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The opinion of the court was delivered by
Valentine, J,:
The plaintiff in this action, Thompson Trosper, claimed damages on account of the location and establishment of a county road across his land, in Saline county. As no damages were allowed him by the board of county commissioners of Saline county, he appealed to the district court, and the question as to whether he was entitled to any damages- or not was tried by the court and a jury, and the jury found a general verdict in favor of the board of county commissioners, and against the plaintiff; and also made special findings of fact, as follows:
“ 1. How many acres of land of the plaintiff are appropriated for this road ? A. About five acres.
“2. What damage is allowed the plaintiff for the land appropriated? A. Forty dollars.
“ 3. What damage is done to plaintiff’s farm by reason of the road cutting the pasture land from the creek? A. None.
“4. In what way, if any, is plaintiff’s land specially benefited by the road, and what is the value of such benefit?' A. Increased value of land by location of said road, to the amount of fifty dollars, caused by increased facilities for-traveling to and from the farm.”
The plaintiff then moved for a new trial, upon the grounds-—“First, the verdict is contrary to the weight of the evidence;, second, the verdict is contrary to law.”
The court below overruled the motion, and then the plaintiff made a motion for judgment in his favor for the sum of $40, upon the special findings of the jury, notwithstanding the general verdict. This motion was also overruled by the court below. The court below then rendered judgment upon the general verdict and special findings in favor of the defendant, the board of county commissioners, and against the plaintiff, for costs; and the plaintiff, as plaintiff in error, now brings the ease to this court for review.
We do not think that any error was committed by the court below. The evidence seems to be sufficient to sustain the verdict and the special findings of the jury; and neither the verdict nor the special findings are contrary to law; and upon the general verdict and special findings we think the court below rendered the proper judgment. It is true, that the jury found that the damage done to the plaintiff by-reason of the appropriation of his land for a road was $40; but they also found that the benefits he received by reason of the location of the road upon his land amounted to $50; and, this being the case, we do not think that the plaintiff' was entitled to judgment. It has been uniformly held in this state, that where the location of a public road through land increases its value, and it is not shown that such increased valué applies to other lands in the same vicinity-, nor that it is in common with the rest of the public; and where it also appears that such increased value is the direct and special result of the location of the road through this particular piece of land, such increased value is a proper subject of set-off to reduce the damages sustained byr the landowner. (Comm’rs of Pottawatomie Co. v. O'Sullivan, 17 Kas. 58; Tobie v. Comm’rs of Brown Co., 20 Kas. 14; Roberts v. Comm’rs of Brown Co., 21 Kas. 247.)
Of course, an increased value of land which applies to all the other lands in the same vicinity, oran increased value of land founded merely upon increased facilities for travel and transportation by the public in general, is not the kind of increased value which may be taken into consideration for the purpose of reducing the damages to be awarded to the land-owner. The only kind of increased value which can be taken into consideration in reducing the damages to be awarded to the land-owner, is such asís direct and special, as as to him and his land. The jury in the present case find that the plaintiff’s land was increased in value to the amount of $50, because of increased facilities for travel to and from the same. Now was this increased value general, or special? Was it common to the entire public, or was it special as to the plaintiff? Was it something that the people in general enjoyed, or was it something that applied particularly to the plaintiff and to his land? We think the answer to these questions must be that it was something which applied directly, and specially, and particularly to the plaintiff himself and to his land, and not to the public in general. This court has uniformly held that the right of the owner of a piece of land to have ingress to and egress from his land over a public highway, is a right or interest special to the owner of the land. (Venard v. Cross, 8 Kas. 248; C. B. U. P. Rld. v. Twine, 23 Kas. 585; C. B. U. P. Rld. Co. v. Andrews, 26 Kas. 702.)
The right of a person to pass from his land immediately into a public highway, or to pass from a public highway immediately upon his land, is something valuable, and is certainly something special to him. It is true, that when he passes from his land into the public highway, then his right to travel upon the public highway is a right and a benefit which he enjoys merely in common with all the rest,of the community; and for this right and benefit, whether valuable or not, nothing should be deducted from his damages. But the fight to pass from his laud directly into the highway, with the value of such right, whatever it may be, is a special right and benefit to him, and the value of such right and benefit may be deducted from the special damages which he has sustained by reason of the establishing of the highway. In the present casé, where the jury found that the benefit to the plaintiff was |50, they found that it was for the increased facility of traveling to and from his farm. The jury do not find any increased value of the land, or any benefit to the plaintiff of any kind, because of his right to travel on the road after he has once entered upon it. It is simply that benefit which he derives from having his land situated directly upon a public highway, so that he can pass directly from one to the other; so that he can have free and unobstructed ingress to and egress from ,his' farm. In the case of Roberts v. The Commissioners of Brown County, ante, it was shown that the road was of no benefit to the owner of the land for the purpose of ingress and egress. He had the benefit of other roads, and never used or traveled upon the road in question; and it was because the court in that case permitted the jury to reduce the plaintiff’s damages, not only because of special benefits to the plaintiff, but also because of supposed benefits resulting from increased facilities for travel and transportation by the public in general, and other supposed benefits of a general character enjoyed by the plaintiff, in common with the public in general, that the judgment of the court below in that case was reversed.
We think the judgment of the court below in the present case is correct-, and it will therefore be affirmed.
All the Justices concurring.
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Per Curiam:
The judgment in this case must be affirmed, on the authority of Jansen v. The City of Atchison, 16 Kas. 384, because it nowhere appears that the city had any notice of the defect, or knowledge of facts sufficient to put it upon inquiry, long enough before the time of the injury to repair the bridge.
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The opinion of the court was delivered by
Larson, J.:
This is an appeal by the State, pursuant to K.S.A. 22-3602(b)(l), from the dismissal on double jeopardy grounds of charges of driving under the influence and while suspended against Gary D. Beerbower. The dismissed charges had been refiled after an earlier case was dismissed by the court at trial when the State’s primary witness did not appear.
Factual background
In December 1995, a complaint was filed against Beerbower for DUI and driving while suspended. The case was set for trial in February 1996, but continued until March 25, 1996, when the record shows the following colloquy occurred:
“THE COURT: Beerbower, 95CR170. Do you wish an opening statement?
“SWARTS [county attorney]: No, Judge. I just need to check to see if my officers are in the courtroom.
“THE COURT: Do you wish an opening statement?
“GENTRY [defense counsel]: No, Judge.
“THE COURT: All right. Call your first witness then.
“SWARTS: It will be Officer Shaaban. S-h-a-a-b-a-n. Last time when we were here, Judge, Mr. Shaaban was told the case would have a new date. County Attorney’s Office neglected to tell him it was today’s date. Can we continue it? It was continued to the last week of March, and I didn’t give him a date, so he’s not out there. So I would ask for a few minutes because one of the officers is here.
“THE COURT: Well, call your second officer then.
“SWARTS: Well, hate to start and then find out the other goes to Tennessee or something.
“THE COURT: Well, Counsel, I’m ready to proceed. I’ll take a short recess while you call your first officer in and somebody in your office califs] to see if this officer [is] coming.
“SWARTS: He’s being called right now.
“THE COURT: What’s the second officer’s name?
“SWARTS: James Dean.
“THE COURT: Okay. All right. Why don’t you call Officer Dean, then we’ll proceed with that testimony.
“SWARTS: Well—
“THE COURT: Why don’t you get Officer Dean and we’ll start with that.
“SWARTS: I’d ask for a continuance, Your Honor. Officer Dean is here but Officer Shaaban is in Iowa.
“THE COURT: Okay. Counsel, I can’t grant you a continuance.
“SWARTS: All right, Judge.
“THE COURT: I’m going to dismiss the case.
“SWARTS: Yes, sir.
“GENTRY: Thank you, Your Honor.
“THE COURT: All right.”
The next day, Beerbower moved for a judgment of acquittal. This motion does not appear to have been ruled upon. A month later, the State filed a new complaint alleging the same counts that were previously charged. Beerbower moved to dismiss on grounds of double jeopardy.
The issue was briefed by both parties, with Beerbower claiming:
“Another of the State’s witnesses was present and available, but was not called. The Court inquired as to whether there was anything else which the State wished to present, and the State replied in the negative.” Beerbower also asserted the prior dismissal should be characterized as a judgment of acquittal because the State presented no evidence when called upon to do so.
The trial court dismissed the second case and, citing K.S.A. 21-3108(l)(c), ruled:
“It is clear that the case was in that posture when the prosecution’s witness did not arrive, the defendant objected to a continuance, the state could not offer any good reason as to why the witness failed to appear and the court dismissed the action. In this instance there is no doubt that the defendant was placed in jeopardy and to force him to trial a second time would not only violate the Kansas Statutes but also the double jeopardy clause of the United States Constitution.”
The court did not classify the prior dismissal as a judgment of acquittal, as requested by Beerbower, and did not rely upon K.S.A. 21-3108(l)(a).
A transcript of the dismissal of the first case was not available to the court at the time of its decision in the second case, which was based upon the court’s and the parties’ recollection of the prior proceedings.
The State’s appeal is claimed to be “[f]rom an order dismissing a complaint,” as allowed by K.S.A. 22-3602(b)(l). The State argues that Beerbower was never placed in jeopardy, as defined in K.S.A. 21-3108(l)(c), because the court had not begun to hear evidence.
Beerbower asserts that jeopardy attached when ihe State failed to present its case when called upon to do so and that he did not consent to the dismissal. Beerbower further contends that the K.S.A. 21-3108(l)(a) prohibition on a second prosecution does not require the defendant to have been placed in jeopardy and that the first case was concluded after a finding that the evidence was insufficient to warrant a conviction, effectively barring a second prosecution.
Standard of review
Although the trial court in this case appears to have based its decision on an inexact recollection of the previous proceedings, the facts shown by the transcript before us are uncontroverted. When facts are uncontroverted, a trial court decision that double jeopardy applies is subject to de novo review on appeal. State v. Harlin, 260 Kan. 881, 883, 925 P.2d 1149 (1996).
Arguments and authorities
In announcing its decision, the trial court ruled the second prosecution was barred under K.S.A. 21-3108(l)(c), but it also declared that allowing the second prosecution to continue would violate the Double Jeopardy Clause of the United States Constitution. Regarding this constitutional protection, we noted in State v. Freeman, 236 Kan. 274, 280-81, 689 P.2d 885 (1984):
“The double jeopardy clause of the Constitution of the United States protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The language of section 10 of the Bill of Rights of the Constitution of Kansas is very similar to the language contained in the Fifth Amendment of the Constitution of the United States. Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does section 10 of the Bill of Rights of the Constitution of Kansas. Therefore, the three underlying protections contained in the double jeopardy clause of the Constitution of the United States are contained in section 10 of the Bill of Rights of the Kansas Constitution.”
The Freeman court then set forth the two Kansas statutory provisions which relate to the constitutional double jeopardy protection when it stated:
“In order to implement and define the constitutional guarantees of the double jeopardy clause, the Kansas legislature enacted two statutes: (1) K.S.A. 1983 Supp. 21-3107, multiple prosecutions for the same act, and (2) K.S.A. 21-3108, effect of former prosecution. K.S.A. 1983 Supp. 21-3107 defines the right of the prosecution to charge more than one offense based on the same act and to convict of an included offense not specifically charged. It formulates the limitations upon unfair multiplicity of convictions and prosecutions. K.S.A. 21-3108 attempts to cover the complex problems of former jeopardy.” 236 Kan. at 281.
The trial court in our case primarily based its decision to dismiss the second prosecution on the provisions of K.S.A. 21-3108. The applicable portions of the statute at issue read:
“(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or
(c) Was terminated without the consent of the defendant after the defendant had been placed in jeopardy .... A defendant is in jeopardy when he or she is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.”
We will first resolve Beerbower’s assertion that his first trial resulted in a judgment of acquittal, thereby prohibiting a second trial pursuant to subsection (l)(a) of K.S.A. 21-3108. We will then proceed to examine whether subsection (l)(c) applies to bar a second prosecution against Beerbower.
The distinction between a judgment of acquittal or of dismissal is often not easily determined, although under the facts of this case, the judgment was clearly a dismissal. An excellent example of this problem is found in State v. Whorton, 225 Kan. 251, 589 P.2d 610 (1979), where a judgment of acquittal was requested, but the case was dismissed by the trial court. In a 4-3 decision, we stated: “[A] trial judge’s characterization of his own action does not control the classification of the action.” 225 Kan. at 254. As the record reflected that the trial court, correct or not, did resolve factual issues in the case, the majority held a judgment of acquittal actually occurred.
The dissent, on the other hand, focused on the portion of K.S.A. 21-3108(l)(c) that provides the case must have been “terminated without the consent of the defendant” and argued that because the trial was aborted by reason of the defendant’s motion to dismiss, it was therefore terminated with the consent and at the instance of the defendant. The dissent thus concluded that no interest protected by the Double Jeopardy Clause was invaded. 225 Kan. at 258 (Fromme, J., dissenting).
In Whorton, we defined a judgment of acquittal as “ ‘a resolution correct or not, of some or all of the factual elements of the offense charged.’ ” 225 Kan. at 254. Although in both Whorton and Lowe v. State, 242 Kan. 64, 67, 744 P.2d 856 (1987), we found the dismissals were actually judgments of acquittal, the factor we deemed important was that both courts had resolved factual issues prior to the dismissal.
In the present case, the record establishes the trial court resolved absolutely no factual matters prior to ordering the dismissal. Although Beerbower requested an order of acquittal on the day following the dismissal, which would have required the application of double jeopardy under K.S.A. 21-3108(l)(a) and also made the case ineligible for appeal by the State pursuant to K.S.A. 22-3602(b)(1), it is clear that a judgment of acquittal was never issued in the first case. Nor did the trial court make any statement to the effect it was dismissing the case due to lack of evidence supporting the charge. We find, based on the record, that the dismissal of the first prosecution was not a judgment of acquittal.
We next briefly address Beerbower’s contention that jeopardy need not have attached under K.S.A. 21-3108(1)(a) in order to bar a second prosecution. In Serfass v. United States, 420 U.S. 377, 392, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975), the Court emphasized that the bar on a subsequent prosecution “has no significance in this context unless jeopardy has once attached and an accused has been subject to the risk of conviction.” Thus, Beerbower’s conten tions that jeopardy does not apply to K.S.A. 21-3108(l)(a) and that this subsection would bar reprosecution even if jeopardy did not attach are clearly erroneous.
In our analysis of K.S.A. 21-3108(l)(c), we must, as a preliminary matter, decide whether Beerbower consented to the termination of the former prosecution. If the facts reveal he did so consent, then he is not entitled to protection under subsection (l)(c) from a second prosecution.
Under the facts of our case, it is clear that the trial court on its own motion, after refusing the prosecutor’s request for a continuance, dismissed the action. The record establishes that the court did not give Beerbower’s counsel an opportunity to either object or consent to a continuance. While Beerbower did not request the dismissal, after the court said the case was dismissed, Beerbower expressed appreciation through his counsel’s statement, “Thank you, your honor.”
Our initial question then is whether the first case was terminated with or without Beerbower’s consent when the trial court on its own motion dismissed his case. In State v. Schilling, 238 Kan. 593, 602, 712 P.2d 1233 (1986), we addressed the question of whether jeopardy had attached to the defendant pursuant to K.S.A. 21-3108(l)(c) when the State had been forced, under threat of contempt, to dismiss the case. It was not deemed critical to our determination whether the defendant had consented to the dismissal, although there was no indication of the defendant’s objection. Our opinion moved direcdy to a statement that jeopardy had not attached because a jury had not been impaneled, nor had a trial begun to the court.
The situation in Schilling appears similar to the one before us. Additionally, in State v. Reynolds, 140 Kan. 269, 272, 36 P.2d 323 (1934), we said:
“Appellant cites authorities to the effect that mere silence of the defendant, or his failure to object or protest against the discharge of the jury, does not constitute a consent to such discharge of the jury or in any way waive his constitutional rights against being subjected to a second jeopardy. To this we fully agree, but we can readily see a distinction between such conduct and the active pressing of an objection the sustaining of which will produce the same result.”
See State v. Stiff, 117 Kan. 208, 209, 234 Pac. 700 (1924); see also Annot., 63 A.L.R.2d 782, 791 (noting that cases are divided as to whether silence is deemed to be consensual).
In order to reach the more fundamental question of whether Beerbower was placed in jeopardy, we interpret the “without the consent” portion of K.S.A. 21-3108(1)(c) as involving situations where a defendant did not request the dismissal or explicitly give consent to the dismissal through his or her actions. It appears that under the facts of this case, the dismissal occurred without either Beerbower’s consent or affirmative acts, which requires us to address whether he was placed in jeopardy at the first trial as defined in subsection (1)(c).
Under the clear wording of K.S.A. 21-3108(1)(c), a defendant is not in jeopardy in a case tried to the court until the court begins to hear evidence. The wording of the statute critical to this case is “when the court has begun to hear evidence.” If the facts show this condition has been satisfied, jeopardy statutorily attaches. If it has not, jeopardy has not attached and the second prosecution may properly continue.
We have previously held that “begun to hear evidence” in a trial to the court means when the first witness for the state is sworn. In noting that double jeopardy is not violated by interlocutory appeáls of pretrial rulings by the State, we declared in State v. Griffin, 246 Kan. 320, 322, 787 P.2d 701 (1990), that “jeopardy does not attach until the jury is sworn or, in a trial to the court, when the first witness for the prosecution is sworn.” We similarly stated in State v. Ruden, 245 Kan. 95, 99, 774 P.2d 972 (1989): “The Kansas cases that have allowed a motion for judgment of acquittal to bar an appeal have involved a situation in which the trial has begun and jeopardy has attached. ... In a bench trial, jeopardy attaches when the first witness is sworn.” See Crist v. Bretz, 437 U.S. 28, 37 n.15, 57 L. Ed. 2d 24, 98 S. Ct. 2156 (1978); Serfass v. United States, 420 U.S. at 388. This appears to be a clear recognition that jeopardy does not attach until a witness is sworn. However, in Serfass, the case upon which Crist relies, the Court merely pointed out: “In a nonjury trial, jeopardy attaches when the court begins to hear evidence.” 420 U.S. at 388. The footnote in Crist apparently interpreted Serfass to mean that a court does not begin to hear evidence until a witness is sworn.
The line for the time when jeopardy attaches in jury trials — when the jury is sworn — was clearly drawn by the Supreme Court’s decision in Crist, 437 U.S. at 37-38. The Court declared this line was the “ lynchpin for all double jeopardy jurisprudence’ ” and could neither be moved forward nor backward by the states. Our statutory provision in K.S.A. 21-3108(1)(c) clearly implements the line drawn in Crist for jury trials. However, the line for bench trials has not been so clearly delineated, as the question of when a court has begun to hear evidence is obviously open to dispute. As the Crist decision demanded the adoption of a bright line rule for determining when jeopardy attaches in a jury trial, its statement that jeopardy does not attach in a bench trial until the first witness is sworn appears also to be indicative of where the line must be drawn in trials to a court.
We have no Kansas cases exactly on point where charges were dismissed under circumstances similar to those existing here. However, in discussing K.S.A. 21-3108(1)(c) in State v. Fink, 217 Kan. 671, 675, 538 P.2d 1390 (1975), a speedy trial case, we explained:
“Our law is clear that the mere pendency of an indictment, information, or complaint does not constitute jeopardy. (Cox v. State, 205 Kan. 867, 873, 473 P.2d 106 [1970].) The dismissal ox.nolle prosequi of a criminal charge entered prior to the arraignment and trial of an accused is not a bar to a subsequent prosecution for the same offense. (Kenreck v. State, 198 Kan. 21, 24, 422 P.2d 894 [1967] and authorities cited.) The same is true where a charge has been dismissed against a prisoner prior to the expiration of the time limitation, and a second information is filed.”
The United States Supreme Court in Collins v. Loisel, 262 U.S. 426, 429, 67 L. Ed. 1062, 43 S. Ct. 618 (1923), pointed out:
“Even the filing of an indictment, followed by arraignment, pleading thereto, repeated continuances, and eventual dismissal at the instance of the prosecuting officer on the ground that there was not sufficient evidence to hold the accused, was held, in Bassing v. Cady, 208 U.S. 386, 391, not to constitute jeopardy.”
The question in this case deals with an order of dismissal by the court, but we also point out that county attorneys have the power to determine what charges to file and a continuing right to dismiss charges at their discretion. See State ex rel. Rome v. Fountain, 234 Kan. 943, 947-48, 678 P.2d 146 (1984), and the cases cited therein. When a county attorney exercises this right of dismissal, jeopardy will normally not be deemed to have attached. But see State v. McClanahan, 259 Kan. 86, 101, 910 P.2d 193 (1996) (holding that if a prosecutor’s misconduct was intentional and substantially prejudiced the defendant’s right to a fair trial, double jeopardy would prohibit a new trial).
Further, in State v. Bierman, 248 Kan. 80, 88-89, 805 P.2d 25. (1991), we held that “brought to trial” for purposes of computing a speedy trial deadline under K.S.A. 22-3402(1) does not mean when a defendant is placed in jeopardy. The precise issue in Bier-man was whether Bierman’s right to a speedy trial was violated when voir dire commenced on the 90th day following arraignment, but jeopardy under K.S.A. 21-3108(l)(c) did not clearly attach until the 91st day, when the juiy was sworn. Under the facts, we held the speedy trial obligation under K.S.A. 22-3402(1) was not violated.
Based upon our analysis of all of these authorities, Beerbower was not placed in jeopardy when his case was called for trial and no evidence was presented. Although it may have been obvious to the parties that the State would not have been able to present á case without the missing witness, the record before us indicates that once the State’s continuance request was denied, the court immediately ruled that it was dismissing the case. This is not an acquittal, nor is it the basis for imposition of the protection of K.S.A. 21-3108(l)(c).
An examination of the law in other jurisdictions supports this conclusion. In Annot., When Does Jeopardy Attach in a Nonjury Trial?, 49 A.L.R.3d 1039, the cases summarized all hold that at least some evidence must have been introduced or a witness sworn before jeopardy attaches. This is consistent, with the ruling and decision we make herein.
We summarize our holding as follows:
1. The trial court’s order in the first case was a dismissal and not a judgment of acquittal.
2. The trial court had not begun to hear evidence in the first case, so a subsequent prosecution was not barred as double jeopardy by the provisions of K.S.A. 21-3108(c)(l) or the Kansas or United States Constitutions.
Reversed and remanded for trial.
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The opinion of the court was delivered by
Allegrucci, J.:
This appeal involves a wage dispute arising out of the construction of the El Dorado Correctional Facility. The five named plaintiffs (Employees) and 199 proposed class members were wage and hour employees of Van Doren Industries, Inc., (Van Doren) a subcontractor on construction of the El Dorado Correctional Facility for the State of Kansas. Walton Construction Company, Inc., (Walton) was the prime contractor. Employees allege that they are third-party beneficiaries of both the contract between Walton and the State and the contract between Walton and Van Doren. Both contracts allegedly contain Davis-Bacon Act (40 U.S.C. § 276a [1994]) prevailing wage provisions, which were required by the legislature’s appropriation for construction. L. 1989, ch. 31, § 9. Employees’ petition in the district court sought to have a class certified, the difference between the required wage and the amount actually paid determined for each class member, and judgment for the amount of the indebtedness entered against Van Doren, Van Doren’s principal, Walton, and United States Fidelity and Guaranty Company (USF&G), which issued Walton’s performance bond. The district court dismissed the action, and Employees appealed. This appeal was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Employees base their wage claims on the contract between Walton and the State and the contract between Walton and Van Doren. Employees “contend their claims are independent of any statute.” They cast themselves as third-party beneficiaries of the contracts.
Employees concede that “the contracts that are the basis of this lawsuit are not yet in evidence” but “contend that the contracts they intend to introduce into evidence after discovery will be unambiguous and not subject to judicial interpretation.” (Emphasis added.)
The district court’s decision to dismiss the case was based on its conclusion “that the aforementioned Session Laws incorporate and implement the Davis-Bacon Act in its entirety and that the Davis-Bacon Act and [therefore] said Session Law apply to only those people that were actually working at the physical construction site.”
Almost no factual record has been developed in this case. In the journal entry dismissing Employees’ action, the district court made one finding of fact — none of the named plaintiffs worked at the site of construction of the El Dorado Correctional Facility. With regard to that finding, the district court stated that “plaintiffs’ counsel acknowledges that none of the named plaintiffs fit within this description,” the description being of “those people that were actually working at the physical construction site”; thus, the court held that as a matter of law, Employees were covered by neither the federal nor the state law.
On appeal, Employees do not take issue with the district court’s finding. Neither do they expressly confirm or deny that none worked on site. They come closer to confirming than denying the fact in the following paragraph of their statement of facts: “Van Doren Industries, Inc., again, with the approval of Walton Construction Company, Inc., the prime contractor, sub-contracted the positioning of the panels on site to yet another sub-contractor.” The page referenced by Employees is in the document entitled “Walton Construction Company, Inc.’s Objection to Plaintiffs’ Request to Certify Class.” Examination of the page referenced by Employees does not reveal support for their statement. Another page from the same document, however, contains the following assertions:
“Van Doren was a manufacturer/supplier of precast wall and floor systems used in many types of building construction. Precasting is customarily not performed at a jobsite because of the desirability of climate control, which is available only when manufacturing is undertaken inside a manufacturing facility. Van Doren’s primary manufacturing facility was located in Hays, Kansas. To meet its schedule with respect to the El Dorado project, Van Doren established a facility as an extension of its Hays plant. Van Doren leased a pre-existing building near El Dorado, Kansas located over five miles from the construction site.
“Van Doren entered into an agreement with Walton which called for Van Doren to provide labor, material and equipment necessary to manufacture the precast concrete work according to the prime contract documents. Van Doren, in turn, and after discussion with Walton and Allied Steel Construction Co., contracted the actual erection and related work on the precast units to Allied.
“Employees of Van Doren did not erect any of the units on the jobsite. This work was performed by Allied. If any work was performed by Van Doren personnel at the site, then it was solely touch-up and corrective work which would be a very minor percentage of the total precast work. Any Van Doren employees working at the construction site were paid Davis-Bacon wages.”
The Davis-Bacon Act, 40 U.S.C. § 276a et seq., since 1931 has required contractors to pay local prevailing wage rates to laborers employed on building projects financed in whole or in part with federal money. Allegations in Employees’ petition in the district court link the federal statutory requirement to construction of the El Dorado Correctional Facility:
“7. That prior to commencing construction of the El Dorado Correctional Facility in 1990, Walton Construction Company, Inc. entered into a contract with the State of Kansas, that by its terms, provided that the employees of its subcontractors be paid in accordance with prevailing wages determined in accordance with job classifications and wage rates prescribed under the federal Davis-Bacon act which would apply to a federally funded project at the location of any such state correctional facility.
“8. That Van Doren Industries, Inc. on July 20,1990, entered into a subcontract with Walton Construction Company, Inc. providing that Van Doren Industries, Inc. would pay its employees the minimum wages prescribed by the contract of Walton Construction Company, Inc.
“9. That said contracts were entered into in accordance with Chapter 31 of the 1989 Session Laws of the State of Kansas, a copy of which is attached hereto as Exhibit A and incorporated herein by reference as fully as if set out at length herein, which mandated the inclusion of‘Davis-Bacon’ provisions in the contracts of contractors and subcontractors in the construction of correctional facilities.
“10. That the United States Department of Labor, Wage and Horn Division, pursuant to a request of the Department of Administration, Division of Architectural Services, of the State of Kansas made a project based wage determination for the construction of the El Dorado Correctional Facility, a copy of which is attached hereto as Exhibit B and incorporated herein by reference as fully as if set out at length herein.”
Chapter 31 of the 1989 session laws authorized capital improvement projects, including the correctional facility at El Dorado, and made appropriations for the projects for the fiscal years ending June 30, 1989, and June 30, 1990. L. 1989, ch. 31. Section 9 of Chapter 31 conditioned appropriations on
“the construction contracts . . . [being] based on bid specifications prescribing that employees of any such contractor or any subcontractor shall be paid in accordance with prevailing wages determined in accordance with job classifications and wage rates prescribed under the federal Davis-Bacon act which would apply to a federally funded project at the location of any such state correctional facility .. . .”
Employees argue it was error for the district court to construe contracts that were not before it. Employees seem to argue that the district court failed to accept the allegations of their petition as true, as is required on a motion to dismiss. As a consequence of the district court’s failure, the argument continues, the district court mistakenly dismissed the action on the ground that Employees were not covered by the Davis-Bacon Act.
Employees contend that a decision based on their petition would have been founded on the twin premises that their wage claims are based solely on the contracts and are independent of any statute. This contention, however, runs immediately afoul of the allegations in Employees’ petition. The substantive portion of paragraph 7 of the petition is drawn verbatim from the state appropriations bill. Paragraph 8 refers to the statutory language in paragraph 7. Paragraph 9 incorporates the state appropriations bill, § 9, into the petition “as fully as if set out at length.” Thus, Employees fail to include in their pleading any provision of the contracts requiring the payment of additional wages independent of the state appropriations bill.
Although not required, it would have been a simple matter to attach copies of the contracts to the petition. K.S.A. 60-209(h) also allows the reasonable identification of a contract and “stating the substance thereof or it may be recited at length in the pleading.” It is the responsibility of a plaintiff whose recovery depends on a contract provision, including a third-party beneficiary, to conform to K.S.A. 60-209(h). Here, in lieu of attaching copies of the contracts to the pleadings, Employees chose to set out relevant provisions of the contracts in the petition. As stated above, we do not find support for Employees’ claim in those provisions set out in the petition.
Pursuant to K.S.A. 60-212(b)(6), the legal sufficiency of Employees’ claim is to be determined on the well-pled facts of their petition. Thus, if the district court accepted as true the allegations of Employees’ petition, the court’s decision whether to dismiss the action would have been based on construction of the state appropriations bill. That appears to be how the district court reached its decision. It was not necessary for the contracts to be before the district court for it to interpret the pertinent portion of the state appropriations bill. Its text was available in the session laws. In these circumstances, dismissal before the contracts had been pro duced was not premature. The controlling issue, therefore, is the interpretation of the state appropriations bill.
The pertinent text of L. 1989, ch. 31, § 9, states:
“No moneys appropriated for fiscal year 1990 by this act or any other appropriations act of the 1989 session of the legislature for the department of corrections for construction of any new state correctional facility . . . unless the construction contracts to be entered into for any such state correctional facility ... are based on bid specifications prescribing that employees of any such contractor or any subcontractor shall be paid in accordance with prevailing wages prescribed under the federal Davis-Bacon act which would apply to a federally fimded project at the location of any such state correctional facility . . . .”
There seems to be a verb missing so that a first reading of this long sentence is not very enlightening. No one questions that the purpose of § 9 is to condition appropriations or distribution of appropriated funds on certain wage requirements. The condition is what is at issue here.
The legislature required that the contractor and subcontractors on the El Dorado Correctional Facility pay their employees “in accordance with prevailing wages . . . prescribed under the federal Davis-Bacon act which would apply to a federally funded project” at that location. As Employees contend, the correctional facility is not a federally funded project. The legislature required, though, that wages be computed as if it were a federally funded project.
The Davis-Bacon Act requires that the advertised specifications for federal contracts shall include the following statement:
“[T]he minimum wages to be paid various classes of laborers and mechanics .. . shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State in which the work is to be performed.” 40 U.S.C. § 276a(a).
The same subsection limits the wage requirement to persons “employed directly upon the site of the work.” 40 U.S.C. § 276a(a).
Employees’ position is that “Davis-Bacon does not apply because no federal funds were involved in the project.” In other words, on the ground that federal money is not being used, they argue for enforcement of the wage computation provisions of the Davis-Bacon Act without application of its limitation on wage requirements. They do not examine § 9 of the state appropriations bill to see whether federal funds are a deciding factor.
Employees do not explain how they read the previously quoted portion of § 9 of the appropriations bill. It must be inferred, however, that they would make the phrase “which would apply to a federally funded project” modify the Davis-Bacon Act. The sensible reading of the pertinent portion of § 9 is that the “which” phrase modifies “wages.” “Wages” also would be modified (or described) by “prevailing” and “prescribed under the federal Davis-Bacon act.” If the “which” phrase modifies “wages,” the resulting meaning is contrary to what Employees advocate. In that construction, contractors and subcontractors would be required to pay the wages that would be paid on a federal project. Employees concede that wage earners who do not work direcdy on the construction site of a federal project do not get the benefit of the Davis-Bacon Act prevailing wage requirements. Thus, contractors and subcontractors would not be required to pay the prevailing wages, which are prescribed under the Davis-Bacon Act, to wage earners who do not work directly on the construction site. In Employees’ construction, on the other hand, § 9 would require contractors and subcontractors to pay their employees in accordance with prevailing wages prescribed under the Davis-Bacon Act, but not be limited by the on-site requirement. In Employees’ construction, the “which” clause would serve to explain that the Davis-Bacon Act would be applied only in the hypothetical situation of federal funds being involved. There is nothing in the appropriations bill that would indicate anticipation of any federal funds for construction of the correctional facility at El Dorado. L. 1989, ch. 31. Employees suggest no reason why the legislature would bother to explain application of a federal statute when its application was not foreseen. Nor do they explain why they would be entitled to the benefit of the Davis-Bacon Act if it were applicable only where federal funds were involved.
The well-known principles that govern interpretation of a statute include the following: “When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995). “ ‘There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ” Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992) (quoting City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 221, 696 P.2d 409 [1985]). “[T]he legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results.” Todd, 251 Kan. at 520.
Although § 9 of the appropriations bill is overlong and “underverbed,” the intent of § 9 seems plain enough. The legislature conditioned appropriations on construction workers being paid according to certain requirements. It would serve no discernible purpose to interpret the conditions portion of § 9 as if it were formulated to explain that the Davis-Bacon Act applies to federally funded projects. Instead, the “which” clause we have been focusing on logically and reasonably modifies wages. Whether § 9 is viewed as unambiguous or whether the rules regarding legislative intent are applied in construing it, the sensible conclusion is that it requires contractors and subcontractors to pay the wages that would be paid on a federal project. The wages that would be paid on a federal construction project are those required by the Davis-Bacon Act. The Davis-Bacon Act does not require the payment of the prevailing wage to off-site workers. Thus, the trial court did not err in dismissing the action because Employees did not work on the site where the El Dorado facility was being constructed.
In light of this holding, we do not need to consider the denial of the motion to certify the class of wage earners. The decision of the district court is affirmed.
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The opinion of the court was delivered by
Six, J.:
This first impression case arises from a condemnation initiated by the City of Wichita (City) to acquire land for its $6 million ice rink project. The issues are tied together in a land acquisition Gordian knot. Our task is to resolve the controversy without harming established concepts of eminent domain law. In doing so, we untie rather than arbitrarily cut the knot.
The City appeals two orders entered by the district court. In the first order, after the properly owner R.E.M. Properties (REM) appealed the initial condemnation award, the district court held that it had no jurisdiction over either REM or its property (tracts 47 and 48). The City failed to list REM and tracts 47 and 48 in the condemnation petition for the land on which the ice rink was to be built. The City did not amend the petition to add tracts 47 and 48 until after that initial award. In the second order, in a partial ruling on REM’s motion for expenses following the City’s failure to deposit the second condemnation award, the district court held that the City had abandoned the condemnation proceeding, had no title or right to possession, and had to surrender possession and remove all ice rink improvements.
Our jurisdiction is under K.S.A. 60-2102(a) (final order or injunction) and K.S.A. 20-3018(c) (transfer on our motion).
The Issues
The issues are whether: (1) the district court had jurisdiction to consider statutory defects in the condemnation proceeding raised by REM after REM appealed the initial condemnation award but before trial of that appeal; (2) the City acquiesced in the district court’s ruling that it had no jurisdiction over REM or its property at the time of the initial condemnation award; (3) the district court erred in determining that the initial condemnation award was void; and (4) the district court erred in determining that the City had abandoned its condemnation and in entering injunctive relief against the City.
We affirm in part, reverse in part, and remand. The ice rink survives. Although the City has taken REM’s property, it has abandoned the condemnation proceeding. REM is entitled to reasonable expenses under K.S.A. 26-507(b) and has an inverse condemnation claim against the City.
FACTS
The facts are unique. Neither the parties nor our independent research have located a similar condemnation case. In November 1994, the City passed an ordinance approving the acquisition of private property by eminent domain to build a public ice skating rink. The published ordinance listed 17 tracts to be taken, including REM’s property, tracts 47 and 48. On December 22, 1994, the City filed its petition in eminent domain to acquire the necessary property. The petition listed only seven of the tracts shown in the ordinance and the names and addresses of the record owners and lienholders for those tracts. Tracts 47 and 48 were not listed, and REM was not named as a party. Notice of the filing of the petition was published, stating that the petition was to be heard on January 6,1995. The notice did not list tracts 47 or 48 or name REM. The affidavit of mailing said that copies of the notice were mailed to persons shown in the notice (not including REM).
The district court found that the City had the power of eminent domain and that the ordinance described the property being condemned. An order dated January 6,1995, appointed three appraisers and set the time for filing of the appraisers’ report.
Notice of a public hearing on the appraisers’ report was published. The public hearing notice showed REM in the caption, listed nine tracts, including tracts 47 and 48, and listed the record owners and lienholders of all of those tracts (including REM). An affidavit of mailing stated that copies of the notice were mailed to the persons shown in the notice.
The appraisers’ report was filed. Regarding notice of the public hearing before the appraisers, the report provided:
“On the 13th day of January, 1995, we mailed copies of said published notice of our Public Hearing to the Plaintiff and all Defendant parties named in the petition whose addresses were known to us or could with reasonable diligence be ascertained, the proof of which mailing has been filed in this action.”
The report listed damages for the taking of five tracts, 34, 37, 47, 48, and 53, for a total of $191,080. Tracts 47 and 48 were valued at $29,000. An order approving the appraisers’ report and allowing the appraisers’ fees and costs was entered. The City deposited the total appraisers’ award, plus fees and costs with the clerk of the district court. Notice of the deposit was mailed to REM by the clerk’s office. The City mailed notice of the appraisers’ award to the landowners shown in the appraisers’ report (including REM). The notice informed the landowners that they had 30 days from the date of filing of the appraisers’ report to appeal the award.
An undated order filed January 30,1995, granted the City leave to file an amended petition without further notice or hearing to add two tracts, the owners, and interested parties “who were inadvertently omitted from this proceeding and who are necessary parties hereto.”
On March 1, 1995, REM filed a notice of appeal of the appraisers’ award for tracts 47 and 48, asserting that REM was dissatisfied with the award and also reserving the right to contest both irregularities in the proceeding and jurisdiction. The next day, the City filed its amended condemnation petition, naming REM in the caption and listing nine tracts, including 47 and 48, and their record owners and lienholders.
Trial on REM’s appeal of the appraisers’ award was scheduled for December 5,1995. On November 21, 1995, REM filed a motion for an order remanding the matter to a new panel of court-appointed appraisers for another damage determination, arguing that the court lacked jurisdiction as to the first appraisers’ award. REM reasoned: (1) Neither the landowner nor tracts 47 and 48 were listed in the initial condemnation petition; (2) the landowner was not named as a party and was not sent any notice of the peti tion; (3) the order granting the City leave to file an amended petition was obtained ex parte and was not filed until January 30, 1995; and (4) the City did not file its amended petition until Márch 2, 1995, after approval of the first appraisers’ report.
The City countered that ány notice problem should have been addressed before appealing the award and, by appealing, REM could only challenge die amount of the award. The City also árgued that the district court, lacked jurisdiction to order a remand once an appeal was filed. In an oral ruling on November 27, 1995, the district judge advised that REM’S motion would be granted. However, the judge said that he would delay entering the order to allow the City to decide whether to appeal. The judge claimed that the City’s counsel later told him that an order would not be necessary. No one appeared for trial oh December 5, 1995, and in February 1996, REM’s appeal of the $29,000 award was administratively dismissed for lack of prosecution.
. The City, proceeded to obtain another appraisers’, award for tracts ,47 and 48 and published notice of hearing on the fifing of the City’s, amended petition during, the week starting April 19, 1996. The notice fisted REM and tracts 47 and 48, and provided that hearing on file amended petition would be held before the district court on May 7, 1996. Notice of the hearing was mailed to REM. Three appraisers were appointed (two had been appraisers on the first panel). On May 24, 1996, the appraisers filed their report awarding $132,325 as damages for the taking of tracts 47 and 48. The appraisers’ report was approved and appraiser fees and costs allowed and paid by the City. The City notified REM of the fifing of the appraisers’ report but did not deposit the second award with the clerk of the district court. No appeal was taken. By the time of the second appraisal, the City had possession of tracts 47 and 48, the existing improvements hád been demolished, and construction of the ice rink was underway.
On July 8, 1996, REM filed a motion requesting an award of expenses and reasonable attorney fees under K.S.A. 26-507, asserting abandonment because of the City’s failure to deposit the second award. The City opposed the ifiotion, contending there was no abandonment because the City had deposited the first award of $29,000.
At the conclusion of the hearing on the motion, the district judge said: “Court’s going to award the return of the property and the removal of the improvements from that property at the expense of the condemning authority.” The judge reiterated his oral ruling of November 27, 1995, that the court had no jurisdiction as to tracts 47 and 48 at the time of the initial $29,000 award.
REM’s attorney prepared proposed journal entries reflecting the court’s rulings, but the City objected. The parties appeared for hearing on the disputed journal entries. The court made a detailed recitation of the facts and adopted the journal entries prepared by REM’s attorney, one reflecting the court’s November 27, 1995, oral ruling that it had no jurisdiction as to the $29,000 award and the other, concerning REM’s motion for expenses, holding that: (1) the City had abandoned tracts 47 and 48, (2) REM was the owner of 47 and 48, (3) the City had no right to possession, (4) title was quieted against the City, and (5) the City should surrender possession to REM and remove the improvements. The judge left open the issue of REM’s expenses and attorney fees until REM recovered its property.
The City has appealed both orders. We granted the City’s application for a stay pending appeal, along with REM’s request for expedited consideration. The district court’s order for removal óf improvements would have caused the ice rink to be demolished. (At oral argument we were informed by counsel for REM that tracts 47 and 48 are now under the ice.)
DISCUSSION
A de novo standard of review applies; statutory interpretation and conclusions of law are involved. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
District Court Jurisdiction
' The City argues that the district court lacked jurisdiction to consider any statutory defects in the condemnation proceeding or enter any order correcting, modifying, or amending the first appraisers’ report after REM appealed the first award. According to the City, REM’s remedy after the first award was to pursue an inverse condemnation action because the court lacked jurisdiction to grant REM any relief in the condemnation proceeding. REM responds that it could have filed an inverse condemnation action at that point, in view of the invalidity of the first appraisers’ report, but the .City’s election to seek the second appraisers’ report negated any need to file such an actioii.
We recently summarized the Eminent Domain Procedure Act, K.S.A. 26-501 et seq.; (the Act) in Landau Investment Co. v. City of Overland Park, 261 Kan. 394, 930 P.2d 1065 (1997). In Landau, we affirmed the district court’s order in the appeal of the condemnation award allowing the condemnor to amend the petition and appraisers’ report under K.S.A. 60-215(b) to correct the- legal description of the property condemned. The City of Overland Park Sought to condemn certain drainage and temporary construction easements on property owned by Landau: Although the legal descriptions in the city’s condemnation petition placed the easements approximatfely 200 feet from the correct location, all of the parties, including the city, Landau, the appraisers, and the contractor worked from the correct legal description provided, by-the project plans prepared by the engineers. However, the appraisers’ report also confirmed the same erroneous legal descriptions used in the petition: Landau appealed the condemnation award. The city discovered the error and notified Landau during trial preparation. Landau filed an inverse condemnation action. The city then moved to amend the original condemnation petition and appraisers’ report to correct the legal description. The district court granted' the amendment. Landau failed to show any prejudice. The district court made the appropriate findings for an interlocutory appeal. We affirmed, deciding that “the mistake in description was not the kind of ‘vital failure’ which ‘vitiates the proceeding.’ ” 261 Kan. at 403 (citing Dick v. Drainage District No. 2,187 Kan. 520, 527, 358 P.2d 744 [1961]). In-disagrééing with Landau’s argument that the district court was without jurisdiction to authorize amendments to pleadings on appeal from a condemnation award, we relied on K.S.A. 60-215(c) and allowed the amendment correcting the legal description to relate back to the time of the filing of the petition.
“It must again be emphasized that all parties relied upon the correct description in the project plans, that the property appraised was the property intended to be condemned, that all parties proceeded with full knowledge of the property sought to be condemned, that neither the parties nor the court was deceived or misled, and that the record contains no evidence of any prejudice to the landowner. In fact, granting the amendment under these circumstances preserves judicial economy, reduces costly expense and delay, and serves to promote justice in these proceedings.” 261 Kan. at 410.
The amendment in Landau ensured that trial of the appeal would be based on the correct property description. Landau did not consider the question of whether statutory defects rendering the condemnation proceeding void could be raised after an appeal is filed. However, Landau is authority for allowing nonprejudicial corrections to the petition and appraisers’ report after an appeal of an award has been filed. A sensible extension of Landau permits consideration, after filing an award appeal, of whether the condemnation proceeding is void because of statutory defects in the petition.
In arguing that once an appeal is taken from an award, the district court has no jurisdiction to consider an attack on the validity of a condemnation proceeding, the City relies on State v. Boicourt Hunting Ass'n, 177 Kan. 637, 644-45, 282 P.2d 395 (1955). However, Boicourt did not involve a claim that the condemnation was void because the condemnor failed to comply with the statutory eminent domain procedure.
In In re Condemnation of Land for State Highway Purposes, 235 Kan. 676, 683 P.2d 1247 (1984), after the appraisers’ report was filed, the landowners filed several motions in a highway project condemnation proceeding initiated by the Secretary of Transportation. The motions sought to challenge condemnor’s compliance with certain federal and state legislation and the district court’s finding that the takings were for lawful purposes. Landowners also sought to have the construction plans produced and made a part of the petition, to extend the appraiser’s proceedings, to amend the taking, and to disqualify an appraiser. The district court denied the motions. The landowners appealed the condemnation award and denial of the motions. The first question was whether there was jurisdiction to consider denial of the motions. The landowners argued that jurisdiction existed under K.S.A. 60-2102(a)(3) (proceeding involving title to real estate) or (a)(4) (final order). We held that the landowners had no right to appeal the adverse ruling on the motions. We did not say that the motions could not be filed in the condemnation proceedings, but held that an interlocutory appeal was not allowed. None of the motions raised statutory defects in the condemnation proceeding. Like Boicourt, In re Condemnation of Land for State Highway Purposes is distinguishable.
If a landowner attacks the condemnation proceeding in a separate action and chooses not file an appeal of . the condemnation award, then the landowner assumes the risk that the court may not find the condemnation proceeding void, and the time to. appeal the condemnation award will have expired. Had the landowner raised the statutory defects in the condemnation proceeding instead of in a separate action, those statutory defects possibly could have been corrected and trial of the award appeal avoided. Here, REM was denied input in the initial appraisal process. After REM appealed the first award, it raised the statutory defects. The district court ruled that those defects rendered the condemnation proceeding void for lack of jurisdiction over REM’s property. The City then followed the statutory procedure in obtaining a second appraisal, and REM did not pursue its appeal of the first award.
Although a landowner may attack the validity of a condemnation in a separate proceeding, as in Dick, 187 Kan. 520, there is no provision in the Act precluding a landowner from raising statutory defect arguments in the condemnation proceeding when the defects render the proceeding void. Absent waiver, estoppel, or laches, a landowner may raise statutory defects either before or after the appeal of an award. Although K.S.A. 26-508 provides that an appeal is limited to the issue of compensation, raising statutoiy defects that render the condemnation proceeding void before trial of the appeal is not foreclosed.
Does Appeal of the Award Waive Statutory Defects
in the Proceeding?
The City argues that REM waived any defects in the condemnation proceeding by appealing the initial condemnation award. REM points out that it expressly reserved'jurisdiction objections in its notice of appeal.
In Unified School District v. Turk, 219 Kan. 655, 549 P.2d 882 (1976), the landowners, Mr. and Mrs. Turk, received the required statutory notices and did not appeal the award in a school district’s condemnation action. However, later, after the school district deposited the award and took possession, Mrs. Turk moved for reconsideration of thé appraisers’ report. Mrs. Turk attempted to raise various defects in the proceeding, claiming she did not receive any notices, did not understand English and was ignorant of the proceedings, and that the property was worth substantially more. The district court ordered that the appraisers meet with the Turks; consider whether a larger award should be made, and file a supplemental report. The supplemental report reaffirmed the initial award. The Turks appealed the supplemental award. The school district moved to dismiss and appealed the order reconvening the appraisers and extending the time to appeal the condemnation' award. We reversed the order reopening the condemnation proceedings and affirmed dismissal of the Turks’ appeal of the condemnation award. We agreed with the school district’s contention that the district court did not have authority to reopen the proceedings after the time to appeal the original award h‘ad expired, “absent any failure to comply with thé statutory requirements which would render the proceedings void.” 219 Kan. at 658. The inference from Turk is that had statutory defects rendered the proceedings void, a reopening may have been proper.
Turk is distinguishable from this case because it did not involve a statutorily defective condemnation proceeding. The Turks requested another appraisal after claiming not to have received sufficient notice of the first appraisal. They did not appeal the first condemnation award. The question of whether statutory defects in the proceeding could have been raised after appeal of the award was not considered.
The City cites early road condemnation cases in arguing that REM waived any defects in the condemnation proceeding once the initial condemnation award was appealed: See Wilson v. Cloud County, 90 Kan. 107, 132 Pac. 1176 (1913); Wilson v. Cloud County, 87 Kan. 798, 126 Pac. 642 (1912); and Flagel v. Jackson County, 83 Kan. 709, 112 Pac. 622 (1911). The three early cases did not consider failure to comply with the statutory condemnation procedure and, thus, also are distinguishable.
The City’s Acquiescence
REM argues that the City’s actions in pursuing a new appraisal establish acquiescence in the November 1995 ruling (journalized in the first order in this appeal). However, because the issue of the validity of the initial condemnation award must be addressed in our review of the second order (granting the injunctive relief), we find it unnecessary to consider the acquiescence question.
Statutory Defects in the Initial Condemnation Award
Under the provisions of K.S.A. 26-502, the condemnor’s only obligation in naming parties is to name in the petition the owners and all lienholders of record and any party in possession. Morgan v. City of Overland Park, 207 Kan. 188, Syl. ¶ 6, 483 P.2d 1079 (1971). The property rights taken by a condemnor are to be determined by the language in the petition and in the appraisers’ report. A condemnor bears the burden of drafting its petition to show the limitations in its taking. Hudson v. City of Shawnee, 246 Kan. 395, Syl. ¶ 2, 790 P.2d 933 (1990).
The City did not comply with K.S.A. 26-502 and K.S.A. 26-503. The City failed to name REM and to list tracts 47 and 48 in its initial condemnation petition and also failed to include REM in the initial publication and mailing following the filing of the petition. REM was not notified that its property (tracts 47 and 48) was being condemned by the City, and was not given notice of the date fixed for the court to consider the initial petition and to appoint appraisers. The record is conflicting about whether REM received notice of the January 25, 1995, appraisers’ hearing. REM was denied the opportunity of any input into the selection of appraisers. REM was given that opportunity after the City filed its amended petition and a different panel of appraisers was appointed (although two of the three were the same), resulting in a substantially higher award.
REM would have known that its property was being condemned, at the earliest, after the initial appraisers were already appointed. Even if notice was given of the hearing of the initial appraisers’ report, and that notice also listed tracts 47 and 48, REM could have been confused because it was not given any notice that a condemnation petition had been filed against its property. The ex parte order authorizing the petition amendment did not mention REM or tracts 47 and 48. The order was not filed until January 30, 1995, the date the first appraisers’ report was filed. As previously discussed, the petition amendment adding REM and tracts 47 and 48 was not filed until March 2,1995. These vital failures in the initial petition (the jurisdictional instrument) and in statutory notice void the proceeding. See Dick, 187 Kan. at 527. The large discrepancy between the first ($29,000) and second ($132,325) appraisals implies that REM was prejudiced by the statutory defects in the first appraisal.
The City argues that Landau supports the ex parte petition amendment because we allowed a petition and appraisers’ report amendment after appeal of the award. We observed in Landau that the statutory defects were not sufficiently serious to vitiate the proceeding. K.S.A. 26-502 provides in part: “No defect in form which does not impair substantial rights of the parties shall invalidate any proceeding.” K.S.A. 26-503 provides in part: “No defect in any notice or in the service thereof shall invalidate any proceedings.” The City reasons that REM had notice of the intent to condemn tracts 47 and 48 because the two tracts were included in the initial ordinance authorizing the condemnation and in the order approving the petition. However, the City did not pursue condemnation against all of the properties listed in the ordinance. Although it is conceivable that a condemnation petition might include tracts excluded from the appraisers’ report (if the City decided not to pursue condemnation of certain tracts initially thought to be needed), K.S.A. 26-506 does not allow the appraisers’ report to include tracts and record owners not listed in the petition. Unlike Landau, the defects in the City’s initial condemnation petition and notice impaired substantial rights to the prejudice of REM.
K.S.A. 26-504 sets forth the necessary findings that the judge must make “from the petition” before the condemnation can go forward. If the petition fails to fist the property to be condemned, it is impossible for the judge to make any of die findings to allow condemnation to go forward as to that property. K.S.A. 26-504 was not complied with. ,
The City claims that under K.S.A. 60-215(b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties,, they shall be treated in all respects as if they had been raised in the pleadings.”) its March 2, 1995, petition amendment adding REM and tracts 47 and 48 to the proceeding was proper, although it was made after approval of the first appraisers’ report. REM responds that no analogy to 60-215(b) should be drawn here because REM never received notice of or consented to this ex parte .amendment. The City’s K.S.A. 60-215(b) assertion is not well taken.
The district court’s , determination that the first condemnation award was void is affirmed.
Timing of REM’s Motion for Remand
Although REM reserved its statutory defect arguments in its notice of appeal of the first award filed March 1, 1995, it did not .raise those arguments for hearing until November 1995 when it filed the motion for remand (only a month before the appeal was scheduled for trial). A review of the court file in March 1995 would have revealed those statutory defects. It is puzzling why REM waited so long. The City had taken possession of the property, cleared it, and commenced construction of the ice rink. However, REM did not seek to stop the ice rink project; it only sought a valid appraisal. REM’s delay, in filing the motion for remand did not prejudice the City. Also, as discussed below, after the district judge granted REM’s motion, the City proceeded to obtain the second appraisal.
Effect of City’s Failure to Deposit Second Award
While Retaining Possession
K.S.A. 26-507(a) provides:
“Payment of award; vesting of rights. If the plaintiff desires to continue with the proceeding as to particular tracts it shall, within thirty (30) days from the time the appraisers’ report is filed pay to. the clerk of the district court the amount of the appraisers’ award as to those particular tracts and court costs accrued to date, including appraisers’ fees. Such payment shall be without prejudice to plaintiff’s right to appeal from the appraisers’ award. Upon such payment being made the title, easement or interest appropriated in the land condemned shall thereupon immediately vest in the plaintiff, and it shall be entitled to the immediate possession of the land to the extent necessary for the purpose for which taken and consistent with the title, easement or interest condemned. The plaintiff shall be entitled to all the remedies provided by law for the securing of such possession.”
Although the City timely deposited the initial condemnation award of $29,000, it has not deposited the second award for tracts 47 and 48. The first appraisers’ report was void as to REM. The City’s argument that it has title by virtue of that deposit fails.'The $29,000 on deposit is insufficient to cover the second award. The City failed to comply with K.S.A. 26-507(a). Title and the right to possession have not vested in the City. K.S.A. 26-507(b) provides that if the deposit is not timely made, then “condemnation is abandoned as to those tracts.” However, under K.S.A. 26-507(a), the condemnor is entitled to possession only after deposit of the award. K.S.A. 26-507 does not contemplate a condemnor taking possession and using property before payment of the award.
The statutoxy requirement that the condemnor deposit the award before taking possession is firmly based in our early railroad right-of-way condemnation cases. See, c.g., Railway Co. v. Wilson, 66 Kan. 233, 69 Pac. 342 (1903); L.N. & S. Rly. Co. v. Whitaker, 42 Kan. 634, 22 Pac. 733 (1889); St. Jos. & D. C. Rld. Co. v. Callender, 13 Kan. 496, Syl. ¶ 1 (1874).
REM claims that the City’s failure to deposit the second award constitutes abandonment. Here, the City took possession of tracts 47 and 48 after deposit of the initial award of $29,000 on February 2, 1995, and has constructed a $6 million ice rink on the property. “Taking” in a condemnation proceeding means the acquiring of possession and right of possession and control of tangible property to the exclusion of the former owner. Steck v. City of Wichita, 179 Kan. 305, 313, 295 P.2d 1068 (1956). Although the City has not yet paid for the property, clearly, there has been a “taking.” The City has had exclusive and continuous possession of the property since sometime shortly after February 2, 1995.
Abandonment is controlled by K.S.A. 26-507, and the City’s failure to timely deposit the second award establishes abandonment of this condemnation proceeding. Under K.S..A. 26-507(b), REM is entitled to seek its reasonable expenses.
We acknowledge cases from other jurisdictions applying the rule that no abandonment can take place once die condemning authority takes possession of the property arid uses it to the point that the status quo cannot be restored. See, e.g., Carl Roessler, Inc. v. Ives, 156 Conn. 131, 140, 239 A.2d 538 (1968) (In highway condemnation proceeding, where highway commission took actual possession and demolished and removed buildings located on property to be condemned, once there had been a “taking,” the condemnor could not unilaterally abandon part of the acquisition arid require the laridowner to return part of the deposit received.); and. Urban Renewal Agency of City of San Antonio v. Abdo, 562 S.W.2d 872, 874 (Tex. Civ. App. 1978) (Urban Renewal Agency was not entitied to dismiss condemnation proceedings, where it had taken possession of landowners’ rental property, continued possession for an extended time, certain fixtures and irirprovements had been removed, and some tenants had moved out.). However, in both Ives and Abdo, unlike this case, the condemning authority sought, and the condemnee opposed, abandonment.
Inverse Condemnation
Inverse condemnation is an action initiated by the landowner and is available when private property has been taken for public use without formal condemnation proceedings and where it appears there is no intention or willingness of the taker to bring the action. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, Syl. ¶ 1, 671 P.2d 511 (1983). Because the City has taken REM’s property and abandoned this condemnation proceeding, REM has an inverse condemnation claim against the City. See Dick, 187 Kan. 520, Syl. ¶ 1. The proper measure of damages in a condemnation proceeding should be based upon the conditions as they existed at the time the landowner’s land was appropriated. Collingwood v. Kansas Turnpike Authority, 181 Kan. 43, 48, 310 P.2d 211, vacated and reversed in part on reh., 181 Kan. 838, 317 P.2d 400 (1957).
The Mandatory Injunction to Remove the Skating Rink
The City argues that the Act did not give the district court the authority to quiet title and order injunctive relief against the City, especially when REM sought no such relief in its motion for expenses. The City also argues that its due process rights were violated by the district court’s sua sponte injunction because the City had no notice that any injunctive relief was being sought. REM responds that the district court was merely carrying out the legislative directives of the Act by affirming that the City’s abandonment left title in the landowner and made the City’s possession illegal. REM also responds that the position the City took in opposing REM’s motion for expenses invited the district court to rule on the question of whether the City had title or any right to possess the property.
Several factors weigh against the injunctive relief imposed by the district court. REM has not contested the City’s eminent domain power or argued that the taking of the property for the ice rink is unlawful. As the City points out, REM never asked for injunctive relief. The City took possession shortly after depositing the $29,000 award in February 1995 and, since then, has cleared the improvements and built an ice rink. See Murray v. Kansas Dept. of Transportation, 239 Kan. 25, 28, 716 P.2d 540 (1986) (denial of injunctive relief to halt condemnation of certain property upheld based on laches; condemnees waited 16 months before challenging the project, and construction was well underway). REM’s only concern has been with the amount of compensation to be received for its property. Although the City has not yet paid full compensation for the property and does not have title to it, the amount of compensation due having not yet been judicially determined, no useful purpose would be served in requiring the City to demolish the ice rink and return REM’s property. The status quo has been irretrievably altered. During,oral argument REM’s counsel was emphatic in saying that “their ice rink. is . not in danger.” Demolition as injunctive relief is not appropriate.
Conclusion
The initial $29,000 award is void for failure to comply with statutory procedure. The district court’s ruling on that award is affirmed. The City has abandoned this condemnation proceeding by failing to deposit the second award. REM is entitled to seek reasonable expenses under K.S.A. 26-507(b). REM has an inverse condemnation claim against the City by virtue of the City’s taking.
The district court is affirmed in part and reversed as to the injunctive relief imposed. The case is remanded for proceedings consistent with the opinion.
Abbott, J., not participating.
E. Newton Vickers, senior judge, assigned.
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The opinion of the court was delivered by
Larson, J.:
Essex T. Sims appeals his jury convictions of one count of first-degree murder, one count of criminal discharge of a firearm at an occupied building, one count of criminal possession of a firearm, and two counts of aggravated battery, resulting from his participation in a drive-by shooting.
Factual background
In late March 1995, Courtney Fair, Randy Lattimore, and Michael Vann were all shot on the porch of the home of Aletha Thomas on North Fountain Street in Wichita, Kansas, during a drive-by shooting. Fair suffered head and shoulder wounds and was permanently blinded in his right eye. Vann sustained bullet wounds to his back and leg. Lattimore was shot through his chest and abdomen and bled to death while undergoing surgery.
Those present at the scene included Thomas’ grandsons, William Robinson and Al Smith, her granddaúghter Aretha Ransom, her step-granddaughter Angela Fair, and some of their friends, including Carlton Stokes.
Police investigators recovered 15 shell casings primarily along the street outside Thomas’ residence; but discovered one inside her kitchen. Two handguns, a Glock 9mm and a Grendel .380, were found hidden inside Thomas’ clothes dryer. Two of the shell casings had been fired from the Glock, and none had been fired from the Grendel. Eight of the shell casings had been fired from a different 9mm weapon, two more from a different .380 weapon, and all four of the remaining casings from an additional 9mm weapon. Two vehicles parked across the street from Thomas’ home were damaged by gunfire.
Both Courtney Fair and William Robinson recognized Essex Sims as one of the persons who had shot at them. Fair, who knew Sims, told the police that Sims had fired a gun at the house from the passenger side of a brown Monte Carlo driven by Sims’ brother Cleave. Although he did not tell the police that he recognized the Sims brothers, Robinson described and identified the brown Monte Carlo. Michael Vann, who was visiting from out of town and did not know the Sims, told the police the first car was a ‘78 or ‘79 brown Monte Carlo and was able to describe its passenger as one of the shooters. Vann said the shooter was a light-skinned black male, with hair 1 or 2 inches long, wearing a North Carolina University hat and shirt.
The morning after the shooting, a police detective showed Fair and Vann a photo array containing a picture of Sims. Fair selected Sims from the array. Although he was not positive, Vann stated the shooter was either Sims or another person in the array.
One of Thomas’ neighbors, Shenina Martin, was outside when the shooting occurred. She saw three cars, each with several occupants, traveling slowly, almost bumper to bumper, down the street. She heard gunfire originating from the cars and some return fire from the house. She heard between IQ and 20 shots.
Sims and Cleave were arrested, charged, and jointly tried. The prosecution, believing the shooting was gang related, moved to introduce evidence of gang affiliation and practices through the testimony of Officer Kent Bauman, a gang expert. Angela Fair, Shenina Martin, and Al Smith had all indicated that about 20 minutes prior to the shooting, at least one car had driven by Thomas’ home and gang signs had been exchanged between the car’s occupants and individuals on Thomas’ porch. After a hearing on the motion, the trial court ruled the evidence would be admissible.
At trial, Officer Bauman defined a gang and listed the police' criteria for determining whether an individual was either a member or an associate of a gang. He identified Sims as a known member of the Neighborhood Crips and testified that the Crips wore North Carolina gear. Cleave was identified as a Crips associate due to the fact that he had been arrested for this gang-related drive-by shooting with another gang member. Randy Lattimore was known to be an associate of the True Boys in June 1993, a gang connected with the Folks or the Black Gangster Disciples at die time of trial. Michael Vann was identified as more or less an associate of the Random Street Crips while he was in Wichita. Courtney Fair was identified in October 1992 as a Fountain Street Crip, but was discovered to be a Random Street Crip during the investigation of the shooting.
Bauman testified that flashing signs can be a sign of disrespect for a gang and could be sufficient provocation to conduct a drive-by shooting. He declared that gang feuds and rivalries change from year to year and that many things could start a feud, ranging from disrespect, to territory infringement, to drugs, to girlfriends, to flashing signs. Bauman stated that Al Smith told him a car had driven by Thomas’ home; a person had flashed a sign for “BK,” meaning “Blood killer”; and an unknown girl from Thomas’ yard had flashed back “B” for “Blood.”
This evidence was introduced without objection. Following Bauman’s direct examination, the court instructed the juiy on the limited purpose for which the gang testimony could be received. The State had not mentioned the testimony regarding gang affiliation or practices during its opening statement. Sims’ attorney, however, told the jury during opening remarks about the gang affiliations of the various individuals.
At trial, none of those who had been present at Thomas’ house said they heard return fire or saw anyone firing back. No one admitted to possessing the weapons found hidden in the clothes dryer.
During the presentation of Sims’ defense, his witnesses pointed out persons who were known to have been present at the shooting, but who were never interviewed by the police. Sims’ aunt, who lived down the street from Thomas, testified that he often came to visit his cousin at her home. Sims also called the owner of one of the vehicles that had been damaged, who said she had found a bullet in her front seat which had not been collected by the police.
Cleave’s final witness was Lamont Sanders, who was riding in the back seat of the Monte Carlo when gunfire broke out. He claimed he was going with the Sims to see their cousin. He denied having knowledge of any cars following Sims’ vehicle or of any weapons in the vehicle. Sanders stated that when they turned onto Fountain Street, he saw Carlton Stokes move to the comer of Thomas’ house, pull out a Glock, and point it at Sims’ car. He ducked down onto the seat when the shooting began and did not look back up until several blocks later.
Sims did not object to the court’s proposed jury instructions. The court refused to give a self-defense instruction requested by Cleave. The jury returned a guilty verdict on all counts. The court imposed a sentence of life for the felony-murder charge and consecutive sentences for the other counts, totalling an additional 140 months.
Although Sims’ notice of appeal was filed 1 day late, we issued a show cause order, after which we decided to retain jurisdiction.
Admission of gang affiliation and practices evidence was not error.
Sims did not object to the introduction of the gang evidence at trial. In fact, his attorney initiated the discussion of gang affiliations during his opening statement prior to the presentation of the State’s case. We previously held in State v. Cheeks, 258 Kan. 581, 593, 908 P.2d 175 (1995):
“A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404 states that 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 State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994); State v. Johnson, 255 Kan. 252, 254, 874 P.2d 623 (1994). By failing to make a contemporaneous objection at trial, the defendant failed to preserve this issue for appeal.”
In State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994), we reiterated that a party must still make a contemporaneous objection at trial even when an unfavorable ruling on an evidentiary question is received prior to trial.
Nowhere does Sims point out a contemporaneous objection to any of the gang evidence testimony he now claims was prejudicial. Furthermore, some of the complained-of testimony was elicited in response to questions during defense cross-examination. This issue has not properly been preserved for appeal.
Sims claims that we have unlimited de novo review over this issue as it infringes on his constitutional right to a fair trial, citing Southwest Nat’l Bank of Wichita v. AGT Constr. Mgt., Inc., 241 Kan. 257, 265, 736 P.2d 894 (1987). This case provides absolutely no support for his proposition. Sims later refers to Estelle v. Williams; 425 U.S. 501, 503, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976), to claim that the right to a fair trial in a criminal case is a fundamental liberty secured by the Fourteenth Amendment. However, as we pointed out in State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993), where the defendant argued he was deprived of his right to a fair trial by rulings preventing him from presenting his theory of defense, such a right is subject to statutory rules and case law interpretations of rules of evidence and procedure. Sims was bound by the requirement of a contemporaneous objection at trial, and the admission of this evidence cannot form grounds for a new trial.
At oral argument, Sims asserted the gang evidence was so prejudicial that we should disregard the contemporaneous objection requirement and examine the merits of the issue. Yet, it is clear that our standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. State v. Haddock, 257 Kan. 964, 978, 897 P.2d 152 (1995). “Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court’s view.’’ 257 Kan. at 978.
Bauman’s testimony regarding gangs and gang affiliation helped explain the lack of apparent motive for this crime, regardless of the strength or weakness of the State’s evidence of gang activity. As gang activity was the State’s proposed motive for the drive-by shooting, such evidence was clearly relevant and related to the crimes charged. The evidence was therefore admissible under our prior holdings of State v. Tran, 252 Kan. 494, 505, 847 P.2d 680 (1993), and State v. Toney, 253 Kan. 651, 655, 862 P.2d 350 (1993), and its admission cannot be deemed an abuse of discretion. The evidence was properly admitted, received a proper limiting instruction, and was not the subject of a proper objection. This issue has no merit, even had it been properly preserved for appeal.
Sims also claims that the admission of the gang testimony violated K.S. A. 60-455, which bars the admission of evidence of other crimes or civil wrongs. This point was not raised below. We stated plainly in State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992), that points not presented to the trial court may. not be raised on appeal. In addition, we held in State v. Bailey, 251 Kan. 156; 166, 834 P.2d 342 (1992), that membership alone in a gang is not a crime or civil wrong. The fact that Sims might have been a member of a gang was not evidence that he had committed other crimes, and the jury was so instructed. In addition to the failure to properly object or raise this issue below, defendant presents no error in this issue requiring the grant of a new trial.
Felony murder does not merge with the underlying conviction of criminal discharge of a firearm.
Again, this issue was not raised to the trial court. As such, it is not properly before us on appeal. However, an identical argument was made on appeal in State v. Alderson, 260 Kan. 445, 459, 922 P.2d 435 (1996), where we pointed out that the legislature determined that criminal discharge of a firearm, K.S.A. 21-4219, does not merge with homicide, citing K.S.A. 21-3436(a)(15).
Sims contends that our ability to reverse a case if a jury instruction was clearly erroneous, despite the failure to object, equally applies if a charge was not valid, as the juiy would have been erroneously instructed on the crimes for which it could convict. This validity of a charge argument is not analogous to a clearly erroneous instruction argument. Additionally, Sims goes on to claim that despite the failure to raise the issue below, we lack jurisdiction to sustain a conviction based on an unconstitutional construction of the felony-murder statute. This contention is incorrect, as Sims offers no support for finding the statute to be unconstitutional. Instead, he reiterates case law on the merger doctrine decided prior to the enactment of the statute at issue.
This statute, K.S.A. 21-3436, clearly states that the two crimes of felony murder and criminal discharge of a firearm do not merge and provides:
“(a) Any of the following felonies shall be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 and amendments thereto as not to be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401 and amendments thereto:
(15) any felony offense as provided in K.S.A. 21-4219 and amendments thereto.”
K.S.A. 21-4219 sets forth the crimes involving criminal discharge of a firearm.
We find that Alderson is exactly on point and clearly correct. Under the cited Kansas statutes and the Alderson decision, the two crimes do not merge and this point fails.
Failure to give a self-defense instruction was not clearly erroneous.
Although codefendant Cleave Sims’ attorney did request a self-defense instruction, no such request was made on Essex Sims’ behalf. In refusing to give the self-defense instruction, the trial court explained: "With respect to the self-defense instruction, the defense is we were there but we didn’t do anything and, therefore, there’s no testimony that would justify a self-defense instruction, and I’ll refuse to give it.”
We said in State v. Valentine, 260 Kan. 431, 433, 921 P.2d 770 (1996):
“ ‘Absent an instruction request, an appellate court may reverse on the failure to give a jury instruction only if the trial court’s failure to instruct was clearly erroneous. The failure to instruct is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.’ [Citation omitted.]”
In State v. Tyler, 251 Kan. 616, 625, 840 P.2d 413 (1992), we stated that béfore a defendant is entitled to a self-defense instruction, relevant evidence must be presented that (1) the defendant honestly and sincerely believed it necessary to kill in self-defense and (2) a reasonable person would have perceived the necessity of self-defense.
Sims argues the evidence indicates the jury could have found he acted in self-defense because (1) the Glock found inside the Thomas home had fired at least two rounds; (2) two vehicles across the street from the Thomas home were damaged by gunfire; (3) a neighbor heard rapid return fire from the Thomas home; and (4) Lamont Sanders testified he saw Carlton Stokes aim a Glock at Sims’ vehicle right before gunfire commenced.
If Sims had acknowledged participation in the gunfire, then this evidence would likely have required the self-defense instruction. However, Sims’ theory of defense was that he did not participate in the shooting. He attempted to discredit witnesses who said they saw him holding ¿ weapon. Sanders, the primary defense witness, denied having knowledge of weapons in Sims’ car or of any cars following behind Sims’ vehicle.
There was absolutely no evidence proving the subjective component of self-defense, that Sims honestly believed he had to kill in self-defense. The trial court’s failure to instruct on self-defense was not clearly erroneous, and this issue fails.
Consecutive sentences for felony murder and criminal discharge of a firearm do not violate double jeopardy,
Sims also raises this point for the first time on appeal. We said in State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993), that constitutional grounds asserted for the first time on appeal are not properly before the appellate court to review.
Additionally, this issue has no merit as we have stated numerous times that where the same act or transaction violates two distinctly different statutory provisions, the test to be applied to determine if there are one or two crimes is whether each statute requires proof of an element the other crime does not. Where one statute requires proof of an additional or different element, the crimes are not the same, even though the proof of the crimes may substantially overlap. See State v. Dunn, 243 Kan. 414, 432-33, 758 P.2d 718 (1988).
Pursuant to K.S.A. 21-3436, a large number of underlying felonies may support a felony murder charge. It is well-established law in Kansas that multiple convictions and punishments for both felony murder and the underlying felony do not violate double jeopardy. In State v. Holt, 260 Kan. 33, 46, 917 P.2d 1332 (1996), we cited a long fist of cases where we have upheld separate convictions for both. This issue was not only improperly raised, but is also without any merit.
Affirmed.
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The opinion of the court was delivered by
McFarland, C.J.:
This is a 42 U.S.C. § 1983 (1994) action by certain inmates of the Norton Correctional Facility challenging the assessment of monthly service fees against them for the administration of their trust accounts pursuant to K.A.R. 44-5-115(a) (1996 Supp.) on the grounds that it is violative of their due process rights and the Ex Post Facto Clause of the United States Constitution. The district court upheld the assessment of the fees, and plaintiffs appeal therefrom.
The statute from which the regulation arises is K.S.A. 1996 Supp. 75-52,139, passed by the legislature in 1994 (L. 1994, ch. 227, § 10). It provides:
“The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary’s custody may be assessed fees for various services provided to offenders and for deductions for payment to the crime victims compensation fund.”
From the statute, the Secretary of Corrections promulgated K.A.R. 44-5-115 (1996 Supp.), the pertinent part of which provides:
“(a) Each inmate in the custody of the secretary of corrections shall be assessed a charge of one dollar each payroll period, not to exceed $12.00 per year, as a fee for the facility administering the inmate’s trust account. The facility shall be authorized to transfer the fee from each inmate’s account from the balance existing on the first of each month. In the event an inmate has insufficient funds on the first of the month to cover this fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the fee. All funds received by the facility pursuant to this provision shall be paid on a quarterly basis to the crime victims compensation fund.”
Plaintiffs contend that this regulation is violative of their due process rights under the United States Constitution by virtue of its requirement that the fees collected are to be paid to the crime victims compensation fund as opposed to being used to defray the costs of administering the trust accounts. This identical issue has been determined adversely to plaintiffs herein in Weinlood v. Simmons, 262 Kan. 259, 936 P.2d 238 (1997), which case is controlling on this issue.
Plaintiffs next argue that this regulation violates the Ex Post Facto Clause of the United States Constitution by retroactively imposing punishment on inmates after the commission of their crimes.
“ ‘The United States Constitution prohibits the legislative enactment of any ex post facto law. U.S. Const., art. I, §10. Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence.’ ” State v. LaMunyon, 21 Kan. App. 2d 281, 285, 898 P.2d 1182 (1995), aff’d 259 Kan. 54, 911 P.2d 151 (1996) (quoting Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 8, 812 P.2d 761 [1991]).
“The term ‘ex post facto,’ as used in the constitution, relates to criminal punishment and has no relation to other retrospective laws.” In re Clark, 86 Kan. 539, 541, 121 Pac. 492 (1912).
When an inmate challenges a prison regulation as impinging on the inmate’s constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. LeVier v. Nelson, 21 Kan. App. 2d 172, 176, 897 P.2d 188 (1995) (citing Thorn burgh v. Abbott, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 [1989], and Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 [1987]).
Prison officials are given wide latitude in matters concerning the administration of correctional facilities. Such discretion should not be interfered with by the court in the absence of abuse or unless exercised unlawfully, arbitrarily, or capriciously. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972).
“This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
Discussion on this point must begin with plaintiffs’ basic assumption that this is a penal or criminal statute. “Criminal statutes” are defined as “[fjederal or state laws enacted by legislative bodies which define, classify, and set forth punishments for specific crimes.” Black’s Law Dictionary 337-38 (5th ed. 1979). “Criminal sanctions” are “[p]unishments attached to conviction of crimes such as fines, probation and sentences.” Black’s Law Dictionary 337. Using these definitions, this statute and its derivative regulation are neither criminal laws nor criminal sanctions. The fees are not attached to the criminal convictions but are attached to the inmate trust accounts without regard to what crimes were committed or what punishment resulted. K.S.A. 1996 Supp. 75-52,139 and K.A.R. 44-5-115(a) (1996 Supp.) allow.the Secretary of Corrections to collect fees for administration of inmate trust accounts.
Additionally, the prison regulation is reasonably related to legitimate penological interests. The monthly charge of $1 is assessed as a fee for the facility administering the inmate’s trust account. The legislature has charged the Department of Corrections with the following:
“The legislative purpose in enacting this act shall be deemed to be establishment of a policy of treatment of persons convicted of felonies in this state by placing maximum emphasis on rehabilitation of each such person while in the custody of the state or under the jurisdiction of the courts of the state, consistent with the interests and safety of the public, so that a maximum of persons so convicted may be returned to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens. It is the intent of the legislature that judges, the secretary of corrections, his or her agents, subordinates and employees and the Kansas adult authority, its agents, subordinates and employees will construe and apply this act and acts of which it is amendatory or supplemental liberally to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community upon leaving the custody of these state agencies and officers.” K.S.A. 75-5201.
In testifying before the Senate Judiciary Committee on March 18, 1994, in support of H.B. 2832, from which K.S.A. 1996 Supp. 75-52,139 was bom, defendant Secretary stated, in pertinent part:
“Assessing fees to offenders is based on a belief that offenders should be accountable for their actions, and contributing to the costs of incarceration or supervision are important components of establishing that accountability.”
K.A.R. 44-5-115(a) (1996 Supp.) is reasonably related to these goals. Plaintiffs are charged a service fee for the administration of their accounts. This procedure reasonably prepares plaintiffs for reentry into the social and economic system of the community upon leaving the correctional institution.
Plaintiffs assert that Taylor v. State of R.I. Dept. of Corrections, 908 F. Supp. 92 (D.R.I. 1995), has decided this issue in their favor. Although there are some similarities to this case, Taylor has limited applicability.
In Taylor, the Rhode Island Department of Corrections promulgated a regulation, under authority of state statute, requiring that a monthly $15 supervision fee be assessed on probationers and parolees, effective July 1, 1994. It also provided for a financial hardship waiver of the fee.
Taylor and four other plaintiffs, all convicted and sentenced to probation before July 1, 1994, received a letter from the department of corrections notifying them that the fee would be imposed beginning July 1, 1994. No hardship waivers were mentioned in the letter. Fees were assessed which plaintiffs refused to pay. Plaintiffs claimed that imposition of the supervision fee on those who were sentenced to probation prior to the effective date of the regulation violated the Ex Post Facto Clause.
The court concluded that there was an ex post facto violation. In reaching this conclusion, several facts were critical to the court. Pertinent among them, the court believed that the fee did in fact increase the burdens of the punishment. Because the plaintiffs were placed on probation as a result of their convictions, probation was the punishment. At the time they sought and received probation, a monetary payment for supervision was not required. Thus, the court concluded, each plaintiffs’ punishment was made significantly more burdensome as a result of the later imposition of the fee. 908 F. Supp. at 100.
Unlike the fees at issue in Taylor, the fees here, on inmate accounts, are not linked to plaintiffs’ punishments. The fees herein are service fees for administering the inmates’ trust accounts.
We find this claim to be without merit. The fee is charged for services rendered, has not been shown to be excessive, is reasonably related to legitimate penological goals, and is not an additional punishment.
Next, plaintiffs argue enforcement of K.A.R. 44-5-115(a) (1996 Supp.) violates their plea agreements with the State. There is nothing in the record establishing what the plaintiffs’ plea agreements were. Plaintiffs rely on Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 863 P.2d 364 (1993). In Dickerson, defendant entered into a plea agreement which involved, inter alia, a negotiated sum of $350 for the drug tax (K.S.A. 1996 Supp. 79-5202). Later, the Department of Revenue attempted to up the ante on the drug tax. We held the Department was estopped to collect that additional tax. The Dickerson case is readily distinguishable. A particular amount of drug tax was agreed to as a part of the plea bargain. In the case before us, administrative fees for services charged to all correctional inmates are at issue. We find no merit in this issue.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Six, J.:
This case requires interpretation of K.S.A. 21-4614a(a) in determining defendant’s credit for time spent in an inpatient drug treatment program while on probation. Was defendant in a “residential facility” while on probation?
The State petitions for review of the Court of Appeals’ unpublished opinion filed October 4, 1996, reversing the district court’s denial of defendant Patrick J. Theis’ motion to compute time to be credited for inpatient drug treatment after revoking Theis’ probation. Theis had spent time in two different inpatient drug treatment facilities, Mirror, Inc., (located in Harvey County) and Atishwin (located in Sedgwick County). Harvey County Community Corrections had a contract for outpatient services with Mirror, Inc. The Court of Appeals, relying on State v. Brasfield, 22 Kan. App. 2d 623, 921 P.2d 834 (1996), held that Theis was entitled to credit for time spent in Mirror, Inc., and remanded the case to determine whether Atishwin is a facility owned, operated, maintained, or con tracted for by any community corrections program operating under the Community Corrections Act, K.S.A. 75-5290 et seq. Our jurisdiction is under K.S.A. 20-3018(b).
We hold that Theis is entitled to jail time credit under K.S.A. 21-4614a(a) for inpatient treatment in Mirror, Inc., and in Atishwin as time spent “in a residential facility while on probation.”
FACTS
The facts are summarized in the Court of Appeals’ opinion:
“In 1992, Theis pled guilty and was placed on probation to community corrections from a sentence of 3 to 10 years. The plea was to a class C felony, possession of marijuana with intent to sell. In 1993, Theis pled guilty to theft, a class E felony, and was placed on probation under the same terms as in his first case. Theis was ordered to obtain a substance abuse evaluation and complete any treatment recommendations indicated by the evaluation. While on probation, Theis was required to spend some time under house arrest as part of the Harvey County Community Corrections intensive supervision program.
“Theis claims he spent 25 weeks under house arrest and 37 weeks as an inpatient at Mirror, Inc., in Harvey County pursuant to the drug/alcohol recommendation. He also claims 6 weeks’ inpatient treatment at Atishwin, a facility in Sedgwick County.
“Theis’ probation was revoked in December 1993 and reinstated in February 1994. In November 1994, Theis’ probation was again revoked, and Theis was ordered to complete his sentence in both cases.
“After probation revocation, Theis filed a motion to compute time to be credited for inpatient drug treatment and under house arrest.”
Theis’ sentencing order on the possession of marijuana conviction placing him on probation included, among others, the following special conditions:
“3. The Defendant shall successfully complete Community Corrections.
“4. The Defendant shall obtain a substance abuse evaluation and follow and successfully complete treatment and aftercare recommendations.”
The sentencing journal entry on the theft conviction granted Theis 3 years’ probation, subject to the same conditions imposed in the marijuana case and, in addition, restitution and successful completion of the community corrections program.
Following revocation of probation in both cases, the Kansas Department of Correction Evaluation and Classification Report prepared by Topeka Correctional Facility (TCF) said:
“We believe a long-term (six months to a year), intensive, structured residential substance abuse treatment program would be the best alternative for this inmate whose legal difficulties appear to be centered on his alcohol and drug addiction. He is not feasible for a Communiiy Corrections-House Arrest program as he has already been tried on one and failed. Should such a residential program be located for him, he should be discharged slowly when ready for dismissal, and in subsequent months he should be monitored very closely to assure his continued sobriety and stable employment. If such a program is not available, he should remain incarcerated.”
In reviewing the TCF report at the hearing on Theis’ motion to modify both sentences, the district judge denied the motion, saying:
“And we don’t have any funds to pay for that type of a treatment, so we have to rely on an institution that has indigent beds available is the only way I know to do it. And I’m not aware of any availability of such at the present time coupled with the fact that I could not do that without placing him back in some form of Community Corrections, which they are recommending I not do because he’s been tried on that and failed. I am in the position of not being able to do anything other than to deny the request of the defendant and so do.”
Theis’ counsel sought a clarification from TCF on its treatment recommendation and filed a motion for reconsideration. At that hearing, Theis’ counsel presented evidence that the Atishwin inpatient treatment program in Sedgwick County was available and that Theis’ father-in-law was willing to pay for the treatment. Theis’ counsel also obtained a clarification from TCF that Theis be “initially placed in a 30 to 45 day inpatient treatment program, to be followed immediately with placement in a structured halfway house type facility for six months to a year.”
The journal entry granting Theis’ sentence modification in both cases and placing Theis on probation for 3 years imposed the following special conditions:
“1. The defendant shall enter into and successfully complete inpatient substance abuse treatment at Atishwin Institute.
“2. Following this treatment program, the Defendant shall enter into and successfully complete a halfway house placement.
“3. The Defendant shall follow all recommendations for outpatient treatment and aftercare.
“4. The Defendant shall enter into and successfully complete the Harvey. County Community Corrections program.”
At the hearing on Theis’ motion for computation of time, the testimony showed that the Harvey County Community Corrections program is not residential and only outpatient services are contracted for. Theis’ inpatient drug treatment was not part of the Harvey County Community Corrections program.
The right to jail time credit is statutory. State v. Fowler, 238 Kan. 326, Syl. ¶ 4, 710 P.2d 1268 (1985). “Jail time credit” must be determined by the sentencing court and included in the journal entiy at the time the trial court sentences the defendant to confinement. Fowler, 238 Kan. at 335. K.S.A. 21-4614a(a) is the applicable statute. Our standard of review is unlimited when interpreting a statute. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
The State argues that the district court was correct in denying Theis credit for time spent in an inpatient drug treatment program while on probation. We disagree.
State v. Williams, 18 Kan. App. 2d 424, 856 P.2d 158 (1993), held that if as a condition of assignment to community corrections a defendant was required to reside in an inpatient rehabilitation facility, and if that facility was owned, operated, maintained, or contracted for under the county’s community corrections program, time spent in the facility must be credited under K.S.A. 21-4614a.
In Brasfield, 22 Kan. App. 2d 623, the defendant appealed the denial of his request for jail time credit for time spent in a halfway house and inpatient drug treatment facility after his probation was revoked. The facilities in which Brasfield had been housed for drug treatment were not owned, controlled, or operated by the sentencing county. Brasfield does not indicate whether the drug treatment was made a condition of probation or of assignment to community corrections. The district court, in denying Brasfield’s request, interpreted Williams as requiring the allowance of jail time credit for time spent in the facility only if the facility is “owned, operated, maintained, or contracted for” by the sentencing county. The Brasfield panel (a different panel than in Williams) disagreed with the district court’s interpretation oí Williams and reversed and remanded, saying:
“To the extent that Williams indicates the facility in question must be controlled by the sentencing county, we disagree. We intend this opinion to clarify Williams and hold that the facility must be owned, operated, maintained, or contracted for by a community corrections program operating under the Community Corrections Act, K.S.A. 75-5290 et seq. There is no requirement that the program be controlled by the community corrections program of the sentencing county.” 22 Kan. App. 2d at 625.
In reaching this conclusion, the Brasfield court reasoned:
“[W]e conclude that Williams does not, in fact, require the program to be owned, operated, or controlled by the sentencing county. If that were true, a defendant could be denied jail credit by being sent to a facility not controlled by the sentencing county. In this state, some of our small counties do not control an appropriate facility, and a defendant from such a county can only be assigned to a community corrections program controlled by another county. To deny a defendant jail time credit under that scenario would be unwarranted.” 22 Kan. App. 2d at 625.
Theis distinguishes Williams on the basis that Williams was concerned with the phrase “community correctional residential services program” and did not address the meaning of the phrase “allowance for the time which the defendant has spent in a residential facility while on probation,” also included within K.S.A. 21-4614a(a). Theis argues that “residential facility while on probation” should include court-ordered completion of inpatient drug treatment. We agree. Theis also points out that Harvey County does not have a community correctional residential services program and only contracts for outpatient drug and alcohol services. The district court conditioned Theis’ probation on compliance with his drug evaluation recommendations, which included completion of the inpatient treatment programs.
Williams and Brasfield are not controlling in resolving this case because both cases appear to involve situations in which inpatient drug treatment was part of the community corrections program. In Williams, the opinion describes the inpatient treatment as both a condition of probation and a condition of assignment to com munity corrections. 18 Kan. App. 2d at 424-25. Brasfield does not mention inpatient drug treatment as a condition of either, although it appears that the inpatient treatment was part of the community corrections program. 22 Kan. App. 2d at 525-26.
For Theis, inpatient drug treatment was imposed as a condition of probation, not as a condition of or part of the community corrections program. The county does not have a community corrections residential services program, as defined in Williams, 18 Kan. App. 2d at 430. One of the main reasons the district judge imposed treatment at Atishwin as a condition of probation, after granting sentence modification, was that Theis’ father-in-law had offered to pay for it. Because Theis’ inpatient drug treatment was not part of the community corrections program, the only portion of K.S.A. 21-4614a(a) relevant to this case is the phrase “time which the defendant has spent in a residential facility while on probation.”
Residential Facility
The term “residential facility” is not defined in the Kansas Criminal Code. The Community Corrections Act, K.S.A. 75-5290 et seq., also does not define that term. Other than the reference in K.S.A. 21-4614a(a), it is used in two other places in the Code, K.S.A. 21-4608(f)(5) (multiple sentences) (“credit shall be given for any amount of time spent in a residential facility while on probation or assignment to a community correctional residential services program”) and K.S.A. 21-4610(c)(9) (conditions of probation). K.S.A. 21-4610(c) provides a nonexclusive fist of conditions" of probation, suspension of sentence, or assignment to a community correctional services program that the court may impose, including: “(9) reside in a residential facility located in the community and participate in educational, counseling, work and other correctional or rehabilitative programs.”
K.S.A. 21-4610(c) does not preclude imposing commitment to inpatient drug treatment as a condition of probation, nor does there appear to be a requirement that the treatment take place at a location in the community.
We hold that Theis’ inpatient drug treatment at Mirror, Inc., and Atishwin qualifies as time spent in a “residential facility while on probation,” as provided in K.S.A. 21-4614a(a). Theis’ participation in the inpatient drug treatment programs at Mirror, Inc., and Atishwin were conditions of his probation. He attended those facilities while on probation. Those-inpatient facilities are “residential.”
Theis is not eligible for jail time credit under the “while on . . . assignment to community correctional residential services program” language in K.S.A. 21-4614a(a). However, he is eligible for such credit under the “while on probation” language.
K.S.A. 21-4601 provides:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders- shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
Offenders such as Theis placed on probation or assigned to community corrections programs are generally considered to be nonviolent. We reason that K.S.A. 21-4614a(a) should be liberally construed to give offenders like Theis jail time credit for time spent in inpatient drug treatment while on probation, thus reserving jail space for more violent offenders.
K.S.A. 21-4614a(a) imposes no requirement that.inpatient treatment be part of a community corrections program if the defendant attends such treatment while on probation, as opposed to on “assignment to a community corrections residential services program.” If inpatient treatment is not part of a community corrections program but is imposed as a condition of probation, it does not matter whether such treatment is or is not under contract with a community corrections residential services program.
Were we to interpret “residential facility” in K.S.A. 21-4614a(a) as not including private inpatient drug treatment, defendants from counties that do not have community corrections residential services programs would be treated differently from defendants in counties that do have such programs. If Harvey County Community Corrections had a residential services program, Theis most likely would have attended inpatient treatment as part of that program and would have been eligible for jail time credit under Williams for time in treatment.
The Court of Appeals’ ruling that Theis is entitled to jail time credit for inpatient time at Mirror, Inc., while on probation is affirmed. The Court of Appeals’ ruling that remand is necessary for determining whether Atishwin is a facility owned, operated, maintained, or contracted for by any community corrections program operating under the Community Corrections Act is reversed. We reverse the trial court’s ruling that inpatient drug treatment at Mirror, Inc., and Atishwin does not qualify for jail time credit. The case is remanded to compute Theis’ jail time credit for inpatient time spent in Mirror, Inc., and Atishwin while on probation.
Judgment of Court of Appeals is affirmed in part and reversed in part. Judgment of the district court is reversed in part, and the case is remanded with directions.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an action by Safeco Insurance Company of America (Safeco) against its insured, Terry Allen, and Lou Accurso, the attorney who represented Allen in a personal injury claim, and the attorney’s assistant, Robert Schroeder, alleging that they failed to protect Safeco’s subrogation interest. Allen was injured in an automobile accident that occurred in Kansas. The district court dismissed the claims against Allen and Schroeder for lack of personal jurisdiction. The district court granted summary judgment to Accurso on the first $2,000 of medical expenses paid and granted summary judgment to Safeco on the remaining $925 (rounded up to the next dollar), subject to any attorney fees to which Accurso may be entitled. Safeco appealed to the Court of Appeals. The case was transferred to this court on Safeco’s motion, pursuant to K.S.A. 20-3017.
Material facts are not in dispute. The following facts are taken from the uncontroverted facts on which the district court based its rulings.
In September 1991, an automobile accident occurred in Prairie Village, Kansas, involving a vehicle operated by Allen and a vehicle operated by Ruth Head. Allen, a Missouri resident, was insured by Safeco in the state of Missouri. Allen made claim on Safeco under his insurance policy for medical expenses incurred as a result of the accident. Safeco paid Allen $2,924.60.
Allen made a tort claim against Head, and he was represented in his claim by the law firm of Accurso, Stein, McCaskill and Smith. The firm was located in Jackson County, Missouri. Schroeder was a legal assistant employed by that law firm. Acting on behalf of the firm, Schroeder agreed in a telephone conversation with a Safeco adjuster in St. Louis, Missouri, to protect Safeco’s personal injury protection (PIP) lien in the event Allen recovered in tort against Head. At the time of the conversation, Schroeder was under the impression that Allen was a Kansas resident.
In December 1991, Allen settled all claims against Head. Safeco has not been reimbursed for the money it paid to Allen.
In addition to the facts put forward by the parties, the district court found that the Safeco policy provided $2,000 of medical payment coverage to Allen.
The district court dismissed Safeco’s claims against Allen and Schroeder for lack of personal jurisdiction. Although Safeco cited the section of the long arm statute dealing with the commission of a tortious act in Kansas, the insurer made no factual allegations to support the exercise of jurisdiction on that basis. The district court also stated that there were no allegations even tending to show that the nonresident defendants purposely availed themselves of the privilege-conducting activities in Kansas from which Safeco’s claims against them arose.
The district court concluded that State Farm Mut. Auto. Ins. Co. v. Baker, 14 Kan. App. 2d 641, 797 P.2d 168, rev. denied 247 Kan. 705 (1990), was controlling. On the basis of Baker, the district court granted summary judgment to Accurso up to the limit of Safeco’s liability under the medical payment provision of its policy, $2,000.
Finally, the district court granted summary judgment in favor of Safeco on the $925 of medical expenses paid in excess of the medical payments coverage. The court reasoned that Safeco was entitled to judgment on its claims against Accurso for breach of contract and conversion. The court cited in particular a written confirmation of the assurance, which first had been given by Schroeder in a telephone conversation, that Safeco’s interest would be protected. In this regard, the district court stated: “Safeco has not suggested that the written confirmation from Schroeder as to the terms of the agreement between Accurso and Safeco is inaccurate in its attorney fee provision. However, that issue was not squarely presented by the summary judgment motions.” The court further stated:
“Safeco’s recovery is subject to any agreement made by Safeco to pay an attorney fee to Accurso on that recovery. If Accurso is entitled to an .attorney fee of one-third, then Safeco would be entitled to judgment for two-thirds of the $924.60, which amount was clearly paid as PIP benefits, which are subject to Safeco’s hen.”
Safeco appealed from the parts of the judgment adverse to it. Accurso did not.
We first consider if Safeco had any right to recover the first $2,000 of medical payments to Allen. The district court concluded that Safeco did not, relying on the holding in Baker. Safeco suggests that this court should overturn Baker. Baker, a Missouri resident, was insured by State Farm under a policy issued in Missouri that provided medical payment coverage up to $1,000 not subject to subrogation by the insurer. Baker was involved in an automobile accident in Kansas. State Farm reimbursed him $511 for medical payments. State Farm alleged that the settlement of Baker’s tort claim against the other driver was subject to subrogation. The Court of Appeals decided otherwise.
First, the Court of Appeals decided that Missouri law rather than Kansas law was applicable in construing the insurance policy “and determining the benefits afforded and paid, including those mandated under [the Kansas Automobile Injury Reparations Act] KAIRA.” 14 Kan. App. 2d at 645. The Court of Appeals parenthetically noted that the rules of construction applicable to insurance policies are virtually identical in Missouri and Kansas. Then, the Court of Appeals turned to the insurance policy:
“[T]he policy explicitly provides first-party medical payments coverage to the insured wholly apart from liability coverage. We also note that the policy states the medical payment coverage applies ‘[i]n the United States of America.’ It is difficult to imagine any clearer language stating the parties’ intent that the first-party medical payments coverage would apply out of state as well as within state. The insured, Baker, is entitled under die terms of the policy to the explicitly bargained for coverage and, in the event of an out-of-state accident [and exhaustion of medical payments coverage under the policy], replacement of that explicit coverage by coverage required under the laws of the sister state. There is no provision within the policy, nor under KAIRA, that would even remotely suggest Kansas personal injury protection benefits, statutorily mandated as part and parcel of liability coverage under a no-fault scheme, require elimination of first-party medical benefits insurance explicitly bargained for and provided in the policy. We hold that, under the circumstances of this litigation, the first $1,000 in medical benefits paid to or on behalf of Baker were under the first-party medical benefits, not under Kansas personal injury protection benefits, and not subject to subrogation.” 14 Kan. App. 2d at 646.
Hence, the district court’s entry of summary judgment in favor of Baker and against State Farm was affirmed. 14 Kan. App. 2d at 647.
With the exception that Allen’s medical expenses exceeded his policy’s expressed coverage, the facts in the present case match those in Baker. Safeco reimbursed Allen for his medical expenses. If the reimbursement was a medical expenses payment under the policy that Allen purchased, Safeco is not entitled to subrogation of recovery Allen received from Head up to the amount of the medical expenses coverage under the Missouri policy. If the reimbursement was a Kansas statutory PIP benefit, Safeco is entitled to subrogation. K.S.A. 40~3113a(b) provides, in part: “In the event of recovery from such tortfeasor by the injured person ... by judgment, settlement or otherwise, the insurer . . . shall be subrogated to the extent of . . . personal injury protection benefits provided to date of such recovery and shall have a lien therefor against such recovery.”
Safeco urges this court to overturn the decision in Baker “because the conclusion reached by the [Court of Appeals] is in error insofar as the Court failed to consider the express language of the statute, K.S.A. 40-3110(a).” K.S.A. 40-3110(a) provides, in part:
“[P]ersonal injury protection benefits due from an insurer . . . under this act shall be primary and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued in compliance with this act.”
Safeco’s reading of this provision is focused strictly on the phrase “shall be primary.” Its position is that this statute “mandates that PIP is primary.” Safeco does not take into consideration that the statute does not state that PIP benefits shall be primary but rather that PIP benefits “due from an insurer . . . under this act” shall be primary. The initial inquiry, therefore, must be whether PIP benefits are due under KAIRA. The Court of Appeals concluded that PIP benefits were not due to Baker under KAIRA because his medical expenses were covered by the first-party medical benefits of his Missouri insurance policy.
Safeco further argues that Baker does not control because the policy it issued to Allen expressly provides that the first-party medical payments coverage is excess coverage. The “Medical Expenses Section” of the policy contains the following provision:
“Other Insurance. If there is other medical, hospital benefits insurance (other than Medicare), Health Maintenance Organization or Preferred Provider Organization benefits available from any source against a loss covered by the Medical Expenses Section of this policy, this insurance shall be excess insurance over any other valid and collectible medical, hospital benefits insurance, Health Maintenance Organization or Preferred Provider Organization benefits.”
This provision is akin to the “other insurance clause” of the Kansas statute. Each specifies what type of coverage its benefits will be relative to other applicable coverage. Corresponding to the statutory inquiry, therefore, the first inquiry with regard to the policy’s medical benefits is with regard to the applicability of other coverage. If, as the Court of Appeals concluded in Baker, the PIP benefits understudy rather than take the place of medical benefits under a Missouri policy, the only applicable coverage up to the limit of liability under the policy is under the policy.
In its memorandum decision, the district court stated that Safeco would have a subrogation right under Kansas law if the payment was a PIP benefit, but that “Missouri law would prohibit subrogation by the insurance carrier.” Safeco “agrees that an insurance carrier cannot subrogate for medical payments benefits under a Missouri contract of insurance.” With regard to the amount above $2,000 paid by Safeco to Allen, the district court’s decision favored Safeco in allowing subrogation rights as provided by Kansas statute. Since appellees did not cross-appeal from that portion of the judgment, it is not properly before us on appeal.
As to Baker as well as on the subject of subrogation, appellees introduce their view of the Court of Appeals’ opinion as follows: “The court in Baker merely held that a Missouri contract of insurance should be construed under Missouri law and that Missouri law precluded an insurer from asserting or enforcing any subrogation rights based upon the payment of medical benefits.” (Emphasis added.) Appellees do not directly respond to Safeco’s suggestion that this court should overturn Baker. They do state what it is that they disapprove in the opinion: “Unfortunately, the court in Baker expressed — in dicta — its opinion that medical benefits paid in excess of the stated limits might be characterized as personal injury protection benefits and might give rise to subrogation rights.”
Although the appellees seem to be complaining about the aspect of the district court’s judgment that was adverse to them but which they failed to cross-appeal, in fact, their argument may be seen as more comprehensive than that. Appellees seem to believe that the Court of Appeals’ reasoning paralleled their own, and that the illustration chosen by the Court of Appeals for stating the rule of the case was a mistake. However, it seems quite obvious that the illustration correctly reflects the Court of Appeals’ reasoning and was employed to ensure in the particular circumstances presented that the reasoning was clearly distinguished from the reasoning that would have led to State Farm’s having no right of recovery. There are three possible outcomes of this issue. The first, advocated by Safeco, would entitle the insurer to subrogation on the entire amount it paid to Allen for his medical expenses. The second, ad vocated by Allen, would not entitle Safeco to subrogation on any amount it paid to Allen for his medical expenses. Under the third, as held in Baker, Safeco is entitled to subrogation on the portion of the amount it paid to Allen for his medical expenses that exceeds the medical benefits coverage of his policy. Each is supported by a separate rationale, and, even though appellees seem to think they embrace the Baker rationale, they do not.
Safeco maintains that Missouri law and the Missouri policy govern but that the policy provides that medical expenses sustained by the insured in Kansas will be reimbursed under and as required by the Kansas statute. In other words, Safeco contends that the Kansas statute is the basis for its reimbursing Allen for any and all medical expenses.
Appellees reject the idea that anything other than the insurance policy is the basis for the insurer s reimbursing its insured for medical expenses. They argue that the Missouri policy is the sole source of insurance benefits for Allen and that KAIRA operates only to increase the policy’s medical benefits limit to conform to Kansas statutoiy requirements. With regard to why the Kansas statute’s subrogation right does not affect the policy, appellees’ position is that subrogation is prohibited under Missouri law. They reject the idea that KAIRA creates an insurance source separate from an automobile liability policy.
The Court of Appeals’ reasoning lies somewhere between the positions advocated by Safeco and appellees. The Court of Appeals held that the basis for the insurer’s reimbursing Baker was the first-party medical benefits coverage of his policy. The policy afforded up to $1,000 in medical benefits, and Baker’s expenses were $511. The court added the following illustration of its rationale:
“The practical result is that Baker is entitled to receive up to $1,000 in benefits plainly provided under the policy and up to an additional $1,000 in personal injury protection benefits. State Farm pays what it is contracted to pay under the policy knowing it is not entitled to subrogation and then has an additional $1,000 exposure under KAIRA, which most probably is subject to subrogation.” 14 Kan. App. 2d at 646.
The Court of Appeals envisioned a scheme in which the policy was the basis for the insurer’s obligation to reimburse up to $1,000 for medical expenses and the Kansas statute was the basis for the insurer s obligation to reimburse medical expenses from $1,001 to $2,000. In other words, Baker s policy provided him with the expressed coverage for which he contracted, and any medical expenses over the exhausted policy coverage would have been reimbursed by his insurer in compliance with the Kansas no-fault plan. This is precisely the scheme applied by the district court in the present case.
Pertinent provisions of KAIRA in effect at that time were described in Baker by the Court of Appeals:
“K.S.A. 40-3106(a) provides that a nonresident owner of a motor vehicle may not operate such vehicle on the highways of Kansas unless a motor vehicle liability policy conforming with K.S.A. 40-3107 is in effect for such vehicle. K.S.A. 40-3107(f) requires that a motor vehicle liability policy provide personal injury protection benefits to the named insured that, under K.S.A. 40-3103(k), include medical benefits up to $2,000.
“Based upon the above-referenced statutes and Mayer v. Harris, 224 Kan. 231, Syl. ¶ 1, 579 P.2d 715 (1978), we conclude that a nonresident owner of a motor vehicle operated on the highways of this state is subject to the provisions of the Kansas Automobile Injury Reparations Act (KAIRA). K.S.A. 40-3101 et seq.” 14 Kan. App. 2d at 643.
We are told that the liability section of Baker’s Missouri policy
“contained an out-of-state provision that allowed Baker to drive the insured automobile upon the highways of other states in full compliance with a particular state’s mandatory insurance law. The policy also included separate first-party medical payment coverage of up to $1,000 not subject to subrogation by the insurer.
“ ... At the time of the collision, Kansas required $2,000 in medical benefits as part of the personal injury protection package, K.S.A. 40-3103(k).” 14 Kan. App. 2d at 642.
In conformance with the requirements of K.S.A. 40-3107, the liability section of Baker’s policy contained the following provision:
“ ‘Motor Vehicle Compulsory Insurance Law or Financial Responsibility Law
T. Out-of-State Coverage.
If an insured under the liability coverage is in another state or Canada and, as a non-resident, becomes subject to its motor vehicle compulsory insurance, financial responsibility or similar law;
a. the policy will be interpreted to give the coverage required by the law; and
b. the coverage so given replaces any coverage in this policy to the extent required by the law for the insured’s operation, maintenance or use of a car insured under this policy.
Any coverage so extended shall be reduced to the extent other coverage applies to the accident. In no event shall a person collect more than once.’ ” 14 Kan. App. 2d at 644.
Subsection b of this out-of-state coverage seems to. be where the Court of Appeals picked up the term “replacement.” In this context, it seems clear that “replaces” is used not to mean “displaces” coverage under the policy but rather “in the place of” otherwise exhausted coverage.
The Court of Appeals continued:
“Baker’s policy also provides first-party medical payments insurance up to $1,000. The policy states:
‘MEDICAL EXPENSES
“We will pay medical expenses, for bodily injury caused by accident, for services, furnished within one year of the date of the accident .....
‘Persons for Whom Medical Expenses are Payable.
“We will pay medical expenses for bodily injury sustained by:
T. a. the first person named in the declarations; . . . .’
“The policy further provides:
‘If There Are Other Medical Payments Coverages.
T. Your Car.
The amount payable for medical expenses to k person who sustains bodily injury while occupying your car will not be reduced if there is other vehicle medical payments coverage.’ ” 14 Kan. App. 2d at 644.
As we have seen, the Court of Appeals interpreted these policy provisions and the Kansas statutes to mean that PIP benefits do not eliminate the first-party medical'benefits under the policy. We agree.
Despite differences in wording, pertinent provisions of Allen’s policy do not differ fundamentally from the pertinent provisions of Baker’s policy. The “Conditions” section of Allen’s insurance policy contains the following provision concerning out-of-state accidents:
“18. ‘No-Fault’ Laws: If an insured automobile is involved in an occurrence in any state or province (other than the state in which the automobile is principally garaged) in which, under the provisions of the Automobile Reparations Reform law or other similar ‘No-Fault’ law, the insured automobile is subject to such law, the provisions of this policy shall be extended to comply with the minimum requirements of the law.”
The amendments to the medical expenses section of Allen’s policy include the following:
“Other Insurance: If there is other medical . . . benefits insurance . . . available from any source against a loss covered by the Medical Expenses Section of this policy, this insurance shall be excess insurance over any other valid and collectible medical . . . benefits insurance . . . benefits. The company’s share is the proportion that the company’s limit of liability bears to the total of all applicable limits. . . .
“If two or more policies apply on an excess basis to a loss covered by the Medical Expenses Section of this policy, the company shall not be hable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the Declarations bears to the total applicable limit of liability of all valid and collectible medical insurance.”
In both Baker and the present case, the policies permit the insured to drive the insured automobile in Kansas in full compliance with this state’s mandatory insurance law. The policies also include separate medical payment coverage. In both cases, the medical expenses limit falls below the Kansas requirement. In Baker, subrogation was expressly prohibited by the terms of the policy. In the present case, the parties agree that the insurer has no right to recover medical payments under the policy. In other words, the terms of Allen’s policy seem to present no reason why the result in this case should differ from that in Baker.
Thus, the ultimate question for this court is whether to adopt the Court of Appeals’ reasoning in Baker. That opinion can be simply summarized: Independent of the Kansas statutory requirements, Baker’s Missouri policy provided medical benefits up to $1,000. To the extent that Baker’s medical expenses could be reimbursed by that $1,000 of coverage, they were, and no subrogation was allowed on those medical payments. The Kansas statute required that Baker, like all nonresident drivers, have an automobile liability policy that provided medical benefits up to $2,000. Baker’s policy contained a provision that allowed him to drive the insured automobile in Kansas in full compliance with this state’s law. In addition to raising the limit for medical expenses from $1,000 to $2,000, the Kansas statute granted a subrogation right to the insurer for the additional coverage.
The Missouri Court of Appeals addressed a similar situation in Gilmore v. Attebery, 899 S.W.2d 164 (Mo. App. 1995). The automobile accident occurred in Missouri and involved a Kansas plaintiff and an Illinois defendant, who admitted fault. The Kansas plaintiff was paid PIP benefits under'his Kansas policy. The court held that Missouri’s law denying subrogation rights to the insurer. applied.
In so doing, the Gilmore court distinguished two prior decisions, Hartzler v. American Family Mut. Ins. Co., 881 S.W.2d 653 (Mo. App. 1994), and Bell v. Mid-Century Ins. Co., 750 S.W.2d 708 (Mo. App. 1988), which held that Kansas law was applicable over Missouri public policy. In Hartzler, the automobile accident occurred in Missouri. All of the parties involved in the accident were Kansas residents and insured under Kansas policies. At issue was whether the anti-stacking provisions of Hartzler’s Kansas policy or Missouri’s public policy provisions prohibiting anti-stacking applied. According to the Gilmore court, the distinguishing factor was that “[t]he dispute here is not between the parties to the insurance contract, who should certainly be bound by their mutual expectations.” 899 S.W.2d at 169. in contrast, the insurer in Gilmore was seeking to hold an Illinois resident tortfeasor to Kansas law through a Missouri court.
In Bell, Jenkins was involved in an automobile accident in Missouri. He was a Kansas resident insured under a Kansas policy. Jenkins was paid $5,000 in PIP benefits under his policy. He later settled his claim, and his insurer asserted a $5,000 lien against the recovery pursuant to K.S.A. 40-3113a(b). The court held that Kansas law applied and the lien was valid and enforceable. The Gilmore court noted that, like Hartzler, the dispute was between the original parties to the insurance contract and they were therefore bound by the terms of the Kansas policy even though the accident had occurred in Missouri. In neither Bell nor Hartzler did Missouri courts impose Kansas law upon a party not otherwise amenable to suit in Kansas. The Gilmore court noted that the insurer could sue Gilmore, its insured,' in Kansas. “Gilmore, after all, agreed to such subrogation and yet settled with appellant without protecting State Farm’s contract rights.” 899 S.W.2d at 168-69. Missouri provided the only connecting activity between the parties. The Illinois resident defendant had no connection to Kansas. The accident and the injuries occurred in Missouri. The Missouri court noted the KAIRA was established “to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles,” quoting K.S.A. 40-3102. “As Gilmore and Zinn were promptly compensated for their injuries, Kansas’ primary concern in this matter has been met and Missouri’s policy against the assignability of personal injury claims remains.” 899 S.W.2d at 167.
In Baker, the Court of Appeals correctly noted that where there is a conflict of laws, Kansas follows the general rule that the law of the state where the insurance contract is made controls. See 14 Kan. App. 2d at 644. In St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 270, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990), we observed that Kansas follows the lex loci rule, not the “most significant relationship” rule set out in Restatement (Second) of Conflict of Laws § 188 (1969). We did, however, state that Kansas would not apply the law of another state if it violated Kansas public policy, and quoted the following from Barbour v. Campbell, 101 Kan. 616, 617, 168 Pac. 879 (1917):
“ ‘Ordinarily a contract which is valid where made is valid everywhere, but there is a well-known exception to that rule. Briefly stated, the exception is that where the contract contravenes the settled public policy of the state whose tribunal is invoked to enforce the contract, an action on that contract will not be entertained.’ ” 245 Kan. at 270.
The medical payment provision of the Missouri policy does not violate Kansas public policy but, to the contrary, is consistent with the stated policy of KAIRA by promptly compensating its insured for personal injuries.
Here, as in Hartzler and Bell, the dispute is between the parties to the insurance policy. The parties are bound by the terms of the policy. We find the Kansas Court of Appeals’ reasoning in Baker to be persuasive. In addition, Safeco’s, argument, based upon claimed differences between its policy and the one in Baker, was considered and rejected by the district court:
“However, whatever the differences may be between the polices, Safeco’s argument is still premised upon the effect of K.S.A. 40-3110(a) for support of its claim that the PIP payments become primary when the Missouri insured has an accident in Kansas. That argument was either explicitly or implicitly considered by the court in Baker (‘There is no provision . . . under KAIRA ....’) and was rejected.”
We agree.
The insured bargained for medical benefits up to $2,000 without subrogation, and he received them. The policy further provided full compliance with Kansas law when driving in Kansas. In Baker, the Court of Appeals recognized both in its holding and correctly held that PIP benefits are supplemental to the medical coverage. The Baker holding is consistent with the purpose of KAIRA of promptly providing payment for injury received by the insured.
We hold that the first $2,000 paid by Safeco to Allen for medical expenses was paid under the first-party medical benefit and not pursuant to KAIRA, and thus is not subject to subrogation.
We next address the district court’s dismissal of Safeco’s claims against Allen and Schroeder for lack of personal jurisdiction. As previously noted, both are Missouri residents.
Safeco contends that personal jurisdiction may be asserted over the defendants pursuant to the following provision of the Kansas long arm statute:
“(b) . . . Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:
(2) commission of a tortious act within this state.” K.S.A. 60-308(b)(2).
The district court found “no evidence or suggestion that either [Allen or Schroeder] has committed any tortious act in the State of Kansas.” The tortious act, according to Safeco, is their “conversion of monies due and owing to Safeco pursuant to Safeco’s lien arising by statute.” The insurer contends that the tort occurred in Kansas because the hen “arises by Kansas statute.” No authority is cited for this proposition. It appears that Safeco may be confusing a basis for liability with a basis for the exercise of personal jurisdiction. In the alternative, Safeco suggests that the district court had personal jurisdiction over Allen and Schroeder because “the injury resulting from the tortious act” occurred in Kansas. How or why the injury to Safeco occurred in Kansas is not explained, nor is it self-evident. Safeco alleged only that it was authorized to transact business in Kansas. Thus, Safeco has failed to bring to this court’s attention any facts or legal authorities that would cast doubt on the correctness of the district court’s decision on jurisdiction.
We affirm the district court’s entry of summary judgment in Accurso’s favor on the first $2,000 paid by Safeco to Allen for medical expenses and the dismissal of the claims against Allen and Schroeder for lack of personal jurisdiction.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
Plaintiff Tommie L. Friday (Friday), the insured, appealed an order dismissing her lawsuit against Trinity Universal of Kansas (Trinity) for breach of a fire insurance policy as premature for failure to comply with an amount of loss appraisal provision in the policy. In Friday v. Trinity Universal of Kansas, 22 Kan. App. 2d 935, 924 P.2d 1284 (1996), the Court of Appeals reversed, determining that the appraisal provision was an arbitration clause which was unenforceable under K.S.A. 5-401(c)(1). This court granted Trinity’s petition for review.
Friday’s house was insured by Trinity. On October 28,1994, the house was damaged by a fire. Friday and Trinity did not agree on the amount of loss caused by the fire. Trinity made an offer of payment to Friday and stated that if the company and Friday could not agree on the amount of the loss, Trinity intended to invoice the appraisal provision of the insurance policy. Friday rejected the offer and informed Trinity that she was filing a lawsuit in district court. Friday contended that the appraisal provision was merely an arbitration agreement by another name, it violated K.S.A. 5-401, and it was not enforceable.
Friday filed a petition seeking to recover $46,805.39 as the benefits due under the insurance policy. Trinity filed a motion to dismiss the suit as being premature because the insurance policy stated that no action could be brought unless the policy provisions had been complied with, and Friday had refused to comply with the mandatory appraisal provision of the contract. A hearing was held on this motion, and the parties submitted briefs. The trial court dismissed the lawsuit, finding that the appraisal clause was not an arbitration agreement. The ruling also stated that even if it were construed as an arbitration agreement, the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA), would probably preempt the Kansas Arbitration Act.
The appraisal provision in the policy provided:
“Appraisal. If you and we fail to agree on the amount of loss, either may demand an appraisal of the loss. In this event, each party will choose a competent appraiser within twenty (20) days after receiving a written request from the other. The two appraisers will choose an umpire .... the appraisers will separately set the amount of loss. If the appraisers submit a written report of an agreement to us, the amount agreed upon will be the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will set the amount of the loss.”
Another part of the policy states: “Suits Against Us. No action can be brought unless the policy provisions have been complied with.”
The Court of Appeals reversed the trial court, determining that the appraisal provision in the Trinity policy was an arbitration clause which was unenforceable under K.S.A. 5-401(c)(l). The Court of Appeals also determined that the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015 (1994), prevents the FAA from preempting K.S.A. 5-401(c)(l). 22 Kan. App. 2d at 940.
I. APPRAISAL PROVISION
The Court of Appeals’ opinion correctly states the standard of review: “Regardless of the construction given a written contract by a district court, an appellate court may construe a written contract and determine its legal effect.” 22 Kan. App. 2d at 936 (citing Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 311-12, 856 P.2d 111 [1993]).
Because Judge Bell considered factual information beyond what was contained in Friday’s petition, Trinity’s motion to dismiss should be treated as a summary judgment motion and disposed of as provided in K.S.A. 60-256(c). See K.S.A. 60-212(b).
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
A majority of this court is of the opinion that the determining factor in this case is the legislature’s intent in adopting K.S.A. 5-401(c)(1). K.S.A. 5-401(b) provides that a written contract may provide for arbitration of future controversies between the parties and that such a provision is “valid, enforceable, and irrevocable, except upon such grounds as exist at law or in equity for the revocation of any contract.” The provision in question, 5-401(c)(l), states: “The provisions of subsection (b) shall not apply to: (1) Contracts of insurance.” The determinative question is whether the legislature intended to include appraisals as a form of arbitration when it precluded arbitration clauses in insurance contracts or whether it intended for appraisals to be of a separate nature than arbitration and allowable in insurance contracts.
We do not deem it necessary to set forth the Court of Appeals’ reasoning. We agree with the Court of Appeals’ conclusion, and to its reasoning we add the following:
We do not place much reliance on McKenzie v. Fidelity-Phenix Fire Ins. Co., 133 Kan. 721, 3 P.2d 477 (1931), and Syndicate Co. v. Insurance Co., 85 Kan. 367, 116 Pac. 620 (1911). Both cases are readily distinguishable, and both cases preceded the adoption of K.S.A. 5-401.
An insurer and insured can agree to arbitrate a controversy at the present time. That is not the issue in this case. The issue is what the legislature intended when it prohibited a contract of insurance from providing for mandatory arbitration of future controversies. We do not see a meaningful distinction between appraisal and arbitration.
Arbitration can be for all or any part of a controversy. The parties can limit the issues to be arbitrated and can, for example, limit arbitration to the value of a loss. Actually, arbitration is a more adversarial proceeding than a normal appraisal. However, the end result is the same. A controversy is settled.
Here, the legislature was faced with unilateral contracts providing for a mandatory method of setting the loss, thereby denying the insured redress in the courts. The legislature is presumed to know the law, and it would have been aware that an entire controversy or only one part of a controversy may be arbitrated. We see no indication that the legislature understood there .to be some distinction between arbitration and appraisal, terms that appellate courts frequently use interchangeably. The following cases support the Court of Appeals’ conclusion that appraisal is a form of arbitration:
In 1989, the Florida Court of Appeals considered a nearly identical insurance clause. If the clause was an arbitration clause, the court planned to compel arbitration, and if the clause was an appraisal clause, the court planned not to compel arbitration. Three other Florida Court of Appeals cases were cited, all holding that the appraisal provision in the policy was in fact an agreement to submit the amount of the loss to arbitration. Intracoastal Ventures v. Safeco Ins. Co., 540 So. 2d 162 (Fla. Dist. App. 1989).
The Illinois Court of Appeals considered the same clause to determine if the insurer could compel arbitration under the appraisal provision when the property sought to be appraised was totally destroyed in a fire and no longer available to appraise. The court cited several prior Illinois appellate court decisions, holding that an “appraisal clause” is similar to an “arbitration clause” and recognizing an appraisal proceeding as a form of arbitration. The court then held that the clause covered “all loss” (as does the policy before us), and granted the insurer’s motion to “compel arbitration.” Beard v. Mount Carroll Mut. Fire Ins., 203 Ill. App. 3d 724, 727-30, 561 N.E.2d 116 (1990).
In Rawlings v. Amco Ins. Co., 231 Neb. 874, 438 N.W.2d 769 (1989), the homeowner insureds filed suit against the insurer for tornado damage to their residence under their homeowners’ policy. The district court sustained summary judgment for the insurer and dismissed the petition, based on the insureds’ refusal to submit to an appraisal as set forth in the appraisal clause in the policy. The Supreme Court of Nebraska reversed and remanded, finding that the appraisal provision was an unenforceable arbitration clause. The insurer offered School Dist. No. 1 v. Globe & Republic Ins. Co., 146 Mont. 208, 404 P.2d 889 (1965), as support for its positiqn, but the court did not find it persuasive. Nebraska continues to adhere to the common-law doctrine that “arbitration agreements entered into before a dispute arises which purport to deny the parties the right to resort to the courts nonetheless oust the courts of their jurisdiction and are thus against public policy and therefore void and unenforceable. The doctrine applies to contracts of insurance.” Rawlings, 231 Neb. at 875.
Based on this authority, we hold the Kansas Legislature intended the prohibition in K.S.A. 5-401(c)(1) to apply to all insurance contracts that require any form of arbitration. We also hold that the appraisal provision before us is a form of an arbitration clause and is therefore prohibited in the insurance contract by K.S.A. 5-401(c)(1).
II. FEDERAL ARBITRATION ACT
The remaining issue is whether K.S.A. 5-401(c)(l), which bars enforcement of arbitration clauses in insurance contracts, is preempted by the FAA.
The trial court, relying on Skewes v. Shearson Lehman Bros., 250 Kan. 574, 829 P.2d 874 (1992), held that even if the appraisal provision were an arbitration clause, the FAA would preempt K.S.A. 5-401(c)(1), so that the provision would nonetheless be enforceable. Skewes involved a stockbroker’s claim of retaliatory discharge against his employer and considered whether the FAA preempted the K.S.A. 5-401 prohibition of arbitration of tort claims. This court held that the FAA preempted K.S.A. 5-401. However, that case is not helpful because it did not involve an arbitration provision in an insurance contract. The McCarran-Ferguson Act controls this issue. The McCarran-Ferguson Act provides in part: “No act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance.” 15 U.S.C. § 1012(b) (1994).
The issue of whether the FAA preempts K.S.A. 5-401(c)(l) was addressed in Mutual Reinsurance Bureau v. Great Plains Mut., 969 F.2d 931 (10th Cir.), cert. denied 506 U.S. 1001 (1992). That case involved a dispute between a reinsurer and a property casualty insurer that was submitted to arbitration pursuant to an arbitration clause in the reinsurance agreement. The reinsurer sought to confirm the arbitration award against the property casualty insurer, as provided in the FAA. The federal district court in Kansas confirmed the award, but the Tenth Circuit reversed and remanded, holding that because K.S.A. 5-401 regulated the business of insurance, the McCarran-Ferguson Act precluded application of the FAA and the arbitration clause was unenforceable because of K.S.A. 5-401(c)(1).
K.S.A. 5-401 was amended in 1995 to provide that reinsurance contracts are not to be considered contracts of insurance within 5-401(c)(1), thus legislatively overruling Mutual Reinsurance Bureau. See K.S.A. 1996 Supp. 5-401. However, because the Trinity policy is not a reinsurance contract, the Mutual Reinsurance Bureau statutory interpretations apply to this case. Thus, the trial court erred in holding the FAA preempts K.S.A. 5-401(c)(1).
The judgment of the Court of Appeals is affirmed, and the judgment of the trial court is reversed.
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The opinion of the court was delivered by
Six, J.:
Willard Parnell Mathenia appeals his convictions of premeditated first-degree murder, K.S.A. 21-3401, and aggravated battery against a law enforcement officer, K.S.A. 21-3415. Mathenia’s convictions resulted from the death of Officer Mark Avery and the severe injuries inflicted upon Officer Michael Bidatsch at Lansing Correctional Facility on May 22, 1993 (the Lansing incident). The primary issue concerns defendant Mathenia’s constitutional right to a speedy trial.
The facts surrounding the Lansing incident are familiar to this court. See State v. Clemons, 261 Kan. 66, 929 P.2d 749 (1996) (convictions of first-degree murder and aggravated battery against a law enforcement officer affirmed); Murphy v. Nelson, 260 Kan. 589, 921 P.2d 1225 (1996) (reversing trial court order that prisoner alleged to have been a participant in the incident be released from segregation and returned to the general prison population and remanding for a K.S.A. 60-1501 hearing); State v. Moore, 260 Kan. 488, 920 P.2d 431 (1996) (affirming denial of motion to modify sentence after Moore pleaded to aggravated battery against a law enforcement officer); State v. Green, 260 Kan. 471, 920 P.2d 414 (1996) (affirming convictions of first-degree murder and aggravated battery against a law enforcement officer); State v. Knighten, 260 Kan. 47, 917 P.2d 1324 (1996) (affirming convictions of second-degree murder and aggravated battery against a law enforcement officer); and State v. Harris, 259 Kan. 689, 915 P.2d 758 (1996) (affirming convictions of first-degree murder and aggravated battery against a law enforcement officer). Our jurisdiction is under K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment).
Mathenia’s Issues
Mathenia advances four issues: (1) Were his statutory and constitutional rights to a speedy trial violated? (2) Were the grand jury proceedings deficient, rendering his indictment defedtive? (3) Was the evidence sufficient to find him guilty? and (4) Was evidence of gang membership or affiliation improperly admitted?
We find no error and affirm. We focus on the speedy trial issue because of factual differences from other Lansing incident cases. We disapprove of certain language in two recent cases, State v. Noriega, 261 Kan. 440, 459, 932 P.2d 940 (1997), and State v. Abel, 261 Kan. 331, 335, 932 P.2d 952 (1997).
FACTS
The facts of the Lansing incident are chronicled in Harris, 259 Kan. at 692-97, and Knighten, 260 Kan. at 48-52. Mathenia was one of 12 inmates against whom charges for first-degree murder and aggravated battery against a law enforcement officer were filed.
Three inmates gave eyewitness testimony of Mathenia’s involvement: Tracy Hackney, Mikel Brooks, and Ronald Martin. Hackney described the recreation shack as “packed” with over 100 inmates inside to avoid the rain. Hackney first noticed an inmate fall down in front of the ice machine, his head bleeding. Two officers helped the injured inmate. Everyone “dog-piled” on the officers. One officer crawled away as inmates were hitting him, but the other, Officer Avery, was knocked unconscious and lay on the floor. Hackney saw Mathenia in the pile hitting and kicking the officers, but could not identify all of the inmates involved. Hackney saw, but did not identify during his direct examination, an inmate who dropped a weight plate on Avery’s head. On cross-examination, Hackney admitted that in a statement he gave to investigators, he identified Gerald Mayfield as the only inmate he saw hitting Officer Avery with a weight plate.
Brooks observed an inmate get hit with a 25-pound weight plate in front of the ice machine. After the inmate fell, Brooks saw Mathenia hit Officer Avery in the head with a 25-pound weight plate so hard that it fell out of Mathenia’s hands and rolled on the floor near Brooks. Brooks identified a 25-pound weight plate as looking like the one he saw Mathenia hit the officer with. Brooks saw Officer Bidatsch running from the weight room and slipping in some blood on the floor near Avery’s body. Bidatsch made it out the door. The entire incident took about 6 seconds.
Martin saw someone in the recreation shack swing something at Officer Bidatsch and hit an inmate standing beside him. Bidatsch was trying to help the injured inmate. Inmates began punching and kicking Bidatsch. Martin saw Mathenia hitting and kicking Bidatsch while Bidatsch was on his knees trying to crawl away. On cross-examination, Martin said he did not see Mathenia hit anyone with a weight plate. Martin saw Officer Avery standing in the doorway of the weight-lifting area when Avery was hit in the head with a weight plate, but could not identify who hit Avery.
Timothy Dennis, of the Kansas Bureau of Investigation (KBI), investigated the homicide. He found a 25-pound weight plate caked with dried blood at the scene. Four additional weight plates were also recovered.
Inmates testified on Mathenia’s behalf. He also called two Lansing correctional officers as witnesses.
Mathenia denied any involvement in the attack, testifying that he was jogging on the outside track at that time. On cross-examination, Mathenia denied reenacting the beating of Officer Bidatsch with Midgyett (another inmate) in front of the tower and saying to Bidatsch, who was in the tower, words to the effect “that’s what you deserve.” Mathenia claimed that he and Midgyett were horse playing and talking about football. Mathenia admitted being acquainted with Folks (a gang) and talking with Folks members but denied being a Folks member or in a gang. Mathenia did not dispute that three of his inmate witnesses were Folks members. Mathenia admitted associating with all of the prison gangs because “[y]ou have got to live in this prison.” He denied being recruited by any gang, but admitted receiving Folks materials.
Officer Bidatsch testified as a rebuttal witness for the State and described watching Mathenia and Midgyett acting out the Lansing incident in front of the tower.
Roger Bonner, an investigator at Lansing, testified in rebuttal that three of Mathenia’s inmate witnesses and Mathenia were all being monitored as affiliates or members of the Folks gang. Bonner said Mathenia was being monitored for gang activity because: (1) there was evidence of his involvement in the attack on the two officers with other known gang members, and it was believed that gangs had perpetrated the attack; (2) Mathenia possessed a drawing with the word “Crips” (a group with which Folks was affiliated); and (3) Mathenia reportedly had papers containing numbers and symbols and letters used by an affiliate of Folks. Bonner admitted that inmates do not have a chance to contest the classification.
DISCUSSION
The Constitutional Right to a Speedy Trial
Was Mathenia’s constitutional right to a speedy trial violated? The four-part balancing test in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), (length of delay, reason for the delay, the defendant’s assertion of his or her right, and prejudice to the defendant) provides the standard of review.
Barker involved a delay of over 5 years between Barker’s indictment (along with a codefendant) and his murder trial. Although Barker was only incarcerated for 10 months and then was released on bond, his trial was postponed many times upon the State’s request. The State wanted to convict Barker’s codefendant before trying Barker. Barker did not object to any of those continuances. Barker’s codefendant was finally convicted (after five trials). The State requested more continuances, and Barker objected. His motion to dismiss the indictment for violation of his speedy trial right was denied, and he was eventually convicted. The Supreme Court affirmed Barker’s conviction, devising the four-part balancing test. Barker’s constitutional right to a speedy trial had not been violated. The Court concluded that Barker had gambled that his codefendant would be acquitted and had chosen not to pursue his speedy trial right. 407 U.S. at 535-36. We discussed the Barker test in Green, 260 Kan. at 473-74.
Mathenia was arrested on August 30, 1993, and arraigned on November 12, 1993. His trial commenced on July 25, 1995. He claims that the almost 2-year delay between arrest and trial prejudiced his defense, because some of his witnesses became unavailable and his counsel was unable to locate them at the time of trial. Initially, we consider whether the length of delay, 23 months between arrest and trial, is presumptively prejudicial. Barker teaches that the answer to our inquiry “is necessarily dependent upon the peculiar circumstances of the case.” 407 U.S. at 530-31. We held in Green that a delay of 1 year and 2 days between Green’s arraignment and trial was not clearly presumptively prejudicial. 260 Kan. at 474.
What are the peculiar circumstances here? The crimes for which Mathenia was convicted arose from a group attack by inmates upon two correctional officers in a prison yard recreational shack crowded with other inmates on a rainy afternoon. The evidence had to come from the inmates themselves. Inmate interviews commenced on the evening of the attacks and continued as late as a week before the grand juiy proceedings. Physical evidence from the scene was still being processed by the KBI at the time of the grand jury proceedings. During Mathenia’s trial, KBI Agent Dennis testified that his department had taken over 600 statements concerning the investigation. At least 30 to 40 of those statements identified participants in the attack. Approximately 30 inmates were considered as viable suspects in the attacks. The investigation resulted in the indictment of 12 inmates in the district court of Leavenworth County. Seven cases went to jury trials (two acquittals and five convictions, including Mathenia’s), defendants pleaded in three cases, one case was dismissed without prejudice, and the disposition of one case was not shown in this record. Mathenia’s case was one of the last to be tried. To say that this case involved a complex, serious crime would be an understatement.
Based on the circumstances here, we conclude that 23 months between arrest and trial is not “presumptively prejudicial.” However, we discuss the remaining three Barker factors below.
Mathenia acknowledges responsibility for approximately 7 months of the delay due to the following: (1) He requested a continuance from November 19, 1993, to December 3, 1993; (2) he requested a continuance from December 3, 1993, to December 17,1993; and (3) he fired his counsel on August 14,1994, and new counsel had to be appointed (resulting in 182-day delay).
The State argues that the firing of Mathenia’s counsel resulted in a 217-day delay (August 12, 1994, to February 17, 1995). Also, Mathenia filed several pretrial motions, which caused delay from December 17, 1993, to March 11, 1994. The State asserts that Mathenia was responsible for a total of 310 days of the delay. Even under Mathenia’s calculations, he was clearly responsible for a substantial portion of the delay.
William Pray was initially appointed as Mathenia’s attorney on September 15, 1993. On July 22, 1994, the State requested a continuance of the trial scheduled for July 25, 1994, in that a material witness was not available until after August 16, 1994. Mathenia objected. Mathenia requested new counsel in a letter to the district judge, received August 12, 1994. Pray filed a motion to withdraw on January 31, 1995, stating: “In support of said motion [Pray] states that the defendant has requested different counsel and counsel’s employment ... as Child Support Enforcement Attorney will prevent him from continuing to represent the defendant in this matter.” There is no explanation in the record for the lengthy period between Mathenia’s letter to the judge requesting new counsel and Pray’s motion to withdraw. The district court appointed E. Roger Horsky to represent Mathenia on Februaiy 10, 1995. On April 6, 1995, Horsky filed a motion for a bill of particulars, motion to dismiss on statutory speedy trial grounds, motion suppressing photo identification, motion to dismiss the indictment (Mathenia, having been denied a preliminary hearing, argued the grand jury proceeding was improper), and a second request for a bill of particulars. These motions (except the motion to suppress) were heard and denied on April 21,1995. The motion to suppress the photo identification was heard in part on July 7, 1995, and continued to July 14,1995, and denied. The reason for the continuance to July 14, 1995, was that certain inmate witnesses Mathenia’s counsel wanted to call had not been served with subpoenas. At the July 14, 1995, hearing, there were still problems in getting those witnesses served, but the hearing proceeded, and the district judge ruled on the motion.
Changing Mathenia’s counsel at his request caused a significant delay. The last of new defense counsel’s several pretrial motions was decided less than 2 weeks before trial. The State’s May 1995 continuance request was due to witness unavailability. Mathenia’s motion to suppress still had not been heard or decided by then. The record reflects that many returns of service were filed “not served” on several witnesses for both parties, including some who later testified at Mathenia’s trial in July 1995. Efforts to serve subpoenas on witnesses continued until the trial date. It does not appear from the record that the State’s conduct caused any unusual or unnecessary delays.
Mathenia first asserted his speedy trial rights on April 6, 1996, over 19 months after his arrest. A substantial portion of the delay was attributable to Mathenia, who remained passive as to his speedy trial rights throughout much of the delay.
As to Mathenia’s claim of prejudice because certain witnesses became unavailable at the time of trial, the district judge found that the State had rendered all the assistance requested by Mathenia’s counsel in attempting to locate defense witnesses. The judge was not persuaded that the inability to obtain those witnesses was a result of the 2-year lapse in getting the case to trial and denied the motion to dismiss for lack of a speedy trial. We agree.
None of the Barker factors support a constitutional speedy trial right violation claim.
Statutory Right to a Speedy Trial
Mathenia acknowledges that he was not being held in custody solely because of the current charges against him. He does not assert in his brief on appeal that his statutory right under K.S.A. 22-3402 was violated, but relies on his constitutional right to a speedy trial. However, during oral argument, Mathenia’s counsel advanced a statutory speedy trial claim relying on Abel, 261 Kan. 331, and Noriega, 261 Kan. 440. We address that argument, although improperly raised, to clarify how K.S.A. 22-3402 is to be interpreted when defendants, before trial, spend time in jail not solely by reason of the subject criminal charge. Mathenia’s pretrial motion to dismiss for violation of constitutional and statutory speedy trial rights alleged that he had been denied his statutory speedy trial right under K.S.A. 22-3402(2), more than 180 days having elapsed from his arraignment date. The district court denied the motion, ruling that “22-3402 doesn’t apply in this situation, because Mr. Mathenia is being held in prison on other charges.” We agree with the district judge’s statutory speedy trial analysis. Green, in which a statutory speedy trial violation was asserted and denied, controls here. 260 Kan. at 473; see State v. Gross, 245 Kan. 189, 191, 777 P.2d 781 (1989).
The State in its brief cites Abel and Noriega, in which we held that K.S.A. 22-3402(2) (requiring that a defendant held to answer on an appearance bond be brought to trial within 180 days) applied to defendants held in jail not solely for the crime charged. The State argues that those cases are distinguishable because they involved defendants who were either held on a parole violation (Abel) or a probation violation (Noriega) at the time of the crimes, not a defendant committing crimes while incarcerated in the state prison.
Abel and Noriega appealed their convictions for felony murder, aggravated burglary, and aggravated robbery, raising the denial of their statutory right to a speedy trial. At the time of the crimes, Abel was on parole and Noriega was on probation. Both Abel and Noriega moved for dismissal, based on K.S.A. 22-3402(1), because their trials had commenced more than 90 days after arraignment. The district court decided that K.S.A. 22-3402(1) did not apply because Abel and Noriega were being held in jail on other charges — a parole violation for Abel and a probation violation for Noriega. However, the district court ruled that K.S.A. 22-3402(2), which provides a 180-day speedy trial period, would apply. The trials took place within that 180-day period, so there was no statutory speedy trial violation. We affirmed the district court in both cases, relying on State v. Hill, 257 Kan. 774, 895 P.2d 1238 (1995) (also involving a defendant who was on parole when charged with felony crimes). Noriega, 261 Kan. at 458; Abel, 261 Kan. at 335. Hill did not rely upon or mention K.S.A. 22-3402(2); however, we acknowledged in Abel and Noriega that although the 90-day period of K. S .A. 22-3402(1) would not apply, the 180-day period of K. S .A. 22-3402(2) would:
“A person being held in jail not solely for the crime charged is not entitled to be brought to trial within 90 days after the person’s arraignment but is entitled to be brought to trial within 180 days after the person’s arraignment.” Abel, 261 Kan. at 335.
“Because Noriega was not solely being held in jail for the crime charged, he was not enüded to be brought to trial within 90 days after his arraignment. He was entitled to be brought to trial within 180 days after his arraignment.” Noriega, 261 Kan. at 459.
The quoted language from both cases is inconsistent with prior case law and 22-3402(2) and is disapproved.
In Hill, a parole officer placed an arrest and detain order against Hill for failure to comply with conditions of parole after Hill was arrested and jailed for the subject crime. The trial took place more than 180 days after arraignment (arraignment was on October 26, 1992, and trial commenced June 14, 1993). We affirmed the district court’s denial of Hill’s speedy trial motion, stating:
“Unless a defendant is being held in jail solely on the charges in the case, the 90-day time limit set forth in K.S.A. 22-3402 does not apply. State v. Goss, 245 Kan. 189, Syl. ¶ 1, 777 P.2d 781 (1989). There was substantial competent evidence supporting the district court’s determination that K.S.A. 22-3402 was inapplicable because the defendant was not being held in jail solely on the charges herein. We find no error or abuse of discretion in the district court’s determination thereof.” 257 Kan. at 778.
The K.S.A. 22-3402(2) argument was not raised in Hill, even though Hill’s trial commenced more than 180 days after arraignment. We addressed the constitutional speedy trial issue. Relying on Goss, 245 Kan. 189, we determined that a lapse of less than 11 months between arrest and trial did not require application of the other factors of the Barker balancing test. The district court did not abuse its discretion in finding that Hill’s constitutional speedy trial rights had not been violated. 257 Kan. at 779.
Goss also provides guidance here. Goss was arrested on September 22, 1986, and after an amended complaint was filed and the initial charges were dismissed, arraigned on February 27,1987, for first-degree murder and unlawful possession of a firearm. His trial commenced on October 14, 1987, resulting in the convictions. While Goss was already in jail, he was served with a criminal warrant for unrelated burglary and theft charges on March 6, 1987. We disposed of the statutory speedy trial issue raised on appeal as follows: “[Djefendant was held in jail solely on the case before us approximately one week between his arraignment and trial. Accordingly, he did not meet the requirement of K.S.A. 22-3402(1) of being ‘held in jail solely by reason thereof.’ ” 245 Kan. at 191. K.S.A. 22-3402(2) was not discussed, although Goss’ trial commenced more than 180 days after arraignment (there were apparently significant delays that the State argued were chargeable to Goss).
In Green, 260 Kan. 471, we denied both statutory and constitutional right to speedy trial violation claims. Green was arraigned on November 12, 1993, and his trial commenced on November 14, 1994. We determined that because Green was being held for reasons other than the charges stemming from the May 22, 1993, attack, his right to a speedy trial under K.S.A. 22-3402(1) was not violated. 260 Kan. at 473 (citing Goss, 245 Kan. at 191). As in Hill and Goss, the argument that K.S.A. 22-3402(2) should apply was not raised in Green (although well over 180 days had elapsed between arraignment and trial).
Factual distinctions exist between this case and Green, on one hand, and Abel and Noriega, on the other; however, those distinctions do not logically justify what appear to be different interpretations of K.S.A. 22-3402. Under Green, Goss, and Hill, we interpret K.S.A. 22-3402 as not applicable when a defendant is held in jail for any reason other than the subject criminal charge. Our holdings in Abel and Noriega could be used to support a much broader interpretation of K.S.A. 22-3402, i.e., if the defendant is in jail solely because of the subject criminal charge, then the 90-day period in K.S.A. 22-3402(1) applies, if the defendant is in jail not solely by reason of the subject criminal charge, then the 180-day period in K.S.A. 22-3402(2) applies. We reaffirm our reasoning in Green, Hill, and Goss, and disapprove of the interpretation of K.S.A. 22-3402(2) expressed in Abel, 261 Kan. at 335, and Noriega, 261 Kan. at 459. K.S.A. 22-3402(2) refers only to defendants “charged with a crime and held to answer on an appearance bond.” See State v. Sanders, 224 Kan. 138, 140, 578 P.2d 702 (1978); State v. Strong, 8 Kan. App. 2d 589, 592-93, 663 P.2d 668, rev. denied 233 Kan. 1093 (1983). Mathenia was not held on an appearance bond; therefore, K.S.A. 22-3402(2) does not apply.
The Grand Jury Proceedings
Mathenia contends the grand jury proceedings were not held in conformity with statutory requirements and, therefore, his indictment is defective. This argument lacked merit in Green: “[T]he State . . . demonstrated that [the grand jury] was properly summoned by an order of the majority of district judges for the First Judicial District in accord with K.S.A. 22-3001(1).” 260 Kan. at 475. See Clemons, 261 Kan. at 69. Green and Clemons control.
Sufficiency of the Evidence
Mathenia contends that his convictions are not supported by the evidence and must be reversed. He points out that there was no physical evidence linking him to the crime. He acknowledges the conflicting testimony of the State’s witnesses, as opposed to those who testified for him, and agrees, at least in part, that “[t]his case hinged on the credibility of the witnesses.”
Three of the State’s witnesses provided eyewitness testimony of Mathenia’s involvement in the attacks on both officers.
We have considered and rejected sufficiency of evidence claims in four other cases concerning the Lansing incident: Clemons, 261 Kan. 66; Green, 260 Kan. 471; Knighten, 260 Kan. 47; and Harris, 259 Kan. 689. The convictions were affirmed in each case. This case is no different. For a recitation of our often repeated standard of review in sufficiency of the evidence claims, see Clemons, 261 Kan. 66, Syl. ¶¶ 3-4.
Gang Membership or Affiliation
Mathenia asserts that the district court erred in allowing evidence of gang membership or affiliation to be presented.
Abuse of discretion is the standard applied when reviewing the admission of gang evidence. State v. Cox, 258 Kan. 557, 562, 908 P.2d 603 (1995). Mathenia acknowledges that the State offered gang evidence to impeach him and his alibi witnesses.
Mathenia’s counsel argued that it was improper for the State to inquire into gang association when the State gave no pretrial notice that it intended to explore this area and claim that this attack on the officers was gang-related. The State asserts that its sole intent was to use the evidence of gang involvement for impeachment purposes, showing that Mathenia’s alibi witness and Mathenia were all associated with the same gang, so it was not necessary to provide pretrial notice. The district court ruled against Mathenia, agreeing that “coincidental gang membership between those witnesses and the defendant is a proper subject for impeachment.” We agree.
The gang evidence presented was relevant to witness bias and credibility, and as in Green, 260 Kan. at 474-75, and Knighten, 260 Kan. at 53-55, the district court did not abuse its discretion in admitting this evidence.
Affirmed.
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In a letter dated April 11,' 1997, to the Clerk of the Appellate Courts, respondent Willis Boyd Evans, Jr., of Wichita, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1996 Kan. Ct. R. Annot. 223).
On Januaiy 18, 1991, respondent was suspended from the practice of law by this court and placed on probation for 2 years. In re Evans, 248 Kan. 176, 804 P.2d 344 (1991). On May 7, 1993, respondent, having complied with the conditions imposed by the court, was discharged from probation. In re Evans, 253 Kan. 21, 858 P.2d 337 (1993).
At the time respondent surrendered his license, case No. 78,373 was set on this, court’s docket for April 18, 1997. In that case, the report filed by a hearing panel for the Kansas Board for Discipline of Attorneys recommended that respondent be indefinitely suspended as a result of violating the Model Rules of Professional Conduct in connection with his representation of four separate clients. Also at the time respondent surrendered his license, in addition to case No. 78,373, there were three other complaints which were being investigated by the Disciplinary Administrator’s office. Those complaints contained allegations of dilatory handling of client affairs, failing to properly communicate with clients, and misappropriation of client funds.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted ánd that respondent should be disbarred.
It Is Therefore Ordered that Willis Boyd Evans, Jr., be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Willis Boyd Evans, Jr., from the roll of attorneys licensed to practice law in Kansas.
Dated this 17th day of April, 1997.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1996 Kan. Ct. R. Annot. 226).
|
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On August 11, 1995, a Notice of Formal Proceedings was filed with the Commission on Judicial Qualifications (Commission), under Rule 611(b) (1995 Kan. Ct. R. Annot. 427) against Michael G. Moroney, Judge of the District Court of Wyandotte County, the 29th Judicial District (Respondent). See Code of Judicial Conduct, Rule 601 (1995 Kan. Ct. R.. Annot. 379).
At a November 30, 1995, hearing, the Commission accepted stipulations and heard evidence. Edward G. Collister, Jr., Examiner, of Lawrence, appeared in support of the Notice of Formal Proceedings. Respondent appeared personally and through counsel, Michael A. Barbara, of Wichita'. • .
The Commission unanimously made the following findings of fact, concluding that the findings were established by clear and convincing evidence and established violations of Canons 1 (1995 Kan. Ct. R. Annot. 379), 2 (1995 Kan. Ct. R. Annot. 380), and 3A(3) (1995 Kan. Ct. R. Annot. 382) of the Code of Judicial Conduct.
The findings of .fact were included in a stipulation entered into by Respondent, through his counsel, before the hearing.
“COUNT I
“1. On September 16, 1994, a series of incidents occurred at DL’s Club in Kansas City, Kansas, involving Respondent.
“2. On that evening, Respondent arrived at DL’s Club with a female companion. After the Respondent ordered drinks, the bartender infonned Respondent that she would not serve him another drink because he had had enough to drink. Respondent replied angrily, picked up a glass, and threw it at the bartender or in the bartender’s direction. The glass struck a small island in the center of the bar area and shattered. Respondent then picked up a bottle and threw it toward thfe bartender. . .
“3. Later at the bar Respondent' bumped into a Walter Adams. Mr. Adams fell to the floor. Respondent then.went to the parking lot where he obtained a firearm from his car. Respondent later reported to an investigator that he had been told Adams’ friends might not let the incident drop so he obtained the gun.
“4. Subsequently, a tow truck driver was preparing to tow Respondent’s car and take Respondent wherever he wished to be taken. Respondent commented, ‘I’m not going with that son-of-a-bitch’ and then with the assistance of another bystander was driven to an apartment complex in Smithville with his companion. On the way, Respondent became argumentative on learning that this bystander’s father was an attorney. Respondent then commented he was going to kill the bystander, his family, and his father with his thumbs.
“5. Respondent was intoxicated during the incidents at DL’s Club on September 16, 1994, and while intoxicated was in possession of a firearm outside the club.
“6. In October 1993, Respondent was involved in another physical confrontation with an individual at the Golden Ox Restaurant. A woman who was with Respondent went to the restaurant bar to talk to two men sitting at the bar, one of whom she knew. The man asked Respondent if he wanted a drink and received no response. Respondent grabbed the man, knocking him to the floor.
“COUNT II
“7. A litigant named Baljit Hundal appeared pro se in Respondent’s court on several occasions in Case No. 93 L 2029. On March 24, 1993, Mr. Hundal appeared in court pro se. Respondent ridiculed Mr. Hundal about Mr. Hundal’s inability to speak English fluently. Respondent kept insisting that Mr. Hundal needed an attorney; Mr. Hundal maintained that he wished to represent himself. Respondent told Mr. Hundal to leave the courtroom, which he did, and the case was dismissed for lack of prosecution on July 21, 1993.
“8. Respondent had a practice of dismissing limited civil cases if, at a docket call the attorneys did not appear when their cases were called, even though they were in another division of the court. On one occasion, attorney David Clark left a motion to reinstate a case so dismissed with Respondent’s secretary, requesting that Respondent sign the order. Mr. Clark subsequently received a telephone call from Respondent, who angrily asked, “Who the hell do you think you are?’ The motion was denied.
“9. In a case involving Boatmen’s Bank and Simone Fuentes, Case No. 92 L 3537, the plaintiff was represented by a Missouri attorney. A request was made to set aside a default judgment in a case in which garnishments had issued following judgment. Plaintiff had brought witnesses to court, including a process server and two bank officers on the issue of service. When the issue was announced at the call of the docket, Judge Moroney replied he would give Mr. Schultz his hearing but he was going to set aside the judgment anyway. He also indicated that he felt it was a waste of the court’s time to hear any evidence on this matter. Then a default judgment was entered against plaintiff on a counterclaim because a reply had not been filed until that morning prior to court, even though a pro tem Judge had given permission for it to be filed. After plaintiff’s counsel reported what the pro tem Judge had said, Respondent commented, “When you come across the river, better play by our rules.’ Respondent indicated he did not care whether defense counsel had an objection, he was going to enter a default judgment against plaintiff on the counterclaim.
“COUNT III
“10. Two attorneys, Aline Pryor and David Epstein, were involved in litigation in Case No. 93 D 4291, a divorce action filed September 20, 1993, and assigned to Respondent. Both attorneys contacted Respondent’s Administrative Assistant and obtained a hearing date of November 3, 1993, at 10:45 a.m.
“11. The attorneys appeared on the day in question together with their clients and members of their clients’ families. The attorneys told the Administrative Assistant that they were there for trial. The Administrative Assistant acknowledged the scheduled hearing. Respondent was just leaving the bench and entering his office. The attorneys approached Respondent and advised that they were there for the trial and requested a short conference prior to the Court taking the bench.
“12. Respondent first pointed to one of the attorneys, Mr. Epstein, and shouted, “Who is that?’ The other attorney responded by identifying die attorney and indicating that he represented the wife. Respondent was informed that this attorney offices in Johnson County. Respondent demanded to know why they were there. The attorneys responded that they were present for the 10:45 a.m. trial. In response to that statement, Respondent yelled, “You are not having a trial today! I am leaving for lunch now and I will not be late!’ Respondent told the attorneys the case was not on his calendar and started yelling at them that he was sick of attorneys being irresponsible and setting cases on the wrong days. The attorneys explained they had called to schedule the case several times and were assured it was this date and were assured there would be at least 45 minutes to be heard. Respondent replied, ‘It’s not on my calendar and I won’t hear this today!’ Respondent continued to deny that the attorneys had called and scheduled a trial for that date.
“13. When the attorneys persisted, Respondent shouted that his schedule was veiy busy and that no one understood this. He again referred to his lunch plans and reiterated that he was unaware of this hearing.
“14. Respondent pounded his fist on the desk and became quite agitated. Respondent was asked if he could at least grant the parties an emergency divorce. He screamed a response that he did not have time to do it, but he would grant the divorce to get rid of them. Respondent grabbed the docket sheet, slammed the judgment stamp onto the page, and began filling it out. One attorney asked if Respondent wanted to put the clients on the stand or have them come in his office to attest to the need for the emergency divorce. He screamed again that he did not have time for that and, if they wanted a divorce, this was how it would be done.” ' ■
The Commission entered the following conclusions of law:
“COUNT I
“1. The notice of Formal Proceedings alleges that Respondent’s conduct in Count I violated the provisions of Canon 1 and Canon 2 of Rule 601 of the Rules of the Supreme Court Relating to Judicial Conduct.
“2. Canon 1 provides, inter alia:
A judge should uphold the integrity and independence of the judiciary..
A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity . . . of the judiciary may be preserved.
“3. Canon 2 provides, inter aha:
A Judge should avoid impropriety and the appearance of impropriety in all his activities.
“4. The Commission unanimously finds that Respondent’s conduct, established by clear and convincing evidence, violated Canon 1 and Canon 2 as cited above.
“COUNT II
“5. The Notice of Formal Proceedings alleges that Respondent’s conduct in Count II violated the provisions of Canon 1, Canon 2, and Canon 3A(3) of Rule 601 of the Rules of the Supreme Court Relating to Judicial Conduct.
“6. Canon 1 provides, inter alia:
A judge should uphold the integrity and independence of the judiciary.
A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity . . . of the judiciary may be preserved.
“7. Canon 2 provides, inter aha:
A judge should avoid impropriety and the appearance of impropriety in all his activities.
“8. Canon 3A(3) provides, inter aha:
A Judge should perform the duties of his office impartially and diligently.
A. Adjudicative Responsibilities.
(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity ....
“9. The Commission unanimously finds that Respondent’s conduct, established by clear and convincing evidence, violated Canon 1, Canon 2, and Canon 3A(3) as cited above.
“COUNT III
“10. The Notice of Formal Proceedings alleges that Respondent’s conduct in Count III violated the provisions of Canon 1, Canon 2, and Canon 3A(3) of Rule 601 of the Rules of the Supreme Court Relating to Judicial Conduct.
“11. Canon 1 provides, inter aha:
A judge should uphold the integrity and independence of the judiciary.
A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity ... of the judiciary may be preserved.
“12. Canon 2 provides, inter aha:
A Judge should avoid impropriety and the appearance of impropriety in ah his activities.
“13. Canon 3A(3) provides, inter alia:
A judge should perform his duties of his office impartially and diligently.
A. Adjudicative Responsibilities.
(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity . . . .”
By an affirmative vote of five members, in an order dated January 8,1996, the Commission recommended under Rule 620 (1995 Kan. Ct. R. Annot. 431) that Respondent be disciplined by removal from the bench.
Three members of the Commission concurred in the findings of fact and conclusions of law but dissented as to the recommendation.
The minority recommendation was: (1) immediate suspension without pay for 2 months, (2) entry into an alcohol treatment program, (3) attendance and completion of any evaluation and/or treatment program recommended by the approved facility, (4) remain involved with the impaired judge’s assistance committee established by Rule 640 (1995 Kan. Ct. R. Annot 435), (5) cooperation with that committee, (6) abstain from the use of any and all alcoholic beverages, (7) comply with the Code of Judicial Conduct, (8) be monitored by a person to be selected by the court or the Commission who would report to the court or the Commission, and (9) pay the costs of these proceedings.
The probationary period recommended by the minority was 3 years. If Respondent had complied with the above conditions after a period of 3 years, the minority would recommend that the court vacate its order of removal.
Respondent, on January 26, 1996, took no exceptions to the Commission’s findings but did express exceptions to the Commission’s failure to:
(1) “find from clear and convincing evidence that Respondent is and was at all times material an impaired judge under Rule 640 of the Rules of the Supreme Court of the State of Kansas Relating to Judicial Conduct”;
(2) “find that there was clear and convincing evidence of mitigation in that Respondent successfully completed an appropriate alcohol dependency treatment program”; and
(3) “enter a Conclusion of Law that Respondent was an impaired judge.”
Respondent also objected to the recommendation for removal from the bench and requested that the court adopt the minority recommendation except as to suspension of pay for 2 months.
On February 23, 1996 the Commission through its examiner filed a motion for an order of temporary suspension requesting that the court temporarily suspend Respondent from further judicial duties during the pendency of this proceeding.
We issued an order on February 23, 1996 ordering Respondent to appear in person or by counsel on March 8, 1996, at 9 a.m. to show cause as to why he should not be temporarily suspended from the performance of his judicial duties. A briefing schedule had been established on the removal recommendation of the Commission and oral argument was set in this Court for May 31, 1996.
On March 7, 1996, Respondent resigned his position as district judge in the 29th Judicial District.
Under Rule 620, removal from the bench is the maximum discipline that the Commission may recommend. Respondent has voluntarily resigned from office, and under the facts of this case, nothing remains to be determined by this court. The order to show cause and the hearing on removal from the bench are moot.
Dated April 11, 1996.
It Is Therefore Ordered that these proceedings be and they are hereby terminated at Respondent’s costs. The case is removed from the May 1996 docket.
It Is Further Ordered 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 Disciplinary Administrator’s office against Richard Alan Krogh, of Lawrence, an attorney admitted to the practice of law in Kansas.
A formal complaint was filed against respondent on August 25, 1995. Count I alleged violations of MRPC 1.3 (1995 Kan. Ct. R. Annot. 257) (diligence), MRPC 1.15 (1995 Kan. Ct. R. Annot. 294) (safekeeping property), MRPC 5.3 (1995 Kan. Ct. R. Annot. 327) (supervising nonlawyer assistants), and MRPC 8.4 (1995 Kan. Ct. R. Annot. 340) (fitness to practice). Count II alleged violations of MRPC 1.15 and 8.4. Count III alleged violations of MRPC 1.3, MRPC 1.5(d) (1995 Kan. Ct. R. Annot. 268) (failure to advise client of right to review fees), 1.15, 5.3, and 8.4(g).
Respondent filed an answer admitting the allegations, with certain exceptions as to specific dates and times of his conduct, and alleging mitigating circumstances.
A formal hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The Deputy Disciplinary Administrator amended the formal complaint, and respondent amended his answer and advised the panel that he admits the factual allegations of the formal complaint as amended and the alleged violations of the model rules.
The matter was submitted to the hearing panel for consideration of matters of mitigation and aggravation, and the panel found that the following facts were established by clear and convincing evidence:
“2. In 1992 respondent undertook to represent Deborah and Stacie Kice in connection with their claim for damages arising out of a motor vehicle collision. Deborah’s claim was settled in September of 1993 and Stacie’s claim was settled in February 1994.
“3. Settlement of both claims involved reimbursement of PIP payments made by Farm Bureau Insurance Company. With respect to count one of the formal complaint, State Farm did not receive a check for the balance of said PIP reimbursement until May 1994. Said check was returned twice due to insufficient funds.
“4. Farm Bureau filed the instant complaint and by letter of July 12, 1994, . . . respondent apologized, took full responsibility for his failure to make the PIP reimbursement in a timely fashion and delivered'to Farm Bureau a certified check in the amount of the PIP hen.
“5. With respect to count two, during the course of the investigation of count one, the disciplinary investigator discovered that the respondent was guilty of numerous trust account violations all as set out in greater detail in paragraph fourteen (14) of the formal complaint herein. Although respondent described his checking account as being a ‘trust’ account and although it was labeled ‘Iolta account’ said account in fact served as respondent’s office operating account. Accordingly, respondent commingled his funds with the funds of his clients, did not provide separate, appropriate accountings and on several occasions said account contained a negative balance.
“6. With respect to count three of the formal complaint, during the course of the investigation of this matter it was determined that the respondent’s ‘settlement statement’ in connection with the claim of Deborah Kice did not properly ‘advise the client of the right to have the fee reviewed as provided’ by the Kansas Rules of Professional Conduct. However, the respondent’s employment contract with Deborah Kice contained the required statement and Deborah Kice testified that at the time of the settlement of her claim the respondent again advised her verbally of her right to have the attorney fee reviewed by the court.’’
The panel made the following conclusions of law:
“7. The panel unanimously finds, based upon clear and convincing evidence, and specifically considering the respondent’s admissions and stipulations, that the respondent’s conduct as described herein violates the following Kansas Rules of Professional Conduct:
a. Rule 1.3 (Diligence);
b. Rule 1.15 (Safe keeping of client’s property);
c. Rule 5.3 (Supervising nonlawyer assistants);
d. Rule 1.5(d) (Fees — notice to client of right to have fee reviewed by court);
e. Rule 8.4 (conduct adversely reflecting on a lawyer’s fitness to practice).”
The Disciplinary Administrator’s office recommended published censure as appropriate punishment. The panel found no aggravating factors. As to mitigating factors, the panel stated:
“The panel does note the presence of a number of mitigating circumstances, including compelling circumstances in the respondent’s private life involving his personal health, his wife’s health and problems with his teenage son. The panel notes the respondent’s full and timely cooperation in the investigation and disposition of these complaints, the lack of any previous disciplinary complaints and the respondent’s full acceptance of responsibility herein and true remorse for any problems caused as a result of his behavior.
“Most importantly, the panel notes the apparent efforts of the respondent’s wife, during the time period in question, to protect and shield the respondent from work related stress, including her deliberate failure to inform respondent regarding the returned checks and the failure to prompdy and properly reimburse the PIP carrier.
“The panel notes that the most serious violation herein concerns the respondent’s mishandling of client funds. It appears this was occasioned by the respondent’s failure to properly maintain and utilize a true trust account, and it appears that respondent may not have fully appreciated the seriousness of this situation and the importance of the legal requirements in this regard. The panel notes that the respondent has taken appropriate remedial action and now utilizes a properly established trust account in addition to his regular business operating account.
“In consideration of the above and foregoing factors the panel unanimously recommends that the respondent be given the sanction of published censure and that the costs herein be assessed to the respondent.”
Respondent filed no exceptions to the report of the panel. Respondent agrees with and stipulates to the recommendation that he be sanctioned by published censure.
The court, having considered the record herein and the report of the panel, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel.
It Is Therefore Ordered that Richard Alan Krogh be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (1995 Kan. Ct. R. Annot. 191).
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports.
|
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The opinion of the court was delivered by
Davis, J.:.
This appeal comes before us upon our grant of review on two issues: (1) whether the removal of hazardous waste from landowners’ property was an “improvement of real property” within the meaning of the mechanic’s lien statute, K.S.A. 60-1101; and (2) whether a subcontractor not in privity with the owner of the property may initiate an action for unjust enrichment against the owner when the prime contractor fails or refuses to pay the subcontractor.
The trial court granted summary judgment to the defendant on both issues. The Court of Appeals affirmed the trial court’s judgment that the plaintiff’s removal of waste was not lienable under K.S.A. 60-1101 but reversed and remanded for consideration of the plaintiff’s unjust enrichment claim. Haz-Mat Response, Inc., v. Certified Waste Services, Ltd., 21 Kan. App. 2d 56, 896 P.2d 393 (1995).
The material facts necessary for the resolution of the issues presented are largely undisputed. Defendant Coastal Refining and Marketing (Coastal) contracted with defendants Certified Supply Corporation (Certified) and Chief Supply Corporation (Chief) to dispose of up to 500,000 pounds of Coastal’s hazardous waste located on Coastal’s property in four containers: two above-ground emulsion breaking tanks, one API separator, and one in-ground tank. Certified and Chief subcontracted with plaintiff Haz-Mat Response, Inc., (Haz-Mat) to perform part of the work.
Problems arose during performance of the contract, and although Haz-Mat removed the waste from the storage tanks, it was not disposed of as required by the prime contract. Coastal hired other contractors to complete the work. Coastal refused to pay Certified and Chief, who in turn refused to pay Haz-Mat. Haz-Mat filed a mechanic’s lien and thereafter filed suit against Certified, Chief, Coastal, and CIC Industries, the apparent owner of the real property on which Coastal conducted business. (Hereinafter, CIC and Coastal will be referred to simply as “Coastal.”) In its petition, along with breach of contract claims against Chief and Certified, Haz-Mat asked for foreclosure of a mechanic’s Men against Coastal. In the alternative, Haz-Mat asked for judgment against Coastal, Chief, and Certified on the theory of quantum meruit/unjust enrichment. In a separate claim, Haz-Mat asserted a fraud claim against Chief.
Coastal filed a summary judgment motion, claiming that hazardous waste removal would not support a mechanic’s lien because the removal is not an improvement of real property. Coastal also claimed that a subcontractor may not recover against a property owner on the basis of unjust enrichment in the absence of privity of contract. On the basis of undisputed facts, the trial court granted Coastal summary judgment on both claims.
Haz-Mat then entered into a stipulation with Chief and Certified for dismissal of all other claims. The trial court dismissed in accord with the stipulation. Haz-Mat appealed. The Court of Appeals affirmed the trial court’s ruling that Haz-Mat’s activities under the circumstances of this case could not form the basis for a mechanic’s lien. However, the Court of Appeals reversed the trial court, concluding that under the circumstances, Haz-Mat had a viable unjust enrichment claim against Coastal notwithstanding a lack of privity. 21 Kan. App. 2d at 65-66. We granted petitions for review on both issues.
MECHANIC’S LIEN
The Court of Appeals concluded that the removal of hazardous material under the given facts did not constitute an “improvement of real property” within the meaning of K.S.A. 60-1101 and, therefore, was not lienable. As recognized by the Court of Appeals, the issue presented was a matter of first impression in this state.
We agree with the Court of Appeals’ conclusion that the removal of hazardous waste in the circumstances of this case was not lien-able; we also agree with some of the rationale provided for this conclusion. However, because this is a case of first impression, we choose to conduct our own analysis of the issues presented. Because this analysis involved the interpretation of a statute, our standard of review is unlimited. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
Our mechanic’s lien law is remedial in nature, enacted for the purpose of providing effective security to any persons furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property under a Contract with the owner. The theory underlying the granting of a lien against the property is that the property improved by the labor, equipment, material, or supplies should be charged with the payment of the labor, equipment, material, or supplies.
At the same time, a mechanic’s lien is purely a creation of statute, and those claiming a mechanic’s lien must bring themáelvés clearly within the provisions of the authorizing statute. Kansas City Heartland Constr. Co. v. Maggie Jones Southport Cafe, Inc. 250 Kan. 32, 34, 824 P.2d 926 (1992). The statute must be followed strictly with regard to the requirements upon which the right to hen depends. Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, SyL ¶ 2, 505 P.2d 640 (1973). However, because the statute is remedial and designed for the benefit and protection of persons designated by the act, once a hen has been found to have attached, the law is to be liberally construed in favor of such claimant. See Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 704-05, 549 P.2d 1376 (1976).
K.S.A. 60-1103 provides that a subcontractor may obtain a mechanic’s lien as provided for in K.S.A. 60-1101. K.S.A 60-1101 states:
“Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a hen upon the property for the labor, equipment, material or supplies furnished, and for the cost of transporting the same.”
There is no dispute that Haz-Mat complied with all statutory requisites in filing its mechanic’s lien, that it provided labor and materials used in the removal of hazardous waste on the owner’s real property, and that it has not been paid under its subcontract. The question before the trial court and on appeal is whether Haz-Mat’s waste-removal activities constituted an improvement of real property.
The phrase “improvement of real property” is not defined in the Kansas mechanic’s lien statute. The only reported Kansas case interpreting the term “improvement” as used in our mechanic’s lien statute is Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 14 Kan. App. 2d 714, 717, 798 P.2d 511, rev. denied 248 Kan. 996 (1990). The question presented in Mark Twain was whether the
architectural and engineering services provided by subcontractors constituted lienable labor resulting in an improvement to real property when construction was never commenced and there appeared no visible or physical manifestation of the subcontractors work on the property. Mark Twain held that the professional services provided were never used or consumed in any improvement of the real property within the meaning of K.S.A. 60-1101. The Court of Appeals relied in part on the earlier case of Benner-Williams, Inc. v. Romine, 200 Kan. 483, 485, 437 P.2d 312 (1968), wherein this court said: “In order for a mechanic’s lien for labor and materials to attach, such items must be used or consumed for the improvement of real property, and thus become part of the realty itself.”
Mark Twain concluded that there is a requirement of “[s]ome visible improvement” or some “visible effect on the real estate” “in order to put those who seek to acquire an interest in the land on notice that building has commenced on the property.” 14 Kan. App. 2d at 721. However, an examination of the cases relied upon by the Court of Appeals does not support the conclusion that there must be some visible effect on the real property for the activity to be liénstble. Mark Twain fufthér concluded that improvement is “generally defined as' any physical addition made' to. real property that enhances the value of the land.” 14 Kan. App. 2d. at 720. While this definition may be generally true, there is no requirement under our present law that there be a physical addition made to real property.- Further, while the improvement will enhance the value qf the- land; it need not actually enhance the market value of the land. See 53 Am Jur. 2d, Mechanics’ Liens § 2, p. 517: See also Masterson v. Roberts, 336 Mo. 158, 163, 78, S.W.2d 856 (1934) (the Question of whether alteration of a building makes the property-moré valuable is a business decision the owner makes when he authorizes the work to bé ’done and does not affect whether a mechanic’s -lien may attach).'
While the' Court of Appeals in this case discusses Mark Twain, it did not base its decision on' Mark Twain. Instead, the Court of Appéáls adopted'the . following dictionary definition of-improvement: “A-valuable addition made to property (usually real-estate) or an amelioration in its' condition; amounting to more than mere repairs' or’ replacement, c'osting labor or capital, and intended to enhance its value,'beauty or-utility or to adapt it for new or further ptirpo'ses.” Black’s Law Dictionary 757 (6fh ed. 1990).” Applying this-definition,-the Court of Appeals concluded that the -removal of the waste undér the circumstances of this case was not lienable in'-that removal'was part of a maintenance program necessary in the normal’ course of Coastal’s business. “The removal of the waste did not become a part of the property or' enhance the value of the real estate because defendant would generate more waste to take its place.” 21 Kan. App. 2d at-62.
The phrase “improvement"of real property” first appears in K.S.A. 60-1101 in 1964. Other than in Mark Twain, the meaning of the term “improvement” used in K.S.A. 60-1101 has not been discussed or defined in Kansas. However, earlier Kansas cases not involving the precise issue We now address provide some guidance for the present statute. In Hill v. Bowers, 45 Kan. 592, 26 Pac. 13 (1891); the statute in question granted' a lien for a person who furnished material for erecting any fence. The court held that it must appear not only that such material was purchased to be used for fencing, but it must also appear that the same was in fact so used as to become a part of the realty. Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 29 Pac. 153 (1892), involved the question of when time begins to run under the lien statute. The court held that it was not the placing of some material on lots later used in construction which started the time but that it was the digging of a cellar. “A lien for fixtures or machinery dates from the time they are furnished or put up, by the express words of the section.” 48 Kan. at 344.
The labor, equipment, material, or supplies must by the express terms of the statute be used or consumed for the improvement of properly. In Seyb-Tucker Lumber and Implement Co. v. Hartley, 197 Kan. 58, 415 P.2d 217 (1966), the last date material was furnished became important. It was determined that a certain gallon of turpentine was purchased for use in the construction but never used in the actual construction. In holding that the gallon purchased could not be the basis for a lien and relying on established Kansas law, the court concluded that “ no lien can be allowed for material purchased for a budding on the land of the owner unless it in fact goes into the building and becomes a part of the realty. ” 197 Kan. at 62 (quoting Sash & Sales Co. v. Early et d., 117 Kan. 425, 232 Pac. 232 [1925]). Similarly, in Benner-Williams, Inc. v. Romine, 200 Kan. at 485, the court held: “In order for a mechanic’s lien for labor and materials to attach, such items must be used or consumed for the improvement of real property, and thus become part of the realty itself.”
However, Kansas law does not require that an actual structure be built on the property. In Benner-Williams, a lien existed where the labor and materials were provided to remodel an existing residence. See 200 Kan. at 486. In Southwestern. Electrical Co. v. Hughes, 139 Kan. 89, 93, 30 P.2d 114 (1934), this court determined that bringing in and grading dirt was a lienable activity in that it was an improvement in the property. In Hughes, this court concluded that grading was lienable where the evidence established that the lots were low and dirt had to be hauled in to grade up around the house and garage. The court noted that the grading necessary under the plan of construction was as essential as the building of steps to get up and down. The court held: “Dirt fur nished for grading the lot as a necessary feature of the plan of construction of the building was a lienable item.” 139 Kan. 89, Syl. ¶ 5.
The Court of Appeals in this case cited an Alabama case dealing with the definition of the term improvement. In Mazel v. Bain, 272 Ala. 640, 133 So. 2d 44 (1961), the Alabama Supreme Court dealt with the question of whether clearing land, which included “pushing stumps and scrub oaks, raking and leveling the said lands” was an improvement on land under their statute which granted a lien to “every . . . person . . . who shall do or perform any work, or labor upon . . . any building or improvement on land.” (Emphasis added.) 272 Ala. at 641. The Alabama Supreme Court adopted the Black’s Law Dictionary definition of the improvement and held that the labor was lienable. Moreover, the court recognized that the determination of what activity was lienable under its statute depended upon an examination of the facts in each case. The court recognized that improvements meriting the protection of a lien under the statute may occur in unforeseen variety and, thus, the determination was to be made on the facts of each particular case. 272 Ala. at 641-42.
Another case dealing with the definition of improvement to real property is Cates v. Hunter Engineering Co., 205 Ill. App. 3d 587, 563 N.E.2d 1239 (1990). Cates is a products liability action involving an allegation of negligent design, assembly, and manufacture of a cold rolling mill, which was characterized as a machine. The question was whether the plaintiff’s action was time barred under Illinois law, which provided in part that no action based upon tort may be brought against any person for an act or omission in the design, planning, supervision, observation, or management of construction, or construction of an improvement to real property, after 10 years elapsed from the time of such act or omission. 205 Ill. App. 3d at 588.
The question on appeal was whether the defendant had met its burden of establishing that the cold rolling mill was an improvement to real property within the meaning of the statute. Cates defined an “improvement” as an addition to real property amounting to more than mere repair or replacement and which substan- Rally enhances the value of the property. The court concluded that the installation of the cold rolling mill was more than a “mere repair or replacement,” that the installation substantially enhanced the value of the real property, and that the installation was, therefore, an improvement to real property under the statute. 205 Ill. App. 3d at 588-90.
From the above discussion, several observations may be drawn concerning the statutory construction of the phrase “improvement of real property” as used in K.S.A. 60-1101: (1) What is or is not an improvement of real property must necessarily be based upon the circumstances of each case; (2) improvement of the property does not require the actual construction of a physical improvement on the property; (3) the improvement of real property need not necessarily be visible, although in most instances it is; (4) the improvement of the real property must enhance the value of the real property, although it need not enhance the selling value of the property; (5) for labor, equipment, material, or supplies to be lien-able items, they must be used or consumed and thus become part of the real property; (6) the nature of the activity performed is not necessarily a determining factor of whether there is an improvement of real property within the meaning of the statute; rather, the purpose of the activity is more directly concerned in the determination of whether there is an improvement of property which is thus lienable; and (7) the furnishing of labor, equipment, material, or supplies used or consumed for the improvement of real property may become lienable if established to be part of an overall plan to enhance the value of the property, its beauty or utility, or to adapt it for a new or further purpose, or if the furnishing of labor, equipment, material, or supplies is a necessary feature of a plan of construction of a physical improvement to the real property. Finally, consistent with die Court of Appeals’ opinion in this case, Black’s Law Dictionary’s definition most closely reflects what is meant by use of the phrase “improvement of real property” in K.S.A. 60-1101: “A valuable addition made to real property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.” Black’s Law Dictionary 757 (6th ed. 1990).
Applying the above definition, we find no evidence in the record that the removal of the hazardous waste was part of an overall plan to improve the property or that removal would necessarily enhance the value of the real property. Removal would presumably allow the business to continue as it had before removal. There is no evidence that removal would adapt the property for new or further purposes. In fact, the evidence established that the same business would be conducted as before. We agree with the Court of Appeals that the removal was not lienable because it was part of a maintenance program that was necessary in the normal course of Coastal’s business. The evidence fails as a matter of law to demonstrate that the removal was an “improvement of real property” within the meaning of K.S.A. 60-1101.
UNJUST ENRICHMENT
The Court of Appeals correctly notes that the question whether a subcontractor can recover from an owner on the basis of unjust enrichment or quantum meruit under the facts of this case is a question of law, with an unlimited scope of review. 21 Kan. App. 2d at 63. As noted by the Court of Appeals:
“ ‘Quantum meruit is an equitable doctrine. “Restitution and unjust enrichment are modem designation for the older doctrine of quasi-contracts.” Peterson v. Midland Nat'l Bank, 242 Kan. 266, 275, 747 P.2d 159 (1987). “The theory of quasi-contract is raised by the law on the basis of justice and equity regardless of the assent of the parties.” Holiday Development Co. v. Tobin Construction Co., 219 Kan. 701, 708, 549 P.2d 1376 (1976). “The substance of an action for unjust enrichment lies in a promise implied in law that one will restore to the person entitled thereto that which in equity and good conscience belongs to him [or her].” Peterson, 242 Kan. at 275.’ Pioneer Operations Co. v. Brandeberry, 14 Kan. App. 2d 289, 299, 789 P.2d 1182 (1990).” 21 Kan. App. 2d at 63.
Coastal asks this court for review of the part of the Court of Appeals’ decision which determined that the trial court erred in concluding that Haz-Mat could not proceed under the theory of unjust enrichment in the absence of privity of contract. Coastal argues that the overwhelming weight of authority is that this theory is not available to a subcontractor.
The district court granted summary judgment in favor of Coastal on this issue based on language found in Holiday Development Co., 219 Kan. at 708, wherein this court stated:
“Many courts have considered whether a subcontractor or materialman can obtain a personal judgment against an owner on the basis of quasi-contract or unjust énrichment, in the absence of privity of contract or a direct promise to pay. The overwhelming weight of authority is in the negative (see Anno.: Subcontractor’s Recovery Against Owner, 62 ALR 3d 288, § 4, 297-303).”
However, our decision in Holiday Development Co. was not based on the finding of a blanket prohibition against the use of unjust enrichment theory where no privity of contract existed, but was based on the conclusion that there was no unjust enrichment. See 219 Kan. at 708-09.
In J.W. Thompson Co. v. Welles Products Corp., 243 Kan. 503, 511-12, 758 P.2d 738 (1988), we stated that “apart from unjust enrichment or from any .special statutory rights and remedies, a subcontractor or supplier who has furnished labor or materials for an improvement has no right to a personal judgment against one not in privity.” We noted:
“The basic elements of a claim based on a theory of unjust enrichment .are threefold: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain thebenefit without payment of its value.” 243 Kan. at 512.
The sole basis for the trial courts decision that a claim for unjust enrichment would not lie was lack of privity between the owner, Coastal, and the subcontractor, Haz-Mat. Our past cases establish that recovery under quasi-contract or unjust enrichment is riot prohibited simply because the subcontractor and the owner of. the property are not in privity. This conclusion is consistent with the thebiy of quasi-contract and unjust enrichment, which does not depend on privity. See 66 Ain. Jur. '2d, Restitution and Implied Contracts § 2, pp. 943-44.
However, in both of the above cases this court held that the circumstances did not permit the subcontractor to proceed with a claim of unjust enrichment against the owner. In Holiday Devel=- opment Co., 219 Kan. at 707, we said that “[a] subcontractor or materialman generally may not obtain a personal judgment against the owner in the absence of an agreement by the owner to pay (Hodgson v. Billson, 12 Kan. 568; Sash Co. v. Heiman, 71 Kan. 43, 80 Pac. 16; Geis Irrigation Co. v. Satanta Feed Yards, Inc., 214 Kan. 373, 521 P.2d 272).” We further concluded in J. W. Thompson, 243 Kan. at 512: “There simply are no special circumstances to justify its [unjust enrichment] application.” Both cases cited with approval the annotation in 62 A.L.R.3d 288, entitled “Subcontractor s Recovery Against Owner.” We may conclude from our past decisions and from a close examination of this annotation that the circumstances under which an unjust enrichment claim may be brought by a subcontractor against an owner, absent privity, are indeed limited.
In theory, the right to recover under unjust enrichment is governed by principles of equity. The obligation upon which the right to recover is based is created and imposed by law to prevent unjust enrichment at the expense of another. If the law is to allow the action based upon an implied-in-law contract between the owner and subcontractor, there must exist some special circumstances that would justify requiring the owner to pay. An examination of our past cases and further consideration of those cases set forth in Annot., 62 A.L.R.3d 288, convinces us that an essential prerequisite to such liability is the acceptance by the owner (the one sought to be charged) of benefits rendered under such circumstances as reasonably notify the owner that the one performing such services expected to be compensated therefor by the owner. In the absence of evidence that the owner misled the subcontractor to his or her detriment, or that the owner in some way induced a change of position in the subcontractor to his or her detriment, or some evidence of fraud by the owner against the subcontractor, an action for unjust enrichment does not lie against the owner by a subcontractor.
Although Haz-Mat submitted an affidavit stating that its president “believed” Coastal was responsible for the bill along with the prime contractor, Haz-Mat did not present any evidence nor did it claim that this supposed belief was based on any statement or promise by Coastal. We do not suggest that privity must be established or that a promise by the owner must be established in order for the plaintiff to have an unjust enrichment claim, but there must exist such special circumstances to warrant such an action. Here, no such circumstances existed.
• The Court of Appeals concluded that unjust enrichment would lie because “plaintiff’s removal work is not lienable under K.S.A. 60-1101” and an action in equity might be plaintiff’s only available avenue. In reaching its conclusion, we believe the Court of Appeals placed too much emphasis on the position of the plaintiff and failed to emphasize that the basis of an unjust enrichment action involves a consideration of the circumstances surrounding the acceptance and retention of the benefit by the defendant. While the position of the plaintiff is always a factor to be considered, it is “the acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without payment of its value” that is of critical importance in making a determination of whether such an action will lie. J. W. Thompson Co., 243 Kan. at 512.
Holiday Development Co., 219 Kan. 701, remains good law. Those factors set forth in that opinion should be considered when deciding whether there is a basis for an action for unjust enrichment. However, the Holiday Development Co. factors are not exhaustive. As we have concluded in fhis case,, an essential prerequisite to such liability for unjust enrichment in a case between a subcontractor and owner not in privity is the acceptance, by the one sought to be charged, of benefits rendered under such circumstances as reasonably to notify him or her that the one performing such services expected to be compensated therefor by the one sought to be charged. Moreover, the undisputed facts fail to establish that Coastal misled Haz-Mat to its detriment, that Coastal in some way induced a change of position in Haz-Mat to its detriment, or that any fraud existed. Although on an entirely different basis, we conclude that the undisputed facts require affirmance of the trial court’s decision that the theoiy of unjust enrichment was not available to Haz-Mat.
The judgment of the Court of Appeals is affirmed in part and reversed in part, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Davis, J.:
This is an attempted appeal by the State from a trial court ruling vacating the defendant’s plea of guilty. Because the State does not satisfy any of the statutory grounds authorizing an appeal to this court, we dismiss for lack of jurisdiction.
The facts of this case are unique and somewhat complicated. The defendant was originally charged with one .count of possession of methamphetamine under K.S.A. 1993 Supp. 65-4127a. Normally, possession would be a severity level 4 felony, but the defendant was charged with a severity level 1 felony offense based upon his two prior convictions in 1988 under the provisions of K.S.A. 1988 Supp. 65-4.127b for. sale of methamphetamine. See K.S.A. 1993 Supp. 65-4127a(c). The defendant was also charged with one count of unlawful possession of drug paraphernalia.
The defendant entered into a plea agreement with the State whereby he agreed to enter a plea of nolo contendere to the felony charge of possession in exchange for the State’s agreeing to (1) dismiss the drug paraphernalia charge and (2) amend the possession of methamphetamine charge to possession of methamphetamine, having once been convicted under the Uniform Controlled Substances Act for sale of methamphetamine. The second provision of the plea agreement had the effect of reducing his crime of possession of methamphetamine from a severity level 1 felony to a severity level 2 felony. See K.S.A. 1993 Supp. 65-4127a(c). Pursuant to the agreement, the defendant pled no contest to the amended charge, and the court, satisfied that a factual basis existed, accepted his plea and found him guilty.
Prior to sentencing, the defendant filed a motion captioned “Objections to Criminal History Classification and Severity Level.” He argued that his prior 1988 convictions for sale of methamphetamine could not be used to enhance his current offense. The defendant’s argument is based upon K.S.A. 1993 Supp. 65-4127a:
“(c) If any person has a prior conviction under this section or a conviction for a substantially similar offense from another jurisdiction, then that person shall be guilty of a drug severity level 2 felony and if the person who violates this section has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony.” (Emphasis added.)
The defendant argued that his two prior convictions for possession of methamphetamine occurred in 1988 under the provisions of K.S.A. 1988 Supp. 65-4127b rather than under K.S.A. 1988 Supp. 65-4127a; therefore, they were not under this section as provided for under K.S.A. 1993 Supp. 65-4127a(c) and could not be used to make his most recent conviction a severity level 2 felony.
At the hearing on his motion, the defendant did not ask the court to vacate the plea agreement but instead asked that his current conviction be properly counted as a drug severity level 4 offense and that his prior convictions be used to determine the appropriate criminal, history category of F. In the alternative, the defendant asked that if the court held the current conviction to be a drug severity level 2 offense, that his prior criminal history should not include either prior conviction because under K.S.A. 1993 Supp. 21-4712 they would be elements of or used to enhance the severity level of the current criminal conviction. The State argued that the defendant had already pled no contest and should not now be allowed to unilaterally rewrite the plea bargain.
After taking the issue under advisement, the court held that the defendant’s conviction for sale of methamphetamine under a previous statute did not constitute a prior conviction under K.S.A. 1993 Supp. 65-4127a(c) because the conviction was not under this section as set forth in K.S.A. 1993 Supp. 65-4127a(c). The court vacated the defendant’s plea, finding that the factual statement supporting the plea was incorrect and that his plea of nolo conten-dere should not have been accepted. The court found that neither party was bound by the plea agreement.
Turisdiction
The State attempts to perfect its appeal under K.S.A. 22-3602(b), which provides that appeals may be taken from cases before a district court judge as a matter of right from an order arresting judgment. The State argues that the effect of the district court’s decision was that of an order arresting judgment. The right to appeal is statutory, and in the absence of a statute authorizing an appeal, an appeal is not available to the losing party in the district court. State v. Bickford, 234 Kan. 507, 509, 672 P.2d 607 (1983).
K.S.A. 22-3502 provides that the court shall arrest judgment on motion of the defendant if the complaint, information, or indictment does not charge a crime or if the court was without jurisdiction of the crime charged. See State v. Crozier, 255 Kan. 120, 123, 587 P.2d 331 (1978). K.S.A. 22-3503 states that the court may arrest judgment on its own motion if it becomes aware of the existence of grounds to do so.
The information or indictment in this case did charge a crime, and the court had jurisdiction over the crime charged. However, based upon the trial court’s interpretation of K.S.A. 1993 Supp. 65-4127a(c), the court concluded that the evidence was not sufficient to convict the defendant of the crime charged. We have held that a motion for arrest of judgment does not test the sufficiency of the evidence to convict the defendant of the crime. State v. Sims, 254 Kan. 1, 9, 862 P.d 359 (1993).
In its journal entry, the trial court stated that “the factual statement of the State of Kansas at the Change of Plea on December 14, 1994, was incorrect and should not have been accepted by the Court and that this matter is jurisdictional.” The State would have us rule that the complaint in this case did not charge a crime and that vacating the plea was therefore an arrest of judgment. Notwithstanding the comment by the trial court that the matter was jurisdictional, the basis for the trial court’s action in this case was its conclusion that there was an insufficient factual basis for acceptance of the defendant’s plea. K.S.A. 1993 Supp. 65-4127a, under which the defendant was convicted, outlines the basic offense and provides that it is a severity level 4 crime. K.S.A. 1993 Supp. 65-4127a(a).
K.S.A. 1993 Supp. 65-4127a(c), when applicable, relates to punishment for the crime charged and does not make the defendant’s two prior convictions elements of the crime charged. The question of whether the evidence presented by the State in its factual basis was sufficient to support a plea does not affect the jurisdiction of the court. The vacation of the defendant’s plea of nolo contendere was not an arrest of judgment under the provisions of K.S.A. 22-3602(b), and we have no jurisdiction to consider this appeal.
Appeal dismissed.
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The opinion of the court was delivered by
Horton, C. J.:
Hunter held a note signed by F. W. Neitzel, which was secured by a mortgage executed by said Neitzel and wife. Other mortgages on the same real estate, executed by Neitzel and wife, were held by L. J. Crans and William Dinwoodie. Hunter commenced his action in the cou-rt below to obtain judgment on his note and to foreclose his mortgage, and he joined Crans and Dinwoodie as parties defendant, alleging as to them that they claimed an interest in the mortgaged premises to the amount of $500 each, and that said claim consisted of mortgage-liens on said premises to secure the payment of said money. The summons was issued March 20th 1875, made returnable on the 23d, served on the 20th, and returned and filed on the 22d. The answer-day was set for the 12th of April following. Crans and the Neitzels appeared specially and objected to the summons on the ground that the answer-day was fixed less than twenty days after the day on which the summons was returnable. Their motion being overruled, and leave to answer having been refused, the court rendered judgment against both the Neitzels, foreclosed the mortgage, and barred the said Crans from setting up or claiming any right or title, legal or equitable, in the said described premises.
1'umelerüie of The motion to set aside the summons was properly overruled, as the answer-day was within the provision of the statute. Sec. 722 of the civil code, Gen. Stat. 1868, p. 771, provides that the time within which an act is to be done shall be computed by excluding the first day, and including the last. Under this rule, the return-day of the summons is to be excluded, and the 12th day of April included; and there being eight days in March, after the 23d, and including April 12th, twelve days in April, twenty days time were allowed for answering after the day on which the summons was returnable. The argument of counsel that the 24th of March should be construed as the first day, and therefore excluded, and that of necessity the answer-day could not have been earlier than the 13th of April, .is not sustained by any decision, nor in accordance with the rules of construction of statutes in such cases. Dougherty v. Porter, 18 Kas. 206.
The application for leave to answer was denied by the court; and in the absence of any showing of a defense in the case, it cannot be reasonably argued that the court erred in its action. Such applications are greatly . . ’ n in the discretion of the court, to refuse, or allow; but without making any claim to a defense, a party is not entitled to the right of filing an answer in an action, when in default upon personal service.
The objection that the case was not properly on the docket, or triable at the April term for 1875, is also unavailing. The answer-day was on the 12th of the month. Court convened on the 4th Monday of the same month, to-wit, on April 26th, and under the statute the case was then properly for hearing, no answer having been filed.
Within the decision of the case of Short v. Nooner, 16 Kas. 220, so much of the judgment as debars and forecloses the rights of Crans in the mortgaged premises is erroneous, and cannot be sustained. The same may be said of the personal judgment against the wife of Neitzel. She only signed the mortgage, and was not liable personally on the note; therefore it was error for the court, as to her, to do more than decree a foreclosure of the mortgage, and order a sale thereof to satisfy the judgment, costs and expenses and bar her from setting up any title or claim thereafter in the same. If the premises failed to satisfy the judgment, the separate property of the wife could not be taken to pay it. The mortgage was only a security for the debt evidenced by the note, and such security could be fully exhausted; but the liability of the wife was limited to the security given by her, viz., all her interest in the mortgaged premises.
The judgment will be reversed as to L. J. Crans, and modified as to Maria Neitzel, so as to relieve her from the payment of any portion of the judgment rendered personally against her after a sale is made of all the mortgaged premises; and otherwise the judgment of the district court is affirmed. No costs will be taxed in this court against L. J. Crans; and as to the other parties, the costs will be divided.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
On the 17th of January 1875, $2,601 were stolen from defendant in error, and this action was brought to recover that sum, and interest, from the plaintiff in error as one of the parties alleged to have committed the larceny. Two juries upon successive trials found in favor of the plaintiff Sass, and from the judgment rendered upon the last verdict this proceeding in error has been brought.
The first matter to which our attention has been directed by counsel, and upon which special stress has been laid, is, the sufficiency of the testimony to sustain the verdict. We have examined the testimony, 4 J ' which is very voluminous, and do not think the claim of counsel can be sustained. One Grebe, admitting his own participation in the larceny, swears positively that Winter planned it, actually took the money, and subsequently gave him seven hundred dollars as his share of the proceeds. Winter denies this in toto. Outside of these two principal witnesses there is a mass of circumstantial testimony, some tending to implicate and some to exculpate' Winter. It would be a useless labor to attempt to enumerate all the circumstances. Among them may be noticed, that few knew that Sass had any money, and still fewer (not more than three or four, and among these Winter,) where he kept it; that it was taken by some one who knew where it was kept, for the thief entered the house, went to the-bureau-drawer, and took it from under some clothes, without' searching or disturbing anything else; that it was taken on Sunday evening, when Sass and his wife were at Winter’s, about two blocks off, playing cards; that while so playing Mrs. Winter excused herself to put the children to bed, and Winter went out and was absent about half an hour, and upon his return, and the resumption of the cards, neither Winter nor his wife seemed able to keep any track of the game; that immediately after the larceny was discovered, which was on the return of Sass to his home about 10 o’clock that evening, Winter was notified, and for some days was very officious throwing suspicions on different parties, some of whose houses he induced Sass to have searched, finally suggesting to Sass that Mrs. Sass must have taken it. Again, the thief entered the house through the back door, pressing the door until a screw which held the catch of the bolt gave way. A short time before, Winter had taken a knife and gone to the back door on pretense of fastening the screws, and had cautioned Sass and his wife about the care they should take of their money. Again: One of the pieces of money stolen was a gold dollar which had been used as a breast-pin, and while the pin was gone the catch to which the pin was fastened still remained. On the search of Winter’s house some weeks after a similar gold dollar was seen by one of the policemen. Then there was an anonymous and abusive letter sent by Winter to Sass, and contradictory statements of Winter. All this . made a mass of testimony, tending strongly to corroborate the positive testimony of Grebe. We do not mean that none of this testimony was contradicted. Much of it was positively denied by Winter and others, so that after all, the case must have turned upon the credibility of the various witnesses. As written down upon paper, it seems to us that the plaintiff’s testimony proved his case, and as the jury found in his favor we suppose they must have believed his witnesses. And we cannot say that they were not warranted in so doing.
A second error alleged is, in admitting the testimony of the witness Grebe. At the time of the trial Grebe was a convict in the penitentiary, serving out his sentence for the larceny or this very money. The statute is clear. Section 319 of the code provides, that, “No person shall be disqualified as a witness in any civil action * * * , or by reason of his conviction of a crime; but such * * * conviction may be shown for the purpose of affecting his credibility.” And section 335 provides for the examination of any person confined in prison.
Another objection is made to the admission of the anonymous letter heretofore noticed. It was admitted to be in Winter’s handwriting, and Sass testified that he received it through the mail, and Winter that it was written some six or seven weeks alter the larceny. Ihe objection made is as to its relevancy. Prior to the time of writing the letter, as Winter testifies, he had heard that Sass was charging him with the larceny, and had also sent in a bill for some tailoring which was some ten or twelve dollars too large. Thereupon, and because of these two,matters, he wrote the letter. It commences, as translated —
“You old monster of men. As I am so far free from you, so at least you cannot make a double charge against me, so will I recall your black soul.”
It continues for several sentences in a similarly abusive strain. Now it seems to us that the ruling of the court must be sustained, and upon this principle, that where a charge is made against a man his reply to that charge is admissible against him in a subsequent action based upon that charge. Suppose Sass, meeting Winter, had personally charged him with the larceny. It would clearly be competent to prove what Winter said in reply, although it were simply a torrent of abuse, and with no direct reference to the charge. So here, Winter testifies that this letter was written partly on account of the excessive bill, but more because he had heard of the charge of larceny made by Sass against him. Instead of going to him personally, he writes him this anonymous letter. And while there is no more direct reference to the charge of the larceny than in the words quoted, it seems to us that the letter was competent as Winter’s reply to the charge, and as part of his conduct with reference thereto.
So far as the accusation against the juror is concerned, it is not sustained by the proof.
The testimony of Thomas Carney does not seem to have been of sufficient moment, even if outside the scope of legitimate inquiry, to justify a reversal of the judgment.
The remaining error complained of involves the action of the counsel for the plaintiff in his closing argument to the jury. He stated to the jury that a former jury had, on less evidence, found for the plaintiff, and when the other side objected to this statement he reiterated . . , it, and said that the records of the court disclosed this fact. After this however he stated that he re called the remarks, and wished the jury not to consider the same. And the court at the instance of the defendant gave this instruction:
“The jury have no business to consider the fact what the jury on a former trial of this case did, or the fact that the court set aside the finding of that jury. This case must now be determined on the facts of the case as appear by the evidence here.”
Ought the verdict for this irregularity to be set aside? We doubt not that many cases may arise in which the misconduct of counsel, in going outside of the evidence in his argument, may be such as to compel a reversal. No one can doubt the impropriety of such con- . A J duct. In doubtful cases it may be that which turns the scale, and determines the verdict. And a court, especially a trial court, should be exceedingly careful to restrain such misconduct, and punish the offender personally, and by setting aside every verdict which it has reason to believe has been affected thereby. But to hold that every such misconduct should be visited by a reversal of the judgment, would be unjustifiable rigor, and ofttimes doing as much or greater wrong than the misconduct itself. Who does not know that in the excitement of an argument there occasionally fall from the lips of counsel statements of matters not in evidence? Familiar with all the facts and history of the case, it is not strange that he sometimes refers to facts pot proven. Should the client suffer by loss of his verdict, for every such offense of his counsel? Clearly there would be no justice in that. All that can safely be laid down is, that whenever in the exercise of a sound discretion it appears to the court that the jury may have been influenced as to their verdict by such extrinsic matters, however thoughtlessly or innocently uttered, or that the statements were made by counsel in a conscious and defiant disregard of his duty, then the verdict should be set aside. In this case the trial court overruled the motion to set aside the verdict. Doubtless it appeared to it that there was no intentional wrong, and that the matter was not of itself sufficient to have influenced the minds of the jury; and with that we concur.
Two juries have passed upon the question of fact, each in the same way; and as it is principally a question of fact, and the weighing of conflicting and contradictory testimony, that conclusion ought to stand unless it is clearly and palpably wrong.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The material questions in this case are, as to the liability of a vendor of forged school-district bonds to the purchaser thereof, where there is no collateral contract of warranty; and if a liability exists against the vendor, whether a return or an offer to return the counterfeit bonds by the purchaser immediately after discovering that they are worthless, is essential to the right of recovery; and lastly, where such vendee has sold the forged bonds for a sum in excess of the price paid by him, and has never taken the bonds back, or returned the money received by him to his vendee, has such second vendee or his assignee any right of action against the original vendor? The facts are as follows: William R. McNair, assignee of Jones & Howell, sued Smith & Son to recover back the consideration, with interest, which Jones & Howell had paid the Smiths for certain supposed (but really forged) school bonds and coupons, which the Smiths had sold and delivered to Jones & Howell. There was no express warranty by Smith & Son, and no indorsement or written guaranty by them. Jones & Howell sold the bonds to McNair for $87.50 more than they gave for them. There was a mistake by all the parties. The sellers and the buyers supposed the bonds to be genuine, when in truth they were forged. After they were ascertained to be worthless, Jones & Howell assigned in writing their cause of action against the Smiths to McNair. The consideration of the assignment was the liability of Jones & Howell to their vendee, which liability was more than the claim of Jones & Howell against Smith & Son. We have carefully examined the cases relied upon by the counsel for plaintiff in error in support of the proposition that when a negotiable instrument passes by mere delivery, and the instrument is sold the same as any other article, the vendee cannot recover back the purchase-money even if the instrument is forged; but in our view, the cases cited are in conflict with the great current of both English and American authorities, and in some of the cases quoted there are features which widely distinguished them from the case at bar. The rule is, that if one person applies to another to purchase an article for a particular purpose, and the person so applied to sells him the article knowing that the purchaser relies upon his complying with his request, the law implies that the article is delivered with a warranty that it is the article called for. It is too well settled to admit of discussion, that a vendor who sells negotiable bonds or notes, is bound, not by the collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent that which is genuine, not that which is .false, or counterfeit; and if the negotiable instrument turns out to be forged, the seller is liable to the vendee for what he has received from him for it, with interest from the time of the receipt. The mere act of sale impliedly warrants the genuineness of the instrument. We need only refer to a few of the many cases supporting this view.
In Jones v. Hyde, 5 Taunt. 488, it was held, that the vendor of a forged navy-bill was bound to return the money received for it; and in this case the decision was placed on the ground that where a bill was discounted as genuine, which turned out to be forged, both parties being equally innocent, having equal knowledge and equal means of knowledge, the money was recoverable back as money had and received.
In Young v. Cole, 3 Bing. N. C. 724, it was held, that when the plaintiff, a stock broker, was employed by the defendant to sell for him four Guatemala bonds, in April 1836, and it was shown that in 1829 unstamped Guatemala bonds had been repudiated by the government of that state, and had ever since been not a marketable commodity on the stock exchange, and the defendant received the price on the delivery of the bonds, both parties being ignoránt that a stamp was necessary, that as the bonds were valueless the defendant was bound to restore the price received. Tindal, C. J., said: “It is not a question of warranty, but whether the defendant had not delivered something which, though resembling the article contracted to be sold, is of no value.”
In the case of the Cabot Bank v. Morton, 4 Gray, 156, it was decided that a person who procures notes to be discounted by a bank, impliedly warrants the genuineness of the signatures of the makers and indorsers. The court say, that it is “a general rule of law, that in every sale of personal property the vendor impliedly warrants that the article is in fact what it is described and purports to be, and that the vendor has a good title and right to it.”
Again, in Snyder v. Reno, 38 Iowa, 329, the court held that the transfer of a note by delivery, whether the consideration be money or merchandise, impliedly warrants the genuineness of the signature of the maker. See also, Gurney v. Womersley, 28 Eng. L. & Eq. 256; Worthington v. Cowles, 112 Mass. 30; Aldrich v. Jackson & Butts, 5 R. I. 218; Terry v. Bissell, 26 Conn. 23; Ledwich v. McKein, 53 N. Y. 307.
Reason also supports the authorities. Where a person buys negotiable bonds, he expects to receive genuine instruments, not false and fictitious ones. If one buys bread, he does not expect a stone; if he bargains for fish, he is not satisfied with a serpent. In this case, Jones & Howell contracted for school-district bonds, and paid for such bonds. They received worthless papers, of no value intrinsically to any one. What they bargained for, they have not received. No school-district bonds have ever been delivered to them. Common honesty requires that the money they paid out should be returned with interest.
As to the question made, that no recovery could be had without a return, or an offer to return the forged bonds, we answer, that within the principle applied in the case First Nat. Bank Sturgis v. Peck, 8 Kas. 660, no return or offer to return was necessary to maintain the action brought by McNair. The bonds were forged, and entirely worthless to all the parties. “In such a case, the return would be a useless ceremony, which the law never requires.”
The objection of plaintiff in error to the judgment, that Jones & Howell resold the bonds in excess of the price paid, is not we^ sustained. The implied warranty of genuineness by Smith & Son was broken the instant of the delivery of the bonds, and they at once became liable to their vendees for the amount they received. This cause of action then accrued. The plaintiffs in error were in nowise affected by such second sale, and could not plead such sale in bar of the rights of Jones & Howell against them, nor against their assignee, who stands in the shoes of Jones & Howell in this case.
The other exceptions taken on the trial were immaterial, as the answer states the assignment of the cause of action to the defendant in error by Jones & Howell, and the sale of the forged bonds to him by them; hence these matters were not in issue in the case, and no instructions or directions to the jury concerning these facts were either necessary or proper.
The judgment of the district court is affirmed.
Valentine, J., concurring.
Brewer, J., not sitting.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a due-bill for $167, brought by plaintiff in error, who was plaintiff below, against the defendant in error. The execution of the due-bill was not denied, but the claim was that is was simply a memorandum of a balance due on the purchase of a half-interest in a livery stable and stock in Hutchinson, Reno county, and that two days after a note had been executed in lieu of the bill. The undisputed facts of the case are, that plaintiff and defendant were for several months partners in the livery business, and that in the fall of 1878 they dissolved partnership and divided the stock, each taking certain animals, etc., at stipulated prices. At the close of the division this due-bill was given by the defendant to the plaintiff, for a balance due. Two days after, a note was also executed for the same amount, and delivered to plaintiff; and defendant contends that the note was in lieu of the due-bill, while the plaintiff insists that a part of the property taken by her was a pair of “Bird fillies,” as they were called, and that after the division she sold them to the defendant, and for them and one or two little matters the note was given. The jury found for the defendant, and that the note and due-bill were given for the same consideration. Plaintiff brings the case here, and presents as questions of error simply rulings as to the admission and rejection of testimony. We shall first notice the last question made by counsel. The defendant not denying .the execution of the due-bill, the burden of proof was placed on him; he practically opened the case, and introduced his testimony to show that the note was given in lieu of the due-bill. In answer to that, plaintiff’s husband, who had been her agent and transacted all the business, testified to the different consideration of the two instruments as heretofore indicated. He was asked several questions as to statements made by him to one Conner Brown, at certain times and places, all of which he specifically denied. They were statements in reference to the disposition of the Bird fillies in the division of the partnership property, and of course therefore bore directly upon the vital question of a separate consideration for the due-bill. After the plaintiff had finished, defendant in rebuttal introduced the testimony of Conner Brown, to the effect that the witness, plaintiff’s husband, had made those statements. He identified the time and place, fixing the time specifically in the month of May and at the stable of plaintiff He fixed the time absolutely by. certain matters of his own history, which he claimed enabled him to be positive as to the time. After the defendant bad again rested, the plaintiff sought to introduce testimony that at the times these statements were claimed by Conner Brown to have been made, the latter was confined to his bed by sickness, was not able to leave his room, could not possibly have been at the stable, and could not have heard any statements of any kind from said witness; but the court refused to permit this testimony, holding that at that stage of the case the plaintiff was limited to .impeaching testimony, and that this did not fall within such category. In this we think the court erred. That the testimony offered was important, cannot be doubted. The vital question was, whether the “Bird fillies” were taken by the plaintiff, or defendant. Plaintiff’s husband and agent, her main witness, had positively sworn that they were taken by her. Conner Brown testified that this principal witness of the plaintiff had at a certain time and place told him that they were taken by the defendant. This statement outside the court room was in direct contradiction of the testimony given inside. As no motive appeared for making any false statement to Conner Brown, if the jury believed the latter’s testimony they would be inclined to doubt very much the testimony of plaintiff’s husband. Where as in this case the two main witnesses flatly contradicted each other, a matter like this would turn the scale. Now if plaintiff could show that at the time Conner Brown claimed to have heard these statements, it was absolutely'impossible for him to have been present or to have heard any statements, the force of this impeaching testimony would be destroyed; it would be in fact proving an alibi, and an alibi when proved is conclusive. If Brown was not and could not have been present at plaintiff’s stable during the month of May, he did not then hear any statements or admissions of plaintiff’s husband and agent.
Again, this testimony could not have been offered before. Until Conner Brown had been called as a witness, and his testimony given, it was not competent to prove anything as to his whereabouts in the month of May. It is true in this case that his testimony was taken by deposition, and so the plaintiff knew what testimony had been taken and might be offered,- but he could not know that this deposition would be read by defendant; he had no right to anticipate its reading, and attempt to contradict or impeach it in advance. The rule is the same as though the witness .himself was on the stand, and the testimony drawn out from him before the jury. Finally, we remark that this testimony was really in the nature of impeaching testimony. It did not bear directly on the question at issue between the parties; it simply impeached Conner Brown’s testimony as to the hearing of certain statements, by showing that he was not present where he could hear.
We think, therefore, the court erred in ruling out this offered testimony. For this error the judgment must be reversed, and the case remanded for a new trial.
In reference to the first error complained of, we may say briefly,.that the testimony offered and refused was probably competent, though unless followed by evidence of a judgment and proof that plaintiff was in fact made a party to the litigation, it might be obnoxious to a motion to strike out. In reference to the second ruling complained of, we may say, in general, that where the issue turns upon a question of fact, in respect to which there is a single witness on each side, and they flatly contradict each other, it is often proper to extend the scope of inquiry to many minor circumstances tending to show the probability of the story given by one or the other of these witnesses; and while perhaps it cannot be said that the court erred in refusing to admit the testimony offered, we also think that it would not have erred if it had admitted it. The matter sought to be introduced was perhaps not very important, yet it might have thrown some light on the controversy. Without pursuing the case further, and alone for the error first above noticed, 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
Valentine, J.:
This was an action brought by Amy Sprague against C. M. Ott for the partition of lots numbers 6 and 9, in block 51, in the city of Olathe, Kansas. The plaintiff claimed to be the owner of one undivided one-half •of said lots, with the improvements thereon, while the defendant claimed to be the solé and exclusive' owner of the property. The case was tried in the court below by the court without a jury, upon an agreed statement of facts, and upon this agreed statement of facts the court below found in favor of the plaintiff and against the defendant, and rendered judgment accordingly; and the defendant, as plaintiff in error, now-brings the case to this-court for review.
It appears from the agreed statement of facts, that on August 1, 1862, and prior thereto, Noble Carithers and Nancy Carithers were husband and wife; that they resided upon and occupied the property in controversy as their homestead, and that the title to the property was in Noble Carithers. Samuel Carithers, a son of Noble Carithers by a former wife, lived with Carithers and wife as a part pf their family. About August 1,1862, Nancy Carithers left her husband on account of cruel treatment received from him, and commenced an action against him for alimony. She never afterward resided upon said property. On September 4, 1862, she obtained a judgment or order against her husband requiring him to pay to her the sum of $75 as alimony — $40 for attorney-fees, and $35 for costs of suit. On September 29,1862, Noble Carith ers executed a warranty deed for the premises to his son, Samuel Carithers; and in October, 1862, he leased the premises to John T. Weaver, and John T. Weaver with his- wife Elizabeth F. Weaver took possession of the property under the lease. In December, 1862, an execution was issued on Mrs. Carithers’s judgment in the alimony case, and was levied upon the premises, and afterward the property was sold at sheriff’s sale to’Mrs. Weaver; and on March 30, 1863, a sheriff’s deed was executed to her for the premises. On March 29, 1864, Samuel Carithers redeemed the property from such sheriff’s sale by paying the amount of the judgment, with.costs, to the sheriff of Johnson county, but the money has never yet been paid to Mrs. Weaver. Afterward, and sometime during the year 1864, Mrs. Carithers went to southern Kansas to reside, and while there lived with a daughter of hers by a former husband. In 1865, Carithers went to Leavenworth to reside, and never afterward resided in Johnson county. In- March, 1866, the action of Mrs. Carithers against her husband for alimony was dismissed without prejudice. On March 18, 1868, Mrs. Carithers executed a quitclaim deed for the premises to Mrs. Weaver. On March 4, 1870, Samuel Carithers commenced an action of ejectment against both Weaver and his wife, to evict them from the premises, and in this action he was successful. This case of ' Carithers .v. Weaver and Weaver will be found reported in 7 Kas. 110. Afterward, on March 28, 1871, Nancy Carithers executed a quitclaim deed for the premises to Samuel Carithers. On February 26, 1872, Samuel Carithers, who was still in the possession of the property, sold and conveyed the same by warranty deed to the defendant, Ott, for the sum of $2,500 paid by Ott at the time; and Ott took possession of the property and remained in the exclusive possession thereof up to the time of the commencement of this present action. In the year 1879, Noble Carithers went to the state of Illinois, and in March, 1880, there died. On October 20, Mrs. Carithers executed a warranty deed for the premises to Mrs. Weaver. On January 20, 1881, Mrs. Weaver and her husband executed a quitclaim deed for the premises to their daughter, Mrs. Sprague, who is the plaintiff in this action; and on the same day, Mrs. Sprague commenced this action against the defendant, Ott, for partition as aforesaid.
All the foregoing deeds were duly recorded soon after their execution, but they were all executed upon substantially a nominal consideration, except the sheriff’s deed to Mrs. Weaver and the warranty deed from Samuel Carithers to the defendant Ott. We are inclínéd to think that the judgment of the court below is correct. The deed from Noble Carithers to his son, Samuel Carithers, executed on September 29, 1862, was a nullity, for the property was at that time the homestead of Carithers and his family, and the deed was not signed or acknowledged by the wife of Carithers. Carithers and his son Samuel were then residing upon the property, and Mrs. Carithers, who was then living separate and apart from her husband, because of his ill-treatment of her, evidently had no intention of abandoning her homestead; but if she had, still the husband could not convey his homestead by a separate deed. (Chambers v. Cox, 23 Kas. 393.)
Whether the sheriff’s deed to Mrs. Weaver, executed on March 30,1863, was ever of any validity or not, it is not necessary to determine, for within the proper time under the laws of 1861, (Comp. Laws of 1862, pp. 769-772,) the property was redeemed and the title consequently reverted to and revested in the original owner of the property, which in this case was Noble Carithers; and afterward in a suit between Samuel Carithers and Mrs. Weaver, it was held that she had no title.
The lease from Carithers to Weaver cannot affect any question involved in this case, nor can the fact that Mrs. Weaver has never yet received the redemption-money paid by Samuel Carithers to the sheriff. The quitclaim deed executed by Mrs. Carithers to Mrs. Weaver on March 18,1868, and the quitclaim deed executed by Mrs. Carithers to Samuel Carithers on February 26,1872, cannot have any force or effect, because at the time these two deeds were executed Mrs. Carithers had no title to the property to convey, and the deeds being only quitclaim deeds, any after-acquired title vesting in Mrs. Carithers would not inure to the benefit of either Mrs. Weaver or Samuel Carithers. (Simpson v. Greeley, 8 Kas. 586, 597, 598; Bruce v. Luke, 9 Kas. 201, 207, et seq.; Scoffins v. Grandstaff, 12 Kas. 467, 469, 470.)
The quitclaim deed from Mrs. Carithers to Mrs. Weaver may also be considered as having been adjudicated and held insufficient to pass title in tfie case of Carithers v. Weaver and Weaver, already referred to.
The quitclaim deed from Mrs. Carithers to Samuel Carithers ■cannot have the force and effect to make the deed from Noble Carithers to Samuel Carithers valid. It does not appear to. have been executed with any such intention; but it appears to have been executed solely with the intention of conveying only the interest that Mrs. Carithers had in the property at the very time when she executed the deed. It does not appear that she even thought of her husband’s deed when she executed the quitclaim deed to Samuel Carithers; and there is nothing to show that Carithers ever consented to or ratified this quitclaim deed. The deed from Noble Cardthers to Samuel Carithers was absolutely void,' as we have already stated, and as follows from a number of decisions already rendered by this court. It was void, because it was an attempt to convey or alienate the homestead of Noble Carithers and his family without the consent of his wife, which •cannot be done in Kansas. A homestead can be conveyed or alienated in Kansas only by “the joint consent of husband and wife, when that relation exists.” (Const., art. 15, § 9.) Two separate and independent conveyances by the husband and wife would not be sufficient. (Thompson on Homesteads, § 527, et seq.) It might be that a husband, and wife, by two separate instruments; could alienate the homestead, when it was intended by both that such instruments should operate together as a single instrument; for in such a case it might perhaps be said that the separate consent of each had such a connection with each other that they might together be con sidered as the joint consent of both. But where two separate instruments are executed at two separate and distinct times, as in this case; where a long interval elapses after one is executed before the other is executed, as in this case — the interval in this case being over eight years; and where the two instruments are executed without any reference to each other, or without any intention that the two together may be considered as one single and united instrument, we think that one cannot make the other valid.
The warranty deed from Samuel Carithers to the defendant, Ott, was of but little validity at the time it was executed, for at that time the title to the property was in Noble Car-, ithers, and not in Samuel Carithers; but the deed being a warranty deed, whatever title afterward vested in Samuel Carithers would inure to the benefit of Ott. In 1880 Noble Carithers died, and the title to the property then descended, under the laws then in force, one-half to Mrs. Carithers, and the other half to Samuel Carithers,,Samuel being the only child of Noble Carithers. (Comp. Laws 'of 1879, eh. 33.) But as Samuel Carithers had already attempted to convey his interest in the property by warranty deed to the defendant, Ott, Samuel Carithers’s interest in the property immediately inured to the benefit of Ott. We think the deed executed by Mrs. Carithers to Mrs. Weaver, on October 20, 1880, conveyed a one-half interest in the'property to Mrs. Weaver; and therefor, that Mrs. Sprague now owns an undivided half-interest in the property, and that she is entitled to her action for partition.
It is claimed, however, by counsel for Ott, that the action should have been brought in the probate court, under the provisions of the act concerning descents and distributions. (Comp. Laws of 1879, ch. 33.) We do not think that counsel properly interprets that act; for even if it should be conceded that Mrs. Carithers, if she had not conveyed the property to Mrs. Weaver, and if she herself had commenced the action to recover her interest therein, should have commenced her action in the probate court, and in accordance with the procedure prescribed by the act relating to descents- and distributions — still, it does not follow that Mrs. Spraguemust also resort to that forum and to that mode of procedure. Mrs. Carithers, as the widow and one of the immediate heirs of Noble Carithers, might have to look to the-probate court to obtain her rights; but we do not think that it at all follows that Mrs. Sprague must look to such court. Indeed, we would think it probable that Mrs. Sprague would have no right to commence her action in the probate court, but must resort to an action in partition in the district court, as she has done in the present case.
The judgment of the court below will be affirmed.
Horton, C. J., concurring.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced originally by John Jasper and Thomas Boniface, partners as John Jas per & Co., against G. Gottleib and A. Gottleib, partners as Gottleib Brothers, to recover the sum. of $2,881.59 for work, labor, money and property furnished by the plaintiffs to the defendants, at their request. The defendants in their answer denied generally the allegations of the plaintiffs’ petition, and also set up new matter by way of cross-petition, alleging in substance, that the plaintiffs and defendants were copartners, and demanding an accounting and a dissolution of the copartnership, and a judgment in favor of the defendants and against the plaintiffs for the sum of $4,602.06. To this answer the plaintiffs filed a reply, duly verified by affidavit, denying generally the allegations of new matter contained in the defendants’ answer. The action was tried before the court and a jury, and the jury found in favor of the defendants and against the plaintiffs, assessing the amount of the defendants’ recovery at the sum of $3,500, and interest at 7 per cent, from the commencement of the action; and judgment was rendered accordingly. The plaintiffs filed a motion for a new trial, which was overruled by the court, to which ruling the plaintiffs duly excepted, and afterward made a case for the supreme court, which case was duly settled, signed and authenticated. Afterward, and on March 18,1880, the plaintiffs filed a petition for a new trial, setting up three supposed causes for a new trial, which were in substance as follows:
1. Ineompetency and misconduct of James Johnson, one of the jurors who served in the case.
2. Newly-discovered material testimony of Fred. Ott.
3. Newly-discovered material testimony of James Laughlin, David Ashinfelter, J. N. Debruler, and M. L. Shaw.
The prayer of the petition was, that the verdict and judgment should be set aside, and that a new trial should be granted in the case. The case was heard upon this petition, by the court without a jury, and the new trial asked for was granted, to which the defendants excepted. The new trial, however, was granted upon the following terms and conditions :
1. That the plaintiffs should pay all the costs of both trials, amounting to the sum of $556.60.
2. That the plaintiffs should pay to the clerk of the district court, for the use of the defendants’ attorneys, the sum of $75, attorneys’ fees; all to be paid within forty-five days from the date of the judgment.
To this the plaintiffs excepted, but afterward, and within the required time, complied with the terms and conditions imposed upon them by the court, by paying said costs and attorneys’ fees. The defendants, within the proper time, filed a motion for a new trial upon this petition for a new trial, which motion was overruled, and the defendants duly excepted, and afterward brought the case to this court for review.
A great many questions are raised in this court; but, with the view that we take of the case, we think it is not necessary to discuss in this opinion more than two or three of them:
I. This petition for a new trial, although instituted merely for the purpose of obtaining a new trial in an action to which it is merely incident, may also in one sense be called an action itself, and a new and independent action; and so far as it is a new and independent action, we suppose it should be governed by the rules of procedure governing other actions. We think we agree with the decision made in the case of Sanders v. Loy, 45 Ind. 229, although we should not place the same construction upon that decision which counsel for plaintiffs in error do. We would think that the petition for the new trial should contain the substance of the evidence introduced on the original trial, and also the substance of the newly-discovered evidence, (as decided in the Indiana case, and in the case of Moore v. Coates, 35 Ohio St. 177, 186;) but we do not think that the petition for the new trial need to contain the exact words of the testimony of the various witnesses who testified on the original trial. But what we started out to say is, that a petition for a new trial may to some extent be considered as a new and independent action, and to that extent may be governed by the same procedure as other actions. But we do not think that such a petition can be considered as constituting or embodying more than one cause of action. And therefore we think that counsel in this case are mistaken in supposing that the facts set forth in the plaintiffs’ petition constitute and make up more than one cause of action; or that they would constitute and make up more than one cause of action if all the facts that might reasonably be set forth in such an action were set forth in this, and were well pleaded. The plaintiffs’ cause of action is constituted as follows: Their original right which they had at the first trial to have a judgment rendered in their favor, and the infringement or violation of that right by the defendants defeating the plaintiffs’ action and procuring a judgment to be rendered in their own (the defendants’) favor. The .plaintiffs’ single and only remedy is a new trial. They do not have three remedies; they do not have a separate remedy for each of their supposed causes of action, but only a single reniedy, a single new trial, for all their supposed causes of action. Of course the right of the plaintiffs upon the original trial to have judgment rendered in their favor was composed of several minor and subordinate rights, each of which was capable of being violated and infringed. But the violation and infringment of each of these minor and subordinate rights could not each separately and singly constitute a separate and distinct cause of action. All together would simply make up and constitute one single -and indivisible cause of action, founded upon the violation of one single and indivisible, but more comprehensive right. If the facts set forth in the plaintiffs’ petition for a new trial constituted three sepárate and distinct causes of action, then the plaintiffs might have commenced three separate and independent actions upon them, at three separate and different times, and obtained three separate and distinct judgments; for every separate cause of action will authorize the commencement of a separate action, and sustain the rendition of a separate judgment. A cause of action is often founded upon many separate and distinct facts, or composed of many separate and distinct items. A long and voluminous account, composed of innumerable items, •constitutes only one cause of action; and the enforcement bf a note and mortgage, with all the items of principal, interest and liens, constitutes only one cause of action; and we might ■give other illustrations, but we do not think that it is necessary. We think the petition for the new trial in-this case would be better if all the words therein contained, purporting to state that more than one cause of action was alleged or set forth in the petition, were stricken out. Of course, it is well to number the separate grounds for the new trial, but all these separate grounds must be considered as constituting ■only the various grounds of one single remedy.
II. We think the court below erred in excluding the evidence of qertain jurors, whose testimony was offered by the plaintiffs to show what the juror James Johnson stated in the jury room, while the jury were deliberating upon their verdict. Of course the testimony of jurors cannot-be received to show matters which essentially inhere in their verdict. A juror cannot be introduced tó show that he did not agree to the verdict; or that he intended something different from what he in fact found; or that he was misled by some remark of the court, or counsel, or his fellowjurors; or that he was influenced by his fellow-jurors, or by others; or that he did ■not understand the pleadings, or the evidence, or the instructions of the court; or that his verdict was not founded upon the evidence, but was founded upon something extraneous thereto, and outside of the case. Nor can he be permitted to state the reasons or the grounds upon' which he rendered his verdict, or the motives which governed him; and indeed he cannot be permitted to testify to anything which rests •solely and exclusively within his own personal consciousness, •or which necessarily constitutes or forms á portion of his •verdict. But the juror may testify to fads which transpired within his own personal observation, and which transpired in such a manner that others, as well as himself, could be cogni,zant of them, and could testify to them. For instance, we think it was perfectly competent and proper for the jurors who tried this cause to testify that while they were deliberating upon their verdict, the juror Johnson stated that he personally knew that the plaintiffs and the defendants were copartners, and that he knew it from facts which came within his own personal knowledge, stating some of the facts; and that it was generally understood and believed by other people who had knowledge of the business of the plaintiffs and the defendants, that they were copartners, ás claimed by the defendants. But the jurors could testify to thesethings only as facts, and could nottestify directly as to whether these facts had any influence upon their verdict or not. It will make no difference, however, that these facts may prove, or tend to prove, that the jurors were unduly influenced, or that a court might infer from them that the jurors-were unduly influenced; nor can it make any difference that these facts might prove or disprove something which inheres in the verdict itself. All that is necessary is, that the facts should be such that two or more persons might personally take cognizance of them, and might testify to them, and that the facts-themselves to which the jurors may testify do not inhere in the verdict as essential parts or portions thereof. Decisions may be found in Massachusetts, and possibly elsewhere, apparently in conflict with the views expressed by us; but we-cannot regard such decisions as founded upon sound principles-of jurisprudence, or as tending in any high degree to the promotion of the bestinterests of justice; and there are numerous decisions holding the contrary doctrine. Indeed there are decisions in some peculiar and exceptional cases, holding that the-evidence of jurors may be used to overturn their own verdicts, even where the facts rest in the exclusive personal consciousness of the jurors themselves, and even where such facts are-embodied in the verdict itself as essential ingredients thereof. Upon the general question of the admissibility of evidence of jurors to overturn verdicts, we would refer to the case of Perry v. Bailey, 12 Kas. 539, and cases there cited.
We think a portion of the evidence of the jurors offered in the present case was competent evidence, and that the court-below erred in excluding it. The criticism found in one of the briefs of counsel for plaintiffs in error, with reference to- those jurors who were willing to testify with regard to the conduct of Johnson, we think is very unfair; and also the criticism of the same counsel with respect to some of the witnesses introduced by the plaintiffs below.
III. We think that the court below also erred in permitting the plaintiffs to introduce evidence with reference to Johnson’s statements made by him after the termination of the original trial. Such evidence is clearly nothing but hearsay evidence. Such evidence is not evidence of what Johnson’s knowledge, opinions or feelings were at the time of the original trial, or at any time prior thereto; but it is simply evidence as to what Johnson said his knowledge, opinions and feelings were at that time. Johnson’s statements made prior to the trial might be evidence of what his knowledge, opinions and feelings were at the time of the trial; but his statements made after the trial, not under oath, could not be evidence of such facts. His statements made after the trial might show what he knew at the time of making the statements, but would not show what he knew at some time previous to that time. It is wholly immaterial what Johnson knew, or what his opinions were, or how he felt, at the time that he made these statements after the trial. The only material thing was: What did he know about the case, or what were his opinions in the case, or what were his feelings with reference thereto at the time of the trial? And statements made by him after the trial, and not under oath, would not be competent evidence of these facts. For this error, the judgment of the court below granting the new trial will have to be reversed.
• IV. Several other questions are raised in this case, but we do not think that it is necessary to discuss them. We think the decision of the court below with reference to the other questions was correct. Indeed, we do not think that the court below committed any material errors except those already mentioned; and we also think that the final determination of the court granting the new trial is correct; and except for the error in permitting evidence to be introduced showing the statements of Johnson after the trial had terminated, the judgment of the court below granting the new trial would not be reversed.
The judgment of the court below granting the new trial will be reversed, and the cause remanded, ordering'that a new trial be granted upon the petition for the new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought before a justice of the peace of Smith county, by David Dodge, against James A. Oatis, to recover the sum of $25 upon a certain promissory note. The defense was: First, fraud in procuring the note; second, failure of consideration; third, a contemporaneous verbal agreement máking the note invalid upon certain conditions, which conditions had been fulfilled. The case was tried before a justice of the peace and a jury, and the defendant was allowed to introduce a portion of his evidence, tending to prove his defenses, without objection; but afterward, on motion of the plaintiff, the justice struck out all of such evidence, and refused to permit the defendant to introduce any other evidence of like character, and instructed the jury not to consider any such evidence. The jury found- a verdict in favor of the plaintiff and against the defendant, and judgment was rendered accordingly. The defendant then took the case to the district court, upon petition in error, where the judgment of the justice of the peace was reversed, and the case set for trial in the district court at the next term thereof. The plaintiff, Oatis, duly excepted, and now brings the case to this court.
We think the judgment of the district court is correct. According to the evidence which the defendant introduced and offered to introduce, the only consideration for the note was a promise and agreement by Oatis, who was an attorney at law, practicing before the United States land office at Kirwin, in the district in which the defendant’s homestead claim was situated, that he would procure the final papers from the United States land office, showing the defendant’s complete and final right to his homestead, by July 1,1879; and the evidence further tended to show that this promise on the part of Oatis was never fulfilled.
Now this evidence certainly tended to show a failure of consideration for the'note; and it does not tend to contradict or vary any of the terms or conditions contained in the note. A total or partial failure of consideration of a contract, whether the contract is in writing or not, may always be shown, (Comp. Laws of 1879, p. 209, § 8;) and á contemporaneous verbal agreement, which does not contradict or vary the terms of the written contract, may also be shown. (Weeks v. Medler, 20 Kas. 57; Babcock v. Deford, 14 Kas. 408.)
Evidently the justice of the peace erred; and evidently, as we think, the decision of the district court is correct; and therefore 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.:
The assignments of error contained in the petition in error filed in this court are as follows:
1. That the verdict of the jury was not sustained by sufficient evidence.
2. That the verdict was contrary to law.
3. That there were errors of law occurring at the trial of the cause, and excepted to by this plaintiff in error at the time.
The only questions attempted to be presented by the plaintiff in error in his brief are upon the third assignment of error. The first and second assignments are waived by him, and therefore will not be considered by this court. Where errors are assigned in the petition in error, but no reference is afterward made to them, either by oral argument or in the brief of counsel for the plaintiff in error, this court will take no notice of them. (Wilson v. Fuller, 9 Kas. 176.) The attempt is made under said third assignment to complain of matters occurring on the trial, and for which a new trial was prayed. But as the action of the court below in overruling the motion for a new trial is not assigned for error, na question therefore is properly raised in this court for the review of the instructions or the' evidence objected to. The third assignment of error does not cover the ruling of the court upon a motion for a new trial, because that is one of the errors which must be specifically assigned. In the absence of any assignment •of error on the part of the trial court in overruling plaintiff in error’s motion for a new trial, the said third assignment of error presents no question, (Woodall v. Greater, 51 Ind. 539; Lingerman v. Nave, 31 Ind. 222.)
Apart, however, from the fatal objections to any consideration of the alleged assignments of error, it is doubtful whether the record is in such a condition in reference to the instructions complained of as that this court might examine and dispose of them, even if the overruling of the motion for a new trial had been specially assigned for error. The instructions are not before us as permitted by §276 of the code. Where the charges are separated and numbered, and exceptions are taken to each, the exceptions should be noted at the close of each instruction. (Sherlock v. Bank, 53 Ind. 73.) Of course .where a general- exception is taken to the whole charge of the court, and a large portion of such charge contains the true declaration of the law as applied to the case on trial, such an exception is entirely unavailing.
Again, it is difficult to tell from the record which party excepted to the instructions. Following the general charge is the following. We quote from the record:
“(The instructions marked ‘yes’ are given and excepted to, and all modifications excepted to. Those marked ‘no’' are refused and excepted to. — S. R. Peters, Judge.)
“(The instructions above marked ‘yes’ and the modifications, those marked ‘ no ’ and those modified, will be given under the head of ‘instructions refused.’ — Reporter.)
“No. 1, marked ‘no;’ No. 2, marked ‘no;’ No. 3, marked ‘no;’ No. 4, marked ‘no;’ No. 5, marked ‘no;’ No. 6, marked ‘no;’ No. 7, marked‘no;’ No. 8, marked‘no;’ No. 9, marked ‘no.’ ”
Further, if we assume that the instructions which were asked for by plaintiff in error and refused by the court were excepted to by such plaintiff in error, then again we are met with the objection that we cannot consider the instructions so refused, because the record fails to show that all the instructions given are preserved in it, and this court cannot hold that there .was error in refusing an instruction, where the record does not purport to contain all the instructions given or refused, because they may have been refused on the ground of already having been given. (Wolfley v. Rising, 12 Kas. 535; DaLee v. Blackburn, 11 Kas. 190; Shepard v. Pratt, 16 Kas. 290; Norton v. Foster, 12 Kas. 44.) Even if we could consider the matters touching the alleged incompetent evidence, an .examination thereof does not convince us it was sufficiently material to have affected the trial. The evidence of Mr. Sterry concerning the proceedings had in the probate court may all be stricken out, and yet sufficient appears to have authorized defendant in error to have appealed from the judgmént of that court. Each of the parties had filed a petition, asking to be allowed to purchase the land; they were heard at the same time, and upon the hearing the probate court adjudged that the plaintiff.in error was entitled to an order to purchase the land at the appraised value thereof, but adjudged one-half of the court costs against defendant in error. From this decision, which was virtually a finding that the defendant in error had not established the truth of the facts alleged in her petition, and that costs should be taxed against her, an appeal was taken by her to the district court. This appeal vacated any j udgment against her, but did not disturb the order and judgment of the court upon the petition of plaintiff in error.
In this action we have taken time to look carefully through the record of the case, and have read all the evidence. The instructions as they now appear before us do not commend themselves to our view of the law, but on account of the matters heretofore discussed, we are not in a condition to correct or reverse the judgment. See Wilkie v. Howe, just decided.
The judgment of the district court must be, upon the record before us, affirmed.
Valentine, J., concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Plaintiffs in error were the owners and holders of a tax deed, of the date of December 26,1876, upon lots one and'two, in block fourteen, in the town of Somerset, county of Miami. The deed was based upon a tax sale made in 1873, for the taxes of 1872. After obtaining the tax deed, plaintiffs took possession of the premises, and paid the subsequent taxes for the years 1876, 1877, and 1878. On January 30, 1880, plaintiffs brought an action against William A. Smith and others, in the district court of Miami county, to quiet title to the premises. Before coming to trial, the action was dismissed as to all except William A. Smith. In such, action, the court found that Smith was the owner of the real estate, and adjudged the tax sale upon which the plaintiffs’ title was based, and also the tax deed, to be invalid. On December 17, 1880, after the tax sale and tax deed had been adjudged invalid, plaintiffs filed with the board of county commissioners of Miami county their claim for the money paid on the sale, together with the subsequent taxes and charges, with -interest. The claim was rejected by the commissioners, and plaintiffs appealed to the district court. In the latter court pleadings were filed by the parties, and in the petition of plaintiffs, among other things it was alleged that “on the 15th day of October, 1880, at the county of Miami, state of Kansas, in an action then pending in the district court within and for said county and state, wherein plaintiffs herein were the plaintiffs, and William A. Smith .was the defendant, the sale of the premises for the taxes of 1872, together with the tax deed, were adjudged invalid, and that all the taxes subsequently paid on said premises by plaintiffs under their tax deed were also adjudged invalid.”
The case was tried by the court, without the intervention of'a jury, and the court.announced its conclusions of fact and law as follows:
“1. That the plaintiffs are, and were at the presentation of the claim herein for allowance by the defendant, the owners of such claim, if a legal one. ■
“ 2. That the claim was presented for allowance in due form, and refused by the board.
“ 3. That there is no proof on the trial of this case that said taxes were either illegal, or adjudged or discovered to be illegal.
“From the foregoing conclusions of fact, the court finds that the plaintiffs cannot maintain their action to final judgment in their behalf against the defendant.”
Upon the trial, the plaintiffs offered to introduce in evidence the record in the case of plaintiffs against William A. Smith, decided October 15, 1880, in which case the tax sale of the premises had in 1873 was adjudged invalid. Defendant objected to the introduction of this testimony, upon the ground that it was incompetent, irrelevant, and immaterial. The court sustained the objection. This was error. Sec. 121, Gen. Stat. of 1868, provides:
“If, after the conveyance of any land sold for taxes, it shall be discovered or adjudged that the sale was invalid, the county commissioners shall cause the money paid therefor on the sale, and all subsequent taxes and charges paid thereon by the purchaser, or his assigns, to be refunded, with interest on the whole amount at the rate of ten per cent, per annum, upon the delivery of the deed to be canceled; and in all such cases, where the county treasurer shall have offered to the person entitled thereto his money as aforesaid, and such person shall refuse to receive it and cancel the deed, he shall not be entitled to receive any interest on the money so paid by him after the day of such offer and refusal, nor shall any recovery ever be had against the county on the covenants of such deed.”
A similar section existed in the law of 1876. Notwithstanding that in 1879 this provision of the law was materially changed, plaintiffs in error are entitled to have their moneys refunded under the statute existing when their rights vested. The repayment of the taxes and charges and interest to a purchaser at a tax sale, after the conveyance thereon has been adjudged invalid, was as much a part of the contract with such purchaser as the execution of the conveyance itself. Therefore, under the statute of 1868 and 1876 a party seeking to have the board of county commissioners refund to him the money paid upon an invalid tax sale, has the right to allege in his claim that such tax sale has been adjudged invalid, and upon such an allegation may sustain the averment by proof that a decree and judgment to that effect were duly made by a court having competent jurisdiction. In this case it was sought to prove the judgment of the district court in which the action was being tried. Of course, the judg ment in that case would not be conclusive upon the defendant, as Miami county was not a party to the action of Morgan v. Smith, but the judgment rendered was, under the statute, competent evidence. Prima fade, it is a judgment that the tax sale is invalid. If the judgment was obtained by fraud or collusion, the defendant could evade its force by proof thereof.
This conclusion really disposes of the case, because the judgment of the court below seems to have been based upon the finding of facts that there-, was no proof that the taxes were illegal, or that they had been discovered or adjudged invalid. In anticipation of a new trial, however, we may add that the claim of the statute of limitations will not avail. The claim for the refunding of the taxes was filed with the county board December 17, 1880. The statute governing this action prescribes that if, after the conveyance of lands sold for taxes, it shall be discovered or adjudged that the sale was invalid, the county commissioners shall cause to be refunded the taxes, charges, and interest. The holder of the tax deed is entitled to have the taxes, etc., refunded when the sale is discovered or adjudged invalid. Now the petition shows that the tax sale was not adjudged invalid until October 15, 1880. The proceedings were commenced in December thereafter; therefore, the claim of the plaintiffs is not barred by § 47, eh. 25, Comp. Laws of 1879, or by any other statute of limitation, notwithstanding the tax deed was executed December 26, 1876.
The judgment of the district court must be reversed, and the cause remanded.
All the Justices concurring.
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The opinion of the court was delivered by
Abbott, J.:
The plaintiff in this case is Olathe Manufacturing, Inc. (Olathe). The remaining defendant is Browning Manufacturing, Inc., (Browning), a division of Emerson Power Transmission Corporation. Olathe designs, manufactures, and sells cutters, chippers, and tub grinders. Browning manufactures bearings and sells the bearings to distributors, including Bearing Headquarters Company (BHQ). Olathe purchased Browning bearings from BHQ as a component part for a new product which Olathe designed and sold, the 866 Tub Grinder. The bearings failed, causing the tub grinders to malfunction.
Olathe sued Browning and BHQ for breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty for a particular purpose. BHQ settled for $100,000 before the trial began. Browning answered and raised affirmative defenses, including failure to state a claim, warranty disclaimers, and limitation of remedies.
The trial court found, as a matter of law, that even though Browning was not in privity with Olathe, Browning could still be liable to Olathe for breach of implied warranties. The trial court also held, as a matter of law, that Browning’s warranty disclaimer and limitation of remedy provisions were not binding on Olathe, finding that the defenses could not be presented to a jury and removing them from the case. Further, the trial court excluded evidence which Olathe attempted to offer in order to prove lost profits which it allegedly suffered.
After a 5-week trial, the jury found that all three warranties had been breached and returned a verdict in Olathe’s favor for $812,289. However, the trial court reduced the jury’s damages award by $100,000, the amount of Olathe’s pretrial settlement with defendant BHQ, and entered judgment in die amount of $712,289.
Browning appeals from the trial court’s ruling which removed its affirmative defenses from the case as not applicable to Olathe and from the accompanying jury verdict. Olathe cross-appeals, challenging the trial court’s lost profit ruling.
I. BROWNING’S LIMITATION OF REMEDY PROVISION.
Browning does not appeal the trial court’s presentation of the express warranty question to the juiy or the jury’s finding that Browning breached express warranties. Browning contends, however, that the damages awarded to Olathe for breach of such express warranty should have been restricted by its limitation of remedy provision found in the Browning catalog.
The trial court found as a matter of law that this remedy limitation did not apply to Olathe and that any damages which the jury might award to Olathe for breach of warranty should not be limited by the remedy limitation because Olathe had no knowledge of and had not assented to the remedy limitation. Browning contends that the trial court was in error to remove this defense from the case.
Browning also contends that the trial court was in error to present the implied warranty issue to the jury because Browning could not convey or breach implied warranties to Olathe as it did not have privity of contract with Olathe, and Olathe suffered only economic loss. Further, Browning objects to the trial court’s removal of its warranty disclaimer from the case.
However, the remedy limitation provision is the only warranty issue in the case which needs to be analyzed. The implied warranty claim does not need to be addressed because this court affirms the trial court and finds that Browning’s remedy limitation does not apply to Olathe as a matter of law; thus, the validity of the implied warranty claim is moot. Even if Browning is correct and the jury’s finding that Browning breached implied warranties should be set aside because Browning was a non-privity seller, the jury still found that Browning breached an express warranty. With the lack of a valid remedy limitation, the jury would have awarded the same amount of damages for the breach of an express warranty, regardless of the implied warranty claims. Hence, the implied warranty claim is moot.
Since the implied warranty claim is moot, it is not necessary to analyze the warranty disclaimer as it only applied to the implied warranty. Browning does not contend that the express warranty was disclaimed by the warranty disclaimer. In fact, Browning does not even appeal the jury’s finding that it breached an express warranty. Browning simply contends that the damages for breach of an express warranty should have been limited to repair and replacement, as its remedy limitation provides. Further, our discussion of Browning’s remedy limitation does not include a discussion of the warranty limitation because as Rasor & Baker, Kansas Law of Sales Under the Uniform Commercial Code p. 9-21 (1982) states: "[I]t is essential that the lawyer distinguish between exclusions (or disclaimers) of warranty responsibility and limitations on remedies. The Code deals with each of these in different ways, and confusion of the two concepts has caused problems for both judges and lawyers.”
In analyzing the remedy limitation, it is important to understand the relationship between Browning, BHQ, and Olathe and how the remedy limitation fits into this relationship. Olathe did not purchase Browning’s bearings directly from Browning. Instead, Olathe ordered the Browning products from an independent distributor, BHQ. All contracts between Browning and BHQ for the bearings in question included a limitation of remedy provision. Further, Browning published a product catalog, and each new edition of the catalog contained the following sales terms:
“WARRANTY. All BROWNING products are warranted against defects in workmanship and materials for one year from date of shipment. This constitutes BROWNING’S only warranty in connection with this sale, and is in lieu of all other warranties, express or implied, written or oral. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE THAT APPLY TO THIS SALE. No employee, agent, dealer, or other person is authorized to give any warranties on behalf of BROWNING, nor to assume for BROWNING any other liability in connection with any of its products, except an officer of BROWNING, in a signed writing.
“LIMITATION OF REMEDY. BROWNING will repair or replace, at BROWNING’S option, F.O.B. Factory, freight prepaid, any BROWNING product proved defective in workmanship or materials if immediate written notice of claim is made to BROWNING by purchaser within one year from date of ship ment. It is agreed that such replacement or repair is the exclusive remedy available from BROWNING should any of BROWNING’S products prove defective. BROWNING is not hable for damage of any sort whatsoever, including incidental or consequential damages. Browning will not be hable for delay caused by said defects and will not be responsible for work or repairs done by others.”
Any new products which Browning introduced between printings of the catalog were described in a product brochure. The brochure did not contain a remedy limitation provision. However, when Browning published a new edition of the catalog containing the remedy limitation, it would incorporate the preceding brochures into the catalog. Further, Browning points out that the remedy limitation provided in the catalog stated that it applied to any Browning products.
When BHQ sold the bearings to Olathe, BHQ did not disclaim any warranties or limit its liability. However, throughout BHQ’s sales relationship with Olathe, BHQ provided Olathe with copies of each new edition of the Browning product catalog which contained the limitation of remedy provision. Olathe never received a Browning product catalog from Browning itself; rather, it received the catalog from its parts vendors such as BHQ. Olathe kept over 500 manufacturer catalogs in the engineering department of its plant. Browning introduced at least one of the other manufacturer’s catalogs into evidence at trial, and it included a remedy limitation similar to the one found in Browning’s catalog. Olathe’s engineering manager, William E. Daniels, Jr., kept several copies of fhe Browning catalogs at his office and home. Daniels testified that Olathe used the Browning catalogs to order thousands of Browning products from BHQ over the years prior to purchasing the bearings involved in this case. Olathe engineers used the catalogs to determine the product description and specifications. Once the Olathe engineers ordered a part from a vendor for an initial product prototype, the Olathe purchasing department ordered all future parts for that product based upon a bill of material specified by the engineers for that product. Olathe’s purchasing department did not have, use, or order from catalogs.
At trial, all of Olathe’s representatives, including Daniels, denied seeing Browning’s remedy limitation provision. Daniels testified that he used and looked at the catalog at least once a month and that nothing prevented him from seeing the remedy limitation provision. Daniels admitted that he knew businesses such as Olathe and Browning commonly used sales terms similar to Browning’s terms. In fact, Olathe’s manual for the 866 Tub Grinder, the product which used the Browning bearings at issue as component parts, included a similar remedy limitation.
Olathe’s president testified that “as a matter of common practice, I don’t read [vendor’s] warranties,” but he agreed that Browning’s terms of sale were available to read had he wanted to read them. Olathe’s president testified that the wording of Browning’s sales conditions is common. Olathe’s president further testified that he knew it was “common” for manufacturers to include such terms in their warranties, and that he worded Olathe’s own limitation of liability for Olathe’s products “after others that I had seen.”
On November 20, 1990, Daniels used a Browning product catalog, with the standard remedy limitation, to select a Browning 1000 Series bearing for the new 866 Tub Grinder which Olathe was designing. Daniels placed an order with BHQ for the Browning 1000 Series bearings. Before ordering the Browning bearing, Daniels made the necessary engineering calculations, without consulting anyone from Browning or BHQ, and determined that the Browning 1000 Series bearing would be appropriate for the Olathe tub grinder.
Wayne Barber has been a district manager for Browning in the Kansas City area since 1989. Barber served as a technical advisor regarding Browning products to BHQ’s customers in the region. Since 1989, Barber had been visiting Olathe on the average of about once a month to provide technical assistance. In fact, after 1990, Barber visited Olathe more than most of his other customers. Olathe’s two engineers were not experienced in bearings and regularly relied on Barber for technical assistance regarding the bearings. Although Barber is not an engineer, Barber testified that he knew more about Browning products than anyone else in the Kansas City metropolitan area.
In November or December of 1990, Daniels had a conversation with Barber concerning the type of bearing which Daniels had ordered for the 866 Tub Grinder. This was the first time that Daniels advised Barber of his (Daniels’) earlier selection of the 1000 Series bearing for the tub grinder. Daniels told Barber that Olathe wanted to install the best, strongest, huskiest bearing in the 866 Tub Grinder. After discussing the design of the tub grinder with Daniels, Barber told Daniels about a new Browning bearing, the 1100 Series. Barber told Daniels that the 1100 Series bearing was just like the 1000 Series bearing which Olathe had already ordered for the tub grinder except the 1100 Series bearing was superior in that it had a ductile iron housing which was stronger than the cast iron housing on the 1000 Series bearing. Therefore, Barber told Daniels that the 1100 Series bearing would be able to withstand stress better.
When Barber talked to Daniels about the 1100 Series bearing, Barber did not have any written product information with him regarding the 1100 Series bearing. Barber told Daniels that he would provide Daniels with literature on the 1100 Series bearing. Data on the new 1100 Series bearing was not in any of the current Browning catalogs as it was a product which had been introduced by Browning since the last catalog had been issued. The 1100 Series bearing was described in a product brochure which did not contain the remedy limitation as the regular catalog editions did.
Barber testified that he returned to Olathe about a week later with a product brochure for the 1100 Series bearing. After examining the bearing specifications in the brochure, Daniels decided to change Olathe’s preexisting order with BHQ for the 1000 Series bearings to the 1100 Series bearings. After Daniels agreed to install the new bearing in Olathe’s 866 Tub Grinder, Barber called BHQ and instructed BHQ to amend Olathe’s prior order with BHQ for the purchase of the 1000 Series bearings to reflect 1100 Series bearings. Browning and Olathe did not enter into a contract with each other; rather, Olathe entered into a contract to purchase Browning 1100 Series bearings from BHQ. Barber never discussed or drew Olathe’s attention to any remedy limitations on Browning products. The documents and papers accompanying the 1100 Se- ríes bearings did not contain any reference to a remedy limitation. There were not any remedy limitation provisions contained in the documents of sale between BHQ and Olathe.
After the bearings failed, Olathe sued Browning for breach' of express warranties pursuant to K.S.A. 84-2-313.’ In its petition, Ola-the alleged Browning expressly warranted that the 1100 Series bearing would be suitable for the tub grinder, through its repre-sentativé Barber and through the product brochure, and that these warranties were breached. Apparently, the jury believed this theory because it found, inter alia, that Browning had breached an express warranty and awarded- Olathe $812,289 in damages. However, in making this finding, the jury did not consider the remedy limitation found in the Browning catalog. The trial court refused, as a matter of law, to instruct the jury .on Browning’s affirmative defense regarding the remedy limitation. According to the trial court, Browning had proffered no evidence that Olathe was aware of the remedy limitation provision in the Browning catalog or that Olathe had assented to such provision. The trial court made this ruling after it had heard all the evidence and was making a determination as to jury instructions. It stated:
“THE COURT: My determination is absent any contractual writings between BHQ or — excuse me — between Browning and Olathe, the Browning limitation of remedies in the sales catalog is not binding on Olathe. I left open the issue of whether there was any evidence in the record where that limitation was pointed out to anybody at Olathe, and there was nothing from which the Court could infer some type of agreement between the two of them that the sale would be based on that limitation, and there was nothing that I knew in the record that would show or manifest any assent between Olathe and Browning that they are buying subject to a limitation of remedies in the Browning catalog.
“I understand the arguments on constructive notice and so forth as contained in the UCC, but it is my determination that it would have been a simple matter for BHQ to incorporate by reference the Browning limitation from the catalog into its invoicing or, otherwise, restate whatever limitation of remedies were appropriate in its paperwork documenting the sale between the BHQ and Olathe. Apparently, there is no such limitation of remedies in that paperwork, and as a threshold matter in determining whether we have notice, there is no contract there between the parties containing that limitation of remedies.
“MR. WARDEN: So the Court’s determination is as a matter of law the contract limitations and disclaimers are not in Browning’s catalog are not binding on the plaintiff. . .
“THE COURT: Yes, absent an agreement which I cannot find any evidence to support. . . .” ...
The district court also found as a matter of law that Browning’s remedy limitation provision in its regular catalog was conspicuous.
This court’s review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Browning points out that its remedy limitation was included in all Browning invoices to BHQ between 1990 to 1993. Specifically, the remedy limitation was included as a term in the contract between Browning and BHQ for the sale of the 1100 Series bearing which BHQ later sold to Oláthe. Further, Browning asserts that remedy limitation was conspicuously placed in the Browning catalog which BHQ distributed to Olafhe.
Browning does not appeal the jury’s finding that it breached an express warranty. Rather, Browning argues that if it breached an express warranty, either by the oral warranty made by the Browning representative or the product description found in the product brochure, then the remedies for breach of such warranty are limited to repair and replacement based on the remedy limitation found in the Browning catalog.
Browning points out that K.S.A. 84-2-316(4) and K.S.A. 84-2-719(1) allow remedies for the breach of a warranty to be limited.
K.S.A. 84-2-719(l)(a) states:
“[T]he agreement . . . may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts.”
Thus, Browning contends that its limitation of remedies provision is proper. K.S.A. 84-2-316(4); 84-2-719(3); see Kansas City Structural Steel Co. v. L.G. Barcus & Sons, Inc., 217 Kan. 88, Syl. ¶ 3, 535 P.2d 419 (1975) (consequential damages may be excluded in a commercial sales agreement unless unconscionable). Olathe does not contest that the remedy limitation was properly authorized by common law and/or the Uniform Commercial Code (UCC). Olathe simply contends that the trial court was correct in finding that the limitation did not apply to Olathe as a matter of law. Browning contends the trial court erred in one of two ways. One, Browning contends that the trial court was incorrect because the remedy limitation did apply to Olathe as a matter of law. Alternatively, Browning contends the trial court was incorrect because the jury should have been allowed to hear the remedy limitation defense and determine as a question of fact whether the remedy limitation applied to Olathe.
Constructive Notice
Browning points out that the contract it had with BHQ clarified that Browning was not hable for incidental and consequential damages. According to Browning, it only accepted the risk of products failing within the scope of this limited remedy. Any damages beyond repair and replacement were to be borne by BHQ. Thus, Browning priced its bearings low accordingly. Browning contends that Olathe had constructive notice of this risk allocation because Olathe possessed the Browning product catalogs which included the remedy limitation. Further, when Olathe purchased the 1100 Series bearing from BHQ, BHQ did not limit Olathe’s available remedies should BHQ breach a warranty. Thus, according to Browning, Olathe bargained for and obtained the right to pursue a remedy for all incidental and consequential damages from BHQ should the bearings fail. Olathe settled with BHQ prior to trial. Thus, Browning contends that the trial court allowed Olathe to impose damages on Browning beyond repair and replacement even though BHQ had accepted this risk in its contract with Browning.
According to Browning, the trial court found that the jury could only be instructed on the limitation as a defense if Browning could show some evidence that Browning had “directly pointed out” the remedy limitation to Olathe or if Browning could prove that Olathe had actual knowledge of the remedy limitation. Browning asserts that the trial court erred in imposing an actual knowledge standard. Browning contends that Olathe was bound by Browning’s limitation of remedy provision even if Olathe did not have actual knowledge of the provision because Olathe had constructive knowledge of the remedy limitation before Olathe decided to purchase the bearings.
Browning claims that Olathe had constructive knowledge of the remedy limitation because the limitation was displayed in Browning’s product catalogs which were distributed to Olathe by BHQ. Olathe possessed and used several copies of the catalog to order thousands of Browning’s products prior to the bearings order at issue. In fact, Olathe ordered its initial bearing selection, the 1000 Series, out of such a catalog. The product brochure which contained the 1100 Series bearings did not include a remedy limitation and did not refer Olathe to the catalog containing the remedy limitation. However, the remedy limitation in the regular catalog which Olathe possessed stated that it applied to any Browning product. Olathe’s president testified that he knew it was common practice for manufacturers to include remedy limitations in their warranties and that the provision was available to read if he so chose. Further, Browning points out that the trial court found the remedy limitation to be conspicuous as a matter of law. Thus, Browning contends that even if Olathe had never read the remedy limitation, it should have been charged with constructive knowledge of the conspicuous limitation, thereby making the limitation apply to Olathe as a matter of law.
In making this argument, Browning cites to K.S.A. 1995 Supp. 84-1-201(10) which makes it clear that the determination of conspicuousness is a decision of law to be made by the court.
The fact that the trial court found the limitation was conspicuous is irrelevant. In fact, the trial court stated that it understood the constructive notice arguments under the UCC, but found that they did not apply here.
The authority regarding whether a limitation of remedies provision applies to a particular party under the UCC or under the common law is minimal. Thus, authority which addresses whether an express warranty applies to a party or becomes a “part of the basis of the bargain” between two parties may be helpful in addressing this issue.
K.S.A. 84-2-313(a) defines an express warranty as “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes a part of the basis of the bargain.” The Official. UCC Comment to 84-2-313 try to shed some light on what is necessary for an express warranty to be a part of the basis of the bargain.
“[N]o particular reliance on such statements [factual statements describing goods] need be shown in order to weave them into the fabric of the agreement [as an express warranty]. . . . The issue is normally one of fact.
“[T]he basic question remains the same: What statements of the seller have in the circumstances and in objective judgment become part of the basis of the bargain?”
The 1983 Kansas Comment to K.S.A. 84-2-313 states:
“Under this section, any expression by the seller must, before it cap becpme a warranty, become ‘part of the basis of the bargain.’ This is the Code’s counterpart to the pre-Code requirement of reliance. The Code’s test is much less stringent. The buyer need not show any specific or particular reliance. See Young & Copper, Inc. v. Vestring, 241 Kan. 311, 521 P.2d 281 (1974).”
There are a few cases in Kansas which analyzed whether an express warranty applied to a. particular party. In Mays v. Ciba-Geigy Corp., 233 Kan. 3§, 62, 661 P.2d .348 (1983), a fiberglass pipe exploded, and the plaintiff sued the manufacturer and seller of the pipe for breach of express warranty. The plaintiff alleged that it received an express warranty regarding the pipe at a training session. However, this session trained the participants to install a different type of pipe than the one which exploded. Furthermore, the training session, which supposedly provided an express warranty on the pipe, occurred at least 10 years prior to the pipe’s explosion. The district court granted summary judgment to the defendant on the issue of breach of express warranty, and this court affirmed. 233 Kan. at 62-63. In so finding, this court stated:
“Under the circumstances herein, it simply cannot be said [the buyer] purchased the . . . pipe in rebanee on anything said or done in the . . . training session or that same was a ‘basis for the bargain.’ To do so would mean the 1960’s training session was some type of express warranty attaching to the use and purchase pf alf subsequent Ciba-Geigy pipeline products — a wholly insupportable position.” 233 Kan. at 62-63.
This case is not as extreme as the Mays case, but it is analogous to it. Browning contends that the limitation of remedy stems from the product catalog. Olathe received the product catalog containing the remedy limitation some time prior to its receipt of the bearings in question. Olathe did not receive the catalog while it was negotiating the sale. Further, the product catalog, which included the remedy limitation, contained a different type of bearing than the bearing which malfunctioned. The remedy limitation in the product catalog did use language referring to “any” Browning product. However, it is a “wholly insupportable position” that when Olathe purchased the 1100 Series bearings it should have known that anything said in a product catalog, which was published even before the 1100 Series bearing was manufactured, would apply to its purchase of the 1100 Series bearing. See 233 Kan. at 63.
In Voelkel v. General Motors Corp., 846 F. Supp 1482 (D. Kan. 1994), the plaintiff purchased a 6-year-old used car which was manufactured by the defendant. The seat belt on the car malfunctioned and the plaintiff sued the manufacturer. The plaintiff alleged that the defendant had expressly warranted the car in the owner’s manual. The court granted summary judgment in the defendant’s favor on the express warranty claim, finding that the language cited by the plaintiff as an express warranty was in fact a 1984 sales catalog, not the owners’ manual, and that the language did not warrant the quality or performance of the seat belts. Further, the court held that even if the language in the sales catalog had created an express warranty, the plaintiff did not show that language in the sales manual was applicable to him as a part of his basis of the bargain. 846 F. Supp. 1484-85. The court stated:
“There is no evidence that he [the plaintiff] read or knew of the 1984 sales manual in May of 1990 prior to purchasing the 1984 [car] from a non-GMC used car dealer. . . .
“. . . The court can find nothing in the record from which to infer that the plaintiff purchased [the car] in reliance upon the cited language in the sales manual.” 846 F. Supp. 1485.
The Voekel case is similar to this case. For instance, the product catalog which contained the remedy limitation was printed by Browning and distributed to Olathe prior to Olathe’s purchase of the bearings at issue. Olathe did not receive the catalog as it was negotiating the sale. Further, Olathe did not purchase the bearings from Browning; Olathe purchased the bearings from BHQ, a distributor. There is no evidence the plaintiff relied on the Browning product catalog or was aware of the remedy limitation in the catalog when ordering the product at issue. While it is clear that the plaintiff knew of the product catalog prior to purchasing the bearings, there is no evidence the plaintiff read the sales terms or knew that they would apply to the 1100 Series bearing which was not even included in the catalog. Further, the literature printed by Browning, which did contain the 1100 Series bearing, did not refer back to the catalog and its accompanying remedy limitation.
Olathe contends that the trial court correcdy found as a matter of law that the remedy limitation in the Browning catalog was not binding on Olathe. Olathe points out that Browning and Olathe did not enter into a contract regarding the bearings and that the BHQ/Olathe contract, including the documents accompanying the bearings, did not refer to a remedy limitation. While previous catalogs contained remedy limitations, the only product brochure which included the 1100 Series bearing and explained its specifications did not contain a remedy limitation. Thus, according to Olathe, it was justified in believing the lack of remedy limitation in the product brochure indicated that Browning did not provide a remedy limitation with regard to the 1100 Series bearing. Moreover, the Browning representative who suggested that Olathe use the 1100 Series bearing instead of the 1000 Series bearing and helped Olathe change its bearing order with BHQ did not direct Olathe’s attention to the remedy limitation found in any of Browning5 s prior catalogs.
We hold Olathe did not know and had no reason to know that Browning had limited the remedies available to Olathe should Browning breach a warranty in regards to the 1100 Series bearing. In order to make Olathe aware of such remedy limitation, Browning’s product brochure should have at least referred to one of the prior catalogs which included a limitation of remedies, or Browning should have put a remedy limitation in the product brochure which contained the 1100 Series bearing, or the Browning representative should have pointed out to Olathe that Browning had limited the remedies in regard to any Browning products. The remedy limitation does not apply to Olathe as a matter of law.
Fact Question
The trial court found that the remedy limitation did not apply to Olathe as a matter of law. However, Browning contends that die evidence at trial at least created a fact issue regarding whether Browning’s remedy limitation applied to Olathe. According to Browning, the jury heard ample evidence regarding Olathe’s possession of Browning’s remedy limitation when Olathe purchased the bearings from BHQ, and the jury should have been allowed to determine whether the limitation applied to Olathe.
In making this argument, Browning cites to LWT, Inc. v. Childers, 19 F.3d 539 (10th Cir. 1994). In this case, the plaintiff purchased an oil heater from the defendant. The heater malfunctioned and the plaintiff brought suit for breach of express and implied warranties against the seller/defendant. 19 F.3d at 541. The district court granted the defendant’s motion for partial summary judgment, concluding that the remedy limitation in the defendant’s catalog did not become a part of the basis of the parties’ sales agreement. 19 F.3d at 541. The Tenth Circuit Court of Appeals reversed the district court, stating: “A limited warranty contained in a manufacturer’s catalog may be considered part of the basis of the parties’ bargain, so long as the purchaser received the catalog and had an opportunity to read the warranty [citations omitted] prior to or at the time of the sale.” 19 F.3d at 541. Further, the Tenth Circuit stated that the “[defendant need not establish that [the] plaintiff had actual knowledge of the limited warranty. [Citations omitted.] The question of whether the catalog containing the limited warranty became part of the parties’ bargain is ordinarily one of fact for the jury.” 19 F.3d at 541.
The evidence in LWT indicated that the plaintiff, who was a dealer, had purchased an oil heater from defendant/manufacturer prior to purchasing the heater at issue. As a result of the previous purchase, the plaintiff possessed a copy of the defendant’s catalog which contained a. remedy limitation. After referring to the defendant’s catalog, the plaintiff found a suitable heater and contacted the defendant for a quote. The defendant faxed the plaintiff a quote and mailed the plaintiff an updated catalog which contained a remedy limitation. 19 F.3d at 541. Based on the quote, the plaintiff purchased the heater. The court held: .
“This evidence establishes a genuinely disputed issue of fact as to whether plaintiff possessed or received defendant’s catalog containing the limited warranty prior to the sale and whether that information became part of the basis of the parties’ agreement. The district court, therefore, erred in determining, as a matter of law, that the catalog containing the limited warranty never became part of the parties’ agreement. [Citations omitted.]” 19 F.3d at 542.
Browning contends that th'é fact situation here is similar to that of the LWT case. Browning points-but that it provided Browning catalogs to BHQ, who in turn delivered the catalogs to Olathe. Thus, Olathe possessed several Browning catalogs which included a remedy limitation.that applied to any Browning product. In fact, Olathe used the Browning catalogs over the years to order thousands of Browning products from BHQ. Olathe employees testified that the remedy limitation in the Browning catalog which they had in their possession was available to read if they had chosen to do so. Further, Browning points out that Olathe used a Browning catalog to order the original 1000 Series bearing for the tub grinder from BHQ. According to Browning, this evidence establishes a fact issue regarding whether Browning’s remedy limitation became a part of the basis of the bargain. As such, Browning asserts that the trial court erred in refusing to allow it to present its defense or instruct the jury on the remedy limitation.
Browning’s reliance on the LWT case is misplaced. In LWT, the manufacturer of the product sold the product directly to the plaintiff and directly provided the plaintiff with a catalog which contained both the remedy limitation and the oil heater at issue. Here, Browning, did not sell the product directly to Olathe or directly provide Olathe with the catalog. Further, the only Browning representative who dealt directly with Olathe made no reference to the remedy limitation or the catalog,containing it. Moreover, the LWT plaintiff ordered the product from a catalog which actually contained the remedy limitation. Here, the only Browning product brochure which contained the 1100 Series bearing did not include the remedy limitation provision, nor did it include reference to the prior Browning catalogs and their accompanying remedy limitation provisions. The catalogs which did contain a remedy limitation did not include the 1100 Series bearing at issue. Thus, Olathe had no reason to believe that the remedy limitation found in the Browning catalogs applied to it. It is true that the remedy limitation referred to “any” Browning product. However, it is not reasonable to expect Olathe, on its own, to look to a catalog that did not contain the item ordered and apply a remedy limitation provision found in the product catalog to a product which had not even been manufactured at the time the catalog was published.
Olathe acknowledges that under LWT the question of whether a remedy limitation becomes a part of the parties’ bargain is ordinarily one of fact for the jury. However, Olathe cites to Shawnee Township Fire District v. Morgan, 221 Kan. 271, 277, 559 P.2d 1141 (1977) (quoting Hunter v. Brand, 186 Kan. 415, 419, 350 P.2d 805 [1960]), which finds:
“ “Where no evidence is presented or the evidence is undisputed and is such that reasonable minds cannot accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to remove the issue from the jury. In that event, the issue becomes a question of law for the court’s determination. [Citations omitted.]’ ”
Olathe contends that all of the evidence regarding the remedy limitation was undisputed. Olathe then points to the trial court’s statement that it was unable to find any evidence which indicated the remedy limitation was pointed out to anyone at Olathe. According to Olathe, the trial court did not intend, by this statement, that Olathe must have had actual knowledge of the remedy limitation for it to be effective. Rather, the trial court made this statement to indicate that it could not find a scintilla of evidence suggesting that the remedy limitation had become a part of Olathe’s bargain. Thus, after examining the undisputed evidence, the trial court found, according to Olathe, that no evidence had been presented upon which reasonable jurors could determine the remedy limitation included in the previously printed and distributed product catalog was related to the sale of the 1100 Series bearings or applied to Olathe. As such, Olathe argues that the trial court properly withdrew the issue from the jury and found that the remedy limitation did not apply to Olathe as a matter of law.
On the other hand, Browning contends that the evidence regarding the issue is disputed and that there is evidence in the record to support the fact that the remedy limitation became a part of the basis of the bargain. For instance, Browning conspicuously included a remedy limitation in each edition of its catalog. This remedy limitation referred to “any” Browning product. Olathe possessed the catalogs and used them to order thousands of Browning products. Many other vendors used a similar remedy limitation, and Olathe itself used a similar remedy limitation in its own product literature.
Moreover, Browning contends that Olathe’s possession of the product catalog was related to Olathe’s bargaining with BHQ. For instance, Olathe used the Browning product catalog, which contained the remedy limitation, to initially order the 1000 Series bearing for the tub grinder. Then, after Olathe talked to Browning’s representative about the tub grinder, it merely amended its bearing order to a 1100 Series. Thus, according to Browning, Olathe’s contract with BHQ originated from Olathe’s initial reliance on the Browning catalog which contained the remedy limitation applying to “any” Browning product. While Olathe asserts that it did not have actual knowledge of the remedy limitation in the Browning catalog, Browning contends that there is evidence in the record to support a reasonable juror’s finding that the remedy limitation objectively became a part of Olathe’s bargain. Hence, Browning contends that there was ample evidence in the record to support its position that the remedy limitation was a part of Olathe’s basis of the bargain when it purchased the Browning bearing from BHQ.
We disagree. All of the evidence regarding what the product catalog and the product brochure said about the remedy limitation is undisputed. The fact that Barber did not draw Olathe’s attention to the remedy limitation is undisputed. Even if Olathe was constructively aware of the remedy limitation in the Browning catalog, Browning presented no evidence to indicate that the remedy lim itation became a part of Olathe’s purchase from BHQ of this particular bearing found in the product brochure, designated as a catalog, which did not contain a remedy limitation. Thus, the trial court properly found as a matter of law that the remedy limitation did not apply to Olathe.
Course of Dealing
Finally, Browning contends that Olathe’s remedies were limited by prior course of dealing. We find no reference in the UCC which allows remedies to be limited by past conduct. The UCC only allows for past conduct or course of dealing to disclaim warranties; the UCC does not allow past conduct to limit remedies.
Browning cites to the UCC’s definition of course of dealing, which is “a sequence of previous conduct between the parties to a particular transaction which is fairly regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.” K.S.A. 84-1-205. According to Browning, a course of dealing existed between it and Olathe which established a common understanding that all remedies for the breach of a warranty on a Browning product were limited to repair and replacement. This course of dealing was based on the fact that Olathe possessed several Browning catalogs which contained the remedy limitation and used the catalog over the years to order thousands of Browning products from BHQ. Moreover, other dealers which Olathe dealt with used similar remedy limitations, and Olathe itself adopted similar remedy limitation language when selling its own products. Thus, Browning contends that this evidence at least created a fact question as to whether Browning and Olathe had a course of dealing which limited remedies for the breach of an express contract.
On the other hand, Olathe argues that a course of dealing between it and Browning to limit remedies did not exist. In making this argument, Olathe relies on Bowdoin v. Showell Growers, Inc., 817 F.2d 1543, 1545 (11th Cir. 1987), and Hartwig Farms v. Pacific Gamble Robinson, 28 Wash. App. 539, 625 P.2d 171 (1981).
In Bowdoin, the plaintiffs used a spray rig which the plaintiffs’ employer had purchased. The rig malfunctioned, and the plaintiffs sued the manufacturer and the component part manufacturer for breach of implied warranties. Prior to the sale of the rig at issue, the employer/buyer had purchased a similar spray rig from the manufacturer. In the prior sale, the manufacturer provided the buyer with an instruction manual for the spray rig which contained a warranty disclaimer. Further, in the prior sale, the buyer acknowledged in a written form that it accepted a disclaimer of implied warranties in the sale. At the second sale, the manufacturer provided the buyer with the same instruction manual as before, containing the warranty disclaimer, but the buyer did not receive the manual until after the sale was completed. The Bowdoin court held that the disclaimer did not apply to the plaintiffs as it was not a part of the basis of the bargain. 817 F.2d at 1545-46. The court found that one prior dealing between the parties did not establish a course of conduct between the parties making it clear that implied warranties were disclaimed. 817 F.2d at 1547 n.18.
In Hartwig Farms, a seed broker cross-claimed against a seed wholesaler based on breach of implied warranty. The wholesaler had sold and delivered seed under invoice to the broker for 15 years. The invoice was typically delivered with the seed product after the sale had been made orally and confirmed in writing. The invoice contained a disclaimer of warranties. The invoice containing the disclaimer had been provided to the buyer after the sale at issue had already been closed; thus, the invoice disclaimer could not apply to disclaim the warranties on the sale at issue. However, the wholesaler argued that a course of dealing had arisen from prior transactions in which the buyer received an invoice containing a disclaimer after eveiy sale. Thus, the buyer knew and accepted that the warranties would also be disclaimed for the sale at issue. The court disagreed. It found that there was never a negotiation or assent to the disclaimer in reference to this sale. Thus, a course of dealing as to a disclaimer had not been formed and could not be used to impute assent to the disclaimer at issue. Further, the court found the buyer s knowledge of the disclaimer was irrelevant. According to the court, the disclaimer could only have effect if the buyer and seller had actually negotiated it and agreed to it at some point. 28 Wash. App. at 544-45.
Browning contends that Olathe wrongly relies upon Bowdoin and Hartwig Farms. Browning points out that the Bowdoin court found a post-sale disclaimer in an instruction manual could not have been a part of the basis of the bargain. While the buyers/ plaintiffs had previously received an instruction manual containing a disclaimer, the Bowdoin court found that until the buyers received the second instruction manual, the buyers would not know what it would contain. Further Browning points out that Hartwig Farms was also a post-sale disclaimer case and that the prior invoices did not apply to the present transaction because the disclaimers in those invoices were not conspicuous. In contending that Bowdoin and Hartwig Farms are inapplicable cases, Browning asserts that, unlike these cases, its remedy limitation was conspicuous and provided to Olathe prior to the purchase at issue.
Browning’s remedy limitation is not directly applicable to Olathe because it was not a part of the basis of the bargain. However, Browning contends that the remedy limitation became a part of Olathe’s basis of the bargain indirectly through a prior course of dealing. Bowdoin and Hartwig Farms found that the disclaimers at issue there did not become a part of the basis of the bargain indirectly through prior course of dealing because there had not been enough transactions between the parties. Moreover, there had never been a negotiation or assent to the disclaimer on any prior sale so as to impute the disclaimer to the sale in issue.
Browning and Olathe had never directly done business together. While Olathe had received the Browning catalog containing the remedy limitation several times over the years, Olathe had never negotiated or assented to a remedy limitation in any previous sale. Thus, the limitation, in prior dealings, was not so evident and clear that the disclaimers would indirectly become a part of the basis of the bargain in all latter dealings.
Further, in support of its position, Olathe cites to Kansas law. Olathe points to the previously discussed section of the UCC, K.S.A. 84-1-205(1), which defines course of dealing. According to Olathe, this statute indicates that for a prior course of dealing to impute assent to a remedy limitation in a current transaction, the dealings must consist of multiple, contractual dealings between the same parties in which the buyer actually agrees to the remedy limitation. According to Olathe, such prior dealings did not exist here. Olathe contends that its prepurchase possession of a Browning catalog was unrelated to any prior conduct or bargaining between Olathe and Browning. In fact, Olathe points out that it has never entered into a contract with Browning, never ordered or purchased a product from Browning, and never negotiated a remedy limitation with Browning. Thus, Olathe contends that it had no prior course of dealing with Browning. Instead, Olathe purchased Browning products from BHQ in transactions where remedy limitations were never discussed. As such, the remedy limitation found in the Browning catalog should not apply to Olathe’s transaction which is at issue here.
On the other hand, Browning contends that Olathe’s possession of the Browning catalog was related to the current transaction in that Olathe used the catalog to order thousands of Browning products including the initial order of the 1000 Series bearing for the tub grinder. Thus, in all previous orders, Olathe should have known its order was subject to remedy limitation. Hence, Browning contends that these prior dealings should be imputed to the transaction at issue and the remedy for breach of express warranty should be limited.
Browning argues that since Olathe had previously ordered several Browning products from BHQ which were subject to the remedy limitation found in the Browning catalog, then all other Browning products which Olathe purchased from BHQ were subject to this remedy limitation even though neither the product literature advertising the product at issue nor the Browning representative recommending the product at issue mentioned the remedy limitation.
Under this position, Browning would never need to publish another remedy limitation again. According to this theory, the remedy limitation in the Browning catalog already applies to any Browning product manufactured now or in the future. This is unreasonable. The Browning remedy limitation does not apply to Olathe as a result of a prior course of dealing between the two parties.
Third-Party Beneficiary
Browning argues that Olathe received its warranties from Browning as a third-party beneficiary of the contract between Browning and BHQ. Browning contends that as a third-party beneficiary, Olathe should not receive any greater warranty than BHQ received. Since BHQ’s remedy for the breach of a warranty was limited to repair and replacement in its contract with Browning, Browning argues that Olathe’s remedy for breach of express warranty should also be limited to repair and replacement.
The third-party beneficiary argument does not apply to this issue because the jury did not find that Olathe received an express warranty from Browning as a third-party beneficiary of the Browning/ BHQ contract. Rather, the jury found that Olathe received its own independent express warranty from Browning. Olathe received this warranty as a result of express representations made by Browning’s district manager to Olathe’s engineer regarding the suitability of the 1100 Series bearing for the tub grinder and by the express representations regarding the 1100 Series bearings found in the product brochure. The question is whether the remedy limitation found in the Browning/BHQ contract and the Browning product catalog independently applied to Olathe to limit its remedies for the breach of an independent express warranty from Browning. As such, the third-party beneficiary arguments do not apply to this issue.
II. LOST PROFITS
This case was tried twice. The first trial was declared a mistrial after 4 days of testimony. On August 18, 1993, Olathe’s lost profit expert, Michael Moncrief, was deposed, and he explained Olathe’s lost profit theory for the first trial. He stated that when the Browning bearings malfunctioned in Olathe’s 10-foot tub grinder, Olathe had to pull this tub grinder off the market and redesign it. Olathe based its original lost profit theory on the loss of sales of this 10-foot tub grinder because it was pulled off the market and on the loss of sales of the redesigned 10-foot tub grinder due to Olathe’s damaged reputation. In this deposition, Moncrief mentioned that Olathe was behind in developing a 12-foot tub grinder, but he attributed any such delay to time spent on the lawsuit, and he made no claim of damages from this delay. Olathe’s expert planned to testify at the first trial that Olathe incurred $4.3 millón in lost profits due to damaged market reputation.
Later, as the second trial approached, Olathe and its experts changed its lost profits theory from a 10-foot tub grinder/damaged reputation theory to a 12-foot tub grinder/delay theory. Olathe now contends that it had to delay its development of a 12-foot tub grinder, which it anticipated the market would demand, in order to redesign its 10-foot tub grinder so as to save its reputation. According to Olathe, this redesign effort almost entirely consumed Olathe’s financial, administrative and engineering resources. However, Browning points out that at that time, 48% of Olathe was owned by Toro, which is a $700 millón Fortune 500 company. Browning questions why Toro did not supplement Olathe’s resources so that Olathe could both redesign the 10-foot tub grinder and design the 12-foot tub grinder at the same time.
Olathe began marketing the- redesigned 10-foot tub grinder in April 1992 and, according to Olathe, it restored its reputation by early 1993. Olathe was finally able to market its 12-foot tub grinder in 1994, over a year later than originally planned. According to Olathe, its competitors introduced their 12-foot tub grinders in late 1992 or early 1993, which coincided with a shift in customer preference for the 12-foot grinder over the 10-foot grinder, thereby allowing the 12-foot grinder to dominate the market. Due to its delay, Olathe lost its anticipated share of the 12-foot tub grinder market. Further, Olathe contends that it also lost replacement part sales which would have accompanied all the 12-foot tub grinder sales it would have made had the 12-foot tub grinder not been delayed in its production due to the redesign of the 10-foot tub grinder. Olathe calculates that, under this new theory, its lost profits for 1993, 1994, and 1995 discounted to present value would be $7,095,471 for lost tub grinder sales plus $1,002,005 for lost part sales or a total of $8,097,526 in lost profits..
This new lost profit theory was based on market research survey conducted by Olathe’s lost profit expert, Moncrief. The survey projected how many 12-foot tub grinders Olathe would have sold, in 1992, 1993, 1994, and 1995 Kad it not been for the production delay. Moncrief provided these projections to Olathe’s economist expert, John Ward. Then, Ward, assuming Moncrief’s survey and projections were accurate, calculated Olathe’s lost profits based on this survey. Ward did not make an independent investigation into the accuracy of Moncrief’s numbers. The bulk of Moncrief’s survey and accompanying spreadsheet, including the sales figures for Olathe’s competitors, was based on a collection of hearsay statements. For example, Moncrief talked to customers and distributors about what they had heard from competitors at trade shows, and he talked to former employees of Olathe’s competitors about what their former co-workers had said regarding their employers. Thus, according to Browning, the market share percentages in Moncrief’s spreadsheet were derived from the estimated sales of market participants (Olathe’s competitors), which in turn were derived from various hearsay conversations.
After the mistrial, the case was reset for trial to begin June 27, 1994. A discoveiy conference was held January 18, 1994, in which the court set the following deadlines:
“1. The Court fixes April 15, 1994, as the date by which either party may supplement responses concerning any changes in the subject matter on which any expert is expected to testify, the substance of the facts and opinions to which any expert is expected to testify and the grounds for each opinion. The Court further adopts the parties’ agreement that, if either party supplements responses concerning experts, then the opposing party may depose the expert(s) concerning the supplemental responses by May 31, 1994.
“2. The defendant may take continuing discoveiy concerning plaintiff’s damage claims.
“3. Either party may redepose fact witnesses previously deposed but only concerning documents produced by other parties after August 16, 1993.
“4. The parties may engage in all other discovery provided that all discovery— other than the depositions of experts as provided above — must be completed by April 30, 1994. The Court further states that it discourages expensive, repetitive discovery or discovery which might reasonably have been completed before the first trial.”
On the April 15,1994, deadline, Olathe served an expert witness supplementation on Browning. This supplementation stated:
“In particular Mr. Ward [Olathe’s economist expert] is expected to testify that Olathe Manufacturing suffered various types of damage due to the failure of the 1100 Series bearing, including but not limited to lost profits, redesign costs, refund and replacement costs, increased administrative and research costs, costs of financing, and potential costs associated with the remaining 866 tub grinders in use.
“. . . Mr. Ward will update his damage analysis to take into consideration changes that have occurred since his deposition: sales of 867 TGs, bank loan balances, returned 866s, 866s replaced with 867TGs [the original and redesigned 10-foot tub grinders], and sales of hammers, screens and other parts.”
The supplement did not mention any 12-foot tub grinder lost profit claims.
On April 20, 1994, Browning requested that Olathe provide a supplemental interrogatory answer which specified if any previously identified experts had performed any additional work or reached any additional opinions from the date of the expert’s last deposition in order to comply with K.S.A. 60-226 and the court’s February 18, 1994, journal entry. Iri response to this request, Ola-the served an expert witness supplement on Browning on April 25, 1994, which disclosed that Olathe’s lost profit expert might offer testimony to support a damages claim involving not only the 10-foot tub grinder but also the 12-foot tub grinder. Further, the supplement informed Browning that Olathe’s economist expert planned to recalculate his future lost profit projections based upon the new lost profit data and market estimates. Olathe did not disclose any conclusions of its economist expert as to the amount of damages Olathe had suffered due to the lost profits of the 12-foot tub grinders. On May 18, 1994, Olathe sent Browning its economist’s revised damage calculations of $7,270,760 in lost tub grinder profits and $1,002,055 in lost parts profits. However, the damage report did not indicate that the economist based these figures on the lost sales of 12-foot tub grinders instead of on the lost sales of 10-foot tub grinders. This damage report merely labels Olathe’s lost market share category as “Tub Grinders.”
In late May 1994, Browning deposed Olathe’s lost profit expert and Olathe’s economist expert for the second time. At this time, the experts testified that Olathe had abandoned the damaged rep utation/10-foot tub grinder lost profit theory and adopted the new delay/12-foot tub grinder lost profit theory. At this deposition, Ola-the’s economist expert admitted that his planned testimony for the first trial — that Olathe lost $4.3 millón in lost profits due to the lost sales of 10-foot tub grinders — was 100% wrong. Further, the expert admitted that his prediction Olathe would have fewer 10-foot tub grinder sales in 1994 than Olathe had anticipated because of the faulty bearings was wrong. In fact, according to this expert, Olathe holds 35-40% of the 10-foot tub grinder market share. This is in excess of the market share which Olathe expected to hold had the bearing problems not occurred. As Olathe’s lost profit expert testified, Olathe had a very successful 10-foot tub grinder.
In this May 1994 deposition, Olathe’s economist expert testified that he was first told about the market’s migration toward 12-foot tub grinders in January or February 1993. Further, the expert testified that “the theories kind of switched themselves. That would have been sometime about probably two months ago,” i.e., March 1994.
On June 21, 1994, Browning filed a motion in limine to exclude Olathe’s new damage theory. The court granted Browning’s motion. The court barred Olathe’s lost profit expert, Moncrief, from testifying about the new lost profit theory, finding that his testimony was inadmissable hearsay under K.S.A. 60-456(b). The trial court found that Moncrief’s testimony amounted to hearsay because his testimony was based upon a market survey which Olathe was not going to independently place in evidence. In its motion in limine, Browning also argued that the testimony of Olathe’s experts on the new lost profit theory was untimely and unfairly prejudicial. The trial court took these arguments under advisement, stating:
“'Well, in cases where prejudice is asserted because of recent amendments to pleadings or late-coming evidence or witnesses, it is generally my practice to assess the prejudice as I begin to hear the case and keep that part of it under advisement until I have a better handle on the facts and the feel for the case and then make a determination whether the prejudice is such that that evidence ought to be excluded. So I would keep the first part of the motion under advisement and take that with the evidence in the case.”
. After the trial concluded, the trial court affirmed its earlier ruling, which excluded the lost profit testimony as inadmissible under K.S.A. 60-456(b). The trial court also ruled that the expert testimony proffered by Olathe was speculative and unreliable and that Olathe’s disclosure of its new lost profit theory was untimely and had thereby prejudiced Browning. In making this determination, the trial court stated:
“As to the plaintiff’s request for partial new trial to the 12-foot tub grinder and that damage claim, I felt very strongly at the time that the evidence supporting that claim was based on hearsay, it was quite speculative in nature, and I felt under Kansas law that an expert could not base his testimony on hearsay testimony in this regard, I am aware of limited exception on some market studies, but, as far as I am concerned, those are studies which have been based on scientific and procedural safeguards which were not present and shown to the court in this case. So for the reasons in that regard, I determined that plaintiff could not present the 12-foot damage claim to the jury. ... I do find in the alternative that the claim did come in extremely late, put the defense in an unfair position to have to rebut a substantial new claim at the eleventh hour of this case, and, based on the extensive pretrial discovery that had taken place, I felt it was unfair at the lateness of the hour to subject the defense to this additional claim.” (Emphasis added.)
Speculation
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). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. McKissick v. Frye, 255 Kan. 566, 577, 876 P.2d 1371 (1994).
Olathe contends that the evidence regarding its new lost profit theory was not speculative and that the district court abused its discretion by excluding the evidence. In making this argument, Olathe points to K.S.A. 84-1-106, which allows for remedies to be liberally administered. The Official UCC Comment to this section states that the “purpose of [this] subsection ... is to reject any doctrine that damages must be calculable with mathematical accuracy. Compensatory damages are often at best approximate: they have to be proved with whatever definiteness and accuracy the facts permit, but not more.” Olathe contends that this relaxed standard of proof also applies to the UCC sections dealing with consequential damages, K.S.A. 84-2-715. The Comments under this section provide that "loss may be determined in any manner which is reasonable under the circumstances.” Relying on Vickers v. Wichita State University, 213 Kan. 614, 620, 518 P.2d 512 (1974), Olathe correctly points out that in determining consequential damages, a court or jury merely needs to be guided by some rational standard. This rational standard should be determined according to each individual case so that the claimant provides the best available evidence the situation allows,
Vickers is the key Kansas case in the area of lost profits. In Vick-ers, the plaintiff had contracted with the defendants to broadcast basketball games. In this contract, the plaintiff had a right of first refusal. However, the defendants contracted with another company to broadcast the games for a better deal without first making this offer to the plaintiff. Thus, the plaintiff sued the defendants for breach of contract because the plaintiff was not given the right of first refusal as he had contracted for. The plaintiff claimed that he suffered lost profit damages from this breach because he was not able to broadcast the games. The district court granted the defendants’ motion for directed verdict. The district court found that the plaintiff had not conducted a profitable business for a long enough period of time under the contract to ascertain with reasonable certainty the plaintiff’s loss of future profits. This court reversed the district court, stating:
“The evidence necessary in establishing lost future profits with reasonable certainty ‘must depend in a large measure upon the circumstances of the particular case . . .’ (Requirements of Certainty of Proof of Lost Profits, 64 Harv. L. Rev. 317, 319.) Absolute certainty in proving loss of future profits is not required. (22 Am. Jur. 2d, Damages, § 172.) What is required is that the court or jury be guided by some rational standard. (Brenneman v. Auto-Teria, Inc., 260 Or. 513, 491 P.2d 992; Smith Development Corp. v. Bilow Enterprises, Inc., 112 R.I. 203, 308 A.2d 477; Mechanical Wholesale, Inc. v. Universal-Rundle Corp., 432 F.2d 228 [5th Cir. 1970].) As to evidentiary matters a court should approach each case in an individual and pragmatic manner, and require the claimant furnish the best available proof as to the amount of loss that the particular situation admits. (McCormick, Law of Damages, § 29 [1935].) It is the responsibility of a district court to see that speculative and problematical evidence does not reach the jury. 213 Kan. at 620. See Cricket Alley Corp. v. Data Terminal Systems, Inc., 240 Kan. 661, 669, 732 P.2d 719 (1987); Stair v. Gaylord, 232 Kan. 765, 773-74, 659 P.2d 178 (1983); Official UCC Comment, K.S.A. 84-1-106.
Besides relying on Vickers, 213 Kan. at 620, Olathe also points to several cases which hold that when a contract with a new venture is breached, the plaintiff should be allowed to prove lost profits even though the evidencé is not certain because the new venture has no historical data to rely upon. See Butler v. Westgate State Bank, 226 Kan. 581, 582-83, 602 P.2d 1276 (1979); Kvassay v. Murray, 15 Kan. App. 2d 426, 433-35, 808 P.2d 896, rev. denied 248 Kan. 996 (1991); see also Official UCC Comment, K.S.A. 84-2-708 (“It is not necessary to a recovery of [lost profits] to show a history of earnings especially if a new venture is involved.”).
However, the facts and outcome of Butler are more supportive of Browning’s position that the evidence of the new lost profits theory was properly excluded as speculative than they are of Ola-the’s position. In Butler, the plaintiff contracted with a bank for a loan so the plaintiff could buy a Kansas City area franchise of a telephone directory business. The bank did not make the loan, and the plaintiff sued for breach of contract. The jury awarded the plaintiff $40,000 in lost profits, but the district court set aside the award because the evidence of lost profits was speculative. This court affirmed. 226 Kan. at 585.
The only evidence which the plaintiff presented to prove lost profits was the testimony of the person who was selling the franchise. The court noted that the seller of the franchise had never managed or supervised the sales of telephone directories in the Kansas Ciiy area. The seller did not testify as to the profits, sales, accounts receivable, or debts of the business while it was under the seller’s operation. Instead, the seller compared the Kansas City area market to two markets he believed were similar to it in Texas-. In making this comparison, the seller stated that the Texas market was a little bigger than the Kansas City market and that he was not certain of the exact number of directories the company published in the Texas area. He testified that his estimate could be off by 15,000 to 20,000 directories. Further, the seller did not know if the two areas were similar in the number of residential areas as compared to business or industrial areas. Moreover, the seller had forgotten the comparison between income ratio per household in each market. Based on this evidence, this court found that the plaintiff’s lost profits could not be established with reasonable certainty. 226 Kan. at 584. This is similar to the case at hand.
When Browning questioned Moncrief, Olathe’s lost profit expert, about the numbers on his spreadsheet, Moncrief admitted that he did not remember where he had obtained some of the sales figures. Moreover, for at least one company listed, Moncrief did not know if the sales figures were solely attributable to tub grinders or if the sales figures also encompassed other products sold by the company. Further, Moncrief testified that he obtained some of the numbers for the spreadsheet from customers who had talked to salespeople, or from distributors who had talked to customers, or from former employees of competitors. Several of the spreadsheet numbers are derived from Moncrief’s assumptions and guesses. Just as in Butler, much of the testimony supporting Olathe’s lost profits under the new theory was based on a mere guess rather than supported by facts. As such, the district court properly excluded the evidence as speculative.
However, Olathe contends that certainty is only required when a party is attempting to prove that it actually suffered damages. According to Olathe, once a party has proven with certainty that it suffered damages, such certainty is not required when the party is attempting to prove the amount of damages. Olathe contends that the amount of damages only needs to be proven by a just and reasonable inference which includes a reasonable basis of computation. According to Olathe, it is sufficient to prove the amount of damages by the best evidence obtainable under the circumstances which allows the jury to arrive at an approximate estimate of the loss.
Olathe contends that the fact it suffered consequential damages is proven with certainty. For instance, there is no question, according to Olathe, that it was required to pour all of its resources into the redesign of the 10-foot tub grinder and that Olathe would have used these resources to develop a 12-foot tub grinder had the bearings in the 10-foot grinder hot been faulty. Olathe contends that the excluded evidence merely quantified the certain fact of consequential damages into terms of market share and profit losses. These terms were based upon the best objective evidence available in the small, dynamic tub grinder industry.
Olathe bases this argument on K.S.A. 84-2-715 and New Dimensions Products, Inc. v. Flambeau Corp., 17 Kan. App. 2d 852, 859, 844 P.2d 768 (1993) (stating that the amount of consequential damages does not need to be foreseeable in order to recover such amount, only the fact of such loss must be foreseeable in order to recover). Browning properly cites the holding of New Dimensions. However, the factual background of New Dimensions indicates that it is distinguishable from this case.
In New Dimensions, the plaintiffs had a licensing agreement with the defendant, who was to sell the plaintiffs’ recipe organizer. The plaintiffs contend that the defendant'breached the contract by, inter alia, failing to pay royalties on the sale, of the organizers. The trial court awarded the plaintiffs $35,297.23 in damages. The de-fendánt appealed. The defendant admitted that it breached the contract and that it did not pay the plaintiffs all the royalties which it owed the plaintiffs. However, the defendant contended that the evidence offered to establish damages and the method used by trial court to compute the damages was speculative and unreliable. The Court of Appeals affirmed the trial court’s award of damages, stating: ' . '
“The record very clearly indicates that it was appellant who had exclusive control over all the records concerning production, sales’, and costs of materials. Appellant consistently denied those records existed at the trial and steadfastly refused to produce them. Under these circumstances, proof of damages was difficult. This difficulty was created by appellant, and appellee should not be. penalized by appellant’s failure to either keep the necessary records or to produce them when asked to do so. The only method offered to determine the amount of unpaid royalties in this case was put forward by appellee. The trial court concluded:
“ ‘The analysis, of comparing the reduction of inventory with the reported sales during the only time frame in which the inventory is. known, to create a ratio of unreported to reported sales, and applying the same ratio to other time frames provides a reasonable basis for awarding damages under the circumstances.’
“We agree with the trial court’s comments set forth above. We conclude the evidence offered by the appellee was the best evidence obtainable under the circumstances.” 17 Kan. App. 2d at 859.
Thus, in New Dimensions, the court was veiy liberal in the type of evidence and inferences it allowed the plaintiffs to use when proving lost profits because the defendant controlled most of the documentation needed to prove lost profits. This is not the case here. The record does not indicate that Browning had access to any evidence which would help to prove Olathe’s lost profits or that Browning tried to keep Olathe from discovering any evidence which would prove Olathe suffered lost profits.
According to Olathe, its lost profit evidence would have presented the jury with a reasonable basis of computation to arrive at an approximate loss. Accordingly, Olathe contends that such evidence presented a valid question of fact which should have been submitted to the jury. Thus, Olathe contends the trial court abused its discretion by excluding its evidence on the new lost profit theory.
Browning, on the other hand, asserts that Olathe’s lost profit expert, Moncrief, planned to testify to figures which were speculative, were lacking in foundation, and were an improper basis for expert opinion. Browning points to the Kansas rule that expert testimony must be based on reasonably accurate data and not simply based on an unsupported assumption, theoretical speculation, or conclusory allegations. Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 663 F. Supp. 1360, 1479 (D. Kan. 1987), aff’d in part, remanded in part 899 F.2d 951 (10th Cir.), cert. denied 497 U.S. 1005 (1990).
Browning also relies on the Vickers case. Browning points out that Vickers gives district courts “the responsibility ... to see that speculative and problematical evidence does not reach the jury.” 213 Kan. at 620. The district court must carry out this responsibility by approaching each case in an individual and pragmatic manner and requiring the claimant to provide the best proof available under the circumstances. 213 Kan. at 620. Browning contends that the district court approached this case in an individual and pragmatic manner by allowing Olathe to present its 10-foot tub grinder lost profit theory to the jury but not allowing Olathe to present its 12-foot tub grinder lost profit theory.
Olathe’s evidence regarding the new lost profit theory was based on rumors, guesses, and assumptions. Thus, the trial court did not abuse its discretion in holding that the lost profit evidence was speculative as a matter of law.
NOT TIMELY DISCLOSED
The trial court is vested with broad discretion in supervising the course and scope of discovery. In addition, the trial court has discretion on the admission or exclusion of evidence, and that decision will not be disturbed on appeal absent a showing of abuse of discretion. Ryan v. Kansas Power & Light Co., 249 Kan. 1, 11, 815 P.2d 528 (1991). A trial court abuses its discretion only when no reasonable person would agree with the trial court’s position. Vickers v. City of Kansas City, 216 Kan. 84, Syl. ¶ 5, 531 P.2d 113 (1975). Both parties agree that abuse of discretion is the appropriate standard of review.
Olathe contends, however, that the trial court’s discretion in excluding expert testimony based on late disclosure is not unfettered. According to Olathe, the trial court may only exclude evidence based on late disclosure if the party requesting exclusion was prejudiced by the late disclosure and the prejudice could not have been prevented by a less harsh remedy than the exclusion of evidence. Olathe contends that the trial court should have decided between exclusion or a less harsh remedy by seeking an explanation of the late disclosure, weighing the importance of the testimony which was disclosed late, and determining how much time the party requesting exclusion would need to defend the testimony. See West v. Martin, 11 Kan. App. 2d 55, 58, 713 P.2d 957, rev. denied 239 Kan. 695 (1986) (In finding that the trial court abused its discretion by limiting the testimony of an expert who had not been identified as such, this court stated that “[t]he trial court had effective options available other than excluding the expert testimony. Those options ranged from imposing sanctions on plaintiff’s attorney to allowing the defendant to interview or depose [the witness] prior to his being called.”); 8 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 2050, p. 610 (1994).
Based on this standard, Olathe contends that the trial court abused its discretion. Olathe contends that Browning was aware of its new damage theory on April 25, 1994, two months before trial, when Olathe filed its second expert witness supplementation. Further, Olathe points out that on May 18,1994,1 month before trial, Ward, Olathe’s economist expert, issued his revised damage calculations which included figures based on Moncrief’s new lost profit theory. On May 23, 1994, 3 weeks before trial, Browning deposed Moncrief for the second time, and he fully explained the new lost profit theory based on the delay in the production of the 12-foot tub grinder. Olathe asserts that it did not disclose the revised expert opinions on this new lost profit theory at such a late date in order to mislead Browning. Rather, it contends that the 10- and 12-foot tub grinder markets evolved while the case was pending; thus, Olathe’s market projections and lost profit figures also evolved while the case was pending.
Olathe contends that if Browning suffered any prejudice as a result of Olathe’s late disclosure, then Browning should have requested a continuance. Olathe points out that neither Browning nor the trial court suggested this measure as an alterative to the exclusion of the lost profit evidence. Olathe contends that it was Browning’s responsibility to request a continuance if it thought it needed one to prevent prejudice. Olathe did not have any reason to request a continuance before trial because the only reason which the trial court gave before trial for excluding the lost profits evidence was that the evidence amounted to hearsay under 60-456(b). Olathe did not request a continuance at this time because a continuance would not have cured this hearsay problem. The trial court did not make a finding that prejudice had occurred due to the late disclosure until after the trial had concluded. At this time, it was too late for Olathe to cure the problem by requesting a continuance. Olathe contends that the trial court’s post-trial finding of pretrial prejudice arising from the late disclosure of Olathe’s lost profit theory resulted in prejudice to Olathe’s ability to seek com pensation for its damages because the trial court made the finding after it was too late for Olathe to fix the problem.
In response to Olathe’s post-trial argument, Browning points out that it argued in a motion in limine before the trial began that the evidence was untimely disclosed and prejudicial. On June 24,1994, Browning and Olathe argued the motion before the trial court. However, Olathe never requested a continuance at this time to cure any prejudice which the trial court might have found to exist. Browning contends that it is absurd for Olathe to argue that Browning should have suggested a continuance to prevent prejudice when Olathe caused the prejudice by its own delay and failed to request a continuance itself.
As Browning points out, Olathe had a duty to supplement discovery responses under K.S.A. 60-226. Furthermore, the trial court specifically ordered April 15, 1994, as the deadline to supplement experts’ reports with any new information the experts were expected to testify about, and the trial court ordered April 30, 1994, as the deadline for fact discovery. According to Browning, Olathe switched to its new damage theory in March 1994. Browning contends that, rather than abiding by these requests and deadlines as Olathe would have been able to do, on April 15, 1994, Olathe served its expert witness supplementation on Browning with no mention of the new lost profit theory. Further, Browning points out that the updated damage figure, which it received from Olathe on May 18, 1994, did not clarify that the lost profit damages were based on lost sales of the 12-foot tub grinder instead of the 10-foot grinder. Browning asserts that Olathe did not explicitly make known its new damage theory until Browning deposed Moncrief and Ward for the second time in May, 3 weeks after the close of fact discovery and only 1 month before trial.
Olathe cites to Hurlbut v. Conoco Inc., 253 Kan. 515, 532-33, 856 P.2d 1313 (1993), as supportive of its position that the court did not need to exclude the expert’s testimony. In Hurlbut, the plaintiff delivered additional expert reports and calculations to the defendant approximately 6 days before the trial. The defendant requested that the calculations be excluded or that the trial be continued so that it would have time to prepare a defense. The trial court denied both requests. The court denied such requests because the court calendar and budget had been set for over a year to accommodate the trial at that time. Further, the trial court found that the plaintiff did not attempt to hide the information from the defendant. Rather, the plaintiff forwarded the information directly to the defendant upon becoming aware of it. Further, the court found that the new calculations did not alter the ultimate opinions of the plaintiff’s expert and that some of the expert’s new calculations were the result of new information received from the defendant’s experts.
While Olathe cites Hurlbut as authority for its position, Hurlbut is distinguishable from this case. Instead, it supports Browning’s position that the trial court’s exclusion of the evidence was proper. For instance, in this case, unlike Hurlbut, there was some testimony proffered that Olathe may have been aware of this new lost profits theory for several months before it decided to disclose the theory to Browning. Second, unlike Hurlbut, Olathe’s new lost profit theory did alter its experts’ ultimate opinions as to the amount of lost profits which Olathe suffered and as to what product experienced the lost sales. Moreover, unlike Hurlbut, this new lost profit theory was not premised on any new information provided by a Browning expert; thus, Browning was totally surprised by the theory and was not prepared to defend against it.
Further, Hurlbut also affirmed the trial court’s allowance of a 4-day continuance, rather than an exclusion, to allow the defendant time to prepare a defense against the new evidence which was discovered 3 weeks into the trial. While this seems to support Ola-the’s position, the Hurlbut court promulgated the following rule to determine when a trial court should exclude evidence:
“Under K.S.A. 60-455, the trial judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.” 253 Kan. at 534.
Apparently the trial judge here found that the probative value of the new lost profit theory did not outweigh the risk that its admission would unfairly and harmfully surprise Browning, which had not had a reasonable opportunity to anticipate such evidence would be offered. It cannot be said that no reasonable person would agree with the trial court’s determination; thus, the trial court did not abuse its discretion by excluding the evidence even if it did so after the trial.
Finally, Browning attempts to show how it was prejudiced by Olathe’s late disclosure of the new lost profit theory. According to Browning, it was prepared to defend against a lost profit claim based on Olathe’s lost reputation. However, Browning asserts that it was not prepared to defend against a new theory which alleged $8.3 millón in lost profits due to the delay in the marketing of a new and different tub grinder. Based on Olathe’s late disclosure of its new lost profit theory, Browning did not have the opportunity to discover the following information: Whether Olathe’s delay in marketing the 12-foot tub grinder resulted from design problems in the grinder instead of a bearing problem in the 10-foot tub grinder; whether Olathe misread the market; or why Toro, a $700 millón company which owned 48% of Olathe at the time, did not provide the resources Olathe allegedly needed so that Olathe could redesign the 10-foot tub grinder and simultaneously design and market the 12-foot tub grinder. Thus, Browning contends that the trial court had discretion to exclude evidence regarding Olathe’s new 11th hour lost profit theory. In making this argument, Browning relies on Barnes v. St. Francis Hospital & School of Nursing, 211 Kan. 315, 507 P.2d 288 (1973); and Curry v. Klein, 251 Kan. 670, 840 P.2d 443 (1992).
In Barnes, the plaintiff deposed the defendant’s expert and asked the expert the basis upon which he formed his opinions. The expert responded that he had formed his opinions on hospital admission reports, nurses’ reports, nurses’ notes, photographs, and charts. At trial, the expert testified that he had also based his opinions on some microscopic slides which he had examined. The plaintiff objected, and. the district court excluded the expert’s testimony concerning the slides, finding that the expert did not seasonably disclose this information. This court found that the trial court did not abuse its discretion in excluding the testimony. 211 Kan. at 320-21.
In Curry, the defense counsel advised the plaintiff’s counsel 4 days before trial that a doctor, who had been struck from the case by a different district judge 10 months earlier, would be called as an expert witness at trial. The plaintiff objected, claiming prejudice and surprise. The trial court excluded the expert’s testimony on the basis of surprise and prejudice, and this court found that this ruling was not an abuse of discretion. 251 Kan. at 675.
Finally, Browning points to Ryan v. Kansas Power & Light Co., 249 Kan. at 11-12, which holds that the purpose of discovery is to eliminate the element of surprise from trials and to simplify issues by fully disclosing the evidence regarding the issues. According to Browning, Olathe’s late disclosure of its new lost profits theory and the evidence regarding this theory was opposed to the purpose of discovery and thus was properly excluded. We agree. The trial court did not abuse its discretion by justifying the exclusion of the evidence as unfairly prejudicial after the trial had terminated.
For the two reasons set forth above, the testimony and evidence regarding Olathe’s new lost profits theory were properly excluded. Thus, we do not need to reach the hearsay issue or determine whether the lost profits were foreseeable by the defendant (the reason for exclusion argued by Browning in its motion in limine but not addressed by the trial court).
The trial court is affirmed.
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The opinion of the court was delivered by
Six, J.;
This water law case is on appeal from summary judgment. Plaintiffs Oneita and Clara Johnson sued defendants Board of County Commissioners of Pratt County (the County) and Mid-Continent Engineers (MCE) for negligent design and construction of a new bridge over the Ninnescah River, upstream from their properties. The Johnsons seek recovery for erosion damage resulting from flooding of the Ninnescah in 1988 and 1991, which they assert was caused by the new bridge. The County filed a third-party claim for indemnification against the Kansas Department of Transportation (KDOT). KDOT was the County’s agent during the design and construction of the bridge.
The district court granted summary judgment for the defendants and denied the Johnsons leave to amend their petition to add a nuisance claim. The county’s third-party claim against KDOT was also dismissed.
The Court of Appeals reversed in part, affirmed in part, and remanded. Johnson v. Board of Pratt County Comm'rs, 21 Kan. App. 2d 76, 897 P.2d 169 (1995). We granted the petitions for review of the County and MCE. Our jurisdiction is under K.S.A. 20-3018(b).
The issues we review under a summary judgment focus are whether: (1) the County and MCE owed a legal duty to the John-sons, (2) the County is immune from liability under the Kansas Tort Claims Act (KTCA), K.S.A. 1995 Supp. 75-6104(m), (3) any of the Johnsons’ claims are time barred, (4) the failure to obtain a K.S.A. 82a-301 et seq. permit from the State Board of Agriculture, Division of Water Resources (the Division) before bridge construction is moot, (5) the Johnsons’ notice of claim to the County failed to comply with K.S.A. 12-105b, thus barring a separate claim by Oneita based upon statements made and remedial work done by the County after the 1988 flood, (6) the district court erred in denying the Johnsons’ motion to amend their petition to add a nuisance claim, and (7) the district court erred in dismissing the County’s third-party claim against KDOT.
The County and MCE cross-appeal from the ruling that Clara’s claim was not barred by the statute of limitations. The County cross-appeals from the judgment in favor of KDOT on the County’s third-party claim.
Our review of the record and of the parties’ contentions convinces us that summary judgment was not the proper procedural vehicle for resolving this case. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed). We affirm the Court of Appeals in part and reverse in part. The district court also is affirmed in part and reversed in part. We remand to the district court for further proceedings.
FACTS
The Court of Appeals stated the facts and procedural history. Additional facts are referenced in this opinion.
“The Johnsons own and live on adjoining pieces of real estate on the Ninnescah River in Pratt County, Kansas. The river runs from the west to the east, passing first through Clara’s 13 acres and then through Oneita’s 20 acres. Oneita’s and Clara’s homes are on the north side of the river. On this part of the river, the north bank is the steeper bank, and a flood plain lies to the south. A county road runs north-south along the western boundary of Clara’s property and crosses the river at the bridge that is the subject of this action. [Clara’s property begins at the east edge of the bridge and extends to Oneita’s property.]
“The bridge was built in 1988, replacing a wooden bridge that had been in place for at least 62 years. The old bridge was approximately 57 feet long and was inadequate to accommodate water from a 25-year flood. In fact, flood waters were frequently diverted to the flood plain to the south. The flood water would cover the south approach road and then flow back into the river channel. Although the river flooded every year, it had not caused any substantial erosion of the north bank along the Johnsons’ property.
“In the mid-1980s, the Board of County Commissioners of Pratt County (County) decided to replace the old bridge and hired Mid-Continent Engineers (MCE) to design the new bridge and oversee its construction. Acting as the County’s agent to obtain federal highway funds, the Kansas Department of Transportation (KDOT) approved the plans and accepted the completed project. By contract, KDOT was responsible for insuring compliance with applicable regulations. KDOT obtained no permit for a river channel alteration because KDOT did not believe one was needed.
“As required by state and federal standards, the new bridge was designed to accommodate a 25-year flood and to raise the 100-year flood level upstream by no more than a foot. The new bridge is 142 feet long and is two feet higher than the old bridge. As part of the bridge project, 34 trees along the banks were removed, the river channel was widened and moved south, and the south approach road was raised two to three feet higher for a distance of about 600 feet. [The material used to elevate the road level was excavated from the channel underneath the bridge. The channel was widened to about 150 feet at the bridge and for some distance upstream and downstream from the bridge.] As a result, under flood conditions, much less water is diverted to the flood plain, and two and a half times more water passes under the new bridge, although it passes more slowly.
“In July 1988, shortly after completion of the bridge, heavy rain fell in the area. The river flooded and washed out a 15-foot strip of Oneita’s land on the north bank of the river, encroaching toward her bam and washing away several trees. A two- or three-foot strip of Clara’s land on the north bank also washed out. Oneita believed the new bridge caused the erosion of her property. She retained an attorney and requested that the County place riprap [layering of rock or concrete] along the north bank to prevent further erosion. The County refused because MCE advised it was not necessary; however, one county commissioner assured Oneita they would take care of the problem and would not let a flood take her bam. In an attempt to prevent further erosion of Oneita’s property, and at MCE’s recommendation, the County straightened the channel and removed some trees. Although Oneita thought the County should have riprapped the bank, she decided to trust the County and, as her lawyer put it, deferred to its “expertise.” Oneita took no further action to seek redress for the property damage that had occurred.
“In April 1991, more flooding occurred, washing out a strip of land approximately 50 feet deep along the north bank of Clara’s property and a strip 20 feet deep on Oneita’s property. Both Oneita and Clara were worried that further flooding would endanger their homes.
“The Johnsons complained to the County, but the County responded that it was not responsible for the damage or for taking any preventive measures. The Johnsons also demanded that MCE take action to prevent further damage. In June 1991, the Division of Water Resources (Division) informed the County that because no channel alteration permit had been obtained, as required by the Obstructions in Streams Act, K.S.A. 82a-301 et seq., it must either apply for an after-the-fact permit or remove any obstructions from the stream channel and return the stream to its natural condition. The Division warned that failure to do so would subject the County to criminal penalties and could render the County liable to landowners for damages.
“The County filed an application for a permit. In February 1992, the Division determined it would not issue a permit unless the bridge project was modified to prevent erosion downstream, or the County presented an engineering analysis showing that modification was not required to prevent erosion. In April 1993, the Division issued a permit, subject to the condition that erosion of the north bank downstream from the bridge within the easement be corrected. The County brought an action for judicial review, which was dismissed when the Division accepted a proposal that the County perform minor work in the channel by the bridge. This work was completed by January 1994. The Johnsons have paid some $20,000 for their own bank stabilization work.
“The Johnsons commenced this action for damages for negligence in April 1993, less than two years after the 1991 flood. In addition to the County and MCE, they named as a defendant the contractor that built the bridge. The County denied liability, filed a cross-claim against MCE for indemnity, and filed third-party claims against KDOT, the State Board of Agriculture, and the Division of Water Resources and its chief engineer. The County sought a declaratory judgment that no permit from the Division was required for the project. Against KDOT, the County sought indemnification of any damages it might be required to pay because of KDOT’s failure to obtain a permit before construction. The claims against the builder, the Board of Agriculture, the Division, and its chief engineer were dismissed, and no one has challenged their dismissal on appeal.” 21 Kan. App. 2d at 78-83.
The Expert Opinions
Brace M. McEnroe, Ph.D., the Johnsons’ expert, opined: (a) Erosion damage occurring at the Johnsons’ properties was a direct result of a design flaw in the new bridge; (b) the new bridge allowed discharge of water underneath of about 2 and Yz times the discharge allowed under the old bridge, causing the downstream channel to expand, thus resulting in erosion to the Johnsons’ properties; (c) four factors increased water discharge underneath the new bridge: (1) increasing the bridge span, (2) raising the elevation of the road approaching the. bridge on either side, (3) removing trees (some of which were growing in the channel and provided resistance to water flow underneath the bridge) in the vicinity of the bridge, and (4) excavating the channel in the vicinity of the bridge to enlarge it; (d) had the old bridge been in place during the April 1991 flood, the Johnsons would have experienced little, if any, erosion; and (e) the bridge designer failed to consider the erosion the new bridge would cause on downstream properties, which is a deviation from accepted engineering standards and practices.
Daryl B. Simons, Ph.D., the defendants’ expert, reasoned: (a) The bridge design was not flawed and did not violate accepted and prevailing design standards in effect at the time; (b) an upstream bridge failure during the April 1991 flood caused water discharge at the Johnsons’ properties that was the equivalent of a flood event of in excess of 180 years, which the new bridge withstood; (c) the new bridge was properly designed to accommodate a 25-year flood event, so that flood waters would pass underneath and not over the road to the south of the bridge; (d) the old bridge would have failed had it been in place during the April 1991 flood. The Johnsons would have experienced significant channel shifting and bank erosion with the old . bridge because the narrower span of the old bridge increased flood water velocity underneath and diverted flood waters south over the road, which would cut back diagonally into the main channel downstream, causing erosion. Channel shift ing, scouring, and erosion, an expected and common event, has occurred in recent years at the Johnsons’ properties independent of the bridge. Simons agreed that consideration of the effect a bridge will have on upstream and downstream property is a fundamental part of any bridge design.
The Court of Appeals’ Opinion
Both the County and MCE dispute the statement in the Court of Appeals’ opinion that the old bridge had been in place for over 62 years. They attach to their petitions for review a “Structure, Inventory and Appraisal Sheet” indicating that a wooden bridge was built in 1958. The Johnsons argue that this document, which is not part of the record, should be disregarded for lack of foundation.
Whether the wooden bridge had been in place since 1958 or much earlier is not controlling at this summary judgment stage. Oneita testified that during the 62 years she had lived on her property, she had never experienced the loss of soil that occurred after the new bridge was built in 1988. We decline the invitation to take judicial notice of the Structure, Inventory, and Appraisal Sheet.
MCE also contends that the Court of Appeals “ignored, omitted reference to, or found as legally insignificant, without so stating” numerous additional facts. These facts concern the scope of MCE’s duties under the engineering consulting contract, the extent of erosion damage to the Johnsons’ properties in 1988, and the Johnsons’ knowledge concerning such damages. We conclude that these facts are either legally insignificant or controverted.
DISCUSSION
A Duty Owing
Under the facts of this case, did the County and MCE owe a legal duty to the Johnsons upon which the Johnsons may assert a claim for negligence? The answer is, “Yes.”
The County
Under the KTCA, K.S.A. 75-6101 et seq., a “governmental entity,” such as a county, is subject to the same liability exposure as a private person, unless an exception applies. K.S.A. 75-6103(a). A governmental entity is liable, as a private person would be, for damages caused by flooding land of a lower riparian landowner. Dougan v. Rossville Drainage District, 243 Kan. 315, 319, 757 P.2d 272 (1988). A municipal corporation incurs the same liability as an individual when it damages die land of another person by changing the drainage course and casting water, which would not have flowed there naturally, on the land of another person in greater quantities than would naturally have flowed there. Baldwin v. City of Overland Park, 205 Kan. 1, 5, 468 P.2d 168 (1970).
In Dougan, 243 Kan. at 319, we noted that the rule protecting a lower landowner derives from Parker v. City of Atchison, 58 Kan. 29, Syl. ¶ 1, 48 Pac. 631 (1897):
“ ‘The owner of property on the bank of a water course has a right to build barriers and confine the waters to the channel of the stream; but he cannot build and maintain a structure which will change the channel or project the waters against or upon the property of others in such a way as will result in substantial injury to such property.’ ”
In Simon v. Neises, 193 Kan. 343, 346-47, 395 P.2d 308 (1964), we described the Parker holding:
“[W]e point out that as early as 1897 in the case of Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631, this court, in discussing the rights of property owners to repel flood waters, stated the aversion must be done in such a way as not to interfere with the rights of others; that structures cannot be built or maintained which will change the channel of the stream or project the water against and upon the property of another in such a way as will result in substantial injury to eider the owner upon the opposite side of the stream or to those above or below.”
The Parker rule is followed even though the overflow and damage occurs some distance downstream from the point the upper riparian proprietor discharges the surface water into the natural watercourse. Dougan v. Rossville Drainage District, 2 Kan. App. 2d 125, Syl. ¶ 2, 575 P.2d 1316 (1978).
In Parker, we observed:
“Power is also given to the City to alter and change the channel of streams and water courses. [Citation omitted.] In doing so, however, reasonable care should be exercised to avoid unnecessary injury to private property. It appears, therefore, that the improvement was authorized and cannot be said to be illegal. The fact that there is statutory authority for the same does not exempt the City from liability for injuiy to private property.” 58 Kan. at 39.
The term “watercourse” has been defined as follows:
“To be a watercourse there must be bed, banks and a flow of water, the source of which may be surface water alone, or springs; but whatever the source, if it has the elements named, including that of permanence, it is to be regarded as a watercourse.” Hornor v. City of Baxter Springs, 116 Kan. 288, 289-90, 226 Pac. 779 (1924).
If water continues to flow in the same direction while outside the banks of a stream, returning upon the subsidence of the flood, it is to be deemed a part of the running stream, and not surface water. Manufacturing Co. v. Bridge Co., 81 Kan. 616, 622, 106 Pac. 1034 (1910).
Early railroad cases established additional duties owed by a party building a bridge over a watercourse. See Union Trust Company v. Cuppy, 26 Kan. 754, 762-63 (1882) (quoting the jury instruction reciting those duties and determining it to be correct).
“[The duty of one building a bridge over a natural .watercourse] springs from an obligation to refrain from inflicting any needless injury upon another. If when a bridge is about to be constructed the probabilities are that the stream to be crossed will at times overflow its banks there is as much occasion to provide an outlet for the surplus water as for that which is confined within the channel. Where the adjacent lands are no higher than the banks it may be impractical to provide an opening any larger than the channel itself or to avoid presenting some obstruction to the passage of flood water. But where the ground rises as it recedes from the stream, and especially where there are secondary banks, the capacity of the wider channel so formed must be taken into account.” Manufacturing Co., 81 Kan. at 623.
The fact that a flood was unusual and out of the ordinary does not necessarily relieve the party building the bridge of liability. Riddle v. Railway Co., 88 Kan. 248, 251-52, 128 Pac. 195 (1912) (question for the jury as to whether the flood was one to be reasonably anticipated and provided for). See Kemna v. Kansas Dept. of Transportation, 19 Kan. App. 2d 846, 851, 877 P.2d 462 (1994) (“[A] requirement to accommodate a 100-year flood [in designing for adequate highway drainage] should not be considered an ‘extraordinary’ event.”).
The Parties’ Contentions
According to the Johnsons, with the old bridge, flood water would extend over the flood plain south of the bridge, flowing over the lower road level and back into the channel downstream from the bridge. The new bridge diverted water from the flood plain to the channel underneath the bridge. Before construction of the new bridge, neither Oneita nor Clara had observed any substantial erosion in all the years they had lived there. The Johnsons contend that the County and MCE failed to take into account the erosion that would result on downstream property as the channel expanded in width to accommodate the greatly increased volume of flood water flowing underneath the bridge.
The County and MCE argue that the new bridge returned the watercourse to its natural state. Because the old bridge acted as a dam, it was inadequate to allow flood waters to pass underneath it. The new bridge accommodates the flood water and did not cause erosion of the Johnsons’ properties. The County and MCE also argue that the watercourse, as it existed with the old bridge, was artificial, because the old bridge acted as a man-made obstruction to the natural watercourse. The new bridge removed the obstruction.
Analysis
Oneita stated the old bridge had been in place for as long as she had lived there, 62 years. Oneita’s house and bam were in place 64 years before the new bridge. Clara’s house was in place 24 years before the new bridge. Riparian rights may attach to a watercourse that has been artificially altered, under certain circumstances. See Homor, 116 Kan. at 290 (“A stream does not lose the attributes of a watercourse by the fact that a part of its channel may have been artificially created”); 3 Famham, Waters and Water Rights § 820 (1904) (“Rights may be acquired in an artificial condition of water in the same way that they can be acquired in real estate generally.”). A genuine issue of material fact exists as to whether the Johnsons have riparian rights to the watercourse as altered by the old bridge.
The County owed a duty to the Johnsons, downstream property owners, not to change the natural watercourse in a way that caused substantial injury to their properties. See Parker, 58 Kan. at 39. The County also had a duty, in building the bridge over a watercourse, to provide a sufficient outlet for all water that may reasonably be expected to flow through the watercourse. See Cuppy, 26 Kan. at 762. Those duties are not mutually exclusive.
At oral argument, the defendants criticized the Court of Appeals’ opinion for failing to apply or distinguish Morris v. City of Kansas City, 189 Kan. 52,366 P.2d 788 (1961). In Morris, a nuisance case, a homeowner experienced flooding from an undersized culvert underneath a city street. The homeowner successfully sued the city, claiming that the inadequate culvert was a nuisance. On appeal, the city argued that it did not create the nuisance (the street was annexed, not built by the city), so it should not be liable. We affirmed and held that a nuisance did exist, but also stated:
“Moreover, we are inclined to believe that the defendant city owed a greater duty to fix this inadequate culvert because it in effect constituted a bridge over which a city street passed. It is an ancient rule that a city is responsible for the condition of the streets within its corporate limits. As we remember it, the rule goes back to the duty to keep the King’s highway in repair. . . .
“In the case at bar, the ciiy was maintaining what amounted to a dam, formed by the city street, on a natural drain. The ciiy knew for many months if not for more than a year of the danger to the plaintiff.” 189 Kan. at 55.
The County argues that the Court of Appeals’ opinion conflicts with Morris. We disagree. No one disputes that the County had a duty to design, construct, and maintain a bridge that provided adequate drainage as the Ninnescah. flowed underneath. The duty to maintain adequate bridges and the duty not to cause substantial injury to downstream property owners must be superimposed on one another. The Johnsons contend that the new bridge diverts water from the flood plain and forces it underneath the bridge, causing the channel to widen and erode their stream banks. Morris does not stand for the proposition that because a city has a duty to maintain bridges, it has no liability for any damage caused by the design of a new and larger bridge.
The County also argues that Baldwin, 205 Kan. 1, controls this case. In Baldwin, we held that a city is not liable for damages to property adjacent to a natural drainway caused by increased surface water flow resulting from the city’s growth and development. 205 Kan. at 7-8. The Johnsons reason that the flood plain constitutes part of the natural watercourse during flooding. Baldwin, a surface water case, is not controlling.
The County asserts that the Court of Appeals’ holding obligates it to maintain the old bridge. We disagree. The County owed the duty to avoid causing substantial injury to downstream property when it constructed the new bridge. No aspect of that duty prevented the County from replacing the old bridge.
MCE
MCE contends that because it was not in privity with the John-sons, it owes them no duty — even though MCE designed the bridge for the County. In Schmeck v. City of Shawnee, 232 Kan. 11, 27, 651 P.2d 585 (1982), we judicially adopted the Restatement (Second) of Torts § 324A (1964), which provides:
“Liability to Third Person for Negligent Performance of Undertaking
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
In Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 672 P.2d 1083 (1983), we applied § 324A to hold a consulting engineer under contract with the Kansas Turnpike Authority to inspect bridges, liable to the survivors of a truck driver killed after his truck struck a hole in the bridge deck. The engineering firm owed a duty to the members of the traveling public, including the deceased, to exercise reasonable care in providing safety inspection services. 234 Kan. at 295.
MCE fits the requirements of § 324A. The County entered into a contract with MCE for the design of the bridge. The County owed a duty to downstream landowners, such as the Johnsons, not to cause substantial injury. MCE undertook, by express contract, to render engineering and design services to the County and oversee construction of the new bridge. MCE should have recognized that those services would be necessary for the protection of the persons using the bridge and the upstream and downstream property owners. MCE should be subject to liability for any failure to exercise reasonable care as to those third parties. MCE undertook the duty the County owed to downstream property owners in connection with the design of the new bridge.
The Court of Appeals reasoned that if a natural feature, rather than the old bridge, had directed flood water south to the flood plain, then under the rule in Parker, “the defendants would clearly owe a duty to warn or protect the Johnsons against erosion from changes in the flow of water caused by the new bridge.” 21 Kan. App. 2d at 83. Our holding in this case does not impose, as a matter of law, a duty to warn or affirmatively protect downstream property owners. However, the duty not to cause substantial injury to the Johnsons provides the basis of a claim sufficient to withstand sum-maiy judgment.
MCE argues that affirming the Court of Appeals’ holding will make it virtually impossible for KDOT and counties to replace rural bridges in Kansas using federally shared funds. We disagree. Our holding imposes a duty not to cause substantial injury to downstream properties when such bridges are replaced. The holding applies existing Kansas law.
The Tort Claims Act
The County asserts that it is immune from liability under K.S.A. 1995 Supp. 75-6104(m).
The KTCA is considered an open-ended act, meaning that liability is the rule and immunity the exception. Dougan, 243 Kan. at 318. See K.S.A. 75-6103(a). The County is a “governmental entity” subject to the KTCA. K.S.A. 1995 Supp. 75-6102. K.S.A. 1995 Supp. 75-6104(m) provides an exception to liability for damages resulting from:
“(m) the plan or design for the construction of or an improvement to public property, either in its original construction or any improvement thereto, if the plan or design is approved in advance of the construction or improvement by the governing body of the governmental entity or some other body or employee exercising discretionary authority to give such approval and if the plan or design was prepared in conformity with die generally recognized and prevailing standards in existence at the time such plan or design was prepared.”
Once a K.S.A. 82a-301 permit is obtained, the construction must proceed in conformance with the permit. K.S.A. 82a-303 provides:
“The chief engineer of the division of water resources shall have power to grant or withhold such consent or permit or may incorporate in and make a part of said consent or permit such terms, conditions and restrictions as may be deemed by him or her advisable. It shall be unlawful to: (a) Construct or begin the construction of any dam or other water obstruction, or (b) make or begin any change or addition in any dam or other water obstruction, except in accordance with the terms, conditions and restrictions of such consent or permit, and such rules and regulations as may be adopted by the chief engineer of the division of water.”
The County did not apply for a K.S.A. 82a-301 permit until June 1991, approximately 3 years after the bridge was built. The permit was not received until April 1993.
The County and MCE argue that KDOT’s approval of the bridge plans prior to construction should satisfy K.S.A. 1995 Supp. 75-6104(m). Although KDOT approved the bridge plans (see K.S.A. 68-1111), the Division, not KDOT, holds the approval authority for the permit required for a channel alteration. K.S.A. 82a-301. The County, MCE, and KDOT do not argue that a Division permit was unnecessary; consequently, they constructively concede that the Division also had to approve the plans. K.S.A. 1995 Supp. 75-6104(m) requires prior approval" by “the governing body of the governmental entity or some other body or employee exercising discretionary authority to give such approval.” The approval must come from the governing body given the statutory authority to approve such plans, in this case, the Division. Prior approval was not obtained, so 75-6104(m) does not apply. Consequently, the district court need not consider the second 75-6104(m) exemption requirement that the plan must conform to generally recognized and prevailing standards in existence at the time the plan or design was prepared. We note that the Johnsons’ expert, McEnroe, believed that “[f]ailure of the designer to consider the effect a bridge will have on downstream conditions is a deviation from accepted engineering standards and practices.”
The County is not entitled to summary judgment on the basis of K.S.A. 1995 Supp. 75-6104(m).
The Statute of Limitations
The parties agree that the applicable statute of limitations is governed by K.S.A. 60-513(a)(4). The action must be brought within 2 years. K.S.A. 60-513(b) provides in relevant part:
“[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injuiy 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 . . . .”
The K.S.A. 60-513(b) term “substantial injuiy” does not require an injured party to have knowledge of the full extent of the injury to trigger the statute of limitations. Rather, “substantial injury” means the victim must have sufficient ascertainable injuiy to justify an action for recovery of the damages, regardless of extent. Roe v. Diefendorf, 236 Kan. 218, 222, 689 P.2d 855 (1984).
Was the injury permanent or temporary? The answer is the determinative factor in commencing the statute of limitations in damage actions from flooding allegedly caused by construction. Dougan v. Rossville Drainage District, 2 Kan. App. 2d 125, 128, 575 P.2d 1316, rev. denied 225 Kan. 843 (1978) (citing Henderson v. Talbott, 175 Kan. 615, 621, 266 P.2d 273 [1954]). See also Gowing v. McCandless, 219 Kan. 140, 145, 547 P.2d 338 (1976) (owner of land injured by overflows and poor drainage caused by abatable condition or nuisance has right to assume condition or nuisance will be abated; evidence showed obstructions were not “permanent” and could be removed from the drainage ditch; obstructions also were not “permanent” in a legal sense because they were not approved by the Division).
Át oral argument, MCE’s counsel complained that the Court of Appeals failed to acknowledge Thierer v. Board of County Commissioners, 212 Kan. 571, 512 P.2d 343 (1973), asserting that Thierer is “on all fours” with this case. We disagree with MCE’s reading of Thierer. In Thierer, the Geary County Commissioners in 1959 altered the channel of a stream during the relocation of a bridge and county road. Henry and Nellie Thierer were upstream property owners. In 1962, a levee broke as a result of the alteration. The Thierers’ property was flooded. The Thierers repaired the levee. In 1966, they noticed that a low water crossing to their property was no longer passable. The levee broke again. Again the Thierers’ property flooded. The commissioners unsuccessfully attempted to restore the low water crossing in 1966 and 1967. In 1967, the Thierers filed suit, seeking damages and a mandatory injunction to restore the low water crossing and return the upstream channel to its former condition. The district court awarded a mandatory injunction to have the low water crossing restored but denied damages, determining that the Thierers were seeking permanent damages that were reasonably ascertainable in 1962. We reversed the mandatory injunction award and affirmed the dismissal of the damages count, reasoning that all counts were time barred.
“Plaintiffs made no effort in the trial court to amend their pleadings to include temporary damages. Likewise, they made no effort to submit to the trial court the issue of temporary damages. The first assertion of temporary damages appears on appeal. An issue not presented to the trial court cannot be a subject for appellate review.” 212 Kan. at 573.
In the present case, the Johnsons’ petition prayed generally for damages without specifically alleging. temporary or permanent damages. Prior to the district court’s hearing of the summary judgment motions, the Johnsons moved the district court for leave to amend their petition to expressly plead temporary damages. The motion was denied. The issue of temporary damages should remain alive for purposes of this appeal. The district judge, in denying the motion to amend, postponed the temporary versus permanent damages question to the summary judgment hearing, where it was addressed and ruled upon. Although there are factual similarities between Thierer and this case, the failure to preserve the issue of temporary damages for appeal in Thierer distinguishes it.
Dougan, 2 Kan. App. 2d 125, addressed the question of when a cause of action for permanent damages from flooding accrues. The drainage district made a number of alterations to a network of drainage ditches and waterways between 1942 and 1954 without the knowledge and consent of the Division’s chief engineer. Dou-gan experienced flooding in 1967 and 1973 as a result of the alterations. After the 1967 flood, Dougan discussed a possible solution with the drainage district. The drainage district did some dredging work, at its own expense. Dougan filed suit in 1974 after the 1973 flooding, seeking a permanent injunction, permanent damages to real estate, and temporary damages for lost crops. The district court granted the drainage district’s motion for summary judgment, determining that Dougan’s permanent damages claim accrued in 1967 and the action was time barred. The Court of Appeals reversed, observing: “The flooding in this case is temporary, occasional and recurrent. There is no indication or allegation that the flooding caused permanent injury to the land itself in 1967.” 2 Kan. App. 2d at 129.
The district court determined that Oneita suffered permanent damages to her property in 1988; consequently, her cause of action accrued at that time and her entire claim was time barred. The district court also determined that equitable estoppel did not apply to toll the statute of limitations as a result of the remedial work the County did in 1988. The Court of Appeals agreed that the 1988 damages were “permanent” and time barred, but reversed the holding that Oneita could not claim damages incurred in the 1991 flood. The Court of Appeals agreed that equitable estoppel did not apply. (At oral argument before this court, the Johnsons’ counsel conceded his equitable estoppel argument was not persuasive.)
The Court of Appeals affirmed the district court’s determination that Clara’s claims from the 1988 flood and the 1991 flood were not time barred. Clara could not have ascertained her future damages in 1988. The record did not indicate that Clara suffered substantial injury or knew that the bridge caused any erosion to her property in 1988. The Court of Appeals also noted contradictory statements, either by Clara or her attorney, as to the amount or extent of erosion damages she suffered in 1988. 21 Kan. App. 2d at 88-89. A genuine issue of material fact exists as to whether she suffered substantial injury in 1988.
We question the reasoning of the Court of Appeals in acknowledging that Oneita’s 1988 erosion damages were permanent and time barred, while holding that she is not time barred from claiming her 1991 erosion damages. If Oneita suffered permanent damages in 1988, then her cause of action for permanent damages accrued as of that time, and she should have brought her claim for past, present, and future damages at one time within the 2-year statute of limitation. See McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 8, 662 P.2d 1203 (1983); Thierer, 212 Kan. at 575.
A genuine issue of material fact exists as to whether Oneita’s 1988 damages were temporary or permanent. In the literal sense, Oneita’s property suffered erosion in 1988 that is permanent in nature. Nothing will bring back the soil that is gone. In addition, the cause of the erosion, the bridge, is without question a permanent structure. All agree that the erosion will continue, absent corrective measures. However, in 1988, the County took some remedial action in response to Oneita’s complaints after the flood. The County’s conduct in this case does not give rise to an equitable estoppel, but it does raise the issue of whether Oneita thought the cause of her damage was abatable in 1988. Viewing the facts most favorably to Oneita, she complained to the County as soon as she suffered erosion. The County responded by doing some work in an effort to solve the problem. Afterward, she had her attorney ask if the County was going to do any riprapping, and the County said riprapping was not necessary. Oneita may have thought that the cause of her injury was abated at that point. She would have no reason to believe the bridge would be removed, which is not what she had requested. But she may have had reason to believe that the County had solved the erosion problem. She had no further dealings with the County until after the 1991 flood. At that point, she realized the problem was not solved. She and Clara had rip-rapping done themselves. Oneita did file suit within two years of the 1991 flood.
The County’s failure to obtain a permit for the bridge until 1993 also relates to the issue of whether the Johnsons’ damages in 1988 or 1991 were temporary or permanent. See Gowing, 219 Kan. at 145. The Division informed the County by letter dated June 6, 1991, that the County must apply for a permit under K.S.A. 82a-301.
The Johnsons filed an objection to the permit application with the Division. Although the Johnsons were ultimately unsuccessful in obtaining any relief for their erosion problems through the permit application process, the possibility of relief was at least open until the permit was issued.
Oneita’s damage claim from the 1988 flood, whether it is temporary or permanent, is barred by the statute of limitations. She suffered substantial erosion after the 1988 flood, believed it was caused by the new bridge, and immediately complained to the County about it.
The K.S.A. 82a-301 Permit
The County and MCE contend that because the permit was eventually obtained, the lack of a permit before construction is a moot issue in this litigation. We agree with the Court of Appeals that the Johnsons should be allowed to raise the issue of the County’s failure to obtain a permit before construction where it is relevant to the other issues raised. Obtaining the after-the-fact permit under 82a-301 did not establish that the bridge was lawful for all purposes at the time it was built. The permit issue is relevant, as we have noted, to applicability of the County’s tort claims exemption defense under K.S.A. 1995 Supp. 75-6104(m). Failure to obtain the permit also is relevant to the question of whether the Johnsons’ damages are temporary or permanent.
Failure to obtain the mandatory permit injects a netdesome element into the fact scenario of this litigation. For convenience, we quote K.S.A. 82a-301:
“Without the prior written consent or permit of the chief engineer of the division of water resources of the state board of agriculture, it shall be unlawful for any person, partnership, association, corporation or agency or political subdivision of the state government to: (a) Construct any dam or other water obstruction, (b) make, construct or permit to be made or constructed any change in any dam or other water obstruction, (c) make or permit to be made any change in or addition to any existing water obstruction, or (d) change or diminish the course, current, or cross section of any stream within this state. Any application for any permit or consent shall be made in writing in such form as specified by the chief engineer. Jetties or revetments for the purpose of stabilizing a caving bank which are properly placed shall not be construed as obstructions for the purposes of this section.”
Compliance with 82a-301 may either have prevented or reduced the damages alleged by the Johnsons. We assume the notice requirements in K.S.A. 82a-301 through -305a and the accompanying rules and regulations (see, e.g., K.A.R. 5-42-1, requiring names and addresses of adjoining property owners to be included in plans for a stream obstruction submitted for approval to the Division) are currently complied with as the rule rather than the exception. However, we observe that failure to comply with 82a-301 has surfaced in previous water law cases (see, e.g., Gowing, 219 Kan. at 145; Simon, 193 Kan. at 345-47; Dougan, 2 Kan. App. 2d at 129-30). If our assumption is correct, the fears expressed by the County and MCE concerning the difficulties counties will encounter in future bridge replacements would appear to be exaggerated. If our assumption is incorrect, we suggest that the appropriate state agencies and governmental subdivisions comply with the statutory permit requirements.
The K.S.A. 12-105b Notice of Claim
Did the Johnsons’ notice of claim to the County fail to comply with K.S.A. 12-105b, thus barring a separate claim by Oneita based upon statements made and remedial work done by the County after the 1988 flood?
K.S.A. 12-105b(d) provides in relevant part:
“(d) Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action.”
The Johnsons filed a K.S.A. 12-105b(d) notice before filing their lawsuit. The notice claimed damages from erosion allegedly caused by the new bridge, but did not mention any claim in connection with the remedial work done or statements made by the County after the 1988 flood in response to Oneita’s complaints. The John-sons’ petition also does not plead a separate claim against the County concerning any statements or remedial work.
Under K.S.A. 12-105b, persons with tort claims are required to give notice to a municipality, including a county (see K.S.A. 12-105a[a]), before filing suit; however, those with contract claims are not. Wiggins v. Housing Authority of Kansas City, 19 Kan. App. 2d 610, Syl. ¶ 2, 873 P.2d 1377, rev. denied 255 Kan. 1007 (1994). At oral argument before this court, the Johnsons’ counsel was asked whether his clients were pursuing a separate claim against the County in connection with this remedial work. Counsel left the impression that his clients were. Although the district judge char-ácterized the claim as a contract claim, he determined that the claim was not pleaded in the petition and K.S.A. 12-105b had not been complied with.
On appeal, the Johnsons argued to the Court of Appeals that the County owed them a separate duty under Restatement (Second) of Torts § 323 (1964) by reason of the County’s statements to Oneita after the 1988 flood and the remedial work. The County responded that the district court denied this “claim” for noncompliance with 12-105b.
The record indicates that the district judge made a ruling, although he labeled the 12-105b claim a contract claim. The reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason. Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.2d 811 (1989). Any separate claim against the County in connection with the 1988 remedial work under § 323, or any other tort theory, is barred for failure to comply with 12-105b. However, the Johnsons are not prevented from bringing up the 1988 remedial work in connection with their statute of limitations arguments pertaining to their pleaded damage claims.
The Motion to Amend
After the County and MCE filed their motions for summary judgment but several months before the motions were set for hearing, the Johnsons filed a motion to amend their petition. The John-sons’ amendment asserted that they were seeking only temporary damages caused by the 1988 and 1991 floods and sought to add a nuisance claim for abatement against the County and MCE.
The district court denied the motion to amend to seek temporary damages and to add the nuisance claim, citing the 75-6104(m) exception to the KTCA.
The Court of Appeals determined the denial was error, stating: “Maintaining a structure that causes recurrent flooding can constitute a nuisance. See Dougan, 243 Kan. at 319-20.” 21 Kan. App. 2d at 90. We agree.
Recurrent erosion damages resulting from the greatly increased volume of flood water under the new bridge may constitute a nuisance. Union Trust Company v. Cuppy, 26 Kan. 754 (1882), indicates that a plaintiff suffering damages from a watercourse obstruction that is a nuisance has the Option of seeking temporary (past) damages and abatement or permanent (past and future) damages without abatement. If the Johnsons limit their damage prayer to temporary damages, then they should also be able to request abatement of the nuisance. Even if they can establish a nuisance, the Johnsons will bear the burden of showing they are entitled to injunctive relief, depending on whether abatement of the erosion is possible or practical. Granting leave to amend the petition is not a determination of the claim.
K.S.A. 60-215(a) provides that “a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” A district court is given broad discretionary power under 60-215 to permit the amendment of pleadings. An appellate court will not find reversible error unless the amendment allowed or denied is so material it affects the substantial rights of the adverse party. Williams v. Amoco Production Co., 241 Kan. 102, 109, 734 P.2d 1113 (1987).
“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should as the rules require, be ‘freely given.’ ” Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).
Accord Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 1002, 667 P.2d 879 (1983) (quoting 6 Wright & Miller, Federal Practice and Procedure: Civil § 1487 [1971]). None of the grounds set out in Dutoit appear to exist. The district court apparently denied the motion to amend on the grounds that the amendment would be futile.
The nuisance issue should not be disposed of at the pleading stage, absent sufficient uncontroverted facts that such relief is not warranted or practical.
The County’s Claim Against KDOT
KDOT moved for summary judgment on the County’s third-party claim for indemnification. One of the grounds alleged was that under the terms of a 1975 initial agency agreement between the County and the State Highway Commission (KDOT’s predecessor), which was still in effect when the parties entered into the November 2, 1987, contract for the bridge construction, the County agreed to
“save [KDOT] harmless from any and all costs, liabilities, expenses, damages, suits, judgements [sic] and claims of any nature whatsoever arising out of or in connection with the performance of any contract, ... or the construction or maintenance of any project, or of the acts of [KDOT], its authorized agents or employees, when acting under the provisions of this agreement and any contracts or agreements entered into in connection therewith.”
The district court dismissed the third-party complaint against KDOT as moot and did not reach the “hold harmless” issue.
The Court of Appeals elected to address KDOT’s motion for summary judgment on the merits and determined that the hold harmless clause did effectively bar the County from seeking indemnification against KDOT. The Court of Appeals reasoned that the 1987 agreement for this specific bridge and the 1975 general agency agreement did not conflict. The Court of Appeals, without discussion of indemnification for one’s own negligence, affirmed the district court’s ruling, but for a different reason. 21 Kan. App. 2d at 92. We reverse.
We acknowledge that a party may contract away responsibility for its own negligence. See Corral v. Rollins Protective Services Co., 240 Kan. 678, 680-81, 732 P.2d 1260 (1987). However, an agreement seeking to protect a party from liability for its own negligence is subject to strict construction ánd will not be enforced unless the protection from liability is expressed in clear and unequivocal terms. Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d 728, Syl. ¶ 1, 894 P.2d 881, rev. denied 257 Kan. 1097 (1995). Contracts for the exemption from liability for. negligence are not favored by the law and are strictly construed against the party relying on them. 20 Kan. App. 2d 728, Syl. ¶ 2. Butters v. Consolidated Transfer & Warehouse Co., Inc., 212 Kan. 284, Syl. ¶ 2, 510 P.2d 1269 (1973), states:
“It is a general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed thereto, and mere general broad and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indemnitee’s own negligence.”
The language of the 1975 agreement does not qualify under Zenda, Butters, and Corral as an enforceable hold harmless agreement. The language is not expressed in terms clear and unequivocal enough to contract away KDOT’s own negligence. Our conclusion is supported by the language of the specific “hold harmless” clause in the November 2, 1987, contract for the bridge in question:
“The LPA [the County] hereby expressly agrees to save the Secretary [of KDOT] and the Secretary’s authorized representatives harmless from any and all costs, liabilities, expenses, suits, judgments and damages to persons or property caused by the LPA, it’s [sic] agents, employees or subcontractors which may result from negligent acts, errors, mistakes or omissions from the LPA’s operation in connection with the services to be performed hereunder.”
Traditional “hold harmless” language was used in the 1987 contract (i.e., the County agreed to hold KDOT harmless from damages caused by the County’s negligence).
In addition to the hold harmless clause, KDOT raised a statute of limitations defense and an argument that as the County’s agent, KDOT should have no liability to the County. The Court of Appeals considered the agency argument and found it lacked merit. We agree. We remand to the district court for resolution of the statute of limitations defense and any other grounds not already addressed that were raised in KDOT’s motion for summary judgment.
CONCLUSION
We have stated that one who installs a bridge owes a duty not to change the channel or stream of the natural watercourse in ways that will cause substantial injury to downstream riparian owners. The trier of fact in the present case must determine what is to be considered the natural watercourse: the river, as altered by the old bridge, or the river, without regard to the presence of any bridge. As discussed previously, there remain material issues of fact as to whether the Johnsons have any prescriptive rights to the condition of the river as it existed with the old bridge. The trier of fact must then find whether the new bridge changed the channel or stream, causing substantial injury to the Johnsons’ properties. If substantial injury is found, then the nature (permanent or temporary) and extent of the damages and relief (monetary, injunctive, or both) to which the Johnsons may be entitled must be determined.
We reverse the summary judgment granted to defendants in part and affirm in part. We hold: (1) The Johnsons have stated a claim against the County and MCE based on a duty owing to the John-sons, (2) K.S.A. 1995 Supp. 75-6104(m) does not provide immunity to the County, (3) Oneita’s damages from the 1988 flood are time barred, (4) Oneita’s damage claim from the 1991 flood is not time barred if the trier of fact determines her 1988 flood damages are temporary, (5) Clara’s damage claims from the 1988 and 1991 floods are not time barred, (6) the failure to obtain the K.S.A. 82a-301 permit before construction is not a moot issue, (7) Oneita is barred from bringing a separate claim under Restatement (Second) of Torts § 323 based on the County’s statements and remedial work done after the 1988 flood, (8) the district court erred in denying the Johnsons’ motion to amend their petition and to add a nuisance claim for abatement, and (9) KDOT’s motion for summary judgment should not have been granted on the basis of the 1975 hold harmless clause.
The case is remanded to the district court for disposition consistent with the above holdings.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appeals his jury conviction of first-degree murder. Defendant claims the trial court erred in: (1) threatening trial counsel with contempt; (2) limiting cross-examination; (3) refusing to admit evidence of the victim’s blood alcohol concentration and the defendant’s alcohol dependence; and (4) admitting gruesome photographs. Defendant also claims cumulative trial errors require reversal of his conviction.
Defendant Robert Sherrer was charged with first-degree premeditated murder in the May 16, 1993, shooting death of Steven Lantz. Sherrer separated from his wife, Susan, approximately a month before Lantz’ death. Sherrer’s alcohol and drug use contributed to the breakdown of their marriage. When they separated, Sherrer moved into a house across the street from where he had lived with Susan. The shooting occurred at Susan’s house.
Sherrer and Steven Lantz, the victim, were best friends and thought of each other as “brothers.” Sherrer had told Lantz that he could have a beer with Susan but not sex.
Around 5:30 p.m. on May 15, 1993, Lantz and Susan took Susan and Sherrer’s two children (Jake and Matthew) and two neighborhood children fishing. They returned to Susan’s around 9:30 p.m. Jake was put to bed in Susan’s bedroom around 10:30, and Matt watched television. Susan and Lantz sat in the kitchen talking and drinking beer.
Sherrer had slept that afternoon and had had dinner with his friend Carol, who lived with him, and his nephew, Brian. Around 10:30 p.m. Sherrer went to Susan’s to get a tool from the garage. Sherrer was in a happy mood and did not appear to have been drinking. He stayed around Vz hour and drank some beer with Susan and Lantz. Sherrer inquired why Lantz was wearing Susan’s t-shirt, and Lantz explained that his shirt had gotten wet in the rain. After Sherrer left, Susan .and Lantz discussed the fact that Sherrer had not become angry.
Around 11:00 p.m. Sherrer and Brian went to a bar and then to a friend’s house. Sherrer consumed a number of beers and a shot of tequila. A short time after they returned home, Brian discovered that Sherrer had left the house.
Sherrer returned to Susan’s around 1:30 a.m. Susan and Lantz were sitting at the kitchen table. Sherrer was intoxicated and filled with rage at Lantz’ presence. Sherrer accused Lantz and Susan of sleeping together. Susan argued with Sherrer for a couple of minutes and then told him to leave. When Lantz attempted to calm Sherrer down, Sherrer kicked a gun cabinet, breaking it. Susan ran to her bedroom to dial 911. Sherrer followed her to the bedroom and smashed the telephone. Susan then woke Jake, told Matt to follow her, and left the house. As Susan was knocking on a neighbor’s door, she heard two gunshots at her house followed by several more shots.
Matt remained in the house and witnessed the shooting. He testified as follows: When his mother asked his father to leave, his father kicked in the gun cabinet. His mother ran down the hallway. His father picked up a pistol and followed his mother; there was no clip in the gun. When his mother left with Jake, his father chased them, stopped at the gun cabinet, and put a clip with bullets in the gun. His father went outside the house onto the porch. Lantz was by the door telling his father not to chase his mother. His father fired a shot. Matt told Lantz to call the police, but Lantz replied that he had been shot in the leg. As Lantz came toward Matt, Sherrer shot at Lantz. The bullet went through the couch where Matt was sitting, through the wall, and into the garage. Lantz went down the hallway, and his father followed. Matt heard another shot and saw Lantz fall against the wall. Lantz went into Matt’s bedroom. Matt heard another shot. His father then came out of the bedroom, put the pistol back, picked up another gun, left the house, and went across the street. Matt went to his bedroom and saw blood and Lantz on the floor. When Lantz did not get up, Matt thought Lantz was dead and ran to the neighbor’s house.
Neighbors heard the gunshots. One neighbor saw Sherrer run from Susan’s house. Sherrer said, “He’s dead, he’s dead,” or “She’s dead.” Sherrer returned to where he was staying and stated to Brian that he had just shot his best friend and had one bullet left for himself. Sherrer was talked out of shooting himself. Brian took the gun from Sherrer and threw it out of Sherrer’s bedroom window. Sherrer was arrested sitting in a van parked outside the house.
Sherrer testified that he remembered only portions of May 15-16, 1993. He recalled that he began drinking beer early in the morning and also drank a bottle of Jack Daniels. Sherrer did not know when he stopped drinking but remembered that he awoke around 5:30 p.m., ate dinner, went to Susan’s house where he consumed 3-4 beers, went to the bar with Brian where he drank beer and tequila, and then went to his friends’ house, where he drank beer. Sherrer recalled going home and then going back to Susan’s house and having a heated conversation with her. Sherrer testified that Susan said, “Oh, your timing’s all screwed up because I was just getting ready to do Steve,” which Sherrer interpreted to mean they were going to have sex. The next thing Sherrer remembered was being across the street at his house and pointing a gun to his head. Brian took the gun. Sherrer’s next memoiy was of being in a van and the police taking him out of the van and handcuffing him. Sherrer did not remember breaking the gun cabinet, loading the weapons, or shooting Lantz.
Lantz suffered three gunshot wounds. Evidence showed that the first shot, a .9 mm bullet, went through Lantz’ left leg as he stood in the doorway. The second shot was a flesh wound through the right side of Lantz’ chest from back to front. This bullet, also a .9 mm, after traveling through Lantz’ chest, went through the couch and wall and lodged in the garage. In addition to these bullets which hit Lantz, officers found several live rounds from the .9 mm gun outside and inside the house. This meant that the gun either misfired or jammed. This gun was found near the broken gun cabinet. The final and fatal wound, a shot to the back of Lantz’ head, was fired from a .357 revolver. The bullet lodged behind Lantz’ left eye. The pistol which fired that bullet was found outside Sherrer’s house under Sherrer’s bedroom window. A neighbor testified that he had (before the shooting) unloaded several guns in the cabinet, including the .9 mm and possibly the .357.
Sherrer was convicted of first-degree premeditated murder. After the jury was unable to reach a verdict on the prosecutor’s request to impose the hard 40, Sherrer was sentenced to life imprisonment with parole eligibility in 15 years. Sherrer appeals.
THREATENING DEFENSE COUNSEL
The defendant’s trial counsel, Mark Dinkel, sought to introduce evidence of the presence of alcohol or drugs in the victim’s blood and urine. During cross-examination, Dr. Macy, the pathologist, testified that he sent samples of the victim’s blood and urine to the KBI for alcohol and drug screens. The pathologist testified that he had received reports of those tests. The prosecutor objected to the reports’ admission because the pathologist had not performed the tests and because the results were irrelevant. After the court sustained the State’s objection, the following exchange occurred:
“MR. DINKEL: Your Honor, I do have the person who performed — I believe if I could see those again, I have the person who performed the tests subpoenaed.
“THE COURT: Very well. I mean, you can have that person testily to them.
“MR. DINKEL: As far as — if I can approach the bench.
“THE COURT: I sustained the objection. He [the pathologist] didn’t have anything to do with these tests.
“MR. DINKEL: I would like to make a record on something.
“THE COURT: Well, the objection’s been overruled.
“MR. DINKEL: I would say—
“THE COURT: No. No, you don’t. The objection’s been sustained. Proceed with your—
“MR. DINKEL: I think I need to make a record as far as something here goes. I have not—
“THE COURT: Excuse me.
“MR. DINKEL: Your Honor, I would just like for the record to show—
“THE COURT: Mr. Dinkel, if you say one more word about that document right there, I’m going to hold you in contempt of court. I’ve ruled that the objection is sustained. Proceed with your examination. You can make your record which you proffered up here at the bench some other time. It does not have to be made now. It doesn’t have anything to do with this witness.”
Later, outside the presence of the jury, defense counsel made a proffer by informing the court that he had not been provided a KBI toxicology report and that he was able to subpoena the toxicologist and could only introduce the contents of the report through the testimony of the pathologist. The trial court found the toxicology report was beyond the scope of the prosecutor’s direct examination of the pathologist and suggested that defense counsel subpoena the pathologist as a defense witness. The prosecutor, who had also not seen the report, argued that the presence of drugs or alcohol in the victim’s system was irrelevant because there was no evidence the victim was an aggressor. The trial court agreed and found that results of the toxicology report were irrelevant.
Just prior to the close of the defendant’s case in chief, defense counsel informed the court that a witness from the KBI would testify that Lantz’ blood alcohol concentration was .27. Defense counsel contended this evidence was relevant to show that everybody involved in the shooting was intoxicated that night and that under these circumstances, an argument or quarrel could have developed between the victim and the defendant. The prosecutor argued that the blood alcohol concentration was irrelevant because there was no evidence of an altercation between the defendant and Lantz or that Lantz was incapacitated or affected by the alcohol. The court noted that there was no expert testimony as to the effect of a .27 blood alcohol concentration and again ruled that Lantz’ blood alcohol concentration was irrelevant.
The defendant first argues that the trial judge committed judicial misconduct by threatening to find his counsel in contempt when counsel sought to approach the bench. He contends the judge’s comments and actions reflected poorly on his trial counsel, made his counsel appear to the jury as unscrupulous and disruptive, and had a detrimental effect on his right to a fair trial. The defendant asserts that in asking to approach the bench his counsel was attempting to proffer evidence outside the presence of the jury. He points out that it was only after the trial court threatened contempt that the trial court informed his counsel a proffer could be made at a later time.
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new- trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.” State v. Gadelkarim, 256 Kan. 671, Syl. ¶ 1, 887 P.2d 88 (1994).
See State v. Thomas, 252 Kan. 564, 570, 847 P.2d 1219 (1993).
The defendant asserts that it was clear his trial counsel was trying to make a proffer and that when the trial judge denied counsel’s request to proffer the evidence, defense counsel was forced to attempt to make that récord in the jury’s presence. He cites State v. Hodges, 241 Kan. 183, Syl. ¶ 3, 734 P.2d 1161 (1987), where this court stated that it is error to refuse a proffer when expert testimony is excluded.
When an objection to a question propounded to a witness is sustained, the party may make an offer of what he or she expects the answer to prove. K.S.A. 60-243(c). A verdict cannot be set aside or a judgment reversed based on the erroneous exclusion of evidence unless the party seeking to admit the evidence has made known the substance of the evidence. K.S.A. 60-405. Thus, a party who is trying to preserve a record for appeal must be permitted to proffer any excluded evidence, not just expert testimony. There is, however, no requirement that the proffer be made at the precise timé the testimony or evidence is excluded.
“The trial judge is not merely a moderator, but is the governor of the trial. The judge must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant.” State v. Hamilton, 240 Kan. 539, Syl. ¶ 3, 731 P.2d 863 (1987). In maintaining order during a trial, the trial judge may control the time at which a proffer is made. Delaying a proffer until the end of the pathologist’s testimony here was not unreasonable.
When the judge sustained the prosecutor’s objection, defense counsel’s request to approach the bench was denied. Defense counsel then sought four times in the presence of the jury to make additional comments concerning making a record, but at no time did counsel indicate to the judge that the record he wanted to make was a proffer. It was only after the trial judge’s attempts at controlling defense counsel failed three times that the judge threatened contempt. We agree that the threat of contempt might have been unnecessary had the trial judge earlier informed defense counsel he could make his record at a later time. However, the defendant has not shown that the threat of contempt prejudiced his substantial rights such that a new trial is required. Under the circumstances, the trial judge’s threat of contempt did not constitute judicial misconduct requiring a new trial.
CROSS-EXAMINATION
The defendant also argues that the trial court erred in refusing to permit defense counsel to cross-examine the pathologist concerning the results of the KBI toxicology report discussed above. He notes that the trial judge initially excluded the evidence because the pathologist had not conducted the tests (i.e. hearsay) and because the results of the toxicology report were irrelevant. The defendant asserts that the blood alcohol report would show a high level of intoxication that could have affected the victim’s state of mind and could have raised the possibility of provocation by the victim or sudden quarrel between the defendant and the victim. The defendant argues that this possibility required the jury to be instructed on the lesser included offense of voluntary manslaughter.
“Evidence” is the means from which inferences máy be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals and includes testimony in the form of opinion and hearsay. “Relevant evidence” means evidence having any tendency in reason to prove any material fact. K.S.A. 60-401(a), (b). The object of evidence is to inform the trier of fact of the material facts which are relevant as bearing upon an issue. Inferences of fact are permitted only when, and to the extent that, logic and human experience indicate a probability that certain consequences can and do follow from the base events or conditions. Evidence of matters that are wholly irrelevant and that are incapable of affording any legitimate proof, presumption, or inference regarding the fact or facts in issue are to be excluded from consideration by the trier of fact.
If the toxicology report revealed that Lantz had used alcohol and/ or drugs prior to his death, and the extent of that use, that evidence was not relevant. Susan Sherrer testified that Lantz had been drinking beer, and when asked whether Lantz appeared to be intoxicated, she stated, “No more so than usual.” However, she also testified that Lantz did not start a fight with the defendant. The defendant himself testified, at least concerning what he could remember of the incident, that Susan shoved and pushed him, not Lantz. Moreover, although there was evidence that the defendant became loud, angry, irrational, and enraged when intoxicated, there was no evidence that Lantz became aggressive or was likely to start a fight when intoxicated. Although the defendant argues that Lantz’ intoxication was relevant to the issue of provocation or sudden quarrel, there is no evidence Lantz provoked or fought with the defendant. In the absence of evidence that the victim provoked the defendant or that he was likely to provoke when intoxicated or under the influence of drugs, evidence of the level of the victim’s drug or alcohol from the KBI toxicology report was not relevant and was properly excluded by the trial judge.
OTHER EXCLUDED EVIDENCE
Sherrer and various witnesses testified that Sherrer consumed alcohol frequently or daily. There was uncontroverted evidence that when drinking, Sherrer became loud, angry, irrational, or obnoxious. Sherrer testified to the jury that after his separation from Susan he was never sober and that he used cocaine intravenously. Sherrer testified that he had participated in drug and alcohol treatment in 1984 and had stopped using drugs and alcohol for a while. He informed the jury that he had experienced blackouts when using alcohol. To corroborate the fact he had previously experi enced blackouts, the defendant sought to introduce the testimony of Judy Weber, a substance abuse counselor. Weber would have testified that when she counseled the defendant a decade earlier, the defendant was alcohol dependent and had informed her that he experienced blackouts from his use of alcohol. The trial court rejected the testimony for remoteness.
In the recent case of State v. Cheeks, 258 Kan. 581, 908 P.2d 175 (1995), this court addressed the remoteness of evidence. Where the fact or facts proposed to be established as a foundation from which an inference may be drawn do not have a visible, plain, or necessary connection with the proposition eventually to be proved, such evidence is excluded for remoteness. However, lapse of time may not be sufficient to deprive evidence of its value but goes to the weight of the evidence, which is for the jury to determine. Whether evidence is too remote to be admissible rests within the sound discretion of the trial court. 258 Kan. 581, Syl. ¶¶ 2, 3.
In State v. Hedger, 248 Kan. 815, 820, 811 P.2d 1170 (1991), this court held that a five-year lapse of time was not too remote because there was a connection between prior instances of abuse and the events of abuse immediately before the victim’s death. In Hedger, the prior abuse was related to the defendant’s alcoholism, and he had resumed drinking shortly before the victim’s death. Here, the evidence the defendant sought to admit through Judy Weber was 10 years old. The defendant testified that his drinking habits changed for a while following his participation in treatment in 1983. Weber’s testimony that the defendant experienced blackouts in 1983 was based on the defendant’s statements to Weber rather than information Weber received from other sources. Evidence that the defendant had reported experiencing blackouts from alcohol use 10 years earlier had no visible, plain, or necessary connection to his testimony that he experienced a blackout the night he shot the victim. Unlike in Hedger, the lapse of time here was sufficient to deprive the evidence of its value. The trial court did not abuse its discretion in excluding Weber’s testimony for remoteness.
ADMITTING GRUESOME PHOTOGRAPHS
The defendant argues that the trial court erred in admitting into evidence gruesome photographs of Lantz’ wounds. The court admitted the photographs of the victim taken during the autopsy. The court instructed the jury as to one of the photographs to disregard the autopsy procedures and confine its consideration of the photograph to the testimony concerning the path of the bullet.
Exhibit 41 is a photograph of Lantz lying on his back with blood on his skin and on the table. One small circle appears to be the entrance of the chest wound, but the exit wound is not very clear. Exhibit 42 is a photograph of Lantz lying on his back during the autopsy after the skin had been cleaned. The chest is opened and there is skin folded to his chin and skin dropping to his side. Lantz’ internal organs can be seen, although the camera angle is nearly level with the table. A probe is inserted through the entrance and exit of the chest wound. Exhibit 43 is a photograph of Lantz’ head with a portion of his hair shaved. It depicts the bullet wound and has a measuring device held to the area. Exhibit 44 shows Lantz’ head with the scalp folded back. Fracturing of the skull is evident, although the bullet wound is not visible. Exhibit 45 is similar to Exhibit 44 but is taken from a different angle. It shows the bullet wound with a probe inserted. Some skull fracturing can also be seen.
The defendant points out that Exhibit 42 is similar to a photograph described by this court in State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975). In Boyd, this court found that the trial court abused its discretion in admitting 14 exhibits offered by the State. We described one photograph as follows: “[E]xhibit 39 show[s] the body of the deceased cut open from chin to groin and laid out like a disemboweled beef in a packing plant. A flap of chest skin partially covers the deceased’s face and the chest and abdominal organs of the deceased are presented in full view.” 216 Kan. at 377-78. Noting that the cause of death was not in dispute and that some photographs which were admitted showed the angle of penetration of the murder weapon, this court held that the trial court abused its discretion in admitting repetitious photographs taken during the autopsy and especially in admitting exhibit 39.216 Kan. at 378; see also State v. Adam, 257 Kan. 693, 707-08, 896 P.2d 1022 (1995) (reversed and remanded for a new trial; photographs were similar to die ones disapproved in Boyd, there was little or no probative value to the photographs, and the photographs should not be submitted into evidence when the case was retried); State v. Childers, 217 Kan. 410, 417, 536 P.2d 1349 (1975) (finding error in admitting gruesome color slides of the deceased’s body taken during the autopsy but without describing those slides); but see State v. Arteaga, 257 Kan. 874, 887-89, 896 P.2d 1035 (1995) (no abuse of discretion in admitting photograph taken after the skin had been removed from the thoracic cavity of the victim).
The admission of photographs in a homicide case is a matter that lies within the discretion of the trial court, and the trial court’s ruling will not be disturbed on appeal absent an abuse of that discretion. Demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. However, photographs taken during the autopsy which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. State v. Stone, 253 Kan. 105, 111, 853 P.2d 662 (1993); State v. Mayberry, 248 Kan. 369, Syl. ¶ 12, 807 P.2d 86 (1991).
The State argues that the primary purpose of these photographs was to dispute the defense fheoiy that the defendant was acting under the influence of alcohol or lacked premeditation or that the shooting was the result of a sudden quarrel brought on by an intense emotional excitement. The State stresses that the photographs were necessary to demonstrate to the jury that the defendant first shot Lantz in the leg, then in the chest, and finally in the head.
The cause and manner of death of the victim were not in dispute here. The photographs taken at the scene of death and Exhibit 41 and Exhibit 43 taken during the autopsy were helpful in showing the jury the angle of penetration of the bullets. After reviewing the other photographs, we fail to see the necessity for admitting into evidence repetitious photographs which, in addition to demonstrating the angle of penetration, also showed the effect of the autopsy on the deceased’s body. As in Boyd and Adams, we find that the trial court committed error in allowing the State to introduce into evidence photographs of the deceased taken at the autopsy that were repulsive, inflammatory, without probative value, and highly prejudicial to the defendant’s right to a fair trial.
Although the trial court abused its discretion in admitting into evidence Exhibits 42, 44, and 45, we are not required to reverse the defendant’s conviction and remand for a new trial. We note that although the Boyd court found the trial court erred (1) in failing to instruct on lesser included offenses; (2) in admitting into evidence repetitious, gruesome, and repulsive photographs of the deceased’s body taken at an autopsy; and (3) in improperly instructing the jury as to the purposes for which a prior crime could be considered, Boyd’s conviction was reversed because a prejudicial instruction was given. Similarly, in Adam the error that required a new trial was the court’s giving an erroneous instruction to the jury. The Adam court found that the admission of the gruesome photographs was error and ordered that the photographs were not to be admitted into evidence when the defendant was retried, but the erroneous admission was not cited as a reason for reversal.
In determining whether a defendant is entitled to have a conviction reversed and be granted a new trial, our rule is that errors which do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994). We note that there is no dispute of the fact that the defendant chased, shot, and killed a fleeing victim. In the process of killing the victim, the defendant used two guns, both of which he had to load prior to shooting the victim. The gruesome photographs were improperly admitted, but under the facts of the case we can say that the error in admitting the gruesome photographs did not affirmatively cause prejudice to the defendant’s right to a fair trial.
CUMULATIVE TRIAL ERRORS
Finally, the defendant claims that cumulative trial errors require reversal of his conviction. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defen dant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. State v. Castoreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994); State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).
The defendant reasons that because instructions on second-degree murder, voluntary manslaughter, and voluntary intoxication were given by the trial judge, the evidence of his guilt of first-degree murder was not overwhelming. These instructions were given because the defendant was entitled to have the jury instructed on his theory of defense and on any lesser included offenses of which the jury might reasonably convict him. See State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992); State v. Mitchell, 234 Kan. 185, 189, 672 P.2d 1 (1983). That the voluntary intoxication and lesser included offense instructions were given does not reveal cumulative error.
The issues set out in the defendant’s appeal do not reveal cumulative trial error requiring reversal of his conviction.
Affirmed.
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The opinion of the court was delivered by
Abbott, J.:
The appellee/cross-appellant, Resolution Trust Corporation (RTC), was awarded judgment against the appellant, Fred J. Atchity, Jr., in Illinois for $1,109,563.79. The basis of that judgment was a loan secured by a deed of trust on property located in Kansas City, Missouri. RTC sold this real estate in Missouri using a statutory procedure for a nonjudicial sale. At the foreclosure, RTC purchased the property for $340,000.
The Illinois judgment was then filed in Missouri and later in Kansas. The District Court of Johnson County reduced the judgment by $105,711, relying on equitable power under K.S.A. 60-260(b)(5), and holding the properly in Missouri had not been sold for fair value.
The appellant appealed the trial court’s decision, claiming the credit given was too low. RTC cross-appealed, contending that the trial court allowed the appellant to collaterally attack the foreign judgment and that the trial court used Kansas law rather than Missouri law in determining the adequacy of the foreclosure. (There were originally three defendants in this case. One of the defendants filed bankruptcy, and the other defendant settled with RTC. The only appellant in this case is the named defendant, Fred J. Atchity, Jr-)
By way of background, the original defendants in this case formed a partnership in 1983 known as the Jacob Loose Mansion. During his lifetime, Jacob Loose was a highly successful Kansas City businessman and community leader. He built a mansion commensurate with his wealth and position in the community in a neighborhood of his peers. Over the years, the neighborhood deteriorated and became run down. The sale of drugs and prostitution in the area were common. The mansion was uninhabited by humans. The windows were broken and a large hole was in the roof. Wild birds occupied the house.
The partnership purchased the mansion in 1984 for $225,000. The partnership then spent over $1,000,000 restoring and modernizing the mansion for commercial office space. Most of the purchase price and restoration-modernizing cost were financed by Madison County Federal Savings & Loan. The partnership had a high debt to equity ratio; it had only put down 10-15% of the loan as opposed to 25-30%, which was typical in this type of transaction.
When the original defendants bought the property, one of their reasons for doing so was historic tax credits. Further, the defendants were able to receive depreciation on the property and use any partnership losses as tax deductions.
However, the Tax Reform Act of 1986 made the investment less desirable, and all but one of the partners ceased malring cash contributions to cover losses. The partnership slipped behind on its payments on the Madison loan. Madison was taken over by RTC. Shortly before oral argument, RTC sold its interest in the loan and judgment to the Asset Recovery and Management Company which has been substituted for RTC. For clarity, we will continue to refer to RTC, even though it is no longer the real party in interest.
On April 24, 1992, the RTC took judgment against the partnership, individual partners, and their spouses who had guaranteed the note in Madison County, Illinois, for $1,109,563 (the Illinois judgment). In order to collect this judgment, RTC decided to foreclose on the Missouri property. In order to prepare for the nonjudicial statutory foreclosure sale, RTC obtained a preforeclosure appraisal on the property from Bliss and Associates Incorporated. On August 10, 1992, Bliss appraised the property at $400,000. The partnership also had an appraisal of the property performed by H.V.A.C. Inc. The H.V.A.C. appraisal was not a complete appraisal with background information, but was an opinion letter which stated that the building was worth $1,071,000 in June 1992,
James Tippin was chosen as successor trustee to conduct the statutory foreclosure sale on the mansion property. The nonjudicial statutory foreclosure sale was conducted in Missouri on September 24, 1992. RTC bid $340,000 for the property at the foreclosure sale, which was 15% below the property’s appraised value of $400,000. Tippin testified that he considered the price he accepted from RTC for the property as fair in light of the preforeclosure appraisal. The deficiency between the judgment arid the property acting as security was $769,563, plus interest.
The Illinois judgment was registered in Jackson County, Missouri, on December 11,1992. On January 19,1993, RTC registered the Illinois judgment in the District Court of Johnson County, Kansas, under the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 et seq.
Pursuant to K.S.A. 60-260(b)(5), the defendants asked the trial court to grant partial relief from the Illinois judgment, contending that it reflected an inequitable judgment because the property had been sold below value at the foreclosure sale, thereby leaving a large deficiency. The trial court ruled that it had broad discretion to grant equitable relief to the defendants under K.S.A. 60-260(b)(5). The trial court found that the property had not been sold for fair value because it had been undervalued by the trustee. Based on the trial court’s determination of the value of the house and what would have been an appropriate RTC bid, the trial court credited an extra $105,711 to the Kansas (Illinois) judgment as the amount the property was undervalued. Under the trial court’s ruling, the defendants’ deficiency judgment was reduced to $663,812 plus interest.
One of the defendants, the appellant herein, appealed the trial court’s equitable relief from the judgment and credit toward the deficiency judgment, claiming the credit given was too low. According to the appellant, the trial court used the wrong occupancy rate when determining the value of the property and improperly discounted the property’s value, based on the neighborhood and environmental problems of the property and on the fact that RTC, the only bidder, was not in the business of managing property.
The plaintiff, RTC, cross-appeals. The plaintiff contends that the trial court erred by allowing the defendants to collaterally attack in equity the Illinois judgment and the Missouri foreclosure under K.S.A. 60-260(b)(5). Further, the plaintiff contends that the trial court erred by examining the adequacy of the foreclosure under the law of Kansas instead of under the law of Missouri, where the foreclosure occurred.
The plaintiff registered the Illinois judgment in Kansas under the Uniform Enforcement of Foreign Judgments Act. K.S.A. 60-3002 states in pertinent part:
“The clerk of the district court shall treat the foreign judgment in the same manner as a judgment of the district court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner.”
Treating the Illinois judgment as a Kansas judgment, the defendants filed for equitable relief with the district court under K.S.A. 60-260(b)(5). This statute states:,
“On motion and upon such terms as are just, the court may relieve a party or said party’s legal- representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application-, . . . The motion shall1 be made within a reasonable time . A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K:S.A. 60-309 or to set aside a judgment for fraud upon the court.” (Emphasis added.)
Pursuant to K.S.A. 60-260(b)(5), the district court evaluated the Missouri foreclosure. The district court found that the property was not sold for a fair price. Thus, it found that the Illinois judgment against the defendants was inequitable because the defendants had not been credited the fair value of the property which was foreclosed upon. As such, the trial court calculated a fair value of the property and used this amount to credit the Illinois judgment registered in Kansas.
RTC contends that the district court did not have the authority to grant the defendants relief, as it did under 60-260(b)(5), for three reasons. First, the trial court improperly evaluated the adequacy of the foreclosure bid under Kansas law, not Missouri law. Since the property was located in Missouri and the foreclosure occurred in Missouri, RTC contends that the trial court should havé applied Missouri law to determine if the foreclosure was equitable. If it had done so, RTC argues that the court would have found the foreclosure "bid adequate in comparison to the value’ of the property. Second, RTC contends that by granting this equitable relief under 60-260(b)(5), the trial court impermissibly allowed the defendants to collaterally attack the Illinois judgment and the Mis souri foreclosure. Finally, RTC contends that the district court im-permissibly allowed the defendants to proceed in equity under 60-260(b)(5) when the defendants had a legal remedy available in Missouri.
JURISDICTION AND CONFLICT OF LAWS
RTC contends that the trial court incorrectly applied Kansas law in evaluating the equities of the foreclosure when it should have applied Missouri law. The real property was located in Missouri, and the trustee carried out the nonjudicial statutory foreclosure pursuant to Missouri law. According to RTC, Missouri courts do not modify foreclosure proceedings once they are complete. In order to set aside a foreclosure sale of real estate in Missouri, the complaining party must show substantial evidence of sale irregularities. West v. Axtell, 322 Mo. 401, 417-18, 17 S.W.2d 328 (1929). The trial court did not use this Missouri standard to evaluate the foreclosure. Rather, the trial court considered all the factors of the property to determine if it had been sold at foreclosure for “fair value.” This, according to RTC, is a Kansas standard, promulgated under Olathe Bank v. Mann, 252 Kan. 351, 361, 845 P.2d 639 (1993).
The appellant argues that the trial court was not required to consider Missouri law in evaluating the foreclosure. The appellant contends that the trial court was not per se reviewing a Missouri statutory foreclosure. Rather, it was reviewing a Kansas judgment under K.S.A. 60-3002, which states that a foreign judgment filed in Kansas “has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner.” Thus, the appellant contends that the district court could grant the defendants equitable relief from the Kansas (Illinois) judgment under K.S.A. 60-260(b)(5). As such, according to the appellant, the trial court had every right to apply the Kansas factor test under Mann to evaluate the equities of the Missouri foreclosure because Missouri law is inapplicable to a Kansas court’s review of a Kansas judgment.
The questions as to which state law applies and whether the state law has been properly interpreted are questions of law. This court has unlimited review of the district court’s interpretation of law. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
As we view the record, the trial court intended to apply Missouri law in its evaluation of the foreclosure action. However, this is not, in fact, what the trial court did. In its journal entry on this case, the trial court specifically stated:
“7. On February 17,1993 the defendants herein filed a Motion for Relief From Judgment on the following . . . grounds: ... . ii) the foreclosure sale in Missouri was irregular, resulting in harm to the defendants, and iii) under Missouri law the property was not sold at a fair price and the defendants were damaged. Thus, it is not equitable to enforce the Kansas Judgment.
“8. This Court concludes that pursuant to K.S.A. 60-260(b)(5), it has equitable powers to determine the amount that the RTC is entitled to collect of the Illinois Judgment which is registered here.
“It Is Further Ordered By The Court that in fight of the Court’s finding that evidence of irregularity and harm is irrelevant to this proceeding, Defendants’ Motion for Relief From Judgment on the grounds the foreclosure sale in Missouri was irregular and harmful to the defendants is Denied.
“It Is Further Ordered By This Court that the defendants Motion for Relief From Judgment on the grounds that under Missouri law the property was not sold for a fair price, resulting in damage to the defendants, is sustained in part and in addition to the [$340,000] sale price, the defendants are entitled to a credit against the Judgment as registered, and that additional credit in the amount of [$105,711], Thus, a credit in the sum of [$455,711] should be applied to the Illinois Judgment as of September 24, 1993.”
Furthermore, in the trial transcript, the court and the parties had the following discussion.
“MR. BARRON [Plaintiff’s attorney]: Well, Your Honor, I think I can speak to that pretty directly. This action, again, is governed by Missouri law, as has been determined by this Court at both the November 1993 hearing and the August 1994 pretrial conference.
“MR. BARRON: It’s not an equitable proceeding for a deficiency judgment. Rather, plaintiffs only . . . registered a foreign judgment with the court. . . .
“Therefore, the only plausible issues before this Court being whether defendants can establish substantial evidence of irregularities and resulting harm in order to obtain the only remedy afforded under Missouri law; that being, set aside the foreclosure. . . .
"THE COURT: I don’t think they’re asking for that.
“MR. BARRON: But they have nothing [else] to ask for under governing Missouri law. That is the point. Your Honor, as we have narrowed the issues, defendants can’t ask for [anything] else under governing Missouri law. The only affordable remedy to defendant mortgagee, when the defendant mortgagee claims that the foreclosure sale evidenced irregularities, is that the foreclosure sale be set aside.
“THE COURT: And correct me if you think I’m wrong, and I’m not trying to take away Mr. Smith’s thunder, but I believe the theory under which the defendants are proceeding is that if they can establish under Missouri law that the property was not sold at a fair price and that they were damaged, which is automatic if they prove that, then it’s inequitable. It’s not equitable to enforce the Kansas judgment. I mean, that I think is — isn’t that correct, Mr. Smith?
“MR. SMITH: Yes, Your Honor. And in addition to that, I think we’re going to show that the foreclosure was irregular, and that the transfer of property to the RTC was not even under the foreclosure, and we’re going to be dealing not only with the equitable language but with the payment language. We’re going to show, Your Honor, that the foreclosure was defective. The RTC knew it.
“THE COURT: Excuse me. The only thing I’m interested in is whether or not it was sold at fair value. Again, I’ll find, as a matter of law, that evidence of other irregularities are not relevant to this action because I have no authority to deal with those.
“THE COURT: Go to Missouri if you want to do that. I’m making that ruling now, as a matter of law, the only issue we’re trying is whether or not the sale was at fair value.
[The defendants then made arguments concerning the procedural irregularities of the sale.]
“THE COURT: Well, I don’t think any part of that is relevant. In the first place, we had a pretrial in this case in August, and the two issues that we identified then for trial: Was the sale irregular and did damages resultP That’s the only two issues.
“THE COURT: But that’s what we identified as issues. And the key — I mean, your key, if . . . you’re going to win this case, is equity. The only way you’re going to get to equity if you convince me that RTC took this property which had substantial value, in excess of $340,000, which they’ve agreed to credit you against your judgment.
“MR. BARRON: Your Honor, I feel I need the opportunity to respond to that. At the August 1994 hearing, pretrial conference, rather, this Court, based upon plaintiff Resolution Trust Corporation memorandum in law regarding the right to a deficiency judgment in Kansas, clearly determined that, as Your Honor noted a moment ago, the issues today before the court, as narrowed, are simply whether defendants can establish substantial evidence of irregularities in the foreclosure sale and the resulting harm. The value element, which defendants seek to prove, is in fact the element of harm. If and only if defendants establish substantial evidence of irregularities under governing Missouri law, as has been determined by this Court, are defendants entitled any relief whatsoever, regardless of the amount of value of evidence which is put on today. This Court has already made the determination, and it’s been fully briefed by the parties. In fact, defendants conceded at the pretrial conference that is the scope of this hearing.
“And RTC’s supplemental suggestions, which were filed on November 18th, are straightforwardly to the point that, as narrowed and given, the only relief available is that under Missouri law, which again the Court has ruled governs this action. Defendants are only entitled — or only potentially entitled to the relief of setting aside the foreclosure sale. This is simply the only remedy afforded under Missouri law.
“Defendants today have the misconception of arguing' Kansas law. Kansas law simply does not apply to this action anymore as narrowed. That has been determined by the Court, that’s been fully briefed by the parties and that was conceded by defendants at the August 1994 pretrial conference.
“Therefore, I simply want to make absolutely clear for the record, and I would be happy to engage in further argument and provide extensive citation, or case authority to support our position, that this Court, absolutely, under Missouri law lacks subject matter jurisdiction for the reason, one, that it cannot grant the only relief entitled — that defendant may be entitled to under Missouri law; and; secondly, the defendants have failed to join necessary parties, which are required to be joined, in order to seek the relief that defendants are entitled to, or may be entitled to under Missouri law.
“THE COURT: Well, the motion to dismiss is overruled. I am going to, however, limit the irregularity issue to issues of value.
“MR. SMITH: Even though the Court has ruled for the record, I think the Court has ruled on Alexander v. Weaver, 3 Kansas Appeal, 2d 298, that clearly provides ‘foreign judgments filed in Kansas under the Uniform Enforcement of Foreign Judgments Act are treated the same as Kansas judgments and are considered Kansas judgments.’ And the Court held that under the UFJA, ‘a judgment filed in a Kansas court has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state and may [be] enforced or satisfied in like manner,’ ... So, it was erroneous that we were relying on Missouri law. We were relying on Kansas law. We are prepared to proceed.
“MR. BARRON: Your Honor, I want to make one final statement for the record. Again, it has been conclusively determined that Missouri law governs this action. Your Honor himself made that determination on the November 1993 and the August 1994 hearing. I’ve already stated what Missouri law requires. I will state RTC’s objection far the record to the hearing proceeding solely on the issue of value. Thank you, Your Honor.
“THE COURT: Just as long as everyone understands that the law with.respect to getting at the value question is Missouri law. Any issues regarding the enforceability of the registered judgment are Kansas law issues. So, wé are proceeding under K.S.A. 60-260(b)(5), I believe is the only section that we’re proceeding under. '
“MR.'BARRON: Your Honor, previously — if you would permit me. Your Honor previously made the determination that because this Court is allowing argument as to the propriety of a foreclosure sale'conducted in Missouri, where the property is located in Missouri, the only law that can conceivably [govern] this action, as a choice of law [matter], is Missouri law. Kansas has no connection to this suit other than the fact that RTC registered its judgment in Kansas. To apply Kansas law where Kansas has no connection to the suit, wherein this Court has already made the determination Missouri law governs the action, is unfortunately a mistake, and I would again note our objection for the record.” (Emphasis added.)
Thus, it appears the trial court intended it apply Missouri law to its evaluation of the foreclosure. According to the trial court, if the property was not sold at fair price under Missouri law, then it was not equitable under 60-260(b)(5) to enforce the Illinois judgment as á registered Kansas judgment without greater credit for the foreclosed property. It is also clear that the trial court was correct in its determination that Missouri law should apply to its evaluation of the Missouri foreclosure even if the evaluation was done to grant relief from an inequitable Kansas judgment.
Choice of law problems occur when a transaction touches more than one state and the question arises as to which state’s laws will govern. To determine which state’s laws govern, the forum court uses its own choicé of law methodology. In Mark Twain Kansas City Bank v. Cates, 248 Kan. 700, 705, 810 P.2d 1154 (1991), this court seemed to adopt by default the policies of lex loci rei sitae which allows for local laws to determine the rights and obligations of the parties to real property and lex loci which provides that a security interest in land is governed by the local law of the situs of the land.
In Mark Twain, this court addressed whether a mortgage secured a particular loan. 248 Kan. at 705-06. The mortgage contract was transacted in Missouri, but the property which potentially secured the mortgage was located in Kansas. The trial.court noted the general rule is that “foreclosure of [a] mortgage must be in accordance with the procedural law of the state where the property is located.” 248 Kan. at 706. This court did not quarrel with this general rule. .. , .
Under this géneral rule, the. law.of the state of Missouri should be used to evaluate the foreclosure. This choice of law methodology, applying the law of the state where the real estate is located (Missouri), seems especially helpful in this case,. Kansas has no connection to this property except that the manager/owner of the property lives in Kansas. The loan’which the property secured was not transacted in Kansas. The property is not located in Kansas. The foreclosure did not occur in Kansas. Thus, Missouri law should be applied to evaluate the foreclosure.
The next question is how this choice of law methodology interrelates with K.S.A. 60-260(b)(5). Under 60-260(b)(5), a trial court can set aside or modify any inequitable judgment. Thus, the defendants argue that even if the foreclosure is equitable in Missouri, it is not equitable under Kansas foreclosure law and should be set aside under 60-260(b)(5). However; this position is contrary to Kansas’ choice of law methodology. Since the judgment is treated as a Kansas judgment, then the Kansas “choice of law” law applies to the judgment, and this Kansas “choice of law” law indicates that Missouri law should be used to evaluate foreclosures conducted in Missouri. Thus, under K.S.A. 60-260, this court should look to Missouri law to evaluate the foreclosure. If the foreclosure is not valid, then it is inequitable under 60-260(b)(5) to enforce the Kansas (Illinois) judgment without proper credit for the foreclosed property. Based on the journal entiy and the comments it made at the trial, thé district court also thought that Missouri law should be used to evaluate the foreclosure.
Apparently, RTC is trying to argue that the trial court, in fact, applied Kansas law, not Missouri law, in evaluating the foreclosure because it used the fair value/factor test. In evaluating the Missouri foreclosure, the trial court considered all the factors of the property to determine if it had been sold for a fair price. This evaluation, according to RTC, was conducted pursuant to a- Kansas standard, promulgated in Olathe Bank v. Mann, 252 Kan. 351, 361, 845 P.2d 639 (1993). Whereas, in'Missouri, the only way to set aside a foreclosure is for the complaining party to show substantial evidence of irregularities concerning the sale. West v. Axtell, 322 Mo. 401, 417-18, 17 S.W. 2d 328 (1929). Yet in this case, the trial court found that evidence as to irregularities of the sale were Missouri issues and irrelevant to this case. The appellant seems to concede that the trial court, in fact, applied Kansas law when it evaluated the foreclosure and argues that the trial court was not required to consider Missouri law. The trial court seemed to conclude that a foreclosure could be “irregular” under Missouri law if the property was not sold for a fair price. The district court misinterpreted the governing Missouri law.
In Boatmens Bank v. Community Interiors, Inc., 721 S.W.2d 72 (Mo. App. 1986), the mortgagee foreclosed on the mortgagors’ property. Based on the sale price of the properly, the mortgagee sought a deficiency judgment against the mortgagors. The mortgagors filed a counterclaim seeking to set aside the foreclosure. The court entered a judgment in favor of the mortgagee on the deficiency judgment. In affirming the district court, the Missouri Court of Appeals stated:
“To set aside a foreclosure sale, evidence of an inadequate sale price generally must be accompanied by substantial evidence that, for example, the sale was held at an unusual hour, the trustee abused his discretion in exercising his power of sale, or there was unfairness or partiality in the conduct of the sale, and that the complaining party suffered harm as a result. West v. Axtell, 322 Mo. 401, 17 S.W.2d 328, 335 (1929). . . . Furthermore, we cannot say that the sale price here was so grossly inadequate as to compel us to set aside the sale on that ground alone. [Citation omitted.]” 721 S.W.2d at 78.
The difference between the amount the trustee sold the property for at the foreclosure and the amount the property had been appraised at was approximately $200,000. The- Missouri court found that the consideration paid for the property, at foreclosure, which was $200,000 less than the appraised value of the property, was not grossly inadequate. Whereas, in this case, the trial court found that the property had been sold for an unfair price because it was sold for approximately $100,000 less than the value of the property. See Hrovat v. Bingham, 341 S.W.2d 365, 371 (Mo. 1960) (“[Although no hard, fast rule can be established as to when the consideration, or rather the lack of it, reaches this stage of “grossness,” a bid of from one-half to one-third of the market value is not, in and of itself, considered by the equity courts as falling into the ‘gross inadequacy’ class.”)
Further, in Mueller v. Simmons, 634 S.W.2d 533 (Mo.App. 1982), the plaintiff foreclosed on the defendant’s property, and the defendant claimed there were problems with the foreclosure. The plaintiff wished to sell the property to another buyer, so she brought an action to quiet title. The defendant counterclaimed, alleging that the foreclosure was wrongful and requesting that it be set aside. The district court found that the foreclosure was not erroneous. 634 S.W.2d at 535. The Missouri Court of Appeals affirmed, stating:
“It has long been established that inadequacy of consideration alone will not justify setting aside a foreclosure sale that was fairly and lawfully conducted, without fraud or partiality and with full opportunity for competitive bidding.” 634 S.W.2d at 536 (citing Farris v. Hendricks, 413 S.W.2d 185, 190 [Mo. 1967]; Trotter v. Carter, 353 Mo. 708, 183 S.W.2d 898, 902 [1944]; Carondelet Savings & Loan Association v. Boyer, 595 S.W.2d 744, 747 [Mo. App. 1980]).
However, the court also stated:
“We find no evidence of unfairness, fraud or partiality associated with this foreclosure sale, which, combined with the sale price, would justify abrogating the sale. Nor do we regard the consideration to be so grossly inadequate as to compel us to set aside the sale on that ground alone.” 634 S.W.2d at 536. (Emphasis added.)
Under Missouri law, it does not appear (and the appellant seems to so concede) that a judgment may be modified by applying credit toward the judgment in the amount the property was undervalued. Missouri either affirms a foreclosure in whole or sets the entire foreclosure aside. See Lindell Trust Co. v. Lieberman, 825 S.W.2d 358, 360-01 (Mo. App. 1992) (“As long as the sale stands, the sum for which the property sold has been held conclusive for the pur pose of determining the amount of deficiency. [Citation omitted.] Where fraud or unfair dealings surrounds the sale the proper course of actions is to set aside the sale in equity.” [Emphasis added.])
Here, the trial court did not set the foreclosure sale aside by finding that the price paid for the property was grossly inadequate or that fraud or partiality or any other irregularity was associated with the sale. In fact, the trial court refused to hear any evidence regarding sale irregularities, even though this is precisely the type of evidence which the Missouri courts require to set aside a foreclosure. The trial court stated that such evidence was irrelevant and that it had no authority to deal with the sale irregularities. Instead, the trial court merely modified the deficiency judgment by finding that the property was not sold for a fair value. Missouri law does not appear to credit a deficiency judgment if the property was sold for an “unfair value.” See Lindell Trust Co., 825 S.W.2d at 360-61. Thus, it appears that the trial court applied Missouri law in name only. In actuality, the trial court applied the Kansas fair value standard as enunciated in Mann when it evaluated the foreclosure. We are satisfied that only Missouri law may be used to establish the nature and validity of interests in or liens upon Missouri land. Here, the Kansas trial judge recognized that he had no jurisdiction to decide the validity of the Missouri mortgage foreclosure and then proceeded to grant relief that is not available under Missouri law.
As pointed out in Young, Mortgage & Party Autonomy In Choice of Law, 45 Ark. L. Rev. 345 (1992), mortgage transactions (including deeds of trust) involve both contract and conveyance. The underlying contractual allegation (such as the promissory note) and some covenants in the mortgage are subject to the same choice of law principles as apply in any other contract action. However, the substantive as well as procedural law of the situs applies to a mortgage foreclosure. 45 Ark. Rev. 349 (citing Worcester &c. Sav. Inst. v. Sommeroville Milling Co., 101 N.H. 307, 308, 141 A.2d 885 [1958]; accord Deaton v. Vise et al., 186 Tenn. 364, 375, 210 S.W.2d 665 [1948]; Restatement [Second] of Conflict of Laws §§ 228, 229 [1971]; Restatement [First] of Conflict of Laws §§ 225, 227 [1934]).
Young comments in his article:
“The distinction between the contract and property aspects of a mortgage transaction serves a useful purpose. Permitting the parties to select the law to govern the underlying transaction, including the mortgage itself insofar as the mortgage is a contract giving rise to personal rights and duties, gives effect to the expectations of the parties in an increasingly complex world of multistate and multinational real estate transactions. On the other hand, recognizing the primacy of the law of the situs to determine the nature and extent of the mortgagee’s interest respects the fact that the federalism of the United States and the international nation-state system is founded on territorial sovereignty. Confusion is likely if the principles appropriate to one aspect of a mortgage transaction are applied to another.” 45 Ark. L. Rev. at 352. (Emphasis added.)
The mortgage in this case is rationally related to Missouri, where the property is located. While Kansas has jurisdiction to construe a deficiency judgment, this case is so intertwined with the Missouri mortgage that the trial judge necessarily had to construe Missouri substantive and procedural law concerning the nature and validity of the lien on Missouri land. In order to grant any relief, the trial court should have applied the law of Missouri concerning statutory foreclosures. The only remedy available in Missouri is to set aside the sale. Kansas has no jurisdiction to set aside a Missouri foreclosure sale of real property. If the appellant is to receive relief in this case, be it partial or total, that relief must come from Missouri where the real estate is located and the statutory sale took place.
Based on the outcome of this issue, a discussion of the issues concerning collateral attack and equitable remedy is not necessary.
Reversed and remanded with directions to set aside the district court’s judgment granting equitable relief to appellant.
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The opinion of the court was delivered by
Larson, J.:
Jeffrey Collier appeals his convictions of first-degree murder and aggravated robbery along with his hard 40 life imprisonment sentence.
We have jurisdiction pursuant to K.S.A. 22-3601(b)(l).
Before we consider the trial errors Collier alleges and the propriety of the sentence imposed, we will briefly summarize the. trial' testimony regarding the underlying crimes. More specific facts will be presented as to each of the alleged appellate errors as they are discussed.
In October 1993, Collier and his homosexual companion, Benny Watson, had gone to Oak Park in Wichita to “roll some fags.” Collier located a potential victim but decided he was too large. They left the park, picked up their roommate, Sharon Biffle, and attended an auction before they returned to the park.
Upon their return, Collier saw the victim, Michael Hendrix, reading a book and approached him. Watson remembered Hendrix as having tipped him during Watson’s former employment as a female impersonator.
Collier lured Hendrix into a nearby wooded area, where Collier masturbated for Hendrix and convinced him to go to his apartment.
After 30 minutes, Watson went to the apartment and knocked on the door. He was told by Hendrix they were drinking beer and Watson should leave. Watson returned to his car and started honking the horn. Collier came out and said he would get Watson some money because he was “pulling a trick” with Hendrix.
Watson and Biffle went to a nearby tavern where they were located by Collier. Collier had them return to Hendrix’s apartment. There, he obtained a laundry basket of things he had taken from Hendrix’s apartment, including a paint sprayer which he later sold for $20.
After they returned to their apartment, Collier became angry and made several trips back to Hendrix’s apartment, bringing back numerous items each time. Collier told Watson and Biffle the things came from Hendrix’s apartment, where Hendrix was knocked out and tied up. Watson testified at trial that later that night Collier told him he had killed Hendrix and he would kill Watson and Biffle as well if they said anything.
Watson eventually told a third party, who told an additional party who called the police. The police found Hendrix’s nude body with his hands tied tightly and a scarf around his badly bruised neck. The coroner testified the cause of death was strangulation, with evidence of a blunt trauma to the head and other injuries.
Testimony at trial indicated that after Collier was arrested and while he was being processed into jail, he told a police officer that he had just gotten out of jail after serving a 3-year sentence and guessed he could do 15 years. He also told two other officers that “I always wondered what it felt like to be a murderer, now I know.” Collier had in his possession a key ring with the initials and one of the keys on the key ring fit the door to Hendrix’s apartment.
Police found various items of clothing and housewares that belonged to the victim in Watson and Collier’s apartment. The victim’s fingerprints, as well as Collier’s, were obtained from several items which belonged to the victim.
Michael Ware, a prisoner awaiting transfer to a federal facility, befriended Collier in jail but testified for the prosecution. Ware testified that Collier would try out different stories based upon the witnesses’ statements to see if they could be reconciled without implicating him. Ware testified that Collier told him the true series of events, which were substantially similar to Watson’s testimony except that Watson was implicated to a much larger degree. In exchange for Ware’s testimony, the prosecution agreed to write a letter to the United States Attorney informing him of Ware’s cooperation which was likely to obtain him a reduced sentence.
It was stipulated that Collier had told Ware that because Hendrix was struggling and making noise, Collier wrapped the scarf around Hendrix’s neck to silence him but that he had no intention of causing his death.
Biffle corroborated Watson’s testimony, although her version varied in minor details. Other witnesses reported seeing Collier and Hendrix together and seeing Watson’s car outside Hendrix’s apartment.
Collier was convicted on theories of both premeditated and felony murder and on an aggravated robbery charge. For the murder conviction, he was sentenced to the hard 40.
Scope of Review
Because a hard 40 sentence was imposed, we review this matter pursuant to the specific directions of K.S.A. 1993 Supp. 21-4627, which states:
“(1) A judgment of conviction resulting in a mandatory term of imprisonment pursuant to K.S.A. 1993 Supp. 21-3401 and 21-3401a, and amendments thereto, shall be subject to automatic review by and appeal to the supreme court of Kansas in the manner provided by the applicable statutes and rules of the supreme court governing appellate procedure. The review and appeal shall be expedited in every manner consistent with the proper presentation thereof and given priority pursuant to the statutes and rules of the supreme court governing appellate procedure.
“(2) The supreme court of Kansas shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.
“(3) With regard to the sentence, the court shall determine:
“(a) Whether the mandatory term of imprisonment was imposed under the influence of passion, prejudice or any other arbitrary factor; and
“(b) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.
“(4) the court shall be authorized to enter such orders as are necessary to effect a proper and complete disposition of the review and appeal.”
Although Collier did not object in the trial court to the manner of imposition of the hard 40 sentence or in every instance make continuing objections to trial errors which he now raises, we will consider each issue raised because of the specific statutory direction that we “shall consider the question of sentence as well as any errors asserted in the review and appeal and shall be authorized to notice unassigned errors appearing of record if the ends of justice would be served thereby.”
Did the trial court abuse its discretion in allowing the State to present evidence that the victim did not engage in sadomasochistic sexual behavior?
A friend of the victim, Scott Curry, was called to testify that articles found in Watson’s house were taken from Hendrix’s apartment but was also allowed to testify as to Hendrix’s reputed sexual practices and preferences regarding sadomasochism.
Collier, relying on State v. Bradley, 223 Kan. 710, 712, 576 P.2d 647 (1978), contends this attempt to show that Hendrix did not engage in sadomasochism improperly introduced Hendrix’s good character before it had been attacked by the defendant.
The State contends Bradley is not applicable because the evidence related to whether the victim engaged.in sadomasochistic sex, not whether he was a peaceable, quiet, and orderly citizen. More clearly, the State contends the issue of Hendrix’s sexual preferences was opened when Collier’s counsel had earlier questioned a State’s witness as to whether Watson had said that Hendrix engaged in sadomasochistic sex.
There is no error for both reasons the State cites.
One of the persons involved in the reporting of the homicide, Chuck Breckenridge, testified prior to Curry and was asked by Collier’s counsel if Watson had told him that the person who died was “into S&M.” Breckenridge affirmed that Watson had said that. A follow-up question described “S&M” as sadomasochism, a sexual preference. Because the issue had been raised earlier, it was perfectly proper and reasonable for the prosecution to show that the victim did not have a reputation among the Wichita gay community for sadomasochistic sex.
Additionally, the Bradley decision is more limited in its holding than Collier suggests. The rule it establishes prohibits the State from showing the peaceful reputation of a deceased until the victim’s character is attacked. By no means can it be expanded to hold that it would be improper for a prosecutor to show that the victim would not ask to be tied, bound, and gagged, as Hendrix was when the police came to his apartment.
The testimony was proper for both of the reasons we have stated above. Collier’s contention to the contrary is without merit.
Was it reversible error for the trial court to admit testimony over Colliers objections that witness Benny Watson had AIDSP
Collier cites several instances in the record where the fact that Watson suffered from AIDS was mentioned and argues this provides a basis for reversing his convictions. The fact that Watson had AIDS was stated to the jury during voir dire and again on opening statement without objection. During Watson’s direct examination, he was allowed to state that he had AIDS, that Collier knew it, and that in the sexual relationship between himself and Collier, condoms or other protection was not used. Collier objected to several questions which he felt attempted to bolster the truth fulness of Watson’s answers because he was dying. Collier’s objection was sustained before any improper answer could be finished.
At one point during cross-examination, Watson was effectively impeached because there were several things he could not remember. As an excuse for his poor recollection, he explained that he had AIDS and could not remember what had happened 5 months ago. Collier contends that allowing Watson to claim AIDS was responsible for his failing memory was reversible error.
It is illogical for Collier to argue that permitting Watson to testify that his memory was impaired because of AIDS somehow bolstered Watson’s credibility contrary to K.S.A. 60-422. Collier attempts a comparison to State v. Steger, 216 Kan. 534, 537, 532 P.2d 1115 (1975), where this court found it was improper to admit evidence of the success of the State’s witness in securing convictions to enhance his credibility. The comparison is strange because not only is Steger highly dissimilar but also Collier’s own counsel, not the State, actually elicited Watson’s statement in cross-examination.
Collier’s argument that Watson’s claim that he was telling the truth because he was dying of AIDS was improper ignores that this statement was unresponsive to the State’s question and the court sustained Collier’s objection. Consequently, Collier may not predicate error on this ground. See State v. Herschberger, 160 Kan. 514, 517, 163 P.2d 407 (1945) (on appeal, jury will be presumed to have disregarded evidence about which an objection was sustained); see also State v. Pioletti, 246 Kan. 49, 67, 785 P.2d 963 (1990) (no reversible error when objection to prosecutor’s comment sustained).
Additionally, Collier makes a different objection on appeal than he did before the trial court, which is clearly improper. See State v. Skelton, 247 Kan. 34, 44, 795 P.2d 349 (1990).
Nevertheless, because of our extensive scope of review in hard 40 cases, we will consider the overall argument as to Watson’s testimony, even though an initial and continuing objection should have been made to preserve this issue for appeal. See K.S.A. 60-404; McKissick v. Frye, 255 Kan. 566, 582, 876 P.2d 1371 (1994). The possible terminal nature of Watson’s condition might have worked in favor of his veracity but could also have suggested that because of squabbles with Collier, Watson was likely to testify untruthfully.
Collier argues that Watson s medical condition was irrelevant. The State contends that Watson’s medical condition was relevant to his motivation for testifying against his lover and that motivation is clearly a relevant issue to be examined at trial. The State further contends that the evidence was admissible under K.S.A. 60-420, which permits, subject to certain limitations, evidence on any matter relevant to the issue of credibility. See State v. Franklin, 206 Kan. 527, 528, 479 P.2d 848 (1971). Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact. State v. Sexton, 256 Kan. 344, Syl. ¶ 1, 886 P.2d 811 (1994); see K.S.A. 60-401(b).
The fact that Watson had AIDS does not in and of itself in any manner affect his credibility because it is not probative as to his honesty or likelihood of testifying accurately. Nevertheless, even if the testimony was erroneously admitted it would clearly be harmless. See State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976) (erroneous admission of evidence harmless error where it could not have affected the result of trial in light of other evidence properly admitted). It is not shown that this deprived Collier of a fair trial in any manner. See State v. Taylor, 198 Kan. 290, 298, 424 P.2d 612 (1967). Likewise, the statement that Collier had unprotected sex had little likelihood of having affected the outcome of the trial. We fail to see that the admission of evidence concerning Watson’s medical condition was an abuse of discretion.
Was Collier denied a fair trial because of improper remarks by the prosecutor during closing arguments?
Collier admits that no objection was made at trial to the prosecutor’s remarks which he now complains of on appeal; however, under the specific direction of K.S.A. 1993 Supp. 21-4627(2), we are obligated to “consider . . . any errors asserted in the review and appeal.”
The analysis of the effect of a prosecutor’s allegedly improper remarks is a two-step process. First the appellate court determines whether the remarks were outside of the considerable latitude the prosecutor is allowed in discussing the evidence. This analysis commences with the holding that “[i]n criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced.” State v. Duke, 256 Kan. 703, Syl. ¶ 5, 887 P.2d 110 (1994). We further held in State v. Baker, 219 Kan. 854, Syl. ¶ 9, 549 P.2d 911 (1976), that “[cjounsel may appeal to the jury with all the power and persuasiveness his learning, skill and experience enable him to use.”
The second portion of the analysis is that if the remarks are found to be improper, this court must consider whether in light of the record as a whole they are so prejudicial as to amount to reversible error. “Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.” State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994).
The review which we make is governed by the following standard: “Improper remarks made in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial.” Whitaker, 255 Kan. 118, Syl. ¶ 7. “In deciding whether improper remarks by the prosecution during closing argument constitute harmless error, the reviewing court must be able to find that the error had little, if any, likelihood of changing the result of the trial. Such a belief must be declared beyond a reasonable doubt.” State v. Gibbons, 256 Kan. 951, Syl. ¶ 9, 889 P.2d 772 (1995).
Collier first complains about the following excerpt from the State’s closing argument:
“Now, there has been a lot of discussion in this case about sex. Jeffrey told Benny that they were involved sexually, that the defendant — that the victim was into S&M. Jeff told Michael Ware that there was sex involved and there had been overtones of sex all through this case. You know, one of the tragedies about Mi chael Hendrix’s death is that now, some five months after his murder, his sex life and reputation in — sex life and his sexual practices are still subject to scrutiny and discussion.
“This is not a case about sex. No matter how much or how the defendant wants you to believe it is, it simply is not. It is about the taking of property and a murder to cover it up. Sex is not the substance of this case, it is the cover-up. It is the diversion, it is the ruse, it is the glitz, it’s something that was put out there to throw you.”
Collier contends that the statement that the discussion of the victim’s sexual activities was “tragic” inappropriately expressed the prosecutor’s personal opinion and appealed to sympathy to such an extent that it denied Collier a fair trial. This argument has no merit. In its proper context, this statement is not improper. It was within the prosecutor’s wide latitude to argue that the sexual aspects of this case were gratuitous to the underlying crime. This statement does not appear to be geared toward injecting issues broader than the accused’s guilt or innocence under existing law, but toward weeding out facts developed in the trial which were extraneous to the issue of guilt.
Collier next complains about a statement apparently designed to preempt any jury decision based on the fact the State agreed to write a letter to the United States Attorney on behalf of witness Ware in exchange for his testimony. The prosecutor argued: “But the one thing I want to say, if you are unhappy with me because I agreed to send the letter to the U.S. Attorney’s office, be mad at me, don’t let a murderer go free because of it.”
Collier argues this statement impermissibly attempts to appeal to the jurors’ fear for the safety of their neighborhoods. We have stated that it is improper to argue that “if you want to live in a community where a person can kill another person ... in the manner that this was conducted and excuse it because he had a few drinks, that’s up to you,” State v. Jordan, 250 Kan. 180, 194, 825 P.2d 157 (1992), and that a statement is improper which implies the defendant would commit more crime if acquitted, State v. Perales, 220 Kan. 777, 780,556 P.2d 172 (1976). However, there is nothing about the prosecutor’s statement here that predicts consequences of an acquittal or intensifies any kind of a “fear in the neighborhood” sentiment.
The statement merely focuses the jury’s attention on the evidence material to Hendrix’s homicide and not on the prosecutor’s actions in obtaining the evidence.
Collier further complains of the following excerpt:
“If you want to — let’s talk about reasonable doubt. If you want to let that man go, you can speculate all you want and you can speculate yourself into thinking there is reasonable doubt because of these inconsistencies. Because we don’t have the best witnesses. If you want to, you can speculate into thinking there is a reasonable doubt. If you want to you can rationalize that somehow there is reasonable doubt. But ladies and gentlemen, there is no. reasonable doubt as to one, Michael Hendrix’ murder; two, he was murdered during the commission of a felony, aggravated robbery; and three, there was an aggravated robbery; and four, that man murdered him, with premeditation.”
There is no merit to Collier’s contention that this is improper as appealing to fears of Collier’s release into society. This is nothing more than a statement designed to argue that a few inconsistencies should not create reasonable doubt, and the statement is not in the same class as those held to be improper in Jordan or Perales.
Next, Collier contends the prosecutor’s statements in the following excerpt were not reasonable inferences from the evidence:
“Look. Jeffrey Collier was looking for a victim. He announced that to Benny Watson that Saturday morning when he was looking for houses to rob and fags to rob. He continued the statements of that sort throughout the day. Sort of like a prostitute that lures a married man into a dark room under the pretext of having sex when the intent all along is to rob him. Why? Is a married man going to go to the police and talk about what happened, to his wife, or to the police about what happened to him when he was out there with this hooker? No. Same thing going on here.
“Jeffrey Collier went to Oak Park to pick up a homosexual, under the pretext of having sex, when his intent all along was to rob and perhaps to kill. And what a cover. The victim in this case was a known homosexual and picked up in Oak Park, to boot. The defendant preyed on someone who he wanted not to go to the police. He wanted a weak victim, someone unlikely to report and that’s why he was there at Oak Park.”
Collier contends it was pure speculation that he selected Hendrix because Hendrix was a homosexual who would not report the robbery. There was no evidence that Hendrix was unlikely to report the robbery, although that inference might not be unreasonable. In any event, this did nothing more than explain a plausible motive for tiie selection of a robbery victim and was not improper. See State v. Buckland, 245 Kan. 132, 142, 777 P.2d 745 (1989).
Finally, Collier argues the prosecutor improperly told the jury not to consider the jury instructions relating to his theory of defense. He suggests that the State erroneously stated as a matter of law that they were only to consider certain instructions. This argument also has no merit. It is clear the prosecutor was arguing the evidence introduced at trial did not support the defense theory when the prosecutor said:
“Look at the verdict form and I’ll tell you what we are asking you to do. We are asking you to find him guilty of one, premeditated first degree murder. We are asking you to two, find him guilty in the alternative of felony murder, you can do it both. We are asking you to do it both and we’re asking you to find him guilty of aggravated robbery.
“Here’s the verdict form. One, we the jury unanimously find the defendant guilty of murder in the first degree. The presiding juror, the foreperson signs it there. You don’t stop there because then you have to say if you find him guilty of felony murder, if you find him guilty of first degree murder. . . .
“Now, ladies and gentlemen, you then flip it over and go to the last verdict form that deals just with aggravated robbery and you sign it off that you have found him guilty of aggravated robbery and you stop there. You do not consider second degree murder, either one; you don’t consider involuntary manslaughter; that isn’t what happened to this man. That isn’t what happened. It is first degree murder all the way. You see this is because the defendant is claiming it wasn’t premeditated, so you get to see instructions on second degree murder, the intentional killing of somebody without premeditation. Because he claims—
“— it is an accident. Gee, he just held that for what, four to six minutes for him just to pass out; it was accidental, I didn’t mean to kill him? . . .
“[I]t is a killing of somebody during the commission of an aggravated robbery. And . . . whether he accidentally killed him during the commission of an aggravated robbery is irrelevant. All that matters is one, who committed an aggravated robbery; and two, he killed him. And that’s it.”
These arguments do nothing more than point out to the jury the verdicts that the prosecutor felt must be reached. There is no merit to any argument that these final comments were improper.
Did the trial court fail to properly consider or grant Colliers request for appointment of substitute counsel and his claim of vio lation of his rights to effective assistance of counsel under the Sixth Amendment and Due Process Clause of the Fourteenth Amendment?
Collier’s first argument is that the trial court failed to properly consider his request for appointment of substitute counsel. On the first day of trial, while hearing motions in limine, the court considered Collier’s request and heard his arguments. Collier contended he was not happy with his counsel, who had not visited him when he felt he should have. The trial court denied the motion. In denying the motion, the court specifically told Collier he had a good attorney, that the court had examined the file, and that there was nothing to indicate everything reasonably necessary had not been done on Collier’s behalf.
“As a general rule, whether the dissatisfaction of an indigent accused with court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide.” State v. Ferguson, 254 Kan. 62, Syl. ¶ 1, 864 P.2d 693 (1993).
We also specifically held in Ferguson:
“ ‘As long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel (State v. Henderson, 205 Kan. 231, 468 P.2d 136).’ ” 254 Kan. at 70 (quoting State v. Banks, 216 Kan. 390, 394, 532 P.2d 1058 [1975]).
Although Collier had filed several pro se motions involving continuances or requests that he be granted counsel, the only request for substitute counsel came on the opening day of trial, and there is no logical reason why the court should not have denied the motion as it did.
It was not until the first day of trial that the record shows any rationale at all for requesting substitute counsel. Collier alleges it was the trial court which put off consideration of his complaints until the last minute. Yet all of the pro se motions Collier filed were resolved more than a month prior to trial. Consequently, it appears from the record before us that Collier’s request for substitute counsel, considered and denied immediately before voir dire began, was not timely. Although Collier maintains he requested substitute counsel as early as December 1993, nothing in the record establishes this allegation.
As to the adequacy of the trial court’s investigation, the record shows the trial court permitted Collier .to fully express the basis of his dissatisfaction with his counsel, which Collier did. From Collier’s explanation of his complaints, and the trial court’s own observations of the work done by Collier’s counsel, the court could have had a reasonable basis for believing the attorney-client relationship had not deteriorated to a point where appointed counsel could no longer give effective aid in the fair presentation of a defense. We conclude the trial court did not abuse its discretion in refusing .to appoint substitute counsel.
After the court considered and rejected Collier’s motion for a new trial at allocution, Collier revisited the issue of dismissing his counsel along with many other complaints about the proceedings. He argued to the trial court, “You denied my right to fire my attorney, which I believe I’m allowed to fire up to three attorneys, if I have that right. I’m supposed to, I believe.”
The trial court responded:
“I’m not sure where yon get the three attorneys, the right to fire three attorneys. I believe that you must show to the Court that an attorney is not representing you in any appropriate fashion. I thought you were lucky, in my opinion, to get Mr. Jones from the Public Defender’s office. He has a great deal of experience. He is a good trial attorney. He really knows what he’s doing in court. And I believe your attorney effectively gave you the defense you deserved during the course of this trial. And I do not believe that Mr. Jones was ineffective, nor do I believe that you had a right, without proper cause, to fire Mr. Jones and/or any other attorney, unless cause is shown to the Court.”
Collier further complained that he thought there were about 17 people who should have been subpoenaed for trial. The trial court said, in effect, that Collier’s counsel had done a good job and he had a right to appeal.
Collier argues that the trial court should have investigated his claim and he was entitled to a hearing on the issue and appointment of counsel.
From the record it appears that while Collier may have complained about his counsel, he made no formal motion for new trial because he was ineffectively represented, nor did the court address such a claim by the governing standards. He only mentioned his counsel’s ineffectiveness in an outburst in response to the trial court’s ruling that he was not entitled to a new trial. Because the trial court did not understand Collier to be requesting a new trial based on his counsel’s ineffectiveness, it appears that this issue was not raised in the trial court.
The State cites State v. Kingsley, 252 Kan. 761, 766-67, 851 P.2d 370 (1993), as support for its contentions that there must be a realistic basis and a motion for release before either a hearing or appointment of counsel is required for an ineffective assistance of counsel claim and whether the motion appears to have sufficient merit to warrant a hearing is in the trial court’s discretion.
What in fact has happened in this case is that Collier’s complaint regarding his counsel was insufficient to apprise the court he was seeking a new trial based on his counsel’s ineffectiveness. Therefore, the trial court had no cause to consider whether a hearing on the issue was warranted. Although we are required to consider all issues raised on appeal without regard to whether there was a contemporaneous objection, we are not a finder of fact. Therefore, we must wait for a trial court decision on the matter of counsel’s effectiveness. Because no claim of ineffective assistance of counsel was properly presented to the trial court, we will not consider that claim here. State v. Hall, 246 Kan. 728, Syl. ¶ 9, 793 P.2d 737 (1990).
Should Colliers hard 40 sentence be vacated because the record shows the State did not file its notice of intent to seek the hard 40 until the day after arraignment in violation of K.S.A. 1993 Supp. 21-4624(1)?
Although Collier did not properly object to the filing of the notice to seek the hard 40 during the arraignment proceeding, we review and consider this matter as we are directed to pursuant to K.S.A. 1993 Supp. 21-4627(2).
The requirements for proceedings to determine if a person shall serve a mandatory 40-year term of imprisonment read as follows:
“If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication of guilt of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney at the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.” K.S.A. 1993 Supp. 21-4624(1).
The arraignment in this case took place on November 4, 1993, with the transcript recording the following exchange:
“MR. ROTH: Your Honor, we have a notice we intend to serve on the defendant at the time of arraignment.
“THE COURT: Okay. Mr. Collier’s been provided with the information. And you’re serving a notice.
“MR. ROTH: Yes, Your Honor. At this time, we are serving on the defendant a notice of intent to request a mandatory 40 year imprisonment should he be convicted of premeditated murder.
“THE COURT: Okay.”
The notice of intent to request the mandatory 40-year imprisonment is shown as being filed on November 5 at 8:20 a.m., the day following Collier’s arraignment.
Collier was convicted on March 21,1994, and sentenced on May 6, 1994.
On June 15, 1994, the State filed a “[m]otion to file Supreme Court Rule 3.04 statement out of time.” In that motion, the State alleged that in light of the Kansas Supreme Court’s decision in State v. Peckham, 255 Kan. 310, 875 P.2d 257 (1994), the record of arraignment was deficient and required additions to reflect the action of the prosecutor and the court during and after arraignment. The factual statement recited that the State had presented the original copy of its notice of intent to seek the hard 40 to the court at arraignment with the intent to file it with the court and that it was received as filed. The motion said the court then took the document to the assistant clerk of the district court for filing in the clerk’s office. The assistant clerk then entered the relevant data into the computer system, although the clerk did not file stamp the document until the following morning at 8:20 before the office opened for business. The statement also alleged this was the usual procedure in the district.
The State’s motion to file its Supreme Court Rule 3.04 (1995 Kan. Ct. R. Annot. 20) statement out of time was purportedly served by placing a copy in the designated public defender’s box in the district attorney’s office on June 13, 1994. A hearing was held on June 16, 1994, at which neither Collier nor his attorney appeared. The trial court, Judge William Rustin presiding, granted the motion. Judge Rustin had not conducted the arraignment of Collier, rather, Judge David Kennedy had presided at the arraignment. On August 25,1994, a copy of the factual statement that had been attached to the motion, signed by Judge Kennedy and prosecuting attorney Douglas Roth, was filed.
The State contends that this instance differs from Peckham in that the supplemented record shows the trial court understood the notice provided to it was! being filed with the court at that timé. What we have here is an uncorroborated after-the-fact statement as to a notice which shows on its face that it was not filed as required by K.S.A. 60-205(e).
Collier attacks the State’s attempt to comply with 21-4624, contending that by trying to add to the record through Supreme Court Rule 3.04, the State violated Collier’s Sixth Amendment right to counsel and Fourteenth Amendment right to due process of law.
Collier makes numerous arguments but primarily contends the State failed to comply with Supreme Court Rule 3.04; thereforé, we are not to consider the statement it prepared. See Dillon’s Food Stores, Inc. v. Brosseau, 17 Kan. App. 2d 657, 659, 842 P.2d 319 (1992). Rule 3.04 (1995 Kan. Ct. R. Annot. 20) provides:
"In the event no official transcript of the evidence or proceédings at a hearing or trial can be made and no other official record is available, a party to an appeal may prepare a statement of the evidence or proceedings from the best available means, including his own recoEection, for use instead of a transcript. Within ten (10) days after the filing of the notice of appeal, the statement shall be served on the adverse parties who may serve objections or propose amendments thereto within ten (10) days. Thereupon, the statement with objections or proposed amendments shall be submitted to the judge of the district court for settlement and approval, and as settled and approved shall be included in the record on appeal by the clerk of the district court.”
First, Collier contends Rule 3.04 does not permit the addition to an official transcript, but only applies where no transcript at all is available.
Second, Collier contends notice of the hearing on the State’s motion was improperly served on Collier’s counsel because it was deposited in the public defender’s mailbox at the district attorney’s office, which did not comply with K.S.A. 60-205(b) regarding proper service of process on a party represented by an attorney. In addition, Collier specifically contends that no notice was provided to the newly appointed appellate counsel.
Third, Collier argues the State failed to provide the 10-day response time required by Rule 3.04 because a hearing on the motion was held the day after it was filed.
Fourth, Collier contends that holding the hearing one day after the motion was filed violated District Court Rule 131, which requires notice of a hearing not less than 7 days prior to such hearing in matters that are not ex parte.
Fifth, Collier argues the record does not affirmatively show the trial court complied with District Court Rule 134, which requires that a written notice of a ruling be mailed to the parties or their attorneys.
Finally, Collier argues that the statement of Judge Kennedy was not approved by the court for addition to the record.
Collier argues that taken collectively these shortcomings violate his Sixth Amendment right to counsel because he was unrepresented at the hearing and his Fourteenth Amendment due process rights because he was not personally present.
The State attempts to justify its actions by saying that its June 15,1994, motion only sought permission to subsequently file a Rule 3.04 addition out of time. This contention hardly justifies the State’s clear violation of court rules in an attempt to extract itself from the identical position it found itself in as the result of our decision in Peckham, 255 Kan. 310.
In response to the argument that Rule 3.04 applies only where there is no available transcript, the State argues that although there was an official transcript of the arraignment generally, there was no official transcript of the proceedings concerning the filing of the hard 40 notice or the procedures by which it was “clocked in” in accordance with established Sedgwick District Court procedure. It should be noted that “this is the way it is done” is no excuse or justification in cases where the statutory remedy which is attempted to be enforced is one which this court has said is mandatory. In State v. Johnson, 255 Kan. 140, 155, 871 P.2d 1246 (1994), we specifically held that the notice provisions of K.S.A. 1993 Supp. 21-4624 are mandatory, and the failure to comply with such provisions requires a sentence imposed thereunder to be vacated.
In effect, the State contends that a Rule 3.04 statement may augment an incomplete transcript so long as it does not contradict it. Such a construction is not consistent with the rule that an official record “imports verity and cannot be collaterally impeached.” In re Marriage of Case, 18 Kan. App. 2d 457, Syl. ¶ 2, 856 P.2d 169 (1993).
As to the propriety of service upon the public defender in his box at the district attorney s office, the State argues that, although this did not comply with K.S.A. 60-205(b), this is in accordance with an agreement between the public defender’s office and the district attorney’s office and that mailing the notice as required by statute would be a “fiscal impossibility.” The State’s allegations as to matters outside the record cannot be considered on appeal. See Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993). Even if the facts are as the State alleges, they do not provide authority for failure to comply with the statutorily established means of serving attorneys.
The dissent appears to concur with our holding that the State’s attempted Rule 3.04 statement was improper but nevertheless relies on it to establish that the notice of intent to seek the hard 40 was properly filed with the court. As we have previously stated, the official transcript is silent as to how a copy of the notice came to be filed the morning after the arraignment.
The only document from which we could conclude that the notice was filed with the court at the time of arraignment is the signed but not swom-to statements of the prosecutor and judge, the accuracy of which Collier was not permitted or allowed to question. We should not base our decision on matters which are outside of a properly preserved record.
This case is controlled by Peckham, 255 Kan. 310, in which the State failed to comply with K.S.A. 1993 Supp. 21-4624 in the same manner it failed here. The facts in Peckham and our case appear to be identical with the exception that here the original and not a copy of the hard 40 notice found its way into the court file and the State here attempted after the fact to bolster its argument that the notice was filed with the court at the time of the arraignment.
We need not repeat here everything that Justice Abbott said in Peckham except to point out that we are dealing with what in 1993 was this State’s equivalent to the death penalty, that filing as K.S.A. 60-205(e) requires was not accomplished, and that the State’s attempts to supplement the record were improperly accomplished.
We here hold, consistent with Johnson, 255 Kan. 140; State v. Deavers, 252 Kan. 149, Syl. ¶ 6, 843 P.2d 695 (1992), cert. denied 125 L. Ed. 2d 676 (1993), and Peckham, 255 Kan. 310, that failure of the State to comply with the requirements of K.S.A. 1993 Supp. 21-4624 requires the hard 40 sentence entered herein to be vacated.
The convictions are affirmed, the hard 40 sentence is vacated, and the case is remanded for resentencing.
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The opinion of the court was delivered by
Larson, J.:
This is a direct criminal appeal from convictions of two counts of first-degree murder following a jury trial. Lamonte McIntyre alleges the following errors: (1) The trial court erred in failing to give an instruction regarding eyewitness identification; (2) the State failed to disclose evidence in its file relating to the issue of guilt; (3) the trial court erred in not considering all of the eight factors set out in K.S.A. 38-1636(e) in certifying him to be tried as an adult; and (4) there was insufficient evidence to convict him of the offenses. Finding no reversible error, we affirm.
On April 15,1994, Donald Ewing and Doniel Sublette were shot and killed as they sat in a car in Wyandotte County, Kansas. McIntyre, age 17, was charged with two counts of first-degree murder in connection with the killings.
Two eyewitnesses identified McIntyre as the shooter. Niko Quinn, who lived near the scene of the crime, testified that at 2 p.m. on April 15, she was walking out of her house when she noticed a blue car parked up the street. She stated that there were two people in the car, although she could not see who they were. Quinn began to walk up the street to use the telephone when she saw someone running through a nearby vacant lot. As Quinn watched, the individual approached the parked car armed with what looked like a shotgun, walked up to the passenger side of the car, and began shooting. Quinn stated the individual was a black male, dressed in black. She also testified she later found out the two victims were her cousins, Donnie Ewing and Doniel Sublette.
The next day, the police asked Quinn to look at a series of photographs. She told Detective Roger Golubski she did not know if any of the pictures she was shown were of the shooter. A week later she called Golubski and told him that she could positively identify the shooter. At trial, Quinn identified McIntyre as the shooter.
Golubski testified that during the course of the investigation, McIntyre’s name surfaced as a possible suspect. Various sources mentioned that McIntyre might have been involved, and as a result, McIntyre’s picture was included in, the photo lineups shown to eyewitnesses Quinn and Ruby Mitchell. According to Golubski, when Quinn first looked at pictures in the lineup, she was very deliberate in looking at each one. When she came to the picture of McIntyre, she held onto the photograph, became teary-eyed, and was shaking. However, she told him that she was not sure whether that person was the shooter. Within a week, she called him and asked to meet him at a neutral location to look through the photos. She then picked out McIntyre’s photograph as that of the shooter.
On cross-examination, Golubski was asked whether he had told anyone about showing Quinn the photographs a second time. He answéred that he had not notified anyone until after the preliminary hearing.
After Golubski was excused from the stand, and out of the presence of the jury, the defendant’s attorney asked the court to be allowed to make a record. McIntyre’s counsel then stated, “I would like to know when [the prosecutor] was advised by Detective Go-lubski of this second photo lineup.” The prosecutor answered that she was not sure when she had been told of the lineup but that she did not feel a duty to disclose it because it was not exculpatory evidence. She admitted there was nothing in the file about the lineup. McIntyre’s counsel stated that he did not believe that there was a second photo lineup and that Golubski was not being truthful. However, the trial court noted that McIntyre’s counsel had the chance to cross-examine Golubski. McIntyre’s counsel made no objection to the lineup or the testimony of Golubski.
The second eyewitness, Ruby Mitchell, a neighbor of Quinn’s, testified that on the afternoon of April 15, she heard Quinn yelling to someone up the street and walked to the door of the house. Mitchell saw an individual come down the hill, walk over to a parked car, and begin shooting. Mitchell testified that the individual was armed with a short rifle or “pump gun.” The shooter was dressed in a black shirt and black cap. Mitchell thought that the shooter was someone named Lamonte who used to date her niece. She mentionéd this name to police. Despite the similarities in first names, the Lamonte to which she was referring and the defendant, Lamonte McIntyre, are not the same person.
When shown a photograph lineup, Mitchell picked McIntyre’s photo as the one of the shooter. At trial, Mitchell testified that there was no doubt in her mind that McIntyre was the shooter.
Detective James Krstolich of the Kansas City, Kansas Police Department testified that he had assisted Golubski in interviewing Mitchell. He worked with Mitchell to attempt to build a composite drawing of the suspect. Mitchell told him that the shooter’s name was Lamonte. Sometime later, the name of a different person, McIntyre, came up in the investigation, but Krstolich had no personal knowledge as to why.
The State also presented the testimony of Lieutenant Dennis Barber of the Kansas City Police Department. According to Barber, when he inquired as to McIntyre’s whereabouts on the day of the shooting, McIntyre’s mother told him that McIntyre had been at FiFi’s Restaurant, where she was employed, all day. Later, McIntyre’s mother told Barber that for 4 hours, including the approximate time of the murder, he had been with her at FiFi’s. Barber also testified he arrested McIntyre on the same day as the murder, and McIntyre told him that he had been helping out his mother at the restaurant all day.
McIntyre presented an alibi defense. Peggy Crowder, his aunt, testified that McIntyre was at her house on the day of the shooting until approximately 2:45 p.m., although she acknowledged that he was with his mother from 9 to 10:30 a.m. on that day. She testified that the only time he left the house after 10:30 a.m. was to go next door and call a cab for two of her sons. She stated that the first time he called the cab was at approximately 1:45 p.m., and the second time he went to call a cab was approximately-2:15 p.m.
Felicia Williams, a cousin of McIntyre’s, testified. She stated that on the day in question, McIntyre came over to her mother, Peggy Crowder’s, house at 10 a.m. and stayed until 2:45 p.m.
Yolanda Johnson, ánother aunt of McIntyre’s, testified McIntyre came over to call a cab. She testified that at approximately 2:45 p.m., McIntyre came back over to her house and stayed until his mother came to pick him up.
M’sheria Johnson, daughter of Yolanda and a cousin of McIntyre, testified that McIntyre came over to Yolanda’s house at 2:10 p.m., left briefly, and then came back over to use the phone. After leaving again briefly, McIntyre came back and stayed at the house from 2:45 p.m. until his mother came to get him at 5 p.m.
McIntyre testified on his own behalf. He stated that he had spent the night of April 14 at Crowder’s house. The next morning, he left to do something at his mother’s house and then went back to Crowder’s house. He testified that he left Crowder’s house on two occasions between 1:20 p.m. and 1:50 p.m. to go to .Yolanda’s house to call cabs for his cousins. He did not leave again until his mother came to get him some time between 4:30 p.m. and 5 p.m.
McIntyre denied knowing the victims of the crime or even owning a gun. He stated that he heard about the killing when “some dude” walked by on the street and mentioned that Chris Quinn’s brother had been shot.
Eyewitness Identification Instruction
At the conference regarding jury instructions, McIntyre’s counsel informed the trial court that he would not be requesting a jury instruction regarding eyewitness testimony. He stated that he was satisfied with the instructions as prepared. The State then asked the court to make a record regarding the eyewitness jury instruction for purposes of appeal. The court stated that because both eyewitnesses had a good view of the shooter and because the witnesses were certain of the identification, the eyewitness instruction would not be given.
McIntyre now argues that eyewitness identification was an essential part of the State’s case and that the failure to give a cautionary instruction was clearly erroneous. We have stated that a party may not assign as error the giving or failure to give an instruction unless he or she objects to or requests the instruction, stating the specific grounds for the objection. Absent such an objection or request, an appellate court may only reverse where the trial court’s failure to give the instruction was clearly erroneous. State v. Edwards, 252 Kan. 860, 864-65, 852 P.2d 98 (1993). The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict.
In determining whether there is a question about the reliability of eyewitness identification, this court in State v. Warren, 230 Kan. 385, 390, 635 P.2d 1236 (1981), identified five factors to be considered when evaluating the testimony of an eyewitness. These included (1) the opportunity of the witness to view the defendant at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of the witness’ prior descriptions of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. The Warren court examined these factors in determining whether an instruction was necessary. 230 Kan. at 397-98.
Applying the factors in Warren to the facts of this case, it is apparent that both Niko Quinn and Mitchell had an opportunity to view the shooter. Quinn testified that she first noticed the shooter as he was walking through a nearby vacant lot. Mitchell noticed the shooter as he was coming down the hill near the victim’s car. As far as the degree of the witness’ attention, while Quinn testified that she was not really paying attention when she first saw the shooter, she stated that when the crime was committed she got a good look at the shooter. Mitchell testified that she was paying attention to the shooter and was specifically looking at his face during the crime.
The next factor to be considered is the accuracy of the witness’ prior description of the criminal. Both witnesses’ descriptions of the shooter matched McIntyre’s appearance.
The fourth factor is the level of certainty demonstrated by the witness at the confrontation. Quinn herself testified that she did not initially identify the photograph for the police, not because she was unsure of whether the photograph was that of the shooter, but because she feared reprisal by the shooter if she identified him. Both witnesses were certain of their identification of McIntyre at trial.
Another factor to be considered is the length of time between the crime and the identification. Mitchell’s identification of McIntyre from the photographic lineup took place on the day of the shooting. Quinn was shown the photographs the day after the shooting, although for reasons outlined above she did not make a positive identification until approximately a week later. As a result, there was no significant lapse of time between the crime and the identification.
Other factors not mentioned by the Warren court but highlighted by PIK Crim. 3d 52.20 (1995 Supp.), the instruction regarding eyewitness testimony, include the emotional state of the witness and whether the witness had observed the alleged perpetrator on an earlier occasion. Quinn’s cousins were the victims of the crime, which might have had some effect on her emotional state; however, she testified that she did not know who was in the car until after the shooting. There is no indication that either she or Mitchell felt especially threatened at the time of the crime. Neither of the witnesses had seen McIntyre before.
It must be emphasized that McIntyre’s counsel did not request an instruction on eyewitness identification and, when given the opportunity, he affirmatively stated to the court he had decided not to request an instruction on eyewitness identification. In response to this statement, the State requested for the purposes of appeal that the court make a record as to why it elected not to give an eyewitness instruction. The court responded:
“The eyewitness instruction I think should be used when there’s a question about identity, whether the witness and the alleged defendant are the same race, the amount of time the witnesses had to view the defendant, the circumstances surrounding their viewing the defendant, how soon they made their identification after the alleged incident occurred, whether or not they were sure in their identification, how many subsequent identifications were made and obviously their demeanor during court, how they testified and how sure they were of the identification. In the court’s opinion, frankly, the two eyewitnesses in this case Niko being one and Ruby is the other one. Niko’s testimony was that she got a good look at the individual. Nothing blocked her view. She concentrated on the face. She gave a description of the clothing. She later picked the defendant’s photograph out of a five photograph lineup, became extremely upset. In fact, she was shaking. Her eyes were teary. She — the officer had difficulty getting that photograph from her grasp. When asked whether or not she was sure she indicated that looked like the individual but I can’t be sure. I can’t be sure. Obviously there was some emotional trauma involved with that particular selection of that particular photograph. For the record that was the defendant’s photograph. According to the testimony in this case she later contacted the detective who provided her with the photographic lineup, indicated to him she feared retribution if she had identified the photograph at that time. After further consideration she decided that the debts of her relatives should be I think the word was justified. I suspect they mean vindicated. And she indicated to the detective that positively that was the individual that had committed this crime. In fact, she was sure at the time she was shown the photographs the first time it was on this afraid [sic] to indicate that to the detective.
“The second witness Ruby indicated she was positive when she saw the photographs that that was the man who had shot the two individuals in the car. Just prior to that she had helped in the compilation of a composite drawing from an Identi-Kit supplied by Detective Krstolich. Her testimony was before she contributed to the composite drawing she had thought the individual who had done the shooting was a man by the name of Lamonte who had dated her niece. She was so sure in fact that she indicated at that time she almost called out, Lamonte, what are you doing, just before the individual fired the shots into the car. She indicated that after the composite and sometime either during or before the photographic lineup she picked photograph No. 3, which was a photograph of the defendant and said positively and absolutely that was the man that had done the shooting. Whether there was any confusion about the two Lamontes at all, she attempted to explain by saying they’re identical. That the two individuals looked the same but by the time she saw the photographic lineup she indicated she was positive that was the individual who had done the shooting the, defendant in this case Lamonte McIntyre.
“Further, here in court their identification of the defendant was absolute, positive, no mistake, no doubt at all. For those reasons I do not believe the fact circumstances in this trial merit an identification instruction and it’s certainly in fight of the fact defense has not requested the same nor has state for that matter. For those reasons I am not including [an] eyewitness instruction in the general instructions and I believe that’s satisfactory record on that particular issue.”
We conclude that the failure to give an eyewitness identification was not error. Based upon the above circumstances, the record supports the decision of the trial court not to give such an instruction.
Failure to Disclose Information Regarding the Second Photo Lineup
McIntyre next argues the State prejudiced his rights by failing to disclose information regarding a second photo lineup in which Quinn identified him as the shooter. According to McIntyre, this failure on the part of the State affected the result of the trial be cause, armed with this information, he would have been better prepared to cross-examine Quinn and Golubski regarding the lineup.
The facts surrounding this alleged failure to disclose are as follows: Quinn testified that, when interviewed the day after the crime, she told Golubski she could not identify the shooter. However, she stated that about a week later she called Golubski and told him that she could make an identification. When Golubski testified, however, he stated that Quinn contacted him and asked to see the photographs again, and when she had done so, she identified McIntyre.
McIntyre’s counsel cross-examined Golubski as to whether a report regarding this second photo lineup was made. Golubski stated that he told the prosecutor about the lineup at some time between the preliminary hearing and the trial. Outside of the presence of the jury, McIntyre’s counsel asked the prosecutor when she had become aware of the second photo lineup. The prosecutor stated that she could not remember when she had been told of the information, but that at the time she did not feel that it was necessary information to be disclosed to the defense because it was not exculpatory.
McIntyre now argues the State was obligated to disclose the information regarding the second photo lineup. According to McIntyre, the pretrial order in the case required that the State disclose all evidence on the issue of McIntyre’s guilt.
Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to the defendant. State v. Nguyen, 251 Kan. 69, 81, 833 P.2d 937 (1992). In addition, the State agreed at the pretrial conference to open its file to counsel for McIntyre for examination until two weeks before trial and represented that it had disclosed all evidence favorable to McIntyre on the issue of guilt.
The subsequent identification of McIntyre as the shooter by Quinn was inculpatory evidence. Thus, there was no independent duty on the part of the State to affirmatively disclose this evidence. A defendant does have a constitutionally protected privilege to request or obtain from the prosecution evidence which is material to the guilt or innocence of the defendant. See State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986). However, the defense made no attempt to interview Quinn or Golubski regarding whether Quinn would be able to identify McIntyre.
McIntyre claims that the pretrial order affirmatively requires that the State disclose all evidence relevant to his guilt or innocence, whether exculpatory or inculpatory, and that the failure to do so was a denial of fundamental fairness. However, the pretrial order merely states that the State had turned over exculpatory evidence to the defense and that the file on the case would be open for the defense’s examination. The record establishes that McIntyre made no request to examine the State’s file on the case. Finally, although McIntyre now argues that he objected to the introduction of the second photo lineup, the record does not support his assertion.
Quinn testified that she called the police and told them that she could identify the shooter. The defense was presented with the opportunity to cross-examine her as to why she could identify the shooter a week after the shooting though she told police she was not sure of the identity the day after the event. The defense also had the opportunity to cross-examine Golubski as to why Quinn was able to make an identification the second time. Based upon all circumstances, we conclude that the failure of the State to disclose the second lineup was not a denial of fundamental fairness.
Certification to Stand Trial as an Adult
K.S.A. 38-1636(a)(2) provides that the court may authorize the prosecution of a respondent 16 or more years of age as an adult. In determining whether or not prosecution as an adult should be authorized, the court is required to consider the following factors:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution.” K.S.A. 38-1636(e).
The standard for evaluating whether the decision to certify a juvenile as an adult was proper is whether the decision as a whole is supported by substantial competent evidence. State v. Tran, 252 Kan. 494, 508, 847 P.2d 680 (1993). The insufficiency of the evidence pertaining to one or more of the factors listed is not determinative. State v. Hooks, 251 Kan. 755, 759, 840 P.2d 483 (1992).
At the certification hearing, Denise Armstrong, McIntyre’s probation officer, testified that he was on probation for an earlier robbery, had previously been arrested for misdemeanor theft, and was also facing a charge of possession of cocaine. According to Armstrong, McIntyre would not be a good candidate for probation and, due to his age, SRS custody would also not be an option. Armstrong felt that he might be committed to the Youth Center, but that the maximum time he could be held at that facility would be 3 years. Armstrong felt that the defendant was of an emotional maturity level consistent with his age.
McIntyre contends the trial court did not consider all of the factors listed. Specifically, he contends the trial court failed to consider the sixth and seventh factors: the sophistication and maturity of the defendant and the availability of facilities and programs likely to rehabilitate the defendant prior to the expiration of the court’s jurisdiction under the juvenile code.
However, an examination of the record demonstrates that McIntyre’s argument is without merit. First, in making its decision, the court announced that it had considered all of tíre factors in K.S.A. 38-1636. Moreover, the court specifically stated that it had considered the maturity of the respondent, his age, and the fact that the juvenile system could not be of benefit to him. The court reached its conclusions on these factors after hearing evidence and arguments from both sides which thoroughly addressed the factors. Under these circumstances, the trial court did not fail to properly certify McIntyre as an adult.
McIntyre also contends there was not substantial competent evidence to support the trial court’s decision to waive him to adult status. However, the record is replete with evidence that supports the finding of the trial court. Regarding the factor of the seriousness of the alleged offense, the crime for which McIntyre was being tried was first-degree murder, the most serious crime against a person. The offenses were committed in a violent, premeditated manner, and were against two people. At the time of trial, McIntyre was 17 years old, and as a result, an adjudication under the juvenile system could only keep him in custody until the age of 21. Under these circumstances, substantial competent evidence exists to support the decision of the trial court.
Sufficiency of the Evidence
McIntyre argues that the evidence was insufficient for the jury to have found him guilty beyond a reasonable doubt. He argues that there was no physical evidence or motive to connect him with the crime.
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, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, Syl. ¶ 13, 875 P.2d 242 (1994).
McIntyre argues that because there was no physical evidence to connect him to the crime, and because the State did not establish a motive for him to commit the crime, there was not sufficient evidence to convict him. However, McIntyre was identified by two eyewitnesses to the crime who picked him out of a photo lineup. Viewing all the evidence, in the fight most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
The State appeals from the dismissal of a juvenile complaint charging J.D.B. with contributing to a child’s misconduct, K.S.A. 21-3612(a)(5). The State alleged that the district judge erred in conducting a preliminary examination and dismissing the complaint for lack of probable cause. During oral argument we asked the State if its notice of appeal was timely filed, and we requested the State to file a response as to our jurisdiction over the appeal.
J.D.B. (age 15), G.A. (age 16), and other juveniles planned to go to the movies but instead went driving around and eventually parked in a field. After kissing and hugging, J.D.B. and G.A. engaged in “consensual” sexual intercourse. However, because J.D.B. was under the age of 16 she could not lawfully consent to sexual intercourse. Consent of the victim is not a defense to K.S.A. 21-3504(a)(1). G.A., by having sexual intercourse with J.D.B., violated K.S.A. 21-3504(a)(l) (aggravated indecent liberties with a child).
The State filed a complaint under the Kansas Juvenile Offenders Code (Code), K.S.A. 38-1601 et seq., alleging the 15-year-old, J.D.B., to be a juvenile offender who violated K.S.A. 21-3612(a)(5) (contributing to a child’s misconduct) for having caused or encouraged G.A., a child under the age of 18, to have sexual intercourse with her and commit the aggravated indecent liberties offense.
J.D.B. filed a motion to dismiss the complaint. J.D.B. asserted that because she was under 16 years of age and could not lawfully consent, she was legally incapable of causing or encouraging sexual intercourse. A district magistrate judge heard the motion to dismiss the complaint. The State presented the testimony of G.A., who stated that J.D.B. did not “encourage” him to have sex. The district magistrate ruled that it was neither reasonable nor logical to assume that J.D.B. could cause or encourage a sexual act if she could not consent to the act. The district magistrate dismissed the complaint. The State timely appealed the dismissal to the district court.
In considering die State’s appeal, the district judge heard additional arguments of counsel and reviewed the transcript of evidence presented to the district magistrate. The district judge found that the charge of aggravated indecent liberties with a child was proper because even though J.D.B. could not legally consent to sexual intercourse, she did in fact consent to sexual intercourse. However, the district judge dismissed the complaint, stating: “If the evidentiary hearing is taken by the court as a preliminary hearing on this felony level charge, the transcript of those proceedings show that there is not probable cause to believe the crime occurred. The.alleged victim clearly testified that the juvenile [J.D.B.] did not encourage him [G.A.] to have sex with her. She may have consented, but consent and encouragement are not the same.”
The district judge’s journal entry dismissing the complaint was filed with the clerk of the district court on August 10, 1995. On August 30, 1995, the State filed a notice of appeal of the district court’s dismissal in the Court of Appeals. The appeal was transferred to this court.
JURISDICTION
The right to appeal is statutory. It is well established that this court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to Article 3, § 3 of the Kansas Constitution, and it is the duty of this court to dismiss an appeal when the record discloses a lack of jurisdiction. State v. Ortiz, 230 Kan. 733, 735, 640 P.2d 1255 (1982); see State v. Medina, 256 Kan. 695, 700, 887 P.2d 105 (1994); State v. Redman, 255 Kan. 220, Syl. ¶ 1, 873 P.2d 1350 (1994); State v. Ji, 255 Kan. 101, Syl. ¶ 1, 872 P.2d 748 (1994). Appellate courts lack jurisdiction to entertain an appeal unless the appeal is taken within time limitations and in the manner prescribed by the applicable statutes. See State v. Kleen, 257 Kan. 911, Syl. ¶ 1, 896 P.2d 911 (1995).
K.S.A. 38-1682 governs appeals by the prosecution in cases under the Juvenile Offenders Code and states:
“An appeal may be taken by the prosecution from an .order dismissing proceedings when jeopardy has not attached, from an order denying authorization to prosecute a respondent as an adult or upon a question reserved by the prosecution. An appeal upon a question reserved by the prosecution shall be taken within 10 days after adjudication. Other appeals by the prosecution shall be taken within 10 days after the entry of the order appealed from.”
In its response to our directive to address the jurisdiction question, the State recognized that K.S.A. 38-1682 requires appeals to be taken within 10 days after the entry of the order appealed from. The State admitted, “In reviewing the timing in this case, it would appear that the prosecution filed this appeal on the eleventh day, as opposed to the tenth day.” (Emphasis added.)
The State presented this argument to construe its notice of appeal as timely:
“In this case, the judge took under advisement his decision. The decision was rendered not in an open court, but by written order. Therefore, K.S.A. 60-258, Entry of a Judgment, should be considered in this matter. K.S.A. 60-258 in part states, “When judgment is entered by judgment form, the Clerk shall serve a copy of the judgment form on all attorneys of record within three days. Service may be made personally or by mail. Failure to serve a copy of the judgment form shall not affect the validity of the judgment.’ A review of the record shows that, in fact, this court order was filed on August 10,1995, however, there is no documentation prepared by the Clerk of the Court as to ho\y and when the order was served on •the attorneys of record. Therefore, presuming that the Clerk performed their function within the time allotted to do their duties, copies of the orders would have been sent to the attorneys of record no later than August 15, 1995. Once again, with there being no indication as to whether or not tins was done by mail or by personal service, the Court should consider and presume that it was done by mail, which would allow then the appellant ten days plus the three days for mailing, which would put the cut-off date for filing the appeal on September 1, 1995, in which case this appeal was filed within the time allowed by statute.”
In the absence of proof by the State as to what day the clerk served notice we assume notice was served on the day the order was file stamped, August 10, 1995.
This is an appeal by the prosecution from an order dismissing juvenile proceedings when jeopardy has not attached, and the appeal time is 10 days. K.S.A. 38-1682. Because the appeal time is 10 days, Saturdays, Sundays, and legal holidays are not included in the computation. K.S.A. 60-206(a). Further, 3 days are added to the computation period if the order was mailed. K.S.A. 60-206(e). In making the computation, a court first counts the 10 days, ex- eluding weekends and legal holidays, and then the 3 days for mail service is added with no exclusion for weekends or holidays. See Hundley v. Pfeutze, 18 Kan. App. 2d 755, 758, 858 P.2d 1244, rev. denied 253 Kan. 858 (1993).
' The district judge's journal entry dismissing the proceedings was filed on August 10, 1995. Counting 10 days, starting with the first day following the start date and excluding weekends and holidays, the 10-day period ends on August 24. Adding the 3 mail days, the notice of appeal was required to be filed on or before August 27. Because August 27 was a Sunday, the notice of appeal had to be filed no later than August 28, the next business day. The State’s notice of appeal was not filed until August 30,1995, and was therefore untimely.
Appeal dismissed.
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The opinion of the court was delivered by
'Bkeweb, J.:
This was an action brought by plaintiff in error, plaintiff below, to recover damages for an alleged wrongful imprisonment. In his petition plaintiff alleged that defendant was prosecuting witness in a criminal prosecution brought under § 1, ch. 113, Comp. Laws of 1879. He set out copies of the complaint and warrant, and further alleged that the prosecution was without probable cause, and malicious. He thus claims to have set forth in his petition an illegal arrest and detention under such circumstances as to ■constitute both an action of false imprisonment and one of malicious prosecution. That where but a single detention and imprisonment is complained of, plaintiff may so charge it as to show both a causé of false imprisonment and one of malicious prosecution, has been settled in this court in the case of Bauer v. Clay, 8 Kas. 580. To the petition in this case defendant answered, and the case went to trial before the court and a jury. After the plaintiff had rested, defendant interposed a demurrer to plaintiff’s evidence, which after argument, was sustained, and judgment entered for defendant. To reverse this ruling plaintiff brings the record to this court.
2. Heading; pioof' The first question which we shall examine is, whether the plaintiff’s claim of a false imprisonment can be sustained. The statute under which this prosecution was commenced, makes it a misdemeanor for a party to cut down timber in which he has no interest or right, and which is standing or being on land not his own; and the affidavit which was filed in this action, alleged that defendant did unlawfully cut down and carry away certain trees standing and growing on the land of another person, and in which defendant had'no right or interest. The affidavit in this respect substantially follows the language of the statute; but it is objected that it is fatally defective, in that it fails to allege upon whatjland these trees were growing, or to whom either the land or the trees belonged. In other words, the charge as stated in the complaint lacked that certainty, and failed to give to the defendant that information which, under the constitution of the state, every defendant in a criminal prosecution is entitled to have. As the warrant followed the language of the complaint, it is claimed that upon the face of the papers the fatal defect in the proceedings was disclosed; that therefore the arrest and detention were illegal, and that a case of false im- c prisonment is made out. We cannot yield our assent to the propositions thus advanced by coun- ^ » seb Conceding that the complaint is defective, and that to be complete it should have stated the land on which the trees were growing, or the owner of the trees, or both, still it was an attempt to charge an offense under the statute, and contained allegations sufficient to challenge judicial examination and action. The defect was one which could have been cured by amendment. The language of the complaint followed that of the statute; it charged the doing of all the acts which the statute prohibited. Indeed, the trouble is that it followed it too closely, following the letter and not the spirit; but it was enough to invite the examination and consideration of the justice, and was in the first instance examined and approved by him. Under these circumstances an action for false imprisonment will not lie. This question has already been settled in this court, on behalf of the magistrate, (Clark v. Spicer, 6 Kas. 440,) and on behalf of the prosecuting witness, (Gillett v. Thiebold, 9 Kas. 427.) See also Hauss v. Kohlar, 25 Kas. 644. It is no uncommon thing for some defects or omissions to be found in a complaint, or even in an information or indictment, defects sufficient to compel the sustaining of a motion to . quash proceedings. If in all these cases an action for false imprisonment could be maintained, it would throw an unnecessary and unreasonable check on proper criminal prosecutions. The action for malicious prosecution is ample protection to the defendant, against an unwarranted and improper prosecution, and the prosecuting witness ought not, any more than the magistrate, to be compelled to guarantee the absolute sufficiency of the complaint, as prepared by the prosecuting officer. If in good faith a prosecution is commenced, and an offense so stated that the defendant is advised ■of the character of the complaint against him, the fact that there may be some technical omission, or that the complaint lacks absolute completeness, ought not to be sufficient to sustain an action for false imprisonment. Hence, we conclude that the ruling of the district court, so far as the cause of action was for false imprisonment, was correct. (Outlaw v. Davis, 27 Ill. 466; Von Kettler v. Johnson, 57 Ill. 109; Goodwin v. Stephens, 63 Ind. 112; Ressler v. Peats, 86 Ill. 275; Murphy v. Walters, 34 Mich. 180; Redmond v. The State, 12 Kas. 172; Johnson v. Maxon, 23 Mich. 129.)
Passing now to the charge of a malicious prosecution, if in that we accepted the court’s statement of its findings and the reasons therefor as full and correct, we should be compelled to reverse its ruling. In passing upon the demurrer, the judge said that he was of the opinion that there J ° , , . r , . .. was n0 probable cause, and upon the question or . malice that there was some testimony bearing directly upon this question, and after referring to the statements of the defendant, inquires how they shall be construed — whether as indicative of malice, or simply as showing a mistake, and then goes on to say that he has known the defendant a long time, knowing him to be a good citizen — peaceable, not contentious, considerate, and careful; that if the defendant were a stranger, he would leave the question of malice to the jury; but having known the defendant for years, he could not impute malice to such a man, and that if the jury, upon the testimony, found against him, he should not feel warranted in sustaining the verdict, and therefore felt compelled to sustain the demurrer. Now if we accept this statement as correct, obviously the court erred; for if there was no probable cause and there was testimony bearing directly upon the question of malice, then the case should have gone to the jury for its verdict; and the court may not interpose its personal knowledge either to prevent such verdict or to set it aside. Every party must go into court as though he were a stranger to the court, and as though it had no knowledge of his character or disposition. Thus, and thus only, can all parties stand alike and receive equal justice in the administration of the law. If the testimony leaves an open question as to whether the defendant was actuated by malice or not, the jury was the tribunal to determine that question; and while the court may interpose to set aside a verdict, and ought to do it if not fairly sustained by the testimony, yet it may not interpose its personal knowledge, either to withhold the question from the jury or to disturb the.conclusion to which that jury has arrived. Counsel for defendant in error recognize this fact, and have filed an elab- . rate brief and made a strong argument to show that the court, was mistaken when it said that there was no probable cause. In order to obtain a clear understanding of this argument and these claims, a brief statement of the facts-is essential. It appears that the plaintiff was the owner of á tract of land near the borders of which was growing a large cottonwood tree. The tract adjoining belonged to one Clark, a resident of Illinois, and had been for years under the care and charge'of his-brother-in-law, one R. H. Bishop, a resident of Salina. This cottonwood tree, which was a large and conspicuous one, was supposed by Mr. Bishop to be on the land of which he had the charge, while in fact, as examination made subsequent to the commencement of the criminal action showed, it was upon the land of Schippel. J. I. Norton, a millwright in Salina, also supposing that this tree was on the land of Clark, went to Mr. Bishop and purchased it. Having purchased it, he placed his son, and the plaintiff, a hired man in his-employ, at work cutting it down and cutting it up into cord wood for family use. They went in broad daylight and cut. the tree down, were at work two days in cutting it down and cutting it into cord wood, and had hauled some of it to-the house of Mr. Norton. The third day, while still at work on the tree, Mr. Schippel came up and demanded by what authority they were cutting his timber. They told him that. Mr. J. I. Norton had purchased it from Mr. Bishop, and that, they were cutting it down for him. Some words ensued, and Mr. Schippel left, saying that he was going to the city to have them prosecuted for cutting his timber. The young men immediately quitted work and hunted up Mr. J. I. Norton, and told him of what Mr. Schippel had threatened. In the meantime Mr. Schippel had been to Salina, gone to the office of' the county attorney, had a complaint written out, and with Mr. Clawson, an attorney in the office of the county attorney, had started after a justice of the peace to institute this prosecution. While in the office of the justice, and before the filing of any complaint, Mr.- J. I. Norton came in and stated. the facts; whereupon the attorney said that that placed the matter in a different light, and left the office. No prosecution was then commenced. Mr. Bishop, also, who was a justice of the peace in Salina, saw Mr. Schippel and informed him as to the facts. Both Mr. Norton and Mr. Bishop insisted that the tree was on the land of Clark, but told Mr. Schippel that if it was on his land, he could have the five dollars for which the tree had been sold. Thus the matter rested during this day, but some days after Mr. Schippel filed an affidavit, caused a warrant to be issued, and the plaintiff to be arrested. The ■case went to trial; but an objection having been sustained to the introduction of testimony, the county attorney dismissed the action, and plaintiff was discharged from custody. Now counsel for defendant in error insist that the court was mistaken when it ruled that there was no probable cause of action shown, and for three reasons: They say, first, as a matter of fact, the tree was upon Schippel’s land; that therefore, irrespective of any question of intent or of knowledge on the part of plaintiff that the tree was on Schippel’s land, the •offense prohibited by the section of the statute was committed; ■second, that Mr. Bishop had no right to dispose of timber on the Clark land, and both he and J. I. Norton knew it; that the supposed purchase would give no right to cut the tree down, even if it had been on Clark’s land, and that Schippel was not bound to take these statements of Bishop and J. I. Norton as satisfactory explanation of the acts and •conduct of the plaintiff; and third, that there was no pretense of purchasing more than the one large cottonwood tree, and that as a matter of fact the plaintiff and Norton’s son cut ■down at least one other tree and carried it to the house of Mr. J. I. Norton.
In support of the first proposition, counsel cite a large number of cases in which the absence of a criminal intent on the part of the defendant was held no excuse, as in the case of the sale of adulterated milk, (Commonwealth v. Smith, 103 Mass. 444;) as in the case of selling liquor to minors, (Jamison v. Burton, 43 Iowa, 282; McCutcheon v. The People, 69 Ill. 601;) though contra, Miller v. The People, 3 Ohio St. 475. It is unnecessary to review these authorities, or consider how far they rest upon sound principles; for the case at bar does not come within the scope of any of these decisions, or within the reach of the principles upon which they are supposed to rest. The rule, as deduced from the authorities, is thus stated in 3 Greenleaf on Evidence, § 21:
“Ignorance, or mistake of fact, may in some cases be ad • mitted as an excuse; . . . this rule would seem to hold •good in all cases where the act, if done knowingly, would be ■malum in se. But where a statute commands' that an act be •done or omitted, which, in the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems, will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods on board, and such goods are secreted on board by some of the ■crew, the owner and officers being alike innocently ignorant of the fact, yet the forfeiture is incurred, notwithstanding their ignorance. Such is also the case in regard to many other fiscal, police, and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law, in’ these •cases, seems to bind the party to know the facts, and to obey the law at his peril.”
But the act charged against the defendant in the criminal, •case was an act which, independent of the statute, is wrong. It involved moral turpitude. It was malum in se, as well' as malum prohibitum. To go upon a man’s farm and steal his horse and carry it off involves no more moral turpitude than to go upon the same farm, cut down his timber and carry it •off. In either case, it is a wrongful appropriation of another’s property; and whether it be classified by the statute as trespass -or felony, it is inherently a wrong and essentially •dishonest act. The section is not a mere police regulation, ' like requiring a party, tinder penalty, to keep the sidewalks in a city clean; but it is an act for the protection of property against the depredations of a wrong-doer. In such a case, a knowledge of the wrongful character of the act is essential to the commission of an offense under the statute. If one or two neighbors, acting in good faith, and in an honest mistake as to the true boundary-line, should cut down timber on what he supposed was his-own land, it would be harsh indeed, if he could thereafter, on the running of the survey and the establishment of the true boundary line, be held liable to criminal prosecution and punishment as a wrong-doer in cutting down such timber.
The case comes within the rule as laid down in 3 Green-leaf, §13:
“Another cardinal doctrine of criminal law, founded in natural justice, is, that it is the intention with which an act was done, that constitutes its criminality. The intent and the act must both concur, to constitute the crime. Actus nonfacit reum, nisi mens sit rea.”
The second reason given by counsel fails also with the first. It matters not that Mr. Bishop may not have had absolute-authority to make the sale of trees growing on the Clark land. It is enough that he supposed that-he had such authority, and, acting in good faith, sold the tree to Mr. Norton. For in that event, there was neither criminal intent nor knowledge on the part of Norton or his employés. They were doing what they supposed they had a right to do — taking possession of timber which they- had purchased from one known to represent the owner, and claiming the authority to sell it.
In reference to the third reason, the testimony disclosed these facts: While the criminal complaint which was filed charged the cutting and carrying away of five trees, the testimony adduced by plaintiff showed that, in addition to the cottonwood tree which had been purchased, plaintiff and young Norton cut nothing else except a small hackberry, some five or six feet in height, the top of which had been broken off, and which stood in the way of their getting at the cottonwood. Now whether the cutting down this hackberry was an act of which Clark could have complained, providing the tree had stood upon his land, as was supposed, is immaterial; for it was all done in pursuance of supposed authority from the supposed owner, and certainly implies no criminal knowledge as against Mr. Schippel, or any criminal intent to deprive him of his property. "We think, therefore, that none of the reasons given by counsel is sufficient, and that the district court was right when it said that upon the testimony presented there was.no probable cause. For certainly if these parties, acting in good faith, and under authority r ° ° J from the supposed owner, were cutting down this ■ timber,- there was no criminal intent or criminal knowledge in their acts. In reference to the question of malice, we also think the district court was correct in ruling that there was testimony bearing directly upon the question of malice; and, as we have said before, if there was such testimony, it presented a question which must go to the jury for their determination. It follows from these considerations that the district court erred in its ruling, and that the judgment must be reversed, and the case remanded with instructions to grant a new trial.
In conclusion, we may say in reference to the general ques- • tions involved in this ease, that no unreasonable restrictions should be placed upon honest prosecutions for supposed criminal offenses; that those who have knowledge of the commission of crime, or have good reason to suspect the commission of crime, should not be deterred from making complaint thereof through fear of subsequent personal liability. And on the other hand, it is equally necessary for the protection of the liberty of each citizen, the preservation of his good name and reputation, that when it is perfectly clear that there was no criminality in his acts, he should not be burdened with the load of a criminal prosecution. We know none of the parties involved in this transaction; nothing of their character or reputation in the community. If it be true, as Mr. Schippel states, that he had suffered from previous depredations upon his timber, he had a right, when acting in good faith, to commence criminal prosecutions against any party whom he had good reason to believe was guilty of such depredations. On the other hand, the fact that he had previously suffered from the wrongful acts of some persons unknown, would not justify him in commencing a criminal prosecution against parties who were in fact innocent of crime, and whom he must, acting as a reasonable man, have believed to be innocent. It is doubtless true, as counsel say, that a party is not bound to believe an apparent wrong-doer innocent of crime because another party says he is innocent, for such other party may himself be equally culpable, or may be simply seeking to shield the wrong-doer; but a party, on the other hand, may not unreasonably disbelieve the statements of citizens of recognized character and reputation. Now whether Mr. Bishop and Mr. J. I. Norton were men whose standing and reputation in the community were so well established, so well known to Mr. Schippel as well as to others, that he ought to have accepted those statements as true, is a question which, under the Full light oF all the testimony that may be offered, must be submitted to a jury. If there was anything in that standing or reputation; anything in their statements or conduct; anything in the acts or statements of the plaintiff in this case which justified Mr. Schippel as a reasonable man in discrediting the explanation, and in believing that the parties were in fact guilty of the crime, then it may be that he was justified in his insisting upon the prosecution ; but if everything was such that he ought to have credited the explanation as satisfactory, he was not justified in prosecuting innocent men on the ground that he had previously suffered from the wrongs of guilty ones. That is not the way to make examples, ot deter from crime. It is of course well settled, that to sustain an action for a criminal prosecution, both malice and want of probable cause must be proved; (Malone v. Murphy, 2 Kas. 250;) but if both these existed, and the jury are satisfied from the testimony that both did exist, the plaintiff was entitled to a verdict.
The judgment will therefore 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
Horton, C. J.:
The defendant insists that in the proceedings in the trial there were errors as follows:
1. In overruling the plea in abatement to the information, and- sustaining the demurrer thereto.
2. In overruling the motion of the defendant to compel the county attorney to elect whether he would prosecute the defendant for selling or for bartering the liquors set out in the information.
3. In overruling the motion of the defendant to compel the-county attorney to elect what specific kind of liquor he would prosecute the defendant for selling.
4. In overruling the motion of the defendant to compel the county attorney to set out in the information the names of the persons to whom it was claimed the defendant sold the liquors.
5. In overruling the motion of the defendant to quash the information.
6. In overruling the objections of the defendant to the evidence of E. B. Jewett, and permitting the evidence of.the witness to go the jury.
7. In overruling the motion of the defendant for a new trial.
8. In rendering judgment against the defendant.
Of these several allegations in their order. Under the plea in abatement, the question is raised whether the clerk of the court can issue a warrant upon an information after it is filed, without the order of the court. Sec. 67, art. 6, ch. 82, p. 740, Comp. Laws of 1879, prescribes that informations may be filed during term time, or within twenty days preceding the term. It appears from the record that in this case the information was filed within twenty days preceding the term of the court, and therefore filed according to the terms of §§ 67 and 126, of art. 8, ch. 82, p.747, Comp. Laws 1879, which authorize warrants to be issued upon informations as soon as practicable after their filing.
Sec. 135 of art. 9 of said ch. 82 provides that when the court has failed to fix the amount of bail, or there is no judge in the county, the clerk may fix the amount of bail. On the 24th of September, 1881, the clerk certified upon the back of the warrant that no order had been made by the district court of Sedgwick county for bail in the case, and that there was no judge of said court in the county of Sedgwick, and therefore such clerk fixed the amount of bail at the sum of $500. Construing the various sections cited together, we perceive no impropriety in the action of the clerk in issuing the warrant upon the- information so soon as it was filed, and therefore conclude that the warrant issued, under which the defendant was arrested, was valid and legal in all respects.
The second and third errors charge substantially, that the information was defective for duplicity, and that the court be low ought therefore to have compelled the county attorney to elect whether he would prosecute for selling or for bartering liquors, and also to compel him to elect the specific kind of liquor the defendant was to be charged with selling or bartering. The second and third assignments are untenable. The rule is well settled, that where the statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons, and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting all together but one offense. In such cases, the several acts are construed as so many steps or stages in the same affair, and the offender may be informed against as for one combined act in violation of the law, and proof of either of the acts mentioned in the statute and set forth in the information will sustain a conviction. (Byrne v. State, 12 Wis. 577.) In Chitty’s Treatise on Criminal Law, vol. 1, p. 54, it is stated:
“In the case of misdemeanor, the joinder of several offenses will not in general vitiate the indictment in any stage of the prosecution. For in offenses inferior to felony, the practice of quashing the indictment, or calling on the prosecutor to elect on which charge he will proceed, does not prevail. But on the contrary, it is the constant practice to receive evidence of several libels and assaults upon the same indictment. It was indeed formerly held that assaults on more than one individual could not be joined in the same proceeding; but this is now exploded.”
In State v. Woodard, 25 Vt. 616, it was held under a statute which makes it an offense to sell or furnish intoxicating liquors, either selling or furnishing constituted a separate and distinct offense; yet as the penalty for each offense was the same, that both offenses might be charged in one count, and should be charged in the conjunctive. In Barnes v. State, 20 Conn. 232, the defendant was charged as follows, to wit: “ Did sell, and did offer to sell, by himself and by an agent, wines, spirituous liquors, and other intoxicating beverages.” The defendant claimed the information bad — first, for duplicity, in charging two distinct offenses; second, for uncertainty; and third, for repugnancy, in that the sale could not be made by the defendant himself, and by another as his agent: and yet the court held the objections not well taken. In Commonwealth v. Eaton, 15 Pick. 273, au indictment which alleged that the defendant “did unlawfully offer for sale, and.did unlawfully sell, a lottery ticket,” was held good on demurrer. So an indictment which averred that the defendant did write and publish, and cause to be written and published, a malicious libel, was held not bad for duplicity. (2 Gabbett Cr. Law, 234; 3 Chit. Cr. Law, 4th Am. ed., 877, et seq.)
A statute in Massachusetts prohibited the setting up ov promoting certain exhibitions therein .mentioned, without license therefor; yet in Commonwealth v. Twitchell, 4 Cush. 74, it was held that an indictment alleging the defendant did set up and promote a prohibited exhibition, did not make the indictment objectionable for duplicity, as it charged only one offense.
Under the excise law of Wisconsin, declaring that if any person shall vend, sell or in any way deal or traffic in, or for the purpose of evading the statute, give away any spirituous, ardent or intoxicating liquors or drinks, in any quantity whatsoever, without first having obtained license therefor according to the provisions of the statute, he would be deemed guilty of a misdemeanor, and on conviction thereof be punished by fine or imprisonment as therein provided. A complaint filed, charging in the words of the statute, that the defendant “did vend, sell, deal and traffic in and give away spirituous and intoxicating liquors and drinks, namely, rum, gin, brandy, &c., in quantities less than one gill, without having first obtained a license therefor according to law,” was objected to as bád for duplicity, because the several acts named in the statute, if charged separately, would each constitute a distinct offense. The objection was overruled, the court holding that an indictment in such a case may pursue the language of the statute, charging the commission of the several acts conjunctively as constituting all together one offense. (State v. Bielby, 21 Wis. 206. See also upon this point the following authorities: Osgood v. People, 39 N. Y. 449; State v. Flint, 62 Mo. 393; State v. Fitsimmons, 30 Mo. 236; Barnes v. State, 20 Conn. 232; Shaffer v. State, 20 Ind. 191; State v. Wickey, 54 Ind. 438; State v. Wickey, 57 Ind. 596.)
Under the fourth assignment of error it is urged that the court ought to have compelled the county attorney to set out in the information the names of the persons to whom it was claimed that the liquors were sold. The statute of 1881, prohibiting the manufacture and sale of intoxicating liquors, except for certain purposes, contains among others the following section:
“In- all prosecutions under this act, by indictment or'otherwise, it shall not be necessary to state the kind of liquor manufactured or sold, but shall be necessary to describe the place where sold, and it shall not be necessary to state the name of the person to whom sold; and in all cases the person or persons to whom such intoxicating liquors shall be sold in violation of this act, shall be competent witnesses to prove such fact, or any other fact tending thereto; and the members, shareholders or associates in any club or association mentioned in section sixteen of this act shall be a competent witness to prove any violation of the provisions of said section, or of this act, or of any fact tending thereto.”
It is asserted that this section (§21, p. 243, Laws of 1881) is unconstitutional and void because not embraced within the title of the act, and even if otherwise valid, that the provision therein that it shall not be necessary to state the name of the person to whom liquors were sold is in contravention of the letter and spirit of section 10 of the bill of rights of the constitution of this state. Counsel refer to the decisions of McLaughlin v. State, 45 Ind. 338; Young v. State, 47 Ind. 150; State v. Baker, 50 Ind. 506; State v. Doyle, 16 R. I. 574; Wilson v. State, 14 Bush, 159; Commonwealth v. Thurlow, 24 Pick. 374; Commonwealth v. Trainor, 123 Mass. 414, and also the case of State v. Barrett, ante, p. 213, as decisive of the proposition. It has not been unusual for the legislature of this state to enact similar provisions in other statutes, with no broader title. In an act approved February 23,1867, en titled “An act to prohibit the sale of intoxicating liquors in the unorganized counties of the state of Kansas,”. (Gen. Stat. 1868, p. 386,) a section was inserted prescribing:
“ That upon the trial for this offense it shall not be necessary to state either the kind or the character of the liquor alleged to have been, sold, bartered or given away, but it shall be sufficient if said indictment allege the liquor so sold, bartered or given away was intoxicating.”
In the act of March 3, 1868, entitled “An act to restrain dramshops and taverns, and to regulate the sale of intoxicating liquors,” it was prescribed:
“In all prosecutions under this act, by indictment or otherwise, it shall not be necessary to state the kind of liquor sold, but shall be necessary to describe the place where sold; and for any violation of the third or fourth, sections it shall not be necessary to state the name of any person to whom sold, and in all cases the person or persons to whom intoxicating liquors shall be sold in violation of this act shall be competent as witnesses to prove such fact, or any other tending thereto.”
In the act of March 5, 1875, entitled “An act to provide for the removal of public officers who are guilty of being intoxicated, or of gambling,” it is, among other matters, prescribed, that if any state, district, city, county or township officer of this state for whose removal from office by impeachment there is no provision, shall in any public place within the state be in a state of intoxication produced by strong drink, voluntarily taken, such officer on conviction thereof shall be adjudged to have forfeited his office, and such office shall thereupon be declared vacant. And in §4 of said act the style of the action is stated, and the manner of proceeding set forth at considerable length. In Werner v. Edmiston, 24 Kas. 147, we held that §§ 9 and 10 of the dramshop act of 1868 are not unconstitutional or void on the ground that said sections named certain conditions upon which a person might sell liquor under that act. In Woodruff v. Baldwin, 23 Kas. 491, we held that art. 17 of the code of criminal procedure, which provides for the appointment by the probate court of a trustee of the estate of a convict imprisoned in the-penitentiary to be valid, although that section was challenged very strenuously as in conflict with § 16, art. 2 of the constitution. In the City of Eureka v. Davis, 21 Kas. 578, it was urged that § 2 of ch. 86, Laws of 1868, which prescribes that the list of adults provided for in § 1 of said chapter is conclusive as to the number thereof in certain cases, is unconstitutional because the subject-matter thereof is not expressed in the title of the act. We held that this section is not outside of the scope of the title, or foreign to it.
Now, in reference to said §21 of said ch. 128, the title of which act is “to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,” the act makes it unlawful for-any person to manufacture, sell or barter intoxicating liquors, without compliance with its provisions; provides the penalty for persons violating its terms, and then alleges in said § 21 that in all prosecutions under the act it is not necessary tosíate the name of the person to whom the liquors are sold. All objections to the validity of the latter provision are fully embraced in the argument of the court, in the case of the City of Eureka v. Davis, supra, and we hold, as we held in that, that to require every end and means necessary or convenient for the accomplishment of the general object of a law, to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible. The provisions of §21 are important and necessary for the enforcement of the act of which they form a part, and a person examining to ascertain the proceedings for the enforcement of the penalties for the unlawful manufacture and sale of intoxicating liquors, would be more likely to examine for the provisions set forth in § 21, under the title of that act, than to consult criminal procedure, or some separate act relating solely to evidence or procedure, in view of the fact that the provisions therein named are applicable only in the prosecutions under the act prohibiting the manufacture and sale of intoxicating liquors.
Said § 21 has no application to the procedure or evidence in criminal prosecutions generally, but is confined by express terms to prosecutions under the act of which it is a part, and we do not think it is so foreign to the act as to conflict with the terms of the state constitution. In State v. Barrett, ante, p. 213, sec. 19 of said ch. 128 was held by us to be void,, upon the ground as not embraced in the title of ch. 128; but. that section is separate and independent from all the other provisions of said chapter, and, as construed by us, has no-connection whatever with the prohibition of the manufacture and sale of intoxicating liquors. Said §19 stands so independently by itself that it may be rejected, and yet leave-those portions of the act which remain so complete in themselves as to be capable of execution, and the act may be construed the same as if §19 had not béen inserted.
Within the great majority of the authorities the provisions of said §21 do not conflict with §10 of the bill of rights of our constitution. In the case of The State v. Becker, 20 Iowa, 438, it was decided, Dillon, J., delivering the opinion of the court, that where an individual, under § 1564 of the revision of 1860 of the laws of Iowa, was charged with keeping intoxicating liquors for sale, and with selling the same, that it was not necessary in such an indictment to set out the name of the person to whom the liquor was sold. In the ease of Myers v. People, 67 Ill. 503, the information charged one Baltis Myers, without having first obtained a license to keep a grocery, with having sold a certain quantity of intoxicating liquor to be drank in, upon and about the building or premises where sold, and the court held that it was unnecessary to state in the information the name or names of the person or persons to whom the liquor was sold. Again, in State v. Bielby, supra, it was objected that the complaint was insufficient because it did not specify the names of the persons to whom the liquor was sold. Chief Justice Dixon, in speak ing for the court, said that “this was unnecessary. The offense complained of worked no injury upon the individual rights of the person to whom the sale was made, and none was supposed to have been violated; and hence the designation of such person by name is in no way material to constitute the offense.” See also State v. Gummer, 22 Wis. 422; Osgood v. People, supra; State v. Becker, 20 Iowa, 438; State v. Parnell, 16 Ark. 506; State v. Spain, 29 Mo. 415; State v. Ladd, 15 Mo. 432; State v. Jaques, 68 Mo. 260; Cannady v. People, 17 Ill. 158; Rice v. People, 38 Ill. 435; Kern v. State, 7 Ohio St. 411; Hellett v. State, 41 Tex. 220.
In this connection, in view of our general discussion óf thé sufficiency of informations under the prohibitory act of 1881, »it may not be out of place for us to say that where the information contains but one count — that is, where a defendant is charged with one single misdemeanor, with one specific criminal act only — a single issue is formed which it is the province of the jury to determine according to the evidence-under the instructions of the court. But the court in its discretion may permit the.prosecutor, after offering evidence of a particular offense which would sustain the charge in the information, to offer also evidence tending to prove several other distinct substantive offenses; yet it is the duty of the court, upon motion after all of the evidence of a number of distinct offenses has been introduced, to require the prosecutor, before the defendant is put on his defense, to then elect upon what particular transaction he will rely for a conviction. (State v. Smith, 22 Vt. 74; Stockwell v. State, 27 Ohio St. 563.) The conclusions which we have already reached require us to hold that the information is not defective, and therefore that the fifth assignment of error was properly overruled.
The sixth objection goes to the question of the competency of the evidence of E. B. Jewett. It is urged that as the information charged the defendant with bartering and selling intoxicating liquors without having a permit therefor, that it was incumbent upon the prosecution to prove that the defendant had no permit, and that this proof must have been by competent evidence. We fully agree with counsel in this regard. In our opinion, no material averment in an information which is denied by the defendant is taken as true, but it must be'proved in some manner by the prosecution. (Territory v. Reyburn, McCahon, p. 134; State v. Kuhuke, 26 Kas. 405.)
In this case, however, we think that the prosecution produced competent evidence, at least sufficient to make out a prima-,facie case, that the defendant had no permit to sell intoxicating liquors. The principal objection to the testimony introduced upon this point seems to be that Jewett, the probate judge, did not produce the journal of the probate court to prove that no permit had ever issued. It is said it should have been shown that he had examined the journal of the court before being permitted to testify that no permit had issued.
From the testimony of Jewett, it appears that at the time ■of the trial he had been the probate judge of Sedgwick county for five or six years; that he knew the defendant; that he •had never issued any permit to him to sell intoxicating liquor or liquors of any kind. The prohibition act casts the duty respecting permits upon the person holding the office of probate judge, not upon the probate court, although incidentally the court is mentioned, and although the act requires such permit to be of record upon the journal of the probate court, yet no permit can issue without the act of the probate judge; and where no permit at all has issued, it would seem to us the statements of the probate judge that he knew the defendant and that he had never issued to him any permit to sell intoxicating liquor or liquors of any kind would be prima Jade evidence that the defendant had no permit. If no permit had been issued, there was no entry of it to be examined and no record of it to be produced. Of course such evidence is not by any means conclusive. The defendant might in answer thereto produce his- permit if one had ever been issued to him, or, if it had been lost, he might require the journal of. the probate court to be produced to show that a permit had in fact issued.
The seventh and eighth assignments of error are involved and disposed of already in the matters discussed, and these-assignments must also be overruled.
The judgment of the district court will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On May 12, 1878, a judgment was rendered in the district court of Clay county, in favor of William Silver and against the Junction City & Fort Kearney railway company, for $700 and costs. Whether the district court had jurisdiction to render such judgment* or not, is the only question now presented to this court. This question was raised in the district court at the time when the judgment was rendered, in the following manner: As soon as the judgment was rendered, the defendant, by its attorney, Charles Monroe, made the following motion, to wit:
“Now comes the defendant, for the purpose of this.motion only, and moves to set aside and vacate the judgment heretofore rendered in this cause, for the reason that the same is void because rendered without jurisdiction.”
This motion the court below overruled, and the defendant duly excepted. Afterward, to wit, ou March 22, 1881, the defendant brought the case to this court on petition in error. The defendant again raises the question of jurisdiction in this court. It alleges in its petition in error, among other things, as follows:
“1. That the said district court had neither jurisdiction of the plaintiff in error, nor of the subject-matter in the petition of said Silver mentioned.
“2. The said court was without any jurisdiction to make any finding in the cause, and erred in rendering any judgment against the plaintiff in error, the Junction City & Fort Kearney railway company.”
The transcript filed with and attached to the petition in error was duly certified to by the clerk of the district court to be “ a true and correct and complete transcript of the proceedings had in the within entitled cause in said district court.” The defendant in error, Silver, however, claimed that this transcript was not a true and correct and complete transcript, and procured another, which he filed in this court on October 4,1881. This subsequent transcript is also certified to by the clerk of the district court “to be a true, full and complete transcript of all the papers and records in the therein entitled cause, as the same remains in my [his] office.” The two transcripts are substantially the same; but for the purposes of this case, and by the consent of counsel on both sides, the last one filed will be considered by this court as the true and correct one. We probably now have a full and complete transcript of every paper, record and proceeding which can be procured which will show or tend to show that the district court had jurisdiction to render the judgment complained of. We probably now have a full and complete transcript of every paper, record and proceeding having any connection with this case from its earliest beginning down to the present time; and yet we do not find anything that shows or tends to show that the district court had sufficient jurisdiction to render the judgment in question.
On September 28,1877, the case was first instituted in the district court, as appears from the record now before us. On that day the plaintiff below,- Silver, filed his petition and precipe, and procured a summons to be issued. This summons was not served, however, upon any agent of the railway company, but was served upon another person, a stranger to the company; and afterward, on a special motion of the railway company, such service was set aside. Afterward the plaintiff, Silver, with leave of the court, filed another petition; and afterward, on December 1, 1877, served a eopy of the order of the court granting, the plaintiff leave to file the second petition, upon the counsel for the railway company; and on May 12,1878, judgment was rendered in favor of the ‘plaintiff, Silver, and against • the railway company, as aforesaid. The railway company made no appearance in the case at any time, except the said special appearance to contest the jurisdiction of the court by moving specially to set aside the supposed service of the summons upon the railway company, and the said special appearance to move the court to set aside the judgment rendered against the company because of a want of jurisdiction in the court to reuder such judgment. The motion to set aside the service of summons was made on October 22, 1877; and the motion to set aside the judgment was made on May 12,1878, the same day on which the judgment in controversy was rendered.
The judgment rendered in this case purports to be a judgment rendered in condemnation proceedings; and a transcript of certain papers on file in the county clerk’s office, which at some time were filed in this case in the office of the clerk of the district court, is referred to as tending to show that the district court obtained j urisdiction to render the judgment in this case by virtue of such condemnation proceedings. This transcript from the county clerk’s office appears to be a transcript of proceedings had to condemn the right of way for the Junction City & Fort Kearney railway company, over about forty different tracts of land, belonging to from twenty-five to thirty different persons; but there is nothing to show that these condemnation proceedings were instituted by the railway company, or that the railway company was a part to them, or .even that it had any notice of them. It does not appear that these condemnation proceedings were had by the county commissioners; but on the contrary, it would seem that they were had by certain special commissioners. But by whom these special commissioners were appointed, or how they came to be appointed, is not shown. These special commissioners, in making their report, recited, among other things, as follows:
“We, the undersigned, M. H. Ristine, S. E. Brown, and M. B. Camp, commissioners, heretofore appointed to condemn and assess a right of way for "the J. C. & Ft. Kearney R. R., met at Clay Center,” etc.
This is all there is in the condemnation proceedings, or elsewhere, to show that the commissioners acted under any appointment at all, and this does not show whence the appointment came. There is nothing appearing in the whole case to show that these commissioners were appointed by the judge of the district court, and certainly nothing to show that the railway company had any notice of their appointment. If they had been appointed by the judge of the district court, there would certainly be some record evidence, or at least some written evidence, of the fact. But there is no such evidence of the fact to be found in this case; and, as before-stated, no evidence tending to show that the railway company had any notice of their appointment. It is true, that the plaintiff in his petition in the district court alleged, “ that the said appraisement was at the instigation of the defendant herein, and was for-the purpose of condemnation and appropriation of said strip of land,” etc.; but there was no legal service of any summons made upon the defendant, requiring it to take notice of the allegations of this petition, and nothing to show that the railway company was already in court; and hence none of the allegations of the plaintiff’s petition can be taken as true as against the railway company.
As before stated, there is nothing in the whole record tending to show that the district court had jurisdiction to render the judgment in controversy, and a judgment rendered without jurisdiction is void.
The order of the court below, overruling the motion of the defendant below to set aside and vacate the judgment, will therefore be reversed, and the cause remanded with the order that said motion be sustained.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The counsel for plaintiff in error contend that the petition does not state facts sufficient to constitute a cause of action; that the sum mentioned in the contract sued on should be considered as a penalty only, and not as liquidated damages; and finally, that the judgment should have been for defendant below instead of plaintiff, because the special findings show that the St. Louis, Wichita & Western railway company never ran any trains over or operated the railroad upon the lands of plaintiff below, and as the contract was that the fence, crossings and cattle-guards were to be built by the time such trains were run by the company, therefore no judgment could be rendered. Further, as said special findings show that the consideration for the contract was the right of way for the St. Louis, Wichita & Western railway company through the lands of plaintiff below, the connection of plaintiff in error therewith was wholly without consideration.
Before discussing these questions, we ought, we suppose, to dispose of the objections of defendant in error to any consideration of the case. It is’ urged, under the assignments of the petition in error, that nothing is reviewable upon the record. We think otherwise. Plaintiff in error filed a motion for a new trial in the court below, and among other grounds therein alleged were the following: “That the general verdict is contrary to law.” “Because of excessive damages found by the jury, and appearing to have been given under the influence of passion and prejudice.”
These grounds brought before the trial court the question of the sufficiency of the petition, because if such petition states no cause of action, no verdict could be given and no judgment rendered thereon, and also called to the attention of the court the question, whether or not the damages were in excess of the allegations of such petition. But even if the attention of the court below had not been directed to the alléged defects-in the petition, it would be competent for this court to examine such petition, to ascertain whether it stated sufficient facts to constitute a cause of action. Any error apparent in the final judgment of a district court may be corrected by suit in error in this court, although no exception was taken thereto by the party complaining, and no motion made to set aside the-judgment. (Dexter v. Cochran, 17 Kas. 447, and the cases there cited.)
As the case is now before us, the petition is to be lib •erally construed, and as the petition alleges that the St. Louis & San Francisco railway company, under and by the name of the St. Louis, Wichita & Western railway company, constructed the road over the premises of the defend-’ ant in error, we may assume for all the purposes of this case that the St. Louis & San Francisco railway company was the successor of the St. Louis, Wichita & Western railway company. The special findings are not inconsistent with this assumption. They find among other matters, that A. J. Allen had authority to bind the St. Louis & San Francisco railway •company, and that the consideration to such railway company for the contract, was the right of way through the lands •described in such agreement. If the St.’ Louis & San Francisco railway company was the successor of the St. Louis, Wichita & Western railway company, the running of the regular trains of the former road made such company liable under the agreement to build and complete the fences, crossings and cattle-guards mentioned in the agreement, by the time that such regular trains ran on the road through the premises of defendant in error. Therefore the petition states facts sufficient to constitute a cause of action, and defendant in error was entitled to judgment.
The second proposition, that the sum mentioned in the contract sued on should be construed as a penalty only, and not as liquidated damages, presents some difficulty. Upon like •questions, courts have differed greatly. The decisions are numerous, but they are neither uniform nor consistent, and it would be a waste of time to examine them in detail, or to attempt to show that they are harmonious.
In the agreement, the railway company obligated itself to build a lawful fence on each side' of the railway track, and to construct a crossing with cattle-guards on each of the eighty acres through which the railway was to be operated. Upon default in so doing, it agreed to forfeit and pay one thousand dollars. It is said in some of the cases that the doctrine of liquidated damages ought never to apply to a case which admits of partial performance. This perhaps is too strong a statement of the law, but if a contract consists of several stipulations, the breach of each of which is capable of accurate valuation, then the sum mentioned in the contract is-to be construed as a penalty, and not as liquidated damages. The petition alleges that the plaintiff below was damaged in-the sum of five .hundred dollars, and then adds that by reason thereof the agreement became forfeited and absolute. The agreement sued upon admitted of partial performance, and the breach of each stipulation on the part of the railway company was capable of accurate valuation; therefore, in our opinion-the sum named therein must be construed as a penalty, and not as liquidated damages. The judgment as rendered was excessive under the allegations in the petition, the actual damages averred therein being five hundred dollars only. A ^judgment in excess of that sum cannot be sustained.
The case will be remanded, with directions to the court below to enter judgment for five hundred dollars in favor of the defendant in error, if such party consents thereto; otherwise, the judgment of the district court will be reversed, and a new trial ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought originally before a justice of the peace, in Edwards county, by the plaintiffs in error against the defendants in error, to recover the sum of $250. Judgment was rendered before the justice of the peace in favor of the plaintiffs, and thereupon the defendants appealed to the district court. In that court a general demurrer was filed, alleging that the bill of particulars or petition did not state facts sufficient to constitute a canse of action. The court sustained the demurrer, and rendered judgment against plaintiffs for costs. The plaintiffs bring the case here.
The bill of particulars or petition alleged that in an action pending before a justice of the peace of Edwards county, in which plaintiffs herein were plaintiffs and one Nellie R. Hollenback was defendant, that there was attached in said action as the property of said Nellie R. Plollenback .the sum of $125 in money; that afterward Thomas Calnon was, upon the motion of his attorneys, Nelson Adams and J. C. Ellis, allowed to interplead and have a trial as to the rights of the property so attached; that upon the trial the justice was satisfied that the money attached belonged to the defendant Nellie R. Hollenback, and rendered judgment in favor of plaintiffs, against the said Nellie R. Hollenback, in thesum of $158, and for the costs therein, taxed at $16.20, and adjudged that the attachment be sustained and the money levied thereunder be disposed of in satisfaction of said judgment and costs; that the defendants J. C. Ellis and Nelson Adams, acting as attorneys for Thomas Calnon, filed with the justice of the peace an appeal bond, with the defendants as sureties thereon; that the bond was duly approved by the justice, and the appeal allowed by him, and the transcript certified and filed in the district court of Edwards county; that afterward, while the case was pending in the district court, upon the application of Thomas Calnon, by his attorneys Ellis and Adams, the judge of the district court of the ninth judicial district, by writ of mandamus, commanded that the property so attached, to wit, $125 in money, be paid over to said Tilomas Calnon or his attorneys, pending such appeal; that the money under said order was paid over to J. C. Ellis and Nelson Adams; that afterward, upon the motion of Thomas Calnon, the appeal in the district court was dismissed, and all the papers relating thereto stricken from the files of the court; that both Nellie R. Hollenback and Thomas Calnon, were each of them, at the time of the commencement of the action- before the justice, and have ever since been, non-residents of Edwards county, and were then and have ever since been wholly insolvent, and were without any property of any sort subject to-levy; that an execution was issued by the justice of the peace against Nellie R. Hollenback, and returned by the officer indorsed “No property;” that the plaintiffs have been damaged by the said de- • fendants, by reason of the appeal bond, in the sum of $250. It does not appear from the petition, or the transcript of the justice, in the case of Edwards Brothers v. Nellie R. Hollenback, that, upon the trial' had at the instance of Calnon as to the right of the property attached, any judgment for costs was rendered against the claimant. The judgment against Nellie R. Hollenback was for $158, and the costs taxed at $16.20. The justice also adjudged that the order of attachment against Nellie R. Hollenback was properly issued; that the property attached was her property; and that it be disposed of according to law.
It is immaterial in the consideration of this case, whether the claimant proceeded before the justice under the provisions of ch. 164, Laws of 1872, or ch. 137, Laws of 1877; and it is immaterial whether an appeal would lie in the case or not. In any view, neither Calnon nor his attorneys were entitled to the possession of the property taken upon the attachment, by virtue of the appeal bond filed before the justice. We may assume that the possession of this money was denied to Cal-non and his attorneys by the justice, notwithstanding the appeal. As the case now appears to us, such decision was right.
It is alleged, however, that Calnon obtained from the judge of the district court a peremptory writ of mandamus, commanding the money to be paid over to him, or his attorneys. What the character of that proceeding was, and against what parties the peremptory writ was allowed, we are not fully advised. If it was against the plaintiffs in error, they should have excepted to the order and decision requiring the money to be paid over to Calnon, and then brought the case to this court for review. Such claimant was not entitled, by virtue of his appeal, or the filing óf his appeal bond, to the possession of the property attached pending the appeal. The „sureties in signing the bond of the claimant could not have anticipated that the money taken on attachment would be turned over to the claimant pending the appeal. If the writ of mandamus was awarded against the justice or the constable, and plaintiffs in error were not parties to the action, then they have a different remedy from proceeding against the sureties upon the appeal bond. As no judgment was rendered against Cal non before the justice of the peace for costs, and as it does not appear that any judgment was rendered against him in the district court for costs, his sureties are not liable for the value of the property attached, or for any costs or damages to plaintiffs under the terms of the bond. It is well settled, that the law will not increase or enlarge the terms of an undertaking to the prejudice of its signers, or create a liability against the sureties which they did not intend to incur, and which is not within the express conditions of the undertaking. (Hays v. Closon, 20 Kas. 120.) It seems gross injustice, under the allegations of the petition, that Calnon or his attorneys should retain the money taken on attachment; but we do not perceive that the sureties on the undertaking upon appeal can be made liable for such money by the terms thereof. The complications in the case seem to have arisen from the erroneous order of the district judge, pending the appeal, that the money taken on attachment be paid over to claimant or his attorneys. Of that order, however, at this time, upon the proceedings before us in the action, we have no control.
The judgment of the district court sustaining the demurrer to the petition must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the Pleasant. Hill Cemetery association against C. M. Hunt, for the recovery of $18. The defense of the defendant was, that he was the treasurer of the cemetery association, and entitled to the custody of its funds; and the only substantial question involved in the case or litigated in the court below is, and was, whether he was in fact such treasurer. Many minor and subordinate questions, however, are involved in this main and principal question. The case was tried by the court below without a jury, and upon the evidence introducd in the case the court made the following findings of fact and law, to wit:
“findings of fact.
“ 1. The plaintiff is a cemetery corporation, duly organized under the laws of this state. The defendant was one of its charter members, and appointed its treasurer. He accepted such appointment, but never filed the oath or bond of office, but acted as such treasurer, and as such had in his hands at the time of the commencement of this suit the sum of $10.25 of the money of said plaintiff, which he refused to turn over to his successor, though demanded by him. His only excuse or claim for not doing so is, that his successor is not and was not legally elected. A formal order was also drawn on the defendant, signed by the president and the secretary, to pay over the money in his hands to his successor.
“ 2. Said plaintiff, as a corporation, duly adopted a constitution and by-laws soon after filing and receiving the charter, March 15,1880, and had its proper corps of officers duly acting. By said by-laws the annual election for officers was established on the second Friday of February each year, at the neighborhood school house, and further provided that a majority of members present should elect.
“3. That prior to the 2d Friday of February, 1881, by an understanding among the officers and other members, the hour of 4 o’clock p. m. was set for the meeting. That day was a very bad, stormy day. The then acting president of the corporation, Aaron Bobbins, started to go to the meeting. On his way he called on the acting secretary, G. M. Smith, to go along. Mr. Smith said it was so stormy no one would be there, and he would not go down; that the meeting better be adjourned to some good day when the members could get out. Bobbins said he would go down and see. He went to the said school house a few minutes after -4 p. M. No one was there, and he saw no one of the members anywhere, other than Smith, as aforesaid. It was stormy, cold, and there was no fire. Mr. Bobbins went into the house, and thought to himself that he would adjourn the meeting for one week, at the same hour, and to the post office and store about 75 yards from the school house. He then left. He called on the secretary, Smith, on his way home, and told him no one was there; that he had adjourned for one week, at the same hour, to the store, and for him, Smith, to notify the members. Bobbins also notified all members he saw.
“4. On the next Friday the adjourned meeting was had, at the said place and hour adjourned to. No-one went to the school house, save the said secretary Smith. He found no •one there, and immediately returned to the post office. Less than a majority of the members of the association were present, but the meeting was held, the election of trustees and ■officers had in full — one Waters Chillson being appointed treasurer, as also elected trustee. The defendant, Hunt, was not present at the election. He came, but was too late. Said new set of trustees and officers duly qualified before commencing this suit, and each and all entered upon their respective duties as such, and have been acting up to this time — said Chillson being recognized as treasurer by all the trustees and officers, and by members and persons having business to do with that officer.
“5. The whole of said proceedings of election were fair .and reasonable, in which two factions- participated — one got beaten, and the other, won. No fraud is claimed, only irregularities. This defendant at first intended to acquiesce in it, but some began to think the meeting was not properly adjourned, or could not be adjourned — some that a majority of members should be present or no election should be had; and others, that persons voted that ought not to, and those were elected that ought not to have been. These suspicions, formed by old animosities, grew into big formed judgments, and the defendant was at length instructed, or at least advised, by some of the members not to give up his office. He then and has since refused to, and still holds all books and money of the office in his hands. Hence this law suit.
“6. That a record was then made by the then acting .secretary, Smith, of the adjournment of said annual meeting for one week, and of the meeting at that time, and the election of trustees and the appointment of officers.
“7. No provision was made by the constitution or bylaws as to what should be done in case the annual election should not be held on the said second Friday of February.
“8. The constitution and by-laws of plaintiff do not prescribe the duties of the different officers, nor have the duties of the treasurer been in any way specially defined. But the ■defendant purchased for the use of his office a very small pocket pass-book. It does not appear what, if any, entries have been made in it. Papers have been spoken of, but it does not appear what, if any, of these are in defendant’s hands. The charter, plat, deeds, blanks and record of proceedings seem to be in the hands of the secretary. There were but six lots sold while defendant was acting treasurer, and he received only $18 in all, while in office. The con ■dition of the treasurer’s records, if any, and of the property, are known to the officers; and this said pass-book, therefore, is of but little if of any value to the association. I take it nothing else of records or papers have been or are now in his hands; none of the officers have any office, but do their business, I suppose, at their respective residences.”
“conclusions op law.
“1. Waters Chillson is the treasurer de jure of plaintiff corporation; if not de jure, he'is defacto treasurer. The board of trustees appoint the treasurer. In appointing Chill-son, they have, in effect, removed Hunt. There is but one board of trustees — it is at least a de facto board — and it is not for the defendant to try their title to office in this proceeding, which he does by saying they had no right to appoint his successor.
“2. The plaintiff is entitled to recover of defendant the said amount of money in his hands, $10.25.” ■
As before stated, the only substantial question involved in this case is, whether the defendant, C. M. Hunt, was treasurer of the cemetery association at the time this suit was commenced. The cemetery association was organized in February, 1880, and C. M. Hunt was one of the charter members, and one of the directors or trustees, and acted as such director or trustee, and also as treasurer of the association, from the time of its organization up to the time when this action was commenced. The plaintiff in this action, however, claims that Waters Chillson was elected treasurer of the association in the place of Hunt, on February 18,1881; and this action wás commenced to recover the money which Hunt held in his hands, as treasurer of the association, so that such money might be turned over to Waters Chillson, the supposed successor in office of the defendant, Hunt.
We do not think that the action can be maintained. A civil action in the nature of quo. warranto is the only proper remedy in cases of this kind. (Braidy v. Theritt, 17 Kas. 471; Hussey v. Hamilton, 5 Kas. 462, 470; Presbyterian Society v. Smithers, 12 Ohio St. 248; Eaton v. Harris, 42 Ala. 491; Duane v. McDonald, 41 Conn. 517; Gumberts v. The Adams Express Co., 28 Ind: 181; Johns v. People, 25 Mich. 500.) Hunt was treasurer de facto, and until he delivered up his office to his successor was entitled to the custody of the funds of the association. Chillson was never the de facto treasurer of the association, and it is at least questionable whether he had any legal right to the office. His right or title to the office is founded upon a supposed election, held by the association on February 18,1881; but this was not the time fixed for the holding of such elections by the association. The regular time for holding such elections was on the second Friday of February, and that year on February 11, 1881. But it is claimed that this election of February 18,1881, was at an adjourned meeting of the regular annual meeting. But this-supposed adjournment was simply by Aaron Robbins, who-alone “thought to himself that he would adjourn the meeting for one week,” and to a different place than the one at which the election should be held, under the constitution and by-laws of the association. Mr. Robbins, although a charter member and director and president of the association, was not a lot-owner, and therefore it was at least questionable whether he was entitled to vote at that election or not, (Comp. Laws of 1879, p.235, §126;) and if not, could he adjourn the meeting to another time and to another place by just thinking of an adjournment?
The election was held on February 18,1881, but only two-lot-owners and four charter members, out of some six to ten lot-owners and six charter members, were present. No-general notice had been given to the members of the association of this adjourned meeting, and several of the members-had no knowledge or notice of the meeting until some time after it was held. One of those two lot-owners who were present at said meeting voted for Hunt, and the other probably voted for Chillson; but Chillson and the directors representing his side of the controversy were- declared elected. At the time of the election Chillson was not a lot-owner, nor a charter member, nor a member of the association in any form or manner whatever. He was a mere stranger to the as sociation. After Chillson’s supposed election he demanded from Hunt the books, papers, moneys, etc., belonging to the treasurer’s office, but Hunt refused to deliver them to him. The president and secretary of the association also ordered Hunt to pay all money belonging to the association to Chillson. At the times when this demand and this order were made, Chillson had not taken any oath of office, or qualified for the office in any. other respect whatever. On the morning before this suit was commenced, however, Chill-son selected a lot, with a view to purchasing it of the association, and further qualified by taking a verbal oath, but did not “subscribe” to any oath or affirmation: was this sufficient? (Comp. Laws of 1879, p. 569, § 6.) Nor did any of the directors or trustees who were declared to be elected on February 18, 1881, qualify until the morning before this suit was commenced; and then they qualified in the same manner that Chillson did. After qualifying, they (Chillson and said directors or trustees) commenced this action; but no further demand for the moneys, books or papers held by the defendant, as treasurer of the association, was made until after the suit was commenced. The officers declared to be elected on February 18,1881’, recognized Chillson as the duly-elected and rightful treasurer of the association. But on the other hand, a majority of the lot-owners of the association at all times recognized Hunt as .the regular and legal treasurer. of the association.
It will be seen from the foregoing, that it is at least questionable whether Chillson was entitled to the office of treasurer of the association, and he certainly never had the possession of the office; but Hunt, who had been acting as treasurer' of such association for the year previous to said supposed election, and up to the commencement of this action, was still in the possession of the office, and claiming to be rightfully in possession thereof, and legally entitled to hold the same. And he was certainly holding it under color of right. He was no intruder. For an entire year he had been recog nized by all parties as the rightful treasurer, and he was still so recognized by a majority of the lot-owners.
We think the plaintiff has mistaken its remedy. The action should be one in the nature of quo warranto, and not an action to recover money. If the defendant should be ousted from the office, he would then undoubtedly deliver all property in his hands belonging to the association to his successor in office. This action did not recognize the defendant as treasurer of the association; it was not an action upon any warrant or order drawn upon him as treasurer; but the action was founded upon the theory, absolutely and entirely, that he was not treasurer.
Some of the facts which we have stated are not found in the findings of the court below, but they are all clearly shown by the evidence introduced on the trial of the case. But we think the findings of the court below are sufficient of themselves to require a reversal of the judgment thereon, for the findings alone sufficiently show that the real contest in this case was, whether the defendant below was entitled to hold the office of treasurer of the cemetery association. If the defendant’s successor had been elected and qualified, and had obtained the possession of the office, and if the money sued for had then been demanded of the defendant, then if the defendant had refused to deliver it to his successor, we suppose the action for its recovery might be maintained; but if these things have not transpired, (and they have not,) then we suppose the action cannot be maintained. As long as the defendant is a de facto officer, claiming to be rightfully holding the office, we think the action cannot be maintained.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the defendant,- and against the plaintiff for costs.
Hobton, C. J., concurring.
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Per Curiam:
The object of the petition in error in this case is to reverse an order of the probate judge of Labette county, appointing a receiver in an action then pending in the district court of said county. The question of the sufficiency or insufficiency, or the validity or invalidity of the appointment of the receiver, was never submitted to the judge of'the district court, and he has never made any order with respect thereto or concerning the appointment of a receiver; but the proceeding in error is brought directly into this court to reverse the order of the probate judge.
Now the supreme court has no authority to reverse, vacate or modify any judgment or order made by the probate court, or made by the judge of the probate court while acting in the capacity of judge of the probate court. (Civil Code, art. 22, §§ 540-543.)
In this case, however, we suppose the judge of the probate court was acting or intending to act in the capacity of an officer of the district court, and it would be proper for us to treat the order as though it had been actually made by the judge of the district court himself. But still, the supreme court has no jurisdiction in the matter. (Hottenstein v. Conrad, 5 Kas. 249.)
In whatever manner we may view the order of the judge of the probate court, the supreme court has no jurisdiction to reverse, vacate or modify it. Hence, the petition in error must be dismissed.
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The opinion of the court was delivered by
Valentine, J.:.
This was an action brought by the firm of Latham & Ireland against Henry Hartford, on a promissory note. The defendant set up two defenses: First, that the note was given for a horse, or rather a mare, on a warranty of soundness, and that the animal was unsound and soon died; and second, as follows: “For further defense defendant says, that although the said animal hereinbefore referred to was worthless, for the reasons stated in the first paragraph of this answer, still, as he had used the animal some before it died, in order to avoid trouble with plaintiffs and by way of compromise he tendered plaintiffs back the animal, and also the sum of $20, as a satisfaction of plaintiffs’ alleged claim, which said tender was made absolutely by defendant, and is still held good.”
On the trial of the case, which was before the court and a jury, the defendant testified, among other things, as follows:
“I afterward saw Latham, and told him I would be lenient; I wanted no law suit; that it would not pay me nor him, and that while I owed him and Ireland nothing, yet to avoid a law suit, and compromise the dispute, I would pay them $20 in addition to turning over the mare. The tender I made I am still willing to pay as a compromise. [Defendant’s attorneys here offered $20 to plaintiffs, and they refused to accept it.] He said he would have all the note, or nothing.”
This was all the testimony introduced upon this subject. The jury found in favor of the defendant, and judgment was rendered accordingly, in favor of the defendant and against the plaintiffs for costs. The plaintiffs now, as plaintiffs in error, seek a reversal of this judgment. They claim that the judgment should be reversed absolutely, and that they should be granted a new trial; but if this cannot be done, then they claim that they should have judgment for the $20 tendered by the defendant.
Now this supposed tender (although a tender in popular language) was not a tender at all in law. In law, “a tender, to be valid, must be without condition, absolute.” (Shaw v. Sears, 3 Kas. 242. See also the quotations in the case just cited from 2 Greenleaf’s Evidence, §605; also cases cited in 13 U. S. Digest, 1st series, pp. 6 to 9, Nos. 45, 56, 90, 95, 108, •111, 114, and 134.)
. The supposed tender in this case was simply an offer to compromise— an offer to purchase peace; and both parties so understood it. The defendant understood that if the plaintiff Latham accepted the money offered, A 1 J 1 that it would be a complete and final settlement of all matters of difference between them; and the plaintiff Latham understood it in the same way, for when the offer was made “he said he would have all the note called for, or nothing.” If the offer of the money had been a tender in law, then the plaintiffs could have accepted the money, and have sued for any remainder which they might have claimed to be still -due on the note; but if the offer was merely by way of a compromise, then the plaintiffs could not have accepted the money without relinquishing all right to any further payment on the note. A tender admits absolutely the amount tendered as due; while an offer to compromise admits nothing, except that there is a dispute, and the party offering the money by way of compromise may claim that nothing is due; and in this very case, the defendant, when he offered the $20 to the plaintiffs, stated that he owed them nothing, “yet to avoid a law suit, and compromise the dispute, he would pay them the $20.” He denied his liability to them, and did not confess or admit any -such liability as a tender requires. The law encourages compromises. Men must be permitted to offer to purchase .peace, without prejudicing themselves if the offer should not prove successful; and such offers may be made in order to stop litigation, without regard to whether anything is due, or not. (1 Gr. Ev., §192.)
We do not wish to be understood as saying that the offer in the present case was no evidence that something was due to the plaintiffs. ■ Indeed, we do not wish to express any opinion upon that question; but all that we wish to say is, that the offer to pay the $20 is not such conclusive evidence against the defendant as to prevent him from showing that nothing was in fact due to the plaintiffs; nor is it such conclusive evidence as to require the jury to find, from it alone, in favor of the plaintiffs and against the defendant for that amount, or to require the court to render judgment for that amount.
The plaintiffs claim that .the defendant could not rescind the contract of sale which had been previously entered into between them. In this we think the plaintiffs . * are in error- (Bigger v. Bovard, 20 Kas. 204; Rogers v. Hanson, 35 Iowa, 284, 286, 287, and cases there cited; Boothby v. Scales, 27 Wis. 626, 636, and cases there cited; Zitske v. Goldberg, 38 Wis. 217, 223.)
The plaintiff, Ireland, agreed when the defendant bought the mare, and afterward, that if the mare should not be what she was warranted to be, then the defendant might return her, and that the plaintiffs would take her back, or make the matter satisfactory to the defendant in some other way. There may be cases, and there may be many of them, where the purchaser of personal property with express warranty could not rescind the contract and return the property, upon a breach of the warranty; but this is not one of that class of cases. This clearly comes within that class of cases where the purchaser may rescind.the contract and return the property, upon a breach of the warranty. But it probably makes but very little difference in this case whether the defendant could rescind the contract, or not, for the mare was worthless, and died soon after the attempted rescission of the contract. In the opinion of the jury, and they were probably correct, the promissory note was wholly without consideration. At the time the defendant attempted to rescind the contract, he tendered the mare to the plaintiffs; but they refused to receive her, and she died very soon afterward, leaving nothing to be tendered to the plaintiffs.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is the fourth time that the controversy between these-parties in reference to the land in dispute has come to this-court. (21 Kas. 725; 22Kas. 216; 24Kas. 389.) A brief review of the facts in this controversy, as disclosed in these various cases, may not be inappropriate. ' It appears that on May 24, 1877, Conaway and wife executed a deed to a tract of land to Gore. By a mutual mistake of all parties, the land was described in the deed so made as the southwest instead of the southeast quarter. At the time of this deed, Conaway and wife were occupying the southeast quarter, the land intended to be conveyed, as their homestead, and they continued to occupy the dwelling house thereon for nearly a year, though meantime Gore entered upon and cultivated a part, at least, of the land. After the discovery of the mistake, Mrs. Conaway alone executed a correct deed to Gore, but as the premises were occupied by Conaway and his wife as a homestead, such separate deed amounted to nothing. On March 17,1878, Gore brought his action to correct the mistake and reform the deed. In this action the Conaways answered, conceding the fact of the mutual mistake, but averring that Gore had failed to comply with the contract of purchase or to make the payments he had stipulated to make for the land. Upon the pleadings and over this answer the district court rendered judgment in favor of Gore, decreeing a reformation of the deed. The Conaways brought that ruling to this court and it was reversed, (21 Ivas., supra,) upon the doctrine that he who seeks equity must first do equity, and inasmuch as Gore had not as alleged complied with his contract, he was not in a position to claim a reformation of the deed. While this action was pending in the district court, and on April 18, 1878, Gore obtained possession, and immediately thereafter the Conaways commenced an action of forcible entry and detainer, which was tried before a justice of the peace and appealed to the district court. There a demurrer to plaintiffs’ evidence was sustained, on the ground that no sufficient notice to' quit had been given. The Conaways brought this ruling to this court, and it was reversed, (22 Kas., supra,) we holding that the notice served was sufficient. Thereafter the original action to reform the deed was tried upon its merits; the answer of the Conaways was found by the court to be untrue, and Gore obtained his decree for the reformation of the deed. The Conaways brought this ruling also to the supreme court, but the decision here was against them, and the judgment of the district court was affirmed. (24 Kas., supra.) After the decision of that case in this court, the action of forcible entry and detainer came on for a second trial in the district court, and upon this trial Gore again obtained judgment; and to reverse this judgment this present proceeding in error has been brought.
These facts stand out plain from this statement: In 1877> Gore bought from plaintiffs in error the land upon which they resided, and paid in full all that he agreed to pay. By a mutual mistake the land was improperly described in the deed. Mrs. Conaway, upon discovery of the mistake, sought to correct it. Her husband refused to rectify the error, and from that time to this has been carrying on a litigation expensive and annoying in respect to the title and possession of the land, with the party who in good faith had bought and paid the full contract price. In fairness and good faith there never ought to have been any litigation. Conaway, on discovery of the mistake, should have acted honorably, as his wife sought to do, and executed a deed for the land which he had intended to convey. The litigation as to title has been closed. Gore’s title has been finally adjudged good. As to possession, the district court has' again decided in favor of Gore, and unless there is substantial error manifest in the proceedings, justice requires that this litigation as to possession should also stop, and the judgment of the district court be affirmed. Further, it may be remarked, that months before this last trial in the district court the Conaways fled the state, in the night-time, and at the time of the trial their whereabouts were unknown even to their attorneys.
Passing now to the specific errors alleged, the first is, that the court erred in refusing to instruct the jury that they could find a verdict for one of the plaintiffs and against the ot^er5 or against one of the defendants and in favor of the other, as justice might require under the evidence and instructions. As an abstract proposition this is unquestionably good law, and doubtless under certain aspects of this case it was an instruction proper to be given; and if the case stood before us upon simply the general verdict in favor of the defendants, we might be constrained to regard this objection as of some weight. But the jury found in their special findings specifically and separately in favor of each of the defendants, so that the jury could not have found the general verdict in favor of the defendants on the ground that the testimony did not show that both were guilty of a forcible entry or detention; and so far as any question as to the plaintiffs is concerned, the instructions of the court left no chance for misconception.
A second objection, or series of objections, runs to the refusal of the court to instruct that an equitable title could not be set up as a defense in this case. It is well to see upon this question exactly what instructions the court gave, and what it refused. It charged: “No question of title is involved in this suit. It makes no difference what are the rights of the parties to the premises. The only question for you to decide is, were the plaintiffs in peaceable possession of the premises, and did the defendants forcibly eject them and take possession without legal authority, and forcibly hold it against them ? And if this be true, and plaintiffs gave legal notice, then plaintiffs will be entitled, to recover, and you should find defendants guilty.” And again: “ When a person purchases a piece of land, the presumption is that he is entitled to receive the possession until the contrary is shown. The court instructs the jury that a party who purchases' land, and obtains title by virtue of. such purchase, is entitled to immediate possession, unless an agreement exists to the contrary; and that a party entitled to possession of lands and premises may legally obtain the same without notice, if done peaceably, and when once so in possession may retain the same even by force.” The instructions refused are the following:
“1. An equitable title cannot be set up as a defense before a justice of the peace in an action of forcible entry; and as this is an appeal from a justice of the, peace, this court cannot allow an. equitable title to be considered' as a defense. (Ohio Digest, vol. 1, p. 533.) •
“2. This court has no equity jurisdiction in this case, and hence the matter must be considered as the paper title stood upon the bringing of this suit; and if you find that plaintiffs had at said time the legal title, that there had been a forcible entry or a forcible detainer of the said premises from the plaintiffs, that the plaintiffs had been in peaceable possession of the premises up to the time of entry by the defendants, and if you find that plaintiffs gave legal notice to defendants to leave, then plaintiffs are entitled to recover.
“ 3. If you find plaintiffs had the legal title to said premises up to April 16,1878, and were in peaceable possession of the same, and then that defendants entered said premises and ■ held the same by force, and the plaintiffs gave proper legal notice to defendants to quit, then plaintiffs are entitled to recover in this action.”
We see no error in the court’s ruling in this matter. It is true, as the court charged the jury, that questions of title are not to be litigated in actions of this nature. The ° question is simply one of the unlawful and forcible disturbance or withholding of possession; and yet, as we shall see hereafter, evidences of title are often properly received in- evidence, and questions of title may often be considered and have an important bearing upon the final decision. Indeed, cases may arise under our statute where the plaintiff may rest his entire right of recovery upon mere proof of title. (Price v. Olds, 9 Kas. 66.)
' Counsel for plaintiffs in error would seem, from the instructions they asked, to hold that equitable titles can never be offered in evidence and never considered in actions of this kind, while legal titles may be. We do not understand that any such distinction exists in this state; in so far as title may ever be shown in actions of this kind, an equitable title is as competent as a legal. Every defense which a party may have to an action brought against him, whether such defense be legal or equitable, he may interpose in that action, and is not driven to another court or another form of action to asserts.uch defense. Of course this question may be important in this case, because it is not pretended that the defendants had legal title until long after their entry and possession. At that time all the rights and title they had to the premises were equitable, and if those equitable rights may not be shown, if the existence of the naked legal title in the plaintiffs shuts out all question of the existence and extent of defendants’ equitable rights, then substantial justice may be sacrificed to mere forms. But as we have said, the law is not so. So far as evidence of title is competent and proof of title affects an action of this kind, evidence and proof of an equitable is as sufficient as of a legal title. This.in fact is •not an open question in this state. See the case of Alderman v. Boeken, 25 Kas. 658, in which an equitable title was held a sufficient defense in an action of forcible detainer brought under the last clause of §159 of the code of civil procedure before justices.
The next errors complained of are, in the admission in evidence of the original deed from plaintiffs to Gore, the correct deed by Mrs. Conaway alone, and the final decree of the district court reforming said first-mentioned deed. The ruling of the district court was right on this question. Putting these instruments together, they showed conclusively that at the time of the entry the defendants had the full equitable title to the land, and prima facie the right of possession. While of course title absolute and complete may not justify a forcible and violent entry, (for the law does not allow a disturbance of the peace in order to acquire possession, and a party having such title and right of possession must resort to legal means to acquire that possession,) yet evidence of such title and right of .possession is competent in order to show the purpose with which the entry was made, and to uphold the possession if once peaceably obtained. See upon this point, Dennis v. Wood, 48 Cal. 361; Pierson v. Herr, 53 Ill. 144.
One other question is raised by counsel: it is insisted that the verdict is contrary to the evidence. In reference to this question, it may be remarked, as heretofore intimated, that the jury not only found a verdict of not guilty, but in answer to special questions they acquitted each defendant separately of any forcible entry or detention. There can be no doubt, therefore, as to what the jury meant, or how they looked upon the transaction. It is a familiar rule in this court to sustain the conclusions of a jury upon any question of fact, if there -be any testimony which fairly supports them. It matters not how the facts as a whole impress us, if looking through the record we can see testimony which gives any reasonable support to the verdict. We confess to some hesitation upon this question, and that, taking all the testimony, the transaction does not impress us as it did the jury. It looks very like a forcible assertion of rights attempted to be withheld, and such an act the law does not approve. And yet it cannot be said that their conclusions were wholly destitute of support. Upon the record as it stands before us, we think substantial justice has been done, and that there is enough to justify us in sustaining the verdict. There is testimony showing that no notice had ever been served upon the defendant Gore, and as to him, therefore, the verdict in his favor was proper. He was manifestly entitled to possession, and it ought to have been given to him voluntarily and without hesitation.
The defendant Reed was not present at the time possession was taken by Gore, nor until the next day, when he entered into possession as tenant and representative of Gore. At that time, if we lay aside the manner of acquiring possession, Gore had the right of possession, as well as the title.
Again, Mrs. Conaway, who was the only person present and in actual possession, vacated and surrendered possession to the defendant Gore. Whatever wrong she may have committed against the rights or possession of her husband, the fact is, that, being the only person present and in actual possession, she voluntarily abandoned it, and turned the premises over to Gore.
Other minor matters might be mentioned, but without noticing them in detail, we repeat what we have once said, that, while we have some hesitation, we have concluded that there is enough to support the verdict of the jury. (Hoffman v. Harrington, 22 Mich. 52; People v. Fields, 1 Laus. 222; McDougall v.Sitcher, 1 Johns. 42; 2 Starkie on Ev. 330.)
There being no other question in the ease, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This case comes before us on the ruling of the district court of Wilson county, sustaining a demurrer to plaintiff's petition. The petition alleges, substantially, that plaintiff owned a farm in Chautauqua county of the value of $5,000; that for the purpose of procuring a loan from the de fendant Stover, plaintiff executed his promissory note payable to the order of Stover in five years, for the sum of $2,000, and also for the purpose of securing said note, executed a mortgage on his farm; that he delivered the note and mortgage to Confrey, the agent of Stover, directing him to surrender the note and mortgage to Stover on payment to Confrey for plaintiff of the said sum of $2,000, less a stipulated commission ; that Confrey, in fraud of the rights of plaintiff, delivered the note and mortgage to Stover, the payee therein named, without receiving from the said Stover any consideration therefor whatever. The petition then, as to defendants Cowles and Eldridge, goes on to allege that the said Stover, “with full knowledge of the foregoing facts as herein alleged) indorsed said note and assigned said mortgage, and then and there delivered the same to Cowles & Eldridge, who paid the said Stover no value therefor, but gave him, the said Stover, credit on an account held by said parties against said Stover, with said mortgage. And the plaintiff further alleges, that the said Cowles & Eldridge, on receipt of the said note and mortgage aforesaid, sold, indorsed, transferred and delivered said note and mortgage to some person to plaintiff unknown; the said purchaser paying to them, the said Cowles & Eldridge, the said sum of $2,000. And the plaintiff further says, that said purchaser received said note and mortgage without any knowledge of the plaintiff’s rights therein, but on the contrary, believed that the said Cowles & Eldridge were the absolute owners of said mortgage.” The petition also alleged that the note was negotiable; was therefore a valid claim in the hands of an innocent purchaser against him, the plaintiff, and that he was. lawfully bound to pay such note and mortgage. To this petition, Cowles & Eldridge filed a general demurrer, which was sustained by the district court, and this ruling is now the single question presented for our consideration.
It is not pretended that any liability would attach to Cowles & Eldridge if they purchased the note in the regular course of business for value before maturity without notice of the plaintiff’s equities; but it is insisted that they parted with no value, but simply applied the mortgage on an antecedent debt of Stover’s. There is some little conflict in the authorities as to whether one who receives a note in payment of a preexisting debt can be regarded as a purchaser for value so as to hold the same free from all the equities between the original parties, and yet the large number and weight of authorities are in favor of the proposition that he is such a purchaser.
The authorities are collected in the second volume of the U. S. Digest, 1 series, p. 772, and arranged pro and con on this question. A repetition of the arguments advanced on the two sides and a review of the authorities would be a useless labor. It is enough for us to say that on this question we think the better reason is on the side of the majority, and that he who receives a note of a third party in payment of a preexistent debt parts with value, and is entitled to the protection of a purchaser for value.
But it is insisted by counsel for plaintiff that before a party can claim that he received a note in payment of a preexistent debt, it must appear that it was expressly agreed that it should be so received and a discharge given of such preexisting debt; and it is claimed that this petition discloses no such agreement — that the mere giving of credit on an account is not a payment unless both parties agree thereto.
Counsel further say that it is not alleged that Stover ever assented to such disposition of the note and mortgage, or agreed that it should be credited on his account, and that the action of Cowles & Eldridge alone in so crediting does not make an agreement on the part of Stover, or discharge his preexisting debt. It is true that the petition nowhere alleges an express agreement between Stover and Cowles & Eldridge that this note should be taken and applied in payment of such preexisting debt, but the plain implication of the language of the petition is that such was jQ facf. ^ agreement> jfc js a general rule that the language of a pleading is to be construed against the pleader, though not, it is true, in any harsh, technical or arbitrary way. Where the language is of doubtful import, and the pleading is challenged before trial, then the rule is to construe the pleading against the pleader, and this upon the ground that as he himself selects the language he should make his meaning clear. (Williams v. F. P. Soc., 1 Ohio St. 478; Lemon v. Stevenson, 36 Ill. 49; Vaughan v. Everts, 40 Vt. 526; Green v. Covillaud, 10 Cal. 317.) Now it is alleged that Stover indorsed the note and assigned the mortgage and delivered them to Cowles & Eldridge, and that they gave him credit on an account therefor, and in the absence of any further words of limitation or restriction, the natural conclusion from the allegations would be that all was done with the assent and upon the agreement of both parties. If Stover delivered the papers without receiving any present payment, and Cowles & Eldridge received the papers and credited the amount thereof on Stover’s debt, and there is no allegation that Stover objected to this, or demanded or expected payment in any other way, the inference would be that he assented to such application — that it was done with his knowledge and consent. If the pleader intended to charge that such application was without Stover’s consent, or contrary to the express agreement of the parties, it would have been very easy by the addition of a few words to have made this fact perfectly clear. In the absence of such further allegation, it seems to us that the court properly understood the petition as charging that the application of the note and mortgage on Stover’s preexisting debt was done with the knowledge and consent of Stover, and that the claim of plaintiff in this action to recover was based upon other grounds than the mere lack of an agreement between Stover and Cowles & Eldridge.
Another proposition of counsel is, that it is a rule that when it is shown that commercial paper was illegally or fraudulently put in circulation, it devolves on the holder to show that he purchased for value before due and without notice; and that if proof of such fraud or illegality will cast on the holder the burden of showing himself an innocent purchaser, in like manner an allegation in the petition of such fraud or illegality-will also raise the presumption that the holder had notice when he received the note, and is equivalent to an allegation that he had such notice. And counsel asks: Is it necessary for the plaintiff to allege facts which he is not required to prove?' Counsel in this fails to properly distinguish between the requirements of pleading and the rules in reference to presumptions. Presumptions of law need not be stated in the pleading, (Civil Code, § 130.) But this is not the rule as to presumptions-of fact. As a general rule, all the facts which are ingredients in the cause of action must be specifically alleged in the petition, even though upon the trial proof of certain of those facts will raise a presumption and be therefore prima facie evidence-of the existence of other facts. Thus, for instance, the possession of recently-stolen property is evidence from which a presumption of fact arises that the possessor is a thief. But it would notdoin charging the offense to simply allege thatthedefendant was in the possession of property recently stolen. The fact that he stole it must be distinctly charged. So here, the fact that the paper was illegally or fraudulently put in circulation-does not of itself give a .right of action against any party it 's found in possession of. A further £a(Jj mug£ exist, and that is, that he does not occupy the position of an innocent purchaser for value. Now this fact must be alleged in the petition, although it may be that upon the trial, proof that the paper was illegally or fraudulently put in circulation in the first instance will raise a presumption of fact that the holder is not an innocent holder, and cast upon him the burden of proving the bona fides of his possession. See the following cases: Gregory v. McFarland, 1 Duval (Ky.) 59; Meriden Brittannia Co. v. Whedon, 31 Conn. 118; VanDelandy v. Hall, 13 How. Pr. 458.
The judgment of the district court will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John Vancil against W. J. Hagler on a promissory note. The defense was that the defendant was merely a surety on the note, and that the plaintiff, by failing to sue on the note, after a demand had been made therefor by the defendant, in accordance with the statutes of Illinois, where all the parties at the time resided, released the defendant from all liability on the note. The action was commenced before a justice of the peace of Saline county, on August 9,1880, where a trial was had, and judgment rendered in favor of the plaintiff and against the defendant for $258.78 and costs. The defendant then appealed to the district court, where a trial was again had before the court and a jury, and the verdict and judgment in that court were in favor of the defendant and against the plaintiff; and the plaintiff, as plaintiff in error, now brings the case to this court for review'.
The facts of the case, as they appear from the record brought to this court, are substantially as follows: The note sued on was executed on January 3, 1876, in the state of Illinois, where all the parties resided, by David Holder, as principal, and D. W. Holder, L. F. Grammar and W. J. Hagler, as sureties, to John Vancil, the plaintiff. The note was for $200, due in one year after date, and drawing interest at the rate of ten per cent, per annum. At the time that this note was executed, and since, up to the time of the trial, the following, statute was in force in the state of Illinois, to wit:
“ When any person, bound as surety for another for the payment of money, or the performance of any other contract in writing, apprehends that his principal is likely to become insolvent, or to remove from the state without discharging the contract, if a right of action has accrued on the contract, he may, by writing, require the creditor forthwith to sue upon the same, and unless such creditor shall within a reasonable time, and with due diligence, commence suit thereon and prosecute the same to final judgment and execution, the surety shall be discharged, but no such discharge shall in any case affect the rights of the creditor against the principal debtor.” (Hurd’s Rev. Stat. Ill., ch. 132, §1.)
The defendant, Hagler, left Illinois about September 26, 1877, and removed to the state of Kansas, where he still resides. About two or three weeks prior to his removal from Illinois, he sent a notice by mail and by postal card to the plaintiff, who resided about twelve miles from where the defendant then resided. The notice was, in substance, that the defendant intended to remove from Illinois; that the plaintiff must collect the note; and that the defendant would not stand responsible on the note any longer. Neither the postal card, nor any copy thereof, was introduced in evidence; but the defendant, Hagler, testified as to the contents thereof. Before testifying to the contents thereof, it was shown that the defendant had, in ample time, served a written notice upon counsel for the plaintiff, demanding an inspection and copy, or permission to take a copy, of the postal card; and there was^also introduced a portion of the deposition of the plaintiff himself, in which he testified that he had never received any notice, written or otherwise, from the defendant, or from any person acting as his agent, directly or indirectly asking or demanding that he should collect the note, by suit or otherwise. The evidence also shows that at the time when Hagler sent said postal, card to Vancil, Hagler was selling his property, and preparing to leave the state of Illinois, and to remove to the state of Kansas; that Grammar, one of the sureties on the note, “was good for ten such notes;” that Hagler, after removing to the state of Kansas, returned temporarily to Illinois, about a year thereafter; that no such suit was brought on the note, until the present action was brought against Hagler, more than three and one-half years after the note became due, and nearly three years after the defendant sent said postal card to the plaintiff; and that when the suit was brought against Hagler, all the other parties to the note, except Hagler, had become insolvent. But there was no evidence introduced showing that Vancil knew, at the time, that Hagler was selling his property, and preparing to leave the state of Illinois, or that Vancil knew, at the time, that Hagler temporarily returned to Illinois, in about a year after his removal. The parties, as before stated, lived in Illinois, about twelve miles apart. The defendant, Hagler, also testified that he could not remember the exact language of the postal card; but he was familiar with the statute of Illinois above quoted, and that he intended to use its language. He also testified: “I knew what the law required; was familiar with it at that time; it was often used, and I wrote that card so as to comply with it.” The court below instructed the jury in substance, that unless they found that the plaintiff, Vancil, actually received the defendant’s postal card, and unless such postal card contained, in substance, a demand that the plaintiff should forthwith sue upon the note, that the jury must find in favor of the plaintiff and against the defendant; and that the burden of proving these things rested upon the defendant. Upon the pleadings, the evidence, and the instructions of the court, the jury found in favor of the defendant and against the plaintiff, and judgment was rendered accordingly.
The plaintiff now claims that the court below committed error in the following respects, to wit:
1. In permitting the defendant to prove the contents of said postal card, by his own testimony, without sufficient preliminary evidence having first been introduced showing that the postal card was lost or destroyed, or placed beyond the control of the defendant.
2. In allowing evidence of the contents of the postal card to be introduced; in refusing to sustain the plaintiff’s demurrer to the defendant’s evidence; in allowing the jury to find in favor of the defendant upon such evidence; and in refusing to grant the plaintiff a new trial because of the insufficiency of such evidence — all upon the general grounds: First, That there was no evidence introduced showing that Yancil ever received the postal card, while the plaintiff’s testimony showed that in fact he never did receive it; second, that the contents of said postal card, according to the defendant’s own testimony, were not sufficient in law, as a notice, or demand, or requirement, under the statutes of Illinois, to discharge the defendant from liability on the note by virtue of such statutes.
3. In admitting evidence with regard to the financial condition of the defendant’s co-security, L. F. Grammar.
We shall consider these claims of error in their order:
I. We think the evidence was ample to show that the postal card had previously been placed beyond the control of the defendant; and also, that it had been lost or destroyed. The defendant showed by his own evidence that he had placed it in the United States post office, properly directed to the plaintiff. This evidence showed clearly that the postal card had gone beyond the control of the defendant, and showed prima faeie that it had gone into the hands of the plaintiff; and according to the evidence, neither party knew anything with respect to it afterward. It was evidently lost or destroyed.
II. Upon this second claim of error we have great doubts. We think it would have been very proper for the court below to have granted the plaintiff a new trial; and we can hardly say that we should not now reverse the judgment of the court below, and order that a new trial be granted. The preponderance of the evidence, as we think, upon both the questions whether the plaintiff ever actually received the defendant’s postal card, and whether the postal card contained in substance a demand that the plaintiff should forthwith sue upon-the note in controversy, was in favor of the plaintiff and against the defendant. The jury, however, found otherwise; and their verdict was sustained by the trial court. We think the trial court instructed the jury correctly. We think it devolved upon the defendant to show by a preponderance of the evidence that the plaintiff did actually receive the postal card, and that the postal card actually contained in substance a demand that the plaintiff should forthwith sue upon the note; and the trial court gave instructions to the jury precisely to this effect. There is some evidence, however, in favor of the defendant and against the plaintiff upon both of these points. The fact that the defendant deposited in the United States post office the postal card, properly directed to the plaintiff, is some evidence that the plaintiff received it; and the fact that the defendant was familiar with the statutes of Illinois at the time he wrote the demand on the postal card, and that he attempted to use the language of the statute, and endeavored to comply with its terms, and believed that he had done so; and the further fact that he unquestionably demanded that the plaintiff should collect the note; and the fact that the defendant stated that he was then about to remove from Illinois to Kansas; — is some evidence that the postal card contained a demand, in substance, that the plaintiff should forthwith sue on the note. The evidence introduced by the defendant tending to prove these two facts is sufficient, prima facie, to prove them; and although we think that the evidence upon the other side is more satisfactory and more convincing, yet, as against the verdict of the jury and the decision of the court below, we do not feel that we would be entirely justified in reversing the judgment of the court below, and in granting a new trial. Upon these points, therefore, with great doubts we shall sustain the decision of the court below.
III. We think there was no error committed by the court below in permitting the evidence to be introduced showing the financial condition of the defendant’s co-surety, L. F. Grammar; for if Grammar was perfectly solvent at the time that the defendant gave the notice to the plaintiff, probably such solvency, in the opinion of the plaintiff, furnished a sufficient reason for his delay in suing upon the note; for the plaintiff might well have said in such a case that it was entirely immaterial to him whether the defendant was released or not, by his (the plaintiff’s) failure to sue immediately on the note; for under any circumstances, Grammar was good, and he could collect the amount of the note from him. But Grammar is now insolvent, and if the plaintiff should be allowed to recover in this case, the defendant must lose the whole amount; while if the action had been brought while Grammar was solvent, the defendant would be compelled to lose only one-half of the amount of the note.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought before a justice of the peace of Butler county by H. W. Morrison against W. M. Duff for the recovery of $2.45. The plaintiff’s bill of particulars, omitting title and signature, reads as follows:
“Said plaintiff alleges that within the last 60 days he, the said plaintiff, bought a lot of said defendant in the city of El Dorado, Kansas; that by the terms of the sale the said defendant was to furnish an abstract of title, showing a clear title to said property, and pay all necessary expenses up to deed from said defendant, to said plaintiff; that as a part of the purchase-money therefor, said plaintiff was to pay off a certain note; that said plaintiff has paid off said note and in all respects conformed to his part of the agreement of purchase; that said defendant failed and refused to pay for the abstract of title, and also failed and refused to pay.for transferring and recording a deed of said property to said defendant, which by the.terms of said agreement he was bound to do; that the cost of said abstract and cost of said transferring and recording, all of which said plaintiff has paid, amounts to the sum of $2.45, which said sum has been duly demanded by said plaintiff from said defendant, whereupon said plaintiff demands judgment against said defendant for the sum of two and 45-100 dollars, with interest thereon from the 26th day of March, 1887, at seven per cent., and costs.”
A trial was had before the justice and a jury, and the verdict and judgment were in favor of the plaintiff and against the defendant for $2.45. The costs of suit amounted to $12.80. The defendant, as plaintiff in error, took the case on petition in error to the district court, where the judgment of the justice of the peace was affirmed; and then Duff, as plaintiff in error, brought the case to this court for review.
Duff, the plaintiff in error in this court, plaintiff in error in the district court and defendant in the justice’s court, claims error in the two lower courts for the reason that no cause of action was stated in the aforesaid bill of particulars, and that the justice of the peace did not have and could not have any jurisdiction over the subject-matter of the action. It is claimed that the aforesaid bill of particulars did not state cause of action, for the reason that § 6 of the statute of frauds and perjuries (Gen. Stat. of 1889, ¶3166) requires that all contracts for the sale of lands shall be in writing, signed- by the party to be charged. Upon the facts of this case, however, the claim is not tenable, for the reason, among others, that it is not shown that the contract sued on was not in writing, or that it did not in every particular fulfill all the requirements of the aforesaid section of the statute of frauds and perjuries.
It is further claimed that the justice of the peace had no jurisdiction of the subject-matter of the action, and this for the following provision of § 8 of the justices code, (Gen. Stat. of 1889, ¶5854,) which reads as follows: “Justices shall not have cognizance of any action, . . . fourth, in actions on contracts for real estate.”
Now is this an action on a contract for real estate ? Mr. Swan in his Treatise for Justices, (page 17,) says that “a contract for real estate is an agreement to sell or convey an interest, title or estate in lands,” and is not an agreement for something to be done upon lands, or for the rent thereof. (See also Bridgmans v. Wells, 13 Ohio, 43.) Neither can it be an agreement for the payment of the cost of an abstract of title, or for the payment of the cost of transferring the title, or for the payment of the cost of recording a deed. Connected with the cause of action in the present case there was a contract for the purchase and sale of real estate, but everything connected with such purchase or sale, or incidental thereto, except the mere payment of the cost of the abstract of title, the cost of the transferring of the title, and the cost of the recording of the deed, was executed, completed, fulfilled, terminated and ended some time before this action was commenced. The abstract of title had already been procured, the consideration for the property had been paid, the deed for the property had been executed, the title to the property had been transferred, and the deed for the property had been recorded; and nothing was left to be done except the mere payment for the abstract of title, the payment for the transferring of the title, and the payment for the recording of the deed. At that time no action for the enforcement of the contract for the purchase or sale of the property, or for the enforcement of anything upon which the purchase or sale or title to the property depended, could have been maintained, for the purchase and sale of the property and all things upon which the purchase or sale or title depended had been completed, perfected, and consummated. Nothing concerning the purchase or sale or title was left to be done, but during the negotiations with regard to the purchase and sale the defendant, Duff, agreed to pay for the cost of the abstract of title, the cost of the transferring of the title, and the cost of the recording of the deed, and under this agreement he was under obligation to do so; but he failed and refused to perform his obligation, and because thereof the plaintiff, Morrison, was forced to and did pay for such abstract of title, the transferring of the title, and the recording of the deed, and this action is brought simply for the recovery of the sums of money thus paid by him, and the action is not in any sense an action to enforce a contract for the purchase or sale of real estate.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Leavenworth county on September 5, 1887, by S. A. Marshall and others, against the city of Leavenworth, a city of the first class, to perpetually enjoin the defendant as a municipal corporation from all further proceedings to collect or enforce certain special assessments levied upon the property of the plaintiffs for the payment of certain street improvements made upon a certain street upon which the plaintiffs’ property abuts. The defendant demurred to the plaintiffs’ petition, and also to their amended petition, upon the ground that the same did not state facts sufficient to constitute a cause of action, and both of such demurrers were sustained by the court; and the plaintiffs, as plaintiffs in error, bring the case to this court for review.
Various irregularities are alleged in the plaintiffs’ petition and amended petition, as having occurred in the proceedings upon which the aforesaid assessments are founded; and the plaintiffs make the claim that such irregularities render the aforesaid assessments absolutely void; while the defendant claims that such irregularities do not render the assessments either void or voidable, but whether void or voidable, still the defendant claims that the plaintiffs did not commence their action in proper time, under §1, chapter 101 of the Laws of 1887, (Gen. Stat. of 1889, ¶ 590,) and therefore that their supposed action is barred by the limitation contained in the aforesaid statute. It appears that the proceedings upon which the assessments were founded were commenced on March 22,1887, by the passage of certain resolutions declaring that it was necessary to pave and curb a certain portion of Olive street in said city, (which portion of such street we will hereafter mention merely as Olive street, or as said street, etc.); that such resolutions were published for four consecutive weeks in the official newspaper of the city; “that within the twenty days prescribed by law, said plaintiffs did file in the office of the clerk of said defendant city a protest against paving said part of Olive street, signed by two-thirds of the property-owners liable for the tax to be paid for said street improvements, with the understanding of all the signers of the protest, that they were protesting against paving, and curbing also, and four-fifths of the owners of the property would have signed it had it been presented to them”; that on May 9, 1887, the city passed an ordinance providing for grading, curbing, guttering, paving, etc., streets, alleys, etc., in said city, making special assessments therefor, paying installments thereon, issuing bonds, etc.; that on May 17, 1887, estimates of the costs for paving and curbing said street were made and filed by the city engineer; that on May 19 to 21 an ordinance was passed declaring it necessary to curb said street, and ordering the same to be done in conformity with the plans and specifications of the city engineer, and ordering that assessments be made and bonds issued, etc.; that at the same time another ordinance was passed declaring it necessary to pave the aforesaid street, and ordering the same to be done in conformity with the plans and specifications of the city engineer, and providing for assessments, and the issue of bonds, etc.; that on May 31, 1887, the city entered into a contract with J. B. Smith & Co. for paving said street, and with Geiger and Campbell for curbing the same; that afterward appraisers were appointed to appraise the abutting lots, and the appraisements were made and filed as required by law; that on July 28, 1887, an ordinance was passed by the city council fixing the specific amount of the assessment against each particular lot on said street; that this ordinance was approved by the mayor on July 29, 1887, and was published on; August 1, 1887, at which time it took effect; that on August 9, 1887, a notice to each lot-owner of the assessment upon his property was mailed to him. This action was commenced on September 5, 1887, as aforesaid.
All the irregularities in the proceedings upon which the aforesaid assessments were founded, except the'city’s disregard of the aforesaid protest, may be passed over and disregarded, for, as we think, all the other irregularities are waived and cured by the plaintiffs’ failure to cornnience any action within thirty days after the publication and the taking effect of the ordinance making the specific assessments upon each portion of the abutting property. (Wahlgren v. Kansas City, 42 Kas. 243; City of Topeka v. Gage, ante, p. 87; same case, 24 Pac. Rep. 82; Lynch v. Kansas City, just decided. The aforesaid limitation reads as follows:
• “No suit to set aside the said special assessment, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.” (Laws of 1887, eh. 101, §1; Gen. Stat. of 1889, ¶590.)
The assessment referred to in this statute is certainly “ascertained” when the ordinance making the assessment and designating the specific amount of the tax assessed against each particular lot or piece of ground abutting on the street is published. The plaintiffs, however, claim that the amounts of the assessment are not ascertained until the owner of the property receives the notice mailed to him by the city clerk under the following provision, which is found in the same section in which the aforesaid limitation is found, which provision reads as follows:
“The owner of any piece of property liable to any such special assessment may redeem his property from such liability by paying the entire amount chargeable against his property, upon the city clerk mailing him a written or printed notice thirty days before the issuance of the bonds.”
Now this provision has nothing to do with the aforesaid limitation. The notice to the lot-owners need not be mailed within thirty days after the amount of the assessment is ascertained, but only within “thirty days before the issuance of the bonds,” and the bonds may not be issued for months after the amount of the assessments is ascertained, and made a fixed charge upon the property. Besides, the notice may then be mailed to the several lot-owners on different days, and be received by them on different days; and some of the notices may never be received at all. Indeed, the postoffice address of some of the lot-owners might not be ascertainable; and this should certainly not render the amount of the assessment unascertainable, as it would if it “is ascertained” only when the lot-owner receives the notice. The notice, however, is given, not for the purpose that the amount of the assessment shall be ascertained by it, but for the purpose that each lot-owner may, if he chooses, pay the whole of the assessment against his property at once, and before any bonds shall be issued, and thereby save interest. If he permits the bonds to be issued before he pays his assessment, he must then pay interest whether he pays the whole of the assessment at one time, or pays it in installments. Another provision of the statute following immediately after the provision last above quoted, and as a part of the same section and of the same sentence, reads as follows:
“Or after the issuance of the bonds, by paying all the installments of the assessments which have been levied, and also the amount of unlevied installments, with interest on the latter at the rate of eight per cent, per annum, from the date of the issuance of the bonds to the time of maturity of the last installment.”
We now come to the question whether the aforesaid protest renders the aforesaid assessments, and indeed all the proceedings subsequent to the protest, void. The plaintiffs claim that it does, while the defendant claims otherwise. The plaintiffs rely upon § 14 of the act relating to cities of the first class, which reads, as far as it is necessary to quote it, as follows :
“Sjec. 14. When the mayor and council shall deem it necessary to pave or macadamize any street, lane, avenue, alley, or part thereof, within the limits of the city, for which a special tax is to be levied as herein provided, such council shall, by resolution, declare such work or improvement necessary to be done; and such resolution shall be published for four consecutive weeks in the official newspaper of the city; and if two-thirds of the owners of the property resident in the city, liable to taxation therefor, shall not within twenty days thereafter file with the clerk of said city their protest against such improvement, then such council shall have power to cause such improvements to be made, and to contract therefor, and to levy the taxes as herein provided; and the work may be done before, during, or after the collection of the special assessments, as may be deemed proper by the mayor and council.” (Laws of 1887, ch.99, §5; Gen. Stat. of 1889, ¶558.)
The plaintiffs’ petition, original and as amended, alleges that the protest was filed by the plaintiffs, but whether they were residents or not of the city or county of Leavenworth, or of the state of Kansas, is not shown. It also alleges that the protest was “signed by two-thirds of the property-owners liable for the tax to be paid for said street improvements ”; but whether any ode or more of such signers was a “ resident •in the city” of Leavenworth, as required by the above-quoted .statute, is not shown. Indeed, it is not shown that anyone of -such signers was even a resident of the state of Kansas. Also the protest was only against paving, and was not against curbing, except that the signers understood that they were protesting against the curbing also. In order that the protest should be of any value, the statute requires that it should be the protest of “two-thirds of the owners of the property resident in the eity liable to taxation therefor,” while the petition shows that it was merely the protest of two-thirds of the property-owners liable for the tax to be paid for said street improvements; and no mention of the residence of the protesters is made. Now the city authorities ■may have disregarded this protest for the reason that the protesters were not residents of the city. And the court below, in considering the demurrers to the petition and amended petition, may also have disregarded the protest for the same reason. We are inclined to think that whenever the mayor ■and council of any city of the first class shall pass a resolution •declaring it necessary to make particular street improvements, and shall publish the resolution for four consecutive weeks in the official newspaper of the city as provided by said §14 ■of the act relating to cities of the first class, and that two-thirds of the property-owners resident in the city liable to ¡ special taxation to pay for such improvements, shall within twenty days thereafter file with the clerk of the city their protest against the making of such improvements, that then the ■city authorities will not have any power or authority to cause such improvements to be made, and that any proceedings afterward had for any such purpose, or any assessment made to pay for such improvements, would be absolutely null and void, and the parties protesting would not be required under the aforesaid limitation contained in §1, chapter 101 of the Laws of 1887, to commence any action within thirty days after the making of the assessment to set aside the assessments •or to defeat or avoid the same in order to relieve themselves .from the payment of the same. But it is not shown in the present case that the parties protesting were residents of Leavenworth city, and hence the plaintiffs’ petition, original and amended, with all the facts stated therein, does not state facts sufficient to constitute a cause of action. If the signers of the protest were in fact residents of the city of Leavenworth, and if they in fact constitute two-thirds of the owners of the property supposed to be liable for the payment of the aforesaid assessments, then we would think that the plaintiffs might upon such terms as would be just, be permitted by the district court to amend their petition by setting up the fact that the parties protesting were residents of Leavenworth city.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This action was commenced by the plaintiff in the court below, to recover the penalty of one hundred dollars, under §3910 of the General Statutes of 1889, for the failure to satisfy a chattel mortgage. The case was tried in the district court of Marion county, by the court and a jury, and resulted in a verdict and judgment for the plaintiff, for one hundred dollars and costs. The defendants bring the ease to this court for review.
The chattel mortgage in question was upon one hundred tons of hay in the stack, on section 27, township 17, range 4, in Marion county. The defense was: First, that the mortgage was never paid; and, second, that no demand for the satisfaction of the mortgage had ever been made upon the mortgagees before the suit was commenced. Upon the conclusion of the testimony upon the part of the plaintiff, the defendants below demurred to the evidence, assigning as ground for such demurrer that the evidence disclosed the fact that the plaintiff below was not the owner of the mortgaged- property, and therefore not entitled to bring the action. The evidence upon the part of the plaintiff below disclosed the fact that a portion of the hay included in the mortgage had been sold to Coffman and Mowrer, the plaintiffs in error, before the commencement of this suit; that the plaintiff had delivered all the hay they would accept, and the balance had been sold to another party, the last of September or the first of October, in 1887. This suit was commenced originally before a justice of the peace, on the first day of November following. Upon this state of facts, we think the demurrer should have been sustained. The law is settled by this court, that the right to the penalty, in cases under this statute, follows the property, and is recoverable by the owner. (Thomas v. Reynolds, 29 Kas. 304.)
The property having been sold, the plaintiff below had no further interest in it • and inasmuch as the protection given by the statute is primarily to the owner of the property, he is the proper party to bring the suit to recover the penalty. We think the court erred in overruling the demurrer to the evidence. The mortgaged property having all been disposed of before the suit was commenced, the mortgagor’s rights, under the statute, had gone with the property, and the right to the penalty for a violation of the statute accrued to the purchaser of such mortgaged property. This view .of the case renders it unnecessary for us to consider the other errors of which complaint is made.
We recommend that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
September 11, 1885, Tillman P. Hinshaw was killed by the cars at Wet more station on the Missouri Pacific Railway, in Nemaha county, Kansas. M. P. M. Cassity was afterward, at Washington county, Kansas, the domicile of said Hinshaw at the time of his death, appointed administrator of the estate of said Tillman P. Hinshaw, deceased. Cassity, as such administrator, on the 3d day of June, 1887, commenced this action in the district court of Nemaha county to recover damages for the killing of said Hinshaw, for the benefit of Laura P. Hinshaw and Florence Leah Hinshaw, widow and daughter, and next of kin of said Tillman P. Hinshaw, deceased. Amount claimed, $10,000. Plaintiff allegéd that near the station of Wetmore the railway company had constructed a box drain or culvert across its track to allow the water, which otherwise would accumulate on the north side of the track in large quantities, to escape across the track and pass away. The walls of said box drain were composed of railway ties, two on each side, lying down and spiked together. The top of the drain was originally covered with planks or boards, but the board next to the inside of the north rail had become loose and was gone, leaving an open space from ten to twelve inches square. Plaintiff also alleged that next to the east wall of said drain and on the outside of it there was a wash-out or ditch running parallel with the drain across the track, eight to ten inches wide and several inches deep, caused by a larger amount of water accumulating, on account of heavy rains, on the north side of the track, than could escape through the box drain. Plaintiff says that the box drain was so uncovered on the morning of September 11,1885, and that said wash-out or ditch existed as above described at such time; that the train, on which the deceased was at the time braking, reached Wetmore on said morning about four o’clock and fifty-five minutes, and just before daylight; that the deceased, as the train backed up, went in between the cars on said track to uncouple the cars in order to set out a car that was to be left at Wetmore, and while walking along between the cars waiting a slack so he could pull the coupling-pin, he stepped into the ditch next to said box drain with one foot and through the hole on top of said drain into the drain with the other foot, and that while his foot was in such drain he was caught by the brake beam of the car and thrown down and dragged along the track and crushed to death. And plaintiff says that by omitting to cover up said box drain, and to fill up said ditch, the defendant herein was guilty of negligence in connection with the death of said Hinshaw, and therefore liable for damages under the statute. The defendant below answered, admitting it was a railway corporation duly incorporated according to law, but denied all other allegations in plaintiff’s petition, and also pleaded negligence on the part of the deceased which contributed to his death. Plaintiff below replied, denying negligence on the part of the deceased. Trial was had on the issues thus made, December 3,1887, by the court and a jury, resulting in a verdict for the plaintiff below for the sum of $3,000. There was a large number of special findings by the jury, some of which supported the general verdict, and some that did not. The defendant below moved for judgment in its favor upon the special findings of fact, notwithstanding the general verdict. Then followed a motion to set aside the verdict and for a new trial. These and other rulings, to demurrers to the petition and to the evidence, in receiving and rejecting evidence, upon an application for a continuance, and in giving and refusing to give instructions, were properly excepted to. Some of these alleged errors we will notice, and some of th.em it is unnecessary to consider.
We think the court erred in refusing to give instruction 16, as asked by the defendant below, and not giving . .. , . , . . . 7 m its general instructions something equivalent thereto. The instruction asked is as follows:
“16. The jury are instructed that if they find from the evidence that the said Hinshaw was guilty of ordinary negligence, which contributed directly, in whole or in part, to the death of said Hinshaw, then the plaintiff cannot recover herein, even though the defendant was guilty of negligence in permitting said track to become and remain out of repair.”
This instruction we think correctly states the law, and should have been given, either as asked by the defendant below, or in the general instructions given by the court. An examination of the instructions given by the court fails to disclose anything that we think can take the place of the instruction refused and excuse the court from giving such instruction. The eighth instruction as given by the court comes nearer stating the law of contributory negligence than any other instruction given, and we think this instruction fails to give a complete statement of the law upon that question, and therefore the instruction asked by the defendant below, which is a correct statement of the law upon that question, should have been given. The instructions of the court only inferentially and incompletely state the law of contributory negligence.
We also think that in the absence of any instruction clearly setting forth the law of contributory negligence, instruction 11 as given by the court is misleading, or there is danger of its being so construed by the jury as to mislead them. The jury are told in this instruction that before the plaintiff can recover, three things must be found, reciting them. In the absence of any well-defined instruction upon the subject of contributory negligence, the jury may have construed this instruction to mean that if they found from the evidence in the case the three things so numbered and recited in this instruction 11, they should then find for the plaintiff anyway, without any regard to the question of contributory negligence.
Again, we find that a number of the special findings of the jury are not only unsupported by any evidence in the case, but are squarely against all the evidence in the case upon the questions to which they relate. All the evidence in the case upon that question shows that the cars to be uncoupled were either the first and second, or the third and fourth, while the jury find the fourth and fifth cars were the ones to be uncoupled. The jury find that Hinshaw was head brakeman on the train, and then in the 107th finding say his duties did not require him to be on the cars near the engine, especially at stations where cars were to be cut out. And yet all the evidence in the case relating to his duties shows that they required him to be on the front car to receive from the conductor or rear brakeman signals for the management of the train and transmit them to the engineer, and to handle the brake to aid the engineer in stopping the train.
The jury were asked in question 77: “During said time, from September 1 to the date of his death, did he frequently, in the daytime, pass over said track and over said culvert in the discharge of the duties as brakeman?” and answered, “No”; while the undisputed evidence shows that he did pass over said track and culvert frequently, almost daily, and sometimes twice in one day, during the period of time mentioned.
In findings 44 and 45 the jury say that Hinshaw was required in the proper discharge of his duties to go in between the cars while in motion to uncouple them, while all the evidence in the case shows he was not required to go in between the cars to uncouple them while moving, nor for any other purpose. The same jury say in finding 86 that there were no general orders of the company which required Hinshaw in his capacity of brakeman to go in between the cars when they were moving, and in finding 90 they say Hinshaw did not act in obedience to any direction of the conductor of the train in going in between the cars to uncouple them. In finding 36 they say that orders were given Hinshaw to uncouple said cars, while all the evidence on the point negatives such a conclusion.
There are other findings that are against the evidence, but we will not notice them, as they are less material than these, and we have noticed enough to show that the jury made many of their findings in utter disregard of the evidence. "When there is a conflict in the testimony of witnesses it is the exclusive duty of the jury to weigh and determine what facts such evidence proves, and when there is any proper evidence which supports the verdict of the jury, such verdict will not be set aside, although the apparent weight of the evidence is against the finding; but where there is no evidence to support a finding, and .much more when the finding is against all the evidence in the case, it should be set aside.
The defendant below saved many exceptions to the rulings of the trial court refusing to admit evidence offered by the said defendant, and has assigned as error such rulings. While we think it is unnecessary to say whether there is reversible error in such rulings, we desire to say we think the rule of evidence was held very rigid against the defendant all the way through the trial.
There is one other matter that we wish to call attention to: the defendant presented to the court and requested the court to submit to the jury 121 special questions, 33 of which the court refused to submit, which refusal is assigned as error. We do not think the court erred in this. On the other hand, we think the court might with great propriety have cut out and refused to submit a great many that were submitted. There is a good deal of aptness and force in the remark of counsel for defendant in error, when they say that the statute provides for special verdicts, but does not provide for a cross-examination of the jury on the subject of their general finding. It looks too much as though counsel present questions for submission to the jury for the mere purpose of entrapping the jury. The statute does not contemplate any such practice. This matter was referred to in 16 Kas. 190. The court there says:
“Under chapter 91 of the laws of 1874, either party may request of the court to submit to the jury a question as to a particular fact, and if the fact be involved in the issues, and material to the controversy, the court has no discretion, but must submit the question and require the jury to answer.”
Again, in 21 Kas. 484. In 25 Kas. 198, the court says: “ It is generally error for the trial court to refuse to submit to the jury questions of fact material to the case and based upon the evidence.” In 25 Kas. 243, the court says: “A party has a right in a jury trial to have answers returned, to specific questions as to material facts”; but the court adds: “This right is not one which enables him to determine what are material facts and what questions must be answered. He may present any number of questions for submission, as any number of instructions, but it is the duty of the court to determine what in the one case shall be submitted, as in the other what shall be given.” In 39 Kas. 204, another phase of this question is discussed.
An examination of all these authorities discloses that the law upon this subject is settled by this court as follows: First, a party has a right to have special questions submitted to a jury where the questions are material under the is sues and the evidence. Second, that it is the duty of the court to determine what questions are material under the issues and the evidence, and to reject all questions not material. Third, when questions are submitted the court must require the jury to return a direct and positive answer thereto. It follows that the trial court should pursue such a course touching the submission of special questions to the jury as will limit the questions submitted to material questions, and not permit the changes to be rung on them, resulting in a repetition thereof.
We recommend that this case be reversed, and remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
This is an action for damages growing out of the same fire complained of in the case of Mo. Pac. Rly. Co. v. Cady, just decided. The questions raised in this case are identical with the questions in that; and the same briefs are filed in each. The questions in this case are also practically the same as the questions raised in the case of Mo. Pac. Rly. Co. v. Merrill, 40 Kas. 404.
The judgment of the district court will be affirmed.
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Opinion by
Green, C.:
On the 9th day of December, 1889, the city council of Topeka passed an ordinance annexing a large number of platted and unplatted tracts of land to the city; this ordinance was approved by the mayor on the 10th day of December, and duly published as required by law. On the 15th day of January, 1890, the mayor of the city presented the ordinance, accompanied with the certificate of the city clerk and affidavit of the printer, showing that said ordinance had been passed and published, to the district court of Shawnee county, and asked that the same be approved, in accordance with § 1 of chapter 99 of the laws of 1887. The plaintiff in error appeared in court and' objected to the approval of said ordinance, and assigned, among other grounds, that the court had no jurisdiction to act upon said ordinance. The record discloses the fact that after hearing all of the objections, proofs and evidence, the court took the matter under advisement until the following day, when the following findings and judgment were made, and entered of record:
“Thereupon this cause comes on for decision and approval, it having been heretofore heard and taken under advisement by the court; and the court being fully advised in the premises, finds:
“First, that a correct copy of the above-described ordinance of said city of Topeka, to wit, ordinance No. 1060, duly certified by the clerk of said city under its seal, also affidavits showing the publication of said ordinance, have all been properly filed with the clerk of said court, as provided by law.
“ Second, the court further finds that none of said tracts of unplatted territory described in said ordinance exceed five acres, and that said ordinance was duly passed by the mayor and councilmen of said city and duly approved by said mayor, and that said ordinance was duly and properly published for the time and in the manner as required by law, and that said ordinance therefore ought to be in all things approved by the court.
“It is therefore considered, ordered and adjudged by the court that the said ordinance be and the same is hereby entirely and in all things approved, and each and all of the platted and unplatted territory set out and described in said ordinance is hereby adjudged to be duly and properly taken into and added to the city of Topeka, and to be in all respects and for all manner and purposes a part of said city.”
No evidence was introduced upon the part of the plaintiff in error. A number of errors are assigned by the plaintiff in error, but we think they are all covered by the one controlling question, and are included in the first proposition of the plaintiff in error, that the provisions of § 1 of chapter 99 of the Laws of 1887 are unconstitutional and void. This question we will consider. We have recently been called upon to pass upon a similar act (§1 of chapter 69 of the Laws of 1886), relating to the annexation of territory to cities of the second class, in the case of Callen v. Junction City, 43 Kas. 627. The law was upheld in the case of cities of the second class. The procedure is almost the same. In the case of cities of the second class, the proposed ordinance is prepared and submitted with a petition to the district judge of the county in which the city is situated, having first been published for three consecutive weeks in some newspaper" published in the city. Upon the presentation of such petition, with proof of notice, he shall proceed to hear testimony as to the advisability of making such addition; and upon such hearing, if he shall be satisfied that the adding of such territory to the city will be to its interest, and will cause no manifest injury to the persons owning real estate in the territory sought to be added, he shall so find. In the case of cities of the first class the ordinance is passed by the council, and within twenty days thereafter published. Upon the completion of the publication the mayor of the city, at the first regular term of the district court of the county in which the city is situated, commencing twenty days thereafter, shall present to the court a copy of the ordinance, duly certified by the clerk of the city, under seal, and also affidavits showing that the ordinance had been published. The law then makes it the duty of the court to determine whether said publication has been made in accordance with the statute, and to consider the ordinance, and by its judgment either approve, disapprove or modify the same, first hearing all objections, if any, and proofs, if any, offered by the city or persons affected by said ordinance.
The statute requires that the ordinance shall be published in the official paper; and when publication shall have been made, the chief officer of the city shall, within a certain time, present said ordinance to the court, with proof of publication. This publication is to give notice to all persons interested, that they may have a hearing upon the question of the annexation of the territory. The statute confers the power upon the court to first hear all objections offered by the city or persons affected by the ordinance, and then approve, disapprove or modify the same. It would seem that this brings this case within the rule established in the case of Callen v. Junction City, supra. The court said, in that case: “The judge has power, after such a hearing, to approve, disapprove or modify the proposed ordinance, and to make findings which in effect control the extension of the limits of the city. It would seem that by its terms the section in question does not require the judge to perform any other duty than one purely judicial in its character.” In the case of cities of the first class, the court has the power, by its judgment, either to approve, disapprove or modify the ordinance, after hearing all objections made by persons affected by said ordinance. The legislature has declared how the corporate limits of a city may be extended — by the passage and publication of an ordinance. This ordinance, to be operative, must be examined by the court; objections may be made, proofs heard, and the ordinance may be approved or rejected. We think the authority conferred upon the court is in the nature of judicial power. This case is so nearly analogous to the case of Callen v. Junction City, supra, that we are constrained to hold, under the authority of that case, that the statute is valid.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
The questions in this case are identical with those in Coal Co. v. Emlen, ante, p. 117. That case and this were tried and submitted together, and upon the authority of that case the judgment of the district court will be reversed, with directions to the court below to allow the order of injunction.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Simpson, C.:
Catherine A. Holcomb brought her action against the Missouri Pacific Railway Company to recover damages for personal injuries occasioned, as she alleges, by the negligent, careless and unskillful management of the train upon which she was a passenger. These personal injuries consisted in a fracture of the upper part of the thigh bone, and other serious wounds, caused by the sudden and violent jerking of the car in which she was riding as it started from the station, throwing her with great violence out of her seat and upon the floor, thus producing the injuries complained of. Mrs. Holcomb was a widow, with a family of six children, and at the time of the injury was fifty-five years old, possessing an unusually strong and vigorous constitution, had not been sick for more than five years, was doing, and for years had been doing, all her own household work .and washing without assistance. From the time of the injury up until about the 4th day of July, 1887, she was compelled to and did remain night and day propped up in an easy-chair. After that date she became able to lie a part of the time on a couch, and then she improved so that she could go about the house on crutches, but not able to ascend stairs, aud she remains permanently crippled and unable to do any work, except such as she can do sitting in a chair. At the time of the last trial she had decreased in weight about fifty pounds.
The train upon which Mrs. Holcomb received the injury complained of consisted of thirty-six freight cars, twenty-seven empties and nine loaded. It was known as a local freight, scheduled to carry passengers, and had been running at about the same time for several years, carrying passengers. This train usually left Paola, going east, at 1:40 P. M., but on this day (December 10, 1886) it was about two hours behind the regular time. It usually carried more passengers from two stations east of Paola, to and from that point, than the regular passenger train, as the time of its arrival and departure to and from Paola was more convenient to the people living in the eastern part of the county, than the regular passenger train. She purchased a ticket from the company’s agent at Paola for passage on the train on which she received' the injury, paying the regular price charged on all trains between that station and the station of Louisburg, where she was going. Other passengers going to the two stations east of Paola also bought tickets from the company’s agent for passage on this particular train. The regular caboose usually attached to this train was in the repair shop, and an ordinary box-car, fitted with two rough pine seats, covered with caboose cushions, was being used in its place. She went aboard the train at Paola, and took a seat in the box-car at the southeast side of the car, two or three feet from the sliding door on the side. The train ran to Somerset, the first station east of Paola, a distance of six or seven miles. When the train started at Somerset it did so with a violent jerk, that threw Mrs. Holcomb oh the floor of the car near the center, and inflicted the injuries complained of. She was picked up by one of the crew and a passenger and placed in a chair, and when the train stopped at Louisburg was carried in a chair to a carriage, and taken to her home. At the time the train started at Somerset with the “ violent jerk” which threw Mrs. Holcomb out of her seat, a brakeman in the car was braced against the side of the car; Reid, a passenger, was holding on to the door with both hands; Huddleson, a passenger, was holding on to an iron hand-hold by the side of the door; and Mathers, a passenger, had a hold on the side of the ladder. These persons all testified at the trial, explaining how they were protected from injury by the movement of the train as it started from Somerset. The case was twice tried by a jury, the first trial resulting in a verdict for $4,643.74; this being set aside, the court sustained a motion for a new trial, and this trial resulted in a verdict for $5,000 in favor of Mrs. Holcomb. The following special findings were returned by the jury:
“1. Did the plaintiff on December 10, 1886, at Paola, Miami county, Kansas, get in the rear car of defendant’s train No. 138, commonly known as the ‘local freight’? Ans.: Yes.
“2. Did the defendant’s ticket and station agent at Paola, Kansas, tell the plaintiff on the arrival of said train, ‘This is your train,’ or words to that effect?' A. Yes.
“3. Was said train at that time, and had it been for a number of years prior thereto, used for the conveyance of freight and passengers over the defendant’s line of railroad to and from Paola and Louisburg, in Miami county, Kansas, and other points on its said line? A. Yes.
“4. Did ladies, as well as others, frequently ride upon said train? A. Yes.
“5. Was the rear car of said train the only one used for conveying passengers? A. Yes.
“6. Did the defendant’s brakeman assist the plaintiff to enter said rear car of said train at Paola, Kansas, on December 10, 1886? A. Yes.
“7. Was the car the plaintiff so entered an ordinary boxcar with a long seat constructed on and along the wall on each side of which seats were covered with cushions, and which car was then being used instead of the usual caboose run on the rear end of said train? A. Yes.
“8. Was said car plaintiff entered, as aforesaid, used on said train for about two weeks in lieu of the said caboose ear to carry passengers, and did passengers with the consent of defendant ride in it during said time it was so used ? A. Yes.
“8-J-. Did the conductor of said train before arriving at Somerset take up a ticket plaintiff had purchased at the regular price of forty cents from defendant’s ticket and station agent at Paola, Kansas, for passage from Paola to Louisburg, in Miami county, Kansas? A. Yes.
“9. How many of the passengers were aboard of said car when plaintiff’s ticket was taken up by the conductor ? A. Five or six.
“ 10. While in said car on said 10th day of December, 1886, on the way to Louisburg, without any fault on her part, was she injured by the negligence of defendant’s agents, or either of them, operating said train ? A. Yes.
“11. How many other passengers were on or in said car at the time the plaintiff was injured? A. Two or three.
“12. At the time plaintiff sustained the injury, was she sitting properly and securely on the seat provided for passengers in the rear car of said train ? A. Yes.
“13. Was the plaintiff thrown violently from the seat she was sitting upon, her side upon the floor of said car by the sudden, violent, unnecessary and negligent jerking of said train in starting the same at Somerset? A. Yes.
“14. Was the injury plaintiff sustained on said train at Somerset directly caused by negligence of the defendant’s agents, or either of them, in operating or managing said train, and without any negligence on the part of the plaintiff? A. Yes.
“14J. By reason of the plaintiff being violently thrown from her seat in said car to the floor by the negligence of the defendant in violently and negligently jerking said car in starting said traiu, was she seriously and permanently injured, and was the upper part of her thigh bone fractured, and other parts of her body bruised and injured? A. Yes, to injury; but uncertain as to fracture.
“15. Was the plaintiff, by reason of being thrown to the floor by the negligent and violent starting of the train, rendered unconscious? A. Yes.'
“16. How far was plaintiff thrown from her seat by the sudden and violent starting of the train? A. Two or three feet.
“ 17. Could the engineer, by the exercise of reasonable care and prudence, have avoided the violent jerk of the car that threw the plaintiff from her seat to the floor? A. Yes.
“18. Was the engineer careless in starting the train at the time the plaintiff was thrown from her seat? A. Yes.
“19. Was the train on which plaintiff was injured authorized to carry passengers ? A. Yes.
“20. By reason of the plaintiff being thrown from her said seat in said train at Somerset, by the negligent and violent starting of the train, did she sustain injuries which have permanently crippled and disabled her? A. Yes.
“21. Was the health and constitution of the plaintiff at the time of injury unusually good and vigorous for one of her age, and up to that time had she been able and did she perform the work of her household, consisting of washing, ironing, cooking, sewing, etc., for a family of four to seven persons? A. Yes.
“22. Since said injury has she declined very much in flesh, and been unable to work or care for herself without assistance, and is she still in that condition? A. Yes.
“23. By reason of said injury has plaintiff suffered great pain and loss of previous good-health ? A. Yes.
“24. Does the plaintiff still suffer pain resulting from said injury? A. Yes.”
The following questions were asked by the railroad company, and answered as follows:
“1. Did the plaintiff go upon one of defendant’s freight trains at Paola to be carried upon said train to Louisburg ? Ans.: Yes.
“2. Was plaintiff riding on one of defendant’s freight trains at the time she received the injuries complained of in this .action ? A. Yes.
“3. When plaintiff went aboard of defendant’s train at Paola, on the 10th day of December, 1886, did she get into a box-car provided with a temporary seat for the use of the train-men that were engaged in running the freight train? A. Yes; and also used for passengers.
“4. Was there any passenger car or caboose in the train that plaintiff took passage upon at Paola for the purpose of riding to Louisburg? A. Yes; an improvised caboose.
“5. Had the train that plaintiff took passage in at Paola for the purpose of riding to Louisburg, any car intended solely for the carriage of passengers? A. No.
“ 6. If the jury answer the last question in the affirmative, they will please state what kind of a car it was? A.--.
“7. Was the plaintiff sitting near the end of the seat constructed of boards that had no guards to prevent her from slipping off in case of a sudden jerk of the car? A. Yes; from one to two feet from end of seat.
“8. When the train started up at Somerset, did it start up with a jerk; [answer inserted here, “ Yes;”] and did plaintiff slip off the end of the seat and fall on the floor of the car and strike the floor with the back part of her thigh ? A. No; thrown off.
“9. Was the injury received by the plaintiff caused by reason of the failure of the defendant to provide a safe car for the carriage of passengers? A. No.
“ 10. Was the failure of the railway company to provide a safe car furnished with convenient and well-arranged seats the cause of the injury to plaintiff? A. No.
“11. Did the plaintiff make any effort to save herself from falling off the seat when she heard the rattle of the cars in pulling out the slack? A. Yes.
“12. If the jury answer the last question in the affirmative, they will state what effort was made? A. By bracing with her hands.
“13. How far was plaintiff lying on the floor from the seat on which she had been sitting? A. Two to three feet.
“14. In what direction was plaintiff lying on the floor from the seat where she had been sitting? A. Northwest.”
The first error complained of was the refusal of the trial court to give the following instruction:
“If the jury find from the evidence that the train upon which the plaintiff was riding at the time she received the injury complained of was simply a freight train, and had no passenger coach or caboose for the carriage of passengers; that it was simply provided with a box-car with improvised seats and benches for the accommodation of the men connected with the train; that they slept in it, and deposited the lamps of the cars, and tools that they used in it, and it was not adapted for passengers; and the plaintiff entered the car with the full knowledge of these facts, and paid fare to be carried on said train — the same being only used or intended for the carrying of freight — then in the carriage of plaintiff the defendant was simply a private carrier for hire, and as such carrier, being only a freight train, it was not under the same obligation and responsibility which attaches to common carriers of passengers by rail. The latter undertakes for hire to carry all passengers indifferently who apply for passage; and the law for the protection of travelers subjects such carriers to very strict responsibilities. The defendant in this case would not be subject to the stringent obligations and responsibilities of a common carrier of passengers if it did not hold out itself as capable of carrying passengers safely, and had no arrangement of this train for passenger service. It was not required to provide its freight trains with the necessary means of carrying passengers. If the plaintiff knew its condition, and the relation to her when she applied for passage, she therefore took upon herself the risk incident to the mode of conveyance used' by defendant. Under these circumstances the defendant was only required to exercise such care and skill in the management and use of the train as prudent and cautious men experienced in such business are accustomed to under similar circumstances.”
This instruction totally ignores the fact that this train had for some years been carrying passengers; that the railroad company had sold this passenger a ticket that entitled her to ride on this train; that it was the bounden duty of the company to furnish the passengers a reasonably well equipped car to ride in, and that if by an accident the regular caboose usually provided for passengers could not be used, and the improvised box-car used on that occasion was more dangerous to the passenger than the caboose, that the degree of care on the part of the company was thereby increased. It cannot be the law that a railroad company furnishing inferior accommodations to its passengers is protected from liability on account of the inferiority. It is the law of this country, as we understand it, that < 7 t passenger riding on a freight train is entitled to demand from the railroad company transporting him the exercise of the highest possible degree of care and diligence to which such trains are susceptible. (Topeka City Rly. Co. v. Higgs, 38 Kas. 375.) The supreme court of the United States in the case of I. & St. L. Rld. Co. v. Horst, 93 U. S. 291, say (p. 295, commencing with the last paragraph on the page):
“Such is the rule of care and diligence laid down by this court in three adjudications where the action was against a carrier of persons. The first was the P. & R. Rld. Co. v. Derby, 14 How. 486. The plaintiff was traveling gratuitously on a passenger train. It was said, ‘Where carriers undertake to convey passengers by the powerful and dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence.’ ‘Any negligence in such case may well deserve the epithet of ‘gross.’ ” The next was The New World v. King, 16 How. 469. That was the case of a free passenger carried on a steamer, and injured by the explosion of a boiler. Eeferring to the rule laid down in the prior case, the court said: ‘We desire to reaffirm the doctrine, not only as resting upon public policy, but on sound principles of law.’ The last case was the N. Y. C. Rld. Co. v. Lock, 17 Wall. 357. That was a case like this, of a passenger accompanying his cattle on a freight train. It was there said: ‘ The highest degree of carefulness and diligence is expressly exacted.’ This is conclusive as authority upon the subject. But, upon principle, why should not the law be so in this case? Life and limb are as valuable, and there is the same right to safety in the caboose as in the palace car. The same formidable power gives the traction in both cases. The rule is uniformly applied to passenger trains. The same considerations apply to freight trains; the same dangers are common to both. Such care and diligence are as effectual and as important upon the latter as upon the former, and not more difficult to exercise. There is no reason in the nature of things, why the passenger should not be as safe upon one as the other. With proper vigilance on the part of the carrier, he' is so. The passenger has no authority upon either, except as to the personal care of himself. The conductor is the animating and controlling spirit of the mechanism employed. The public have no choice but to use it. The standard of duty should be according to the consequences that may ensue from carelessness. The rule of law has its foundation deep in public policy. It is approved by experience, and sanctioned by the plainest principles of reason and justice. It is of great importance that courts of justice should not re lax it. The terms in question do not mean all the care and diligence the human mind can conceive of, nor such as will render the transportation free from any possible peril, nor such as would drive the carrier from his business. It does not, for instance, require with respect to either passenger or freight trains, steel rails and iron or granite cross-ties, because such ties are less liable to decay, and hence safer than those of wood • nor upon freight trains air-brakes, bell-pulls, and a brakesman upon every car; but it does emphatically require everything necessary to the security of the passenger upon ■either, and reasonably consistent with the business of the carrier, and the means of conveyance employed. The language used cannot mislead. It well expresses the rigorous requirement of the law, and ought not to be departed from. The rule is beneficial to both parties. It tends to give protection to the traveler, and warns the carrier against the consequences of delinquency. A lower degree of vigilance than that required would have averted the catastrophe from which this litigation has arisen.”
A fair application of this rule would reach this case even if the facts were that Mrs. Holcomb was riding on a train that was used exclusively for freight, if the agent of the company had taken her money and given her a seat in a freight car. But we are dealing with a state of facts here where it appears that this local freight was advertised to carry passengers, and had been doing so for years. The instruction refused, therefore, ignored the facts, and misstated the law. Every instruction asked for by the railroad company about which it now complains, ignores the fact that this train was advertised to and did carry passengers. It is doubtful whether they are good as applied to a freight train that was not in the habit of carrying passengers, but they are certainly not good as applied to this train. A railroad company cannot for years carry passengers on one of its freight trains, and then escape liability for injuries occasioned by negligence or reckless management by denying that the ordinary rules governing common carriers for hire do not apply to its trains of this character. There were no errors committed by the trial court in refusing the instructions asked for by the railroad company. The general charge of the court was unusually liberal to the company in a case of this character. Take these selections from the instructions, and it will be seen that there was no prejudice against the company: «
“The company may permit passengers to ride upon its freight trains, and when a person elects to ride as a passenger on a freight train, such passenger assumes all the dangers and discomforts ordinarily and necessarily incident to such mode of travel.”
“The plaintiff cannot recover for the failure of the company to provide a suitable car.”
It is asserted that the jury answered the second question submitted by the plaintiff below directly contrary to the evidence, but we find in the record that Reid, a passenger on the train, testified that he saw the agent point out the train to Mrs. Holcomb, and say to her, “This is your train.” The “violent jerk” was the proximate cause of the injuries to Mrs. Holcomb, causing her to be thrown from the seat onto the floor. The locomotive engineer of the train was a witness on behalf of the railroad company, and testified at the trial “ that he could have moved the train so slow that you would scarcely see it moving.” This is a complete answer to the claim of the company that the injuries were the result of unavoidable accident, and explodes the theory that the starting of a freight train is necessarily accompanied with a series of violent jerks occasioned by “taking out the slack.” The conduct of the engineer and those in charge of the train was not only reckless and grossly negligent in the management of the train, but they were also unmindful of the ordinary promptings of human nature to try in some way to alleviate the physical sufferings of a human being. f
The verdict and judgment are right, abstractly and judicially; and we recommend an affirmance.
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 Cloud county by Edward Linney, as the owner, holder and indorsee of a promissory note for $1,250 against A. A. Thompson and eighteen others as the makers, and C. W. Culp as the payee and indorser, and C. W. McDonald as a prior holder and indorser. Service of summons was obtained upon McDonald in Cloud county, and upon the other defendants in Mitchell and Jewell counties. The defendant Culp demurred to the plaintiff’s petition upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled; and then he filed an answer. The other defendants, except McDonald, filed a motion to set aside the summons and the service of the same upon them, and to dismiss the plaintiff’s action, for the following reasons :
“1. None of these defendants, nor any of the real defendants in this action, reside in the county of Cloud, nor were any of these defendants summoned in this action in said-county of Cloud.
“2. The alleged note sued on in this action is the property and is owned by the defendant C. W. McDonald, and the plaintiff in this action has no right, title or interest therein.
“3. The defendant C. W. McDonald is not a real party to this action; is not liable to the plaintiff upon the pretended indorsement of the note sued on; and said defendant C. W. Culp does not reside in the county of Cloud, and was not summoned in this action within said county.
“4. This action is not prosecuted in the name of the real plaintiff, party in interest, but is only prosecuted in the name of the plaintiff, in furtherance of a conspiracy between plaintiff and the defendant C. W. McDonald, whereby it is agreed between said parties that the defendant McDonald should, without consideration, deliver the note sued on in this action to the plaintiff, and that plaintiff should bring this action in Cloud county against the said McDonald, said Culp, and these defendants, solely for the purpose of enabling said McDonald to, in effect, bring suit in this action against these defendants, who neither reside nor can be summoned in Cloud county.”
The plaintiff then moved to dismiss the above motion, and for judgment upon his petition as upon default, all the defendants except Culp, being in fact in default for want of an answer. The plaintiff’s motion was overruled and the defendants’ motion was then heard over the objections and exceptions of the plaintiff, he all the time claiming that the defendants had made a general appearance in the action, Culp actually and the other defendants by their motion, and that the questions sought to be raised by the motion could not be tried in any manner except upon a trial upon the merits of the action. The motion was to be heard, and we suppose was heard, upon affidavits and other evidence, and was sustained by the court, and the plaintiff’s action as to these defendants was dismissed, and judgment was then rendered against him and in their favor for costs. The plaintiff then moved to set aside and vacate the aforesaid order, decision and judgment, for various reasons, which motion the court overruled; and the plaintiff then, as plaintiff in error, brought the case to this court for review.
It would seem that the main and principal question presented in the court below was whether the plaintiff, Linney, was the real owner and holder of the promissory note sued on. If he was not, then of course he could not maintain the action in Cloud county, nor in any other county; but if he was such owner and holder, then he had the right to main tain his action just as he brought it, in the county in which he brought it, and upon the service of summons which was actually made in the case. The defendants claim that Linney was not the owner of the note, and that McDonhld was, and that they conspired together to bring the action just as it was brought, for the purpose that it might be litigated in Cloud county; and they further claim that this was an abuse of judicial process authorizing the decision of the court below; and they cite such cases as Van Horn v. Manufacturing Co., 37 Kas. 523, as authority. On the other hand, the plaintiff claims that the question as to whether he was the owner of the note or not was one going to the merits of the action; that it could not be determined except at a trial upon the merits and upon such evidence only as might properly be introduced upon a trial of the case upon its merits, and could be determined only by a jury unless both parties should choose to waive a jury; and he cites among others the case of Drea v. Carrington, 32 Ohio St. 595, as authority therefor. Several Kansas cases are also cited by the parties, as follows: Hendrix v. Fuller, 7 Kas. 331; Brenner v. Egly, 23 id. 123; Rullman v. Hulse, 32 id. 598; same case, on rehearing, 33 id. 670; Van Horn v. Manufacturing Co., 37 id. 523. We do not think that any one of the Kansas cases is precisely in point. In none of the Kansas cases, except the Brenner case, was the question to be heard and decided a vital question involved in the merits of the case as in the present case, and the Brenner case was tried upon its merits. In the Van Horn case the question was whether one of the defendants had been by fraud and deceit inveigled into a jurisdiction other than the one in which he resided, for the purpose of suing him in the foreign jurisdiction. In the Rullman case the question was whether an attachment should be dissolved or not. See particularly this case on rehearing. In the case of Hendrix v. Fuller, all the defendants were non-residents of the county where the action was brought, but service of summons was accepted by counsel for one of the defendants before the other defendant was served with summons; while in the present case the voluntary appearance of Culp was not made and his demurrer and answer were not filed until after the service of the summons upon the other defendants was made. We think however that the case of Drea v. Carrington, 32 Ohio St. 595, is applicable to this case, and we are inclined to follow it. That case was decided under statutes almost precisely identical with the statutes of this state applicable in such cases. Section 55, article 5, and § 60, article 6 of the civil code, read as follows:
“Sec. 55. Every other action must be brought in the county in which the defendant, or some one of the defendants, reside or may be summoned.
“Sec. 60. Where the action is rightly brought in any county according to the provisions of article 5, a summons shall be issued to any other county against any one or more of the defendants, at the plaintiff’s request.”
In order that the district court of Cloud county should obtain jurisdiction by summons over the parties residing in Jewell and Mitchell counties, it was qecessary, under the foregoing sections of the statutes, that the present case should have been “rightly brought” in Cloud'county as against McDonald ; and whether it was “rightly brought” in that county or not as against any one of the defendants, depended solely upon the question whether Linney was the owner of the note sued on, or not. If he was the owner of the note, then the suit was rightly brought in Cloud county; but if he was not the owner of the note, then he could not have rightly brought an action on the note in any county. Under the allegations of the plaintiff’s petition, he was the owner of the note; therefore the question whether the action was rightly brought in Cloud county, or not, depended solely upon the truth of the allegations of the plaintiff’s petition; and in all such cases the supreme court of Ohio decides that the question must be raised by an answer, and not by a motion; and if the action is one for the recovery of money only, as this action is, then either party has a right to have the question tried by a jury. (Civil Code, § 266.) The question whether the plaintiff was the owner of the note sued on, or not, is not only a questiou which should not be heard upon a motion merely, upon the hearing of which affidavits may be used, but it could hardly be heard and determined upon a pure plea in abatement. A decision sustaining a plea in abatement usually does nothing more than to abate the action, leaving all the questions involved in the merits of the action open to be subsequently litigated and determined in some other form, or at some other time, or in some other court or jurisdiction. But a decision of the present question in favor of the defendants would be a determination against the plaintiff upon the merits of his action. It would be a determination that he had no cause of action to be litigated or enforced against any person, at any time, in any form, or in any court or jurisdiction. It would be a decision that the allegations of his petition setting forth his cause of action were not true. And if the allegations of his petition setting forth his cause of action were not true, he could not go to Jewell county, or to Mitchell county, or anywhere else, and maintain an action upon the note against the defendant or against anyone else.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an action of trover, to recover damages for the conversion of certain sheep, begun in the district court of Harvey county on the 18th day of Feb ruary, 1886. The right of the plaintiff below to recover was based on certain chattel mortgages which had become absolute, and an unsuccessful demand for the possession of the sheep. The defendants answered: First, a general denial; second, superior claims in themselves and third parties, whom they ask to have made parties; third, claim an agister’s lien; to which plaintiff’s reply was a general denial. On the 14th day of May, 1887, the case was tried by the court and a jury, resulting in a verdict and judgment for the plaintiff for $1,922.60. A motion for a new trial followed, which was overruled; to which ruling the defendants excepted, and file their case-made in this court, asking a reversal of the judgment of the district court.
February 13, 1885, the plaintiff below was the owner of 1,500 sheep, which on that day he sold to H. C. Reeder for $3,000, taking Reeder’s notes therefor in the sum of $1,500 each, the last note due to run ten months; and to secure the payment of said notes he took a chattel mortgage on the sheep sold by him to Reeder. Said mortgage was placed of record in Reno county February 20, 1885, and in Harvey county October 24, 1885. January 2, 1885, Reeder gave to the Bank of Burrton a mortgage on 200 head of sheep, with some other property, to secure the payment of a debt of $1,622.10. This mortgage was recorded January 21, 1885. January 19, 1885, Reeder gave to J. E. Howard a mortgage on 3,000 sheep to secure the payment of a note for $3,000. This was recorded March 28, 1885. July 10, 1885, Reeder gave to the First National Bank of Newton a mortgage on 600 yearling sheep, mixed wethers and ewes, to secure a debt of $500. This mortgage was recorded July 11, 1885. Defendants below took possession of all the sheep Reeder had on the 8th day of September, 1885, and refused to return to the plaintiff the sheep covered by his said mortgage; whereupon the plaintiff brought this suit. The first question raised by the plaintiffs in error is, that the petition of the plaintiff below does not state a cause of action; that Reeder, the maker of the notes and mortgage under which the plaintiff below claims, was not a party to the suit; that the indebtedness against him in favor of the plaintiff below had never been judicially ascertained, and that an action will not lie on behalf of the plaintiff against the defendants below until the indebtedness between the mortgagee, the plaintiff below, and Reeder, the mortgagor, is liquidated, without making Reeder a party thereto. We do not think this position is tenable. This is an action of trover, an action sounding in tort. The gist of the action is the conversion, the wrongful act of the delendants, and not the right of the plaintiff to recover anything of Reeder. While the plaintiff’s right to the possession of the sheep flows from his mortgage thereon and the breach of its conditions, yet, it is wholly unnecessary to ascertain the amount of the indebtedness between plaintiff an<;l Reeder before bringing suit against the defendants, because by this breach of the conditions of his mortgage by Reeder the plaintiff at once became entitled to the possession of the sheep; and, being entitled to the possession, he may bring his action to recover the possession as an action of replevin, or he may bring his action to recover damages for the wrong done him by taking and withholding from him the possession, as an action of trover or an action of trespass. This suit was not brought by the plaintiff below against the defendants below to recover from the defendants his debt against Reeder. It was to recover damages of the defendants for their wrong done the plaintiff in taking and withholding from him the possession of the sheep which he was entitled to; and the only relation the indebtedness between the plaintiff and Reeder sustains to this suit is, that the law has declared the measure of damages between the plaintiff and the defendants to be the amount due the plaintiff on his debt secured by the mortgage from Reeder. The plaintiff’s right to maintain this action is thus founded in reason, and it is supported by an unbroken line of authorities, so far as we have been able to discover. In Smith v. Konst, 50 Wis., Mr. Justice Taylor says:
“The respondent, as mortgagee after condition broken, had the legal title to the property, and the right to the possession thereof, against everybody; and his right to recover against every person unlawfully converting the same in hostility to his rights as mortgagee was just as perfect as if he had been the absolute owner thereof; the only difference being that, as against persons claiming under the mortgagor, or his assignees, his right to damages would be limited to the amount due upon his mortgage.”
In Corbin v. Kincaid, 33 Kas. 649, 652, Mr. Justice Valentine says:
“The defendant below had actual knowledge of the plaintiff’s mortgage and of his rights, and took possession of the property with such knowledge, claiming to havé the prior right thereto, in violation of the plaintiff’s rights; and all this transpired within less than one year after the execution of the plaintiff ’s mortgage, and at a time when no one would claim, or even pretend, that any renewal affidavit was necessary. A cause of action in replevin, or for conversion, then arose in favor of the plaintiff and against the defendant, and that cause of action was not satisfied, annulled or barred by any failure on the part of the plaintiff to afterward file a renewal affidavit.”
“A second mortgagee of a chattel who takes the same from the possession of the mortgagor and sells it and receives the full consideration of the sale, without regard to the rights of the senior mortgagee, is liable to the latter in an action for the conversion of the chattel.”
See also Lowe v. Wing, 56 Wis. 31; Bailey v. Godfrey, 54 Ill. 507; 12 Wis. 245; 11 id. 375; 70 Ill. 302; 20 Wend. 19; 73 Mo. 672; 42 Mich. 12; 2 Speers, 181.
Reeder owned a lot of sheep, and gave the Bank of Burr-ton a mortgage on sheep and other personal property for $1,622.10 to secure so much alleged indebtedness. Afterward he gave a mortgage to J. E. Howard on 3,000 sheep to secure an alleged indebtedness of $3,000. Afterward Reeder purchased 1,500 sheep of Burns, and gave Burns a mortgage thereon to secure the purchase-money, $3,000. The mortgages to the Bank of Burrton and to J. E. Howard were given in January, 1885 — the former on the 2d and the latter on the 19th. The mortgage to Burns was given on the 13th of February, 1885. Of course the mortgages to the Burrton bank and J. E. Howard could not be a lien on the sheep contained in the Burns mortgage, because they did not cover the Burns sheep. Reeder did not have the Burns sheep at the time he made the mortgages to the Burrton bank and Howard. The mortgage to the First National Bank of Newton was made by Reeder July 10, 1885, but it recites that the sheep covered by it were the same sheep mortgaged by Reeder to Gorman October 28, 1884. So the mortgage to the Newton bank did not cover any of the Burns sheep, and therefore could not be a lien thereon, no matter when recorded. So far then as these mortgages were concerned, only the Burns mortgage was a lien on the Burns sheep. It is admitted that the defendants took all the sheep Reeder had on September 8, 1885, into their possession.
The condition of the Burns mortgage was broken, and Burns thereby became entitled to the possession of the sheep covered by his mortgage in the hands of Howard and the Bank of Burrton, and if they refused to surrender them to him, he could, as we have seen, maintain his action to recover damages for the conversion of them. But it is alleged that at the time when the sheep were taken possession of by the Burr-ton bank and Howard, they were sick and lame, and they cared for them, doctored and fed them, and that they were entitled to a lien on them therefor. We do not think that is true. There is nothing in our statutes that gives a lien on stock under such circumstances. The defendants took the sheep from Reeder in defiance of the rights of the plaintiff, and held them all the time adversely to Burns and his rights. They took them under claim of right under chattel mortgages, which as against Reeder under our statutes gave them the title thereto, and in fact they claimed the sheep. If the sheep belonged to them they could not have a lien thereon for feeding and doctoring them, and if the sheep were not theirs, but belonged to Burns under his mortgage, and they took them without his consent, thus depriving him of his right of pos session against his will, they were guilty of a tort as to Burns which could not be the basis of any such relation between themselves and Burns as would give them the right to a lien thereon. The fact that under the law Burns could maintain trover for the conversion of the sheep excludes the idea that defendants could have a lien upon the sheep for feeding and doctoring them.
We have examined the alleged errors growing out of the admission of evidence, and do not think any material error was therein committed. Burns only testified as to the value of fat sheep. He said he had noticed the quotations of such sheep in the Kansas City market, and then stated what the market price of fat sheep was in Kansas City. In view of the fact that it was proved there was no market value for such sheep at home, his evidence as to the market prices at Kansas City was probably admissible. But as it seems to be conceded that there were no fat sheep, the evidence of Burns thus given was not material. And the same may be said of Reeder’s statement as to what he was told about the value at Kansas City. The claim that Burns’s mortgage was void because not immediately filed in Harvey county, is not good. (33 Kas. 649; 20 Ohio, 161.) And besides, defendants had actual knowledge of plaintiff’s mortgage all the while. This brings us to the last question: Was the verdict so excessive that it must have been given under the influence of passion and prejudice, and therefore ought it to be set aside ? íhe plaintiff went to the county of the defendants to bring his suit, and there it was tried. Burns says there were seven or eight hundred of his sheep when taken by defendants. Rodgers says there were 500 in February, 1886. Defendants assert many of the .sheep had died before that. Just how many of Burns’s sheep were taken by Howard and the bank, and what they were worth, we do not know. But the jury having considered all the evidence on this subject, and their finding thereon having been approved by the trial court, and there being some evidence upon which to base their finding, this court will not set it aside.
We have examined the instructions, and fail to find.any error therein. And we also believe they are sufficiently full, and cover all the questions involved in the case. We therefore recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. '
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The opinion of the court was delivered by
Horton, C. J.:
This was an action on a promissory note, which reads as follows:
Ci$75. Whitfield, Kas., May 31, 1886.
“Ninety days after date we promise to pay to the order of R. A. McDanille seventy-five dollars, value received, with interest at 10 per cent, per annum, payable at Logan, Kansas.
Mrs. Fred Mahuron.
John S. Morrison.”
Said note is indorsed as follows, to wit: “R. A. McDanille, Jos. F. Sherer, F. M. Plart.”
Mrs. Fred. Mahuron executed the note as principal, and John S. Morrison signed the note as surety. The note was given for a patent right to cure meats and vegetables. At one time Joseph F. Sherer owned the note. He gave it to F. M. Hart, because he did not consider it of any value. Hart, while the owner and holder of the note, sold and indorsed it to E. S. Lank, the plaintiff, in the spring of 1887, in a horse trade. The trial court instructed the jury that F. M. Hart was an indorser on the note, and was entitled to a verdict in his behalf. To this plaintiff excepted. He contends that Hart’s liability was that of an original maker. This court has decided otherwise. In Swartz v. Redfield, 13 Kas. 550, it is said: “The indorsement of a note after maturity is in effect the drawing of a new bill, payable on demand; and to hold the indorser, demand and notice of non-payment are essential.” In the present case the indorsement of the note by Hart was after maturity. If he had been a stranger to the consideration of the note, and had indorsed it in blank at the time of its execution, he could be held as a guarantor. (Firman v. Blood, 2 Kas. 496; Fuller v. Scott, 8 id. 25.) Under other circumstances he might also be held as a guarantor. (Withers v. Berry, 25 Kas. 373.)
In support of the contention that Hart was an original maker, Raymond v. McNeal, 36 Kas. 471, is cited. In that case the note was made payable to Raymond or bearer, and it was shown that Raymond signed his name under that of the maker as a joint maker, and not as an indorser. That case, therefore, differs widely from this.
The judgment of the district court must be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
This suit was commenced on the 22d day of February, 1887, in the district court of Morris county, by Mary A. Barber, administratrix of the estate of J. F. Barber, deceased, to recover damages against the Missouri Pacific Railway Company for the death of the said J. F. Barber, caused by the wrongful acts of the railway company. The petition alleges that the intestate, at the time of his death, left surviving him as his next of kin this plaintiff, who was and is his mother. The first question raised is that the petition does not state a cause of action. This question was raised by an objection to testimony under the petition, and by a demurrer to the evidence. The argument in support of it contained in the brief of the plaintiff in error is, “that the plaintiff below had no right to sue and recover a judgment in this case for her individual benefit.” “ There is no allegation that he did not leave a widow or children.” “The mother’s right to recover in this case is dependent upon the non-existence of a widow or children of the intestate, which she must allege and prove.”
This action is brought under §422 of the civil code by the personal representative of the deceased, and in the event of a recovery the judgment inures to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. A judgment in favor of the personal representative of the deceased is a bar to any other action for the same cause. The distribution of the amount of the recovery is a matter to be determined by the probate court, out of which the letters of administration issue. It does not concern the railroad company. This action is rightfully brought by the personal representative, and all allegations about next of kin are only for the purpose of showing that the deceased left heirs. There is no force in the objection to the sufficiency of the petition.
The deceased was a young man about nineteen years old, contributing to the support of his mother, and employed as a brakeman on the train of the defendant railroad company. He was killed at Emporia, early in the morning, while in the act of coupling two freight cars. One of these cars was the ordinary freight car in use on that road, with a single deadwood bumper; the other was a Pennsylvania Central freight car, having double dead-wood bumpers — one on each side of the draw-head. The standing car was the Missouri Pacific one; the Pennsylvania Central car being the moving one. The brake-beam of the moving car was out of repair, swinging loose in such a manner that when the cars struck together it swung entirely out of its place and struck the deceased (who was endeavoring to make a difficult coupling) on the legs, knocked him down onto the track, lacerated and injured one of his limbs, by stripping off the flesh to the bone from near the ankle to the knee, held him fast, and caused his death.
It is said by counsel for plaintiff in error that there is no evidence that tends to show that the death was caused by the brake-beam. The only witness who was standing in a position to clearly see, so states. He was an employé of the railroad company; he is illiterate and unskilled in expressions, but his story is a well-connected narrative, and consistent in every respect; and in addition to this, the defective condition of the brake-beam is established by other evidence. The railroad company offered no evidence. The injury resulting in the death of the young man is not attempted to be accounted for on any other theory.' The fact of injury, resulting in death, occurring at the time the deceased was engaged in making the coupling of these particular cars, is established beyond question. The defective condition of the brake-beam is fairly well proven, and this supports the story of the eye-witness, and makes it consistent with all the attending circumstances. Under the stress of these facts, the jury could not have come to any other conclusion but that the death was occasioned by the defective brake-beam.
The remaining questions in the case arise out of the inquiry as to whether the railroad company or the brakeman had notice of this defective brake-beam. The record gives no account of the Pennsylvania car, except at Emporia, on the morning the injuries happened; it is equally silent as to the train — where it was made up, and as to its destination. If it was received that morning at Emporia by the Missouri Pacific Railway Company from another company, it was the duty of the former company to have inspected it carefully, and if it was not reasonably fit for use, it should not have been received. See generally on this subject the case of Gutridge v. Mo. Pac. Rly. Co., 94 Mo. 468, the court saying:
. “The defendant contends that it had a right to assume that the car, being a foreign one, was reasonably safe and fit for the uses for which it was being used. We do not agree to the proposition as thus broadly stated. If the car had obvious defects which render it unfit for use, defendant was under no obligations to receive it, and should not have received it. Cars coming from one road to another must necessarily be subjected to wear, and are liable to be rendered unfit for use in the course of transportation, and this must be known to the receiving company. It is but the result of the most common observation. While it is not incumbent on the receiving company, on the receipt of the car, to make tests to discover hidden defects in the construction or in the materials used in the construction, still it is bound to inspect foreign cars just as it would, and is required to inspect, its own after they have been in use. This duty devolves upon the company as much in the one case as in the other.”
This commends itself to our judgment as being a clear exposition of the law on this question. It was the primary duty, then, of the Missouri Pacific Company, to have made such a careful inspection of the foreign car as to be reasonably well satisfied that it was in all respects fit for use on its road. This duty the company failed to perform. It is true that Bosnian, the company’s car inspector and repairer, testifies that he made an inspection of this car, but he states that he did so as the train moved slowly past him. He failed to discover any defects, and it must have been a glaring one that could be noticed by such an inspection. Even after the accident he made an inspection, and failed to notice any defect in the brake-beam that is established by the evidence of McGinnis. This neglect of the company’s agent to make a reasonable inspection of the condition of the Pennsylvania car before its reception is one of the important facts tending to fasten liability. The company receiving the car must act first; then it was the duty of the deceased to have noticed the defect if its condition was patent to all observers. In this case he was required to make a coupling to this particular car for the first time, so far as we know and the record discloses. Unless the defect was a patent one, or he had knowledge of it, he had the undoubted legal right to assume that the car was in a fit condition for use. So far as the evidence contained in the record discloses, the first time that young Barber ever saw this car was when he was called upon to make a coupling to it as it stood on the track. We then have this case presented by the record: A foreign car with a defective brake-beam causes such injuries to the brakeman that his death resulted. If the company did not know of the defect at the time of the reception of the car from another company, a reasonable inspection would have disclosed it. No such inspection was made — or, rather, was shown. The brakeman had a right to assume that the car was fit for service by reason of its reception by the company, unless the defect was one that 'could easily have been discovered, or he had actual knowledge of the same. These views were substantially embodied in the various instructions given by the court to the jury, so that we find no tenable objection to any of these instructions, except as to the sixth, and as to that instruction a vigorous fight is waged. The instruction reads as follows:
“It is the duty of a railroad company toward those who are in its employ to furnish .suitable ears, constructed of good and sound material, so far as this is reasonably practicable, having in view the business done upon the road. In their construction they should equal those of the average roads doing the same class of business, so far as relates to the safety of its employés, and the care and vigilance which is reasonably practicable must be bestowed by the company to keep them in safe condition.”
The deserving criticism on this instruction is confined to the words therein, “in their construction they should equal those of the average roads doing the same class of business.” Not that they are so bad of themselves, but because there was no evidence in the case descriptive of the construction of this foreign car, except that it had double dead-wood bumpers, one on each side of the drawhead, and that the brake-beam was in a defective condition. The first is material as tending to show that the brakeman was engaged in making a novel and dangerous coupling, and the other is material because it is alleged to be the proximate cause of the injury. No general description of the car was alleged or proved. Admitting that this language ought not to have been used in the instruction, we have to go still further, if we reverse this judgment, and say that it is of such a character that the railroad company was necessarily prejudiced by it; that it was in some measure influential in controlling the jury in favor of a verdict for the plaintiff below. This we cannot do. There is nothing in the use of the language that would authorize such an inference, and there is no showing that it was prejudicial.
Upon the whole record, having an abiding conviction that the evidence which went to the jury justified the verdict, and that the law applicable to the facts established was fairly stated in the instructions of the trial court, 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
Johnston, J.:
This is a proceeding to review the rulings and judgment of the district court of Marshall county, given in an action of ejectment, brought by the Marysville Investment Company against Harriet J. Munson, A. K. Munson, and J. D. Farwell, for the recovery of six lots in the town of Palmetto, now a part of the city of Marysville, in Marshall county, and also for damages in withholding the possession of the same. The greater part of the evidence offered by the plaintiff was excluded by the court, and these rulings are now assigned for error.
The plaintiff first offered in evidence a patent from the United States conveying to Joshua E. Clardy, probate judge of Marshall county, a quarter-section of land, “in trust for the several use and benefit of the occupants of the town-site of Palmetto, according to their respective interests.” The tract so conveyed includes the land in controversy, which then formed the town-site of Palmetto, and now constitutes a part of the city of Marysville.
There was next offered in evidence a deed for the same real estate from Joshua E. Clardy, as judge of the probate court, to F. J. Marshall, A. Morell, W. S. Bruster, O. D. Prentiss, J. A. Quarles, R. Y. Shibley, J. P. Miller, R. A. West, A. S. Vaught, J. R. S. Alston, J. H. Myers, and James S. Magill, who are mentioned in the deed as “members of the Palmetto Town Company.” The date of this conveyance is October 28, 1858. Testimony was offered tending to show that the town-site had been platted and subdivided into lots, blocks, streets and alleys.
The plaintiff offered in evidence a deed bearing date July 10, 1888, from the Palmetto Town Company to the Marysville Investment Company, purporting to convey the lots in controversy, and also a large number of other lots which had formed a part of the Palmetto town-site, and which had been entered by Probate Judge Clardy, in trust for the use and benefit of the occupants, but this deed was excluded by the court. The objection to the deed and the ground of its exclusion was, that prior to the time of its execution the town company had ceased to exist as a corporation and was without power to execute a conveyance of real estate; and of this ruling complaint is made.
The Palmetto Town Company was created by a special act of the territorial legislature of Kansas, which took effect on February 5, 1857. (Laws of 1857, p. 353.) There was no limitation in the act creating the corporation as to the period ■of its existence, but the general law relating to corporations which was then in force provided that where there was no limitation in the charter creating the corporation, it should only exist for a period of ten years. (Laws of 1855, p. 185.) Applying this limitation, the Palmetto Town Company ceased to exist as a corporation in February, 1867, more than twenty years prior to the date of the deed which it undertook to execute. It was then powerless to execute a eonveyanee, and the deed in question was open to the objection made by the defendants, and was properly excluded by the court. (Krutz v. Town Co., 20 Kas. 397.) The plaintiff then offered in evidence a deed dated December 28, 1888, executed by F. J. Marshall and his wife to the Marysville Investment Company, purporting to convey their interest in the quarter-section of land that had been entered as the Palmetto town-site, including all the lots remaining unsold, or which had been conveyed by the Palmetto Town Company. This deed was rejected by the court, as were a number of other deeds of like character and of or about the same date, executed by the grantees mentioned in the deed from Probate Judge Clardy, and who were described as members of the Palmetto Town Company. It was urged that the deeds were incompetent because the only title which the grantors had in the property was derived from the deed of Probate Judge Clardy to F. J. Marshall and others, and that as the deed of the probate judge does not purport to convey title to the Palmetto Town Company, but by its terms undertakes to convey to F. J. Marshall and others, as individuals, such conveyance was not in accordance with the rules and regulations prescribed by the legislature of the territory of Kansas relating to the entry and disposal of town-sites; and the court held that the deed from the probate judge was inef fectual to convey any title to the grantees named therein as individuals, and as they individually acquired no title by that deed, they could not as individuals convey any title to the Marysville Investment Company.
We think the court erred in holding the deed of the probate judge to F. J. Marshall and others, to be void, and also in excluding the individual deeds executed by these parties to the Marysville Investment Company. It is conceded that the Marysville Investment Company is a corporation having power to purchase and hold real estate, and also to sell and convey the same. It is further shown that F. J. Marshall and the other grantees named in the deed from the probate judge were actual occupants of the town-site of Palmetto at the time the deed was executed by the probate judge, and therefore were equitable owners of at least a part of the town-site, and it was the duty of the probate judge, who only held the naked legal title, to convey the same to the occupants of the town-site. It is contended, however, that the deed by the probate judge was not made in conformity to the act of congress under which the land was entered, nor with the rules and regulations prescribed by the legislature of the territory relating to the sale and disposition of town-sites. The act of congress under which the Palmetto town-site was entered authorized the probate judge to enter lands settled and occupied as a town-site, “ in trust for the several use and benefit of the occupants thereof, according to their respective interests,” and provided that “the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same is situated.” There was a further provision “That any act of said trustees not made in conformity with the rules and regulations herein alluded to shall be void and of none effect.” (5 U. S. Stat. at Large, 657.) The territorial legislature of 1858 passed an act to regulate the entry and disposal of town-sites under this act of con gress, and provided that where “the persons who selected or laid out such town-site, or their assigns, have been or shall hereafter be incorporated as a town company, with power to purchase and hold the land on which such town-site is situated, it shall be the duty of the person or persons entering such town-site to convey the land thus entered to such incorporated company; and where the persons who laid out such town have not been incorporated, it shall be the duty of the persons entering such town-site to convey the land and lots embraced in such town-site to the persons who laid out such town, or to their assigns.” (Laws of 1858, ch. 72, §2.) It is contended that as the Palmetto Town Company was incorporated, it was the duty of the probate judge to convey the town-site to that company, and not having done so according to the rule prescribed by the legislature, the deed which he did make to the individuals was void. It is true that the Palmetto Town Company was incorporated in 1857 by a special act of the legislature, and it is also true that the deed of the probate judge conveyed the town-site to certain individuals instead of to the Palmetto Town Company; but these facts alone do not render the deed ineffectual and void. 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; but if it was not an occupant, or if it was not organized and in existence at the time the deed was made, then it was not entitled to a conveyance of the town-site or any part thereof. _ ¶ _ 1"' The probate judge having made the deed to these individuals, it will be presumed, in the absence of evidence to the contrary, that the parties to whom the deed was made were occupants, and entitled to a conveyance, and that the town company was not an occupant nor entitled to a conveyance. Independent of this presumption in favor of the grantees in the deed of the probate judge, there is proof in the record that they had settled upon and were actual occupants of the town-site before and at the time of the conveyance. In Sherry v. Sampson, 11 Kas. 611, a question affecting the same town-site and the same deed under consideration was before the court. It was there said that “ it was the duty of said probate judge, when he entered said land, to make deeds for the same to the actual occupants thereof respectively. The town company may or may not have been an occupant. The individual members of the town company may or may not have been occupants. And other persons, not members of the town company, may or may not have been occupants. It was therefore not necessarily the duty of the probate judge to •convey all of said land to said town company, as is claimed by the plaintiff; and it is possible that it may not have been his duty to convey any portion of the same to said town company. When the probate judge has made a deed for any portion of said land to any person it will be presumed, in the absence of anything to the contrary, that he has made the deed to the proper person; and a person who has no interest in the land will not be allowed to raise any question as to whether the probate judge has made the deed to the proper person or not. (See also Town Co. v. Maris, 11 Kas. 128.) Whether or not there were other occupants of the town-site than those named as grantees in the deed of the probate judge does not appear, and what was the individual interest of each grantee in the town-site is not shown. They may have been the only occupants and entitled to the entire town-site, and the fact that the whole site was conveyed to all the . J grantees together, instead of conveying to each one a distinct share of the same, while possibly irregular, will not render the conveyance void. If they were the only occupants, and acquired the whole title, they could, by uniting, convey a complete title to others, and the deeds made by them or any of them, would be receivable in evidence. If the land was conveyed to them as trustees, as provided in §10 of the act regulating the entry and disposal of town-sites, then a conveyance from them would transfer their title, and the deeds made by them would be competent evidence. (Laws of 1858, ch. 72, § 10.) The rights of the parties and the effect of the conveyances cannot, however, be determined in this case. The testimony was cut short by the exclusion of the conveyances referred to, and as the rights and relations of F. J. Marshall and other grantees in and to the town-site in question were not fully disclosed, we will not. at this time undertake to define their rights or the effect of the conveyances which they made. The interest claimed in the land by the defendants was not set out or shown, and hence the case is in no condition for the final decision of the rights of the respective parties. W e only decide that the conveyance of the probate judge was not void, and that the deeds of the grantees in that conveyance were admissible in evidence.
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
Strang, C.:
This ease was tried in the district court of Cherokee county, on May 16,1888, by the court without a jury, on the following agreed statement of facts:
“It is agreed that upon the trial of this cause the following facts shall be taken as true:
“1. That W. H. Chew, one of the defendants above named, is the duly elected, qualified and acting register of deeds of said county; that his term as such commenced January 10, 1888, and that said other defendants G. G. Gregg, Z. H. Loudermilk, and James Murphy are the sureties on the official bond of said defendant Chew, as register of deeds as aforesaid, for the term commencing as above stated, and that said defendant executed and delivered the official bond, a copy of which is given as an exhibit to the plaintiff’s petition herein.
“2. That said defendant W. H. Chew kept an accurate account of all fees charged by him as such register of deeds for the first quarter of the year 1888, to wit, from January 10, 1888, to March 31, 1888, which amounted in the aggregate to the sum of $1,017.70, and that he has refused to turn over to the treasurer of said county one-half of the excess of said sum above six hundred dollars, and claims that he is entitled to the whole of said fees for his services as such register of deeds for the term above specified, and claims the act of the legislature of the state of Kansas entitled ‘An act regulating the fees and salaries of the county treasurers, county clerks, county attorneys, probate judge, county auditors and register of deeds of Cherokee and Labette counties, Kansas, approved March 5, 1887,’ the same being chapter 159 of the Laws of 1887, is unconstitutional and void, and of no force or effect.
“3. That the term of the county auditor of Labette county, who was duly appointed and qualified, commenced March 4, 1886, and ended March 4, 1888, and that the term of the present county auditor of Cherokee county, who was duly ap pointed and qualified, commenced October 8, 1887, and will expire October 8, 1889.”
The court found for the defendants, and rendered judgment against the plaintiff for costs; whereupon the plaintiff filed a motion for a new trial, which was overruled. The plaintiff excepted to such ruling, and brings the case here for review.
The first question in the case, and the one upon which the court below based its finding and judgment in favor of the defendants, is, was the cause in the district court prematurely brought? The determination of this question involves a construction of § 8 of chapter 159 of the Laws of 1887, which reads as follows: “ This act shall take effect and be in force from and after its publication in the statute book, and after the present term of the officers hereinbefore named shall have expired.” The constitutional provision touching this subject is as follows: Article 2, § 19: “The legislature shall prescribe the time when its acts shall be in force, and shall provide for the speedy publication of the same; and no law of a general nature shall be in force until the same shall be published.” The plaintiff in error contends that the act of 1887, chapter 159 of the laws of that year, took effect after its publication in the statute book, and was in force, or became operative as to the offices named therein, upon the expiration of the terms of the respective occupants thereof. If this construction is adopted, the act takes effect in part at one time and in part at other and different times, and may on that account be obnoxious to the constitutional provision above quoted, which requires the legislature to fix a time when its enactments shall take effect and be in force. If another construction can be placed upon §8 of the Laws of 1887, above quoted, which frees it from any objection under the constitutional provision, and such construction is equally consistent with the language of said § 8 and with the intention of the legislature in enacting the law of which § 8 is a part, such construction should be adopted. If we construe the words, “and after the present term of the officers hereinbefore named shall have expired,” to mean after the terms of all the officers named shall have expired, the act not only takes effect but becomes operative in all its parts and upon all the offices therein named at the same time, and is thus freed from the objection that it takes effect piecemeal, and also, as we think, from the objection that the legislature in its passage did not fix a time when the act should take effect and be in force. We conclude, therefore, that the legislature intended to have chapter 159, Laws of 1887, take effect and be in force after its publication in the statute book, and after the expiration of the terms of all the officers therein named. As above intimated, we believe this answers the argument against the constitutionality of the law, based upon the alleged fact that the legislature did not fix a time when the act should be in force and take effect. We do not think the legislature is required by the constitutional provision to name a day of the month when its acts shall take effect. If the legislature requires the act to take effect after its publication, either in the official state paper, in the statute boob, or in some other paper or other manner designated therein, and upon an event that is certain and may be ascertained by reference to the other statutes of the state, it is sufficient in that respect.
The objection that the act is special legislation, is answered by referring to the case of Comm’rs of Norton Co. v. Shoemaker, 27 Kas. 77.
The second point made by the plaintiff in error has already been passed upon by this court. Chief Justice Hokton, in Comm’rs of Neosho Co. vs. Leahy, 24 Kas. 45, used the following language:
“ Under § 7, ch. 39, Gen. Stat. of 1868, any excess over two thousand dollars which accrued from the fees of a treasurer, as allowed by- law, was to be paid into the county treasury, and placed to the credit of the county, where the population of the county was less than 15,000. The findings show that during Leahy’s term of office Neosho county did not have 15,000 inhabitants. As the county was entitled to the excess retained by the treasurer, the action was rightfully brought in the court below in the name of the board of county commissioners of the county of Neosho. There is no constitu tional inhibition against the power to turn over the excess to the county as a county fund, and the provision to that effect cannot be called an unwarrantable stretch of legislative authority.”
This case settles the question of power in the legislature to require an officer to turn the fees of his office in excess of a certain amount into the treasury. It may also be said that as the county furnishes these officers with offices in which to do their business, and at great expense, with material used in connection with their business, and with fuel and lights to heat and light them, it is entirely fair to the officer that he should be required to turn over to the county in compensation therefor a portion of his fees. The fees of these officers are created by the legislature, and that body may increase or diminish them; and if it sees fit to regulate them in the way pointed out in this statute, we do not think the officers can complain, so long as the act does not seek to curtail the fees of any officer elected before the passage and taking effect of the act. Those elected afterward take the office with full notice and understanding as to what the basis of their compensation is.
It is also said that the statute under consideration is unconstitutional because it requires persons who have instruments recorded to pay therefor a fee greater in amount than a reasonable compensation of the officer, for the purpose of having a portion of such fee turned into the treasury — a method of raising revenue not authorized by the constitution. We think, however, that if the county provides the officers, who are the agents of the public, with offices in which to serve the public, and provides stationery, including books, paper, pens and ink for use therein, and fuel and lights to warm and light them, the legislature may, in order to make such offices self-sustaining, require such persons as are served therein by having their instruments recorded, or other services rendered in the other offices of the county, to contribute thereto; and if so, we know of no better way to secure that end than by the method pointed out in chapter 159, Laws of 1887. We therefore hold that chapter 159, Laws of 1887, is constitutional; and that it took effect and was in force after its publication in the statute book, and after the terms of all the officers therein named had expired. It follows, therefore, that the case was prematurely brought.
We recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
The plaintiff below commenced a suit in ejectment to recover the south half of the northwest quarter of section 22, in township 14 south, of range 3 east, in Dickinson county. The defendant Charles M. Shaw filed an answer, first, denying the allegations of the petition; and, second, denying that plaintiff had any title to said land; and, for a third count, alleged:
“Said defendant, further answering, says that on or before the 18th day of July, 1885, one James McIntyre and Anna McIntyre were lawfully married to each other, and occupied the premises described in said plaintiff’s petition, with their minor children, as a homestead, and so continued to occupy said premises as a homestead until the first day of May, 1886, and during all of said time had no other homestead, and no other real estate; that on the said 18th day of July, 1885, said James McIntyre, without the consent or knowledge of his said wife, Anna McIntyre, executed and delivered a quitclaim deed for the said premises to one Halsey C. Ives, and the said Halsey C. Ives, on the said 18th day of July, 1885, caused said quitclaim deed to be filed in the office of the register of deeds of said county of Dickinson for record, a copy of which said quitclaim deed is hereunto attached, marked ‘ Exhibit A,’ and made a part of this answer; and thereafter, on the 16th day of September, 1885, the said Anna McIntyre, without the knowledge or consent of her said husband, James McIntyre, executed and delivered to the said Halsey C. Ives a warranty deed for said premises, and the said Halsey C. Ives, on the 17th day of December, 1885, caused said warranty deed to be filed for record in the office of the register of deeds of said county of Dickinson, a copy of which said warranty deed is hereto attached, marked ‘ Exhibit B,’ and made a part of this answer; and thereafter, on the-day of-, 188 — , said Halsey C. Ives, by his deed in writing, pretended to convey said premises to said plaintiff; that said plaintiff, at the time he received said pretended deed of conveyance from said Halsey C. Ives, was well acquainted with all the facts in relation to the said premises having been occupied by the said James McIntyre and Anna McIntyre, with their minor children, as a homestead, as hereinbefore set forth; and the said plaintiff has no further right, title or interest in or to said premises, or any part thereof.
“Thereafter, on the 22d day of May, 1886, said James McIntyre and Anna McIntyre, for a valuable consideration paid by said defendant Charles M. Shaw, sold and, by their deed in writing duly executed and acknowledged, conveyed all the premises in said plaintiff’s petition to said defendant Charles M. Shaw; and said defendant, on the 25th day ■of May, 1886, caused said deed of conveyance to be duly recorded in the office of the register of deeds of said county of Dickinson, state of Kansas, a copy of which said deed of conveyance is hereto attached, marked ‘ Exhibit C,’ and made a part of this answer, and thereby became and ever since has been and now is the owner in fee simple of the premises described in plaintiff’s petition.
. “Wherefore said defendant Charles M. Shaw prays that the pretended title of said plaintiff to said premises may be adjudged void; that the title of said defendant to said premises may be quieted; and that he may recover his costs herein.”
Pending the suit, the plaintiff in error obtained possession of the land in controversy, and dismissed his petition without prejudice, and filed the following reply:
“Comes now the said plaintiff, and for reply to the answer •of Charles M. Shaw says he admits the making of the deeds set out in the answer of the said defendant, and the filing .and record thereof, as shown thereby, but denies that the consideration for the said deed of May 12, 1886, by Anna McIntyre and James McIntyre to said Charles M. Shaw was $10, as therein expressed, but was $5 only, and that said land at said date was well worth the sum of $3,000, which said defendant Shaw then well knew.
“Plaintiff further admits that said Anna McIntyre and James McIntyre were husband and wife; but avers that, long before the making of any of said deeds set out in said answer, the said James McIntyre had abandoned his said family and had left them in occupation of said land as their homestead, and said James McIntyre had abandoned all claim to ■said homestead, and had fully authorized and empowered his said wife, Anna McIntyre, to sell and convey the same; and that said quitclaim deed of said James McIntyre dated July 15, 1885, was made for the purpose of expressing to his said wife and said Halsey C. Ives his consent aforesaid to Anna McIntyre to sell and convey said homestead; that at no time thereafter did said James McIntyre ever occupy said laud ■or claim said land as his homestead, nor does he yet claim the same; that at the time of said execution of said deeds by Anna McIntyre to the said Halsey C. Ives on the 16th Jay of September, 1885, the said Anna McIntyre, with the consent of her said husband, James McIntyre, sold said land to said Halsey G. Ives, and attempted to convey the same by said deed; that her said husband, James McIntyre, at all times consented and yet consents thereto, and thereupon the said Anna McIntyre, with the consent of her said husband, James McIntyre, put said Halsey C. Ives in the actual possession of said land; and said Halsey O. Ives thereupon paid said Anna McIntyre a consideration therefor to her full satisfaction and to the satisfaction of said James McIntyre; and said Anna McIntyre and James McIntyre are yet satisfied therewith, and at all times have been and yet desire that this plaintiff shall have this land; all of which has been at all times well known to the said defendant Charles M. Shaw, and was so well known to him at the time he took said deed dated May 22, 1886. And at the time said deed was made and delivered as aforesaid said Halsey C. Ives was in the actual possession and occupation of said land; and said Charles M. Shaw, well knowing all these facts, by importunity and for a consideration of $5 only, procured said James McIntyre and Anna McIntyre to execute said quitclaim deed of May 22, 1886, the said Anna McIntyre not knowing the purpose of said Shaw in procuring said deed, and the said Anna McIntyre and James McIntyre then informing said Shaw that they had no title to or interest in said land, and nothing therein to sell; nor did they pretend to convey any title or interest in said land to said Charles M. Shaw by said quitclaim deed; that thereafter and about the month of April, 1886, the said Halsey C. Ives sold and conveyed said land by warranty deed to this plaintiff; and the plaintiff thereupon, relying upon said title, paid off incumbrances upon said land to the amount of $800; that said incumbrance was so paid off after the making and delivering of said deed of September 16,1885, and after the conveyance of said land to him by said Halsey C. Ives; and for the purpose of enabling him to pay off said incumbrance he executed to one L. B. West, of the state of New York, a mortgage in the sum of $800 upon said land; that, about the first of October, 1886, the said defendant Charles M. Shaw wrongfully, by threats, entered upon said land, and put thereon, as his tenant, the said defendant William Tomblin, who occupies said land now, and did at the commencement of this suit, as the tenant of said Charles M. Shaw, and he has no other interest in or claim to said land.
“This plaintiff therefore avers that said Charles M. Shaw took no title to said land by said quitclaim deed of May 22, 18S6, and that long prior thereto the plaintiff and said Halsey C. Ives, under whom he claims, had not only the legal title to said lands, but the equitable title thereto, and were in the actual possession and occupation thereof until wrongfully dispossessed by said defendants, about the first of October, 1886. Wherefore, plaintiff prays judgment as in his petition prayed.”
And afterward filed the following amendment to his reply:
“ Comes the plaintiff, and for further reply, and by way of amendment to his reply herein, says that at the time the said James McIntyre and his wife Anna McIntyre occupied the property in controversy, there arose a difficulty between them, and the said James McIntyre abandoned his said home and family, and a divorce suit was instituted by his said wife Anna McIntyre, and in consideration of the dismissal of said suit the said James McIntyre deeded to his said wife all his interest in said land and they agreed to live apart, and did live so separate and apart until long after said Anna McIntyre made the deed of said land to Halsey C. Ives, and said Anna McIntyre and her children occupied said land as a homestead until said deed was made to Ives, whereupon she abandoned her home and put said Halsey C. Ives in possession thereof, and that both said James McIntyre and Anna McIntyre have at all times been and yet are satisfied therewith.”
To this reply and amendment, the defendant Shaw demurred, which was sustained by the court below. The plaintiff in error brings the case here for review.
The only question presented for our consideration is the sufficiency of the reply of the plaintiff.
We think the reply is sufficient. This court has said:
“ The constitution of the state does not in express terms require the alienation of the homestead by the joint consent of husband and wife, when that relation exists, to be evidenced by a writing; and hence, the consent of the wife to the grant or alienation of an easement in their homestead for the right-of-way of a railroad may be shown by such evidence as is deemed necessary to establish any other material fact.” (Pilcher v. A. T. & S. F. Rld. Co., 38 Kas. 516.)
It will be noticed by a reference to the reply that in contains the allegation of consent, upon the part of the husband and wife; that the quitclaim deed of July 18, 1885, was made for the purpose of expressing consent; and that the deed made by Anna McIntyre on the 16th of September was made with the consent of her husband, and that the grantee was placed in possession with the consent of the husband and wife.
We think the reply stated facts sufficient to show that there was joint consent, upon the part of the husband and wife, to the alienation of this land, and that the court erred in sustaining the demurrer to the reply.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered hy
Valentine, J,:
This was an action brought in the district court of Washington county on June 13,1888, by O. A. Cooper against N. L. Clark, to recover the sum of $367.50, on an account for goods alleged to have been sold and delivered by the plaintiff to the defendant. On the same day an order of attachment was issued and levied upon certain property as the property of the defendant. The affidavit upon which the attachment was founded sets forth the grounds therefor as follows :
“ That said defendant is about to remove his property, or a part thereof, out of the jurisdiction of this court, with the intent to defraud his creditors, and is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors, and has property and rights in action which he conceals, and is about to assign, remove and dispose of his property, or a part thereof, with the intent to defraud, hinder and delay his creditors, and has assigned, removed and disposed of his property, or a part thereof, with the intent to defraud, hinder and delay his creditors, and fraudulently contracted the debt and incurred the obligation for which the above-named suit has been brought.”
On June 20, 1888, the defendant filed a motion to dissolve the attachment, upon the ground “that the grounds, statements and affidavits in and upon which said attachment and the order therefor were made and issued are not, nor are any of them, true.” On the next day this motion was heard by the court upon evidence, and was sustained, and the attachment dissolved; and to reverse this order of the district court dissolving the attachment, the plaintiff, as plaintiff in error, brings the case to this court.
The principal evidence relied on by the plaintiff to sustain his attachment was a deed of assignment executed by the defendant on June 11, 1888, to R. Vincent, for the benefit of the defendant’s creditors, which assignment the plaintiff claims was and is defective in two particulars, to wit: “1. The deed of assignment attempted to make John Sanders a preferred creditor. 2. No schedule of liabilities was filed.” On June 14, 1888, the defendant executed another deed of assignment precisely like the first, except that the alleged defects in the first deed of assignment were rectified and cured. In the second deed of assignment no creditor was preferred, and with it a full schedule of liabilities was filed. This second deed of assignment, however, has but little materiality in this case. The first deed of assigument purports to convey all the property of the defendant, real and personal, except such as was exempt from judicial process; and it then contains the following provisions, to wit:
“The said second party shall take immediate possession of all said property, both real and personal, hereby assigned, and sell and dispose of the same as shall best promote the purposes hereof, and in such manner as shall be to the best interests of the creditors of the said assignor, and do and perform all things necessary and proper to be done and performed, to execute fully the trust hereby created, giving and granting to said assignee full power and authority to make, execute and deliver any and all papers, receipts, bills, mortgages and conveyances necessary or proper to be made, executed or delivered for the full, perfect and final execution and settlement of said trust, and by and with the proceeds, sales and collections, to pay the just and proper costs of the execution of said trust, and pay and discharge—
“First, The debt and demand of John Sanders against the said first party in full.
“Second, All the other debts of said first party in full, together with interest due and accruing, whether due or hereafter to become due, provided the remainder, after paying said costs and expenses, and the said debt of the said John Sanders, shall be sufficient therefor; if not, then to pay each and every of said debts, demands and liabilities, due or to become due, against said first party, (otherwise than that of said John Sanders,) pro rata as said remainder shall be sufficient, it being the purpose and intent to prefer said John Sanders.”
From anything appearing in the case, the defendant may have acted in the utmost good faith in all that he did, and as the court below sustained the defendant’s motion and dissolved the attachment, it must have found that the defendant did so act. Upon the evidence we cannot reverse this finding. The only question then to be considered is, whether as a matter of law the facts that the defendant in the deed of assignment preferred a creditor and did not file any schedule of liabilities, proves the truth of the grounds set forth in the plaintiff’s affidavit for the attachment. The question is not whether these facts render the deed of assignment void. That question is not in this case; but as before stated, the question is, whether these two facts with the other evidence, necessarily prove the truth of the plaintiff’s grounds for his attachment. We think they do not. (Harris v. Capell, 28 Kas. 117; Tootle v. Coldwell, 30 id. 125, 135, et seq.; McPike v. Atwell, 34 id. 142, 148.) There is some uncertainty with reference to Sanders’s claim, but upon the evidence and as against the decision of the court below, we cannot say that it was in any respect fraudulent, or that there was any fraud or intended wrong in any manner connected therewith; nor does it make any difference with reference to whom the property attached belonged. The attachment was against the defendant, and the grounds for the attachment as set forth in the plaintiff’s affidavit were that he was guilty of fraud or of intended fraud. If he was not guilty of any fraud or intended fraud, then the attachment was rightfully dissolved, whether the order of attachment was levied upon his property or upon some one else’s property, and this for the reason that there were no sufficient grounds in fact for the attachment to rest upon. Upon the evidence it is to some extent doubtful whether the defendant and Sanders were partners or not; whether the preferred debt to Sanders was a partnership debt or an individual debt; and whether the property levied upon under the attachment belonged to the defendant, or to Sanders, or to the partnership. Whether the defendant and Sanders were partners or not is wholly immaterial so far as this case is concerned, provided the preferred debt was not a partnership debt; and there was evidence sufficient to authorize the court below to find that the preferred debt was not a partnership debt, but was the in dividual debt of the defendant to Sanders. There was also sufficient evidence to authorize the court to find that the property upon which the attachment was levied was the individual property of the defendant; but the question is immaterial so far as this case is concerned.
The order of the court below dissolving the attachment will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This case comes here on appeal from the district court of Morris county, where the defendant •was prosecuted and convicted of criminal libel, for publishing in the Salina Daily Republican, of which he was the proprietor, at Salina, Kansas, on the 12th day of November, 1889, the following statement:
“ ’ Tis now almost forgotten that Governor Harvey pardoned his own brother out of the penitentiary; the convict Harvey Fad been sent to Lansing from Salina.”
The information charged that the libel was published of and concerning James M. Harvey, John A. Harvey, George E. Harvey, Z. T. Harvey, J. E. Harvey, and W. S. Harvey. The evidence showed that Dr. W. S. Harvey was a resident ■of Salina at the time of the publication, and a brother of •ex-Governor James M. Harvey. The publication was admitted. The claim is made by the defendant that the language published was not libelous per se; that the court below erred in not giving the following instruction to the jury:
“ The publication charged as libelous in this case is not libelous per se; and before the jury can find the defendant .guilty in this case, express malice must be proven.”
This instruction was refused by the trial court, and the following given:
“Í instruct you, gentlemen of the jury, that to print and publish concerning any person that he has been a convict in the state penitentiary of the state of Kansas, is libelous per se, ■unless the same is true; and in this connection, I further instruct you that there is no attempt on the part of the defendant in this case to prove the truth of the matter charged as libelous, or to show that the same was published for justifiable ends.”
I. The defendant insists that the above instruction given by the court was erroneous as applied to this case, and greatly prejudiced the substantial rights of the defendant. This is the decisive and controlling question in this case. Ordinarily, the instructions to the jury should be considered together, and a judgment will not be reversed because some one of them fails to state the law applicable to the facts, with sufficient qualifications, provided the defects be cured in other instructions. (Rice v. City of Des Moines, 40 Iowa, 638; The State v. Maloy, 44 id. 104.) In the eleventh instruction, which is complained of, the court said to the jury that to print and publish concerning any person that he had been a convict, was libelous per se, unless the same was true. We see no error in this, taken in connection with the instructions as an entirety. Libel has been defined by Judge Story to be any publication, the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred or ridicule, or which accuses him of a crime, punishable by law, or of any act odious and disgraceful in society. (Dexter v. Spear, 4 Mason, 115; Newell, Defam., 37.)
In this case the alleged libel charged that Governor Harvey had pardoned his own brother out of the penitentiary; that the convict Harvey had been sent to Lansing from Salina. This was certainly charging that one of the Harvey brothers had been convicted of a felony, and comes clearly within the definition of libel, as defined by the crimes act:
“A libel is the malicious defamation of a person, made public by any printing, writing, sign, picture, representation or effigy, tending to provoke him to wrath, or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.” (Gen. Stat. of 1889, ¶2444.)
To call a person a returned convict, or otherwise to falsely impute that he has been tried and convicted of a criminal offense, is actionable. (Newell, Defam., 109; Fowler v. Dowdney, 2 Moody & R. 119; Bell v. Byrne, 13 East, 554.)
We think the trial court committed no error in giving the eleventh instruction.
II. The appellant again contends that the statement published referred to no particular one of the Harvey family as having been a prison convict. While this objection might be urged with some force in a civil suit for damages, we do not think it is good in a criminal prosecution for libel. The law is elementary that a libel need not be on a particular person, but may be upon a family or a class of persons, if the tendency of the publication is to stir up riot and disorder, and incite to a breach of the peace. (Rex v. Williams, 5 Barn. & Ald. 595; Rex v. Osborne, 2 Barnard, 138, 166; 2 Bish. Crim. Law, 7th ed., § 934; 2 Starkie, Slander, 213; Russell on Crimes, 1st Am. ed., 305, 332.)
A scandal published of three or four, or any one or two persons, is punishable at the complaint of one or more, or all of them. (Holt on Libel, 247.) In Palmer v. City of Concord, 48 N. H. 211, the supreme court said:
“As these charges were made against a body of men, without specifying individuals, it may be that no individual soldier could have maintained a private action therefor; but the question whether the publication might not afford ground for a public prosecution is entirely different. Civil suits for libel are maintainable only on the ground that the plaintiff has individually suffered damage. Indictments for libel are sustained principally because the publication of a libel tends to a breach of the peace, and thus to the disturbance of society at large. It is obvious that a libelous attack on a body of men, though no individuals be pointed out, may tend as much or more to create public disturbance as an attack on one individual; and a doubt has been suggested whether the fact of numbers does not add to the enormity of the act.”
III. The defendant claims there was error in the court’s refusing the fourth special instruction asked — that before the jury could convict, express malice must be proven. We do not think this is the legal rule. In prosecutions for libel, malice is inferred from the nature of the charge, and when the publishing of words libelous per se is once proven, malice is inferred, as a person is presumed to have intended the consequences of his own acts. Chief Justice Shaw has clearly stated the rule:
“It is not necessary, to render an act malicious, that the party be actuated by a feeling of hatred or ill-will toward the individual, or that he entertain and pursue any general bad purpose or design. On the contrary, he may be actuated by a general good purpose, and have a real and sincere design to bring about a reformation of matters; but if in pursuing that design he willfully inflicts a wrong on others which is not warranted by law, such act is malicious.” (Newell, Defam., 317; Commonwealth v. Snelling, 15 Pick. 340; Pledger v. The State, Ga., 3 S. E. Rep. 320.)
The want of actual intent to vilify is no excuse for a libel; and if a man deems that to be right which the law pronounces wrong, the mistake does not free him from guilt. (Curtis v. Mussey, 6 Gray, 261; 1 Bishop, Crim. Law, §309; Reynolds v. United States, 98 U. S. 145.)
Upon a careful examination of the errors complained of, we are satisfied that the court below committed no error, and recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
On the 18th day of July, 1889, 3). Wesner filed a complaint before H. D. Grant, a justice of the peace of Montgomery county, Kansas, charging Francis Craddock with having on the 22d of June, 1889, at the county of Montgomery and state of Kansas, “unlawfully and willfully disturbed the peace'Cof him the said I). Wesner, contrary to the statute, and against the peace and dignity of the state of JCansas. A warrant issued, describing the offense in the language of the statute, upon which Craddock was arrested and brought before said justice, where after several continuances he was tried by a jury of four and convicted, and was thereupon sentenced to pay a fine of one dollar and costs. Craddock appealed to the district court, where he filed a plea in abatement, which was overruled. He then applied for a continuance, which was also overruled, and the case brought to trial before the court and a jury of twelve, which trial resulted in a conviction of the defendant. Motion for a new trial was presented and overruled, and defendant sentenced to pay a fine of ten dollars and costs; from which judgment the defendant appeals to this court, and alleges that the judgment of the trial court should be reversed, for the following reason: That the complaint and warrant are void, for the reason that no public offense is charged in either. The section of the statute under which the prosecution is brought, reads as follows:
“Every person who shall willfully disturb the peace and quiet of any person, family or neighborhood, shall upon con viction thereof be fined in a sum not exceeding one hundred dollars, or by imprisonment in the county jail not exceeding three months.”
It will be seen that the complaint follows the language of the statute in charging the offense, except that the complaint alleges that the appellant unlawfully as well as willfully disturbed the peace of the complainant. The charge against the appellant is a petty misdemeanor. We think the complaint and warrant in this case must be held to be sufficient. (Gen. Stat. of 1889, ¶5173; The State v. McGaffin, 36 Kas. 315.)
The appellant complains that in the trial in the justice’s court the jury were not legally impaneled, and that the verdiet of the jury thereon was void for uncertainty. The judgment of the court, including the verdict of the jury, was vacated by the defendant’s appeal to the district court, where he had a trial de novo; hence these errors, if they existed as alleged, are not the subject of review here. The appellant filed a plea in abatement in the district court, which was overruled, and of which ruling he complains. We think the plea in abatement was properly overruled. It raised no question except possibly the question of the sufficiency of the complaint and warrant, and that question should have been raised by motion to quash. The other matters alleged in the plea do not constitute grounds for a plea in abatement,
The appellant alleges that the court erred in refusing his application for a continuance. We think the court very properly refused the application for continuance. The alleged evidence set up in the affidavit in support of the application was immaterial, if not incompetent. It is alleged that the court erred in the admission of testimony; that the court misdirected the jury in matters of law; and that the verdict is not sustained by evidence. But as the instructions of the court are not in the record, and as none of the evidence is preserved, these complaints may not be considered.
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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Opinion by
Strang, C.:
This action was brought by H. A. Cady against the Missouri Pacific Railway Company, to recover damages alleged to have been sustained through the negligence of the company in permitting fire to escape from its right-of-way, while burning dry grass and other combustible material thereon, and to run and spread over the premises of the plaintiff. In his petition, the plaintiff says:
“That the said defendant, its agents and servants, while operating its said railroad, negligently and carelessly set fire to the dry grass, weeds, and other combustible material along its right-of-way aforesaid, and negligently and carelessly permitted the said fire to escape over and upon said farm owned by plaintiff, where it continued to burn and consume forty rails worth $4, being the property of said plaintiff on said farm; that it also burned and consumed fifty-three rods of hedge fence, one-half of which was owned by the plaintiff, and of the value of $26.50, and being standing on said land; that it also consumed one hundred and twenty bushels of corn, of the value of $42, said corn being upon the said lands and the property of plaintiff. That by reason of the negligence and carelessness of the said defendant as aforesaid, the plaintiff has been damaged in the sum of $72.50.
“The plaintiff further alleges that he was compelled to procure an attorney to bring and prosecute this suit for him, and that $40 is a reasonable fee for the plaintiff’s attorney for the bringing and prosecuting of this action.”
The total amount thus claimed by the plaintiff was $112.50. The railway company denied the negligence attributed to it, and claimed that Cady was guilty of negligence which contributed directly to the injury. The case was tried in the district court February 21, 1888, by a jury, which returned a verdict for Cady, assessing his damages at $62.10, and also finding $25 to be a reasonable attorney’s fee for the prosecution of the case. Judgment was entered upon the verdict, followed by a motion for a new trial, which was overruled.
The company assigns a number of errors based upon the rulings of the trial court. A careful examination of each one of the errors assigned, and a comparison of the same with the questions raised in the case of Mo. Pac. Rly. Co. v. Merrill, 40 Kas. 404, shows that each one and all of the errors assigned herein were considered by this court in that case, and decided against the theory of the plaintiff in this case. It is true that in the case above cited the fire was alleged to have escaped from the locomotive while in the operation of its railroad, while in this case the allegation is that the railroad company, its agents and servants, while operating its railroad, negligently and carelessly set fire to the dry grass, weeds and other combustible material along and upon its right-of-way, and negligently and carelessly permitted the fire to escape over and upon the farm of the plaintiff, where it continued to burn and did the damage complained of; and it is claimed by the railroad company that the burning-off of the right-of-way of the railroad company is not an act done in connection with the operation of the railroad, and therefore does not fall within the scope of the language of chapter 155 of the Laws of 1885.
Upon this subject Mr. Justice Johnston, delivering the opinion in the case of Mo. Pac. Rly. Co. v. Merrill, says:
“The statutes prescribe a rule in actions for damages by fire, caused by the operation of a railroad, and it is contended that caring for the right-of-way is not within the terms 'operating a railroad/ The claim is not tenable. The statute applies to all cases where the fire results from the operation of a railroad. It is not even confined to fire escaping from locomotives, but applies to all cases where the damage was caused by fire arising from any step in the operation of the road. The roadway and track of the company are as essential to the operation of the railroad as the locomotive or other equipment; . . . but in our opinion the care and maintenance of the roadway and track is fairly included as a part of the operation of a railroad.”
• The burning of dry grass, weeds, and other combustible material which annually accumulates on the right-of-way, is caring for the roadway and track. It will be seen, therefore, that this question has already been settled by this court, and we believe rightfully and justly settled.
All the other questions raised in this case were ably discussed and fully settled by the court in the ease from which we quote, and it is deemed unnecessary to renew the discus sion here. It is therefore recommended that this case 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 Harvey county, on September 8, 1885, by David Hamill against John F. Wafer, M. H. Lakin, and Robert M. Hamill, for the recovery of certain real estate, and also for rents and profits. A trial was had before the court and a jury, and during the trial the plaintiff dismissed his entire action against Lakin and Robert M. Hamill, and in effect dismissed that portion of his action as against Wafer, by which he sought the recovery of the real property, and proceeded with his action only as against Wafer, and only for rents and profits. At the close of the trial the jury found a verdict in favor of the plaintiff and against the defendant, Wafer, for $1,250. Wafer then demanded another trial, we suppose under § 599 of the civil code. The court, however, refused this demand, and then Wafer filed a regular motion for a new trial, setting forth various grounds therefor, which motion the court overruled, and then rendered judgment in favor of the plaintiff and against the defendant, Wafer, for the amount of the verdict and for costs; which judgment the defendant Wafer, as plaintiff in error, now seeks to have reversed.
The plaintiff in error, defendant below, claims that the court below erred in refusing his demand for another trial. As before stated, we suppose this demand was intended to be made under §599 of the civil code; but as this action was finally disposed of, not as an action for the recovery of real property, but as an action merely for rents and profits, we do not think that that section can have any application. That section applies only to actions for the recovery of real property. It is true that in the beginning this action was not only an action for rents and profits, but also an action for the re covery of real property, but this double action was finally converted into an action for rents and profits only. The defendant Wafer did not at any time claim to own the real property, or to have any estate therein. The only interest in the property which he ever claimed to have was as follows: As sheriff of Harvey county he levied an attachment in favor of J. V. Farwell & Co., against Eobert M. Hamill, upon certain goods belonging to Eobert M. Hamill, situated in a building which stood upon the real property originally sued for in this action, which building and real property belonged to the plaintiff, David Hamill. This levy was made on May 5, 1884, and after the levy Wafer took the possession not only of the goods, but also of the real property, and continued to hold the same against the expressed will of the plaintiff, David Hamill, until September 30, 1885, when he abandoned the same. The evidence tended to show that during that time the rent of the property was worth from $75 to $80 dollars per month. The trial in this case was had on May 10, 1887. At the time of the trial the plaintiff did not ask for any verdict or judgment except for the value of the rents and profits of the real estate during the time while the defendant had the possession thereof, and for interest and costs, and he did not obtain any verdict or judgment for anything else; and hence §599 of the civil code has no application to this case; and the court below did npt err in refusing the defendant’s demand for another trial.
Other rulings of the court below are complained of, but we do not think that any material error was committed. Certainly no material error is shown by the record brought to this court. It does not appear that we have all the evidence either introduced or excluded, nor does it appear that we have all the instructions either given or refused, and without any such showing we cannot determine whether the court below committed any material error or not in the matters complained of; but with the showing as made, we do not think that the court below committed any material error.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
An information was filed against one Eough Eeady, charging that on the 15th day of February, 1890, and within the jurisdiction of the district court of Shawnee county, he —
“Did then and there unlawfully and feloniously make an assault on one Wm. Glaze, and did then and there unlawfully and feloniously and by violence overcome and put in fear, and from the person of him, the said Wm. Glaze, did then and there unlawfully, feloniously, by violence and against his will, take, steal and carry away, of the property of the said Wm. Glaze, thirty-five dollars lawful money of the United States, a more particular description of which said money is unknown to this affiant, and cannot be given, of the value of thirty-five dollars,” etc.
Trial at the April term, 1890. The jury returned a verdict of guilty, “as charged in the information.” A motion for a new trial was made and overruled, and the defendant brings the case here for review.
I. The first objection made is to the sufficiency of the information, because the description of the property taken is indefinite; and the eases of The State v. Tilney, 38 Kas. 714, and The State v. Segermond, 40 id. 107, are invoked in aid of the objection. These cases hold that general descriptions of the property taken, such as “national bank notes,” “United States treasury notes,” “ United States silver certificates,” “ money of the amount and value of one thousand dollars,” and “twenty-five dollars in money,” without any allegation of the inability of the prosecutor to give a more specific de scription, are insufficient and fatally defective. It is almost universally held by courts of last resort everywhere, that where there is an allegation in the indictment or information that a more particular description could not be given for some sufficient reason, that a general one, as contained in this information, is sufficient.
II. It is also insisted that the county attorney could have given a better description of the money taken than was recited in the information, if he had exercised ordinary diligence. This is a question of fact that we are not required to investigate. At the trial the prosecuting witness testified that the money taken from him consisted of three ten-dollar bills and five dollars in silver, and it is claimed that there is a variance between pleading and proof; but the fact that there was no particular description of the money is now overlooked by counsel for appellant. The charge was, “Thirty-five dollars, lawful money of the United States”; the proof was, “Three ten-dollar bills and five dollars in silver”; and one is the equivalent of the other.
III. It is shown by the record that one of the jurors, when examined on his voir dire, said that he had not served upon a jury in any court of record in this state within twelve months last past, when it was shown that he had. The fact of the prior service of the juror was not known to the appellant or his attorney until after the trial. At the trial the appellant exhausted all his peremptory challenges. We think that, for the reasons given and authorities cited in the case of The State v. Jackson, 27 Kas. 581, the objection to the juror is made too late.
IV. Finally, it is said that the information is not good on a motion in arrest of judgment, because the words “to rob” are not used therein. It will be noticed that every essential element constituting the crime of robbery is charged in the information, in the exact language of the statute, and that the statute, in defining the crime of robbery in the various degrees, nowhere uses the words “rob” or “to rob.”
It is recommended that the judgment of conviction be firmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
John Gibbins brought this action in the district court of Jackson county to restrain the collec tion of a personal-property tax, claimed to be illegally assessed against him. The material allegations of the petition are, that on the 9th of May, 1887, the plaintiff made and submitted to the assessor of Netawaka township his personal statement for the purposes of taxation, in said township, in Jackson county, which statement contained: “Average amount of merchant’s moneys and credits for preceding year, three hundred dollars, assessed value, one hundred and fifty dollars; mortgages, six hundred dollars, assessed value, three hundred dollars; aggregate value of all other personal property, forty dollars,” making a total of all taxable property of $490; deducting the constitutional exemption, left the amount of two hundred and ninety dollars, for the purpose of assessment and taxation; that on the 31st of May the township assessor duly made out and delivered to the county clerk, in tabular form, a list of the names of the persons in said township for the purposes of taxation, and that this list was on the 31st of May, filed with the clerk of Jackson county; that after the filing of the list with the clerk, the township assessor without authority of law, entered an interlineation opposite the name of the plaintiff, upon the list so returned, as follows: “Doubly assessed”; and in the column designating the amount of personal property of plaintiff subject to taxation, entered the amount six thousand two hundred and ninety dollars, and in the column designating the assessed value of the plaintiff’s property, the figures $6,290, thereby altering the list of the plaintiff’s personal property and statement liable for taxation for the year 1887, to the sum of $6,290, instead of $290, as returned by him ; that the county clerk carried to the tax-roll of 1887 as the assessed value of the plaintiff’s property the sum of $6,290, instead of $290, and wrongfully and unlawfully entered the sum of $213.85 as the total amount of taxes assessed against the plaintiff for 1887, instead of the sum of $9.86, which should have been entered as the proper legal amount of taxes assessed against him; that the plaintiff had no knowledge that the assessed value of his personal property had been raised, or altered, until on or about the 5th of De cember, 1887; and that he thereupon notified the defendant, Adamson, as county treasurer, of the erroneous assessment, and offered to pay the amount of tax due upon an assessed valuation of $290, which was refused. A warrant was afterward issued by the treasurer to the defendant Francis, sheriff' of said county, for the sum of $224.54; that on the 31st of January, 1888, plaintiff tendered to the defendant, Francis, sheriff, etc., the sum of $11.61, in payment of the amount of personal-property tax which he admitted to be due upon a valuation of $290. A temporary restraining order was obtained upon the filing of this petition, on the 13th of February, 1888. ‘A demurrer was interposed to this petition, which was sustained by the court below, and the plaintiff below elected to stand upon his petition. Judgment was rendered for the defendants for costs. The plaintiff in error brings the case here for review.
The sole question presented in this case for consideration is, whether after a person has duly made out and delivered to the township trustee his personal-property statement, as provided by §§ 4 and 10 of chapter 107 of the Comp. Laws of 1885, and after return has been made to the county clerk as provided by § 65 of chapter 107 of the tax laws, a township assessor may, without notice to the person assessed, increase the amount of the personal property for which the person is liable for taxation. We think this question must be answered in the negative, and the court below was in error in sustaining the demurrer to the petition of the plaintiff. It appears from the allegations of the petition that the assessor had made his return to the county clerk, without any change or alteration in the personal-property statement of the plaintiff in error After the return was made and filed in the office of the county clerk, we do not think the assessor had any authority to make any change whatever in his return, especially, without notice to the plaintiff.
It is claimed upon the part of the defendant in error that the petition does not show that the plaintiff had listed all of his property which was subject to taxation. We do not think this can be successfully maintained. A personal-property statement is set out in full in the plaintiff’s petition, and it contains the oath required in all personal-property statements, which states that the plaintiff did set forth all personal property which by law he was required to list, either on his own account or in behalf of others. We think this sufficient to bring the plaintiff within the rule, and entitles him to the protection of the court.
It appears from the petition that the plaintiff offered to pay to the county treasurer the amount of the taxes due upon the valuation as returned by him, and that after the issuance of the tax warrant he tendered to the sheriff the amount of such tax, with the additional costs for the warrant. These tenders, it appears from the petition, were refused, upon the part of the treasurer as well as the sheriff. We think this is a sufficient allegation to entitle the plaintiff to the relief prayed for; and we are of the opinion that the effort upon the part of the assessor to change the statement, as made by the plaintiff in error, after having been returned to the clerk, was unauthorized, and made without any authority of law. If the allegations of the petition are true, the tax over and above the valuation of two hundred and ninety dollars was unlawful. We think the petition did state facts sufficient to constitute a cause of action, and that the court below erred in sustaining the demurrer thereto.
We recommend that the judgment of the court below, in sustaining the demurrer to plaintiff’s petition, be reversed, and the cause remanded for further proceedings.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This case was tried. by a jury January 25, 1888, resulting in a verdict and judgment for the defendant. The plaintiff’s motion for a new trial was overruled the same day, and sixty days were given to make a case for this court. The plaintiff brings what purports to be a case-made to this court, and asks that certain alleged errors therein be reviewed. The defendant objects to such consideration by this court, and challenges the so-called case-made, and says: First, that it was not made and served within time; second, that it was not properly authenticated.
Sixty days from January 25, 1888, were given the plaintiff to make a case. Afterward the plaintiff applied to the judge of the court to have the time in which to make a case extended to April 10, 1888. The judge allowed the application, and extended the time for making the case to April 10; 1888. Neither the application for the said order of extension nor the order itself is dated, and neither seems to have been filed in the office of the clerk of the court. It is therefore impossible to say whether or not it was made during the lifetime of the original order. April 10,1888, attorneys rep resenting the plaintiff and defendant, by stipulation extended the time for making a case for this court to May 1, 1888. The case was served April 28, 1888, and eighteen days after the last order of the judge had expired, and therefore was out of time so far as any order of the judge is concerned. It was served during the time stipulated for by the attorneys in the case; but the attorneys in the case cannot extend the time for making a case by agreement, without an order of the court or judge trying the case. (Insurance Co. v. Koons, 26 Kas. 215.)
The second objection to the consideration of this case-made as presented is, that it is not properly authenticated, never having been attested by the clerk of the court. This question has just been considered and decided against the plaintiff at this term of the court, in the case of Limerick v. Gwinn.
It is recommended that this case be dismissed.
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 August 9, 1886, J. W. Jones, the agent or solicitor of the State Insurance Company of Des Moines, residing in Neodesha, in this state, called upon Absalom Gray, at his residence near that city, and solicited insurance upon his house and household goods, and succeeded in taking his application for $850 of insurance upon his property. Gray, being unable to read or write, signed the application with his mark. On the 27th day of August, 1886, the insurance company issued to Gray a policy of insurance upon his property for the amount of his application. On the 17th day of February, 1887, the property insured was destroyed by fire without any fault of Gray. Subsequently, the in surance company refusing to pay any of the insurance upon the policy issued to him, he brought his action and recovered a judgment against the company for $488.62, together with all of his costs. The insurance company excepted to the rulings and judgment of the district court, and brings the case here. The application signed by Gray with his mark contained the following:
“It is understood by the assui’ed that the company will not be bound by any representations of the assured or promises of the agent not contained herein. . . . The above statements shall be the sole basis of the contract between the said company and myself, and are hereby made a part of the same. Having read the foregoing application, and fully understanding its contents, I warrant it to contain a full and true description and statement of the condition, situation, value, occupancy, and title of the property hereby proposed to be insured in the State Insurance Company, of Des Moines; and I warrant the answers to each of the foregoing questions to be true, and I agree that this insurance shall not be binding upon the company until accepted by them.”
This application was taken and forwarded to the company by its solicitor, J. W. Jones, whose authority was “to solicit applications for insurance in said company.” Among other things, the policy contained this statement:
“It is expressly understood and agreed by the parties hereto that application and survey No. 243,392 C, made by the assured, is hereby made a part of this policy, and a warranty on the part of the assured, and that this policy is issued on the faith of the statement in said application and survey as they thus appear in writing therein only.”
The premium on the policy was paid by a note, signed by the assured with his mark, which had not by its terms become due at the time of the fire. Before the maturity of the note it had been placed in bank for collection by the insurance company. Gray deposited in the bank the money to pay the same, but on account of the fire the company refused it and never accepted the same. Question 24, of the application, was as follows:
“Is the title to the land, on which the property to be in sured is situated, in your own name? What kind of title have you? Explain fully.”
And the answer thereto, as the same appears in writing in the application, is: “ The land is in my own name. I hold a warranty deed.”
On the trial it was conceded that the title, instead of being in the name of Gray alone, was in the name of himself and his wife jointly. Question 25, of the application, was as follows:
“Is there any other insurance on this property; if so, how much, and in what company?”
And the answer thereto, as the same appears in writing in the application, is: “No.”
On the trial it was conceded that at the time of taking the application there were two policies of insurance on the property, amounting to $500. Question 26, of the application, was as follows:
“Are you the sole and undisputed owner of the property to be insured?”
And the answer thereto, as the same appears in writing, is : “Yes.”
Upon the trial, with consent of the parties, the court submitted certain questions of fact to the jury, but reserved the other questions for its own determination. The questions of fact submitted to the jury, and their answers, are as follows:
“1. When J. W. Jones asked question No. 25, in the application, ‘ Is there any other insurance on this property; if so, how much, and in what company?’ who answered the question for the plaintiff ? A. His wife.
“2. What was the actual answer made to the question? State the same fully. A. There was five hundred dollars in Springfield Company; did not know whether it was Springfield, Mo., or 111.
“3. Did Jones write in said application the actual answer that was made to said question, or did he write an answer not made? A. He wrote an answer that was not made.
“4. After Jones had inserted the answers to the questions in the application as they now appear, did he read the same over to plaintiff or his wife, or to both ? A. He did not.
“ 5. Question 24, in the application, is in these words: ‘ Is the title to the land on which the property to be insured is situated, in your own name? What kind of a title have you ? Explain fully.’ Did Jones read the question to the plaintiff or his wife, or both? A. He.did not.
“6. Question No. 26, in the application, is in these words: ‘Are you the sole and undisputed owner of the property to be insured?’ Did Jones read the question to the plaintiff or his wife, or both ? State what the fact is. A. He did not.
“7. Had the real estate on which the insured property was situated been purchased by the plaintiff with his own money? A. Yes.
“8. Had Mary Gray, the wife, any actual interest in the real estate exept such interest as she might have had by virtue of being the plaintiff’s wife and her name appearing in the deed as one of the grantees? A. She did not.”
The principal contention is, that the trial court committed error in admitting the evidence which showed that the statements written in the application were not those of Gray, the applicant, although signed by him with his mark; and in ruling that the insurance company was estopped by the answers falsely or improperly written by its agent or solicitor, when he filled up the blank application. Since this action was tried in the court below, the opinion of Insurance Co. v. Pearce, has been handed down by this court. (See 39 Kas. 396.) That case is so recent and so fully in point, that further discussion upon the principal question involved in this case is unnecessary. This court ruled in that case that—
“If, after hearing a full and truthful statement of the condition of the property insured from the owner, an agent of an insurance company fills the blanks in a printed form of application furnished him by the company with misrepresentations and false statements, and the insured signs the same without knowing its contents, and without other fault than that he relied upon the agent to write down his statement correctly, and pays the premium, obtains a policy and sustains a loss, held, that the company is estopped from denying its liability under the policy; and further held, that the signing of the application under such circumstances will not prevent a recovery by the insured, as the transcribing such statement will be deemed to be the act of the company by its agent, and not that of the insured.
“Where an agent of an insurance company soliciting insurance, in describing the property insured, falsely, and without the knowledge of the insured, fills the blanks in the printed forms of application of the company, he is the agent of the company in taking such application and not of the insured, although there is a stipulation on the face of such application that the description of the property is made by the owner, or by his authority.
“ Where it is provided in a policy that the statements in an application are warranties, and if any of them are false the policy shall be void, it is not forfeited when its own agent makes all the false statements contained in the application, and there was no fraud or attempt to deceive on the part of the assured.”
See also Insurance Co. v. McLanathan, 11 Kas. 533; Insurance Co. v. Mahone, 21 Wall. 152; Insurance Co. v. Wilkinson, 13 id. 222; Insurance Co. v. Baker, 94 U. S. 610; Pickel v. Insurance Co., 119 Ind. 291.
As both Mr. and Mrs. Gray were old, feeble, and illiterate, and as Gray, who signed the application and premium notes with his marks, and afterward retained in his possession the policy, could not read or write, the cases of Furneaux v. Esterly, 36 Kas. 539; Johnson v. Insurance Co., 45 N. W. Rep. 799; and Insurance Co. v. Fletcher, 117 U. S. 519, have but little force. It ought not to be held that a person not able to read or write, by merely holding a policy in his possession which contains his application signed with his mark, thereby approves the action of the agent or solicitor in falsely or improperly taking his application, and becomes, by holding such policy, a participant in the fraud committed by the agent or solicitor.
As the evidence of Mrs. Gray tended to show that she was the agent of her husband, there was no error committed in admitting it. She may have been the agent of her husband and acting for him even when he was personally present. His age, feebleness and illiteracy must be considered in connection with her statement of agency.
The conversation between Gray and Jones, after Jones ceased to be the company’s agent, was offered only to lay the foundation for impeachment; therefore this evidence was not incompetent. The insurance company is in no condition to complain of the failure of the jury to return a general verdict, and therefore the instructions prayed for, which would have been competent if it had been intended that the jury should render such a verdict, need not be considered. Before any evidence was submitted to the jury the parties agreed to submit certain questions of fact to the jury. The other questions were to be reserved and decided by the trial court. The court acted upou the stipulation of the parties, and no objection was taken by the defendant to the reception of the special verdict. By the agreement of its counsel and its action when the special verdict of the jury was returned, the defendant waived a general verdict.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Strang, C.:
Action for damages, for the conversion of certain sheep, begun by the plaintiff below in the district court of Harvey county, February 18,1886. Plaintiff’s right to recover was based upon a chattel mortgage covering the sheep, and which had become absolute, and an unsuccessful demand of the defendants below for the possession of said sheep. The defendants answered: 1st, general denial; 2d, possession of the sheep under other and prior mortgages, and 3d, an agister’s lieu. To which plaintiff replied : 1st, general denial; 2d, want of consideration and fraud in the mortgage under which defendants below took possession of the sheep, and 3d, that the notes and mortgages of defendants below were taken with full knowledge on their part of the mortgages of plaintiff below. The case was tried by the court and a jury on the 10th day of May, 1887, resulting in a verdict for the plaintiff for the sum of $779.38. A motion for a new trial followed, which was overruled and judgment entered; to which ruling and judgment the defendants excepted, and filed their case-made in this court asking a reversal of the judgment of the district court.
December 1, 1884, H. C. Reeder gave the defendant, plaintiff below, a mortgage on certain sheep to secure the payment of a note for $500. January 2, 1885, Reeder gave a mortgage to the Bank of Burrton on certain sheep and other property to secure a claim of $1,622.10. January 19, 1885, said Reeder gave a mortgage to J. E. Howard on 3,000 head of sheep to secure an alleged claim of $3,000. May 21st, 1885, Reeder gave a mortgage to the plaintiff below, the Bank of Hutchinson, on certain sheep and other property, to secure a loan for $175. July 10, 1885, Reeder gave a mortgage to the First National Bank of Newton, on sheep for $500, to secure a claim for $500. The mortgage to the plaintiff below December 1, 1884, was recorded in Harvey county December 3,1884. The mortgage to the Bank of Burrton was recorded in Harvey county March -28, 1885. The mortgage for $175 to the Bank of Hutchinson was recorded in Harvey county May 21, 1885. The mortgage to the bank of Newton was filed for record July 10, 1885, in Harvey county, Kansas. On the 29th day of June, 1885, Reeder gave the plaintiff be low a renewal note and mortgage, renewing the two notes for $500 and $175, with $25 added to the latter note, covering the same sheep included in the mortgage of December 1, 1884, with their increase. This mortgage was recorded in Harvey county June 30, 1885. Reeder lived in Harvey county, and the,sheep were kept there.
The first question discussed in the brief of the plaintiffs in error is, that the petition of the plaintiff below does not state a cause of action. They say that the petition fails to show that the indebtedness between the plaintiff below and Reeder, the mortgagor, was ever judicially ascertained, and the petition does not make Reeder a party to the suit. We have discussed this question in the case of Howard v. Burns, ante, p. 543, and cited authorities covering the question, and now hold, in this case, that this objection is not good, upon the strength of that case and the authorities there cited.
The second proposition of the plaintiffs in error is, that the renewal affidavit attached to the mortgage of December 1, 1884, is not sufficient, and therefore the said mortgage expired at the end of the year from its date. We don’t care to discuss the sufficiency of the affidavit, as we believe with the. trial judge, that under the circumstances of this case the renewal affidavit is not a material matter. The affidavit could only be material in case there were subsequent purchasers, or mortgagees in good faith. But there are no subsequent purchasers, and no subsequent mortgagees in good faith. First, because all the mortgagees had full knowledge of the mortgages of the plaintiff below, and of the claims they secured. They each knew that the claims secured by such mortgages were not paid in whole or in part. In Gregory v. Thomas, 20 Wend. 17, Mr. Justice Cowen says:
“To say that a man takes in good faith when he acts with notice, and of course under conscious hostility to another who has before taken a similar title, would be a legal solecism. The object of the statute here is that of all the other registry acts, to prevent imposition upon subsequent purchasers and mortgagees, who must many times govern themselves by appearances; when everything is actually explained to them, they have the best kind of notice, and must be holden to take subject to prior incumbrance.”
Second, because the language of the statute (¶ 3905, General Statutes of 1889), “every mortgage so filed shall be void as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year after the filing thereof, unless, within thirty days next preceding the expiration of the term of one year from such filing, and each year thereafter, the mortgagee, his agent or attorney, shall make an affidavit,” etc., does not include intermediate purchasers or mortgagees. That is, purchasers or mortgagees who purchased, or whose mortgages were taken intermediate the time of filing of such mortgage and the end of the year during which it remains in force without the renewal affidavit; but it means only purchasers and mortgagees who purchased, or took their mortgages, after the expiration of the year, and after it became necessary to file a renewal affidavit to continue the mortgage in force. This construction is based upon reason. He who purchases after the year has expired during which a mortgage remains in force, has a right in the absence of the renewal affidavit to suppose the mortgage has been paid, even though not released on the record. But he who purchases before the year expires, takes with notice of the mortgage and the rights of the mortgagee under the same. If, therefore, the mortgagee fails at the end of the year and within the time prescribed by the statute to file his renewal affidavit, the purchaser is not affected adversely by the failure to file the affidavit, though the lien of the mortgage as to him remains intact. His rights are unaffected. They remain the same as before. He has invested nothing upon the strength of the failure of the mortgagee to file his renewal affidavit. At the time he purchased he knew of the incumbrance. This knowledge continues, and he may not be said to be a purchaser in good faith. The same reasoning applies to intermediate mortgagees. But we are not left to a decision of this question solely upon reason or principle. The great weight of authority sustains this view.
In the ease of Meech v. Patchin, 14 N. Y. 71, Denio, C. J., says:
“It was enacted by the third section of the laws of 1833, page 402, that mortgages thus filed should cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless they should be re-filed within thirty days before the expiration of the year, with a statement showing the same to be still on foot. A person about to deal with the possessor and apparent owner of chattels could, by resorting to the proper clerk’s office, ascertain whether he had mortgaged them to another party. Should he find a mortgage on file, he could not determine, without the help of the third section, whether the lien still continued, whatever length of time had elapsed since the filing; but by means of the provision in that section he could be certain that the mortgage had ceased to be a lien if he found it had not been renewed within one year. If his examination was made within the year, he must proceed at his peril, or take other means to ascertain whether the mortgage remained a lien. When the plaintiffs in this case took their mortgage the defendant’s mortgage was on file, and they accordingly had the notice of it which the statute contemplated. The year from the time it was filed had not elapsed, and no default or want of diligence had therefore happened on the part of the defendant. The defendant’s mortgage was in full vigor, and the plaintiffs’ was taken subject to it. The care which the plaintiffs exercised to file their mortgage and to preserve its validity by annually re-filing a copy was a suitable precaution against parties coming after them; but it had not, as I conceive, any effect against the defendant’s prior mortgage. The priority of the respective mortgages was fixed as soon as the last one (that of the plaintiffs) had been executed. If the controversy had arisen within the year from the filing of the defendant’s mortgage, there could not have been any pretense but that the defendant would have had the prior title. Their respective rights having become thus fixed, the diligence or want of diligence of either as to preserving their liens against subsequent purchasers or mortgagees, by re-filing their respective mortgages, was of no importance as against each other. This seems to me the necessary construction of the statute, as well from its language as upon its general policy. Its language is: ‘Every mortgage filed,’ etc., ‘shall cease to be valid/ etc., ‘against subsequent purchasers or mortgagees, unless it shall, within thirty days before the expiration of the year, be again filed.’ ‘Subsequent/ I think, means after the time when it ought to be again filed to preserve its validity.”
In Dillingham v. Bolt, 37 N. Y. 198, Justice Parker says
“As against Parmelee, Everts & Co., who purchased before the expiration of the year from the first filing of the mortgage, no re-filing with a statement was necessary. It was held in Meech v. Patchin, 14 N. Y. 71, that the omission to re-file a chattel mortgage, pursuant to the third section of the act on that subject (Laws of 1833, p. 402), does not render it invalid against purchasers or mortgagees, intermediate the original filing and the ending of the year; and that the term ‘subsequent/ in the provision in that section, that ‘every mortgage filed in pursuance of this act shall cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless/ etc., means subsequent to the expiration of the year; that is, after the time of re-filing has elapsed.”
The New York statute is like our own so far as this question is concerned. In Newman v. Tymeson, 12 Wis. 448, the court says:
“We think this was erroneous. The section referred to provides that a chattel mortgage, after being properly filed, shall cease to be valid as against the creditors of the mortgagor, or subsequent purchasers or mortgagees in good faith, unless within thirty days next preceding the expiration of the year, the mortgagee shall make and annex to it an affidavit setting forth his interest, etc. The clear intent of this provision was that, iu case of failure to make the affidavit, the mortgage should cease to be valid as against creditors who should thereafter seize it (the property), or purchasers who should hereafter purchase.”
“ If property, covered by a chattel mortgage properly filed, is so taken and converted within the year after the filing as to give the mortgagee a good cause of action for such taking, it is not necessary in order to preserve his right to recover that the action should be commenced within the year from such filing, or that the mortgage should be renewed at the end of the year, as required by the statute, to make it valid against purchasers or mortgagees.” (Case v. Conroe, 13 Wis. 31.)
Judge Orton, delivering the opinion in Lowe v. Wing, 56 Wis. 33, says:
“This court has followed the courts of New York in the construction of the above statute for the renewal of chattel mortgages, and has held that ‘the clear intent of this provision was that, in the cáse of failure to make the affidavit, the mortgage should cease to be valid as against creditors who should thereafter seize the property, or purchasers who should thereafter purchase it.’ ”
The statute of Wisconsin is the same as ours, except that the limit is two years instead of one. In Edson v. Newell, 14 Minn. 228, the court says:
“ In this case more than one year elapsed between the filing of this mortgage and the commencement of this action, and no copy and statement having been filed as provided for in the statute quoted, the counsel for the defendant insists that the plaintiff cannot recover because the mortgage was not, as against the attaching creditors, in life at the time of the commencement of this action; in other words, because the plaintiff had ceased to have any rights under the mortgage, as against such attaching creditors. But in our opinion this position cannot be sustained. The goods were taken and sold by the defendant before the expiration of one year from the filing of the mortgage. Whether since the conversion he has kept his mortgage on foot by complying with the statute, is unimportant.”
Again, referring to Corbin v. Kincaid, 33 Kas. 652, Judge Valentine says:
“And all this transpired within less than one year after the execution of the plaintiff’s mortgage, and at a time when no one would claim or even pretend that any renewal affidavit was necessary. A cause of action in replevin or conversion then arose in favor of the plaintiff and against the defendant, and that cause of action was not satisfied, annulled or barred by any failure on the part of the plaintiff to afterward file a renewal affidavit.”
Finally, the Missouri court has construed our statute, and Judge Hough, in Frank v. Playter, 75 Mo. 672, says:
‘‘The law of Kansas in regard to personal property provides that every such mortgage ‘ shall be void as against creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith after the expiration of one year after the filing thereof, unless within thirty days next preceding the expiration of the term of one year from such filing and each year thereafter the mortgagee, his agent or attorney, shall make an affidavit/ ” etc.
The object of the statute requiring this affidavit to be made-was to keep the public informed from time to time as to the condition of the title of incumbered personal property, and to furnish some reliable record evidence by which parties might be guided in dealing with such property. This statute, by its terms, can only be invoked by subsequent purchasers or mortgagees in good faith • that is, by those who become such after the period at which such affidavit should have been made. And creditors of the mortgagor manifestly, cannot claim the benefit of its provisions when their claims are asserted before the expiration of the time prescribed. The plaintiff, however, is neither a subsequent purchaser or mortgagee, nor is he a creditor. It is true he claims through those who were creditors of the mortgagor, but those creditors had asserted their claims, and he had purchased from those claiming under the proceedings instituted by them, while the mortgage was undoubtedly valid, and before any affidavit was required to be filed. The plaintiff having acquired his rights and brought his suit while the mortgage was a valid and subsisting incumbrance against him and those under whom he claimed, his right to recover cannot be aided by the subsequent failure of the defendants to make the affidavit required by law. The rights of the parties had become fixed before the default occurred. Besides, the property had been reduced to possession by the defendants within the year, and that of itself dispensed with the necessity of any affidavit. This view is supported by decisions in New York and Minnesota, where similar statutes are in force. (Meech v. Patchin, 14 N. Y. 71; Dillingham v. Bolt, 37 id. 198; Ely v. Carnley, 19 id. 496; Porter v. Parmley, 52 id. 185; Edson v. Newell, 14 Minn. 228.)
It will be remembered that the first mortgage of the plaintiff below was made December 1, 1884; that all the other mortgages were made during the first half of 1885, and the sheep were taken possession of by Howard and the Bank of Burrton in the fall of 1885, and within a year from the execution and filing of the first mortgage of the plaintiff below. The right of action for the conversion of the sheep in favor of the plaintiff below and against the defendant below accrued during the year from the filing of the mortgage of December 1, 1884. It follows then that under the law of Corbin v. Kincaid, 33 Kas. 649, the right of action could not be disturbed by a failure to file the renewal affidavit. The plaintiff claims that the mortgage given by Reeder to the Hutchinson bank December 1, 1884, was satisfied by the mortgage given June 29, 1885, the latter mortgage being given to secure the same debt, and complains of instruction number eleven given by the court. We think instruction number eleven is correct, and taken with the thirteenth instruction gives all the law on the subject. We do not think the taking of a second mortgage to secure the same debt secured by a first mortgage upon a renewal of the note secured by the first mortgage and upon the same property, operates as a satisfaction and release in law of the first mortgage.
“ The taking of a new note and mortgage on personal property to secure an indebtedness already evidenced by a note and secured by a mortgage on the same property, does not, even when the first note and mortgage are canceled, operate to discharge the lien of such first mortgage.” (Packard v. Kingman, 11 Iowa, 219.)
“Nothing but payment,in fact of the debt, or the release of the mortgage, will discharge a mortgage.” (Crosby v. Chase, 17 Me. 369; Hadlock v. Bulfinch, 31 id. 246.)
In Gregory v. Thomas, 20 Wend. 19, the court says:
“But it is said that the defendant’s second mortgage ex tinguished the first; and consequently, being put to stand exclusively on the last, which was in 1835, the plaintiff’s mortgage of the previous September is let in. The argument is against all the books, ancient and modern. Adjudications of several centuries, upon'such cases, of every variety of form, in England, in this state and in neighboring states, settle the proposition that a subsequent security for a debt of equal degree with a former, for the same debt, will not by operation of law extinguish it.”
The plaintiff seems to think the defendant lost his rights by not proceeding upon his mortgage when the debt it secured became due. We do not think so. There is no limit to the lifetime of the mortgage except such as is put upon it by the statute; otherwise it will remain until the debt is paid or barred. (13 Sm. & M. 21.) We are satisfied no reversible error exists in the record in this case, and therefore recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
This is an action in' replevin by the plaintiff below, to recover possession of twenty-five head of cows, one sorrel pony, one large brown mule, one gray horse, and one bay horse, alleged to be worth, in the aggregate, $930. The plaintiff in the court below claimed possession of the property by virtue of a special ownership, under a chattel mortgage executed by one William Speedy, on the 2d day of February, 1887, and filed in the register of deeds’ office on the 3d day of February of the same year. The property in question was levied upon by the sheriff of Nemaha county, under an execution issued out of a justice’s court of said county, on a judgment against William Speedy and in favor of Sarah C. Coffman, and by her assigned to the plaintiffs in error. The execution was issued on the 25th day of February, 1887, and on March 1st following, the sheriff levied upon the property in controversy in this action as the property of William Speedy. The return of the sheriff shows that the property was found and seized by the sheriff while in possession of Speedy, in Harrison township, and was taken by him to the city of Seneca, in another township, and sold on the 16th day of March, 1887, for the sum of $512.45. The action was commenced against M. B. Lohmuller, the sheriff, but the plaintiffs in error were substituted for him, and the action proceeded against them. The trial in the court below resulted in a verdict and judgment for the plaintiff, Mrs. Gibbons, for the sum of $949.71. A motion for a new trial was made by the defendants below, which was overruled and excepted to; and the plaintiffs in error now seek a reversal of the judgment, upon a number of grounds, but the principal one relied upon is the admission in evidence of the chattel mortgage, under which the plaintiff below claimed the-property in question. The property in controversy is described in the mortgage as “forty milch cows and the increase, or calves, of said cows; one gray horse, about ten years old; one bay horse, about ten years old; one sorrel pony, about four years old; and one mule, about twelve years old.” The mortgage provided that the property should remain in possession of Speedy until default be made in the payment of the debt and interest, or some part thereof, and that said property was not to be removed from Nemaha county. The residence of the parties is not given in the mortgage.
I. This mortgage is challenged upon a number of grounds, but the principal one relied upon is, that the description of the property intended to be pledged was so generally indefinite and uncertain that- the instrument, when recorded, did not impart notice to the world. This court has upheld some very imperfect descriptions in chattel mortgages, and we readily see the justness of the rule, as it is almost impossible to set out in the instrument each and all the articles which may be embraced in it, with such precision that anyone, by an examination of the mortgage, without the aid of other evidence, could identify the property; hence the rule adopted and supported by a long array of authorities is, if a description will enable third persons, aided by inquiries which the instrument itself suggests, to identify the property, it is sufficient. (Jones, Ch. Mort., § 54; Mills v. Lumber Co., 26 Kas. 576.) Can this description be upheld under this rule ? In the case of Mills v. Lumber Co., supra, this court says:
“We think, under the circumstances of the case, the description of the property in the chattel mortgage is sufficient. Of course the description in the mortgage is not sufficient to enable a third person without the aid of other facts than those contained in the mortgage to identify the horse; but that is not necessary. A description which will enable a third person, aided by inquiries, which the instrument itself sug~. gests, to identify the property, is sufficient. Indeed, personal property can seldom be described in any instrument so as to enable a stranger to select it from other property of like kind without the aid of other facts than those mentioned in the instrument itself. . . . Besort must be had in nearly all cases to other evidence than that furnished by the mortgage itself, to enable third persons to identify mortgaged property. ... In the present case the defendant Mills was bound to take notice of the mortgage, for it was properly recorded. He was bound to know that a bay horse, six years old in 1878, owned by and in possession of John G. Baner, was mortgaged. We think he was bound to know from the mortgage itself, that the property was situated in McPherson county, November 2, 1878, when the mortgage was executed. . . . And he knew when he attached this property, that he attached it in McPherson county and as the property of Baner, and that it was mortgaged. Under such circumstances, we think as between the mortgagee, the Kansas Lumber Company, and the defendant Mills, we must hold that the description was and is sufficient.”
On page 578, the court says that the mortgage “shows by inference, that all the property was situated in McPherson county, for if it had not been in McPherson county it could not have been removed therefrom.” Again, “ when the defendant attached the property, he attached the same in McPherson county, as the property of said John G. Baner, and was then told by a son of Baner that he got him [the horse] from John G. Baner, subject to the mortgage.”
In, this case, the mortgage provides that the property shall remain in the possession of Speedy; that it should not be removed from Nemaha county. The record is silent as to whether Speedy had any property other than that described in the chattel mortgage. The evidence in the case shows that the property in question was levied upon as the property of William Speedy; that it was found in his possession; and that one of the plaintiffs in error knew at the time that the sheriff levied upon the property that the plaintiff below held a chattel mortgage upon the same. While we regard the description as imperfect and not as full as it should be, we are inclined to hold the description as sufficient, under the numerous authorities and decisions of this court. (Adams v. Hill, 10 Kas. 627; Brown v. Holmes, 13 id. 482; Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id. 246; Mill v. Lumber Co., supra; Muse v. Lehman, 30 id. 514; Griffiths v. Wheeler, 31 id. 17; Schmidt v. Bender, 39 id. 437.)
II. A further objection is made to the introduction of the mortgage, because the date of the mortgage did not correspond with the date of the note, to secure the payment of which the mortgage was given. We do not think this objection is good, for the reason that the chattel mortgage might have been given for any other purpose; and simply because the date of the note and the date of the mortgage did not correspond, if the mortgage is otherwise valid, would not be sufficient ground for excluding the mortgage as evidence.
III. A further objection is made, that the court erred in refusing certain instructions, and giving certain instructions which were objected to. We have examined the instructions which were requested, and find that the court instructed the jury fully, as we think, upon the same matters as embodied in the instructions asked by the defendant below; and we do not find, upon an examination of the instructions which the court did give, anything which was calculated to mislead the jury, or any imperfect statement of the case at issue.
We find no errors apparent of record in this case, and therefore 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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Opinion by
Green, C.:
This case was tried in the court below upon the following stipulation :
“It is hereby agreed by and between the parties to this action, that a jury trial shall be waived in this case, and the cause be submitted to the court upon the following agreed facts, which shall be all the evidence in the case: It is hereby stipulated and agreed between the parties hereto, that N. E. Harrelson is, and was on September 6, 1886, the owner of the southwest quarter of section 6, and the northwest quarter of section 7, in township number 17, of range 24, all in Miami county, Kansas; that J. B. Hawthorne is, and was on September 6, 1886, the tenant and occupant of said lands; that on September 6, 1886, said lands were inclosed with a good, sufficient and lawful fence; that the line of defendant’s railroad runs through said lands; that on the 6th day of September, 1886, the plaintiff notified the defendant in writing -to inclose its said line of railroad through said lands with a lawful fence within sixty days therefrom, and maintain the same; that the defendant did not inclose its line of railroad through said lands with a lawful fence within sixty days from the service of said notice; that on the 14th day of March, 1887, the plaintiff commenced the construction of a good and lawful barbed-wire fence along said line of said railroad through said described lands, and on June 3,1887, completed the construction of said fence, which entirely inclosed said line of railroad through said described lands; that there are 149 rods of said fence, and that the reasonable cash value for the construction and material of said fence would be fifty cents a rod; that said defendant has not paid anything to plaintiff for the construction of said fence. It is further agreed that in case the plaintiff is entitled to recover an attorney-fee on this statement of facts, that the sum of $25 would be a reasonable attorney-fee for the prosecution of said action. The defendant denies that it is liable for the payment of an attorney-fee under the facts and law in this case.”
At the June term, 1888, judgment was rendered for the plaintiff below. The constitutionality of chapter 154 of the Laws of 1885, is challenged by the plaintiff in error.
The claim is first made that the statute in question is unconstitutional and void for the reason that it simply requires railroad companies to fence their roads through lauds inclosed by a lawful fence; that it is for‘the benefit of the land-owners alone. This is not the only object of the law. Animals straying upon a railroad track is one of the recognized sources of danger to travel, and, with the increased speed of railroad trains, experience amply demonstrates the necessity of inclosing railroad tracks through inclosed fields, as well as elsewhere, with good and sufficient fences;. and to insure safety and protection to the traveling public, all these necessary precautions are demanded. It is not the land-owner alone who is benefited. The railroad company, in obeying the law, protects its passengers and its property interests as well. The protection is-threefold. We place the validity of this law upon the broad ground of protection to the passengers who intrust themselves to the care of the railroads. It is the duty of these corporations to give to those who travel in their cars increased safety of life and limb. If, in the judgment of the lawmaking power of the state, this can be done by requiring railroad companies to fence their roads, it is but reasonable and within the power of the state, and they should comply with the legislation. Incidentally, the property of the road is protected, as well as the stock of the adjoining owner. In the exercise of the ordinary police powers of the state, it has been held reasonable to require railroads to fence their tracks, not alone for the protection of the live stock of the abutting owners. Indeed, the chief object of the statute is the protection to the traveling public against accidents occurring through collision of trains with cattle; and one exercise of the power to require railroad companies to fence their tracks does not preclude a second regulation of the same kind, providing for other and different fences. And a railroad company cannot relieve itself from the obligation to erect and maintain fences by a contract with abutting owners. (Tied. Lim., § 194; Blair v. M. & P. C. Rld. Co., 20 Wis. 262; Schmidt v. M. & St. P. Rld. Co., 23 id. 186.)
In the case of O. & M. Rld. Co. v. McClelland, 25 Ill. 140, the court declared that when the safety of person and property both demand the fencing of railroads, it is no more than the exercise of a reasonable police regulation to require it, and to impose adequate penalties to secure a compliance. And the imposition of such a duty does not deprive the company of any of its corporate rights and franchises, as they still exist, and may be exercised, although it may be in a less commodious manner; but when the public exigencies demand it, it must submit to the regulation, as if required of individuals. But we are not obliged to go , ^ , beyond our own jurisdiction to find ample authority to uphold such legislation. Mr. Justice Brewer, in speaking for this court, in the case of K. P. Rly. Co. v. Mower, 16 Kas. 573, cited numerous authorities to support a similar measure, the stock law of 1874. The authorities are fully ■collated and cited in the opinion of the court in that case, and we need only to call attention to them here. This decision has been upheld and approved since 1876, and we see no good ■reason why the principle settled then should now be disturbed.
Counsel also contend that that portion of § 3 of the act in ■question which provides for attorney-fees is unconstitutional .and void, for the reason that the subject-matter is not clearly ■expressed in the title. A reference to chapter 94 of the Laws ■of 1874, relating to the killing or wounding of stock by railroad companies, will show that the same penalty and provisions are in that statute as in the one in question; and this ■court has held that § 2 of said chapter 94, giving a reasonable attorney-fee to the plaintiff in case of recovery, for the prosecution of his suit against the railroad company for the value of stock killed or injured, was constitutional; that it is in the nature of a penalty, and is not beyond the power of the legislature. The title questioned is: “An act to compel railroad ■companies to fence their roads by and through lands inclosed with a lawful fence.” This is sufficiently broad and comprehensive to include the penalties prescribed. It is not necessary that the title to an act should be a synopsis or abstract of the entire act, in all its details; it is sufficient, if the title indicates clearly, though in general terms, the scope of the act. (The State v. Barrett, 27 Kas. 213.)
There is no error in the record, and 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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The opinion of the court was delivered by
Johnston, J.:
In an action of ejectment in the district court of Woodson county, Mary Clapp obtained a judgment against J. S. Mosier for the recovery of a quarter-section^ of land, and enjoining him from interfering with her possession and ownership of the land and improvements thereon. He seeks a reversal of the judgment upon the sole ground that the testimony is insufficient to support it. To establish her right to the land, the plaintiff below showed that it was within the limits of a grant by the United States to the M. K. & T. Railway Company, the right of which attached December 3, 1866, and the withdrawal of which took effect April 3,1867; and it was agreed that the land in question had been selected by the railway company. A sale of the land in question by the railway company to one Lee Clark on March 11, 1884, and a transfer and assignment by Clark to Mrs. Clapp on May 12, 1884, were shown. After purchasing the land she went into possession thereof and made improvements thereon. It appears that Mosier did not go into possession of the land until June, 1885, when he found it fenced and in the possession of Mrs. Clapp. He attempted to file on the land in question in 1883, but his application was refused, and he appealed from the decision of the local officers to the commissioner of the general land office, where the appeal was decided adversely to him, for the reason that the lands were withdrawn from the market. He then appealed from the decision of the commissioner to the secretary of the interior • and this latter appeal was pending and undetermined at the time of the trial in the court below. The right of the railway company to the land under the grant was sufficiently shown, and the sale and transfer through Clark to Mrs. Clapp is not disputed. Eor some reason not disclosed, Mosier seems to claim that the tract was excepted from the grant to the railway company, and was subject to preemption as a part of the public domain. However, in the trial of the case in the court below the fact that the land was within the limits of the grant was admitted, and that the company acquired the land under the grant was not questioned except by the introduction of the following notice:
“United States Land Oeeioe,
Independence, Kansas, March 7, 1888.
LAND IN CONTEST. — N. E. Sec. 22, Tp. 25, R. 14 E.
M. K. & T. R. R. Go. ) v. (• John S. Mosier. )
“You are hereby notified that on the 7th day of March, 1888, a decision in the above-entitled cause was rendered by the register and receiver in favor of defendant, and that if you feel aggrieved at such decision, you have thirty days in which to file an appeal and argument from such decision to the Hon. Commissioner of United States land office, and that if such appeal be not taken in that time, said decision frill be made final. Clate M. Ralstin, Register.”
This notice, if admissible at all, did not overturn or disturb the prima fade showing that had been made of a grant to the railway company, and the right that Mrs. Clapp obtained through the company. The no&ce does not disclose what the controversy between Mosier and the railway company was; whether it was a question of law or fact; nor did it show that the decision, in any way affected the right of Mrs. Clapp to a recovery of the land. More than that, the decision referred to in the notice appears to have been made on March 7, 1888, while the trial occurred only three days later, on March 10, 1888. The issues in the case were closed by a reply October 17, 1885, and no supplemental pleading was filed by Mosier setting forth the decision in question, or any decision affecting the rights of the parties in the present action, nor alleging any facts material to the present controversy occurring since the issues were closed. If Mosier acquired a right to the land subsequent to the commencement of the action, he should have filed a supplemental pleading, setting forth his claim under such right; but even if such a claim had been properly made, the vague statements contained in the notice would have proved nothing. The naked notice introduced of a decision not pleaded, made three days prior to the trial, and which was to become final at the end of thirty days, and which does not disclose the questions or interests that were involved in the decision, furnishes no evidence against the established right of Mrs. Clapp to the land. Under the testimony in the record the judgment was rightly given, and it will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action in replevin, commenced by the plaintiff below, in the district court of Bourbon county, to recover fifty tubs of butterine from the sheriff, who held the same by an order of attachment issued against the property of T. W. Price and D. B. Fabyan, who had been doing business in Fort Scott under the name of T. W. Price & Co., but had sold out their business some time before the attachment was issued. On the 24th of November, 1885, T. W. Price went to Kansas City, Mo., and made an arrangement with the plaintiff below whereby he was to have shipped to him at Fort Scott fifty tubs of butterine, payable cash on arrival. The butterine was not made at the time; it was to be procured from other parties, and there was no selection of the article, except by sample. The butterine was shipped on Friday, the 27th of November, and reached Fort Scott the following morning, and was immediately received by Price, and the freight paid and stored in a cellar. The goods were invoiced in the usual way, followed by detailed weight of each separate tub, and written on the bill were the words, “terms cash.” On Monday, the 30th of November, Price caused the butterine to be moved into a different part of the cellar from where it had been previously stored, and removed all the shipping-tags, and on Tuesday morning, December 1st, wrote the plaintiff that he was unable to pay for the butterine; that the goods belonged to the plaintiff, and he had placed them in the possession of a reliable party, who would take care of them until he could hear from the plaintiff.
It appears from the testimony that this letter reached the plaintiff below at 8:30 o’clock on "Wednesday morning, December 2, who concluded to accept the proposition contained in the letter, and take back the shipment of butterine. It was in evidence that Price had owed the plaintiff below $10.70 upon some other dealings, and had paid out for freight on the merchandise $8.05. At noon of the same day the butterine was attached, at the suit of one of the creditors of T. W. Price & Co. A trial was had in the district court, and upon the conclusion of the evidence the court instructed the jury to return a verdict for the plaintiff.
The first complaint the plaintiff in error makes is to the introduction of the letter written by Price on the first of December. He contends that it could only be made competent by proof of the genuineness of the signature. The objection to the introduction of this letter was because it was incompetent and irrelevant. This objection in the court below does not reach the objection counsel now seeks to raise — -the genuineness of the letter. No objection was there interposed that sufficient preliminary proof had not been offered to admit the letter in evidence. This should have been done, to entitle him to raise the question here. An objection to the introduction of evidence should be specific. (Abbott v. Colman, 22 Kas. 250; K. P. Rly. Co. v. Cutter, 19 id. 83.)
It is further insisted that “ mental conclusion " reached to take the goods back was not competent; that the only way to prove that the goods were taken back, was what was in fact done. The acceptance of Price's offer was an affirmative act, and not a mere mental conclusion, as assumed by the court below. This we regard as the decisive question in this case. Let us consider it. The facts are virtually undisputed; the goods were shipped to be paid for upon arrival; they were received by Price, and the freight paid and stored by him. Before the rights of any .other parties intervened the vendee said to the vendor: “I cannot pay you for the goods, and I have placed them in charge of a party who will take care of them until he hears from you; the goods are yours; I have done what I thought best." Does this proposition made by the vendee and received by the vendor require affirmation upon the part of the vendor to make the transaction complete? An answer to this question is a decision of this case. If this proposition stood alone, and in no way connected with what had preceded it, and was an independent offer to sell certain goods, it would be less difficult of solution. We would say that an acceptance was necessary, upon the part of the plaintiff in error, to make the offer binding, and the transaction complete. But we must consider the whole transaction from its inception until the transmittal of the letter, and say whether the title of the property in question ever passed to Price. The terms of the sale were “ cash on arrival," or cash, as expressed in the invoice. Now the rule is, that if goods be delivered before the price is paid, in compliance with the usage of trade, the delivery is conditional, and until the condition is performed the vendee holds the goods in trust for the vendor, against all persons except bona fide purchasers without notice. (Story, Sales, § 313; Hussey v. Thornton, 4 Mass. 405; Marston v. Baldwin, 17 id. 606; Corlies v. Gardner, 2 Hall, 345; Reeves v. Harris, 1 Bailey, 563.)
It seems from the evidence in the case that there were two concurrent conditions to make the sale complete — delivery upon the part of the vendor, and payment upon the part of the vendee. This frequently occurs where goods are shipped by common carriers, as in this case, to be paid for upon arrival; and the failure to make payment will be regarded as a non-performance of the condition precedent upon the part of the vendee, and will entitle the vendor to reclaim his goods. (Newm. Sales, §227.)
In Stone v. Perry, 60 Me. 48, it appeared that the plaintiffs were merchants in Boston, and a broker called and inquired the price of flour, and plaintiff asked whom it was for, and the broker replied, “Butler, of Portland.” Plaintiff answered that he did not know him, but would sell the flour at eight seventy-five, for cash. The broker went away, and soon returned and said he would take the flour, which was shipped, and the next day a bill was forwarded to Butler & Co., with the words “terms cash” printed on the margin. On the following Monday one of the plaintiffs went to Portland, and upon ascertaining that Butler & Co. had failed and the flour had been attached, replevied it from the officer. In that case the court said:
“If goods are sold conditionally, and delivery made according to the custom of the trade, before the conditions are complied with, in expectation of compliance, the delivery is also conditional, and no title vests in the purchaser until the performance of the condition; and if he steadily refuse compliance, the seller may recover the goods by action of re-' plevin.” (Bauendahl v. Horr, 7 Blatchf. 548.)
In Russell v. Minor, 22 Wend. 659, the court said:
“ Where, under a contract for the sale of chattels, a delivery of a portion of the property sold was made to the purchaser under an agreement that a note should be given for the whole quantity upon the delivery of the residue at a future day, the delivery of the first parcel was held to be conditional, and that on the delivery of the residue and the refusal of fhe purchaser to give the note and to deliver up the first parcel on demand, an action of replevin for the wrongful detention might be sustained. Where goods are sold to be paid for on delivery, if on the delivery being completed the vendee refuses to pay for them, the vendor has a lien for the price, and may resume the possession of the goods. And if during the delivery, and before it is completed, the purchaser sells or pledges them to a third person for a valuable consideration, but without notice to the original vendor, the lien of the latter will not be affected, and he may recover them from such subsequent purchaser.”
In Palmer v. Hand, 13 Johns. 434, the court stated:
“When goods are sold to be delivered by the vendor without any stipulation for credit, it is his right to demand payment immediately upon their delivery, and payment being refused, he may reclaim the goods. Ordinarily this right to reclaim should be exercised promptly after refusal of payment.”
In Morris v. Rexford, 18 N. Y. 552, it was said:
“I consider it a proposition plain in principle and sanctioned by authority, that a vendor may reclaim his goods after delivery upon a sale for immediate payment, if the vendee, on getting the property in his possession, refuses to make the payment. If there be no term of credit expressed or implied in the dealing, the delivery in such cases is deemed to be conditional and subject to revocation on the refusal or failure of the purchaser to pay the price.”
Mr. Justice Strong, in the Elgee Cotton Cases, 89 U. S. 180, quotes approvingly the rule from Benjamin on Sales, which he regards as well-settled law in Eugland, and also in this country:
“ Where the buyer is by contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the conditions be fulfilled, even though the goods may be actually delivered into the possession of the buyer.” (Benj. Sales, Corbin ed., 359, 397, and authorities there cited.)
The doctrine of this rule seems to be almost universally sustained by the American courts.
We reach the conclusion in this case that by the terms of the contract there was a concurrent condition of payment, upon the part of the buyer, to be performed before title passed to him. The buyer having notified the plaintiff below that he could not pay, he was entitled to the possession of the property, and there was no necessity of his making any reply to the buyer’s letter in regard to his inability to pay, so that he exercised the right to reclaim the goods within a reasonable time, which it seems from the evidence he did.
It follows from this view of the law that there was no error upon the part of the court below in instructing the jury to find a verdict for the plaintiff.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
Robert McGee was the owner of three lots situate in Armourdale, Kansas. He authorized Major Anderson, of Armourdale, to sell the lots for $2,200. Anderson got Williams and Chadwick to assist him in selling the lots to a customer of theirs, and they succeeded in making the sale for $2,200, half cash and half on a year’s time. Anderson then went over to Kansas City, Missouri, to see McGee and report the sale, but found McGee away from home. He notified McGee’s son, whom he found in McGee’s place of business, of the sale. The son said he would notify his father. A few days afterward, on returning to his office, Anderson found a note which read: “Major — Will take $2,200; $1,100 cash. — McGee.” He took the note and called on McGee, who denied any knowledge of the note, but upon calling his son, he (the son) said he had written it after hearing from him. Anderson informed McGee that he had sold the lots for $2,200, $1,100 cash and $1,100 in a year. McGee replied that he would not sell that way; that if he sold he must have all cash. He claimed he had not authorized a sale, part cash and part on time; that he had not authorized his son to do or say anything in connection with the lots. The lots were sold to the defendant Kroh. Kroh went to see McGee, and demanded a deed, which was refused, and on the 23d day of September, 1887, he commenced this action for specific performance. April 16, 1888, it was tried by the court without a jury, resulting in a judgment for the plaintiff, for specific performance and for costs. Defendant below filed a motion for a new trial, which was overruled. The plaintiff assigned numerous errors, and has discussed them at considerable length in his brief, while the defendant has filed no brief in this court.
There are one or two rulings upon the admission of evidence that seem so plainly erroneous, that it will probably not be necessary for us to notice many of the errors assigned. The plaintiff complains of the admission in evidence of the note mentioned above, which was written by McGee’s son. This note was identified as having been written by the boy, but there, is no evidence that the boy had any authority to write it, or to do or say anything else in connection with the lots. This was clearly error. After the plaintiff rested, McGee was put upon the stand and asked if he had ever authorized his son to write the note received in evidence, which question was objected to, and the objection was by the court sustained upon the ground that the witness had said he wrote his son about these lots and other matters, and therefore to answer would be giving the contents of letters. An examination of McGee’s evidence shows' that the conclusion of the court was unwarranted. Any fair construction of McGee’s evidence shows that he did not intend to say that he wrote his son giving him any authority in connection with the lots, and that he did not so say. His answer was broken by an interruption, and was never completed, and does not justify the conclusion that the court reached, and therefore the ruling of the court sustaining the objection to the question was erroneous. The court made the following as a finding of fact:
“About the 28th of June, the day upon which the sale was made to the plaintiff as before found, the son of the defendant, by and with the authority of the defendant, left with the defendant’s agent, Anderson, the little scrap of paper introduced in evidence, which contained the following words relating to said lots: ‘Major — Will take $2,200; $1,100 cash.— McGee.’ ”
This finding is erroneous. It is not supported by any evidence — there being no evidence that McGee’s son, who wrote the note, had any authority to write it. For these several errors we recommend that the judgment of the district court 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
Valentine, J.:
It is admitted by both parties to this action that the county seat of Atchison county is, and has been since the year 1855, located upon territory now included within the boundaries of the city of Atchison. It was first located upon such territory under au act of the legislature of 1855. (Laws of 1855, ch. 30, §§26, 36.) It was again located upon such territory on October 3, 1858, by an election held on that day in the county of Atchison under chapter 21 of the general laws of 1858. At that time the town of Atchison was an incorporated city, having known and definite boundaries. It had previously been incorporated under the provisions of chapter 77 of the private laws of 1858, which took effect February 12, 1858. No relocation of the county seat of Atchison county has since been had. At the time of this second location, and prior thereto, the city of Atchison did not include any part of the territory afterward known as L. C. Challiss’s Addition. On August 13, 1858, the site for the public county buildings was selected by the then county board of Atchison county, and such site included lots numbers 1, 2, and 3, in block 65 of the city of Atchison. On November 18, 1858, a map or plat of L. C. Challiss’s Addition was filed in the office of the probate judge of Atchison county, and on April 1, 1859, this map or plat was recorded in the office of the register of deeds. On February 11, 1859, an act of the legislature (Private Laws of 1859, ch. 93) was passed providing for adding territory to the corporate limits of the city of Atchison, and under the provisions of this act L. C. Challiss’s Addition, on April 1, 1860, became a part of the city of Atchison.
The city of Atchison within the boundaries within which it was incorporated on February 12,1858, is known and designated, at least in this case, as “Old Atchison”; and the site for public county buildings with some additional territory has remained the same ever since such site was first selected, in August, 1858. The county commissioners are now about to change the location of the public county buildings from the place where they were first located, in 1858, to L. C. Challiss’s Addition, a distance of about one-half mile; and the principal question now presented to this court is, whether they have the power to do so, or not. It is claimed by the plaintiff that they have no such power, and for these reasons : First, L: C. Challiss’s Addition not being a part of the territory of the city of Atchison when the county seat was located, such addition is not now and never has been a part of the territory constituting the county seat of Atchison county. Second, that as the county board of Atchison county fixed the site for the public county buildings in 1858, such board then exhausted all its power to locate the county buildings, and could never again exercise any such power, unless the county seat at some subsequent time should be relocated, or unless additional authority at some subsequent time should be given such board by the legislature.
We think it has already been settled by the decisions of this court, that a county seat will remain precisely where it was originally located until changed or removed under the provisions of the constitution and statutes of the state. (The State v. Harwi, 36 Kas. 588; The State v. Stevens, 40 id. 113, 119; School District v. Roach, 41 id. 513, 533.) In this present case the county seat was located on October 3,1858, at the city of Atchison. Of course it could not have been located in or upon the city of Atchison, as a governmental organization, a municipal corporation, a corporate entity, an artificial person, and all bodies politic and corporate in Kansas, are in law perons — artificial persons. (See act relating to the construction of statutes, § 1, ¶ 13; Gen. Stat. of 1889, ¶ 6687.) It was in fact located upon territory, the territory occupied by the corporate being, the artificial person, known as the city of Atchison. It is not necessary, however, in any case, that a county seat should be located within or upon territory occupied by an incorporated city, or within the territory of a city at all, or within the territory of any town, or village, or township, or school district, or road district, or any corporation or organization of any kind. County seats do not necessarily have any relation to or connection with any such things. A county seat may be located upon vacant and unoccupied land, and by any name that will sufficiently designate it or by which it may be known. (Conley v. Fleming, 14 Kas. 382, 386.) It might be located upon John Smith’s farm and be designated by that name, provided there was any such place and only one such place iu the county, and provided a sufficient portion thereof could be obtained for public buildings and other public necessities; and in such a case John Smith, with like impotence as the city of Atchison, could not enlarge the boundaries of the county seat by enlarging his own possessions; nor could he remove the county seat by simply exchanging his farm for some other farm. When a county seat is located its exact location is fixed, and it cannot be changed by the subsequent mutations of the municipal corporation within whose territory it may happen to be located. It can be changed only under the provisions of the constitution and the statutes. (Const., art. 9, § 1; acts relating to the location and removal of county seats.) And it can be changed only by the consent of a majority of the electors of the county, given at an election duly called and held for that purpose. But suppose that by the taking of L. C. Challiss’s Addition into the corporate limits of the city of Atchison the boundaries of the county seat have been extended over such addition, and then suppose that “ Old Atchison” should be abolished or be taken from the boundaries of the enlarged city, leaving only L. C. Challiss’s Addition as the city of Atchison: then would the county seat of Atchison county be on Challiss’s Addition, and exclusively on such addition ? And if so, would the change of the location of the county seat of Atchison county, as thus made, be a change within the provisions of the constitution and the statutes of the state of Kansas ? We think not.
The restraining order prayed for by the plaintiff will be granted.
Johnston, J., concurring.
Horton, C. J., not sitting, or taking any part in the decision.
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The opinion of the court was delivered by
Horton, C. J.:
On May 3, 1886, B. C. Redlon filed his petition in error in the district court of Crawford county to vacate an order of the board of county commissioners of that county locating and opening a public highway. The petition in error alleged that the board of county commissioners had no jurisdiction of the matter set forth in the record, and that the petition for the road to the board was wholly insufficient to authorize the establishment of a public highway. Upon the hearing of the case, at the August term, 1887, the district court found error in the proceedings of the board of county commissioners, and reversed the proceedings relating to the location and opening of the highway. The principal petitioner for the road and the board of county commissioners excepted, and bring the case here for review.
It appears from the record that on October 5, 1885, there was filed in the office of the county clerk of Crawford county, addressed to the board of county commissioners of that county, a petition signed by more than twelve resident householders of the county, stating that the public convenience required the locating of a county road. The petition specified the place of beginning and the place of the termination of the road. With the petition a sufficient bond was filed. On the 14th day of October, 1885, the petition was presented and considered by the board of county commissioners. The board approved the bond and made a finding that “the law had been substantially complied with,” and appointed viewers to meet on the 14th day of November, 1885, and proceed to view the road. Notice was served upon B. C. Redlon of the time and place of the meeting of the viewers. At the meeting of the viewers, Redlon presented his application for $1,000 damages, on account of the location of the road through his premises. The viewers assessed the amount of his damages at $60. Subsequently, the viewers filed their report, showing that the road was practicable, and recommended that it be located and surveyed as called for in the petition. The viewers also reported that in their opinion the establishment of the road was a public necessity. At the meeting of the board of county commissioners on the 14th day of January, 1886, the favorable report of the viewers was fully considered, and as it appeared that proper notices and advertisements had been made and filed, and the board, being satisfied that the road would be of public utility, ordered the road to be established and surveyed and a plat thereof to be recorded. It further ordered that the road should be opened for public travel. It also directed that a county warrant be issued to B. C. Redlon for $60, being the amount of damages allowed him by the viewers.
It is somewhat difficult to determine upon what ground the district court found error in the proceedings of the board of county commissioners. It is claimed, however, on the part of the petitioner in the court below, that the board acted without jurisdiction, because it does not appear from the record, in direct terms, that the commissioners found “the petition to be a legal one.” The board did make the finding “that the law had been substantially complied with,” and also made the finding “that the road would be of public utility.” The petition recites that “your petitioners are resident householders of Crawford county.” It is signed by fifteen persons. The record does not show that any evidence, by affidavit or otherwise, was offered to the board of county commissioners showing that, the persons whose names were attached to the petition actually signed the same, or that they were resident householders.
We do not think this is necessary. It is not requisite that the record of the board of county commissioners should embrace the evidence offered upon the hearing of petitions for roads or other matters. It is sufficient that the record shows that the commissioners had jurisdiction. The petition alleged that the signers are resident householders, and sufficient names are attached to the petition; therefore we cannot say, in the absence of the evidence, that the board acted without jurisdiction, or that it received no evidence to support the petition presented. It may be that the board of county commissioners was acquainted with all the signers of the petition, and knew that the facts therein alleged were true. Even if the board of county commissioners acted strictly as a court in laying out the road, then the omission of the finding “that the petition was a 'legal one” would not be sufficient to compel a reversal of its proceedings. (L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 Kas. 169.) In this case, the record shows that there was a general finding, and that “the law had been substantially complied with.” This is sufficient, under the petition presented, as all the other proceedings were regular, upon which to predicate the order laying out the road.
This case differs from Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kas. 129, because in that case the petition did not show that any of the signers were resident householders, and the record wholly failed to supply the fatal defect. Further, in that case, Muhlenbacker never appeared before the board of county commissioners or the viewers. In that case, no jurisdiction was shown. In this case, the petition alleges sufficient facts to give the board of county commissioners jurisdiction to lay out and open the road, and therefore its jurisdiction affirmatively appears from the record.
TYe have considered the other objections to the road, but do not perceive that any of them are tenable.
The judgment must be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On the 10th day of July, 1871, Robert Titus made a preemption settlement upon the land in controversy, being a quarter-section of land in Reno county, in this state. He died before consummating his claim of preemption. After his death, D. B. Miller, administrator of his estate, filed the necessary papers to complete the preemption, paying the price thereof, $400, from his own money to the United States. On the 20th day of April, 1874, a patent to the land was issued by the United States. The patent, among other things, recited that —
“The United States of America, in consideration of the premises and in conformity with the several acts of congress in such cases made and provided, have given and granted, and by these presents do give and grant unto the said heirs of Robert Titus, deceased, and to their heirs, the above tract described, to have and to hold the same, together with all the rights, privileges, immunities and appurtenances of whatsoever nature thereunto belonging, unto the said heirs of Robert Titus, deceased, and to their heirs and assigns forever.”
Robert Titus, who made the preemption settlement, was married to Phoebe Thomas in Vermont, in 1809. The only issue of this marriage was Alden W. Titus, born in October, 1810. After the birth of his son, Robert Titus abandoned both his wife and child. Without having a divorce, he had a marriage ceremony performed between him and Miriam Lee, in the state of New York, on July 14th, 1818. By Miriam Lee he had five children. The youngest was the daughter Lois. Lois married D. B. Miller, one of the defendants. In 1871 D. B. Miller, his wife and Robert Titus came to this state from Illinois, and settled in Reno county. Soon after, Titus preempted the land now claimed by Miller. Miriam Lee died in 1853. Mrs. Phoebe T. Titus died in Vermont, in 1860. Alden W. Titus, the son by Mrs. Phoebe T. Titus, died in 1876, intestate, leaving heirs. D. B. Miller purchased from the heirs of Alden W. Titus, deceased, all their right and title to the land in dispute, and claims the fee-simple title thereof by conveyances from them as the only heirs of Robert Titus, deceased. John Caldwell, the plaintiff, is a son of Delight, a daughter of Robert Titus by Miriam Lee, and claims a portion of the land from her and through conveyances from several of the children and heirs of the children of Miriam Lee.
The pivotal question is the interpretation of § 2269, Revised Statutes of the United States, 1878. This question is one which may ultimately be decided by the supreme court of the United States; therefore the final decision does not rest with us. The section reads:
“ Where a party entitled to claim the benefits of the preemption laws dies before consummating his claim, by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same; but the entry in such cases shall be made in favor of the heirs of the deceased preemptor, and a patent thereon shall cause the title to inure to such heirs as if their names had been specially mentioned.”
The plaintiff contends that the words “the heirs of the deceased preemptor” include legitimate and illegitimate children, if the illegitimate children were generally and notoriously recognized by Robert Titus in his lifetime as his own. Under this rule, the heirs of Alden W. Titus, deceased, and the children of Miriam Lee, or their heirs, are all heirs of Robert Titus, deceased. This would give John Caldwell an undivided thirteen twenty-eighths of the land, and damages for its detention.
On the other hand, the defendants claim that the word “heirs” must be determined by the common law of England. Therefore it is contended by them that the heirs of Alden W. Titus, deceased, had the sole right to the land prior to their conveyances to D. B. Miller. This would give all the land to Miller.
In interpreting the United States statutes, the question is not what congress has the power to do, but what congress has actually done. Congress has not defined the term “heirs.” The land is situate in this state. Robert Titus died in this state. Therefore, to determine who are meant by the words in the patent, “heirs of Robert Titus, deceased,” we think we must look to the statutes of this state. “ It seems to us scarcely necessary to say that this is purely a question of statutory law.” (McKinney v. Stewart, 5 Kas. 391.) “An heir is one who by statute is capable of inheriting from another, or one who sue ceeds to the estate of a deceased.” (McKinney v. Stewart, supra; Delashmutt v. Parrent, 40 Kas. 641.)
In the act concerning descents and distributions are the following provisions, which are now in force, and were also in force at and before the death of Robert Titus:
“Sec. 22. Illegitimate children inherit from the mother, and the mother from the children.
“Seo. 23. They shall also inherit from the father, when they have been recognized by him as his children j but such recognition must have been general and notorious, or else in writing.” (Gen. Stat. of 1889, ch. 33, pp. 780-787.)
Under this statute, as the children of Miriam Lee were generally and notoriously recognized by Robert Titus as his own, they inherited from their father with Alden ~W. Titus, the legitimate child. The conclusion of law of the district court in favor of the defendants is therefore erroneous.
That the statute of this state must determine who are “heirs,” is in accord with the prior decisions of this couyt. In Brown v. Belmarde, 3 Kas. 41, the syllabus reads:
“Prior to the treaty of June 3, 1825, with the Kansas Indians, they had the ‘Indian title/ i. e., a life interest in the usufruct, of a body of land in eastern Kansas, including that in controversy, the United States holding the ultimate title, charged with this interest of the Indian Nation, so long as they should remain a nation. This ‘Indian title’ was by the sixth article of that treaty vested in certain individuals — that to the land in question in Lavonture.
“From the death of Lavonture, in 1847 or 1848, to the passage of the act of congress, May 26, 1860, the whole title to the land in question was in the government, and that act operated as an original grant to certain reservees and the ‘heirs of deceased reservees’ mentioned therein. ‘Heirs of deceased reservees’ used therein is descriptio personco, and is to be construed with reference to, and determined by the law at the time the estate passed, and whoever under the laws of this state would have inherited, had Lavonture died May 26, 1860, (the date of the approval of the act of congress,) are the persons to whose benefit the grant inured.”
In Clark v. Lord, 20 Kas. 390, it is said:
“The patent was not issued to Eleanor Eichardson, but to ‘the heirs of Eliza Eichardson/ and said Eleanor Eichardson obtained her interest, not as an allottee, not as the patentee, but by virtue of the laws of the state of Kansas, which authorized her, as an heir of Eliza Eichardson, to inherit the estate of her sister. If Eliza had lived, the lands would have been allotted and patented to her. After her death they were patented to her heirs, without naming them; and the law of the state determined who these were. Eleanor simply inherited the lands granted to Eliza during her life; and the patent is evidence of the partition of the lands, and the division made in pursuance of the treaty. The death of Eliza Eichardson did not change the terms and conditions of the treaty, nor annul the grant to her; but as the patent could not issue to a dead person, it was necessarily issued to the heirs of Eliza; but such heirs were not controlled by the restrictions applicable to the allottees and patentees. If the patent had issued to Eliza in her lifetime her death would have abrogated the restrictions on the alienation of the land; and having issued after her decease, it placed the heirs in the same condition, as to their rights in the property, as if issued before.”
See also Cutting v. Cutting, 6 Sawyer, 396-406; 21 Myers’s Federal Decisions, 370, 371-399; Lamb v. Starr, 1 Deady, 358.
Defendants cite McCool v. Smith, 1 Black, 459, but we do not think that decision is authority for them. “Next of kin” is construed in that case by the common-law definition, for the reason that the common law of England was in force by express statute in the state of Illinois at the death of the party referred to in the opinion. If we were required to go outside of the statutes of this state and to the common law of England to determine what is meant by the term “heirs,” we should have insuperable difficulties to encounter. If we are not to construe “heirs” in this case by the statute of this state, it is impossible to determine, as congress has not adopted the common law of England, what part or portion of the common law of that country is applicable.
Among the canons of descent, as enumerated by Blackstone, are two which are wholly inapplicable to this country, and which could never have been within the intention of congress to apply in this state, or any other state of the Union. One of these common-law canons is, “that where there are two or more males in equal degree, the eldest only shall inherit; but the females all together. As, if a man has two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies, Matthew, his eldest son, shall alone succeed to his estate, in exclusion of Gilbert, the second son, and both the daughters ; but if both the sons die without issue before the father, the daughters, Margaret and Charlotte, shall both inherit the estate as co-parceners.” The other canon is, “that the male issue shall be admitted before the female. Thus, sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred. As, if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew and (in case of his death without issue) then Gilbert, shall be admitted to the succession, in preference to both the daughters.” (2 Bl. Com. [Wendell], pp. 212, 213.)
We do not think it necessary to comment upon the attempted removal of this case to the United States circuit court. After the application for removal was denied by the district court, the parties filed new pleadings and entered into various stipulations and wholly disregarded any attempted removal.
The judgment of the district court must be reversed, and the cause remanded, with direction to the court below to enter judgment upon the findings of fact in favor of John Caldwell and against the defendants for the undivided |-| of the land and damages for its detention from March 4, 1885, at the rate of $41.67 per year.
All the Justices concurring.
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Opinion by
Strang, Ci:
This was an action in trespass under the statute for treble damages, commenced in the district court of Osage county, April 26,1887. Plaintiff claimed damages in three separate counts: First, for taking and carrying away coal from the plaintiff’s land; second, for taking and carrying away earth; and third, for damages to a well on her premises. The second and third counts were practically abandoned on the trial. The defendant answered by general denial, and the case was tried by the court and a jury, December 16, 1887, and resulted in a verdict in favor of the plaintiff for $285.05. A motion for a new trial was filed and overruled, and the plaintiff, defendant below, brings the case here, and alleges that the verdict is not sustained by the evidence. This is the only error argued in the brief of plaintiff in error, and the only one relied on, though others are assigned. It is true plaintiff says in his brief that his demurrer to the evidence of the plaintiff below should have been sustained, but as that raises practically the same question as the one raised in the allegation that there is no evidence to sustain the verdict, we will not consider it separately.
It is the rule of this court, so well established that it goes without saying, that where there is any proper evidence to support the verdict of a jury'which has the approval of the trial court, this court will not disturb such verdict. The plaintiff in error recognizes this in his brief, but says there is no evidence sustaining the verdict in this case, and that this court has not gone so far as to sustain a verdict that is not supported by any evidence because such verdict is approved by the trial court. In this case, Williams, defendant below, testified that he never removed any coal from the premises of Mrs. May, plaintiff below, and that he never authorized anyone to do so; did not know until after it was removed that it was being done; and there is no direct testimony contradict ing this evidence. But the witness Gray testified that he was a miner of fifteen years’ experience; that.he was acquainted with the mine of the defendant below; that he had surveyed it for both the plaintiff and the defendant below, and for the state, showing his thorough knowledge of the mine and its surroundings. Then Gray testified that it would take a year, the way that shaft was operated, to take the coal from under the land of the plaintiff below. Williams testified that he leased his shaft to one Branstrom, August 15, 1886, and at that time the mine was worked pretty close to the land of Mrs. May. All the evidence showed that the coal was taken from Mrs. May’s land prior to the 1st of May, 1887. While there was no direct evidence showing that Williams removed coal from Mrs. May’s land, yet if the evidence of Gray is true, a portion of the coal was taken from her land prior to August 15, 1886; and the jury, who were the judges of the weight to be given to the testimony of witnesses, may have given the testimony of Gray more weight than they did the evidence of Williams, and may, under the circumstances of Gray’s testimony, have entirely disbelieved Williams’s statement. We may not undertake to say whether the jury should have done so, or not, because that would be weighing and attempting to give weight to the evidence, which must be left to the jury. We think there was some evidence to support the verdict; and as the jury weighed it, and gave it greater weight than they gave the evidence of Mr. Williams, and thereon found for the plaintiff, we will not interfere. We therefore recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an action commenced in the court below November 21, 1889, to enjoin the city of Topeka, James Ramsey, Byron Roberts as treasurer of Shawnee county, and the Capital City Vitrified Brick and Paving Company, from paving Van Burén street between Third and Eighth streets, under a contract entered into between said city of Topeka and James Ramsey, dated August 1, 1889. Answers were filed by the several defendants, setting forth, first, a general denial; second, the regularity of the successive and necessary steps showing the necessity, propriety and legality of the contract between the city of Topeka and James Ramsey for the paving of said street; and third, the statute of limitations. To which answers the plaintiffs replied; and on the 9th day of December, 1889, the case came on for trial, resulting on the 12th day of December in a judgment for the plaintiffs; to which each of the defendants duly excepted. December 13th the several defendants filed their motions for a new trial, which motions were overruled. and the ruling duly excepted to, and the case brought to this court for review. March 11,1889, the city council adopted a resolution declaring the necessity of paving Van Burén street, which resolution was duly published. Afterward, the city engineer was instructed to prepare plans, specifications and estimates for curbing and paving said street; and on July 19th the city clerk was directed to advertise, and did advertise, for sealed proposals for the work of paving said street. The proposals were received and opened July 23, 1889; the bid of James Ramsey was accepted, and the contract therefor awarded to him, and the council instructed the mayor to enter into a contract with said Ramsey therefor. Afterward, appraisers were appointed, and the property liable for the improvements was appraised. The council met, and adopted and confirmed the said appraisement. An ordinance was then passed fixing the rate of the levy to be assessed against each lot and piece of ground liable to pay the cost of said improvement. The city clerk afterward computed the amount of the assessment, and gave the owner of each lot or piece of ground notice of the amount of the assessment. This notice was given the defendants as early as the 12th of September, 1889, and this suit was not commenced until November 21, 1889; and the plaintiffs in error allege that the statute of limitations provided for in cases like this had run, and that the case of the defendants in error, if any they had, was barred.
Section 1 of chapter 101, Laws of 1887, among other things provides that—
“No suit to set aside said special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for snch assessment is ascertained'.”
The language of this statute is such as to leave little or no room for construction. Its provisions are plain, direct, and positive, and seem sufficiently broad to cut off all defenses not asserted within the period of time named therein. It says no suit shall be brought nor any defense allowed after the ex piration of thirty days from what? From the time the amount due on each lot is ascertained. It not only declares that no suit shall be brought to.set aside or enjoin the making of the assessments, but provides that no defense to the validity thereof shall be allowed after thirty days from the time the assessment is ascertained.
However, the defendants, plaintiffs below, insist that at the time the contract was entered into between the city and Ramsey, two of the councilmen representing the city had a pecuniary interest in said contract, which rendered it null and void; that said fraud was concealed from and unknown to the plaintiffs below until October 29, 1889, when Ramsey assigned said contract to the brick and paving company; and that because of said concealment of the fraud the statute of limitations did not commence to run until said 29th of October, a time within thirty days before the suit was commenced, and that therefore the suit is not barred by said statute. We hardly think this position is tenable. The legislature has provided a special statute of limitations for these cases, and any fair construction of its provisions is against this position. It would have been easy for the legislature to so word the statute as to cut off all defenses except for fraud, and to say that the statute should run as against fraud from the time of its discovery. This is done in the general statute of limitations; but there is nothing of the kind in this statute. And as the legislature was providing a special statute of limitations, different from the general statute, we must presume that it intended it to have the effect it said it should have, and cut off all defenses of whatever kind or character. This may be a harsh rule, but that fact does not furnish a reason why we should not construe the statute as it is, though it may furnish a reason why the legislature should modify it.
In this case it was claimed that the amount assessed against the several lots liable for the improvement sought to be made was not properly ascertained; that it was ascertained by the city clerk instead of by the council. The record shows that on the 6th of September, 1889, the city council passed an ordinance levying the special assessment complained of, which ordinance was approved September 7th and published September 12th. This ordinance fixed the rate of the levy, and all that remained to be done was to compute the amount of the assessment upon each lot or piece of ground at the rate designated in the ordinance; and the ordinance directed the clerk to make the computation. We think the clerk had authority to make the computation, and the assessment so made was properly ascertained. In this case, it is not shown that the contract was let at an unfair or extravagant price for the work; so it would seem that the plaintiffs below will suffer no injury from the execution of this contract, and in fact it appears in the record that one of the plaintiffs has, since the action was commenced, paid her assessment, showing that she has become satisfied with the proposition to improve the street under the contract sought to be enjoined in this case. At all events, we think the action was barred by the statute, and therefore recommend that the judgment of the district court be reversed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This is a proceeding in which the plaintiff in error, who was plaintiff below, on the 22d day of November, 1889, filed in the district court of Atchison county his petition praying the court to allow an order restraining the collection of certain taxes therein set out. The court heard the application December 2, 1889, upon the petition and oral evidence, and took the same under advisement until December 7, when it rendered judgment refusing to allow the order prayed for by the plaintiff in his petition; to which ruling rendering said judgment the plaintiff objected and excepted, and comes here by its case-made alleging that the court below erred in refusing said order, and asks that the judgment of the said court be reversed.
This case grows out of the action of the county commissioners of Atchison county, sitting as a board of equalization, by which they increased the assessment of the plaintiff for purposes of taxation. The assessor whose duty it was to assess the plaintiff called on the company, and received from J. W. Fisher, who was secretary and treasurer thereof, the personal- property statement of said company. Mr. Fisher on behalf of the plaintiff listed the average of stock on hand at the sum of $6,000, and listed furniture worth at its alleged true value $450. The assessor, pursuant to an agreement entered into by all the assessors of the county to value property at one-third its true value, placed upon the property of the plaintiff an aggregate valuation of $2,150 — $2,000 upon the average amount of stock, and $150 upon the item of furniture. The county commissioners of Atchison county met as a board of equalization on the 3d of June, 1889, and while sitting as such board, on the 12th day of June, added to the assessment of the plaintiff the sum of $7,850. This was done arbitrarily by the commissioners, or two of them, and without any notice to the plaintiff. Now, the plaintiff claims that such addition was a new and additional assessment of the plaintiff’s property, made by the county commissioners sitting as a board of equalization, and avers that the board had no power as such to make any additional assessment. If the plaintiff is right in its contention as to the fact, we think its conclusion of law is correct. The commissioners were in session as a board of equalization. It is admitted that as such board they added to the assessment of the plaintiff the sum of $7,850. Now what did such action of the board amount to"? Was it a new assessment by them, or was it simply a raising of the valuation of the property of the plaintiff already listed ? If it was the making of a new assessment, it was without authority of law. If it was simply a raising of the valuation put upon the plaintiff’s property as listed by the assessor, then it was within the authority of the board and of the very purpose for which it met, and entirely proper if not raised higher than the property of the rest of the tax-payers of the county.
Mr. Wilcox, chairman of the board, when asked how much the board increased the valuation of the first item in the plaintiff’s assessment as given in by itself to the assessor, and returned by him, to wit, the average of stock on hand during the preceding year, answered, “ We didn’t talk about the first item — the average stock. There was nothing said about it.” When asked if he believed the plaintiff had failed to list the full amount of its average stock, answered, “I did, sir; I did not believe they had returned enough.” Again, Wilcox testified that the board did not complain of the average of stock so far as the retail business of the company given in Atchison was concerned, but said it believed the company should be assessed for the wholesale business it did, and the business it had in Topeka, Omaha, and other places. It is apparent from the testimony of Mr. Wilcox, to say nothing of the other testimony in the case, that the board did not think it was raising the value of the plaintiff’s property already listed, above the one-third valuation agreed upon by the assessors, but that it believed that the plaintiff had other personal property that it had not listed. Just what form such property was in, the board evidently did not clearly understand, as it called it capital invested in business outside of the city of Atchison, and which it believed should in some way be reached and assessed in the city of Atchison where the plaintiff’ company had its home office and headquarters. If there was no evidence of witnesses upon this question, it would in our judgment clearly appear from the proceedings of the board of equalization, as shown by the record offered and received in evidence in the case. The entire amount of property listed by the plaintiff was $6,000, average amount of mercantile stock, and $450 worth of furniture. . The board was satisfied with the furniture as listed, which left but one item on the personal-property statement of the plaintiff to be considered, and that was the stock in trade of the company.
The law requires the assessor to value the property listed at its true value. . Where the personal property to be listed consists exclusively of stock in trade, the statute declares what shall constitute the property to be listed. It is. the average of stock on hand during the preceding year, and the statute also points out the method by which such average may be ascertained. The sum in money represented by such average is the true value of such personal property. If, therefore, the assessor values the average of stock and returns the same at a sum in money less than the amount represented by such average, the board of equalization may, for purposes of equalization, raise the valuation placed upon said average to a sum equal to, but not greater than, the sum represented by said average. In this case the board of equalization added to the valuation placed upon the property listed a sum greater than the true value of all the property listed, which shows that it did not raise the valuation of the property listed, as placed thereon by the assessor who made the assessment, but that it added to the personal-property statement of the plaintiff property not listed. This the board had no power to do. Such an addition is a new assessment. The statutes point out the mode by which both real and personal property are to be assessed, and by whom the assessment is to be made; but nowhere do they in any way authorize the county commissioners, sitting as a board of equalization, to act as assessors. Property both real and personal is assessed for purposes of taxation by township and city assessors. Section 4, chapter 107, General Statutes of 1889, points out by whom personal property is to be listed for assessment and taxation. Section 59, same chapter, requires the township and city assessors, between the 1st of March and 1st of May of each year, to call upon all persons, companies, corporations and listing agents for their personal-property statements. Section 14 requires the said assessors to value the property listed. Section 66 requires the assessors to return to the county clerk the statements of personal property of persons required to make them. These statements are returned with the valuation placed upon the items of property therein listed by the assessors, and such returns constitute the assessment of the personal property of the county, subject to the power of the board of equalization to raise or lower the valuation placed upon the property therein listed, unless the county clerk or board of county commissioners has reason to believe that some person whose duty it was to make a personal-property statement has given to the assessor a false statement, or no statement at all, of his personal property, in which case said county clerk or board or county .commission ers may proceed at any time before final settlement with the treasurer to correct the returns of the assessor and charge such person for taxation with whatever property he should have listed. (Gen. .Stat. of 1889, ch. 107, § 70.) To enable the county clerk or board of county commissioners to successfully correct such returns, the county clerk is authorized to issue compulsory process and bring before him any persons whom he may suppose have knowledge upon the subject; and if any person fails to appear he is guilty of a misdemeanor, and subject to fine and imprisonment. But before the county clerk or board of county commissioners shall proceed to correct any return of the assessors, they must give the property-owner five days’ notice, to be served as required by § 70. It will thus be seen that ample provision is made for the assessment of personal property. That it is to be made in the first instance by the township and city assessors, and by them returned to the county clerk; and any corrections of said returns are to be made by the county clerk or board of county commissioners, after five days’ notice to the property-owner to be affected thereby, but never by the board of equalization. Section 73 creates the board of equalization, while § 74 defines its powers and duties. An examination of these two sections will disclose that the word “assessment” is not to be found therein. This board is to fairly and impartially equalize the valuation of the personal and real property of the county. That is, if horses are assessed in one township in the county at $15 each, and in another township at $25 each, the board of equalization may raise the valuation of the horses as returned by the assessor in the first township to $20 each, and lower the valuation as returned by the assessor in the latter township to $20 each, in order to equalize the valuation on horses in the two townships. But the board may not add to the assessment as returned by the assessor an additional horse or horses. Or, if land in one township is assessed at $3 per acre, and in another at $7, as shown by the returns of the assessors, the board, to equalize the valuation in the two town-' ships, may raise the three-dollar valuation to $5, and lower the seven-dollar valuation to $5; but it may not add to the return of any assessor an additional piece of land not already listed.
In the case at bar, there was no want of power properly lodged to enable the proper authorities to secure an assessment of all the personal property of the plaintiff. If the county clerk or board of county commissioners had reason to believe that the plaintiff' had not listed for taxation all of its personal property, they had ample power, under §70, above referred to, to secure a full assessment of all its personal property. They could have served notice on the plaintiff, issued process, and brought the officers of the plaintiff company, or any other persons having knowledge upon the subject, in to testify under oath, and thus learn all about the plaintiff’s property, and after such hearing add to its assessment as returned by the assessor any other personal property they found the plaintiff possessed of. The object of the commissioners seemed to be to secure a fair assessment of the property of the county for taxation, but they mistook the method. The legislature has not, and likely will not, confer arbitrary power upon the commissioners, or any other body or person to arbitrarily assess property-owners for taxation. The power lodged with the assessors, county clerk, and board of county commissioners by the legislature, is ample for all proper purposes of assessment and taxation, and we do not think the power should be extended to any tribunal not already in possession thereof.
The defendants in this case rely on the case of Gillett v. Treasurer of Lyon Co., 30 Kas. 166, and the court below seems to have regarded it at least as somewhat controlling in the case. We think a careful examination of that case will show it to be in perfect harmony with the conclusions herein reached. In that case the facts show that the assessors of Lyon county met pursuant to statute, and agreed upon a common basis of valuation for the property of their respective townships. Afterward the assessors of some of the townships ignored the agreement so made by the body of the assessors, and valued the property in their townships lower than the valuation agreed upon, and consequently lower than like property was valued in other townships of the county. When the board of equalization met, it, in order to equalize the assessments for the several townships of the’ county, raised the valuations of the assessors who had ignored the agreement, to make them correspond with those of the other townships. The plaintiffs in that case held cattle in one of the townships, the assessor of which had ignored the agreement, and valued such property at a sum less than the common basis, and when the board of equalization raised the valuation on their cattle, they commenced suit to enjoin collection of taxes, alleging that the board of equalization had no power to raise the valuation as returned by the assessor, on their cattle without notice to them. This court held that the board of equalization had, since the acts of 1876, (chapter 107, § 74, Comp. Laws of 1879,) power to equalize the assessments of personal property made by the several assessors of the county by raising the assessment in the township where the plaintiffs’ cattle were assessed, to correspond with the common basis agreed upon by the township assessors, without notice to the owners of property, the valuation of which the board had raised. That is all the court decided. In this case the power of the board of equalization to raise or lower the valuation of the property as returned by the assessors is not challenged. That is not the question in this ease. A hasty reading of the opinion in Gillett v. Treasurer of Lyon Co., 30 Kas. 166, or a reading of the syllabus, without an examination of the opinion, might mislead. In the syllabus the word “assessment” is used in a limited sense, as meaning valuation. With this understanding of the sense given to the word “ assessment,” the syllabus properly represents the opinion, and what was decided thereby. The term assessment” employed in connection with general taxation means more than mere valuation. ' When we speak of an assessment of property as the basis for levying and collecting taxes, we mean more than valuation. “Assessment” so used is defined by Welty on Law of Assessments, page 3, as “An official listing of persons and property, with an estimate of the value of the property of each for purposes of taxation.” Here it will be seen assessment includes the listing, together with the valuation of property, and the syllabus above referred to, read in the light of this definition of assessment, and giving the word “assessment” therein this meaning, would be misleading, and so understood would not correctly represent what was decided in said case.
We recommend that the case be reversed, and remanded with instruction to allow the order of injunction.
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.:
Mary F. Stout, as executrix of the last will and testament of Elizabeth Van Fleet, deceased, brought an action against William K. Wan Fleet, and alleged that, in 1882, Elizabeth Wan Fleet, who was then the owner and holder of $800 in United States four-per-cent, bonds, placed them in the hands of William K. Wan Fleet, who was tbhold them in trust, and transmit the interest coupons to her as they matured; that he so held them until 1883, when he sold the bonds, in violation of his trust, and converted the proceeds to his own use. It is averred that he has refused upon demand to turn over the bonds or the proceeds of the same. Judgment was demanded in the sum of $1,075, with interest. The answer of the defendant was a general denial, and that the bonds in question were a donation to him, his brother and sister. The cause was tried without a jury, and judgment in favor of Mary F. Stout, as representative of the estate of decedent, for $1,115.59, was given. William K. Wan Fleet complains, and alleges four grounds of reversal.
The first objection is, that the court proceeded with the trial although a temporary injunction previously granted was in force,, enjoining the further prosecution of the action. In a supplemental answer the defendant below alleged that a proceeding had been instituted in another state to set aside the will under which Mary F. Stout had been appointed executrix, and asking the court to enjoin the prosecution of the action until these proceedings in the other state were concluded, and finally to grant a perpetual injunction. Upon this application a temporary injunction was granted, to take effect upon the giving of a good and sufficient undertaking in the sum of $2,000. The defendant thereupon gave an undertaking, but the attention of the court being called to the same, it was held not to be in compliance with law and the order of the court. Additional time was then given to defendant to file the required bond, but it was not filed, and the court treated the order previously given as ineffectual, and about a year thereafter proceeded with the trial of the cause. The injunction was not to take effect unless the conditions imposed were complied with. The bond tendered to the court was examined by it, and held to be insufficient. The granting or refusal of a temporary injunction is largely within the discretion of the court, and the matter being still before the court in this instance, it determined at once whether the bond tendered was in conformity with its order; and having held adversely, proceeded upon the theory that no injunction was yet in force. The defendant, however, was given further time and opportunity to file such bond as would make the order operative. The mere order of the court granting an injunction upon conditions to which the party did not conform was no obstacle against proceeding with the trial of the cause. ° . .. The failure to give the required undertaking rendered the order inoperative, and warranted the ■court in ignoring it. (Civil Code, § 242; The State v. Comm’rs of Rush Co., 35 Kas. 150; The State v. Comm’rs of Kearny Co., 42 id. 739.) The defendant was not hurried into a trial, nor was he limited in his defenses by reason of the refusal of an injunction. He was given abundant opportunity to make full preparation to present any and every defense which he might have, without regard to whom was the representative of the decedent’s estate.
The next objection is, that the court erred in admitting in evidence certain letters written by the defendant below to the decedent and Peter S. Stout, one of the witnesses in the case, upon the ground that they had demanded a copy of all writings intended to be offered in evidence at the trial, and the plaintiff had failed to grant the defendant or his attorneys an inspection of the letters or copies of the same. The record shows that a notice was served upon the plaintiff’s attorneys, demanding an inspection and copy of all deeds, instruments and writings intended to be offered in evidence at the trial, but we find no evidence in the record that there was a failure or refusal on the part of the plaintiff to comply with the requirements of the notice. Before the court could exclude the letters it was essential for the plaintiff to show, A not only that the demand had been made, but that ¿here had been a failure and refusal to comply with the same. Even if proof of a refusal had been made, the admission of the letters would not require a reversal. We have read the letters that were introduced, and find that they are not inconsistent with the defendant’s admissions in-other letters, not objected to, and in his testimony. The case was tried by the court, and not by a jury, and we think that-the receiving of these letters was in no event prejudicial.
The third objection is, that the court erroneously permitted the executrix to testify to transactions and communications had personally by her with the deceased; but the record does not bear out this claim. The communication or letter referred to appears to have been written by Peter S. Stout, instead of the executrix.
The final objection is, the admission of the testimony of Peter S. Stout, who was the husband of the executrix. It is contended that it is in violation of § 323 of the code, which provides:
“The following persons shall be incompetent to testifyí . . . Third. Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint, interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward.”
There is no claim that Stout testified concerning any communication between him and his wife, but it is contended that she comes within that prohibition of the statute which forbids a husband or wife to testify for or against each other. It is to be noted that Mary F. Stout did not bring this action in her own behalf, but only as a representative of the estate of Elizabeth Van Fleet. Peter S. Stout was not called to testify in behalf of his wife, but was called to give testimony in behalf of the estate, and hence did not come within at least the strict terms of the statute. At common law, the husband and wife were incompetent to testify for or against each other in any proceeding where the other was a party, or which involved the pecuniary interest of the other; but our statutes have made radical changes in the relations and rights of married persons. In legal contemplation, they were formerly regarded as one person, and as the husband could not testify in. his own behalf, his wife, whose interest is the same, could not. The identity of interests was the principal ground for excluding the testimony of one in behalf of the other. This ground of exclusion has been entirely removed by § 319 of the code, and hence the common-law rules invoked, and the decisions that have been cited thereunder, are not applicable or controlling. The provisions of our code relating to this subject were fully considered and discussed in Higbee v. McMillan, 18 Kas. 133. In that case, Chief Justice-Horton remarked that—
“As our statute has opened wide the door to all persons to be witnesses, without regard to their interest in the suit, excepting as affecting their credibility/ we ought to keep up the disqualification as to the wife being a witness on account of the interest of the husband, unless the plain provision of the law forbids any other conclusion.”
It was there held that the exception which precluded the husband or wife from testifying for or against each other should be confined strictly within the terms of the statute, and that it “ should only apply where the letter of the law makes the same indispensable.” Following this rule, it cannot be held that the husband or wife is incompetent as a witness in a case brought by or against the other in a representative capacity. If the rule insisted upon by the plaintiff in error obtained, it would exclude the wife as a witness when the husband as the attorney general or other prosecuting officer brought an action in his name in behalf of the state, or where he was a party as a receiver or sheriff, or in any other of the various representative capacities in which an action may be brought for or against him. The decisions of this court, following the spirit of the legislation of the state, have been in favor of lessening rather than extending the limitations as to the competency of husband and wife to testify for or against each other. (Ruth v. Ford, 9 Kas. 18; Furrow v. Chapin, 13 id. 107; Higbee v. McMillan, supra; The State v. Buffington, 20 id. 599; Jaquith v. Davidson, 21 id. 341; McCartney v. Spencer, 26 id. 65.) It appears that the executrix is one of the legatees under the will of Elizabeth Van Fleet, and she was therefore indirectly interested in the result of the litigation; but “the law has abolished interest as a bar to the competency of the witness,” and hence the reason that she might at some time receive a share of the estate is no ground for excluding the testimony of her husband. (Higbee v. McMillan, supra.)
From an examination of the record we are satisfied that no injustice was done to the plaintiff in error by the judgment that was given, and finding no prejudicial error, the judgment will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.;
The plaintiffs in error, Howell Bros., brought this action in the district court of Washington county to perpetually enjoin the levy of a tax warrant issued to the sheriff of that county on certain lumber, and other per sonal property belonging to the plaintiff in error. The case was tried by the court, and conclusions of fact and of law were made as follows:
“On the 8th day of March, 1886, C. F. Allen was engaged in the lumber business, and had lumber yards at the city of Washington, in Washington township, and at Morrow, in Mill Creek township, in Washington county, Kansas. Said Allen had been running and operating said yards at said places for more than one year prior to March 1st, 1886. On the 8th day of March, 1886, said C. F. Allen sold both of said lumber yards and all the lumber therein to George W. Howell, doing business under the firm-name and style of Howell Brothers, for the sum of $15,951.83, taking therefor three notes of Howell Brothers for the sum of $5,217.27 each, payable in four, five and six months respectively, and on March 8,1886, Allen turned over to the plaintiff the lumber in said yards; said yards were bought by Howell to be conducted as retail lumber yards, and have so been run by him ever since. Before March 8, 1886, neither Howell Brothers nor Geo. W. Howell owned personal property in Washington county. On the 22d day of April, 1886, one Hayes was managing the Washington yard, and when asked by the assessor to make out a statement for Howell Brothers covering the average amount of merchant's stock for the preceding year, he objected, and told the assessor that Howell Brothers owned no lumber or other personal property in Washington county on the 1st day of March, 1886, or theretofore. The assessor told Hayes to make out the statement anyway, and if the tax was wrong it would be fixed, or words to that effect. Thereupon Hayes made out a personal-property statement in words and figures following, to wit:
“On April 22, 1886, the above statement was duly subscribed and sworn to by Hayes as manager for Howell Bros.
“ The statement of the Morrow yard was made under simi lar circumstances to the assessor of Mill Creek township, but the average amount of merchant’s stock for the preceding year and other personal property was less. The amount of personal taxes assessed to Howell Brothers in Washington township for the year 1886 was $197, and the penalty and fees-were $6.40. The amount of personal taxes assessed to Howell Brothers in Mill Creek township for the year 1886 was $21, and the penalty and fees $1.13. Upon the failure of the plaintiff to pay said taxes and penalties, execution or tax warrants were issued in due form at the proper time against the plaintiff, and were placed in the hands of the defendant for service, and he was proceeding, as sheriff of Washington county, to take possession of the plaintiff’s lumber, under the same, in Washington county, where this action was brought. C. F. Allen, from whom the plaintiff bought said lumberyards, left the state immediately after the sale, and has not been a resident of Kansas since. The plaintiff got the money to pay for said lumber yards, and to pay said notes, from S. R. Howell and H. N. Jewett, then composing the firm of Howell, Jewett & Co., said firm letting plaintiff have the money upon an indebtedness existing from Howell, Jewett & Co., to George W. Howell, not shown to be listed anywhere for taxation. Said Howell, Jewett & Co. at the time were doing business at Atchison, Kansas, and had a bank account in Chicago and Omaha, and said Jewett lived in Omaha, and S. R. Howell in Chicago; they did a jobbing lumber business at Atchison, Atchison county, Kansas, in 1885 and 1886, and listed their personal property for taxation in Atchison county in those years as follows: 1885, $8,980; 1886, $8,390. They carried on lumber business at no other place than at Atchison, Kansas. The above and foregoing show all the proceedings had to list, assess or collect personal tax from the plaintiff doing business as Howell Brothers for the year 1886.”
At the June term, 1888, on these facts the trial court concluded as a matter of law, that the plaintiff in error was not entitled to an injunction restraining the levy of the tax warrant on his property.
The sole question here is whether the property was taxable as the property of George W. Howell, he having bought the same on the 8th day of March, 1886. The tax laws (Gen. Stat. of 1889) bearing on this question are as follows:
“(6857.) Sec. 11. All property shall be listed and valued as on the first day of March, in the year in which the same is assessed, and the transfer or sale of any taxable personal property subsequently to the first day of March shall not authorize any person to omit the same from his list, although such list be not made until after the sale or transfer of such property; but all such property shall be listed for taxation in the same manner as if no such sale or transfer had been made. . . .”
“(6862.) Statement. Sec. 16. Every person, company or corporation who shall own or hold, subject to his control, any personal property within this state which shall have been purchased with a view of being sold at an advanced price or profit, or which shall have been consigned to him for the purpose of being so sold, shall be held to be a merchant; and when such person shall be required, according to the provisions of this act, to make and deliver to the assessor a statement of his personal property, he shall include in such statement the value of the personal property appertaining to his business as a merchant; and in estimating the value of such property, he shall estimate the average value of such articles of personal property which he shall have had in his possession or under his control during the year next preceding the first day of March preceding the time of making such statement, or during that portion of said year which he may have been engaged in said business.
“(6863.) Average Value. Sec. 17. In order to arrive at the average value of such property, he shall estimate the amount on hand as nearly as may be, in each month in the preceding year, or such portion thereof as he may have been engaged in such business, then add the several monthly estimates, and divide the aggregate by the number of months he may have been engaged in business. No consignee shall be required to list for taxation any property consigned to him for the mere purpose of being forwarded.
“(6864.) Report to County Clerk. Sec. 18. Every person, company or corporation, who shall commence merchandising, trading or freighting in any town, city or village in this state, after the first day of March and before the first day of November in any year, and the value of whose personal property, so employed, shall not have been listed for taxation in any other county in this state, shall report under oath, to the clerk of the county in which such person, company or corporation is engaged in business, the probable amount of the average value of personal property intended by such person, company or corporation to be so employed; and such amount shall be entered by said clerk on the ‘assessment roll of the county in which such business may be carried on, and such property shall be taxed the same as if the same had been returned by the proper assessor.
“(6865.) Failure; Forfeiture. Sec. 19. If any person, company or corporation shall commence merchandising, trading or freighting, as designated in the foregoing section, and shall not, within one month thereafter, report in accordance with the requirements of section sixteen of this act, such person, company or corporation shall forfeit and pay four per cent, on the value of the personal property by him or them employed; and the value of such property shall be ascertained by the testimony of witnesses called by the treasurer of the county in which such business may be carried on. And the said forfeiture shall be collected by such treasurer, by a suit before any justice of the peace or court having jurisdiction thereof; and when such forfeiture shall be collected, the amount shall be distributed in the same proportion as other taxes: Provided, It shall be the duty of said treasurer to notify such merchant of the above requirement of law, at least ten days before the commencement of such suit.
“(6866.) Manufacturer, When. Sec. 20. Every person, company or corporation who shall hold or purchase personal property for the purpose of adding to the value thereof by any process of manufacturing, refining, or by the combination of different materials, shall be held to be a manufacturer, and when such company or corporation shall be required to make out a statement of other personal property for taxation, he or they shall state the average amount of all articles purchased or held for the purpose of being used in such process of manufacturing, refining or combining which he or they shall have had on hand during the year next preceding the firse day of March preceding the time of making such statement, which amount shall be ascertained by estimating the amount of such property on hand in each month of the preceding year, or such portion thereof as he or they may have been engaged in such business, then add the several monthly estimates, and divide the aggregate by the number of months he or they have been engaged in such business, and such statement shall be verified on oath, as required in other cases.”
It seems to us that the plain intent of the legislature as manifested by ¶ 6857 of the tax law is, that all personal property in the state shall be listed for the purposes of taxation by the owner thereof on the first day of March in each year; that it is the duty of each owner to list the property he owns on the first day of March, for this section expressly provides, “ That the transfer or sale of any taxable personal property subsequent to the first day of March shall not authorize any person to omit the same from his list, although said list be not made until after the sale or transfer of such property.” It is plain from this statute that it was the duty of Allen to list this lumber and other personal property whenever called upon by the assessor, as of the 1st day of March, 1886, the same being at that time his property. By no possible construction of this section of the tax law can it be said that it was the duty of Howell Bros, to list this specific personal property for taxation. It is equally certain that the duty of listing this property was imposed upon Allen. The only other question remaining is whether or not there is any other provision of the tax law requiring the owner of personal property who purchased it after the 1st day of March, such property having been in the county and owned by some other person prior to that time, to list it for taxation, the previous owner having failed to do so. It is claimed by the county attorney that Howell Bros, were merchants within the meaning of ¶ 6882 of the tax law as contained in the General Statutes of 1889, and consequently by that paragraph and by that of 6864 it was their duty to list. The rule established by ¶6857, “That all property shall be listed and valued as on the 1st day of March in the year in which the same is assessed, and the transfer or sale thereafter shall not authorize the owner on the 1st day of March to omit the same from the list,” is a general one, and applies to all personal property of every kind and nature. ¶ 6862 defines a merchant, and provides that he shall list the average value of the stock in trade during the preceding year. ¶ 6863 provides how this average value for the preceding year shall, be ascertained. ¶ 6864 provides that every merchant who shall commence business after the 1st day of March and before the 1st day of November, and who shall not have listed his personal property in any other county in the state, shall report the same to the clerk of the county, etc. This paragraph provides for the taxation of a merchant’s stock that has been shipped into the county from another state, or from some other county in the state, and has not been listed in the county from which it has been removed) but in our judgment it has no application to a stock of merchandise that has been in the county of Washington during all of the preceding year, and was subject to taxation under the general provisions of the tax law, and whose owner on the first day of March, 1886, was under a legal obligation to list it.
Regarding this as the construction of these various parts of the tax law, it follows that Howell Bros, were not required to list this specific personal property for taxation for the year 1886, and that the trial court erred in its legal conclusion. Accepting the findings of fact made by the trial court as conclusive, the case is reversed, and remanded with instructions to the court below to grant the injunction restraining the levy of the tax warrant.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
N^ALENTINE, J.:
This was an action brought in the district court of Wyandotte county by George W. Brown and C. W. Brown, partners as Brown Brothers, against the James H. Campbell Company, a corporation and a live-stock commission merchant, to recover from the defendant the sum of $1,400, with interest, for the alleged conversion of 45 head of neat cattle belonging to the plaintiffs as mortgagees. A trial was had before the court and a jury, and a judgment was rendered in favor of the defendant; and the plaintiffs, as plaintiffs in error, bring the case this court for review.
The principal facts of the case are substantially as follows: On September 27,1888, C. J. Blanchard, who resided in Cowley county and who owned and possessed the cattle above mentioned, in that county, mortgaged the same, along with some other personal property, to the plaintiffs. The mortgage was executed to secure a debt of $2,050, $600 of the same to become due in thirty days, and the remainder thereof, $1,450, to become due in ninety days. The mortgage was deposited in the office of the register of deeds on the next day, to wit, September 28, 1888. There was no stipulation in the mortgage as to who should have the legal title or the possession of the mortgaged property, but the mortgagor was permitted to retain the possession thereof. The mortgaged property was not to be removed from Cowley county. The mortgage debt has never been paid. On February 12, 1889, without the consent or knowledge of the plaintiffs, the cattle were transported by railroad from Cowley county to Kansas City, Wyandotte county, Kansas, in the name of M. A. Blanchard. This “M. A. Blanchard” was Martha A. Blanchard, the wife of C. J. Blanchard, the mortgagor. The cattle were consigned’ to and placed in the possession of the defendant, which, as aforesaid, is a corporation and a commission merchant or broker. On the next day, the defendant, in the ordinary course of business, sold and delivered the cattle in four different lots, to different purchasers, received the proceeds of the sale and paid the same, less commission, over to the consignor, M. A. Blanchard. All this was done without the consent or knowledge of the plaintiffs. The defendant at the time had no actual knowledge of the chattel mortgage, nor any knowledge that anyone except the consignor claimed to have any interest in the property. The case was tried in the court below upon the theory that the plaintiffs were negligent in not taking the possession of the cattle within a reasonable time after the mortgage debt became due, and that if the defendant sold the property and paid over the proceeds to the consignor innocently, without any knowledge of the plaintiff’s claim, and only as a commission broker, it was not liable. Eor instance, the court gave, among others, the following instructions :
“If the jury find from the evidence that said defendant did not purchase the cattle in controversy and sell and dispose of the same as its own, but that said cattle were shipped by M. A. Blanchard to the defendant as live-stock commission merchants to be sold by' said defendant as the agent for and on account of the said M. A. Blanchard, and the proceeds of said sale paid over by said defendant to the said M. A. Blanchard, in the ordinary course of business, without actual notice to said defendant of the rights or claim of said plaintiffs thereto, then said defendant is not guilty of a conversion of said cattle or their proceeds, and you will find for the defendant.”
“If the jury find from the evidence that the plaintiffs permitted the mortgaged property described in the mortgage introduced in evidence in the case to remain in the possession of the mortgagor for a considerable length of time after the conditions of the mortgage had been broken, and that by using reasonable diligence after default in the conditions of said mortgage, said plaintiffs could have obtained possession of said property and subjected the same in payment of the debt secured thereby, then I instruct that it was the duty of said plaintiffs so to do within a reasonable time; and if the plaintiffs failed to so take possession of said property and subject it to the payment of said indebtedness, within a reasonable time after default in the conditions of said mortgage, they were guilty of negligence, and cannot recover in this action, unless you find that the defendant had actual notice of the plaintiffs’ mortgage, in which case you will find for plaintiffs.”
The statutes in this state do not in express words enact that a chattel mortgage shall in any case be valid or shall in any case be notice to any person, but by the strongest of implications we think they enact that every chattel mortgage duly and honestly executed, and deposited in the office of the register of deeds, shall be valid, and shall be notice as to all the world for the period of one year unless the mortgage debt is sooner satisfied, and shall remain valid and notice as to all the world for each succeeding year, provided the mortgage debt remains unsatisfied, and provided a sufficient renewal affidavit is filed prior to the expiration of each succeeding year. (Mortgage Act, §§ 9, 11.) Our statutes also provide that “in the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.” (Mortgage Act, § 15.) In other words, where there are no stipulations to the contrary, the mortgagee is the owner of the mortgaged property, and has the right to the possession thereof from the execution of the mortgage until it is satisfied, or ceases to have validity, whether the debt is due or not, and there are no stipulations to the contrary in the present mortgage. Our statutes also provide that when a chattel mortgage is satisfied it shall be the duty of the holder thereof to enter satisfaction thereof of record, and if he fails to do so within thirty days after demand therefor, he is liable to pay a penalty for his failure of $100. (Mortgage Act, '§§ 8, 16.) It will therefore be seen that our statutes require that the existence of every chattel mortgage, and whether it is ■still valid and in force or not, shall be shown by the records in the office of the register of deeds.
The defendant claims that it is not liable in this action, for several reasons, among which are the following: It claims that it was not bound to take notice of the plaintiffs’ mortgage although it was duly deposited in the office of the register •of deeds, and it cites the case of Frizzell v. Rundle, decided by •the supreme court of Tennessee, in January, 1890, (27 S. W. Rep. 918,) and also cites Roach v. Turk, 9 Heisk. (Tenn.) 708. This is certainly not the law in Kansas, for the implications ■of the statutes and of all the decisions of this court are certainly to the contrary, and that a chattel mortgage duly executed and on file in the office of the register of deeds is notice, as above stated, to all the world. . The defendant also claims that the plaintiffs were negligent in not taking the possession cf the mortgaged property immediately after the mortgage debt became due, and that for this reason the mortgage ceased to operate, and became void; and it cites the following cases from Montana and Illinois, to wit: Travis v. McCormick, 1 Mont. 148; Reed v. Eames, 19 Ill. 594; Cass v. Perkins, 23 id. 382; Barbour v. White, 37 id. 164; Reese v. Mitchell, 41 id. 365; Hanford v. Obrecht, 49 id. 146; Wylder v. Crane, 53 id. 490; Lemen v. Robinson, 59 id. 115; Arnold v. Stock, 81 id. 407; Dunlap v. Callon, 88 id. 82. This we think is also •against the implications of our statutes, and against the views heretofore entertained by the entire bench and bar of this •state, and is against the great weight of authority.
The defendant also claims that it is not liable, for the reason that it was only a mere agent or servant of the consignor, transferring the property from the consignor to the purchaser, and asserted no right, title or interest in' or to the property with reference to itself; and it relies upon the cases heretofore and hereafter cited. Among its cases cited in support of this •claim is the case of Rogers v. Huie, 2 Cal. 271, where it is held that an auctioneer selling stolen property in the regular course of his business, and paying over the proceeds to the felon without notice that the goods were stolen, is not liable. This decision we think is against all authority, and is not good law. See Mechetn on Agency, § 915, and cases there cited.
The defendant also cites Burditt v. Hunt, 25 Me. 419, and Leuthold v. Fairchild, 35 Minn. 99, 100. These cases seem to enunciate the doctrine that a mere servant, agent or carrier who in good faith transports the goods from one place to another, or otherwise assists in disposing of the goods, without asserting or claiming any right, title or interest in himself, or any right to transfer any right, title or interest in the property to another, is not liable. This may be correct; but if so, then it will hardly apply to this case. A person can never be held liable for a conversion of personal property unless he claims or asserts some right, title or interest in himself or in another adverse to the interest of the owner.
The defendant also cites Spooner v. Holmes, 102 Mass. 503, which seems to decide that an innocent seller of certain stolen negotiable coupons payable to bearer, and which could be transferred by mere delivery, was not liable. For the purposes of this case this may be admitted to be good law, but it does not apply to this case. The case of Kimball v. Billings, 55 Me. 147, seems, however, to enunciate a different doctrine. The defendant also cites Hathaway v. Brayman, 42 N. Y. 322. In this case it was decided that a mortgagor of chattels in possession has a right before default to sell and deliver the mortgaged property subject to the mortgage. This we think is good law provided the mortgagor sells the property in good faith and without any intent to hinder, delay or defraud his creditors, and especially the owner of the mortgage debt. If the mortgagor, however, should sell the mortgaged property without reference to the mortgage debt, or with any intent to hinder, delay or defraud the holder of the mortgage, he would commit a criminal offense, and the sale would in all probability be void. (Gen. Stat. of 1889, ¶¶2233, 2452.)
The plaintiffs cite the following cases among others with regard to the rights of mortgagees of chattels where innocent parties without the consent of the mortgagees have interfered or intermeddled with the mortgaged property: Coles v. Clark, 3 Cush. (Mass.) 399; Spraights v. Hawley, 39 N. Y. 441; Moloughney v. Hegeman, 9 Abb. N. C. 403; Marks v. Robinson, 82 Ala. 69; Poole v. Adkisson, 1 Dana, (Ky.) 110; Nichols v. Barnes, 3 Dak. 148; Brewing Co. v. Elevator Co., 5 id. 62; White v. Phelps, 12 N. H. 382. The plaintiffs also cite the following among other cases which have no particular relation to chattel mortgages, but which assert the general principles regarding the liability of persons who as servants or agents of others interfere or meddle with property not belonging to their master or principal: Barnhart v. Ford, 37 Kas. 520; Kimball v. Billings, 55 Me. 147; Koch v. Branch, 44 Mo. 542; McCormick v. Stevenson, 13 Neb. 70. In the case of Coles v. Clark, supra, the syllabus reads as follows:
“Where the mortgagor of goods, of which the mortgagee had the right of immediate possession by a mortgage duly recorded, induced the mortgagee by false and fraudulent representations to allow the goods to remain in his possession for a certain period, during which the mortgagor, for the purpose of cheating and defrauding the mortgagee, sent the goods to an auctioneer, by whom they were sold and the proceeds paid over to the mortgagor, it was held that the mortgagee might maintain trover for the goods against the auctioneer, although the latter did not participate in the fraud of the mortgagor, and had no knowledge in fact of the existence of the mortgage.”
In the case of Spraights v. Hawley, supra, a portion of the syllabus reads as follows:
“Where the mortgagor of chattels in possession thereof, after default in the payment of the mortgage debt, fraudulently delivered them to a third person for sale, representing that they were his property, and the third person as agent for the mortgagor, sells the chattels, such third person is liable to the mortgagee for the value thereof, notwithstanding he acted in good faith, believing that the chattels were the property of the mortgagor, and paid the proceeds of the sale, which he made, to the mortgagor without reward for his services.”
In the case of Marks v. Robinson, supra, a portion of the syllabus reads as follows:
“A factor, or commission merchant, receiving and selling cotton for a mortgagor, without actual notice of the mortgage, is liable in trover to the mortgagee, if the mortgage has been properly recorded in the county in which the cotton was raised.”
Mr. Jones, in his work on Chattel Mortgages, (3d ed., §460,) uses the following language:
“An absolute sale of the mortgaged property by the mortgagor or anyone claiming under him, in exclusion of the rights of the mortgagee, is a conversion of it for which the mortgagee may maintain trover. This is upon the general principle that assuming to one’s self the property and right of disposing of another’s goods is a conversion. ... If a mortgagor for the purpose of defrauding the mortgagee sends the mortgaged goods to an auctioneer, by whom they are sold and the proceeds paid over to the mortgagor, the mortgagee may maintain trover for the goods against the auctioneer, although the latter did not participate in the fraud, and had no knowledge of the existence of the mortgage. In such action the plaintiff need not show that the mortgagor is wholly irresponsible. An absolute sale of the mortgaged property by the mortgagor’s assignee for the benefit of creditors is a conversion, and he is liable to an action of trover by the mortgagee.”
Mr. Boone, in his work on Mortgages, (§260,) uses the . following language:
“If a mortgagor of chattels, or anyone claiming under him, sells the entire property, as owner, in exclusion of the rights of the mortgagee, such sale is a conversion of the chattels, and the mortgagee may maintain trover therefor.”
Mr. Mechem, in his work on Agency, (§ 915,) uses the following language:
“An auctioneer who receives and sells stolen property is liable to the true owner, as for a conversion, although he acted in good faith, and received the property in the usual course of trade.
“So an auctioneer would undoubtedly be liable as for a conversion who, having received property for sale from one not having authority to cause it to be sold, proceeded to sell it or to pay over the proceeds after notice of the rights of the true owner, and without his authority; and it has been held that an auctioneer who in good faith received and sold property for one whom he supposed to have the right to direct the sale, but who in fact had no such right, was guilty of a conversion.”
Judge Story, in his work on Agency, (§312,) uses the following language:
“A fortiori, if the principal is a wrong-doer, the agent, however innocent in intention, who participates in his acts, is a wrong-doer also. Thus, if an auctioneer should be employed by a sheriff to sell goods at auction, which he had unlawfully seized upon an execution, and if the goods did not belong to the execution debtor, the auctioneer who should sell would be liable to an action for the tortious conversion, equally with the sheriff. So, if the agent of a merchant who has received goods from a bankrupt after a secret act of bankruptcy, should, pursuant to orders from his principal, sell the goods, an action of trover would lie in favor of the assignees against the agent, however ignorant he might be of the defect of title; for a person is guilty of a conversion who intermeddles with the property of another, without due authority from the true owner; and it is no answer that he acted as an agent, under the authority of a person supposed at the time to be entitled as the owner.”
Judge Cooley, in his work on Torts, (star page 451,) uses the following language:
“One who buys property must, at his peril, ascertain the ownership, and if he buys of one who has no authority to sell, his taking possession, in denial of the owner’s right, is a conversion. The vendor is equally liable, whether he sells the property as his own or as officer or agent; and so is the party for whom he acts, if he assists in or advises the sale. So it is no protection to one who has received property and disposed of it in the usual course of trade, that he did so in good faith, and in the belief that the person from whom he took it was owner, if in fact the possession of the latter was tortious.”
Mr. Wait, in his work on Actions and Defenses, (vol. 6, p. 140,) uses the following language:
“Every person who aids or assists in the conversion of property, whether with knowledge of the facts, or in ignorance thereof, is responsible to the owner for all the damages sustained by him.”
In volume 4 of the American and English Encyclopaedia of Law, (p. 108,) the following language is used:
“ The action of trover is founded on the right of property and possession; and any act of a party, other than the owner, which militates against this conjoint right, in law is a conversion. It is not necessary for a manual taking to make conversion, nor that the party has applied it to his own use. The question is, does he exercise dominion over it in exclusion or in defiance of the owner’s right? If he does, that is conversion, be it for his own or another’s use. It is conversion if one takes the property of another and sells or otherwise disposes of it without the owner’s authority; or if he takes it for a temporary purpose only, in disregard of the owner’s right, it is conversion. The word conversion, by a long course of practice, has acquired a technical meaning, and means detaining goods so as to deprive the owner, or person entitled to possession of them, of his dominion over them. Any carrying away of a chattel for the use of one, without the owner’s consent, or for a third party, amounts to a conversion, because it is inconsistent with the general right of dominion which the owner has in it, who is entitled to the use of it at all times and in all places. Such an asportation is conversion.”
We think the defendant is liable. The mortgage was valid; it had been executed and deposited in the office of the register of deeds less than one year prior to the sale; the defendant was bound to take notice of the mortgage and of the plaintiffs’ rights thereunder, and in law the plaintiffs were the owners of the property, and had the absolute right to the possession and the control thereof; the defendant sold and delivered this property to different persons, not under the mortgage or subject to the mortgage, but independent thereof, and as the absolute property of M. A. Blanchard,'and attempted to give to the purchasers the absolute title thereto, and absolute control and dominion over the same. All this was in violation of the plain tiffs’ rights, and rendered the defendant liable to the plaintiffs as for a conversion of the property.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This is an action in mandamus, to compel the officers of Augusta township to issue $15,000 of town ship warrants, or scrip, voted to aid in the construction of the Chicago, Kansas & Western Railroad, in pursuance of a subscription made by the township under the act entitled “An act to enable counties, townships, and cities to aid in the construction of railroads, and to repeal §8 of chapter 39 of the laws of 1874,” which took effect February 29,1876, and amendments thereto. In pursuance of an order of the board of county commissioners, subscription was made by the county olerk of Butler county on behalf of the township, upon the 21st day of January, 1887. The condition upon which the warrants were to be issued as contained in the petition and order, is in the following language:
“And when said railroad company shall have built or caused to be built, and have in operation with cars running thereon, by lease or otherwise, its said railroad from the city of Augusta at or near the present depot of the Florence, El Dorado & Walnut Valley Railroad to Mulvane, at or near the city of Mulvane, Sumner county, Kansas, on or before the 31st day of July, 1887, it shall be entitled to demand and receive the sum of $15,000 of the warrants of said Augusta township,” etc.
To the alternative writ the defendants answered, alleging that—
“The plaintiff never built its road to or from the city of Augusta, nor to or from a point near the depot of the Florence, El Dorado & Walnut Valley Railroad, and that the plaintiff did not complete its road on or before July 31, 1887.”
The plaintiff claims to have performed the conditions upon which it was to become entitled to the township warrants or scrip under the terms of the petition, order, and subscription. The Chicago, Kansas & Western Railroad joins the track of the Florence, El Dorado & Walnut Valley Railroad 111J feet south of the city limits of Augusta, and 139J feet from the intersection of the southern line of the city by the Florence road. There was a mill between the point where the Chicago, Kansas & Western Railroad joined the Florence road and the city, and there was no practicable way of extending the road directly south to the city except over the ground occupied by the mill. The depot of the Florence Railroad Company is within the city of Augusta, and is used by the Chicago, Kansas & Western Railroad Company, for its trains and cars, from where it intersects that road to the depot. The first train of the Chicago, Kansas & Western Railroad Company left Augusta for Mulvane on Saturday, July 30, 1887, and returned the same day. On July 31 the train ran upon orders from the train dispatcher of the company, and on that day the printed time-card of the road was issued. Since then the road has been in operation for freight and passengers.
The principal contention of the defendants is, that the railroad company never built any road from the city of Augusta, nor from or near the depot of the Florence railroad to Mulvaue, and therefore never complied with the condition of the subscription made by the township. Nothing was submitted to the voters of Augusta township, by the order of the board of county commissioners, about the building or maintaining a depot, or other terminal facilities, in Augusta. The subscription was made by the voters to aid in the construction and operation of a railroad from Augusta to Mulvane. The language of the proposition voted upon was that the railroad company “Shall have built, or caused to be built, and have in operation with cars running thereon, by lease or otherwise, its railroad from the city of Augusta, at or near the present depot of the Florence, El Dorado & Walnut Valley Railroad, to Mulvane.” In fact, on July 31, 1887, the Chicago, Kansas & Western Railroad Company had built and in operation, with cars running thereon, by lease or otherwise, its railroad from the city of Augusta, at or near the depot of the Florence road to Mulvane.
It would be of no special benefit to the township, or the city of Augusta, or the people of either the township or city, that the Chicago, Kansas & Western Railroad should join or intersect the Florence road a few feet further north, or just within the city limits. If the petitioners or voters of the township expected the Chicago, Kansas & Western Railroad Company to build a separate road or track to a point within the city of Augusta, the petition and order should have been more specific upon this point. The Chicago, Kansas & Western Railroad has such au arrangement with the Florence railroad, which it intersects near the city of Augusta, that the running of its trains into the city for a short distance over that road fully accommodates the people of its own line, as well as if its track had been extended into the city, at or near the southern limit thereof. We are therefore of opinion that the railroad company did not forfeit its right to the township warrants or scrip, merely by the fact that after it reached within 111J- feet of the city of Augusta it intersected the Florence railroad and used its road, by lease or otherwise, into the depot within the city limits. (People, ex rel., v. Holden, 82 Ill. 93, 103, 104; The State, ex rel., v. Town of Clark, 23 Minn. 422, 427, 428; S. & V. Rld. Co. v. Stockton, 51 Cal. 328; Hodgeman v. St. P. & C. Rld. Co., 23 Minn. 153.)
When the road was constructed from Mulvane to within a few feet of the city limits of Augusta, and there joined the Florence road and ran its trains and cars for a few feet over the track of that road into the depot within the city limits of Augusta, there was a substantial compliance with the proposition submitted. Any railway company organized under the laws of this state may lease the road and appurtenances of any other railway company, when the road so leased shall thereby become, in the operation thereof, a continuation and extension of the road of the company accepting the lease. (A. T. & S. F. Rld. Co. v. Fletcher, 35 Kas. 236.)
Upon the trial, in support of the allegations of the answer that the road was not built and in operation on July 31,1887, evidence was offered to show that upon that day some of the ties of the road were not spiked to the rails; that some of the culverts and short bridges consisted of cribbing and timbers temporarily piled up to support the track; that the road was not “surfaced” or “ballasted,” and that a portion of the bolts intended to attach the rails to the fish-plates were not screwed up properly. During the argument, however, the alleged non-completion of the road on or before the 31st of July, 1887, was virtually abandoned.
Counsel for the defendants, among other things, said:
“ We are not disposed to take the time of either ourselves or the court to analyze or comment on the testimony on this branch of the case. The fact that these things were not done on or before the exact time designated, never constituted the real grievance of the township against the plaintiff. If the plaintiff had complied with the conditions of the contract in other and more important respects, the township would have cheerfully overlooked a little delay. The delay to complete that part of the road which the plaintiff actually built, we can forgive. But the undeniable fact that the plaintiff never built any railroad from the city, nor from, at, or near the depot, we insist on as an end to plaintiff’s claim.”
If the alleged non-completion of the road were now insisted upon, it could not be said, upon the evidence produced, that the road was not built and in operation, with cars running thereon, by lease or otherwise, on the 31st of July, 1887. It was not at that date constructed perfectly in every respect, but it had been so far built and in operation that it might be properly and regularly used for the transportation of freight and passengers. (Railroad Co. v. Towner, 41 Kas. 72; Railroad Co. v. King, 35 N. W. Rep. 705; Railroad Co. v. Schewe, 45 Iowa, 79; Ogden v. Kirby, 79 Ill. 555; Tower v. D. L. & L. M. Railroad Co., 34 Mich. 328; Stowell v. Stowell, 45 id. 364.)
We have not referred to the oral promises of the plaintiff, which were alleged in the return to the alternative writ, and supported to some extent by the evidence, because these allegations in the return upon motion were stricken out, and it seems to be admitted by all parties that these oral promises count for nothing.
The peremptory writ of mandamus as prayed for will be allowed.
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 Bourbon county on November 4, 1887, by H. D. Smith against John E. Davis and Margaret L. Davis, husband and wife, to recover for an alleged breach of covenants contained in a deed of conveyance of real estate executed by the defendants to the plaintiff. The plaintiff's petition alleges and sets forth among other things that the deed contained the following covenants, to wit:
“And the said parties of the first part do hereby covenant and agree that at the delivery hereof they are the lawful owners of the premises above granted, and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, and that they will warrant and defend the same in the quiet and peaceable possession of the said party of the second part, his heirs and assigns forever, against all persons lawfully claiming the same.”
A copy of the deed is also given as a part of the petition. The alleged breach of the covenants and the prayer for relief as set forth in plaintiff’s petition read as follows:
“ Plaintiff alleges that, at the delivery and execution of said deed, to wit, on May 18,1887, defendants were not the lawful owners of said real estate and seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances, but that at that time and ever since there was and has been a lease on said premises from defendant J. E. Davis to M. D. Hartman & Co., for the purpose of cutting, hauling and removing ice, which said lease was by its terms to run and continue till September 17,1894, a copy of which is hereto attached, marked ‘B’ and made a part hereof, said lease being in fact an incumbrance on said real estate to the extent of one thousand dollars; plaintiff alleges that said lease could not be purchased in for less than $1,000, and is a valid subsisting lease from defendant J. E. Davis to said M. D. Hartman & Co., and is to plaintiff a damage of $1,000. Wherefore, plaintiff demands judgment against defendants J. E. Davis and Margaret L. Davis for $1,000 and costs of suit.”
A copy of the lease is also given as a part of the petition. The lease was dated September 17, 1884. The defendant, J. E. Davis, was the party of the first part, and M. D. Hartman & Co. constituted the party or parties of the second part. The ice was to be cut and obtained from the Marmaton river where it runs across the land conveyed by the defendants to the plaintiff. The lease contained the following, among other things, to wit:
“To have and to hold the same unto the said party of the second part from the 17th day of September, 1884, to the 17th day of September, 1894, being for a period of ten years; and the said party of the second part, in consideration of the leasing of the premises as above set forth, and the said sale of the iee thereon, covenants and agrees with the said party of the first part to pay the said party of the first part, his heirs and assigns, as rent for the same, the sum of one hundred dollars per year, as follows: First year, rent to be paid in advance, the receipt whereof is hereby acknowledged, and thereafter on the first day of June in each and every year during this lease. And the said party of the first part, in consideration of the leasing of said premises, further agrees that said party of the second part shall have the right-of-way across said land to and from said river during the iee season, for the purpose of cutting, hauling and removing said iee as aforesaid. The covenants and agreements herein shall extend to and be binding upon the heirs, executors, administrators or assigns of the parties to this lease.”
The defendants demurred to the plaintiff’s petition, which demurrer was overruled; and they then answered, and the plaintiff replied. Afterward the case was regularly called for trial, and the record with reference to this subject and subsequent proceedings reads as follows:
“And afterward, to wit, on May 23, 1888, said cause came on to be tried, and a jury was impaneled; whereupon defendants in open court offered to confess judgment for one dollar, which offer was by plaintiff refused. Thereupon the plaintiff, to maintain the issue on his part, was sworn and took the witness stand, and was asked to state if he was the plaintiff in this case, whereupon defendants- objected to any evidence under plaintiff’s petition, for the reason that it states grounds for nominal damages only; which objection was argued by counsel, and the court having heard all the arguments and being fully advised, sustained said objections; to which the plaintiff then and there excepted. Whereupon the court ordered the jury to return a verdict in the following words:
“We, the jury, find for the plaintiff, and assess his damages at one dollar. — Robebt MoCobd, Foreman.”
“Which said verdict said jury thereupon signed by its foreman, and returned it into court.
“Thereupon it is considered, ordered, and adjudged by the court that plaintiff have and recover of and from defendants, and each of them, the sum of one dollar, and his costs herein taxed at $-, and execution is awarded. To all of which the plaintiff excepted and excepts.”
The plaintiff then moved the court to set aside the foregoing verdict, and to grant a new trial upon various grounds, but the court overruled the motion, and the plaintiff excepted, and afterward, as plaintiff in error, brought the case to this court for review.
It will be seen that the only question involved in this case is, whether the plaintiff’s petition states facts sufficient to constitute a cause of action for anything more than nominal damages. The court below held that it did not, and the plaintiff in error (plaintiff below) claims that this was error. A solution of this question depends upon the nature and character of the covenants contained in the deed of conveyance from the defendants to the plaintiff, and also upon the nature and character of the breaches of such covenants. We shall treat this case, however, principally as though the breach of the covenant against incumbrances was the only breach of covenant to be considered, although it may be that there are other covenants which were broken at the time of the execution of the deed of conveyance, to wit, a covenant that the defendants were the lawful owners of the property; a covenant that the grantors were lawfully seized of the premises; and a covenant that they had a good and indefeasible estate of inheritance therein; for while these things were principally true, yet they were not absolutely and entirely true. The defendant’s interest in the property was diminished to the extent of the rights transferred by the lease to M. D. Hartman & Co. The incumbrance consisted of the right of M. D. Hartman & Co. to cut, haul and remove ice from the premises, and the right-of-way of M. D. Hartman & Co. across the premises for the purpose of cutting, hauling, and removing ice therefrom. These things constituted an absolute, unqualified and unconditional incumbrance upon the premises. In this respect they are unlike a contingent dower interest such as could exist at common law, which might never come into actual existence. Neither the plaintiff nor the defendants had any power to remove or to extinguish this incumbrance except with the consent of M. D. Hartman & Co., the lessee; and the value of this incumbrance to M. D. Hartman & Co., or the injury it occasioned to the premises conveyed, no one could tell by any certain or definite rule. In this respect it is wholly different from a mortgage lien or any other kind of ascertainable money lien upon real estate; for such a lien is fixed and definite in the amount which it would take to remove it. But suppose that the plaintiff in this particular case could have had the incumbrance removed with the consent of M. D. Hartman & Co. by paying to them the sum of $1,000, and suppose that he had paid that amount, and that they had then in consideration of that amount relinquished all their claims to the property, still that amount would not be the measure of damages in this case or any other case brought by the plaintiff against the defendants because of a breach of their covenants. The real measure of damages would be the amount of the actual injury to the premises by reason of the incumbrances, which might not be one-tenth the amount paid, and if not, then the plaintiff could not recover in this or in any other action as damages one-tenth of the amount paid.
As before stated, this case is unlike a case where the incumbrance is a money lien of fixed amount upon the premises conveyed. In this case the amount of the damages resulting from the incumbrance is not ascertainable by any mere calculation, as it is when the incumbrance consists of a mere money lien; and neither can the incumbrance be removed at the will or pleasure of an interested party as it can when it consists of a mere money lien. We suppose that the ice mentioned in this case has actual value, and the right-of-way to procure such ice also has actual value; and the right to the ice and to the right-of-way, being in another than the owner of the land, depreciates the market value of the land as to such owner, and these values and this depreciation may be shown by evidence. We think the plaintiff in this case is entitled upon proper and sufficient proof to recover substantial damages, and that the court below erred in holding otherwise. Among the authorities which tend to support these views, see the following : Harlow v. Thomas, 15 Pick. 66; Wetherbee v. Bennett, 2 Allen, 428; Bronson v. Coffin, 108 Mass. 175; Williamson v. Hall, 62 Mo. 405; Kellogg v. Malin, 62 id. 429, 434; Hubbard v. Norton, 10 Conn. 422; Funk v. Voneida, 11 Serg. & R. 109; Fritz v. Pusey, 31 Minn. 368; Walker v. Wilson, 13 Wis. 522; Guthrie v. Pugsley, 12 Johns. 126. There are also many similar eases in which substantial damages were recovered in the lower court and the judgment sustained by the appellate court, in which no question was raised with regard to the right of the plaintiff to recover substantial damages. These cases we also think are some authority in favor of the rights of parties in cases like this to recover substantial damages. See also 2 Suth. Dam. 324, 326-329, and cases there cited.
The defendants cite the following cases: Black v. Coan, 48 Ind. 385; Rosenberger v. Keller, 33 Gratt. 489; Boon v. McHenry, 55 Iowa, 202; Fritz v. Pusey, 31 Minn. 368; Ogden v. Ball, 36 N. W. Rep. 344.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought in the district court of Atchison county to recover certain real estate. The plaintiff, John M. Price, claims under a certain deed of conveyance, a quitclaim deed, executed to R. F. Smith by the three executors of Courtlandt Palmer’s estate, to wit: Courtlandt Palmer, jr., Charles P. Palmer and Henry Draper, and by the sole executrix of Charles Gould’s estate, to wit, Henrietta S. Gould, and a certain quitclaim deed from Smith and wife to himself, together with certain other facts and circumstances which he claims create in himself an estate in the property, either legal or equitable, or both. The defendant, Samuel C. King, claims the property under certain tax deeds executed to him by the county clerk of Atchison county, and also by virtue of being in the actual possession and occupancy of the property. With respect to nearly all the property the judgment of the court below was in favor of the defendant and against the plaintiff, upon the ground, principally, that it was not shown, even prima fade, that the plaintiff ever had any title or estate, either legal or equitable, in or to the property.
The deed under which the plaintiff claims was evidently intended by all the parties thereto to be the deed only of the aforesaid executors and executrix, executed in the capacity only of executors and executrix, and not executed in any other capacity, or by any other person or persons. All the evidence upon the subject tends to show this. The deed was indorsed on its back, “ executors’ deed.” It was executed in the name of the executors and executrix as such. It was signed by them as executors and executrix. It was witnessed by the subscribing witnesses to the same effect; and it was also acknowledged by the grantors only as executors and executrix; and as a matter of fact, according to all the extrinsic evidence upon the subject, the grantors intended to execute the deed only as executors and executrix, and afterward with the desire and wish of all the parties it was confirmed by the surrogate’s court of the city and county of New York and state of New York as the deed of the executors and executrix; and afterward, at the instance of the plaintiff and Smith, authenticated copies of the wills under which the executors and executrix attempted to execute the deed and the proceedings of the said surrogate’s court showing the probate of the wills, etc., were filed and recorded in the office of the probate court of Atchison county, Kansas — the county in which the land supposed to have been conveyed, including the land in controversy, is situated. And further, each of the parties executing the aforesaid deed was actually an executor or executrix, and all together they were all the executors and the only executrix of the Palmer and Gould estates; and one of such executors, Henry Draper, had no possible interest in the property supposed to be conveyed, except as executor, and as the husband of one of the heirs and devisees; and the grantors mentioned in the deed included the names of only three of the heirs or devisees, and there were three of the heirs and devisees of the Palmer estate and the six heirs of the Gould estate who were not mentioned in the deed as grantors or otherwise.
If the foregoing deed shall be construed to be only the deed of the foregoing executors and executrix, then it must unquestionably be held to be absolutely null and void as a conveyance; and we think it must be so construed and so held. No one of the executors or the executrix as such had any title or estate in or to any part of the property. The wills under which they attempted to act did not give to them or to any one or more of them any title or estate in or to the property as executors or executrix. Nor did such wills confer upon them or upon any one or more of them, or upon anyone else, any power or authority to sell or convey the property or any part thereof, or to alienate the same in any manner whatever. Nor did any court ever attempt to give to them or to any person or persons any such power or authority; and there was always an abundance of personal property on hand belonging to each estate with which to meet all demands that might be presented against such estate. Hence, no fact existed authorizing any court to grant any such power or authority. The plaintiff, however, claims that even if the aforesaid deed is void as a conveyance, and even if for that reason the plaintiff has no legal title to the property in controversy, still that under all the facts of the case and in equity, he has the paramount equitable title thereto. Now in what does the plaintiff’s equities or his equitable title consist ? His title, so far as any writing is concerned, is founded solely upon a quitclaim deed to himself from Smith, the grantee of the aforesaid executors and executrix, and hence so far as his written title is concerned, he claims only under a quitclaim deed from a party, Smith, whose title was founded upon a void executors’ and executrix’s deed, which also was and is only a quitclaim deed; and under a quitclaim deed the grantee therein cannot claim to be a bona fide purchaser or holder of the property or an equitable owner thereof, as against outstanding equities in other claimants of the property. (Johnson v. Williams, 37 Kas. 179.) Indeed, the grantee in a quitclaim deed gets nothing except what his grantor in fact owned at the time of the execution of the deed, which in the present case was nothing, as the executors and executrix, as such, owned nothing in the present case. And such a deed will not estop the maker thereof from afterward purchasing or acquiring an outstanding adverse title or interest in or to the property and holding it as against his grantee. (Simpson v. Greeley, 8 Kas. 586, 597, 598; Bruce v. Luke, 9 id. 201, 207, et seq.; Scoffins v. Grandstaff, 12 id. 469, 470; Young v. Clippinger, 14 id. 148, 150; Ott v. Sprague, 27 id. 624; Johnson v. Williams, 37 id. 180, 181.)
It is possible that there might be cases where a party claiming only under a quitclaim deed would have equities beyond the mere terms of his quitclaim deed, but we do not think that this case falls within any of such cases. It is possible where a party purchases real estate and pays a full consideration therefor and takes only a quitclaim deed as a conveyance, that his claim of title to the property should be treated at least with favor, but such is not this case. The real estate claimed by the plaintiff to have been conveyed in this present case was worth at the time of its supposed conveyance from $10,000 to $12,000, with an incumbrance on it for taxes amounting to from $300 to $500; and yet the plaintiff’s grantor, Smith, paid only $225 for such real estate — less than one-fortieth of the actual value of the property; and the plaintiff, in fact as well as presumptively, knew all this. Also, where there is fraud on the part of the vendor or a mutual mistake of the parties or some accident intervening, it is possible that the holder of a quitclaim deed might obtain equities beyond the terms of his deed: for instance, where the deed is defective or does not fully express what the parties intended that it should express, equity might reform it or might con sider it as reformed so as to make it express or accomplish what both the parties intended that it should express and accomplish. But that is not this case. The deed in the present case is just what the parties intended that it should be, and if it were changed in its form or effect in any particular, it would be what the parties intended it should not be. It is true that Smith desired a different kind of deed, and at the instance of Smith two different deeds were sent to the agent of the grantors for execution, but they refused to execute the same, and would not execute any other or different kind of deed than the one which they did in fact execute, and the negotiations with reference to the matter were going on and pending between the parties for about eight months before any final agreement was reached; and after all the parties were well informed as to the facts, Smith finally agreed to take and knowingly did take the very deed which is now in controversy in this case and afterward paid the aforesaid $225 for the same. He took it knowing what it was, and that he could not obtain any other or different kind of deed. And the plaintiff knew the same. There was no fraud, no concealment, no misrepresentation, no deception on the part of the grantors or their agents, and no mistake with reference to the facts on the part of anyone. A quitclaim deed was executed by the grantors merely as executors and executrix, and all the parties knew it; and this quitclaim deed really conveyed nothing, leaving the entire title to the property in the heirs and devisees. By this deed Smith got nothing, and he conveyed nothing to the plaintiff by his quitclaim deed to the plaintiff. And the facts were not such as to create or vest such equities or equitable title in the plaintiff that he may now disturb the rights of the defendant, who holds and claims by a separate and independent title adverse to both the plaintiff and his grantors.
There are also eases where an agent or trustee attempts to bind his principal, but from some lack of authority or from irregularity he fails to do so, and in effect binds himself. But such is not this case. The executors and executrix in this case did not attempt to bind any person. They merely quit- claimed any interest which they might haye as executors and executrix in the property; and as before stated, no party was deceived or defrauded or mistaken as to the facts, but all were fully and completely cognizant of the same. Smith got all he purchased or paid for when he got his quitclaim deed. He did not purchase or pay for the individual rights of any person. Of course in the beginning there was some talk of conveying the title to the property, and Smith at all times desired that such should be the case, but the executors and executrix refused, and consented only to quitclaim as to any interest which they might possibly have in the property as executors and executrix. They did not agree to sell or convey any interest which they or others might have in the property in any other capacity; and in the capacity of executors and executrix they will probably never dispute the plaintiff’s title. Indeed, all the parties will at all times admit that Smith got by his quitclaim deed and conveyed to the plaintiff by another quitclaim deed all interest which the executors and executrix ever possessed in the property, which in fact was nothing.
The defendant makes the claim that no title passed to Smith or to the plaintiff, for the further reason that neither the wills nor the probate thereof, nor any of the proceedings of the surrogate’s court of the city and county of New York, were filed or recorded in the office of the probate court of Atchison county, Kansas — the county in which the land in controversy is situated — until long after the aforesaid deed from the executors and executrix to Smith and the deed from Smith to the plaintiff were executed, delivered, accepted, and recorded. The first of the foregoing deeds was executed in New York on June 24, 1880. It was transmitted to Kansas on July 8,1880, but on account of disputes between the parties it was. not accepted by Smith until about February 7, 1881, when it was accepted by him, paid for, and then recorded in the office of the register of deeds. It was confirmed in the surrogate’s court of the city and county of New York on May 23, 1881. The deed from Smith to the plaintiff was executed on June 25, 1881, and was recorded on July 5, 1881. The wills were never probated in Kansas, and no proceedings with reference thereto were ever had in Kansas until April 1,1882, when authenticated copies of the wills and the records of the proceedings of the aforesaid surrogate’s court were filed and recorded in the office of the probate court of Atchison county, Kansas. Now it is claimed by the defendant that no will can be effectual to pass title to real estate unless the same has been probated or recorded in Kansas according to the statutes of Kansas; and §§24 and 29 of the act relating to wills, and § 1 of chapter 102 of the laws of 1879 (Gen. Stat. of 1889, ¶2932), are referred to as sustaining this claim. Said § 29 reads as follows:
“Sec. 29. No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate, or recorded, as provided in this act.”
Upon the foregoing facts and statutes referred to it is claimed by the defendant that no title had ever passed to anyone under the wills when the foregoing deeds were executed and delivered, and therefore that no title could have passed to Smith or to the plaintiff because of the wills or otherwise when the foregoing deeds were executed, for at that time neither the executors, nor the executrix, nor the devisees, nor anyone else who might claim title under the wills, had any such title under the same to pass to anyone; and that as both such deeds were merely quitclaim deeds, which could not operate to pass future acquired titles, no title could ever subsequently have passed under them — and the cases heretofore cited are referred to as authority for such claim. With reference to these claims of the defendant just mentioned we shall express no opinion, as we do not think it is necessary for the decision of this case.
We decide in this case, however, the following: The first quitclaim deed executed by the executors and executrix to Smith did not, of itself, and at the time it was executed, con vey to Smith any title or interest in or to the property described in the deed, for at that time graators, as executors and executrix, had no such title or interest to convey, nor any power or authority to convey any such title or interest; and nothing afterward passed under such deed or by virtue of its terms, for it was only a quitclaim deed; and such is and always has been the law with respect to quitclaim deeds. And nothing at any time passed by virtue of any of or all the facts and circumstances taking place prior to, contemporaneous with and subsequent to the execution of the deed, for no fraud, deception, concealment, mistake of facts or accident occurred or intervened, and it was not the intention of the parties that anything but the interest of the executors and executrix as such, or the interest which they might have had the power to convey, should pass. And we might further say, that a party can never obtain, by way of estoppel or ratification or otherwise, what it was never expected or intended that he should obtain.
Finding that the plaintiff’s supposed legal title, founded upon the aforesaid quitclaim deeds, is void, and not finding any equities in favor of the plaintiff sufficient to create an equitable title, we think the judgment of the court below is correct. There are a few other questions presented in this case, but we do not think that they need comment. The plaintiff may pay the taxes due on the two lots adjudged to him at any time, and may then obtain the possession thereof.
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 was an action brought by the State Insurance Company against William Curry, to recover $33.50, alleged to be due upon a promissory note executed by Curry on December 31, 1885, in payment of a premium on a policy of insurance. The answer of the defendant was, that there was a failure of consideration; that the company had not complied with the laws of the state of Kansas; and that the policy issued to Curry by the company was not in accordance with the agreement of the parties. The company brings the case to this court, alleging that the district court erred in not giving certain instructions which it requested.
The objection to the ruling of the court is not available, for the reason that neither the evidence nor any statement of its purport is preserved in the record. In the absence of the evidence, it- cannot be said that an instruction, however correct as an abstract statement of the law, was applicable to the case, or that its refusal was material error. (Auld v. Kimberlin, 7 Kas. 601; Town of LeRoy v. McConnell, 8 id. 273; Head v. Dyson, 31 id. 74; Comm’rs of Allen Co. v. Boyd, 31 id. 765; Stetler v. King, 43 id. 316.)
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 before a justice of the peace of Sumner county by A. C. Gould against the Southern Kansas Railway Company, in which action the plaintiff filed the following bill of particulars, omitting title and signature, to wit:
“ The plaintiff, A. C. Gould, states that he is a bona fide resident of the state of Kansas, and has a family, which he supports wholly by his wages or salary earned from his personal services as brakeman, in which capacity he has been working for the defendant for four months last past, which defendant is a corporation doing business by virtue of and under the laws of the state of Kansas; that said wages when earned are necessary for the maintenance and support of his family; that the defendant is indebted to the plaintiff in the sum of sixty dollars and sixty cents, for services rendered as brakeman, at the special instance and request of the defendant, for the month of January, 1887, and ten days in the month of February, 1887, at fifty-five dollars per month, making a total of sixty dollars and sixty cents, which sum is just, due; and unpaid, and which defendant refuses to pay, although often requested to do so; wherefore, plaintiff prays judgment against the defendant for the sum of sixty dollars and sixty cents, and for all costs.”
This bill of particulars was duly verified by the oath of the plaintiff. No verified denial nor indeed any denial was ever filed in answer to the plaintiff’s bill of particulars. Upon this bill of particulars the justice of the-peace rendered judgment in favor of the plaintiff and against the defendant for the amount claimed by the plaintiff; and the defendant appealed to the district court, where a like judgment was rendered. When the case came on for trial in the district court, a jury was waived, and the plaintiff, without introducing any evidence, moved the court orally for a judgment in his favor for the amount claimed in his bill of particulars. This motion was sustained by the court, and judgment was rendered accordingly, the defendant excepting. A motion was then filed by the defendant to set aside the judgment, and for a new trial, which motion was overruled; and the defendant excepted, and then, as plaintiff in error, brought the case to-this court, making the plaintiff below the defendant in error.
The only question involved in this case is, whether the bill of particulars of the plaintiff states an “account” within the meaning of § 84 of the justices act, and § 108 of the civil code. These two sections are substantially the same. Section 84 of the j ustices act reads as follows:
“ Sec. 84. In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or any appointment or authority, or -the correctness of an account, duly verified by the affidavit or affirmation of the party, his agent or attorney, shall be taken as true, unless the denial of the same be verified by the affidavit of the opposite party, his agent or attorney.”
The word “account” has various meanings and shades of meaning, and is used in various ways. Where it is used alone, and without words of limitation, extension, qualifica tion, or explanation, it is almost equivalent to the word “claim” or “demand;” but the word is generally so used that it can be known precisely what is meant by it. Among others, we have accounts, mutual accounts, book accounts, bank accounts, long accounts, open accounts, running accounts, accounts current, accounts closed, accounts rendered, and accounts stated. The words “an account” are used in § 84 of the justices act, and the words “any account” are used in §108 of the civil code. These words are as broad and comprehensive as they well could be, and there do not appear to be any other words in these sections limiting their signification. There are other statutes in which the word “account” is used. In § 28 of the act relating to counties and county officers, General Statutes of 1889, ¶1647, that word is used as the equivalent of the word “claim” or “demand,” for the word in that section includes every kind of claim or demand against a county which could legally be presented to a board of county commissioners for allowance. (See also Gen. Stat. of 1889, ¶¶ 5953, 6586.)
Just how the question presented in this case should be decided, is not clear, but it is believed by this court that we should give the word “account,” as used in the aforesaid §§ 84 and 108, its broadest signification. Whenever a suit is brought before a justice of the peace for money, if not brought upon a promissory note nor upon any other written instrument, it would be said in nine cases out of ten that it was brought upon an account, and this although the claim or demand was neither a book account nor mutual accounts between the parties. In our opinion, it is not necessary in order that the claim or demand sued on should be an account within the meaning of said §§ 84 and 108 that it should be a book account or mutual accounts, or that it should be originally in writing. In our opinion, whenever any claim or demand for money arises out of contract, either express or implied, and is for something furnished or performed by one party for another, but is not founded upon a promissory note or other instrument in writing, and a statement of such claim or de maud is made out in detail and in writing by the claimant or demandant, and presented to the other party, such statement constitutes an account within the meaning of §84 of the justices act and §108 of the civil code. We think this proposition might perhaps be enlarged or varied in its terms so as to comprehend still other particulars, and still be correct. We have made the proposition, however, just broad enough to cover the present case; and while we have some doubts as to its correctness, yet we think it is correct. Of course the defendant below had the right, in both the justice’s court and the district court, to introduce evidence to prove any set-off or counterclaim which it might have had; but no such question -was raised in either of such courts, nor has any such question been raised in this court. We suppose that the defendant did not have any set-oif or counterclaim to present in any court.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
On the 2d day of July, 1885, the plaintiff in error bought from one M. Sanders two frame buildings situate on lot 11, block 32, in the town of Saratoga, Pratt county. Sanders executed the following instrument in writing, and delivered it to the plaintiff in error:
“Saratoga, Pratt County, Kansas, July 2, 1885.— This is to certify that I, M. Sanders, have this day sold and transferred to Martha Rainer, for the sum of two hundred and fifty dollars, the receipt of which is hereby acknowledged, the following buildings, to wit: the two buildings now situated on lot No. 11, in block 32, Saratoga, Pratt county, Kansas, the same to be removed from said lot immediately.
[Signed] M. Sanders.”
On the 6th day of August, 1885, Sanders sold the lot to G. A. Sears, reserving the buildings for Mrs. Rainer. Sanders subsequently made an additional sale of the lot to the defendant in error, PT. P. Cooper; the exact date of this transaction is not given in the record, but Cooper did not comply with the conditions, and therefore never became the owner of the lot. The plaintiff in error sometime during the month of August, and probably on the 4th, attempted to remove one of the buildings to Pratt Center, but it was burned in the streets of Saratoga; whom by, the record does not disclose. The same evening the other building was moved from the lot and placed in the northeast part of the town of Saratoga, where it was occupied by one D. G. Gibbons. There is no evidence in the record tending to show directly by whom the removal of this building was made. In May, 1886, Martha Rainer, the plaintiff in error, commenced this action ip the district court of Pratt county against M. Sanders, G. A. Sears, H. P. Cooper, "W. E. Gibbons and D. G. Gibbons. Her petition attempts to set up two causes of action. The first alleges her purchase of the buildings from Sanders, and that the defendants in the month of August, 1885, took forcible possession of the same, and appropriated it to their use and benefit, and that its value was five hundred dollars. In her second cause of action she alleges that, at the time defendants so took possession of the building and appropriated it to their own use, she had made an arrangement to have the said buildings removed to Pratt Center, at which place she had been given a valuable lot on Main street on which to place it; that said lot was of the value of $600; that said lot was given her upon the express condition that she would remove this building from Saratoga and place it upon said lot; that, by reason of the appropriation of said building by these defendants to their own use, she was unable to comply with the conditions, and she was damaged by reason thereof in the sum of $600. The defendants demurred to the petition on the ground that it did not state a cause of action in the first or the second count. The demurrer was sustained as to the second cause of action attempted to be stated in the petition, and overruled as to the first. Finally the action was dismissed as to all the defendants below except Cooper, and a judgment was rendered in his favor. He interposed a demurrer to the evidence of the plaintiff below that was sustained. The cause is brought here for review, and we are asked to reverse the judgment below because the demurrer to the evidence of the plaintiff below was erroneously sustained, on the theory that by the written contract of the purchase of the buildings in controversy by plaintiff of the defendant, Sanders, the plaintiff was to remove the same immediately, and her failure to do so for the period of thirty-five days, and no excuse being given for such delay, prevents her from recovering against either of the defendants.
It is claimed now that by reason of Cooper failing to comply witli the terms of his purchase of the lot he never acquired any interest in the building, and, as Sanders did not insist or plead the delay in the removal of the building, Cooper alone cannot take any advantage of it. While all this may be sound, there was another reason given for sustaining the demurrer, and that was the fact that no cause of action was proved against either of the defendants; that is to say, there was no evidence tending to show who removed the building from the lot. The fact that it was removed was established. The fact that one of the defendants was in possession of the building after removal, was established. The fact that Cooper had made a contract for the purchase of the lot, was established. Neither the plaintiff, nor her husband, nor any other witness that was introduced in her behalf, made any statement as to the particular individuals who removed the building from the lot. The husband of Mrs. Rainer stated on the witness-stand that Cooper said to him that he had sold the building to Gibbons, and this was only a few days after the removal of the building. This case was tried by the court without the intervention of the jury. Erom our standpoint, it seems that Cooper’s purchase of the lot with the building thereon, and his sale of the house to Gibbons, and Gibbons’s occupancy so soon after removal, was some evidence tending to show a conversion by Cooper, and that the demurrer to the evidence ought to have been overruled.
It is recommended that the judgment be reversed, and a new trial granted.
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.:
This was an action brought by Harry Gedney to recover for a cow killed by a train of the Missouri Pacific Railway Company, at a crossing of a public highway in Anderson county, and resulted in a verdict of $30, in favor of the plaintiff.
The railway company insists that the findings and verdict of the jury are not sustained by the evidence. The cow killed was one of several that were grazing on the highway, near to the crossing on the railroad, on the morning of the accident. Some of them were upon one side of the track and some upon the other, when a freight train, traveling at the rate of fifteen miles an hour, passed along the road and over the crossing. Shortly before the train reached the crossing, the cow stepped upon the track and was struck and killed; the principal question tried was whether those in charge of the train exercised due care under the circumstances to avert the injury. The jury found that they did not. It is found that they failed to keep a vigilant lookout for stock or obstructions on the track, and failed to sound the whistle or ring the bell when approaching the crossing, and failed to do that which was necessary in order to avoid a collision. We think there is sufficient evidence in the record to support the findings and verdict. It is true, the jury found that the engineer did not discover the cow going upon the track until the engine was within twenty feet of her, and that the train was then going at the rate of fifteen miles an hour, and could not have been stopped after the cow came upon the track and before she was struck. It is also true that the engineer and fireman testify that they were vigilant in looking out along the line of the road to see if there were any objects ahead, or animals dangerously proximate to the track; and further, that they sounded the whistle as they approached the crossing, and as soon as they saw the cow that they reversed the engine and endeavored to stop the train. The testimony of Gedney, however, is to the effect that the whistle was not sounded nor any danger signal given eighty rods from the crossing, nor at any time afterward before the cow was struck. There is also testimony that the ground was level near the crossing, and that there were no obstructions to .prevent the engineer and fireman from seeing the cattle on the side of the track for a distance of half a mile or more, and that although the cattle were in plain view and approaching the track, no alarm was given to drive them away from the track. If the engineer and fireman were at their posts, and kept a lookout for obstructions, and an animal not seen by them came suddenly upon the track when there was not sufficient time or opportunity to frighten her away, or where they could not by ordinary diligence avoid a collision, the company would not be liable. It is not enough, however, that they used diligence to avert the injury after they saw the cow upon the track; it was their duty to keep a lookout for objects or animals approaching or in dangerous proximity to the track, and if the circumstances indicated that there was danger that they would get upon the track, to use the means which they possessed for driving them away. The sounding of the whistle, or other alarm eighty rods from the crossing might not have served the purpose of driving the cattle away from the track, but certainly the sounding of an alarm as they approached more closely would have tended to drive the cattle beyond the reach of danger. There was no direct evidence contradicting the testimony of the engineer and fireman, that they kept a vigilant outlook for animals or objects on or near the track, but the testimony that the view was unobstructed along the track for a distance of half a mile or more, and that the animals were in plain view and could have been seen by them for that distance if they had looked, certainly tends to support the finding of the jury that there was negligence in not keeping an outlook ahead of the train. If by a diligent outlook animals approaching or dangerously proximate to the track could have been discovered by the engineer and fireman, their failure to use the ordinary means provided for frightening animals from the track and to avoid a collision with them, was such negligence as would make the company liable for the injury occasioned. As is stated in Mo. Pac. Rly. Co. v. Wilson, 28 Kas. 641, “If the employés of the railroad company could, by the use of ordinary prudence, see, or, seeing the stock on the road, could without danger stop the train and avoid striking the animal, they were required to do so, because the idea is not tolerable that an injury may be inflicted which by ordinary care and diligence may be avoided.” The conflict of testimony as to the care and diligence used by the engineer and fireman in respect to keeping an outlook and in sounding an alarm, the topography of the ground near the crossing, and the proximity of the animals to the track, has been settled by the jury, and under well-worn precedents their finding and verdict upon such testimony must be held conclusive.
We think the case was fairly submitted to the jury by the charge of the court, and that no good reasons for a reversal of the judgment exist.
Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Nick Schaefer and Matthew Schaefer were tried in the district court of Shawnee county, on an information of six counts, each charging them with an unlawful sale of intoxicating liquors. Matthew Schaefer was acquitted by the jury; but Nick Schaefer was found guilty upon the first, second and third counts of the information. The court sentenced him to pay a fine of $300, and to be committed to the jail of Shawnee county for ninety days. The court further ordered that he be imprisoned in the county jail until the fine and costs were all paid. He appeals.
It is contended that the district court had no jurisdiction, as the offense, if any, was cognizable before a justice of the peace only; therefore that the plea of abatement filed by the defendant should have been sustained. It has already been decided by this court that §2, chapter 178, Laws of 1887, does not oust the district courts of jurisdiction. (The State v. Brooks, 33 Kas. 708; In re Eddy, Petitioner, 40 id. 592.) It appears from the testimony that Nick Schaefer keeps a restaurant at 414 Kansas avenue south, in the city of Topeka. On the part of the prosecution, Calvin Smith, John Mayfield, Wm. Covert and Elmer Emmens testified that they had pur chased, in April, 1889, hard cider at the restaurant of Schaefer when he was present, and that the cider was intoxicating— that it intoxicated them. After Schaefer was arrested, the cider on his premises was seized, and analyzed by Prof. Love-well, of Washburn College. He reported 13.14 per cent, of alcohol by weight in the cider. On the part of the defendant, John E. Stone, J. E. Kitsman, John O’Connor and several others testified that they had drank cider frequently at Schaefer’s restaurant in April and May, 1889, and that the cider was not intoxicating.
It is also contended that the court committed error in permitting the state to show by the evidence of Prof. Lovewell the amount of alcohol found in the cider seized upon the premises of the defendant. In support of this contention it is claimed that the cider was taken off the ice in hot weather, moved, agitated, and carried to Prof. Lovewell, at Washburn College, some distance from the premises of the defendant. We think the evidence was admissible for what it was worth. All of the facts surrounding the analysis went to the jury, and they could judge as to its value. The cider was seized at the time of the arrest of the defendant, and on the same day taken to Prof. Lovewell. The testimony tended in some degree to show that the cider the defendant kept and sold was not sweet or fresh cider, but fermented cider.
It is further contended that the trial court erred in instructing the jury that they might find the defendant guilty although he was ignorant that the cider he sold was intoxicating. If the cider was sweet or fresh cider, such an instruction would have been erroneous and prejudicial. (Intoxicating-Liquor Cases, 25 Kas. 751; The State v. Brown, 38 id. 390.) But the instruction complained of referred to hard cider only — not to sweet or fresh cider. It was in effect that if the defendant sold hard cider he was bound to know it was intoxicating. This court has ruled that beer is presumed to be intoxicating until the contrary is proved. (The State v. Teissedre, 30 Kas. 476.) Beer is both a fermented and malt liquor, and generally contains from 3.40 to 4.94 per cent, of alcohol. Cider is defined by Worcester as “a fermented liquor made from the juice of apples.” Watts, in his Dictionary of Chemistry, says that— ,
“Cider is a fermented liquor prepared from apples; that the fermentation is the most delicate part of the process; slight fermentation leaves the liquor thick and unpalatable; rapid fermentation impairs its strength and durability; and excessive fermentation makes it sour, harsh, and thin; that cider contains in 100 volumes 9.87 of alcohol of 92 per cent.; the weakest, 5.21.”
Johnson’s Cyclopaedia in referring to cider says:
“It is the fermented juice of apples, extensively prepared in parts of England, in Ireland, in the northern districts of France, and in North America. In Normandy vast quantities of apples are grown for the preparation of cider. The apples are first reduced to pulp in a mill, and the pulp is afterward subjected to pressure. The apple-juice is placed in casks in a cool place, when fermentation begins; part of the sugar is converted into alcohol, and a clear liquid is obtained, which can easily be racked off from sedimentary matter. Cider is largely used as a beverage. It contains from 5J to 10 per cent, of alcohol, and is intoxicating when drunk in large quantities. Cider quickly turns sour, becoming hard cider, owing to the development of acid, and great difficulty is experienced in the attempt to keep it sweet.”
Paragraph 2521, General Statutes of 1889, reads:
“Any person or persons who shall manufacture, sell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors shall be guilty of a misdemeanor, and punished as hereinafter provided: provided, however, that such liquors may be sold for medical, scientific and mechanical purposes, as provided in this act.”
And ¶2530, General Statutes of 1889, provides that—
“All liquors mentioned in §1 of this act, and all other liquors or mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquors within the meaning of this act.”
Where the general meaning of a word is once established by common usage and general acceptation, we look for its definition in the dictionaries, and do not require evidence of its meaning by the testimony of witnesses. (Briffitt v. The State, 16 N. W. Rep. 39; The State v. Teissedre, supra.) Therefore all the courts will take judicial notice that when the phrase “hard cider” is used in court by a witness, it means “fermented cider,” or “liquor,” and is within the prohibition of the statute. If the witnesses for the state had testified that they drank cider, not hard cider, then, under the definitions of Webster and some of the other lexicographers, we would not presume that the cider was fermented and intoxicating. Hard cider is cider excessively fermented; and therefore, presumptively, hard cider is not only a fermented liquor, but intoxicating. Whatever is generally and popularly known as intoxicating liquor may be so declared as a matter of law by the courts. Under the statute, all fermented liquor is presumed to be intoxicating; and if a defendant denies that the fermented liquor sold by him is intoxicating, it devolves upon him to remove the presumption of law by evidence. (The State v. Volmer, 6 Kas. 371; Intoxicating-Liquor Cases, 25 id. 751.)
The judgment of the district court must be affirmed.
All the Justices concurring.
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Opinion by
Stjrang-, C.:
This case was begun in the district court of Cloud county, September 19, 1885. October 18, 1885, plaintiffs in error filed their demurrer to what they term the first, second, third and fourth counts of the petition, alleging as grounds therefor, that neither of said counts states facts sufficient to constitute a cause of action. The demurrer was overruled, to which ruling objection was made and exception allowed. September 3, 1886, an answer was filed containing: First, a general denial; second, allegation of ownership in defendants, detention of possession by plaintiff, and claim for mesne profits; third, an off-set consisting of a running personal account between J. E. Fitzgerald and Hollan.
November 5, 1886, a reply was filed denying all new matter. April 29, 1887, the case was tried by court without a jury. The trial resulted in a judgment for the plaintiff below that Fitzgerald and wife were trustees holding the title to land for Hollan, and requiring them to deed the same to him, subject to a lien for money paid out for taxes and interest thereon. The judgment of the court below was based upon findings of fact and conclusions of law thereon. They bring the matter here by a case-made, and assert that the court below erred as follows: First, in overruling the demurrer to the petition; second, in excluding testimony offered by defendants; third, in allowing plaintiffs to file an amended petition ; fourth, in making findings of fact not sustained by the evidence; fifth, in not rendering judgment for plaintiffs in error on the findings; sixth, in its conclusions of law; seventh, in overruling a motion for new trial.
The first error assigned is that the court erred in overruling the demurrer. The petition was not skillfully drawn, but we think the court below put the correct construction on it in treating the several sections of the petition as numbered, as paragraphs of one petition, alleging one cause of action, instead of counts asserting different' causes of action. The demurrer, being to separate counts, was under this view of the petition necessarily, and therefore properly overruled. There was no demurrer to the petition as a whole; and besides, we think the petition as a whole stated a cause of action.
We will treat the third error, as assigned, as the second, because it comes second in the natural order of the trial. In this it is asserted that the court erred in allowing the plaintiff to amend his petition. The record shows that when the plaintiff’s evidence in chief was in, he asked leave to amend his petition so as to conform it to the proof as made. The code of procedure, (¶4222, Gen. Stat. of 1889,) provides for such amendments. (See also 40 Kas. 521.) There is therefore no error in this assignment.
Next, it is claimed the court erred in excluding certain testimony of the defendants. The action was in equity to require the court to declare the defendants trustees holding the title to certain real estate for the use of the plaintiff, and to require them to turn the title over to their cestui que trust. The offer of the defendants was to prove a personal account, running between J. E. Eitzgerald and Hollan, the plaintiff, in which it was alleged by the defendants that there was a balance due from the plaintiff to J. E. Eitzgerald. We do not think such account a proper subject of investigation in this case. It is not a matter of defense to the plaintiff’s claim. It is a mere personal account. It did not in any way grow out of, or concern the trust, and it was not between the parties to the action. The evidence of such account was therefore properly excluded.
Fourth: We will not investigate as to whether a preponderance of the evidence in the case supports the findings of the court, or otherwise. There is certainly evidence in support of all the material findings of the court, and under the law of this court that is sufficient to sustain such findings. It is asserted that the court found the value of the land in controversy without any evidence as to value. However that may be, such finding is wholly immaterial, and therefore cannot affect the validity of the other findings. The findings of fact being sustained, we see no error in the conclusions of law thereon. The court finds as a fact that the Fitzgeralds agreed to take a deed to the premises, because they owned other lands, and could on that account obtain a larger loan on the land than Hollan could obtain, that is $800, the amount Hollan required to pay out on the land, and after the loan was obtained, deed the land to Hollan, subject to the mortgage. Upon this fact the court found as a conclusion of law that the Fitzgeralds were trustees holding the title to said land in trust for Hollan. We notice above the principal finding of fact and conclusion of law in the case, and we think the latter a correct legal deduction from the former.
The questions raised by the other assignments are included in those already considered, the motion for a new trial being founded upon the foregoing alleged errors.
It is therefore recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an action on a promissory note, begun before a justice of the peace, and appealed to the district court, and there tried January 24, 1888, by a jury, who returned a verdict for the defendant for costs. The plaintiff brings to this court what purports to be a “case-made,” and asks this court to review certain alleged errors therein. The defendant objects to a consideration of the case by the court — because the “case-made” is not properly authenticated. The record as sent here is signed by the j udge of the' district in which the cause was tried, but it is not attested by the clerk of the court. Par. 4649, General Statutes of 1889, provides as follows: “ The case and amendments shall be submitted to the judge, who shall settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached.” It will be seen that the statute requires the judge to sign the case-made, and also cause it to be attested by the clerk, and the seal of the court thereto attached. It is not sufficient that the judge, alone, signs it. Indeed, its principal authentication is found in the attestation of the clerk, which is evidenced by the seal of the court.
In Karr v. Hudson, 19 Kas. 474, Chief Justice Horton says: “What purports to be a ‘ case-made’ in the proceedings before us, is signed by the judge, and dated April 13,1877. But the paper is not attested by the clerk, nor is the seal of the court attached. Hence, the same is not authenticated as required by law. We cannot be unmindful of the behests of the law, nor have we any authority to dispense with the statutory provisions of authentication required to a case-made.” (See also Linton v. Frazier, 29 Kas. 20; Pierce v. Myers, 28 id. 364.)
The record brought here is further challenged by the defendant, who says that it does not contain, and does not purport to contain, all the evidence in the case. This court has frequently held that, so far as those questions are concerned which require the preservation and incorporation into the record of all the evidence introduced on the trial of the cause, to enable it to review them, the case-made must upon its face affirmatively show that it contains all the evidence, or such questions will not be reviewed. (The State, ex rel., v. Comm’rs of Harper Co., 43 Kas. 195; Eddy v. Weaver, 37 Kas. 548; Barker v. Barker, 43 id. 91; Hill v. National Bank, 42 id. 364; Insurance Co. v. Hogue, 41 id. 524; Railroad Co. v. Grimes, 38 id. 241.)
There is no statement, in the record sent here, that it contains all the evidence introduced on the trial of the cause, and it does not otherwise satisfactorily appear that it contains all the evidence. For the reasons above given, it is recommended that this case be dismissed.
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 the 1st day of March, 1887, Philip Newforth commenced his action against R. Merten and Mary Merten for a specific performance of the conveyance of real estate upon a written bond or agreement, given by the'Mertens to Martin Gutzwiler on the 12th of March, 1877, and assigned to the Mertens by Martin Gutzwiler and wife on the 7th day of May, 1884. On the 28th of March, 1887, the defendants filed a demurrer to the petition, alleging that it did not state facts sufficient to constitute a cause of action. Upon the hearing, the demurrer was overruled by the trial court, and the defendants were given thirty days in which to file an answer. They did not answer within the thirty days, but a long time thereafter, and on the 5th day of October, 1887, filed two affidavits for permission to file an answer. The affidavit of R. Merten was to the effect that, before answering in the case, it was necessary for him to furnish to his attorney all the contracts and assignments that were outstanding concerning the title to the land ; that he did all he could by request to secure these papers, but that they did not reach his attorney until the 5th of October, 1887.
The affidavit further stated the general nature of his defense; among other things, that Martin Gutzwiler did not comply with the terms of the bond or agreement; that he abandoned the land, and allowed it to go to tax sale. The affidavit of his attorney was also to the effect that he did not secure, until the morning of the 5th of October, 1887, the papers necessary to enable him to make an answer in the case. No answer, however, was then presented. On the 7th day of October, 1887, the case was heard, and judgment rendered in favor of the plaintiff and against the defendants. Subsequently, the defendants filed a motion for a new trial, and this motion was overruled. It does not appear that the motion for a new trial was filed in time. They excepted, and bring the case here.
The permission to file an answer out of time is largely in the discretion of the trial court. Where the demurrer of the defendant has been overruled and time given him to answer, and he does not present or file his answer in time, his application for leave for further time to answer must be addressed to the discretion of the trial court. If sufficient diligence is not shown on his part, the court will not abuse its discretion in refusing to allow the answer to be filed out of time. It may be, in the absence of further showing, that the trial court thought that the filing of the answer was asked simply for delay. It looks as though the demurrer had been filed for delay, because it was not well taken. It may be said to have been frivolous. (Spratly v. Insurance Co., 5 Kas. 155; Neitzel v. Hunter, 19 id. 221; Swerdsfeger v. The State, 21 id. 475.)
No sufficient diligence was shown in the affidavits in obtaining the papers alleged to have been needed to prepare the answer, and no answer was presented to the trial court before the case was heard and disposed of. The demurrer was properly overruled. We have not considered the affidavits, nor the answer filed after the 7th day of October — that being the day upon which the judgment was rendered. Under the circumstances of this ease, the showing for permission to file an answer should have been made, and the answer itself presented before the trial. We perceive no abuse of the discretion of the court. (Pemberton v. Hoosier, 1 Kas. 108; Butcher v. Bank, 2 id. 70; Haight v. Schuck, 6 id. 192; McPherson v. Kingsbaker, 22 id. 646; Tefft v. Firey, 22 id. 753; White v. Treon, 25 id. 484; National Bank v. Wentworth, 28 id. 183; Mo. Pac. Rly. Co. v. Linson, 39 id. 416; Smith v. Fullinwider, 40 id. 73.)
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 Morris county on February 17, 1888, by B. W. Woodward, F. A. Faxon and J. C. Horton, partners doing business under the firm-name of Woodward, Faxon & Co., against F. A. Gardom, to recover the sum of $794.25, on an account. At the same time an order of attachment was procured in the case upon the following grounds, as alleged in plaintiff’s affidavit therefor, to wit:
“That said defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors, and has property and rights in action which he conceals; has assigned, and is about to dispose of his property, or a part thereof, with the intent to defraud, hinder and delay his creditors.”
The order of attachment was levied upon certain personal property as the property of Gardom, valued by the appraisers at $1,650.36. On April 9, 1888, Gardom filed a motion to discharge the attachment upon the ground among others, that the grounds set forth in the plaintiffs’ affidavit for the attachment were not true. On the same day John A. McQuistan, with leave of the court and under the provisions of chapter 137 of the Laws of 1877, (Gen. Stat. of 1889, ¶4123,) filed an interplea claiming that the personal property attached belonged to him. The plaintiffs replied to this interplea. On April 23, 1888, by consent of the parties and the court, a trial was had before the court without a jury upon both the motion and the interplea upon the same evidence. The decision of the court below was in favor of the plaintiffs and against Gardom and McQuistan, and they, as plaintiffs in error, bring the case to this court for review.
It appears that the attached property once belonged to the defendant, Gardom, but that prior to the levying of the attachment, and on January 5,1888, McQuistan purchased the same from Gardom for the sum of $1,234.45, that amount being the amount of a promissory note, with interest, which McQuistan at the time held against Gardom. The plaintiffs claim that this sale was a sham, made for the purpose of hindering, delaying and defrauding the creditors of Gardom; but Gardom and McQuistan claim that the sale was made in the best of faith. Whether the sale was a sham or not, or whether it was made in good faith, was about the only mateterial question presented to the court below for its determination. If it was a sham sale, then, as to the plaintiffs, the property belonged to Gardom, and the plaintiffs were entitled to their attachment; but if it was an honest and bona fide sale, then the property belonged to McQuistan, and the plaintiffs were not entitled to their attachment. During the trial the defendant Gardom was examined as a witness on the part of himself and McQuistan, and he was asked the following, among other questions:
“ I wish to ask you about these matters: there are three charges against you — one is that you were about to convert your property, or a part thereof, into money for the purpose of placing it beyond the reach of your creditors. I wish you to state to the court whether or not you were about, at the time of the attachment — at, or before, or about that time— if you were about to convert your property, or a part thereof, into money for the purpose of placing it beyond the reach of your creditors?”
The plaintiffs objected to the question upon the ground that it was “incompetent, irrelevant, and immaterial, and called for a legal conclusion”; and the court below sustained the objection, to which Gardom and McQuistan excepted. The witness was also asked the following question, to wit:
“He charges you with having assigned your property, or a part thereof, with the intent to hinder, defraud, and delay your creditors. Is that true — did you have any such intent?”
To which the plaintiffs objected as “incompetent, and as involving a question of law,” which objection was sustained by the court, and the ruling duly excepted to.
It will be perceived that these questions were not objected to on the ground of their form, or that they were leading, but upon the grounds in substance that the evidence to be elicited by them would be incompetent, irrelevant and immaterial, a legal conclusion and a question of law. We think the court below committed error. A vital question involved in the case was whether the aforesaid sale was made in good faith, or was a mere sham, and made for the purpose of hindering, delaying and defrauding Gardom’s creditors. Whether the sale was in good faith or not depended upon the state or condition of Gardom and McQuistan’s minds, their thoughts, intentions, motives; and the aforesaid questions were asked for the purpose of eliciting evidence tending to show what the condition of Gardom’s mind, in particular, was — his intentions and motives. Dr. Wharton, in his work on the Law of Evidence, (§ 508,) uses the following language:
“ A witness, also, is not to be permitted to testify as to the motives by which another person is or has been actuated. Motives are eminently inferences from conduct. The facts from which the inferences are to be drawn are to be detailed by the witnesses; for the jury the work of inference is to be reserved. Yet where a party is examined as to his own conduct, he may be asked as to his motives, his testimony to such motive being based, not on inference, but on consciousness.”
See also Whart. Ev., §§ 482, 955. In an article in the Al bany Law Journal, of December, 1876, the following, among other language, is used :
“ Upon the review of all the cases, it would appear that in cases arising under a statute where the statute makes the intent of the one doing an act involved in the issue essential, it is competent to inquire of him as a witness, what his intent was, and his testimony goes to the jury with the other evidence contradicting or corroborating it.” (14 Alb. L. J. 387.)
In the case of Commonwealth v. Woodward, 102 Mass. 155, 161, the following language is used :
“The criminal purpose or intent must always be proved. It is usually inferred from the character and circumstances of the offense, or proved by preceding threats, accompanying declarations, or subsequent conduct or admissions. Now that the defendant himself is admitted as a witness, it must be competent for him to testify directly to that which is always a subject of proof or disproof by indirect evidence.”
In the case of Seymour v. Wilson, 14 N. Y. 567, the following is decided :
“On an issue of fact as to whether an assignment or transfer of property was made to hinder, delay or defraud creditors, it is competent, where the assignor is a witness, to inquire of him whether, in making the assignment or transfer, he intended to delay or defraud his creditors.”
See also the following additional authorities: Wheelden v. Wilson, 44 Me. 11; Snow v. Paine, 114 Mass. 520; Fisk v. Inhabitants of Chester, 8 Gray, 506; Lombard v. Oliver, 7 Allen, 155; Persse v. Willett, 1 Rob. N. Y. 131; Mathews v. Poultney, 33 Barb. 127; Pope v. Hart, 35 id. 630; Bedell v. Chase, 34 N. Y. 386; Thurston v. Cornell, 38 id. 281, 287, and cases there cited; Thorne v. Helmer, 2 Keyes, (N. Y.) 27; Courtland Co. v. Herkimer Co., 44 N. Y. 22; Kerrains v. The People, 60 id. 221; The People v. Pease, 27 id. 45; Norris v. Morrill, 40 N. H. 395; Hale v. Taylor, 45 id. 405; Delano v. Goodwin, 48 id. 203. The condition of a man’s mind with reference to what he thinks, feels, believes, intends, and his motives, is always a fact, and it is a fact which is often required to be ascertained both in civil and in criminal cases; and only one person in the world has any actual knowledge concerning that fact, and that person is the one whose condition of mind is in question; and where he is a competent witness to prove such condition, he may testify to the same directly. Other witnesses can testify only to extraneous facts tending to prove this condition. He may also testify to such extraneous facts, but he may testify directly as to what the condition of his own mind is or was at any particular time, or on any particular occasion. The court below held otherwise. The court below held that such direct testimony of the witness himself as to the condition of his own mind was worthless. If this testimony of the witness had been admitted, the finding of the court below might perhaps have been different from what it was. Indeed, it is probable that the finding of the court below without this testimony is erroneous at least as to Mc-Quistan.
The order and judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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Opinion by
Strang, C.:
Action of ejectment, to recover the possession of the northeast quarter of section 27, township 12 south, of range 17 east, in Shawnee county, commenced July 31, 1886. Same day answer filed, and on the issues as thus made June 15, 1887, the case came on for trial, it being the second trial of the case. The court, after making findings of fact and conclusions of law, rendered judgment in favor of the plaintiff below, George Fix, for the possession of the land above described, upon payment of the sum of $1,151.56, taxes, interest and costs due the defend ants, and for costs of suit. Motion for new trial. Motion overruled, and case brought here for review, alleging that the decision of the court is contrary to the evidence; second, decision of the court is'contrary to law; third, errors of law occurring at the trial, and excepted to.
To recover, the plaintiff relied upon a patent for the land from the government to W. R. Shoars, dated June 15, 1860; the death of W. R. Shoars and wife, and proof that the only surviving heirs were Clara N. Stevens, (formerly Clara N. Shoars,) and Whitfield S. Shoars; quitclaim deed from Clara N. Stevens and Whitfield S. Shoars to W. T. F. Clark, dated December 31, 1885, recorded June 21, 1886; quitclaim deed from W. T. F. Clark, dated June 17, 1886, with proof that plaintiff furnished the money to Clark to purchase the land of Clara N. Stevens and Whitfield S. Shoars.
The defendants below relied upon a tax deed from Shawnee county to Joshua Knowles, dated August 24, 1886; deed from Knowles and wife to George W. Watson, dated May 9, 1887; and deed from Watson and wife to the defendants, dated November 24,1873. It was conceded that this tax deed was void on its face, but that under it defendants went into possession of the land. Defendants further relied upon a deed of assignment from W. T. F. Clark to Millard F. Rigby, dated May 8, 1886; deed from S. L. Seabrook, permanent assignee of W. T. F. Clark, to William R. Hazen, dated March 16, 1887; and a warranty deed from W. R. Hazen and wife to the defendants, dated March 16, 1887.
This case turns upon the effect to be given to the deed of W. T. F. Clark to George Fix, dated June 17, 1886. The court found among other things the following facts: That Fix furnished the money to Clark with which to buy the land in controversy; that in the purchase of said land Clark was the agent of Fix, and purchased the land for Fix; that though Clark took the deed from Mrs. Stevens and her brother Whitfield S. Shoars in his own name, he held the land therein described in trust for Fix, and had himself but the naked title thereto; that the deed of assignment from Clark to Rigby contained no description of the land in question; that Hazen was a purchaser for a valuable consideration and without actual notice of any claim of George Fix to said land. Under these circumstances was the deed from Clark to Fix constructive notice to Hazen of Fix’s interest in said land? If it was, then the judgment of the court below was right; if not, the judgment of the court below was wrong, and should be reversed. The court below, as a conclusion of law from the facts found, held that the deed from Clark to Fix was constructive notice to Hazen of Fix’s claim in the land in controversy. We think the court was right in such conclusion. The deed from Clark to Fix was on record ten months before Hazen purchased from Seabrook, Clark’s assignee. Hazen could acquire no more interest in the land than Seabrook had, and whatever interest Seabrook had he acquired from Clark. Hazen was bound to go through Seabrook’s title to that of Clark, and when he came to examine Clark’s title he must discover the deed from Clark to Fix, which charges him with inquiry into the character of Fix’s interest in said land, and imparts notice to him of Fix’s claim of ownership in said land.
Again, Seabrook took the land as assignee of Cla-h. He was not a purchaser for value, and therefore acquired only what was vested in Clark, which at the utmost was the mere naked title. Hazen, who purchased from Seabrook, took by his purchase no greater interest in the land than Seabrook had, and therefore acquired a mere naked title, while Fix was the owner of the equitable title to the land, and had been ever since it was deeded by Mrs. Stevens and Whitfield S. Shoars to Clark, because, as the court finds, he furnished the money to purchase the land, and Clark purchased it for him as his agent. It is true, Clark took the legal title in his own name instead of in that of his principal, Fix; but Fix did not know that Clark was taking the title in his own name, and he never consented that Clark should do so. The equitable title being in Fix before and at the time Clark took the legal title to the land, and such equitable title remaining in Fix all the time down to the commencement of this suit in the court below, Fix ought to recover without regard to the subsequent acts of Clark affecting such land, unknown at the time to Fix, and never afterward consented to by him. Otherwise, Clark could have wholly defeated the trust resulting from the relation of himself to Fix and to the land, and wiped out Fix’s equitable interest therein. We think the findings of the court below are supported by sufficient evidence, and its conclusions of law are correct.
We therefore 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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The opinion of the court was delivered by
Horton, C. J.:
Mrs. Theresa Liebert brought her action against Phillip Jung, before a justice of the peace of Ells-worth county, to recover $72, for twenty-four weeks of work as a housekeeper, at $3 per week, and for $25 for money paid out by her for the defendant. After a trial before the justice of the peace, the case was taken by appeal to the district court of Ellsworth county. Judgment was rendered in that court in favor of the plaintiff for $60.30. The defendant brings the case here. He complains that the evidence does not show that Mrs. Liebert paid out $25, or any other sum, for him. He further complains that he is not liable for any railroad fare or expenses paid or incurred by Mrs. Liebert in coming to Kansas.
It appears from the evidence that in March, 1886, Phillip Jung, who was sixty-five years of age and a widower, lived at Blackwolf, in this state, and by correspondence with Mrs. Liebert, he induced her to come to Kansas and keep house for him and his son, who was then twenty years of age. Mrs. Liebert worked for the defendant twenty-four weeks. About a week after she came to Blackwolf, the defendant asked her what her expenses were in coming to his house. She told him. He answered “that the amount was pretty high, but he would have to pay it.” While Mrs. Liebert was serving as housekeeper, her daughter married Arthur Jung, the son of the defendant. Soon after this marriage, Mr. Jung, the defendant, carried Mrs. Liebert to the railroad station at Ells-worth, where she took the train for Milwaukee. He gave her $25, aud said to her that was in full of her services. Before that time he had paid to her $3 upon her wages. The jury, in addition to their general verdict, made special findings of fact. The following findings are not supported by any evidence:
“Q. Before the plaintiff came to Ellsworth county, Kansas, did defendant promise to pay the plaintiff her railroad fare and expenses to Blackwolf, Kansas, or to any part in Ells-worth county, Kansas ? A. Yes.
“Q,. Was there anything said or written to plaintiff about railroad fare, or paying expenses, until after the arrival of plaintiff at the residence of defendant at Blackwolf ? A. Yes.”
If it were not for other findings, these would reverse the judgment, but in view of the facts developed upon the trial and the following special findings of fact, we think the special findings above quoted are immaterial. The special findings which show the liability of the defendant for railroad fare, are as follows:
“ Q,. After the plaintiff arrived, did defendant promise to pay her railroad fare or expenses? A. Yes.
“ Q,. What Avere the services of plaintiff worth per week while she was working for defendant? A. $2.50, and board and fare to Kansas.
“Q,. How many weeks in all did she work for defendant? A. Twenty-four.”
These findings are supported by the evidence. It is further contended that Mrs. Liebert is not entitled to recover her railroad fare, or expenses, under the special findings of the jury, because she only charged in her bill of particulars for her work as housekeeper, $3 per week. It was decided iu Railroad Co. v. Caldwell, 8 Kas. 244, that —
“ Though there be a variance between the allegations of a petition and the facts proved on the trial, yet, if it be a case where an amendment of the petition ought to be allowed, to conform it to the facts proved, the judgment will not be reversed on account of such variance.” (See also K. P. Rly. Co. v. Montelle, 10 Kas. 127; Baird v. Truitt, 18 id. 124; Pape v. Capitol Bank, 20 id. 446; Mitchell v. Milhoan, 11 id. 626; Gas Co. v. Schliefer, 22 id. 470; Grandstaff v. Brown, 23 id. 178.)
Though no formal amendment was made or requested in the trial court, we think as Mrs. Liebert was clearly entitled to her railroad fare, or expenses, and as the defendant was notified upon the trial of her intention to claim the same, we may properly treat the case as if an amendment to the bill of particulars, to accord with the special findings of the jury, was in fact made. Therefore, we hold that no substantial rights of the defendant have been prejudiced. An account or bill of particulars filed with a justice of the peace is not usually framed with much care or nicety, and the strict rules applicable to the construction of pleadings are not to control such accounts or claims. Morally and legally, the plaintiff below is entitled to the amount she has recovered, and this court ought not, on account of a mere technicality, which does not affect the substantial rights of the parties, set the judgment aside. 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.:
This was an action in the court below for damages for personal injuries received by Harry E. Busenbark while in the employ of the defendants, Beeson & Selden. The jury returned a verdict for the plaintiff for $12,000, and judgment was entered for that amount against the defendants. They complain, and bring the case here.
It appears from the record that the Kansas & Colorado Railroad Company — an auxiliary of the Missouri Pacific Railway — is a corporation organized under the laws of this state, and doing business as a railroad company in this state. W. V. McCracken & Co. were the original contractors with the railroad company for the construction of its road through Saline, McPherson, Rice, Barton, and other counties of the state. McCracken & Co. sub-let the construction of the road to Beeson & Selden between Salina and the east line of Ness county. McCracken & Co. were to furnish all the locomotives, not to exceed three, and cars, including boarding-cars, for the use of Beeson & Selden in carrying out the contract. Beeson & Selden were to receive all material at Salina and transport the same at their own cost and expense, including all unloading, loading, and reloading of such material, under direction of the engineer in charge, and as he should deem necessary. After fifteen miles of track had been laid from Salina west, Beeson & Selden sub-let a portion of the work to Bracey & Harris. Bracey & Harris were to do all work in the track-laying, and to load and unload material, but Bee-son & Selden were to transport the material and provide the train service. Beeson & Selden employed and paid the trainmen, including the plaintiff. Trains were operated on the road by Beeson & Selden. About October 25,1886, the Missouri Pacific Railway Company began running trains over the road between Salina and Geneseo. Beeson & Selden re tained their own trains in completing the construction of the road. On October 27, 1886, just after dark, Harry Busenbark, a fireman in the employ of Beeson & Selden, while at Geneseo with his engine, getting ready to go with a train of cars to Salina after material, under the order of his engineer, went under his engine for the purpose of cleaning the ash-box. While in that position another train, operated by Bee-son & Selden, was backed against the train to which the engine was attached under which Busenbark was cleaning the ash-box. This caused the engine to move. Busenbark’s foot was crushed by one of the wheels of the engine. Subsequently it was amputated.
The petition alleged and the evidence tended to prove that a brakeman, or employé, of Beeson & Selden, whose duty it was to attend to the displaying of warning lights, failed to display any light or signal at the end of the train against which the other one backed. The petition alleged and the evidence tended to prove that both trains were negligently handled by the employés in charge thereof, and that the collision was caused by the negligence of such employés, as well as the failure to display any warning lights or signals. The petition alleged that J. H. Beeson and H. P. Selden were partners as Beeson & Selden in the work of construction. The petition nowhere alleged that Beeson & Selden were a railroad company, organized under the laws of this state, or any other state, or that they were a de facto railroad company. The evidence upon the trial did not tend to show that Beeson & Selden were a railroad company of this state, or of any other state. The court, among other instructions, gave the following:
“If the defendants were, at the time of the injury complained of, operating the Kansas & Colorado Railroad, or running trains upon said road for the purpose of carrying construction material, as well as freight and passengers when offered, not connected with the road, they would be liable under the statute for any injury which one employé of defendants might receive because of the negligence of another employé, without regard to who or what such negligent em ployé may be. The statute reads as follows: ‘ Every railroad company organized or doing business in this state shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employés, tó any person sustaining such damages/ And in order to be doing the business of a railroad company, and to be liable under this statute, it is not necessary that they should hold themselves out to be common carriers, or that they should be required to carry all freight and passengers presented. It is the character of the work done, rather than the particular manner in which it is done, or the quantity done, that should determine this question. Neither is it necessary that defendants should have absolute control and management of the road. It is sufficient that they actually operate trains upon the road, either by themselves, or with the cooperation of others.”
This instruction was not applicable under the petition or the facts disclosed upon the trial, and therefore was erroneous. Not only was it erroneous, but it was greatly prejudicial to the defendants. The statute referred to was passed in 1874. Its title is, “An act to define the liability of railroad companies in certain cases.” The statute so far modifies and changes the common law that a servant or employé of a railroad company may maintain an action against such railroad company for any injury received while in the line of his employment, through the negligence of a fellow-servant or employé engaged with him in the same common work of the master or employer, unless such injured servant or employé has himself been guilty of negligence or want of ordinary care, which has directly contributed to produce the injury complained of. Previous to the statute of 1874 the rule of law which prevailed in this state exempted from liability all employers, including railroad companies, for injuries to their em ployés caused by the negligence or incompetency of a fellow-servant, unless they had employed such negligent or incompetent servant without proper inquiry as to his qualification, or had retained him after knowledge of his negligence or incompetency. (Dow v. Railway Co., 8 Kas. 642; Railway Co. v. Salmon, 11 id. 83; 24 Am. Law Rev. No. 2, 175.) This was the rule of the common law. But this rule of the common law was abrogated by the statute of 1874 so far as it related to railroad companies organized in this state, or railroad companies doing business in this state. The statute of 1874 fixes a new liability upon railroad companies organized in this state and railroad companies doing business in this state. This statute is in derogation of the common law; therefore, it is not to be extended by implication or construction.
“As a rule of exposition, statutes are to be construed in reference to the principles of the common law. For it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the act did not intend to make any alteration, other than what is specified, and besides what has been plainly pronounced; for if the legislature had had that design, it is naturally said, they would have expressed it.”
Chancellor Kent says:
“ This has been the language of courts in every age, and when we consider the constant, vehement and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason, and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction.” (Potter’s Dwarris, Stat. 185.)
The statute of 1874 is to be construed strictly. It cannot apply to masters or employers not within its terms. Neither ean ^ construed to give protection to persons not in the employ of a railroad company. The statute has reference to servants and employ és of railroads, not to servants or employés of other masters, companies, or corporations. The statute does not include partnerships, or persons in the employ of partnerships; it does not include construction compames, or persons in the employ oi construction companies; it does not include bridge companies, or persons in the employ of bridge companies, although such partner ships and companies construct railroads, build bridges, and do other public work.
Statutes similar to the one referred to, changing the common-law rule between masters and servants, employers and employés, are in force in a number of the states of this country ; but with one exception, these statutes are all confined in their operation to railroad companies. The single exception, the Rhode Island statute, embraces only the cases of common-law carriers. (7 Am. & Eng. Encyc. of Law, 859; 24 Am. Law Rev. No. 2, 1890, p. 181.)
The legislature has full authority to extend the operation of the statute to all corporations, companies, masters or employers of every occupation or business. It has not seen fit to do so. It might very properly have extended the operation of the statute to all partnerships, masters, or others engaged in the work of operating trains upon railroads, or in constructing railroads, or other like work. It has not done so.
In various opinions of this court, we have frequently held that the statute applied to persons engaged in the hazardous work of operating trains upon a railroad; but in all those cases, we had reference to the employés of a railroad company organized in this state, or of a railroad company doing business in this state. (Railway Co. v. Haley, 25 Kas. 35; Railway Co. v. Mackey, 33 id. 298; Bucklew v. Railway Co., 21 N. W. Rep. 103.)
Again, we have held that when a railroad is being constructed, and is in the exclusive possession of and operated by a contractor for its construction, and the railroad company at the time the injuries complained of are committed has no control thereof, such company is not liable for the damages resulting from the operation of such railroad. (Railway Co. v. Fitzsimmons, 18 Kas. 34; Railroad Co. v. Willis, 38 id. 330.)
If the statute of ’1874 were extended so as to include the firm of Beeson & Selden and their employés, it must also be extended so as to include every firm, partnership, contractor, or private person having servants or employés at work on the track or in the yard of a railroad company. (Union Trust Co. v. Thomason, 25 Kas. 5; Railroad Co. v. Harris, 33 id. 416; Railroad Co. v. Koehler, 37 id. 463.) The statute does not go so far. The courts construe laws, but do not make them.
The trial court attempted to fix a liability on Beeson & Selden under a statute which has no application to them as masters or employers — they not being a railroad company organized in this or any other state. The general rule is, that he who engages in the employment of another for the performance of specified duties and services for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services. The perils arising from the carelessness and negligence of those who are in the same employment are no exception to this rule. If Beeson & Selden used due diligence in the selection of competent and trusty servants, and furnished them with suitable means to perform the service in which they employed them, and did not retain negligent or incompetent servants after knowledge or notice of their negligence or incompetency, they are not answerable to Busenbark or any other employé for any injury received by them, or either of them, in consequence of the carelessness of any co-servant or coemployé while they were engaged in the same service. Outside of the statute, Beeson & Selden were required to assume the duty toward their servants and employés of exercising reasonable care and diligence in providing them with a reasonably safe place at which to work, and also in furnishing them proper means or instrumentalities, such as engines, cars, oil, lights, etc., to work with. (Railroad Co. v. Holt, 29 Kas. 152; Railroad Co. v. Moore, 29 id. 632; Railroad Co. v. Fox, 31 id. 586; Railroad Co. v. Weaver, 35 id. 434; Railroad Co. v. Dwyer, 36 id. 69; Railroad Co. v. Wagner, 33 id. 660; Railroad Co. v. McKee, 37 id. 592.)
As the instruction complained of did not place the liability of Beeson & Selden upon the duty of master and servant under the common law, but solely upon a statute which has no application to them, and applies only to railroad companies organized in this state and to railroad companies doing business in this state, the case was not correctly submitted to the jury.
The judgment of the district court must be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This was an action in ejectment, brought by Alexander Winston against C. P. Burnell, to recover a quarter-section of land situate in Jewell county. The trial in the district court was with a jury, at the November term, 1887, and resulted in favor of the defendant.
The principal errors alleged by the plaintiff are based upon rulings of the court in charging the jury and upon the sufficiency of the evidence; but the condition of the record is such as to preclude an examination of some of the most important questions presented in the plaintiff’s brief. The record contains no recital that the copies of the pleadings found in the case-made are those which were filed in the district court, nor are any of the entries of the steps and proceedings taken in the case, and which appear to be copied in the record, properly described or identified. Although very defective in this respect, there is perhaps sufficient in the record, such as copies of file-marks, the titles to the various pleadings and orders, and the character of the subject-matter which they contain, to indicate that they belonged to and were filed as a part of the proceedings in the present case. We think there is at least sufficient in the record to resist the motion for a dismissal of the proceeding. We cannot, however, review the evidence to determine whether it is sufficient to sustain the verdict and judgment that were rendered, because the case-made as served contains no statement that it embraces all the testimony given on the trial. It has been repeatedly decided that a statement to that effect in the certificate of the judge, which is attached to the case-made, is not sufficient. (Eddy v. Weaver, 37 Kas. 540; Railroad Co. v. Grimes, 38 id. 241; Insurance Co. v. Hogue, 41 id. 524; Hill v. National Bank, 42 id. 364; Hogue v. Mackey, ante, p. 277; same case, 24 Pac. Rep. 477.)
It appears that Burnell, who was in the possession of the land in controversy, joined with his wife in the execution of a conveyance of the same to the plaintiff. It was in the form of a warranty deed, but Burnell claimed that the conveyance was intended as a mortgage to secure an indebtedness of $1,000 due from him to the plaintiff. This is the main issue in the case, and. the evidence thereon is conflicting and unsatisfactory ; but in the absence of all the testimony, the approved verdict of the jury is conclusive.
Complaint is made, however, of the charge of the court in respect to the measure of proof necessary to sustain the defense of Burnell. The plaintiff asked for an instruction that parol testimony to establish that an absolute conveyance was intended as a mortgage must be positive, and so clear as to leave no doubt as to the intention of the parties. Instead of giving that instruction, the court charged that “the burden ■of proving by preponderance of the evidence that said deed was intended only to secure the payment of money rests upon the defendant; and unless he has proved this by a clear preponderance of the evidence, you will find for the plaintiff.” A higher and more satisfactory character of proof is required to establish that an instrument or conveyance is not what it purports to be than is necessary in ordinary civil cases. ' Generally, a mere preponderance is sufficient; but when parties deliberately execute a written conveyance, there is a strong presumption that it expresses their intentions, and more than a bare preponderance of parol proof is required to remove this presumption, and to show a contrary intention. Some of the courts declare that in such cases the proof must be “clear”; others that it must be “convincing”; others that it must be “satisfactory”; and still others that it must be “clear of all reasonable doubt.” These expressions substantially convey the same idea and require the same degree of proof. To establish a fact by the clear preponderance of the evidence, the proof must be clear of reasonable doubt. We think the-instruction given was not erroneous. (McMillan v. Bissell, 63 Mich. 66; Sloan v. Becker, 34 Minn. 491; Gardner v. Weston, 18 Iowa, 535; Knight v. McCord, 19 N. W. Rep. 310; Miner v. Hess, 47 Ill. 170; Kent v. Lasley, 24 Wis. 654; Iron Co. v. Iron Co., 107 Mass. 290; Guernsey v. Insurance Co., 17 Minn. 104; Hopper v. Jones, 29 Cal. 18; McClellan v. Sanford, 26 Wis. 595; 1 Story, Eq. Jur., § 157; 1 Jones, Mortg. ch. 8 ; see also Gabbey v. Forgeus, 38 Kas. 62.)
There are numerous errors assigned on the refusal of instructions requested by the plaintiff, but these are not available. The record fails to show that all the instructions given are-preserved in the record, and therefore the court cannot say that those refused were not given, or that any error was committed by the refusal. See Kansas cases first above cited; also, Wilson v. Fuller, 9 Kas. 176; DaLee v. Blackburn, 11 id. 190; Ferguson v. Graves, 12 id. 39; Pac. Rld. Co. v. Brown, 14 id. 469; Bard v. Elston, 31 id. 274.
The objections to the ruling of the court on the admission of testimony are not material, and furnish no ground for a>. reversal.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Strang, C.:
This case comes here on error from the district court of Brown county. January 29, 1886, the plaintiffs obtained judgments against the Elevator and Mill Company, at Everest, Kansas, for $7,146.50. April SO, 1886, the said Elevator and Mill Company was dissolved by proceedings had in court. April 25,1887, the plaintiffs commenced suit in the court below, under ¶1204, General Statutes of 1889, to ascertain and establish the liability of the defendants as stockholders in said Elevator and Mill Company. February 22,1888, they obtained a judgment or order ascertaining and establishing such liability; and on the same day the plaintiffs issued their execution to Atchison county, Kansas, where, being indorsed “No goods,” it was, on the 24th day of said month, levied upon the land of the defendant Honnell. Pending the appraisement and sale of the land so levied upon, and before said land had been sold, the plaintiffs' were notified by the clerk of the district court of Brown county, whence the execution issued, that the money thereon bad been paid into court, and the plaintiffs were asked to return their execution, which they did, and on March 14 received by their attorney from the clerk of the court the amount of their judgment, less $843.08 — the clerk claiming that they were not entitled to the latter amount, because their judgment was so much too large. Bemis Brothers, who had a judgment in the same court against the Elevator and Mill Company, commenced suits in the district court in the same county, July 6, 1887, to ascertain and fix the liability of the same defendants as stockholders in the same company; and on August 31 the defendants Aiken and Hansen, having each a judgment against the Elevator and Mill Company, commenced their suits to ascertain and establish the liability of the defendant stockholders in said company. Bemis Brothers and Aiken and Hansen each obtained their judgments or orders ascertaining and fixing the liability of the defendant stockholders at the same term during which the plaintiffs obtained theirs. The defendants Aiken and Hansen, and Bemis Brothers, issued their executions on the 27th of February, and they were placed in the hands of the sheriff' of Brown county. On the 19th of March these executions were returned. On the 20th Bemis Brothers received from the clerk, out of the $843.08 in his hands, the full amount of their claim, and on the next day the clerk divided the residue between Hansen and Aiken. At the next term of the district court, May 9, 1888, a motion was filed in all the cases asking that each of the judgments therein be corrected, and that the whole sum of money paid into court by Honnell and Henney, $5,500, be pro-rated among all the said judgment creditors. This motion was resisted by the plaintiffs, but it was sustained. The court modified the judgment of plaintiffs by reducing it to the sum of $4,218.60. The court also pro-rated the $5,500 among all the judgment creditors, giving the plaintiffs $3,392.50 instead of $4,218.60.
The plaintiffs complain of the ruling of the court upon both branches of the motion. They say that the court had no right upon the motion as filed, at the time when filed, to modify their judgment. An examination of the plaintiffs’ petition shows that they claimed a judgment for $7,146.50, and $142 costs and interest, less a credit of $3,500. Without stopping to figure the exact amount plaintiffs thus claimed a judgment for, it is certain it was for a sum considerably less than the amount for which they recovered judgment. The judgment being for a sum larger than the plaintiffs claimed, with interest and costs, it appears upon the record that the judgment was too large, and for a sum in which the court was. not authorized to render it. The jurisdiction of the subject-matti r is limited by the plaintiffs’ claim in their petition, and if by mistake a judgment is rendered for a sum beyond the jurisdiction of the court in the case, the court undoubtedly may correct it on motion. The case of Tobie v. Comm’rs of Brown Co., 20 Kas. 14, settles the right of the court to correct its judgment at or after the term at which the judgment is rendered ; also Small v. Douthitt, 1 Kas. 335. The court therefore committed no error in modifying the plaintiffs’ judgment so as to make it correspond with the sum the plaintiffs had a right to recover.
The second question is one that has given us more trouble. It would seem that under the circumstances surrounding and attending this case the plaintiffs should recover the full amount of their modified judgment. But turning to the General Statutes of 1889, ¶4544, we find it reads as follows:
“When two or more writs of execution against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor shall be delivered to the officer on the same day, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all such executions, the amount made shall be distributed to' the several creditors in proportion to the amount of their respective demands. In all other cases the writ of execution first delivered to the officer shall be first satisfied. And it shall be the duty of the officer to indorse on every writ of execution the time when he received the same; but nothing herein contained shall be so construed as to affect any preferable lien which one or more of the judg ments on which execution was issued may have on the lands of the judgment debtor.”
This section provides that where two or more executions against the same debtor shall be sued out during the term in which judgment was rendered, or within ten days thereafter, no preference shall be given either of said writs. In this case all the judgments were rendered at the same term, and all the writs were issued out during the same term. It seems to us, that whatever would be the rights of the plaintiffs under the general authorities in relation to the distribution of funds recovered upon judgments against stockholders of a corporation, our statute above quoted applies under the circumstances of this case, and renders the fund raised upon the execution of the plaintiffs subject to a pro-rata distribution among all the creditors having judgments at the same term upon which executions were issued during the term.
It is argued that an order obtained in a proceeding instituted under ¶ 1204, General Statutes of 1889, to ascertain the liability of stockholders of a corporation, is not a judgment; that the proceeding under this statute is not an ordinary action at law or proceeding in equity, but is a special proceeding to ascertain the amount of a liability that does not grow out of the relation of debtor and creditor, but exists solely by the terms of the statute, and that therefore the provisions of ¶4544 above quoted do not apply. The language of ¶ 1204 is:
“If any corporation created under this or any general statute of this state, except railway or charitable or religious corporations, be dissolved leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit; aud if judgment be rendered and execution satisfied,” etc.
Suits may be brought, a judgment recovered and execution issued under this statute. If the legislature did not contemplate an action and a judgment under the statute, it was very unfortunate in the selection of its language. We feel con strained to say that the result of a proceeding under the statute is a judgment, and that executions on such judgments are subject to the provisions of ¶4544, General Statutes of 1889. We therefore 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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Opinion by
Simpson, C.:
The first error assigned by the railroad company for reversal is the ruling of the court excluding from the consideration of the jury the condemnation proceedings which were offered as a bar to the action. It is asserted in the brief of counsel for the defendant in error that these proceedings are void for the following reasons: First. No written notice, as provided by § 49, ch. 23, Comp. Laws of 1885, was given to Abbott, who at the time of the construction of the road and for some time prior thereto had occupied the land as a homestead for himself and family. That section provides: “All companies shall give written notice to all actual occupants of the land over which the right of road is so designated, and which has not been purchased by or donated to the corporation.”
The exact question presented by this contention was decided by this court in the case of Gulf Rld. Co. v. Shepard, 9 Kas. 647. Shepard brought an action against the Gulf Railroad Company for certain alleged trespasses. The railroad company answered, and among other defenses justified under condemnation proceedings. At the trial the presiding judge excluded them, and held that they were void, the principal objections being that they did not show the service of a written notice on the actual occupant, and that a map and profile of the route had been filed in the office of the county clerk. The conclusion of this court was, . . “at the notice, map and profile need not be given or filed prior to the commencement of the proceedings for condemning the right-of-way. Hence these things do not vitiate the condemnation proceedings.
Second. Because the land of the plaintiff below was not properly described. In the copy of the report of the commissioners to make the award it is described as the southwest quarter; the map on file describes it as the southeast quarter of section 32, township 29, range 4. The commissioners were on the land, and saw Abbott, who pointed out the lines of his quarter-section; lie describes it in his petition as the southeast quarter, and the description in the report may be properly regarded as a clerical error.
Third. All these proceedings are fixed by the record in the county of Sedgwick, and it sufficiently appears that both the land and the condemnation proceedings were all located in that county.
Fourth. The description of the land taken is definite and certain enough, according to the case of Hunt v. Smith, 9 Kas. 137.
Fifth. Because the defendant never caused to be filed in the office of the register of deeds of Sedgwick county a certified copy of the commissioners’ report, as required by § 84, ch. 23, Comp. Laws of 1885.
The fact is that a certified copy of the report was filed in the office of the register of deeds on the 13th day of December, 1886, but this was after the time fixed by statute. We cannot see how this would affect the defendant in error, but it is plain that it might affect the rights of third parties if they intervened intermediate the expiration of the ten days and the date of the actual filing. So far as the defendant in error is concerned, the important date to him was the time of filing the report of the commissioners in the county clerk’s office, as his appeal must be taken within ten days after that filing. The defendant in error contends that the filing of the certified report in the office of the register of deeds, is a condition precedent to the right to occupy and use the same for railroad purposes. There is no authority cited to sustain such a claim, and it seems to us to be a very strict and inequitable construction of the section. After the report of the commissioners is filed with the county clerk, it is made the duty of that officer to prepare and file with the county treasurer a copy thereof. If the railroad company, within ninety days from the filing of the copy with the county treasurer, shall pay the full amount of the appraisement, the county treasurer must certify the fact of payment upon the copy of the report under his hand and seal. It is the copy of the report thus certified that the railroad company is required to file for record in the office of the register of deeds. The failure of the railroad company to file a certified copy of the commissioners’ report with the register of deeds within the time prescribed by the statute did not in this case injuriously affect the landowner, or prejudice his rights in any way. Under the circumstances, we should hesitate to give the section the construction urged. We find no case in point. The nearest approach to an analogous proposition is the decisions of the supreme court of the United States in the cases of Londsdale v. Daniels, 100 U. S. 117, and Johnson v. Towsley, 13 Wall. 73. These two cases hold, that notwithstanding the preemption laws require a declaratory statement to be filed by the claimant within three months from the time of settlement, yet it is valid if made within any time before another party commences a settlement or files a declaration. Our statutes require chattel mortgages to be filed forthwith for record; but this is held to be for the protection of creditors and third parties, and the mortgage is valid as between the parties without record. Again, it has been repeatedly declared by this court, that after the award of commissioners has been filed with the county clerk, and the amounts named therein deposited with the county treasurer, the amount of compensation becomes conclusive, unless either party appeals from the award within ten days. The requirement of the constitution of the state is, that compensation be first made, or secured by a deposit of money, before occupation by the railroad companies, and we do not believe that the legislature intended by this provision to add to these a record of the proceedings in the register’s office, before railroad companies should commence the work of permanent construction; at least these considerations influence us not to adopt in this case the strict construction of § 84 applied by the trial court. In all other respects the condemnation proceedings seem to conform strictly the requirements of the statute, and we think the court committed material error in excluding the record. For this error we recommend that the judgment of the district court be reversed, and the cause remanded, with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring.
|
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