. Rep. 870.)
This statute ought to be liberally construed as to claims against the estates of decedents. The dead man cannot speak or answer, and the next of kin may have no knowledge respecting the claim which the creditor has not attempted to sufficiently enforce in the life of the decedent. It was decided in Railroad Co. v. Burlingame Township, 36 Kas. 628, (14 Pac. Rep. 271,) “that a person cannot prevent the operation of the statute of limitations by delay in taking action incumbent upon him.” It was also said in that ease, that “ to permit a long and indefinite postponement would tend to defeat the purpose of the statutes of limitation which are statutes of repose, founded on sound policy, and which should be so construed as to advance the policy they were designed to promote.”
It is also said. in Rork v. Comm’rs of Douglas Co., 45 Kas. 175, (26 Pac. Rep. 393,) thát—
“If the plaintiff could delay the presentation of his certificates to the board of county commissioners for five years, then he could delay for 10, .15, or any indefinite period of time. He should have presented his tax certificates to the board of county commissioners ‘for refunding’ (for the return of his taxes, interest, etc.) before the expiration of three years after their issue. This he failed to do, and he also failed to allege any reason or excuse for his delay.”
Following these decisions, the claim of plaintiff below is both stale and barred by the statute. He has slept so long upon his rights, if he had any at the death of General Blunt, that he cannot now'recover. If, in fact, the plaintiff below was disabled for 50 days after the death of General Blunt from instituting any proceedings or action to recover on his judgment of the 15th of 'December, 1874, the disability ended with the expiration of the 50 days. If he was denied the right to sue in that period of time, he could have taken action as soon as that time expired, but he did not then act. He did not act within any reasonable time thereafter. He delayed more than four years after the death of General Blunt before he had an administrator appointed, and then delayed three years after such appointment before commencing this action. The reasonable time within which a creditor, having a claim against a decedent, and wishing to establish the same against his estate, should make application for administration, would be under the statute 50 days after the decease of the intestate, or at least within á reasonable time after the expiration of 50 days. But a creditor cannot, as in this case, postpone the appointment for months and years, and then recover upon his claim. If he can do so for several months or several years he can do. so for any indefinite length of time, and then resort to administration and establish his claim. This is not in accord with the policy of the statutes, nor with our prior decisions. We do not think it accords with right or justice in establishing claims against the estates of decedents.
Upon the pleadings and the agreed facts, the judgment of the district court will be reversed, with direction to render judgment against plaintiff below and in favor of the administrator of the estate of James G. Blunt, deceased.
All the Justices concurring.
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Opinion by
Simpson, C.:
Ott & Tewksbury commenced this action against J. IT. Allen, A. P. Allen, D. P. Doak,' A. T. Irvin, the Kendall Exchange Bank, Kirtland & Flash, the Bank of Hartland, the Hamilton Land Company, G. W. Williams, W. C. Hasler, as assignee of G. W. Williams, Aaron S. Drake, R. B. Clark, M. F. Cooley, and James L. Lombard. Their petition alleged that on the 28th day of July, 1887, the Allens executed their note to them for $2,000, payable at the Central National Bank of Topeka, on November 1, 1887; that on the 1st of August, 1887, the Allens executed four promissory notes to the Topeka Investment & Loan Company, for the following sums: One for $148; one for $200; one for $220, and one for $240, payable at various times; that the payment of these notes was guaranteed by the said Ott & Tewksbury, and that they were compelled to pay them when the same became due and payable; that to secure the payment of the first sum mentioned, the Allens executed a chattel mortgage to Ott & Tewksbury on certain ranch cattle described therein. This chattel mortgage was filed for record in Hamilton county, on the 30th day of July, 1887, at 9 o’clock a. m. It is alleged that the present county of Kearny was then a part of Hamilton county, and that the mortgaged property was situated in what is now Kearny county. It is alleged that the defendants herein named are claiming liens on the mortgaged property adverse to the claims of the plaintiffs, Ott & Tewksbury, to the aggregate amount of $22,200, but that all of said liens are subsequent and inferior to that of Ott & Tewksbury; that the Allen brothers are insolvent, and are now non-residents of the state. They aver that the defendants Doak and Irvin pretend to hold mortgages on 380 head of cattle, 400 tons of hay, and a large amount of other property owned by the Allens, and were attempting to sell and dispose of said property at one-fourth of its actual value, and that a large amount of said property was embraced in their mortgage. They pray judgment against the Allens; ask that their chattel mortgage be foreclosed; that they may be adjudged to have the first lien; that the defendants be required to plead and set .forth their respective liens to or interest in said mortgaged property, and for other relief.
Thé Hamilton Land Company filed its answer by way of cross-petition, claiming that John H. Allen executed his note to said company on the 1st day of November, 1886, for $7,482.63, with interest at 8 per cent, per annum; and that John H. Allen executed a chattel mortgage on 315 head of cattle to secure the same. Said chattel mortgage was filed for record in Hamilton county on the 6th day of January, 1887, at 6 o’clock p. m., and was renewed on the 12th day of November, 1887. And for a second cause of action, the land company avers that on the 2d day of May, 1887, the Allens executed a note to James L. Lombard for $3,000, with interest at 10 per cent.; that on the 15th day of April, 1888, this note was sold and transferred to the Hamilton Land Company; same as to a note for $1,350; same as to a note for $273.30; that all of said notes were secured by a chattel mortgage executed by the Allens on all this stock of cattle, estimated at 1,200 head, located on their ranch in Kearny county, Kansas; that said chattel mortgage was filed for record on the 14th day of November, 1887, at 9 o’clock a. m., in Hamilton county.
D. P. Doak filed his answer, averring that on the 2d day of September, 1887, the Allens executed and delivered to him a chattel mortgage on 6 head of work mules, 80 head of ranch cattle branded “ I. D.,” 35 head of three- and four-year-old steers branded “ H. L.,” all being at the time on the Allen ranch, six miles from Kendall; that said chattel mortgage was filed for record in Hamilton county on the 8th day of May, 1888; that default was made on said chattel mortgage, and that he took possession of the property therein described, and sold the same at public auction on the 20th day of April, 1888, and bought them in to satisfy his debt, and is now the sole owner of the same.
A. T. Irvin filed an answer, claiming that on the 7th day, of February, 1887, the Allens executed and delivered to him a certain chattel mortgage, and that on the 14th day of April, 1887, the Allens executed and delivered to him a second chattel mortgage on certain property described in said mortgages; that the conditions of these mortgages were not complied with, and that he took possession of the mortgaged property and sold the same at public auction on the 20th day of April, 1888, to satisfy his debt.
Doak and Irvin filed a joint answer to the cross-petition of the Hamilton Land Company, in which it is alleged that on the 24th day of December, 1887, the Allens executed and delivered to them two certain chattel mortgages upon property described therein; that said mortgages were recorded in Hamilton county on the 6th day of January, 1888; that the conditions of said mortgages were not complied with, and that they took possession of the mortgaged property and sold the same at public auction on the 20th day of April, 1888, to satisfy their debt.
Some other of the defendants filed answers, and Ott & Tewksbury and the Hamilton Land Company filed replies to the answers of D. P. Doak, A. T. Irvin, and Doak and Irvin.
In this state of the pleadings, this cause came on for trial in the district court of Kearny county, at the October term, 1888. Ott & Tewksbury, to maintain the issues on their part, introduced S. S. Ott as a witness, who testified as to his partnership with Tewksbury, and as to the amount of the indebtedness of the Allens to his firm, how it accrued, and how it was secured. The note of the Allens to Ott & Tewksbury, and the chattel mortgage securing it, were then read; also the notes of the Allens to the Topeka Investment & Loan Company, and their assignment to Ott & Tewksbury, were read in evidence. Then J. C. Lester, the manager of the Hamilton Land Company, testified as to the indebtedness of the Allens to the company, and to Lombard, that was transferred to the company. The chattel mortgage given by the Allens to Lombard was read in evidence. The chattel mortgage given by J. H. Allen to Lombard was read in evidence. A. E. Guy then testified, that as receiver in this case he took posses sion of all of the property of the Allens that he could find in the county, but stated two different dates at which this was done — on the 20th day of April, and the 14th day of May, 1888. A part of the property he took possession of was found in the possession and under the control of D. P. Doak and A. T. Irvin, amounting to 285 head. Lester was again called to the witness stand, and identified certain cattle that he saw in Doak’s possession at the Bear Creek ranch, on the 18th day of April, 1888, as being covered by the mortgage to the Hamilton Land Company and the mortgage to Ott & Tewksbury, but stated that there were other cattle, held by other parties, on the ranch. Ott & Tewksbury having rested, the defendants Irvin and Doak, the Kendall Exchange Bank and Thomas Doak filed a demurrer to their evidence, for the reason that it fails to show facts sufficient to constitute a cause of action. The court sustained this demurrer, and entered the following judgment:
“Wherefore, it is by the court considered, ordered and adjudged, that the defendants Thomas Doak, the Kendall Exchange Bank, D. P. Doak and A. T. Irvin be discharged without day, and that this cause be dismissed as to them, such dismissal being a final judgment in such cause, and the said defendants recover their costs, taxed at-dollars.”
The ruling of the trial court, in sustaining this demurrer, and dismissing D. P. Doak, A. T. Irvin, the Kendall Exchange Bank, and Thomas Doak, is assigned here as error. Ott & Tewksbury, the Hamilton Land Company and M. F. Cooley are the parties complaining here. There is a strange admixture of interests represented by the plaintiffs in error, and in some respects the interests of the several plaintiffs in error are adverse to each other, but as there has been no objection made in this court, we will not complain. The record gives no reason for the ruling of the trial court. There seems to be a belief on the part of the counsel for the defendants in error that the reason was that, there being no legal record of the various chattel mortgages, and no proof that Doak, Irvin, the Kendall Exchange Bank or Thomas Doak had notice or knowledge of the other mortgages, and the evidence of the plaintiffs showing that before the time of the commencement of the action Doak and Irvin were in possession, the result legally followed that they must prevail. In other words, it is contended that in order to make a prima facie case for themselves, Ott & Tewksbury must show that their mortgage was recorded according to law. The due execution of all the notes and mortgages is admitted by the pleadings. The mortgage of Ott & Tewksbury was recorded in Hamilton county on the 30th of July, 1887. The Hamilton Land Company’s mortgage was recorded in Hamilton county on the 6th day of January, 1887, and was renewed on the 12th day of November, 1887. The Lombard mortgage, transferred to the Hamilton Land Company, was recorded in Hamilton county on the 14th day of November, 1887, at 9 o’clock A. M. The mortgage of A. T. Irvin was recorded in Hamilton county on the 7th day of February, 1887, and renewed on the 4th day of January, 1888. The Doak and Irvin mortgages were filed for record in Hamilton county January 6, 1888. The M. F. Cooley mortgage was recorded in Hamilton county on the 11th day of July, 1887, and renewed March 24, 1888. If the date of the record is to govern, the Hamilton Land Company’s mortgage of January 6, 1887, is first, and Irvin is second, and Ott & Tewksbury third; all this upon the theory that there were proper renewals of the various chattel mortgages before the commencement of this action. If the recording of these various mortgages in Hamilton county was not in accordance with law, the party who first obtained possession of the mortgaged property, without knowledge of the other incumbrances, would probably have a great advantage.
Kearny county was created by an act of the legislature that went into effect on the 23d day of March, 1887, a part of it being taken from Hamilton county, which was created by an act of the legislature years before, but Hamilton county was not organized until 1886. When Kearny county was organized the record does not disclose. Neither are we certain from the recitations of this record where all this chattel property was located at the time these mortgages were executed and recorded. Hence, we are not in possession of all the facts necessary to' pass intelligently upon these various questions. We do think that there were issues made by the pleadings as between the Hamilton Land Company and M. E. Cooley and these defendants which they had a right to have determined; that Ott & Tewksbury had the right to have all the liens on this property adjusted, and this could not be done unless these defendants in error were still parties to the record.
It would seem from a mere inspection of the record, that these various chattel mortgages to the contending parties all covered, more or less, the same property, but'the identification was not made clear by evidence on the trial, and yet there was some evidence of it. We are not called upon to make that identification by a comparison of the descriptions of the chattels from the face of the mortgages. For these and various other reasons, we conclude that the ruling on the demurrer and the judgment of dismissal are erroneous, and that justice can better be subserved by a new trial, when all the facts on all sides can be presented by the parties to this action, and all their rights intelligently determined.
We recommend a reversal of the judgment of the district court, and that a new trial be granted.
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.:
It is claimed that the court below erred in giving an instruction to the jury relating to the railroad company’s permitting dry grass, weeds and other combustible material to accumulate upon its right-of-way. This instruction was perhaps inapplicable under the facts of this case and therefore improper, but we do not think it could have prejudiced any of the substantial rights of the defendant railroad company in any particular. The jury found with reference to this matter as follows:
“10. Did the defendant allow dry grass, weeds or other combustible material to accumulate on its right-of-way at the place where it is claimed the fire originated ? A. Only a natural growth.
“11. What effort did the defendant or its employés make to burn off its right-of-way at the place where the fire originated ? A. An effort was made, but failed.”
And with reference to negligence, the jury found as follows:
“1. How did the fire originate, that caused the damage to plaintiff’s property? A. Coals or sparks from defendant’s engine.
“ 2. If you answer that the fire was caused by defendant’s engine or train, state, in answer to this question, whether it was caused by the negligent operation of said train or engine. A. Yes.”
“8. Was said engineer operating the engine, at the time said fire was claimed to have been set out, in a competent manner. A. No.”
Evidently the jury found against the defendant because of negligence in so operating its railroad as to permit fire to escape from its engine, and not negligence in permitting dry grass, weeds or other combustible material to accumulate upon its right-of-way; and therefore the giving of the foregoing instruction will not require nor authorize a reversal of the judgment of the court below.
With reference to the failure of the court below to require the jury to answer the 3d, 7th and 9th special questions submitted to them, and to answer the 10th more definitely, and the affirmative action on the part of the court in rendering judgment against the defendant notwithstanding the jury’s answers to the 4th and 5th special questions submitted to them, together with the other findings, want of findings, the evidence and want of evidence, it will be perceived from what we shall hereafter say, that, under the evidence and the law, as it now exists, the jury could not have given answers to the foregoing questions any more favorable to the defendant than those they did give; and the court below could not have rendered any judgment with respect to damages different from the one which it did render. There was not a particle of evidence introduced on the trial tending to show how the fire escaped from the defendant’s engine, or what the engineer was doing at the time when it escaped. But taking the record as it is,- did the court below err in any of the foregoing particulars? Upon the authority of the case of A. T. & S. F. Rld. Co. v. Riggs, 31 Kas. 622, and the cases of the U. P. Rly. Co. v. Fray, 35 id. 700, and Am. Cent. Ins. Co. v. Hathaway, 43 id. 399, the judgment of the court below would probably have to be reversed, unless the provisions of chapter 155 of the Laws of 1885, which took effect May 1,1885, will authorize an affirmance. The first and second sections of said chapter read as follows:
“Section 1. That in all actions against any railway company organized or doing business in this state, for damages by fire, caused by the operating of said railroad, it shall be only necessary for the plaintiff in said action to establish the fact that said fire complained of was caused by the operating of said railroad, and the amount of his damages (which proof shall be prima fade evidence of negligence on the part of said railroad): Provided, That in estimating the damages under this act, the contributory negligence of the plaintiff shall be taken into consideration.
“Sec. 2. In all actions commenced under this act, if the plaintiff shall recover, there shall be allowed him by the court a reasonable attorney’s fee, which shall become a part of the judgment.”
This statute containing the above-quoted sections has been held to be constitutional and valid by this court in the case of Mo. Pac. Rly. Co. v. Merrill, 40 Kas. 404. Under this statute, when the plaintiff in a case like the present has shown that the fire which destroyed or injured his property was caused by the operation of the railroad, as the plaintiff sufficiently showed in the present case, he has then made out a prima fade case of negligence as against the railroad company, and he may then recover, unless the railroad company J 7 * . shall show by sufficient evidence that no negligence on its part supervened to cause the fire. In other words, the railroad company must then show that the fire did not escape from its engine because of any imperfection in its appliances to prevent the escape of fire, nor from any mismanagement of the engine on the part of its servants or agents. In the present case it must be presumed, under the evidence and the findings of the jury, that all the appliances to prevent the escape of fire were sufficient and in good order. But the question is still left: Was there any mismanagement on the part of the railroad company’s agents or servants with respect to the engine which caused or permitted the fire to escape? Presumptively, under the statute and the facts proved by the plaintiff, there was such negligence, and the jury in effect found that there was such negligence; and, in order to rebut this presumption, the defendant introduced a witness by the name of E. Johnson, who testified that he was the engineer in charge of the engine supposed to have caused the fire; that he had been an engineer on that railroad for five years, and an engineer in all for six years, and that he had been a fireman prior to that time; and that the engine supposed to have caused the fire was at the time in good order, and that it had been repaired only two months prior to that time; and then the following questions were asked him and answered, to wit:
“Ques. State if you know of its [the engine’s] ever setting out any fire after it was repaired. Ans. I do not.
“Q. You may state whether, in running this train, you were managing the train properly and carefully as an engineer should. A. In the usual manner, as carefully as could be done.”
The defendant then introduced another witness, by the name of J. B. Key, who testified that he was on the train that day as an extra fireman, with Mr. Jackson as engineer; that the appliances on that engine to prevent the escape of fire were the best; that he had had experience as a fireman with a great many different engineers; and then the following questions were asked him and answered, to wit:
• “ Ques. I will ask you from your experience to state whether Mr. Jackson, the engineer in charge of this engine on the day named, is a careful and skillful engineer. Ans. Yes, sir; he is.
“ Q. Do you know of this train setting out any fire after the time, as he spoke of, of being repaired? A. No, sir; I do not.”
There was not a particle of evidence introduced tending to show how the fire escaped from the engine, or that anyone knew how it escaped, or the precise time when it escaped. All this is left for inference from the facts proved and under the statute. The question now arises: Does the foregoing testi mony of E. Johnson and J. B. Key, along with the facts that were actually proved, so conclusively show that the fire that escaped from the engine and caused the injury to the plaintiff’s'property was not caused by the negligence or mismanagement of E. Johnson, or of Mr. Jackson, or whoever was the engineer, or by the negligence or mismanagement of anyone else for whom the railroad company is responsible, that the verdict and judgment rendered in the court below must necessarily be set aside and reversed? It does not appear that either Johnson or Key knew anything concerning the fire that caused the injury to the plaintiff’s property. They did not know how it escaped, or, indeed, that it escaped at all. And either Johnson or Key was not on the train from which the fire escaped, or else Key did not know Johnson’s name, or had forgotten it; for in his testimony he spoke of his engineer’s name as being Jackson. And Johnson could not well testify that he was managing the train or the engine “in the usual manner, as carefully as could be done,” at the time when the fire escaped, for he did not know when the fire escaped. He did not attempt to state what he was doing when the fire escaped. Possibly he was doing something that-caused it to escape. But what was the fireman doing at that time? There was no evidence that he was acting carefully. Possibly all-the trouble was caused by his acts. And it devolved upon the railroad company to show that the fire did not escape through the negligence of anyone of its agents or servants. This was not sufficiently shown in the present ease, and therefore we cannot say that either the court below or the jury erred in holding the railroad company liable. We shall assume that all the appliances to prevent the escape of fire were in the present case perfect and in good order, and that the engineer in charge of the fengine was a competent and skillful engineer, though this last matter was hardly proved; but that through the engineer’s negligence, or the negligence of the fireman, the fire causing the injury was permitted to escape. There was nothing, however, in the case that tended to show just wherein the engineer or fireman was careless, unskillful or negligent, or wherein consisted the negligence; and nothing to show what their acts were, or what they were doing when the fire escaped. While this want or absence of any such showing would have been against the plaintiff prior to the taking effect of chapter 155 of the Laws of 1885, yet, after that time and finder the provisions of that chapter, and as the law now is, such want or absence of showing would be and is against the railroad company. And as the railroad company did not sufficiently rebut the prima facie case of negligence made out against it by the evidence and under the statute, it must be held to be liable.
It is next claimed that the court below erred in rendering a judgment for an attorney’s fee against the railroad company, and we are inclined to think that this claim is well founded. In the case of Mo. Pac. Rly. Co. v. Merrill, 40 Kas 404, 409, the following language is used
“The question, whát was a reasonable attorney’s fee, was properly submitted to the jury. It is true, the statute provides that the court shall allow a reasonable attorney’s fee, which shall become a part of the judgment. The word ‘court,’ however, was doubtless used by the legislature in the broader sense, as including both judge and jury, or judge alone, according as the court may be constituted when the trial occurs. What is a reasonable attorney’s fee, is a question of fact which should be submitted and determined the same as any other fact arising in the case.”
This indicates that the question of the allowance of a reasonable attorney’s fee should be presented for hearing at the same time that the case is tried upon its merits, and to the same tribunal, and if so, it would also seem that the demand for a reasonable attorney’s fee should be set forth, in some manner, in the plaintiff’s petition. The cases of Mo. Pac. Rly. Co. v. Abney, 30 Kas. 41, and K. C. Ft. S. & G. Rld. Co. v. Burge, 40 id. 736, show what would be sufficient allegations, statements or demands in the petition of the plaintiff to authorize the recovery of an attorney’s fee under the railroad stock-killing law of 1874. These cases apply with some force to the present case. In all cases where the plaintiff de-
s*res to reeover an attorney’s fee, we think a deman(j therefor should be made in his petition, and then the question of an allowance of an amount for such attorney’s fee should be submitted at the same time that the ease is submitted for trial upon its merits, and to the same trier or triers. The manner in which the plaintiff in this case presented his claim for an attorney’s fee, and the manner in which his claim was heard and allowed, and the judgment therefor rendered, have all been stated in the statement of facts preceding this opinion, and it is not necessary now to restate them. We think that error was committed- in the allowance of the attorney’s fee, and to the extent of this attorney’s fee the judgment of the court below must be reversed. In all other respects the judgment will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action of ejectment brought by the plaintiff in error against the defendants in error, in the district court of Shawnee county, to recover the southeast quarter of section 11, in township 10, of range 16. The defendants set up a claim of title under a certain tax deed, and also alleged that the question of the defendants’ title had been finally adjudicated in a suit commenced in the district court of Leavenworth county, and set up such decree and judgment as being res adjudícala. The case was tried by the court without a jury, and judgment rendered in favor of the defendants.
It seems that George R. Hines was the owner of the undivided half of this land on the 1st day of July, 1873. In October of the same year, he conveyed his interest to W. H. Carson, who deeded to Harrison C. Hines, and he sold the same to the plaintiff in error on the 18th day of August, 1884. The defendants’ claim to the land is based upon the possession of Eli W. Metzger, on March 1, 1883, under a certain tax deed, and a foreclosure suit commenced by W. J. Buchan, as trustee, in the district court of Leavenworth county, on the 7th day of March, 1883, against George C. Hines, Harrison C. Hines,. Eli W. Metzger, et al., to fore close a mortgage executed by George R. Hines and wife on the property in controversy, and several other tracts in Leavenworth, Shawnee, and other counties. In this foreclosure case, summons was served upon Harrison C. Hines and George R. Hines, in Jefferson county, on the 13th day of March, 1883, by the under sheriff of the county, but in making his return he signed it, “sheriff of Leavenworth county, Kansas, by W. S. Van Cleave, under sheriff.” The summons being from the latter county, the officer had doubtless neglected to erase the printed matter on the summons. On the 24th day of December, 1886, and upon proper notice to the plaintiff, but without the knowledge of the original defendants named, the sheriff’s return, by leave of the court, was amended so as to conform to the facts, and was signed by George Davis, sheriff of Jefferson county, by W. S. Van Cleave, under sheriff. Thé defendants Hines made default. Metzger by his answer alleged that he was the owner of this quarter-section of land in controversy by virtue of a tax deed made subsequent to the mortgage, and that therefore the land was not subject to the mortgage. In the trial of this case in the district court of Leavenworth county, on the 5th day of July, 1884, the following finding of fact, with others, was made: “That the defendant Eli W. Metzger has a valid tax deed of the southeast quarter of section 11, township 10, range 16, in Shawnee county, Kansas, and is the owner and is in the actual possession thereof, and that no other party to this suit has any lien thereon.” The contention of the plaintiff in error is, that the district court of Leavenworth county rendered no judgment whatever upon this finding, and therefore nothing was settled in that case, so far as the rights of the parties to this suit are concerned; that no person is bound by any litigation until there is a final judgment; that until a court renders a judgment upon a verdict of the jury or its own findings, it is always susceptible of further investigation and of further litigation. It is conceded by the defendants in error that plaintiff in error has shown such a title to the undivided half of this land sued for as would prevail but for the fact that it has been extinguished by the foreclosure proceedings in the district court of Leavenworth county, and that the tax deed through which the defendants in error obtained title is voidable, upon the evidence offered by the plaintiff in error, provided he is not estopped by a former adjudication from attacking the validity of this tax deed. This concession materially simplifies the case, so that the question of a former adjudication becomes the controlling one here.
A final judgment and decree were rendered' in the foreclosure proceedings in the district court of Leavenworth county. A personal judgment was rendered against George R. Hines and in favor of W. J. Buchan, as trustee, and certain lands were ordered sold to satisfy that judgment, but the land in controversy was not included in this decree. The question, then, which this case presents is this: Did the special finding in favor of Eli Metzger, concerning this land, become a part of and was it included in the judgment and decree finally rendered by the district court of Leavenworth county? If it did, the question must be answered in favor of the defendants; if it did not enter into the final determination of the case, nothing was settled by this finding. It is true, as counsel for plaintiff in error contend, that no man should be bound by any litigation until there is a final judgment; but in this case there was a final decree, and our judgment is that the finding was considered in rendering this decree, for the reason that the land claimed by Metzger was not included with the other tracts of land to be sold. This land was described in the mortgage; the plaintiff in the foreclosure suit asked that it be sold with the other lands, to satisfy the mortgage. The defendant Metzger answered that he was the owner, by virtue of a tax deed. The ownership of this land thus became one of the issuable questions to be settled, and, as the holder of such title, he had the right to make full defense. (Bradley v. Parkhurst, 20 Kas. 462; Pattie v. Wilson, 25 id. 326.) The record shows a trial and finding in favor of Metzger, and this finding was confirmed by the judgment of foreclosure of the mortgage as to the other tracts of land described in the plaintiff’s petition, which excepted this land so found to belong to him. This decree, we think, necessarily-affirmed the finding that Metzger had a valid tax deed; that he was the owner and in the actual possession of the land in controversy; and that no other parties to the foreclosure suit had any liens upon the same. The rule of res adjudieata applies as well to facts settled and adjudicated as to causes of action. (Whitaker v. Hawley, 30 Kas. 326.) The judgment of a court of competent jurisdiction is conclusive on the parties as to all points directly involved in it and necessarily determined. (Shirland v. Bank, 21 N. W. Rep. 200; Freeman, Judgm., §249.)
“ When a fact has been once determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done. The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps, or the ground-work upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is indisputable, and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion.” (Burlen v. Shannon, 99 Mass. 200; Board v. M. P. Rld. Co., 24 Wis. 124; Freeman, Judgm., § 257; Wells, Res Adj., § 226; 1 Herman, Estop., § 111.)
Counsel for plaintiff in error rely upon the case of Auld v. Smith, 23 Kas. 65, where this court said:
“A thing contained in the findings or verdict, but not included in or confirmed by the judgment, cannot be considered as an adjudication, or used as evidence, unless some other ground can be found for its use than merely that it is contained in such findings or verdict.”
Our view of this case does not conflict with the principle there decided. We think the judgment rendered in the foreclosure suit in Leavenworth county was in accordance with the special finding in favor of Metzger; and the fact that the record affirmatively shows that the land that he set up a title to in his answer was not included in the decree of foreclosure, is evidence that the special finding must have entered into and become a part of such decree.
We recommend an affirmance of the judgment.
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 Atchison county on August 20, 1887, by George Manley against Thomas J. Emlen, as county treasurer, Charles H. Krebs, as county clerk, the city of Atchison, the Atchison Water Company, Charles Taylor, Ed. Jewett, Julius Kaaz, John Early, and John M. Lane and John Doe, partners as John M. Lane & Co., to perpetually enjoin the defendants from collecting or enforcing certain taxes against the property of the plaintiff, levied by the city of Atchison on August 23, 1886, and placed upon the tax-roll of the county for that year for collection, to wit, a water-works-contract tax, a macadam tax, a guttering tax, a sidewalk tax, and a sidewalk-repair tax. The plaintiff alleged that these taxes were all illegal and void. Afterward, L. Friend was made a party defendant in the action. Afterward, a trial was had before a referee, and judgment was finally rendered in the district court, adjudging that the water-works-contract tax was void, and that all the other taxes in dispute were valid; and the plaintiff, as plaintiff in error, has brought the case to this court for review, making all the defendants defendants in error; and two of such defendants, to wit, the Atchison "Water Company and the city of Atchison, have filed a cross-petition in error.
We shall consider the water-works-contract tax first, and the principal facts relating thereto, stated very briefly, are substantially as follows: Prior to 1876, and from that time until in March, 1881, the city of Atchison was a city of the second class, when, in March, 1881, it became a city of the first class, and has remained such ever since. On March 5,1880, a city ordinance was duly passed and afterward approved and published, providing for the erection and maintenance of water-works in the city, and giving to Sylvester Watts and to his successors and assigns the right for 25 years to furnish to the city and to its inhabitants, for compensation, good, healthful and wholesome water, upon certain terms and conditions. Within a few days thereafter an amendatory ordinance was passed, approved, and published. By these ordinances, the city was to rent and to pay for a certain number of hydrants. On April 6, 1880, an election was held by which the electors of the city of Atchison approved and ratified these ordinances by a vote of 1,309 to 84. Afterward these ordinances were accepted by Watts, and he gave bond as required by their terms. Afterward, and on March 15, 1880, Watts assigned and transferred all his rights and interests under the ordinances to the Atchison Water Company, and that company constructed the water-works, and has ever since maintained them and furnished water to the city of Atchison and to its inhabitants, in accordance with the provisions of such ordinances. In March, 1881, the city of Atchison became a city of the first class as aforesaid. On August 23, 1886, the city of Atchison levied all the taxes now in controversy, to wit, the water-works-contract tax, the macadam tax, the guttering tax, the sidewalk tax, and the sidewalk-repair tax. On December 20, 1886, the plaintiff', George Manley, tendered to the county treasurer all taxes due against him or his property in Atchison county except the aforesaid disputed taxes, and has kept the tender good. On August 20, 1887, this action was commenced by the plaintiff, George Manley, against the county treasurer and others, as aforesaid, to perpetually enjoin the'm from collecting or enforcing the aforesaid disputed taxes, the plaintiff claiming that they were void. On August 22 and 23, 1887, the city of Atchison re-levied all the foregoing disputed special-improvement taxes; but did not relevy the water-works-contract tax. Afterward all the defendants answered. Afterward, and on March 11, 1889, the case came on for trial, and L. Friend was then made a party defendant, and he duly answered. The case was then tried before Seneca Heath, who had previously been appointed a referee for such case. On April 18, 1889, the referee made his report, making voluminous special findings of fact, and also stating his conclusions of law separately, and to the effect that all the taxes except the water-works-contract tax were valid, and that that tax was invalid. At that time and afterward various motions and objections were presented to the court and heard and acted upon; but the court finally, and on June 15, 1889, approved the report of the referee and rendered judgment substantially in accordance with the referee’s conclusions of law.
Just why the water-works-contract tax is not valid, it is difficult to understand. In 1880, when the city of Atchison, which was then a city of the second class, provided by ordinance for giving to Sylvester Watts, and to his successors and assigns, the right to furnish water to the city of Atchison and to its inhabitants for compensation, and upon certa¡n terms and conditions, the city certainly had the power to do so and to make a valid contract with Watts for that purpose. (Gen. Stat. of 1889, ¶¶ 787, 817, 1401, 1402, 7185-7190; Wood v. Water-Works Co., 33 Kas. 590, 597; Water-Works Co. v. City of Burlington, 43 id. 725, 728; Dill., Mun. Corp., 4th ed., §§ 146, 443, and note, 568, last part, and cases cited under all these sections; 15 Am. & Eng. Encyc. of Law, 1115-1118, and cases there cited.) When the city of Atchison, in 1881, became a city of the first class, it retained all its vested rights with regard to its property and its contracts, and remained respon_ ' .. ...A sible with regard to all its existing liabilities and obligations, whether upon contract or otherwise, (First-Class-City Act, §§119,. 120, 121,) but its mode of government was changed. It was then a city of the first class, and was to be governed by the laws relating to cities n ° of the first class, and was no longer to be governed by the laws relating to cities of the second class. In the case of Simpson v. Kansas City, ante, p. 438, it was said as follows:
“After these enumerated cities were consolidated and formed Kansas City, Kansas, that city became one of the first class, and is to be governed in all respects by the laws regulating cities of the first class.”
It therefore follows that the contract between the city of Atchison and Watts, for the furnishing of water by Watts and his successors and assigns to the city and to its inhabitants, and the paying therefor, and for the rent of certain hydrants by the city, was valid in 1880 under the laws relating to cities of the second class; that it remained valid when Atchison became a city of the first class; that it was valid in 1886, when the present water-works-contract tax was levied, and that such levy was valid when made, if it was properly made under the laws relating to cities of the first class. Was it so made? The plaintiff claims not. He claims that the water-works-contract tax must necessarily be a part of the tax levied “for general-revenue purposes,” as mentioned in subdivision 1 of §11 of the first-class-city act. But suppose it is: would that make any difference? Under that subdivision the city may levy not to exceed six mills on the dollar in any one year for general-revenue purposes, and taking this two-mills tax that was levied as a water-works-contract tax and all that was levied that year for general-revenue purposes, which was only three mills on the dollar, and the whole of these two taxes in the aggregate would amount to only five mills on the dollar; and all these taxes were levied at one and the same time, to wit, on August 23, 1886. There is no room, therefore, even to claim that the tax of three mills for general-revenue purposes was levied first, and that the mayor and council thereby and at that time so exhausted their power that they could not afterward levy the water-works-contract tax, if such tax should be called a tax “for general-revenue purposes;” for, as before stated, all these taxes were levied at one and the same time. But even if they had been levied at different times, would that make any difference? Could the mayor and council so exhaust their power by levying at one time a portion of the six-mills tax for general-revenue purposes that they could not afterward, if they found it necessary, levy the remainder of such six-mills tax for general-revenue purposes? It is not necessary, however, to answer this question, as §35 of the first-class-city act gives express authority to the mayor and council of cities of the first class to levy a two-mills tax for water-works, and the authority thus given, we think, is conclusive in the present case. The city of Atchison had been a city of the first class for more than five years before this two-mills-water-works-contract tax for the year 1886 was levied, and before any step was taken toward its levy; and hence, of course, the city was not governed by the statutes relating to cities of the second class, but was governed by.the statutes relating to cities of the first class. But even if the city had remained a city of the second class, and if the tax had been levied under the laws relating to cities of the second class, it would probably still be a valid tax. We think the water-works-contract tax is valid.
As before stated, all the taxes now in dispute were originally levied at the same time, and on August 23, 1886, but the incidental proceedings affecting each tax were respectively different. We shall now proceed to consider the macadam tax. On December 6, 1883, the mayor and council of the city of Atchison passed a resolution declaring that it was necessary to macadamize Commercial street from the west side of Eighth street to the east side of Thirteenth street. Various proceedings were afterward had, which delayed the work so that the tax for the payment of the work could not well be levied prior to the time when it was levied. The first estimate of the cost of the work made by the city engineer, for instance, was irregular in not being sworn to, and for that or some other reason the first award of the work to one of the bidders proved abortive. Afterward, the city engineer made another estimate in due form and under oath, and the work was again advertised and let to a responsible bidder, who entered into contract, gave bonds, etc., and performed the work; and to pay for such work the present macadam tax was afterward levied. Various objections have been and aré now urged against the validity of this macadam tax. First, it is claimed that the long delay from the time of the passage of the resolution declaring it necessary to macadamize Commercial street down to the time when the tax was finally levied, rendered the tax invalid. Second, it is claimed that under § 22 of the first-class-city act, the estimate of the cost of the work is the first thing to be done in taking steps toward the improvement of a street, and that, as the passage of the resolution was the first thing that was actually done in the present case, and the estimate of the cost of the work was afterward made, the tax must necessarily be invalid. Third, it is also claimed that, under said § 22, an appropriation of money must be made, and the money set apart for the payment for the work, before any work is done, which was not done in the present case, and, indeed, could not well be done in any case like the present. Fourth, it is claimed that the contract price at which the work was let was in excess of the estimated cost, which is not shown to be true, and the findings of the referee show otherwise. Fifth, it is further claimed that the notice provided for by § 13 of the first-class-city act to be given of the special session of the mayor and council to hear complaints as to the appraisements of property was given by the city clerk in the official paper of the city, and not by the mayor in such paper. The notice was in fact ordered by the mayor and council to be given in the official paper, and it was so given, but it was signed only by the city clerk. The statute requires that the notice “shall be given by the mayor in the official paper of the city.”
Several objections are also urged against the guttering tax. A remonstrance was filed with the city clerk, under § 14 of the first-class-city act, protesting against the improvement. The guttering was to be done on both sides of Commercial street for five blocks in length, to wit, from the west side of Eighth street to the east side of Thirteenth street. The remonstrance was not signed by a majority of the owners of property resident in the city liable to pay taxes for the improvement for the entire length of the improvement, nor for the length of any single block, except the block between Eleventh and Twelfth streets; and with reference to such block, the remonstrance was signed by Mrs. M. A. Baldwin, who was the only resident of the city who owned property liable to be taxed between such streets. We would think the improvement was a single and continuous improvement, and therefore that the remonstrance was insufficient to stop the work, or to stop any of the proceedings necessary to its accomplishment. It is also claimed that the estimate of the cost of the work, made by the city engineer, was not in sufficient detail, but we are inclined to think it was. The same objection with reference to this tax is urged against the notice of the special meeting of the mayor and council to hear complaints concerning the appraisement as has been urged with reference to the macadam tax. Some of the other objections made to the other taxes are also urged against the sidewalk tax and the sidewalk-repair tax.
It is perhaps unnecessary for us to decide whether the aforesaid disputed special-improvement taxes, as they were first levied on August 23,1886, were then, or.are now, aside from their relevy in 1887, valid or invalid, for they were all re-levied on August 22 and 23, 1887. The real question is whether such taxes, under the two levies made in 1886 and 1887, are of sufficient validity that they may now be enforced. It will be noticed that the objections to them are of a purely technical character, and merely for irregularities. The principal objection is the want of a technical notice with regard to the proceedings upon which they are founded. The plaintiff, however, who was a non-resident of Kansas, had at all times, through his son and agent, who resided in Atchison, and who had the actual control and management of all his father’s property in Atchison, actual notice of all such proceedings. As to the guttering tax, the son signed the aforesaid protest for his father; and another agent of the plaintiff, who had full notice of all the proceedings, gave notice to the several contractors respectively, “that the plaintiff would contest any levies and assessments that might be made against his property for payment for work that might be done by them under their several contracts, and that they would do all work under their several contracts at their peril.” It does not appear, however, that this agent ever gave any notice to any one of the contractors, or to anyone else, before the work on any of the various improvements was completed, of any irregularity in any of the proceedings connected with any of such improvements, or that it was claimed by the plaintiff that any irregularity, fraud or illegality existed or occurred at any time in connection with any of the proceedings. Besides, proper notices were in fact given in all cases, regular in all respects, except that the notices were signed only by the city clerk and not by the mayor. The notices, however, were first ordered to be given by the mayor and council, and they were in fact given as ordered, and would have been perfectly regular if they had been signed by the mayor instead of by the city clerk. But were they not “given by the mayor” by fair intendment? But> taking all tke irregularities together, they were not sufficient to render the taxes as relevied jn 1887 invalid. The statute authorizing a re-levy of taxes in cases like the present is § 20 of the first-class-city act as enacted in 1881, (Laws of 1881, ch. 37, § 20,) and it reads as follows:
“Sec. 20. In case the corporate authorities have attempted to levy any taxes or assessments for improvement, or for the payment of any bonds or other evidence of debt, which taxes or assessments may have been informal, for the want of sufficient authority, or other cause, the council of such city, at the time fixed for levying general taxes, shall relevy and reassess any such assessments or taxes, in the manner provided in this act.”
We think such a statute as this is valid and binding. (Newman v City of Emporia, 41 Kas. 583. See, also, in this connection, the cases of City of Emporia v. Norton, 13 id. 569; Mason v. Spencer, 35 id. 512.) All persons are at all times bound to take notice of a public statute, and what may be done under it. They are bound to take notice of the provisions of said § 20, and to know that under it all taxes or assessments coming within its provisions, and not void because ot some incurable irregularity, may be made valid by a relevy of the same. And further with regard to notice: The taxes levied in 1886 were levied by an ordinance of the city, regularly passed by the city council, approved by the mayor, and published in the official paper of the city, and of this ordinance all persons are bound to take notice; and this is also true with respect to the relevy of the taxes of 1887. This relevy was also consummated by city ordinances regularly passed, approved and published, all in August, 1887. But, before the taxes as relevied could become a fixed lien or charge upon' the plaintiff’s property, they would all have to be placed upon the tax-rolls of the county by the county clerk, and the tax-rolls would then have to be placed in the hands of the county treasurer; and the taxes would not even then become a fixed charge or lien upon the plaintiff’s property until November 1, 1887. The plaintiff, as well as all others, was required to take notice of these ordinances; and after their taking effect, and before the taxes could affect his property, he had ample time within which to commence an action or other proceeding to defeat or avoid such taxes. A notice given by ordinance is held to be valid and sufficient in the case of Newman v. City of Emporia, supra. The only difference necessary to mention between the curative statute cited in the Newman case and the one relied on in the present case is, that the curative statute cited in the Newman case was enacted between the time of the first levy and the time of the second levy, while the curative statute in the present case was enacted and in force a long time prior to either levy. This, however, we think, cannot be considered as a substantial difference. Both are general statutes, one applying to all cities of the second class and the other to all' cities of the first class, both to remain in force for all time, unless modified or repealed by subsequent legislation; and neither is in any respect a special or local statute. Indeed, neither could be a special or local statute and be valid under §§1 and 5 of article 12 of the constitution. Special legislation is not permissible under our constitution with respect to municipal corporations.
The judgment of the court below will be modified as follows: As to the water-works-contract tax, it will be reversed; and as to all the other taxes, it will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
Arthur Larkin sued the plaintiffs in error upon a promissory note of $100, due October 1,1885, and an account for $9.85. The defendants alleged that they constituted the firm of Perry Hodgden & Co., and that the plaintiff was indebted to them in the sum of $198.85, upon an account for merchandise purchased of them. The plaintiff insisted that most of the items of this account had been settled by crediting the same to the account of C. F. Clark, who, it was claimed, was a member of the firm of Perry Hodgden & Co.; and that these credits had been ratified by the defendants. The plaintiff obtained a judgment in the justice’s court, and the case was appealed to the district court of Ellsworth county, where it was again tried, and the jury returned a verdict in favor of the plaintiff for the sum of $.26.44.
It is claimed that this verdict is contrary to the evidence and the instructions of the court; that the special findings settled every fact in favor of the defendants, and, according to these special findings and the instructions of the court, they should have had judgment for the amount claimed, of $198. Obviously, the jury found for the plaintiff upon the theory that there had been a ratification by the defendants of these credits to Clark, by the plaintiff, upon his account. The court below instructed the jury that, if they should find from the evidence that the plaintiff had entered into a contract with C. F. Clark in good faith, believing Clark to be a member of the firm of Perry Hodgden & Co., or authorized to act for the firm, and that the goods for which the defendants claimed an offset were purchased of the firm by the plaintiff in accordance with that contract, and the contract was in any way ratified by Perry Hodgden, he would be bound by such ratification. With others, the jury returned the following special questions and answers:
“Q,ues. Was the arrangement by which the plaintiff applied the goods purchased from Perry Hodgden & Co. to the payment of the indebtedness of C. F. Clark to him made and entered into between C. F. Clark and Arthur Larkin? Ans. Yes.
“Q,. Did Perry Hodgden and Phoebe Hodgden know of the arrangement, if any was made, between C. F. Clark and A. Larkin, and did they consent to such arrangement? A. Yes, to a certain extent.”
Ratification is the controlling question in this case. The business of the defendants seemed to have been conducted by Perry Hodgden and Clark. Mrs. Hodgden was not consulted. It was agreed that two listers were to be credited on Clark’s account with the plaintiff, amounting to $70. It seemed to have been conceded upon the trial that the plaintiff owed the defendants $32 for a feed cutter; that when the plaintiff purchased a Studebaker wagon of the defendants, on the 15th day of October, 1886, for $60, the defendants owed the plaintiff $44.60 for merchandise, which would leave a balance due them on the wagon of $15.40. Other items were claimed by the defendants which, with those mentioned, amounted to over $100, which the jury evidently allowed them. The plaintiff, in his bill of particulars, asked judgment for $127.10. We cannot tell, from an examination of the evidence, just how the jury arrived at the verdict in this case, but there seemed to have been some evidence to support the special findings and verdict.
Perry Hodgden knew, on the 9th of April, 1886, that C. P. Clark had an account with the plaintiff, and consented that the two listers might be credited on that account. He also knew that the plaintiff purchased goods through Clark, from the firm of Perry Hodgden & Co., after that. The plaintiff testified that, when he purchased the Studebaker wagon, Hodgden told him to credit his account with the wagon, and assigned as a reason that Clark had been credited with some goods and he wanted his account credited with this wagon, and that he did so. Perry Hodgden testified that he talked to Clark about his selling the wagon to the plaintiff, and asked him if he took a note, and he stated that he did not; that he just charged it on the book; that Larkin said that Hodgden owed him, and that he would turn it on the account. The next morning after this conversation, he went to Larkin’s store and asked about Clark’s indebtedness to Larkin, and said that he then objected to Clark having credit for the wagon; and also admitted that he made inquiry as to where a road cart, which had been previously purchased, had been credited; but there was no evidence to indicate that he made any objection to its being credited to Clark. This road cart was bought in May, and the Studebaker wagon was charged to Larkin on the 14th of October; so Hodgden must have known of this transaction when he went to Larkin’s stpre to see about the wagon. It is true that the evidence is quite conflicting in this case, but we cannot say that there is no evidence to support the findings and verdict; and we do not feel justified in setting aside the judgment after it has received the sanction and approval of the trial court.
We recommend that the judgment 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 Ellsworth county, by F. N. Rossiter against the city of Ellsworth, to recover compensation for services performed by him at the request of the city in and about the construction of city water-works. A trial was had before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $681, and the defendant, as plaintiff in error, brings the case to this court for review.
The only question now presented is with reference to the sufficiency or insufficiency of the plaintiff’s petition. This question was first raised by a demurrer, the grounds of which are as follows: First, a defect of parties plaintiff; second, several causes of action are improperly joined; third, the petition does not state.facts sufficient to constitute a cause of action. These grounds of demurrer are the only matters now presented to this court for review, and while we think they are all untenable, yet we shall consider them separately and in their order.
I. The employment of the plaintiff was under a resolution of the mayor and council of the city, which reads, so far as is necessary to quote it, as follows:
“First, that John L. Bell, F. N. Rossiter and Charles J. Evans are hereby appointed and constituted a committee of three, for the superintending in every respect the construction and establishing of water-works in said city of Ellsworth, Kas., and said committee, or a majority thereof, shall have full power to do or perform all such acts and things as may be necessary and proper in and about the éreetion, operation, alteration and equipment of any water-works that may be commenced within this city during the year 1885, until the completion of said works and the acceptance thereof by the council of this city, and to make all necessary and proper contracts in and about the premises for the construction and erection of the same: Provided, That the committee shall not have power to bind the said city for the payment of any greater sum than the amount of bonds which may.be authorized by a vote of the citizens of said city for said purposes.”
No express contract was made with reference to the amount of the compensation which any one or any two or all of the members of tbe foregoing committee should receive. Indeed, compensation is not mentioned at all, either as joint or several ; but as any two of the committee had full power to do and perform any or all the things for which they were employed, it would seem that the compensation which one might be entitled to receive might be different from or greater or less than that which either of the others might be entitled to receive. In other words, a joint compensation to all, or an equal amount to each, might not be just. It would therefore seem that any compensation which might be allowed should be a several compensation, and not a joint one. They were not partners, and it does not appear that they had any interest in each other’s affairs. The portions of the statutes relating specifically to this question of the joinder of parties plaintiffs are §§35 and*37 of the civil code, which read as follows:
“Sec. 35. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.”
“Sec. 37. Of the parties to the action, those who are united in interest must be joined, as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff cannot be obtained, he may be made defendant, the reason being stated in the petition.”
Under these statutes, it is necessary that all the plaintiffs should have not only an interest in the subject-matter of the action, but also in obtaining the relief demanded. (Jeffers v. Forbes, 28 Kas. 174; McGrath v. City of Newton, 29 id. 364, 370, 371, and cases there cited.) Now, under the allegations of the present petition, and more clearly under the evidence as it was introduced on the trial of the case, the three members of the aforesaid committee were not entitled to a joint compensation. They were not partners, nor jointly interested “in obtaining the relief demanded,” nor were they entitled to an equal amount of the compensation to be paid, or an equal amount of “the relief demanded.” The plaintiff, Rossiter, did more of the work that was to be done and was done than was done by either of the other two, and he is therefore entitled to a greater amount of the compensation to "be paid therefor than either of the other two. And he is not interested in the compensation to be paid to either of the other two, nor is either of them interested in the compensation to be paid to him.
II. The next complaint is, that there were several causes of action improperly joined, though in the argument it would seem that the real complaint is that there were several causes of action stated in the petition which were not separately stated and numbered. There were certainly not several causes of action improperly joined. We are inclined to think that only one cause of action was stated in the petition; but even if there were more, still they were all such as might very properly be joined in one'petition under-the statutes; (Civil Code, § 83;) and the objection that there were several causes of action stated in the petition, which were not separately stated and numbered, cannot be raised or presented by a mere demurrer to the petition. (Civil Code, §89; Tootle v. Wells, 39 Kas. 454.) This objection was not raised or presented in any other manner than by demurrer.
III. The next ground of complaint is, that the petition does not state facts sufficient to constitute a cause of action; but the principal ground upon which this complaint is founded is that Rossiter by his employment, became a public officer, and, as no compensation for his services was agreed upon or pro vided for at anytime, he cannot now recover anything for his services. We think, however, that Rossiter was not a public officer within the rule that gives no compensation to a public officer except such as has previously been provided for by some lawful authority for the office which he fills. We think he might more properly be styled an agent or employé of the city for a specific work. And he was both an agent and an employé of the city. He was a civil engineer of large experience, and it was because of his knowledge and experience as a civil engineer that he was employed by the city to do the work required. In the case of David v. Water Committee, 14 Ore. 98, it was held by the supreme court of Oregon that a body of men consisting of fifteen, who were authorized to purchase or construct and maintain water-works in and for the city of Portland, and who were styled “ the water committee,” were not officers, but were only agents of the city. See also the following cases: Bunn v. The People, 45 Ill. 397; Butler v. Regents of the University, 32 Wis. 124, 131; United States v. Maurice, 2 Brock. (U. S. C. C.), 103; The State v. Wilson, 29 Ohio St. 349. But even if the committee in the present'case might be called “officers” in any sense, still we do not think that they were such officers as are required to perform services without compensation simply because no compensation for their services had previously been specifically provided for.
IV. It is also claimed that there were some irregularities in the appointment or employment of the plaintiff, Rossiter. In the case of Fister v. La Rue, 15 Barb. 323, 324, the following language is used by the court:
“It is well settled, at least in this country, that where a person is employed for a corporation, by one assuming to act in its behalf, and goes on and renders the services according to the agreement, with the knowledge of its officers, and without notice that the contract is not recognized as valid and binding, such corporation will be held to have sanctioned and ratified the contract, and be compelled to pay for the services, according to the agreement. Having availed itself of the services and received the benefits, it is bound in conscience to pay, and will not be heard to say that the original agreement was not made by a person legally authorized to contract.”
See also Butler v. Comm’rs of Neosho Co., 15 Kas. 178; Brown v. City of Atchison, 39 id. 37; Salomon v. United States, 19 Wall. 17; City of Cincinnati v. Cameron, 33 Ohio St. 336.
As all the services expected or desired of Bossiter and his associates have been fully and completely performed, and have been accepted and received by the city, we think the city is now under legal and moral obligation to pay for the same, whatever they are reasonably worth, and whatever irregularities may have intervened in the original employment. See also the following cases: Comm’rs of Leavenworth Co. v. Brewer, 9 Kas. 307; Huffman v. Comm’rs of Greenwood Co., 23 id. 281.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought in the court below by the widow and minor children of John Hazleton, deceased, against James G. Reed, executor of the last will of Henry Rieket, deceased, and other parties, to enforce an alleged contract for the conveyance of certain real estate, executed on the 9th of March, 1883, by John Hazleton and Henry Rieket. Henry Rieket died on the 15th of September, 1883. John Hazeltou died on the 9th of April, 1888. Upon the part of the plaintiffs it is claimed that, within the terms of the contract, Rieket was under obligation to make such provision by deed or will as would vest the title to the land in Hazleton; that the mere method or form adopted for this purpose cannot be held to be material, so that the intention of the parties is carried out; that it is the duty of the court to ascertain the intention of the parties with reference to the subject-matter of their agreement, when that can be done; that it was the intention of both Rieket and Hazleton that the land should become the property of the latter upon the former’s death, and, therefore, that the district court erred in sustaining the demurrer of the defendants, upon the ground that the petition did not state sufficient facts to constitute a cause of action. The written memorandum of the alleged contract was under consideration by this court in the case of Reed v. Hazleton, 37 Kas. 321. The facts of this case, together with a copy of the memorandum, are recited in full in the foregoing case, and need not be repeated here. In the former opinion handed down, it was said:
“ Under the view which we take of this instrument, it will be unnecessary to examine the nature of a contract of bargain and sale, and a covenant to stand seized to the use of the grantee, which are discussed in the briefs filed in this action. We believe that it ought not to be placed in either of those classes of conveyances. . . . This article of agreement does not contain any of the usual operative words of a conveyance, with the possible exception of this clause: ‘After the death of said Henry Ricket, of the first party, the right and title of the land in question shall vest in the said John Hazleton, of the second party.’ That provision has no present operation, and could be revoked by the grantor at any time. It was testamentary. . . . The old man wisely kept possession and control of his home, to prepare for the possible change in the feelings of himself and Hazleton. Hazleton was not without recourse if he had performed services for which he had not been paid. He could have presented his claim against the estate, and the courts were open to aid him in obtaining his dues.”
This disposes of the case. In Turner v. Scott, 51 Pa. St. 126, on the 22d of November, 1849, the father, John Scott, executed an instrument to his son, John W. Scott, purporting to convey his farm. The consideration for the execution of the instrument was the natural love'and affection which the father had for his son, and also an agreement from the son that he was to live with the father, assist him in his work on the land, and maintain the mother during her natural life, if she survived her husband. The instrument contained the following provisions:
“Excepting and reserving, nevertheless, the entire use and possession of said premises unto the said John Scott, and his assigns, for and during the term of his natural life; and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor.”
The son commenced to live with his father upon the land mentioned in the instrument, but after a time they quarreled. The father turned the son out, and on the 26th of February, 1861, made a will revoking the instrument executed to his son, which had been put upon record in the proper county. The chief justice of the court, in construing the written instrument from John Scott to his son, John W. Scott, said:
“We see nothing in the covenant of warranty to change our construction of the operative words of the grant. As these words were expressly limited to take effect only after the death of the grantor, they were necessarily revocable words. The doctrine of the cases is, that whatever the form of the instrument, if it vest no present interest, but only appoints what is to be done after the death of the maker, it is a testamentary instrument. It signifies nothing that the parties meant to make a deed instead of a will. If they have used language which the law holds to be testamentary, their intention is to be gathered from the legal import of the words they have employed, for all parties must be judged by the legal meaning of their words.”
In Leaver v. Gauss, 17 N. W. Rep. 522, (Supreme Court of Iowa,) Leaver and wife executed to Gauss an instrument somewhat in the form of a deed, but it was provided therein that it should take effect only after the death of himself and wife. It is claimed that a valuable consideration was paid therefor by Gauss. One of the provisions of the written instrument was, “That the grantee is to take no estate during the lives of the grantors.” In that case it was held that “A deed which recites, as one of its express provisions, that ‘the grantee is to take no estate during the lives of the grantors/ is testamentary in its character, and, even if consideration was paid for it, may be revoked; no present estate subject to a life estate being created thereby.”
In Sperber v. Balster, 66 Ga. 317, August Kohler executed a written instrument purporting to convey to Sophestina Sperber 650 acres of land, in consideration of services rendered him by Sophestina as a nurse. The instrument provided “ that it should have full effect at his death.”
The chief justice of the court said in that case: .
“It is wholly unnecessary to cite cases or invoke precedents in construing a paper like this, with a view to get at his meaning in respect to the time when he intended title, right, property, to pass out of himself into the object of his bounty. It is enough to lay down the universal principle embodied in our code, §2395, which is in these words: ‘No particular form of words is necessary to constitute a will; and in all cases, to determine the character of an instrument, whether it is testamentary or not, the test is the intention of the maker from the whole instrument, read in the light of the surrounding circumstances. If such intention be to convey a present estate, though the possession be postponed until after his death, the instrument is a deed; if the intention be to convey an interest accruing and having effect only after his death, it is a will.’ So reading this instrument, we construe it to be clearly a will; at all events, we all hold that such is the better legal view of it.”
In Kinnebrew v. Kinnebrew, 35 Ala. 628, it was decided that—
“An instrument under seal, in form a deed of gift, by which the grantor, in consideration of the natural love and affection for the grantee, who was his grandson, and the present payment of $5 by the grantee, conveys to the latter, by the words ‘do by these presents give and grant,’ a slave, ‘and $1,500 in cash, to be paid to him out of my (grantor’s) estate at my death, by my executor or administrator,’ held, a deed of gift as to the slave, but, as to the money, a purely-voluntary executory trust, which a court of equity would not enforce as an instrument inter vivos, but which was valid and operative as a will.”
On the part of the plaintiffs, counsel refer with great confidence to the case of Sutton v. Hayden, 62 Mo. 101. In that case, an arrangement was made by Mrs. Green with her brother to take his daughter, her own niece and godchild, and make her her heir at her (Mrs. Green’s) death. Subsequently, she promised that if the niece would come and live with her (Mrs. Green), and would be a daughter to her, and nurse and take care of her the remainder of her life, all that she had should be hers (the niece’s) at her (Mrs. Green’s) death. The niece, Nancy A. Sutton, accepted the offer, and, relying upon the promises of her aunt, entered into her service, and continued with her about fifteen years. Mrs. Green failed to make any deed or will, and died intestate. In that ease, the court held that a specific performance of the agreement of Mrs. Green could be compelled in equity, and that case is followed in several other Missouri cases. This case, however, is quite different from them in many particulars, especially in this, that Hazleton did not care for Ricket but a comparatively short time,— from the 1st of April, 1882, until the 15th of September, 1883, when Ricket died. By the express provisions of the article of agreement, Ricket was to retain during his life-time full and peaceable possession of all the land, and Hazleton was to live with Ricket — not Ricket with Hazleton — and Hazleton was to have no right or title in the land until after the death of Ricket. The provision in the article of agreement concerning the land in dispute was held by us in the former opinion to be testamentary only. We adhere to this ruling.
“ It may be laid down as a general rule that an instrument in the form of a deed, signed, sealed and delivered as such, if it discloses the intention of the maker respecting the posthumous destination of his property, and is not to operate until after his death, is a will and not a deed.” (19 Cent. L. J. 47.)
The difference between the cases cited in the former opinion, and the case of Sutton v. Hayden, supra, and other similar cases, is this: That in the former cases the courts seem to think that the grantees could have recovered for any claim or service which they could establish, without seeking relief in a court of equity. In the latter cases, the courts evidently proceeded upon the theory that the law furnishes no standard whereby the value of such services can be estimated, and equity can only make an approximation in that direction by decreeing the specific execution of the contract.
In the Sutton v. Hayden case, the niece gave for many years to the discharge of her manifold cares, down to the period of her aunt’s death, an unhesitating and unwearied tenderness and attention, which are only bestowed where affection prompts them.
In Barkweather v. Young, 4 Drew, 1, A, on the marriage of his daughter with B, agreed to leave his daughter an equal portion with his other children. Of course, in such a case, no compensation could be agreed upon or established, and equity alone could afford relief.
In Rhodes v. Rhodes, 3 Sandf. 279, the services therein contracted for could not and were not intended to be compensated with money, and were also incapable of computation by any pecuniary standard.
In this case, the services of Hazleton with Ricket were so brief — being only for about 18 months — that the value of the same could easily be computed.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Strang, C.:
This case was submitted to this court on briefs and oral argument, some time ago, and reversed. It is now here on a motion for a rehearing. When the case was before this court first, the question as to whether the plaintiff in error was privy to the judgment in the superior court of Shawnee county, in the case of Catherine Felitz v. The Topeka Water Supply Company, was not seriously argued, and did not receive the attention it was entitled to. The argument on the motion for rehearing made that the principal question in the case, and, considered in connection with the determination of the case in the superior court, the use made of the record in that case, and the trial of this case in the court below, we think it a very grave question. A careful examination of the question satisfies us that the contention of the defendant in error on this point is correct. The plaintiff in error is not privy to the judgment of the superior court in the case of Catherine Felitz against the Topeka Water Supply Company. (Freeman, Judg., § 162; Hunt v. Haven, 52 N. H. 170; Dickinson v. Lovell, 35 id. 16; Flanders v. Davis, 19 id. 139, 149; Starkie, Ev., 9th ed., *328.) The plaintiff in error had only a contingent, equitable interest in the land in controversy in said suit in the superior court. If that case had gone on to trial and judgment, and had been decided in favor of the Topeka Water Supply Company, Root would have taken nothing under his contract. If it had been decided in favor of Mrs. Felitz, that would have vested the title in her, and then the water company would have been ousted, and Root could have demanded specific performance of Catherine and Hugo Felitz. But the case did not go to trial and judgment in the superior court. The plaintiff in error contends that it was settled out of court, and was dismissed in pursuance of said settlement, and a new conveyance taken by the water company from Hugo and Catherine Felitz.
The plaintiff in error claims that the relation between himself and the water company, growing out of the settlement and dismissal of the case in the superior court, is that the water company was the purchaser under this last deed of the land in controversy from Hugo and Catherine Felitz, with notice of his rights under the contract of Catherine and Hugo Felitz with the plaintiff in error and J. W. Campbell. Now, while Root is not privy to the said judgment in the superior court, yet he had an undoubted right, in pursuance of his theory of the settlement and dismissal of said cause in the superior court, in an independent action for specific performance against the water supply company, as purchaser, with notice of his rights in the land in question, to introduce in evidence the record of the superior court to show that he had complied with the contract with Hugo and Catherine Felitz; and we think he had a right to further use said record as evidence, in connection with the parol testimony supplemental thereto and proof of the taking of a new deed by the company from Hugo and Catherine Felitz, to show a settlement of that case between the parties, whereby the company became at that time the purchaser of the land in question. Having introduced the contract under which he claimed, the record of the co'urt, and parol testimony supplemental thereto, to show a compliance on his part with the terms of the contract between himself and partner with Hugo and Catherine Felitz, the new deed taken by the company from Hugo and Catherine Felitz as a part of the alleged settlement, the lease executed by the company back to Hugo and Catherine Felitz? proof of the value of said lease, and the payment of $390 in cash by the company to Hugo and Catherine Felitz at the time of said alleged settlement, it seems to us that the plaintiff in error showed such a prima facie ease as, unexplained by any evidence on behalf of the defendant in error, entitled him to have it submitted to the jury. The defendant in error, in connection- with its motion for rehearing, suggests that the opinion heretofore filed in this case holds that the judgment of the superior court is res adjudieata of the allegations of the petition in the case in that court, to the effect that the land in question was a homestead, that Catherine Felitz was insane when she executed the deeds of 1881 and 1882 to the water company, and that her reason was restored to her before she signed the contract under which plaintiff in error claims, in February, 1886. This court did not intend to settle any question in the opinion heretofore filed, except that the plaintiff in the case below had made such a prima facie case as entitled him to a hearing before a jury. But, as we now hold that the plaintiff in error is not privy to the judgment in the superior court between Catherine Felitz and the water company, the defendant in error will not be embarrassed by anything growing out of any privity of relation on the part of Root with said judgment; and the plaintiff in error will be put' on notice that, in a new trial, he must prove the allegations of his petition by such evidence as will satisfy the court and jury.
It is recommended that the motion for rehearing be denied.
By the Court: It is so ordered.
Valentine and Johnston, JJ., concurring.
Horton, C. J.: I have serious doubts about the decision in this case, but as a new trial is to be had, permitting the parties to litígate pro and con every question involved in the pleadings without any prior order or judgment being conclusive or res adjudie'ata, I cannot perceive that the result reached can be prejudicial or harmful in any way.
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Opinion by
Strang, C.:
This was an application by the taxpayers of sewer district No. 1, Arkansas City, for a temporary injunction, made before the district judge of Cowley county, at chambers, to enjoin the defendant city, and the mayor and clerk thereof, from making and collecting certain assessments against the property of the plaintiffs in payment of bonds which it is alleged were about to be issued to pay for the construction of a system of sewers in said district, and to enjoin the said city, and the mayor and clerk thereof, from issuing said bonds to pay for said sewer; and to enjoin the defendants Andrews and Quigley from obtaining, or attempting to obtain or negotiate, such bonds. The application for the injunction was made on the 1st day of August, 1890, and the petition, among other things, alleged that the mayor and council of the city of Arkansas City had attempted to create within said city a sewer district known as “Sewer District No. 1,” and had let a contract to M. L. Andrews, or to M. L. Andrews for J. B. Quigley, for the construction of a system of sewers in said sewer district; that the said contractors did not comply with the terms of the contract in the construction of said system of sewers, but constructed said sewers in such a negligent, careless, unskillful and unworkmanlike manner as to render them useless and of no value to said city; that the defendant city, and the officers thereof, unlawfully threaten to and are about to issue bonds for said work to defendant Andrews; that the defendant Benedict, clerk of said city, is about to certify the amount found due and assessed against the property owned by these plaintiffs to the county clerk, for the purpose of being spread upon the tax-rolls of said county. The application was heard by the judge at chambers, a demurrer to the petition was overruled, and a temporary injunction allowed as prayed for. The plaintiff herein objected to the order allowing the temporary injunction, and comes here with his case-made and asks this court to review and reverse the order of the judge allowing said temporary injunction.
The first question is raised by a challenge to the jurisdiction of this court. It is asserted that an order of a judge at chambers allowing a temporary injunction is a mere interlocutory order, and may not be reviewed by this court before final judgment. This question involves an examination of the following sections of our statutes. Section 237 of the code provides as follows:
“The injunction provided by this code is a command to refrain from á particular act. It may be the final judgment in an action, or it may be allowed as a provisional remedy, and, when so allowed, it shall be by order.”
The judgment in this case is clearly not the final judgment in the action. It was allowed by a judge at chambers, and is by said judge declared to be a temporary injunction. It is not, and could not be, a final judgment in an action, because a judge at chambers could not render a final judgment, and because the action is still pending in the district court, and no final judgment has ever been rendered therein. Not being a final judgment in a case, it follows from the section of the statute above quoted, that it was allowed as a provisional remedy. Does any statute of our state permit an appeal from an order allowing an injunction as a provisional remedy? It is conceded that, if an appeal lies from such an order, it is by force of some statutory provision. Section 542 of the code reads as follows:
“The supreme court may reverse, vacate or modify a judgment of the district court, for errors appearing on the record; and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The supreme court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, a final order. Sec ond, an order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction; that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee; or that sustains or overrules a demurrer. Third, an order that involves the merits of an action, or some part thereof.”
The contention of the defendants in error is, that the injunction mentioned in the above section, and from which an appeal may be taken under the provisions thereof, .is the final judgment in the action, and that there is no other provision for an appeal from an injunction, and therefore no appeal from an order allowing an injunction as a provisional remedy. We do not think siich contention is supported by a fair construction of the whole section.' The first part of the section provides, that “ the supreme court may reverse, vacate or modify a judgment of the district court” — that is, the supreme court may reverse, vacate or modify any final judgment of the district court, which includes the final judgment in an injunction proceeding as much as the final judgment in any other kind of an action. This part of the section, then, provides for the reversal, vacation or modification of an injunction when such injunction is the final judgment in an action. Further along in the section it provides that “the supreme court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, a final order. Second, an order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction” — that is, an order that grants an injunction. An injunction allowed by an order is a provisional remedy. It is not allowed by an order when it is a final judgment. It is clear to us that the injunction mentioned in this section is an injunction employed as a provisional remedy; an injunction allowed by an order of the court, or a judge thereof. (See also Bridge Co. v. Comm’rs of Wyandotte Co., 10 Kas. 326; Challiss v. City of Atchison, 39 id. 276; Snavely v. Buggy Co., 36 id. 106.)
In this last case, Judge Valentine, writing the opinion, says:
“With reference to all provisional remedies, except injunctions, the-statute uses only the words ‘discharges/ ‘vacates’ and ‘ modifies.’ Hence, as the statutes show, it was clearly not the intention of the legislature that an order of the district court granting, refusing, confirming or sustaining a provisional remedy, except as to injunctions, should be reviewed in the supreme court prior to the final judgment in the case; nor was it the intention of the legislature that an order ‘involving the merits’ of a provisional remedy, except as to injunctions, should be reviewed by the supreme court prior to such final judgment, unless such order discharged, vacated or modified the provisional remedy. The legislature had the whole subject of the reviewing of judgments and orders under consideration, and evidently, from the language used, it did not intend that an order granting, refusing, confirming or sustaining any provisional remedy, except am, injunction, should be reexamined by the supreme court prior to the final judgment.”
While the question of an appeal from an order allowing an injunction as a provisional remedy was not involved in the case under consideration at the time, Judge Valentine seems' to have considered the whole subject of review of judgments and orders, and, among other things, to have concluded that the statute authorized the review of an order of the district court or judge thereof allowing an injunction as a provisional remedy,-yet we think his construction of the statute in that regard the proper one to put upon it, and therefore we say that an order of the district court or judge thereof allowing an injunction as a provisional remedy may be reviewed by this court without waiting for a final judgment in the case.
This case being properly here for review, we will next consider the question raised by the demurrer to the petition, which was overruled. The demurrer, among other things, alleged that said petition failed to state facts sufficient to constitute a cause of action against the defendants. This branch of the demurrer challenged the petition generally, and.therefore, if for any reason the petition failed to state a cause of action, it was error to overrule the demurrer thereto. Under the law. as enunciated in the case of Bridge Co. v. Comm’rs of Wyandotte Co., 10 Kas. 326, followed in the case of Challiss v. City of Atchison, 39 id. 276, this case seems to have been prematurely brought. In the former case it was held, that before an injunction can be granted to restrain the levying or collection of a tax, some step must be taken by the taxing officers toward the levying or collecting of the same. The language of the petition in that case, so far as it relates to the particular question now under consideration, is similar to the language of the petition in this case. The petition in that case says:
“ That said defendant is about to issue bonds of said county, and is about to cause to be levied a tax upon the taxable property of said county to pay interest upon said bonds.”
In the present petition the allegations are:
“That the defendant city and the officers thereof unlawfully threaten and are about to issue bonds for said work to M. L. Andrews, and that the clerk of said city is about to certify the amount found due and assessed against the property of the plaintiffs to the county clerk, to be spread upon the tax-rolls.”
In the last case above cited it is said: “It is the levy, collection or proceeding to enforce an alleged tax, charge or assessment that may be enjoined.”
In this case, as in that, the petition does not allege “either a levy, collection or proceeding to enforce” the alleged tax, charge or assessment, but it does allege that the city threatens and is about to issue bonds, and is about to certify the assessment against the property of the plaintiffs to the county clerk, to be placed upon the tax-roll of the county. The plaintiffs could not be hurt until a levy was made, or some attempt is being made to collect the tax assessed against the property. There are many other questions in this case, but as to all of them we express no opinion.
It is recommended that the order of the judge allowing the injunction be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion'of the court was delivered by
Benson, J.:
This is an action by a mortgagee to recover the proceeds of a sale of mortgaged personal property made by the mortgagor.
The -material facts found by the district court are that on October 16, 1909, John Herzog borrowed $512 from the defendant, for which he gave his promissory note secured by a mortgage upon horses and other personal property. On November 8, 1910, he borrowed $162.75 from the plaintiff, and secured the payment by his promissory note and a mortgage upon several horses, including a certain sorrel horse. Both mortgages were promptly filed in the office of the register of deeds. On April 20, 1911, Herzog sold the sorrel horse to an unknown buyer for $190, receiving a bank check for that amount. The defendant thereupon demanded and received the check from Herzog to apply on his note and mortgage, and so applied it without any notice of the plaintiff’s mortgage other than that imparted by the record. The district court found that the defendant’s mortgage did not contain a sufficient description of the sorrel horse in question, excluded the mortgage from evidence, and concluded as matter of law “that, inasmuch as the defendant applied the one hundred and ninety dollars upon a preexisting debt he is entitled to recover in this action.”
The plaintiff contends that the conclusion of law was erroneous; that the identical fund arising from the sale of the mortgaged property having been traced to the defendant is subject to the lien of the mortgage. The law is otherwise. A mortgagee can not pursue the proceeds of a sale of mortgaged personal property, made by the mortgagor, and received and applied by his creditor in good faith in payment of a valid debt, where the person so receiving the proceeds has no knowledge of the mortgage and is not chargeable with any notice of its existence. (Burnett v. Gustafson, 54 Iowa, 86, 6 N. W. 132; 2 Cobbey on Chattel Mortgages, § 636.)
Section 5224 of the General Statutes of 1909 provides that a chattel mortgage shall be void as against creditors of the mortgagor and as against subsequent mortgagees and purchasers in good faith unless deposited in the office of the register of deeds. The creditors referred to in this statute are only those having some specific lien upon or interest in the mortgaged property; mere general creditors are not embraced in this designation. (Youngberg v. Walsh, 72 Kan. 220, 83 Pac. 973.) The record of a chattel mortgage imparts constructive notice to such persons only as would have been entitled to protection against the conveyance or mortgage in case it had not been recorded. (Greer v. Newland, 70 Kan. 315, 78 Pac. 835; 24 A. & E. Encycl. of L. 146.)
The defendant’s mortgage having been held insufficient and excluded from evidence need not be considered in the transaction, but the indebtedness remained, upon which the defendant as a mere general creditor of the mortgagor (in the plaintiff’s mortgage) could rightfully ask and receive payment, in the absence of any fraud, collusion or sinister purpose. This result follows necessarily from the principles decided by this court in the cases cited. (See, also, Drumm v. Bank, 65 Kan. 746, 70 Pac. 874.)
As the defendant received and applied the money in good faith upon a valid debt without knowledge of the plaintiff’s mortgage no liability is established against him.
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The opinion of the court was delivered by
Porter, J.:
The city sued the board of education to recover certain special assessments levied against school property for improvements, including pavements, sewers and drainage. The defendant demurred to the petition; the demurrer was overruled. Electing to stand upon its demurrer the defendant appeals.
The principal question, as we view it, is whether property held by the school board for school purposes is subject to the payment of special assessments. The defendant prefers to state the question in the follow-in form:
“May a city amerce its own property by special assessments in contravention to a legislative inhibition providing that no property held by a school board for a city, ‘shall be taken in any manner for any debt due from the city’ or may a man sue himself ?”
The defendant apparently starts with the assumption that special assessments levied upon property benefited is a tax and that the action is in conflict with the constitution and the statutes. The constitutional provision is:
“The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, . . . shall be exempted from taxation.” (Art. 11, § 1.)
The statute declares “all property held by the board of education for the use of public schools shall be exempt from taxation, and shall not be taken in any manner for any debt due from the city.” (Gen. Stat. 1909, § 7579.)
Since Hines and others v. The City of Leavenworth and others, 3 Kan. 186, this provision of the constitution has been held not to apply to special assessments. See cases and authorities cited in Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 Pac. 788, where it was held that a city of the second class has the power to levy special assessments for improvements of a street in front of a courthouse square in the city, and this without the consent of the board of county commissioners, and where a claim for such improvements is disallowed the district court may allow it on appeal and the judgment must then be paid as other judgments against' a county. In the case of Jefferson County v. Oskaloosa, 80 Kan. 587, 102 Pac. 1095, the county was held liable for the payment of an assessment levied by the city for the cost of paving and curbing streets abutting on the public square.
The language of the statute which declares that property held by the board of education shall not be taken in any manner for any debt from the city has no bearing upon this question. By this action to recover the costs of the special assessments the property of the school board is not sought to be taken in any manner. On the contrary, the purpose is to hold the school board for the debt due to the city from the board. The language of the statute was intended to prevent a creditor of the city from taking property belonging to the school board to satisfy his debt. No property held by the school board is to be “taken.” The formal assessment of the costs of the improvements against the property is merely a convenient and the only method for ascertaining the amount which the board shall pay. The school property is not subject to sale to satisfy the judgment; that will be provided for by a levy made by the board upon all property subject to taxation within the school district.
The contention that there is an implied exemption of property used exclusively for certain purposes from liability to special assessments for local improvements has been decided against the defendant in the Franklin county case, supra. In fact, the precise question involved here was touched upon by way of argument in the opinion in that case, where the court used this language:
“We do not think that the phrase in ¶ 790, Gen. Stat. of 1889, concerning ‘the taxable property chargeable therewith’ restricts a city from levying special assessments or taxes upon public grounds, because, if construed as is claimed by counsel for Franklin county, then all the property used exclusively for literary, educational, scientific, religious, benevolent and charitable purposes will also be exempt from the levy or payment of special assessments or taxes. This is contrary to the general view held by the profession, and is opposed to the practice prevailing in the cities. While such property is exempt from taxation, under § 1, article 11, of the constitution, it is not exempt from special assessments or taxes for the improvement of streets or sidewalks.” (p. 756.)
A large part of the argument of counsel rests upon the false assumption that the board of education is the city of Wichita, and that they are not separate and distinct entities. The school district in all cities of the first class may, and very frequently does, extend to property lying outside the city limits. Such property may be attached to the city for school purposes, and when so attached “compose a part of such city for school purposes only, and the taxable property of such adjacent territory shall be subject to taxation and bear its full proportion of all expenses incurred in . . . maintaining the schools of said city.” (Laws 1911, ch. 93, § 1.) Nor does the fact that the board holds the title to school property as trustee'prevent it from being sued to recover the assessments. The title to church property and that owned by literary, scientific and benevolent societies is usually held in the same manner, but the property is not exempt from such assessment.
Every contention raised by the defendant has been settled and determined against it by the decisions to which we have referred. The demurrers were properly overruled, and the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
E. D. Draper brought an action against Edwin L. Miller, seeking to enforce a subcontractor’s mechanic’s lien for plumber’s work and material. He recovered a judgment, and the defendant appeals.
The present action was not brought within a year after the filing of the lien statement. But within that time an action was brought seeking to foreclose the lien, which was dismissed without prejudice, and the present action was begun within a year after such' dismissal. At the time the account sued on accrued a city ordinance required the payment of an occupation tax by persons pursuing various callings, including that of a plumber. The engaging in business without the payment of the tax was designated in the ordinance as a misdemeanor, and was made punishable by a fine of not more than one hundred dollars. At the time the plaintiff did the work and furnished the material sued for he had not paid such tax. After his first action was dismissed and before the second one was begun he paid the tax, and a new ordinance was passed purporting to pardon all violations of the original law and to remit all penalties thereby incurred by persons who had in the meantime made such payment. The mayor also undertook to grant a specific pardon to the plaintiff. The defendant maintains: (1) that as the ordinance forbade the plaintiff to transact business as a plumber without paying his tax his act in fitting up the defendant’s house was illegal and no recovery for it can be had; (2) that the subsequent ordinance and the pardon granted by the mayor can not give validity to the act and can not confer a right of recovery; and (3) that if a recovery is authorized by virtue of the new ordinance and the pardon the first action was not upon the same cause as the second, and the provision of the code (Civ. Code, § 22) authorizing another suit within a year where there has been a failure otherwise than on the merits has no. application.
In Yount v. Denning, 52 Kan. 629, 35 Pac. 207, it was held that one doing business without having paid an occupation tax required by an ordinance similar to that here involved could not recover for his services in that connection. That doctrine has been subsequently applied (Mayer v. Hartman, 77 Kan. 788, 90 Pac. 807), although it has been subjected to some criticism (Fossett v. Lumber Co., 76 Kan. 428, 430, 92 Pac. 833; Manker v. Tough, 79 Kan. 46, 53, 98 Pac. 792). The legislature, of course, has power to give such an effect to the nonpayment of an occupation tax. The question whether it has done so is one of statutory construction. (Note, 1 L. R. A., n. s., 1159; Note, Ann. Cas. 1912 D, 378.) The Kansas cases above cited place an interpretation on oúr own statute, and as no amendment has been made thereto the legislature must be deemed to have acquiesced in the construction adopted. We are constrained to follow the actual decisions already made, but think the rule announced should be restricted as much as is consistent with that principle. The ordinance involved does not forbid one to engage in business as a plumber until he has passed an examination or otherwise proved his competency. Its conditions can be fully met by any one who pays the specified tax. The so-called license which is issued is in effect nothing but a receipt for such payment. The case of the merchant or mechanic who does business while his tax is unpaid is not closely analogous to that of one who engages in a traffic which for some public purpose is altogether forbidden, or permitted only to a restricted class who have met some prescribed condition. The distinction suggested is recognized as a just basis of classification.
“The test whether an unlicensed person can enforce his contracts made in the line of vocation or trade required to be licensed under penalty is apparently whether the license law was enacted merely to obtain a revenue without restrictions upon the class of persons from whom it was to be derived, or whether, besides or altogether, it was designed to protect the public from imposition by ignorance or dishonesty. In the former case the penalty is sufficient to secure the revenue, — is an ample substitute for the license fee; in the latter case nullification of the contract is a necessary consequence.” (Note, 12 L. R. A., n. s., 613.)
In accordance with our prior decisions we hold that one who in violation of the ordinance continues in business while refusing or neglecting to pay the tax can not ordinarily maintain an action upon a claim growing out of such business. But we think this consequence must be regarded as a penalty laid upon the delinquent to encourage the prompt payment of taxes, and should be treated as a mere personal disability. The act is not to be classed as so far criminal or unlawful that no legal right can be founded upon it. The city council, authorized by the legislature, ordains that he who does business without paying his tax shall be incapable of enforcing a contract made under such conditions. This is a part of the penalty of his dereliction. In that view of the case there is no difficulty in saying that the public, through its ministers, may remove the disability — that this is merely forgiving a part of the penalty. Here the plaintiff paid his tax, and an ordinance was passed undertaking to grant him a full pardon for the delay. This was, in effect, a pardon by the mayor, with the consent of the council, which the statute permitted. (Gen. Stat. 1909, § 941.) The effect of a pardon is to remit all penalties and relieve the individual from1 all the legal consequences of his dereliction. (29 Cyc. 1566.) The new ordinance may be regarded as an amendment of that previously passed, extending the time of payment, and restoring capacity to those who, although originally in default, had subsequently made payment. The situation is similar to that of which this language was used:
“The State, for purposes of its own, denied to him who violated its revenue law the right to enforce any contract he made in reference to the business unlawfully carried on. It was competent for the State to remove the disability it had imposed and to permit contracts not before enforceable because of this disability to be enforced. The State may not make contracts between individuals, it is true, but when individuals have themselves made contracts not enforceable only because of some obstacle the State has interposed, the power which created the barrier may remove it at any time before it has become res judicata between the parties. Until then there cannot be said to be a vested right beyond the reach of legislative interference.” (Phenix Insurance Co. v. Pollard, 63 Miss. 641, 664.)
We conclude that by virtue of the subsequent action of the mayor and council the plaintiff was enabled to maintain an action against the defendant. We also think that the bringing of the first action prevented the running of the statute of limitations, notwithstanding that while it was pending the plaintiff had no legal right to maintain it. It was based upon the same cause of action as that subsequently sued upon, and it failed “otherwise than upon the merits” within the meaning of the statute. (Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22.)
The court found, upon sufficient evidence, these facts, among others: When the original contract was negotiated between the defendant and Preston Brothers, the contractors, the price agreed upon was $1875. Miller undertook to reduce the agreement to writing, and prepared two copies, which were executed by both parties, each retaining one. That retained by the defendant specified the amount as “eight hundred and seventy-five dollars.” . That retained by Preston Brothers as originally written (with a purple copying pencil) read in the same way. But .before it was executed an addition was made with ah' ordinary lead pencil to the word “eight,” so that it bore a fair resemblance to the word “eighteen.” The defendant maintains that while the petition asked a reformation of the written contract so as to make it read “eighteen hundred and seventy-five dollars,” the allegations did not justify that relief. We hardly think the question- of pleading on this point is important. The writing prepared by the defendant and held by Preston Brothers seemed to read “eighteen,” the evidence abundantly supported the finding that it was so intended, and the fact that the copy retained by the defendant did not conform to the agreement does not seem sufficient on any theory to defeat the enforcement of the actual contract.
It is contended that the trial court erred in rendering a judgment upon an instrument which showed upon its face a material alteration. There was positive testimony that the writing was in the same condition when executed as when produced at the trial. The question was one of fact, and we see no reason to set aside the finding of the trial court.
After the plumbing was nearly completed a dispute arose as to whether the contract price was $1875 or $875, the defendant maintaining the latter. In view of this the plaintiff, by direction of Preston- Brothers, quit work. The defendant asked an allowance for damages thereby occasioned. Inasmuch as he refused to be bound by what has been determined to be the actual contract of the parties, he is not in a position to complain because the contractors refused to proceed further under it.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
This action involves the construction of the will of Frederick Koenig, a resident of Wichita, who died on the 6th of April, 1910.
The testator was married twice. His first wife was the widow of his brother. When he married her she had three children, Nicholas Koenig, a son, Elizabeth Kassel (neé Koenig), a daughter, Mary Newman, (neé Koenig), a daughter, all of whom aré living. To the testator and his first wife, widow of his brother, there were born seven children; Edward Koenig, Frederick Koenig, Christina Lanterman (neé Koenig), Roseina Morehouse (neé Koenig), Emma Prigmore (neé Koenig), Adolph Koenig, and .Susie Flynt (neé Koenig), deceased, .who left a daughter, Bulah Flynt, surviving her.
The first wife died and the testator married another widow by the name of Myers. By this wife he had two children, Albert Koenig and Henry Koenig, and she had five children by a former husband: Louisa Tool (neé Myers), John Myers, Charles Myers, A. F. Myers and Carrie McBride (neé Myers).
Thus the testator at his death left surviving three groups of children and stepchildren: First, three stepchildren, children of his first wife; second, seven children of his own by his first wife, and a granddaughter, child of a deceased daughter; third, two children of his own by his second wife, and five stepchildren, children of hers.
After revoking all other wills the will reads as follows, omitting the parts about which there is no controversy :
“As to my worldly estate and all the property of which I shall die seized and possessed, or to which I shall be entitled, at the time of my decease whether real, personal or mixed, in my name, I devise, bequeath and dispose thereof in the manner following, to-wit:
Imprimis.
“My will is that all my just debts and doctor bills if any, and funeral charges shall by my executor hereinafter named, be paid out of my estate as soon after my decease as shall by him (them) be found convenient.
“Item 1st.
■ “To my beloved children I give and bequeath, in equal shares to each share and share alike, if there is so much left, after my death. I give and will, Thirty Five Hundred Dollars, ($3500.00) to my children herein named, Edward Koenig, Adolph Koenig, Albert Koenig, Mary Newman, born Koenig, Christina Lanterman, born Koenig, Roseina Morehouse, born Koenig, Emma Prig-more, born Koenig, also my Grand-daughter, Bulah Flynt, all the above named, equal shares of the above amount of money, if there is so much left.
'“Item 2nd.
“If over the above amount, Second shares comes to my Son, Frederick Koenig, and Henry Koenig with, the .above described children, equal shares of the second part.
“Item 3rd.
“To my step-son Nicholas Koenig and my stepdaughter, Elizabeth Kassel born Koenig, I give and bequeath, $1.00, One dollar, apiece for both of them while each of my own children get, $4.00 Four Dollars, each. My ■ step-children to get $1.00 one Dollar from every $5.00 Five Dollars of the second share.
“Item 5th.
“In case of my Grand-daughter’s death, if she leaves no children her share of my property, is to be divided, equal shares to my children herein named, heirs of my hody begotten.
“Item 6th.
“I desire and direct that the executor hereinafter named shall in one year after this my last will and testament is probated sell all my real and personal property of which, I may be possessed at the time of my decease or to which I am entitled at that time, to the Highest bidder, and convert the same into money, if two are against one of my children herein named, are satisfied to have said property sold to the Highest bidder.” '
At the time of his death the entire estate of the testator consisted of cash on hand, $1068.85, and real estate of the appraised value of $14,850.
The will is written on four sheets of paper, each' signed at the bottom by the testator. From a photographic copy which appears in the record it is apparent that it was drawn by a scrivener, who1, like the testator, was a German, and who evidently had scant knowledge of the effect of legal phrases as well as of the rules of punctuation. A period is placed after each proper name; others are used without any discrimination, as appears frdm the following excerpts:
“Also my. grand-daughter, Bulah. Flynt.”
“Second shares comes to my. son. Frederick. Koenig., and. Henry. Koenig.”
It is quite obvious, therefore, that in construing the will little aid can be gathered from the punctuation.
The district court rendered a judgment which includes certain findings of facts and conclusions of law. The court finds that the following are,the children of the testator: Edward Koenig, Frederick Koenig, Henry Koenig, Adolph Koenig, Albert Koenig, Roseina More-house, Christina Lanterman, Emma Prigmore.
His grandchild is Bulah Martin, neé Flynt.
His stepchildren, who are the children of his own brother, are Nicholas Koenig, Elizabeth Kassel and Mary Newman. In addition to these he left five step children, children of his second wife. ' From the opinion of the trial court we quote as follows:
“The whole tenor of Frederick Koenig’s will indicates that for the purpose of making his will, he considered his property as money, and with this thought in mind he disposed of it as if it was money. He divides his property into two parts, the first part consisted of $3,500.00 and the second part consisted of the residue of his estate. The sum of $3,500.00 he divides equally among Edward Koenig, Adolph Koenig, Albert Koenig, Mary Newman, Christina Lanterman, Roseina Morehouse, Emma Prigmore and Bulah Flynt. Mary Newman is a step-child and Bulah Martin, nee Flynt, is a grand-daughter. The other beneficiaries named in Item One are his own children.
“He speaks of all these beneficiaries as being his children although as stated, Mary Newman is a stepchild and Bulah Flynt is a grand-daughter.
“Under the second Item of the will he gives the second part or residue of his property to his sons, Frederick and Henry Koenig and the above named children in equal shares. The devise in the second Item is a complete devise as to the residue of his estate, and if there was no modification of this item by other items of the will, it would dispose of all the residue of his property after bequeathing the $3,500.00. Having spoken of all the legatees under Item One of his will as his children, and having included his step-child, Mary Newman, and his grand-daughter, Bulah Flynt, in this list of his children, and having in Item Two referred to them as ‘the above-described children,’ it was evidently the intention of the testator to include Mary Newman and Bulah Flynt as beneficiaries under Item Two of his will and I so construe the will and hold that Mary Newman and Bulah Flynt are to be considered as beneficiaries with the rest of his children under Item Two. . . . I would have no doubt that this was the testator’s meaning if in Item Three, which is to be construed together with Items One and Two, he had not -used the words, ‘my own children.’
“Though under Item Two he disposes of all the residue of his property in equal shares to the beneficiaries therein named, nevertheless, the devises and bequests in Item Two are modified by the devises and bequests in Item Three. The parts given to the beneficiaries in Item Two are diminished by such parts as he gives to his step-children, Nicholas Koenig and Elizabeth Kassel. ... In my opinion the expressions One Dollar and Four Dollars are intended to mean not so much money, but the proportions into' which he has divided the residue of his estate. Therefore, the words, One Dollar, mean one part and the words, Four Dollars, mean four parts. As I construe the third item of the will he gives to Nicholas Koenig and Elizabeth Kassel together One Dollar or one part for every time that he gives to each of his own children Four Dollars or four parts. ... In other words, his two step-children together get One Dollar or one share out of every Five Dollars or every five shares, that is, they together get one-fifth of his estate after paying the bequest of $3500.00.”
The court held that by reason of the failure to exercise the conditional power of sale the real estate is to be treated as real estate and should be partitioned among the beneficiaries under the first, second and third items, and that moneys in the hands of the executor subject to distribution after paying debts and costs of administration should be applied to the payment of the $3500 mentioned in the first item of the will, and the residue of the $3500 should be made up from the proceeds of the sale of real estate.
There are a number of seeming inconsistencies in the will so that it can not be said that its construction is plain or that the intent of the testator can be easily determined. Taking the language of the entire will and considering it together we believe the court gave to it the most reasonable construction and arrived at what appears to us to have been the intent of the testator. We therefore adopt the construction of the learned trial court and the reasoning on which it is based.
In the opinion the court refers to other possible constructions that might be given to items two and three so as to exclude the stepdaughter Mary Newman and the granddaughter Bulah Flynt from the list of beneficiaries therein on account of the use of the words “my own children” in item three,, but calls attention to the fact that elsewhere in the will where the testator wishes to distinguish between his own children and his stepchildren, as in item five, he uses the words, “heirs of my body begotten.” The court found the most difficulty in the construction of item three, and held that the will would be comparatively easy of construction except for some inconsistent expressions found in that item.
In the briefs of the various parties there is considerable controversy over the construction of the third item of the will. In our view it was and is a matter of no importance what construction is given to this item. This brings us to a consideration of a part of the judgment in which we think the court committed error. It was alleged in the petition that the stepchildren, Nicholas Koenig and Elizabeth Kassel, who are the only ones specifically named in the' third item, had prior to the commencement of the action made a full settlement with the executors and that each had been paid the sum of $200, and had executed a release of all claims under the will. The following is a copy of the release signed by Nicholas Koenig, which is substantially the same as the one signed by Elizabeth Kassel:
“$200.00 Augusta, Kans., May 31, 1910.
“Received of Edward Koenig, Albert Koenig executors of the estate of Frederick Koenig Two Hundred Dollars in full payment of my distributive share of the estate of Frederick Koenig in consideration of which we hereby release all claim under the will of the said Frederick Koenig.”
In their answers Nicholas Koenig and Elizabeth Kassel admit the execution of the releases and the payment of the money mentioned therein, but allege that they were obtained by fraud and misrepresentation. Neither of them testified at the trial, and no attempt was made to prove that the releases were not freely and fairly executed. The only evidence with respect to the matter shows that they were drawn by the then counsel of these two appellees and were approved by the probate court. The district court, however, held as a matter of law that the releases are not binding, but are void under the statute of frauds for the reason that they do not name any grantee and fail to describe real estate. It is true that the releases refer to the distributive share, a term used in reference to personal property to be distributed by the probate court, but we think the trial court was right in that part of the opinion in which it was held that the testator’s intention and purpose was to treat his entire estate as money, and that it was intended that the real estate should be sold and the proceeds distributed. Independent of this consideration, however, the releases were made to the executors who represented the estate, and the appellees therein expressly released all claim under the will. It was not necessary that the releases describe real estate nor that they mention the name of a grantee. They released all claims under the will, and having been fairly made and freely entered into they are binding upon the appellees. (18 Cyc. 1093; Thornton et al. v. Mulquinne, 12 Iowa, 549, 79 Am. Dec. 548.) While we think the trial court arrived at the most reasonable construction of item three, the execution of the releases does away with any necessity for attempting to reconcile the seeming inconsistent expressions in that clause of the will.
The principal complaint of the appellants is that the .lower court gave undue importance to the third item, and that the first and second items show “a clear, exact, definite and complete disposition of all of the property of the testator.” They therefore rely upon the doctrine of McNutt v. McComb, 61 Kan. 25, 58 Pac. 965, and Holt v. Wilson, 82 Kan. 268, 108 Pac. 87, that where there is a clear devise of land in fee simple it can not be limited and cut down by doubtful expressions in a subsequent portion of the will. We can not agree with counsel that the first and second items show a clear intention of making a complete disposition of all the testator’s property, and therefore the doctrine of the cases cited can have no application. The appellees Frederick Koenig and Henry Koenig were plaintiffs below, and they contend for a construction which differs from that made by the lower court and also from that argued by appellants. They contend that items two and three and the $8500 in the first item relate only to actual money on hand at the testator’s death, and that the various divisions provided for in these items were not intended to apply to real estate. They rely to some extent on the expression, “if there is so much left,” which is used in the first and second items. There is, however, no place in the will where the testator attempts to make a specific or general division of his real estate. In the sixth item he directs the sale of his property, real and personal, for the purpose of converting it into money.
The construction contended for by the cross-appellants, who are testator’s own children, is that the following portions of the will control the disposition of all the real estate:
“As to my worldly estate and all the property of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, whether real, personal or mixed in my name, I devise, bequeath and dispose thereof in the manner following, to wit: Imprimis [then follow provisions for payment of debts].
“Item 1st. To my beloved children I give and bequeath, in equal shares to each, share and share alike.
“Item 6th. I desire and direct that the executor hereinafter named shall in one year after this my last will and testament is probated, sell all my real and personal property of which I may be possessed at the time of my decease or to which I am entitled at that time, to the highest bidder, and convert the same into money; if two are against one of my children' herein named are satisfied to have said property sold to the highest bidder.”
This is a forced construction which divides item first into two separate clauses, places a period after the word “alike” where there is a comma and where a comma is properly used because it is followed by the words, “if there is so much left after my death.” The whole item must be construed together. The first three lines describe no property that he gives to any one. It is an incomplete expression,, and what follows, “I give and will thirty-five hundred dollars, $3500, to my children herein named,” is in part a repetition of what the testator started to say in the first part of the paragraph. The expression “my children” is clearly defined by the testator himself, and the identity of the persons he had in mind can not be regarded as at all doubtful, because he proceeded in the same item or clause to name them; and obviously included in the expression “my children” Mary Newman, a stepchild, and Bulah Flynt, a granddaughter.
The construction contended for by appellees Nicholas Koenig and Elizabeth'Kassel, as set forth in briefs filed by their counsel, would give them an undivided one-fifth interest in the entire estate, or in any event, they claim that proportion of the residue of the real estate after payment of the sums mentioned in the first two. items, but these appellees having released all their claims under the will are no longer interested in the construction of its provisions. As to the contention of the appellants and those of the cross-appellants, it is. sufficient to add to what has been said that our construction of the will in its entirety accords with the view taken by the court below. We think it was the intention of the testator to regard all his property as money and to divide it into two portions, the first of $3500, if there was so much left; and this portion was to be divided equally among the persons named in the first item, referred to therein as his children, although one was a stepchild and one a granddaughter. The second item must be regarded as referring to the residue of his estate, the disposition of which is con trolled by the provisions of items first and second the same as though the third item had been omitted from the will because of the release of all claims thereunder by the only persons interested therein.
It follows, therefore, that the judgment will be modified to the extent made necessary by excluding Nicholas Koenig and Elizabeth Kassel from any interest in the estate.
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The opinion of the court was delivered by
West, J.:
March 2, 1910, defendant Pierce was granted a decree of divorce from his wife, Lulu Pierce, giving him a lien for $1125.50 on a quarter section of land in Osage county which stood in her name. On the same day Pierce assigned $1000 of this lien to the Rossville State Bank to secure an indebtedness.. The bank issued execution and the land was sold, and a motion made to confirm the sale. A Chicago attorney had sued the wife in Osage county for an attorney’s fee, attaching the land in question, and on November 3, 1910, Lulu Pierce having been adjudged insane, the. plaintiff as her conservator brought a suit to set aside the decree of divorce and enjoin the attorney from further action and to clear the land of all the liens growing out of the proceeding. The bank filed its answer and cross-petition, admitting the assignment of the $1000 lien, alleging that a few days before March 1, 1910, Pierce applied for a loan of $3000 to secure an option on certain land, and that he had paid the loan except $940.50, with interest from October 7, 1910, 'alleging that the land in question in the name of the wife was purchased with the money of Pierce and was in equity his property and subject to his indebtedness. At the conclusion of the trial the court found sufficient reason for setting aside the decree of divorce, and for enjoining the Chicago attorney. The eleventh finding was that long prior to the institution of the divorce suit Pierce purchased the Osage county land and took a deed thereto in the name of his wife; that there was no evidence to show that she paid anything for it or ever had any funds of her own, “and that she never had any other or greater right in or to said real estate except such as accrued to her through her marital relations to Gilbert P. Pierce.” It was further found that in the fall of 1909 Pierce obtained an option on certain land, expiring March 1, 1910, and made application to the bank for a loan to protect his right in such option, and agreed to assign his lien on the land, which lien ■ had been agreed on in the divorce case, as security-; that had he not been able to secure such loan and -take - advantage of the option the estate would -have lost $2200 thereby, which sum was saved by means of such' loan, the land involved in the option being conveyed by deed in blank delivered to the bank; that before the beginning of this suit his indebtedness had all been paid to the bank except $950.46, and the deed last mentioned had been delivered to him, leaving the assignment to the bank its only security for the noté he had given for the balance due, which at the time of the trial had been reduced to $931.31; that the loan was made in good faith and used to protect the option, and that Pierce and wife had received the benefit thereof, and that the loan was made by the bank without any notice or knowledge of the insanity or claim of insanity with respect to Lulu Pierce, and it was concluded as a matter of law, among other things, that the bank was entitled to an equitable lien for the sum found due on such loan, and judgment was rendered accordingly, and that the land be sold for the satisfaction of such lien. After the sale was made, and a motion filed to confirm, the plaintiff moved to set aside on the ground that such sale was illegal, and that the judgment of the trial court granting a lien on the land and ordering the sale was without jurisdiction and void. On the hearing of these motions evidence was introduced touching the j ournal entries and the title of the land in question, the result being that the court found the proceedings regular in regard to the sale, and confirmed the same, but made no finding as to the ownership of the land as between the plaintiff as conservator and the defendant Pierce. From this . order the plaintiff appeals. It seems that on May 11 findings of fact and conclusions of law were placed on file,.and a memorandum.on the trial docket indicated the sort of judgment and decree already shown. On September 18 a journal entry was signed by the judge, and marked filed by the clerk, granting the lien as already indicated, and on October 16 there was filed in the clerk’s office another journal entry substantially the same except that it contained a provision for the sale of the land for the satisfaction of the judgment. Various motions, applications and affidavits were made touching the question of journal entries, and the matter was repeatedly called to the attention of the trial judge, with the result that both entries still remain of record. The plaintiff contends that the court was without jurisdiction or power to give the bank a personal judgment against Pierce and a lien upon the land, and that the second journal entry directing a sale was void and should have been stricken from the record, and that the court erred in not determining the ownership of the land. There was testimony to show that Pierce’s lien granted in the' divorce case was agreed upon in advance by his wife’s brother, who acted for her in the negotiations leading up to that decree and who knew about the money borrowed from the bank to take care of the option deal.
The trial court having permitted both journal entries to remain of record, it is not for this court to say that either shall be expunged, but rather to regard the two together as covering the points decided.
It is claimed that the court erred in refusing to determine which was entitled to a right of redemption, but as the divorce has been set aside and the relations of husband and wife still exist we hardly see how this was a material or necessary matter to be passed upon in this case.
While we find nothing to indicate that the bank acted otherwise than in the best of faith, still the evidence shows that after the loan was made with which to secure the option, and the deed in blank to the land procured' had been delivered to the bank, this was returned to Pierce, who traded the option land for Kan sas City property, and that he still owned certain Rossville property worth $800. Also, that the sum borrowed by him from the bank was $2500, that he already owed a little over $500 which he had borrowed, from time to time, and that $2700 was paid about October 7, 1910. So it seems that the debt for which the. lien is sought to be retained as security is really not a part of the loan, but a general balance remaining from a course of dealing covering a number of years* Pierce’s testimony touching the Osage county land was. that he bought it of his wife’s brother for $2700 and .put the title in her name. The inference to be drawn from this would be that it was a gift (Olson v. Peterson, 88 Kan. 350, 357, 128 Pac. 191; Clester v. Clester,. 90 Kan. 638, 135 Pac. 996), and certain evidence .introduced by the plaintiff on the motion to set aside the sale indicated that a gift was intended.
The decree in the case in which the assigned lien was awarded to Pierce was set aside because the wife was. shown to have been insane when the decree was rendered and for two or three years before, and, being-under such disability, of course she would not be bound by the lien provision which formed a part of the decree, except upon the equitable theory that having received a benefit by reason of the loan for which the lien was assigned the court might refuse to set the decree aside-unless the lender were protected. (Gribben, Guardian, v. Maxwell, 34 Kan. 8, 7 Pac. 584; Leavitt, Guardian,, v. Files, 38 Kan. 26, 15 Pac. 891; Myers v. Knabe, 51 Kan. 720, 33 Pac. 602; Hospital Co. v. Philippi, 82 Kan. 64, 70, 107 Pac. 530.)
We are mindful of the fact that by means of the loan extended by the bank the estate of Pierce and wife was. enhanced $2200, but the maj ority of the court are more impressed by the consideration that the debt for which the lien is claimed has been substantially paid, and by the further consideration that the bank could have- looked to the option land or to the Rossville and Kansas City properties for security, but did not, and that to hold the property claimed by the wife, under the circumstances, would seem inequitable.
Such being the- conclusion reached after a careful consideration of all the facts, it follows that the order confirming the sale 'must be reversed, and it is so ordered.
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The opinion of the court was delivered by
Burch, J.:
The facts furnishing the basis for this action were stated in the case of Pierson v. Milling Co., 91 Kan. 775, 139 Pac. 394. After the trial of that action the plaintiff determined to protect himself against the consequences of a possible final adjudication that the milling company was not bound by the contract for life employment negotiated by T. J. Hold-ridge, jr. Therefore he sued Holdridge for false representation of authority to act for the corporation. A demurrer was sustained to the petition, and the plaintiff appeals.
It is argued that the allegations of the petition are not sufficiently definite and certain to make out a cause of action. They do leave considerable to be desired, but liberally construed are sufficient to entitle the plaintiff to relief.
It is further argued that the petition fails to state a cause of action because it is framed to recover damages for loss of the contract for life employment when the plaintiff’s deprivation really consisted in loss of his right to prosecute an action for personal injuries. In this respect the theory of the petition is correct.
The action is one for deceit. The claim is that T. J. Holdridge, jr., by conduct and statements, induced the plaintiff to believe that he had authority to bind the corporation by the life-employment contract. Relying on those representations the plaintiff released his cause of action for damages for personal injuries, suffered the statute of limitations to run against it, and obtained, as he supposed, a valid contract for life employment. Under these circumstances the plaintiff is entitled to the benefit of his bargain. There are two rules on the subject of the measure of damages in such cases, but this court has chosen the more liberal one. {Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496.) The question involved was elaborately briefed and ably argued in the case of Strowpe v. Hewitt, 90 Kan. 200, 133 Pac. 562, but the court decided that it would adhere to the doctrine of the earlier case. The same rule was applied in the case of Epp v. Hinton, 91 Kan. 513, 139 Pac. 379.
The action was not based “on the contract” for life employment, and indeed could not be since it contained nothing indicating an intention on the part of the defendant to bind himself personally.
The action being essentially one for relief on the ground of fraud, the statute of limitations did not commence to run until discovery of the fraud. In some states a distinction has been made between false representation of authority and implied warranty of authority. The liability of the person who acts without authority is the same under both theories, but the remedy in one case is for tort and in the other for breach of an implied contract. To these remedies different statutes of limitation apply. The subject has been discussed chiefly with reference to the conduct of one who has acted without authority but who in good faith believed that he was authorized. The distinction is not important in this state, where it is held that a false representation made without knowledge of its falsity may furnish the foundation for an action of tort although no intention to deceive existed. Therefore the court inclines to the view which has been stated thus:
“If one falsely represents that he has an authority, by which another, relying on the representation, is misled, he is liable; and by acting as agent for another, when he is not, though he thinks he is, he tacitly and impliedly represents himself authorized without knowing the fact to be true, it is in the nature of a false warranty, and he is liable. But in both cases his liability is founded on the ground of deceit, and the remedy is by action of tort.” (Jefts and wife v. York, 10 Cush. [64 Mass.] 392, 395.)
The judgment of the district court is reversed and the cause is remanded for further proceedings.
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The opinion of the court was delivered by
Porter, J.:
The plaintiff sued the defendants for damages, alleging that maliciously and without any probable cause they commenced a civil action against him and attached and sold his property.. The action is one of a series of- lawsuits in which the parties have been involved and which include three civil suits and one criminal action. The defendants are commission merchants dealing in fruit and farm produce in the city of Topeka. The plaintiff is a farmer, and in 1909 was a resident of Oklahoma, where he was engaged in shipping watermelons raised by him on his farm. He brought a carload of melons to Topeka, and the defendants claimed that he contracted to sell it to them, but that he sold to some one else, in violation of his contract. On August 9, 1909, he came to Topeka with an other carload of melons, which he sold to a retail merchant of the city. While engaged in delivering a wagon-load of them, T. E. Armstrong, one of the defendants, and some other commission men of the city had one of their number purchase a single watermelon from him for twenty-five cents, and as soon as the transaction was completed caused him to be arrested by a policeman and confined in the city jail, charged with peddling merchandise without a license in violation of a city ordinance. While imprisoned and a stranger in a strange land, he was sued by the defendants in the district court of Shawnee county to recover $160 damages for breach of the alleged contract for the sale of the first car of melons, and an attachment was levied on the second carload of melons. Soon after the attachment was levied the melons were sold at public auction and brought $25, although they were worth about $100.
The plaintiff employed an attorney, who succeeded in having him acquitted on the charge of violating the city ordinances, and he was discharged. He at once brought suit in the circuit court of the United States for the district of Kansas against T. E. Armstrong and the other commission merchants who were charged with being in the conspiracy, in which action he sought to recover damages in the sum of over $15,000 for false arrest and imprisonment. That case was tried, and he recovered a judgment against Armstrong and the other defendants in the sum of $400. Subsequently the attachment case came on for trial in the district court of Shawnee county and he recovered a judgment for costs, having proved that he was not indebted in any manner to Anderson and Armstrong. The only ground for attachment was that he was a nonresident of the state, and defeating the cause of action resulted in the dissolution of the attachment. He thereupon brought this action to recover for loss of time, traveling expenses, hotel bills and attorney’s fees in defending the attachment case. The jury returned a verdict awarding him damages in the sum of $403.65. The court overruled a motion for a new trial and rendered judgment on the verdict, from which the defendants have appealed.
The principal defense set up in the answer was that the- matters involved in this action are res judicata, because substantially the same averments were made in the action in the federal court with respect to the commencement of the attachment suit and the expenses and damages which the plaintiff claims to have suffered thereby. The answer set up a copy of part of the pleadings in the action in the federal court. There are several reasons why we think the plea of res judicata can not be sustained. The parties are not identical. Anderson, who is a defendant here,, was not a party to the action in the federal court. When that case was tried the attachment case in the district court of Shawnee county was still pending, and of course the plaintiff could not recover damages for the wrongful attachment of his property, because it had not then been determined that the attachment was wrongfully brought. It is true there is much similarity in the statement of facts in both petitions. In the federal court the plaintiff sought to recover damages for malicious arrest and false imprisonment, and alleged all the facts with respect to the attachment of his property for the purpose of showing malice on the part of defendants. In the present action he sued to recover damages for the malicious attachment of his property, and pleaded the fact of his arrest and all the circumstances connected therewith for the purpose of showing that the attachment was brought maliciously and oppressively.
“A judgment is not and can not be an estoppel as to facts which did not occur until after the judgment was rendered and which were not involved in the suit in which it was rendered; nor does its conclusive effect extend to references made by a party in his pleadings to matter not involved in the controversy, such references being made merely for the purpose of elucidating the points really at issue.” (23 Cyc. 1314.)
We think the trial court properly took from the jury the question of the former j udgment on the ground that the damages sued for in this action could not have been adjudicated in the former.
It is also contended, and it was alleged in the answer, that the matters involved herein were adjudicated in the attachment action, for the reason that the defendant in that action, plaintiff in this, filed an answer in which he set up his claim for the same damages — loss of time, traveling expenses and attorney’s fees in defending the attachment proceedings. Plaintiff produced as witnesses the judge of the district who tried the attachment case and the official stenographer who reported the trial, and showed by them that the defendant was not allowed in the attachment action to litigate the questions involved herein. It is contended that the court erred in admitting this character of testimony. The same fact might have been proved by any one present at the trial, whether officially connected with the proceedings or not. In Chambers v. Trust Co., ante, p. 30, 139 Pac. 1178, it was held that a court in which a former adjudication is pleaded may ascertain by parol evidence what really was decided, if the evidence does not contradict the record. Wherever extrinsic evidence is admissible to identify the questions litigated, it is said in 23 Cyc. 1538 that it is proper to receive for this purpose “stenographic reports or minutes of the testimony taken, the testimony of the judge and jurors who tried the case or the evidence of a person who was present as a witness at the former trial.” In Perkins v. Brazos, 66 Conn. 242, 33 Atl. 908, it was hejd that the deposition of the judge who tried the former action was admissible to prove what issues were tried where the facts do not appear by the un aided record. The case of Pulsifer v. Arbuthnot, 59 Kan. 380, 53 Pac. 70, is cited by defendants. It was there held that parol evidence is inadmissible in a collateral action to prove the rendition of a judgment or the making of an order by a court of record. In this case the parol evidence was neither for the purpose of contradicting the record nor of proving what judgment was rendered; the purpose was to prove a ruling of the court made on the trial which would not be preserved in the record of the judgment.
Ordinarily the rule is that if extrinsic evidence is required to establish a question of fact to determine whether the issues in the former action were the same, the question must go to the jury. It becomes a question of law for the court only when it can be determined from an inspection of the record alone. (23 Cyc. 1543, and cases cited.) The defendants insist, therefore, that if the testimony of the judge and stenographer and other parol evidence offered by the plaintiff were admissible the question of fact should have been submitted to the jury, whereas the court instructed that the plaintiff’s claim had not in fact been adjudicated in the attachment action, and that plaintiff was not by reason thereof estopped from asserting it here. Manifestly the court improperly took from the jury the determination of the question of fact. - But it is equally manifest from an examination of the entire record that the court decided the fact correctly. The plea of res judicata rests upon the fact that the answer in the attachment action set up the same issues, and that they might have been, and the presumption is that they were, determined in that action. No evidence was introduced or offered in rebuttal of the evidence of the judge of the district court and the official stenographer, and it is hardly conceivable that had the question been submitted to the jury the decision would have been other than that made by the court, and if it had it would have been the court’s duty to set it aside as contrary to all the evidence. No serious contention is now made that any issue involved in this action was in fact submitted to the jury in the attachment action or was determined therein. It was therefore a question of fact upon which all the evidence was one way; and while we think the court should have left the determination of the question to the jury, we can not regard the error as prejudicial to defendants nor sufficient to justify ordering another trial upon that issue. While the answer pleaded the fact to be contrary to the finding of the court, all the evidence was to the effect that the issues were not tried out in the attachment action, so that the fact which the court determined should be regarded as one about which there was and is no serious dispute.
It is complained that the court erred in refusing to strike out certain portions of the petition. While we think the petition contained a great many statements with respect to the arrest of the plaintiff and the fact that the newspapers had published accounts of his arrest, all of which should have been stricken from the petition, we are satisfied that the defendants were not prejudiced by the ruling. Evidence was admitted for the purpose of proving some of these allegations, but the court charged the jury that none of these matters were to be considered by them except as tending to show malice on the part of defendants, and it is clear from the whole record that the jury understood that they were not to allow any damages for the unlawful arrest and imprisonment or because of the publication in the newspapers and humiliation which the plaintiff claimed he suffered thereby. There was no error in refusing to require the plaintiff to elect upon which cause of action he would rely in the trial of this case. The court, on the motion of the defendants, required the plaintiff to file an amended petition setting up separate causes of action. As we construe the pleading, however, but one cause of action was alleged, and that was to recover damages for the malicious bringing of the attachment suit. In the petition as amended the plaintiff was unable to state two causes of action, although the order of the court was attempted to be followed by separating the petition into two counts, but both causes of action were for the same items of damages and expenses. It is insisted that the court committed error in allowing the plaintiff to testify as to the value of his attorney’s services in the attachment case. We think the evidence was admissible for what it was worth. The fact that the plaintiff is a farmer would not prevent him from having some notion as to the value of attorney’s fees, especially where he had participated in as much litigation as the plaintiff has, all within a period of two years. He testified that the services of his attorney in this case were worth $125. As observed, it was some evidence, and as he seems to have had a pretty fair opinion of what the services were worth, the defendants have no cause to complain.
We find no prejudicial error in the record and the judgment will be affirmed.
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Per Curiam,:
Upon a full consideration of a petition for a rehearing the majority of the court remains of the view indicated in the original opinion. The circumstantial evidence is ■deemed to warrant an inference that the president and vice president, as well as the secretary-treasurer, knew of an arrangement regarding the life employment Of the plaintiff. The fact that all the stock was owned by these thr.ee officers and by the wives of two of them, who constituted the two remaining directors, is a circumstance we think must be given weight in determining whether there was any evidence of ratification.
The petition for a rehearing is denied.
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The opinion of the court was delivered by
West, J.:
The defendant was convicted of murder in the first degree. This appeal presents two questions. It is contended that the information was bad for the reason that the killing was not alleged to have been done deliberately, and that the court erred in instructing the jury regarding the sole defense interposed— that of insanity.
.The information charged that the assault was made feloniously, willfully, deliberately, premeditatedly and with malice aforethought to kill and murder, and that the shooting was done feloniously, willfully, premeditatedly, and with malice aforethought, giving a mortal wound, and that the defendant “in. manner aforesaid unlawfully, feloniously, willfully, premeditatedly, and with malice aforethought did kill and murder.” It is urged that the statutory and settled ingredient of deliberation is absent from that portion of the charge applying to the actual killing and that this omission is fatal.
The common-law crime of murder is by our statute divided into murder in the first and murder in the second degree, the former being “Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated killing.” (Gen. Stat. 1909, § 2494.) “Deliberately” has been held to mean that the manner of the homicide was determined upon after examination and reflection; that the consequences, chances and means were weighed carefully, considered and estimated. “Premeditatedly” has been defined as meaning planned, contrived or schemed beforehand. (Craft v. The State of Kansas, 3 Kan. 450, 483; The State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560; The State v. Yarborough, 39 Kan. 581, 587, 18 Pac. 474.) While in some other states the two words have been deemed and held to be synonymous, it had long been determined here that “premeditatedly” has reference, as the literal meaning of the word implies, to having thought over the matter beforehand, and “deliberately” pertains more to the manner of committing the act, or to the fact that its commission was determined upon in cold blood. It might be possible for one having thought over the matter and concluded to kill another to come upon him suddenly and commit the homicide in the heat of passion so that it could be said to have been committed premeditatedly, but not deliberately. In Smith v. The State of Kansas, 1 Kan. 365, it was held that the indictment must charge that the killing was done deliberately and premeditatedly. It was said in the Craft case:
“It is not only necessary that the accused shall plan, contrive, and scheme, as to the means and manner of the commission of the deed, but that he shall consider different means of accomplishing the act. He must ‘weigh’ the modes of consummation which his premeditation suggests, and determine which is the most feasible.” (p. 483.)
The information, which contains one colon but not a period or semicolon, charges in one sentence that the defendant gave to the deceased a mortal wound of which he instantly died; that he did this unlawfully, feloniously, willfully, premeditatedly and with malice aforethought by shooting him unlawfully, feloniously, willfully, premeditatedly and with malice aforethought, with a gun with which he had assaulted him feloniously, willfully, deliberately, premeditatedly and with malice aforethought with intent to kill him feloniously, deliberately, premeditatedly and with malice aforethought. Taking the story of the tragedy as divided and detailed by the information, it is to be observed that one occurrence, one weapon, one homicide, one intent and one state of mind appear. Having with a deadly weapon assaulted the deceased with premeditation and deliberation, intending premeditatedly and deliberately to kill him, and proceeding at once to inflict the mortal wound, it is practically impossible to escape the conclusion that the premeditation and deliberation characterized the entire transaction. In The State v. Brown, 21 Kan. 38, the indictment charged a deliberate and premeditated assault by shooting, thereby inflicting a mortal wound, but did not anywhere allege that the assault or killing was done with a deliberate and premeditated purpose of killing, and it was held bad. It appears that premeditation' and deliberation were both absent from the charge except as applying to the assault. It was said:
“The first part of the indictment charges, substantially, that the defendant deliberately and permeditatedly committed an assault and battery upon Bledsoe by shooting him with a pistol loaded with gunpowder and balls; but it does not charge that the defendant at the time had any deliberate or premeditated intention, nor indeed any intention, of killing Bledsoe. It substantially charges that he deliberated upon and premeditated the shooting, the assault and battery, but it does not charge that he deliberated upon or premeditated the killing.” (p. 48.)
In The State v. Stackhouse, 24 Kan. 445, the indictment charged a deliberate and premeditated intent to kill and murder; that with this intent the defendant made a deliberate and premeditated assault with a gun, thereby giving to the deceased a mortal wound of which he died, and this was upheld as containing all the elements of the crime — “the assault, the killing, the intent to kill, and the deliberate and premeditated intent.” (p. 450.) The full form of the indictment does not appear but the matter was not considered at much length, the decision being devoted mainly to other matters. In the McGaffin case (36 Kan. 315) it was ob jected that the information did not expressly allege malice aforethought or intent to kill, but the short form was held sufficient, which charged that the defendant did then and there, unlawfully, feloniously, willfully, deliberately and premeditatedly kill and murder one Harrison Sherman by shooting him with a loaded revolver, and it was said:
“The' terms employed by the county .attorney in charging the offense are the full equivalent of a statement that the killing was done intentionally and with malice aforethought, and therefore the omission of those identical terms from the charge does not render it subject to the objection that has been urged.” (p. 319.)
The court cited The State v. Bridges, 29 Kan. 138. There the information charged that the defendant with a deadly weapon did feloniously, willfully, intentionally, deliberately, premeditatedly and with felonious intent and with malice aforethought kill and murder the deceased by inflicting a mortal wound with the aforesaid deadly weapon. This was held sufficient.
By following the language of the statute and one of the informations which have been approved in some of the former decisions all 'questions and danger of error could have been avoided; but a careful consideration and close examination of the charge on which the defendant was tried leads to the conclusion that it contained all the essential elements of the offense.
The more serious matter relates to the instructions touching the defense of insanity. Without going into detail or citing decisions separately upon each point, it may be said that the law has long been thoroughly settled in this state that to convict one of murder whose sanity has in the progress of the trial been brought in question, either by affirmative evidence on-his part or as the result of the state’s evidence, the jury must believe beyond a reasonable doubt both his guilt and his sanity. In other words, if the evidence at the close of the trial leaves in the minds of the jury a reasonable doubt as to the defendant’s sanity he must be acquitted. The presumption of sanity, like the presumption of innocence, remains until something in the evidence raises a doubt concerning it. It is never true, at any time or at any stage of the trial, that in order to acquit the jury shall believe that the defendant was insane, nor is it true that at any point in the trial it devolves upon the defendant to produce evidence to create a doubt as to his own sanity. The instructions must all be considered Together, and not isolated portions alone. It goes without saying that in a trial upon a charge of murder in the first degree no chances should be taken with the instructions, and they should be carefully drawn so as to state clearly the principles of law applicable. With these premises and bearing in mind that the only defense .made or attempted was that of insanity the charge will be considered. The defendant requested an instruction which correctly stated the rule as approved in The State v. Arnold, 79 Kan. 533, 534, 100 Pac. 64, which was refused. The jury were correctly instructed as to the presumption of innocence, and in addition they were told that “The defendant in a criminal case is never required to establish his innocence, for the sufficient reason that the law presumes him innocent, and he has a right to rely upon this presumption in his favor, and before a conviction can be had the State must produce the evidence to establish his guilt and this evidence must be sufficient to satisfy the minds of the jurors as reasonable men of the truth of the charge to the exclusion of all reasonable doubt. No mere preponderance of the evidence nor any weight of preponderating evidence is sufficient to establish the guilt of the accused unless it generates a full belief that the defendant has committed the crime charged in the information, to. the exclusion of all reasonable doubt.”
Indeed, following this paragraph they were told for the fifth time that the defendant’s guilt must be estab lished beyond a reasonable doubt — to the satisfaction of each juror. They were told that one is presumed to intend the natural and probable consequence of his acts, and that every person is presumed to be sane until the contrary appears. Then followed this language:
“It devolves upon, the defendant, therefore, in the first instance to raise the question. But a defendant in a criminal case is not required to prove his insanity by a preponderance of the evidence in order to avail himself of that defense, but merely to create a reasonable doubt on this point, whereupon the burden of proving his sanity falls upon the state. And if upon the whole of the evidence introduced on the trial, together with all the legal presumptions applicable to the case under the evidence, there should be a reasonable doubt as to whether the defendant was at the time of the shooting sane, or insane; with respect to the particular act charged against him, he must be acquitted.”
The words “together with all the legal presumptions applicable to the case under the evidence” are criticized as without significance and confusing, but they can hardly be given any other meaning than the presumptions already stated in the charge to which we have called attention. The words are taken literally from The State v. Crawford, 11 Kan. 32, syl. ¶ 2, and quoted with approval in The State v. Child, 40 Kan. 482, 485, 20 Pac. 275, and while better calculated to express a rule of law than to frame into an instruction, still we do not see any possibility that the j ury could have been misled by their use here; and in The State v. Nixon, 32 Kan. 205, 4 Pac. 159, a charge containing them was upheld. Complaint is also made of the statement that “It devolves upon the defendant, therefore, in the first instance to raise the question.” In the Nixon case this language was used and assigned as error, but it was said that as the defendant had in fact raised the question it became immaterial that the court told the jury that it devolved upon him so to do, “and to introduce testimony fairly tending to prove the same” (p.. 213), because such was in fact done, and no evidence was introduced by the prosecution tending to prove the insanity, and the charge in these respects, while criticized, was not deemed materially prejudicial. Here the jury were told that the defendant was “not required to prove his insanity by a preponderance of the evidence in order to avail himself of that defense, but merely to create a reasonable doubt on this point, whereupon the burden of proving his sanity falls upon the state.” It is forcibly asserted that it did not devolve upon the defendant to create a reasonable doubt on this point of his insanity and that it was material error thus to charge. It is likewise strenuously contended that it was fatally erroneous to charge in the 27th instruction that if the jury should “believe from the evidence that at the time of the shooting, the defendant [was] laboring under such defect of reason,” etc., they should acquit; “but if you should believe, that under the instructions I have given you, he should be held responsible, you should then turn and determine more exactly the nature of the act itself,” etc. These expressions, together with the ones last before referred to, are submitted as evidence that the true rule touching the obligations to prove, and the burden of the proof, was lost sight of or reversed and the jury given to understand that in order to be acquitted the defendant must raise the question of his sanity, must introduce testimony fairly tending to prove the same, and that the jurors must believe that such proof had been adduced. The majority of the court, however, while regarding the portions of the charge under consideration taken by themselves as not free from grounds for criticism, are of the opinion that the whole charge considered together sufficiently informed the jury that the burden was upon the state to prove the guilt and sanity of the defendant beyond a reasonable doubt, and that heeding -every part, as they are presumed to have done, they -could not have been‘misled. From undisputed state ments in the briefs and upon the argument the manner of the killing and the conduct of the defendant, as originally shown by the state, as well as the evidence touching insanity offered by the defendant, were such as to call attention to the sole defense, and a verdict of guilty could not have been reached without either finding the proof by the state sufficient beyond a reasonable doubt or by ignoring repeated admonitions of the court embraced in its instructions, which the jury can not be presumed to have done and which the record does not show that they did. The fact that the defendant introduced the testimony of fourteen witnesses to establish the defense of insanity leaves it clear that the expressions relative to his raising the question and introducing testimony tending to support the same could not have confused the jury, and in view of repeated admonitions that they must find guilt beyond a reasonable doubt, the other phrases complained of are not deemed to have left the triers in any doubt as to the rules governing their deliberations.
A certain ruling and instruction touching a hypothetical question are complained of, but we do not find that the defendant was prejudiced by either.
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
The appellant, having been placed in a state hospital for the insane by proceedings in a probate court, filed a petition in the same court to set aside and vacate the. proceedings. The petition states the following reasons:
“1. That I demanded a jury trial which was refused by the court.
“2. That the so-called insanity commission disagreed.
“3. That the alleged commission’s report is untrue and false.
“4. There was no evidence of insanity before the-court.
“5. That the appointed attorney . . . did in
no way represent me or try to defend me.
“6. That I did not have any opportunity to consult, and see my relations and friends.
“7. That there was no. physical examination.
“As a whole it shows upon its face that this proceeding was not bona, fide and was not warranted that, this proceeding took place the 28th day of January, 1910, in the court house where I was going to obtain information from the county attorney.”
It was also alleged that “this conspiracy was participated in” by four persons whose names are given, and others.
A motion was filed by the county attorney to dismiss the petition on the grounds:
“That the several orders and judgments referred to and asked by said petition to be set aside, vacated and held for naught, are each and all duly and validly-rendered judgments of a court of competent jurisdiction after having acquired full and complete jurisdiction of the subject matter therein adjudicated and of' the person of the said Swan Johnson, and are wholly without fraud or other vitiating circumstance.
“That the said petitioner, Swan Johnson, has been regularly and legally adjudicated by this court to be a person of unsound mind, and insane; that the several inquests and verdicts in relation to the mental condition of said Swan Johnson have contained findings that his special delusion is that he has been wrongfully and. illegally tried and persecuted by the public authorities as set-forth in his said petition, and that the said petition is, therefore, not such a pleading as to challenge the attention of the court.”
On appeal to the district court the order of dismissal was affirmed, and the petitioner appealed to this court.
The opinion of the district court clearly states the-situation, viz.:
“It was agreed on the hearing that the files and proceedings of the probate court since this matter originated in 1910 should be considered in the determination. of this appeal. (Also in a previous case.) Without going into the details, it may be stated that all the proceedings of the probate court appear to be regular ■and in due form. The question presented is, whether in a case where there has been am adjudication of insanity and a guardian appointed by the probate court, the person adjudged insane and while yet under guardianship may as a matter of right file a petition to set aside all the proceedings and demand a hearing thereon without consultation with or action by his guardian and without any other person appearing as sponsor for him, and no excuse being offered in his petition for such method of procedure.”
The conclusion of the district court was:
“Upon full consideration I am of the opinion that it was not the duty of the probate court to .proceed to a hearing upon the petition filed in this matter and under the circumstances shown. Before that court should be bound to proceed in any event the petition should, in my judgment, be presented by the guardian, or, on his refusal, by a next friend. In case the petitioner is not able to secure action in either of' these ways, then, upon allegations of that fact in his petition, he should be allowed to proceed in his own name. In any case the petition ought to set out in detail the facts constituting the alleged conspiracy and fraud. The present petition is defective in this respect.
“In a matter of this kind, not regulated by statute, some reasonable discretion should be held to rest in the probate court to determine under what method of procedure one adjudged insane and under guardianship shall be allowed to secure a hearing of the kind here attempted.”
The files and proceedings of the probate court referred to in the opinion are not abstracted in this court, and we must presume that they are as the district court found them to be, in regular form. The question on the motion to dismiss was whether the petition on its face stated facts sufficient to sustain the application for another trial. The different grounds will be considered. There was no error in not allowing a jury trial. The jury here referred to is understood to be a common-law jury. The proceeding was not a trial, but an inquest, to which the constitutional provision for jury trials does not apply. (The State v. Linderholm, 84 Kan. 603, 114 Pac. 857.) Besides, it appears that no demand for a j ury was made until after the finding of the commission had been returned.
The charge that the commission disagreed is contradicted by the finding returned in a course of regular procedure. That the report or finding is untrue, and that no evidence of insanity was offered, are equivalent to an allegation that the patient was not insane at the time of the inquest, and amount to a request to the court to set aside the finding of the regularly appointed triers of the fact after it had been approved and carried into effect. The court had the right to set aside the verdict when it was returned. (Gen. Stat. 1909, § 8470.) It did not do so, however, but, on the contrary, approved the report and entered judgment upon it. After such adjudication the court was not bound to vacate it and try the matter ane'w upon the allegation of the sub j ect of the inquiry that he was not insane when the finding was made; otherwise such proceedings might have no end.
The petition is entirely insufficient to show a right of relief on the ground of fraud or conspiracy. Fraud is a term by which facts are often characterized, but the facts should be stated to which, if proven, the term might apply. Where this is done the use of the epithet is immaterial. (Way v. Bronston, 91 Kan. 446, 138 Pac. 601.) Here the label is applied but the facts are wanting. (Cockrell v. Henderson, 81 Kan. 335, 105 Pac. 443.) In L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kan. 169, it was held that charging fraud and conspiracy in general terms was insufficient. In The State, ex rel., v. Williams, 39 Kan. 517, 18 Pac. 727, it was said:
“Allegations of fraud and illegality, without a statement of the facts constituting the same, are mere legal conclusions and of no force in a pleading. No issue is presented by such averments, and no proof is admissible thereunder.” (p. 520.)
The reference to the attorney is too vague and indefinite to admit of discussion.
It is concluded that the regularity of the proceedings precludes inquiries upon the matters referred to in the motion, except as to fraud, and that was not stated in such manner as to present an issue. The statute provides for an orderly inquiry into the condition of those whose alleged mental unsoundness challenges the attention and care of the state. To provide this care great institutions are maintained by the state, under the control of a board carefully chosen, and through the aid of superintendents, physicians, surgeons, nurses and attendants. The proceedings by which these means are made available for the well-being of those who by their misfortune have the right to the care' and protection of the public are not hostile, but friendly. If mistakes are made in admission to the hospitals, or in detention after restoration, means are provided for -discharge through the interposition of the board of control and superintendent. (Gen. Stat. 1909, § 8483.) It must be presumed that these officers will discharge their duties wisely and humanely. Another section provides for an orderly hearing in the probate court upon the question whether sanity has been restored. With these safeguards it is not believed that those who should have only sympathy and care will be oppressed. What other remedy may be available if these should fail, and by whom it should be invoked, in a case of real fraud whereby a citizen is wrongfully and corruptly deprived of his liberty, need not be considered here, since no sufficient charges of that nature are made.
The judgment is affirmed.
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The opinion of the court was delivered by
MASON, J.:
On May 27, 1910, while the record title to a tract of land stood in Charles R. Hinton, D. H. Bane made a deed of general warranty, purporting to convey it to Charles Ora. This deed was recorded June 3, 1910. Bane, acting as the agent of Hinton, negotiated a sale of the property from Hinton to John H. Wood, and a deed from Hinton to Wood was executed June 10, 1910, and recorded June 18, 1910. In December, 1910, Ora brought an action to quiet title against Wood, alleging in substance that Hinton had held the legal title to the land in trust for Bane, who had been the real owner; that the deed from Bane to Ora therefore passed a good title; and that Wood acquired his deed under such circumstances as precluded his asserting title as an innocent purchaser upon the strength of the record. Ora recovered a judgment, and Wood appeals.
. The execution and recording of the deeds referred to was shown. It was stipulated that Hinton became the owner of the property by a deed made to him May 17, 1910. There was some evidence of transactions .between Bane and Hinton, but we do not discover in the abstract anything indicating that Bane and not Hinton was the real owner of the property, beyond Bane’s execution of the warranty deed, which was an assertion of title. Assuming, however, that Hinton in fact held the title in trust for Bane, we think it must be held that Wood was protected by the state of the record. The only evidence on the subject was that of Wood himself, who was called as a witness by the plaintiff. According to his testimony the land deal came about in this way: Bane told him that Hinton owned the land and that he (Bane) had it for trade. Wood offered some mining stock and Tennessee land for it. Bane said he would submit the proposition to Hinton. Later Bane notified Wood that the offer was accepted, and the papers were exchanged. Wood traded without requiring an abstract or looking up the title because he knew the amount of mortgages against the property and regarded it as encumbered to nearly its full value and did not care much about the title. He did not see the land, but had been all over the locality and knew about what it was worth. He delivered his papers to Bane for Hinton, the deed running to the latter, and asked Bane to have the deed ■from Hinton recorded. It was filed for record by Bane and afterwards sent to Wood.
We do not regard this evidence as justifying a finding that Wood was not entitled to protection as a purchaser in good faith. The recording of the deed made to Ora imparted no constructive notice to Wood of the claim of Ora because the grantor, Bane, was a stranger to the record title. (24 A. & E. Encycl. of L. 150; 39 Cyc. 1728; Note, 18 Ann. Cas. 14.) We do not think the fact that Bane acted as the agent of Hinton was sufficient to change the general rule in this respect. The testimony of Wood gives a reasonable explanation of his failure to require an abstract of title or to examine the land before buying. It is suggested that he made Bane his agent to obtain, record and forward the deed from Hinton, and that therefore Bane’s knowledge is imputable to him. Bane can not be regarded as the agent of Wood in making the trade. That Wood entrusted Bane with the manual act of receiving the deed and procuring its record did not involve such relations as to raise a presumption of Bane having made any communication to Wood concerning the title.
The judgment is reversed and the cause remanded with directions to grant a new trial.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was begun by the appellee, Dora Lynch, to recover damages from the appellant, The Missouri Pacific Railway Company, for personal injuries sustained while alighting from one of its passenger trains. On July 10, 1911, the appellee, who was a woman about fifty-two years of age and weighing about two hundred and fifteen pounds, was a passenger on appellant’s train from Kansas City, Kan., to Pomeroy, Kan. The train was scheduled to run in upon a passing track at Pomeroy to permit the passing of an eastbound train. The train arrived at Pomeroy and was stopped with the engine about six to ten feet from the switch to the passing track to permit the brakeman to open the switch. It does not appear that the station was announced as the train approached, but when it stopped in front of the depot appellee arose from her seat in the third car of the train and proceeded to the front door of that car to,alight. When she got on one of the lower steps of the car she noticed that the train had begun to move slowly, and in order, as she testified, to attract the attention of the conductor to the fact that she wished to leave the train she threw off singly several packages which she was carrying but no attention was paid to her action,' and that then there was a quick jerk of the train which threw her out of balance and forced her to jump from the moving train, which by that time had attained a speed of from six to ten miles an hour. In jumping appellee fell upon her back and sustained the injuries of which she complained. There was evidence offered by the appellant tending to show that it was the custom for the train upon which appellee was riding to pul] in upon the passing track, and then, after the -passage of the eastbound train, back to the depot and permit the passengers bound for Pomeroy to alight. This evidence, however, was contradicted by appellee, who produced testimony to the effect that passengers are oftener discharged before the train is run on the sidetrack. It also appears that on the day on which appellee was injured two or three passengers did alight from the train before appellee attempted to do so. She testified that it was not her. intention to j ump from the moving train, but that after she had thrown "her bundles from the train it gave a sudden lurch which caused her to lose her balance and that she was forced to jump to save herself from falling. The jury’s verdict Was in favor of appeellee and it fixed the amount of her recovery at $2000.
On this appeal the appellant alleges error on the part of the court in overruling its demurrer to appellee’s evidence, in refusing to give certain requested instructions and giving certain others to the jury, and in the overruling of its motions for judgment on the special findings and for a new trial. However, the principal contention of appellant appears to be that appellee was guilty of contributory negligence so as to bar a recovery.
It is conceded that the railroad company was bound to exercise the strictest vigilance and the highest •degree of care which was reasonably practical in carrying the appellee and the other passengers to their ■destinations and in setting them down safely. In the performance of this duty it devolves on the railroad company to warn passengers not to alight if a stop is made at a place where passengers are not to be discharged but where they may be led to believe that the ■stop was made for that purpose and the circumstances are such as to imply an invitation to alight there. (S. K. Rly. Co. v. Pavey, 48 Kan. 452, 29 Pac. 593; 6 Cyc. 600, 614.) Here the train stopped in front of the station where passengers usually alight. It is true that sometimes the train went upon the sidetrack-before passengers for the station were discharged,, and this appellee knew, but a number of passengers arose from their seats and left the train ahead of her, and these circumstances would naturally lead her to-believe that the train had stopped for the discharge of passengers. It appears that passengers are frequently discharged before the train is switched to the passing track, and while the name of the station had not been announced as the train pulled in it was not unreasonable for her to infer, under the circumstances, that the train had been stopped for the purpose of allowing passengers to alight. The jury found that the train was stopped not only to go in on the switch track but also for the purpose of discharging passengers.
It is contended that her act in jumping from the train constitutes such contributory negligence as will bar a recovery for the injuries sustained. This contention is based on the assumption that she voluntarily and unnecessarily jumped from a train that was moving at a rate of from six to ten miles an hour. This is contrary to her testimony as she stated that she had no thought of jumping until the sudden jerk of the train caused her to lose her balance and forced her to jump to save herself. According to her testimony she had descended to the second or third step of the coach before the train began to move, and she was there when she was thrown out of balance, and a fall between the coaches, which she was seeking to avoid, necessarily involved more peril than did the jump to the platform. She knew, of course, that the train was in motion before the jump was made, but the jury specifically found that she did not voluntarily jump from the train but did so to save herself from falling. Under the findings, which have some support in the conflicting testimony, the author ities cited by appellant, holding that one who voluntarily leaps from a train in motion and which is increasing its speed can not recover for injuries sustained, are not applicable. Her action in jumping, as we have seen, was not unconstrained and, accepting her testimony, was done to save' herself from what she deemed to be a more dangerous situation. There was little time for deliberation as to which course was the safer one to pursue, and the finding of the jury acquits her of negligence in this respect.
No error was committed in overruling appellant’s demurrer to the evidence of appellee.
There is’ complaint of the refusal of instructions asked by appellant and also of some that were given to the jury. The material parts of the requested instructions appear to have been included in those given. They related mainly to the kind of care which a person alighting from a train should exercise, and the general rules governing in cases where persons jumped from a moving train where there is no emergency or constraint are quite fully stated. Contributory negligence was defined, and the jury were told, in effect, that if appellee went upon the platform of the coach to alight and discovered that the train was in motion, and that then, in order to avoid being carried beyond her destination, she voluntarily jumped from the train and was injured, there could be no recovery although the railroad company was itself negligent in not stopping the train long enough for her to alight. Some of the instructions asked did not fit the facts in the case, and others of them were based on a single fact which seems to have been fairly included and covered in the instructions which the court gave in language of its own selection. All of the rulings upon the instructions given and refused have been examined and no prejudicial error is found in them.
The claim that the appellant was entitled to judgment on the particular questions of fact or because the evidence was contrary to the verdict of the jury can not be sustained.
The judgment is affirmed.
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The opinion of the court was delivered by
Benson, J.:
This is an appeal from a judgment quieting the plaintiff’s title to seventy-seven acres of land in Douglas county. The plaintiff’s title is founded upon a parol agreement made with her brother, Hugh Cameron, in New York about fifty years before his death, which occurred in December, 1908. The Social Service League is a grantee holding under a conveyance made by a brother of the deceased. Other heirs are also defendants.
It is alleged in the petition that the plaintiff, then young and unmarried, left her parents’ home in New York in April, 1858, to go with her brother, Hugh, also unmarried, to Kansas, pursuant to an agreement that if she would move to Kansas with her brother and live and make her home with him there she should be the sole beneficiary of all his property at his death; that she had fully complied with this agreement by being his housekeeper, and by nursing him in sickness, and devoting her life to his service; and that she had also worked upon and cared for the farm, the subject of this action, where they lived until his death, and where she still lives.
The defendants, except the Social Service League, did not appear, and judgment was rendered against them upon default. The league denied the agreement, and claiming title to one-fourth of the property asks for a ■ reversal of the j udgment upon the contention that the evidence was not sufficient to prove an agreement ; and if any agreement was made it had been abrogated by the plaintiff’s.marriage.
Hugh Cameron was a Kansas pioneer. He settled upon a claim including the land now in controversy in or about the year 1854, and named it Camp Ben Harrison. He was a Kansas soldier in the war for the Union, and by successive promotions reached the rank of colonel and was made a brigadier-general by brevet, thus gaining the title of general, as he is designated in the abstracts. He was never married. His sister, Grace, the plaintiff, lived with him in a rude cabin at Camp Ben Harrison before the war. The cabin was burned, but the time of its destruction is not shown. A hut was afterwards constructed, in which General Cameron lived for a time. He also lived in a cave, sleeping for a time upon a platform in a tree. Grace lived upon and cared for the place while her brother was serving as a soldier, and afterwards, although lodging for part of the time at the home of another brother. She was married in the year 1873, but lived with her brother for a year afterwards. After that she lived with her husband at different places for eleven years, but frequently returned to her brother’s home, and he often visited her. When he was absent from home Mrs. Smith (Grace) and her husband looked after the place and cared for the stock. After Mr. Smith’s death, in 1884, Mrs. Smith returned to live with General Cameron, and cared for him and for the home and farm until his death. He was absent at various times upon extended visits at inauguration services at Washington, and once on a visit to his old friend, Senator Ross, in New Mexico. She built a house in which she lived with him. This house still stands upon the place, where she still lives. At different times she loaned him sums of money, aggregating, as the evidence tends to show, about'$3000.
The evidence offered to prove the alleged agreement consisted principally of the testimony of many persons who related conversations with General Cameron. Other testimony was given to prove plaintiff’s services in the home and upon the place.
George Cameron, a brother of the General, testified that he “had two conversations with Hugh Cameron about contract between him and Mrs. Smith with reference to property in Kansas, one before the War of the Rebellion and one somewhere about 1884. General Cameron said that he had an agreement with Mrs. Smith to come west with him, and when he got there, he would give her, for her kindness and services to him, all he had. ... It was because I knew that he had made , such an agreement with her and she had lived with him and taken care of him, that was the conditions and that was the reason, knowing the contract between them and performance on Mrs. Smith’s part, that I made the deed to the property to her.”
Mrs. Cáse, of Topeka, testified:
“Had many conversations with General Cameron, extending back for many years, sometimes at our home, at Judge Cáse’s law office, various places, in which he said everything was Grace’s anyway; it is all hers; that she had come to this country early in life to make a home for him and help look after his property interests and they had been very congenial and their relations always all right and that it was his agreement with her that if she survived him everything that they had should be hers; that he had promised her that. ... I am sure my husband was present one time and Mrs. Smith and the General agreed on all these facts I have detailed here; he said Grace always took care of everything when he was away; he also said Grace furnished money to pay the taxes and keep up the repairs and to make improvements on the property; he said also that she furnished money to build a house on the place and did the work she wanted on it. . . . The General said the reason he was going to give this property to Mrs. Smith was she came to Kansas to make a home for him and she had faithfully done so all these years; he talked these things every time almost that he visited us and such statement was made within two years prior to his death. He told me that he was giving it to her as a recompense for what she had done for him, in a way, and she had made it possible for him to have his home; she had cared for him in his sickness and suffering. He said this arrangement had its inception before she came to Kansas. . . . That Grace took care of everything during war time; it was well taken care of.”
Others testified as shown in the following quotations :
“Mrs. Smith has been in exclusive possession of place since General’s death; she came to Kansas to keep house for him; her care of him was good care; he depended upon her for his home; I heard him discuss this matter I expect a half dozen times; last time I remember was about 1906; ... He said Grace looked after things, in speaking about repairs and keeping up the-improvements on the property. ... He said ‘Ours’ in speaking of the property; from what he said I understood it had all-been arranged when she came' west that she was to have all the property; that is the way I understood it; . . .
“Q. That you gathered from what he said? A. Yes, sir, from all the conversations, that is what I gathered.”
“The General, in conversations with me, intimated that everything belonged to Grace, intimated that in all our conversations; that everything was Grace’s; I was out to the place several times; Mrs. Smith always looking after things, and especially when General was sick she had to go there and stay; . . . Mrs. Smith always looked after the property and ca,red for it when he was away; she had to look after everything; . . . she did things for him I wouldn’t do if I was a slave, for anybody else; never heard him find fault with Mrs. Smith; he always spoke of her with tlje greatest regard.”
“He said she had come out here to make a home for him and had been his housekeeper and kept his place; he said his sister, Mrs. Smith, took care of him when he was sick, always took care of him; that she always did the housework, did his washing, mending and such like work about the place; he said she was as good to him as anybody could be; that when he was away it took practically all her time. . . . He never said anything to me about making a will. Q. He never said anything to you about making a deed of that property to any person, did he? A. He said that when he died it was Mrs. Smith’s.”
“He told of wanting Grace to come to Kansas and that she came out here to be with him and take care of him, to be a companion to him.”
“He said he had made a special arrangement with Grace to come west, he was anxious for her to come and be out near him; he thought a great deal of her, and when he was through with it, she was to get it, the property, as compensation; that is all I can remember about what he said their arrangement was; there was no definite thing she was to do, only what she was doing all the time for him, every' way that a sister could; it was Grace did this and Grace did that and he relied on her; she had loaned him money; she was there doing chores, I have seen her there; he acted as though he was perfectly satisfied.”
“I have heard him make substantially this same statement four different times, that everything was Grace’s; Grace had full charge of everything; whether he was there or not it was Grace always had charge of it. . . . He said Grace rebuilt the house that was burned on the property; he said she always took care of him when he was sick and done his washing and cooking for him and took care of him, done the work ■and took care of -the stock.”
There was ample evidence that the plaintiff cared faithfully for her brothér in health and in sickness, and attended to the home, the farm and the stock for many years before her marriage and after her husband’s death until the death of her brother. Her fidelity was observed by neighbors and was gratefully acknowledged by her brother.
In Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396, it was said:
“If . . . the contract is sufficiently certain and definite in subject matter and purpose and has been clearly and certainly established by the evidence, and the facts are such as to take it out of the operation of the statute of frauds, and there are no circumstances or conditions which would make enforcement inequitable, courts do not hesitate to give effect to a contract, although it is not in writing. An oral agreement that operates as a transfer of land must, of course, be made out by clear and satisfactory proof, but it is not essential that it be established by direct evidence. If the facts and circumstances brought out are such as to raise a convincing implication that the contract was made and to satisfy the court of its terms, and that, there would be no inequity in its enforcement, it is enough.” (p. 700.'
That opinion cites and follows Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, 9 L. R. A., n. s., 229, where this subject is so fully discussed that nothing-further need be said here concerning the general principles involved. Later cases have confirmed these principles in the jurisprudence of this state. (Taylor v. Taylor, 79 Kan. 161, 99 Pac. 814; Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Schoonover v. Schoonover, 86 Kan. 487 121 Pac. 485; Dillon v. Gray, 87 Kan. 129, 123 Pac. 878; Holland v. Holland, 89 Kan. 730, 132 Pac. 989; Hawkins v. Hansen, ante, p. 73, 139 Pac. 1022.)
It is contended that the terms of the alleged contract were not sufficiently definite. They were very simple. The sister was to have the brother’s property at his death in consideration of her removal to Kansas* and living with and caring for him. This, if proven* and followed by performance on her part, is sufficient in the light of the -cases already cited.
The statute of frauds can not be a bar to the performance if the agreement is sufficiently definite and is proved by clear and satisfactory evidence. It is not. necessary that the evidence should be direct. (Bichel v. Oliver, supra.) It must be presumed from the decision that the district court found the evidence clear- and satisfactory; and as there was competent and substantial testimony to support the finding it can not be-disturbed here. (Wooddell v. Allbrecht, 80 Kan. 736,. 104 Pac. 559.) One of the parties to the alleged agreement having died, and no written memorial being found, testimony of his declarations and admission* together with the conduct of the other party, and her testimony so far as admissible under the statute, afforded the only available means of proof.
The agreement being established, the next inquiry is whether it was abrogated by the marriage of the plaintiff, and her consequent absence and cessation, or partial cessation, of services while living with her husband. It can not be held as a proposition of law that the mere fact of marriage annulled the -contract. The circumstances must be considered and the intention of the parties must be determined. She remained with her brother for a year after her marriage, continuing her services in his home. They continued in affectionate regard for each other. He made no complaint of her absence, but spoke of her in the kindest terms, evincing not only a grateful appreciation of her past services but his intention that she should still have the property. If he had objected to the marriage or insisted on her continued presence and regular services an annulment might have been presumed, but such a situation is not presented here. Certainly the parties to the agreement had as perfect a right to modify it, as to make it in the first instance. If after her faithful service for many years the brother was willing that she should marry and still retain the benefit of the agreement, no principle of equity will thwart the purpose. He may have believed that his own happiness, as well as hers, would be promoted by her marriage. A sister’s welfare may well be the highest consideration for a brother’s relinquishment of her services, especially when those services have been rendered through sacrifices made in youth and continued through years of hardship.
If, however, it should be held that the agreement was abrogated by the marriage, no good reason is perceived why it may not have been renewed after the husband died and the sister returned to her former service. It will be observed that General Cameron’s declarations concerning the sister’s interest in the property and his intention that she should have it were continued practically to the time of his death. It is concluded that there was competent evidence to sus tain a finding that the agreement was not only made as alleged, but that it was treated by both parties as in full force down to the time of General Cameron's death.
An oral agreement of this nature, established by satisfactory proof and kept in good faith, affords solid ground for the exercise of'the powers of a court of equity by a decree for specific performance. The brother, with views and habits of life different perhaps from the majority of men, availed himself through many years of the service of a sister, who remained loyal to her agreement through all the vicissitudes of that service, the nature of which can be readily appreciated when we remember the hardships of pioneer life and the nature of the duties she performed. In such a situation the law provides, no standard whereby to measure the value of the services, and it remains for equity, applying the principles of natural justice and good conscience, to carry into effect the agreement of the parties. Happily in this instance neither party ever desired to be released from it. The one living claims the benefit of the agreement to which the other, according to his latest expressions, had gladly assented. It is true that in many of the conversations related by witnesses, and in one letter, a purpose to bestow this property on the sister by will or conveyance was declared. If the case rested upon such declarations alone the plaintiff would fail, but an agreement was also admitted and repeatedly asserted. An intention to devise or convey the property was not inconsistent with an original agreement.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff owns the west half of a lot and a two-story brick and stone building thereon, the west wall of which he claims is upon and not over the lot line. The defendant owns the adjoining ground upon which a one-story building has been located for many years, and claims that the west wall of plaintiff’s building extends six inches over the line upon the lot of the defendant, giving him the right to the use thereof in a new building he had begun to erect when this controversy arose. The plaintiff sued to enjoin the defendant from using and interfering with the west wall of his building, and the defendant answered, alleging in himself and grantors more than thirty years of continuous use, enjoyment and possession of the west six inches of the wall, and alleging that the plaintiff permitted the work to proceed without objection until he was estopped to interfere. Shortly thereafter the defendant sued the plaintiff in another action, claiming the legal and equitable title to the six inches of ground in question, and asked to have his title thereto quieted, to which petition the plaintiff herein filed a plea in abatement setting up the pendency of the former suit. Both cases came on for trial and were consolidated, and after hearing all the evidence the court announced that it would not decide at that time the location of the actual line between the two lots, but stated that it had been recognized for at least thirty or forty years, and that its location ought not to be settled in a suit to quiet title or for injunction as there would be an adequate remedy at law for any damages the plaintiff in the injunction suit might suffer, the defendant being solvent, and suggested that the plain tiff would be entitled to pay for the wall when appropriated by the defendant. The cases were dismissed without prejudice, and the journal entry, prepared some time later, recites that the west wall stands on the line between the two lots, and has been recognized by the parties as the boundary line over thirty years; that places for joists were made in the west wall when the building was erected, and a stovepipe hole was left in a chimney built therein, the same being intended to be used in connection with a building that might subsequently be erected upon the defendant’s lot; that in 1881 a one-story frame building was put up, the. east wall thereof being the west wall of plaintiff’s building, such building being attached to and fastened into such wall, and the stovepipe hole therein being used in connection with the defendant’s building; that when the injunction was served and in the erection of his building the defendant had been led to believe by the plaintiff that the west wall could be used by the fórmelas the east wall of his building; that the defendant was solvent and could respond to any judgment the plaintiff might recover in an action at law for the appropriation and use of the wall.
“It is therefore, concluded by the court as a matter of law that the plaintiff, Miller, has an adequate remedy at law and that he is estopped from maintaining an action of injunction to prevent the defendant Phillips from appropriating and using the wall in question.
“Wherefore, it is ordered, considered and adjudged by the court that the temporary injunction heretofore granted herein be and is hereby dissolved. And it is further ordered, considered and adjudged by the court that this action be and is hereby dismissed at the costs of the plaintiff, taxed at $-. But it is further ordered that this order or dismissal shall not be considered to prejudice or be a bar to an action for damages for the use and appropriation of the wall in question.
“It is also ordered, considered and adjudged, that said action No. 5552, Phillips v. Miller, be and is hereby dismissed at the costs of the plaintiff therein, Phillips, taxed at $-, and that said order of dismissal thereof shall not be considered to prejudice or bar the said Phillips of any defense that he may have to any action at law that may hereafter be commenced against him for the use and appropriation of the party wall in question in this case.”
The plaintiff appeals, and argues that under the law as applied to the circumstances he had a right to maintain injunction as the real matter in controversy was as to who had possession of the wall in question, each claiming such possession of the west six inches thereof. Complaint is made of certain rulings touching the admission of evidence, but as the matter was tried by the court we shall assume that only proper and competent evidence affected the decision. It is urged that it was error to dismiss the cause and deny the relief prayed for, and that the dismissal without prejudice was a matter for the plaintiff rather than for the court to determine. Also, that the court erred in announcing findings of fact after the close of the trial and after the close of the term, and that its conclusions of law were erroneous, and that to be relegated to an action at law in view of the findings as to the location of the west wall and the justified belief of the defendant that he had a right to use it places the plaintiff at a great disadvantage.
Our conclusion is that the trial court in fact and ih effect simply dismissed the two suits in equity and relegated the plaintiff to an action at law to recover compensation for the use of the wall, without prejudice to the right of the defendant to defend against such action, and that the statements as to the location and ownership of the wall are not adjudications binding either party in such other trial, but matters unnecessarily contained in the order made. The recital that the defendant had been led by the plaintiff to believe the wall could be used afforded an equitable reason for denying the injunction, and it will be observed that the dismissal was without prejudice to an action for dam ages, but not without prejudice to another suit for injunction. This recital distinguishes the case from the one relied on by the plaintiff, Mathis v. Strunk, 73 Kan. 595, 85 Pac. 590, holding that one in the peaceable possession of a wall can maintain injunction to prevent its use by the adjoining proprietor until he has established his right thereto in a proceeding brought by him for that purpose. There, also, the possession was sole and undisputed, while here it was apparently dual as to the six inches in controversy, each claiming the right to its possession.
The plaintiff contends that an oral permission to use the wall would be void under the statute of frauds, but whether so or not it might furnish a sufficient reason for withholding the aid of a court of equity to prevent the use thus consented to.
The journal entry speaks as of the date when the cause was decided, and its validity is not impaired by the expiration of the term in the meantime. (Iliff v. Arnott, 31 Kan. 672, 3 Pac. 525.)
The plaintiff does not, and of course the defendant can not, complain of the dismissal of the suit to quiet title, and in view of the conclusion reached by the trial court touching the defendant’s understanding that he would be permitted to use the wall, and his unquestioned solvency, we find no substantial error of which the plaintiff can avail himself.
The order is therefore affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by property owners to enjoin the construction of a sewer in the city of Wichita, the issuance and sale of improvement bonds and the levy of assessments to pay for thé same. At the trial the court made findings of fact from which it appears that on May 24, 1911, the city commissioners granted a petition for a sewer and resolved that it was necessary to construct the sewer in question, designated as submain C of sanitary sewer No. 20, that the city engineer should prepare the proper plans, specifications and estimates for the construction of the sewer, and that the city clerk should make proper publication thereof. The court also found that due publication of the resolution was made; that an estimate of the cost of the sewer was submitted by the city engineer, together with plans and specifications therefor, and that they were approved; that notice for the reception of bids for the work was published; that appraisers were .appointed on July 17, 1911, and their report duly approved on September 5, 1911; that on July 24, 1911, the bids were opened and the contract for the building of the sewer awarded; that on September 1, 1911, the commission passed an ordinance declaring the necessity for the sewer in question and authorizing the commissioners “to do everything necessary in the premises and creating and defining a benefit district therefor”; that on September 27, 1911, the amounts found by the appraisers were, by ordinance, apportioned and charged to the property in the “sewer district”; that on November 6, 1911, an ordinance was duly passed, approved and published “purporting to formally create a benefit district described in said resolution”; and that later bonds were duly issued to pay for the improvement. It appears that the city, which had a population of more than 50,000, contemplated and took steps towards the building of a main and intercepting sewer the full length of the city and in territory already provided with sewers, which was designated as sanitary sewer No. 20, but the construction of this sewer was perpetually enjoined in an action brought for that purpose.
In this action one of the principal questions was whether the proceedings for the construction of the sewer were taken under and governed by section 1013 of the General Statutes of 1909 or by sections 1177 and 1178 of that compilation. The court determined that section 1013 was the governing statute and that it had been constructed in pursuance of its provisions. That section provided a method for the construction of sewers in cities of the first class. It has remained practically unchanged for a quarter of a century or more; and under it most of the sewer systems in cities of that class have been constructed. The preliminary steps authorizing the construction, as well as the means by which the improvements are made, are the same as are provided for the building of sidewalks and pavements' in cities of that class. It contains a clause that if any property has paid its full proportion for sewers and drains in the district it shall not be transferred to another district nor made liable for sewers therein. Sections 1177 and 1178 were enacted in 1907 (Laws 1907, ch. 119, §§ 1, 2), and by that act a city having a population of more than 50,000 is authorized to build a system of main and intercepting sewers through territory in which sewers have been constructed, and to levy assessments for new sewers on property which had been previously assessed for the construction of sewers already built. Evidently this was a supplementary act under which additional sewers might be provided for districts of a city that had already constructed sewers which were inadequate to meet the public necessities. It was not intended, we think, to limit the operation of the earlier statute in cities having a population of more than 50,000. They could extend the sewer system by establishing new districts unprovided with sewers and where the property therein had never been assessed for sewers under section 1013, but if a city having a system of sewers which Was inadequate it could avail itself of the act of 1907 and build main and intercepting sewers, charging a part of the cost of the same to property in dis tricts which had already paid for sewer benefits. When the law of 1907 was enacted it applied to Kansas City only, and was doubtless suggested by the necessity for additional sewerage or drainage in portions of that city where the system, was insufficient. There is room for the application of both acts in cities having a population of over 50,000, and nothing in the later law indicates a purpose to deprive such cities of the benefit of either act as the circumstances may demand. The district in question included territory which was without a sewer, and the property therein had never been assessed for a sanitary sewer. While it was originally intended that it should empty into sewer No. 20, which was not built, it did connect with the established system in that city. It is an independent district which falls fairly within the terms of section 1013, and apparently it was constructed in pursuance of the provisions of that law.
It is contended, however, that the officers of the city failed to follow the provisions of that act. It is insisted that the preliminary resolution passed on May 24, 1911, did not meet the requirements of the law nor give the commissioners jurisdiction to construct the sewer. In it was a declaration that it was necessary to construct the sewer in a certain portion of Wichita, the boundaries of which were defined. It -also directed the city engineer to prepare and present plans, specifications and estimates of the sewer and the city clerk to make publication of the resolution. Appellants contend that it is defective in not stating where within the boundaries defined the sewer was to be laid, and also that there were then no plans and specifications from which the property owners could ascertain the character and extent of the improvement. The contention is that a property owner did not have such information as would enable him to determine for himself the expense which would necessarily fall on his property nor to decide whether or not he wanted to protest against the improvement. It was competent for the commissioners to determine the necessity for a sewer in the district, and nothing in the statute indicates that more than a general notice that an improvement is to be made is to be given to property owners. The statute then applicable provided that When the commissioners or council deem it to be necessary they “shall by resolution declare such work or improvement necessary to be done, and such resolution shall be published for six days in the official paper of the city,” etc. (Gen. Stat. 1909, § 1009), and it then provides that if a majority of the resident owners owning a majority in square feet of the property subject to taxation shall not within twenty days protest the officers shall proceed to make the improvement. It thus appears that the statute does not require that plans and specifications shall have been filed at that time nor that the character or cost of the sewer shall be declared, and it can hardly be necessary to make the resolution fuller or more definite than the statute itself. Under the same statute a resolution was passed declaring that a pavement should be made within certain boundaries of a city and it was held to be sufficient. There the character of the pavement or the cost of the same was not declared and determined, and yet the' publication of that resolution was held to be sufficient notice to property owners. (Newman v. City of Emporia, 32 Kan. 456, 4 Pac. 815.) In that case it was held that the notice, general as it was, was sufficient to invite opposition and protest. It related to pavements instead of sewers, but there is nothing in the statute which indicates that the notice for a sewer shall be other or different from that required in case of a pavement.
Some complaint is made of the sufficiency of the estimate prepared by the city engineer but it appears to be in substantial compliance with the law and the court has expressly found that it Was made in good faith.
Exception is taken to the method of apportioning the cost and it is argued that it should have been made in accordance with the plan prescribed in section 1177 of the General Statutes of 1909. As we have seen, the sewer was constructed under another section and it is therefore immaterial whether the plan in section 1177 differs from the one generally applied under the earlier act. The cost of the sewer has been apportioned upon a plan that has frequently been approved, that is, in proportion to the value of the lots taxed without the improvements thereon. • (Gilmore, County Clerk, v. Hentig, 33 Kan. 156, 5 Pac. 781; Mason v. Spencer, County Clerk, 35 Kan. 512, 11 Pac. 402; Kansas City v. Gibson, 66 Kan. 501, 72 Pac. 222.)
Apart from these considerations it appears that the appellants did not seek to enjoin the making of the improvement or the levy of the assessment on their property until more than six months after the sewer proceedings were initiated nor until more than two months after the ordinance apportioning and levying the assessment Was passed. It also appears that the improvement bonds, the issuance of which was' sought to be enjoined, had been issued and sold and a part of the proceeds thereof expended before the appellants moved to obtain an injunction.
We think the court ruled correctly in refusing the injunction and its judgment will be affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
In this action the city of Iola asks a peremptory writ of mandamus to compel the Missouri Pacific Railway Company to build a bridge at the intersection of Walnut and Benton streets in that city.
The railroad was built through Iola in 1881, and preliminary to its construction the city enacted an ordinance granting to the company the right to build its road along Benton street, which runs east and west. The grant .was made on the condition “that said railroad company constructs and maintains suitable crossings on said street and all points of -intersection thereof by other streets and highways within the limits of said city.” In constructing its railroad on Benton street the company diverted a small stream called Coon creek from its regular course. It had run across Benton street near the intersection of Benton and North streets, and ran in a southwesterly direction about a block and then made a bend, turning north and crossing Benton'street again two blocks distant at its intersection with Walnut street. The company constructed its road near the middle of Benton street, and from a point at North street to one about a half a block beyond Walnut street, a distance of about two and a half blocks, it dug a new channel for Coon creek north of its tracks, and closed up the old channel. The earth taken from the bed made for the new channel was used by the railway company in making the embankment or grade on which the track was laid. The track was 3.57 feet higher than the original grade of Benton street, and the new channel as made by the railway company for the creek is 6.34 feet lower than the rails of its track. The railroad and the new channel so made practically rendered Benton street useless for ordinary travel for a distance of two and a half blocks, extending from North street to a half a block beyond Walnut street. At the intersection of Benton and Walnut streets the channel made by the railway company is about forty feet wide, and the height and character of the grade and the depth of the channel practically destroyed the crossing and made Walnut street impassable at this place. To overcome this difficulty and make the crossing passable the railway company about the time its road was built erected a wooden bridge over the channel, which has been maintained by the railway company ever since that time. That bridge has become so weakened by decay and use that it is no longer safe for public travel. The city is now improving Walnut street, and has by ordinance required the railway company to build a cement bridge over the excavation or channel made by the railway company in the construction of its road and make a suitable crossing there, and the company having failed to comply with the requirement, this proceeding was brought to compel the building of the bridge and the making of a suitable crossing at this place.
It is conceded to have been the duty of the railway company to restore Walnut street and make a suitable crossing there at the time the railroad was built and the excavation made across the street. It is also conceded that to make a suitable crossing it was the duty of the company at that time to build the bridge at the intersection of Walnut and Benton streets; but it is insisted that this fulfilled its obligations and that it is not required to maintain the bridge after a crossing was so made. Independent of statute and under the common law it is the duty of a railway company which constructs a road across a highway to restore the highway by some reasonably safe and convenient means to its former condition. (State, ex rel. City of St. Paul, v. Minnesota T. Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656.) We had a statute in 1881, and it is still in force, which provides that a railway company which builds a railroad across a street or a highway or along or upon any stream of water shall restore the street, highway or stream “to its former state, or to such a state as to have not necessarily impaired its usefulness.” (Gen. Stat. 1909, § 1763, subdiv. 4.) Under this statute the privilege of crossing a highway carries with it the duty of a railway company not only to restore the highway, but it is a continuing duty to maintain it in its former or a suitable condition for travel so as to meet the requirements of the situation at that place. In The State v. Mo. Pac. Rly. Co., 33 Kan. 176, 5 Pac. 772, it was said:
“A railroad company has no right to render the streets of a city -unsafe or dangerous; and in all cases where a railroad company is permitted to use a street for railroad purposes, it should be compelled to restore the street as'far as practicable to that same condition of safety and usefulness as the street would occupy if it were not used for railroad purposes at all, and the railroad company should be compelled to maintain this condition of safety and usefulness as long as it continues to use and occupy the street.” (p. 187.)
In performing the duty of restoration the company may be required, if it be reasonably necessary to a suitable crossing, to construct and maintain a bridge and its approaches. (The State v. Irrigation Co., 63 Kan. 394, 65 Pac. 681; City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161; The City of Newton et al. v. The Chicago, Rock Island & Pacific Rly. Co., 66 Iowa, 422, 23 N. W. 905; See v. Railroad Co., 123 Iowa, 443, 99 N. W. 906; State, ex rel. City of St. Paul, v. Minnesota T. Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656; State, ex rel., v. St. Paul, M. & M. Rly. Co., 98 Minn. 380, 108 N. W. 261.)
The duty of making and maintaining a crossing covers whatever structures are necessary and reasonable, including the necessary approaches, although a part may be outside of the right of way of the railroad. (Farley v. The C. R. I. & P. R. Co., 42 Iowa, 234; L. & N. R. R. Co. v. Commonwealth, 149 Ky. 459, 149 S. W. 898; Moberly v. The K. C., St. J. & C. B. Rly. Co., 17 Mo. App. 518; Moberly v. The K C., St. J. & C. B. Rly. Co., 98 Mo. 183, 11 S. W. 569; Railroad v. State, 128 Tenn. 172, 159 S. W. 601; Roxbury v. Railroad Company, 60 Vt. 121, 14 Atl. 92; 3 Elliott on Railroads, §§ 1097, 1107.)
Apart from the common-law and statutory duties of the company respecting the restoration of the street, there was the contract obligation provided in the ordinance granting the company the right to occupy the streets, which was accepted by the company, to the effect that it would construct suitable crossings at the intersections of streets, and it included the added and continuing duty of maintaining such crossings. The defendant interpreted this obligation to mean that it was required to build a bridge where its road crossed Walnut street, and Under the authorities it is its duty to maintain a suitable bridge at this crossing as long as it uses and occupies the street, and when reasonably necessary to rebuild or replace it with a new one.- (The State, ex rel., v. Railway Co., 95 Kan. 22, 147 Pac. 801, 57 L. R. A., n. s., 751.) The turning of the waters of Coon creek into the channel made by the' company in making its grade in Benton street, which appears to have been done with the consent of the city, did not relieve it from the duty of making and maintaining suitable crossings at the intersections of the streets, and the bridge in question is a part of the crossing at the intersection of Walnut street. (Board of County Comm’rs v. Duluth, R. W. & S. R. Co., 67 Minn. 213, 69 N. W. 898.)
Objection is made to one of the findings of the trial court, but we discover nothing in it which prejudicially affects the result reached.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff was granted a divorce from the defendant because of his extreme cruelty to the plaintiff. From the judgment awarding alimony to her she appeals.
The divorce was not contested by the defendant. There was a contest concerning the alimony. At the time the action was tried the defendant owned property valued at about $53,000. The plaintiff as alimony was awarded property valued at about $10,000. They had been married about a year. The defendant had been previously married and had two children living by his first wife. At the time of his first marriage the* defendant had about $1500 in money and property, and his-wife had and furnished to him $10,000 in cash, which went, into the defendant’s estate. At the time the action was tried', the defendant was engaged in the hardware business with J. H.. Beasley. The plaintiff before her marriage to the defendant worked for the defendant’s firm for $60 per month, and continued to work for the firm at the same salary after her marriage. One child, born after. the divorce was granted, resulted from the marriage of the plaintiff and the defendant. This child has been sickly ever since its birth. The plaintiff was given the care, custody and control of this child, but no provision was made for its maintenance.
The plaintiff complains of the amount awarded to her as alimony.
“The amount of permanent alimony varies with the circumstances of each case. It must be reasonably within the means of the husband and must be sufficient for the needs of the wife considering her ability, her age and condition. The fact that she contributed to amassing the husband’s estate is always a factor in determining the amount, as is also the fact that she assumes the custody and support of the children.” (S M. A. L. 500.)
“The determination of the amount of permanent alimony is controlled by no fixed standard, but rests, rather, in the sound discretion of the court, which, being judicial in character, is not liable to be reviewed by an appellate court except where it is evident that there has been a clear abuse thereof.” (1 R. C. L. 929.)
“The amount to be awarded as permanent alimony is largely in the discretion of the court.” (14 Cyc. 773.)
This rule is supported by Blankenship v. Blankenship, 19 Kan. 159; Avery v. Avery, 33 Kan. 1, 5 Pac. 418; Snodgrass v. Snodgrass, 40 Kan. 494, 501, 20 Pac. 203; Leach v. Leach, 46 Kan. 724, 729, 27 Pac. 131; Galutia v. Galutia, 72 Kan. 70, 82 Pac. 461. The trial court had an opportunity of seeing the parties and witnesses and of hearing all of the testimony, oral and otherwise, and'had a better opportunity of knowing what would be exact justice between the parties than this court has. (Snodgrass v. Snodgrass, supra; Galutia v. Galutia, supra.)
“The defendant’s ease 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 and hindered him from accumulating wealth and property, and was largely the cause of reducing his wealth.” (Leach v. Leach, 46 Kan. 724, 729, 27 Pac. 131.)
No provision has been made for the maintenance of the child of the plaintiff and the defendant. That matter may yet be adjusted as circumstances may justify. (Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628; Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529; Rowell v. Rowell, ante, p. 16, 154 Pac. 243.) We can not say that the trial court abused its discretion in the amount awarded to the plaintiff for alimony.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In an action to abate a private nuisance the petition alleged that defendant maintained a livery stable in the city of Chanute adjoining plaintiff’s residence. The nuisance complained of consisted in leaving buggies, covered cabs and drays in front of the stable, thereby shutting off plaintiff’s view of Main street. The court held that plaintiff could maintain the action, that obstructing the view of Main street from plaintiff’s residence created an annoyance and inconvenience to plaintiff not suffered by the general public. The relief asked was granted and the defendant appeals.
The only question for determination, which was raised by a demurrer to the petition and to the evidence, is whether the plaintiff showed some special damage or inconvenience suffered by him beyond that suffered by the general public.
The general rule is that individuals are not entitled to redress against a public nuisance except by express statutory authority, and in determining what constitutes a private nuisance the rule is well established that the individual must show some damage, inconvenience, or annoyance peculiar to himself and different from that suffered by the public. There has been, however, much conflict and “some vacillation in judicial opinion as to what injuries were special within the meaning of this rule.” (Mehrhof v. Del., L. & W. R. R. Co., 51 N. J. Law, 56, 57, 16 Atl. 12.) This court has quite uniformly held that it is not enough for the individual to show that he suffers to a greater extent than the public if it appears that the injury or damage is of the same nature. An obstruction in a highway which interferes more or less with the public travel but which deprives a landowner of access to and egress from his property has been held to constitute a private nuisance which the individual may enjoin. (Venard v. Cross, 8 Kan. 248, 255.) Cases will be found, also, which hold that where the individual shows that he sustains the same injury but to a greater.extent than the public at large he has established the right to redress the wrong because his injury in such case is necessarily special •and peculiar to himself. (Carver v. San Pedro, L. A. & S. L. R. Co., 151 Fed. 334.) That doctrine, however, has never received recognition in this state. The rule uniformly adhered to in Kansas is well stated in the case of School District v. Neil, 36 Kan. 617, 14 Pac. 253:
“If the loss of the plaintiff is simply greater damage of the same kind as that sustained by the rest of the community, such fact will not be sufficient to constitute a cause of action in favor of the party complaining'. The loss to the public consists in the inconvenience in, or the obstruction to, the use of the highway for travel, differing in degree but not in kind, according to the frequency of use which proximity of residence or peculiarity of occupation may impose. For this no individual can sue, but must resort to such public actions as are given by law.” (p. 619.)
To the same effect see Venard v. Cross, supra; Trosper v. Comm’rs of Saline Co., 27 Kan. 391; Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825, and Borton v. Mangus, 93 Kan. 719, 720, 145 Pac. 835.
In our opinion the plaintiff has failed to bring himself within the rule so frequently declared in former decisions, and has not succeeded in showing that he sustains any peculiar injury or damage different from that suffered by the public; that the most that can be said is that he suffers to a greater extent the same kind of annoyance as does the public at large. It seems apparent that the view of other persons residing on the same side of the street must have been obstructed in the same way though probably not to the same extent as that of the plaintiff.
If the judgment can be sustained, then other suits of the same kind by persons' suffering to a less extent the same annoyance could be successfully prosecuted. The avoidance of a multiplicity of actions was one of the reasons for the adoption of the rule denying to private individuals the right to maintain a suit to enjoin a nuisance which is public in its nature.
The judgment must be reversed with direction to enter judgment for the defendant.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained by being struck by an automobile. The defendants were the owner of the automobile, who was the driver, and the dealer from whom the automobile was purchased. The plaintiff recovered against both defendants, who appeal.
The petition charged that it was a part of the business of the dealer, Jones, to teach customers needing instruction how to operate automobiles which they purchased from him; that Haverstock purchased a Ford taxicab; that Jones sent an employee, Smith, as a demonstrator and teacher to give Haverstock a lesson in driving; and that the accident occurred while Haverstock, as the agent of Jones, was operating the car in furtherance of the business of Jones. The negligence charged was that Jones permitted inexperienced Haverstock to operate the car on the crowded streets of the city of Wichita; that the car was driven at a rate of speed forbidden by city ordinance; that while driving north a turn was made to the east on the wrong side of an intersecting street, contrary to city ordinance ; and that, although Haverstock saw the plaintiff in time to avoid a collision, he failed to give any signal of an intention to make the turn described, so that the plaintiff was not aware that the course of the automobile was to be changed. The proof was that the car, which had been ordered for Haverstock, arrived at Jones’s garage, was supplied with gasoline, oil, water and air, was inspected, and was tested by running it, all before noon of a certain day. In the afternoon Haverstock came for the car, paid for it, declined assistance in operating it because he had had experience, and drove it away. After driving the car about town for probably an hour he returned to the garage and asked for some one to go with him to listen to the working of the car, see if it was running properly, and if it were not to make the necessary adjustment. The employee, Smith, who was a machinist and not a demonstrator or teacher, got into the car for this purpose only, and Haverstock started for a certain school to get his daughter. On the way the accident happened.
The jury returned the following special findings of fact:
“1st: Who was driving the car at the time of the accident in question? Answer: C. M. Haverstock.
“2nd: If you find that the defendant Haverstock was driving the car at the time in question, state where he was going and for what purpose. Answer: He was going to test the operation of the car and to the Washington schoolhouse to get Haverstock’s daughter.
“3rd: Had not the defendant Haverstock paid and settled for said car prior to the accident in question? Answer: Yes.
“4th: State who, if any one, was riding with the defendant Haverstock at the time of the accident in question. Answer: Curtis Smith.
“5th: If you find that one Curtis Smith was riding in said car at the time of said accident, is it not true that Smith’s only duty was to observe the mechanical workings of said car and correct the same if found defective? Answer: Yes.
“6th: Was it any part of the duty of said Smith to teach defendant Haverstock how to drive the car? Answer: No.
“7th: Is it not a fact: (a) That defendant Haverstock desired some one to accompany him to observe the mechanical operation of the car? Answer: (a) Yes.
(6) To make any adjustments that might be necessary? Answer: (b) Yés.
“(c) That Smith was riding in the car at the time in question for that purpose only? Answer: (c) Yes.
“8th: How much experience, if any, had the defendant Haverstoek had in driving automobiles prior to the accident in question? Answer: Not very much.
“9th: Had the defendant Haverstoek driven a Ford automobile prior to the day on which the accident occurred? Answer: Yes; once.
“10th: Had the defendant Haverstoek driven any other ears than the Ford car prior to the day of the accident? Answer: Yes.
“11th: If you find the defendant Jones guilty of negligence, state in what the negligence consisted. Answer: In allowing Haverstoek with insufficient experience in running a Ford car to run the car on a close-in crowded street. ■
“12th: If you find the defendant Haverstoek guilty of negligence, state in what the negligence consisted. Answer: In not stopping the car as quickly as he could have.
“13th: State who was in control of the car in question at the time of the accident. Answer: C. M. Haverstoek and Curtis Smith.”
There was no evidence that the situation presented by the petition, a dealer performing his customary function of teaching an inexperienced customer how to drive, existed. On the other hand, the proof was clear and undisputed that the automobile was not being driven for the purpose of giving Haverstock instruction, that Smith was not a demonstrator or teacher, that he was not in the automobile to teach Haverstock how to drive, that Smith had no right to control the operation of the car and did not attempt to do so, and that whenever a purchaser claims he knows how to operate a car, takes charge of it, and drives off, no instructor is sent with him. The result is the 11th finding has no basis upon which to rest. The duty which it assumes was not discharged, to see that the automobile was carefully operated while a customer received instruction in driving, did not exist, and, indeed, the nonexistence of this duty was established by the first seven special findings. Likewise the portion of the 13th finding which states that Smith was in control of the car is without any support in the evidence.
As indicated, the petition alleged- that Haverstoek was the agent of Jones at the time of the accident and that the operation of the automobile at that time was in furtherance of Jones’s business. No facts as to the nature of the agency and no facts as to the extent and purpose of Jones’s business were stated other than it was a part of his business to instruct inex perienced purchasers of automobiles, and that Haverstock was receiving instruction when the plaintiff was injured. The plaintiff’s evidence was confined to proof of the case thus made. On cross-examination of one of the defendants’ witnesses, called to prove that Smith did not go with Haverstock to teach him to drive, it came out that the practice is to inspect cars to see that they run properly. The proof which destroyed the plaintiff’s case against Jones, that Smith was not an instructor and Haverstock was not his pupil, included proof that Smith went with Haverstock to adjust the carburetor and spark plugs if “they were not hitting right.” An effort is made to erect a foundation for the judgment against Jones out of this material — a new cause of action not stated in the petition, not in the mind of the plaintiff up to the time when she rested her case, and suggested for the first time on cross-examination of a witness for the defendants.
It is a cardinal rule of interpretation that general averments in a pleading will be referred to specific matters particularly pleaded and not to some distinct and independent matter of which no hint is given. In the present instance the petition was drawn on the single, definite theory that it was a part of Jones’s business to teach the inexperienced Haverstock how to drive his new car, and that in driving the car Haverstock acted as the agent of Jones in furtherance of that business. No issue was tendered, either expressly or by inference or implication, that it was a part of Jones’s business to put cars in proper running order, that this car required testing and possible adjustment, that Smith was sent out with the car for that purpose, and that Haverstock was the agent of Jones to operate the car in furtherance of that business. There was no cause of action of that kind to submit to the jury.
The court gave some instructions relating to the subject of common enterprise which authorized the jury to consider the case in the aspect just discussed, and the question of Jones’s liability on that theory may be determined.
The car had been sold, delivered, and taken from Jones’s possession and control by the purchaser. Haverstock was driving the car to test its operation and to bring his daughter from school. He asked for one of Jones’s men to go with him to observe the mechanical working of the car and to make ad justments if any were necessary. Jones had tested the car by operating it before delivery to Haverstock, but it was a part of his business to see that the car was in working order and he complied with Haverstock’s request by sending Smith. Smith’s duty began and ended with observation of the mechanical'working of the car and mechanical adjustment of the parts if necessary. Neither Smith nor his master, Jones, had any authority to start or stop the car, to direct when or where or how it should go, or to control a single one of its movements while in operation. The evidence and the findings of the jury were that Haverstock, not Jones, desired some one to accompany Haverstock, that Haverstock desired some one to accompany him, not to drive but to observe mechanical operations, and if necessary to make adjustments, and that Smith was riding in the car for that purpose only. Haverstock, the owner and driver, surrendered none of his dominion over the car and its management, and Smith did not in fact interfere with Haverstock’s management of it. Although the enterprise was in a sense joint for certain purposes, management of the car was not one of them; and in the absence of right on the part of Jones to control the movements of the car, or actual interference with Haverstock’s control, Haverstock’s negligence in operating the car could not be charged to Jones.
In the case of Corley v. Railway Co., 90 Kan. 70, 133 Pac. 555, it was said:
“Where two persons are engaged in a common enterprise, using a conveyance for their purpose, each is said to be responsible for the acts of the other, but for this situation to arise each must have an equal right of control.” (p. 74.)
The Corley case, however, was one in which the injury was inflicted by the railway company on one of the occupants of the automobile while his companion was driving.
In the case of Anthony v. Kiefner, 96 Kan. 194, 150 Pac. 524, the driver of an automobile injured a third person, and an effort was made to charge his mother, who was riding with him, with liability. It was held the facts did not show the occupants of the automobile were engaged in a common enterprise, although the jury had so determined. In discussing the subject of the liability of one person for the negligent conduct of another when both are engaged in a mutual under taking the court expressly recognized the principle that right of control over the means and agencies effecting the injury, either control in fact at the time or control as master or principal, is essential to such liability.
The case of Judge v. Wallen, (Neb. 1915) 152 N. W. 318, L. R. A., 1915 E., 436, resembles the one under discussion. The syllabus, a portion of which is italicized to call attention to the principle involved, reads as follows:
“While two traveling salesmen are engaged in the joint enterprise of transporting themselves by automobile over the territory canvassed by both for different merchants, one of the salesmen owning and operating the automobile and the other paying sums about equal to the cost of gasoline and oil consumed, the latter, if possessing joint control over the automobile, may be liable for the negligence of the other in operating it; both being occupants at the time.”
Leaving decided automobile cases at one side, the question presented is easily solved by the application of elementary principles of law to the established'facts. If Jones be liable it must be on the principle of respondeat superior for the performance of the negligent act charged. The criterion of this liability is power of control. Unless the person sought to be charged with liability had authority to direct and control the action of the alleged servant or agent, the relation of master and servant or principal and agent did not exist and there was no superior to answer for the negligent act. Since Jones could not command Haverstock, either as servant or agent, with respect to what streets Haverstock used, or the rate of speed at which he drove, or when he turned, or how he turned, or on what side of the street he drove, or what signals he gave, Jones was not responsible for the way in which the car was operated.
In the case of Judge v. Wallen, referred to above, it was left to the jury to say whether or not the occupant of the automobile who was not driving had joint authority with the driver to control the car. The court said it was proper to do this because of certain facts recited in the opinion and because of “certain obvious rights” growing out of the mutual undertaking. Whenever the facts are disputed or give rise to conflicting inferences the question should be submitted to the jury, under appropriate instructions. In this case there is no conflict in the evidence relating to the controlling facts, the most material of which were correctly found by the jury in the first seven findings of fact. The evidence not only afforded no ground for the inference that Smith was in control of the car but showed affirmatively that he was not in control.
The 12th finding of fact was outside the issues and acquitted Haverstock of the negligence charged in the petition. (Creamery Co. v. Daniels, 72 Kan. 418, 419, 83 Pac. 986; Corley v. Railway Co., 90 Kan. 70, 71, 133 Pac. 555; Martin v. City of Columbus, 96 Kan. 803, 153 Pac. 518, and cases cited in the opinion.) The charges of negligence contained in the petition have been stated. It is contended that the last one may be interpreted as asserting that Haverstock was negligent in not stopping the car sooner than he did. ' Haverstock was proceeding toward the north and turned toward the east at a street intersection. The allegation was that he knew the intersection of streets was much used by pedestrians, that he saw or should have seen the plaintiff approaching the crossing, and saw or should have seen the plaintiff as she was proceeding southward immediately before the collision and in ample time to avoid it—
“But that the said Smith and the said Haverstock omitted carelessly and negligently to give any signal or sign of intention to turn to the east so that the said plaintiff was not aware and had no notice of the intention of the said occupants of said machine to turn or change the course of the machine.”
This allegation is susceptible of but one meaning. It does not pretend to charge that Haverstock ought to have stopped but could not or did not do so quickly enough. The sole fault attributed to him is that he did not signal the plaintiff so that she could have notice of his intention to change the course of the automobile.
The judgment of the district court is reversed and the cause is remanded with direction to set aside findings numbered 11 and 13 and render judgment for the defendant.
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The opinion of the court was delivered by
MASON, J.
:• A school district entered into a written contract with J. T. Allen for the building of a schoolhouse. Allen gave a bond executed by the Equitable Surety Company, conditioned for his faithful performance thereof. He failed to complete the building, and a number of mechanics’ liens were filed against it. The district sued the surety company and obtained a judgment against it for $1919.98 on account of the mechanics’ liens, and for an additional $500 for damages by reason of the failure to complete the building. The company appeals, contesting only the $500 item, on the ground that it was not covered by the bond.
The contract, between the school district and Allen was entered into and signed on March 26, 1913. The contract required Allen to “give bond according to the state law of the state of Kansas,” but made no other reference to the matter. The bond was executed on April 29, 1913. The condition upon which liability depended was stated in these words: “if the said principal shall faithfully perform such contract according to the terms, covenants and conditions thereof.” The only statute relating to a bond in such cases requires a public officer upon entering into a contract for constructing a public building to take a bond “conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building.” (Civ. Code, § 661.)
(1) In behalf of the surety company it is argued that inasmuch as the bond was given in pursuance of the contract, which required merely a bond according to the state law, it should be interpreted as intended to carry out the statutory purpose, and that the words binding the principal to the faithful performance of his contract should be construed as referring only to his payment of indebtedness for labor and material, thereby protecting the district against mechanics’ liens. We think the language of the bond too explicit to admit of a meaning so far from that naturally to be placed upon it. The surety company undertook that Allen should faithfully perform his contract according to its terms. This is the usual scope of a bond of this general character. A failure to pay material men and laborers is only one of a variety of ways in which a building contractor may violate his agreement. The bond here given must be held broad enough in its terms to cover the loss resulting from Allen’s abandonment of the building before its completion.
(2) Whether the bond is enforceable, construed as covering defaults other than those relating to liens, depends upon the sufficiency of the consideration for that part of the- guaranty. After a contract has been signed by the parties, an agreement of a third person, guaranteeing that one of them will carry out his part of it, can only be enforced where it is made pursuant to some prior understanding, or is supported by some new consideration. (27 Cyc. 306; 5 Elliott on Contracts, § 3936; 1 Brandt on Suretyship and Guaranty, 2d ed., § 26.)
Where a contract provides for security being given with respect to certain specified matters, and a bond which contains additional engagements is signed by a surety who receives no consideration, a question may well be raised whether his liability extends beyond the items covered by the original agreement. But here the surety is a corporation engaged in assuming such obligations for pay. It is practically an insurance company. (The State v. Construction Co., 91 Kan. 74, 81, 136 Pac. 905.) It receives compensation for its guaranty and therefore is not within the protection of the rule suggested.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs brought this action to restrain". the defendants from selling certain property claimed and occupied by plaintiffs but the title to which was in the name of' Edwin R. Crooker, a judgment debtor of Thomas H. Murray. Plaintiffs alleged that the deed from them which had conveyed the property to Crooker was in reality a mortgage to secure the payment of J. W. Saylor’s share of the purchase price of an agency contract for the sale of “family rights” and “agency contracts” pertaining to a patented crude oil burner owned by Crooker, and that the conditions of the mortgage' obligation had been discharged and satisfied.
A demurrer to plaintiffs’ petition was sustained by the district court and on appeal that judgment was reversed. (Saylor v. Crooker, 89 Kan. 51, 130 Pac. 689.) Thereupon the cause was remanded and tried by the court without a jury, and extended findings of fact and conclusions of law were made and a judgment for plaintiffs was rendered.
The defendants appeal, and the various errors assigned mainly turn on the question as to the duty of a court of equity when one who has deliberately engaged in an illegal enterprise seeks relief from its consequences.
There can be no doubt about the illegality of the contract between J. W. Saylor and Edwin R. Crooker. It was one of those characteristic “endless chain” swindles which appear occasionally in various parts of the country, designed to prey on the cupidity of the gullible. This is what the trial court said about it:
FINDINGS OF FACT.
“Twelfth: The agency contract purchased by said Saylor and Tinder from Edwin E. Crooker, and those authorized to be sold by them, thereby, were and are what is known as ‘endless chain contracts’ by the terms of which said Crooker in each several contract, by whomsoever sold, was to receive one-half of the consideration paid by the purchaser for such contract. Saylor and Tinder were, by such contract and the power of attorney attached thereto and made a part thereof, made, constituted, and appointed the lawful attorneys of the Little Crater Crude Oil Burner Company, and thereby authorized and required to sell contracts identical with the one purchased by them, as well as ‘Standard’ and ‘Special’ contracts, and they were thereby authorized to sign the name of' such company to all such contracts as they might find purchasers for, and they were limited as to place of sale, only within the limits of the United States, and were thereby authorized to execute powers of attorney to sell said agencies identical with their own, and they in turn to execute such powers of attorneys, and so on without end, so that each purchaser of a patentee agency contract was obligated to sell such contracts to others, anywhere within the limits of the United States, and delegating like powers and authority to such others, ad infinitum.
“Thirteenth: Saylor and Tinder having contracted to pay $5000.00 for their agency contract, by the terms thereof, they having to pay one-half of the amount received from the sale of their contracts, to said Crooker, would have to sell two similar contracts in order to get a return of their money thus invested, and the two to whom they sold would have to sell four of such contracts in order to get a return of their investment, the four would be compelled to find purchasers for eight thereof in order to make themselves whole in the transaction, and to get away from Crooker with ten separate groups of purchasers, the last group would have to sell 1024 agency contracts of a like kind to break even with their investment, in such a deal none of the purchasers would have made a cent in the transactions and Crooker would have thus stolen a sum equal to $5,080,000.00, and yet there would have been but 2046 of the hundred million people of the United States who had been duped, continue the deal but two groups further, or to twelve away from Crooker, and we would have 5118 who had been robbed, and Crooker will have reaped a harvest of $20,440,000.00 for all of which neither he nor any of said agents ever gave one cent’s consideration; to pursue this a few groups further, and the figures would become so enormous that it would almost stagger one to contemplate it.”
It is familiar law that where two parties to an illegal transaction are equally in the wrong, neither can ordinarily obtain relief from a court of equity. The court will simply leave them where they placed themselves: There are some qualifications upon that rule, however, although it may not be necessary to bring them to the fore in the instant case. Let us first apply this elementary rule here. Crooker’s deed to Saylor’s property is in fact a mortgage. The mortgage was given by Saylor in payment of the purchase price of an illegal agency contract. The Saylors are in possession. Here the ancient maxim naturally intrudes: “In pari delicto melior est conditio possidentis” (Where parties are equally at fault, the situation of the possessor is the better one). Crooker holds only an unenforceable mortgage on Saylor’s property. Murray, an attaching creditor of Crooker, can neither attach, acquire nor subject to execution sale any greater interest in the Saylor property than Crooker. An attaching creditor seizes only the existing interest of his debtor. No more. (Hall v. Terra Cotta Co., ante, p. 103, 154 Pac. 210, and cases cited.) The fact that the record title was in Crooker takes nothing from the certainty of this proposition. (Harrison & Willis v. Andrews, 18 Kan. 535; Holden v. Garrett, 23 Kan. 98; 4 Cyc. 564; 17 Cyc. 967.)
Viewing this case from another angle, and again applying the elementary doctrine that the courts will not aid in carrying out an illegal transaction, it must be clear that if this attaching creditor of Crooker is permitted to seize and sell Saylor’s property to satisfy Crooker’s debt to Murray, there is in effect an active and positive judicial interference to aid in carrying out to its completion the illegal transaction between Saylor and Crooker, and to give Crooker the full benefit of that illegal contract.
Moreover, there is still another view, and one well sustained by the authorities. Equity does sometimes interfere to relieve one of two parties who are in pari delicto. It will do so if its forbearance would result in a still greater offense against public morals and good conscience. This doctrine is well illustrated in the case of Hobbs v. Boatright, 195 Mo. 693, 93 S. W. 934, 5 L. R. A., n. s., 906, where the plaintiff was permitted to recover $6000 which he had lost in a fake foot race, although he himself was a party to a conspiracy to defraud others. It was there said:
“The difficult question in the case is, upon which side of this controversy should the law of public policy be applied? Plaintiff schemed with men, as he supposed, to defraud others; his only disappointment was that the men with whom he thought he was scheming had readily schemed to defraud him, and they did fleece him to the sum of $6,000. If we should now say to the plaintiff, ‘you cannot recover because, although you did not accomplish what you intended, yet your purpose was to assist those men to defraud others, and, therefore, you are as guilty as any of them,’ we would, by so saying, allow the gang and their aiders and abetters to go free, retain the booty, and set their traps again. The doctrine that courts will not aid a plaintiff who is in pari delicto with the defendant is not a rule of universal application, it is based on the principle that to give the plaintiff relief in such case would contravene public morals and impair the good of society; therefore the rule should not be applied in a case in which to withhold the relief would, to a greater extent, offend public morals. To promote the good of the public is the highest aim of the courts in the application of this doctrine. Under the head of exceptions to the rule in 9 Cyc. 550, it is said: ‘Although the parties are in pari delicto, yet the court may interfere and grant relief at the suit of one of them where public policy requires its intervention, even though the result may be that a benefit will be derived by a plaintiff who is in equal guilt with the defendant. But here the guilt of the parties is not considered as equal to the higher right of the public; and the guilty party to whom the relief is granted is simply the instrument by which the public is served.’ A question of what is public policy in a given case is as broad as a question of what is fraud in a given case, and is addressed to the good common sense of the court.” (p. 715.)
(See, also, the citations and the Note in the foregoing L. R. A. report.)
We would hardly say that the Saylor-Crooker contract was as vicious and immoral as the transaction in the Boatright case just cited. Its illegality is more analogous to that of the “Bohemian Oats” swindle which was perpetrated repeatedly over a wide section of the country thirty years ago. (Shipley v. Reasoner, 80 Iowa, 548, 45 N. W. 1077; McNamara v. Gargett, 68 Mich. 454, 36 N. W. 218; George Shirey v. Isaac Ulsh, 2 Ohio C. C. 401; Richard Carter v. J. W. Lillie et al., 3 Ohio C. C. 364)
In all these cases, the parties seeking relief were denied it because to do so would give countenance to the illegal transactions. Here, however, unless equity interposes, the. mortgage given as consideration for the illegal contract will be enforced — aye, more, it will be given all the potency of a valid and indefeasible conveyance, and the property will be subjected as legitimate assets of Crooker to the satisfaction of Crooker’s debts. This would be carrying the illegal contract much further than Saylor and Crooker ever contemplated, and attaching consequences to it which it would not warrant if the transaction had been entirely free from legal infirmities. In such a situation, neither equity nor good conscience should hesitate to frustrate such result.
In the trial court’s conclusions of law it was assumed that in our former decision directing that the demurrer to the petition be overruled we necessarily considered and determined that the Saylor-Crooker contract was “fair, valid and binding.” - Nothing to that .effect was said in the opinion, and by resorting to the briefs in that case the writer finds that the question as to the legality of the contract was not discussed by counsel for either party. Indeed, the briefs gave not the slightest hint as to the views of the trial court on the illegality of the Saylor-Crooker contract. (Vol. 7, Briefs 89 Kan. Files of State Library.) Very properly, then, this court’s decision was confined to the propositions which counsel chose to present.
However that may be, by a very different course of reasoning the trial court arrived at a just and equitable result, and its judgment is substantially correct.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, W, C. Hall, commenced this action on October 12, 1912, against The Kansas City Terra Cotta Company to recover on the defendant’s promissory note, and on the same day caused garnishment proceedings to be served on Albert Neville, a Coffeyville contractor. Neville, the garnishee, answered, and alleged that on July 26, 1912, he had entered into a written contract with the defendant, The Kansas City Terra Cotta Company, for certain materials to be delivered to him at Coffeyville on or before September 20, 1912. Other allegations covered failure of the terra cotta company to comply in full with its contract, consequent damages to garnishee, including freight bills which he was compelled to pay for the defendant, etc. He also pleaded that on November 16, 1912, he had been notified by The Southwest National Bank of Kansas City, Mo., that the claim of the terra cotta company had been assigned to it on September 16, 1912, and advising him that all the proceeds of his contract should be paid to the bank. He also prayed that the bank should be impleaded and required to set up its rights, and that he be protected.
By leave of court, the bank filed its answer and cross-petition ; and by agreement of parties, and with the approval of the court, Neville, the garnishee, was permitted to pay into court a sum of money and was discharged. This action thereupon proceeded between the plaintiff and the interpleading bank.
Incorporated in the terms of the terra cotta company’s note of September 16, 1912, to the bank was the following:
“Having deposited with said bank as collateral security (being the legal holder) for the payment thereof, and also for all other present or future demands or claims of any kind of the said bank against the undersigned due or not due (Give brief description or summary of collateral here) Sundry contracts which the makers and endorsers hereof hereby authorize said bank, or its President or Cashier, to sell without notice at public or private sale at option of said bank or its assigns (and with the right to said bank or its assigns to be the purchaser of all or any part of said collateral, or any such sale), in case of non-performance of the promise, applying the net proceeds to the payment of the note, including, interest, and accounting for the surplus, if any, and in case of deficiency, promise to pay said bank, or its order, the amount thereof forthwith after such sale, with interest as provided above; and in case of any exchange of or additions to, the collaterals above named, the provision of this note shall extend to such new or additional collaterals. The margin of collaterals to be kept satisfactory to said bank, or in default thereof, the note to become due and payable.”
The instrument purporting to assign the Neville contract to the bank professed on its face to be an “Assignment of Collateral, Contracts for Work and Material.” In substance it recited that the terra cotta company was a customer of the bank, indebted to it, and contemplated further indebtedness, and to secure the payment thereof, the debtor set over to the bank certain items including the Neville contract; and continued thus:
“The purpose of this assignment is to'transfer to assignee the net contract price, that is to say, the sums due and to accrue upon this contract to assignor over and above necessary expenditures of like nature at the point of construction — no allowances for outlays or expenditures at point of manufacture to he made except upon written consent of assignee.
“To avoid embarrassment to business of assignor and to relators of assignor with contracting parties, assignor is hereby made agent of assignee, to receive and receipt for sums due and payable and to become due and payable upon the above assigned items; however, same to be for account and use of assignee, and all sums so collected by said assignor to be forthwith turned over to assignee for credit in pursuance of the purpose above stated. Provided however, that this agency is to be subject to revocation by assignee and right of accounting at any and all times is expressly reserved.”
The district court found that the terra cotta company was indebted to the bank, and that for the purpose of securing the same and to procure a further loan which was then made the contract between Neville and the terra cotta company was assigned and delivered to the bank on September 16, 1912; that the bank did not notify Neville until about a month after this action and garnishment were begun. The court’s judgment, in part, proceeds thus:
“The court further finds that said assignment, taken and considered in connection with a number of similar transactions between the said Terra Cotta Company and the bank, and their method of doing business and course of dealing, as shown by the evidence, is and was a conveyance intended to operate as a mortgage of personal property and that it was not accompanied by a delivery to the bank of the property nor was it followed by any actual or continued change of possession of the property covered by the conveyance.
“The court further finds that neither said assignment from said Terra Cotta Company to said bank, nor any copy thereof was ever filed or made of record in the office of the register of deeds of Montgomery county, Kansas, or elsewhere, and that the said assignment is void as against the plaintiff, W. C. Hall.”
From this judgment and its incidents the bank appeals.
The general rule is that garnishment, like other proceedings in invitum, only affects the actual property, money, credits and effects of the debtor in the hands of the garnishee, and the rule relating to bona fide holders or purchasers without notice has no application. (Investment Co. v. Jones, 2 Kan. App. 638, 42 Pac. 935; Bradley v. Byerley, 3 Kan. App. 357, 42 Pac. 930; Johnson v. Brant, 38 Kan. 754, 17 Pac. 794; Lumber Co. v. Trust Co., 54 Kan. 124, 37 Pac. 983; Bank v. Bank, 80 Kan. 205, 207, 101 Pac. 1005; Mason v. Saunders, 89 Kan. 300, 131 Pac. 562.)
In 20 Cyc. 1012-1017, it is said:
“Where the principal defendant has made a valid assignment of the garnishee’s indebtedness, or conveyance of the property in his posses sion belonging to such defendant, before the service of the summons upon the garnishee, the latter can not be charged on account of such debt or property.
“The above rule is especially applicable to bills of exchange, promissory notes, and other evidences of indebtedness, and where such paper is assigned or transferred in good faith before the drawer, maker, or indorser thereof is served in garnishment proceedings by a creditor of the payee, or of the last holder thereof, the rights of the assignee or transferee are not affected by such proceedings.
“In the absence of statutory provision prescribing the mode of assignment, no particular mode or form is necessary to effect a valid assignment of property, claims, or debts so as to defeat garnishment proceedings by a creditor of the assignor. If the intent of the parties to effect an assignment be clearly established,'that is sufficient, and the assignment may be in the form of an agreement or order or any other instrument which the parties may see fit to use for that purpose. . . . The rule is sometimes broadly stated that an assignment is not complete so as to defeat proceedings in garnishment until the garnishee is notified thereof; however, this rule seems to be subject to limitations; thus as between assignor and assignee, it is not necessary to the validity of an assignment that the garnishee be notified'thereof; and the assignment will likewise be complete as against creditors of the assignor instituting garnishment proceedings after assignment and before notice of the assignment to the garnishee, provided that notice of the assignment be given to the garnishee in time to permit him to disclose the assignment in his answer to the garnishee process.”
The district court treated the assignment of the contract between the terra cotta company and Neville as a chattel mortgage. If it were treated as a mortgage of the contract, then the possession of the contract by the bank would obviate all necessity for its registration. Nothing is more common than the advancement of funds to contractors and manufacturers, and while banks with proper prudence usually take more tangible security than the potential and possible future profits of the pending contracts of the borrowers, yet there is no impropriety in taking an assignment of the latter also; nor does the statute require such assignments to be recorded.
When the borrower thus assigns his contract or the possible profits of his contract in good faith, such assignment should be respected. Nor can a later garnishing creditor justly complain. The garnishment process only reaches the property, assets and credits of the debtor, and not that of which the debtor was formerly the owner nor that which he has lawfully assigned to a third party.
This view seems to be amply sustained by the authorities. In James Clark & Co. v. Wiss & Ballard, 34 Kan. 553, 9 Pac. 281, it was held that “a debt due for goods sold and delivered, and resting for evidence on a book account, may be assigned, and such assignment is valid if made by mere delivery.” (p. 555.) In the case at bar, the debt due from Neville to the terra cotta company for goods sold and delivered and resting for evidence on a written contract was assigned to the bank, and such assignment must likewise be valid though made only by mere delivery of the contract.
In Bank v. Bank, 80 Kan. 205, 101 Pac. 1005, it was said:
“We understand that when personal property is pledged the pledgee acquires a right thereto which is superior to any right that can thereafter be given by the pledgor or be acquired by a subsequent attachment issued in an action against him. (22 A. & E. Encycl. of L. 867, 868, and notes; Bank v. Harkness, 42 W. Va. 156.) The assignment and delivery of the certificate constitutes a delivery of the property represented thereby. (22 A. & E. Encycl. of L. 956.) In the second edition of Jones on Pledges and Collateral Security, section 37, it is said:
“ ‘A delivery of a document of title, which serves to put the pledgee in possession of the goods, is equivalent to an actual delivery of them.’
“This question was discussed and authorities were collected in the case of Bank v. Harkness, 42 W. Va. 156. (See, also, Continental Nat. Bank v. Eliot Nat. Bank, 7 Fed. 369.) The great weight of authority seems to be that this kind of delivery is sufficient to constitute a pledge. A completed pledge has the effect of depriving the pledgor of all control over the property, as far as the interest of the pledgee is concerned. He can neither sell nor encumber it so as to dispose of or impair the rights of the pledgee therein. It seems clear that what he can not do personally can not be done by a writ of attachment. Generally, the rule has been that an attachment takes only the interest which the owner has when the writ is levied.” (p. 207.)
The latter case is also pertinent on the question of the necessity for registration or other notice. It was said:
“The fact that the attachment creditor acted in good faith and without notice of the pledge is not important, as there is no law requiring pledges to be recorded.” (p. 208.)
It is urged that the assignment of this contract was only part of a larger transaction in which the terra cotta company mortgaged its entire plant and assets to the bank, and since such mortgage was unrecorded, it and all its incidents, including this assignment, are void against the plaintiff armed with a writ of garnishment. This view did not meet the approval of this court in the Clark case, supra, where the assignee of the book accounts prevailed against the garnisheeing creditor, notwithstanding the defects in the mortgage under which the assignee also claimed.
Again, it is urged that under the assignment, the bank was only to receive whatever net profit might result from the Neville contract, and there was none such at the time of the assignment, consequently nothing was conveyed to the bank. To this there appears to be two answers: (1) Neville has paid a sum of money into court, which seems to settle the question as to whether he owed the terra cotta company. (2) The instruments from the terra cotta company which we have set out above do not justify the interpretation that only the net profits of the Neville contract were assigned to the bank. The pertinent clause is:
“The purpose of this assignment is to transfer to assignee the net contract price, that is to say, the sums due and to accrue upon this contract to assignor over and above necessary expenditures of like nature at the point of construction — no allowances for outlays or expenditures at point of manufacture to be made except upon written consent of assignee.”
The “point of construction” was Coffeyville, and the “point of manufacture” was Kansas city. The net proceeds thus included the cost of manufacture, so that the assignment, fairly read, covered much more than mere possible net profits. It virtually covered the value of the goods furnished, less possible charges at Coffeyville.
This brings us to the concluding question, and, indeed, to the only question which presents any serious difficulty in this case. We have said that if this conveyance were treated as a chattel mortgage, the physical possession of the contract by the bank would obviate the necessity of its registration. The law is equally well settled that if it were treated as a pledge, neither registration nor notice would be necessary to enforce it. But the appellee, with much force and show of authorities, insists that the appellant can not rely on these settled prinr ciples because the bank did not have exclusive control over the contract and its pertinent incidents; that the bank left the terra cotta company in control; that the bank disavowed any responsibility to carry out the contract assigned to it; that the terra cotta company afterwards changed and reduced the contract price with Neville without the knowledge and consent of the bank; that it adopted the assignor as its agent to receive and receipt for sums due and to become due under the contract, requiring it to account to the assignee for the moneys thus collected.
Does this situation create any distinction recognized by the precedents? As a chattel mortgage it undoubtedly would do so, for however binding such a mortgage would be between the parties, it would not affect third parties where the mortgage was not recorded and the mortgagee was not in exclusive possession. (Swiggett v. Dodson, 38 Kan. 702, 17 Pac. 594; Boot & Shoe Co. v. Ware, 47 Kan. 483, 28 Kan. 159; Geiser v. Murray, 84 Kan. 450, 114 Pac. 1046.) The same necessity as to possession applies to pledges; the pledgee must secure and maintain exclusive control of the thing pledged. (Raper v. Harrison, 37 Kan. 243, 245, 15 Pac. 219; Gray v. Doty, 77 Kan. 446, 448, 94 Pac. 1008; Atkinson v. Bush, 91 Kan. 860, 139 Pac. 393; 5 R. C. L. 387.)
But in our opinion the assignment was neither a chattel mortgage nor a pledge. It was simply what it purported to be — an assignment of a sum or sums of money due and to become düe. There was nothing about the transaction which was unusual or against public policy. This general subject is one which might well be regulated by statute but so -far it has been left free to develop in the usual course of modern business. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612, syl. ¶¶ 4, 5; Columbia Finance & Trust Co. v. First Nat. Bank, 116 Ky. 364, 76 S. W. 156; Thayer v. Daniels, 113 Mass. 129; Whittredge v. Sweetser, 189 Mass. 45, 75 N. E. 222; Muir v. Schenck, 3 Hill [N. Y. Supr. Ct.] 228; Niles v. Mathusa, 162 N. Y. 546, 57 N. E. 184; Central Trust Co. v. West India Imp. Co., 169 N. Y. 314, 62 N. E. 387; U. States v. Vaughan, 3 Binney (Pa.) 394; Downer v. South Royalton Bank, Chamberlain et al. Claimants, 39 Vt. 25; Tingle v. Fisher, 20 W. Va. 497; Bank v. Harkness, 42 W. Va. 156, 24 S. E. 548; 4 Cyc. 17, 20.)
We do not think the fact that the terra cotta company was made the agent of the bank to collect the proceeds of the contract can affect the validity of the assignment. Neither can the later modification of the contract by remitting $330 of the contract price. That deduction in plain terms recognized that “this money is subject to the order of the court.” Recurring to the proposition first laid down, that the garnisheeing creditor can reach only the property of the defendant in the hands of its debtor, the plaintiff could not reach or attach that which had already passed by lawful assignment, and this necessitates a reversal of the judgment with instructions to render judgment for the interpleader.
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■The opinion of the court was delivered by
Burch, J.:
The action was one by a real-estate agent to recover a commission which another real-estate agent agreed to pay. The general verdict was for the plaintiff. The court granted a new trial on the ground that certain special findings returned by the jury were inconsistent with themselves and with the verdict. The plaintiff appeals.
The defendant, Trainer, who lived in Chicago, represented Cooper, the owner of the Admar ranch in Kingman county. The plaintiff, Beeson, who lived in Washington, Kan., had on his list a body of land situated in Pottawatomie county belonging to Williamson. Trainer’s advertisement of the Admar ranch was answered by Hackney, a real-estate agent of Washington, Kan., and Hackney arranged for a meeting between Trainer and Williamson to take place at Manhattan. Beeson went to Manhattan at the request of Hackney and Williamson. Trainer expected to find Hackney at Manhattan, but was told by Beeson that Hackney did not think it was necessary for him to be present so long as Beeson was there. Negotiations resulted in a trade between Cooper and Williamson. Trainer, Beeson and Williamson met at the Gillett Hotel in Manhattan to conclude the transaction. Trainer dictated a contract between Cooper and Williamson, which was signed by Trainer for Cooper, and by Williamson. At the request of Beeson, Trainer then wrote a contract to pay Beeson one-half of $5000, the commission coming to Trainer from Cooper, and wrote a contract for Williamson to sign, wherein he agreed' to pay Beeson a commission for representing him. These instruments were talked about and were signed in the presence of Trainer. Both commission contracts were in accordance with previous oral agreements, and Beeson promised to protect Trainer against any claim which Hackney might make. Williamson fully understood that Beeson was to receive a commission from Trainer, and freely consented that he should do so.
The action was founded on the written contract between Trainer and Beeson. The principal defense was that Trainer was induced to agree to pay Beeson a commission through false representations that Williamson would not pay Beeson a commission, and that Trainer was ignorant of the fact that Beeson was getting a commission from Williamson. Another defense was that Beeson agreed to release Trainer if Williamson finally agreed to pay a commission to Beeson. These defenses failed, and Beeson’s claim was ultimately resisted on the unpleaded ground that Beeson did not fully disclose his dual agency to Williamson.
The special findings of fact read as follows:
“1. Do you find that the plaintiff, Beeson, fully made known to the defendant, Trainer, the fact that Williamson agreed to pay him, the plaintiff, a commission for his services as agent, and that Beeson disclosed this fact to the defendant prior to the time the written agreement sued'on was signed by Trainer? A. Yes.
“2. Did the defendant, Trainer, freely consent that plaintiff, Beeson, should act for both the defendant and Williamson, and that he should receive commission from both parties? A. Yes.
“3. Did the defendant, Trainer, have knowledge that Williamson had signed an agreement to pay plaintiff, Beeson, a commission of $1890 for his services as agent, prior to the signing of the written agreement by Trainer? If you find in the affirmative, state the source of his knowledge, when he acquired it and where? A. Yes. When he had written the agreement and gave to Williamson to sign. Jan. 18th, 1913. In the Gillett Hotel.
“4. Did the plaintiff, Beeson, fully disclose to his principal, Williamson, the fact that the defendant, Trainer, had agreed to pay him, the plaintiff, a commission of $2,500 for his services as agent of defendant, and did the plaintiff fully disclose the fact of his employment by Trainer to Williamson prior to accepting a.written agreement for compensation from Williamson. A. No.
“5. Did Williamson freely consent that the plaintiff, Beeson, should act as the agent of both the defendant and Williamson, and that the plaintiff should receive compensation from both parties? A. He did.
“6. Did Williamson have knowledge that his agent, the plaintiff, had accepted employment in this transaction from the defendant, Trainer, and that he had accepted a written agreement from said Trainer for the payment of a $2,500 commission, at any time prior to the consummation of this trade? If you answer this question in the affirmative, state the source of his knowledge, when he acquired it, and where. A. No.
“7. Was the written agreement between Trainer and Beeson procured by false and fraululent representations made by Beéson to Trainer, relative to his, Beeson’s, not being able to get Williamson to pay plaintiff a commission? A. No.
“8. Did Beeson render any service to defendant under a contract, express or implied, with the defendant in effecting an exchange of said properties? If you answer in the affirmative state when, where and how said services were rendered. A. Yes. From the time he met Trainer at the Gillett, until the 19th of Feb. 1913. In Kingman Co., Manhattan and Topeka. By helping to bring the parties concerned together and consummating this trade.”
The court having specified the ground on which a new trial was granted, none other is open to consideration.
The supposed inconsistency is between findings 4 and 6 and finding 5. Questions 4 and 6 were compound questions. It is the duty of the court to interpret the answers in such a way as to harmonize all the findings with each other and with the ■ general verdict if it be possible to do so. In order to do this, the answer to a compound question may be considered as a literal response to the entire question and not as if independent answers were made to each inquiry. Beeson did not disclose to Williamson the fact that Trainer had agreed to pay Beeson a commission of $2500; so the fourth finding was properly in the negative. Williamson did not know that Beeson had accepted a written agreement from Trainer for the payment of a commission prior to the consummation of the trade, because there wás no written agreement relating to commission prior to the consummation of the trade; so the sixth finding was properly in the negative. Williamson might freely consent that Beeson should act for both Trainer and himself and receive compensation from both without knowing just how much Trainer was to pay, and without knowing whether the arrangement between Trainer and Beeson was oral or in writing. With respect to the division of commission between Trainer and Beeson, Williamson testified he understood Trainer was dividing commission with Beeson, but that it was none of his (Williamson’s) business if Trainer were giving part of it or all of it. Of course it was not material whether the agreement between Trainer and Beeson to divide Trainer’s commission were oral or in writing. That Williamson did freely consent that Beeson should act for Trainer as well as for himself and receive a commission from both was fully established by Williamson’s own testimony. Under these circumstances the findings may not only stand with each other but may stand with the general verdict.
The defendant assigns as error the overruling of his demurrer to the plaintiff’s evidence. The argument is that the evidence shows Beeson forfeited his commission because he did not fully disclose to Williamson his relation to Trainer. In order to meet the demands of public policy, a real-estate broker acting for both vendor and purchaser must do so with the full knowledge and consent of both in order to recover a commission from both. Full knowledge means knowledge of every fact which would naturally affect the action of the agent. (Crawford v. Investment Co., 91 Kan. 748, 139 Pac. 481; Hoffhines v. Thorson, 92 Kan. 605, 141 Pac. 253.) In the Crawford case, Hughes, one of the landowners, knew nothing whatever of the commission, and only a bare hint of the dual relation was given to the secretary of the investment company. In the Hoffhines case, Snyder, one of the parties to the trade, did not know that the agent was acting for the other party. In this case the amount of the commission to be paid by Trainer and the manner in which it was secured, whether by oral or written promise, were unimportant. The fact of the dual agency was the important thing, and this fact was understood and consented to by Williamson from the beginning. It will be recalled that Hackney brought Williamson and Trainer together. It was Hackney who arranged for the Manhattan meeting. Before doing this Hackney corresponded with Trainer and secured from him an agreement to pay a commission. Hackney showed this correspondence to Williamson, and Williamson believed that Hackney and Beeson were working together. Under these circumstances, Hackney and Williamson both asked Beeson to go to Manhattan, and Hackney did not go because it was not necessary so long as Beeson was there. Williamson testified as follows:
“Q. Did you know at that time of Beeson’s having secured a written agreement from Trainer for a division of commission? A. Did I know that he had—
“Q. Secured a written agreement for it? A. Beeson?
“Q. Yes. A. Why no, I don’t think I knew that. I did n’t know they went into any agreement, that is, as a written agreement. I don’t remember anything like that.
“Q. Did Beeson inform you of the fact that he had a written agreement or expected to receive a commission from Trainer? A. Well, he did n’t say anything about a written agreement, but they had — it was my understanding that he was dividing a commission with Trainer; yes, that was the understanding.”
It may be true that Beeson did not at any time say to Williamson in so many words that he was acting for Trainer, but it was not necessary that he should do so, because Williamson himself brought Beeson into the negotiations on the assumption and with the understanding that Beeson was to receive a commission from Trainer. All that was then necessary was that Trainer be informed of Beeson’s relation to Williamson, and consent to it. There is no claim that Beeson fraudulently favored one client at the expense of the other, and both parties having had the benefit of his knowledge, advice, and assistance, he is entitled to the compensation which each agreed to pay.
The contract between Trainer and Beeson reads as follows:
“To Mr. F. E. Beeson:
'' “I herewith agree to pay you one-half of five thousand dollars to be paid me by S. T. Cooper upon payment by said Cooper as your pay for aiding me in securing sale of the lands of said Cooper under the terms of contract made January 18, 1918, between Matt V. Williamson and S. T. Cooper. William 0. Trainer.”
There was evidence that Cooper had settled with Trainer for $2875 and that nothing more was due. Trainer argues that time for payment to Beeson has not yet arrived because Cooper has not yet paid $5000. Contracts are not so easily defeated. This one impliedly warranted that the amount to be paid by Cooper was $5000, one-half of which was due Beeson when Cooper paid. Cooper has paid, and Trainer must now pay.
The judgment of the district court is reversed and the cause is remanded with direction to enter judgment on the general verdict.
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The opinion of the court was delivered by.
West, J.:
This is an appeal from a judgment for damages recovered by the plaintiff for injuries sustained by being thrown from one of the defendant’s street cars. It was al leged that the car gradually came to a stop at or near the west curb line of Eleventh street, and that as the plaintiff attempted to descend the steps when the car had become stationary the car, without warning, suddenly started, throwing her to the pavement and injuring her. It was contended by the defendant that the plaintiff negligently attempted to alight while the car was in motion and thus by her own fault received whatever injury she suffered. There was competent evidence to support both theories. The jury returned a general verdict in favor of the plaintiff.
The first assignment of error, the refusal to direct a verdict for the defendant, is, in face of the conflicting evidence, without merit.
Certain complaints touching the giving and refusing of instructions are made, but a careful examination of the entire matter leads to the conclusion that the jury were properly charged.
There was an allegation' that the conductor negligently failed to assist the plaintiff to alight, but not only was this feature of the case ignored in the instructions and but little attention paid to it in the evidence, but the counsel for appellant in their brief say that there is but one question involved — the negligence in starting the car and the alleged contributory negligence of the plaintiff in attempting to alight while the car was in motion. Hence the refusal of certain instructions as to the duty of a conductor to help passengers to alight becomes immaterial.
The defendant submitted ten questions, seven of which were answered and three of which were stricken out by the court. The seven had reference to the usual stopping place of the cars, to the slowing up of one on which the plaintiff was riding, to the nonaccidental nature of plaintiff’s fall and the place where it occurred. In answer to question No. 10, the jury found that the plaintiff fell from the car about twenty-three feet east of the usual and customary stopping place at Eleventh street. Question No. 6, refused, was substantially covered by this. Question No. 5 and the answer were:
“Do you find from the testimony that the car was slowing- up for the Eleventh street stop when the plaintiff stepped or fell off of the car? A. It slowed up and stopped.”
Questions Nos. 3 and 4 were whether when the plaintiff fell from the car it was moving about two miles an hour, and if not, at what speed was it moving when she attempted to alight ? While these questions were of themselves proper and should have been given, the answer to question No. 5 was so nearly an essential answer to all three that no prejudicial error appears to have resulted from the rejection.
Counsel severely criticize the answer to question No. 2, that the plaintiff did not know that the usual and customary place of stopping was opposite the sidewalk on the west side of Eleventh street, and assert that it is directly contradictory to the testimony of the plaintiff herself that she knew the usual stopping place was “at a point where the rear steps of the car would be practically opposite the sidewalk.” It seems to have been generally understood that the rule was to stop on the farther side of the street, and this the plaintiff in effect admitted, but had the question been answered the other way, and had the plaintiff in fact known that the usual and customary place for stopping was opposite the sidewalk on the west side of Eleventh street, such knowledge would not have precluded her from attempting to alight when she thought the car, in obedience to her signal or request, had come to a stop, although a few feet this side of the usual stopping place.
It is contended that the finding that the car slowed up and stopped is against the overwhelming weight of the evidence, but there was some competent evidence to support such finding, there was no motion to set it aside and it was approved by the trial court, and we can not disturb it.
Some complaint is made that excessive damages Avere allowed, but an examination of the record discloses nothing requiring reversal or modification on that ground.
The plaintiff was injured. Somebody was careless. The jury and the trial court have from competent evidence concluded that it was the defendant. No error materially prejudicial appears and this conclusion must stand.
The judgment is affirmed.
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The opinion of the court was delivered by
Six, J.:
This case concerns a public employee pension statute of limitations controversy arising from a 1974 city-county law enforcement consolidation. The plaintiffs law enforcement officers (officers) were originally employed by the City of Manhattan (City). Consolidation changed their employer from the City to the Riley County Law Enforcement Agency (RCLEA). Sixteen years after the consolidation, the officers brought their pension benefits challenge against defendants Kansas Public Employees Retirement System (KPERS) and the City. The district court entered judgment against KPERS, ruling that K.S.A. 19-4441(d) and (e), K.S.A. 74-4957(3), K.S.A. 74-4958(1), and K.S.A. 74-4965(1), the statutes which provided a different retirement plan for the consolidated RCLEA, contravened Art. I, § 10 (the Contract Clause) and the Fourteenth Amendment of the United States Constitution. KPERS successfully cross-claimed against the City for reimbursement under an indemnification theory. The City and KPERS appeal.
We reverse and remand for dismissal.
The dispositive issue is whether the officers’ claims are barred by the statute of limitations. Our answer is, ‘Tes.” Consequently, we do not reach the additional issues of whether: (1) the RCLEA pension plan statutes are unconstitutional as applied to the officers and (2) tire district court’s reimbursement order was erroneous.
FACTS
The officers were originally hired by the City before 1970. They were enrolled in a pension plan which the City was required to provide under K.S.A. 13-14a01 et seq.
By electoral vote, Riley County (County) adopted a consolidated law enforcement agency under K.S.A. 19-4424 et seq. (In 1972, the legislature by statute authorized county elections to determine if law enforcement in the county should be consolidated.) The City and the County in 1974 consolidated the City’s police department and the County sheriff department into RCLEA, with a police department branch. On December 31,1973, all the officers ceased to be police officers for the City, and on January 1, 1974, became officers for RCLEA.
On January 1, 1974, RCLEA affiliated with the Kansas Police and Firemen’s Retirement System, a subdivision of KPERS, to provide pension benefits from January 1, 1974, forward. The KPERS pension plan required an employee contribution of 7%, as opposed to the City plan’s 3% employee contribution. K.S.A. 74-4965(1). The officers’ first paychecks from RCLEA in 1974 contained a deduction for the higher employee contribution. The KPERS plan also: (1) increased the number of years of service required to receive retirement benefits from 22 to 25 years, K.S.A. 74-4957(3), and (2) calculated retirement benefits based upon years of service multiplied by 2% of the final average salary, as opposed to 50% of the final salary under the City plan, K.S.A. 74-4958(1).
The Procedural Journey
Based on the changes in their pension plans which resulted in reduced benefits, the officers filed an action under 42 U.S.C. § 1983 (1994) in federal district court on May 21, 1990, claiming damages for deprivation of rights under color of state law. On February 27, 1991, they filed this case as a 42 U.S.C. § 1983 action in the district court of Riley County. The defendants in both cases were KPERS, the County, and the City. The federal case was dismissed. The officers alleged in the federal case and here that the defendants, under color of state law, had breached their employment and pension contracts.
Venue was transferred to the district court of Shawnee County. The district court dismissed the County as a party. The City moved for summary judgment, and KPERS moved to dismiss.
The District Court’s Ruling
The district court restructured the officers’ claims from a 42 U.S.C. § 1983 color of state law action to a written contract action controlled by K.S.A. 60-511 (5-year statute of limitations), denied defendants’ motions, and sua sponte granted summary judgment to the officers, awarding damages. The district court found that the City’s statutory pension obligations under K.S.A. 13-14a01 et seq. created a written contract between the officers and the City. The district court reasoned that the City police department was not abolished; it was consolidated with the County sheriff’s office. Since the officers were not discharged from the City, they carried with them their vested City pension contracts, even when they were statutorily transferred to RCLEA and provided a KPERS pension plan as required by statute.
The district court held that the RCLEA pension plan statutes contravene Article I, § 10 and the Fourteenth Amendment of the United States Constitution and were not applicable to the officers. Each officer was awarded the difference between the amount of monthly benefits earned under both plans and the amount of ben efits the officer should have earned under the City’s plan if the officer had been paid 50% of his or her final salary upon completion of 22 years of combined service for the City and the County. However, applying K.S.A. 60-511, the district court only allowed damages accruing from May 21,1985,5 years before the stipulated filing date, with interest and cost of living adjustments. The officers were held entitled to receive pension benefits in the future according to the terms and conditions of the original City plan.
The district court found that KPERS was obligated to pay the damages awarded to the officers. KPERS cross-claimed against the City, alleging that KPERS should be entitled to indemnification from the City for the damage award. The district court agreed.
Apparently, the district court also found that the contract was a continuing contract. Thus, each time KPERS allegedly underpaid the officers’ retirement benefits, KPERS was engaging in a separate and independent breach of the City’s original pension contract.
DISCUSSION
The Statute of Limitations
Our inquiry focuses on how the statute of limitations applies to this claim and when the City’s pension contract was allegedly breached. Statutory and contract interpretation issues are questions of law. Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 2, 885 P.2d 1246 (1994). We exercise unlimited, de novo review. Martindale v. Tenny, 250 Kan. 621, 634, 829 P.2d 561 (1992).
The officers contend that the City’s pension plan, as required by statute, created a written contract which promised to provide specific pension benefits. According to the officers: (1) they had a property right in these pension benefits under Singer v. City of Topeka, 227 Kan. 356, 363, 607 P.2d 467 (1980), and (2) the pension benefits which they received were less than the benefits they would have received if they had been paid under the City’s plan.
The defendants challenge the district court’s application of the K.S.A. 60-511 statute of limitations to the officers’ claims, arguing that the 3-year statute of limitations in K.S.A. 60-512 applies because the action arises out of a statutory obligation. We need not resolve defendants’ contention because we hold that even under the 5-year limitation period, the officers’ claims are time barred.
The officers’ cause of action accrued in 1974 when the City’s pension plan was abolished by the RCLEA plan as to future benefits. Because the officers did not file this action until 1990, their claims are barred.
The officers argue that the statute of limitations issue should not be addressed because defendants did not raise it in the district court. According to the officers, the City conceded in its motion to alter or amend the district court’s November 13, 1992, memorandum decision that the statute of limitations had not expired. Further, the officers claim that KPERS agreed, for purposes of the statute of limitations, that this action commenced on May 21,1990. The district court’s memorandum decision of November 13,1992, provides: “The parties agree that for the purposes of the statute of fimitations, this action would be considered to have been commenced May 21, 1990.” However, May 21, 1990, relates to when this action was deemed filed, not when the cause of action accrued.
The district court transformed the officers’ 42 U.S.C. § 1983 claim into a written contract claim in its memorandum decision of November 13, 1992, observing, in part: “The views expressed in this memorandum were expressed to the parties at a hearing on these motions held by the Court on April 28,1992 and based upon these views, the Court understands that the plaintiffs no longer intend to pursue recovery under 42 USC 1983.” Apparently, the parties still thought this was a 42 U.S.C. § 1983 lawsuit even after the district judge’s April 28, 1992, signal. KPERS filed a memorandum in support of its motion for summary judgment on May 26, 1992, containing as a second issue “Whether the Appropriate Statute of Limitations for Actions Under 42 U.S.C. § 1983 arising in Kansas is Two Years?” The officers on June 29, 1993, filed a “Motion for Clarification of Memorandum Decision,” stating:
“Plaintiffs have not moved or requested that this not be a §1983 cause of action. Any understanding that this Court may have received is in error. Plaintiffs regret this misunderstanding has occurred, but believe the record should reflect plaintiffs!’] actual intent. Correcting this error will not affect the merits of the claim. It will only set the record straight as to plaintiffs’ authority in filing this action, and what legal standards would apply in a §1983 action.”
KPERS and the City have not conceded the statute of limitations issue. They asserted the statute of limitations affirmative defense in answering the officers’ 42 U.S.C. § 1983 petition. (The limitation on a 42 U.S.C. § 1983 action is 2 years. See K.S.A. 60-513[a][4]; Johnson v. Johnson County Com’n Bd., et al., 925 F.2d 1299, 1301 [10th Cir. 1991]). All parties thought this lawsuit was a 42 U.S.C. § 1983 action until the district court decided that it was a Contract Clause action. Both KPERS and the officers asked the district court to reconsider and analyze the case as a § 1983 action. Further, the district court granted summary judgment on behalf of the officers without the officers having moved for such relief. KPERS and the City never had an opportunity to address the issue of when the officers’ Contract Clause action accrued. The statute of limitations has been a defense throughout the litigation and is here for review.
KPERS and the City cany the burden to establish the statute of limitations bar. See Slayden v. Sixta, 250 Kan. 23, 26, 825 P.2d 119 (1992). According to KPERS and the City, a claim arising out of a statute’s unconstitutional interference with a contract accrues on the effective date of the statute, which in this case was January 1, 1974. On the first pay day after consolidation, the officers received paychecks with a 7% employee deduction contribution to the new KPERS plan, as opposed to a 3% deduction required by the City’s plan. The increased deduction would have constituted a breach of contract under the City’s pension plan. Thus, the officers’ cause of action accrued in January 1974.
The officers argue that: (1) the statutes which created their City pension contract created a continuing contract which called for periodic performance, i.e., the periodic payment of benefits; (2) under-a continuing contract, a breach occurs each time the periodic performance is not performed according to the contract specifications; (3) the periodic payment of retirement benefits were not made according to the City’s plan; (4) upon each breach, a separate claim accrued and the statute of limitations began to run for each claim; (5) they are allowed to sue for each underpayment of the benefits for the 5 years immediately before the lawsuit’s filing date; (6) just because they gave up their rights to sue on prior breaches of the contract, due to the expiration of the statute of limitations on those breaches, they did not give up their rights to sue on the continuing breaches of contract; and (7) Rupe v. Triton Oil & Gas Corp., 806 F. Supp. 1495 (D. Kan. 1992), endorses their argument.
The officers’ reliance on Rupe invites our analysis. In Rupe, plaintiffs, as sellers, entered into several gas purchase contracts with Triton, as a purchaser, between 1976 and 1979. On January 25, 1985, Triton sent an amendment letter to plaintiffs suggesting a change in the price paid for the gas, to be effective January 1, 1985. The letter asked the sellers to sign and return the letter to Triton if the changes were agreeable. The sellers did not agree. However, Triton paid for the next gas purchase on February 25, 1985, according to the terms in the amendment letter, and the sellers accepted the payment. The sellers filed their action on February 20, 1990, more than 5 years after January 25, 1985. Triton claimed the sellers’ cause of action was time barred. The sellers claimed a continuing contract, in that Triton was obligated to pay monthly, with each payment less than the contract amount being a separate breach constituting a new cause of action. The federal district judge found a continuing contract. Assuming Triton’s breach constituted a repudiation of the contract, the court reasoned that the breach occurred on the date Triton’s performance was due (February 25, 1985) and determined that the action was timely under the 5-year statute of limitations. Rupe is not persuasive here. We are not dealing with a continuing contract.
From December 31, 1973, the officers were prohibited by statute from acting as City police officers and ceased contributing to the City’s pension fund. The officers’ opportunity to continue to accrue benefits under the City’s pension plan became legally impossible on December 31,1973. The RCLEA pension plan statutes required KPERS to include the officers under the new RCLEA plan as of January 1,1974. The alleged breach occurred on January 1, 1974. A single cause of action accrued on that date. The controlling events were the RCLEA-KPERS legislation and the elec toral vote mandating the 1974 change in the pension benefits, not the subsequent payment of benefits.
The officers allege that the 1974 breach was not the only breach that occurred or the only claim which accrued. They contend that according to the terms of the City pension contract, retirement checks from KPERS would not be due until after an officer retired. The officers assert that each check was less than what it should have been; but for the RCLEA-KPERS pension plan statutes, the officers could have worked for the City until the date of retirement and continued to collect benefits under the City pension plan.
Although created by statute, the pension plan is still a contract. In Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, Syl. ¶ 1, 532 P.2d 1081 (1975), we held that “[s]tate retirement systems create contracts between the state and its employees who are members of the system.” The City pension plan was repudiated in 1974. It was not modified to require higher contributions and lower benefit payments. Instead, a completely new pension plan under KPERS was established and the City plan was abolished, except for benefits which had already accrued. The officers knew then they could not collect any more benefits under the City plan. The underpaid benefits checks were not independent breaches. The officers’ City pension contract was breached when future benefits under the City’s plan ceased, rather than each time the officers received an underpaid benefit check from KPERS.
Although not involving a periodic performance contract, Arnold v. S.J.L. of Kansas Corp., 249 Kan. 746, 822 P.2d 64 (1991), teaches that once a plaintiff realizes that a defendant has no intention of honoring an agreement, the cause of action accrues. Here, the officers argue that they could not sue for the payment of money benefits until the money was due and owing. Thus, they argue, they were required to wait until the benefit payment was underpaid before they could allege that more benefits were due and owing to them and that a breach had occurred. We disagree. See Brazelton v. Kansas Public Employees Retirement System, 227 Kan. 443, 607 P.2d 510 (1980); Singer v. City of Topeka, 227 Kan. 356.
The officers’ City pension contract was allegedly breached on January 1, 1974, when the new KPERS pension plan became effective and required a 7% contribution as opposed to the 3% contribution required under the City plan. The unilateral change in their benefits occurred on January 1, 1974. The officers may not delay suing for 16 years, claiming that consolidation and RCLEA-KPERS statutes unconstitutionally impaired their City pension plan contract, when they knew the effect of the statutes 16 years ago. To allow the officers to bring this action 16 years after the statutes became effective places KPERS, the City, and all other cities which may have had pension contracts statutorily altered over the years, in an untenable situation.
Reversed and remanded with instructions to dismiss the action.
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The opinion of the court was delivered by
McFarland, C.J.:
The issue before us concerns the ownership of an engagement ring after the engagement was terminated.
The case was called for jury trial. After a brief in-chambers conference (no record of which is before us), the court orally decided the issue in open court. What transpired is concisely journalized as follows:
“The parties stipulate to the following facts:
“1. The issue to be determined is the ownership of an engagement ring.
“2. The plaintiff purchased the engagement ring.
“3. The ring was given to defendant as an engagement ring in contemplation of marriage between the parties.
“4. The plaintiff is the party who ended the relationship.
“5. Neither party stipulates to whose fault caused the relationship to terminate.
“Based upon the stipulated facts, the pleadings in the Court file, arguments of counsel and the supporting briefs, the Court finds as a matter of law that since the engagement ring was given in contemplation of marriage, the marriage itself is a condition precedent to the ultimate ownership of the ring. Since the parties did not perform the condition of marriage, the purchaser is entitled to the return of the ring. The Court further finds that the issue of who ended the relationship is not determinative of the ownership of the ring.
“It Is, Therefore Ordered, Adjudged and Decreed that the plaintiff is entitled to the return of the engagement ring and costs are assessed to the defendant.”
Defendant appeals therefrom. Additional uncontroverted facts are that the ring was purchased in August 1994 for $9,033. Plaintiff terminated the engagement in October 1995. Defendant refused to return the ring, and this action was filed April 3, 1996. For the sake of simplicity, plaintiff will henceforth be referred as Jerod and defendant will be referred to as Heather.
The case was determined as a matter of law on stipulated facts.
Where the controlling facts are based upon written or documentary evidence byway of pleadings, admissions, depositions, and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish. Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990). This court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The issues may be summarized as follows. Was the engagement ring a conditional gift given in contemplation of marriage? If this question is answered affirmatively, then, upon termination of the engagement, should ownership of the ring be determined on a fault or no-fault basis? These are issues of first impression in Kansas.
Conditional Gift
Heather argues that the gift of an engagement ring should be gauged by the same standards as for any other inter vivos gift, and that, once delivery and acceptance have occurred, the gift is irrevocable. She contends Kansas does not recognize conditional gifts.
Jerod argues that an engagement ring is inherently a conditional gift, as it is given in contemplation of marriage. If the wedding does not occur, the ring should be returned to its donor.
To establish a gift inter vivos there must be (a) an intention to make a gift; (b) a delivery by the donor to the donee; and (c) an acceptance by the donee. The gift must be absolute and irrevocable. Herman v. Goetz, 204 Kan. 91, 96, 460 P.2d 554 (1969); see Calvin v. Free, 66 Kan. 466, 470, 71 Pac. 823 (1903). The elements of intent, delivery, and acceptance are usually questions of fact to be determined by the jury. See Hudson, Administrator v. Tucker, 188 Kan. 202, 211, 361 P.2d 878 (1961).
One of the few Kansas cases involving gifts in contemplation of marriage is Douthitt v. Applegate, 33 Kan. 395, 6 Pac. 575 (1885). The case was described by the court as follows:
“This was an action brought ... to set aside a deed of conveyance, and to quiet his title to certain real estate. The deed was executed for the land in controversy by the plaintiff to the defendant on August 14, 1882, and the plaintiff alleges in his petition that it was procured by the defendant through fraud. The facts constituting the alleged fraud are in substance and in brief as follows: The defendant, being a designing and crafty woman, induced the plaintiff, by ardent professions of love and affection, to visit her at her home in Bourbon county. He became very much enamored of her, and visited her frequently. She, designing to defraud him of his property, falsely represented that she was wealthy, falsely professed great love and affection for him, and promised to marry him. She asked him to deed his property to her in order to stop the opposition, as she stated, of her children to their marriage, and promised to deed the land to Fannie C. Shoe, when they were married, and that he should not be poorer for the same, but should be richer. The plaintiff believed that she was sincere in all her professions of love and affection, and in all her promises, and relied upon the same, and he deeded the land to her for no other consideration; but in fact she was not sincere, and never had any intention of marrying him or of performing any of her promises, and afterward refused to marry him and to perform her other promises. He also had much personal property, which he disposed of, and then gave her the proceeds.” 33 Kan. at 398.
In affirming the trial court’s judgment in favor of the plaintiff, the court stated:
“If the plaintiff was induced to part with his property through the fraud of the defendant, by false promises, elusive hopes, and deluding expectations, held out by her to him, that his condition, financial, social, and otherwise, would be bet tered and improved thereby, it makes but little difference whether it was understood by the parties that the property should ever be reconveyed to him, or not. The fraud vitiates the whole transaction, and the parties should be placed back as near to their original condition as possible.” 33 Kan. at 400.
The Douthitt case turned on the issue of fraud but the opinion implies that a conveyance in contemplation of marriage can be conditional.
Gerard v. Costin, 113 Kan. 617, 215 Pac. 1011 (1923), again involved a jilted suitor seeking return of land he had conveyed to the object of his affection. In reversing the trial court’s entry of judgment in favor of the plaintiff, the court stated:
“It would be a questionable doctrine to expand the rule of fiduciary relationships so as to declare that when a woman is wooed by an elderly suitor, and receives from him a conveyance of property but rejects his solicitations and offers of marriage, she has the burden of showing she did not take advantage of his age and situation and that the conveyance was voluntary and without constraint and that the donor was of sound mind and knew what he was about.” 113 Kan. at 620.
Gerard adds little to the resolution of the issue before us, but is included as it is one of the few Kansas cases involving gifts or conveyances by suitors.
Bowes v. Sly, 96 Kan. 388, 152 Pac. 17 (1915), is a breach of contract to many action and does not involve any gifts in contemplation in marriage. It is mentioned only as it was cited by Heather in support of her position and is one of the few Kansas cases arising from a broken engagement.
While there is a paucity of Kansas law on gifts in contemplation of marriage in general, and engagement rings in particular, courts in many other states have wrestled with the issues arising therefrom. Most courts recognize that engagement rings occupy a rather unique niche in our society.
One court characterized the engagement ring as follows:
“ ‘The ring is employed in rites of courtship and marriage in many cultures, primitive and sophisticated; in widely dispersed regions of the earth; persisting through the centuries, in fact milhenia [sic]. In our culture, the ring is generally placed on one of the fingers, in others it may be attached to other positions of the anatomy, at intermediate points from the top of the head to the tip of the toes. It is a universal symbol of deep seated sexual and social ramifications, a seminal area of research for behavioral scientists. Is it any wonder that it presents such complicated problems for mere lawyers?’ ” (Correction indicator in original.) Brown v. Thomas, 127 Wis. 2d 318, 327 n.2, 379 N.W.2d 868 (Ct. App. 1985) (quoting Goldstein v. Rosenthal, 56 Misc. 2d 311, 311, 288 N.Y.S.2d 503 [1968]).
By tradition and the mores of our society, an engagement ring is the symbol of the parties’ mutual promises to marry. It is unlike any other gift given or exchanged by lovers. The single sentence “She returned his ring” illustrates this. These four words, standing alone, paint the picture of mutual promises to wed, a ring being given and received to symbolize these promises, and the intended bride reneging on her promise and so advising the would-be groom by returning the ring. No like picture is engendered by the phrase “She returned his bracelet.” Nothing about the relationship of the parties or the circumstances surrounding the exchange can be implied from these four words.
An extensive discussion of the topic can be found in Annot., Rights in Respect of Engagement and Courtship Presents When Marriage Does Not Ensue, 46 A.L.R.3d 578.
In the absence of a contrary expression of intent, it is logical that engagement rings should be considered, by their very nature, conditional gifts given in contemplation of marriage. Once it is established the ring is an engagement ring, it is a conditional gift.
Other courts have reached a similar conclusion. See Simonian v. Donoian, 96 Cal. App. 2d 259, 215 P.2d 119 (1950);White v. Finch, 3 Conn. Cir. Ct. 138, 209 A.2d 199 (1964); Gill v. Shively, 320 So. 2d 415 (Fla. Dist. App. 1975); Vann v. Vehrs, 260 Ill. App. 3d 648, 633 N.E.2d 102 (1994); Hams v. Davis, 139 Ill. App. 3d 1046, 487 N.E.2d 1204 (1986); Fierro v. Hoel, 465 N.W.2d 669 (Iowa App. 1990); Aronow v. Silver, 223 N.J. Super. 344, 538 A.2d 851 (1987); Mate v. Abrahams, 62 A.2d 754 (N.J. County Ct. 1948); Vigil v. Haber, 119 N.M. 9, 888 P.2d 455 (1994); Wion v. Henderson, 24 Ohio App. 3d 207, 494 N.E.2d 133 (1985); Lyle v. Durham, 16 Ohio App. 3d 1, 473 N.E. 2d 1216 (1984); Spinnell v. Quigley, 56 Wash. App. 799, 785 P.2d 1149 (1990); Brown v. Thomas, 127 Wis. 2d 318.
Other types of property may be shown to be conditional gifts given in contemplation of marriage, but such a classification would require specific evidence of such intent as opposed to just showing the ring was an engagement ring given in contemplation of marriage. As was stated in Fierro v. Hoel, 465 N.W.2d at 671, of an engagement ring: “[T]here is no need to establish an express condition that marriage will ensue. A party meets the burden of establishing the conditional nature of the gift by proving by a preponderance of evidence that the gift was given in contemplation of marriage.”
In the action herein, the parties stipulated that the object in dispute is an engagement ring given in contemplation of marriage. We conclude the district court correctly held that it was a conditional gift.
Fault or No Fault
We turn now to who is entitled to the ring under the facts herein. There is a split of authority on this issue. Should ownership be determined on the basis of fault? Or should a no-fault rule be applied and the ring returned to its donor after the engagement is broken, regardless of fault?
The annotation at 46 A.L.R.3d 578, previously cited, extensively summarizes the cases arising in this area and the rationales used to resolve them.
Generally, with regard to who is entitled to the engagement ring once the engagement has been broken, courts have taken two divergent paths. One rule states that when an engagement has been unjustifiably broken by the donor, the donor shall not recover the ring. However, if the engagement is broken by mutual agreement or, unjustifiably by the donee, the ring should be returned to the donor. This is the fault-based line of cases. The other rule, the so-called “modem trend” (46 A.L.R.3d at 584), holds that as an engagement ring is an inherently conditional gift, once the engagement has been broken the ring should be returned to the donor. Thus, the question of who broke the engagement and why, or who was “at fault,” is irrelevant. This is the no-fault line of cases.
Heather argues that we should adopt the fault-based rule and award the ring to her, as Jerod ended the engagement. Jerod, for obvious reasons, urges us to affirm the district court’s adoption of the no-fault rule and award the ring to him.
Heather relies in part upon Simonian v. Donoian, 96 Cal. App. 2d 259. The Simonian case is not persuasive as it turned on a California statute setting forth the parties’ rights in gifts given in contemplation of marriage.
Justification for the fault-based rule was picturesquely stated in Pavlicic v. Vogtsberger, 390 Pa. 502, 507, 136 A.2d 127 (1957), as follows:
“A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor, — if the anchor of contractual performance sticks in the sands of irresolution and procrastination — the gift must be restored to the donor.”
Presumably, if the donor of the ring was the party refusing to leave the pier, the Pennsylvania court would rule the donee was entitled to the ring.
Mate v. Abraham, 62 A.2d at 754-55, applied the fault-based rule, stating:
“On principle, an engagement ring is given, not alone as a symbol of the status of the two persons as engaged, the one to the other, but as a symbol or token of their pledge and agreement to marry. As such pledge or gift, the condition is implied that if both parties abandon the projected marriage, the sole cause of the gift, it should be returned. Similarly, if the woman, who has received the ring in token of her promise, unjustifiably breaks her promise, it should be returned.
“When the converse situation occurs, and the giver of the ring, betokening his promise, violates his word, it would seem that a similar result should follow, i.e., he should lose, not gain, rights to the ring. In addition, had he not broken his promise, the marriage would follow, and the ring would become the wife’s absolutely. The man could not then recover the ring. The only difference between that situation, and the facts at bar, is that the man has broken his promise. How, on principle, can the courts aid him, under such circumstances, to regain a ring which he could not regain, had he kept his promise? ‘No man should take advantage of his own wrong.’ Of course, were the breaking of the engagement to be justifiable, there would be no violation of the agreement legally, and a different result might follow.” 62 A.2d at 754-55.
Heather also cites Spinnell v. Quigley, 56 Wash. App. 799, as supporting her argument. Spinnell considered the same question as is before us. Relying on 46 A.L.R.3d 578, discussed above, the Spinnell court used a contract theory in deciding the case. The court found that an engagement ring is a symbol of an agreement to marry. If that agreement is not performed, then the parties should be restored to their former positions and the ring should be returned. However, if the agreement is not performed because of a breach by the donor, the donor should not benefit from that breach by regaining the ring. In such a case, the ring should be retained by the donee. 56 Wash. App. at 802-03. Specifically, the court held:
“We agree with the cited authority that the donor of an engagement ring makes the gift upon the implied condition that if the contemplated marriage does not occur, the donee will return the ring. The donee should keep the ring only if the donor unjustifiably breaks the engagement.” 56 Wash. App. at 802.
We turn now to the no-fault line of cases. In Vigil v. Haber, 119 N.M. at 10-11, the court held that the engagement ring was a conditional gift dependent upon the parties’ future marriage, that the question of fault in the breaking of the engagement was irrelevant, and that, therefore, once the engagement had been terminated, the ring should be returned to the donor. The Vigil court discussed Spinnell in reaching this result and declined to follow its rule. The court noted that, although the practice of determining possession of the engagement ring based upon fault is the majority rule, it preferred the modem trend toward no-fault. Likening a broken engagement to a broken marriage, the court noted that no-fault divorce is the modem approach to a broken marriage. Thus, the court believed, a no-fault approach to a broken engagement was equally appropriate. Following the lead of Iowa, New Jersey, New York, and Wisconsin, the court held that when the condition precedent of marriage fails, an engagement gift must be returned. 119 N.M. at 10-11.
The same result was reached in Aronow v. Silver, 223 N.J. Super. 344. Although “[t]he majority rule in this country concerning the disposition of engagement rings is a fault rule: the party who unjustifiably breaks the engagement loses the ring” (223 N.J. Super. at 346), the Aronow court believed the majority rale to be “sexist and archaic,” giving the following explanation:
“The history is traced in 24 A.L.R.2d at 582-586 [superseded by 46 A.L.R.3d 578]. In ancient Rome the rule was fault. When the woman broke the engagement, however, she was required not only to return the ring, but also its value, as a penalty. No penalty attached when the breach was the man’s. In England, women were oppressed by the rigidly stratified social order of the day. They worked as servants or, if not of the servant class, were dependent on their relatives. The fact that men were in short supply, marriage above one’s station rare and travel difficult abbreviated betrothal prospects for women. Marriages were arranged. Women’s lifetime choices were limited to a marriage or a nunnery. Spinsterhood was a centuries-long personal tragedy. Men, because it was a man’s world, were much more likely than women to break engagements. When one did, he left behind a woman of tainted reputation and ruined prospects. The law, in a de minimis gesture, gave her the engagement ring, as a consolation prize. When the man was jilted, a seldom thing, justice required the ring’s return to him. Thus, the rule of life was the rule of law — both saw women as inferiors.
“The majority rule, even without its constitutional infirmity, will not stand elementary scrutiny. Its foundation is fault, and fault, in an engagement setting, cannot be ascertained.
‘What fact justifies the breaking of an engagement? The absence of a sense of humor? Differing musical tastes? Differing political views? The painfully-learned fact is that marriages are made on earth, not in heaven. They must be approached with intelligent care and should not happen without a decent assurance of success. When either party lacks that assurance, for whatever reason, the engagement should be broken. No justification is needed. Either party may act. Fault, impossible to fix, does not count.” 223 N.J. Super, at 348-49.
In Fierro v. Hoel, 465 N.W.2d at 671-72, rejecting “an older majority line of cases” which follow the general principle that the donor of the engagement ring can recover the gift only if the engagement is dissolved by agreement or if the engagement is unjustifiably broken by the donee, the court held that “[i]f the wedding is called off, for whatever reason, the gift is not capable of becoming a completed gift and must be returned to the donor.”
In Brown v. Thomas, 127 Wis. 2d at 328, acknowledging that “most jurisdictions allow recovery of conditional engagement gifts only if the party seeking recovery has not unjustifiably broken off the engagement,” the court declined to join them. The court believed that the answer to the question of, Who’s at fault, often becomes “lost in the murky depths of contradictory, acrimonious, and largely irrelevant testimony by disappointed couples, their rel atives and friends.” 127 Wis. 2d at 328. Applying the same public policy it found embodied within Wisconsin’s no-fault divorce law, the court held that the only relevant inquiry in conditional engagement gift cases is whether the condition under which the gift was made has failed. 127 Wis. 2d at 329-30; see also Lyle v. Durham, 16 Ohio App. 3d 1, (adopting no-fault rule in the absence of an agreement between the parties to the contrary).
After careful consideration, we conclude the no-fault line of cases is persuasive.
What is fault or the unjustifiable calling off of an engagement? By way of illustration, should courts be asked to determine which of the following grounds for breaking an engagement is fault or justified? (1) The parties have nothing in common; (2) one party cannot stand prospective in-laws; (3) a minor child of one of the parties is hostile to and will not accept the other party; (4) an adult child of one of the parties will not accept the other party; (5) the parties’ pets do not get along; (6) a party was too hasty in proposing or accepting the proposal; (7) the engagement was a rebound situation which is now regretted; (8) one party has untidy habits that irritate the other; or (9) the parties have religious differences. The list could be endless.
The granting of the divorce decree in Kansas, and the division of marital property, are generally thought to be based on a no-fault determination. However, Kansas law still includes fault as a basis for divorce. See K.S.A. 60-1601(a)(2) (failure to perform a material marital duty or obligation).
In In re Marriage of Sommers, 246 Kan. 652, Syl. ¶ 1, 792 P.2d 1005 (1990), it was noted that in domestic relations actions, “fault” is a term of art relating to the only fault ground contained in K.S.A. 60-1601(a)(2) (failure to perform a marital duty or obligation). Although evidence of fault is inadmissible in actions seeking marital dissolution on the ground of incompatibility (K.S.A. 60-1601[a][1]), fault may be considered in a divorce sought under K.S.A. 60-1601(a)(2). 246 Kan. at 654.
As for the division of property in a divorce action, Sommers held:
“We conclude that in domestic relations actions it was the legislative intent that, in all but extremely gross and rare situations, financial penalties are not to be imposed by a trial court on a party on the basis of fault. There is difficulty in establishing rigid rules relative thereto. For purposes of consideration of the financial aspects of the dissolution of a marriage, the term fault must be confined to a term of art relative to a ground for dissolution of the marriage and penalties arising therefrom. Certain conduct might be a fault ground and also be a circumstance properly to be considered in making a determination relative to financial matters. For illustration, let us say that because of the husband’s mental abuse of the wife she is so emotionally impaired that her earning capacity is affected. Certainly, the court should consider this in its determination of a fair and equitable award. The court, in such circumstances, is not imposing a penalty for fault but is considering the circumstances of the parties as they exist and making its award based on such existing circumstances and the likely future results arising therefrom.” 246 Kan. at 657-58.
The engagement period is one where each party should be free to reexamine his or her commitment to the other and be sure he or she desires the commitment of marriage to the other. If the promise to wed were rashly or improvidently made, public policy would be better served if the engagement promise to wed would be broken rather than the marriage vows.
The ring which was given on the promise of a future marriage and is the symbol of the parties’ commitment to each other and their life together is, after the engagement is broken, a symbol of failed promises and hopes, hardly a treasured keepsake for its formerly betrothed wearer. Broken engagements engender hurt pride, anger, and wounded egos. They do not ordinarily present the major questions of changes in lifestyles, standards of living, etc., that broken marriages involve. Yet the legislature has applied the no-fault principle to divorces on the grounds of public policy. It is difficult to see how the public policies involving divorce and the division of marital property are best served by no-fault principles, but broken engagements should require a fault-based determination as to ownership of the engagement ring. Litigating fault for a broken engagement would do little but intensify the hurt feelings and delay the parties’ being able to get on with their lives.
We conclude that fault is ordinarily not relevant to the question of who should have ownership and possession of an engagement ring after the engagement is broken. Ordinarily, the ring should be returned to the donor, regardless of fault. As in the Sommers case, we recognize there may be “extremely gross and rare situations” where fault might be appropriately considered. No such rare situation has been suggested to be involved herein.
The district court did not err in awarding the ring to Jerod after concluding fault was irrelevant.
The judgment is affirmed.
Abbott, J., not participating.
Christel E. Marquardt, Judge, assigned.
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff, the widow and personal representative of the deceased, filed a personal injury action against the defendant more than 2 years after an automobile accident had occurred. Defendant filed a motion for summary judgment, claiming that the action was barred by the 2-year statute of limitations. The district court found that because the deceased became disabled prior to death and prior to the expiration of the statute of limitations, plaintiff’s action was timely. Defendant was granted an interlocutory appeal pursuant to K.S.A. 60-2102.
On March 31, 1993, Donald Biritz was injured in an accident when his automobile was struck by an automobile driven by defendant Joan Williams. While Biritz was being treated for his injuries, his physicians discovered he had terminal lung cancer. Shortly before his death, Biritz was admitted to a nursing home, where he died on January 24, 1995.
On January 17, 1996, Biritz’ wife, Frances, filed a negligence action against Williams on behalf of her deceased husband. Since the accident had occurred on March 31, 1993, the petition was filed beyond the 2-year statute of limitations for negligence actions provided in K.S.A. 60-513. In an amended petition, Frances Biritz alleged that “for at least seven months or a substantial period of time immediately prior to his death, Donald L. Biritz was incapacitated, disabled and unable to manage his affairs and care for himself all within the meaning and purview of K.S.A. 60-515.”
Subsequently, Williams filed a motion for summary judgment, claiming that the 2-year statute of limitations had expired on March 31, 1995, and that Frances Biritz’ claim was beyond that period and should be dismissed. Williams asserted that although Biritz was in pain and hospitalized during the last weeks of his life, the legal disability tolling statute, K.S.A. 60-515, did not extend the time for Frances Biritz to file a claim because Biritz was not disabled in a manner qualifying him for the tolling relief afforded by the statute.
Biritz’ treating physician, Dr. Merrit Fricke, was deposed and testified that he examined Biritz the day before his death and found that Biritz was semi-comatose and unable to communicate. Dr. Fricke indicated that Biritz’ semi-comatose state could be attributed to his prescribed medications. Dr. Fricke further testified that the medications had been prescribed for pain because Biritz’ cancer had metastasized to his brain. Dr. Fricke stated that for approximately 48 hours preceding his death, Biritz was unable to make any decisions on his own behalf, unable to care for his basic needs, and unable to think clearly. The doctor testified the semicomátose condition continued uninterrupted until Biritz’ death on January 24, 1995. There was no evidence in the record that controverts the fact that Biritz was semi-comatose for the last 2 days of his life.
In denying Williams’ motion for summary judgment, the district court found it was uncontroverted that at least during the 48-hour period beginning the day before Biritz died and ending with his death, Biritz was semi-comatose and unable to care for his physical or financial well-being. The district court observed that K.S.A. 60-515 tolls the statute of limitations for a person who is incapacitated at the time the cause of action accrues or at any time during the period the statute of limitations is running, and further provides that if death occurs before the disability terminates; the statute of limitations is similarly tolled for the deceased person’s representative. Since Biritz died before the 2-year statute of limitations expired, the district court found K.S.A. 60-515 applied to toll the statute of limitations. When denying Williams’ motion for summary. judgment, the court stated:
“The statute does not limit its applicability in situations where the disability is caused by the ‘dying process.’ Had the legislature tried to incorporate such an exception it would be very hard to apply since all living beings are in the process of dying from the moment of their conception. In the case at hand, Mr. Biritz was clearly disabled for the last two days of his life. The statute does not create a minimum time during which the disability must exist. The purpose of the statute is to protect an individual who does not have the'capacity to be aware of and make a decision about whether an action should be pursued. Defendant makes a policy argument that in this case there was a period of time during which Mr. Biritz was not disabled and could have chosen to file a petition and did not. The defendant’s argument continues that since Mr. Biritz’ period of disability was short it is not fair to allow an extension of one year. Even though Mr. Biritz had some time to contemplate this action, as death loomed closer, it is doubtful that this action was foremost on his mind. The legislature does not appear to have been concerned with the length of disability or it would have dealt with it in the statute.”
The sole issue is whether the district court properly denied Williams’ motion for summary judgment and, under the facts, correctly construed K.S.A. 60-515 to entitle the widow to commence the action within 1 year after the husband’s death. The rules governing summary judgment have been stated often. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990). The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306, 756 P.2d 416 (1988). Where the affirmative defense of the statute of limitations is asserted, summary judgment maybe proper where there is no dispute or genuine issue as to the time when the statute commenced to run. Hecht v. First National Bank & Trust Co., 208 Kan. 84, 93, 490 P.2d 649 (1971). On appeal, we read the record in the light most favorable to the party who defended against the motion for summary judgment, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.
In determining whether the motion for summary judgment was properly denied, we must first review several statutes. K.S.A. 60-515 provides:
“(a) Effect. Except as provided in K.S.A. 60-523, if any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is less than 18 years of age, an incapacitated person or imprisoned for a term less than such person’s natural life, such person shall be entitled to bring such action within one year after the person’s disability is removed, except that no such action shall be commenced by or on behalf of any person under the disability more than eight years after the time of the act giving rise to the cause of action.
“Notwithstanding the foregoing provision, if a person imprisoned for any term has access to the court for purposes of bringing an action, such person shall not be deemed to be under legal disability.
“(b) Death of person under disability. If any person entitled to bring an action dies during the continuance of any disability specified in subsection (a) and no determination is made of the cause of action accrued to the deceased, any person entitled to claim from, by or under the deceased, may commence such action within one year after the deceased’s death, but in no event shall any such action be commenced more than eight years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
K.S.A. 1996 Supp. 77-201 Thirty-first, the definitional section of the Kansas Statutes Annotated, provides that “incapacitated person,” wherever used in the statutes, means “disabled person” as defined in K.S.A. 59-3002.
K.S.A. 59-3002 states the definition of the term “disabled person” as that term is used in the act for obtaining a guardian or conservator:
“(a) ‘Disabled person’ means any adult person whose ability to receive and evaluate information effectively or to communicate decisions, or both, is impaired to such an extent that the person lácks the capacity to manage such person’s financial resources or, except for reason of indigency, to meet essential requirements for such person’s physical health or safety, or both. A person shall not be considered to be disabled or to lack capacity to meet the essential requirements for physical health or safety for the sole reason such person relies upon or is being furnished treatment by spiritual means through prayer, in lieu of medical treatment, in accordance with the tenets and practices of a recognized church or religious denomination of which such person is a member or adherent.
“(b) ‘Manage financial resources’ means those actions necessary to obtain, administer and dispose of real and personal property, intangible property, business property, benefits and income.
“(c) ‘Meet essential requirements for physical health or safety’ means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is more likely than not to occur.”
In discussing the legal disability statute in Seymour v. Lofgreen, 209 Kan. 72, 495 P.2d 969 (1972), the court stated:
“A person under legal disability is an ‘incapacitated person’ as defined in K.S .A. 77-201(31) and K.S.A. 1971 Supp. 59-3002(1).
“It is not necessary that the injured party be legally adjudicated an ‘incapacitated person,’ as defined in the above statutes, before receiving protection extended to such persons under the statute of limitations.” 209 Kan. at 78 (citing Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745 [1899]).
See also Gardner v. Toyota Motor Sales, 793 F. Supp. 287, 290 (D. Kan. 1992) (appointment of guardian not a necessary prerequisite to the application of K.S.A. 60-515; applying Kansas law).
The issue requires the court to construe K.S.A. 60-515. It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). K.S.A. 60-102 requires us to construe the Code of Civil Procedure liberally “to secure the just, speedy, and inexpensive determination of every action or proceeding.” Where the language used in a statute is plain and unambiguous and also appropriate to an obvious purpose, the court should follow the intent expressed by the words used. Underwood v. Alimon, 215 Kan. 201, 204, 523 P.2d 384 (1974); City of Overland Park v. Nikias, 209 Kan. 643, 646, 498 P.2d 56 (1972).
K.S.A. 60-515 creates an alternative, but specific, limitations period for persons under a legal disability. Gardner, 793 F. Supp. at 289. The purpose of K.S.A. 60-515, which is a part of the Code of Civil Procedure, is to mitigate the difficulties of preparing and maintaining a civil suit while the plaintiff is under a legal disability. See Lewis v. Shuck, 5 Kan. App. 2d 649, 651, 623 P.2d 520, rev. denied 229 Kan. 670 (1981) (citing Kaiser v. Cahn, 510 F.2d 282, 286 [2d Cir. 1974]). The statute does not suspend, interrupt, or extend the statute of limitations, but operates merely to toll the statute of limitations under stated circumstances. In order for the provisions of K.S.A. 60-515(a) to toll the statute of limitations, a disability prescribed by that statute must have existed at the time the cause of action accrued or have come into existence during the period the applicable statute of limitations was running, without regard to any tolling of the statute. Lewis, 5 Kan. App. 2d at 652.
Williams argues that Biritz was not incapacitated or under a legal disability within the meaning of K.S.A. 60-515 at the time of his death. Williams concedes that the “intent underlying the tolling provision ... is to ensure that claimants who would not otherwise have access to the court system due to an incapacity are given fair opportunity to assert their claims.” Williams recognizes that the statute prevents a waiver of a legal right to pursue a claim by someone who, through no fault of his or her own, is unable to file a claim prior to the expiration of the statute of limitations.
However, after stating these concessions, Williams argues that since the disability suffered by Biritz was in part chemically induced for the purpose of pain relief, Biritz was somehow at fault for sustaining file disability. Williams also notes that Biritz had the capacity to manage his own affairs until sometime before his death. For example, Williams points out that sometime before his death, Biritz sought representation from an attorney to pursue a workers compensation claim. Still, Williams does not dispute that at least during the 48-hour period prior to Biritz’ death, Biritz was unable to communicate, to receive and evaluate information, to manage his financial resources, or to care for his physical health or safety.
Williams also argues that the 2-day duration of Biritz’ disability was too short a time to invoke the tolling provision of K.S.A. 60-515. Williams maintains that if K.S.A. 60-515 is applied to preserve such claims, trial courts will be required to hold that every person who dies after the shortest period of “confusion, distraction, unconsciousness, or heavy medication,” is entitled under K.S.A. 60-515 to an additional year from his or her death to assert claims viable during his or her life, notwithstanding the expiration of the statute of limitations. Williams predicts that the practical result of such a determination would be to “extend the applicable statute of hmitations in each and every instance where a decedent succumbs to a non-instantaneous death.”
The only case cited by Williams in support of her interpretation of K.S.A. 60-515 is McKay v. Cutlip, 80 Ohio App. 3d 487, 609 N.E.2d 1272 (1992). McKay involved an action brought by a daughter against her father charging sexual assault in which a statute similar to K.S.A. 60-515 would have tolled the applicable limitations period while the daughter was of “unsound mind.” When the father moved for summary judgment on statute of limitations grounds, the daughter claimed her alleged life-long alcoholism and drug addiction qualified her as being of unsound mind under the statute. To bolster her claim of unsound mind, the daughter tendered her own affidavit and affidavits from her sister and daughter as well as a psychologist’s report. The McKay court found that although the affidavits supported the daughter’s claim of drug addiction and alcoholism, they did not demonstrate that her condition, which she claimed lasted for 15 to 20 years, continually prevented the timely prosecution of her lawsuit. 80 Ohio App. 3d at 491-93. McKay provides no authority for the issues raised here because Biritz’ semi-comatose condition continually prevented him from prosecuting his lawsuit for the period the condition existed and did not exceed the limitations imposed by K.S.A. 60-515.
The difficulty with the interpretation of K.S.A. 60-515 urged upon the court by Williams is that it requires the court to read into K.S.A. 60-515 limitations and qualifications not expressly intended by the legislature. The statute tolls the statute of limitations for any person who is incapacitated at the time the cause of action accrues or at any time during the period the statute of limitations is running, and further provides that if death occurs before the disability terminates, the statute of limitations is similarly tolled for the deceased person’s representative. The statute is not ambiguous and clearly applies to any disability.
As previously noted, a legal disability is defined as lacking the capacity to manage financial resources or meet essential requirements for one’s physical health or safety. This action accrued March 31, 1993. The time for the running of the statute of limitations expired March 31, 1995. On January 23 and 24, 1995, during the running of the statute of limitations, Biritz lapsed into a semi-comatose state in which he remained until he died on January 24, 1995. K.S.A. 60-515 refers without qualification to “any disability” as sufficient to toll the statute of limitations. The evidence was uncontroverted that Biritz’ condition was a disability recognized in K.S.A. 60-515; therefore, Frances Biritz was entitled to bring the action within 1 year after the date of her husband’s death. Under the facts, the action was timely and summary judgment was properly denied.
Affirmed.
Larson, J., not participating.
E. Newton Vickers, Senior Judge, assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Carl S. Black, of Shawnee Mission, an attorney admitted to the practice of law in Kansas.
The complaint filed alleged that the respondent violated MRPC 1.1 (1996 Kan. Ct. R. Annot. 257) (competence), MRPC 3.3 (1996 Kan. Ct. R. Annot. 321) (candor toward the tribunal), MRPC 3.5 (1996 Kan. Ct. R. Annot. 326) (impartiality and decorum of the tribunal), MRPC 4.4 (1996 Kan. Ct. R. Annot. 335) (respect for rights of third persons), MRPC 8.4 (1996 Kan. Ct. Annot. 350) (misconduct), MRPC 8.4(c) (1996 Kan. Ct. R. Annot. 350) (engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); MRPC 8.4(d) (1996 Kan. Ct. R. Annot. 350) (engage in conduct that is prejudicial to the administration of justice); MRPC 8.4(g) (1996 Kan. Ct. R. Annot. 350) (engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law), Supreme Court Rule 207 (1996 Kan. Ct. Annot. 205) (duties of the bar and judiciary), and Supreme Court Rule 211 (1996 Kan. Ct. Annot. 215) (formal hearings).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent did not appear in person or by counsel. The Disciplinary Administrator appeared by and through Frank D. Diehl, Deputy Disciplinary Administrator. Based upon clear and convincing evidence, a unanimous panel made the following findings of facts and conclusions of law:
Findings of Fact
“1. The Respondent is an attorney at law, Kansas Registration No. 10673, with a last registration address filed with the Clerk of the Appellate Courts of 4210 Shawnee Mission Parkway, #16, Shawnee Mission, Kansas 66205, Phone 913-432-7078.
“2. Patricia Williams is the complainant in this case. She observed Respondent’s conduct during custody and child support hearings concerning her husband’s, Claude Williams, two children by his first marriage. Respondent was counsel to Claude Williams’ first wife, Kimberly Williams.
“3. Patricia Williams complained to the DisciplinaryAdministrator’s office after $783.64 per month for child support began to be deducted from her husband’s paycheck before Claude Williams had been given notice of entry of the support order.
“4. Claude and Kimberly were divorced in approximately 1986, and on about August 11, 1993, the custody of the two minor boys bom of that marriage was awarded to Claude Williams. Since the divorce, Claude has married Patricia, and three boys were bom of that marriage. In November, 1993, petitions were filed in Wyandotte County District Court seeking to have the two children bom to Claude and Kimberly declared in need of care, and custody of the children was given to SRS. Claude Williams was represented by Michael Haight, and Kimberly Williams by Respondent, Carl Black. In February, 1994, while SRS had legal custody, the children were physically placed with their mother, and the juvenile case was designated to be administered as informal supervision services.
“5. On November 14, 1994, Patricia and Claude Williams attended a pre-trial hearing in the juvenile proceedings at the SRS building in Wyandotte County, Kansas. Mr. Williams was present dressed in his military uniform and represented by Mr. Haight. Kimberly Williams was present and represented by the Respondent. Those present included Ruth’ May and Anita Clark from SRS and Mr. Williams’ psychologist, Captain Pirro from Fort Leavenworth. According to Mr. Williams, Mr. Black said something which caused Mr. Williams to roll his eyes. Mr. Black, in anger, told Mr. Williams he should not be wearing his uniform, that Mr. Williams was a disgrace to the Kansas Army National Guard and to the United States Army, and that Mr. Black, if he had on his uniform, would have an eagle on his shoulders and he could put Mr. Williams at attention such that Mr. Williams could not speak. Patricia Williams and Mr. Haight corroborate this report. Mr. Black, during interviews with an investigator from the ethics and grievance committee in Wyandotte County, did not dispute the occurrence.
“6. Respondent, Carl Black, counsel for Kimberly Williams, pursued obtaining a child support order. On a date not provided by the record, but probably before the outburst in November, he filed a Motion to Compel Child Support in the juvenile proceedings, even though the proceedings were on an informal status, SRS did not participate in the motion, and a domestic relation action was also pending in the Wyandotte County District Court.
“7. Mr. Haight prepared the Fathers Child Support Worksheet which was captioned in the juvenile proceedings, included typewritten financial data for the father, and bore the signature of Mr. Haight in the ‘prepared by block. The worksheet shows five children. Mr. Haight faxed the worksheet to Mr. Black, and spoke to him about it, reminding Mr. Black- that Mr. Williams had a total of five children and asked to see the mother’s numbers before the worksheet was submitted to the court. Mr. Haight did not hear from Mr. Black about completion of the worksheet.
“8. Mr. Black completed the worksheet by the addition of the handwritten numbers. The amount of child support was calculated as if Mr. Williams had only the two children, such that the basic child support obligation was $918.00 rather than $626.00. As a result, the child support was overstated. Mr. Black did not consult with Mr. Haight regarding .the calculations and did not provide him with copies of the proposed child support order.
“9. On December 9,1994, Mr. Black appeared before Judge Groneman in the juvenile proceedings ex parte. The judge signed a Journal Entry of Child Support which incorporated Mr. Black’s calculations. Judge Groneman, by affidavit, states at the time he understood that the completed worksheet and orders had been presented to Mr. Haight by Mr. Black and Mr. Haight had adequate time to object but had not done so. This understanding was false. Mr. Haight had not received the calculations or the proposed orders, and Respondent does not even contend that he attempted to send the proposed orders to Mr. Haight. On page 1 of the order it recites that Kimberly Williams appears by her attorney, Carl Black. It also recites that Claude Williams and his attorney, Michael Haight, appeared. This statement is false. Neither Mr. Williams nor his counsel had notice or appeared. The last page bears the signature of Mr. Black as ‘attorney for the parent.’ Because the order directs the father to pay support, Mr. Black signed this document as attorney for Mr. Williams. The signature constitutes a misrepresentation. On the same date, Mr. Black also obtained Judge Groneman’s signature on an Income Withholding Order, in which the ‘prepared by block was signed by Mr. Black as ‘attorney for mother.’ The Certificate of Mailing and Sheriff’s Return on the Income Withholding Order were not completed.
“10. Mr. Haight was not notified of the orders. Mr. Williams knew nothing about the orders until money was withheld from his wages. The amount of the withholding was such that it resulted in a statement of ‘No pay due.’ When Mr. Williams was provided no pay from his employer, his family faced afinancial crisis. He borrowed money to support his family.
“11. Subsequently, Mr. Haight initiated proceedings to reduce the child support to the proper amount. Mr. Williams incurred attorney’s fees of $250 for this representation. The overpayments made prior to correction of the amount have been used to satisfy the support obligations of Claude Williams.
“12. On December 7, 1990 respondent Black was disciplined by the Kansas Supreme Court as reported in In re Black (Black I), 247 Kan. 664, 801 P.2d 1319 (1990). Violation of Disciplinary Rules 1-102(A)(5) [engage in conduct prejudicial to the administration of justice] and (A)(6) [engage in any other conduct that adversely reflects on his fitness to practice law], 7-102 (A)(2) [knowingly advance a claim or defense that was unwarranted under existing law] and Model Rules of Professional Conduct 1.1 [competence], 1.4 [communication], 8.4(d) [engage in conduct that was prejudicial to the administration of justice] and 8.4(g) [engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law] were found. Respondent was suspended for one year or further order of the court (whichever occurred first), and placed on probation in the interim subject to four conditions relating to continuing of psychotherapy, cooperation with the Disciplinary Administrator, the payment of sanctions imposed by the Bankruptcy Court, and no further violations of the Disciplinary Rules and the Model Rules of Professional Conduct. The two complaints arose from bankruptcy matters.
“13. A complaint arising from representation of a client in a divorce proceeding was before the court in In re Black, 249 Kan. 211, 814 P.2d 447 (1991). Respondent was found to have violated MRPC 1.1 [competence], 1.3 [1996 Kan. Ct. R. Annot. 264] [diligence] and 1.4 [communication]. The court publicly censured Mr. Black and, in addition, ordered that Mr. Black continue to comply with the conditions of probation set out in Black I.
“14. By order filed on May 13,1992, the court found it appropriate to discharge respondent from the probation.
“15. With respect to the complaint at issue here, respondent cooperated with the investigator from the Ethics and Grievance Committee of the Wyandotte County bar. However he was very irritated by the investigation, which he thought to be inappropriate. He was very angry and hostile towards Mr. Williams. He did not agree that he had violated any ethical rules.
“16. Mr. Black did not file an answer, did not respond to the notice of hearing served on him by the office of the Disciplinary Administrator, and did not appear at the hearing.
“17. The investigator also interviewed Judge Groneman. He indicated that he signed the ex parte order under the belief that Mr. Haight had been provided Mr. Black’s worksheets and had not responded.”
Based on the above findings, the panel arrived at the following conclusions of law:
“Respondent’s conduct violates the [Model] Rules of Professional Conduct [MRPC] Sections 1.1 [competence], 3.3 [candor toward the tribunal], 315 [impartiality and decorum of the tribunal], 4.4 [respect for rights of third persons], 8.4 [misconduct], and [Supreme Court] Rides 207 [duties of the bar and judiciaiy] and 211 [formal hearings]. The Panel finds by clear and convincing evidence that Respondent violated [MRPC] 1.1 [competency] by improperly applying the child support guidelines when using the formula for two children rather than five children. Respondent has been practicing law for a sufficient time so that his failure to properly learn, observe and apply the rules for calculating child support dem onstrates a lack of competency in that part of his practice. Furthermore, Respondent’s conduct in signing the father’s worksheet as ‘Attorney for Parent’ also violates Section 1.1. It is contended that Respondent also violated [MRPC] 1.1 because he believed that the support guidelines were not the same for juvenile proceedings as in domestic proceedings. The Panel does not find clear and convincing evidence to support the contention that Respondent believed this to be true.
“The Panel also finds by clear and convincing evidence that Respondent violated [MRPC] 3.3(a)(1), which requires that a lawyer not knowingly make false statements to a tribunal. Respondent knowingly and with intent to affect the court’s action made false statements in the orders submitted to the court. Clear and convincing evidence supports the Panel’s finding of a violation of [MRPC] 3.3 which requires, in an ex parte proceeding, that the lawyer inform the court of all material facts known to the lawyer. Respondent participated in an ex parte [proceeding] without informing the judge that Mr. Haight had not been notified of the hearing, had not reviewed the proposed orders, and had not reviewed the child support calculations. Respondent also failed to inform the court that although Claude Williams had three additional children, the support calculations were based upon two children.
“Respondent’s ex parte communications with Judge Groneman constitute a violation of [MRPC] 3.5(c). Respondent communicated regarding the merits with intent to affect the outcome of the matters of child support. The communications were not within the exception of [MRPC] 3.5(c)(1) because they were held other than in the course of official proceedings in the case. Respondent’s conduct is not within the exception of [MRPC] 3.5(c)(2). Respondent provided writings to Judge Groneman but filed to promptly provide copies to Mr. Haight. Respondent communicated orally with Judge Groneman without notice to Mr. Haight, such that the exception of [MRPC] 3.5(c)(3) does not apply.
“Rule 4.4 prohibits a lawyer when representing a client from using ‘means that have no substantial purpose other than to embarrass, delay, or burden a third person . . .’ Respondent violated this rule by his angry, outburst criticizing Mr. Williams for wearing the uniform of the United States Army. This served only to agitate and embarrass Mr. Williams, and delay and burden the child support hearing process.
“The Panel finds that Respondent violated [MRPC] 8.4(c) [engage in conduct involving dishonesty, fraud, deceit or misrepresentation], (d) [engage in conduct that is prejudicial to the administration of justice], and (g) [engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law]. Respondent’s obtaining of the child support order based upon erroneous calculations and without notice to Mr. Haight constituted conduct involving dishonesty, fraud, deceit and misrepresentation. Respondent’s unjustified, hostile and intimidating outburst addressed to Claude Williams constituted conduct that is prejudicial to the administration of justice and reflected adversely on his fitness to practice law.
“The Respondent’s failure to answer and to appear at the hearing constitute violations of his duties under [Supreme Court] Rides 207 [duties of the bar and judiciary] and 211 [formal hearings]. The Panel finds this conduct particularly troublesome in light of the Respondent’s history of participating in two prior disciplinary proceedings which resulted in the imposition of discipline.”
The panel considered the following information in making its recommendations to this court:
“The Disciplinary Administrator has requested the Panel recommend to the Supreme Court that Respondent be disciplined by a one (1) year period of suspension from the practice of law and by being required to formally apologize to Mr. and Mrs. Williams and to reimburse them $250.00. That sum represents Mr. Haight’s estimate of the added fees he charged the Williams for work attributable to Respondent’s conduct set forth in the complaint. Mr. Diehl also recommends that Mr. Black be required to formally apologize to Mr. Williams.
“In making its recommendations for discipline, the Panel has reviewed the ABA Standards for Imposing Lawyer Sanctions. The factors to be considered include the following: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system or to the profession; (2) whether the lawyer acted intentionally, knowingly or negligently; (3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating factors.
“The evidence shows that the Respondent violated duties to his client, to the public, and to the legal profession by his erroneous calculation of the child support, obtaining an ex parte child support order and withholding order based upon such calculation, and his unprofessional outburst directed to Mr. Williams. Mr. Black acted intentionally when obtaining ex parte orders from Judge Groneman and when ranting at Mr. Williams. Overstating the amount of child support and obtaining an ex parte order for withholding such amount seriously injured the family of Claude and Patricia Williams, making it difficult for them to take care of their family. Respondent’s attack upon Claude Williams, in the presence of several people, caused severe anger and intimidation.
“There are multiple violations. The standards support disbarment for some intentional violation of [MRPC] 3.3(d) and 3.5(c) and less severe sanction for others. ([MRPC] 1.1 and 8.4). We therefore turn to the ABA Standards on Aggravation and Mitigation to determine whether any factors present either increase or reduce the nature and extent of discipline to be imposed.
“1. Aggravating factors.
a. Prior disciplinary offenses. Respondent has been disciplined for ethical violations in 1990 and 1991. (In re Black, 247 Kan. at 664 and In re Black, 249 Kan. at 211). He has a history of lack of competency and professional misconduct within the meaning of [MRPC ] 1.1 and 8.4.
b. Dishonest or selfish motive. This is not a factor.
c. Pattern of misconduct and d. Multiple offenses. Respondent definitely follows a pattern of misconduct as shown by his previous violations. He failed to appear before Judge Pusateri in response to an order to show cause why [he] should not be barred from practicing before the Bankruptcy Court. He failed to appear before the Panel in this proceeding. Respondent shows a pattern of lack of competency. Respondent’s prior disciplinary actions and this proceeding all found multiple offenses.
e. Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. Respondent failed to file [an] Answer and failed to appear at hearing.
f. Submission of false evidence, false statements, or other deceptive practices during disciplinary process. This is not a factor.
g. Refusal to acknowledge wrongful nature of conduct. Respondent does not admit wrongdoing.
h. Vulnerability of the victim. The Panel does not find the complainant to be more or less vulnerable than any other clients.
i. Substantial experience in the practice of law. Respondent is a 1987 graduate and admittee to practice and has sufficient experience to have been attentive to each duty that he violated.
j. Indifference to making restitution. Respondent’s indifference is highlighted by his failure to file an Answer and failure to appear at the hearing.
k. Illegal conduct, including that involving the use of controlled substances. This is not a factor.
“2. Mitigating factors.
a. Absence of a prior disciplinary record. Respondent has a prior disciplinary record.
b. Absence of a dishonest or selfish motive. This is not a factor.
c. Personal or emotional problems if such misfortunes have contributed to violation of the [Model Rules of Professional Conduct]. Although Respondent successfully presented such matters in mitigation of prior offenses, he did not present any such evidence in this case.
d. Timely good faith effort to make restitution or to rectify consequences of misconduct. This is not a factor.
e. The present and past attitude of the attorney as shown by his cooperation during the hearing and his full and free acknowledgement of the transgressions. This is not a factor.
f. Inexperience in the practice of law. This is not a factor.
g. Previous good character and reputation. This is not a factor in this decision.
h. Physical disability. This is not a factor in this decision.
i. Mental disability or chemical dependency including alcoholism or drug abuse when (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependence or mental disability caused the misconduct; (3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that conduct is unlikely. This is not a factor in this case.
j. Delay in disciplinary proceedings. This is not a factor.
k. Imposition of other penalties or sanctions. This is not a factor.
l. Remorse. This is not a factor.
m. Remoteness of prior offenses. This is not a factor.
n. Any statement by the complainant expressing satisfaction with restitution and requesting no discipline. This is not a factor.
“The Panel notes that there are several significant aggravating factors and no mitigating factors. After reviewing all of these factors, the Panel recommends that Respondent be indefinitely suspended. The Panel also recommends that Respondent be required to formally, in writing, apologize to Claude Williams and to reimburse Claude Williams $250.00.”
The factual findings and conclusions of law of the panel are supported by clear and convincing evidence, and we adopt the same. We note that during oral argument the Deputy Disciplinary Administrator changed the Disciplinary Administrator s initial recommendation of a 1-year suspension to a recommendation for indefinite suspension. A majority of the court is in agreement with the recommendation of the panel that the respondent be indefinitely suspended from the practice of law in Kansas and that respondent apologize in writing to Claude Williams and reimburse Claude Williams $250, which he expended to change the order procured by respondent. A minority of the coúrt would order disbarment.
It is Therefore Ordered that Carl S. Black be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It Is Further Ordered that prior to reinstatement, respondent reimburse Claude Williams $250 and submit a written apology to Claude Williams for inappropriate comments referenced in the findings of fact.
It Is Further Ordered that respondent shall forthwith comply with Supreme Court Rule 218 (1996 Kan. Ct. R. Annot. 226), that respondent pay the costs of this action, and that this order be published in the official Kansas Reports.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Gerald N. Capps, Jr., of Wichita, an attorney admitted to the practice of law in the State of Kansas. The complaint filed in case No. A6304 was heard before a panel of the Kansas Board of Discipline of Attorneys. The essential facts, as determined by the panel, and the panel’s recommended discipline are not in dispute. Capps did not file exceptions to the hearing panel report, in which the panel by clear and convincing evidence unanimously found:
“2. In 1994, Morrison Enterprises of Salina, Kansas, hired Respondent’s firm, Morris, Laing, Evans, Brock and Kennedy, to file suit against McShares, Inc. based on the Comprehensive Environmental Regulatory Act of 1980 (CERCLA). After an August, 1994, scheduling conference for the lawsuit, the Court set certain deadlines by written order. Respondent missed the court scheduled deadline of October 3, 1994, for disclosing plaintiff’s expert witness. This prompted McShares, Inc. to file a motion to exclude expert witnesses. Respondent filed for an extension of time to disclose plaintiff’s expert witness, but the Court denied Respondent’s motion and granted McShares, Inc.’s motion to exclude. Later, the court also denied a motion for reconsideration Respondent had filed. Missing these deadlines left plaintiff Morrison Enterprises without evidence in its CERCLA case.
“3. In March 1995, McShares, Inc. sent interrogatories and request for admission to Respondent, but Respondent failed to respond to these discovery requests by the scheduled response dates. On March 31, 1995, defendant McShares, Inc. filed a Motion for Summary Judgment. Respondent failed to respond to this motion, as required, within twenty days. In May, 1995, Respondent filed a Motion to File a Response Out of Time. The motions were heard in May, 1995. By order filed June 12, 1995, the Court denied Respondent’s Motion to File Out of Time and reaffirmed its decision that plaintiff (Morrison Enterprises) could not use expert witnesses to prove its case.
“4. Although the court rulings had serious adverse impact on plaintiff’s case, Respondent never communicated with Roger Morrison of Morrison Enterprises about the status of the case during the time period the motions were filed and the court was ruling against plaintiff.
“5. By letter to the Disciplinary Administrator dated June 22, 1995, Respondent described the foregoing facts and admitted that he failed to competently represent Morrison Enterprises, and further that he failed to keep said client reasonably informed.
“CONCLUSIONS OF LAW
“Respondent’s conduct violates the Model Rules of Professional Conduct Sections 1.1 [1996 Kan. Ct. R. Annot. 257], 1.3 [1996 Kan. Ct. R. Annot. 264], and 1.4 [1996 Kan. Ct. R. Annot! 270]. The Panel finds from clear and convincing evidence that Respondent failed to competently represent his client with diligence and promptness thereby violating MRPC 1.1 and 1.3 when he missed established filing and response deadlines putting his client in the position of being unable to prove its case. He also violated MRPC 1.4 by failing, at any time from August 1994 to June 1995, to inform Roger Morrison (his contact with plaintiff company) about the motions, the rulings on the motions and the drastic adverse impact they had on plaintiff’s case.
“RECOMMENDED DISPOSITION
“The Disciplinary Administrator has requested the Panel find that Respondent violated MRPC 1.1,1.3, and 1.4, and recommend to the Supreme Court that Respondent be disciplined pursuant to Rule 211(f) [1996 Kan. Ct. R. Annot. 215],
“In making its recommendations for discipline, the Panel has reviewed the ABA Standards for Imposing Lawyer Sanctions. The factors to be considered include the following: 1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system or to the profession; 2) whether the lawyer acted intentionally, knowingly or negligently; 3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and 4) the existence of aggravating or mitigating factors.
“The evidence shows that Respondent violated a duty to his client, Morrison Enterprises, by failing to meet the court established deadlines for the procedural filings in the case and further by not informing his client of the status of the case and, specifically, the missed deadlines and rulings against plaintiff.
“The Panel reviewed the ABA Standards on Aggravation and Mitigation to determine whether any factors present either increase or reduce the nature and extent of discipline to be imposed.
“1. Aggravating factors.
a. Prior disciplinary offenses. This is not a factor.
b. Dishonest or selfish motive. This is not a factor.
c. Pattern of misconduct. This is not a factor.
d. Multiple offenses. This is not a factor.
e. Bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency. This is not a factor.
£ Submission of false evidence, false statements, or other deceptive practices during disciplinary process. This is not a factor.
g. Refusal to acknowledge wrongful nature of conduct. This is not a factor.
h. Vulnerability of the victim. The Panel does not find the client to be more or less vulnerable than is any other lawyer’s client.
i. Substantial experience in the practice of law. Having been admitted to practice in 1988 and being a shareholder in a leading Wichita law firm, Respondent had substantial experience in litigation responsibilities.
j. Indifference to making restitution. This is not a factor.
k. Illegal conduct, including that involving the use of controlled substances. This is not a factor.
2. Mitigating factors.
a. Absence of a prior disciplinary record. Respondent has no prior disciplinary record.
b. Absence of a dishonest or selfish motive. There is no evidence of dishonest or selfish motive.
c. Personal or emotional problems if such misfortunes have contributed to violation of the code of professional responsibility. These are not factors in this case.
d. Timely good faith effort to make restitution or to rectify consequences of misconduct. Respondent has provided funds in excess of $20,000.00 to his former law firm to cover liability to the client.
e. The present and past attitude of the attorney as shown by his cooperation during the hearing and his full and free acknowledgement of the transgressions. Respondent self-reported the violations and cooperated fully in the disciplinary process.
f. Inexperience in the practice of law. This is not a factor.
g. Previous good character and reputation. The Respondent has been a good person of good character and reputation.
h. Physical disability. While there is evidence that Respondent suffered depression, such is not considered a mitigating factor in this case.
i. Mental disability or chemical dependency including alcoholism or drug abuse when (1) there is medical evidence that the respondent is affected by a chemical dependence or mental disability; (2) the chemical dependence or mental disability caused the misconduct; (3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely. This is not a factor in this case.
j. Delay in disciplinary proceedings. This is not a factor.
k. Imposition of other penalties or sanctions. This is not a factor.
l. Remorse. Respondent had demonstrated remorse.
m. Remoteness of prior offenses. This is not a factor.
n. Any statement by the complainant expressing satisfaction with restitution and requesting no discipline. This is not a factor.
“The Panel’s recommendation for discipline was deferred until January 1, 1997, pending additional proceedings in the United States District Court to ameliorate earlier rulings against Respondent’s client Morrison Enterprises. While limited relief was ultimately obtained, Respondent’s client remains severely prejudiced in its court action.
“Following the January 1, 1997, deferral date, the Disciplinary Administrator recommended a two year suspension with probation conditioned upon continued treatment for depression, attorney supervision and no further violations of the Model Rules of Professional Conduct.
“The Respondent’s response states that he has been released from treatment for depression, that his practice is now limited to one client in the narrow area of property tax law and that the Disciplinary Administrator’s recommendations are thus inappropriate. Respondent suggests censure as the most appropriate discipline.
“After review of the testimony, matters in aggravation and mitigation and the suggestions for discipline, the Hearing Panel recommends as follows:
“1. That Respondent shall be suspended from the practice of law for one year.
“2. That imposition of said discipline be suspended on the following conditions:
a. Respondent’s practice of law shall be monitored and supervised by an attorney acceptable to the Disciplinary Administrator, which attorney will report the Disciplinary Administrator on a quarterly basis regarding Respondent’s management of cases and legal matters entrusted to him.
b. Certification by Rowan Settles and Larry M. Pankow, M.D., that Respondent requires no further treatment therapy for depression and that his is faithfully following any prescribed medication regime.
c. Respondent shall not violate any of the Model Rules of Professional Conduct during such term of probation.
“Violation of any of the above conditions should cause immediate indefinite supervision.
“In arriving at the above recommendations, the Panel determined that a one year suspension, rather than the suggested two year suspension, was appropriate in this case for the reason that the violations were considered a singular aberration in an otherwise exemplary practice history.
“Costs should be assessed against Respondent in an amount to be certified by the Disciplinary Administrator.”
We find there is clear and convincing evidence establishing the violations found and enumerated by the panel.
We adopt the findings and recommendation of the panel as modified.
It Is Therefore Ordered that imposition of discipline against respondent Gerald M. Capps, Jr., be suspended, and he is placed on probation for a period of 1 year from the date of this order.
It Is Further Ordered:
(1) During the probation period, respondent’s practice of law shall be monitored and supervised by an attorney acceptable to the Disciplinary Administrator, which attorney shall report to the Disciplinary Administrator on a quarterly basis regarding respondent’s management of cases and legal matters entrusted to him.
(2) During the probation period, respondent shall provide semiannual certification by Rowan Settles, LSCWS, and Larry Pankow, M.D., that respondent requires no further treatment or therapy for depression and that he is faithfully following any prescribed medication regimen.
(3) Respondent shall not violate any of the Model Rules of Professional Conduct during such term of suspension of the imposition of discipline.
It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to respondent.
Abbott, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
On December 6, 1996, this court decided KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 927 P.2d 466 (1996) (KPERS I), which involved two actions filed by the Kansas Public Employees Retirement System (KPERS) against various defendants for its investment losses in Sharoff Food Service, Inc., (Sharoff) and Tallgrass Technologies Corporation (Tallgrass). This appeal involves a cross-claim between two defendants in the action regarding KPERS’s losses in Tallgrass. We affirm the trial court’s dismissal of the cross-claim but for different reasons than are advanced by the trial court.
A brief statement of the facts, as well as some procedural history, is helpful to crystalize the issues we are called upon to decide in this appeal. KPERS filed two separate actions against Reimer & Koger and other defendants for losses suffered from its investment in Sharoff, approximately $9 million, and from its investment in Tallgrass, approximatély $14.5 million. Reimer & Koger was an investment advisor and had the discretion to invest the KPERS money. Reimer & Koger employed the law firm of Gage & Tucker, L.C., to represent KPERS, draft documents, and otherwise assist Reimer & Koger in consummating the Tallgrass transaction.
In May 1994, the Kansas Legislature enacted the KPERS settlement statute, K.S.A. 1995 Supp. 74-4904a, which provides protection for a defending party who enters into a settlement agreement with KPERS and obtains judicial approval of the settlement. The settling defendant is discharged from “all liability for contribution or noncontractual indemnity” as to any other individual or entity. K.S.A. 1995 Supp. 74-4904a(1). See KPERS I, 261 Kan. at 22-23.
Pursuant to the above statute, Gage & Tucker, which had been granted leave by the court to intervene as a defendant in the Tail-grass case, settled with KPERS for its loss in Tallgrass for $2.5 million. The separate KPERS actions for losses in Sharoff and Tail-grass were consolidated before the Shawnee County District Court. Both cases were the subject of an interlocutory appeal to this court on the questions of whether Reimer & Koger s cross-claims against Gage & Tucker for contribution and noncontractual indemnity were discharged by the KPERS settlement statute, K.S.A. 1995 Supp. 74-4904a, and whether K.S.A. 1995 Supp. 74-4904a was constitutional. We answered yes to both questions. KPERS I, 261 Kan. at 28-44.
At the time the appeal we now consider was argued, this court had not yet decided KPERS I, 261 Kan. 17. Because our decision affected this appeal we, by order dated December 18, 1996, offered the parties an opportunity to submit additional written arguments. The parties filed supplemental briefs.
The cross-claim in this case filed by Reimer & Koger against Gage & Tucker consists of two counts. Each count alleges that Gage & Tucker was retained by Reimer & Koger to represent Reimer & Koger in connection with the Tallgrass investments.
In Count I, entitled “Negligence and Breach of Fiduciary Duty,” Reimer & Koger asserts two claims. First, Reimer & Koger alleges that if it is found liable to KPERS for any damage, then Gage & Tucker breached its duty of care and/or fiduciary duty to Reimer & Koger, and by that breach, caused or contributed to the damage to KPERS. On that basis, Reimer & Koger seeks indemnity and/ or contribution from Gage & Tucker for any judgment KPERS may obtain against Reimer & Koger. The second claim alleges legal malpractice sounding in tort against Gage & Tucker for loss of fees, income, and damages to Reimer & Koger’s reputation resulting from the KPERS termination of Reimer & Koger. This claim is asserted as follows:
“12. In addition to the foregoing indemnification and/or contribution claims, to the extent that the acts, omissions, negligence, and fault of Gage & Tucker are found to have caused any damage to KPERS, then such acts, omissions, negligence and fault caused and/or contributed to KPERS’ termination of R&K as an in vestment advisor and thereby caused R&K damages in the loss of fees, income and damage to reputation.”
In Count II, entitled “Breach of Contract,” Reimer & Koger also set forth two claims: First, Reimer & Koger stated that Gage & Tucker entered into a contract with Reimer & Koger to provide Reimer & Koger with sound and appropriate legal services in connection with tíre Tallgrass investments; if Reimer & Koger is adjudged to be Hable to KPERS, then Gage & Tucker has breached its contract with Reimer & Koger by failing to properly advise Reimer & Koger. Reimer & Koger seeks indemnification and/or contribution from Gage & Tucker for any amount it is adjudged to be hable to KPERS. Second, Reimer & Koger asserts a claim for legal malpractice sounding in breach of contract. In this legal malpractice claim, Reimer & Koger alleges that if Gage & Tucker’s breach of its contract with Reimer & Koger is found to have caused any damage to KPERS, then that breach caused and/or contributed to the KPERS termination of the investment agreement on May 24, 1991, thereby causing Reimer & Koger to lose fees and income and suffer damage to its reputation.
A careful reading of the cross-claim demonstrates that the tort claims set forth in Count I are repeated in Count II, with the exception that in Count II, the claims are alleged to be based upon a contract between Reimer & Koger and Gage & Tucker. However, the nature of the contractual claims set forth in Count II sound in tort rather than in contract. The essence of the action in Count II is not dependent upon the breach of specific provisions of a contract but rather is based upon a breach of duty imposed by law. Even though there is a contract between the parties, the action sounds in tort, based upon a breach of duty imposed by law. Malone v. University of Kansas Medical Center, 220 Kan. 371, 375, 552 P.2d 885 (1976); see Bonin v. Vannaman, 261 Kan. 199, 209-11, 929 P.2d 754 (1996); Hunt v. KMG Main Hurdman, 17 Kan. App. 418, 839 P.2d 45 (1992).
We said in Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618, 619-20, 675 P.2d 361 (1984), that the difference between a tort and contract action is that a breach of contract is a failure of performance of a duty arising or imposed by agreement; whereas, a tort is a violation of a duty imposed by law. In Tamarac Dev. Co., we concluded that the cause of action was based upon an oral contract calling for a specific result. Thus, the 3-year statute of limitations applied instead of the 2-year statute of limitations based upon negligence. 234 Kan. at 622-23.
We discussed the difference between tort and contract actions in legal malpractice cases in Pancake House, Inc. v. Redmond, 239 Kan. 83, 716 P.2d 575 (1986). That case involved an action filed against attorneys for negligence, breach of a fiduciary duty, and breach of implied contract. The plaintiff argued that its action was contractual and the 3-year statute of limitations applied. The defendants contended that the cause of action was tort-based and the 2-year statute of limitations had run. Our discussion in Pancake House, Inc., is instructive in this case:
“A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties. Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976).
“Legal and medical malpractice generally constitute both a tort and a breach of contract. An action for liability of an attorney on the grounds of negligence for failure to discharge his professional duty to a client rests on the employment contract and therefore is contractual in nature. Where the act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby, the action is contractual. Where the essential claim of the action is a breach of a duty imposed by law upon the relationship of attomey/client and not of the contract itself, the action is in tort. Bowman v. Doherty, 325 Kan. 870, 686 P.2d 112 (1984).
“. . . Kansas has held that where a legal duty is imposed by law, the cause of action is in tort. Where the malpractice involves failure to perform a contractual obligation, whether express or implied, the cause of action is in contract.” 239 Kan. at 85-86.
Count II of Reimer & Koger s cross-claim, while entitled breach of contract, alleges a general breach of duty imposed by law upon the relationship of attomey/client and not on the contract itself. Paragraphs 14 and 16 of the cross-claim in Count II state:
“14. R&K contracted with Gage & Tucker to provide sound and appropriate legal services to R&K in the course of R&K’s rendering investment advisory services to KPERS, and in particular relating to the Tallgrass investment.
“16. R&K specifically deny [sic] that it is hable to KPERS, as set forth in this defendant’s answer to KPERS’ petition. However, R&K states that if it is adjudged to be hable or to have caused any damages to plaintiff, such being expressly denied, then Gage & Tucker has breached its contract with R&K by failing to properly advise R&K and has therefore, by its breach of contract, caused or contributed to any KPERS’ damages adjudged against R&K.” (Emphasis added.)
We conclude that both of the claims set forth in Count II sound in tort and do not set forth contractual claims. As such, the claims set forth in Count II duplicate the tort-based claims set forth in Count I of the cross-claim of Reimer & Koger.
The tort-based claims for noncontractual indemnity and/or contribution asserted by Reimer & Koger against Gage & Tucker in its cross-claim have been discharged by the judicially approved settlement Gage & Tucker entered into with KPERS. See KPERS I, 261 Kan. at 34. The parties agreed in their supplemental briefs, and we conclude, that the cross-claims for noncontractual indemnity and/or contribution against Gage & Tucker have been discharged. Accordingly, the trial court’s dismissal of these claims must be affirmed.
The two remaining claims are tort-based legal malpractice claims seeking affirmative relief. The two legal malpractice claims duplicate one another. Gage & Tucker filed a motion before the trial court to dismiss these claims because they were barred by the applicable 2-year statute of limitations. Gage & Tucker advances the same argument on appeal.
We note that our decision in KPERS 1,261 Kan. 17, has no effect on Reimer & Koger’s tort-based legal malpractice claim against Gage & Tucker in that such claims do not seek contribution or indemnity. The legal malpractice claims are separate and distinct affirmative claims for the loss of fees, income, and damage to rep utation based upon Gage & Tucker’s part in the termination of Reimer & Koger as the KPERS investment advisor.
Any cross-claim that asserts an affirmative claim must be filed within the applicable period of the statute of limitations. U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, Syl. ¶ 2, 629 P.2d 196, rev. denied 230 Kan. 819 (1981).K.S.A. 60-513 governs and provides for a 2-year limit for most actions not premised on a contract. Subsection (b) of this statute states in relevant part:
“[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of the injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
The phrase “substantial injury” in K.S.A. 60-513(b) has been construed to mean “actionable injury.” Roe v. Diefendorf, 236 Kan. 218, Syl. ¶ 2, 689 P.2d 855 (1984). In examining this statute in the context of a legal malpractice action, we explained:
“In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The true test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted his action to a successful conclusion.” Pancake House, Inc., 239 Kan. at 87.
Gage & Tucker argues that Reimer & Koger suffered substantial injury when KPERS terminated its investment agreement with Reimer & Koger. Reimer & Koger assert that the cause of action does not accrue until the damages in the underlying action are fixed and the underlying action is finally concluded. However, the sole injury that Reimer & Koger bases its malpractice claim upon is the termination of the investment agreement. Paragraph 12 of the cross-claim states: Reimer & Koger alleges that the termination itself was partially caused by Gage & Tucker’s negligence. The injury caused by any malpractice on the part of Gage & Tucker became ascertainable at the moment of termination. The termination of the investment agreement occurred ón May 24, 1991, and this is the date the statute of limitations began to run.
“12. In addition to the foregoing indemnification and/or contribution claims, to the extent that the acts, omissions, negligence, and fault of Gage & Tucker are found to have caused any damage to KPERS, then such acts, omissions, negligence and fault caused and/or contributed to KPERS’ termination of R&K as an investment advisor and thereby caused R&K damages in the loss of fees, income and damage to reputation.”
The KPERS petition in this action was filed May 20, 1993. Reimer & Koger’s cross-claim was not filed until December 30,1994, more than 2 years from May 24,1991. However, if the cross-claim relates back to the date of the petition on May 20, 1993, the cross-claim would be filed within the 2-year statutory period. “The general rule is that a cross claim of any nature is barred as to affirmative relief, if such cross claim be barred by the statute of limitations at the time of the filing of plaintiff’s action.” Christenson v. Akin, 183 Kan. 207, 212-13, 326 P.2d 313 (1958). In this case, the cross-claim of Reimer & Koger based upon legal malpractice was not barred by the statute of limitations at the time KPERS filed its petition on May 20, 1993. However, this does not end our inquiry.
Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, Syl. ¶ 2, 402 P.2d 782 (1965), involved the question of whether a cross-claim filed by one defendant against its codefendant was barred by a 2-year statute of limitations. We first noted that in considering the effect of the running of the statute of limitations, there is a substantial distinction between a claim asserted as apure defense and one where affirmative relief is sought. We recognized that a demand pleaded by way of a setoff, counterclaim, or cross-claim is regarded as an affirmative action and, unlike a matter of pure defense, is subject to the operation of the statute of limitations. 195 Kan. at 56. In the case we now consider, the cross-claim for legal malpractice is an affirmative action by Reimer & Koger against Gage & Tucker for monetary damages flowing from termination of Reimer & Koger as the KPERS investment advisor.
In Rochester American Ins. Co., we held that the cross-claim was barred by the 2-year statute of limitations because it was filed more than 2 years after the statute had began to run. This was the case even though the initial petition in the case was filed within the 2-year period. We said:
“Where a defendant files a cross-claim seeking affirmative relief against other defendants in an action arising out of the same incident pleaded by the plaintiffs in their petitions, and where the original petitions were filed within the two-year period of the statute of limitations, but the cross-claim was not filed until after the two-year limitation period had run, it is held-. The cross-claim is barred by the statute of limitations.” 195 Kan. 151, Syl. ¶ 2.
Reimer & Roger’s cross-claim for legal malpractice was filed with the district court on December 20, 1994, more than 2 years after the statute of limitations began to run on May 24, 1991. As such, Reimer & Roger’s negligence-based claim for legal malpractice is barred by R.S.A. 60-513(b).
We have said that a trial court’s reason for its decision is immaterial if the ruling is correct for any reason. Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, Syl. ¶ 3, 863 P.2d 364 (1993). Accordingly, we affirm the trial court’s dismissal of Reimer & Roger’s cross-claim against Gage & Tucker.
Affirmed.
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The opinion of the court was delivered by
Davis, J.:
Abraham Orr appeals from his convictions of first-degree murder, K.S.A. 21-3401, and attempted aggravated robbery, K.S.A. 21-3427 and K.S.A. 21-3301. He claims ineffective assistance of counsel in violation of his Sixth Amendment right under the United States Constitution. He also challenges the admission of his confession and contends that the evidence fails to support the jury’s determination that he was legally sane at the time of the crime.
On September 18,1993, the defendant and three friends, James Wadley, Courtney Crockett, and Adrian Perkins, traveled in Wadley’s car to Kansas City from their home in Topeka. The defendant was 1 month shy of his 18th birthday. On the return trip, Wadley’s car broke down on the Kansas turnpike near one of the Lawrence toll exits. The four left the car on foot to look for a telephone.
The defendant and Wadley entered a convenience store near the turnpike to make the telephone call. Once inside, they decided to steal an unguarded purse, hoping to find car keys. The keys in the purse did not fit the car in the parking lot outside the store, so the youths walked on. The four encountered an Izuzu Trooper parked with its motor running at the gate of a park not too far from the convenience store. Initially, they passed the vehicle but soon returned to steal it.
The occupants of the vehicle included, Edward Lees, Dana Chang and Dana’s 21/2-year-old son and her 15-month-old daughter. The defendant and Crockett approached the vehicle, while Perkins and Wadley hung back. The defendant carried his own handgun, while Crockett carried Wadley’s 9 mm. pistol. They motioned to Lees to get out of the vehicle. Lees shook his head no and then faced forward.
This action frustrated the defendant. He took out his gun and tapped on the vehicle window. When Lees refused to move, the defendant shot a warning shot at the ground. Again, Lees did not move but shifted into reverse and slowly moved backward. The defendant, in anger, raised his gun and shot through the window.
Chang witnessed each of these events and testified that the bullet went through Lees’ head. The vehicle rolled back into a ditch. She grabbed her son and ran for help. Chang flagged down a car whose driver agreed to watch her son as she returned for her daughter. Another driver whom Chang alerted went to the toll booth to report the incident to the police. While he was in the process of calling, he witnessed four youths running from the woods to the toll booth. He reported the youths as possible suspects. Lees bled to death at the scene from a bullet wound to his neck.
Police arrived at the east Lawrence toll booth and arrested the four young men. They were all taken to the Douglas County Law Enforcement Center. During separate interrogations, each suspect confessed to their involvement in the shooting. The defendant was the last to confess, only agreeing to talk after he saw the other three youths. The defendant was charged with felony murder and attempted aggravated robbery. A motion to suppress his confession was denied prior to trial. Based upon his juvenile record, the defendant was tried as an adult.
At trial, Chang identified the defendant as the shooter. The defendant’s confession was admitted through the interrogating officer. The defendant raised the defenses of insanity and diminished capacity. He testified on his own behalf regarding his state of mind during the incident. He explained that he thought he was doing the right thing to get his friends a car to get home. He also testified that his brother had died a month before the shooting, causing him severe depression.
A teacher of the defendant’s and a school social worker testified to the change in personality they had witnessed in the defendant since the date of his brother’s death. In addition, his mother testified that her sons had been veiy close and the death had severely affected the defendant.
As a rebuttal witness, the State called the court-appointed psychiatrist, Dr. Sheldon Vile, of the Bert Nash Mental Health Center. Dr. Vile testified that he examined the defendant a few months after the crime and determined that while the defendant exhibited some signs of depression, he believed the defendant to be legally sane on the date of the crime. The defendant’s appeal was timely filed; his counsel requested that the case be remanded for a de termination of the defendant’s contention that he had not been adequately represented during the trial of his case.
In State v. Van Cleave, 239 Kan. 117, Syl. ¶ 1, 716 P.2d 580 (1986), we held that a claim of ineffective assistance of counsel will not be considered for the first time on appeal. We outlined in Van Cleave a remand procedure for hearing a claim of ineffective assistance of counsel before the trial court. The rationale for this procedure was clearly stated in Van Cleave:
“The principal problem facing an appellate court when a claim of ineffective assistance of counsel is raised for the first time on appeal is that the trial court, which observed counsel’s performance and was aware of the trial strategy involved,. is in a much better position to consider counsel’s competence than an appellate court is in reviewing the issue for the first time from a cold record. Many times what would appear in the record as an indication of ineffective counsel was fully justified under the circumstances present in the trial court. The trial judge should be the first to make a determination of such an issue and our refusal to consider the matter for the first time on appeal is sound.” 239 Kan. at 119.
In this case, pursuant to counsel’s request, we used the procedure for remand outlined in Van Cleave; we retained jurisdiction over the defendant’s appeal, but remanded for a full consideration of his ineffective assistance of counsel claim. The trial judge presiding over the defendant’s trial had retired and was not available to hear the claim of ineffective assistance upon remand. District Court Judge Jack A. Murphy of the same judicial district heard the case upon remand. Three separate hearings were held. The hearings were extensive. Judge Murphy recognized that the case would normally be heard by the judge who tried the criminal case. As a result, “the Court [upon remand] granted the Defendant and the State greater leeway and time than might usually be necessary to present evidence and arguments.”
The parties were given additional time to submit memoranda of law, which each party submitted to the court. Numerous witnesses, including, the defendant and his trial counsel, testified. The trial court considered all evidence presented and the authority submitted by the parties and addressed the four issues raised by the defendant. In a 16-page memorandum decision, the court concluded that “this was a difficult case to defend. Trial counsel provided reasonably effective assistance in the case, considering all . of the circumstances and the evidence from his perspective at the time of defending Mr. Orr.”
EFFECTIVENESS OF COUNSEL UNDER THE SIXTH AMENDMENT
Standard of review
Recently we set forth the standard of review we apply in cases where it is alleged that the defendant has been denied the effective assistance of counsel under the Sixth Amendment. In State v. Rice, 261 Kan. 567, 598-603, 932 P.2d 981 (1997), we said:
“The two landmark cases on the issue of ineffective assistance of counsel are those considered and utilized by the trial court, Strickland [v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984),] and Chamberlain [v. State, 236 Kan. 650, 694 P.2d 468 (1985)].
“Justice O’Connor, in writing for a 7 to 2 majority in Strickland, stated that before counsel’s assistance is determined to be so defective as to require reversal, two components or prongs must be shown:
‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced tire defense. This requires showing that counsel's errors were so serious as to deprive tire defendant of a fair trial . . . .’ 466 U.S. at 687.
“Further, the Strickland majority opinion states:
‘[T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve tire quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
'Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires thateveiy effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circum stances, the challenged action “might be considered sound trial strategy.” See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 343 (1983).
‘The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.
‘Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in tire particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ 466 U.S. at 689-90.
“Strickland was a federal habeas challenge to a state criminal court determination. In viewing the Court’s scope of review, Justice O’Connor concluded:
‘Finally, in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d). Ineffectiveness is not a question of “basic, primary, or historical fac[t].” Townsend v. Sain, 372 U.S. 293, 309, n.6 (1963). Rather, like the question whether multiple representation in a particular case gave rise to a conflict of interest, it is a mixed question of law and fact. See Cuyler v. Sullivan, 446 U.S., at 342. Although state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d), and although district court findings are subject to the clearly erroneous standard of Federal Rule of Civil Procedure 52(a), both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.’ 466 U.S. at 698.
“Although the clear direction of Strickland that ‘both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact’ did not find its way into Chamberlain, our seminal Kansas case on this issue, the heart and purpose of the Strickland ruling did, and it has been uniformly applied to every Kansas ineffective assistance of counsel case since it was filed in 1985.
“In writing for the Kansas Supreme Court in Chamberlain, Justice Holmes set forth the existing Kansas standards of Schoonover v. State, 2 Kan. App. 2d 481, Syl. ¶¶ 2, 3, 4, 582 P.2d 292, rev. denied 225 Kan. 845 (1978), and the claim of ‘actual ineffectiveness’ of Strickland. Justice Holmes then stated:
‘Comparing Strickland v. Washington with the Schoonover v. State standards of ineffective assistance of counsel reveals little conflict between the two. Where Schoonover required proof of counsel’s conduct substantially deviating from that expected of a reasonably competent lawyer in the community, Washington requires proof the conduct was not reasonable considering all the circumstances, with defendant required to overcome a strong presumption of reasonableness. Schoonover also required proof counsel’s conduct caused the client’s conviction or otherwise worked to the client’s “substantial disadvantage.” Washington now requires a defendant establish a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. While the actual application of the standards from Schoonover as opposed to those of Washington would in all probability effect the same result in any given case, we deem it appropriate to now adopt the Washington holdings as the prevailing yardstick to be used in measuring the effectiveness of counsel under the Sixth Amendment. They may be stated as:
First. The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
Second: A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
In adopting the Washington two-pronged standard or test we do not abandon the standards which have been carefully developed in Schoonover and its progeny. While the Supreme Court in Washington refrained from adopting any “mechanical rules” to be utilized in considering a claim of ineffective assistance of counsel we are of the opinion that our standards enunciated in Schoonover and built upon in subsequent cases remain viable guidelines in the application of the Washington standard.’ Chamberlain, 236 Kan. at 656-57.
“In addition, Chamberlain requires the trial court to assess the performance of counsel before an appellate court considers the matter and stated: ‘Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the proceedings first hand as they happened.’ 236 Kan. at 659-60.
“It is apparent from an examination of our appellate decisions on ineffective assistance of counsel issues that Kansas courts have uniformly followed the mandates of Schoonover, Strickland, and Chamberlain in applying the two-pronged test of Strickland, making the independent evaluation of each situation by the totahty of the representation as directed in Schoonover, requiring die assessment of the performance of counsel by the trial court before it will be considered by the appellate court, and then allowing ‘deference and rebanee . . . upon the wisdom and determination of the trial judge who saw all the proceedings firsthand as they happened’ as directed by Chamberlain. Although we may not have uniformly stated in our appellate opinions that we have,,given a de novo review to the mixed questions of fact and law which exist, it is apparent that we have done so.
“We hold that once a proper determination of the issue of ineffective assistance of counsel has been made by the trial court, see State v. Miller, 259 Kan. 478, 486-87,912 P.2d 722 (1996); State v. Hall, 246 Kan. 728, 753, 793 P.2d 737 (1990); and State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986), we review the issue on appeal de novo as directed by Strickland as mixed questions of fact and law under the totahty of the facts and circumstances. Our isolated statement in Taylor, 251 Kan. at 285, that the appropriate scope of review is abuse of discretion, is disapproved.
“Such a holding is consistent with the myriad of cases from the 10th Circuit Court of Appeals which have uniformly so held. See, e.g., Nickel v. Hannigan, 97 F.3d 403, 408 (10th Cir. 1996) (‘This court reviews de novo the district court’s ineffective assistance of counsel analysis, which involves mixed questions of law and of fact.’); Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995) (‘The performance and prejudice components of the Strickland analysis present mixed questions of law and fact which we review de novo.’); Brecheen v. Reynolds, 41 F.3d 1343,1365-66 (10th Cir. 1994) (‘ “[T]he performance and prejudice prongs under Strickland involve mixed questions of law and fact which we review de novo.” ’) (quoting United States v. Owens, 882 F.2d 1493,1501-02 n.16 [10th Cir. 1989], which cited Strickland, 466 U.S. at 698).”
Our review in the case is then de novo on mixed questions of law and fact. However, we do not ignore the findings of the trial court. In this case, as in most cases where the procedure outlined in Van Cleave is employed, the trial court decides the same question we are called upon to review. In this case, the trial court granted both parties considerable latitude in developing the evidence regarding the issue of ineffective assistance of counsel. The factual determinations made by the trial court under these circumstances are, if supported by substantial competent evidence, entitled to great weight before this court. “Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the proceedings first hand as they happened.” Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 (1985).
We recognize that the findings of the district court are not binding upon this court when reviewing the question of ineffective assistance of counsel in a criminal trial. In both state and federal proceedings, this is true. However, as Justice O’Connor points out in Strickland, deference is accorded to the trial court’s findings of fact in the federal system. State court findings of fact, made in the course of deciding an ineffectiveness claim, are subject to the deference requirement of 28 U.S.C. § 2254(d) (1995). The written finding, written opinion, or other reliable and adequate written indicia of the state court “shall be presumed to be correct,” unless the applicant establishes certain facts, most of which deal with a denial of due process at the state court proceeding. 28 U.S.C. § 2254(d).
At the same time, when a federal appellate court deals with findings of a federal district court, again involving a question of ineffective assistance of counsel on appeal, Federal Rule of Civil Procedure 52(a) provides that the “[fjindings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” (Emphasis added.)
Not unlike the federal system, in Kansas, where the trial court has made findings of fact and conclusions of law, we are in a position to determine whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence. Taylor v. State, 252 Kan. 98, Syl. ¶ 2, 843 P.2d 682 (1992). We do not reweigh the testimony or pass on the credibility of witnesses. McKissick v. Frye, 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 (1994); Taylor, 252 Kan. at 104. In our review, we accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court and disregard any conflicting evidence or other inferences that might be drawn therefrom. State v. Rowell, 256 Kan. 200, 213, 883 P.2d 1184 (1994); State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993); State v. McKeown, 249 Kan. 506, 515, 819 P.2d 644 (1991). At the same time, both the performance and prejudice components of the ineffectiveness inquiry remain mixed questions of law and fact. Strickland v. Washington, 466 U.S. 668, 698, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
With the above standard clearly in mind, we review and determine the issue regarding the defendant’s contention that his counsel was ineffective. The defendant sets forth eight specific allegations of ineffective assistance of counsel. We examine each allegation.
1. Allegations that counsel failed to thoroughly investigate and present the defenses of insanity and diminished capacity.
The defendant argues that his trial counsel’s failure to fully investigate his defenses was unreasonable conduct and that this conduct prejudiced the outcome of the trial. The defendant relies pri marily on cases from other jurisdictions to support his argument. While these cases present some factual similarity to the defendant's case, the cases relied on by the defendant also vary substantially from the facts in this case. The question posed is fact-driven. All cases cited by the defendant depend upon the available facts and application of the two-pronged test set forth in Strickland or a comparable legal rule. Each case is decided on its own unique facts. We, therefore, proceed to the facts of the present case.
It is undisputed that trial counsel investigated the defenses of insanity and diminished capacity. The issue before this court is whether the extent of the investigation meets a minimum standard of reasonableness. If not, this court must determine whether a lack of thorough investigation prejudiced the outcome of the trial.
At the several remand hearings, trial counsel’s investigation of the defendant’s psychological background was thoroughly explored. Trial counsel filed a notice of insanity with the trial court after determining that insanity was the strongest defense available to the defendant. Soon after, trial counsel filed an amended notice of insanity, which included the defense of diminished capacity. The court ordered a psychiatric evaluation. Dr. Eugene Vile of the Bert Nash Mental Health Center evaluated the defendant and reported that in his opinion the defendant had been legally sane at the time of the crime.
After receiving Dr. Vile’s evaluation, trial counsel requested an ex parte order from the district court for funds to hire a defense expert on the issue of insanity. After consulting with Ron Wurtz, the Shawnee County Public Defender who recommended Dr. Stephen Peterson, a forensic psychiatrist, trial counsel sought a second evaluation from Dr. Peterson. Dr. Peterson requested certain records relating to the defendant’s background. Trial counsel supplied Dr. Peterson with some but not all of the records. Trial counsel wrote a letter notifying Dr. Peterson that he was in the process of obtaining the rest of the records.
Dr. Peterson interviewed the defendant for over 4 hours at the county jail. Following the interview, Dr. Peterson, like Dr. Vile, concluded that the defendant was sane. Upon hearing Dr. Peterson’s conclusion, trial counsel told Dr. Peterson that he did not need to write a written report memorializing his findings. Trial counsel testified that Dr. Peterson said he did not need to look at any other records and that Dr. Peterson told him there was absolutely no evidence of insanity or diminished capacity.
Trial counsel testified that he investigated the names of counselors that the defendant provided him. He received records from the Youth Center at Topeka (YCAT) and spoke several times to a counselor there. He spoke with the defendant’s teachers at Topeka High School. He requested information from the defendant’s parents regarding the defendant’s claim of Supplemental Security Income. Trial counsel did not contact Stormont-Vail Regional Medical Center where the defendant had been admitted for a period of time at age 13.
At one of the remand hearings, Dr. Peterson confirmed his request for various records regarding the defendant’s upbringing and fife experiences in order to thoroughly evaluate the defendant. Dr. Peterson stated that he only received part of the defendant’s YCAT file and the Douglas County Law Enforcement investigation records prior to his interview with the defendant.
The doctor’s testimony focused on the records he did not receive, including the Stormont-Vail records as well as school records. He testified to the importance of those records for a thorough evaluation. Dr. Peterson agreed that he told trial counsel that he did not find strong evidence in support of an insanity defense. However, he stated that he informed trial counsel that his conclusion was limited by the information he received.
Dr. Peterson was finally supplied the defendant’s records from Stormont-Vail prior to the remand hearing. He testified that this information would have prompted him to do further testing on the defendant. He testified that there was a reasonable probability that relevant evidence addressing the issue of diminished capacity could have been revealed from additional testing. On cross-examination, Dr. Peterson stated that his review of the hospital records had not affected his opinion that the defendant was sane at the time of the murder. However, he testified that results from further testing would have gone to the defense of diminished capacity.
Following Dr. Peterson’s testimony, the defendant called Dr. Robert Schulman to testify. Dr. Schulman was qualified to testify because he had evaluated the defendant at Stormont-Vail 5 years prior to the crime and had reevaluated the defendant prior to the remand hearing. The second evaluation was made a full 2 years after the commission of the crime. He diagnosed the defendant as suffering from post-traumatic stress disorder (PTSD) stemming from the death of his brother. His ultimate conclusion was that because the defendant had PTSD, he could not have formed the requisite intent for the attempted robbery.
Dr. Schulman testified that after giving the defendant a standard clinical psychological examination, consisting of numerous tests, a neuropsychological screening, and a record review, he found the defendant to be a different person from the one he examined at Stormont-Vail. Dr. Schulman found that the defendant was cooperative and pleasant and that he was able to interact in a positive way and was not aloof, and that the defendant provided the kind of information needed to perform a reliable and valid examination. Moreover, the defendant’s IQ was found to be much higher in the present examination, to a point that it argued against the question of dementia, although not completely according to Dr. Schulman. Finally, Dr. Schulman testified that the defendant was able to conceptualize and that his cognitive functioning was better than it had been in 1989. He stated that it was “difficult to conclude one way or another with regard to the dementia issues” and, thus, he did not make a finding of dementia, which was defined as a difficulty with the brain or an organic brain syndrome.
The defendant testified that he had notified his attorney that he spent time at Stormont-Vail and that he had received a brain scan at that time. He also told his attorney that he had applied for SSI. The defendant claimed that when he asked his attorney whether he had contacted certain counselors, trial counsel did not respond. The defendant believed his attorney had not talked to several people the defendant had mentioned. On cross-examination, the defendant gave conflicting testimony and stated that there was no person he told his attorney about who was not contacted.
At the time defense counsel made his decision to rely upon the records he had acquired, the psychiatrist he retained had conducted a 4-hour interview with his client in the county jail. Immediately following this interview, Dr. Peterson met with defense counsel, indicating that he had no need for additional records and stating, “[I]t’s not even close as far as the insanity defense or diminished capacity.” Trial counsel explained that he chose to call lay witnesses to testify to the defendant’s change in behavior following the death of the defendant’s brother because he lacked an expert witness. These witnesses included the defendant’s mother, Irene Orr, his high school teacher, Rose Rodriguez, and a school social worker, Katherine Kent. Trial counsel also requested a jury instruction on diminished capacity, and his request was granted.
There was a direct conflict between the testimony of trial counsel and Dr. ■ Peterson. Trial counsel stated that Dr. Peterson did not want any more records than he had already seen and that he relied on Dr. Peterson’s expert opinion that further records were of no use. Dr. Peterson’s testimony directly contradicted trial counsel’s statements. In addressing this conflict, the trial court quoted directly from trial counsel’s testimony and further stated:
“Prior to considering whether any deficient performance by trial counsel prejudiced the Defendant, the Court must first determine if, in fact, the performance of the attorney was deficient in failing to provide all of the records originally requested by Dr. Peterson. The Court finds that his- performance was not deficient. He had obtained some of the requested records and was in the process of acquiring the balance. Dr. Peterson elected to proceed with the 4-hour-evaluation of the Defendant. Dr. Peterson had the Court-ordered evaluation from Bert Nash Mental Health Center as prepared by Dr. Vile, a psychiatrist, the YCAT records, and the Douglas County Law Enforcement investigation records. After reviewing the records and then conducting the 4-hour-examination, Dr. Peterson told [defense counsel] that ‘it’s not even close as far as the insanity defense or diminished capacity.’
“Although there is some conflict between [defense counsel’s] and Dr. Peterson’s testimony, the Court finds that Dr. Peterson declined to have [defense counsel] obtain any of the other records Dr. Peterson had first requested.”
In so concluding, the trial court set forth the following quote from Strickland, 466 U.S. 668:
“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Further, the trial court rejected testimony of Dr. Schulman due to the fact that his evaluation of the defendant occurred more than 2 years after the crime was committed.
Based upon the findings of fact made by the trial court, which are supported by substantial competent evidence, we agree with the trial court that trial counsel under all the circumstances made a reasonable investigation of the defenses of insanity and diminished capacity.
The findings of fact are supported by the evidence on record, and while the evidence may support a different conclusion, we recognize that the trial court was present at the hearing, had the opportunity to view the witnesses testifying, had the ability to weigh the credibility of the witnesses, and made its determination of fact based upon being present. We, on the other hand, were not present but must read the cold record. We are not in a position to weigh the testimony, nor are w^e in a position to resolve conflicts in the testimony, especially where, as here, there is substantial evidence of record supporting the findings of the trial court. Based upon the findings of fact in this case, we are able to conclude that trial defense counsel met the performance component of an ineffectiveness inquiry. It is, therefore, unnecessary for us to test for the prejudice component of the ineffectiveness inquiry.
Counsel for the defendant states that it is apparent that Dr. Peterson was not provided the necessary information to conduct a competent examination of the defendant. This contention is not supported by the record before this court. Dr. Peterson did not want or need additional records. At this point, trial counsel had a report from Dr. Vile indicating that his client’s insanity defense was not viable and an oral report after extensive examination by Dr. Peterson stating, “[I]t’s not even close as far as the insanity defense or diminished capacity.”
The defendant contends that the trial court’s finding that Dr. Peterson did not want the additional reports was clearly erroneous because trial counsel simply was not credible on the issue. The defendant relies upon the statements of several witnesses, all of whom the defendant claims contradict trial counsel. However, upon closer examination, the defendant’s contentions are without merit.
The defendant points to the testimony of Dr. Peterson. However, we did not view the testimony of Dr. Peterson or trial counsel, nor are we in a position to judge the credibility of the two witnesses. The trial court did and was. This contradiction runs in favor of the trial court’s resolution and provides no support for the assertion that trial counsel is not telling the truth. In addition to the conflicting testimony of Dr. Peterson and trial counsel, the defendant states that the testimony of Kay Huff concerning trial counsel’s failure to sufficiently meet with his client and review his testimony 2 months prior to trial undermines trial counsel’s claim that Dr. Peterson (fid not want additional records. This issue was resolved by the court based upon all the circumstances. As the trial court noted: “The testimony of Kay Huff to the effect that trial counsel had not spent much time with the Defendant immediately prior to trial did not in any way indicate that prior attorney-client contacts were inadequate.” Moreover, Huff offered no testimony concerning Dr. Peterson. Under these circumstances, Huff’s testimony provides no support for the defendant’s contention.
The defendant also asserts that the testimony of Ron Wurtz on the need to spend extra time with the defendant because of his low intellectual ability and difficulty understanding concepts undermines the credibility of trial counsel. However, it must be recognized that this is an opinion offered by Wurtz. The opinion involves a judgment call and has no bearing upon the credibility of trial counsel. If Dr. Schulman’s testimony concerning the mental condition of the defendant is to be believed, the defendant does not have low intellectual ability and has little difficulty understanding concepts.
Finally, the defendant relies upon his own testimony, contending that such testimony undermines his trial counsel’s statements on the issue of whether Dr. Peterson requested additional records. Assessing credibility between the defendant and trial counsel was uniquely within the province of the trial court. The defendant’s testimony provides no basis for concluding that the finding that Dr. Peterson requested no additional records is clearly erroneous.
2. Allegations that counsel failed to thoroughly investigate, the defendant’s background prior to arguing the defendant’s motion to suppress his confession.
Just as in the first allegation of ineffectiveness, the defendant argues that trial counsel’s failure to investigate, or secure all past records relating to the mental condition of the defendant, including the records from Stormont-Vail Hospital, and the failure of counsel to present such evidence in support of his claim that the defendant’s statement was involuntary, amounted to ineffective assistance. We disagree and conclude that the actions of trial counsel fall within the wide range of reasonable professional assistance.
Trial counsel filed a motion to suppress his client’s confession. The circumstances surrounding the defendant’s confession are more fully discussed below in the claim that the trial court erroneously failed to suppress the defendant’s confession. Trial counsel vigorously represented his client in the suppression hearing.
Prior to filing a motion to suppress, trial counsel had the written report of the court-appointed psychiatrist, Dr. Vile, concerning the mental condition of his client. In addition, trial counsel had the oral report of Dr. Peterson indicating that “it’s not even close as far as the insanity defense or diminished capacity.”
While the issue of whether a defendant’s statement is voluntary is dependent upon the mental capacity of the defendant, State v. Mack, 255 Kan. 21, 32, 871 P.2d 1265 (1994); State v. Young, 220 Kan. 541, 547, 522 P.2d 905 (1976), the ultimate determination is based upon the totality of the circumstances, including (1) the manner and duration of the questioning; (2) the suspect’s ability upon request to communicate with the outside world; (3) the suspect’s intellect, age, and background; and (4) the fairness of the interrogating officers. State v. Lumbrera, 257 Kan. 144, 160-61, 891 P.2d 1096 (1995). Trial counsel explored all of the above factors during the suppression hearing. Given the psychiatrist’s reports that he had, and the fact that he had gathered most of the defendant’s past medical history, it was not unreasonable that trial counsel would concentrate upon each of the above issues relating tq vqluntariness in advancing his client’s metien te suppress.
We have cencluded that the actiens cf ceunsel, in his investigation ef the defendant’s sanity at trial, falls within the wide range qf reasqnable professional assistance. This cenclusien supports eur determinatien that under the tetality ef circumstances, trial counsel’s investigatien and representatien at the suppressien hearing alse falls within the wide range of reasonable professional assistance.
3. Allegations regarding counsel’s decision to waive an opening. statement.
The defendant argues that trial counsel’s failure to give an opening statement to explain the theory of defense was ineffective assistance of counsel. The defendant states that the theory was confusing and difficult for the jury to understand.
Upon remand, the trial court, in addressing this issue, concluded: “Whether or not to make an opening statement is a tactical decision of the trial attorney. Absent a showing of prejudice to the Defendant, the Court should not engage in second guessing the trial attorney’s strategy.”
The trial court cited Strickland for the following proposition:
“[A] Court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must • overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.’ [Citation omitted.] . . . Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689.
It is possible that the decision of trial counsel to waive opening statement was a tactical decision.lt does not appear that at that time a final decision had been made as to whether the defendant would testify at trial. The insertion of the word “willful” was still present in the information filed against the defendant. The latter point will be discussed further below; both of these factors suggest that counsel’s decision may have been tactical. However, the evidence of record is inconclusive. If we assume that counsel’s action in failing to make an opening statement, fell below that range of reasonable professional assistance required by the Sixth Amendment, we are still left with the second prong of Strickland.
The question becomes whether “there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different.” Chamberlain, 236 Kan. at 657. We conclude that the answer to this question is no. The actions of the defendant as recounted by an eyewitness indicated a deliberate attempt to rob the victim. Because of the victim’s lack of cooperation, out of anger the defendant pointed his weapon and shot directly into the vehicle where the victim was sitting. Upon questioning by the police, the defendant admitted that he was the one who shot the victim. The probability that the result of this trial would have been different had trial counsel given an opening statement simply does not exist.
4. Allegations that counsel failed to object during trial and closing argument and that counsel made prejudicial remarks during his closing argument.
The defendant asserts that there were three significant errors made by trial counsel during the course of the trial: (1) The defendant notes that statements made during the State’s closing argument amount to prosecutorial misconduct, yet trial counsel failed to object; (2) the defendant questions the substance of his counsel’s closing statement; and (3) die defendant asserts that trial counsel’s failure to object to testimony of Dr. Vile was prejudicial.
(1) Prosecutorial misconduct.
The defendant objects to the following statements made by the State during its closing argument: (1) “It is very popular nowadays not to take responsibility for your acts”; (2) “you [the jury] have the power in your hands to say to this defendant, We reject the insanity defense. You are not insane. You are just brutal’ ”; and (3) “Abraham Orr said, 1 am taking it and if you resist, this is what happens to you. You are dead.’ ” The defendant contends that the final statement misquotes him and that trial counsel’s failure to object forecloses his ability to appeal on this issue. “[Rjeversible error cannot be predicated upon a complaint of misconduct of counsel during closing argument where no contemporaneous objection is lodged.” State v. Sexton, 256 Kan. 344, 363, 886 P.2d 811 (1994) (quoting State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 [1991]).
The defendant relies upon Mincey v. State, 314 S.C. 355, 358, 444 S.E.2d 510 (1994), wherein the Supreme'Court of South Carolina held that the failure of the defendant’s trial counsel to object to prejudicial statements made by the prosecutor was ineffective assistance of counsel. However, the comments in Mincey dictated the result and have little to do with the comments made in this case.. In Mincey,.the prosecutor made several comments suggesting that the defendant had .threatened witnesses to testify in his favor. The court noted: “It would be a prostitution of justice’ to permit evidence that someone attempted to influence a witness by fear or fright without any evidence that connects the defendant with the tampering.” 314 S.C. at 358. The court held that the defendant was prejudiced by these comments and that counsel was ineffective. 314 S.C. at 358.
In this case, we conclude that the absence of an objection by trial counsel was not unreasonable professional conduct. Even if we were to assume that it was, the failure to object does not raise a reasonable probability that the result of the trial would have been different.
(2) Closing argument.
The defendant objects to statements made by trial counsel in his closing argument that appear to concede the defendant’s guilt. Any allegations of ineffective assistance must be examined within the totality of the circumstances. Chamberlain, 236 Kan. at 657. Thus, the objectionable comments must be read in the context of the entire closing argument as well as the overall defense strategy.
While trial counsel admitted in closing argument that the defendant committed the crime, that fact was never at issue during the trial. Trial counsel emphasized that the act was “scary,” irrational, and not the act of a sane man. These comments are consistent with the defenses of insanity and diminished capacity. The nature of the remarks is not objectively unreasonable.
“ ‘It is one of the characteristics of human experience that hindsight often reveals alternative courses of conduct that may have produced different results if only they had been employed. Hindsight, however, is not the vantage point from which we judge allegations of incompetence. [Citation omitted.] It may be that had defendant’s counsel on appeal conducted the defense at trial, he would have done things differently. Whether or not he would have fared better before the jury is a matter of conjecture. Where experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel.’ ” Crease v. State, 252 Kan. 326, 338, 845 P.2d 27 (1993) (quoting State v. Kendig, 233 Kan. 890, 896, 666 P.2d 684 [1983]).
We conclude that the comments of counsel fall within the wide range of reasonable conduct.
(3) Failure to object to testimony.
The defendant complains that trial counsel did not object to Dr. Vile’s statement that he examined the defendant pursuant to a court order. The defendant argues that Dr. Vile’s statement suggests that the results of the examination were endorsed by the court, which provided Dr. Vile’s testimony with more credibility. The failure to object under these circumstances “can well be considered part of reasonable defense strategy.” State v. Crossman, 229 Kan. 384, 390, 624 P.2d 461 (1981). However, the record is inconclusive as to whether the defense counsel made a tactical decision here. At the same time, we are not prepared to say that trial counsel’s failure to object fell below the range of reasonable professional assistance. Moreover, it is unlikely that the inference suggested by the defendant is present and, if it is, that it carries as much weight as the defendant suggests.
5. Allegations that counsel presented the theory that the killing was accidental, which provides no legal defense to felony murder.
The defendant argues that trial counsel presented a defense, that of accidental death, which is wholly ineffective against a charge of felony murder. The defendant asserts counsel’s mistake is illustrated in two ways. First, the defendant points to counsel’s chai lenge to the jury instructions at trial. During discussion of the proposed jury instructions, out of the hearing of jury, the defendant’s counsel stated:
‘Tes, for the record, the amended complaint in Count I charged the defendant with willfully, feloniously and unlawfully killing a human being, to-wit: Edward Lees, and therefore, we would request that willful be used in the instruction and we also [sic] to an instruction on second-degree murder.
“Because essentially, you are allowing the State to amend the complaint at this late stage and the question of whether they can do that depends on whether you can do that without prejudicing the defendant, and clearly, part of our defense was showing that it was an accidental shooting and we went into this on direct with him. By doing so, it hurt us some on our insanity defense, so clearly, there is prejudice there.” (Emphasis added.)
Second, the defendant objects to counsel’s line of questioning óf the defendant, which brought out the defendant’s lack of intent to kill Lees:
“Q. What did you do [when Lees did not respond to your gestures toward him with the gun]?
“A. I got — I started — I started getting mad, you know. I was like dang, you know. I didn’t want to hurt nobody, so I just turned around. At that point in time, I seen his head move and he put it in reverse, so I raised the gun up and I tried to make — not to him. I tried to make it go through like the window, the driver window, to go through the windshield in front, but apparently I didn’t, you know, and I started backing up and I fired.
“Q. Did you intentionally shoot him?
“A. No.”
The defendant concludes from the above evidence that counsel either did not know that lack of intent is not a defense to felony murder or deliberately chose two contrasting defenses which gave the jury no choice but to convict.
In response, the State asserts simply that defense counsel did not rely on lack of intent to kill as a defense to felony murder. Evidence is shown in a letter from trial counsel to the defendant explaining this exact legal point: “It would be very difficult to get a jury instruction on second degree murder since it really does not matter in a felony murder case whether the death was accidental or intentional.” Further, the State explains that counsel’s com ments regarding jury instructions do not reflect counsel’s defense strategy.
The trial court, hearing this allegation on remand, held that the above letter, as well as statements made by counsel at the hearing, proved that counsel did not think accidental death was a defense to felony murder. The court rejected the defendant’s contentions regarding the direct examination and concluded:
“When Orr elected to testify, counsel attempted to bolster the admittedly weak insanity defense with the testimony by showing the Defendant’s state of mind at the time of the shooting. In looking at the totality of the circumstances at the time of the trial, it must be remembered that the Defendant had confessed, the motion to suppress the confession had been denied, and there was an eyewitness who had identified the Defendant as the shooter. The Defendant had little to lose in deciding to testify if his testimony could in anyway assist his only real defense, i.e., insanity.”
The trial court found no merit to the claim of ineffective assistance of counsel on this issue.
All parties agree that lack of intent or accidental death is not a defense to felony-murder. See State v. Hoang, 243 Kan. 40, 43, 755 P.2d 7 (1988). The record demonstrates that the defendant’s claim that trial counsel did not know that accidental death is not a defense to felony murder is untenable. Counsel’s letter to the defendant unquestionably rebuts that contention.
Trial counsel’s direct examination illustrates full knowledge of the felony-murder rule. Trial counsel’s questioning shows he was primarily attempting to illustrate that the defendant did not know it was wrong to steal the car at the time of the crime, thus asserting the defendant was legally insane. Felony murder is premised on the guilt of the underlying crime. PIK Crim. 3d 56.02. If the defendant had been acquitted of aggravated robbery on the basis of insanity, the defendant could not have been convicted of felony murder. Thus, whether the defendant had an intent to kill was irrelevant for the jury’s determination. Therefore, trial counsel’s line of questioning is not unreasonable.
Finally, trial counsel’s request for a jury instruction on second-degree murder was reasonable advocacy on his client’s behalf. Instruction on lesser included offenses is considered an important component of a criminal trial in Kansas. If evidence at trial merits a lesser included offense instruction, “a court is under an affirmative duty to give an instruction on a lesser included offense . . . even if a defendant fails to request it. State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987).” State v. Sutherland, 248 Kan. 96, 101, 804 P.2d 970 (1991). Based on the wording of the complaint, which included “wilfully” as an element of felony murder, and the fact that evidence was presented regarding lack of intent to kill, it was reasonable to request the instruction on second-degree murder.
The trial court properly granted the prosecution’s motion to amend the complaint by deleting the word “willful.” See K.S.A. 22-3201(e) and State v. Barncord, 240 Kan. 35, 38, 726 P.2d 1322 (1986). In granting the amendment, the trial court determined that the defendant’s substantial rights were not prejudiced with the removal of “willful” from the complaint. It follows from that amendment that the trial court’s refusal to instruct on the lesser included offense was correct. However, the request for an instruction on second-degree murder based upon the complaint before amendment, made outside the presence of the jury, was reasonable and not prejudicial.
6. Allegations that counsel failed to seek suppression of photograph taken of the defendant.
During testimony of Detective Ward, the officer who interviewed the defendant, a photograph of the defendant was admitted into evidence. The photograph was taken of the defendant while he was in custody. Ward explained that the photo was taken for use in a photographic array of suspects. The defendant’s trial counsel did not object to the photograph. The defendant argues that trial counsel’s decision not to seek the suppression of that photograph was unreasonable and prejudicial. The defendant relies on K.S.A. 38-1611(a)(2) and Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), for support.
The defendant alleges that the taking of the photograph was illegal, that the photograph was the fruit of an illegal arrest, and that counsel acted improperly by failing to request suppression of the photograph. Without providing explanation why the arrest was illegal, the defendant suggests that the photograph was taken in violation of K.S.A. 38-1611, which generally prohibits the taking of photographs and fingerprints of juveniles in custody.
However, the defendant was charged with two felonies and tried as an adult. K.S.A. 38-1611(a)(2) specifically authorizes the taking of a photograph of a juvenile in the defendant’s position. The defendant’s contention that the taking of the photograph was illegal is without merit.
The defendant asserts that Simmons prohibits any conviction based on an identification that is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons, 390 U.S. at 384. The Simmons holding focuses on convictions based on eyewitness identification at trial that followed a prejudicial pretrial identification by photograph. While this statement of law is correct, the Supreme Court states that “[t]his is a claim which must be evaluated in light of the totality of surrounding circumstances.” 390 U.S. at 383.
The defendant in this case was not identified through a photographic line-up. Chang, who was the eyewitness to the shooting, identified the defendant in court without mention of the photograph. Identity of the defendant as the shooter was not an issue in this case. The defendant’s reliance on Simmons is misplaced. His contention is without merit.
7. Allegations that the defendant was not fully advised of the consequences of his testifying at trial.
The defendant alleges that his poor testimony at trial is proof that he was not fully advised of the consequences of choosing to testify. In addition, the defendant alleges that trial counsel failed to adequately prepare him for questioning. He argues that under the circumstances of his mental impairment, counsel was required to spend extra time explaining the pros and cons of testifying as well as reviewing his testimony.
The trial court addressing this same contention found that the evidence, including counsel’s letter to the defendant, testimony at the remand hearing, and counsel’s payment voucher, supported its conclusion that trial counsel spent adequate time with the defendant to prepare for trial.
The Model Rules of Professional Conduct explain the scope of an attorney s representation of his or her client in a criminal case. Rule 1.2(a) (1996 Kan. Ct. R. Annot. 261) states: “In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client ivill testify.” (Emphasis added.)
At the first and third remand hearing, trial counsel testified that the defendant wished to testify. He also stated that he had discussed the pros and cons of testifying with the defendant. He stated that he felt that the defendant’s testimony would help the jury to understand the defendant’s state of mind at the time of the crime. Further, he testified that he and the defendant discussed questions and answers and the defendant’s general behavior before the jury. After hearing the testimony unfold, trial counsel felt that the testimony was damaging and that he was surprised by the defendant’s demeanor on the stand.
The defendant testified at the remand hearings that counsel had discussed the pros and cons of testifying with him. The defendant felt that his attorney was neutral on the issue of whether he should take the stand. The defendant testified that he made the final decision to testify at trial.
Trial counsel’s conduct is objectively reasonable. As noted by the trial court:
“In looking at the totality of the circumstances at the time of the trial, it must be remembered that the Defendant had confessed, the motion to suppress the confession had been denied, and there was an eyewitness who had identified the Defendant as the shooter. The defendant had little to lose in deciding to testify if his testimony could in any way assist his only real defense, i.e., insanity.”
The fact that the defendant testified poorly or maintained a negative demeanor before the jury was out of the control of the attorney. This court cannot expect a trial attorney to guess the outcome of testimony, only that the attorney adequately prepare himself or herself and his or her client for trial. The record supports the lower court’s conclusion that trial counsel adequately prepared the de fendant for trial. We conclude that the action of trial counsel falls within the wide range of reasonable professional assistance.
8. Allegations that the defendant was denied competent psychiatric assistance.
The defendant makes an alternative argument that if this court determines that trial counsel provided adequate assistance regarding the investigation into the defendant’s medical history, then the defendant was provided inadequate psychiatric assistance. The defendant argues that both Dr. Vile’s and Dr. Peterson’s failure to view all records necessary for a thorough evaluation denied him due process. The trial court did not address the merits of the issue because it determined that this was not an issue on remand.
The State’s primary response to this issue is to assert that it is outside the scope of the remand order made by the Court of Appeals. Because no objection to the adequacy of psychiatric assistance was made at trial, the State essentially argues that this issue was not preserved for appeal.
On appeal, the defendant argues that this issue arose when trial counsel stated that he relied on Dr. Peterson’s expert advice when he decided not to further investigate the defendant’s psychiatric records. Further, the defendant categorizes this issue as a violation of due process.
While there remains a serious question whether this issue was properly preserved on appeal, we elect to address the issue. This court will review an issue necessary to the preservation of a defendant’s fundamental rights even if that issue is not properly preserved for appeal. State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995). The defendant relies upon the cases of Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985), and Mason v. State, 489 So. 2d 734 (Fla. 1986), for the proposition that due process requires adequate psychiatric assistance. However, these cases do not stand for the broad proposition the defendant asserts.
Ake involved an indigent defendant who notified the trial court that he would be asserting an insanity defense to multiple murder charges. The defendant requested funds for a psychiatric evaluation, but the court denied the request. At trial, neither side pre sented expert testimony on the issue, and the jury convicted the defendant on all counts. The same issue arose at sentencing, and the defendant presented no evidence to rebut the State’s claims on the likelihood of repeated violence. The defendant was sentenced to death. 470 U.S. at 72-73. The Supreme Court held:
“[W]hen a defendant demonstrates to the trial judge that Iris sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has. a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.” 470 U.S. at 83.
In this cáse, the defendant received evaluations from two different psychiatrists whose competence was not questioned until now. Unlike Ake, the facts in this case do not present a constitutional issue. The defendant makes no showing, other than to cite to medical journal articles, that either doctor was incompetent. The evidence at trial and upon remand established that the two psychiatrists were competent.
In Mason, the issue before the Florida Supreme Court was whether the lack of a competency hearing deprived the defendant of due process. In that case, the defendant had three psychiatrists evaluate and find him competent to stand trial and competent at the time of the offense. For that reason, the defense counsel had no duty to request a competency hearing. However, post trial, the defendant produced extensive evidence of a lifetime of severe mental illness. The Florida Supreme Court remanded for a nunc pro tunc competency hearing, as the record did not show whether the evaluating doctors had viewed the new evidence.
While the present case appears factually similar, there are several distinguishing facts. First, the defendant in Mason faced execution for his offense. Second, the evidence produced in Mason was much more extensive than in this case. Finally, Dr. Peterson had a chance to reevaluate his diagnosis with the new records, and he only conjectured that further testing might have been helpful. We do not find Mason persuasive. Under all of the circumstances, we find little merit in the defendant’s claim.
ADMISSION OF THE DEFENDANT’S CONFESSION
The defendant contends that the denial of his motion to suppress his confession violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution. The trial court relied upon our decision in State v. Young, 220 Kan. 541, 522 P.2d 905 (1976), when it denied the defendant’s motion to suppress. The defendant acknowledges that Young provides a basis for admission of his confession, but he claims our decision in Young is flawed and cannot serve as a reliable precedent in this case.
The issue in this case centers upon the defendant’s request to call his parents during custodial interrogation. The defendant was 17 years old at the time. The defendant argues that such refusal is a per se violation of his constitutional rights under the Fifth and Fourteenth Amendments. Young rejects this argument and provides that the ultimate decision must be based upon the totality of circumstances.
Prior to trial, defense counsel filed a motion to suppress the defendant’s confession. Evidence presented at the hearing of the motion established that on September 18,1993, the defendant was seized by law enforcement officers at approximately 7 p.m. He remained in custody, and at approximately 10-10:10 p.m., Detectives Kelley and Ward began to interview the defendant. This interview lasted approximately 4Vz hours. When the detectives first came into contact with the defendant, he appeared to be asleep. During the course of the interview, the detectives learned that the defendant was 17 years old and was a senior at Topeka High School. The defendant also advised them that his brother had recently been killed.
Before any questioning, Detective Ward advised the defendant of his Miranda rights. The defendant stated that he understood those rights and was willing to talk to the detectives. According to the detectives, the defendant at no time appeared to be under the influence of drugs or alcohol. The defendant stated that he was not under the influence. He answered the questions posed in an appropriate manner. No threats or promises were made to the defendant during the course of the interview. The defendant did not ask to end the interview, nor did he request counsel. He was offered something to eat and drink on three occasions and was given a soda on one of these occasions. He was offered a polygraph test but declined, saying that he would not take one without his parents and a lawyer because he did not want the officers to “fuck him around.” The defendant did state that he wanted to call his parents but was told by the detectives that he would be able to do so after the interview was concluded.
Based upon the above evidence, the trial court held that the defendant did not indicate that he wanted the interrogation to cease, nor did he request counsel. The court found that under the totality of the circumstances, the defendant’s statements were freely and voluntarily given. In addition, the trial court, relying upon Young, found that a juvenile’s request to call his parents does not necessarily constitute an assertion of his right against self-incrimination.
The defendant incorrectly asserts that Young supports the notion that the denial of a juvenile’s request to call a parent during custodial interrogation can never violate any constitutional right. Young supports the principle that the ultimate decision will be made upon the totality of circumstances. The defendant attacks the validity of the decision in Young, charging that the Young court relied on precedent that was not on point to the facts of that case, while rejecting a California case directly on point. At this point it would serve no useful purpose to discuss the cases cited in the Young opinion because the decision is the established law in this state and has been consistently followed. State v. High, 260 Kan. 480, 483, 922 P.2d 430 (1996); see State v. Hooks, 251 Kan. 755, 764, 840 P.2d 483 (1992); In re Edwards, 227 Kan. 723, 727, 608 P.2d 1006 (1980); State v. Cross, 223 Kan. 803, 806, 576 P.2d 698 (1978). In our most recent case of State v. Robinson, 261 Kan. 865, 934 P.2d 38 (1997), we applied Young and the totality of circumstances test in determining admissibility of a juvenile’s confession. See also Fare v. Michael C., 442 U.S. 707, 724-25, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979) (applying totality of circumstances test).
Young, 220 Kan. 541, Syl. ¶ ¶ 3-6, provides:
“A confession is not inadmissible merely because the person making it is a juvenile. The age of the juvenile, the length of the question, the juvenile’s eduction, the juvenile’s prior experience with the police, and the juvenile’s mental state are all facts to be considered in determining the voluntariness and admissibility of a juvenile’s confession into evidence.”
“An adjudicated juvenile’s request to call his father, prior to interrogation by custodial officers, does not per se constitute an assertion of his right against self-incrimination.”
“The constitution and K.S.A. 38-839 afford no right to the presence of anyone other than a lawyer trained to protect the legal rights of those accused. While the presence or absence of a parent or responsible adult during the interrogation of a juvenile suspect may be a factor affecting the voluntariness of a confession, there is no constitutional right to the presence of a parent.”
“A juvenile is capable of making an admissible voluntary confession, and there is no constitutional requirement that he have the advice of a parent, guardian or other adult.”
“Whether a confession was freely and voluntarily given is based upon a consideration of the totality of the circumstances, and where there is a genuine conflict in the evidence great reliance must be placed upon the finder of fact.”
We recognize that some jurisdictions apply a per se rule in situations where a juvenile, during custodial interrogation, requests to talk with his or her parents. See Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1136-43 (1980). We adhere to Young as the better reasoned approach and reject the defendant’s request to overrule Young.
The standard of review in determining the issue before us is:
“When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement in evidence, the appellate court should accept the trial court’s determination if supported by substantial competent evidence. [Citations omitted.]” Hooks, 251 Kan. at 763.
This issue becomes whether the trial court’s decision to admit the defendant’s confession rests on substantial evidence.
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” State v. Ratley, 253 Kan. 394, 398, 855 P.2d 943 (1993).
The evidence relied upon by the trial court and the record before us demonstrate that the trial court’s decision under the totality of the circumstances is supported by substantial evidence.
THE SUFFICIENCY OF EVIDENCE
The defendant argues that the record shows insufficient evidence to support the juiy’s decision that the defendant was sane beyond a reasonable doubt at the time of the crime. The defendant asserts that the evidence shows the defendant was either insane or suffering from diminished capacity at the time the acts were committed. The standard of review for challenges to the sufficiency of evidence has been reiterated by this court:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 (1996).
At trial, the jury was instructed on the defenses of insanity and diminished capacity. However, the jury rejected both defenses when it found the defendant guilty of first-degree murder and attempted aggravated robbery. The test used to determine insanity in Kansas is the M’Naghten test:
“The M’Naghten test/rule is that an accused is to be held not criminally responsible (1) where the accused does not know the nature and quality of the accused’s act, or in the alternative, (2) where the accused does not know right from wrong with respect to that act. We adopted the M’Naghten test in State v. Nixon, 32 Kan. 205, Syl. ¶ 1, 4 Pac. 159 (1884), and have steadfastly adhered to that test.” State v. Baker, 255 Kan. 680, 689, 877 P.2d 946 (1994).
On the other hand, evidence of a defendant’s diminished capacity to commit a crime is admissible to negate specific intent but not to remove criminal responsibility. State v. Jackson, 238 Kan. 793, Syl. ¶ 1, 714 P.2d 1368, cert. denied 479 U.S. 821 (1986).
The following testimony was offered at trial regarding the defendant’s sanity or lack thereof. Chang testified that the defendant had a “mad look on his face” when he threatened Lees with his gun. One of the arresting officers stated that the defendant had a very cold demeanor when he was arrested and acted as if nothing had happened. A police officer who guarded the defendant at the Douglas County Law Enforcement Center prior to questioning observed the defendant to be relaxed. The defendant made small talk and dozed in his chair with his jacket behind his head.
Detective Ward, the police interrogator, testified to statements made by the defendant which reflected the defendant’s state of mind. For example, Ward stated that the defendant said: “I don’t give a fuck about that man. Nobody gives a fuck about my brother.” Later he told Ward he did not know if he had pulled the trigger or if Courtney Crockett did. Nevertheless, Ward reported that the defendant told his friends that they needed to change their clothes as they fled the scene of the crime. The defendant insisted to Ward that the entire incident occurred because he just wanted to go home.
Rose Rodriguez, a behavior disorder research teacher in the Topeka schools, testified that the defendant was sullen and aloof after his brother’s death. She also witnessed him at a school football game after his brother’s death, acting as if he was under the influence of something. Katherine Kent, a clinical social worker who volunteers at Topeka High School, spoke of a great change in the defendant after his brother’s death. She stated that he had been getting good grades and lacked behavioral problems in school but had become somber and unfriendly. The defendant’s mother described the defendant’s mood as quiet and always tense following her other son’s death.
The defendant testified on his own behalf. He stated that after his brother died he “just didn’t care about nothing anymore” and only smiled when he was under the influence of marijuana or alcohol. He stated he had suicidal thoughts every day. He noted that at age 13 he entered Stormont-Vail for psychiatric treatment. While the doctors prescribed medicine, he never filled the prescription. He stated that at the time of the crime, he was angry .that Lees did not respond to his gestures. He expressed that he thought he was doing the right thing to take the car so he could get home. When asked if he knew at the time such conduct was prohibited by law, he stated his “mind wasn’t on that really.” He only realized the illegal nature of the act when Crockett came into his interrogation room and told him he had confessed to what happened. On cross-examination, however, he stated that he knew that stealing the purse was an illegal act.
The State’s rebuttal witness was a psychiatrist, Dr. Sheldon Vile, who examined the defendant to make a determination whether the defendant met the legal definition of insanity. After explaining his method of examination, Dr. Vile concluded that the defendant was not psychotic. However, he suggested that the defendant may suffer from antisocial personality disorder and possibly post-traumatic stress disorder. Dr. Vile determined the defendant was legally sane at the time of the crime.
Viewing all the evidence in the light most favorable to the prosecution, it is clear that a rational factfinder could have found beyond a reasonable doubt that the defendant was not legally insane and that he possessed the necessary specific criminal intent at the time of the commission of the crimes.
Affirmed.
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Per Curiam:
The plaintiff in error commenced this action before a justice of the peace in Kingman county, Kansas, to recover a judgment against the defendants in error on a promissory note. Upon the trial the court rendered j udgment in favor of plaintiff in error for $166 and interest. The defendants in error appealed. At the convening of the district court the defendant in error, Stone, asked leave to file an answer and cross-petition, which was granted. The answer and cross-petition thus filed set up a demand against the plaintiff in error in the sum of $553, for which he prayed judgment. The plaintiff in error objected to the jurisdiction of the court to try the issues thus raised, which objection was overruled. He then filed a demurrer to the answer and cross-petition on the ground that the court had no jurisdiction of the amount in the answer and cross-petition, which demurrer was overruled by the court and the plaintiff in error excepted. The defendant in error did not offer to withhold any portion of his demand. A trial was had and judgment rendered for defendant in error on his cross-petition. The plaintiff in error brings the case here, alleging that the district court had no jurisdiction of the amount involved in the cross-petition or to try the issues involved therein. We think this contention must be sustained. The district court had only such appellate jurisdiction as that possessed by the justice of the peace. The jurisdiction of a justice of the peace in a civil action is $300; when an action is appealed from a justice of the peace court to the district court, the district court has only such jurisdiction as the justice of the peace had.
We have already held that where the defendant sets up a claim and set-off, exceeding the jurisdiction of the justice of the peace court, and does not withhold any portion of the same, the district court has no jurisdiction to hear or determine such set-off or any portion thereof. (See Wagstaff v. Challis, 31 Kan. 212, 1 Pac. 631.)
The district court erred in entertaining jurisdiction of the cross-petition and in rendering judgment thereon for the defendant in error.
The judgment of the court below will be reversed.
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Opinion by
Strang, C.:
In 1883, the defendant in error contracted in writing with the plaintiff corporation to build water-works in the city of Parsons, Kas., and was to receive as compensation therefor $100,000 worth of paid-up-capital stock of said company, par value, and $50,000 worth, par value, of the mortgage bonds of said company, which stock and bonds were to be all the stock and all the bonds to be issued by said corporation. During the construction of said works the defendant in error did some extra work for the plaintiff in error, and when the works were completed, or about completed, he presented to the directors of said corporation a bill for $1,717.35 for said extra work. The company thought the bill too much, and finally the parties agreed upon a settlement, the company promising to pay Hill the sum of $1,100 by giving him a note for said sum, due six months from the 1st day of January, 1884. The water-works were turned over by Hill to the company. Soon afterward Hill called on Mr. Kimball, the president of the corporation, reminded him that he had settled with the company, and that the company was to give him its note for $1,100. Kimball made and signed notes for the company for $400 and $700 respectively, and delivered them to Hill. Said notes were to be attested by the secretary of the company, McKim, but the $700 note was to be held for some work to be completed by Hill before it was to be attested by McKim. Hill presented the $400 note to McKim, who attested it. Afterward he presented the $700 note to McKim for attestation. When McKim got possession of the note he took it to Kimball and showed it to him, who thereupon wrote across the face of the note, “ not good until countersigned by McKim,” and then directed McKim not to countersign it. McKim returned the note to Hill, having refused to countersign it. Afterward, on November 18, 1886, Hill brought suit against said corporation on said notes, declaring upon the $400 note for his first cause of action, and upon the $700 note for his second cause of action. The company answered by a general denial; and also alleged that Hill had never completed the water-works, and had so defectively constructed them, so far as he had progressed with the work, that the company had been compelled to spend large sums of money — specifying the same — to complete said water-works, and make them comply with the specifications which were a part of the contract for the construction of the works, and demanded judgment against Hill for a large sum. Hill replied, denying generally the allegations of the answer, and specially alleged the completion of the works according to the terms of the contract, the inspection and ac ceptance of the works by the company, and the undertaking of the company to pay him $1,100, and that the notes sued on were executed to. cover said $1,100. On the trial of the case, when the $700 note was offered in evidence, the company objected to its reception as evidence for the reason that the paper offered in evidence as the note of the corporation had never been executed by said corporation. The objection was sustained, and thereupon the plaintiff dismissed his second cause of action — the one founded upon the $700 note, without prejudice; and the case proceeded until the defendant below had introduced its evidence, and the plaintiff below had offered his rebuttal evidence, and was about to rest his case, when the said plaintiff, before resting his case, asked leave to amend his petition so as to conform his allegations to the facts proved, which leave was granted, and the petition was so amended as to state a cause of action for the $700 as due on settlement between the parties January 13, 1884. The defendant below objected to the amendment, and when it was allowed asked a continuance upon the ground that the company was not ready to try the case on the amended petition, but no showing was made, and the court refused to continue the case. The company then demurred to the second count in the petition, for the reason that it did not state facts sufficient to constitute a cause of action, and, if any cause of action was stated that it was barred by the statute of limitations. The demurrer was overruled. The defendant then answered this amended petition, substantially repeating its answer to the original petition. The defendant then introduced evidence as to said cause of action and rested, and the plaintiff rebutted. The jury rendered a general verdict for the plaintiff below in the sum of $1,071.71. Motion for a new trial was overruled.
The first matter to which the attention of the court is directed is the alleged error arising from the action of the court in permitting the plaintiff below to amend his petition during the trial. The plaintiff in error claims that the amendment introduced a new cause of action, and that the amendment was therefore erroneous. The defendant below objected to the allowance of the amended petition, but the objection was in the nature of a demurrer, and stated that the second count of the petition as amended did not state a cause of action, and, if it did, that the cause of action so stated was barred by the statute of limitations. There was no obiection upon the ground that the amendment in-J . 1 0 troduced a new cause of action into the case, and therefore that matter cannot be reviewed here.
The next complaint is based upon the refusal of the court to continue the case at the request of the defendant corporation, on the statement of its attorney that it was not ready to proceed with the trial on the amended petition. The plaintiff below introduced no new evidence in chief after amending his petition. The defendant below introduced evidence under the amended petition directed to the second cause of action, and the plaintiff presented a little rebuttal Evidence thereto, and rested. The original suit involved a cause of action for the same $700 declared’on in the .amended petition. It is true it was originally declared on in the form of a promissory note, while in the amended petition the note was abandoned, and the amount was claimed as a balance due on settlement; but the alleged note declared on in the original petition represented the same $700 due on the settlement declared on in the amended petition. The defendant below had notice from the commencement of the suit that the plaintiff below claimed the $700 the same as he did the $400. The case of the plaintiff below, was tried in chief with the claim for the $700 in the case, and the record shows that the evidence all the way through the case related as much to the $700 claimed in both the original and in the amended petitions as it did to the $400 claimed in the original petition. It cannot be said, then, that the defendant below was in any sense surprised by the amend-ment. Under such circumstances, and with no showing for a continuance by the defendant company, we cannot say that the court abused its discretion by refusing to continue the case.
The next allegation of error presented by the plaintiff in error, is the action of the court in overruling the defendant’s demurrer to the amended petition in the court below. The demurrer alleged that the cause of action stated in the second count of the petition as amended was barred by the statute of limitations. The settlement between Hill and the waterworks company, out of which the claim arises, was had on the 13th day of January, 1884. The amended petition in the case was filed July 21, 1887. It will be seen that, if the three-years’ statute applies, it had run before the amendment was made, and the cause of action therein stated was barred, unless something had occurred to place the matter within the statute. Does the three-years’ statute apply? The plaintiff’s claim is for a balance due on settlement. The cause of action is not founded on a written agreement. It is an open account • — balance due on settlement. The three-years’ statute applies to such claims. The defendant in error argues that when the amendment was made it related back to the commencement of the suit, and by operation of law was thus brought within the statute. We do not think the statute can thus be avoided. If it can, there is nothing but the statute in relation to amendments to prevent any cause of action barred by the statute of limitations from being brought within the limit of the statute, by amendment, whenever another cause of action is pending between the same parties which was commenced before the statute had run against the new cause of action. Suppose the plaintiff below, on the same day that he dismissed his second cause of action, had instituted a new suit therefor — which he could have done, and probably should have been required to do — there would then be no question but that, if the statute had run at the commencement of said suit, it would be too late, and the cause of action would be barred. So, where a plaintiff, during the trial of his case, ascertains that he cannot recover on one of the causes of action in his petition, and thereupon dismisses his case as to said cause of action, but afterward is permitted to renew the same in another form, we think such renewal of his cause of action, so far as the statute of limitations is concerned, is the commencement of a new action, and, if the statute has run against said cause of action when said amendment and renewal are allowed, the cause of action therein set up is barred.
The defendant in error also claims that the cause of action set up in the amended petition is founded upon the contract between the parties for the erection by him of the waterworks. Here is where the difficulty in this matter, so far as the defendant in error is concerned, is found. The plaintiff below might have brought his action, so far as this cause of action is concerned, and, indeed, so far as both are concerned, upon the contract, setting up the contract, and then alleging the settlement under it, in which case the five-years’ statute would have applied, and no part of the case would be barred. But the plaintiff below simply brought his action on two promissory notes. There was nothing in the petition referring to anything as a foundation for the cause of action therein stated, except the notes sued on. During the trial the plaintiff therein dismissed his second cause of action without prejudice, and subsequently renewed it in a different form, and basing it upon a balance due on settlement. In any view that we are able to take of this case, the statute has run against the cause of action set up in the amended petition. We have examined the authorities cited by counsel for the defendant in error, but fail to find anything therein to support the position assumed by counsel.
The fourth and fifth complaints were settled by the verdict of the jul7- Ea°h depended upon the evidence, wj1¡0]1 wag conflicting upon all questions involved in these complaints. The verdict of the jury, therefore, is conclusive thereon.
The last error assigned is founded upon an alleged erroneous instruction given by the court to the jury. We do not think it possible, under the circumstances of this case, for the jury to have been misled by the technical error on the part of the court in using the word “defendant” instead of the word “plaintiff,” in its instructions to the jury, when speaking of laying the mains. The fact that the plaintiff, instead of the defendant, laid the mains was too well understood by the jury for them to be misled by a slip of the tongue in referring to the parties, or a party to the suit.
The plaintiff claims that the court, in its instruction referring to the amount of mains required by the ordinance to be laid in the city, left out the words “ in said city,” so that it did not appear from the instruction that the six miles of mains required by the ordinance to be laid must be laid in the city. While the court left out the words “in the city,” yet the court used the following language: “And if you believe from the evidence that the defendant [plaintiff] laid six miles of pipe at places designated,” etc. With the ordinance, which required the six miles of pipe to be laid in the city, in evidence, this language of the court was equivalent to saying: “If you find six miles of pipe was laid in the city, then, so far as this feature of the contract is concerned, you would be justified in finding the plaintiff had complied with the same.” At any rate we do not think there is any material error in the instruction complained of.
It is recommended that the case be reversed as to the .second cause of action, and affirmed as to the $400 and interest on same.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an action brought by Emma J. Banta, formerly Emma J. Brady, wife of Milton C. Brady, deceased, against Robert M. Brady, John E. Brady, Everitt M. Brady, and Cora M. Brady, minor children of Milton C. Brady, to partition the northeast quarter of section 20, township 20 south, of range 6 west.
John A. Brady, the plaintiff in error, who was the owner and holder of certain mortgages executed by Milton C. Brady and Emma J. Brady, during the life-time of Milton C. Brady, which are liens upon said land, became a party to the suit to foreclose his mortgage. Said John A. Brady was also, at the time of the bringing of said suit in partition, the owner of certain unsecured claims against the estate of Milton C. Brady, deceased, which had been presented and allowed by the probate judge of Rice county in favor of said John A. Brady, and against said estate, for which he also demanded judgment against the estate of Milton C. Brady, deceased. J. W. Brinckerhoff was the owner and holder of a mortgage exe cuted to him by Emma J. Banta before the institution of the suit in partition. The ease was tried on the 26th of January, 1888, before the court without a jury, upon the following stipulations:
“Comes now the plaintiff by Brinckerhoff & Brinckerhoff, her attorneys, and A. M. Lasley, attorney for John A. Brady, one of the defendants herein, on this 26th day of January, 1888, the case having been regularly called for trial; and for the purpose of the trial of this case it is agreed and stipulated that the facts in this case are as follows, except that evidence of John Bland and plaintiff is also to be used to show facts:
“1. On the 1st day of April, 1881, Milton C. Brady and Emma J. Brady, the plaintiff herein, were husband and wife, and were owners of the following-described real estate, situated in Rice county, state of Kansas, to wit: The northeast quarter of section 20, township 20 south, range 6 west of the 6th P. M., and that on that date the said Milton C. Brady and wife gave two mortgages on said real estate, one to the American Freehold Mortgage Company of Loudon, limited, to secure a note of $800 given by them to said mortgage company of that date, and one to secure a note of $4.16 given by them to 'W. T. Nicholas; the mortgage to secure the $800 note was a first mortgage lien, and the mortgage to secure the $4.16 note was a second mortgage lien.
“2. The plaintiff and Milton C. Brady lived together as husband and wife until the 13th day of September, 1883, upon the above-described real estate as their homestead, when the said Milton C. Brady, the then husband of the plaintiff, died, leaving the plaintiff herein his widow, and Robert M. Brady, John E. Brady, Everitt Brady, and Cora Brady, his children and minor heirs at law, who are still minors, the oldest of whom is now eight years old and living with the plaintiff.
“4. On the 1st day of February, 1885, the plaintiff herein married one of the defendants herein, viz., J. N. Banta, and they have lived together as husband and wife upon said real estate from that time until the present.
“5. The estate of the said Milton C. Brady was administered upon, and he had no other real estate than that mentioned above; and his personal estate was duly administered and his debts paid so far as the property would pay them.
“6. The defendant herein, John A. Brady, is and was a brother of Milton C. Brady, now deceased.
“7. The $800 note, and mortgage to secure the same, and the $4.16 note, and the mortgage to secure the same, were duly assigned to John A. Brady, he paying a valuable consideration for the same; these mortgages were on the land above described.
“8. There is now due the said John A. Brady, on the $800 note, $400, with interest at 12 per cent, from the 4th day of April, 1886; and there is now due the said John A. Brady $4.16, and interest thereon at 12 per cent, from the 4th day of April, 1886, and said John A. Brady paid the taxes on said real estate to the amount of $30.07, and that amount is due him, with interest at 12 per cent, from the 23d day of November, 1886; and the'said John A. Brady, the defendant herein, is entitled to a foreclosure of said mortgages as a first and second lien on said real estate for the above specified amounts and interest due.
“9. John A. Brady, the defendant herein, purchased claims against said estate of several parties, as follows: Of Skiles & Wirshing, on January 25, 1884, $123.58; A. Minser, $2.55, on August 12, 1885; J. Hanna & Co., $95, August 11, 1885; J. H. Smith, $23.31, February 6, 1884; P. C. Magoffin, $30, August- 12, 1885; H. J. Konantz, $15, August 12,1885; W. G-. Elliott, $25, October 29,1883; Landis & Hollinger, $116.35. The said John A. Brady made proof of said claims in the probate court of Rice county, Kansas, against the estate of the said Milton C. Brady, August 18, 1885, and the same were allowed against said estate and entered in said probate court as claims against said estate proved according to law. The amount of said claims, principal and interest, to date is $586.16, and the same has never been paid or any part thereof.
“10. The administrator of the estate of Milton C. Brady had made his final settlement with the probate court prior to the beginning of this action, and all the property formerly belonging to the said Milton C. Brady has been administered, except the above-described -real estate.”
Together with certain evidence, upon which the court found the following additional facts:
“ In addition to the facts agreed to in the stipulations, the court finds from the evidence ’that plaintiff and her minor children have continued to reside upon the premises in question ever since the death of plaintiff’s former husband, and that they have at no time abandoned the same, and still continue to reside thereon.”
Upon the above facts, as stipulated by the parties and found by the court, the court made the following conclusions of law:
“As conclusions of law the court finds, that the land in question is subject to be partitioned in this action; that John A. Brady has a lien upon the premises under his mortgages for $493.49; that said mortgages may he foreclosed in this action; that the marriage of plaintiff with defendant J. N. Banta does not render said premises liable to John A. Brady’s claims under the allowance made thereof by the probate court, and that he has no lien on said premises for said claims; that the homestead right of plaintiff and her minor children to said premises is not divested by reason of such marriage of plaintiff with defendant J. N. Banta.”
On the above facts and conclusions of law, the court held that John A. Brady was entitled to recover of and from the plaintiff Emma J. Banta the sum of $493.49, and that said sum was a first lien upon the premises described in her petition, and gave him, John A. Brady, a judgment for said sum against said Emma J. Banta, with interest thereon at 12 per cent. The court also ordered the land sold at the end of six months, unless Emma J. Banta should pay said sum of $493.49, with interest and costs; and ordered the proceeds of said sale to be applied as follows: First, To the payment of the costs in the case. . Second, To the payment of said sum of $493.49 and interest thereon to John A. Brady. Third, The residue, if any, to be paid to said plaintiff and the other defendants, as follows: Emma J. Banta, one-half; Robert M. Brady, one-eighth; John E. Brady, one-eighth; Everitt Brady, one-eighth, and Cora M. Brady, one-eighth. The court also rendered judgment in favor of J. W. Brinckerhoff against Emma J. Banta and J. N. Banta for $153, and interest at 12 per cent., and made said judgment a lien on the interest of Emma J. Banta and J. N. Banta in the real estate in controversy, subject to the lien of John A. Brady thereon. The court further ordered that if Emma J. Banta should pay said judgments, interest, and costs, within six months from the day of the judgment, a writ of partition should issue dividing the land, one-half to Emma J. Banta, and one-eighth each to Robert M. Brady, John E. Brady, Everitt Brady, and Cora M. Brady. The defendant John A. Brady objected to the conclusions of law and the judgment rendered in fhe case, and filed a' motion for a new trial, which was overruled.
The first point the plaintiff in error calls the attention of the court to is embodied in the following question: When a husband residing upon land,,his homestead, dies, leaving a widow and children, and the widow afterward marries, but with her children first, and afterward with her children and second husband, continues all the time to reside on and occupy said homestead, does the land continue the homestead of said family, and, as such, remain exempt from debts and liabilities of the deceased husband after the marriage of his said widow; or does it cease, upon said marriage and because thereof, to be the homestead of the family, and become subject to the debts of the deceased husband like other lands? A solution of this question involves a construction of ¶ 2593 of the General Statutes of 1889, which paragraph reads as follows:
“A homestead to the extent of 160 acres of farming land, or of one acre within the limits of an incorporated town or city, occupied by the intestate and his family at the time of his death, as a residence, and continued to be so occupied by his widow and children after his death, together with all the improvements on the same, shall be wholly exempt from distribution under any of the laws of this state, and from the payment of debts of the intestate, but shall be the absolute property of the said widow and children: Provided, however, That the provisions of this section shall not apply to any incumbrance given by the consent of both husband and wife, nor to obligations for the purchase of said premises, nor to liens for the erection of improvements thereon.”
The contention of the plaintiff in error is, that the marriage of the widow destroys the homestead character of the land constituting the homestead of her former husband and herself, and by operation of law removes the exemption of the land from the debts of the first husband, which this section gives to a homestead, notwithstanding the former wife and her children by her first husband have continuously resided on and occupied the land since the death of the former husband and father. We do not think this position is tenable. There is no express provision in the statute supporting the contention of the plaintiff in error. The whole contention, so far as the statute is concerned, is based upon a mere inference arising from the use of the word “widow” therein. We do not think the legislature, by the word “widow” in this paragraph, intended to say that the mere marriage of the widow of a decedent should operate to destroy the homestead character of the home left her and her children by the former husband. Such marriage must be accompanied by some other act, as abandonment by her going to live with her husband elsewhere, to affect the homestead character of the home left her by her deceased husband. The section would mean exactly the same if it read: “and continued to be so occupied by his former wife and children after his death,” instead of reading, as now: “and continued to be so occupied by his widow and children after his death.” If it read thus, there would be no contention that the marriage of his former wife would affect the homestead character of the home.
But suppose the marriage of the widow in this case did affect the homestead as to her, could it be said that it also deprived the children of their homestead interest in the land left them as a homestead by their deceased parent ? Clearly not. If the widow should marry, and then abandon the homestead to live with her husband elsewhere, she would undoubtedly lose her homestead right therein; and so she would if she should abandon the homestead without marrying; but, in either event, her act would not deprive the children who stuck to the homestead of their deceased father after his death of their homestead rights therein. We do not think that- the marriage of the widow of the decedent, ° w^ere she with her husband continues to occupy the homestead the same after marriage as before, . . . _ . . operates to remove the provisions oi the homestead law exempting it from the debts and liabilities of the deceased debtor. In Vandiver v. Vandiver, 20 Kas. 501, this court uses the following language:
“No good reason exists why the homestead of the intestate, ‘toward which the eye of the creditor need never be turned5 in the life-time of the debtor, shall, upon his death, be liable for claims of creditors when continued to be occupied by the widow or children of such debtor.55
That was an action for partition of a homestead, and the exact question we are discussing in this case was not in that case; but as bearing upon the question involved herein, we quote the following, in addition to what is quoted above, from the opinion in that case:
“We are not called upon now to determine the nature of the occupancy after the death of a debtor to exempt the homestead from the payment of his debts; but certainly the requirement of‘occupancy5 should be liberally construed, so as to favor the beneficial purposes of these sections of the law.55
Exemption laws of all kinds are to be liberally construed in favor of the purpose for which they were enacted. (Mallory v. Berry, 16 Kas. 295; Rasure v. Hart, 18 id. 340; Donmeyer v. Donmeyer, 43 id. 444; Bank v. Warner, 22 id. 537.)
The second inquiry relates to the distribution of the homestead. Was the order of the court in relation to the partition thereof erroneous? We answer in the negative. The statute expressly provides for such an order. Paragraph 2596, General Statutes of 1889, reads as follows:
“If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided, one-half in value to the widow, and the other one-half to the children."
(See, also, Vandiver v. Vandiver, 20 Kas. 501; Hafer v. Hafer, 36 id. 447.)
We think the third inquiry of the plaintiff in error is answered by the anwer to the first. If the marriage of Emma J. Brady with J. N. Banta did not destroy the homestead character of the home left by the intestate to his widow and children, it follows that said homestead remained exempt from the debts of said intestate so long as occupied by his former wife or children, except so far as those debts were made liens thereon during the life-time of said intestate. The court below seems to have dropped into an error in requiring Emma J. Banta to pay the whole of the judgment of John A. Brady. His mortgages were a lien upon the whole of said homestead. Emma J. Banta succeeded to only a one-half interest therein, while the children of the intestate succeeded to the other one-half interest therein. The judgment of John A. Brady should be against the whole of said homestead, and be paid by the widow and children in proportion to their interests therein. The judgment should be so modified, and in all other respects it is recommended that it 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
Horton, C. J.:
On January 19, 1886, John Eunk and James F. Funk, at Raymore, Mo., executed and delivered their promissory note to Lucinda B. Dearborn for $5,500, payable four years after date, with 8 per cent, interest, payable semi-annually. On the 2d day of June, 1888, Lucinda B. Dearborn brought her action against James F. Funk, in the district court of Harvey county, in this state, to recover the amount of the promissory note before the note became due. At the same time, upon her affidavit, she obtained an order of attachment from the district judge. The order of attachment was levied on June 5,1888, upon section 31, township 22, range-3, in Harvey county. In May, 1887, James F. Funk was the owner of a certain quarter-section of land in Cass county, Missouri. On the 17th day of May, 1887, he exchanged with James M. Vaughan, the father of his wife, the Cass county land for the land attached. The conveyance for the land attached was executed and delivered to Mrs. Ina B. Funk, the wife of said James F. Funk. On November 15,1887, Mr. and Mrs. Funk conveyed this land to James M. Vaughan, in exchange for other property in Harvey county, in this state. After the land was attached, James M. Vaughan filed his motion to discharge the property from the attachment, upon the ground that James M. Funk had no title, estate or interest therein, and that he (Vaughan) was the owner of the land, and had been such owner for a long time prior to the levy of the attachment. The motion to discharge the land from the attachment was sustained. The plaintiff excepted, and brings the case here.
It clearly appears from the evidence introduced upon the hearing of the motion to discharge the attached property that James F. Funk had no title, estate or interest therein at the time of the levy. There is nothing in the evidence showing or tending to show any fraud in the conveyance from James M. Vaughan and wife to Mrs. Ina B. Funk on the 17th day of May, 1887, or in the conveyance from Mrs. Ina B. Funk and husband to James M. Vaughan of the 15th of November, 1887. The deed to Mrs. Ina B. Funk of the 17th of May, 1887, was made to her instead of her husband, because her father donated to her a part of the land. At that time, and also at the date of the deed of the 15th of November, 1887, he had no knowledge or notice of any fraud or wrong intended by James F. Funk. The deed of the 15th of November, 1887, seems to have been made to Vaughan in good faith; and that deed, whatever may be said of the deed of the 17th day of May, 1887, deprived both James F. and Mrs. Ina B. Funk of all interest in the land attached. It was ruled in Long v. Murphy, 27 Kas. 375, that—
“When land has been levied upon under an order of attachment, any person claiming to be the owner thereof and interested in discharging the property from the attachment may, although he is not a party to the original action, move the court to discharge the attachment as to the property so claimed by him.”
Of course, if, as appeared upon the hearing of the motion, James F. Funk had no title, estate or interest in the land attached, the land could not be subjected to his debts; therefore, Lucinda B. Dearborn has no grounds of complaint against the discharge of the attached property.
The order and judgment of the district court, being sustained by oral evidence, must be upheld. (Urquhart v. Smith, 5 Kas. 447; Wilson v. Lightbody, 29 id. 446.)
Judgment for an affirmance will be rendered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The plaintiff brought this action to recover from defendants a balance claimed to be due for lumber sold and furnished to defendants. The defendants alleged payment in full as a first defense, and for the second and third defenses counterclaims were pleaded. At the January term, 1888, the cause was tried without a jury, and the court found the balance unpaid upon the lumber furnished was $204.40; that the lumber, however, was not delivered in accordance with the contract of sale; that defendants, who had contracted to furnish the lumber purchased to certain other parties, were compelled to pay damages in consequence of plaintiff’s failure, and that they were damaged by the delay and non-delivery of the lumber in the sum of $171; and the court adjudged that plaintiff recover the sum of $29.40. Plaintiff is dissatisfied with the amount awarded, and comes here, asking a reversal; but the condition of the record is such, that a satisfactory determination of the principal question discussed cannot be made. The plaintiff objected to the introduction of any evidence under the second count of the answer, and upon the ground that it failed to state facts sufficient to constitute a defense. In brief, the count alleges that defendants contracted to deliver certain lumber at Lyons, Kas., for a certain purpose and at a specified time, but that they failed to deliver it at the time agreed upon, nor until a long time afterward, whereby defendants suffered loss and damage to the extent of $150, which they asked might be allowed as a counterclaim against any amount recovered by plaintiff. The principal objection urged is, that the count showed an acceptance of the lumber at a later time than that agreed upon, and that this acceptance is a waiver of the objection to deliver according to the contract. The allegations in the count, however, do not bear out the claim. It is not alleged that there was an acceptance by the defendants of the lumber furnished; and even if the count contained such an allegation, it would not constitute a waiver. The defendants, who were regularly engaged in the lumber business, could accept the lumber when it arrived and still recover for any actual loss suffered by them which was the direct result of the plaintiff’s failure to deliver according to contract. The acceptance and use of the material lessened'the injury of the defendants, and correspondingly reduced the plaintiff’s liability for its failure. The testimony in the case discloses that the lumber was of such a character as could not be procured in the market at Lyons, and that the owners of the buildings for whom it was contracted were daily incurring expense and loss by the plaintiff’s failure to-provide the lumber at the time specified. It was the duty of the defendants, therefore, to make the injury as light as possible by taking and using the material upon its arrival. To have returned the lumber to the plaintiff would not have lessened the damages which had already accrued, but would have aggravated the injury and enhanced the plaintiff’s liability.
In the third count it is alleged, in substance, that one carload of- lumber agreed to be furnished by the plaintiff for a certain purpose, of which the plaintiff was informed, was never-delivered, by reason of which defendants were obliged to enter the inarket and purchase the lumber at an advanced price, and were thus compelled to pay the sum of $54.53 more than the price at which plaintiff had agreed to sell and deliver the same; and that the price which the defendants paid for this-lumber was the reasonable market price; and this amount they set up as a counterclaim.
The objection that there was no allegation that plaintiff refused to furnish the lumber according to contract, or that defendants may possibly have directed plaintiff not to deliver the lumber, is unsubstantial and requires no notice. It appears that this part of the purchase could be supplied from the local market, and when the plaintiff failed, the defendants, as was their duty, went upon the market and purchased the lumber at the market price, and thus prevented additional loss and injury. Under the general rule they were entitled to recover the difference between the contract price and the market value of the lumber at that time, together with interest. The allegations of the count were certainly sufficient to overcome the objection that was made against it.
The objection principally discussed by plaintiff in error is, that the court adopted an incorrect measure of damages, and that the testimony did not sustain the general finding and judgment that was rendered. It cannot be ascertained from the record what elements of damage were considered by the court in arriving at its judgment. There were no instructions, and no special findings were asked or made, to indicate the elements considered by the court and which controlled its judgment. In order to properly raise the question in this court, the plaintiff should have obtained special findings; but without these or some statement from the court showing the elements which enter into its judgment, we cannot intelligently examine the question attempted to be raised. The testimony tends to show that the lumber was contracted for a special purpose; that it was of a character which could not be supplied from the local market; that the plaintiff specially agreed to deliver the lumber at a stated time and for a particular purpose, and that the loss which occurred was within the contemplation of both parties; that the defendants again and again prompted the plaintiff to hurry up the delivery, and informed it that the delay would occasion injury for which it would be held liable, but that .they would endeavor to lessen the damages as much as possible; that after this time plaintiff sent tracers and telegrams and made other efforts to find and deliver the lumber, which it was bringing from Arkansas, but which for some reason was delayed. There is testimony that some of the damages arose from a shortage in the quantity claimed to have been furnished, some of it from the advanced price paid for the car of lumber which was never furnished. There is testimony in regard to the loss suffered from the delay and idleness of the men who were engaged on the building, but who could not proceed without the lumber which plaintiff had not yet delivered; and also testimony of the length of time that the owners of the buildings were deprived of their use through the fault of plaintiff; and testimony of the rental value of the buildings during this time of delay. There is also testimony tending to show that defendants were prompt and diligent in staying the injury; and, considering all of the testimony, the amount of damages allowed to defendants is quite reasonable. The elements of damage, however, which were considered by the court and upon which its judgment rests, we cannot determine. The facts are such as to take the case out of the general rule of damages, which limits the recovery to the difference between the contract price and the market price. There are special circumstances disclosed in the record which bring the case within the doctrine of Richardson v. Chynoweth, 26 Wis. 656, where it is stated that—
“There may be cases, where parties contract for articles with reference to use or sale on some particular occasion, and where, by reason of want of time, or their situation in respect to the market, they would, on a failure to receive them on the contract be unable to supply themselves for that occasion, in which this general rule of damages would wholly fail to compensate for the actual loss. In such cases, time is of the essence of the contract. It would be like a contract to complete at a given time a ship designed to be employed in a particular trade, or a house to be occupied, or an engine to run a particular mill or manufactory. In cases where the contracting party is advised of the special purpose of the thing to be completed, and of the damage that would naturally accrue from failure to complete it at the specified time, and in view of this, expressly stipulates to furnish it at a given time, there is no reason why he should not be responsible for such damage as is the direct natural result of his failure, even though beyond the mere difference between the contract and market price.”
See, also, Shepherd v. Gas Co., 15 Wis. 318; Messmore v. Lead Co., 40 N. Y. 422; Griffin v. Colver, 16 id. 489; Morrison v. Lovejoy, 6 Minn. 319; 2 Suth., Dam., 488-493.
Under the special circumstances of this case, the defendants were entitled to full compensation for the loss actually sustained, and which was the probable and proximate result of the plaintiff’s default. Although we cannot say from the record what items and elements were considered by the court in making up its judgment, we think there is sufficient evidence to sustain the judgment that was rendered.
The other objections are not sufficiently material to require attention, and as we find nothing in the record that would warrant a reversal, the judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Douglas county by the St. Louis Wire-Mill Company, of St. Louis, Mo., against the Consolidated BarbWire Company, of Lawrence Kas., to recover the sum of $809.05 upon an account. The defendant answered, admitting substantially the correctness of the account, except that it claimed that the whole amount due the plaintiff had been paid in the manner which we shall hereafter state. A trial was had before the court and a jury, and the verdict and judgment were in favor of the defendant and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review.
Only two questions are presented in this court by the plaintiff in error, and they both have reference to the admission of evidence on the trial in the court below. In order to obtain a correct understanding of these question^, it is necessary to obtain a correct understanding of the pleadings in the case and the issues presented by them. The plaintiff in its petition sets forth a claim for wire furnished by the plaintiff to the defendant, amounting in value to $6,425.63, with credits to the amount of $5,616, leaving a balance alleged to be due to the plaintiff to the amount of $809.05. Among the credits given is one designated as a “rebate” on 500 tons of wire at 10 cents for each 100 pounds, amounting to $1,000; and another credit is a “rebate” on 77| tons of wire at 15 cents per 100 pounds, amounting to $232.50; total rebates allowed, $1,232.50. There is nothing in the petition showing that the wire, or anything else, was furnished upon any written contract or upon any writing. The defendant answered, stating that the rebate upon the whole of the wire furnished by the plaintiff should have been at the rate of 15 cents' for each 100 pounds, and therefore that it was entitled to a further rebate on this account of $500 more. The defendant also alleged that there was an overcharge of $12.59 in the account; and also that the Kansas. City Barb-Wire Company, of Kansas City, Mo., was entitled to a similar rebate of 15 cents for each 100 pounds on 300 tons of wire purchased at the same time by that company of the plaintiff, amounting to the sum of $900, of which amount the sum of $600 had been paid, leaving a balance of $300 due and unpaid, except another credit of $3.54; and that the remainder of the claim, to wit, $296.46, was still due and unpaid, and that it had been assigned to the defendant by the Kansas City Barb-Wire Company, and that the defendant then owned the same and was entitled to recover the amount thereof. It will be seen that the whole of the defendant’s claim amounts to $809.05, just the amount of plaintiff’s claim. There was nothing stated in the defendant’s answer showing that the contract between the plaintiff and the defendant, or between the plaintiff and the Kansas City Barb-Wire Company, was in writing. The plaintiff in reply to this answer filed a general denial. Upon the trial the defendant assumed the burden of proof, and introduced its evidence first. It introduced Albert Henley as a witness, and it was shown by his testimony that he was the secretary, treasurer and general manager of the defendant, and that he was also the president and agent of the Kansas City Barb-Wire Company, and that he acted for both; and that he made the contracts upon which all the wire was furnished by the plaintiff to both the Lawrence company and the Kansas City company. It was disclosed by his testimony,'however, that the contracts were in writing, and they read as follows:
“St. Louis, December 12, 1885.
“St. Louis Wire-Mill Co., St. Louis, Mo.
“ Please enter our order for 500 tons of wire, as follows:
320 tons No. 12, annealed.....................■................$2 90
80 tons No. 131, barbing..................................... 3 15
10 tons No. 12, galvanized................................... 3 65
10 tons No. 13-2', galvanized........................:......... 3 90
32 tons No. 9, annealed..................................... 2 70
8 tons No. 13, barbing.............■......................... 3 15
8 tons No. 9, galvanized................................... 3 15
2 tons No. 13, galvanized barbing........................... 3 90
“Deliveries to be made during February, March, and April, 1886, in about equal amounts in each month; terms cash. Draft with bill lading, less 2 per cent.
Consolidated Barb-Wire Co.,
By A. Henley, See’y.”
“St. Louis, December 12, 1885.
“ St. Louis Wire-Mill Co., St. Louis, Mo. ■
“ Gentlemen : Please enter our order for 300 tons wire, as follows:
160 tons No. 12, annealed.....................................$2 90
10 tons No. 5.3, barbing...................................... 3 15
32 tons No. 9, annealed..................................... 2 70
8 tons No. 13, barbing...................................... 3 15
8 tons No. 9, galvanized................................... 3 15
2 tons No. 13, galvanized barbing........................... 3 90
10 tons No. 12, galvanized................................... 3 65
10 tons No. 13, galvanized barbing........................... 3 90
“Delivery to be made during December, 1885, and January, February, March, and April, 1886. Terms cash with bill lading, less 2 per cent.
Kansas City Barb-Wire Co.,
E. L. Bruce, Manager.”
It is also shown by the testimony of this witness, Mr. Henley, that he procured E. L. Bruce to sign .the Kansas City company’s contract; and it was then shown by his testimony, over the objections and exceptions of the defendant, that at the time when these contracts were made it was agreed between the parties in parol that there should be a rebate from the prices mentioned in the contracts of 15 cents on each 100 pounds of all the wire furnished by the plaintiff to both the Lawrence and the Kansas City companies; and whether this evidence is competent or not is the first and principal question presented to this court. As before stated, the plaintiff allowed a rebate of 15 cents on each 100 pounds on a portion of the wire furnished to the Lawrence company, and allowed a rebate of 10 cents on each 100 pounds on all the remainder of the wire furnished to the Lawrence and the Kausas City companies; and the dispute now is, whether there should be a further rebate of five cents on each 100 pounds of the wire furnished to the two companies, upon which a rebate of only 10 cents had previously been allowed, so as to make the entire rebate at the rate of 15 cents on each 100 pounds of .all the wire furnished. The whole amount of the rebate allowed was as follows: To the Lawrence company, on 500 tons of wire, at 10 cents, $1,000; on 77|- tons, at 15 cents, $232.50; and to the Kansas City company, on 300 tons of wire, at 10 cents, $600; total rebate allowed, $1,832.50. And the defendant claims that a further rebate should be allowed, as follows : To the Lawrence company, on 500 tons of wire, five cents more on each 100 pounds, $500; to the Kansas City company, on 300 tons, five cents more on each 100 pounds, $300; total additional rebate claimed by the defendant, $800. The legal question, however, presented by the plaintiff's objection to the foregoing evidence is not whether the defendant should be allowed a rebate of five cents more on each 100 pounds, but it is whether the defendant could introduce any evidence showing that any parol contract was made authorizing or requiring any rebate in any amount to be allowed or paid. The plaintiff claims that, as the contracts between the parties appear to be in writing and are signed by the parties to be charged, no parol evidence could be introduced that would contradict or vary the'terms of the written contracts in the slightest particular; and it further claims that to show that any rebate in any amount was to be allowed would contradict and vary the terms of the written contracts.
Under the evidence introduced in the case, and the findings of the jury and the decision of the trial court, it must now be held that the Lawrence and the Kansas City companies did in fact sign and execute the above writings, which are called contracts, and also that they, together with the plaintiff, did in fact at the same time enter into a parol contract that a rebate of 15 cents on each 100 pounds of the wire, to be subsequently furnished by the plaintiff to the Lawrence and Kansas City companies, should be allowed. But the question then arises, why was not the entire contract or the real contract between the parties put in writing ? Why did not the writings mention the rebate, or fix the prices of the wire at just what they would have been after deducting the rebate, to wit, a rebate of $3 on each ton of wire? The reason for this, as shown by the evidence, is, that the plaintiff had entered into a combination with other manufacturers of wire, under heavy penalties, not to sell wire for rates less than those mentioned in the foregoing writings. Henley represented and acted for the Lawrence and Kansas City companies at the time when the contracts were made and the above writings were signed, and the plaintiff was represented by William Edenborn, its president and agent, and C. F. Heintz, its vice-president, secretary, and agent; and Henley testified on the trial, among other things, as follows:
“Fifteen cents per 100 pounds. They asked us not to put it in writing, and they wouldn’t put it in writing; and they asked us not to say anything about it — not even to have any correspondence about it, . . . because they were under a penalty. They had to pay a certain amount as a fine if it was shown that they had made a rebate below the full pool price. . . . Mr. Edenborn stated that, by reason of certain arrangements they had entered into with other manufacturers of wire, they couldn’t put on their books only a certain price, and they wouldn’t enter into any contract, but they would give us 15 cents rebate as we were getting before; he didn’t see why we shouldn’t have it the same as before.”
Mr. Henley also testified that the combination or pool prices were those mentioned in the foregoing' writings, and were $3 per ton or 15 cents per 100 pounds more than his companies were to pay. We shall decide this case upon the theory that the foregoing writings were not the real contracts between the parties, but that the parol contracts entered into between the parties through their agents, Henley and Bruce on the one side, and Edenborn and Heintz on the other side, were their real contracts; and that none of the parties expected or intended to be governed by the writings as to prices, but all expected and intended to be governed by the parol contracts; that the prices fixed in the writings were intended to be used principally if not entirely for the purpose of deceiving the other members of the combination of wire manufacturers, of which combination the plaintiff was also a member. We shall also decide this case upon the theory that it is always admissible to prove an independent parol agreement made contemporaneously with a written contract. (Babcock v. Deford, 14 Kas. 408; Weeks v. Medler, 20 id. 57; McNamara v. Culver, 22 id. 661, 670, and cases there cited; Dodge v. Oatis, 27 id. 762.) But that “proof of a contemporaneous parol agreement is inadmissible to alter or contradict a contract in writing.” (Hopkins v. St. L. & S. F. Rly. Co., 29 Kas. 544; Cornell v. St. L. K. & A. Rly. Co., 25 id. 613; Miller v. Edgerton, 38 id. 36; Windmill Co. v. Piercy, 41 id. 763.) We shall also decide this case upon the theory that combinations of the kind entered into between the wire manufacturers in this case to fix the prices of wire above the real value thereof are against public policy, illegal, and not enforceable in courts of justice.” (Greenh., Pub. Pol., 642 — 645, and cases there cited; C. C. C. & I. Rld. Co. v. Closser, Ind., 45 Am. & Eng. Rld. Cases, 275.)
There is no pretense in the present case that the wire was worth the combination prices, or that it was worth more than the prices fixed by the parol contracts. We think the real question in the present case is as follows: Where a parol contract for the purchase of goods is made between the parties, but at the same time an instrument in writing purporting to be the contract, but which as to price was never intended by the parties to be the contract, is signed by the purchaser, and such writing is made to differ as to prices from the real contract because of an illegal and existing combination previously entered into on the part of the seller with other dealers iu the same kind of goods to enhance the prices of that kind of goods in the market above their real value, can the writing be enforced as to the prices therein mentioned by the seller against the other party and as against . . .. , . . the real contract of the parties, although such real contract exists only in parol ? This question must be answered in the negative. To answer otherwise would be to hold that the plaintiff might recover an amount of money vastly in excess of the real value of the property it sold, in violation of a lawful parol contract, and in furtherance of an unlawful combination between itself and others to inflate the prices of such property vastly beyond its true value.
The next question is, whether the court erred, or not, in admitting proof on the part of the defendant of the declarations .and statements of Edenborn after the aforesaid contracts were completed, as to what their m 1 • 7 ? terms were. There can certainly be no error m this. Edenborn was the president and agent of the plaintiff. He was its principal agent in making the contracts, and these statements were made pending ah attempted settlement between the parties with reference thereto. (Water Power Co. v. Brown, 23 Kas. 677, 692; C. C. C. & I. Rld. Co. v. Glosser, supra.) Of course, Edenborn’s statements would be competent only where parol evidence would be competent.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action brought by Lewis G. Jennings against J. Paul Grove, to remove a cloud upon the title to lot 17, in block 78, in the city of Anthony, in Harper county, and to declare a certain decree of record in the district court of said county affecting said real estate to be null and void. It wás alleged that J. B. S. Coplin owned the lot in question on the 14th day of January, 1885; that he and his wife deeded it to the plaintiff; that the deed was filed,for record on the 29th day of January following; that afterward Grove commenced an action against Coplin and wife to compel the specific performance of a contract to convey said property to him; that he obtained a decree for specific performance; and that the same constituted a cloud upon the title of the plaintiff to said premises. A demurrer was interposed to this petition, which was overruled. The defendant answered, first, by a general denial; second, he admitted that Coplin owned the real estate in controversy on the 14th day of January, 1885; and third, a cross-petition based upon the judgment and decree before rendered, and alleged that the deed from Coplin and wife to the plaintiff was a cloud upon his title, and asked that he be adjudged to be the owner of said premises. A reply, denying the allegations of this cross-petition, was filed by the plaintiff. A trial was had upon the issues thus joined by the court, and judgment was rendered for the plaintiff. The defendant brings the case here.
I. The first assigned error is the overruling of the demurrer to the petition. It is insisted that it lacks two material averments: First, that it did not state that the plaintiff was the owner of the legal or any other title to said premises; second, that the plaintiff was not in possession of the real estate. The first proposition is not tenable. The pleadings state the ownership in Coplin on the 14th day of January, 1885; the plaintiff alleged' that on said day Coplin and wife deeded to the plaintiff. We think this a sufficient allegation of ownership and title. The plaintiff in error insists that there is no allegation of possession in plaintiff’s petition, and that this is necessary. Is possession necessary in an action to remove a cloud from a title? The doctrine is well settled that courts of equity will grant relief on the principle quia timet; that is, that the deed or other instrument or proceeding constituting the cloud may be used to injuriously or vexatiously embarrass or affect a plaintiff’s title. (Pom. Eq. Jur., §1399.) While there appears to be some conflict of opinion as to whether .possession is necessary, we think the greater weight of authorities settles the question in favor of the proposition that, where a party out of possession holds the legal title under such circumstances that the law cannot furnish him adequate relief, his resort to equity to have a cloud removed ought not to be questioned because he may be out of possession or the land vacant. It is said that this was an action to quiet title, brought under § 594 of the code of civil procedure, and that actual possession was a prerequisite at the time the action commenced. If this were true, counsels’ position would be correct; but the action was not brought under § 594, and we do not understand that the statute in regard to quieting titles took away any of the previously-existing equitable remedies. This case comes within a well-understood rule of equitable jurisprudence, and is independent of statutory regulations. The relief in such cases is of a kind given under the old practice only in courts of equity, and in cases outside the limits of the statute; and the facts must be fully stated, substantially as in a bill in equity under the former chancery practice. (Douglass v. Nuzum, 16 Kas. 515; Story, Eq. Jur., §§ 700-706; Pettit v. Shepherd, 5 Paige, 501; Field v. Holbrook, 6 Duer, 597; Jones v. Smith, 22 Mich. 360.) Under this equitable rule, a person who holds the legal title to land, though not in possession, may, independently of the statute, maintain a suit in equity to remove a cloud upon his title, and in such suit the court may decree the reformation or cancellation of records and the execution of deeds or releases. (Hager v. Shindler, 29 Cal. 47; Thompson v. Lynch, 29 id. 189; Kennedy v. Northup, 15 Ill. 148; Redmond v. Packenham, 66 id. 434; Booth v. Wiley, 102 id. 84; Tabor v. Cook, 15 Mich. 322; Ormsby v. Barr, 22 id. 80; Jones v. Smith, supra; King v. Carpenter, 37 id. 363; Low v. Staples, 2 Nev. 209; Almony v. Hicks, 3 Head, 39; Pier v. City of Fond du Lac, 38 Wis. 470; Bunce v. Gallagher, 5 Blatchf. 481.)
II. It is next claimed that the findings and judgment of the court below are not sustained by the evidence. This we regard as the most serious question in the case. The evidence established the fact that Grove had been negotiating for the purchase of the lot in controversy before the defendant in error purchased it, and that he had knowledge of such negotiations. He understood that a deed had been executed by Coplin and wife to Grove for this lot, and deposited in a bank at Anthony; that this deed had been withdrawn from the bank by Coplin, and Grove’s name had been erased and his own name inserted. The consideration had, also, been changed from $175 to $375. There was no evidence to establish the fact that the withdrawal and these erasures were authorized by Coplin and wife, or either of them. There was no evidence to show that the redelivery by the bank to Coplin was authorized. The record is silent as to the conditions upon which the deed was to be delivered to Grove by the bank; it is not disclosed that the time had expired within which Grove would have been entitled to the deed by paying the consideration. There is no evidence to show Grove’s consent to the redelivery to Coplin. Where a deed has been delivered as an escrow, subsequent instructions by the grantor to the depositary cannot change the original nature of the transaction. (Robbins v. Magee, 76 Ind. 381; 6 Am. & Eng. Encyc. of Law, 863.) If Grove had fulfilled the conditions upon his part, the title would have vested in him without further delivery. The contract upon the part of Coplin and wife had been executed; the title had passed from them, subject only to the performance of the conditions upon the part of Grove. (Farley v. Palmer, 20 Ohio St. 223.) Now, without some evidence to show that the redelivery of the deed was authorized, and that he was lawfully entitled to it, we do not think there is sufficient evidence to uphold the findings and judgment of the trial court, and therefore recommend that the same be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
The plaintiff in error condemned three lots in block 8, of Carroll’s plaza, in the city of Fort Scott, in Bourbon county, for railroad purposes. All the lots were appropriated, and the commissioners awarded as compensation for them $240; the defendant in error appealed from the award; the case was tried in the district court, and the jury returned a verdict in favor of the owner of the lots for the sum of $881.93; a motion for a new trial was overruled, and judgment was entered in accordance with the verdict.
The plaintiff in error contends that the jury disregarded the evidence in arriving at their verdict, and that it is contrary to and unsupported by the evidence. Six witnesses testified for the plaintiff upon the trial in the district court, that the lots were worth $1,500. Five witnesses in behalf of the defendant below fixed the value of the lots at from $240 to $375. There was no evidence from any witness fixing the value of the property at the amount returned by the jury. The defendant below requested the court to permit the jury to view the premises, but this request was denied. It is claimed that the verdict, is neither in accord with the plaintiff’s nor defendant’s witnesses, and hence is unsupported by any evidence.
It was the particular province of the jury to determine the value of the lots. Their value was purely a question of fact, to be determined from all of the evidence before them. They had the testimony of the witnesses upon the part of the plaintiff and defendant, giving their opinions as to the value of these lots. There was evidence, too, of the location and condition of the lots, as well as the purposes for which they might be utilized. The testimony as to the value of the property condemned was opinion evidence. The witnesses gave their best judgment as to the value of the lots, and this evidence depended upon a knowledge of the value of real estate at the time the property was taken. Now, an opinion as to the value of a piece of property is not, strictly speaking, a fact, but is received in evidence upon the same principle as that on which the opinions of experts are admitted. In a well-considered case, decided by the supreme court of the United States, Mr. Justice Field observed:
“The evidence of experts as to the value of professional services does not differ, in principle, from such evidence as to the value of labor in other departments of business, or as to the value of property. So far from laying aside their own general knowledge and ideas, the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinions expressed, and it was only in that way that they could arrive at a just conclusion. While they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry.” (Head v. Hargrave, 105 U. S. 45.)
The same court quotes approvingly the case of Anthony v. Stinson, 4 Kas. 211, where this court said that the jury were not to be instructed as to what part of the testimony before them should control their verdict; that, in order to control it, the testimony of experts should be of such a character as to outweigh, by its intrinsic force and probability, all conflicting testimony; and that they could not be required to accept as a matter of law the conclusions of the witnesses, instead of their own. In a recent case this court has said that a court or jury trying the question of the value of legal services is not bound to accept as conclusive the opinions given by attorneys respecting the value of certain services; and that such opinions are only to be considered in connection with other testimony in the case, in the light of which and of its own general knowledge the court or jury should, for itself, determine the value. (Bentley v. Brown, 37 Kas. 14.) In Patterson v. Boston, 20 Pick. 166, the question was as to the damages to be awarded to the plaintiff for his property taken to widen a street in Boston. The trial court instructed the jury that, in estimating the amount of the damages, if any of them knew, of his own knowledge, any material fact that bore upon the issue, he ought to disclose it and be sworn, and communicate it to his fellows in open court in the presence of the parties; but that, in making up their verdict, they might rightfully be influenced by their general knowledge on such subjects, as well as by the testimony and opinions of witnesses. The case being taken to the supreme court of the state, it was held that the directions were not open to exception. Said Chief Justice Shaw, speaking for the court:
“Juries would be very little fit for the high and responsible office to which they are called, especially to make an appraisement, if they might not avail themselves of those powers of their minds when they are most necessary'to the performance of their duties.”
In Murdock v. Summer, 22 Pick. 158, the same court, speaking through the same distinguished judge, said that “the jury very properly exercise their own judgment and apply their own knowledge and experience in regard to the general subject of inquiry.” In that case, a witness had testified as to the quality, condition and cost of certain goods, and given his opinion as to their worth; and the court said that “the jury were not bound by the opinion of the witness; they might have taken the facts testified by him as to the cost, quality and condition of the goods, and come to a different opinion as to their value.” (Lawson, Exp. Ev. 68.) The jury are to decide what weight, if any, shall be given to the opinions or evidence of an expert, or to the opinion of a non-professional witness. They are not bound by such evidence, and may exercise their own experience in deciding the question touching which the opinions were given. (7 Am. & Eng. Encyc. of Law, 516; A. T. & S. F. Rld. Co. v. Thul, 32 Kas. 255; Davis v. The State, 35 Ind. 496; Rose v. Spies, 44 Mo. 20.)
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The same questions are presented in both cases, and therefore we consider them together. The Columbia Land and Cattle Company is a corporation organized under the laws of Colorado. In the first case, Thomas Daly brought his action against that corporation to recover the value of certain goods, wares and merchandise alleged to have been purchased by D. B. Powers, as a “special partner” of the corporation, and also for the amount of certain sight drafts made by D. B. Powers upon H. S. Halley, the general manager of the corporation. The total amount of these claims is $529.70. In the second case, Joseph Murkins brought his action against the corporation, and D. B. Powers, the “special partner,” to recover $224.50 for use of a pasture. The corporation in both cases filed verified answers containing general denials, and also denials that D. B. Powers was a “special partner” or any other partner of the corporation. There was no further appearance on the part of the corporation, and judgment was rendered against it for the several amounts claimed. The case is brought here by the corporation upon the ground that, under the pleadings, the plaintiffs below were not entitled to recover.
Both of the petitions, as amended, allege that D. B. Powers is a “special partner” of the corporation, and as such partner made the corporation liable for the amount sued for. A pleading is always construed most strongly against the pleader, and the allegations in the amended petitions concerning D. B. Powers as a “special partner,” under the provisions of ¶ 3992, Gen. Stat. of 1889, render the petitions fatally defective.
“A special partner may, from time to time, examine into the state and progress of the partnership concerns, and may advise as to their management; but he shall not transact any business on account of the partnership, nor be employed for that purpose, as agent, attorney, or otherwise. If he shall interfere, contrary to these provisions, he shall be deemed a general partner.” (Gen. Stat. of 1868, ch. 74, § 16.)
The corporation could not be made liable upon the contract or purchase of D. B. Powers as a “special partner.” He had no authority, under the allegations of the amended petitions and the statutes, to bind the corporation or partnership; therefore, upon the amended petitions, the plaintiffs below were not entitled to recover.
Again, the amended petitions alleged a special partnership with Powers under a written contract set up in the petitions. The answer alleged under oath that there was no partnership of any kind, and that the plaintiffs below well knew that there was none when they dealt with Powers, and that he was acting solely upon his own responsibility. There were no replies filed, and the corporation did not waive anything by appearing at the trial.
In support of the judgments, it is said that no motion for a new trial was made, and no exceptions taken; therefore it is contended that this court has no errors before it to review or reverse. This is not correct. Where a judgment is not supported by the pleadings, the error is manifest in the record, and can be reversed without any motion for a new trial, and without exceptions being taken to the erroneous judgment. It was said in Brown v. Tuppeny, 24 Kas. 29, that “ where the error of the court is apparent in the record, no exception is necessary to bring the case to the supreme court for review.” (See, also) Koehler v. Ball, 2 Kas. 160; Dexter v. Cochran, 17 id. 447.)
The judgments will be reversed, and the causes remanded.
All the Justices concurring.
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The opinion of the court was delivered by
"Valentine, J.:
This was an action of replevin, brought in the district court of Allen county by G. D. Cunningham against Lyman C. Martin, for the recovery of a certain stallion known by the name of “Hercules.” A trial was commenced before the court and a jury, and at the close of the plaintiff’s evidence the defendant demurred thereto upon the ground that it did not prove any cause of action, and the court sustained the demurrer and rendered judgment in favor of the defendant and against the plaintiff; and to reverse this judgment, the plaintiff, as plaintiff in error, brings the case to this court.
It appears from the evidence that on June 20, 1887, the plaintiff, Cunningham, owned the horse in controversy, and the defendant, Martin, owned a certain tract of land consisting of 80 acres, in Chautauqua county, subject, however, to a certain $300 mortgage and the taxes for that year. They entered into a contract for the exchange of the horse and the land, the one for the other, and for this purpose Martin executed a general warranty deed to Cunningham for the land, except as to said mortgage and taxes; and Cunningham executed to Martin a bill of sale for the horse; and each of these instruments was duly delivered. Afterward Martin sent a written order by a young Mr. Conner requesting Cunningham to deliver the horse to Conner, the bearer of the order, which Cunningham refused to do; and Martin then went to Cunningham’s premises and took the horse, Cunningham being absent at the time, but some of his family being present. Cunningham then commenced this action of replevin against Martin to recover the horse. The aforesaid bill of sale and written order read as follows:
“bill op sale.
“Humboldt, Kas., June 20, 1887.
“For value received, I have this day sold my bay stallion, ‘Hercules,’ to L. C. Martin, and received payment in full, and agreed to keep said horse free of cost for the said Martin until September 1st, or deliver him at any time he or any one may call for him with an order from the said Martin.
Gr. D. Cunningham:.”
' “order.
“Cherryvale, Kas., July 20, ’87.
“Mr. Cunningham: You will please let bearer have the horse ‘Hercules,’ on this order, and oblige,
L. C. Martin.”
On the trial, Cunningham testified in substance that, under the contract entered into between himself and Martin, he (Cunningham) was to retain the possession of the horse until Martin should furnish to him a certain abstract of title, which Martin had never done. Martin claimed otherwise, however, and that he never agreed to let Cunningham retain the possession of the horse, except as stated in the bill of sale, and he relied for his proof as to this upon the facts of the case as developed by the plaintiff’s evidence and the written instruments, and the court below, upon the demurrer to the plaintiff’s evidence, decided in favor of Martin, and against Cunningham.
It would seem to us that the decision of the court below is correct. The deed for the land was a general warranty deed, except as above stated, and was executed and delivered, thereby transferring immediately and absolutely all Martin’s interest in the land to Cunningham; and the bill of sale was also of such a character as to transfer at once and absolutely all of Cunningham’s title and right of possession in and to the horse to Martin, and to authorize Martin to take the possession of the horse at any time when he might choose to do so, and this bill of sale was delivered at once to Martin. We think the facts of the case, including the bill of sale, prove conclusively that the title to the horse in question, and the right to the possession thereof, had been transferred absolutely to Martin, and that Martin was entitled to his possession when this action was commenced, and, therefore, we think the decision of the court below was and is correct.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This action was brought upon a promissory note given by the defendant to the plaintiff for the purchase-price of a Gale sulky harrow and seeder. The note was executed June 8, 1885, for $65, and was payable September 1, 1886. The execution of the note was admitted, but the defendant claimed that the implement was sold with a warranty that it was well adapted to the work of seeding ground, that the material and workmanship of the same were first class in every particular, and that it would do the work in a satisfactory and farmer-like manner. He alleged that the representations were untrue; that the implement was inferior in quality, unfit for the purposes for which it was purchased, and wholly worthless. He alleged that he gave plaintiff due notice of the failure of the machine, and that it is now on his farm subject solely and exclusively to the order of the plaintiff. There is a further allegation that', by reason of the breach of the warranty, the defendant suffered damages to the extent of $405. The trial of the case resulted in a verdict in favor of the defendant, and the plaintiff complains here that the evidence is insufficient to sustain the verdict or the special •findings that were made; that the findings are indefinite and inconsistent, and that the instructions were erroneous.
The record shows that Moore purchased the implement in June, 1885; that he seeded 40 acres in wheat with it in the fall of 1885, 16 acres of oats in the spring of 1886, and about 65 acres of wheat in the fall of 1886. Plaintiff claims that the evidence of defendant was wholly insufficient to sustain the claim of rescission, and therefore that its demurrer to the evidence should have been sustained. The jury found that Moore rescinded his contract, but not until after the note became due and the payment of the same was demanded.
If the defendant had relied solely on the single defense of rescission, we would be inclined to agree with the contention of plaintiff, that the defense was insufficient, and that the findings warranted a judgment in its favor. If Moore desired to rescind, it was his duty to place plaintiff in statu quo as nearly as possible, and therefore he should have returned or offered to return the implement, unless it was wholly worthless to both parties. From the testimony it cannot be said that it was valueless, and neither can it be said that there was a rescission.
“In order, however, that the purchaser be entitled to rescind the contract, he must return the property or offer to return it within a reasonable time. He cannot retain and use the property, and at the same time say he repudiates and rescinds the contract of the purchase.” (Cookingham v. Dusa, 41 Kas. 229; see, also, Aultman v. Mickey, 41 id. 348; Weybrich v. Harris, 31 id. 92.)
The defendant used the implement for seeding through three seasons without giving notice to plaintiff that it was defective or insufficient, and without returning or offering to return it. Indeed, he continued to use it- up to and after the maturity of the note, and the jury find that the offer to return was not made until payment was demanded. He first seeded 40 acres in wheat in 1885, which was all the wheat sown on his farm for that year; then, in the spring of 1886, he used the same implement for sowing his oats, and used no other; and afterward, in the fall of 1886, he used it for seeding 65 acres of wheat, although he says it had been shown to be defective and worthless. He claimed that it did not properly cover the seed, but left the greater part of it exposed upon the surface of the ground. This defect, if it existed, was a patent one, which the defendant, who used the implement, must have seen and known from the beginning. Within the authorities cited, it must be held that the continued use of the implement after learning of the alleged defects should be regarded as a waiver of defendant’s right to rescind, and that the offer to return was not made within a reasonable time.
If this was the sole defense, it might be said that judgment should go for the plaintiff; but as damages are claimed for a breach of the conditions of the warranty, we must look further. It may be said, however, that the testimony is insufficient to sustain a finding of rescission. To sustain his claim of damages, testimony was offered as to the quantity and value of the seed used, each seeding for three seasons; that most of the same was wasted by the defective seeder; that but little of the seed was covered or grew, and that he lost the use of the land on which the seed was sown. It was further shown that the defendant operated the implement the greater part of the time, and he testified that he noticed its defective operation, and that it covered scarcely any of the seed, but left it exposed on top of the ground. Notwithstanding this fact, the jury specially find that the defect in the seeder “was not easily seen.” This finding is in conflict with the testimony of the defendant. According to. his statements, the defect was an obvious one, and he described the appearance of the ground after the seeder passed over it, leaving the greater part of the seed on the surface. He testified that three-fourths of the wheat was uncovered, and he thought that ninety-nine hundredths of the oats were left on the top of the ground. This would be so manifest a defect that it could not be overlooked by anyone; and besides, he said that the defect in the seeder became worse, and its operation less satisfactory from the beginning. Much of the testimony that was offered in regard to damages suffered by him throughout the three seasons was given over objection, and should have been excluded. He could not enhance his damages by sowing crop after crop with the seeder, when he knew that the seed sown and the land on which it was sown would be wasted. If the defects are such as are claimed by the defendant, they were so apparent that he must have become aware of them within a day or two after beginning its use. If it was defective, he would be entitled to recover for the loss that occurred while he made a reasonable test of the fitness of the implement to perform the work for which he purchased it; but after he ascertained that it would not do the work, and was wasting the seed, he should have ceased its use, and cannot recover for the loss of seed, labor or land which was used or employed after that time.
There is a singular inconsistency between the claims of defects made by defendant and his conduct in continuing to use the seeder season after season, not discarding it until a payment of the purchase-price was demanded. When he saw three-fourths of the seed wheat uncovered and wasted in 1885, it is strange that he continued the use of the seeder until 40 acres were sown; and after he saw that only a little of the seed thus sown germinated, and that the crop was a failure, it is strange that he should sow his oat crop with it in the spring of 1886; and stranger still, that after seeing that ninety-nine hundredths of the oats were left on top of the ground, and that both the oat crop and the preceding wheat crop were failures from the defects in the seeder, he should use it again in the fall of 1886 for seeding about 65 acres in wheat, when no change or repair had been made of the implement. The testimony of losses occurring from seeding, after the defendant had a reasonable time to ascertain the unfitness of the implement and learned that it was worthless, should have been rejected.
Although errors are assigned on the instructions given by the court, we think the plaintiff in error has no cause to complain. The charge of the court fairly presented the case to the jury, but, for the errors pointed out, there should be a reversal of the judgment and a new trial. That will be the judgment of this court.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
In the fall of 1889, C. M. Plymell became a candidate for the office of county commissioner of the third district for Meade county, while he was holding the office of city clerk of West Plains, a city of that county, of the third class. At the election on the 6th of November, 1889, he was successful. He subsequently qualified and acted as county commissioner. Paragraph 1622, Gen. Stat. of 1889, reads:
“No persons holding any state, county, township or city office, or any employer, officer or stockholder in any railroad in which the county owns stock, shall be eligible to the office of county commissioner.”
This action was brought to oust Plymell from his office as commissioner. It is contended that he was ineligible to be elected to this office while holding the office of city clerk. It is further contended he was holding the office of city clerk of West Plains when he qualified as county commissioner, on the 26th day of November, 1889, and that he also continued to hold the office of city clerk after he entered upon the discharge of his duties as county commissioner, on the 13th day of January, 1890.
On the part of the defendant, it is admitted that he was the duly-appointed and acting clerk of the city of West Plains when he was elected to the office of county commissioner, but he claims that in November, 1889, he resigned the office of city clerk, and did not hold that office when he qualified as county commissioner, or when he entered upon the discharge of his duties as such officer.
Whether the defendant was ineligible to be elected to the office of county commissioner while holding the office of city clerk, we need not decide. The authorities upon this question are somewhat conflicting. (The State v. Clark, 3 Nev. 570; Carson v. McPhitridge, 15 Ind. 327; The State v. Murrey, 28 Wis. 96; Searcy v. Grow, 15 Cal. 121; Brady v. Howe, 6 Miss. 626; The State v. Fisher, 28 Vt. 714; Privitt v. Bickford, 26 Kas. 52.) We are not satisfied from the evidence introduced upon the trial that Plymell resigned his office as city clerk in good faith before the 13th day of January, 1890, when he entered upon the duties of the office of county commissioner. He testified that he resigned his office of city clerk between November 10 and 15,1889. Two members of'the city council, I. E. Smith and James Apple, support his evidence, and testify that the city council accepted his resignation. Plymell admits, how ever, that his resignation was not in writing, and it appears that no record thereof was kept by himself or the city council, and no written minute can be found in the recorded proceedings of the city council showing any such resignation. He testified, among other things, as follows:
“ Q,ues. Let me ask you, Mr. Plymell, if there was not a special meeting of the city council about the 23d day of April, 1890, at which you tendered your resignation as city clerk? Ans. I think there was.
“Q,. Were you city clerk at that time? A. I had resigned before, but it had not been put on the minutes of the meeting; so I handed in my resignation in writing'about that time.
“ Q,. Who were the city council at that time? A. I. E. Smith, C. E. Woolen, O. J. Loof borrow, James Apple, and Perry Marker.
“Q. Who was the mayor? A. M. S. Parsons.
“Q. Was your resignation accepted at that time by the council? A. It was.
“Q,. Did you perform any duties as city clerk of West Plains after the resignation you speak of, about November the 10th, 1889? A. After I first resigned, and after they had accepted my resignation, the acting mayor told me to act as city clerk and do the work until they could appoint another.”
On February 5,1890, Plymell, as city clerk, attested the signature of W. C. Gould, mayor, to an order to O. S. Rockey, county treasurer, in favor of E. M. Mears, the city treasurer of West Plains; and on April 21, 1890, as city clerk, he attested the signature of M. S. Parsons, mayor, to an order of C. S. Rockey, county treasurer, in favor of E. M. Mears, city treasurer of the city of West Plains.
R. W. Griggs testified that he was the county attorney of Meade county from September, 1888, until January 9, 1891; that on April 23, 1890, he wrote to Plymell informing him that he was illegally holding the office of county commissioner; that the next day he saw him, and he said, “I resigned the office of city clerk and filed a new bond,” or that he would do so shortly, and that would enable him to continue in office. Moses Black testified that he is the register of deeds for Meade county; that the defendant filed his official bond on November 27, 1889; that he filed another bond on the 24th day of April, 1890, and that he filed still another bond on the 2d day of May, 1890. W. C. Gould testified that he was the mayor of West Plains from April, 1889, until February, 1890; that the defendant was the city clerk from the spring of 1889 until February, 1890, and that he never resigned or offered to resign his office during that time. 'M. S. Parsons testified that he is the mayor of West Plains; that Plymell was the city clerk up to April, 1890. Henry B. Stone testified that he was a councilman of the city of West Plains from April, 1889, until January, 1890, and that Plymell was the city clerk and discharged the duties thereof during that time.
After his pretended resignation, in November, 1889, of the office of city clerk, Plymell continued to hold the office of city clerk, and continued to act as such officer for several months after he entered upon the discharge of the duties of his office of county commissioner. This is not permitted. A person holding a city office cannot, at the same time, hold the office of county commissioner. (Rogers v. Slonaker, 32 Kas. 191; Gen. Stat. of 1889, ¶ 1622.) Plymell violated the statute in attempting to qualify and hold the office of county commissioner for several months, while he was still city clerk.
The prayer of the petition will be granted, with costs.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below, brought on the 18th day of July, 1887, by Mrs. A. J. Hentig against J. W. Redden, asking that her title to four certain lots on Clay street in the city of Topeka be quieted, and that the defendant be forever barred from asserting any claim or interest to said lots or any part thereof. The defendant filed an answer containing a general denial, and also the plea of res adjudicata. The place of trial of the action was transferred from the district court of Shawnee county to the district court of Jackson county. Trial was there had before the court without a jury. No special findings were requested or made by tbe trial court, but the court, after hearing the evidence and the arguments, made a general finding in favor of the defend ant and against the plaintiff. Of this judgment, plaintiff complains.
We need refer only to the plea of res adjudieata, and the evidence offered in support thereof. Prior to March 1, 1878, J. J. Puterbaugh, of Logansport, Ind., was the owner of the lots in controversy. On March 1, 1878, Puterbaugh, then residing in Logansport, Ind., made an assignment of certain real and personal property to Thomas H. Bringhurst,. in trust for the benefit of his creditors. The lots in dispute were not mentioned in the deed of assignment. On the 22d of August, 1883, J. J. Puterbaugh and wife sold and conveyed by quitclaim deed to J. W. Redden, for the consideration of $120, the lots described in the petition. On the 2d day of August, 1878, Thomas H. Bringhurst sold and conveyed, by quitclaim deed to Charles S. Puterbaugh, of Cass county, Indiana, the lots for the consideration of $9. On the 25th day of September, 1883, Thomas H. Bringhurst sold and conveyed the same lots to Mrs. A. J. Hentig by quitclaim deed, for the consideration of $1. On the 18th day of May, 1887, Charles S. Puterbaugh sold and conveyed to Mrs. A. J. Hentig the same lots by quitclaim deed, for the consideration of $10. There is also evidence that he executed to Mrs. Hentig a prior deed, intending to convey these lots, in 1883. On October 1, 1883, J. W. Redden brought his action against Mrs. A. J. Hentig in the district court of Shawnee county, in the nature of ejectment, to recover the possession of the same lots. Mrs. A. J. Hentig, in her answer in that case, alleged that J. J. Puterbaugh, prior to the execution of his deed of August 22, 1883, to J. W. Redden, had sold and assigned all of his real and personal property to James H. Bringhurst, in trust for the benefit of his creditors. She further answered that she was the owner and in the possession of the lots by virtue of a tax deed. (Hentig v. Redden, 35 Kas. 471.)
Upon the trial, Charles S. Puterbaugh testified as follows:
“Q,ues. Was it at public or private sale that you bought these lots ? Ans. Public sale.
“Q. Was your father, Jacob J. Puterbaugh, present at that sale? A. If all his real estate was sold at one sale, he was present; if not, I am not sure.
“ Q,. What was the price at which the lots were sold to you by the assignee? A. $1 each, I think.
“Q,. Did you pay for them? A. Yes, sir. . . .
“Q. When did you make the first deed to Mrs. A. J. Hentig? A. I think it was in 1883 I made the first deed to Mrs. A. J. Hentig.
“Q,. Did she pay you for those lots? A. Yes, sir; she gave me $200, I believe.
“Q,. Did you make her a deed for it? A. Yes, sir.
“Q,. What became of that deed? A. Sent it to her. I have never seen it since, to the best of my knowledge.
“ Q,. Did you sell those lots and convey them in that deed by the same description as that used by the assignee in his conveyance to you? A. I believe I did, not knowing there was an error in the deed of assignment.
“Q,. What became of that assignment? A. I sent it to her. . . .
“Q,. Did you get any money for the second deed you made? A. Yes, sir, I did.
“Q. How much money did you get that time? A. $10.
“Q,. How did you come to make this second deed? A. Sometime in 1886 Hentig wrote me, claiming there was some error in the deed, and asked for a quitclaim deed later in 1887. He sent to Judge Nelson a quitclaim deed for me to execute, which I did.”
J. W. Redden testified on the trial, among other things, as follows:
“ Q. Were you present in the court-room in Topeka, Shawnee county, Kansas, when the case of J. W. Redden v. Hentig was on trial, which involved the title to this same property ? A. I was.
“Q. An action of ejectment of this same property? A. Yes, sir.
“ Q,. Did you see F. G. Hentig there ? A. I did.
“Q. What statement did he make then in your presence or hearing relative to his wife then having a deed from Bringhurst or Charles Puterbaugh, for the property in controversy ? A. Mr. Hentig had in his hand a paper that he said, I think, [he addressed the conversation to Mr. Harris,] was a deed from Charles S. Puterbaugh to A. J. Hentig for these lots in controversy, but he did not propose to offer it in evidence at that time; he had thought of doing it, but he would not.
“Q. What was the first name of the Puterbaugh that he said the deed was from ? A. Charles S. Puterbaugh, I think it was.
“Q,. When was this conversation? A. My recollection now is that it was in the trial of the case, in the spring of 1885.
“Q. At the time the case was being tried and before the trial was over with, and before judgment was rendered? A. Yes, sir; during the progress of the case.”
H. H. Harris testified:
“Were you present at the trial of the case of J. W. Redden v. A. J. Hentig, in Shawnee county, when the title of this property was in dispute? A. Yes, sir.
“Q. When was that? A. February, 1885.
“Q,. Did you see F. G. Hentig at that time? A. Yes; he appeared for himself and his wife.
“Q,. He was also a witness? A. Yes, sir.
“ Q,. What statement did he make about his wife having a deed from Charles S. Puterbaugh? .A. After we had submitted the evidence upon each side, and submitted to the court, (Judge Martin, who was trying it pro tem.,) Mr. Hentig got up and pulled a paper out of his pocket that looked like a deed, and said to me, ‘There is a deed to my wife for those lots, but I do not propose to try that title now; I am trying the tax title.’ I wondered why he did not offer it, and immediately turned around to Dr. Redden and told him it was a surprise to me that he had such a deed. I did not know why he did not offer it.
“ Q,. If Mr. Hentig made any statement as to whom that deed was from, state what it was. A. He said it was a deed from Charles S. Puterbaugh to his wife, Mrs. A. J. Hentig, the plaintiff in this suit.
“Q,. For what lots? A. For lots number 408, 410, 412, and 414, Clay street, Topeka, Kas.”
Upon rebuttal, F. G. Hentig testified that the statements of J. W. Redden and H. H. Harris were incorrect, and that he never had any deed from Charles S. Puterbaugh to his wife in his possession until long after the trial of Redden v. Hentig, referred to; that the only deed his wife ever had from Charles S. Puterbaugh was dated July 9, 1887.
The judgment of February 18, 1885, rendered in the ease of J. W. Redden v. Mrs. A. J. Hentig, recites, among other things, as follows:
“The court finds that at the commencement of this suit the plaintiff, J. W. Redden, was the owner in fee-simple of lots 408, 410, 412 and 414, on Clay street, in the city of Topeka, Has., and is such owner now, and that all the material allegations in the petition are true; second: The court further finds that Mrs. A. J. Hentig is in possession under two tax-deeds, one recorded May 9, 1877, and the other September 30, 1882, both issued on the tax sale of 1874, for the taxes of 1873; third: That said tax sale was void, first, because there was an unlawful combination of bidders at the sale, which prevented competition; the sale was made for illegal costs charged against the lots.”
Under the general finding of the trial court, we must assume that Mrs. A. J. Hentig had in her possession a deed from Charles S. Puterbaugh during the trial of the former case of J. W. Redden v. Mrs. A. J. Hentig, in the month of February, 1885. It is possible that Dr. Redden and Mr. Harris were mistaken as to what deed Mr. Hentig exhibited, and, therefore, that the trial court was led into error; but, upon the evidence presented, we cannot now interfere or disturb the finding. There was sufficient evidence to support it, and the trial court’s finding is conclusive. Therefore, under the evidence and the general finding of the trial court, we think its judgment must be affirmed, as the plea of res adjudicóla was fully sustained.
It has been said several times by this court, and also by many other courts, that “A judgment or decree of a court of competent jurisdiction is not only final as to the subject-matter, but also as to every other matter which the parties might have litigated in the case, and which they might have had decided.”
Under the provisions of the civil code, an action in the nature of ejectment, like the former case of J. W. Redden v. Mrs. A. J. Hentig, settles the title between the parties in favor of the one recovering the judgment. (Hurd v. Comm'rs of Harvey Co., 40 Kas. 92; Barrows v. Kindred, 4 Wall. 403; Mahoney v. Middleton, 41 Cal. 41; Marvin v. Dennison, 1 Blatchf. 159; Edwards v. Roys, 18 Vt. 473; Reed v. Douglas, Iowa, 37 N. W. Rep. 181.) This court, in Comm’rs of Marion Co. v. Welsh, 40 Kas. 770, said —
“That a general finding of title in the plaintiff — consequently of no title in the defendant — is a conclusive and binding decision against the defendant on the question of title, from whatever source it may be derived, and forever estops him from asserting a claim of title which existed at the time of the decree.”
If Mrs. Hentig had in her possession the deed from Charles S. Puterbaugh for the lots during the pendency of the former action of Redden against herself, (as we are bound to assume she did have, from the finding of the trial court,) she could have offered that deed in evidence for what it was worth, to sustain her title and her right of possession. If necessary, she could have filed a supplemental answer. The law does not favor a multiplicity of suits, and, where all matters in controversy between parties as to the title or possession of real estate might be finally ended in one action, the law requires that this should be done. Parties cannot try title to real estate by piecemeal, in separate and independent actions upon separate deeds or chains of title, when they have in their possession during the trial separate and different deeds. If the deed from Charles S. Puterbaugh to Mrs. Hentig executed in 1883 did not, on account of a mistake of the parties, contain a proper description of the lots, yet, if Charles S. Puterbaugh. had any title or interest therein, that title or interest was transferred to Mrs. Hentig in equity, if not in law, and therefore she ought to have asserted in the former action the deed which she first obtained from Puterbaugh. If Mrs. Hentig had obtained a new and distinct title to the lots after the final judgment in the former action, then that judgment would not have been res adjudicaba against her. But that is not this case. Under the finding of the trial court, she obtained her new and distinct title to the lots pending the former action. It was not A ° used m that action. It was too late to use this title after the final judgment in the former action.
The judgment of the district court will be affirmed.
All the Justices concurring.
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