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The opinion of the court was delivered by Kingman, C. J.: The errors alleged in this case are precisely the same as those decided in the case of Wiley v. Keokuk, ante, 94, with this exception; the question as to the sufficiency of the cause of challenge of the juror does not arise in this case. For the reasons given in that case, the judgment in this case is affirmed. Safford, J., concurring.	[ -80, -22, -15, -98, 8, -30, 104, 26, -93, -79, -90, 83, 45, -102, 20, 125, 123, 29, 80, 98, -58, -77, 23, -15, -78, -45, -5, -59, 49, 92, -10, 116, 76, -80, -54, -11, 102, -56, 69, 82, -122, -124, 41, -55, 91, -16, 52, 118, 20, 11, 49, -106, -29, 42, 26, -57, 105, 40, -54, 99, 80, -80, 12, 13, 77, 20, -77, 38, -104, -128, -40, 46, -48, 49, 1, -40, 114, -90, -62, -44, 109, -103, 13, 98, 106, 1, 29, -17, -72, -104, 38, 94, -99, -90, -74, 24, 75, 1, -106, -99, 118, 16, 14, -2, -27, 76, 25, 108, 1, -113, -110, -79, -115, 60, -110, -54, -53, 69, -112, 113, -59, -22, 93, -105, 27, 91, -121, -98 ]
The opinion of the court was delivered, by Valentine, J.: This case was commenced originally before a justice of the peace, whence it was appealed to the district court, and from the district court to this court. The qustions to be decided are three: I. The sale of spirituous, vinous, fermented and other intoxicating liquors without a license, is a criminal offense, and a misdemeanor; (Gen. Stat. p. 400, §3; p. 820, §§ 2, 3, 4, 5, 6; p. 878, §1; p. 383, §§ 307, 308; Laws of 1869, p. 149; State v. Muntz, 3 Kas., 387;) and such offense may be prosecuted like any other criminal offense of like magnitude. II. After the State has proved that the defendant sold lager beer, the State may prove, (if it be ® ' J r ? \ denied by the defendant,) that lager beer is . . . .. an intoxicating liquor. The witness "Wood, who bought the beer from the defendant, testified that he called for lager beer, got what looked and tasted like lager beer; and that he thought it was lager beer. This was evidence, of itself, sufficient to prove prima facie, that the beer sold was lager beer; (1 Iowa, 374, 379;) and sufficient as a foundation to give the State the right to prove, when denied by the defendant, that lager beer is an intoxicating liquor. It was an admission Ion the part of the defendant, when he sold the beer, that it was lager beer. Wood also testified that it was like lager beer that he had drank in other places. There was other testimony tending to show that it ivas lager beer; and oven the defendant’s testimony tended to prove that it was simply lager beer of a weak kind, pos sessing less malt, less hops, and less alcohol than a good quality of lager beer. The defendant calls it new beer or young beer. III. Under the statutes of this State, all fermented liquor is presumed to be intoxicating. If the defendant denies that the fermented liquor sold by him is intoxicating, it devolves upon him to remove the presumption of the law by evidence. These are all the questions really raised by the record. ~We think there was evidence sufficient to sustain the verdict of the jury. On several questions we cannot tell whether the court below committed error or not. For instance, we cannot understand upon what principle Macke & Co.’s x j. j. advertisement in the Emporia Tribune was introduced in evidence; and there are other matters left unexplained. But as neither the evidence nor the charge of the court is all brought to this court, it will be presumed that the action of the court below was correct. As to some of the questions that the defendant has attempted to raise, we would answer as we did in the case of Topeka v. Tuttle, 5 Kas., 311: A court is _ _ . . , not bound to repeat instructions to the jury, in the same or different language, or to give the law to the jury more than once; nor is the court bound to give the instructions in the exact language of the party asking them, but may give them in different language. The judgment of the court below is affirmed. All the Justices concurring.	[ -15, -22, -35, -98, 58, 96, 34, -8, 2, -11, -73, 115, -23, -46, 5, 97, -77, -19, 116, 90, -61, -122, 23, -63, -106, -5, -37, -57, -79, 111, -60, 100, 13, -80, 67, 117, 102, -54, -63, 92, -118, 5, 57, -56, 82, -104, 52, 59, 66, 11, 97, -97, -9, 44, 28, -61, 41, 44, -37, 61, -16, -72, -104, -3, 37, 22, -93, 34, -100, -125, -40, 62, -112, -79, 9, -24, 123, -76, 6, -12, 15, -103, -115, 98, 103, 37, 29, -17, -20, -71, -83, 78, -67, -89, -40, 25, 97, 40, -100, -35, 54, 48, 6, 122, -21, 87, 27, 124, -122, -62, -92, -111, -125, 32, -42, 87, -53, -89, 33, 85, -43, 60, 92, 85, 48, 25, -114, -76 ]
The opinion of the court was delivered by McFarland, J.: Guillermo Gallegos appeals his jury trial conviction of voluntary manslaughter (K.S.A. 21-3403)., The sole issue raised is whether the district court erred in refusing to suppress defendant’s confession. The, pertinent background facts may be summarized as follows. On August 28, 1990, the skeletonized remains of Jesus Orozco Castillo were found by a bridge in Kiowa County. The cause of death was a gunshot wound. On June 17, 1991, Gallegos was charged with the felony murder of Castillo, and a warrant for his arrest was. issued. On September. 24,. 1991, Gallegos was. stopped in .Pocatello, Idaho, for a speeding.violation. An..NCIC check revealed, the Kiowa County fugitive warrant, and Gallegos was arrested thereon. In a telephone conversation between the Kiowa County Sheriff’s Department and the Pocatello Police Department, the latter was requested to obtain a statement from Gallegos. During the interview, Gallegos confessed to having killed Castillo. The admissibility of this statement is the subject of this appeal. Upon Gallegos’ return to Kansas, the charge was amended to first-degree premeditated murder. Gallegos was convicted in a jury trial of the lesser included offense of voluntary manslaughter. Gallegos contends the trial court erred in: (1) finding that his confession was given freely, voluntarily, and intelligently after having been advised of his Miranda rights and (2) refusing to suppress his confession. Specifically, Gallegos argues that he did not give an effective Miranda waiver as: (1) his request to know the charge against him was not honored and (2) language and cultural barriers existed which precluded an effective waiver under the totality of the circumstances herein. We will first set the scene for the interrogation. Present were Pocatello Police Detective Ken Lynn and Pocatello Police Lieutenant Garry Pritchett. Lynn asked the questions, assisted by Pritchett, who served as interpreter. Gallegos is a native of Mexico whose grasp of the English language is limited. After establishing Gallegos’ language problems, the interview was conducted in Spanish. Considerable time was spent in explaining to Gallegos his Miranda rights and in being sure he understood each right thereunder. During the process, Gallegos was told he was wanted by the “police” in Kiowa County, Kansas. He asked what the police wanted him for in Kansas — what the warrant was for. Without answering this inquiry, the explanation of the Miranda rights was completed. Gallegos then agreed to talk to the officers. The first question was an inquiry to Gallegos as to whether he knew why an arrest warrant had been issued for him. Gallegos’ response was a lengthy narrative about a cousin who was involved with a married woman and a problem Gallegos had over not showing up in court over a complaint about his having walked around in his own residence without pants. The Pocatello police ultimately tired of this narration and stated that was not why Gallegos had been arrested. Gallegos was told a man had been killed in Kansas and that Gallegos had been named as the killer. Gallegos supplied the name of the deceased, admitted killing him, and stated he had killed him because of an incident that had occurred some 10 years earlier when both men had been residents of a small village in Mexico. Defendant contends that because under the Sixth Amendment he had a right to be informed of the charge against him, he could not intelligently waive his Sixth Amendment rights without this information. The trial court relied upon Patterson v. Illinois, 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988), and State v. Hamons, 248 Kan. 51, 805 P.2d 6 (1991). In State v. Hamons, 248 Kan. 51, defendant had been advised of his Miranda rights approximately one minute into the interview. He also signed a waiver. He argued that his waiver was neither voluntary nor made with full knowledge of all relevant facts, to wit: that he had been charged with first-degree murder. 248 Kan. at 55. Of the two detectives interrogating the defendant, one learned of the murder charge near the end of the interview; the other detective learned of the charge after the interview. 248 Kan. at 55-56. The trial court found that the defendant’s statement “was given freely, voluntarily, and intelligently after he had been advised of his constitutional rights.” 248 Kan. at 56. We reasoned: “The Fifth Amendment right against self-incrimination requires that suspects be accorded the assistance of counsel during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 469, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). “The Sixth Amendment right to counsel arises when judicial proceedings have been initiated against a suspect ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ Kirby v. Illinois, 406 U.S., 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972); see State v. Norris, 244 Kan. 326, 331-33, 768 P.2d 296 (1989). A defendant’s statement elicited without the presence or aid of a lawyer after attachment of Sixth Amendment protections may not be used against the defendant at trial unless the State can show that the accused knowingly, voluntarily, and intélligendy waived the right to counsel. See Brewer v. Williams, 430 U.S. 387, 404-05, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 (1977). “In Patterson v. Illinois, 487 U.S. 285, 299-300, 101 L. Ed. 2d 261, 108 S. Ct. 2389 (1988), the United States Supreme Court held: ‘So long as the accused is made aware of the “dangers and disadvantages of self-representation” during post-indictment questioning, by use of Miranda warnings, his waiver of his Sixth Amendment right to counsel at such questioning is “knowing and intelligent.” ’ “Because the defendant in Patterson was informed that he had been formally charged, the United States Supreme Court did not address the first impression question presented to this court in the case at bar: Whether an accused must be told that he or she has been formally charged before a post-complaint Sixth Amendment waiver will be valid. See Patterson, 487 U.S. at 295 n.8. “Hamons relies on United States v. Mohabir, 624 F.2d 1140 (2d Cir. 1980), and Carney v. LeFevre, 611 F.2d 19 (2d Cir. 1979), cert. denied 446 U.S. 921 (1980). In those cases, the Second Circuit Court of Appeals held that an accused must be informed of die indictment before a post-indictment Sixth Amendment right to counsel waiver would be valid. The court in Mohabir and Carvetj reasoned that waiver of the Sixth Amendment right to counsel required a ‘higher standard’ than Fifth Amendment Miranda warnings. 624 F.2d at 1148; 611 F.2d at 22. “The United States Supreme Court in Patterson expressly rejected the Second Circuit’s rationale in Mohabir. 487 U.S. at 295 n.8. “In Riddick v. Edmiston, 894 F.2d 586 (3d Cir. 1990), the Third Circuit Court of Appeals addressed a claim similar to the one Hamons advances in this appeal. The court in Riddick rejected the reasoning of Mohabir and Carney, observing that the United States Supreme Court had concluded in Patterson that there is no analytical distinction between the validity of a Fifth Amendment waiver and a Sixth Amendment waiver. 894 F.2d at 587-88. In Riddick, defendant validly waived his Sixth Amendment right to counsel when he was given Miranda warnings without being told that he had already been indicted for murder. 894 F.2d at 588. “In Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), the United States Supreme Court commented, ‘[W]e have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or to stand by his rights.’ 475 U.S. at 422. “In the case at bar, the detectives testified, and the trial court found, that they did not know Hamons had been charged until the end, or near the end, of the interview. There is no indication that the detectives intended to deceive Hamons. "The Miranda warnings advised Hamons of his right to remain silent and of his right to counsel. Hamons was informed that any statement he made could be used against him arid of the consequences of waiving his right to counsel. We hold that Hamons validly waived his Sixth Amendment right to counsel after he was given Miranda warnings but before he was told that he had already been charged with murder.” 248 Kan. at 56-57. Hamons knew the subject of the inquiry, the homicide of Julie Solaberry, but was not advised he had been charged with her murder. He did not know he was an accused rather than a suspect. In Hamons, the interrogators did not know this fact either until towards the end of the interview. We found no indication of an intent to deceive Hamons. While the facts in Hamons were somewhat different, the same analysis applies. There is no indication in the case before us that the officers did deceive or attempt to deceive Gallegos as to the charge against him. Before the waiver, Gallegos knew he was under arrest on a Kiowa County, Kansas, warrant. Before there was any questioning of Gallegos on the homicide, he was advised that he was under arrest for the killing of a man in Kiowa County. Gallegos’ statement disclosed that he knew, prior to his arrest, that he was a suspect in the Castillo homicide as he had been so advised in a telephone call from a relative. In this telephone conversation, Gallegos was informed that a relative of the deceased had advised Kiowa County law enforcement that Gallegos was the killer. As in Hamons, Gallegos was adequately apprised of his Miranda rights and waived his right to counsel and to remain silent. Under the totality of the circumstances herein, we find no error or abuse of discretion in the trial court’s determination that the failure of the officers to answer Gallegos’ question about the charge against him did not invalidate his waiver. Gallegos next contends that language and cultural barriers existed which precluded an effective waiver of his right to counsel and to remain silent. In State v. Lilley, 231 Kan. 694, Syl. ¶ 6, 647 P.2d 1323 (1982), we held: "When the trial court determines at a hearing that a defendant’s extrajudicial statement was freely, voluntarily and intelligently given and admits the statement into evidence at trial, the appellate court will not reverse such determination if it is supported by substantial competent evidence.” As previously stated, Gallegos is a native of Mexico with limited understanding of the English language. He was interrogated in Spanish. K.S.A. 75-4351 provides, in pertinent part: “A qualified interpreter shall be appointed in the following cases for persons whose primary language is one other than English, or who are deaf or mute or both: (e) when such person is arrested for an alleged violation of a criminal law of the state or any city ordinance. Such appointment shall be made prior to any attempt to interrogate or take a statement from such persons.” K.S.A. 75-4353(a) provides that the interpreter so appointed shall not be “interested in the outcome of the proceeding.” The interpreter used herein was a Pocatello police officer who was assisting the officer conducting the interrogation. We have a videotape of the interview and a transcript thereof. There is no claim that any incorrect translation occurred. Defendant contends the Kansas statutes should be the applicable standard for the interrogation herein. We do not agree. The interrogation procedure utilized by the Idaho officers was not contrary to any Idaho law. The policy behind the exclusionary rule is to deter unlawful police activity. State v. Grissom, 251 Kan. 851, Syl ¶ 24, 840 P.2d 1142 (1992). No unlawful police activity is involved herein. To extend Kansas laws relative to interpreters to whatever jurisdiction a particular interview occurs in would be unreasonable. Police officers can hardly be expected to be familiar with the laws of all 50 states. The interview herein was conducted in a low-key, noncoercive manner. Gallegos was adequately advised of his constitutional rights and elected to talk with the officers. A full pretrial hearing was had on the motion to suppress. There is substantial competent evidence supporting the trial court’s determination that Gallegos’ confession was freely, voluntarily, and intelligently given and the admission of the same into evidence. We find no error in such determination or the admission of the confession into evidence. The judgment is affirmed.	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The opinion of the court was delivered by Safford, J.: This was an action brought by parties in possession of real estate, for the purpose of determining an adverse estate or interest therein, and under the authority of section 569 of the code of 1862; (§ 594, civil code of 1868, p. 747.) The cause was submitted to the court below, and judgment rendered against the plaintiffs, now defendants in error. Thereupon said plaintiffs demanded a new trial of the issues in said cause, and without any showing therefor, claiming a new trial as a matter of right under the statute. (Sec. 574, code 1862, and § 599, code 1868.) Such new trial was granted, and the defendants below, Northrup & Chick, duly excepted. We are of the opinion that the court erred in the granting of a new trial, and for the reason that the sections last referred to are not applicable to a ' case °f this kind. If a new trial was desired in this case, and grounds existed therefor, a motion showing such grounds should have been made as in ordinary cases under the code; §§306 to 310. But the point made in this case has already been decided by this court in the case of Swartzel v. Rogers, 3 Kas., 374, and to such case reference may be had. The order of the court below granting a new trial must be reversed. All the Justices concurring. [* Note. — That part of the opinion of the court in Swartzel v. Rogers, (page 879, 8 Kas.,) adapted to the code of 1868, is as follows: u Article 24 of the code, §§ 594 to 600, provides for two classes of actions ‘ concerning real propertyone, when suit is brought by a person in possession against a person who claims an interest adverse to him, for the purpose of determining such interest; the other, where suit is brought to recover the possession of lands. The latter is, by the code, (§595,) denominated ‘an action for the recovery of real property.’ No other action concerning real property is so designated by the code; and § 599, which authorizes another trial, upon the demand of tfye defeated party, applies to this class alone. The proceeding in the court below was not * an, action for the recovery of real property; and consequently not within the meaning of that section.” — Sec. 594, above cited, G-en. Stat., p, 747, seems to be out of place; or rather, it ought not to be grouped with the other sections (595 to 600 inclusive) of said Article 24. The actions authorized by said §594 are equitable, as, to “ remove a cloud,” or to “quiet title.” Nash’s Pleadings, ch. 39, p. 653, and cases cited; also, Stridde v. Saroni, 21 Wis., 173; Grimmer v. Sumner, id., 179: In Wisconsin the plaintiff must hold the legal title, as was formerly the case in Ohio.’ Not so in Kansas. But the plaintiff, to maintain an action under § 594, must be in actual possession of the property in controversy, either by himself or tenant; and the object of the action is to “ determine” the adverse interest or estate in such property which the defendant “ claims” to the injury or prejudice of the plaintiff’s right or title. Sections 595 to 600 relate solely to actions of “ ejectment,” called therein actions “ for the recovery of real propertyand not one of those sections has any reference or application to said §'594, nor to actions brought under said § 594-REPORTER.]	[ -16, 122, -36, 46, -118, 96, 34, -104, 75, -31, -90, -45, 45, -53, 20, 49, -13, 105, 96, 105, -41, -78, 23, -125, -10, -77, 83, 95, -80, -51, -25, 118, 76, 32, -54, 117, 70, -32, -59, 92, -118, -115, 8, 77, -39, 96, 48, 43, 86, 11, 1, 94, -29, 40, 25, -57, 72, 40, -53, 61, 81, -72, -102, 13, 127, 6, 33, 38, -36, 67, 74, 46, -112, 53, 0, -24, 115, -74, 22, 84, 101, -101, 9, 98, 102, 0, 69, -17, -8, -104, 38, -36, -115, -89, -48, 24, -54, 0, -74, -97, 54, 16, 39, 118, -17, -43, 25, -20, 5, -117, -106, -79, -25, 114, -112, 67, -62, 3, -80, 117, -50, -96, 92, 71, 115, -101, -114, -105 ]
The opinion of the court was delivered by Davis, J.: The defendant, David E. Rakestraw, was convicted of the second-degree murder of Joseph D. Harrison. He appeals, claiming numerous errors, one of which causes us to reverse and remand for a new trial. In his first claim of error, the defendant contends that the court erred by admitting his redacted statements of the events that occurred on the evening Harrison was killed. We agree. David Rakestraw and Richard Billingsley were charged with second-degree murder in the death of Harrison. Harrison was beaten to death during the early morning hours of July 16, 1991, in Wyandotte County, Kansas. He died as the result of internal bleeding that resulted from large tears in the membrane that held his small bowel in place inside his abdomen. The defendant and Billingsley were tried together. The jury found the defendant guilty but acquitted Billingsley. The defendant presented no evidence at trial. Steve Harris, a friend of the defendant, testified at trial that he witnessed the incident. Harris initially was charged with aiding a felon because he gave a false statement to the police immediately after the incident. The charges against Harris were dropped in exchange for his testimony at trial. Harris was the State's key witness and testified that he saw Billingsley and the defendant beat and kick the victim. He testified that the defendant threw the first punch after an exchange of words. When the victim threw the defendant on the ground, Harris testified that Billingsley got involved in the fight and the two men continued to beat Harrison even after Harrison tried to walk away and after he lay helpless on the ground. The police responded to a report that there was a body lying in the street at the trailer court where the beating had occurred. When the responding officer saw the victim, he called for emergency medical assistance. The victim was dead when the ambulance arrived. Harris and the defendant initially told the police that three Mexicans in a yellow car beat Harrison. Harris later told the police essentially the same information to which he testified at trial. The defendant also later changed his first story. Detective Clyde Blood testified about the defendant’s out-of-court statement concerning the fight. Blood testified that the defendant told him that the fight started when the victim swung at him and that he hit and kicked the victim. This, however, was a redacted version of the statement that the defendant actually gave to the police. The defendant’s complete statement included information about Billingsley’s involvement in the fight. When Blood testified about Rakestraw’s statement, however, he omitted all information from the defendant’s statement relating to the co-defendant Billingsley. The redacted statement forms the basis for the defendant’s first claim of error. He contends that the admission of the redacted statement distorted the truth so as to deny him a fair trial. Billingsley presented an alibi defense. He and several witnesses testified that he was at the Kansas City Royals baseball game on the night of the beating. Billingsley testified that he knew Harrison and that Harrison was alive when he last saw him that night. He testified that when he arrived at the trailer park after leaving the game, he went to his sister’s trailer with his brother-in-law to have a beer and talk about the game. His brother-in-law had only one beer, so Billingsley went outside to get a beer from Harris and the defendant. They got him a beer, and they talked for awhile. The victim, Harrison, and his friend Ron Burk, later came up and asked for a beer. Harris gave Harrison and Burk each a beer, and they sat on Burk’s car drinking it. Billingsley testified he then went inside to see what his brother-in-law was doing and the next thing he remembered was waking up the next morning. Billingsley’s sister testified that when she arrived home from a movie that evening Billingsley was “passed out” in a chair. Billingsley’s brother-in-law testified that Billingsley fell asleep in the chair about 30 minutes after they got home from the ball game. Billingsley’s theory at trial suggested that maybe Harris and the defendant beat Harrison and that Harris was trying to blame it on Billingsley. Billingsley’s counsel elicited testimony that Harris had been friends with the defendant since they were children but had known Billingsley for only a few days before the beating. He also highlighted Harris’ testimony that he did not intervene to help his good friend even when Harrison was getting the better of him in the fight. Counsel also highlighted the fact that Harris had blood on his face, shorts, shoes, and legs, noting Harris’ explanation was that all of that blood had splattered on him because he was standing near the victim when Billingsley kicked the victim one time. The defendant initially denied any involvement in the beating but then gave a statement to Detective Blood concerning his involvement and Billingsleys involvement in the beating. In his complete statement, the defendant minimizes his own actions and essentially blames Billingsley for Harrison’s death. Because the first error centers upon this statement, we set forth in full the statement given by die defendant to Detective Blood. “Q: What is your full name? “A: David E. Rakestraw. “Q: When and where were you bom? “A: Kansas City, Missouri I think. I’m pretty sure. 11-15-70. “Q: Where do you live and what is your telephone number? “A: 1911 Merriam Lane, no phone. “Q: With whom do you live? “A: By myself. “Q: VWiere are you employed and how long have you worked there? “A: AJM Packing Corporation, I worked there for six months. I’ve been hired on for three through temporary service and then I got hired by AJM for the past three months. “Q: Have you been advised that you have the right to remain silent; that any statement you make can be used against you as evidence in court; that you have the right to the presence of an attorney, either retained by you or one appointed for you without cost and that the attorney can be present while you are being questioned? “A; Yes. “Q: Do you understand your rights? “A: Yes. “Q: And are you giving this statement voluntarily of your own free will? “A: Yes. “Q: David, were you involved in an altercation in Sunflower trailer park in the 1900 Block of Merriam Road? “A: Yes. “Q: I talked to you earlier this morning and took a statement from you. Was that a true statement? “A: No. “Q: Would you tell me now what happened? “A: Yes. Well, last Saturday night this guy from the trailer court came up and started mouthing off to a friend of mine and his friends (Steve Harris and Steve was there and I don’t know the other guys’ names). And I guess they got in a fight. They didn’t want the guy trailer park back up to the other trailer. So he came up there last night and started mouthing .off to me, Steve and Rick and two other guys that was there. And, ah, they was egging me on to fight him, kick his butt or something and I didn’t want to till the night went on then I just, don’t know why but I just swung at him. He threw me on the ground and I got back up a little bit madder. I hit him a couple of times and he fell on the ground and he got up and started walking off and Rick grabbed hold of him threw him on the ground kicked him in the head a couple of times and I kicked him in the ball and I suppose I kicked him in the head a couple of times. And then I kind of cooled off and wanted the guys to just go and leave him there but then Rick kept on kicking him, kicking him, kicking in the head and ah, I got started getting worried and went over to check his pulse and while I was checking his pulse to make sure he was alive Rick kept on kicking him. He was still alive and I was telling Rick to cool it off. There was this lady in the trailer court telling Rick to cool it off, we all was. And then she decided to call the ambulance something like that. We left there for a couple of minutes. I went back over there and he felt kind of cold. She called the ambulance and the police came down and I went back to my place and went ah, soaked my shirt in the sink and got on a clean t-shirt and washed up a little bit while the cops was going to come. While I was doing all this Rick went back over there was still kicking on him, he was having a good ole time on him. Took his wallet and seen if he had any money and checked his pockets and the police came and I walked over to the police car and I started telling a bunch of lies actually trying to cover for Rick cause I knew the guy was about gone. That’s about it. “Q: Who is Rick? “A: He’s a guy that lived in the trailer court I don’t know what trailer he lives in. I’m pretty sure he lives there cause he’s around there a lot. “Q: Do you know his last name? “A: No. “Q: Describe him. “A: He’s got like three teeth missing in his right upper teeth, sandy blonde hair, about 6T”, medium built, about mid 20’s . . . 25-26 something like that, moustache I think. He had on jeans and t-shirt, I didn’t really notice and I think a pair of boots. “Q: Does he have a motor vehicle? “A: I don’t think so. “Q: Do you know if he works anywhere? “A: No, I don’t know. “Q: Did you receive any money that was taken away from the victim? “A: No. “Q: Do you know how much money was taken from the victim? “A: I think they said about $1.26, something like that. “Q: How did Steve Harris participate in that incident? “A: He pretty much stayed back but I wasn’t paying attention to how he was acting. He just stood back. “Q: At any time did you see Steve Harris assault the man in any way? “A: No. “Q: When you said that you kicked him in the balls, and in the head, did you kick him in the stomach area? “A: No. “Q: Did you see Rick kick him in the stomach? “A: I don’t know. He was kicking him everywhere. He was going nuts on him. “Q: Would you estimate for me the number of times that Rick kicked him? “A: I couldn’t know really, it was so many times. He was laughing and kicking him. “Q: Do you know if Steve received any money? “A: I don’t know. “Q: Earlier you stated that there was a woman that was telling you all to cool it? “A: Telling Rick to cool it. “Q: Was this the same lady that called for the ambulance? “A: Yes. “Q: Were there any other people outside watching when that incident occurred? “A: I don’t think so. “Q: How many people, all together, was there when the altercation started last night? “A: Just me, Steve, Rick and that one guy that got beat up. “Q: Were you wearing the same tennis shoes that you turned to Det. Deason and myself this morning? “A: Yes. “Q: And the t-shirt that was recovered by the property officer last night was the t-shirt you were wearing? “A: Yes. “Q: And you stated that you took that t-shirt off and was soaking it in the sink? “A: Yes. “Q: Were any weapons used other than your hands and feet? “A: No. “Q: Did you suffer any other injuries during the struggle? "A: No. “Q: Other than the scrape on your knee? “A: Yea, that was it. “Q: Are you aware of any injuries that Rick may have suffered in the struggle? “A: I don’t know. “Q: Have you had contact with Rick since that incident occurred? “A: No. “Q: Was Rick standing around with you or in the vicinity when the police were there last night? “A: Yes. “Q: Are you afraid of Rick? “A: After last night I am. “Q: At the time this incident occurred, were you under the influence of drugs or alcoholic beverage? “A: Yes, alcohol. We had been drinking beer. “Q: At the time of this statement are you under the influence of drugs or alcoholic beverage? “A: No. “Q: Was there a white over yellow vehicle in the area at the time this incident occurred? “A: No. “Q: Do you know anyone who owns or operates a vehicle of that description? “A: No. “Q: Is there a white over yellow vehicle of any kind involved in this incident in any way? “A: No. “Q: Is that just a vehicle description that you worked up to throw us off track? “A: That one vehicle that came down Saturday night and started some trouble. “Q: Was this at another location other than your and Steve’s house. “A: Yes, some place else in the trailer park. “Q: It didn’t have anything to do with you, Steve, Rick or our victim? “A: No. “Q: Do you know a man named Joseph D. Harrison? “A: No. “Q: Do you know the name of the person you assaulted along with Rick? “A: No. “Q: Is there anything else you can tell us that would aid us in this investigation? “A: No, I think that will be all." Billingsley sought to limit the prosecution from admitting any portion of the defendant’s statement concerning Billingsley’s participation in the beating. He did so by a motion in limine and on the basis of Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), and our adoption of the Bruton holding in State v. Rodriquez, 226 Kan. 558, 601 P.2d 686 (1979). In Rodriquez, we said that “[a] defendant is deprived of his rights under the confrontation clause of the Sixth Amendment to the United States Constitution where the extrajudicial statement of a non-testifying codefendant inculpating the defendant is admitted, although an instruction is given limiting the use of the statement to the codeféndant.” 226 Kan. 558, Syl. ¶ 1. The trial court granted Billingsley’s motion to exclude “any mention of the defendant Richard Billingsley when questioning the detectives about the defendant David Rakestraw’s statement.” Before trial and at trial, Rakestraw objected to the admission of any modified version of his statement because the modified version that omitted reference to Billingsley presented an inaccurate view of the defendant’s statement. The trial court proposed to allow Detective Blood to testify that Rakestraw told him that Rakestraw “kicked him (the victim) in the balls and kicked him in the head several times.” On cross-examination, Blood clarified that Rakestraw said he kicked the victim “in the balls” and in the head a couple of times but did not kick him in the stomach. Prior to admitting this evidence, the following exchange took place between defense counsel and the court: “THE COURT: Let me ask you this. What is your legal objection? “MR. SUTHERLAND: By picking and choosing parts out of this statement, we’re giving the jury an inaccurate description of what my client did in response to what was going on. To me he’s not testifying as to what he told him. He’s taking out bits and pieces of what’s being told and thereby not giving the true statement that my client made. I’m assuming I can’t cross-examine him on these parts of the statement because you get back into the same situation that I’m sure Mr. Duma [counsel for Billingsley] would have the same objection to me asking him about these as he would the State not being able to bring them out in the first place. “THE COURT: I’ll overrule your objection for the following reasons. The officer is giving a true statement as to what your client told him as to what your client did in relationship to the victim. It may not be giving the exact way that it happened from moment to moment because things happened intermediate to certain things he testified to. I think what your client said he did to the officer is true and correct and you have the right to cross-examine those points. You’re correct, I won’t let you cross-examine as to what your client said someone else did. I think you can clarify on cross-examination as to what your client did in relation to this victim. “MR. SUTHERLAND: Your Honor, it would be our impression and we make the contention that it denies my client as part of his right not to testify, all of his statement is not being brought in. We believe it’s an aberration of his original statement. It effectively denies him his right not to testify or having to testify to put in and make a corrected statement. “THE COURT: As I understand it, the exception of the hearsay rule has to do with confessions as they arise to implication of the defendant. I think this officer is telling everything your client told him. I have no problem with that. He’s not being forced or told whether to take the stand or not. The only thing that seems unfair is that your client may not be getting the benefit of what was done — I have no problem with him saying what the victim [sic] told him.” On appeal, the defendant argues that his Sixth Amendment rights under the United States Constitution were violated because he was unable to have the jury instructed on his theory of defense, which denied him a fair trial. He contends that the redacted statement with other testimony from Harris is tantamount to an admission to second-degree murder. He claims, however, that his full statement implicates him in, at most, an aggravated battery and establishes that Billingsley killed the victim by kicking him to death. The defendant further claims that by admitting the redacted statement, the trial court violated his Fifth and Fourteenth Amendment rights as well as his rights guaranteed by § 10 of the Kansas Constitution Bill of Rights. He contends these violations occurred because he could not present his complete statement to the jury without sacrificing his right not to incriminate himself. In other words, the defendant contends that once his partial statement was presented, the only way the whole truth could come forth was for him to testify on his own behalf. On a related contention, the defendant claims that he did not receive effective assistance of counsel based upon counsel’s failure to move for a separate trial. We need not address the above contentions in detail for there is a controlling Kansas case that requires reversal of the defendant’s conviction. In this case the trial court was duty-bound to grant Billingsley’s motion in limine to exclude portions of the defendant’s statement relating to him. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him. Rakestraw’s statement in this case implicated Billingsley. Under Bruton and Rodriquez, admission of those portions of the statement implicating Billingsley would have violated Billingley’s right of confrontation if Rakestraw did not testify. Thus, the trial court was required to grant Billingsley’s motion. While editing Rakestraw’s statement to delete incriminating references to Billingsley protected Billingsley’s constitutional right to confront the1 witnesses against him, the redaction so changed Rakestraw’s statement that it no longer represented his true statement. The trial court was of the opinion that its admission would not harm Rakestraw because it was limited to what Rakestraw actually did on the night Harrison was beaten to death. Our cases, however, require a trial judge to conduct further inquiry before admitting a redacted statement. In State v. Purdy, 228 Kan. 264, 615 P.2d 131 (1980), we held that “[t]he introduction into evidence of a defendant’s redacted statement is proper unless the redaction procedure distorts the statement.” 228 Kan. 264, Syl. ¶ 2. (Emphasis added.) In Purdy, John Purdy was convicted of first degree murder, aggravated burglary, and two counts of aggravated robbeiy arising out of the death of Robert Humphrey. He was tried with a co-defendant, Kenneth Hutchison, in a joint trial. The evidence at trial indicated that Purdy and Hutchison both entered Humphrey’s home and both were armed with handguns. After seeing Humphrey approach him with a gun, Purdy shot and killed him, and the two defendants fled with Humphrey’s wallet and his fiancee’s purse. After his arrest on another matter, Hutchison gave a voluntary statement concerning the Humphrey homicide and implicated Purdy. Purdy also gave a statement to the police. The court allowed both statements to be introduced in the joint trial, and neither defendant took the stand. Each statement was excised to prevent reference to the other defendant pursuant to the Bruton rule on confrontation. Purdy argued on appeal that the excising of the statements changed the meaning to such an extent that the admission was improper and could not be cured by the limiting instruction. The trial court, when it introduced each confession, advised the jury that it could consider each confession only against the party giving the confession. In Purdy, we analyzed the impact of the Bruton rule and considered an extensive annotation on this same subject. See Annot., 29 L. Ed. 2d 931, 991. In Purdy, we concluded that the admission of Hutchison’s and Purdy’s redacted statements was not error pur suant to Bruton. 228 Kan. at 270. Purdy’s contention was much like the contention the defendant makes in this case, viz., that the meaning of his own statement was substantially changed by the process of redaction. The defendant in this case complains of distortion by redaction. In analyzing Purdy’s claim, the court examined and compared the original statements and the redacted versions, concluding that “the meaning is not distorted.” Purdy further relied upon an earlier federal case of United States v. Kershner, 432 F.2d 1066 (5th Cir. 1970). In Kershner, the defendants claimed that the court erred in admitting a “highly concentrated and out-of-context synopsis, which was not fairly representative of what he had said.” 432 F.2d at 1069. The court held that unless the redaction procedure “distorts a confession, it may be used because it does not violate any constitutional right of the defendant to be confronted with the witnesses against him.” 432 F.2d at 1071. Purdy remains the law. It is well analyzed and provides a clear guide for us in resolving this case. As in Purdy, we must examine and compare the original and redacted statement. In this case, unlike Purdy, we conclude that the redaction procedure distorted the defendant’s confession. In his complete statement to the police, Rakestraw admitted to kicking the victim a couple of times and kicking him once “in the balls.” The defendant denied kicking the victim in the stomach. He denied any further involvement except trying to cool down the codefendant, Billingsley. It was Billingsley, according to Rakestraw’s original statement, who kicked the victim to death. The redacted statement mentions only the defendant’s actions of kicking the victim in the head and groin, but the victim died of internal abdominal injuries. In a sense, Rakestraw’s complete statement is exculpatory with regard to the charged offense of second-degree murder. The redacted statement, on the other hand, is inculpatory because it presented only the defendant kicking the victim. The redacted statement, together with Harris’ statement and the autopsy evidence, established the essential elements of second degree murder. If the complete statement is exculpatory and the redacted statement is inculpatory, we must conclude that the redacted state ment distorts the meaning of the complete statement. Our analysis need go no further. Under the facts of this case, we conclude the admission of the redacted statement over the defendant’s objection distorted the meaning of the defendant’s statement. He was denied a fair trial. We reverse and remand the case for a new trial. Upon retrial, this same problem will not be present because the defendant will be tried alone. Because this case may be tried again, we also need to discuss the defendant’s contention that an accomplice instruction should have been given with regard to the testimony of the State’s key witness to the beating, Steve Harris. Harris originally was charged as an accessory after the fact because he originally lied to the police about the incident, claiming that the victim was beaten up by Mexicans in a yellow car. In exchange for Harris’ truthful testimony, the prosecution agreed to drop this charge. At trial, the defendant requested an accomplice instruction, but the trial judge denied the request on the basis that being charged as an accessory would not make Harris an accomplice. Only if Harris had been charged with the same crime would he have been an accomplice. While it is true that Harris was not charged with murder, Billingsley at least implicated Harris in the beating. Although Billingsley denied witnessing the beating, he placed Harris at the scene, and his defense counsel tried to cast doubt on Harris’ claim that he was not involved in the fight and was spattered with blood only while trying to render aid to the victim. Upon remand, it would be appropriate for the trial court to grant the defendant’s request and give the cautionary instruction on accomplice testimony. We need not and do not decide whether the failure to give such an instruction was reversible error. We do conclude that the question is close enough for us to advise the court to give a cautionary instruction on accomplice testimony if Harris testifies at the new trial. Reversed and remanded for new trial.	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The opinion of the court was delivered by Safford, J.: The issues in this case were tried by the, district court, upon an agreed statement of facts, and a judgment rendered for the defendants here and below. It is claimed for the plaintiff in error, that such judgment was erroneous, for the reason that it is not sustained by the facts so agreed upon by the parties, and is contrary to the law which is applicable thereto. An examination of the whole case, as presented by the record, has led this court h> a different conclusion, and such as will require an affirmance of the' decision made. It appears that James Maloney was induced to send drafts to the amount of five hundred dollars, to A. F. Callahan, for the benefit of a person who had no claims whatever upon him, and under the belief that such person was his brother Daniel Maloney, when in fact his said brother was entirely ignorant of the whole transaction. But it is equally clear that these defendants were in nowise connected with or responsible for this mistake on the part of James Maloney. The real Daniel Maloney was unknown to A. F. Callahan, and to the defendants; while the person who received the money was known to Callahan by that name, and under that name employed Callahan to write for and procure the money to be sent to himself. Callahan acting in entire good faith, wrote for the money, as requested thereto by his employer, and in due time it was received by him, and in response to his application, on behalf of such employer. Having so received the money, he delivered it, or rather the draftb representing it, to the man claiming to be Daniel Maloney, and known to him by that name. Such drafts were then purchased by these defendants in due course of their business, as bankers, aud upon identification of the person to whose order they were made payable, to-wit, “Daniel Maloney,” by said A. F. Callahan, who was well known to them. Under the circumstances Callahan could not have done otherwise than he did; and further than this, he was authorized thereto by the sender of the drafts. For the pur- ° x pose of such delivery to the person for whom he had procured them to he sent to him, Callahan was the agent of James Maloney; and a delivery by him was with like effect as it would have been had James Maloney himself been present. It certainly seems to us that the action of Clark & Co., in the premises, was characterized by all necessary caution and prudence;. and least of all does the x , slightest negligence on their part eeem to intervened. The whole transaction, so far as the knowledge of Callahan, and Clark & Co., and their connection therewith, is concerned, was one of the simplest and most common; and they all did what every business man in a like situation would have been sure to do. It is true they were to a certain extent imposed upon, being deceived as to the per-,n it i, i son with whom they were dealing; but not through any fault or negligence of their own — but rather through the mistake of James Maloney, brought about by the dishonesty of the party claiming to be his brother. It is to be remarked in this connection, that this transaction is in no way similar to one where a draft, either by theft or by accident, falls into the hands of a person not entitled thereto, for which the party sending such draft is not responsible. In such a case the injured party, being in'no fault himself, might be entitled to relief as against a purchaser of the stolen draft.. But here the case is different. The drafts ’were not stolen, but they wei'e sent to Callahan by the plaintiff James Maloney, to be delivered by said Callahan to the very man who received them, and who negotiated them. The mistake, however induced, was the mistake of James Maloney; and in no view of the case does it seem to ús that he ought to be allowed to recover his loss in consequence-thereof from parties standing in the relation in which Clark & Co. appear. The judgment will he affirmed. All the Justices concurring.	[ -80, -4, -24, -98, 26, 96, 42, -102, 68, -63, -73, -5, 105, -57, 4, 97, -31, 107, -48, 106, 116, -77, 7, 107, -14, -13, -21, -59, -79, 109, -18, -43, 77, 32, -118, 85, 102, 2, -63, 82, -50, 5, 24, -21, -39, 64, 48, -65, 1, 15, 113, -100, -13, 40, 29, -54, 105, 40, -22, -71, -47, -15, -113, -123, 95, 20, -109, 54, -100, 64, -40, 46, -108, 51, 1, -8, 114, -74, -106, 116, 15, -71, 25, 98, 98, 0, 21, -83, -4, -120, 47, -2, -99, -89, -112, 121, 9, 77, -106, -99, 126, 16, -89, 116, -6, 29, 25, 108, 3, -113, -42, -77, -113, 126, 28, -117, -2, -121, 16, 80, -50, 58, 92, 86, 122, -101, -114, -46 ]
By the Court, Valentine, J.: This is a criminal case, tried in the district court of Saline county, and brought to this court by the State. But the State in bringing it here did not comply with section 285, of the code of criminal procedure, (Gren. St.,p. 866,) which provides that if the appeal be taken by the State a notice of the appeal “ must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.” The State served the notice upon the clerk, as provided in the first part of said section, but did not serve any notice on the defendant, or post up any notice in the clerk’s office, as required by the latter part of said section. The State served a notice on J! H. Snead and John Foster, counsel of record, in the court below, for the defendant; but such a service or notice, is no better than no notice at all. We would also add, that the defendant has made no appearance in this court either in person or by counsel. From the foregoing it follows that no appeal has in fact been taken;'hence the plaintiff’s supposed appeal must be dismissed. All the J ustices concurring. [* Tins case was brought here again by the State, and was heard and decided on its merits, at the January Term, 1871.]	[ -80, -24, -44, 14, 42, 65, -78, -67, 72, -31, 100, 83, -19, -48, 0, 127, 75, 41, 117, 121, -51, -74, 19, 97, -78, -13, -43, -44, -77, 77, -18, -12, 12, 48, -118, -35, 70, 104, -121, -36, -50, 1, -87, -51, 81, 0, 48, 105, 82, 15, 49, 46, -93, 43, 28, -61, 105, 44, -39, 61, -6, -15, -110, 85, -68, 6, -125, -74, -108, -121, -56, 62, -104, 49, 64, -8, 80, -90, -122, 117, 13, -69, -120, -18, 66, 35, -107, -49, -88, -87, 63, 118, -103, -89, -96, 40, 75, 47, -106, -97, 55, 20, -121, -2, 44, 6, 17, 44, -125, -50, -80, -105, 95, 40, -122, -61, -13, 20, 48, 113, -57, -9, 92, 70, 48, 91, -58, -74 ]
The opinion of the court was delivered by Abbott, J.: This is a direct appeal by the defendant, Donald E. Bruce, who was convicted by a jury of one count of child abuse (K.S.A. 21-3609) and one count of felony murder (K.S.A. 1992 Supp. 21-3401). He received sentences of 3 to 10 years for child abuse and life imprisonment for felony murder. The sentences were ordered to run concurrently. The trial court denied the defendant’s motion for modification. The defendant raises three issues on appeal. He contends the trial court committed reversible error in failing to instruct the jury on voluntary intoxication and in responding to a request by the jury. He also alleges the trial court abused its discretion in failing to consider probation as an option when denying a modification motion. The victim in this case was 23-month-old Eric Brewer. Eric was 34 inches tall and weighed approximately 28 pounds. The autopsy revealed 57 separate bruises on the trunk of his body, the most severe of which were on his chest where there were at least 27 separate bruises. There were 104 separate bruises on his legs, arms, hands, back, and buttocks. The pathologist’s internal examination of Eric revealed extensive injuries. There was hemorrhaging in the chest area and around the pericardial sac surrounding the heart, as well as small hemorrhages scattered over the surface of the heart. There was also hemorrhaging over the surfaces of the lungs and into the diaphragm muscles, consistent with the result of very severe blows to the chest area. Eric’s liver was essentially tom in half, and there was extensive hemorrhaging into his stomach and abdominal cavity. Eric’s pancreas was tom and fragmented. There were also injuries and hemorrhaging around the tissues surrounding the kidneys and adrenal glands. The pathologist was of the opinion that Eric died as a result of severe internal injuries to the liver and pancreas. This type of injury could have resulted from someone placing their knees on the abdomen and chest and coming down with some force or from a severe kick. The pathologist testified, “The type of force it would take to split the liver in half, and disrupt the head of the pancreas to this extent is really veiy, very great. I have seen injuries such as this in accidental injuries where children were passed over by the wheel of a car.” Eric’s parents, Wendy Brewer and Scott Brewer, were separated. Wendy was engaged to the defendant. On February 4, 1992, the night before Eric’s death, Scott Brewer was with Eric until approximately 12:00 or 12:30 a.m. when Wendy and the defendant (along with Wendy’s father) picked up Eric. The defendant testified that prior to picking Eric up and over a period of at least four hours, he consumed three or four bottles of beer and six to nine mixed drinks. Wendy’s father took her, Eric, and the defendant to the mobile home of Bronica and Robert Aden. Bronica Aden is the defendant’s half-sister and Wendy’s stepsister. The defendant testified at trial and also gave the police two handwritten, signed statements. The first was given at 3:32 p.m. on February 5, 1992. It was admitted into evidence at trial and read into the record. It reads as follows: “On Tuesday night about 1:00 a.m. I put Eric on my lap and held his head in my hand’s and rocked him from side to side fast and did this for about 5 maybe 10 mins. Then I took his arms and was rolling them around causing them to hit his face and arms they his arms & face did get red. Eric then started to cry and I got him by his shirt and picked him up and told him to quit crying or I would give him something to cry for and spanked his bottom 3. times pretty hard and put him to bed. He was crying then and I told him to shut-up and he did! He (Eric) then started crying again so I returned tó the bedroom and saw he had gotten sick so I cleaned him up and no matter how much I tryed he wouldn’t stop crying so I picked him up and shook him hard one time. He then stopped breathing, and I got scared and put him on the bed and hit and pushed his chest to make him breath again and at the time it worked. But he still didn’t sound right! So I hit him on his back thinking that would help. It also worked then I left. At 2:10 a.m. Wendy and I left and walked to my brothers house got a car and went to a gas station got smoke’s ’& a pop and returned to 1045 W 23rd Lot 8 and I looked in on Eric then. I feel my drinking and all the pressure from family and from Scott and the fact that I didn’t know how to get Eric to stop crying I lost my temper and not meaning to hurt Eric God know’s I never wanted to hurt him I just lost my cool!” The second statement, also handwritten by the defendant, was given at 5:06 p.m. on February 6, 1992. It, too, was admitted into evidence at trial and read into the record. It reads: “Eric and I were in the living room playing in the chair and I was playing rough with him like always. I had his head in my hand’s and was rocking from side to side kind of fast. Then I took his arm’s in my hands and was slap boxing with him and causing Eric’s hands to hit his face and arm’s. I then let him down he gave Wendy a kiss and was crying I picked him up in my right hand and put him on my shoulder and told him to stop crying or I would give him something to ciy about. Then I spanked him and took him to bed, where he got sick. I took his shirt of and cleaned him up useing a sheet. He was still crying so I shook him at that point he stopped breathing and I got scared and hit him on his chest 4 or 5 times hard and that seem to help but not really so I put him on my lap and hit him on the back twice hard with my hand open. That seem to allow him to breath but he was still crying when I put him down. So I put the cover over him and put my left knee on his stomach and my right knee on his chest and pushed twice. My knee in his stomach gave both times. Eric then did stop crying but was whezzing. I then left the room and went out and left with Wendy at 2:10 a.m. to walk to my brother’s and get my sisters car. Got back at 4:00 a.m. and went back to the living room. I had to much to drink and didn’t realize I was playing with Eric so rough and I never meant to hurt or kill him! I had gotten upset because Eric was still crying and that’s why I put my knee’s on him only to make his stop crying! Nothing else but that!” Relatives of Bronica and the defendant, including their mother, sister, and two brothers, testified that Bronica told them she had awakened at approximately 3:00 a.m. to use the bathroom and she saw her husband, Robert Aden, playing with Eric at that time. This was while Wendy and the defendant were away from the trailer. One witness testified that Bronica told him Robert had gone back to Eric’s room three or four times and was pacing, and Eric stopped crying the third time. Bronica’s and the defendant’s sister and mother both testified that Bronica told them she felt that Robert, not the defendant, had killed Eric. At trial, Bronica denied having awakened while Wendy and the defendant were absent from the trailer. Other witnesses included Detective Davis, who had questioned the defendant after Eric’s death and who had witnessed the written statements given by the defendant. One of the main differences between the information the defendant gave to Detective Davis and the defendant’s testimony in court is that Detective Davis testified that at one point the defendant told him when he returned to the trailer with Wendy at approximately 4:00 a.m. and checked on Eric, Eric was not breathing. Detective Davis testified that the defendant told him he attempted to resuscitate Eric by pushing on Eric’s chest and blowing into Eric’s mouth. Eric’s body was cold and his lips were purple. The defendant put Eric back into his sleeping bag and did not tell anyone what had happened. However, the defendant had also told Detective Davis that Eric was fine when he checked on him. Concerning the defendant’s statement about putting his knees on Eric’s chest and stomach, Detective Davis testified that the defendant told him at first that he went down hard but then that it was a medium amount of pressure. I. VOLUNTARY INTOXICATION Voluntary intoxication may be a defense to a crime requiring a specific intent. State v. Sterling, 235 Kan. 526, Syl. ¶ 2, 680 P.2d 301 (1984). The defendant recognizes that this court in State v. Hupp, 248 Kan. 644, 652-53, 809 P.2d 1207 (1991), held that the words “cruelly beating or inflicting cruel and inhuman corporal punishment” do not require a specific intent to injure. However, he observes that the crime of child abuse (K.S.A. 21-3609) also includes the phrase “willfully torturing,” which he contends does require specific intent, and he contends that because the case went to the jury on all three theories of child abuse, the jury should have been instructed on voluntary intoxication as a defense to child abuse by means of willful torture. In Hupp, an infant died as a result of a blow to the head which crushed his skull. Although not in the context of a voluntary intoxication defense, this court stated that “[a]n intent to injure is not implicit in ‘cruelly beating or inflicting cruel and inhuman corporal punishment.’ It is the act of hitting and hurting that is made a crime.” 248 Kan. at 653. The issue there was whether the trial court erred in failing to instruct the jury on lesser included offenses. This court held there was no error in failing to instruct the jury on the lesser included offenses of involuntary manslaughter and battery. The facts showed that the child died as a result of a single blow to the head, and this court stated that “[a] blow that crushes an infant’s skull and kills the child is, as a matter of law, a ‘cruel beating.’ ” 248 Kan. at 653. Because an intent to injure is not implicit in “cruelly beating or inflicting cruel and inhuman corporal punishment,” there was no error in failing to instruct on the lesser included offense of involuntary'' manslaughter. The defendant had either hit the child and crushed his skull, or he had not done so; if the defendant had done so, “then the proper charge is felony murder by child abuse.” 248 Kan. at 653. Here, defense counsel requested the court to instruct the jury on the defense of voluntary intoxication. He did not specify on the record for which offenses he sought to have the instruction given. The court agreed to give an instruction on voluntary intoxication as a defense to the lesser included offenses of second-degree murder and voluntary manslaughter. Defense counsel made no request on the record that the instruction be extended to the offenses of child abuse and felony murder by means of willful torture, nor did he object to the instruction as given. The jury was instructed as follows: Instruction No. 14: “Voluntary intoxication may be a defense to murder in the second degree or voluntary manslaughter, where the evidence indicates that such intoxication impaired defendant’s mental faculties to the extent that he was incapable of forming the necessary intent of intentionally killing Eric Brewer.” Instruction No. 15: “The defendant is charged with the crime of abuse of a child. The defendant pleads not guilty. “To establish this charge, each of the following claims must be proved: 1. That the defendant willfully tortured, cruelly beat, or inflicted cruel and inhuman bodily punishment upon a child, Eric Brewer, who was under the age of eighteen years; 2. That this act occurred on or about the 5th day of February, 1992, in Douglas County, Kansas. “Willfully: ‘Willfully means conduct that is purposeful and intentional and not accidental. “The words ‘cruelly beating or inflicting cruel and inhuman corporal punishment’ do not require an intent to injure. It is the act of hitting and hurting that is made a crime.” Where a crime requires a specific intent, an instruction on voluntary intoxication as a defense to the crime may be appropriate. K.S.A. 21-3208(2); State v. Sterling, 235 Kan. 526, Syl. ¶ 2. “The distinction between a general intent crime and a crime of specific intent is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.” 235 Kan. 526, Syl. ¶ 1. In Sterling, this court held that criminal damage to property under the theory of willfully damaging or injuring property under K.S.A. 21-3720(l)(a) did not require specific intent such that an instruction on the voluntary intoxication defense was required, but this court recognized that voluntary intoxication may be a defense to criminal damage to property under K.S.A. 21-3720(l)(b), which required injuring or damaging property “with intent to injure or defraud an insurer or lienholder.” 235 Kan. at 530. Hence, the question here is whether “willfully torturing” requires a specific intent to injure in addition to the general intent required. The defendant contends that the term torture requires a specific intent to inflict pain or to injure. He points to the dictionary definition of “torture,” which indicates that torture is the infliction of pain as a means of punishment or coercion. “Torture” means “[t]o inflict intense pain to body or mind for purposes of punishment.” Black’s Law Dictionary 1490 (6th ed. 1990). The defendant relies primarily on People v. Martinez, 193 Cal. App. 3d 364, 238 Cal. Rptr. 265 (1987). Martinez involved the offense of murder by torture rather than child abuse by torture. In Martinez, the court stated, “Murder by torture is murder committed with a willful, deliberate and premeditated intent to inflict extreme and prolonged pain.” Martinez, 193 Cal. App. 3d at 373. A specific intent to injure is not implicit in the phrase “willfully torturing.” This court has held that an intent to injure is not implicit in the phrase “inflicting cruel and inhuman corporal punishment.” Hupp, 248 Kan. at 653. Thus, even if “torture” must be for the purpose of punishment, as the defendant argues, Hupp indicates that there is no specific intent to injure required in the term “punishment.” As the State argues, “[t]he word torture does not raise abuse of a child to the level of a specific intent crime any more than the words Inflicting cruel and inhuman corporal punishment.’ ” The trial court did not err in failing to give a voluntary intoxication instruction. II. RESPONSE TO JURY During deliberations, the jury presented the following written question: “CAN WE ASK FOR WRITTEN COPIES OF COURT TESTIMONY? /s/ Jon W. Dunbar presiding juror WE ARE INTERESTED IN BOTH ADENS DR. SPERRY DET. DAVIS DONNY BRUCE.” To put this in perspective, the testimony of these witnesses spanned 444 pages of die 765-page trial transcript. The trial took four days, so a read-back of that part of the transcript would be of testimony which took the better part of two days to present. The trial judge and counsel for the defendant and the State discussed the appropriate response to the jury’s question as follows: “THE COURT: . . . The second question just came in. ‘Can we ask for written copies of court testimony[?]’ Signed presiding juror. We are interested in both Adens,' Dr. Sperry, Detective Davis, and Donnie Bruce.’ “MS. KENNEY [counsel for the State]: Both Adens? “THE COURT: They’re interested in most of the trial is what they’re saying. Mr. Wells? “MR. WELLS [counsel for the State]: Well, I think, normally the Court says, ‘Rely upon your memory.’ I thinks that’s — if they want a read back, that’s one thing. “THE COURT: They are not entitled to written copies. I’m not sure written copies could be furnished even if they were entitled to it. If a certain court reporter gets their way, they might some day. Melanie, she’s volunteered to do— what’s it called? “THE REPORTER: Real time translation. “MR. WARREN [counsel for the defendant]: The last time I had this question asked was a trial I had in front of Judge Paddock, and just as a suggestion as a way, at least the way the judge handled it is he let them know that there just wasn’t any way to do it, for one thing, and maybe if they realize, that they’ll get off that particular mental position that they would like to have it. “MR. WELLS: Sounds all right. “THE COURT: My suggested answer would be there is no possible way that the transcripts could be prepared in this short of time for your review. Is that agreeable? “MR. WARREN: If you wanted to perhaps add, ‘You should rely on your collective memories,’ or something. “MR. WELLS: That’s fine. “THE COURT: The suggested answer to this has been to the question, ‘Can we ask for written copies of court testimony?’Answer, ‘It is not possible to have written transcripts prepared for your review. Please rely on your collective memories.’ Mr. Wells? “MR. WELLS: Yes. “MR. WARREN: Absolutely.” The written response was: “It is not possible to have written transcripts prepared for your review @ this time. Please rely on your collective memory in recalling tibe testimony, /s/ Michael J. Malone.” The defendant contends this response was unresponsive and misleading. He suggests that what die jury really was asking for was not written copies of testimony, but rather a read-back of testimony. The defendant notes that the district court has discretion in fashioning responses to a juiy’s questions, but he argues that discretion does not involve giving misleading or unresponsive answers. Moreover, the defendant suggests that the trial court has a duty under K.S.A. 22-3420(3) and related case law to read testimony back to the jury upon its request for a read-back. Since oral argument in the case at bar, this court has filed a decision that is instructive in this area. In State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994), we held that a trial judge has a duty to clarify whether a jury wants a transcript of testimony or merely wants a read-back and, if a read-back is desired,, to determine to what extent the read-back is necessary. We also held that the mandatoiy directive in K.S.A. 22-3420(3) moves the trial court response out of the realm of discretion and that a defendant need not show prejudice. We further said that “[t]he trial court is free to clarify the jury’s read-back request where the read-back request is unclear or too broad, or the read-back would jeopardize the manageability of the trial. Discretion rests with the trial court to clarify and focus the jury's inquiry.” 255 Kan. 3, Syl. ¶ 2. We also have another rule which controls this case. A litigant “may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989). “A defendant is not permitted to join in a request for specific language to be used in answering a jury’s question and then, on appeal, claim that the trial court erred in using that language.” State v. Cramer, 17 Kan. App. 2d 623, Syl ¶ 2, 841 P.2d 1111 (1992), rev. denied 252 Kan. 1093 (1993). See State v. Salton, 238 Kan. 835, 837, 715 P.2d 412 (1986); State v. Falke, 237 Kan. 668, 682, 703 P.2d 1362 (1985). In State v. Cramer, 17 Kan. App. 2d 623, counsel for the defendant participated in choosing the specific language used in responding to a question by the jury and did not object to it. The trial court specifically found that both parties desired that the instruction be given. The Court of Appeals, following our Supreme Court decisions, stated: “After participating in the drafting of the answer to the jury’s question, defendant now argues that the trial court erred in giving that answer and asks that we reverse the conviction as a result. “The record shows that the answer given by the trial court which defendant now claims is error was given at the joint request of the State and defendant. After die prosecuting attorney suggested die language used, defense counsel responded by saying: T really don’t have a problem with setting out the standard that’s in the syllabus that Mr. Pierce suggested.’ We could not have a more clear-cut case of acquiescence in the giving of die answer. Indeed, defense counsel joined the State in requesting that the answer be given as suggested by the prosecuting attorney. Defendant should not be permitted to join in a request for specific language to be used in answering the jury’s question and then on appeal claim that the court erred in using that language. “If the language used to answer the jury’s question was erroneous, then it was error invited by defendant. ‘A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.’ State v. Prouse, 244 Kan. 292, 298-99, 767 P.2d 1308 (1989).” 17 Kan. App. 2d at 632. Having invited the error and participated in it, the defendant cannot now claim error. III. MOTION TO MODIFY SENTENCE The defendant filed a motion to modify sentence which was heard after the Topeka Correctional Facility (TCF) report was completed. That report recommended that the defendant serve the appropriate sentence and commented: “In light of the nature of the instant offense, there is clearly no option for this inmate other than serving an appropriate sentence.” In denying the motion to modify, the court stated: “Life is the only sentence I had in an A felony. Three to ten, I gave that sentence, I believe, because it was a concurrent act, so to speak, that of abuse of a child. I ordered they run concurrent, and certainly would not consider giving the gentleman probation. It wasn’t that favorable a report, and nevertheless, I would never consider that anyway.” The defendant’s controlling term of incarceration here is life imprisonment. This is the mandatory term upon conviction of a class A felony. K.S.A..21-4501(a). Sentencing options are available, however, including suspending imposition of the defendant’s sentence or assigning the defendant to a community correctional services program. K.S.A. 1992 Supp. 21-4603(4) and (5). Probation is an available sentence alternative when a defendant has been convicted of a class A felony, as the defendant was here. See State v. Lumbrera, 252 Kan. 54, 74, 845 P.2d 609 (1992). K.S.A. 1992 Supp. 21-4603(4) requires a district court to modify a defendant’s sentence upon an unequivocal recommendation by TCF, unless the court makes certain findings on the record. See State v. Boomgaarn, 249 Kan. 673, 822 P.2d 605 (1991); State v. Moon, 15 Kan. App. 2d 4, 801 P.2d 59 (1990), rev. denied 248 Kan. 998 (1991). “Absent an unequivocal recommendation for modification by the [TCF], the court has discretion in modifying sentence and commits no error in refusing modification of sentence absent an abuse of that discretion.” Moon, 15 Kan. App. 2d at 10. There was no unequivocal recommendation for modification here. The defendant recognizes that the court has discretion in ruling on his motion to modify. He contends, however, that the comments of the court show that the court did not use its discretion in denying his motion for modification. The defendant relies on State v. Fisher, 249 Kan. 649, 822 P.2d 602 (1991). There, the defendant pleaded guilty to possession of marijuana and possession of cocaine. After sentencing the defendant, the district court stated, “ ‘This Court does not grant parole on convictions of cocaine, first offense or any other.’ ” 249 Kan. at 652. This court concluded that the district court’s comment referred to probation and not to parole and stated: “The district court’s comment can certainly be interpreted to mean the conviction of a cocaine offense means an automatic sentence of imprisonment regardless of any other factors present. Thus, the district court did not use discretion in denying the requested probation, as probation could never be considered as an option to imprisonment. This is contrary to the policy set forth in K.S.A. 21-4601.” 249 Kan. at 652. The defendant’s reliance on Fisher is misplaced. The district court’s comments here in denying the motion to modify cannot be said to reflect a complete failure to exercise discretion or to follow the policy set forth in K.S.A. 21-4601. In Fisher, the critical comment by the court showed that the court would in no instance consider probation for cocaine convictions. Here, however, the court made no such comment. The judge stated that he “would not consider giving the gentleman probation,” and he noted that the TCF evaluation was not favorable. (Emphasis added.) This reflects that the court did consider the individual circumstances of this defendant in denying modification. The court did comment, “nevertheless, I would never consider that anyway,” after noting that the TCF report was not favorable, but this comment was made in the context of relating the denial of modification to this particular defendant and to the facts of this case and in the context of indicating that even had the TCF report been favorable, modification would not have been granted. Judge Malone had heard the evidence presented at trial, he had read the presentence investigation report before sentencing the defendant and addressing the factors mandated by K.S.A. 21-4601 and K.S.A. 21-4606 at the time of sentencing, and he had read the TCF report before denying modification. When read in the context of the entirety of the court’s comments, the defendant has not shown that the court exercised no discretion or that the court abused its discretion in denying modification here. Affirmed.	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The opinion of the court was delivered by Safford, J.: The note sued upon in' this case was executed beyond the limits of the State, and bore date of February 20th, 1865, due upon demand. Suit J 7 Jr was commenced Sept. 2, 1867. The record shows that on the trial in the court below, the qefen¿ant relied upon the two-years statute of limitation. Comp. L. 1862, ch. 27, §2. The plaintiff, in reply to this defense, interposed the claim, that during the time which had elapsed since the accruing of the cause of action, and before the commencement of the suit, the maker of the note had been out of the State of Kansas for such a period as would, under § 28, ch. 26, Comp. L., take the ease out of the statute. Section 28 reads as follows:■ “If, when a cause of action accrues “against a person, he be out of the territory, or has “absconded, or concealed himself, the period limited for “ the commencement of the action shall not begin to run “ until he comes into the territory, or while he is so “ absconded or concealed; and if, after the cause of action “ accrues, he depart from the territory, or abscond, or con- “ ceal himself, the time of his absence or concealment shall “ not be computed as any part of the period within which “the action must be brought.” (Gen. St. 1868, ch. 80, § 21.) It is contended for the defendant below, that the rule here laid down is not applicable to, and therefore does not govern this case. The admitted facts, as to the point in question, are in substance, that the maker of the note, at the time of the execution thereof, had a furnished house in the city of Lawrence, in this State, which was his usual place of residence for himself and family, and so continued to be his and his family’s said usual place .of residence, after the cause of action had accrued on said note, and up to the time of his death, which occurred on or about the 11th day of July, 1866; and thereafter, that of his family. It is further admitted that after the said accruing of the cause of action upon said note, the maker was personally absent out of the State of Kansas, attending to his duties as a member of the United States Senate, and on other business, a sufficient length of time to prevent the statute of limitations above referred to from running against said note, if the time he was thus absent should be excluded in computing the time limited by said statute for the bringing of suit thereon. These admissions seem to have the effect of disposing of one question which has occupied the attention of counsel on either side, in their discussion of the case; and that is, the one relating to the time of the accruing of the cause of action upon the note, as against the maker, or his representative. That question may therefore be laid out of the case here. It seems also to be conceded, that if section 28, before referred to, be construed according to the plain and literal signification of the language used, and in its . .. . r1 n ~ , - common acceptation, or m other words, 11 the legislature in enacting said section meant just what they said therein, and no more, then, and in that case, the above admitted facts make a case to which such section is intended to apply. At least, such is our view of the matter. It would be difficult to use language more clear, full, and expressive of the idea which is apparent at a glance, and upon the face of this provision of the statute; and we are not able to discover any satisfactory, reason why we should give to it any other than such obvious meaning. Such literal construction does not make a conflict with any other provision of the code, or other statute; neither are we aware of any circumstances or considerations which imply that the enacting power intended anything further or beyond what is so plainly expressed. “ It is a settled principle in the construction of statutes of limitation, that general words are to have a genera] operation; and unless there can be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment.” 19 Wisconsin, 60, and authorities there cited. We hold therefore that und§r said section 28, the statute of limitations did not run upon the note in question during the absence of the maker from the State, as by the admitted facts appears, and that as a consequence the action thereon was not barred at the commencement of the suit. The counsel for defendant in error referred _ us to authorities in point, and sustaining the view we have here taken; while on the other hand, the opposing counsel has cited us to cases which are clearly in support of a contrary doctrine. To these latter we have given careful consideration, but as before seen, have felt compelled to dissent from the conclusions therein expressed. It is to be remarked however, that some of these decisions were made in view of statutory provisions which are substantially different from our own upon the same subject. . The judgment of the court below is affirmed. Kingman, O. J., concurring. Valentine, J., not sitting in the case, having tried it in the court below.	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The opinion of the court was delivered by Allegrucci, J.: Floyd Carmichael appeals from the denial of his K.S.A. 60-1507 motion. He sought to set aside his juiy convictions of two counts of rape and one count of aggravated kidnapping pursuant to State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992). The Court of Appeals reversed his convictions of rape and affirmed his conviction of aggravated kidnapping. Carmichael v. State, 18 Kan. App. 2d 435, 856 P.2d 934 (1993). This court granted the State’s petition for review and denied Carmichael’s cross-petition for review. The issue is whether Carmichael’s K.S.A. 60-1507 motion seeking to set aside his convictions of rape should have been granted pursuant to State v. Williams. On September 27, 1985, a jury found Carmichael guilty of two counts of rape and one count of aggravated kidnapping. The victim was his daughter. On July 22, 1991, Carmichael filed the present K.S.A. 60-1507 motion, alleging ineffective assistance of counsel. The district court denied the motion. On appeal, Carmichael made the additional argument based on Williams that he was wrongly charged with and convicted of rape. With regard to the conviction of aggravated kidnapping, Carmichael argued that its validity depended on the validity of the rape convictions because he was alleged to have committed the aggravated kidnapping to facilitate commission of the rapes. 18 Kan. App. 2d at 438. The Court of Appeals concluded that the district court lacked jurisdiction to convict Carmichael of rape of his daughter and reversed his rape convictions. The aggravated kidnapping conviction was affirmed because the Court of Appeals determined that there was evidence sufficient to support alternative theories contained in the aggravated kidnapping charge. 18 Kan. App. 2d at 446-48. Carmichael’s cross-petition for review of the Court of Appeals’ affirmance of the aggravated kidnapping conviction was denied. In Williams, 250 Kan. at 736-37, this court concluded that when a defendant is related to the victim as set out in K.S.A. 21-3603(1), he may be charged with aggravated incest for engaging in the acts prohibited by the statute but not with indecent liberties with a child. The decision was based on the principle that a statute dealing specifically with a certain phase of a crime controls over a statute dealing generally with the crime unless the legislature intended otherwise. With respect to the rape convictions, the Court of Appeals concluded: “Williams states a jurisdictional rule which requires persons within a special class to be charged with aggravated incest. In a criminal action, the trial court must not only have jurisdiction over the offense charged, but it must also have jurisdiction of the question which its judgment assumes to decide. State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983). Here, the court’s judgment of conviction found Carmichael guilty of raping his daughter. If one of the prohibited acts enumerated in the aggravated incest statute is committed by a person who is a biological, step, or adoptive relative of a child victim, that person must be charged with aggravated incest and not with a crime which is applicable to persons in general. Carmichael is within a special class of persons delineated in the aggravated incest statute who must be charged with aggravated incest if he raped a person under the age of 18 who he also knew was related to him. “The trial court was without jurisdiction to convict Carmichael of the rape of his daughter when he was within the special relationship class of persons who must be charged with aggravated incest. A conviction upon charges which do not apply to the person convicted is a clear denial of due process under the Fourteenth Amendment to the United States Constitution. As a result, the judgment against Carmichael for the offense of rape where the court was without jurisdiction to decide the issue is void.” 18 Kan. App. 2d at 446. Since the court's granting of the petition for review in this case, we have decided State v. Sims, 254 Kan. 1, 862 P.2d 359 (1993). There, this court expressly rejected the idea that Williams announced a jurisdictional rule. Here, as in Williams, the petitioner is charged under the general statute rather than the controlling specific statute. The information/complaint is the jurisdictional instrument upon which a defendant stands trial, and it must allege the essential elements of the offense charged. State v. Bishop, 240 Kan. 647, 652, 732 P.2d 765 (1987). Since the complaint does allege each essential element of the crime charged, the district court had jurisdiction. As stated at 22 C.J.S., Criminal Law §157, p. 188: “Whether or not a court has jurisdiction of the offense in a particular case is determined from the allegations in the accusation. An information is the only vehicle by which a court obtains its jurisdiction, and is a limit upon that jurisdiction. Therefore, where the information charges no crime, the court lacks jurisdiction to try the accused. As long as the complaint alleges that a crime has been committed, the court has subject matter jurisdiction even if the criminal statute cannot be applied to the facts involved.” Sims was convicted of rape, aggravated criminal sodomy, and aggravated incest. The victim was his granddaughter. Months after his convictions, Sims filed a motion to arrest judgment on the rape and aggravated criminal sodomy convictions on the ground that, pursuant to Williams, the district court had no jurisdiction to convict him of those offenses. The district court agreed and arrested judgment on the rape and aggravated criminal sodomy convictions. 254 Kan. at 3-4. On appeal, the parties were directed to brief this question: “Did the district court have jurisdiction to arrest judgment in this case on the basis of defendant’s motion to arrest judgment which was filed later than the time authorized by K.S.A. 22-3502?” 254 Kan. at 5. The timing of Sims’ motion differed greatly from that of Williams’, which was made at the conclusion of the preliminary examination. In that regard, the court stated in Sims: “Because Williams dealt with sufficiency of the evidence at the preliminary examination and not with jurisdiction, Williams does not answer the question in this case.” 254 Kan. at 8. The court observed that a motion for arrest of judgment, such as Sims’ motion, “does not test the sufficiency of the evidence to convict a defendant of the crime.” 254 Kan. at 9. In Sims’ case, we held: “Where the evidence adduced at trial does not support the crime alleged in the charging document but supports a separate crime, the defendant cannot challenge the verdict on grounds of insufficiency of the evidence by a motion to arrest judgment. A motion to arrest judgment is a challenge to the chargng instrument or the jurisdiction of the court to try the offense alleged in the charging document, whereas an insufficiency argument is a challenge to the verdict.” 254 Kan. at 11. Thus, this court found the district court did not have jurisdiction to arrest Sims’ convictions for rape and aggravated criminal sodomy. 254 Kan. at 11. Carmichael, like Sims, filed a motion long after he had been convicted of rape of a relative, seeking to reverse his convictions. The procedural device used by Sims was a motion to arrest judgment; the procedural device used by Carmichael was a K.S.A. 60-1507 motion. As discussed in Sims, Williams challenged the crime charged in the complaint at the conclusion of the preliminary examination. The magistrate discharged Williams because it did not appear from the evidence which had been adduced at the preliminary examination that Williams had committed the crime with which he had been charged. Hence, “Williams dealt with sufficiency of the evidence at the preliminary examination.” 254 Kan. at 8. The basis for this court’s decision in Sims was that his challenge, like Williams’ challenge at the preliminary examination, was on grounds of sufficiency of the evidence. Thus, Sims’ challenge was to the verdict rather than to the charging instrument. In the present case, the State charged Carmichael with a general sexual offense, rape, and the evidence has established that the victim is within that degree of kinship to Carmichael as would render the offense to be within the definition of the specific offense of aggravated incest. In other words, the evidence adduced at trial not only supports the crime alleged in the charging document, rape, but also supports the crime of aggravated incest. The State responds that since Carmichael did not raise the issue in the district court, he cannot raise it for the first time in this appeal. The State further argues that defects not raised by motion prior to trial are waived. Moreover, the State contends that Carmichael cannot raise this issue in his 60-1507 motion because, pursuant to Supreme Court Rule 183 (1993 Kan. Ct. R. Annot. 152), he must allege and prove exceptional circumstances which would excuse his failure to raise the issue in his prior direct appeal. We find no merit in the State’s argument. Supreme Court Rule 183(c)(3) provides, in part: “Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” Clearly, Rule 183(c)(3) is applicable to trial errors affecting constitutional rights and not to errors involving the imposition of sentence. In die present case, we are not dealing with “trial errors affecting constitutional rights” but, rather, with the failure of the State to charge the petitioner with aggravated incest (the specific offense) rather than rape (the general offense). The rule that where one statute is more specific than another, and therefore controlling, is used to determine the intent of the legislature where two statutes are in conflict. By determining which statute is more specific, the court can determine which statute the legislature intended to apply. In Williams, we held that aggravated incest is the specific crime, stating: “A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is specific. Seltmann v. Board of County Commissioners, 212 Kan. 805, Syl. ¶ 2. Under this broad definition one of the statutes relates a general law and the other a specific law. “Although the elements of the two crimes are similar, the distinguishing factor is that aggravated incest requires the act to be committed by a biological, step, or adoptive relative of the child. This relationship is not an element in the indecent liberties with a child statute. From a reading of these statutes, it is clear that the legislature intended to establish certain sex offenses applicable where family relationships are not involved. The legislature also intended that aggravated incest, a crime committed by a person related to the victim, constitutes a less serious offense than when a similar prohibited act is perpetrated by a defendant against a child with whom he or she has no family relationship.” 250 Kan. at 736-37. In Sims, the State’s failure to charge the defendant under the specific statute was held not to be jurisdictional or to render the complaint defective. For that reason, relief was not available to Sims on his motion to arrest judgment. Here, Carmichael is challenging the State’s failure to charge him with the specific offense, which ultimately resulted in the imposition of an erroneous sentence. Hence, he need not show exceptional circumstances in order to raise the issue in a 60-1507 motion. We further note that in White v. State, 222 Kan. 709, 568 P.2d 112 (1977), the petitioner raised “trial errors” in his 60-1507 motion, stating that he was not aware he could raise them on direct appeal. Although petitioner failed to show exceptional circumstances, this court stated: “[W]e conclude that the ends of justice will best be served by reaching the merits of his motion.” 222 Kan. at 712. K.S.A. 60-1507 provides in pertinent part: “(a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence. “(b) Hearing and judgment. ... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate.” Clearly, pursuant to 60-1507, a prisoner asserting that the sentence was illegal or void may move the court to vacate or correct thé sentence at any time. In State v. Scherzer, 254 Kan. 926, Syl. ¶ 1, 869 P.2d 729 (1994), wé held: “This court has general statutory jurisdiction to correct, modify, vacate, or reverse any ac.t, order, or judgment of a district court in order to assure that any such act, order, or judgment is just, legal, and free of abuse. K.S.A. 1992 Supp. 60-2101(b). The court has specific statutory jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504.” In so holding, we said: “We have defined an ‘ “illegal sentence” [as] either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.’ State v. Ruff, 252 Kan. 625, 628, 847 P.2d 1258 (1993). The jurisdiction of the court to impose the sentence or the ambiguity of the sentence is not at issue in this case. The sole challenge is whether this sentence does not conform to the statutory provisions. . . The sentence imposed does not conform to the statutory provision and it is an illegal sentence. The matter is remanded to the district court for correction of the illegal sentence.” 254 Kan. at 939. In State v. Felton, 194 Kan. 501, 399 P.2d 817 (1965), the defendant filed a 60-1507 motion to vacate, set aside, or correct his sentence. Felton was sentenced under the Habitual Criminal Act. This court held that since his prior conviction did not precede the offense for which he was convicted, “the trial court’s action in invoking the act to increase the punishment for the principal offense was not warranted and cannot be upheld.” 194 Kan. at 506. We concluded that he was not entitled to be released from custody; rather, we ordered that he be returned to the district court for imposition of a proper sentence. Although not cited by either party, State v. Moore, 242 Kan. 1, 748 P.2d 833 (1987), must be addressed. In Moore, the defendant engaged in sexual intercourse with his daughter, which she did not resist out of fear. The defendant was charged and convicted of one count of rape and one count of aggravated incest. We held aggravated incest is not a lesser included crime of rape. Although the two offenses arise out of the one act of sexual intercourse, we concluded each crime required proof of an element not required by the other, and therefore, aggravated incest is not á crime which is necessarily proved if the crime of rape is charged and proved. We further stated: “Nor have incest and rape been traditionally considered to be different degrees of the same generic offense for purposes of K.S.A. 1986 Supp. 21-3107(2)(a). Rather, the crimes of incest and rape in Kansas and other states have been considered to be separate and independent crimes.” 242 Kan. at 4. We found that the defendant had been properly convicted of both crimes. Other jurisdictions which have considered this issue are not in agreement. The courts holding rape and incest to be separate and independent crimes are cited in Moore. Our research has not disclosed that any of these cases have been overruled or reversed since Moore was decided. The basic rationale, in these cases is that rape and incest have different elements and therefore are distinct offenses. However, some state courts have rejected this rationale. In Love v. State, 190 Ga. App. 264, 378 S.E.2d 893 (1989), the defendant was charged and convicted of rape and incest from a single act of sexual intercourse. The Georgia Court of Appeals held that the offenses merged where there is a single act of sexual intercourse, stating: “ ‘An examination of the elements of rape and incest . . . reveals that, as a matter of fact, if [defendant] were found to have engaged in sexual intercourse, a necessary element of rape, with his niece, an incestuous relationship proscribed by [OCGA § 16-6-22], then he must necessarily have committed the crime of incest. Thus, applying the “alternative test” enunciated in Pryor [v. State, 238 Ga. 698, 234 S.E.2d 918], it appears that as a matter oí fact, in the instant case, the crime of incest is “included” within the crime of rape, as intended by [OCGA § 16-1-6].’ ” 190 Ga. App. at 265 (quoting Ramsey v. State, 145 Ga. App. 60, Syl. ¶ 10, 243 S.E.2d 555, rev’d on other grounds 241 Ga. 426, 246 S.E.2d 190 [1978]). In People v. Bales, 189 Cal. App. 2d 694, 11 Cal. Rptr. 639 (1961), the defendant was convicted of incest, rape, sodomy, and sex perversion. The court held incest was included within the greater crime of forcible rape. In reversing the conviction for incest, the court said: “From a careful examination of the evidence, it is clear that the allegation of incest committed with [the victim] on September 21, 1956, as alleged in count one, and the allegation of forcible rape of [the victim] on September 21, 1956, as contained in count two, arose from the same act of sexual intercourse with [the victim] on that date. Both convictions therefore cannot stand since the single act necessarily caused both crimes. The judgment convicting defendant of the less severely punishable offense should be reversed. [Citation omitted.]” 189 Cal. App. 2d at 704. Our holding in State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), that if the defendant is related to the victim as set out in 21-3603(1) he must be charged with aggravated incest and not indecent liberties with a child, conflicts with our holding in Moore,as does our decision in State v. Siard, 245 Kan. 716, 783 P.2d 895 (1989). In Siard, the defendant argued that his convictions for indecent liberties with a child and aggravated incest arise out of one act and are therefore multiplicitous. The Court of Appeals disagreed, pointing out that the defendant was charged with one count of aggravated incest and one count of indecent liberties with a child with each of his two daughters. “ There was sufficient evidence to charge and convict him of approximately thirty separate counts. The charges in this case were based on separate and distinct acts, not the same act or occurrence, and are not multiplicitous/ ” 245 Kan. at 722. In reversing the Court of Appeals on other grounds, we said: “We agree with the analysis of the Court of Appeals. However, as this case must be tried again, we suggest that it might be advisable for the trial court to make it clear in the instructions that the charges of aggravated incest and indecent liberties with a child cannot both be based upon the same sexual act.” 245 Kan. at 723. In Williams, this court, in essence, overruled Moore without ever mentioning or acknowledging its existence. In so doing, we did not embrace the rationale that there is one wrongful act, i.e., forcible sexual intercourse, and, where incestuous, die crime of incest is included in and merges with the crime of rape. Nor do we do so now. Although the conduct prohibited in aggravated incest and rape can be identical, i.e., sexual intercourse, the offenses are not. Aggravated incest requires the additional elements of a victim under 18 years of age, kinship, and that the offender be aware of the kinship. Rape requires force; aggravated incest does not. For that reason, we have held that aggravated incest is not included in nor merges with the offense of rape. Nor have we found the two offenses to be multiplicitous. Rather, we concluded that since aggravated incest is the specific offense and rape the general offense, the defendant should be charged only with aggravated incest. Here, based on our holdings in Williams and Sims, the district court did not lose jurisdiction, and where, as here, the petitioner is charged and convicted of rape of his daughter rather than aggravated incest, the proper remedy is to vacate the sentence imposed for rape and resentence the petitioner for aggravated incest. Any language to the contrary in Moore and our previous opinions is disapproved. The Court of Appeals erred in holding that the district court did not have jurisdiction to convict Carmichael. We agree with the Court of Appeals that the sentences imposed for the two counts of rape should be vacated. However, the defendant must be returned to the District Court of Sedgwick County to be re-sentenced for aggravated incest. The judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in part and reversed in part. The district court’s order denying the petitioner’s 60-1507 motion is reversed, the sentences imposed for rape are vacated, and the case is remanded to the district court with directions to resentence the petitioner in the original criminal case in conformity with this opinion. Holmes, C.J., not participating. Prager, C.J. Retired, assigned.	[ -112, -24, -83, -67, 42, -32, 11, 20, 41, -13, -78, 115, -85, 78, 4, 121, -37, 47, 85, 105, -44, -73, 87, -31, 114, -13, 59, 84, -73, -34, -18, -12, 8, 112, 74, 101, 98, 74, 5, 86, -114, 5, -104, -60, -111, -118, 52, 111, 26, 15, 49, 15, -77, 42, 16, 65, -55, 45, 91, -67, 88, -72, 27, 23, -33, 16, -93, -76, -68, -123, -8, 126, -104, 49, 0, -24, -78, -90, -122, -11, 79, -119, -84, 96, 99, 1, 92, -25, 40, -120, 46, 63, -99, 39, -38, 72, 106, 101, -106, -33, 114, 84, 14, 120, -29, -115, 53, -52, 12, -50, -72, -69, -117, 60, 2, 123, -61, 37, 0, 49, -59, -32, 76, 87, 88, 91, -102, -73 ]
The opinion of the court; was delivered by Valentine, J.: The plaintiff'Hall replevied certain goods from the defendant Jenness. Afterward, Adolph Cohen was made a party defendant, on the ground that ho was interested in the result of the suit. The pleadings wore a petition of the plaintiff', an answer of the defendant Jenness, and a reply of the plaintiff. The plaintiff” alleged nothing in his petition against the defendant Cohen; and Cohen filed no answer to the plaintiff’s petition, nor any other pleading of any kind. Hall claimed to own, and to be entitled to the possession of the goods; his petition was an ordinary petition in replevin. The answer set up special facts in defense, among which the following were admitted by the reply, and were therefore not in issue before the jury, and were not necessary to be proved: On the 10th of November, 1868, the defendant Adolph Cohen, obtained three judg ments before a justice of the peace in Leavenworth county, amounting in the aggregate to $527.55, aguinst Charles A. Bunting and Charles F. Earle. These judgments were filed in the district court of Leavenworth county, and executions thereon were issued and sent to said Jenness, sheriff of Franklin county, who levied on the said goods, which were worth $988,10, as the property of said Bunting. : The answer further alleges that these goods were at the time of'said levy in fact the property of said Bunting. This the plaintiff in his reply denies; and the issue raised in the case, as we think, is, whether the said goods were, at the time of said levy, the property of said Bunting, or the property of said Hall. The counsel for the plaintiff suggests that this issue is an immaterial one. We regard it as being a material one; and we think that the whole answer taken together constitutes a good defense to the plaintiff’s action. If Bunting owned the goods, the defendant Jenness got the same rightfully into his possession, and did not unlawfully or wrongfully detain them from the plaintiff; but if Hall owned the goods, then Jenness wrongfully took them int0 his possession, and wrongfully held them. The issue was tried by a jui’y, who found as follows: “We the jury find that at the commencement of this action, 'Richard E. Jenness had the right of possession of the property mentioned in the petition, and we find the value of the property to be $988.10; therefore, we the jury find for the defendants.” * This verdict is a substantial finding that the goods were at the time they were seized in execution the property of said Bunting; and the verdict is responsive to the issue. The court below, on tbe facts admitted in tbe pleadings, and tbe verdict of the jury, rendered a judgment in favor of tbe defendants jointly, and against J u ° tbe plaintiff Hall for “the sum of $578.80, “tbe debt' and interest due upon tbe executions “ mentioned in tbe defendant’s answer, and tbe further “sum of $30.85, tbe costs upon tbe same prior to tbe “commencement, and in addition thereto tbe costs of “ this suit.” Tbe counsel for plaintiff raises two other questions in tbe court: first, that tbe court erred in its charge to tbe jury; and second, that tbe court erred in rendering tbe judgment. There are two principles of law founded in soundest reason, and universally sustained by judicial decisions, that we think will settle tbe first question raised by counsel : First, A- reviewing court will never presume error, but tbe error, if any must be affirmatively shown. Second, And before a judgment will be reversed for error, it must be affirmatively shown that the error affects tbe substantial rights of tbe party camplaining; (Gen. Stat., 655, § 140.) In this case, as appears from the record, no portion of evidence in tbe court below was preserved; no bill of exceptions was signed by the judge; no motion for a new trial was made by the plaintiff; and whether all tbe instructions given by tbe court, or asked and refused, are brought to this court, is not shown. There is no admission on tbe part of tbe defendants, or either of them, in tbe pleadings or elsewhere, and not a particle of evidence tending to show that tbe plaintiff ever had tbe least or most remote interest in tbe goods in controversy. Then. upon-what principle can tbe plaintiff complain of any errors of the court in charging the jury ? It is true that when a party has introduced evidence that tends to prove his case, he has a right to have his case submitted to the consideration of the jury under proper instructions, and where incorrect instructions upon the point in controversy are shown to have been given to the jury, over the party’s objections, a reviewing court will not undertake to say that they did not operate to the injury of the party against whom they were so given, unless such fact is made clearly to appear; (Gillett v. Corum, 5 Kas., 608;) but such is not this case. In this case, according to the record brought to this court, it would have been proper for the court below to have instructed the jury, that, “As no evidence has been introduced on the part of the plaintiff, you will find for- the defendants.” The charge of the court however was not so unfavorable to the plaintiff as this. Again: Suppose that all the instructions given by the court were abstractly erroneous, and all the instructions asked by the plaintiff and refused by the court, embodied sound principles of law; still, there is nothing in this case that tends to show that the errors of the court affected the substantial rights of the plaintiff. The counsel also contends that the judgment rendered by the court was erroneous. This is probably true. The court rendered a judgment for $30.85, the costs upon the executions mentioned in the answer of the defendant Jenness, although there was no allegation in the pleadings, nor finding of the jury, that any such sum was due; but still this was an immaterial error, as the judgment as rendered by the court was far short of being as much as it ought to be. But the court committed a more serious error: The judgment was rendered for money absolutely, while, it should have been rendered in the alternative for a return of the property or the value thereof, in case no return could be had. Section 185 of our code (Gen. Stat, 663,) is precisely the same as §277 of the New York code; and this construction has been repeatedly and uniformly given to said action by the New York courts: Dwight v. Enos, 9 N. Y., 470; Fitzhugh v. Wiman, 7 N. Y., 559; Wood v. Orser, 25 N. Y., 348, 355, 360; Seamen v. Luce, 23 Barb., 240, 248; Glann v. Younglove, 27 Barb., 480; Gallarati v. Orser, 4 Bosw., 94; and see also Garrett v. Wood, 3 Kas., 231, 235; and Smith v. Coolbaugh, 19 Wis., 107, 110. Under said § 185 of our code the plaintiff has a right to return the property delivered to him under an order of replevin, if the judgment be against him, and it is error for the court to deprive him of that right. Wo also think that the court erred in rendering a judgment jointly in favor of the defendants. They had no joint interest in the property. The judgment should have been in favor of Jenness alone, as Cohen was not made a defendant in lieu of Jenness, under §§43 and 44 of the code; nor substituted for Jenness under §45 of the code; (Gen. Stat., 638.) lie was simply made a party defendant. Nothing was done to deprive Jenness, as sheriff,: of his sole and exclusive right to the goods or their value, until the executions should be satisfied. But this was' also an immaterial error, not affectiDg the substantial rights of the plaintiff as it could not be very material to him whether he paid the money to Jenness, or to Cohen, or to both jointly. The court also erred in making the amount of the judgment too small. The judgment was for the amount of the executions, to-wit, $609.65, while it should have been for the value of the goods replevied, provided a return of the goods could not be had, to-wit, for the sum of $988.10. No portion of these goods belonged to Hall; nor had ho any interest therein, as appears from the pleadings and the verdict of the jury. They were Bunting’s goods; and the sheriff is responsible to Bunting for them, or rather for all over and above what will satisfy the executions against Bunting. A sheriff cannot levy upon more goods than will satisfy an execution in his hands, and then allow any third party to come in and take the surplus. He must save the surplus inviolate for the original owner of the goods. But this is also an error of which the plaintiff Hall cannot complain. This case is remanded with instructions to the court below to modify said judgment in accordance with this opinion. All the Justices concurring.	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The opinion of the court was delivered by Davis, J.: The question raised by this appeal is whether real estate owned by the City of Wichita (City), acquired through civil forfeiture by law enforcement for drug law violations, is exempt from ad valorem taxation during the period of time the City holds the property prior to sale under law. The Board of Tax Appeals (BOTA) denied the exemption, and the district court affirmed. For the reasons set forth below, we affirm the district court. The facts are not in dispute. The City acquired a one-story single family dwelling with garage by forfeiture for violations of Kansas drug laws pursuant to K.S.A. 65-4135. The City owned the property from May 27, 1988, to September 13, 1989, for which period it requested an exemption from ad valorem taxation. The property remained vacant during the time the City held it. City narcotics officers maintained and repaired the property in anticipation of its sale. On September 13, 1989, the property was sold to a private party; pursuant to K.S.A. 65-4173, the proceeds went to fund police narcotics enforcement activities. The BOTA Decision BOTA considered the pertinent provisions of K.S.A. 79-201a, which provides in párt: “The following described property, to the extent herein specified, shall be exempt from all property or ad valorem taxes levied under the laws of the state of Kansas: “Second. All properly used exclusively by the state or any municipality or political subdivision of the state. All properly owned . . . by . . . any municipality . . . which is used or is to be used for any governmental or proprietary function and for which bonds may be issued or taxes levied to finance the same, shall be considered to be ‘used exclusively’ by the . . . municipality ... for the purpose of this section.” Acknowledging that the property was acquired by the City under Kansas drug forfeiture laws, BOTA determined that under K.S.A. 79-201a, “[t]he property must be being used or is to be used for a governmental or proprietary function. The Board finds that the ownership and holding of the property for future disposition is not a governmental function. Therefore, the Board concludes that the subject property fails to meet the statutory requirements for exemption prescribed by K.S.A. 79-201a Second and the applicant’s request should be denied.” The District Court Decision Relying on Tri-County Public Airport Auth. v. Board of Morris County Comm’rs, 245 Kan. 301, 777 P.2d 843 (1989), the district court concluded that “[exclusive use as defined by the statute requires actual use of the property for a public purpose”; that “[ojwnership of property solely for the purpose of producing revenue which may ultimately be used to finance a governmental function ... is not exclusive use as defined by K.S.A. 1988 Supp. 79-201a Second.” The court rejected the City’s argument that it was “using” the property to deter illegal drug activity even though the property was vacant and the City was holding it for sale. The court reasoned that exclusive use requires actual use and mere acquisition of property for the purpose of deterring crime is not actual use. The district court concluded that “[t]he statute is to be construed strictly against granting exemption. The BOTA Order denying exemption was, therefore, a reasonable interpretation of the law and was supported by the evidence before it.” Discussion, Analysis, and Holding Standard of Review K.S.A. 77-621(c) of the Act for Judicial Review and Civil Enforcement of Agency Actions sets forth the circumstances under which a district court may grant relief from an agency decision: “(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; “(2) the agency has acted beyond the jurisdiction conferred by any provision of law; “(3) the agency has not decided an issue requiring resolution; “(4) the agency has erroneously interpreted or applied the law; “(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; “(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification; “(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or “(8) the agency action is otherwise unreasonable, arbitrary or capricious.” The City contends it is entitled to relief under K.S.A. 77-621(c)(4), (7), and (8); BOTA erroneously interpreted or applied the law; the BOTA decision was not supported by the evidence; and the BOTA decision was unreasonable, arbitrary, and capricious. We have described the test to determine when agency conduct is arbitrary and capricious: “[T]he arbitrary and capricious test relates to whether that particular action should have been taken or is justified, such as the reasonableness of the [agency’s] exercise of discretion in reaching the determination, or whether the agency’s action was without foundation in fact.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989). We also have held that an agency’s action may be arbitrary and capricious when it is “not supported by substantial evidence,” and defined substantial evidence as “evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can be reasonably resolved.” Kansas Racing Management, Inc., 244 Kan. at 365. The City’s burden is significant, however, because the agency’s decision is presumed valid: “This court may not try the case de novo or substitute its judgment for that of the administrative agency. [Citation omitted.] A rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s actions.’’ Kansas Racing Management, Inc., 244 Kan. at 365. In Tri-County, 245 Kan. at 304-05, we summarized some basic principles governing review of BOTA decisions concerning the availability of tax exemptions. Those principles merit repeating here: “Whether particular property is exempt from ad valorem taxation is a question of law if the facts are agreed upon. [Citations omitted.] Taxation is the rule, and exemption from taxation the exception under the Kansas Constitution and statutes. [Citations omitted.] Constitutional and statutory provisions exempting property from taxation are to be strictly construed against the one claiming exemption, and all doubts are to be resolved against exemption. [Citations omitted.] Where the language of a statute, in particular, is relied upon as creating an exemption from taxation, it must be strictly construed against the party claiming the exemption, and he must bring himself clearly within the exemption. [Citations omitted.] Strict construction, however, does not warrant unreasonable construction. [Citation omitted.]” “[I]t is the function of a court to interpret a statute to give it the effect intended by the legislature.” National Collegiate Realty Corp. v. Board of Johnson County Comm’rs, 236 Kan. 394, 404, 690 P.2d 1366 (1984) (quoting Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d 108, 673 P.2d 456 [1983]). Although courts will give consideration and weight to an administrative agency’s interpretation of a statute, they will not adhere to that interpretation when the statute is clear and the agency’s ruling is incorrect. The final construction of a statute rests within the courts. Statutory construction is clearly within the province of the trial court and the appellate courts to determine. See 236 Kan. at 404. The Forfeiture Statute The property at issue was seized by the City pursuant to K.S.A. 65-4135, which provides in pertinent part: “(a) The following are subject to forfeiture: (7) all real property, including any building or structure thereon, which is used or intended for use in violation of this act, if such violation constitutes a felony . . . (The statute then includes some exceptions, which are not at issue here.) If the forfeited property is not harmful to the public and the law does not require that it be destroyed, “the law enforcement agency to which the property is forfeited shall: (1) Sell the property in accordance with subsection (d); or (2) if the property is not subject to a lien which has been preserved by the court, retain the property for official use.” K.S.A. 65-4172(b). K.S.A. 65-4172(d) essentially requires that the property be sold, after proper notice, to the highest bidder “for cash without appraisal.” The forfeiture statutes have been held to be penal in nature, even though the forfeiture proceedings are civil. City of Lenexa v. A Maroon 1978 Chevrolet, 15 Kan. App. 2d 333, 335, 807 P.2d 694 (1991). Kansas forfeiture law is similar to the federal forfeiture law. See City of Lenexa, 15 Kan. App. 2d at 335. We are mindful that the United States Supreme Court has held that the federal forfeiture law is penal in nature and subject to the limitations of the Eighth Amendment’s Excessive Fines Clause. Austin v. United States, 509 U.S __, 125 L. Ed. 2d 488, 503-06, 113 S. Ct. 2801 (1993). We acknowledge that one purpose of the forfeiture statute is to deter future unlawful activity. See Austin, 509 U.S. at _, 125 L. Ed. 2d at 504. We also recognize that in this state all of the revenue generated from the sale of forfeited property is returned to law enforcement to cover costs of this and future enforcement activities. The proceeds from the sale of the forfeited property must go to pay the costs of storage, maintenance, and security of the property. The balance is payable to a special law enforcement trust fund for the agency (or agencies) that effected the forfeiture. See K.S.A. 65-4173. Viewed in light of our limited standard of review, Tri-County is dispositive of the issue before us. In Tri-County, the City of Herington created the Tri-County Public Airport Authority and conveyed to the Authority air base property it had acquired from the United States Government. The Authority operated a public airport on part of the property and leased the remainder to various private entities to generate money to operate the airport.. 245 Kan. at 302. The Authority sought a determination that all of its property was tax exempt under the same statutory provision at issue here. Morris County did not contest the exemption for property used for airport purposes but challenged the availability of the exemption for the property the Authority leased for revenue production. All of the revenue generated by the leased property was used to finance airport operations and debt service on airport revenue bonds. The Authority’s conduct was within the law. Kansas law authorized the Authority to levy taxes to finance its operations. Kansas law also authorized the Authority to own and operate property for revenue production from nonaviation businesses. The Authority financed the airport solely from the revenue generated by its lease operations, rather than levying taxes or issuing bonds. 245 Kan. at 302-03. In Tri-County, the Authority did not contend that it performed a governmental function when it leased its property for purposes unrelated to airport activity but contended that in leasing the property to finance the airport, it was using the property for a governmental or proprietary function. 245 Kan. at 308. The County argued that no public function was being carried out on the land, so it was not “used exclusively” for a governmental or proprietary purpose. BOTA and this court determined that the Authority’s non-airport property, which it held and leased to raise money to operate the airport, was not exempt under K.S.A. 79-201a Second. In so holding, we noted that statutory authority to own the property did not “necessarily mean that the property is being ‘used exclusively’ for the required purpose under 79-201a Second so as to qualify for ad valorem tax exemption.” 245 Kan. at 308. We also noted that the mere ownership of property by an exempt entity was not enough to qualify for the exemption. 245 Kan. at 309. Strictly construing the statutory exemption, we concluded that “exclusive use of property as defined by K.S.A. 1988 Supp. 79-20 la Second requires actual use of the property for a public purpose.” 245 Kan. 301, Syl. ¶ 4. We also rejected the Authority’s contention that its use should be considered proprietary, and thus adequate for purposes of the exemption: “The use must be in the nature of a public use even though proprietary in nature.” 245 Kan. at 310. We acknowledge that in Tri-County the Authority sought a tax exemption for revenue producing property. The City here did not lease the property, and the property did not generate any revenue for the City during its ownership — it did not generate any funds until it was sold. We do not find this difference material. In both cases the government entity held title to the property, did not actually use the property, acquired revenue from the property, and used that revenue for a public purpose. In addition to its reliance on Tri-County, the Board of Sedgwick County Commissioners (County) argues that Washburn College v. County of Shawnee, 8 Kan. 344 (1871), controls. In Wash-burn, the statute exempted property “used exclusively for . . . literary, educational . . . purposes.” 8 Kan. at 348. The college acquired ownership of property and expressed an intention to occupy it as a permanent site. The court held that the college did not show an actual use — “[a]n intention to occupy is not equivalent to occupation [and] does not tend to prove it.” 8 Kan. at *349. Thus, the County reasons, because the City was merely holding the property, it was not actually using it and is not entitled to the exemption — even if the ultimate sale and disposition of proceeds was a governmental or proprietary function. The City responds by directing the court’s attention to Durkee v. Comm’rs of Greenwood Co., 29 Kan. 697 (1883). In Durkee, the county acquired property from a defaulting county treasurer in partial payment of the debt he owed the county. This court held: “In accepting the land, the county authorities were not going into the real-estate business for speculative purposes, or to use the same for other than county purposes. Therefore, as the property was taken to satisfy a debt due to the county, and was taken and used exclusively for county purposes, it was exempt from taxation.” 29 Kan. at 699. The court distinguished the Washburn case because in Washburn the college acquired the property for the sole purpose of erecting the college on it but did not do so and did not use it for any actual use of the college: “Here the property was taken to secure a debt; and while not in actual use, in the way of cultivation or with public buildings, nevertheless it was held for the use of the county, and exclusively for the county, and when sold the proceeds were for the use and benefit of the county.” Durkee, 29 Kan. at 699. In Durkee, however, the mere acquisition and sale of the property amounted to a use that served a public purpose — it satisfied a debt owed to the county. In the present case, acquisition and sale of the property is incidental to the public purpose of law enforcement. The primary problem with the City’s position is its reliance upon the argument that the actual or potential deterrent effect of acquiring the property is an exclusive use of the property as required by K.S.A. 79-201a. There is no question that die purpose of the forfeiture statutes is accomplished by forfeiture of the property and, in that respect, the forfeiture accomplishes a governmental purpose. However, Tri-County requires “actual use” of the property. As in Tri-County, that requirement is not satisfied here. The City acquired the property through statutory procedures, as did the City of Herrington and the Authority in TriCounty. The City used the revenue from the property at issue for a public purpose. In Tri-County, that purpose was the public airport; here, that purpose is law enforcement. The property here stood vacant; no one actually used it, although the City used the revenue generated from it. In Tri-County, the Authority did not actually use the property, but used only the revenue generated from it. Thus, in both cases the government entity held title to property, did not actually use the property, acquired revenue from the property, and used that revenue for a public purpose. In TriCountyÚie property was not exempt. Tri-County supports a finding that the property at issue here is not exempt. There may be, as the City points out, policy reasons supporting an exemption for property acquired through the statutory forfeiture procedures at issue here. Such matters, however, are for the legislature to decide. It is not for this court to read into the statute an exemption because such would be beneficial in accomplishing the purposes of our Kansas forfeiture law. If the legislature considered that tax exemption would promote the policy behind the forfeiture, it could provide for the exemption in the statute. Tri-County requires us to find actual use of the property, and the property at issue was not used in the sense that term normally is understood. Although “use” also can mean purpose or end, the term “use” typically contemplates some active, actual utilization of the property. Black’s Law Dictionary defines “use” as: “Act of employing everything, or state of being employed; application, as the use of a pen, or his machines are in use. Also the fact of being used or employed habitually; usage, as, the wear and tear resulting from ordinary use. [Citation omitted.] The purpose served; a purpose, object or end for useful or advantageous nature. [Citation omitted.] To put or bring into action or service; to employ for or apply to a given purpose. [Citation omitted.] To avail oneself of; to employ; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end. [Citation omitted.]” Black’s Law Dictionary 1541 (6th ed. 1990). The determination of tax exemption under the statute depends to a large extent upon the status of the property in the hands of the owner and whether it actually is being used for a public purpose. The property in question was lying dormant during the pertinent time. It was not being used by anyone and was held for sale with proceeds committed to associated expenses and future governmental purposes. This does not constitute actual use as contemplated under K.S.A. 79-201a. We believe that strict construction of the statutory exemption requires this result. Moreover, our review of the BOTA decision is limited, and we conclude its interpretation of the statutory exemption is not so unreasonable that it rises to the level of being arbitrary and capricious. Accordingly, we conclude that the district court correctly interpreted and applied the law and that its decision is supported by substantial competent evidence. Affirmed.	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The opinion of the court was delivered by Sanford, J.: A considerable portion of the argument in this case, has been directed to the consideration of questions relating to some of the pleadings which were filed therein, in the court below. They do , " not appear to have been raised in any manner during the progress of the cause, until it reached this court, but have been presented for the first time here. Such being the case, and it being clear that the petition — which is the pleading objected to — stated a good cause of action, and no point being made as to the jurisdiction of the court, we are not required, under the rules which govern in such cases, to enter upon a discussion of, or to decide as to the sufficiency or propriety of such petition in other respects. II. Our attention has also' been called to certain instructions, which it is alleged were asked to be given to the jury on the part of the plaintiffs in error, and refused by the- court. We refer to numbers two and three as they appear in-the record. The bill of exceptions is conflicting as to whether they were so refused or not. In one place it states that they were refused; while in another, and where it seems that an. amendment was made to the bill by the judge himself, and just before his signature, the statement is distinctly made, that the two instructions referred to were given. Under these circumstances, we shall regard the latter statement as the correct one; and hence it will not devolve upon us to further notice this part of the case. TTT: But objection is made with respect to the action of the court in refusing to give the instruction which is designated as number one in the record, and ° also, m giving a certain other instruction which was included in the general charge; both of which are set out in the record, and are as follows : No. 1. “ Under the written contract Johnson & Wiggins were to receive $3.75 per perch for performing the whole of the stone work. As they only finished a part of the work, the value of the part they did perform, can be ascertained by the cost of completing the remainder of the building.” General charge: “ If the jury believe that when Johnson and Wiggins abandoned the work, they did so in consequence of Hale and McClure’s not furnishing material as required by Johnson and Wiggins, then plaintiffs, would be entitled to recover $3.75 per perch actually erected, and for such damages as may have been proven that Johnson and Wiggins suffered in consequence of the failure of Hale and McClure to comply with their part of the contract.” We are of the opinion that thé court was right in refusing the first of these instructions. It is no doubt true, that the rule which it is quite plain was intended to be expressed therein, or at least one similar in principle, might be found to apply in some measure to a case substantially like the one stated in the pleadings in this record; but if so applicable, it would be necessary that it should be couched in such terms as would not be calculated to mislead the jury, when they should come to pass upon the evidence in the light of such rule. Such was not the case here. The instruction as it stands — and especially when considered in connection with some of the facts which are stated to have been proven, is eminently unfair in the criterion it furnishes by which to estimate the value of that portion of the work which was performed by the plaintiff. The term or expression “cost of completing,”-etc., is used in an unrestricted sense, and under the evidence might have been held by ■the jury to include whatever the defendants below might have shown they had paid, or had seen fit to agree to pay, for the completion of the work, even to an amount much greater than the actual and reasonable value thereof. It hardly needs to be said, that the giving of an instruction which would have permitted the jury to go to the extent indicated, would have been improper. As to the last instruction above set out, we think it was wrong, and for the reason that it is not in conformity with the rule laid down in the statute by which to estimate the amount which a party in a case of this kind is entitled to recover. This was an action brought under the provisions of the Mechanics’ Lien Act, ch. 137, Comp. L. 1862. Section 11 of said act provides as follows: “ Sec. ll.-"When the owner of thé land shall have failed to perform his part of the contract, and by reason thereof the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reasonable compensation for as much thereof as he has performed in proportion to the price stipulated for the whole; and the court shall adjust his claim accordingly.” The difference between the rule here established and that expressed in the instruction given is apparent at a glance, and needs not to be enlarged upon. For the error of the court below in giving tbis instruction tbe judgment must be reversed, and the cause sent back for a new trial. Valentine, J., concurring.	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The opinion of the court was delivered by Abbott, J.: This is a consolidated appeal from judgments in two separate mortgage foreclosure actions involving the same tract of real estate. Three mortgage liens are involved. Bank Western is the assignee-holder of the first mortgage lien. Bank Western failed to record its assignment until after second and third mortgages were executed and filed and the third mortgage holder had foreclosed. The issue is priority of mortgage liens under the complex, but largely undisputed, facts of this case. On September 8, 1971, Billy Joe Henderson and his wife, Marilyn Henderson, executed and delivered a purchase money first real estate mortgage on the property in question to James B. Nutter & Company (Nutter). Nutter is not a party to this appeal. This mortgage was for a principal consideration of $27,300 and was timely filed of record in Johnson County. In June 1973, this mortgage was assigned by Nutter to Lincoln Savings Bank (Lincoln). Lincoln timely placed its assignment of record. In 1981, the Hendersons executed a second mortgage on the property in favor of CIT Financial Services, Inc., (CIT) in the principal amount of $20,000. This mortgage was placed of record in a timely manner. CIT changed its name to Hanover CS Corporation (Hanover), and later Hanover changed its name to American General Financial Services, Inc. (American General). On March 25, 1988, the Hendersons executed and delivered a third mortgage covering the real estate to MidAmerican Bank & Trust Company (MidAmerican). This mortgage was for a principal consideration of $50,000, and it was placed of record by MidAmerican on March 31, 1988. On April 15, 1988, Lincoln assigned'the first mortgage to Bank Western, a federal savings bank. Bank Western did not record the assignment until a later date (fall of 1991). The Hendersons went into business in 1988 and gave Mid-American the third mortgage as additional collateral for the business loan. The business failed, and in early 1991 MidAmerican filed a mortgage foreclosure action (case No. 91-C-1124). MidAmerican obtained service on Lincoln and on Hanover by publication in The Legal Record and did not mail a copy of the publication notice to Lincoln because it did not have an address for Lincoln (and did not inquire of the Hendersons where they were making their first mortgage payment). Bank Western was not named as a defendant and received no notice of the mortgage foreclosure action. The Hendersons continued to make their first mortgage payment, and the first mortgage to Bank Western was current to May 1, 1991, On May 6, 1991, judgment was entered in case No. 91-C-1124, foreclosing MidAmerican’s mortgage and holding Hanover and Lincoln to be in default. MidAmerican’s mortgage was declared to be a first and prior lien. The property was ordered sold at sheriff’s sale with a six-month period of redemption. On June 12, 1991, the sheriff’s sale was held, and the property was purchased by MidAmerican. This sale was confirmed on June 21, 1991. We note that, on the date judgment was entered foreclosing MidAmerican’s mortgage, Bank Western’s assignment from Lincoln had not yet been placed of record. (It was recorded on either October 17 or November 17, 1991.) As pointed out earlier, Hanover had changed its name to American General. American General had not been served with process in the mortgage foreclosure action and took the position that it had no notice of that action. American General filed a motion to set aside the default judgment against Hanover. This motion was granted. American General then filed a motion to add Bank Western as a party defendant. At some later time, American General and MidAmerican reached an agreement wherein MidAmerican paid American General the full amount of its second mortgage Hen. Upon receipt of that amount, American General withdrew its motions and orders to set aside the. default judgment and to add Bank Western as a defendant. Pursuant to an agreement between MidAmerican and American General, the order setting aside the sale was itself set aside on January 17, 1992, and the status quo. was restored. The Hendersons were given an additional three months from January 17, 1992, within which to redeem the property. Bank Western itself then moved to set aside that portion of the judgment in favor of MidAmerican dealing with the first mortgage. This motion was granted on May 28, 1992, and Bank West- em was made a party defendant and filed its answer and counterclaims. Bank Western filed case No. 92-C-1185 in early 1992. The petition named as defendants the Hendersons, CIT, and Mid-American and sought to obtain a judgment against the Hendersons in the unpaid amount of the note and to foreclose the first mortgage lien on the property. In this action, Bank Western sought to have its mortgage adjudged as the first and prior mortgage hen on the real estate and asked for a determination to the effect that whatever interest MidAmerican had in the property was inferior to the mortgage lien of Bank Western. The trial court in case No. 92-C-1185 dismissed Bank Western’s cause of action to foreclose its mortgage by journal entry filed April 29, 1992. It held that Bank Western had no interest in the property described in its first mortgage. The trial court concluded that since the interest of its assignor, Lincoln, had been extinguished in case No. 91-C-1124, Bank Western was bound by such findings, which also extinguished its interest in the property. On November 12, 1992, the trial court filed a memorandum opinion in the original mortgage foreclosure action (case No. 91-C-1124) granting summaiy judgment in favor of MidAmerican and against Bank Western. The court held that Bank Western’s failure to record its assignment had the effect of nullifying its mortgage. As a consequence, the trial court dismissed Bank Western’s counterclaim to foreclose its first mortgage lien. The court concluded that Bank Western had no legal or equitable right in or to the real estate on which it held the first mortgage. Bank Western appealed the decisions in both 91-C-1124 and 92-C-1185, and the cases were consolidated for appeal. The Court of Appeals in an unpublished decision reversed the decisions of the district courts and remanded for further proceedings, suggesting that the cases be consolidated in the district court. The Court of Appeals held in case No. 92-C-1185 that the judgment against Lincoln in case No. 91-C-1124 was not binding on Bank Western because the district court in case No. 91-C-1124 had not held Bank Western to be so bound and that, in any event, the district court properly set aside the judgment as to Bank Western in case No. 91-C-1124 pursuant to K.S.A. 60-309 (default judgment based on publication service may be set aside within two years of judgment if party had no actual notice). Thus, the Court of Appeals held, the district court erred in holding in case No. 92-C-1185 that Bank Western was bound by the default judgment against Lincoln in case No. 91-C-1124. In case No. 91-C-1124, the Court of Appeals held that Bank Western did not lose the right to foreclose its mortgage lien by failing to record its assignment. The court reasoned that Mid-American, having purchased the property at the sheriffs sale, was not an innocent purchaser. Bank Western’s first mortgage had been recorded since 1972, and Bank Western’s failure to record the assignment related only to ownership of the mortgage, not to the validity of the mortgage. The court held that the recording of an assignment is not essential to the validity of the underlying instrument. The court pointed to several older Kansas Supreme Court decisions in support of its decision. Thus, according to the Court of Appeals, Bank Western’s failure to record its assignment did not render the mortgage null and void, and Bank Western was entitled to foreclose that lien. However, the Court of Appeals did imply that Bank Western’s failure to timely record its assignment may influence the priority given to its mortgage and that priority was an issue for the district court upon remand. This court granted review. The Court of Appeals relied on a series of older Kansas Supreme Court decisions, many of which were recently cited with approval in Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 774 P.2d 919 (1989), though the court distinguished the Army Nat’l Bank case. . . Kansas statutes provide some guidance as to assignments of mortgages, but they do not resolve the issues in this matter. K.S.A. 58-2308 provides for recording the discharge or assignment of a mortgage: “Every such instrument, and the proof or acknowledgment thereof, shall be recorded at full length by the register of deeds, and a reference shall be made to the book and page containing such record or to the microphotograph number in the general or numerical indexes under the notation that such mortgage has been assigned or satisfied.” K.S.A. 58-2321 requires an assignee of a mortgage to give the mortgagor credit for payments made to the assignor if the assignment is not recorded: “In cases where assignments of real estate mortgages are made after the passage of this act, if such assignments are not recorded, the mortgagor . . . may pay all matured interest or the principal debt itself prior to the recording of such assignment to the mortgagee, or if an assignment of such mortgage has been made that duly appears of record, then such payment may be made to the last assignee whose assignment is recorded in accordance with the provisions of this act . . . These statutes clearly contemplate that assignments of mortgages should be recorded and that the failure to record cannot prejudice the mortgagor. The statutes, however, are silent as to the effect failure to record has on the rights of the assignee in relation to junior mortgagees. As the Court of Appeals pointed out, this case does not involve an innocent purchaser of property. MidAmerican had notice that there were two prior mortgages of record at the time it took its mortgage in March 1988. The Hendersons revealed the first mortgage in its financial statement given to MidAmerican. It was specifically and conspicuously shown in the “ownership and encumbrance” report provided the bank by a title insurance company and in a credit bureau report. In addition, at the time Mid-American took the third mortgage, Lincoln, Bank Western’s predecessor in interest, in fact held the first and prior mortgage, and this was of record. It was not until after MidAmerican took its mortgage that Lincoln assigned its first and prior mortgage to Bank Western in April 1988. Thus, MidAmerican in no way relied on Bank Western’s failure to record its assignment in taking its mortgage third in line. The general rule is that the first to record a mortgage has priority. The priority continues as long as the mortgage is not released. There is nothing in the statutes or case law which indicates that an assignment of a mortgage or the failure to record that assignment somehow affects die priority of the mortgage. “An assignment of a mortgage is merely a formal transfer of title to the instrument.” Middlekauff v. Bell, 111 Kan. 206, 207, 207 Pac. 184 (1922). In Middlekauff', Commercial State Bank took a mortgage. A year later, the mortgage was assigned to Middlekauff, but the assignment was not recorded. Three years later, Palmer, who held a mortgage on other property of the debtor, considered taking a mortgage junior to the one of record of Commercial State Bank, and the Bank told Palmer that its mortgage had been paid and would be released. At that time, Commercial State Bank had already assigned its mortgage to Middlekauff. Palmer took its mortgage and later instituted foreclosure proceedings. Neither Commercial State Bank nor Middlekauff, who still had not recorded her assignment, were parties to that action. This court recognized the existence of what is now K.S.A. 58-2223 (“No such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.”). However, this court stated: “An assignment of a mortgage is merely a formal transfer of title to the instrument, and the assignment from the bank to the plaintiff [Middlekauff] was admittedly good for that purpose. The plaintiff, however, did not need the assignment in order to invest her with ownership of the mortgage. She acquired full title by purchase of the note which it secured, and the assignment may be excluded from consideration without prejudice to her lien. The mortgage was recorded, was unreleased, and was notice of hen, no matter who owned it; Palmer did not take his mortgage on faith in the record, but in opposition to the record; and instead of the sections referred to determining the controversy in favor of the investment company, another section of the general recording act, providing that recorded instruments, entitled to record, impart notice to subsequent mortgagees (Gen. Stat. 1915, § 2069 [now K.S.A. 58-2222]), determines the controversy in favor of the plaintiff.” Ill Kan. at 207. Significantly, the court further stated: “One who acquires a negotiable note, secured by recorded mortgage, is not, as to subsequent purchasers or mortgagees, the possessor of a mere ‘secret equity,’ if no assignment of the mortgage be placed on record. Record of the mortgage is notice of its existence, and the holder is not obliged to disclose his ownership by recording his assignment in order to preserve priority of his lien.” Ill Kan. at 212. As in Middlekauff, Bank Western here does not hold a secret equity by Virtue of its failure to record its assignment. The underlying mortgage was duly recorded and was effective to give MidAmerican notice of a superior lien. MidAmerican took its mortgage in opposition to this superior lien. It mattered not who actually owned the first mortgage; it was enough that Mid-American had notice of it. In Anthony v. Brennan, 74 Kan. 707, 87 Pac. 1136 (1906), the assignee of a mortgage sought to establish his ownership. The assignee had obtained a written assignment from only one of the mortgagees and not from the others. However, the note and mortgage were transferable by mere delivery, without a written indorsement. This court held that delivery and possession were sufficient. It was argued that a subsequent act relating to the assignment of mortgages (L. 1899, ch. 168) would change that result. The provisions of that act now substantially appear in K.S.A. 58-2301 et seq. This court stated; “That act does not undertake to limit the methods by which real-estate mortgages may be transferred, and it does not provide that the failure to make a record of an assignment of a mortgage shall invalidate the security or the transfer. It was intended as a protection to mortgagors, and the only penalty prescribed for not recording the transfer is that all payments made by the mortgagor to the mortgagee or to any one who appeared to be the owner shall be credited to the mortgagor, although the assignee never received such payments.” 74 Kan. at 709. As with the Laws of 1899, chapter 168, there is nothing in the current act governing real estate mortgages which limits the methods by which such mortgages can be transferred or which provides a penalty for the failure to record an assignment, excépt that the assignee must give the mortgagor credit for payments made to the last mortgagee or assignee of record. K.S.A. 58-2321. In Exchange State Bank v. Central Trust Co., 127 Kan. 239, 273 Pac. 477 (1929), a mortgage was taken on January 2, 1920, and duly recorded on January 16, 1920. Four days after the mortgage was recorded, it was assigned, but the assignee did not record the assignment until 1926. Meanwhile, in 1925'-the assignor sought and received a judgment foreclosing the mortgage. After the assignee recorded the assignment, the assignor, who had purchased the property at sheriff’s sale, placed the property as collateral for a mortgage with a trust-company. The trust company Obtained an abstract of title which did not disclose the.-assignment of the original mortgage, and the trust company had no actual notice or knowledge of the assignment. Several months later, the assignee discovered the actions its assignor had taken with respect to the mortgage and property. At issue were the rights as between the assignor and the assignee, where the assignor had foreclosed on the mortgage despite not being the owner of the mortgage, and the rights between the assignee and the trust company with respect to the property. This court stated: ‘When plaintiff [assignee] discovered what Haas [assignor] had done, it could choose one of two courses of action: It could repudiate the foreclosure proceedings on the ground of fraud, and itself foreclose the Caskey mortgage; or it could confirm the regularity and validity of the foreclosure proceedings as vesting title in Haas [assignor], and hold him as trustee of the title for plaintiff’s benefit.” 127 Kan. at 242. The first course of action is supported by Insurance Co. v. Huntington, 57 Kan. 744, 48 Pac. 19 (1897). Once the mortgage is assigned, the mortgagee/assignor no longer has any right in the mortgage, and any judgment the mortgagee/assignor obtained would have been fraudulent. The assignee in Exchange State Bank, however, chose the latter course, to confirm the foreclosure by the assignor and hold the assignor as trustee. But because the mortgage had been foreclosed and the property sold at the time the assignee recorded the assignment, which the assignee confirmed by his actions, when the assignee recorded the assignment there was no longer a mortgage in existence. The foreclosure was recorded, giving notice that the mortgage was extinguished on April 18, 1925. Thus, the attempted recording of the assignment in 1926 was ineffective as there was no mortgage to be assigned once it had been foreclosed. Exchange State Bank, 127 Kan. at 244. This court, therefore, held that the trust company’s lien was superior to that of the assignee. 127 Kan. at 245. MidAmerican contends that Exchange State Bank supports its position and that the reasoning is applicable here. However, MidAmerican misinterprets the reasoning of Exchange State Bank. The. decision there hinged on the assignee’s confirmation of the foreclosure by his assignor. This court, recognized in the quoted language above that the assignee had two options. Had the assignee there followed the first course and set aside the judgment of foreclosure, then implicit in the court’s decision is that the recordation of the assignment would have been valid and would have protected the priority of the assigned mortgage. It was only because the assignee confirmed the foreclosure by adopting the second alternative course of action that priority and the mortgage itself was lost. The assignee’s rights were only lost because, at the time the assignment was recorded, there was no mortgage in existence. The trial court in case No. 91-C-1124 granted Bank Western’s motion to set aside the default judgment as to Bank Western, reasoning that Bank Western had no actual notice of the foreclosure proceedings, that Bank Western acted with reasonable promptness upon learning of the foreclosure proceedings, and that Bank Western’s failure to record the assignment did not preclude it from asserting its rights in the property once it learned of the default. The Court of Appeals expanded on the trial court’s ruling in case No. 91-C-1124 and held that, in addition to the trial court not having held Bank Western to be bound by the default judgment against Lincoln, K.S.A. 60-309 permits the default judgment to be set aside because service was based on publication. K.S.A. 60-309(a) states: “A party against whom a judgment has been rendered without other service than publication in a newspaper, may, at any time within two (2) years after the entry of the judgment, have the same opened and be let in to defend. Before the judgment may be opened the applicant shall give notice to the adverse party of his or her intention to make such an application and shall file a full answer to the petition, pay all costs if the court require them to be paid, and make it appear to the satisfaction of the court by affidavit that during the pendency of the action the applicant had no actual notice thereof in time to appear in court and make a defense. The adverse party on the hearing of the application may present counter affidavits.” The trial court found that Bank Western did not have actual notice of the action in time to appear and defend against it. The trial court properly set aside the default judgment against Bank Western in case No. 91-C-1124. It appears that Lincoln would be entitled to set aside the default judgment upon a timely motion and showing that it had no actual notice of the action. Because MidAmerican seeks to bind Bank Western as standing in Lincoln’s shoes, if Lincoln is entitled to seek to set aside the default judgment, then Bank Western must also be so entitled. MidAmerican contends that because Bank Western was not named as a defendant, it must first seek to intervene in the action pursuant to K.S.A. 60-224. Yet this position is contrary to the publication notice by MidAmerican, which gave notice to Lincoln and “the unknown heirs, executors, devisees, creditors and assigns of such defendants.” Though such language may be mere formality, it recognizes that an unknown assignee of Lincoln may assert its interest. Bank Western’s mortgage is derived from the assignment from Lincoln. Lincoln had the right to seek to set aside the judgment and so did Bank Western as Lincoln’s assignee. Bank Western’s motion to set aside the judgment was timely, and the trial court did not err in granting the motion. Bank Western has done here what this court in Exchange State Bank acknowledged may be done: Bank Western obtained an order setting aside the foreclosure in favor of MidAmerican as a first and prior lienholder. Though the basis here was not fraud, as was recognized in Exchange State Bank, the effect is the same. Once the judgment was set aside, Bank Western was entitled to defend in the action on any legal basis. One of those bases was its assignment of the first mortgage from Lincoln, properly recorded by the time the judgment was set aside. The trial court, however, granted summary judgment in favor of MidAmerican as against Bank Western’s claim to have a first and prior mortgage. The court pointed to two statutes. The first, K.S.A. 58-2222, states: “Every such instrument in writing, certified and recorded in die manner hereinbefore prescribed, shall from the time of filing the same with the register of deeds for record, impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.” The second, K.S.A. 58-2223, provides that “[n]o such instrument in writing shall be valid, except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” The trial court recognized the rule that an assignee takes no greater interest or rights than his or her assignor has. The court relied upon Exchange State Bank and Army Nat’l Bank and stated, “recordation of an assignment is necessary to perfect a mortgagee’s interest as against other creditors of the mortgagee.” The trial court entered summary judgment in favor of MidAmerican. Both MidAmerican and the trial court relied on Army Nat’l Bank, 245 Kan. 3. That case does not provide much assistance in this case because it was governed by the Uniform Commercial Code and was not a pure mortgage foreclosure action. In Army Nat’l Bank, Equity Developers had executed nine construction notes secured by mortgages to Equibank Corporation in 1984. Equibank then executed a note in favor of what became the Bank of Kansas City (BOKC), listing the nine notes from Equity Developers as security. Equibank endorsed the notes and assigned the mortgages to BOKC on November 16, 1984, but BOKC did not record the assignment until February 12, 1986. Equibank then entered into an agreement with Army National Bank on May 20, 1985, to subordinate its interest in the notes and mortgages to Army. Army claimed an interest in the notes and mortgages. At issue was the priority between BOKC and Army. This court concluded that the priority was governed by the Uniform Commercial Code based on when the security interest in the notes was perfected. This court observed that K.S.A. 1988 Supp. 84-9-304(1) requires that a security interest in instruments can only be perfected by possession. 245 Kan. at 13. BOKC had taken possession of the notes, though it did not record its assignment until more than one year later. This court noted that it had not in recent years addressed whether an assignment of a mortgage must be recorded. We discussed Anthony, 74 Kan. 707, and Middlekaujf, 111 Kan. 206, and stated: “[F]ailure to record an assignment of a mortgage is only a fatal error where it has prejudiced the rights of the mortgagor.” Army Nat’l Bank, 245 Kan. at 17. We then held that the “the mortgage follows the note. A perfected claim to the note is equally perfected as to the mortgage.” 245 Kan. at 17. This court determined that BOKC had priority because Army had failed to take possession of the notes, though Army had no notice of the assignment when it entered into its subordination agreement with Equibank. 245 Kan. at 20. This court further held that when Equibank subordinated its interest to Army, it actually had no interest to subordinate. 245 Kan. at 22. It is evident that Army Natl Bank involved unique facts and circumstances. Most significant, the priority dispute between BOKC and Army involved Army’s purported interest in the same notes of which BOKC had possession. Further, the case involved the validity of a subordination agreement Army entered into with Equibank after Equibank had assigned the notes to BOKC. The trial court here pointed to the following language in Army Nat'l Bank, 245 Kan. at 19: “We reason that the mortgagee’s creditor would be perfected by possession as to other creditors of the mortgagee, but would be required to record its interest in order to be perfected as to creditors of the mortgagor.” The trial court held this rule to be dispositive, but we find that this isolated quote from Army Natl Bank is not controlling. First, Army Nat'l Bank, as noted by the Court of Appeals, did not involve strictly mortgage foreclosure actions. Further, we do not have here a creditor of a mortgagee competing with a creditor of the mortgagor as was the case in Army Natl Bank. Rather, we are only balancing the interests of two creditors of the mortgagor. In any event, the Army Natl Bank quote is not inconsistent with the holding of the Court of Appeals. MidAmerican asserts that the quote signifies the need for one creditor of the mortgagor to record in order to retain priority over other creditors of the mortgagor. What this argument ignores is that the first mortgage here was already properly recorded. It was only the assignment which was . not recorded. As discussed above, nothing in the statutes or case law requires that the assignment of a prior mortgage be recorded in order to maintain priority status over the junior mortgagees-. Thus, when the original first mortgage was properly recorded here, ;it was effective, and the priority established thereby was -not- divested by Bank Western’s failure to record its assignment: . .. MidAmerican had notice that there were two prior duly recorded mortgages at the time it took its third mortgage. Bank Western’s failure to record its assignment did not induce MidAmerican into taking its mortgage; in fact, the assignment from Lincoln to Bank Western did not occur until after Mid-American took its third mortgage. MidAmerican was not prejudiced by Bank Western’s failure to record its assignment. The first mortgage, whoever owned it, was unreleased of record at the time MidAmerican instituted its foreclosure action. MidAmerican knew when it instituted its foreclosure action that its mortgage was inferior to the prior mortgages. The judgment MidAmerican obtained was properly set aside, and MidAmerican was aware that, having obtained judgment by default against American General and Lincoln, it was subject to having its judgment set aside. The fact that Bank Western, as Lincoln’s assignee, is now the party defending the action as to the first mortgage in no way puts MidAmerican in a worse position than if Lincoln had not assigned its mortgage and Lincoln were defending the action as to the first mortgage. The Court of Appeals decision reversing the judgment of the district court is affirmed. The decision of the district court is reversed.	[ 115, 104, -7, 46, 10, 96, 42, 24, 91, -127, -91, 83, -49, -53, 13, 109, -44, 25, -27, 105, 71, -73, 51, -86, -46, -13, -79, 68, -78, 79, 116, 23, 76, 16, -54, -43, -30, -118, -59, 84, 14, -123, 59, 101, -35, 64, 52, -17, 54, 15, 17, 29, -13, 45, 28, 72, 73, 43, 123, 61, -48, -8, -117, -123, 77, 6, -79, 116, -112, 1, -6, 10, -112, 49, 0, -23, 80, 38, -122, 52, 95, 27, 13, 46, 98, 3, 84, -49, -20, -104, 14, -10, -99, -122, -110, 88, 51, 33, -65, -99, 120, 23, 6, -4, -18, 5, 25, 108, 5, -50, -73, -109, 13, 113, -102, 11, -1, 7, -96, 112, -51, -30, 95, 118, 55, 59, -114, -16 ]
The opinion of the court was delivered by Kingman, C. J. : The defendants in error sued Kurtz and wife on a note and mortgage. The note was made by Kurtz; and the mortgage by Kurtz and wife, to secure the note. The note and mortgage were both made to Stoddart and the note was assigned by him to defendants in error. There is no averment in the petition that the mortgage was assigned, nor is there any explicit and positive averment that the defendants in error were the owners of the mortgage. The plaintiffs in error insist that the judgment of foreclosure on this presentation of facts was unauthorized. It is not pretended that the petition does not show an assignment of the note, and absolute ownership thereof by the defendants in error. This we think was sufficient. Under our laws, the mortgage is but appurtenant to the debt; a mere security; and under ordinary circumstances, whoever own^ the debt, owns the mortgage. And this is the prevailing doctrine upon this subject in this country. An assignment of the debt ordinarily carries the mortgage with it: 1 Hilliard on Mortgages, 221. That there are decisions holding a contrary doctrine is admitted, but they are not very generally followed, and are hardly applicable to our laws as to mortgages. II. One other error is alleged: The mortgage was made iu July, 1868, and covenanted for the payment of twelve per cent, interest on the note, and the further sum of two hundred dollars as liquidated damages in case of foreclosure of the mortgage; and this sum was included in the judgment. This, wo think, was error. There is no doubt that the judgment was in accordance with the contract and undei’standing of the parties ; but the contract itself is one that tlxc law will not sanction. It presents the case of one man contx’acting to pay a cex-tain sum of money at a fixed time with the largest rate of intex’est allowed by law, with the further stipulation that if the debt is not paid and a foreclosure is resorted to, ho will pay a still larger sum as liquidated damages — not as the costs of the foreclosure, for that is provided for by law, and does not depend upon the contract of the parties ; not as attorneys fees, for that the law did not allow: (4 Nans., 339.) In the language of the learned judge delivering the opinion of the court in the case of Gray v. Crosby, 18 Johns., 223, “Liquidated damages are not “ applicable to such a case. If they were they might “ afford a secure protection for usury, and countenance “ oppression under the forms of law.” See also 16 Ill., 400, and Sedg. on the Measure of Dam., 420, 442. The judgment must be modified by leaving out of it the sum of two hundred dollars allowed as liquidated damages. Ordered accordingly. All the Justices concurring.	[ -16, 126, -15, -82, -118, 32, 40, -102, -7, -128, -73, -45, 109, -53, 20, 45, 117, 41, 64, 106, 85, -78, 7, 65, -46, -13, -15, -59, -79, -20, -12, 95, 76, 32, -62, -41, 102, -94, -57, 84, -114, -121, -119, 68, -7, 64, 48, 27, 84, 76, 85, -33, 99, 46, 29, 91, 73, 42, 75, 61, -48, -8, -97, -115, 79, 3, -111, 37, -100, 103, -6, 0, -112, 53, 1, -24, 50, -74, -122, 116, 73, 27, 13, 98, 102, 0, 77, -17, -35, -103, 42, -36, -115, -90, 16, 88, -125, 33, -73, -99, 108, 65, 7, -10, -18, 21, 29, 109, 7, -54, -42, -77, 47, 118, -102, -117, -10, 3, 49, 113, -49, 40, 93, 103, 27, -117, 14, -67 ]
The opinion of the court was delivered by Allegrucci, J.: Richard P. Johnson appeals his convictions by a jury of first-degree murder, aggravated robbery, and felony theft. He also appeals from the imposition of a mandatory term of imprisonment pursuant to K.S.A. 1993 Supp. 21-4624. Richard Johnson was convicted of murdering Kina Caldwell. On January 9, 1992, Johnson was living with Caldwell and her two young children in a duplex. Johnson described Caldwell as his “very dear friend,” like a sister, and explained that they had separate sleeping quarters. He had been released from prison in December 1991 and had been living with Caldwell approximately two weeks. Caldwell was found dead in her living room the morning of January 10, 1992. She had bled to death from 27 knife wounds. Fanny Crafton lived in the other half of the duplex with Caldwell. After arriving home about 10:00 p.m. on January 9, 1992, Crafton talked on the telephone for several hours. While on the telephone, she heard Caldwell scream. Crafton testified that Caldwell was upstairs when she first screamed, and then Crafton heard a loud noise as something hit the common wall along the stairway. Crafton heard Caldwell say, “Oh, God help me,” and “Richard, why you doing this to me?” and then she heard Caldwell fall down the stairs. She heard someone else go down the stairs and a male voice calling someone a “bitch.” Again Caldwell asked, ‘Why you doing this to me?” and then her voice faded away. After the noise subsided, Crafton went to sleep. Kenesha, Caldwell’s six-year-old daughter, testified that she had been sleeping in the room with her mother that night. When Kenesha woke up during the night, her mother was not there and there was blood on the light switch. Kenesha went downstairs and found her mother on the floor. It was still dark. Kenesha went to a neighbor’s house. She did not see her mother’s car at that time. Officer Brandon arrived at Caldwell’s apartment shortly after 5:00 a.m. the morning of January 10, 1992. Caldwell was lying dead on the floor of the living room, and the floor was covered with blood. There was blood throughout the apartment. Caldwell’s car was missing. Crafton testified that the car had been parked in front of Caldwell’s apartment when she arrived home the night of January 9. Several people who were at the residence of Chris Charles the night of January 9 testified that Johnson arrived there at approximately 10:30 to 11:00 p.m. Johnson had blood and scratches all over him. Caldwell’s car was parked in front of Charles’ residence when Johnson was there, and Johnson was seen driving her car that night. Charles testified that Johnson told him that he had killed someone that night. Johnson asked Charles’ brother, Raymond, if he knew where he could get a gun. Johnson was told to “chill out,” and he asked Lance Williams to dig in Johnson’s pocket for his cigarettes. Williams pulled some folded $20 bills out of Johnson’s pocket along with his cigarettes. The money had blood on it. Williams guessed that there was $300 in $20 bills in a wad in Johnson’s pocket. Charles described it as “a pretty nice sum of money.” Caldwell’s car was found by the police the following day. The car was a 1982 model Toyota, which Caldwell had purchased for $1,100 with the income tax refund she received in 1991. A black jacket was found in the car. It had a small purse with Caldwell’s identification cards in the pocket. Caldwell’s mother testified that Caldwell usually kept her money in a small leather pouch in her black jacket and that she had $200 in the pouch on January 6. Kenesha testified that her mother usually kept her billfold in her jacket. Johnson raises numerous issues on appeal. He contends there was insufficient evidence to support his convictions of aggravated robbery and felony theft. He alleges the trial court erred in limiting his cross-examination of several witnesses, failing to suppress his statement, admitting into evidence Fanny Crafton’s statement and evidence of the money the victim possessed prior to her death, and finding the State complied with the provisions of K.S.A. 1993 Supp. 21-4624(1). We first consider if the evidence was sufficient to support the conviction of aggravated robbery. With regard to the sufficiency of the evidence, this court has stated: “When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Following State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).” State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992). Johnson contends that the State failed to show that he ever exercised control over Caldwell’s money, wallet, or jacket and failed to show that “any of the property was present on the person of Kina Caldwell on January 9, 1992.” The State was required to prove: (1) that Johnson intentionally took property from the presence of Caldwell; (2) that the taking was by force; and (3) that Johnson inflicted bodily harm on Caldwell in the course of such conduct. PIK Crim. 3d 56.31. The evidence, viewed in the light most favorable to the prosecution, was that Caldwell bled to death from knife wounds. On the night of her murder, Johnson was scratched and covered with blood, he was driving her car, and he had a wad of bloody money. Caldwell customarily kept her money in a small purse in her jacket pocket. When her car was found the day following her death, Caldwell’s jacket and empty purse were found in it. From this evidence, a rational factfinder could have found Johnson guilty beyond a reasonable doubt of aggravated robbery. Johnson next contends that the evidence was insufficient to support the conviction of felony theft. K.S.A. 21-3701, which was in effect at the time of Caldwell’s murder, provided that theft could be a misdemeanor or a felony offense depending on the value of the property involved. “Theft of property of the value of at least $500 but less than $50,000 is a class E felony.” K.S.A. 21-3701. Johnson argues that the State failed to establish the value of Caldwell’s car at the time it was taken. He concedes that the State showed that Caldwell had paid $1,100 for the car approximately one year earlier, and he concedes that evidence of the purchase price of property generally may be used to establish value. He argues, however, that in the intervening year Caldwell’s car was damaged in an accident and that there was no evidence of the value of the car at the time it was taken or of the diminution in value from which the jury could compute the January 1992 value. Johnson relied on the testimony of Crafton to support his argument. On cross-examination of Crafton, the following questions were asked and answered: “Q. The car identified in State’s Exhibit — what’s been marked State’s Exhibit 1 and 2. Umm, that car had been wrecked at some point after Kina had it. “MR. HOFFMAN: Your Honor, I am gonna object to the relevance. “THE COURT: Overruled. “A. (By the Witness) Umm, it was. I mean, you can’t see the back. “Q. Uh-huh? “A. It was like the taillight, like somebody had backed into a wall on the taillight. “Q. Somebody had backed into her? “A. Or somebody had hit her. It was like that. “Q. But it had been damaged after Kina had it, is that right? “A. Yeah.” From Crafton’s testimony, the jurors knew that a taillight of the car had been damaged since Caldwell bought it. In its brief, the State asserts that it introduced nine pictures of the car which gave the jurors “a clear picture” of the car’s condition at the time it was taken. The evidence consists of testimony that the 1982 Toyota had been purchased approximately one year earlier for $1,100 and that there was damage to the rear end, probably confined to a taillight. In addition, there were pictures reflecting the condition of the car, although none showed the damage to the taillight. Johnson cites State v. Towner, 202 Kan. 25, 446 P.2d 719 (1968), as a case in which this court found the evidence of value wanting. Towner was convicted of grand larceny of an automobile. At the time of his conviction, K.S.A. 21-533 (Corrick) required proof that the automobile was of the value of $50 or more. The court stated: “All that was shown was the make, year and model of the automobile, that it was second hand and operable. At the time taken it was approximately eight years old.” 202 Kan. at 29. In other words, there was no evidence of the condition or purchase price or of the Blue Book price range or of the value of comparable automobiles. In these circumstances, the conviction of grand larceny was reduced to petty larceny. In Towner the court reasoned: “We would not say the diacritical amount could never be inferred in a particular case where property has been sufficiently described or exhibited to the trier of the fact. However, prices of automobiles of the vintage in question are negotiable over a considerable range and are in part at least dependent upon condition. Possibly this vehicle was in fact worth $50.00 but upon the showing made, this fact would not be a matter of unquestionable common knowledge.” 202 Kan. at 29. Thus, in Towner this court did not rule out the possibility of value ever being inferred, but concluded that it could not reasonably be inferred from merely the make and year of the automobile. In the present case, in addition to the make and year of the car, the evidence included its dollar value approximately a year before it was taken and several pictures reflecting the condition of the car at the time of trial. The evidence was sufficient to support the jury’s determination that the value of the car exceeded $500. Johnson next contends he should have been allowed to cross-examine witnesses about their convictions and plea agreements. His statement of this issue is: “Defendant was not allowed to cross examine witnesses against defendant regarding their convictions and or plea agreements.” He does not state, however, which witnesses he was not allowed to question or where in the record the court’s ruling(s) may be found. In the statement of facts in his brief, Johnson stated: “Prior to trial the State filed a Motion in limine to preclude defendant’s attorney from Cross examining Raymond Charles and Lance Williams regarding their incarceration. The Court granted the State’s motion over defendant’s objection prior to trial and at the trial." Johnson has not referred the court to any portion of the record which contains information about the witnesses’ convictions or plea agreements. The State’s response focuses on Raymond Charles and Lance Williams. Both men testified at Johnson’s preliminary hearing. The State asserts that between the preliminary hearing and the trial, Raymond Charles and Williams were charged with first-degree murder and aggravated robbery. Each pled guilty to second-degree murder, and the aggravated robbery charges were dismissed. This comports with what was said at the time of trial with respect to Raymond Charles, but at trial the prosecutor seems to have agreed that Williams was convicted of aggravated robbery. The State has not referred the court to any portion of the record which contains support for its assertions about the charges, pleas, dismissals, or timing. Before Johnson’s trial, the State filed a motion in limine seeking “to exclude testimony or cross-examination concerning the current residence of Lance Williams and Raymond Charles, and testimony regarding crimes that both men are incarcerated on.” During a bench conference at trial, Johnson’s counsel stated that the district court had “ordered me not to discuss the plea agreement.” He seems to have been referring to Raymond Charles’ plea agreement; the bench conference occurred during Raymond Charles’ testimony. The district court judge stated that he had granted the State’s motion in limine on the ground that the crimes of which Raymond Charles and Williams had been convicted were not crimes of dishonesty. Johnson’s counsel sought to cast doubt on the truthfulness of the State’s witnesses and to show that they were “biased.” He challenged the ruling on the ground that Raymond Charles had been charged with robbeiy, a crime of dishonesty, but that the charges were dismissed as part of the plea agreement. Johnson’s counsel stated that Williams had been convicted of aggravated robbery. The defendant does not indicate where in the record it shows he was prevented from asking questions of witnesses, and where in the record the assertions about the witnesses are substantiated. The defendant has the burden of furnishing a record on appeal which affirmatively shows that prejudicial error occurred. State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). The defendant has not met that burden, and we therefore find no error. Johnson next contends that the police elicited a statement from him on the day after counsel was appointed to represent him but without counsel being present. He argues that the statement was obtained in violation of the Sixth Amendment and, therefore, should have been suppressed. He does not state whether the statement was offered into evidence or whether the State made any use of it. In cross-examining the defendant, the assistant district attorney made the following reference to a statement: “Q. Let me show you this. Is this a copy of your statement? “A. Yes, it is. “Q. And what’s the date indicated in the top left? “A. January the 17th, 1992.” There is no indication in the record that a written statement of the defendant was ever marked as an exhibit and introduced into evidence. At trial, Officer Michael J. Shomin testified that Johnson telephoned him, requesting that he come to the jail so Johnson could give a statement as to what happened on the night Caldwell was killed. When the officer arrived at the jail, he advised Johnson of his rights, and Johnson told him his version of what happened on the night of January 9, 1992. Officer Shomin testified about Johnson’s version of events. No objection was raised immediately preceding the officer’s recounting of Johnson’s statement, but during an earlier bench conference defense counsel stated that there had been hearings on the admissibility of the statement and that he was renewing his objection. Johnson told the officer that he had been upstairs when he heard Caldwell calling to him for help. Downstairs, he found a man stabbing Caldwell, and he wrestled with the assailant. After the other man ran away, Caldwell died in Johnson’s arms. Because he was scared, Johnson got dressed and left in Caldwell’s car. He drove around looking for the assailant, he went to Chris Charles’ looking for a gun, and then he abandoned Caldwell’s car. This is not a confession. It is instead Johnson’s account of his tiying to rescue Caldwell from attack by another man. Johnson told the same story to the jury at trial. As to the statement, Johnson testified on direct examination: "Q. Okay. Now, did you contact Detective Shomin and tell him you wanted to give a statement? “A. Yes, I did. “Q. Okay, and do you remember when that was? “A. Uh, it was a couple days after I had turned myself in. It was that following week. The precise date I — I really can’t say. “Q. When you gave a statement, it was just you and Detective Shomin in the room, is that correct? “A. It was me, Detective Shomin, and then there was another officer sitting up at the — like this little panel. "Q. Okay. “A. But she was — she was like far away from us, so, yeah, you could say it was just me and Detective Shomin. “Q. Okay, Did Detective Shomin tell you what your rights were? “A. Yes, he did. “Q. Did he tell you that if you wanted a lawyer present during that hearing or during the conversation, one would be brought in for you? “A. Yes, he did. “Q. Did you tell him you wanted a lawyer? “A. No, I didn’t. “Q. You told him you didn’t want a lawyer for that statement? “A. No, I didn’t. “Q. And you didn’t have a lawyer for that statement? “A. No, I didn’t.” This court often has stated: “Errors that 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. Peltier, 249 Kan. 415, Syl. ¶ 4, 819 P.2d 628 (1991), cert. denied 120 L. Ed. 2d 875 (1992). Johnson contends that his statement was made without the presence of counsel and is inadmissible under the Sixth Amendment. This court has held that such an error can be held to be harmless if “the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the results of the trial.” 249 Kan. 415, Syl. ¶ 5. With Johnson and the police officer who took Johnson’s statement offering into evidence the same version of the events, there is no doubt that admission of the statement had little, if any, likelihood of changing the result of the trial. Moreover, we conclude it was not error to admit the statement into evidence. This court has held that “ ‘[a]n accused may ef fectively waive the right to have counsel present during any police interrogation. The fact that he has previously retained counsel does not necessarily make inadmissible a voluntary statement made by the defendant in his counsel’s absence.’ ” State v. O’Neal, 238 Kan. 183, 186, 708 P.2d 206 (1985) (quoting State v. Costa, 228 Kan. 308, Syl. ¶ 3, 613 P.2d 1359 [1980]). The circumstances surrounding Costa’s statement are remarkably similar to the circumstances in the present case. The day after he retained counsel to represent him, Costa, who was incarcerated, asked to speak with an officer. Costa was advised of his constitutional rights, including the right to counsel, and signed a written waiver. He then made a generally exculpatory statement. In the present case, the day after he requested that counsel be appointed to represent him, Johnson, who was incarcerated, asked to speak with an officer. Johnson was advised of his constitutional rights, including the right to counsel, and signed a written waiver. He then made a generally exculpatory statement. In Costa, the court concluded its consideration of this issue with the following remarks: “The appellant does not contend the statement was involuntary, only that it was made without the presence of counsel. The trial court conducted an evidentiary hearing and found the appellant had waived his right to have counsel present. The record discloses substantial competent evidence to support the trial court’s finding. State v. Porter, 223 Kan. 114, 118, 574 P.2d 187 (1977). The trial court did not commit error in admitting the appellant’s statement into evidence at trial.” 228 Kan. at 314. The United States Supreme Court cases cited by Johnson involve interrogations initiated by police rather than undisputedly voluntary statements, as in the present case. See Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986); Brewer v. Williams, 430 U.S. 387, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977). In the recent case of Minnick v. Mississippi, 498 U.S. 146, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990), the Supreme Court, in suppressing the statement made by Minnick without his attorney being present, stated: “In our view, a fair reading of Edwards [v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981),] and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. “Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Since petitioner made a specific request for counsel before the interview, the police-initiated interrogation was impermissible. Petitioner’s statement to [the sheriff] was not admissible at trial.” 498 U.S. at 153-56. In the present case, Johnson invoked his Sixth Amendment right to counsel during the initial interrogation. He was therefore not subject to further interrogation absent counsel being made available to him unless further communications, conversations, or interrogation was initiated by him. Johnson did initiate the interview with Officer Shomin. He was not compelled to do so, and clearly his statements were freely and voluntarily given. Johnson next argues that his statement should not have been admitted into evidence because it was obtained in violation of DR 7-104(A)(l) of the Code of Professional Responsibility, Supreme Court Rule 225 (1993 Kan. Ct. R. Annot. 234), which prohibits communication by a lawyer with a party he or she knows to be represented by counsel. There does not seem to be a contention that the statement was given to an attorney. Rather, the contention seems to be that the police officer was acting “as the alter ego of the government prosecutors.” Johnson points to absolutely nothing in the record, however, which would support such a contention. In any event, this court has held with regard to DR 7-104(A)(l) that the admissibility of evidence is determined by constitutional and statutory measures and that codes of professional conduct play no part. State v. Morgan, 231 Kan. 472, 478-79, 646 P.2d 1064 (1982). “Sanctions for violation of DR 7-104(A)(l) are irrelevant to this case.” 231 Kan. at 479. Johnson next argues that Fanny Crafton’s statements are inadmissible hearsay under K.S.A. 1993 Supp. 60-460. He does not specify which statements are inadmissible. In the statement of facts of his brief, Johnson mentions that Crafton testified that she heard Caldwell say “Richard” and ask why he was “doing this to me?” It appears that these are the statements he complains of. During trial, Johnson’s counsel approached the bench and objected, referring to a motion in limine, to the line of questioning which elicited these responses. His objection was overruled. It is the State’s position that Crafton’s testimony was admissible pursuant to one of the exceptions to the hearsay rule, K.S.A. 1993 Supp. 60-460(d). The statute-provides in pertinent part: “Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except: “(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made (l) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.” The declarant, Caldwell, was unavailable as a witness because she had died prior to trial. The statements were made while she was experiencing the event which the statement narrates and while she was under the stress of the experience. No incentive for her to falsify or to distort the experience is in evidence. Thus, the requirements of K.S.A. 1993 Supp. 60-460(d)(l), (2), and (3) were satisfied, and the district court’s admission of the statements into evidence was proper. Johnson also conterids that Caldwell’s mother’s statement that her daughter had $200 in her possession several days before her death “had little probative value” and was irrelevant. The gist of his argument seems to be that her possession of $200 at one time does not tend to prove that she possessed it several days later. At trial, defense counsel objected to the witness’ stating whether Caldwell had any money on her on January 6, 1992. Johnson further contends that the statement should have been excluded because it subjected him “to undue and unfair prejudice.” Johnson seems to be referring to the district court’s discretion to exclude relevant evidence where the probative value would be substantially outweighed by its prejudicial effect. See K.S.A. 60-445; Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, Syl. ¶ 11, 549 P.2d 1354 (1976). This court has stated: “The question of whether evidence is too remote to be relevant is left to the discretion of the trial judge, whose decision will not be disturbed unless a clear abuse of discretion has been demonstrated.” State v. Griffin, 246 Kan. 320, Syl. ¶ 4, 787 P.2d 701 (1990). The test, then, is whether any reasonable person would agree with the district court’s determination that the evidence was admissible. If so, this court will not disturb the district court’s decision. 246 Kan. at 326. The State argues that the evidence was highly relevant and its relevance is particularly obvious when the evidence is considered in context. Caldwell’s mother’s testimony established that Caldwell had $200 several days before her death and that she customarily kept her money in a pouch in her jacket pocket. Other evidence established that the jacket and empty pouch were found in Caldwell’s abandoned car, which Johnson had been driving immediately after her murder. Other evidence also established that immediately after the murder, Johnson was carrying bloody folded $20 bills, which Charles said was “a pretty nice sum of money” and Williams guessed to be about $300. Here, although Caldwell’s mother could not testify about the amount of money Caldwell possessed on the day she was murdered, a reasonable connection may be made between the money she had on January 6 and the money possessed by Johnson, after her murder. Once the evidence was admitted, it was for the jury to determine its weight. See State v. Milo, 249 Kan. 15, 26, 815 P.2d 519 (1991). Johnson next contends that the State did not comply with K.S.A. 1993 Supp. 21-4624(1) and that the district court im properly imposed the mandatory 40-year sentence. K.S.A. 1993 Supp. 21-4624(1) provides: “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.” Johnson contends that the State failed to file with the court written notice of its intention to request a separate sentencing proceeding until 155 days after his arraignment. He does not contend that he did not receive notice of the State’s intention. He states that he and his counsel “were provided notice. The docket sheet does not reflect that notice was filed with the court.” It appears that the docket sheet entry to which he refers is dated February 27, 1992. There are several items with that date, and they state: “2/27/92 Count II amended orally, amended information to be filed to include ‘sum of money[.]’ “Record should reflect State intention to request mandatory 40 yr sent, if convicted on Count I. “The court finds a crime has been committed as charged and there is probable cause to believe deft, guilty thereof. Deft, bound over for trial, deft, waives formal arraignment and pleads not guilty.'Bond set $200,000. Pre-trial conference set 3-4-92 2:30 p.m. [signed] Michael G. Moroney, Judge” The State contends that the part of this docket sheet entry concerning the “hard-40” records the State’s submitting to the district court judge the original written notice of intention to request a separate sentencing proceeding. The State contends that at the arraignment, the original written notice was given to the judge and a copy was given to Johnson and his counsel. We do not agree. A fair reading of the entry on the docket sheet requires the conclusion that written notice was not submitted to the judge during the courtroom proceeding on February 27, 1992. Also as support for its contention, the State brings to the court’s attention the following colloquy from the courtroom proceedings on February 27, 1992: “MR. HOFFMAN: For the record, Your Honor, we wish to inform the defendant and the Court at this time that it is the State’s intention to invoke the mandatory term of imprisonment — I think it’s pursuant to statute 21-3401, K.S.A. — that should the defendant be found guilty by a jury of premeditated murder, he is subject to the sentencing of a mandatory term of forty years imprisonment without parole. “THE COURT: Very well. And you’ll supply him with written notice of that? “MR. HOFFMAN: Your Honor, I’ll supply him with that immediately. “MR. LONG: Do you have a copy — I need a copy of — ” A fair reading of the transcript of the proceedings does not require the conclusion that written notice was given to either the court or to defense counsel at that time. The State concedes that the written notice contained in the record was not file-stamped until July 31, 1992. The July 1992 date in the certificate of service of this document establishes that it is not the written notice which the State claims to have given to the judge in February 1992. The State offers no explanation why the July 1992 written notice was filed. The State offers the following explanation for giving the original written notice to the judge rather than filing it with the clerk of the court: “[K.S.A. 1993 Supp. 21-4624(1)] requires notice at arraignment. In Wyandotte County District Court, arraignment takes place immediately after preliminaiy hearing. The notice [of the State’s intention to request a separate sentencing proceeding] cannot be filed prior to prehminary hearing because the defendant has yet to be bound over for trial, so prior filing would be premature. Since arraignment immediately follows prehminary hearing, there is no lapse of time which gives the State an opportunity to file notice with the clerk of the court. The State’s only alternative is to file directly with the Judge at arraignment.” In Tobin Constr. Co. v. Kemp, 239 Kan. 430, Syl. ¶ 1, 721 P.2d 278 (1986), the court stated: “K.S.A. 60-205(e) sets out the procedures necessary for a proper filing of documents with the court. K.S.A. 60-205(e) provides that a judge may accept pleadings and other papers to be filed initially with him prior to their transmission to the clerk’s office for entry on the docket sheet. Under this procedure, filing is complete when the judge personally accepts custody of the papers.” With regard to what is now K.S.A. 1993 Supp. 60-205(e), this court has stated: “Although [60-205(e)] is in the code of civil procedure, it may be considered applicable in criminal proceedings, there being no provision in the criminal procedures to the contrary.” State ex rel. Owens v. Hodge, 230 Kan. 804, 808, 641 P.2d 399 (1982). However, we do not find from the record before us that the State served the original notice with the judge on February 27, 1992. In State v. Deavers, 252 Kan. 149, 843 P.2d 695 (1992), there was no mention at arraignment of the State’s intention to request a separate sentencing proceeding. The arraignment was concluded and court adjourned for the noon recess after the prosecutor indicated that there were no further matters to bring before the court. At 2:00 p.m. on the same day, court reconvened at the prosecutor’s request. The prosecutor advised the court and defense counsel that she had forgotten to give notice to Deavers of the State’s request for a 40-year mandatory term. This court concluded: “The notice provisions of K.S.A. 1991 Supp. 21-4624, the first-degree murder "hard-40’ sentencing statute, are mandatory. Failure of the State to comply with such provisions requires a sentence imposed thereunder to be vacated.” 252 Kan. 149, Syl. ¶ 6. Deavers is controlling in the present case. The State did not file written notice with die court until July 31, 1992. Our rationale in Deavers requires that we vacate Johnson’s hard-40 sentence. Because we are vacating Johnson’s hard-40 sentence, we need not address Johnson’s final argument that it was error to allow the State to discuss K.S.A. 1993 Supp. 21-4624 in voir dire and at trial. We affirm the convictions, vacate the sentence imposed under K.S.A. 1993 Supp. 21-4624, and remand for resentencing.	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The opinion of the court was delivered by Valeíitine, J.: This is an application for a peremptory writ of mandamus to compel the defendants, who are the County Commissioners of Neosho County, to hold their offices at the town of Erie, which is claimed to be the county-seat of said county. I. The title of this action under our present code, (that of 1868) is probably wrong. It should be Joseph A. Wells plaintiff, instead of “ The State of Kansas, on the relation of Joseph A. Wells, plaintiff.” The remedy of mandamus is now wholly under the code of civil procedure — chapter 80, art. 33, Gen. Stat. of 1868. Under said code there is but one form of action, called a “ civil action;” (§ 10.) “ The party complaining shall be known as the plaintiff, and the adverse party shall be known as the defendant;” (§ 11.) “ Every action must be prosecuted in the name of the real party in interest, except as otherwise provided,” etc.; (§ 26.) The statutes do not anywhere otherwise provide; that is, they do not anywhere provide that an action of mandamus may be prosecuted in the name of the State when prosecuted by a private individual. The party prosecuting in such an action is always called the “ plaintiff ” in said code, and never the relator; (§§695, 697.) The adverse party in such an action is always called the “ defendant” in said code, and never the respondent: (§§ 690, 693, 695.) After the writ and answer in an action of mandamus, the other proceedings are conducted in the same manner as any other civil action; (§ 696.) And, “ if judgment be given for the plaintiff he shall recover the damages which he shall have sustained, to be ascertained by the court or jury, or by referees, as in other civil actions, and costs;” (§697.) But, as no question has been raised on' this point, we will pass it without further consideration. II. The main object of this action is to have the court determine whether the town of Erie, or the town of Osage Mission, is the county-scat of Neosho county. At the commencement of this action an alternative writ was issued; afterwards the defendants answered, and the action was then tried upon the said writ and answer. Many questions were raised in this case which we do not consider of sufficient importance to notice in this opinion — some being raised during the trial, and some before the trial. The plaintiff founds his claim that Erie is the county-seat of Neosho county, upon a certain election held in said county on the 28th day of December, 1869. The returns of their election were duly canvassed by the then board of county commissioners on the 1st day of January, 1870 ; and as a result of said canvass the commissioners declared that Erie was the county-seat. According to that canvass, Erie received 2,587 votes; Osage Mission, 1,965 votes; total, 4,552 votes — the majority for Erie being 622 votes. The present board of commissioners of said county refuse to recognize the validity of said election, and also claim that even if said election was valid, Osage Mission received a majority of the legal votes. It is in evidence before us, that at the time of said election the whole number of legal voters in Neosho county was only about 1700 — 887 voters less than are said to have voted for Erie — 265 voters less than are said to have voted for Osage Mission, and but little more than one-third as many as are said to have voted for both places; and showing that there were about 2,852 illegal votes cast at that election. The principal frauds were perpetrated at Erie and Osage Mission, and in Lincoln township, or rather in Lincoln township. After the election, and before the canvass of the voters, the poll-books were tampered with, and many new names were fraudulently added to the list of voters in said poll-books. The first question that we shall consider is, whether this court has the power under the law, to go behind the said canvass of the county commissioners, and u 1 allow these frauds to be shown. It will be admitted by the plaintiff, that the action of the county commissioners in canvassing said election returns was purely ministerial, and not judicial: (2 Ind., 23; 14 Mich. 362; 14 Barb., 259; 30 id., 588; 8 N. Y. 67; 15 Ill., 492; 1 Dutch., (N. J.,) 354; 4 Wis., 420, 567; 7 Iowa, 186, 390; 10 Mo., 629;) and therefore that their action is not final or conclusive, but may be inquired into directly or collaterally, unless chapter 27 of the laws of 1869, (page 101,) prohibits the same from being done. Before the passage of that act, the power of the supremo court was ample in the premises; but by its passage it is contended, that said power was taken away; not by express words however, but indirectly, as is claimed ^ ' ** 7 hy plaintiff's counsel. Their reasoning upon question jg substantially as follows : First : in an action of mandamus neither party can set up any claim or defense for which he has another plain and adequate remedy; second, the defendants in this case are electors of said Neosho county; third, said act gives to any elector of the county, for the space of twenty days after the election, a right to contest any county-seat election; therefore, these defendants had another “plain and adequate remedy,” and therefore they cannot set up the defense of fraud in this election, but must abide the result of the canvass. This reasoning is defective in several particulars. First: The proposition that neither party can set up any claim or defense, for which he has another plain and adequate remedy, does not apply with the same force to the defendants in an action of mandamus, as it does to the plaintiff. Second: The defendants in this case are not sued simply as electors, but are sued as, county commissioners; it is asked to compel them to perform an act, not as individual electors, but as public officers, representing all classes of the community, whether such classes are electors or not. Third: The said act gives only twenty days in which to commence the proceeding to contest the election; and if the election has been carried by fraud, and the fraud not discovered for more than twenty days, or if the election is invalid for any other"reason, and the cause of invalidity has not been discovered for more than twenty days, the party desiring to show the invalidity has really never had any adequate remedy under the statute; and after the twenty days have elapsed, no person, whether he be an elector or not, has any remedy of any kind under the statute. With respect to the second proposition, we may further remark, that said chapter 27 gives to the county commissioners a right to contest a county-seat- election; and from this fact it is inferred that said act takes away the right of such elector to question the validity of such an election in any other manner. But this reasoning fails when it comes to be applied to such persons as are not electors of the county; for instance, persons owning real estate in the county, or otherwise interested in the county, and who are beneficially interested in a particular place being the county-seat, but who are women, or minors, or persons disqualified from voting under section two (as amended,) of article five of the constitution, or perhaps arc - non-residents of the county. It will hardly be claimed that the act of 1869 takes away the right of such persons to question the validity of a county-seat election, except by contest under that act; for if it does, then such persons will have no-remedy at all. It seems to us, that it will be conceded that county commissioners represent all classes of society, whether such classes be voters or not; and if they do, then it must be conceded that whenever they are sued as county commissioners, whenever they are sued for the purpose of compelling them to perform some official act, they may set up any defense that any class or person whom they represent could set up were such class or person the defendant. It will hardly be claimed that one person may legally compel the county commissioners to perform an act which another person may legally prohibit them from doing. III. But aside from this, the writ of mandamus lies to a great extent within the discretion of the court where the application is made: People, ex rel. Duff, v. Booth, 49 Barb., 31; People, ex rel. Hackley, v. Cr. Ag. Board, id., 259; People, ex rel., v. Canal Board, 13 id., 450; Ex parte Flemming, 4 Hill., 581, 583; Fish v. Weathwax, 2 Johns. Cases, (2d Ed.,) 217, note, § 4, and cases there cited; Van Rensselaer v. Sheriff of Albany Co., 1 Cowen, 501, 512; People, ex rel., v. Solomon, 51 Ill.; Moses on Mand., 18; Bacon Abr., Mandamus, (E;) 1 T. R., 331, 396, 425; 2 T. R., 336; People v. Hatch, 33 Ill., 17, 133, 140; 2 Redf. on Railw., 258. Originally the writ of mandamus was a prerogative writ, solely within the discretion of the court; and it still so far partakes of its original nature, that the court may exercise a considerable degree of discretion in granting or refusing it, and in hearing evidence for and against it. Admitting, for the purposes of this argument, that the court will ordinarily refuse to go behind the canvass of the board of canvassers, yet whenever it can be shown that the result of the canvass was procured through fraud iu the election, the court would not only go behind the canvass, but it would be its duty 3 so. ^ ke an abuse of judicial discretion not to do so. The court should exercise enough of judicial discretion in such cases to prevent any litigant from obtaining through a fraudulent election what in j ustice he has no moral right to have. It is our opinion that, in all actions like this, courts generally should, and in all cases may — exercising a sound judicial discretion— go behind the canvass of the election returns, and exam-no for themselves into the validity of the election. IV. The next question for us to consider is, whether Erie, or Osage Mission, received a majority of the legal votes east at said election. This question is surrounded with great and perplexing difficulties. The . -, ' n , n a r r commissioners canvassed and counted 4,552 votes. Of these, according to the evidence, only about 1700 were legal, and 851 were a majority of the same. Of the votes canvassed and counted, 2852 were illegal and fraudulent. But suppose that there were 2,000 or 2500 legal votes cast, (and this is probably more than any one will claim,) and still the question would not be relieved of much of the embarrassing difficulties that encumber it; for still there would be 2500, or 2,000 illegal votes. Each plaqe received legal votes; and each place received many illegal and fraudulent votes. But how many of each, each place received, cannot be determined with any degree of accuracy. Whether we are bound in this case, under the circumstances, to determine the question, is, to say the least, very questionable. We think wo are not bound to do so. ‘Courts were established principally for the protection of innocence and justice, and not for the protection of supposed rights, founded upon fraud and injustice. Courts will investigate to the very foundation, and examine-to the utmost extent, every question of law and of fact, and every circumstance connected with a case, so as to do justice to the innocent and deserving. But when two parties (and we do not intend to apply this to the immediate parties in the case, but to the towns of Erie and Osage Mission,) who have both by their fraudulent and wiongful acts put vast obstacles in the way of justice, and encumbered the case with embarrassing difficulties, invoke the aid of courts, the courts will not feel very much inclined to assist either to a very great extent, and especially not in an action of mandamus where so much rests in the discretion of the court. • Courts will seldom in such cases weigh the claims of the parties in golden scales, and give a decision on a bare preponderance of evidence. The right of a party in such a case, if he expects a decision, should be clear, beyond all reasonable doubt. Neither party in this action has made a clear case. Neither party has shown a clear right, beyond a reasonable doubt, to the county-seat of Neosho county; and neither party is in a condition to demand, as a matter of right, anything from this court; and therefore we shall leave the parties where we found them. If the people of Neosho county had no other speedy and adequate means of determining where their county-seat should be, we would .probably in our discretion, be willing to determine the question now presented to us on a bare preponderance of the evidence; hut even then we should be very reluctant to say that any rights could accrue under such an illegal and fraudulent election as the one now under consideration seems to have been. But as the people can soon determine by a legal election where their county-seat shall be, (Gen. Stat., 296,) we shall leave the question entirely with them. The peremptory writ of mandamus is refused. All the Justices concurring.	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The opinion of the court was delivered by Abbott, J.: This is a direct appeal by the defendant, John McDaniel, from the denial of his motion to withdraw his pleas of guilty to the offenses of first-degree murder (felony murder) and aggravated escape. The appeal also involves jurisdictional issues concerning appeal after entering a plea of guilty or nolo contendere and the timeliness of the appeal. McDaniel was originally charged with multiple crimes in four separate cases. He entered into a plea agreement whereby all charges were dismissed except the first-degree murder charge and the charge of aggravated escape from custody. Defendant pleaded guilty to those charges. McDaniel informed the court of the facts surrounding the offenses to which he pleaded guilty. As to the first degree-murder charge, McDaniel stated that he was in a car with two friends. The victim stopped them and asked if they would sell him some drugs. They agreed. One of McDaniel’s friends took a .45 caliber gun and entered the victim’s car. McDaniel saw the two wrestling over the gun, and he heard the gun discharge. McDaniel then took a .357 Magnum, walked back to the victim’s car, opened the driver’s door, and shot the victim one time in the chest. As to the aggravated escape charge, McDaniel stated that he was incarcerated (in the Wyandotte County Jail) pending the murder charge. He knew the bars on a cell window were cut, and he went out the window and climbed down some sheets to the ground. He was arrested two days later at a motel. McDaniel entered his pleas of guilty on June 12, 1992, after signing a Petition to Enter Plea of Guilty. Following completion of a presentence investigation report, McDaniel was sentenced on August 12,1992, to consecutive sentences of fife imprisonment for murder and one to five years for aggravated escape. Shortly after sentencing, McDaniel sent a letter dated August 17, 1992, asking the court to set aside his guilty pleas in both cases. McDaniel claimed in his pro se motion that his trial counsel, Charles Dixon, had informed him that he would receive a sentence of 15 years to life, rather than life, if he pleaded guilty. New counsel, Thomas Fields, was appointed to represent McDaniel on the motion. The court denied McDaniel’s motion after a February 10, 1993, hearing at which McDaniel testified. The journal entry denying McDaniel’s motion was filed on February 26, 1993. McDaniel filed a notice of appeal on February 17, 1993. He filed an amended notice of appeal on February 19, 1993. Although McDaniel appealed from and speaks of withdrawing his “pleas,” his brief is directed solely at the first-degree murder plea. I. JURISDICTION This court ordered McDaniel to show why his appeal should not be dismissed for lack of jurisdiction because it was filed more than 10 days after the expiration of the district court’s power to modify the sentence. The appeal was retained subject to reconsideration of jurisdiction. The jurisdictional issue here consists of two questions: First, does a defendant have a right to a direct appeal from the district court’s denial of his or her motion to withdraw a guilty plea? Second, if so, what is the time frame governing that right? K.S.A. 1993 Supp. 22-3602 grants a defendant an appeal “as a matter of right from any judgment against the defendant in the district court.” However, that statute precludes appeals “from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507 and amendments thereto.” K.S.A. 22-3210(d) permits the trial court to set aside the judgment of conviction and allow a defendant to withdraw his or her plea of guilty or nolo contendere before sentencing for good cause shown or after sentencing to correct manifest injustice. This court has previously heard and decided direct appeals from a district court’s refusal to permit withdrawal of a plea of guilty or nolo contendere without questioning jurisdiction. See, e.g., State v. Larry, 252 Kan. 92, 843 P.2d 198 (1992); State v. Reed, 248 Kan. 506, 809 P.2d 553 (1991); State v. Hill, 247 Kan. 377, 799 P.2d 997 (1990). Implicit in the legislature’s enactment of K.S.A. 22- 3210(d), permitting withdrawal of a plea of guilty or nolo contendere independent of K.S.A. 60-1507, is the right to a direct appeal from the trial court’s denial of a motion to withdraw plea. Cf. State v. Gonzales, 255 Kan. 243, 247, 874 P.2d 612 (1994) (direct appeal from district court’s refusal to convert indeterminate sentence to one under the Kansas Sentencing Guidelines Act); State v. VanReed, 245 Kan. 213, 217, 777 P.2d 794 (1989) (direct appeal from district court’s refusal to impose statutoiy presumptive sentence of probation). This court has held that K.S.A. 1993 Supp. 22-3602 does not preclude a defendant who has pleaded guilty or nolo contendere from taking a direct appeal from the sentence imposed where the sentence exceeds the minimum. State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986). We hold K.S.A. 1993 Supp. 22-3602 does not preclude a defendant who has pleaded guilty or nolo contendere from taking a direct appeal from the district court’s denial of a motion to withdraw the plea. However, the Court of Appeals in State v. Flowers, 19 Kan. App. 2d 563, 873 P.2d 226 (1994), held to the contrary. The Court of Appeals dismissed the defendant’s appeal, holding that K.S.A. 22-3602(a) precluded the defendant’s direct appeal from the denial of his motion to withdraw plea. 19 Kan. App. 2d 563, Syl. ¶ 2. Flowers had already taken a direct appeal from his sentence, and he had not sought to withdraw his plea until after his sentence was affirmed by the Court of Appeals. The court reasoned that a direct appeal from the denial of a motion to withdraw plea is indeed a challenge to the conviction itself because if the appeal is successful, the conviction will be reversed. The fact that Kansas appellate courts have considered similar appeals without questioning jurisdiction was deemed irrelevant on the theory that those cases stand only for the issues actually addressed, not for issues which were not raised by the parties. The Court of Appeals panel opined that K.S.A. 22-3210(d), permitting withdrawal of a plea of guilty or nolo contendere, relates only to the proceedings in the trial court and does not relate to the question of appellate jurisdiction. Finally, the Court of Appeals recognized that the defendant was not without a remedy — he could pursue a K.S.A. 60-1507 action. 19 Kan. App. 2d 563, Syl. ¶ 3. Further, this court in State v. Alsup, 239 Kan. 673, 674, 722 P.2d 1100 (1986), indicated without any discussion that 22-3602(a) precludes a direct appeal from a conviction after a plea of guilty or nolo contendere, including a direct appeal from the denial of a motion to withdraw plea. However, this court considered the merits of the appeal, treating it as proceeding under K.S.A. 60-1507 because the trial court had permitted additional discovery and held additional hearings before pronouncing sentence. This court has permitted direct appeals after a plea of guilty or nolo contendere. See State v. Gonzales, 255 Kan. at 244; State v. VanReed, 245 Kan. at 217; State v. Harrold, 239 Kan. at 649. Though these cases relate to direct appeal concerning sentencing issues, the same rationale applies. If a defendant is permitted to seek withdrawal of his or her plea of guilty or nolo contendere independent of a K.S.A. 60-1507 motion, as K.S.A. 22-3210(d) provides, there must also be a right to a direct appeal from the denial of that motion. To require a defendant to first file a 60-1507 motion, which would be filed in the same court which has just denied withdrawal of the plea, before being permitted to appeal from the denial of withdrawal is not in the interest of judicial economy and should not be required. By permitting a defendant to seek withdrawal of his or her plea pursuant to K.S.A. 22-3210(d), the legislature implicitly permitted that defendant to appeal from such denial, despite the appearance of 22-3602(a) to the contrary. The language found in the third full paragraphof State v. Alsup, 239 Kan. at 674, is overruled, and Syl. ¶ 2 and the corresponding portions of the opinion in State v. Flowers, 19 Kan. App. 2d at 565, 568, are also overruled. This court has jurisdiction to decide this appeal. II. TIMELINESS K.S.A. 1993 Supp. 22-3608(a) sets forth the time frame within which an appeal must be taken: “If sentence is imposed, the defendant may appeal from the judgment of the district court not later than 10 days after the expiration of the district court’s power to modify the sentence.” The district court’s power to modify the sentence generally expires 120 days after sentence is imposed. K.S.A. 1993 Supp. 21-4603(d)(1). However, the district court retains jurisdiction to modify a sentence beyond the 120 days specified in K.S.A. 1993 Supp. 21-4603(d)(l) “where a timely motion has been filed by defendant within that time period.” State ex rel. Owens v. Hodge, 230 Kan. 804, Syl., 641 P.2d 399 (1982). McDaniel did not file a motion to modify sentence until February 10, 1993, after expiration of the district court’s power to modify his sentence. However, McDaniel’s pro se motion to withdraw plea was filed long before the trial court’s power to modify his sentence expired. McDaniel’s letter was dated August 17, 1992, only five days after sentencing. K.S.A. 22-3210(d) permits withdrawal of a plea of guilty or nolo contendere either before or after sentencing, but that statute is silent as to the time frame within which a motion to withdraw plea must be filed and/or heard. We are of the opinion the district court did not lose jurisdiction because K.S.A. 22-3210(d) does not set a time limit within which the district court must rule on a motion to withdraw a plea that was timely filed. In addition, if the time limit within which the court must rule on a motion to withdraw plea is related to the 120-day period within which the district court may modify the sentence, that time period was extended because the motion to withdraw plea was timely filed. Cf. Owens, 230 Kan. 804. If McDaniel is required to file his notice of appeal within 130 days of sentencing, the notice of appeal would be filed before the district court had ruled on McDaniel’s motion to withdraw plea. Upon the filing of the notice of appeal, the district court would lose jurisdiction over McDaniel’s motion to withdraw plea. See State v. Dedman, 230 Kan. 793, 796-97, 640 P.2d 1266 (1982) (district court jurisdiction ends upon appellate docketing). In that event, there would be no judgment regarding the motion to withdraw plea from which McDaniel could appeal. Issues pertaining to McDaniel’s motion to withdraw plea could not be appealed until decided by the district court, and this court would have no alternative but to stay the appeal until the district court ruled on the motion to withdraw plea. The “better policy [is] to have jurisdiction of a criminal action repose in only one court at a time to prevent a case from getting lost in the system.” 230 Kan. at 797. See State v. Myers, 10 Kan. App. 2d 266, 270, 697 P.2d 879 (1985). Although K.S.A. 1993 Supp. 22-3608(a) and K.S.A. 1993 Supp. 21-4603(d)(1), read together, provide a 130-day period following sentencing within which a notice of appeal must be filed, that time period must be deemed extended upon the timely filing of a statutorily authorized post-trial motion when the motion is not ruled on within 120 days of sentencing. Cf. Owens, 230 Kan. 804. A notice of appeal must, therefore, be filed either within 130 days of sentencing or within 10 days of the district court’s determination of an authorized and timely filed post-trial motion, whichever period is longer. The appeal in this case was timely filed. III. PLEA After sentencing, a defendant may be permitted to withdraw a guilty plea only if to do so would correct manifest injustice. See K.S.A. 22-3210(d); State v. Dunham, 213 Kan. 469, 474, 517 P.2d 150 (1972). "The decision to deny a motion to withdraw a plea of guilty lies within the sound discretion of the trial court, and it will not be disturbed on appeal absent a showing that the trial court abused its discretion.” State v. Hill, 247 Kan. 377, Syl. ¶ 2. “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.] A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. [Citation omitted.]” State v. Larry, 252 Kan. at 95. Before entering his guilty plea, McDaniel signed a Petition to Enter Plea of Guilty. Paragraph 7 of this form advised McDaniel of all of his constitutional rights, including the right to a jury trial, the right to counsel, the right to confront and cross-examine witnesses, the right to compel the production of evidence and the attendance of witnesses, the right against self-incrimination, and the right to appeal and appointment of counsel on appeal. Paragraph 8 advised McDaniel that by pleading guilty he was waiving all of those rights. Paragraph 9 set out the maximum punishment for the offense as life imprisonment. The terms of the plea agreement were set forth in paragraph 12: “In exchange for plea of Guiliy to First Degree Murder State will Dismiss counts II & III of Amended Information. Defendant pleads guilty to Aggravated Escape 92CR1015A all other cases & counts dismissed.” Paragraph 15 stated that no promises had been made to McDaniel other than those noted in the plea form itself. Defendant’s counsel, Mr. Dixon, certified that he had fully explained the charges and maximum penalties for each count of the information and that he had made no predictions or promises as to the sentence tire court would impose. Judge Smith signed an order accepting McDaniel’s plea, finding that the guilty plea was made “freely, voluntarily and because he/she is guilty as charged, and not out of ignorance, fear, inadvertence or coercion, and with full understanding of its consequences.” At McDaniel’s guilty plea hearing on June 12, 1992, the State explained on the record the plea agreement just as it was indicated on the plea petition: McDaniel would plead guilty to murder in the first degree and to aggravated escape from custody, and the remaining charges and cases would be dismissed. Further, “the State would reserve its right to make comments upon all issues involving sentencing and probation.” Mr. Dixon agreed that the summary given by the State was his understanding of the plea agreement. Judge Smith asked McDaniel if that was his understanding as well, and he replied, “Yes, it is.” Judge Smith obtained a factual basis from McDaniel for his guilty plea to first-degree murder and then questioned McDaniel about the plea petition he had signed: “THE COURT: Okay, Mr. McDaniel, did you have a chance to go over this plea petition with your lawyer before you signed it? “MR. MCDANIEL: Yes, I did. “THE COURT: Is there anything in this plea petition now that you don’t understand or that you have got a question on? “MR. MCDANIEL: No, it isn’t. “THE COURT: Is it your intent this afternoon to enter a plea of guilty to this charge of first degree murder? “MR. MCDANIEL: Yes, I am. “THE COURT: Very well, in — I think the record should reflect further that this petition to enter a plea of guilty has been signed by the defendant, defense counsel, and also the district attorney in consideration of this petition to enter a plea of guilty as well as what the defendant himself has related to the Court, I will accept it, a plea of guilty to the amended information which does charge first degree murder, a class A felony.” After obtaining a factual basis for McDaniel’s plea of guilty to aggravated escape from custody, Judge Smith questioned McDaniel again about the plea petition: “THE COURT: Mr. McDaniel, this plea petition that I asked you about a while ago, that covers both cases? “MR. MCDANIEL: Yes, sir. “THE COURT: So I assume that you understand fully what it says? “MR. MCDANIEL: Yes, sir.” In his pro se motion to withdraw plea after sentencing, McDaniel argued that “my lawyer Charles Dixon promised me that if I took a plea’ that I would receive a 15 to life.” He also wrote, “I don’t feel that Charles Dixon represented me in the best that he could[.] I don’t think that he should have tricked me by telling me that I was going to get a 15 to life if I took the ‘plea’ so that is the reason why I went ahead and took the ‘plea.’ ” At a hearing on the motion to withdraw plea, McDaniel testified as follows: At the time he entered his guilty plea, McDaniel understood that the maximum penalty for a class A felony was life imprisonment. However, McDaniel insisted that Mr. Dixon had told him of an arrangement with the prosecutor for McDaniel to receive a 15-year-to-life sentence, being eligible for parole in 7V2 years, and McDaniel claimed he did not understand and Mr. Dixon did not inform him that life imprisonment was the only sentence he could receive for a plea of guilty to first-degree murder. McDaniel testified that he had a communication problem with Mr. Dixon and that when Mr. Dixon reviewed the plea petition with him, Mr. Dixon skipped through some of it and used big words that McDaniel could not understand. McDaniel did admit that he read the plea petition and that he told the court he understood it and had no questions about it. He also admitted that the plea petition said nothing about a 15-to-life sentence. The trial court found that McDaniel’s guilty plea was made freely and voluntarily and that no fraud, duress, mutual mistake, or lack of understanding had been shown. McDaniel’s motion to set aside his plea was therefore denied. McDaniel argues that the district court erred in denying his motion to withdraw plea. He contends on appeal that the record does not reveal his plea was knowing and voluntary because the district court failed to comply with K.S.A. 22-3210. He does not, however, specify on which provisions of K.S.A. 22-3210 he bases his assertion. McDaniel notes that counsel is required to explain the range of permissible penalties, Weigel v. State, 207 Kan. 614, 485 P.2d 1347 (1971), and he discusses the test for ineffective assistance of counsel as applied in challenges to guilty pleas. He complains of the district court’s reliance on the plea petition he signed in concluding that his plea was free and voluntary, arguing that a signed plea petition is not a substitute for the inquiry the court is required to make under K.S.A. 22-3210. McDaniel concludes: “There is nothing in the record to refute Mr. McDaniel’s allegation that he was not fully counseled as to [the] nature of the charges and the effects and consequences of his plea by his attorney before the plea was entered and that he would not have pled guilty, had he understood the penalty.” McDaniel’s argument in his appellate brief concerning the trial court’s failure to comply with the requirements of K.S.A. 22-3210 was not presented to the trial court. A point not raised in the trial court cannot be raised for the first time on appeal. State v. Ji, 251 Kan. 3, 17, 832 P.2d 1176 (1992) (defendant failed to raise in trial court ineffective assistance of counsel claim based on counsel’s failure to have defendant’s expert witnesses evaluate defendant using the proper legal standard for insanity in Kansas; appellate review precluded); Noble v. State, 240 Kan. 162, 169-70, 727 P.2d 473 (1986) (appellate review precluded when defendant failed to raise issue in trial court that he was not informed of his Fifth Amendment privilege); State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986) (grounds for severance raised on appeal different than grounds presented to trial court; no appellate review of new grounds); Lill v. State, 4 Kan. App. 2d 40, 42, 602 P.2d 129 (1979) (appellate review of legality of nolo contendere plea precluded where raised for first time on appeal). Because McDaniel failed to present this argument to the trial court, the State has not had an opportunity to present evidence to refute McDaniel’s contentions; McDaniel is therefore precluded from raising this argument on appeal. McDaniel’s argument that the trial court abused its discretion in denying his motion to withdraw his guilty pleas is based on an argument he set forth in the district court that he was misinformed as to the sentence he would receive. By statute, he could only receive a life sentence. The written plea agreement set forth that the maximum sentence was life. McDaniel testified that he knew the plea agreement set forth a life sentence before he entered his plea. Based on the arguments presented, the trial court did not abuse its discretion in refusing to set aside the defendant’s pleas of guilty to first-degree murder and aggravated escape. Affirmed.	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Tbe opinion of tbe court was delivered by Sarford, J.: Tbis was a proceeding in error brought to reverse tbe judgment of tbe district court, rendered upon the report of a referee, to whom all of tbe issues in tbe case below, both of fact and of law, were submitted for decision. No exceptions were taken to the findings of fact in said report; but to tbe conclusion of law, as found by the referee, objection was made by the plaintiff, and such objection was beard, upon a motion to set aside tbe report so far as it related to tbe said conclusion of law. But the court refused tbe motion to set aside, and proceeded to render judgment in accordance with tbe said finding of law by tbe referee; whereupon tbe plaintiff duly excepted. By reference to tbe facts as found it will, among other things, be seen tbat John J. Swifie, one of the defendants, here and-below, preempted the land which was tbe subject of tbe action, on tbe 26th day of July, 1859; tbat after be had so preempted tbe land, and bad paid for tbe same, be received from tbe proper officers tbe usual certificate of entry; tbat thereupon, and upon tbe same day be executed and delivered to tbe plaintiff, as president, etc., a deed of tbe same land, with tbe usual covenants, and received a valuable consideration therefor. But bis wife did not join in said deed. Upon these facts tbe conclusion of law was based, and was as follows, to-wit: “ And I find as matter of law, that said deed of “John J. Swifie to tbe plaintiff having been executed “ and delivered before tbe patent for said land was issued “ from tbe United States to said John J. Swifie, is, for that “ reason, void; and the plaintiff, for that reason, cannot “ recover, and the defendants are entitled to judgment “ for costs.” Here then, is to be found the all-important, and almost the only question, which is raised in this case : Was the deed of John J. Swifle to the plaintiff, void, and for the reason stated ? The claim or assumption that the deed was so void is based upon the construction which was given to the twelfth section of the preemption act of Sept. 4, 1841, (5 U. S. St. at Large, 456,) by the referee and the court below. Said section is as follows : “ Sec. 12. And be it further enacted: That, prior to any entries being made under and by virtue of the provisions of this act, proof of the settlement and improvement thereby required shall be made, to the satisfaction of the Register and Receiver of the Land District in which such lands may lie, agreeably to such rules as shall be prescribed by the Secretary • of the Treasury, who shall each be entitled to receive fifty cents from each applicant for his services to be .rendered as aforesaid; and all assignments and transfers of the right hereby secured, _prior to the issuing of the patent, shall be null and void.” We do not think that the last clause of this section sustains the position assumed. The right here mentioned, as being secured by the act of which this section is a part, is the right of preemption. Such right is defined to be, the right “which a person, who has complied with certain requirements ot the law, has, to purchase a portion of the public lands at the minimum price, to the exclusion of all others. It is wholly a creature of the statute, and is exercised and exhausted as soon as the purchase and entry are made.” 2 Minn., 168. If these views be correct as to what the (3xpression; “ right hereby seóured,” as used in said sec tion twelve, relates, and as to the meaning of the term “ preemption,” it would seem to follow, that it is only of such right of preemption., that an assignment or transfer, prior to the issuance of the patent, is prohibited; and that upon the exercise of such right by the purchase and entry of the land, which has been made the subject thereof, there would be nothing substantial upon which the prohibition could act. It is true, that such prohibition may be held to operate so as to prevent the assignment and transfer of the preemptor’s certificate of purchase from being made in such a way as to enable the assignee to receive a patent for the land covered by it, in his own name; but this is all that can be claimed for it. There are. good and no doubt sufficient reasons for saying that the’pi’ohibition reaches to this extent, though it does not seem important that, they should be given here. But to say that, because the assignment of a preemption certificate will not be sufficient to authorize and cause the patent which is supposed to follow it, to be issued in the name of the J assignee, the preemptor cannot dispose of his purchase in any other way, or at all, is, to our minds, reaching a conclusion which does not follow, and which has no sufficient premises .upon which to rest. But, to return to the line of argument above suggested, it is to be observed, that, from the time of the preemption, and payment of the price of the land, the rights and relations of the preemptor are changed. He has now become a purchaser. Relative to this point, the same Judge above quoted from, remarks that, “ After the entry, the rights belonging to the preemptor, as to the land, are those acquired by reason of his having purchased a portion of the public land, and are not different from those of other purchasers.” By reason of his compliance with all of the requirements of the law in respect of his preemption, he was entitled to the exclusive right to purchase a particular portion of the public domain; and having paid therefor, he has obtained the same legal title or right to his land as such other purchasers have to theirs; and he cannot be deprived of such right, nor the benefits to be derived therefrom. As a matter of course, this conclusion is reached upon the presumption that every successive step in his proceedings has been free from fault or fraud; and this is implied in the statement made. It is further to be observed in this connection, that when the preemptor has properly and honestly “ proved up,” as it is called, and has paid for his land, which he must do on receiving his certificate of purchase, he has done all that the law requires of him, or any other purchaser, and indeed all that he can do in the premises. His rights are no longer inchoate, but have become fixed and absolute; and it only remains for the government, through its proper officers to furnish him with the verification of his title, by the issuance to him of the patent. To the preemptor himself this, it seems, must x x 7 go ; but in case of a previous sale of the land, such patent inures to the benefit of his grantee upon plain and well-established principles. The right which such preemptor has to his patent is full and complete, from the date of the purchase, although as a matter of fact, the receiving of it may be, and often is, for a long time delayed. But this fact cannot opex’ate to his detriment, and it ought not. He already has, or may have, all of the elements of a perfect title as defined by the books, to-wit, the actual possession — the right of possession, by virtue of having complied with the law — and the right of property, by reason of having purchased and paid the consideration for his land. If this be true, it is surely in vain to contend against the proposition sought to be established in this case. But a further argument is to be drawn from the language which has been used in the section referred to. The word land is not used at all, nór any corresponding term ; and it seems reasonable to suppose that if a sale of the “ land,” after the right ■spoken of had been exercised, had been intended to be prohibited, such intention would have been expressed in the clearest and most unmistakable terms. This certainly is not the case here. Another argument is to be derived from the fact, that in many of the states the same view as above expressed has been recognized, and a policy in harmony therewith has been adopted. But it is perhaps unnecessary to pursue the subject further, as in our opinion enough has already been advanced, to show sufficient grounds upon which to base our conclusions. ¥e shall therefore hold that the prohibition referred .to only prevents the assignment and transfer of the right of preemption, prior to an entry of the land preempted, and the issuing of a patent to the assignee in his own name, in case of a sale of such land; and that the right to sell the land so preempted, or his interest therein, rests with the preemptor from the date of entry and purchase. 2 Minn., 155; 5 Wis., 475. The judgment heretofore rendered herein is reversed, and the case remanded to the district court, with instructions to dismiss the action as to Amelia A. Swifle so that her rights may be saved, and to entey judgment against the rest of the defendants, upon the facts found by the referee, and in accordance with the views expressed in this opinion. All the Justices concurring.	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The opinion of the court was delivered by Davis, J.: The City of Wichita (City) enacted Charter Ordinance 147 under its home rule powers. The Charter Ordinance exempted the City from the provisions of the Kansas Water Pollution Act, K..S.A. 12-3101 et seq. Based upon Charter Ordinance 147, the City adopted Ordinance 41-948, which established a storm water utility system for the City. Kansas Taxpayers Network, Inc., and Karl Peterjohn (Taxpayers) through initiative and referendum authority of K.S.A. 12-3013 attempted to repeal Ordinance 41-948. Ultimately, in response to a declaratory judgment action filed by the City, the trial court ruled that (1) Ordinance 41-948 was administrative in nature and therefore outside the scope of the initiative processes of K.S.A. 12-3013 and (2) the enactment of Charter Ordinance 147 was a proper exercise of the City’s home rule powers. These two conclusions have been preserved by the Taxpayers as the questions to be resolved on appeal. The Kansas Water Pollution Act addresses the powers of municipalities with respect to the development, maintenance, and operation of sewer systems. The City adopted Charter Ordinance 147, which modified and supplemented the provisions of the Kansas Water Pollution Act in several respects. The Charter Ordinance provides that it is: “A charter ordinance exempting the City of Wichita, Kansas from the provisions of die Water Pollution Act, K.S.A. 12-3101 through K.S.A. 12-3107, and providing substitute and additional provisions relating to the establishment, operation and maintenance of sewer systems and to the issuance of bonds for the purpose of paying for the grounds and improvements necessary for the operation of such systems; and repealing charter ordinance No. 145 of the City of Wichita.” Charter Ordinance 147 expanded the definition of “sewer” and “sewer system”; it set out the authority to establish sewer service charges. It exempted the City from the requirement that the is suance of bonds be subject to a vote of the electors, and it authorized the issuance of general obligation bonds of the City to finance all or any portion of the sewer system improvements. In addition, it provided authority for the City to combine its water, sanitaiy sewer, and storm water utilities and to initiate a consolidated billing system for all its utilities. The ordinance was adopted on December 22, 1992, and was published in accord with statute two times. Within the 60 days following publication, the City received no petition requiring that a referendum be held on Charter Ordinance 147, which became effective on March 1, 1993. On February 23, 1993, the City adopted Ordinance 41-948. This ordinance created a storm water utility for the City of Wichita. In § 2 (§ 16.30.020 of the Code of the City of Wichita, Kansas), the storm water utility is specifically created under the authority set out in the Kansas Water Pollution Act, as modified by Charter Ordinance 147. In March 1993, the City began charging each parcel of land within the City a drainage fee related to the contribution such land makes to the surface waters that must be drained through the City’s storm water management system. Home Rule Power to Adopt Charter Ordinance The Taxpayers contend that the City exceeded its home rule authority in enacting the Charter Ordinance and that both the Charter Ordinance and Ordinance 41-948 are invalid. The City contends that enactment of Charter Ordinance 147 was within its home rule authority because the Kansas Water Pollution Act is not uniformly applicable to all cities. The City’s home rule authority is set forth in Article 12, § 5 of the Kansas Constitution, which provides in pertinent part: "(b) Cities are hereby empowered to determine their local affairs and government including the levying of taxes, excises, fees, charges and other exactions except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of tire legislature applicable uniformly to all cities of the same class .... Cities shall exercise such determination by ordinance passed by the governing body with referendums only in such cases as prescribed by the legislature, subject only to enactments of the legislature of statewide concern applicable uniformly to all cities, to other enactments of the legislature applicable uniformly to all cities, to enactments of the legislature applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction and to enactments of the legislature prescribing limits of indebtedness. . . . “(c) (1) Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.” The Taxpayers contend that the City exceeded its home rule authority essentially for three reasons. First, they argue that the Kansas Water Pollution Act is uniformly applicable to all cities, and that Article 12, § 5 (c)(1) therefore does not permit the City to exempt itself from the Kansas Water Pollution Act’s provisions. The City responds that the Kansas Water Pollution Act is not uniformly applicable to all cities because one provision of K.S.A. 12-3105 applies only to certain cities of the first class. One portion of K.S.A. 12-3105 provides that certain cities of the first class may bill and collect charges through the administrative departments of the board of public utilities and that the board may discontinue service to nonpaying customers. This court’s decision in City of Junction City v. Griffin, 221 Kan. 332, 607 P.2d 459 (1980), supports the City’s position. In Griffin, we held that the Kansas Code of Procedure for Municipal Courts, K.S.A. 12-4105, was not uniformly applicable to all cities because one section applied only to cities of the first class. 227 Kan. at 335 (In cities of the first class, the person selected as municipal judge “shall be an attorney admitted to the practice of law in the state of Kansas.”). The Taxpayers’ second contention is that because this case concerns a fee, Article 12, § 5(b) of the constitution limits the City’s home rule authority. That section provides that home rule authority is subject to legislative enactments “applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction.” (Emphasis supplied.) In support of their contention, the Taxpayers refer to the language in § 3105 of the Kansas Water Pollution Act applicable to certain cities of the first class (on which the City relied to contend the Kansas Water Pollution Act was not uniformly applicable). The Act’s special provision for certain cities of the first class, however, does not bring the provision within the home rule limitation in Article 12, § 5(b) for two reasons. First, it does not apply uniformly to all cities of the first class but only to those “now owning or hereafter acquiring a municipal water plant and a municipal light plant, which plants are now or hereafter operated, managed and controlled by a board of public utilities.” K.S.A. 12-3105. Second, 12-3105 does not really limit or prohibit the levying of any tax or fee. Rather, it extends some additional authority to the cities to which it applies — it allows them to bill and collect sewer service charges through the board of public utilities and authorizes the board to discontinue service to nonpaying customers. Finally, the Taxpayers contend that the Charter Ordinance exceeded the City’s home rule authority because Article 12, §§ 5(b) and 5(c)(1) of the constitution limit the City’s authority to “opt out of” or modify legislative provisions that prescribe limits of indebtedness regardless of whether they are uniformly applicable to all cities. The Kansas Water Pollution Act, however, specifically provides that any bonds issued under it “shall not constitute an indebtedness within the meaning of any constitutional or statutoiy debt limitation or restriction, and shall not be subject to the provisions of any other law relating to the authorization, issuance or sale of bonds.” K.S.A. 12-3106(b). Moreover, the Kansas Water Pollution Act does not specifically impose a limit on indebtedness, other than its requirement that any bonds must be authorized by a majority vote. K.S.A. 12-3106. Given the nature of the Kansas Water Pollution Act, the provisions of Article 12, §§ (5)(b) and (5)(c)(l) of our state''constitution, and this court’s opinion in Griffin, we hold that the City did not exceed its home rule authority in enacting Charter Ordinance 147. Whether Ordinance 41-948 Was Administrative '■ ■ The Taxpayers also contend that the trial court erred in concluding that the ordinance proposed by the Taxpayers was administrative and therefore outside the scope of the initiative and referendum process. This case came before the district court; after the Taxpayers sought to repeal Ordinance 41-948 by initiative pur suant to K.S.A. 12-3013. K.S.A. 12-3013 permits the electors to submit a proposed ordinance to a city’s governing body by petition signed by a particular percentage of the electors, depending on the class of the city. The citizen initiative provisions, however, do not apply to: “(1) Administrative ordinances; (2) ordinances relating to a public improvement to be paid wholly or in part by the levy of special assessments; or (3) ordinances subject to referendum or election under another statute.” K.S.A. 12-3013(e). Both parties agree that in determining whether a repealing ordinance is administrative or legislative, this court should look to the ordinance that the electors seek to repeal. We agree. See, e.g., Lewis v. City of South Hutchinson, 162 Kan. 104, 125, 174 P.2d 51 (1946). (“Obviously, the original ordinance . . . was legislative in character. Consequently, the proposed repealing ordinance was also legislative in character.”). In this case, then, we must look to the character of Ordinance 41-948 in determining whether the repealing ordinance is administrative or legislative in nature. The determination of whether an ordinance is legislative or administrative “is to be based upon the factual situation in each case.” Rauh v. City of Hutchinson, 223 Kan. 514, Syl. ¶ 3, 575 P.2d 517 (1978). Both parties and this court agree that the guidelines for determining whether an ordinance is administrative or legislative are set forth in City of Lawrence v. McArdle, 214 Kan. 862, Syl. ¶¶ 2-4, 522 P.2d 420 (1974). See Rauh, 223 Kan. 514, Syl. ¶ 5, 519. These guidelines are summarized below: 1. An ordinance that makes new law is legislative; while an ordinance that executes an existing law is administrative. Permanency and generality are key features of a legislative ordinance. McArdle, 214 Kan. 862, Syl. ¶ 2. 2. Acts that declare public purpose and provide ways and means to accomplish that purpose generally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administrative. McArdle, 214 Kan. 862, Syl. ¶ 3. 3. “Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administrative, even though they may also be said to involve the establishment of a policy.” McArdle, 214 Kan. 862, Syl. ¶ 4. 4. No one act of a governing body is likely to be solely administrative or legislative, and the operation of the initiative and referendum statute is restricted “to measures which are quite clearly and fully legislative and not principally executive or administrative.” McArdle, 214 Kan. 862, Syl. ¶ 1. The court in Rauh also quoted at length from McQuillin’s treatise on Municipal Corporations, which iterated many of the same guidelines this court announced in McArdle. McQuillin also noted that when the matter at issue is one of statewide concern and the legislature delegates decision-making power to local councils or boards, rather than local electors, the action is an administrative function. Rauh, 223 Kan. at 519-20 (quoting 5 McQuillin, Mun. Corp. § 16.55, pp. 211-14 [3d ed.j). Although the parties applied the same test to the ordinance at issue here, they reached different conclusions about the character of the ordinance. Applying the McArdle and Rauh analysis to the facts of this case, we conclude that the ordinance is administrative in character and thus is outside the scope of the initiative statute. The ordinance does not make new law but executes an existing law. Charter Ordinance 147 is in the nature of an enabling law providing the basis for the specific action contemplated by Ordinance 41-948. The Charter Ordinance gives the City all the powers necessary or convenient to, inter alia, develop and maintain a sewer system, which is defined to include storm sewers. See Charter Ordinance 147, §§ 2, 3. The powers include, but are not limited to, the power to adopt ordinances and impose service charges. Charter Ordinance 147, § 3(a). Ordinance 41-948 includes the specific provisions to establish, operate, and fund a storm water utility and is well within the authority granted by Charter Ordinance 147. Ordinance 41-948 also expressly recites that it was adopted in response to state and federal storm water management requirements. The Taxpayers contend that the City’s “whereas” clauses in Ordinance 41-948 amount to a declaration of public purpose and that the specific provisions are the ways and means to accomplish that purpose, rendering the enactment legislative in character. The “policies” announced in the “whereas” clauses, however, are not new policies announced for the first time by the City. The clauses announce that the City is enacting the ordinance to comply with Federal Water Pollution Control Act requirements, state storm water management requirements, and its responsibility to maintain and expand the storm water system it already owns and operates. Finally, the operation, management, and financing of a citywide storm water management system reasonably fits within the context of decisions that require specialized knowledge and experience with respect to city management. The physical structure of the system, maintenance, and fee assessment and collection all fit within the purview of the City’s expertise. The City already owns and maintains the existing system; Ordinance 41-948 also fits within a city’s expertise in terms of fiscal management. Accordingly, we hold that Ordinance 41-948 is administrative and that the repealing ordinance proposed by the Taxpayers thus also is administrative, beyond the scope of the initiative powers granted by K.S.A. 12-3013. Affirmed.	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The opinion of the court was delivered by error goes to the validity of those provisions of the election law of this State, under and by virtue of which a court or courts may be constituted for the trial and deter- Sarford; J.: The first point made by the plaintiff in mination of contested elections. It cannot be necessary to discuss this question from a constitutional standpoint, inasmuch as the power of the legislature in the premises is clearly granted in the constitution : (Art. 3, § I.) Then as to the proper exercise of that power, it is hardly to be questioned. The tribunals contemplated by the provisions referred to are invested with judicial functions, (2 Kas., 322,) and are clothed with powers sufficient to meet all the requirements which can be made at their hands, and under the circumstances in respect of which they- may or can be called upon to act.' "What more can he asked or required, it is not easy to see. We conclude that the power of a court constituted for the purposes named, and in pursuance of the law applicable thereto, is not to be denied. II. The second point made by the plaintiff in error, is, that such court in this instance was not properly constituted; and he bases his objection on the fact that it did not convene and organize on the day on which under the law it should have so done. As to the first part of this objection, it is answered by a reterence to the record. The members of the court did meet on the day required, and considered some questions connected with thé case and preliminary thereto, and adjourned without having taken the oath of office, and without a formal calling of the case to be submitted to them, which was set for trial upon said day. They were however sworn on the next day, and' before proceeding at all with the trial on the merits. Did such proceeding upon their part have the effect to vitiate their acts in the premises, as claimed by the plaintiff in error ? We think ■not. The court met in pursuance of notice duly served, as required by law; and although it might be necessary for the members to take an oath of office' before proceeding with the trial of the case, they were most certainly a sufficiently-constituted court, under the act creating or authorizing such court, to adjourn their proceedings until next day. Nor would jurisdiction of the case,- and of the parties thereto, be thereby lost, or in any manner affected. Not only on general principles would the proceedings be under the-control of such court, but they are made so by express statute’,1 and this would of necessity give the right to adjourn as was done in this case, or to any extent such as not to abuse .the power thus given. There is no claim of abuse in this case; nor is it intimated that the party complaining was in any manner injured or even incommoded by the adjournment. And the same is true with regard to the failure of the members of the court to take the oath of office when they first met. No one was injured or incommoded thereby. III. But it is further urged that the notice itself did not contain the requisites of notices in such cases under the law; section 92, p. 425, Gen. Stat. Comparing the notice with the section referred to, it appears that it was addressed to the sheriff of the county. It contained the names of the contestor and contestee; the names of the judges before whom the contest was to be had; a brief statement of the causes of the contest, and the day of trial. These are all the requisites named in the statute;' and containing them, the notice was sufficient. It is proper to remark here, in answer to the arguments of counsel, that it is no objection to the notice that it did not allege that the acts of the board of canvassers set out and complained of as errors and mistakes, would, if rectified, change the result of the election to be contested. Such allegation would be no statement of a cause of contest, within the meaning of the term, as used in said section 92; and besides this, such allegation was included in the verified statement of the contestor, which was filed in the office of the county clerk pursuant to the preceding section 89, and being so on file was before the court as a paper in the case, and of course subject to the inspection of the contestee. IV. Another point is made by the plaintiff in error, as respects the evidence 'which was before the court, and what was established thereby. In regard to this matter it is sufficient to say that, looking at the record, which is somewhat meager, and does not purport to present the evidence introduced, hut only a summary statement of some portions, and the conclusions of the court, we are most certainly not able to say that the court acted otherwise than as warranted by such evidence. Other objections still are raised to the proceedings of the court before which the election contest was tried, and to those of the district court; but we do not think that they are material, and such as will warrant a reversal by this court. The judgment of the district court is affirmed. All the Justices concurring.	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The opinion of the court was delivered by Per Curiam-. The Mahlers (buyers) sued the Hejnys (sellers) and their agent, Keenan Real Estate, Inc., alleging that the Hejnys breached their residential sales contract and that all defendants made negligent and fraudulent misrepresentations and failed to disclose material facts about the septic system and water wells. The district court granted partial summary judgment in favor of the Hejnys on the counts of fraudulent misrepresentation and fraudulent concealment. It entered summary judgment in favor of Keenan Real Estate on all causes of action against it — misrepresentation, fraudulent misrepresentation, and fraudulent concealment. The district court granted the Mahlers’ request for certification pursuant to K.S.A. 1993 Supp. 60-254(b) and stayed proceedings while this appeal is pending. The Court of Appeals affirmed. We granted the Mahlers’ petition for review. The Mahlers bought from the Hejnys a house and 160 acres in Barton County, Kansas. When the Mahlers looked at the property, Donna and LaVonne Urban and their four children lived in the house. Donna Urban is the Hejnys’ daughter. The Hejnys live about 3.5 miles from the property which was bought by the Mahlers. Charles Tammen, a Keenan Real Estate agent, showed the Hejnys’ property to the Mahlers. The Mahlers asked him if there were any water problems in the area. According to Mrs. Mahler, Tammen said “none.” According to Mr. Mahler, Tammen’s response was that he knew of none. During the first visit, Tammen pointed out a pipe which had water running out of it onto the ground and stated that the water was from the shower, sink, and dishwasher. According to Mr. Mahler, Tammen explained that the water was piped away from the house to keep it from going to the septic tank and that the practice was common in the area. LaVonne Urban testified that approximately five years before the sale, he installed the overflow pipe in order to move excess water away from the laterals. After the first visit, the Mahlers expressed general concern about the water on the property and asked Tammen if the property was on rural water. Tammen told them it was on well water rather than rural water. Tammen told the Mahlers that if they had questions he would find out the answers for them. Mr. Mahler asked him to find out if there was any shortage of water or if there was any bad water in the area. Tammen asked Donna Urban if the water was all right and if there were any water problems on the property, to which she responded that, as far as she knew, the water was all right and there were no problems. Tam-men later reported to the Mahlers that he knew of no water problems in the area. After moving into the house, Mr. Mahler began experiencing problems with diarrhea. The Mahlers had their water tested, and the chemical analysis revealed that “[s]ulfate levels, while not above the 250 ppm maximum recommended, could cause a laxative effect in persons not used to drinking high sulfate water.” It was also reported that sodium levels were above what is recommended for people on low sodium diets, that chloride levels were above what is recommended for drinking water, and that the elevated nitrate levels made the untreated water unfit for drinking. Also after the Mahlers moved into the house, Keenan Real Estate, at the urging of the Mahlers, had the septic system inspected. The inspector reported that “sewer water” was being discharged out of the above-ground pipe. The Mahlers admit that at the time they purchased the property, Tammen had no knowledge of any problems with the quality of the water or the septic system, that there was an abandoned cesspool, and that there were abandoned wells which needed to be plugged. The Mahlers also admit that “[t]he Hejnys knew of no water problems about which to tell Mr. Tammen.” The Mahlers, however, denied the Hejnys’ proposed uncontroverted statement that they, “on the date of the closing, had no actual knowledge of any water, septic, sewage or plumbing problems on the property in question.” In this regard the district court stated: “An examination of the depositions that in any way relate to knowledge the Hejnys had regarding the conditions of the home fails to establish they were aware of those material facts alleged by the plaintiffs to be the basis of their fraud claim. The plaintiffs have failed to come forward with evidence showing the Hejnys knew of the defects complained of and remained silent with that knowledge.” The Mahlers initiated this action by filing a four-count petition. The district court described the counts of the petition as follows: “Plaintiffs assert four causes of action. The first is against defendants Hejny for breach of contract. The second cause of action is against defendant Keenan alleging misrepresentation. The third cause of action is apparently against both defendants alleging fraud. The fourth [is] for rescission.” It appears that the second cause of action, for misrepresentation, is also against the Hejnys. The paragraph naming the Hejnys is incorporated into Count 2, and paragraph 13 of Count 2 refers to “defendants.” The allegation in Count 4 is that the contract was invalid because the misrepresentations and concealments prevented the parties to the contract from reaching a meeting of the minds. Count 4 seems to have been treated as praying for the remedy of rescission rather than as stating a separate cause of action. For the purpose of summary judgment it was ignored. Keenan Real Estate and the Hejnys filed motions for summary judgment. The district court wrote two decisions, the original and a second one following Keenan Real Estate’s motion for reconsideration. The breach of contract count was not a part of the Hejnys’ motion. Nonetheless, the district court included it in its original memorandum decision. The district court stated: “To avoid any misunderstandings now or in the future, the Court affirmatively finds there are genuine issues of material fact which preclude the granting of summary judgment with regard to plaintiffs’ first cause of action alleging a breach of contract by the Hejnys.” In addition to denying summary judgment on the breach of contract count due to genuine issues of material fact, the district court denied summary judgment on the same ground “with regard to plaintiffs’ second cause of action alleging misrepresentation of material facts by defendant Keenan.” After denying summary judgment on misrepresentation, the district court granted it in favor of all defendants on fraud and “ ‘fraud by silence.’ ” In its original memorandum decision, the district court stated: “In the plaintiffs’ petition the allegations of fraud and misrepresentation in count III appear to be directed against both [sic] defendants. In the plaintiffs’ response to defendants’ motion for summary judgment the discussion regarding constructive fraud appears to be directed solely against defendant Keenan and not against defendants Hejny. Therefore the Court will not discuss the doctrine of constructive fraud as it pertains to the defendants Hejny in light of the third cause of action.” The district court gave the following reasons for granting summary judgment: (1) The Mahlers failed to produce any evidence that Tammen knew that any of his statements were false. (2) There is no evidence that any of Tammen’s statements were made with reckless disregard for the truth. (3) The Mahlers met with the Hejnys once or twice before closing “but never discussed anything about water, sewage, septic or plumbing aspects of the property.” (4) The Mahlers failed to produce any evidence that the Hejnys knew of problems with the water and septic system. The district court, in its original memorandum decision, noted that the Mahlers argued that Tammen, a real estate agent, could be held liable for false statements which he did not know were false. “The plaintiffs argue this constitutes constructive fraud and under the law of Kansas the plaintiffs are entitled to recover damages from defendant real estate agent for fraud. This is contrary to the law as stated in Nordstrom v. Miller, [227 Kan. 59], Goff v. American Savings Association, 1 Kan. App. 2d 75 and Scantlin v. Superior Homes, Inc., 6 Kan. App. 2d 144.” Keenan Real Estate filed a motion requesting the district court to reconsider that portion of its decision which allowed “the plaintiffs to proceed against [Keenan] on the claim of negligent misrepresentation.” In the district court’s second memorandum decision, the district court confirms that it “struck plaintiffs’ cause of action based upon fraud but allowed the cause of action based upon negligent misrepresentation to remain.” The district court granted the motion to reconsider and entered summary judgment in favor of Keenan Real Estate and against the Mahlers on their claim of negligent misrepresentation. There were two issues considered by the Court of Appeals in its opinion: “Did the trial court err in concluding that Kansas does not recognize a cause of action for negligent or innocent misrepre sentation by a real estate agent who induces a buyer to purchase real estate?” “Did the trial court err in concluding that the Mahlers failed to present sufficient facts to establish active or constructive fraud by the Hejnys or Keenan?” The Court of Appeals answered both questions in the negative. In their petition for review, the Mahlers stated two issues, but they appear to be alternative wordings of the same issue — the first issue considered by the Court of Appeals. They did not file a supplementaiy brief in this court. Keenan Real Estate did, and its discussion is confined to the first issue considered by the Court of Appeals. The Mahlers’ claim against Keenan is for negligent misrepresentation. The district court ruled that a claim for negligent misrepresentation is not recognized in Kansas. Although the Court of Appeals framed the issue to include both negligent and innocent misrepresentation, only negligent misrepresentation is involved in the present case. Thus, we consider if a cause of action for negligent misrepresentation against a real estate agent is recognized in this state. We do so in the context of the district court’s finding no such action exists in Kansas and granting summary judgment to the defendant real estate agency. “Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “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. 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.” Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, Syl. ¶¶ 1, 2, 827 P.2d 24 (1992). “The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case.” Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990). In its second memorandum decision, the district court concluded that in Kansas there is neither a statutory nor a common- law buyer’s cause of action against a real estate agent for negligent misrepresentation. The principal authority cited was Brunett v. Albrecht, 248 Kan. 634, 810 P.2d 276 (1991). The district court stated that Brunett “clearly holds no private right of action exists for negligent misrepresentation as a result of the Kansas Real Estate Brokers’ and Salespersons’ License [KREBSLA], K.S.A. 58-3034 et seq.” The Court of Appeals disagreed, correctly pointing out that “Brunett does not reach or decide if a cause of action for innocent or negligent misrepresentation against a real estate agent exists pursuant to statutes other than the KREBSLA. or at common law. It only holds that the Act is no longer the basis for a private cause of action. Any rights in existence prior to enactment of the KREBSLA were not extinguished by the 1986 amendment.” The Brunetts sued the real estate agent who had assured them that there were no problems with the basement of the house they bought. The basement leaked. The district court judge instructed the jury on fraud, but refused to instruct on a separate cause of action under KREBSLA. This court affirmed, stating that “[t]he district court correctly determined that the Act, as amended, did not create a separate cause of action.” 248 Kan. at 643. The significance of the amendment is that the Brunetts relied on Johnson v. Geer Realty Estate Co., 239 Kan. 324, 720 P.2d 660 (1986), for authority that KREBSLA “may be the basis of suits brought against real estate brokers.” 248 Kan. at 641. In Johnson, the agent’s liability for negligent misrepresentation was based upon his violating what is now K.S.A. 1993 Supp. 58-3062(a)(34), a provision of KREBSLA: “No licensee, whether acting as an agent or a principal, shall . . . [fjail to disclose, or ascertain and disclose, to any person with whom the licensee is dealing, any material information which relates to the property with which the licensee is dealing and which such licensee knew or should have known.” After Johnson, the legislature amended the Act. See L. 1986, ch. 209, § 19. The post -Johnson amendment states: “Nothing in this act shall be construed to grant any person a private right of action for damages or to eliminate any right of action pursuant to other statutes or at common law.” See K.S.A. 1993 Supp. 58-3034(b). This court concluded that “[t]hough the Act, as amended, may no longer be the basis for a private cause of action for negligent or fraudulent misrepresentation, the legislature’s amendment of the Act did not eliminate any right of action pursuant to other statutes or at common law.” 248 Kan. at 642-43. Because the amendment did not extinguish common-law causes of action in existence before the enactment of KREBSLA, the Court of Appeals examined pre-KREBSLA case law. Based on its review of cases, the Court of Appeals concluded that “[a] real controversy exists as to whether Kansas courts have ever recognized a common-law cause of action for innocent or negligent misrepresentation against a real estate agent or broker.” The Court of Appeals considered four cases which stand for the proposition that the person who made material misrepresentations need not have known that they were false in order to be held liable. The cases are Topinka v. American Eagle Fire Ins. Co., 167 Kan. 181, 205 P.2d 991 (1949); Dodd v. Boles, 137 Kan. 600, 21 P.2d 364 (1933); Becker v. McKinnie, 106 Kan. 426, 186 Pac. 496 (1920); and Bice v. Nelson, 105 Kan. 23, 180 Pac. 206 (1919). None involves a real estate agent’s statements. In Bice, Becker, and Dodd, sellers were alleged to have made material misrepresentations which induced buyers to purchase property. In each case, the sellers were held liable even though they did not know the statements were false. In Bice, the court said: “In this state, false statements of fact, made by a seller to induce a sale and relied on by the buyer, are actionable, without regard to whether or not the seller knew the statements to be false, or acted recklessly in making them, or intended to deceive. (Wickham v. Grant, 28 Kan. 517; Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585; Westerman v. Corder, 86 Kan. 239, 119 Pac 868; Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589; Akins v. Holmes, 89 Kan. 812, 820, 133 Pac. 849.)” 105 Kan. at 26. In Becker, McKinnie, through his agent, Bendle, sold water rights to Becker. Bendle misrepresented the holding capacity of the reservoir and the sufficiency of the available water to irrigate Becker’s acreage. On appeal, McKinnie contended that his demurrer should have been granted on the ground that Becker did not allege that the statements were known to be false when made. This court rejected McKinnie’s argument: “While the pleader did not in so many words state that defendant knew the statements to be false, the averments of the petition fairly imply that they were deceitfully made and that by reason of the deceit so practiced the plaintiff was induced to part with his money. However, it was enough if the false statements were made as facts to induce a sale and the plaintiff bought the water rights relying on defendant’s representations. The defendant cannot escape liability for such false representations, even if he did not know them to be untrue. He had the means of knowledge, and it was his duty to know the truth before making the representations that were made. Having made them as facts and thereby induced the plaintiff to rely on the statements to his prejudice, he is bound although he may not have known that they were untrue, and may have had no purpose to defraud the plaintiff. Under the circumstances, knowledge of the untruth is imputed to him, and in contemplation of law he knew his statements were false. In Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585, it was decided that: ‘If a seller makes positive statements and representations not known by him to be true, intending to induce a sale, and a purchase is made in reliance upon his representations which turn out to be false, his action is fraudulent and he is as answerable to the purchaser as if he had made the representations knowing them to be false.’ (Syl. ¶ 5.) “In another decision of like import, it was said: ‘In this state, false statements of fact, made by a seller to induce a sale and relied on by the buyer, are actionable, without regard to whether or not the seller knew the statements to be false, or acted recklessly in making them, or intended to deceive.’ (Bice v. Nelson, 105 Kan. 23, 181 Pac. 558.) “(See, also, Westerman v. Corder, 86 Kan. 239, 119 Pac. 868; Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589; Akins v. Holmes, 89 Kan. 812, 133 Pac. 849.)” 106 Kan. at 427-28. In Dodd, the principal issue on appeal was the propriety of rescission under the circumstances, but this court also had the opportunity to consider the seller’s contention that he should not be held liable because when he made the statements, he believed them to be true. Quoting the rule from Bice v. Nelson, this court rejected the seller’s contention. With regard to the rule, the court noted that it “was observed and strictly followed in the case of Pellette v. Mann, 116 Kan. 16, 225 Pac. 1067.” 137 Kan. at 606. None of these cases specifically involves a real estate agent’s statements, but the statements in Bice and Becker were made by agents. Thus, principles of agency law applied. In Becker, tire agent arranged the purchase of water rights, which often determine the use and value of real property in this state. Among the cases cited as authorities in Bice, Becker, and Dodd there are several which involve real property and/or agents. Akins v. Holmes, 89 Kan. 812, 133 Pac. 849 (1913), involved rescission of a contract for the purchase of real property, and false representations were made by an agent to induce the purchase. Because the same statements were made by the principal, however, liability was based on his statements rather than on the agent’s. In Westerman v. Corder, 86 Kan. 239, 119 Pac. 868 (1912), and Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589 (1913), false representations were made by the sellers to induce the purchase of real property. Topinka did involve statements made by an agent. Topinka was an action to set aside a release of the insurer’s liability under a hail insurance policy. Topinka alleged that the insurance company’s adjusting agent secured his signature on the release by making false statements. The adjuster convinced Topinka that most of his crop loss was due to a disease rather than to hail. This court concluded that it was unnecessaiy for Topinka to prove that the adjuster knew his statements were false. “Whether made in good faith, or with fraudulent intent, or merely through over-anxiety to make a good settlement for his insurance company, the fact remains that the adjuster did make the representations with the intention and for the purpose of inducing plaintiff to malee a setdement favorable to the insurance company and to part with all right to further recovery under his policy of insurance. Where the insurance adjuster’s false representations resulted in damage to the assured, the latter’s pain of loss is not eased by the appellant’s averments that the adjuster believed his statements to assured were true at the time they were made.” 167 Kan. at 185. In the present case, the Court of Appeals relied primarily on Nordstrom v. Miller, 227 Kan. 59, 605 P.2d 545 (1980), in holding that Kansas does not recognize a cause of action against a real estate agent absent a showing of intentional fraud. The Court of Appeals stated: • “In Nordstrom, the Kansas Supreme Court held that a real estate agent could not be liable in fraud for innocently and in good faith passing on a fraudulent misrepresentation from his or her principal, the seller, to the buyer when the agent had no knowledge that the statement was false, following Hussey v. Michael, 91 Kan. 542, 543, 138 Pac. 596 (1914). Nordstrom differs from our case only as to whose misrepresentations the real estate agent passed on to the buyers. Here, Tammen relied on statements from the Urbans (the tenants) that there were no problems with the septic tank or the wells. Tammen did not reveal the source of his information. The Mahlers have made no showing that Tammen knew or should have known that these statements were false.” There was, however, no allegation of negligent misrepresentation in Nordstrom. The only allegation against any defendant was fraudulent misrepresentation. The rules stated in Nordstrom from which the Court of Appeals drew the impression that this state’s courts would not hold a real estate agent liable for negligent misrepresentation were stated without regard to any question about negligent or innocent misrepresentation. Syllabus ¶ 6, which is drawn from the court’s discussion of the sellers’ liability, states: “Actionable fraud includes an untrue statement of fact, known to be untrue by the party making it, made with the intent to deceive or recklessly made with disregard for the truth, where another party justifiably relies on the statement and acts to his injury” Syllabus ¶ 2 states: “If an agent makes false representations on behalf of his principal honestly believing them to be true, the mental element of fraud is lacking and he is not guilty of fraud and not liable for such, although his principal may have known that such representations were false.” 227 Kan. 59. In addition to being devoid of any consideration of the legal question whether negligent misrepresentation is actionable, Nordstrom is not controlling of the present case because it is distinguishable on the facts. There is one critical respect in which the Court of Appeals was mistaken about the comparison of the facts of Nordstrom and those of the present case. The Court of Appeals believed that “Tammen’s information came from the Ur-bans,” the daughter and son-in-law of the sellers, the Hejnys. Seemingly based on the relationship between the Urbans and the sellers and the Urbans’ long-term occupancy of the property, the Court of Appeals concluded that this case was indistinguishable from Nordstrom where the real estate agent’s information came from the seller. With respect to Tammen’s statement that water from the pipe was from the shower, sink, and dishwasher, however, the record does not support the conclusion that the mis information came from the Urbans. Unlike the agent in Nordstrom, therefore, Tammen cannot be absolved of liability on the ground that the misinformation was provided to him by the sellers or occupants and he believed it to be true. In Chapter 22 of the Restatement (Second) of Torts (1976), the tort of negligent misrepresentation is defined: “Topic 3. Negligent Misrepresentation “§ 552. Information Negligently Supplied for the Guidance of Others “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of odiers in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance .upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. “(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. “(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.” Clearly, this court has imposed liability for negligent misrepresentation without labeling it as such or mentioning § 552. This section is not inconsistent with our holdings in Dodd, Bice, Becker, and Topinka. As noted by Judge Welliver in his dissenting opinion in Huttegger v. Davis, 599 S.W.2d 506, 514 (Mo. 1980): “The elements of negligent misrepresentation differ from those of fraudulent misrepresentation in one major respect: while the latter requires proof that the defendant knew the statement was untrue or was reckless as to whether the statement was true or false, the former merely requires proof that the defendant failed to exercise reasonable care or competence to obtain or communicate true information.” We find § 552 to be a fair statement of law and persuasive authority, and we adopt the Restatement (Second) of Torts § 552. We hold that a cause of action for negligent misrepresentation as defined in § 552 is recognized in the state of Kansas. In Bevins v. Ballard, 655 P.2d 757, 763 (Alaska 1982), the Alaska Supreme Court stated: “The policy favoring liability for innocent misrepresentation is found on a recognition that purchasers should be entitled to rely on a broker’s representations. As one opinion notes: ‘Real estate brokers and their agents hold themselves out to the public as having specialized knowledge with regard to housing, housing conditions and related matters. The public is entitled to and does rely on the expertise of real estate brokers in the purchase and sale of its homes. Therefore there is a duty on the part of real estate brokers to be accurate and knowledgeable concerning the product they are in the business of selling — that is, homes and other types of real estate. Courts have held in many cases that purchasers are entitled to rely on real estate brokers’ statements.’ Lyons v. Christ Episcopal Church, 71 Ill. App. 3d 257, 27 Ill. Dec. 559, 389 N.E.2d 623, 628 (1979) (dissenting opinion). “We find this reasoning persuasive. Parties to real estate transactions frequently do not deal on equal terms. Real estate brokers are licensed professionals, possessing superior knowledge of the realty they sell and the real estate market generally. Prospective purchasers recognize this expertise and tend to rely on a broker’s representations. Just as purchasers are entitled to rely on an owner’s representations, Cousineau v. Walker, 613 P.2d 608 (Alaska 1980), purchasers should be entitled to rely on the broker’s representations. Any other rule would permit brokers to use misleading statements in selling the property, yet remain immune from liability by simply remaining ignorant of the property’s true characteristics. Accordingly, we hold that a purchaser who relies on a material misrepresentation, even though innocently made, has a cause of action against the broker originating or communicating the misrepresentation. See Restatement (Second) of Torts § 552(C)(1) [1976], “In our view, the consequences of recognizing a cause of action in this situation are entirely beneficial. The presence of a cause of action against the broker would tend to lessen the likelihood of transactions tainted by misinformation and confusion. ... As between the broker who communicated the misrepresentation, and the purchaser whose only fault was to rely on the broker, we think it preferable that the broker bear any loss caused by misrepresentation. Brokers, in turn, can protect themselves from liability by investigating the owner’s statements, or by disclaiming knowledge, by requiring the seller to sign at the time of listing a statement setting forth representations which will be made, certifying that they are true and providing for indemnification if they are not. See Goldman v. Hart, 134 Ga. App. 422, 214 S.E.2d 670 (1975).” Although the Alaska Supreme Court was speaking to innocent misrepresentation, the same policy favors liability for negligent misrepresentation, and we find it is very persuasive. We know of no valid reason to treat real estate agents differently than other agents and exempt them from liability under § 552. The district court and the Court of Appeals erred in holding that Kansas does not recognize a cause of action for negligent misrepresentation by a real estate agent who induces a buyer to purchase real estate. In the present case, the Mahlers relied on Tammeris statement that the water being discharged from the pipe was from the shower, sink, and dishwasher and that there were.no water problems — or he knew of no water problems — in the area. The former statement corresponds fairly closely to that stated in Restatement § 552, negligent misrepresentation. In his business and in á transaction in which it may be assumed he realized a commission, Tammen supplied false information for the Mahlers’ guidance. The Mahlers alleged that they were justified in relying on the information and that Tammen failed to exercise reasonable care in obtaining it. In the phrase of the Restatement, the question is whether the agent failed “to exercise reasonable care or competence in obtaining or communicating the information.” Restatement (Second) of Torts § 552(1). This is the inquiry to be made in the present case as to Tammen’s conduct. Nothing in the record has been pinpointed as indicating any source for Tammeris statement other than his own assumption about the sources of the water from the pipe. If, for the sake of argument, his assumption is said to be based on general statements of the Urbans ábout the absence of problems with water, he made some radical changes and leaps. He converted statements which barely transcend opinions into particularized information which had the earmarks of fact, and the specific information does not necessarily follow from the general statements. The Court of Appeals confined its consideration to the question whether Kansas courts previously have recognized a buyer’s cause of action against a real estate agent for negligent misrepresentation. Neither the post -Johnson amendment to K.S.A. 58-3034 nor this court’s decision in Brunett requires that the field of inquiry be that restricted. Brunett construes the statutory provision and holds that although KREBSLA is not the basis for a private cause of action, its amendment after Johnson was reported did not extinguish any pre-KREBSLA rights. Before codification in 1980 of rules governing real estate brokers and salespersons, general agency principles applied to the endeavors of that occupation. See, e.g., Akins v. Holmes, 89 Kan. at 820. As we have seen, there are pre-KREBSLA cases in which false statements by agents are actionable irrespective of the agent’s knowledge. See, e.g., Topinka, 167 Kan. 181. The cause of action is not precluded by K.S.A. 1993 Supp. 58-3034(b), nor is it precluded by Brunett. The question of the Hejnys’ liability for Tammen’s statement that the water being discharged from the pipe came from the shower, sink, and dishwasher remains. There is no evidence linking the Hejnys to this statement as sources for the information, as ratifiers, or in any other way. On this ground alone, they are absolved of liability for negligent misrepresentation. Even if they had been the source of the misinformation, Johnson stands for the proposition that the entry of summary judgment in their favor would be proper. In that case, the sellers mistakenly advised the real estate agent that their house was served by a sewer system. This court concluded that the agent, experienced in such matters, should have known that the property was on a septic system but that the people who had lived in the house for several years had no reason to have known. 239 Kan. at 329. The court stated that “[u]nder the facts of this case, the nonliability of the sellers does not absolve the broker of liability.” 239 Kan. at 332. Thus, under the rationale of Johnson, the liabilities of the agent and the sellers are separate and independent. Even though the legislature overruled the statutorily based cause of action permitted by Johnson, this would not appear to have affected the court’s reasoning with respect to independent liability. In response to their inquiries, Tammen told the Mahlers, according to Mrs. Mahler, that there were no water problems in the area and, according to Mr. Mahler, that he knew of no water problems in the area. Tammen asked Donna Urban if the water was all right and if there were any water problems on the property. Donna Urban told him that the water was all right to her knowledge and that there were no problems. Without identifying his source, Tammen passed along what he had been told. These statements which came from Donna Urban are like the statements of the agent in Nordstrom. In that case, the court absolved the agent of liability on the ground that the misinformation had been provided by the sellers and the agent believed it to be true. As noted in the earlier discussion of Nordstrom, there was no claim of negligent misrepresentation in that case and the court did not consider whether his belief in the truth of the statements was reasonable. In the present case, no consideration was given to whether Tammen believed Donna Urban’s statements or whether belief was reasonable. Also, no consideration was given to the question whether the Hejnys could be held liable in these circumstances. There is no allegation that Donna Urban occupied the position of an agent to the Hejnys, and there is no evidence that the Hejnys were involved at any level in providing the information. Thus, any claim against the Hejnys for negligent misrepresentation based on these statements could not withstand the motion for summary judgment. Once it had decided not to recognize a cause of action for negligent misrepresentation by a real estate agent, the Court of Appeals briefly considered the Mahlers’ claims of fraudulent misrepresentation and fraudulent concealment against Tammen and the Hejnys. The Court of Appeals concluded that the Mahlers had failed to establish the element of knowledge for both causes of action. For this reason, the Court of Appeals affirmed the district court’s entry of summary judgment against the Mahlers and in favor of the defendants. The Court of Appeals framed the question as being whether evidence of “active or constructive fraud by the Hejnys or Keenan” was sufficient. With regard to “active fraud,” the Court of Appeals cited Goff, 1 Kan. App. 2d at 78; with regard to “constructive fraud,” it cited Sippy, 4 Kan. App. 2d at 516. The essential elements of “active” fraud set out in Goff match those stated by this court in Syl. ¶ 6 of Nordstrom, including the declarant’s knowledge of the falsity of the statement. As might be suspected by the Court of Appeals’ pairing of “active” and “constructive” fraud, it was using the former to mean supplying false information and the latter to mean failing to supply material information; that is, fraudulent concealment. The Court of Appeals’ conclusion that “the Mahlers have failed to establish a cause of action for active or constructive fraud” against either Tammen or the Hejnys is based on this summary of the evidence: “The Mahlers specifically admitted that Tammen had no knowledge of the sewage problems, the sodium and nitrate levels, or that .two wells on the property needed to be plugged. They also admitted that the Hejnys had no knowledge of the water and septic tank problems.” As noted earlier, the Mahlers admitted that at the time of the purchase, Tammen had no knowledge of any problems with the quality of the water or the septic system, that there was an abandoned cesspool, and that there were abandoned wells which needed to be plugged. With regard to the Hejnys, the Mahlers admitted only that die Hejnys knew of no water problems about which to tell Tammen. The district court, however, stated that its examination of the depositions failed to disclose any evidence which would establish that the Hejnys “were aware of those material facts alleged by the [Mahlers] to be the basis of their fraud claim.” For the foregoing reasons, we hold the entry of summaiy judgment in favor of Keenan Real Estate, Inc., is affirmed on the Mahlers’ claim of fraudulent misrepresentation arid reversed on the Mahlers’ claim of negligent misrepresentation. The entry of summary judgment in favor of the Hejnys on the Mahlers’ claims of fraudulent misrepresentation, concealment, and misrepresentation is affirmed.	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The opinion of the court was delivered by Kingman, O. L: This was an action upon a promissory note executed by the plaintiff in error and one A. McConnell in favor of Calvin O. Robinson. The note was not made payable either to his order, or to bearer. It was assigned for a valuable consideration before due, to defendant in error, who brought the action in the court below. The defendants in the court -below answered separately: McConnell relying upon a release; and upon the trial his answer was sustained by a verdict and judgment, so that there is no question here, as to his liability. Graham’s answer set up fraud and misrepresentation on the part of Robinson as the inducement for-Graham to make - the note, and by reason of which he did make the same. The answer not only sets up the fraud and misrepresentation generally, but enters into details, which if true, abundantly show by the facts' stated that the allegation was not too broad. The plaintiff replied, denying generally the allegations of the answer. Upon the trial the defendant Graham’ offered evidence to prove the statements of his answer, which the court refused to permit him to do; and this refusal is the error alleged in this case. The defendant in error files no brief, and we are left to conjecture as to the reasons upon which the district court founded its ruling. I. The record really presents two questions. First, could the defense attempted to be made have been allowed in an action brought by the payee of the note against the maker ? and second, if so, can it be allowed in an action brought by one to whom the note was assigned for a valuable consideration before due ? We think the facts set forth in the answer constitute of themselves a good • defense to the action had it been brought by the original payee. It is too late to revert to a doctrine found in the earlier decisions, that where a contract was tainted with fraud it must be set aside in toto; or that where there was such misrepresentation as to the quality of the thing sold as greatly to impair its value the person so injured could not use such facts as a defense, but must resort do a cross action, against the plaintiff’ for relief. These rules have been greatly modified, even in England, by later decisions where the courts “ appear to have “yielded materially to the influence of common sense “ and common convenience. But, however the rule laid “ down in England has been understood, it has repeatedly “ been decided by learned and able judges in our own “ country, "when acting, too, not in virtue of a statutory “ license, or provision, but upon principles of justice and “ convenience, and with a view of preventing litigation “ and expense, that where fraud has occurred in obtain- “ ing or in the performance of contracts, or where there-“has been a failure of consideration, total or partial, or a “breach of warranty, fraudulent or otherwise, all, or “ any, of these facts may be relied on in defense by a “party when sued upon such contracts: and that he shall “not be driven to assert them, either for protection or as “ a ground for compensation, in a cross action.” Withers v. Green, 9 Howard, 230. This case cites and reviews many of the authorities upon'this point, to which may be added, as being almost precisely similar to the case under consideration, the cases of Hammatt v. Emerson, 27 Maine, 828, and Allen v. Shackleton, 15 Ohio St., 147. This last case places the decision briefly on the ground that it is authorized, by the code in a section corresponding with section 9 1 of the code of this State. The law on this point ougl t to be considered settled. II. The second question remains to be answered. Can this defense be allowed in an action brought by one to whom the payee assigned the note for a valuab i consideration before due? It will not be ^ 5£jone(j that unless some statutory provision shall prohibit such a defense that it would be available; for it has always been the established doctrine that the assignee of a Yion-negotiable note, takes it sub ject to all the equities existing between the maker and the payee. 1 Pars, on Cont., 195, 198 ; Edw. on Bills, 208, 209. Nor will it be questioned that the note sued on is anon-negotiable note. Gen. Stat., ch. 14, § 1, p. 114; Story on Prom. Notes, § 128. Have our statutes made any change in this respect? The difficulty, whatever there is, on this point, arises from the fact that the same legislature has enacted a law bearing upon or controlling the subject, in three different chapters, and under as many headings: see Gen. Stat., §§ 2 and 3 p. 114; § 8, p. 183, and § 27 of the code, p. 635. These several sections referring to the same subject should be construed together, and the intent of the legislature drawn from them all if possible. Section 27 of the code of civil procedure is too familiar to need quotation here. It establishes a rule as to non-negotiable paper that would admit the defense set up in this case as against the holder of the note though it was assigned to him for a valuable consideration before due. The reason of the section is apparent. If a man chooses to give a commercial character to his paper he may do so by making it negotiable, and if it passes into the hands of a holder for a valuable consideration before due, he shall not bo allowed to raise questions affecting the value of the paper which he has allowed to go into circulation; but if the holder of the note has taken the assignment thereof after maturity he has implied notice by the non-payment, that there is some defense or latent equity against the note, and he takes it subject to such possibilities. So, if the note is non-negotiable; this very fact is a notice to him, and he takes the note at his peril. There is no difficulty in construing this section; and when we consider the reasons for its enactment, there will be little trouble in under standing section eight, pp. 183, 184. That section is as follows: “Sec. 8.-The want or failure in the whole or in part of the consideration of a written contract may be shown as a defense, total or partial as the case may be, in an action on such contract brought by one who is not an innocent holder in good faith.” Is the holder of a non-negotiable note ever an “ innocent holder” in the sense in which that term is known to the law? We think not. The maker of such a note has taken care, in making the note, to so limit his liability, as to challenge the attention of and give notice to all that it is made subject all the time to such just defenses as he may have, or to such latent equities as may exist; and any person taking such a note by assignment is put upon his guard to make inquiries of the maker as to the existence of any grounds of legal defense he may have. If this sectiop can have any other meaning, then the distinction made in section 21 of the code between negotiable and non-negotiable paper has no effect; and yet the code was adopted after section 8 above quoted. The construction we have given this section makes our statutes harmonious and consistent each with the other, and ought to prevail. Consequently the decision of the court below in refusing to permit evidence of the defense to be given was erroneous. The judgment must be reversed and a new trial awarded. All the Justices concurring.	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The opinion of the court was delivered by Allegrucci, J.: The defendant, David L. Ratzlaff, is charged with one count of possession of cocaine, K.S.A. 65-4127a; one count of possession of marijuana with intent to sell, K.S.A. 65-4127b; and one count of possession of marijuana without a tax stamp, K.S.A. 79-5208. The district court ruled that a search warrant which had been issued for David Ratzlaff s residence was not supported by probable cause and suppressed evidence seized during the search. The State appealed pursuant to K.S.A. 1992 Supp. 22-3601(a) and K.S.A. 22-3603. The Court of Appeals, in an unpublished opinion filed November 24, 1993, reversed and remanded for further proceedings. David Ratzlaff’s petition for review was granted by this court. Two issues are raised on appeal: 1. Was the information in the police affidavit supporting the application for a search warrant sufficient to form a substantial basis for concluding that probable cause existed? 2. If the court finds a lack of probable cause existed to support the issuance of the search warrant, does the good faith exception to the exclusionary rule prevent the evidence seized from Ratzlaffs residence from being suppressed? Based on an affidavit and application made by Detective Howard Shipley to Reno County District Court Judge Patricia Macke Dick, a search warrant was issued on May 17, 1992, for any buildings and vehicles located at 600 West 23rd in Hutchinson. David Ratzlaff resided at that address. During the search of Ratzlaffs residence, drugs, cash, and weapons were seized. Upon Ratzlaffs motion, District Court Judge Steven R. Becker reviewed the affidavit and concluded in a memorandum opinion issued December 23, 1992, that “no probable cause existed for the issuance of the search warrant of [Ratzlaffs] residence.” On February 19, 1993, the district court conducted an evidentiary hearing, pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), for the purpose of determining whether the evidence seized in the search of Ratzlaffs residence should be suppressed. In a memorandum opinion filed March 4, 1993, the district court found that the good faith exception to the exclusionary rule created by United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984), was not applicable and ordered that the evidence be suppressed. The affidavit contained the following information: Detective Shipley, on two previous occasions within two years, had received accurate information from a confidential informant about individuals involved in drug transactions. In April 1992, the informant told Detective Shipley about a large-scale marijuana and cocaine distribution operation in Hutchinson supplied by Leo Gutierrez and run by William R. Meyers and David Ratzlaff. The informant named several people who he said were provided cocaine by Meyers and Ratzlaff. He said that Ratzlaff lived on West 23rd Street, and Detective Shipley determined that Ratzlaffs residential address was 600 West 23rd Street in Hutchinson. The informant overheard conversations which indicated that Gutierrez would deliver a large quantity of cocaine to Meyers and Ratzlaff in Reno County by the weekend of May 15-17, 1992. On May 11, Detective Shipley saw three Hispanic males at Meyers’ residence in South Hutchinson. Their vehicle was registered to Gutierrez. On May 17,1992, the informant contacted Detective Shipley and said that “Gutierrez was in Hutchinson and the deal was taking place.” The informant said that Meyers sold marijuana he got from Gutierrez to James Roets. Detective Shipley saw Roets at Meyers’ residence in South Hutchinson. Roets went from there to 2210 N. Obee Road, the residence of one of Meyers’ customers, and then to another residence owned by Meyers, on Obee Road, where there was a pickup truck registered to Gutierrez. After leaving Hutchinson, the pickup was stopped with more than $32,000 cash in it. The district court stated with regard to the affidavit that it contained general information from a confidential informant tihat Ratzlaff was supplied drugs by Gutierrez and engaged in drug trafficking, but was devoid “of any mention of activity by Ratzlaff or any suspicious activity occurring at his residence, while Leo Gutierrez was in Reno County.” The district court formulated the issue as “whether the statements of Ratzlaff’s involvement in the criminal activity is alone sufficient to support a search warrant of his residence.” It concluded that “[t]he affidavit lacks information to establish a substantial basis for concluding probable cause to believe that evidence of the alleged drug transaction on May 17, 1992, would be located at [Ratzlaff’s] residence.” Based on Detective Shipley’s testimony at the February 1993 evidentiary hearing, the district court rejected applying the good faith exception to the exclusionaiy rule to the present case. According to the district court, that testimony “establishes that information relevant to [Ratzlaff] was even less than implied in the affidavit and, in some instances, completely contrary to the information provided to the issuing magistrate.” The specific findings of fact and conclusions of law made by the district court following the hearing are as follows: “In comparing and contrasting the search warrant affidavit with Detective Shipley’s testimony, the Court makes certain findings: “1. The affidavit submitted to the magistrate contained the following statement: ‘On May 17, 1992, the confidential informant contacted me and stated that Leo Gutierrez was in Hutchinson and the deal was taking place (emphasis added).’ Detective Shipley testified that the informant told him that the cocaine had already been delivered several hours earlier, not currently as implied in the affidavit. “2. The confidential informant told Detective Shipley the cocaine had been delivered to the residence at 604 Westridge, Hutchinson, one of the other residences sought to be searched. This information was intentionally omitted in the affidavit by Detective Shipley. “3. The investigation leading to the application for search warrants included intensive and extensive surveillance on May 14, 15, and 17, 1992 of a number of locations, including this defendant’s residence. Although the affidavit contains some of the results of that surveillance, it omits that surveillance on this defendant’s residence on both days revealed absolutely no activity; nothing was observed at this defendant’s residence either before or after the delivery of cocaine to 604 Westridge. “4. Omitted from the affidavit was information provided to Detective Shipley from the confidential informant that the defendant was out of town for several days. “5. Omitted from the affidavit was that during the phone call to Detective Shipley from the confidential informant, the informant stated that hours earlier the cocaine had been delivered to 604 Westridge and that the informant didn’t know the current location of the drugs. “Based upon these findings, the Court concludes: “1. The affidavit deliberately infers that the cocaine brought to Hutchinson by Leo Gutierrez was delivered to this defendant when information and investigation indicated otherwise. “2. That the omissions listed above, if included in the affidavit, would have nullified any finding of probable cause that this defendant or his residence was involved in the May 17, 1992, transaction with Leo Gutierrez. “3. Neither the recent information from the informant nor the investigation by law enforcement the week preceding and up to the execution of the search warrant created reason to believe this defendant possessed cocaine. “4. Notwithstanding the investigation and surveillance by numerous law enforcement officers, the single base accusation by the confidential informant that this defendant was involved in the large-scale drug traffic scheme remained uncorroborated. “5. Based upon the information available to Detective Shipley and Detective Shipley’s knowledge, ‘no reasonable well-trained officer should have relied upon the warrant’ for this defendant’s residence and Detective Shipley ‘did not manifest objective good faith by relying on the warrant for this defendant’s residence based on an affidavit so lacking in indicia of probative cause as to render official belief in its existence unreasonable.’ (United States v. Leon, supra, syllabus #20).” In the Court of Appeals, the State cited instances of Detective Shipleys hearing testimony where he generally denied either intentionally misleading or withholding information from the issuing judge. The State, however, did not raise specific objections to the district court’s findings of fact or correlate hearing testimony with those findings in an effort to show that they were incorrect or contrary to the testimony. With respect to the hearing testimony, the Court of Appeals simply restated some of the district court’s findings of fact: “The district court found, based in part on Shipley’s testimony at this hearing, that Shipley had included inaccuracies and omitted material facts from the affidavit. . . . “. . . [T]he [district] court found that Shipley intentionally omitted evidence that the drugs had not been delivered to Ratzlaff’s address and that he was out of town during the relevant time periods. In addition, police surveillance indicated that there was absolutely no activity at Ratzlaff’s residence.” Rather than taking issue with these findings, the Court of Appeals indicated that it viewed the facts in a different light and therefore reached a different legal conclusion. In such circumstances, however, the findings of fact of the district court control and should be accepted as the basis upon which the district court’s suppression of the evidence is reviewed. In Palmer v. State, 10 Kan. App. 2d 656, 657-58, 707 P.2d 1091, rev. denied 238 Kan. 878 (1985), it was stated: “Trial court determinations of fact, unappealed from, are final and conclusive. In re Reed, 8 Kan. App. 2d 602, 604, 663 P.2d 675 (1983). Although not strictly required, we have also reviewed the record below and we are additionally persuaded that the questioned fact findings of the trial court are amply supported by substantial competent evidence.” In the present case, too, review of the transcript of Detective Shipley’s hearing testimony confirms that there is substantial competent evidence supporting the district court’s findings of fact. Thus, we apply the reasonableness litmus test to the district court’s findings of fact. The rationale of the Court of Appeals in reversing the district court’s ruling may be summarized as follows: It was reasonable, based on the evidence in Detective Shipley’s affidavit, to conclude that there was probable cause to issue a search warrant. Hence, a reasonable, well-trained officer might have relied on the warrant. We first consider if Detective Shipley’s affidavit was sufficient to establish probable cause to issue die search warrant. Since the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), abandoned the SpinellH Aguilar “two-pronged test” for evaluating the validity of a warrant based on hearsay in favor of a “totality of the circumstances” approach, this court has approved the change. State v. Walter, 234 Kan. 78, 81, 670 P.2d 1354 (1983); see State v. Abu-Isba, 235 Kan. 851, 854, 685 P.2d 856 (1984). “Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint and supporting affidavits should supply the magistrate with sufficient factual information to support an independent judgment that probable cause to arrest exists.” “In determining whether to issue a warrant for arrest or search a magistrate should consider the ‘totality of the circumstances’ presented and make a practical, common-sense decision whether there is a fair probability that a crime has been committed and the defendant committed the crime, or that contraband or evidence of a crime will be found in a particular place.” 235 Kan. 851, Syl. ¶¶ 1, 2. In addition, this court quoted the United States Supreme Court’s opinion in Illinois v. Gates for the direction that the circumstances to be considered include “ ‘the “veracity” and “basis of knowledge” of persons supplying hearsay information.’ ” 235 Kan. at 854 (quoting 462 U.S. at 238). In Illinois v. Gates, the Supreme Court also stated: “[A]fterthe-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ [Citation omitted.]” 462 U.S. at 236. In this case, the two courts which previously reviewed the matter reached opposite conclusions. The district court decided that the informant’s statements of Ratzlaff’s involvement in the criminal activity did not constitute a substantial basis for the judge’s concluding that probable cause existed for issuance of the search warrant of his residence. The Court of Appeals, on the other hand, decided that they did. In State v. Mayberry, 248 Kan. 369, 377-78, 807 P.2d 86 (1991), the court made the following observations on the standard of probable cause: “Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. State t). Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984). See State v. Dunn, 233 Kan. at 414-15; State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972), rev’d in part on other grounds 225 Kan. 38, 587 P.2d 861 (1978). Probable cause has been described as “ ‘[b]its and pieces of information . . . fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been . . . committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.’ ” State v. Marks, 231 Kan. 645, 647, 647 P.2d 1292 (1982) (quoting State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 [1977]). See State v. Williams, 229 Kan. 290, 291, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981).” In the present case, the district court viewed Detective Shipley’s affidavit as containing general information from a confidential informant that Ratzlaff was involved in drug trafficking and that his supplier was Leo Gutierrez, but not containing information which linked Ratzlaff or his residence with Leo Gutierrez’s appearance in Reno County on the date of the alleged transaction. It should also be mentioned that the affidavit contains the following statement: “The informant further states that within the last week, the informant has overheard conversations made by the above listed individuals which would indicate that Leo Guitterez [sic] is to bring a large quantity of cocaine into Reno County for delivery to William R. Meyers and David Ratzlaff by the weekend of May 15 and 16, 17, 1992.” It appears that approximately the first three pages of the affidavit were prepared in advance, and the final page was added sometime before application was made to the judge for the search warrant. The question before the court is whether the information in Detective Shipley’s affidavit would lead a reasonably prudent person to believe that Ratzlaff had committed a crime and that evidence of it would be found in his residence. A review of the facts of several of our recent cases cited by the parties may be helpful for the purpose of establishing a benchmark or, at least, a range for the reasonably prudent person’s belief. In State v. Doile, 244 Kan. 493, 503, 769 P.2d 666 (1989), this court reversed Doile’s conviction of possession of cocaine on the ground that cocaine seized from his residence pursuant to a warrant should have been suppressed. Police officers who had been called to a club for another purpose saw Doile get out of a van in the parking lot, open the door of a nearby car which one of the officers knew belonged to Doile, bend down as if putting something in the car, close the door, and go into the club. One of the officers shined a flashlight into the car and saw on the console “what he believed to be a partially burned hand-rolled marijuana cigarette.” 244 Kan. at 494. When Doile came out of the club, he got in the car and drove out of the parking lot. He was stopped; he did not have a license. The arresting officer testified that “he arrested Doile for possession of marijuana, DUI, and driving with a suspended license.” 244 Kan. at 495. In a search of the car, the marijuana cigarette was seized along with a mirror and a baggie containing green vegetation. At the jail, Doile placed his wallet in a tray for personal effects. A drinking straw was inside it, and Doile attempted to conceal the straw. Based on these events, police sought a warrant to search Doile’s residence: “The affidavit set forth the viewing of the marijuana cigarette in defendant’s automobile in the parking lot, and the events of the stopping of the vehicle and the seizure of the mirror, the partially burned marijuana cigarette, and a baggie of marijuana. It further recited the seizure of the straw in which white powder residue was discovered. The affidavit further stated defendant had been convicted of selling cocaine in 1983, the sales having occurred in 1982. Based on this information, the officers sought a search warrant of defendant’s residence. “In State v. Morgan, 222 Kan. 149, 153, 563 P.2d 1056 (1977), we said: ‘Evidence of a single isolated drug sale may not give probable cause to believe drugs are present at a particular location; however, where an affidavit gives evidence of activity indicating protracted or continuous conduct at a particular location and that evidence provides a reasonable basis to infer drugs are still present, probable cause may exist.' “Defendant had a straw containing traces of a white powder, which he tried to dispose of after arrest. He had a partially burned marijuana cigarette, a mirror, and a baggie of marijuana in his car. Almost five years previously, he had sold cocaine. No facts were alleged indicating any current drug-related activity was occurring at the residence. Do these facts warrant a finding of probable cause to believe defendant’s residence contained marijuana, drug paraphernalia, and cocaine? We believe not.” 244 Kan. at 501. In Mayberry, 248 Kan. 369, the court affirmed jury convictions of first-degree murder and aggravated burglary. Dixie Long, whose body was found in her bed, was killed by a shotgun blast to her head. Telephone wires to the house had been cut, the front door was standing open, there were no other signs of entry into the house, and a window was broken at Long’s beauty salon. Long’s 13-year-old daughter reported that her mother and May-berry, her mother’s boyfriend, recently had been fighting. The daughter believed that Mayberry killed her mother. 248 Kan. at 372. Mayberry argued that the affidavit supporting the application for search warrants for his residence and automobile was insufficient to establish probable cause that he killed Long. Here is the court’s discussion of the information in the affidavit: “The affidavit in the present case supplies information that the victim was found in her bedroom murdered by a shotgun blast. The affiant logically concluded the assailant’s body or clothing might also be bloodied. The affidavit also supplies information that Mayberry had lived with the victim in the past, but had recently been ordered to move. Additionally, the affidavit states Mayberry and Long had been involved in a physical altercation the day preceding the murder. Finally, the affidavit informs of cut telephone wires outside the victim’s home and suggests that the assailant may have broken into Long’s beauty salon to obtain a key to the residence. “The circumstantial evidence provided more than mere suspicion of May-berry’s guilt. Personal observation of the crime scene logically led to the conclusion that the suspect’s clothing would be bloodied. Information that Mayberry had recently fought with the victim and struck her pointed the finger of suspicion toward Mayberry. The break-in at Long’s business, along with information that a key to her residence was kept there, raised an inference the assailant had knowledge of the whereabouts of the key. The cumulative circumstantial evidence, therefore, was sufficient for the finding of probable cause. Thus, the box of shotgun shells discovered in Mayberry’s bedroom and the needlenose pliers found in a toolbox in his automobile were admissible evidence in his trial.” 248 Kan. at 378. In State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992), the defendant’s automobile was searched pursuant to a warrant. Grissom argued “that the affidavit in support of the search warrant did not establish probable cause to search [his] car for evidence relating to Joan Butler’s disappearance.” 251 Kan. at 909. After setting out the standard for review and defining probable cause, the court stated: “The State and Grissom summarize the information contained in the affidavit as follows: ‘Joan Butler was reported missing on June 19, 1989! Six days later, defendant was observed in possession of her vehicle in Lawrence, Kansas, where he was seen unlocking the car trunk. He then fled from the police, [and] returned to Lenexa, where he moved all of his personal belongings from his apartment to the Toyota. At the apartment complex in Grandview the apartment manager observed a light-skinned black male matching the description of Richard Grissom, whom she knew was wanted in Kansas for an abduction. A brown Toyota Corolla was parked in the complex lot and it did not belong there.’ “The magistrate judge did not err in issuing the search warrant. There was a ‘fair probability’ evidence would be found in Grissom’s car relating to the disappearance of Joan Butler, particularly since Grissom recently had moved many of his personal belongings to his car.” 251 Kan. at 910. None of these cases, Doile, Mayberry, or Grissom, involves affidavit information supplied by a confidential informant. The additional factors which need to be considered when a confidential informant is involved were discussed in State v. Probst, 247 Kan. 196, 795 P.2d 393 (1990). There, the informant’s name was Shanley, and he cooperated with the Drug Enforcement Administration (DEA) “in the hope of getting cooperation from the DEA in his pending criminal proceedings.” 247 Kan. at 198. He made a controlled buy of methamphetamine from Warren Cross in September 1988. In May 1989, search warrants for Cross’ residence, a storage building at his business, and Probst’s residence were issued. Facts of the controlled buy were set out in detail in the affidavit, but “[t]he only information in the affidavit that related to the defendant Probst was succinctly set forth by the trial judge in his memorandum opinion. The court stated: ‘The facts provided by the affidavit which relate directly to this defendant are limited. Such information includes 1.) defendant was convicted for possessing methamphetamine in her residence on February 17, 1988, fifteen months prior to the issuance of this search warrant; 2.) that in February, 1988, this defendant was the girlfriend and employee of Warren Cross; 3.) that'during the controlled buy on September 7, 1988, Warren Cross removed the methamphetamine from the trunk of his vehicle when it was parked on the street in front of the defendant’s residence; 4.) an unsupported statement by the confidential informant that the defendant was involved in the sale and distribution of methamphetamine.’ ” 247 Kan. at 199. Pointing out weaknesses in the affidavit, this court stated: “Nothingwas included in the affidavit about Shanley’s drug activities, his arrest in Lyon County, his ‘cooperating individual agreement’ with the DEA, the lack of any information about his reliability, or the fact he had been convicted in federal court in April of 1989, prior to the execution of the affidavit by Up-church.” 247 Kan. at 200. The court’s discussion continued: “[W]ifh the exception of Probst’s prior conviction, there is no factual information in the affidavit to support that the informant, Upchurch, or any other officer observed Probst at her residence or elsewhere with drugs or observed any activity indicating drug trafficking was occurring at her residence. The fact that Cross and Shanley obtained drugs from the trunk of a car parked on the city streets, or in an alley, neair the home of Probst does not indicate drug activity by Probst. It is clear that the defendant was nowhere near her home at the time and the automobile from which the drugs were obtained did not belong to defendant and was not on her property. “While the State relies upon Shanley’s statement to [DEA agent] Upchurch that the defendant was involved in the sale and distribution of methamphetamine, Shanley testified that he based it solely on a newspaper account of the conviction in February of 1988. The conclusory statement of Shanley, absent any showing of reliability or knowledge by Shanley, cannot be considered as a basis for probable cause without more facts than were contained in the affidavit here.” 247 Kan. at 201. With respect to the State’s specific reliance on Shanley’s statement that Probst was involved in drug trafficking and Probst’s conviction to show probable cause, the court stated: “Here, Agent Upchurch had no prior experience with or knowledge of Shanley. All that was known was that he was the subject of federal prosecution as a drug violator who wanted to make a deal which might help him in that prosecution. He had not formerly furnished information and, by the time the affidavit was prepared in this case, Shanley had been convicted in federal court. Any reliance upon the statements of Shanley is questionable at best. . . . “While the affidavit here dwells at length upon the alleged continuous drug activity of Cross, the single conviction some fifteen months earlier of this defendant, standing alone, does not constitute grounds to believe the defendant was involved in a protracted or continuous course of drug trafficking. The fifteen-month-old conviction, without more, would undoubtedly be too stale to lead a reasonable person to believe that drugs might still be found at the defendant’s home.” 247 Kan. at 202-03. In the present case, there was more information about the confidential informant than there was in Probst. Here, the affiant stated that he had received reliable information from the informant on two previous occasions within two years about people who were involved in drug transactions. In Probst, the affiant had no prior experience with the informant. As in Probst, however, in the present case the affidavit lacked any information about the informant’s criminal activities and his motive for cooperating with law enforcement officials. With regard to the defendant’s involvement in drug transactions, the information in Probst included her previous conviction of possessing mefhamphetamine as well as the informant’s statement that she was involved in the sale and distribution of methamphetamine. Here, there was only the statement of the informant that Ratzlaff was involved in drug trafficking. In Probst, the court concluded that the affidavit lacked probable cause for the issuance of the search warrant for Probst’s home. 247 Kan. at 203. Stated otherwise, the court concluded that the affidavit lacked information sufficient to lead a reasonably prudent person to believe that Probst had committed a crime and that evidence of it would be found in her residence. Comparison of the affidavits in Probst and the present case reveals only subtle differences in the quality and quantity of their information. In the present case, the affidavit lacked information sufficient to lead a reasonably prudent person to believe that Ratzlaff had committed a crime and that evidence of it would be found in his residence. In the present case more than in Probst, emphasis has been placed by the parties on the question whether the information was sufficient to link Ratzlaff’s residence with the alleged drug trafficking. In this regard, the State relies on State v. Bartlett, 14 Kan. App. 2d 237, 242, 787 P.2d 1211, rev. denied 246 Kan. 769 (1990), for the rule that “normal inferences as to where a person would be likely to keep the items sought” may be indulged. Following the rationale of Bartlett, one might conclude that a rea sonably prudent person would believe that evidence of the crime would be found in Ratzlaff’s residence if it concluded that the same reasonably prudent person would believe he had committed a crime. It is this second proposition that lacks support in the affidavit. In addition, the affidavit must establish a nexus between the alleged criminal activity and the place to be searched. In summary, the affidavit contains the following information: (a) The confidential informant told police that Ratzlaff and Meyers were the main dealers in a large-scale marijuana and cocaine distribution ring in Hutchinson and that Meyers sells the marijuana to James Roets; (b) the informant gave the police Ratzlaff’s correct residential address; (c) the informant named several people who he said were cocaine customers of Meyers and Ratzlaff; (d) the informant overheard conversations during the week before May 17, 1992, indicating that a large quantity of cocaine would be delivered by Leo Gutierrez to Meyers and Ratzlaff “by the weekend of May 15 and 16, 17, 1992”; (e) on May 17, the informant told police that Gutierrez was in Hutchinson; (f) police observed Meyers, Roets, and Gutierrez in various vehicles and at various locations which the informant had linked to Meyers; and (g) Gutierrez’s vehicle was stopped with a large quantity of cash in it. Hence, a confidential informant said that Ratzlaff was a drug trafficker who, along with others, would receive delivery of drugs from Gutierrez on or about May 17. Police surveillance established that Gutierrez was in town on May 17, meeting with the other drug dealers named by the informant but not with Ratzlaff. The State contends that because an independent law enforcement investigation corroborated the informant’s information about the drug trafficking operation, his information about Ratzlaff’s involvement was verified as well. We disagree. In Gates, the United States Supreme Court referred to Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959), as the classic case of an informant’s statements being reasonably corroborated to support a warrant: “There, an informant named Hereford reported that Draper would arrive in Denver on a train from Chicago on one of two days, and that he would be carrying a quantity of heroin. The informant also supplied a fairly detailed physical description of Draper, and predicted that he would be wearing a light colored raincoat, brown slacks, and black shoes, and would be walking ‘real fast.’ Id., at 309. Hereford gave no indication of the basis for his information. “On one of the stated dates police officers observed a man matching this description exit a train arriving from Chicago; his attire and luggage matched Hereford’s report and he was walking rapidly. We explained in Draper that, by this point in his investigation, the arresting officer ‘had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford’s information being thus personally verified, [the officer] had “reasonable grounds” to believe that the remaining unverified bit of Hereford’s information — that Draper would have the heroin with him — was likewise true,’ id., at 313.” 462 U.S. at. 242-43. In the present case, with the exception of Ratzlaff’s address, the independent law enforcement investigation failed to verify the informant’s information about Ratzlaff’s involvement as a principal player in a drug trafficking ring or drug-related activity at his residence. To the contrary, the surveillance of defendant’s residence indicated no activity at all, and law enforcement officers were aware that Ratzlaff was not in town during this period of time. There are no facts establishing probable cause to believe Ratzlaff committed a crime or that illicit drugs could be found at his residence. At best, the affidavit gives rise to a suspicion that Ratzlaff was involved in illicit drug activity and that evidence of such activity could be found in his residence. Although the evidence need not prove guilt beyond a reasonable doubt, it must constitute more than mere suspicion. State v. Mayberry, 248 Kan. at 376. We agree with the district court that the affidavit failed to establish probable cause for the issuance of the warrant to search Ratzlaff’s residence. Having concluded that no probable cause existed for the issuance of the search warrant, does the good faith exception to the exclusionary rule apply? In Doile, the court gave the following account of the “good faith exception” to the exclusionary rule: “In Leon, the Court traces the history and purpose of the exclusionary rule. Highly summarized, the exclusion of evidence which the police have unlawfully obtained is a penalty aimed at the police and is imposed to deter future wrongful conduct. A strong theme running throughout Leon is that evidence seized under a search warrant subsequently held to be invalid is not to be suppressed absent some chicanery or wrongdoing by the police. Leon refers to this as the good faith exception to the exclusionary rule. This is somewhat of a misnomer, as the opinion makes it clear that such evidence is not to be excluded unless bad faith is shown. As Leon states: “We . . . conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.’ 468 U.S. at 918. Hence, Leon states that the evidence so seized is not to be excluded unless it is shown: (1) that the judge or magistrate who issued the warrant was deliberately misled by false information; (2) that the judge or magistrate wholly abandoned his or her neutral and detached role; (3) that the warrant was so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; or (4) that there was so little indicia of probable cause contained in the warrant that it was entirely unreasonable for an officer to believe the warrant valid. United States v. Leon, 468 U.S. at 923.” 244 Kan. at 501-02. In Probst, the court added the following quotation from Leon for providing guidance for determining whether the good faith exception applies: “ “We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. “Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.” Illinois v. Gates, 462 U.S., at 261, n.15 (White, J., concurring in judgment); see Dunaway v. New York, 442 U.S., at 221 (Stevens, J., concurring). The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits. United States v. Peltier, 422 U.S. 531, 542 (1975).’ 468 U.S. at 919 n.20. ‘[W]e also eschew inquiries into the subjective beliefs of law enforcement officers who seize evidence pursuant to a subsequently invalidated warrant. . . . Accordingly, our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization. In making this determination, all of the circumstances — including whether the warrant application had previously been rejected by a different magistrate — may be considered.’ 468 U.S. at 922 n.23.” 247 Kan. at 204. In the present case, the district court ended the memorandum opinion it issued on December 23 as follows: “Having concluded that no probable cause existed for the issuance of the search warrant of [Ratzlaff’s] residence, the issue of whether the items seized at the defendant’s residence should be suppressed must be determined through consideration of United States v. Leon and Franks v. Delaware, (citations omitted). The evidentiary hearing upon that issue is hereby scheduled for January 29, 1993 at 9:00 a.m.” Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), established that a criminal defendant could challenge the veracity of the affidavit used by police to procure a search warrant. “In State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982), this court, relying upon Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), reviewed the general rules applying to a false statement in an affidavit for a search warrant and extended the rules to a deliberate omission. This court stated that a person attacking the affidavit must show the deliberate omission of material information. 232 Kan. at 319.” Grissom, 251 Kan. at 907. “Material” for this purpose was determined in State v. Lockett, 232 Kan. 317, 320, 654 P.2d 433 (1982), as follows: “[I]f the issuing judge had the omitted information before him when he examined the affidavit, would a finding of probable cause to issue a search warrant still have been proper?” In Probst, we said: “While Leon only refers to the magistrate being misled ‘by false information,’ we have held that ‘a deliberate omission is often equal to an actual misstatement’ in finding that the failure to include material information in an affidavit for a search warrant may invalidate the warrant. State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982).” 247 Kan. at 206-07. Leon “requires officers to have a reasonable knowledge of what the law prohibits. [Citation omitted.]” 468 U.S. at 919 n.20. The Court in Leon further stated: “As we observed in Michigan v. Tucker, 417 U.S. 433, 447 (1974), and reiterated in United States v. Peltier, 422 U.S., at 539: ‘The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.’ The Peltier Court continued, id., at 542: ‘If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ ” 468 U.S. at 919. The Leon Court then articulated the four situations, previously quoted, in which evidence should be suppressed. The question here is whether Detective Shipley, as a well-trained police officer, reasonably should have known that his affidavit failed to establish probable cause. The district court made findings of fact which are to be accepted by this court. Among those findings are that Detective Shipley intentionally omitted from the affidavit the following information: First, Detective Shipley had been told by the informant that the cocaine delivery had been made to one of Meyers’ addresses. Second, Detective Shipley had been told by the informant that Ratzlaff was out of town for several days. Third, “intensive and extensive” police surveillance had been conducted of Ratzlaff’s residence at the time when the cocaine delivery was to be made which “revealed absolutely no activity.” In addition to being deliberate, these omissions seem to be material under the Lockett definition. That is, if the issuing judge had had the omitted information before her when examining the affidavit, a finding of probable cause to issue a search warrant would not have been proper. 232 Kan. at 320. Also among the district court’s findings is that Detective Shipley misstated that the informant said the deal was taking place rather than that the cocaine had been delivered several hours earlier. It appears that the district court believed the sense of urgency and pressure to act quickly felt by the issuing judge would have been heightened by the affiant’s use of present tense. Detective Shipley testified that the informant advised him the drugs had already been delivered to Roets’ residence, but “the collection of the money had not occurred yet.” Thus, it appears that the district court also may have believed the use of present tense misled the issuing judge into believing Ratzlaff’s residence could not be ruled out as a possible delivery site. This court applies Leon so that evidence is excluded only in instances where it is shown that the official who issued the warrant was deliberately misled by false information or wholly abandoned his or her neutral and detached role, that the warrant was fatally lacking in specificity, or that there was so little indicia of probable cause contained in the warrant that it was entirely unreasonable for an officer to believe the warrant valid. See 244 Kan. at 502. In this case, the district court concluded that Detective Shipley “ ‘did not manifest objective good faith by relying on the warrant for this defendant’s residence based on an affidavit so lacking in indicia of probative cause as to render official belief in its existence unreasonable’ (United States v. Leon, supra, syllabus #20).” Although the district court could also have concluded that Judge Macke Dick was deliberately misled by material misstatements and omissions, it did not, stating: “This Court believes Detective Shipley did not approach the issuing magistrate with ill-intent and total deception. The lack of good faith is found only in Detective Shipley’s desire to unreasonably extend the facts to this defendant’s residence and to draw this defendant within the realm of probable cause by inference and innuendo when the facts and information dictated the contrary.” We agree with the conclusion reached by the district court that the search of defendant’s residence does not fall within the good faith exception as expressed in Leon, and thus the evidence obtained as a result of the search must be suppressed. The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Valentine, J.: It is a general principal of law, that whenever a judicial officer acts within the scope of his jurisdiction, he is not liable, however erroneous his acts may be : 1 Chitty Pl., 78, and the numerous cases there cited; id., 182 to 184; Sherman and Redfield on Negligence, (185 Ed.,) 185, et seqana cases there cited. Any other rule would be attended with the most disastrous consequences. “Whenever we subject the established courts of the land to the degradation of private prosecution, we subdue their independence, and destroy their authority. Instead of being venerable before the public, they become contemptible ; and we thereby embolden the licentious to trample upon everything sacred in society, and to overturn those institutions which have hitherto beén deemed the best guardians of civil liberty.” — Kent, Ch. J., in Gates v. Lansing, 5 Johns. 298. And who would accept a judicial office, were he liable to be arraigned for every error of judgment, and his property wasted in litigation, with every man whom his decisions might offend ? II. At the time Clark was tried on the information ■ filed against him, justices of the peace had exclusive original jurisdiction in all cases of misdemeanor; (Laws of 1867, p. 81;) and the offense of willful misconduct in office was at that time a misdemeanor, and only a misdemeanor; (Comp. Laws, pp. 326, 327, §§197, 202; Laws of 1867, p. 219, §4; Comp. Laws, 345, §302;) therefore the said Justice, Spicer, had jurisdiction of the offense with which the said Clark was charged. But it may be claimed that the said information did not state facts sufficient to constitute the offense of willful misconduct in office. This may be true, and still it does not necessarily follow that Spicer is liable. It will be admitted that the information was sufficient to show that said offense was intended to be charged; and it will also be admitted that there were facts stated sufficient to require the exercise of judgment, and of judicial discrimination, to determine whether such offense was charged or not; and this is sufficient. Spicer acted judicially, and upon a matter within the scope of his jurisdiction, when he determined that the said information did state facts sufficient to constitute the offense of willful misconduct in office; and although he may possibly have erred in his decision, still he is not liable in damages by reason of such error. It is not claimed that he acted with any malicious or other improper motives. It is claimed that chapter 132 of the laws of 1867 does not apply to school district officers; but it makes no difference whether it does or not, for it will be conceded that sections 197 and 202 of the crimes and punishment act, Comp. L. 1862, pp. 326, 327 (§§ 207, 212, Ch. 31, Gen. Stat. 1868,) do apply. III. It is also claimed that said Spicer erred in trying the said Clark with a jury of six men. This depends upon whether section two of chapter 49 of the laws of 1867, (page 81,) is, with respect to this case, constitutional or not. If said section is unconstitution- ^ ^he justice erred. But we shall not now decide this question, for the jurisdiction of the justice did not depend upon the constitutionality of that section, lie had complete jurisdiction of both the defendant and the subject-matter of the action, whether that section was constitutional or not; and in determining the question whether the said Clark should be tried by a jury of six men, or by a jury of twelve men, he acted judicially, and therefore whether he erred not, he is not liable. The judgment of the court below must be affirmed. All the Justices concurring.	[ -80, 104, -40, -100, 42, 36, 18, 104, 10, -93, 103, -45, -55, 67, 4, 127, -5, 43, 85, 27, -59, -78, 6, -125, 50, -45, -37, -43, 53, 109, -9, -3, 77, 48, 74, 117, 38, 106, -63, -42, -62, 3, 8, -6, -38, 84, 36, 27, 16, 79, 97, -66, -29, 46, 21, -61, -23, 40, -39, -80, 81, -111, -98, -123, 126, 0, 51, 35, -97, 7, 108, 42, -120, 17, 1, -8, 123, -122, 3, -44, 79, -87, 8, -30, 99, 81, -51, 111, -80, -119, 45, 107, 61, -89, 20, 73, 43, 4, -106, -99, 29, 48, 39, -56, -13, -35, 29, 40, 9, 10, -106, -73, -114, 120, -74, 114, -29, -29, 16, 113, -57, -18, 85, 69, 16, -103, -97, -44 ]
The opinion of the court was delivered by Davis, J.: This appeal comes before us on the State’s petition for review of the Court of Appeals’ decision in 19 Kan. App. 2d 56, 863 P.2d 372 (1993). Brian Blockman was convicted of robbery following a jury trial. The Court of Appeals reversed his conviction, concluding that the trial court’s refusal to grant the defendant’s request for an instruction on theft by threat required reversal. Because we hold that theft by threat is not a lesser in- eluded offense of robbery, we reverse the decision of the Court of Appeals and affirm the trial court. The defendant entered a convenience store in Lawrence and handed the clerk a note that read, “Give me the money.” After giving the clerk the note, the defendant orally repeated the demand for money. Although he made no explicit threat of physical harm, the defendant kept his right hand in his pocket while demanding money. The clerk gave the defendant the money in the register. The defendant then fled. At trial, the clerk testified that store policy was to comply when “somebody comes in and is robbing the store or demanding money.” The clerk further testified that had he been able to determine that the defendant was not armed, he would not have given the defendant any money. The defendant admitted that he gave the note to the clerk. He denied that he had threatened the clerk. The defendant testified that he kept his hand in his pocket because he was nervous. Trial Court The trial court instructed the jury on theft (K.S.A. 21-3701[a]), but denied the defendant’s request for an instruction on theft by threat (K.S.A. 21-3701[c]). In denying the requested instruction, the court said: “Now as far as the law goes itself on the instruction on theft, if the defendant takes property of the person in the presence of a victim by threat, it is robbery and not theft by threat. If we leave out the threat part, then it can be in this case, under the circumstances, theft by threat [sic] or theft by unauthorized control, which has been held in Kansas to be a lesser included, a crime of a lesser degree than robbery. Otherwise, the jury, as far as I am concerned, would be given incorrect law and would be totally confused with having two elements being the same. In other words, you take property from this man by threat and you can decide whether or not it’s a robbery or a theft. It’s confusing, utterly confusing, and I think totally wrong. So I will give the instructions on theft as indicated.” The trial court’s statement underscores the real difficulty of classifying theft by threat as a lesser included offense of robbery. Essentially, the court would be giving the jury instructions on two offenses containing common elements. As the trial court notes, if the property is taken from the clerk by threat the jury would be required to decide, without additional guidance, whether the taking was robbery or theft by threat. Such instructions would be “utterly confusing” to the juiy. Court of Appeals The basis of the Court of Appeals’ decision is that theft' by threat is a lesser degree of the same crime which embraces robbery. In reaching this conclusion the Court of Appeals relies upon State v. Long, 234 Kan. 580, 675 P.2d 832 (1984). The Court of Appeals acknowledges that “[n]one of the . . . opinions [relied upon by defendant] address the issue whether a court must instruct on theft by threat under 21-3701(c) in a robbeiy case.” 19 Kan. App. 2d at 58. However, the Court of Appeals applies the following Long rationale in support of its conclusion that theft by threat is a lesser degree of the same crime which embraces robbery: “In 52A C.J.S., Larceny § 1(2), it is stated: ‘Robbeiy and larceny are distinct crimes, although in a generic sense they are but different degrees of the same crime. The word “robbeiy” describes a form of larceny, since robbery is merely an aggravated form of larceny or theft, the aggravation consisting in the use of actual or constructive violence against the person of the victim or the use of force or fear to accomplish the taking of property from the possessor. Thus, robbery may be briefly defined as a forcible larceny from the person. Larceny is an offense against the possession; robbeiy against the person. There may be larceny without robbery, but there can be no robbery without larceny, since robbery includes larceny; if the crime of robbeiy has been made out, no additional proof is required to establish the crime of larceny.’ (Emphasis added.) “Based upon the foregoing analysis, we hold for purposes of K.S.A. 21-3107(2)(a) theft is a ‘lesser degree of the same crime’ which embraces robbeiy. The unlawful taking of the property of another is the gravamen of both offenses. 234 Kan. at 591-92.” 19 Kan. App. 2d at 58. The Court of Appeals then concludes: “Just as with theft under 21-3701(a), the gravamen of theft by threat is the unlawful taking of the property of another. For purposes of 21-3107(2)(a), theft by threat is an included crime of robbery as a lesser degree of the same crime.’ ” 19 Kan. App. 2d at 58. Common-law larceny as codified in Kansas in K.S.A. 21-3701(a), “[obtaining . . . unauthorized control over property,” is a lesser degree of die crime which embraces robbery as codified in K.S.A. 21-3426. Based upon a long line of cases set forth in the Long opinion, we so held. This remains the law in Kansas. As we concluded in Long, larceny is a crime against property. Robbery, however, is not only a crime against property but is also a crime against the person. The gravamen of both offenses is the unlawful taking of die property. There may be larceny without robbery, but there can be no robbery without larceny. As the Court of Appeals acknowledged, we have never held that theft by threat, codified in K.S.A. 21-3701(c), is a lesser degree of robbery. There are some basic differences between larceny, K.S.A. 21-3701(a), and theft by threat, K.S.A. 21-3701(c). Unlike larceny, theft by threat is not only a crime against possession but is also a crime against the person. Moreover, unlike larceny there can be a robbery without a theft by threat. Long supports its conclusion that larceny is a lesser included offense of robbery with its quote from Corpus Juris Secundum focusing upon the nature of die common-law crime of larceny. This conclusion is both reasonable and sound. The same reasoning fails, however, when the nature of the common-law crime of theft by threat is considered. At common law, the crime of theft by threat was extortion. In 1969, the Kansas Legislature adopted the present Kansas Criminal Code and in doing so merged several traditional theft offenses into a single crime. Since the effective date of the theft statute, K.S.A. 21-3701, “[t]heft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner s property.” This general statement is followed by subsection (a), which prohibits conduct formerly identified as larceny (obtaining unauthorized control) and embezzlement (exerting unauthorized control); subsection (b), theft by deception, which includes the preexisting crimes of false pretenses and larceny by trick; subsection (c), which proscribes extortion; and subsection (d), which defines the former crime of receiving stolen property. All the above crimes are within the statutory definition of theft. As Professor Paul E. Wilson noted in his article, Thou Shall Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385, 396 (1972): “It has been observed that the intent of the legislature in enacting section 21-3701 was to absorb pre-existing crimes long recognized by Anglo-American law, not to create a new offense. The certainty of a statute that defines an offense known to the common law may be enhanced by the characteristics of the common law offense that it embraces. Patently, the intent of the drafters was to avoid the technical limitations and criteria of the pre-existing theft crimes. Thus the caption and the asportation, the distinctions between trespassory taking of possession and conversion of property already in possession, and the differentiation between fraudulent obtaining of possession and a like obtaining of title are gone. Still the objectives of the law of theft remain as before and the law ought not to be oblivious to its history.” When the history of theft by threat (extortion) is considered, one can readily see that extortion and larceny are separate, distinct crimes. Theft by threat, now K.S.A. 21-3701(c), incorporates what was codified prior to 1970 as third-degree robbery: “If any person shall, either verbally or by a written or printed communication, accuse or threaten to accuse another of any felony or other crime, or threaten to do any injury to the person or property of anyone, with a view or intent to extort or gain any money or property of any description, belonging to another, and shall, by intimidating him with said accusation or threat, extort or gain from him any money or property, every such offender shall be deemed guilty of robbery in the third degree.” K.S.A. 21-529 (Corrick) (repealed L. 1969 ch. 180 § 21-4701). As Professor Wilson observed, “[tjheft of property by threat is designed to cover the kinds of extortionate conduct that should be reached by the criminal law.” 20 Kan. L. Rev. at 407. Unlike the common-law crime of larceny (now defined in K.S.A. 21-3701[a]) which is exclusively a crime against possession, extortion (codified at K.S.A. 21-3701[c]) is, like robbery, a crime against possession and also a crime against the person. In this respect, extortion and robbeiy may share a common element of threat. At the same time, however, extortion is much broader in its application than is robbery. While the new crime of blackmail (K.S.A. 21-3428) encompasses much of what was the crime of extortion, aspects of the common-law crime of extortion remain under K.S.A. 21-3701(c). Extortion, excluding blackmail, now in volves a threat to do any injury to the person or property of anyone, with a view to extort or gain any money or anything of value. See K.S.A. 21-529 (Corrick). Compare K.S.A. 21-3428 (defining blackmail). The means of obtaining property under 21-3701(c) is through extortionate conduct. “Extort” is “to obtain money or other valuable thing either by compulsion, by actual force, or by the force of motives applied to the will, and often more overpowering and irresistible than physical force.” Black’s Law Dictionary 585 (6th ed. 1990). Similarly, “extortion” is “[t]he obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Black’s Law Dictionary 585. As noted by the Court of Appeals in its decision, we have in the past had the opportunity to comment upon the crime of theft by threat. In State v. Russell, 217 Kan. 481, 536 P.2d 1392 (1975), the defendant took his son and a young, 6'4", 225-pound friend along to collect a debt. The friend, unknown to the victim, lured the victim into a tool shed under the pretense of needing gasoline for his car. Once the victim was in the tool shed, the defendant and his son entered and stood with the larger friend between the victim and the only exit. The defendant demanded payment and said he would get his money “one way or the other.” 217 Kan. at 481-82. The defendant was charged and convicted of theft by threat. On appeal, the defendant argued that the evidence supported only a conviction for robbery, not theft by threat. We concluded that the evidence would have justified a robbery conviction had the defendant been so charged. “The evidence being sufficient to support a conviction for die graver offense, it is certainly sufficient to support a conviction for theft.” 217 Kan. at 484 (emphasis added). The actions of the defendant in Russell fit the definition of extortion — “[t]he obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Black’s Law Dictionary 585. The defendant claimed that the money he obtained was owed to him by the victim. At the same time, as Russell noted, the defendant’s actions fit the definition of robbery in that the taking was by threat of bodily harm to the victim. Under these circumstances the prosecutor has a choice of which charge to file since, as in this case, both offenses share a common element of threat of physical harm. Russell uses the term “graver offense” when referring to robbery. There can be no doubt that robbery, because it involves a forcible taking from the person or a threat of bodily harm to the person, is treated under our criminal code as a graver offense than extortion. This is so even though extortion may also involve a threat of harm to either the person or the property of another. The fact that robbery is treated as a graver offense does not support the conclusion that robbery contains within it the offense of theft by threat or that extortion is an included offense of robbery. In defining the crimes of robbery and extortion, the legislature did not intend that consideration be given to the degree of the threat in distinguishing between the two crimes. In other words, the question is not whether the threat was major or minor with the former being robbery and the latter being theft by threat. Instead, the legislature defined the two crimes in their historical context, giving broad meaning to the term threat as it relates to extortion and a narrow definition to the term threat as it relates to robbery. K.S.A. 1993 Supp. 21-3110 sets forth the general definition applicable to the criminal code except when a particular context clearly requires a different meaning. Section 21-3110(24) states: “ ‘Threat’ means a communicated intent to inflict physical or other harm on any person or on property.” This definition gives meaning to the codification of extortion or theft by threat in K.S.A. 21-3701(c). In the case of State v. Lashley, 233 Kan. 620, 633, 664 P.2d 1358 (1983), we acknowledged the broad language used in the above definition as it relates to theft by threat: “Theft, obtaining by threat control over property (K.S.A. 21-3701[c]), is taking property by putting the owner in fear of personal injury or injury to his property through fear induced by threats. The taking is without the voluntary consent of the owner and the owner allows the property to be taken as a result of actual fear induced by threats calculated to excite a reasonable apprehension of harm.” (Emphasis added.) 233 Kan. at 633. In Lashley, which the Court of Appeals relied upon to establish that theft by threat is a lesser offense of robbery, the question did not involve lesser included offenses, but rather dealt with the question of the forms of theft that would support a felony-murder conviction. Recognizing that extortion in the abstract was a crime inherently dangerous to human life, Lashley concluded: “The offense of theft set forth in the court’s instruction is a felony when viewed in the abstract inherently dangerous to human life and is a proper felony to sustain a conviction for murder in the first degree under the felony murder rule. However, we wish to emphasize that theft may be the underlying felony in a charge of felony murder only in cases where the discovery of the thief during the course of the theft results in the death of a person.” 233 Kan. at 634. Lashley simply does not address the question we now consider. Lashley does, however, support our conclusion that we must not overlook the historical context of the crimes involved. Under our criminal code, robbery takes very little from the definition of threat contained in K.S.A. 1993 Supp. 21-3110(24) because robbery, in part, requires a “threat of bodily harm.” “Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. Assuming that the prosecutor has made the decision to charge robbery and the evidence raises the question of whether there has been the taking of property from the person or presence of another by threat of bodily harm to any person, the jury is not to consider the degree of the threat but rather whether the threat of bodily harm is established by the evidence. If the jury concludes beyond a reasonable doubt that a threat of bodily harm is established the defendant may be found .guilty of robbery. If, however, the evidence fails to establish a threat of bodily harm but establishes the taking of the property, the offense of larceny (K.S.A. 21-3701[a]) has been established. The definition of threat in K.S.A. 1993 Supp. 21-3110(24) uses the phrase “to inflict physical or other harm.” Physical is defined as “[Relating or pertaining to the body, as distinguished from the mind or soul or the emotions.” Black’s Law Dictionary 1147. If the charge of robbery is based upon the threat of bodily (physical) harm and there is no evidence of such a threat, the defendant must be found not guilty. In this case, the clerk testified he would not have parted with the money had he been able to determine that the defendant did not have a weapon. According to the clerk, it was the threat of bodily (physical) harm that caused him to part with the money. The defendant denied that he threatened the clerk. Therefore, the definitive issue for jury resolution was whether there was a threat of bodily harm. There simply was no evidence of any other harm threatened. Under the circumstances, the duty to instruct even as to lesser offenses arises only “to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.” K.S.A. 21-3107(3). There simply was no evidence presented in this case upon which the defendant could be found guilty of the offense of theft by threat. He was either guilty of robbery, or the lesser included offense of larceny (K.S.A. 21-3701[a]), or not guilty. Theft by threat, or extortion, is not a lesser included offense of robbery under the provisions of K.S.A. 21-3107(2)(a) or (d). Under K.S.A. 21-3107(2)(d), the crime of extortion is not necessarily proved if the crime of robbery is proved. In the classical sense, extortion involves the payment of money in the form of protection money under the threat of damage to property. In such a case the threat of harm is to property, broad enough to cover extortion but certainly not contained within the definition of robbery which requires a threat of bodily harm. While the two crimes share the common element of threat of bodily harm in some but not in all instances, the common-law crime of extortion is different in nature than the common-law crime of robbery as that crime is now defined in K.S.A. 21-3426. Finally, the Court of Appeals relies upon State v. Getz, 250 Kan. 560, 830 P.2d 5 (1992). Getz held that theft of lost or mislaid property was a lesser degree of theft notwithstanding the lack of identity of elements because both are forms of larceny. Getz had been convicted of felony theft and argued on appeal that the trial court should have instructed on theft of lost or mislaid property, K.S.A. 21-3703, as a generically included offense. The trial court refused to give the instruction because theft of lost or mislaid properly contained an element not found in theft, namely that the property be lost or mislaid. We concluded: “Theft of lost or mislaid property (K.S.A. 21-3703) and theft (K.S.A. 21-3701) are both forms of the same crime of larceny. The trial court erred in refusing to give a jury instruction on theft of lost or mislaid property.” 250 Kan. at 566. From this conclusion, the Court of Appeals determined that the trial court in this case refused to instruct on theft by threat because it construed K.S.A. 21-3701(c) as inapplicable to a theft from the presence of the victim. However, “[t]he legislature . . . did not so limit the scope of 21-3701(c).” 19 Kan. App. 2d at 59. Therefore, according to the Court of Appeals, because theft by threat may involve a theft from the presence of the person, it remains a lesser included offense of robbery. This reasoning ignores the basic nature of the two offenses. The common element in some instances, as in this case, is the threat of physical harm in the presence of the clerk. We say “some instances” because in extortion the threat may involve a threat to property, which is not robbery. As we noted above, the legislature did not intend to make the distinction between the two offenses the degree of threat. In this case, the prosecutor chose to charge robbery, and there was some evidence that the clerk parted with the money because he thought the defendant had a weapon. It was for the jury to resolve the issue of whether the victim parted with the money because of a threat of bodily harm. Based upon the definition of robbery, the resolution of that issue required the jury to find the defendant guilty if the evidence established beyond a reasonable doubt that the defendant wrongfully obtained the money by threat of bodily harm. If the juiy did not find threat of bodily harm, the defendant was not guilty of robbery but perhaps could have been found guilty of larceny. K.S.A. 21-3701(a). Finally, Getz involved two forms of theft that involved crimes against possession. Unlike those two crimes, theft by threat and robbery are crimes against possession and in some instances, involve the common element of a threat to the person. Theft by threat may also involve a threat against property. As noted by Professor Wilson in a historical context, “[t]heft of property by threat is designed to cover the kinds of extortionate conduct that should be reached by the criminal law.” 20 Kan. L. Rev. at 407. It may also be added that robbery is precisely defined as covering “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” (Emphasis added.) K.S.A. 21-3426. The defendant requests in his supplemental brief that in the event we reverse the Court of Appeals, we remand for a determination of his contention that the trial court erroneously defined “threat” in its jury instructions. This issue is not properly before us. The defendant did not cross-petition for review. Therefore, the only issues properly before this court are those in the petition for review or cross-petition for review. Supreme Court Rule 8.03(g)(1) (1993 Kan. Ct. R. Annot. 44). Even if this issue were properly before us, the record presently is not adequate to permit review. The Court of Appeals did not address the issue because the defendant did not include the jury instructions in the record on appeal. Although the defendant moved to add the instructions, and we granted that motion, the instructions have not been made a part of the record on appeal. Judgment of the Court of Appeals is reversed. Judgment of the district court is affirmed.	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The opinion of the court was delivered by Yalentine, J.: In this action (which is an original proceeding in mandamus, commenced May 26th, 1870,) the plaintiffs, the Land Grant Railway & Trust Company and the Union Pacific Railway Company, Southern Branch, (now Missouri, Kansas & Texas Railway Company,) seek to compel the defendants, the Board of County Commissioners of Davis county, to subscribe to the capital stock of the said Union Pacific Railway Company, Southern Branch, to the amount of one hundred and sixty-five thousand dollars, and to issue in payment therefor an equal amount of the bonds of said Davis county, and deliver them to the said plaintiffs. We have already decided in the case of the Land Grant Railway & Trust Company vs. the Board of Commissioners of Coffey county, that the said Land Gránt Railway & Trust Company have no legal capacity to trrnsaet any kind of business in Kansas, and therefore it follows that this action must be dismissed as to the said Land Grant Railway & Trust Company. Whether the said Union Pacific Railway Company, Southern Branch, may proceed as the sole plaintiff, without making a new application for a writ of mandamus, we are not asked to decide. We shall therefore consider this action, as though commenced by the Union Pacific Railway Company, Southern Branch, alone. On the 15th day of July, 1867, the people of Davis county voted to subscribe to the capital stock of the Union Pacific Railway Company, Southern Branch, to the amount of one hundred and sixty-five thousand dollars, and issue inpayment therefor an equal amount of the bonds of said county, upon the following conditions: “ 1. That one-half of the bonds shall be issued upon the completion of thé road, ready for the iron, ten miles from the commencement thereof — and none before : and that the other half shall be issued on the completion of the other half, ready for the rolling stock, making twenty miles from the starting point at Junction City. “ 2. That the said road shall be commenced at Junction City, within one year from the date of the election. “ 3. That it shall be completed through Davis county within two years from the date of the election. “ 4. That said bonds shall not issue in case money or other aid is hereafter received by said Company, from the United States government. “ 5. That the county reserves the right to purchase the bonds, at any time after issue, at the market value.” We will assume, for the purpose of this argument, that all of the foregoing conditions wére fullfilled, so that the County Commissioners of said county could have subscribed for said stock, and issued said bonds, if they had so chosen. But said Commissioners never did subscribe for said stock, and never agreed to subscribe for the same; and the Railway Company never asked them to subscribe, until about the commencement of this suit. The questions arising in this case are — 1: Was the vote of the people of Davis county of itself, a contract between the county and the Railway Company, which the Railway Company can enforce? And if not — 2: Was said vote of itself, a proposition to the Railway Company rvhich the Railway Company could accept and make binding on the county? And if so, must the acceptance be a formal acceptance in writing, or a verbal acceptance, and when must the acceptance be made; or could the Railway Company accept the proposition by simply complying with the conditions of said vote ? But if there was no contract between the County and the Railway Company, then — 8: Did the County Commissioners by virtue of said vote, owe a duty, to subscribe for said stock, to any one, which they could be compelled to perform, or had they a discretion in the matter; and if they did owe such duty, to whom did they owe it; to the Railway Company or to the people of Davis county, and if not to the Railway Company, then is the Railway Company entitled to a writ of mandamus, to compel them to subscribe for said stock ? The nature of a contract is pretty clearly defined iq the case of The State, ex rel., v. Barker, 4 Kas., 385. A contract is “ the agreement of two competent parties, about a legal and competent subject-matter, upon a mutual legal consideration, with a mutuality of obligation.” (1 O. St., 657.) Taking this definition of a contract to be correct, it is .clear that no contract was ever made between the county of Davis and the Railway Company. No agreement was evermadeby either party, and neither party was ever bound. It seems to be, partially at least, admitted by the plaintiffs, that the vote alone, of the people of Davis county, did not create a contract between the county j° and the Railway Company. But it is claimed that the vote was of itself a proposition to the Railway Company, which the Railway Company accepted by performing the conditions of the vote, and thereby a contract was created between the Railway Company and the county, and binding upon the county. But the people of counties do not act in their primary capacity in making contracts. They act only through their legally constituted agents.- It is the commissioners of the county only that are authorized' to subscribe for stock in a railroad company, and not the people of the county, (laws of 1866, page 72, 73;) and a railway company cannot contract with a county in any way, except through the county commissioners. The plaintiffs claim that this transaction is analogous to the case where a person offers a reward for the recovery of stolen property, or for some other such purpose. But there are at least two very clear distinctions. A. makes a proposition to the whole world, that he will pay one hundred dollars reward to the person who shall return to him his stolen horse. B. accepts the proposition (im* pliedly at least) and returns the horse. Here, is a contract binding on A. But suppose A. authorizes his agent O. to make the proposition; but O. refuses to do so, and the proposition is never made; but notwithstanding that no proposition is ever made, B. returns the horse — is A. liable for the hundred dollars ? Or suppose that A. offers a reward to B. for building a house on B’s own land, and just such a house as B. wants, and just such a house as B. intends to build, whether the proposition is made or not; and B without ever accepting the proposition of A. (expressly,) builds the house — is A. liable ? In this case the people of Davis county did not make any proposition to the railway company, but simply authorized their agents, the county commissioners, to make a proposition to said company, to subscribe for stock in the company, provided the company should build their road through Davis county, a thing which it must be presumed the company intended to do, whether the. stock was subscribed or not, as the corporation was created and organized among other things for that express purpose, long before said vote was had. Suppose a railroad company is organized with a capital stock of three hundred thousand dollars, for the purpose of building a railroad from the town of A. to the town of B. and one of the counties through which the road is located, without the express consent of the railroad company, votes to subscribe for three hundred thousand dollars of stock in said company, when thejroad shall be completed ; and the company proceeds under their charter and builds the road ; is the company bound to allow the county to subscribe for said stock, which is all there is, and to deliver over to the county their charter, their franchises,- and all their property ? Suppose the company in the meantime had sold a portion of their stock- to individuals, a half of it, or the whole of it, so that the •company could not deliver to the county the three hundred thousand dollars of stock; what then ? And suppose that the stock had advanced, and the bonds depreciated in value, so that the stock was worth the most— "would the railway company then be bound ? And if for any reason there is no contract to bind the railway company, is there any contract that can bind the county ? As a general proposition, (with but one exception that I now think of, and that is where a person of full age contracts with a minor,) a contract to be binding on either party must be binding on both. Those who may desire to pursue this question further, are referred to the following cases: 22 Howard, 365, 378, 379: 12 B. Monroe 144, et seq.: 22 Ills., 147, 153, et seq.; 18 Barb., 317, et seq.; 21 Wend., 139 et seq. We do not suppose that the voluntary tender of the stock by the railroad company, at or before the making of the request upon the commissioners to sub- . - _ _ scribe therefor, and to issue the bonds of the county in payment thereof, in anywise changes the case. It is our opinion that there never was any contract between the county and the railway company; and therefore, as a necessary consequence, the county commissioners, who are the agents and the’ representatives of the county, and not of the railway company, owe no duty to the railway company; and as a further consequence the said commissioners will not be compelled on any application of the railway company to subscribe for said stock. The writ of mandamus is refused. All the Justices concurring.	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The opinion of the court was delivered by Lockett, J.; Plaintiff filed an action for injuries suffered in an automobile collision. The jury apportioned the fault at 20% to plaintiff and 80% to defendant and awarded $125,388.12 after adjustment for comparative fault. Defendant appealed to the Court of Appeals. In an unpublished opinion it affirmed the trial court, except the award to plaintiff of $30,000 for future medical expenses. The Court of Appeals found that there was not sufficient evidence to support the jury’s award for future medical ex penses. This court granted plaintiff’s petition and defendant’s cross-petition for review of the Court of Appeals decision. Defendant claims that the district court erred in: (1) allowing plaintiff to testify as to her lack of funds to seek medical treatment; (2) admitting prejudicial testimony; (3) admitting medical testimony without a foundation; and (4) allowing plaintiff’s attorney to refer to insurance; defendant further claims the verdict was excessive. Plaintiff claims that the Court of Appeals improperly set aside the jury’s award of future medical expenses. Nadine McKissick was driving north on U.S. Highway 75 near Lyndon when Andrea Frye, who was southbound, drove her vehicle left of center and struck McKissick’s automobile head-on. McKissick suffered injuries for which she subsequently filed this action. She claimed damages for past medical expenses of $9,624.15, unknown future medical expenses, past physical pain and suffering of $150,000, future pain and suffering of $200,000, and lost income of $28,805. Frye challenged McKissick’s claimed damages and denied any negligence; in the alternative, she claimed McKissick was comparatively negligent. McKissick had just entered onto Highway 75. The road was slick. She maintained a slow speed due to the weather conditions. She saw two cars approaching. McKissick did not see Fiye’s car pull into her lane or remember the collision. McKissick suffered a mild concussion, multiple contusions, abrasions, and broken skin on the left side of her forehead and scalp. She had severe neck pain that radiated down through her upper back. Her ankle was swollen and discolored. Dr. Hornbaker, who specialized in internal medicine, was McKissick’s physician. Dr. Hornbaker treated her for injuries resulting from the accident. All x-rays were negative. Dr. Hornbaker diagnosed that McKissick had suffered a “necklature sprain” and a strained ankle. McKissick continued to have problems with her ankle. A bone scan was completed approximately two months after the accident. The bone scan showed there was an abnormal uptake in one of her ankle bones which appeared to be a “reflex sympathetic dystrophy,” an injury to the sympathetic nerve system that causes pain. Dr. Hornbaker described several methods of treatment. One of the treatments was a sympathetic block, where a local anesthetic is injected into the nerves to offer temporary relief. Dr. Hombaker first referred McKissick to Dr. Patel, a neurologist. The results of Dr. Patel’s x-rays of the skull, the brain scan, and other tests were normal. Dr. Hombaker then referred McKissick to Dr. Knappenberger, an orthopedic specialist, for pain in her right leg and ankle. Dr. Knappenberger noted that McKissick’s ankle was swollen and she had a marked hypersensitivity to touching around the inner aspect of her ankle. He reviewed her x-rays and felt she had a “very minimal nondisplaced evulsion fracture on the lateral aspect of her foot,” sometimes referred to as a chip fracture, which normally heals without incident. The chip fracture was on the outer side of her ankle, while the tenderness was on the inner side. The sensitivity was not consonant with the x-ray findings. Dr. Knappenberger recommended that McKissick wear an air cast on her ankle and try to walk on it as much as possible, and he prescribed medication for the pain. When Dr. Knappenberger saw McKissick a month later, she appeared to be walking a little better. The treatment continued for another month, more improvement was noted, and the doctor decided to cut back on the medication dosage. McKissick, without the doctor’s recommendation, began wearing an elastic ankle support rather than the air cast. He continued to see her, and she continued to complain of the same level of pain five months after the accident. Knappenberger last saw McKissick in July 1990 and told her that if she had any other problems to call him back. At the time of the deposition, February 1992, he had not had any calls from McKissick reporting any medical problems. While Dr. Knappenberger was treating McKissick, Dr. Patel referred McKissick to Dr. Wright, a chiropractor, for problems in her neck, shoulders, lower back, and right ankle. Dr. Wright diagnosed her with “cervical myoligamentous strain, cervical intersegmental dysfunction, muscle tension, headaches and closed head trauma.” Dr. Wright also treated her ankle problem. Dr. Wright testified the cause of McKissick’s pain was myofascitis, which is an inflammation of the nerve. Dr. Wright testified McKissick would need care for the rest of her life for her ankle pain. On cross-examination, Dr. Wright admitted that at the initial office visit no diagnosis of an ankle problem was made. Although Dr. Wright claimed he treated her ankle as a secondary consideration to her other complaints and he remembered her ankle as being swollen every time she visited him (90 times over a period from April 1990 to January 1992), no notations were made in Dr. Wright’s office records regarding the ankle. Frye, the defendant, was called as a witness in the plaintiff’s case in chief. Frye testified she had gone to Manhattan with her boyfriend, Travis Allen, to ’attend a high school basketball game. Instead they spent the night before the accident at a motel in Manhattan. Her boyfriend had to be back at school by noon the next day in Fort Scott. She did not know how fast she was going on Highway 75, but she had slowed to approximately 35-40 miles per hour behind another car. When she decided to pass that car, Frye checked the road ahead and saw it was clear. After she pulled into the other lane to pass the slow moving car, McKissick’s car “came flying over the hill” at about 65-70 miles per hour. Frye stated she was unable to pull back behind the other car, her car hit a patch of ice, she lost control of her vehicle, and it collided with McKissick’s car. Allen was the first witness for the defense. On cross-examination, plaintiff’s counsel asked if Allen’s parents knew he and Frye would be spending the night together in Manhattan the night before the accident. Allen answered they were aware of those plans. Allen’s mother had called his school to inform them Allen would not be at school until noon. Dr. Gendel, who had examined McKissick for the defense, testified he found no sympathetic dystrophy. Dr. Gendel testified that in his medical experience dating back to World War II, he had never seen a case of sympathetic dystrophy occurring in a lower extremity. Dr. Gendel stated when he examined her in August 1991 he found no abnormalities in her ankle. He opined McKissick did not require the chiropractic treatment she was receiving. The jury found Frye 80% and McKissick 20% at fault. The jury awarded McKissick $65,000 for noneconomic damages (pain and suffering) to the date of the trial, $20,000 for future noneconomic loss (pain and suffering), $9,735.15 for past medical expenses, $30,000 for future medical expenses, $12,000 for economic damages to the date of the trial, and $20,000 for future economic loss (loss of income). The noneconomic damages totaled $85,000 for pain and suffering. The total damages, $156,735.15, was reduced by the comparative fault percentage to a net award of $125,388.12. Frye appealed. The Court of Appeals, in an unpublished opinion, found: Plaintiffs attorney’s references to insurance in voir dire were not reversible error, McKissick’s testimony that she could not afford medical treatment did not reach the level of reversible error, and the testimony that Frye spent the night prior to the accident in a motel was not materially prejudicial. The Court of Appeals noted Frye failed to object when the procedure of sympathectomy was discussed in closing argument by plaintiff’s counsel. It found this precluded appellate review of the admissibility of testimony regarding the procedure. The Court of Appeals commented that when the rule in Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973) (cumulative effect of misconduct by counsel can require reversal), was applied, it was a close call, but refused to reverse. The Court of Appeals then addressed Frye’s challenge to the damage award. The Court of Appeals affirmed all the damages awarded by the jury except for future medical expenses. The Court of Appeals determined that the testimony of the chiropractor as to future medical expenses was insufficient to support an award of $30,000 for future medical treatment and reversed the jury’s award of $30,000 for future medical expenses. We granted plaintiff’s petition and defendant’s cross-petition for review. Admissibility of McKissick’s Economic Status On direct examination, plaintiff’s counsel asked McKissick why she did not try a biofeedback treatment recommended by a doctor at the Menninger Clinic. Defense counsel objected to the form of the question. The district judge overruled the objection. McKissick answered, “I have no health insurance. I have doctor bills up to here. (Witness indicating.) And I have no money.” Following a series of questions concerning McKissick’s current daily regimen, this exchange took place after plaintiff’s counsel asked McKissick why she could not do much of anything: “A. Well, I can’t get up and fix a meal. I can’t run the vacuum very well. I can’t stand on my feet. I sit and cry most of the time. “Q. What do you sit and cry about? “A. Because I don’t know what’s going to become of me. “Q. What do you mean you don’t know what’s going to become of you? “A. I’m sorry? "Q. That’s all right. Why don’t you tell us what you mean by that? What is it that you mean when you say you donlt know what’s going to become of you?” Defense counsel objected, claiming that the question was speculative. The court overruled the objection. McKissick responded, “I can’t work and I have no money.” McKissick then stated that she was unable to purchase another car. Claiming plaintiff’s counsel had allegedly opened the door of McKissick’s financial condition on direct examination, defense counsel attempted to cross-examine McKissick as to her automobile insurance, her medical benefits, benefits for loss of wages of $2,100, and the fact she received an insurance check for $9,300. Defense counsel argued that he should be able to rebut on cross-examination McKissick’s statement that she had no money. Defendant’s counsel informed the court that McKissick had received $6,600 for lost wages and medical expenses under her no-fault insurance coverage, and $9,300 for replacement of her car. The court ruled that the defense could not inquire about the medical care reimbursement but could ask about the reimbursement for the damaged automobile. When cross-examined, McKissick testified the $9,300 she received from the insurance plus an additional $1,000 was required to pay off the balance of the loan, on her wrecked car. Frye asserts it was error to allow plaintiff to testify she did not have funds to obtain medical treatment such as sympathetic block and biofeedback. She begins her argument by citing the cases consolidated in Masson v. Kansas City Power & Light Co., 7 Kan. App. 2d 344, 642 P.2d 113, rev. denied 231 Kan. 801 (1982). Frye admits these cases were condemnation proceedings but points out the authority relied on by the Masson court was an automobile negligence case from California, Hoffman v. Brandt, 65 Cal. 2d 549, 552-53, 55 Cal. Rptr. 417, 421 P.2d 425 (1967). Frye asserts that because McKissick “obviously had insurance for medical and wage loss those statements [regarding her economic status] were false and an obvious appeal to sympathy and prejudice.” McKissick argues both Masson and Hoffman can be distinguished because the attorney conduct in those cases was clearly out of line and is not comparable to what occurred in this case. Masson was a consolidated appeal by a public utility from jury verdicts in two separate condemnation proceedings. Kansas City Power and Light Company (KCP&L) had acquired a 160-foot easement across a rural tract for a 345 KV overhead transmission line. The primary issue in each case was whether the fear of high voltage transmission lines could be used to compute damages for the taking of an easement for a high power line. A secondary issue in Masson was whether plaintiffs’ counsel had improperly argued irrelevant matters to the jury. In Masson, there was a consistent effort by the landowners to inform the jury of the impact that the easement would have on the personal lives of the landowners as opposed to its impact on the market value of their land. This effort was epitomized by the extensive testimony of Mr. and Mrs. Masson on their personal fear of electricity and the unknown dangers from high voltage lines after reading a magazine article and seeing a television movie on the dangers of electrical smog. Mr. Masson described going out along the easement with “neon” light bulbs and seeing the bulbs glow as a scary experience and said he worried about the possibility of contracting leukemia. Mrs. Masson thought $30,000 in damages was not enough because she would have to either live with the danger or move. The utility’s expert had assessed damages at $4,150, but the plaintiffs’ expert set damages at $30,640. The jury verdict was $30,640, the exact amount requested by the plaintiffs. The Court of Appeals observed that the impact of this testimony on the jury was “apparent.” 7 Kan. App. 2d at 346. It noted that in an affidavit attached to the utility’s motion for new trial, a juror was reported to have said that the jury asked the bailiff whether it could assess punitive damages. The Masson court asserted that if this was true, it demonstrated the passion and prejudice which resulted in the size of the verdict. It opined, “The evidence, once in, provided a steppingstone to the landowners’ closing arguments designed to appeal to the sympathy of the jury. 7 Kan. App. 2d at 346. In Masson, there was “a good deal of evidence and argument on the themes of ‘small individual versus big business’ and ‘punish the utility for its conduct.’ ” 7 Kan. App. 2d at 346. The impropriety of the admission of this evidence and of statements made in plaintiffs’ closing argument were discussed in analysis of the consolidated case involving the other plaintiffs, the Freys. In that case, the plaintiffs’ trial strategy was to depict the Freys as helpless individuals fighting a rich and ruthless utility which needed to be penalized for its wrongful conduct in taking an easement which the landowners did not wish to sell and in the manner of the taking. The Court of Appeals noted that KCP&L, fresh from trying die Masson case, attempted to forestall the approach taken in the Frey case by filing a motion in limine. The motion sought to preclude counsel during voir dire from, among other things, making the individual versus corporation argument or suggesting that there was some impropriety in the taking. The trial court declined to rule on the motion but indicated that the voir dire would not be argumentative. The landowners’ attorney asked the jury if, as a result of seeing the movie “Ohms” or reading the Reader’s Digest article, both of which had stressed the dangers of power lines, any juror had “a preconceived bias that Kansas City Power & Light should be penalized more than the evidence supports!” 7 Kan. App.'2d at 347. The Court of Appeals noted that while ostensibly designed to discover bias, the question clearly planted the idea that the condemnor should be penalized for its conduct and there would be evidence as to how much the penalty should be. In closing argument the theme was amplified in two ways'. First, after referring to the absence of testimony from KCP&L’s experts about people building next to existing power line easements, counsel commented on the utility’s wealth: “Believe me with the size and the money behind Kansas Ciiy Power and Light in preparing this case, if it had been there you would have heard it.” 7 Kan. App. 2d at 347. Later, after argument from the utility attacking the landowner’s value figures, counsel complained to the jury, stating: “ Tm almost over. You know trying a condemnation case against Kansas City Power and light is an unbelievable experience and I have just witnessed it. The figures I have given are incorrect, pictures are not exchanged but introduced, and then don’t worry about fighting big business, but if you give that twenty-five thousand two hundred dollars it’s going to increase operating costs and we are going to slip it right to the rate payers, and I don’t really think they want me to get into the justice of their rates, but that’s what they would like you to do today.’ ” (Emphasis in original.) 7 Kan. App. 2d at 347-48. The Court of Appeals noted that the wrongfulness of both the taking and the procedure was injected in comments, about the fact that the utility, under the easement taken, had the right to erect two more towers at some later time. Counsel argued: “ ‘There is no mystery involved with the location of these poles. It’s just kind of like saying, Ed we got you twice, we’ll put two of them up and we won’t tell you where the other two are going. Now you go ahead and use your property, and you go ahead and sell, but when the buyer wants to know where are those other two towers going to be, I’m not going to tell you yet. You go ahead and develop and run your roads and build your houses, then we are going to tell you where we are going to put it. Is that justice? Do you think the engineers can’t tell these men now, or do you think they can’t tell them now if we need to do it again and we will condemn again and pay you for it, so we don’t rape you twice? No, we don’t do it that way. Is that justice?’ ” 7 Kan. App. 2d at 348. And finally, counsel reached his peroration: “ ‘The case is over now and I have about two minutes and I will sit down and you will get to do into round six. He doesn’t get to go with you, this man who has had that place for seventy [sic] years of his fife and he and his family for forty, and after your verdict hopefully this evening Mr. White and Mr. Murray can go to a new case, and Mr. Forbes can go to a new case, and Mr. Forbes can go back to Kansas City Power and Light, and I will try another lawsuit, and the twelve of you are going twelve different ways in life, but you will have done that one American duty and sent a message to a utility that you are not going to put up with the kind of treatment of your citizens, you have got a chance to be heard that an individual never has.’ ” 7 Kan. App. 2d at 348. This statement to the jury was clearly.improper. The Court of Appeals noted that a condemnation trial is a sober inquiry into values, designed to strike a just balance between the economic interests of the public and those of the landowner. In striking that balance, there is no room for appeals to prejudice against the condemnor or sympathy for the landowner. Neither the relative financial positions of the parties nor the landowners’ unwillingness to sell is relevant to the issue of values and damages. 7 Kan. App. 2d at 348-49. In Hoffman v. Brandt, 65 Cal. 2d 549, the plaintiff, a 20-year-old woman who drove a Porsche, sued a 69-year-old retired machinist who drove a Rambler, for injuries sustained when their vehicles collided. Defense counsel, in closing, argued that the damages plaintiff requested would put the defendant in the county poor home. Defendant’s counsel then rhetorically asked the jury, “[A]re you going to, by your verdict, say to [the defendant], It’s Laguna Honda Home [a city/county home for the indigent] for you, Mr. Brandt?’ ” 65 Cal. 2d at 551. The plaintiff objected. Counsel briefly argued the issue in front of the jury. The trial court asked counsel to make any legal arguments outside the presence of the jury and sustained the objection. The trial judge admonished the jury to treat defense counsel’s comments as argument, not evidence. 65 Cal. 2d at 551-52. The California appellate court reversed, noting that the argument was clearly error. It stated that justice is to be accorded to rich and poor alike, and a deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case. 65 Cal. 2d at 552-53. In Masson, counsel for the plaintiffs deliberately injected the improper argument into the proceedings. “[W]hen the jury went to the jury room almost the last phrase in its ears was a call to patriotic duty to ‘send a message’ to the utility that its reprehensible manner of dealing with landowners would not go un punished. It had no intimation from the court that its duty was otherwise.” 7 Kan. App. 2d at 351-52. See also Surface v. Douglas, 1 Kan. App. 78, 83, 41 Pac. 207 (1895) (plaintiff’s counsel, in closing, referred to plaintiff as a “poor, sick woman” with children to raise; no evidence adduced regarding financial or physical condition of plaintiff; remarks were outside of evidence and prejudicial). But see Stotts v. Taylor, 130 Kan. 158, 162, 285 Pac. 571 (1930) (closing argument by plaintiff’s counsel that deceased, a mother, was irreplaceable and “more important to a family than the jury are or [the defendant] is” was not so out of line that it affected the jury’s verdict). The trial court is vested with vast amounts of discretion in the admission of evidence during the trial. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts and situations which occur prior to and during the trial. Hurlbut v. Conoco, Inc., 253 Kan. 515, 529, 856 P.2d 1313 (1993). 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. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). A lawyer in his or her professional capacity before a tribunal shall not state or allude to any matter that the lawyer has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence. Rood v. Kansas City Power & Light Co. 243 Kan. 14, 21, 755 P.2d 502 (1988). A deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct where the asserted wealth or poverty is not relevant to the issues of the case. In assessing whether improper argument amounts to reversible error, great weight is given to the presence or absence of an objection and the curative effect of a well-phrased admonition to the jury. Masson, 7 Kan. App. 2d 344, Syl. ¶¶ 4, 6. In Masson, trial counsel for the plaintiffs deliberately made the prejudicial comments before the jury. Frye concedes here there is a question of whether plaintiff’s counsel asked questions to draw out the responses but contends the question, “Why didn’t you go have further medical treatment?” was designed to obtain the response given. We disagree. The fact that the plaintiff had not participated in certain therapy was brought up prior to the plaintiff testifying. In addition, there was no continued deliberate attempt to inject wealth versus poverty into the trial by plaintiff’s attorney. Prohibiting Inquiry into McKissick’s Medical Coverage Although Frye states plaintiff’s counsel’s inquiry as to plaintiff’s medical coverage is an issue, it is only incidentally mentioned in her brief. “Defendant asked permission to go in to those areas [Medicare; private insurance for medical care and lost wages] and the Court denied it.” No argument or citation to authority is stated by the defendant. A point incidentally raised but not argued is deemed abandoned. Brubaker v. Branine, 237 Kan. 488, 490, 701 P.2d 929 (1985). The Court of Appeals determined this issue by ruling that because collateral source benefits were inadmissible, citing Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), there was no error in the district court’s refusing Frye’s request to cross-examine McKissick on her insurance benefits. Fiye filed a supplemental brief, claiming she should have been allowed to inquire into the insurance benefits under the doctrine of curative admissibility. The doctrine of curative admissibility allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has “opened the door” by introducing similarly inadmissible evidence on the same point. As authority for the doctrine, Frye cites a trio of cases from other jurisdictions: Irick v. U.S., 565 A.2d 26 (D.C. 1989); Lampkins v. United States, 515 A.2d 428 (D.C. 1986); and Danielson v. Hanford, 352 N.W.2d 758 (Minn. App. 1984). Irick, citing Lampkins, notes the sine qua non is the introduction of inadmissible evidence. 565 A.2d at 45. Kansas courts follow the rule that if one party offers an inadmissible fact into evidence, the other party may introduce a similar inadmissible fact “whenever it is needed for removing an unfair prejudice which might oth erwise have ensued from the original evidence.” Dewey v. Funk, 211 Kan. 54, 56, 505 P.2d 722 (1973). If the evidence is admissible, the doctrine of curative admissibility does not apply. McKissick argues that the defendant’s assertion of the doctrine of curative admissibility does not apply because there was no improper admission of evidence that required counteraction. McKissick asserts that even if the exclusion of evidence was error, its admission was harmless error because it would not have benefited Frye. As an example, McKissick points out the court did allow Frye to inquire into the insurance proceeds to replace McKissick’s vehicle, which resulted in McKissick explaining it all went to pay off the loan balance. This statement abruptly ended further inquiry in that area by the defense. In his opening statement, defendant’s counsel made several references to the fact that plaintiff stopped seeing certain doctors and had not attempted to reduce her pain by biofeedback or a sympathetic block. The reference to McKissick’s financial situation was not deliberate and was within the trial court’s discretion to allow it into evidence. The facts were admissible. Even if we considered the facts to be inadmissible, the inquiry was so limited that no prejudice could have occurred. The facts of McKissick’s insurance benefits were not admissible either (1) under the curative rule in Dewey or (2) as collateral source benefits, as the Court of Appeals ruled. Evidence that Defendant Spent the Night in a Motel In his opening statement, plaintiff’s counsel referred to the fact Frye, a high school senior at the time of the accident, instead of going to a senior activity day at Kansas State University, spent the night at a motel with her boyfriend. Defense counsel objected and argued that evidence was irrelevant and prejudicial. Plaintiff’s counsel responded that information was relevant to show Frye was in a hurry to get her boyfriend back to school the morning of the accident. The trial judge cautioned plaintiff’s counsel not to attempt to go beyond those facts to elicit sympathy from the jury. Without citing authority, Fiye asserts that although the trial court ruled, this subject was irrelevant, plaintiff’s attorney injected evidence of Fiye and her boyfriend’s ages and where they stayed the night in an attempt to raise the sympathy of the jury and prejudice the defendant. Frye claims that this information was irrelevant and highly prejudicial, especially when coupled with McKissick’s comments on McKissick’s financial situation, and that all of this resulted in a verdict based on passion and prejudice. We note that in other cases this court has found error when irrelevant and prejudicial evidence was admitted at trial. See, e.g., Ayers v. Christiansen, 222 Kan. 225, 564 P.2d 458 (1977) (introduction of evidence relating to the defendant’s insurance status in regard to the issue of fault); State v. Gregory, 218 Kan. 180, 188, 542 P.2d 1051 (1975) (défendant’s sex life or his quarrels with his paramour “wholly irrelevant” to his professed fear of knives and prejudicial); Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P.2d 281 (1962) (insurance). McKissick responds that evidence was relevant to show Fiye had a motive to exceed the speed limit in hurrying to get her boyfriend back to school. McKissick notes the only other time the matter came up was when plaintiff’s counsel inquired of Frye and Allen where they had stayed and at what time they had to be back. These inquiries were not objected to by Frye. The trial judge did not rule that evidence was irrelevant but instead admonished McKissick’s counsel to not use the testimony to prejudice the jury against Frye. An evidentiary ruling on relevance ordinarily rests in the sound discretion of the trial judge. K.S.A. 60-445 provides the judge may as a matter of discretion exclude evidence if the judge 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 will be offered. Frye was not surprised by the evidence. The evidence was relevant, and its admission was within the discretion of the trial judge to admit or not admit. No abuse of discretion is shown. Evidence of Surgical Procedure Not Performed On redirect, plaintiff’s counsel asked Dr. Hombaker to define “sympathectomy.” The doctor explained it is a medical procedure similar to the sympathetic block except instead of injecting anesthetic the doctor makes an incision and cuts the nerve. The doctor pointed out that there is no guarantee a sympathectomy, if performed, would cure the pain and that the procedure is only done in extreme cases. Plaintiffs counsel, after introducing this evidence, attempted to continue asking questions about this treatment. Defense counsel objected, arguing that a sympathectomy was not “a recommended or discussed course of treatment.” The judge overruled that objection, and then defense counsel objected on grounds it was speculative. That objection was also overruled. The doctor then testified it was a very radical form of treatment which could leave the leg somewhat numb. Plaintiffs counsel, in examining Dr. Wright, the chiropractor who was treating the plaintiff, ascertained that the doctor was also familiar with this procedure. After Dr. Wright stated he was familiar with the procedure, plaintiffs attorney asked the doctor to describe the process. Defense counsel objected to this testimony “as not being a course of conduct recommended by this doctor and is a course of treatment he can’t even do.” The court overruled the objection as premature. Plaintiff’s counsel then asked Dr. Wright if he had recommended this treatment to McKissick. Defense counsel objected for lack of foundation. The judge overruled the objection. Dr. Wright described the procedure to perform a sympathectomy and stated he had not recommended it to McKissick. The doctor was then asked whether it was something that could be considered for similarly situated persons. The defense again objected, asserting the answer was speculative. The objection was overruled. Dr. Wright responded the treatment could be considered. In his closing argument, McKissick’s counsel stated, “In the more radical case they have to come into the hip, cut it open and actually cut the nerve making your leg dead. So that there’s no feeling of cold, no sensation of heat. She would be carrying around a dead limb.” There was no objection to these remarks in closing argument. Fiye argues it was prejudicial for the trial judge to overrule her objections and to allow McKissick to introduce testimony re garding a surgical procedure, sympathectomy, which was never recommended by any physician who treated McKissick. Frye admits the subject was referred to in McKissick’s counsel’s closing argument and acknowledges she did not object to those comments in closing argument. The Court of Appeals refused to address this issue because Frye had failed to object to the discussion of this procedure made in the plaintiff’s closing argument. A point not raised before or presented to the trial court cannot be raised for the first time on appeal. Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948, 811 P.2d 1237 (1991). Both parties filed supplemental briefs concerning the Court of Appeals’ ruling that lack of objection by Frye to the mention of the sympathectomy in closing argument precluded appellate review. To supplement her argument in this court, Frye cites McCormick on Evidence for the proposition that if an earlier objection is overruled, repeated objections are not required. McCormick states: “A offers testimony by one witness which his adversary, B, thinks is inadmissible. B objects, and the objection is sustained. In such event, if A offers similar testimony by the same or another witness, B must of course repeat her objection if she is to complain of the later evidence. Suppose, however, the first objection is overruled. Must B then repeat her objection when other like evidence similarly objectionable is offered? A few decisions intimate that she must, a practice which places B in the invidious semblance of a contentious obstructor, and conduces to waste of time and fraying of patience. Most courts, however, hold that B is entitled to assume that the judge will continue to make the same ruling and she need not repeat the objection. It seems that the consequence of this view should be, that the first objection remains good and is not waived, and that in addition, the reach of this objection extends to all similar evidence subject to the same objection.” 1 McCormick on Evidence § 52, p. 208 (4th ed. 1992). Kansas does not follow the rule that if an earlier objection is overruled, repeated objections are not required as. discussed in McCormick on Evidence. In order to raise the admissibility of evidence as an issue on appeal, the record must show a timely and specific objection. K.S.A. 60-404. If a continuing objection is lodged, failure to object when the evidence is subsequently readmitted does not bar raising the issue on appeal. See, e.g., Lytle v. Stearns, 250 Kan. 783, 799, 830 P.2d 1197 (1992) (continuing objection during cross-examination, no objection during subsequent discussion of evidence, objection not waived). Frye asserts that the case of Cooper v. Bower, 78 Kan. 156, 96 Pac. 59 (1908), is “instructive.” McKissick argues Cooper is not helpful. In Cooper, the defendant objected to a question when it was asked. The objection was overruled and the defendant’s exception was noted. The witness stated, “I could state that better if I would state it just as it occurred, in my own way.” The plaintiff’s attorney then said, “Very well.” 78 Kan. at 159. The witness then gave her answer, without a further objection, to the question asked and previously objected to. On appeal, Cooper contended that the statement “very well” by the plaintiff’s attorney constituted a new question, which was not objected to; therefore, the defendant was precluded from challenging the admission of that testimony on appeal. The Cooper court declined to “exact unreasonable pertinacity of counsel conducting a trial” by requiring counsel to renew objections under similar circumstances. 78 Kan. at 159. In Cooper, the alleged missing objection followed closely on the heels of the overruled objection. The procedure was initially referred to by Frye’s attorney during his opening argument. It was later raised by McKissick without objection. As McKissick’s counsel continued asking questions about the procedure, the defense objected on a variety of grounds, all which were overruled. The defense did not request the court to note a continuing objection. In his closing argument, the procedure was discussed by plaintiff’s counsel without an objection by the defense. Without a continuing objection made when the procedure was first raised by the plaintiff, on appeal Frye cannot contest the subsequent discussion of the procedure in the plaintiff’s closing argument. Reference to Insurance During Voir Dire of the fmy Panel During voir dire, McKissick’s counsel asked if any of the prospective jurors worked in the insurance industry, either in sales or management. Two jurors replied affirmatively. The court inquired if they could still be impartial. When plaintiff’s counsel asked, “As to what you do in your business —” defense counsel interrupted and asked to approach the bench. Defense counsel moved for a mistrial because “insurance” had been “interjected” into the case. The court denied the motion for mistrial but instructed plaintiff’s counsel to not proceed further into this area. Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing. K.S.A. 60-454. Frye contends that plaintiff’s injection of insurance into the case prejudiced the jury and she is entitled to a new trial. Although not cited by the parties ’or the Court of Appeals, this court has recognized that the questioning of jurors to determine the relationship or business background with insurance is proper. In Mathena v. Burchett, 189 Kan. 350, 369 P.2d 487 (1962), plaintiff brought an action for injuries suffered while a passenger in an automobile involved in an accident. During voir dire, plaintiff’s attorney asked the jury panel if any of the panel had adjusted losses for either an adjusting company or insurance company or engaged in that type of work. The defendant moved for a mistrial because the plaintiff had deliberately attempted to inject insurance into the case. The Maihena court observed that as far back as the turn of the century, this court has been troubled with the alleged prejudicial effect of the term “insurance” and the concurrent inference that the defendant is insured. The court observed that considerable latitude should be allowed counsel in the examination of jurors to the end that all who have any bias or prejudice, or are otherwise disqualified, may be excluded from the panel, but the inquiry should never extend so far as unnecessarily to introduce extraneous matter of prejudicial character that may improperly influence the verdict. It noted that the extent of such examination must be left largely to the sound discretion of the trial court, and unless an abuse of discretion is clearly shown, a reviewing court will not interfere. It determined there is a fine distinction between the focus of questions on voir dire that attempt to determine the relationship or business background of a juror and those that inferentially indicate the defendant is insured. The Mathena court found that the questions were proper, the inquiry was made in good faith, and no showing of prejudice was reflected in the record. 189 Kan. at 352-55. Frye contends the course of conduct engaged in by McKissick’s counsel, the comment on insurance by him, and the comments challenged in the previous issues raised on appeal rose to the level of misconduct that when viewed cumulatively resulted in a biased or prejudiced verdict by the juiy. McKissick counters Fiye is confusing zealous advocacy with attorney misconduct. She asserts that “[a]t no place in this record could the remarks of plaintiff’s counsel be read to be improper, let alone anywhere near the level of ‘inherently prejudicial.’ ” The Court of Appeals cited Smith v. Blakey, Administrator, 213 Kan. 91, 515 P.2d 1062 (1973), in its discussion of this issue. Blakey was an automobile negligence action. On appeal, defendant asserted that repeated incidents of misconduct by the plaintiff’s counsel prevented a fair trial. The Blakey court noted that from the opening statements through the final arguments the record disclosed plaintiff’s counsel personally attacked the ethics and integrity of defense counsel. Specifically, plaintiff’s counsel accused defense counsel of: (1) being in bad faith; (2) trying to impeach honest answers; (3) putting words in the mouths of witnesses; (4) playing “dirty pool”; (5) beating his client and other witnesses around; (6) “sandbagging” witnesses; (7) abusing witnesses; (8) being unethical; (9) impeaching and not properly representing his client; (10) being a lawyer who had previously been admonished by the court in chambers and who during the course of the trial was in contempt of court; and (11) being heartless. Many of these remarks were repeated throughout the trial. Plaintiff’s counsel, when referring to the principal defense counsel, usually did so as the “man from Salina.” 213 Kan. at 94. The Blakey court stated: “Under our system of government, courts are instituted for the purpose of enforcing rights and redressing wrongs according to law. In juiy trials, evidence is adduced for the purpose of ascertaining the truth, and instructions prepared by the court are given to inform a jury as to the law applicable to the facts. Jurors should ascertain the facts from the evidence, apply the law given them to the facts as they find them, and return a verdict accordingly. Within these limits counsel may present his client’s case in the light most favorable to [the client]. Constant and repeated attacks on opposing counsel, deliberately inserted in a trial to humiliate, degrade, and demean him before a jury, thwart and offend the basic purposes of a jury trial. It is the duty of the trial court to prevent such attacks in furtherance of the objects of their creation and, if made, remove their wrongful effects as far as possible. Such actions should be restrained by the trial court without the necessity of objection by offended counsel.” 213 Kan. at 94. The Blakey court stated the factors necessary to a fair trial are an adequate hearing before an impartial tribunal based on legally admissible evidence relevant to the issues involved, free from bias or prejudice. After carefully reviewing the record, it found the remarks and conduct of counsel materially distracted and hindered the juiy from returning an impartial verdict based upon the issues between the parties and the evidence presented relevant to those issues. 213 Kan. at 96. Blakey was distinguished in Tetuan v. A.H. Robins Co., 241 Kan. 441, 738 P.2d 1210 (1987). In Tetuan, the defendant culled from 6,000 pages of trial transcripts 24 alleged instances of counsel misconduct. After reviewing the allegations, this court found at best two instances rising to the level of misconduct. The court asserted that asking questions that merit a sustained objection is not in itself misconduct. 241 Kan. at 478. It stated that even if there are instances of misconduct, if they were “isolated” or are not substantially prejudicial, the verdict will be affirmed on appeal. 241 Kan. at 477. The Tetuan court noted that in almost all cases “prompt rulings” by the trial judge or “well-phrased admonitions” would successively remove any impact on the fairness of a trial by counsel’s misconduct. 241 Kan. at 479. In Henderson v. Hassur, 225 Kan. 678, 693, 594 P.2d 650 (1979), Henderson alleged that three separate comments in closing argument by Hassur’s attorney constituted reversible error under the Blakey rule. Two of the comments were objected to and the court properly instructed the jury to disregard the statement. There was no objection to the third alleged statement. The collective judgment of this court found the three remarks did not rise to reversible error. Frye claims there were four specific areas of alleged misconduct: the mention of insurance, the testimony regarding Mc-Kissick’s claimed inability to pay for her medical expenses, references to where Frye and Allen spent the night on the evening before the accident, and testimony and comment on the medical procedure of sympathectomy, which was never prescribed or even suggested for McKissick. The Court of Appeals considered this question a “close call.” Supervision over voir dire examination of the venire and control over the nature and extent of questioning are matters necessarily left to the sound discretion of the trial court. Courts must be conscious of the rights of litigants, and improper action of their counsel should not be charged against them unless such action results in basic unfairness. Basic unfairness must be determined in the first instance by the trial court. Its decision must rest on the exercise of judicial discretion. On appeal, we must determine whether the trial court abused its discretion. In order to perform this function we must examine the alleged prejudicial material and from its nature determine whether it is so inherently prejudicial that a fair trial could not have resulted. The insurance issue came up in voir dire and the court promptly sustained that objection. McKissick’s inability to pay her medical expenses came up once during her testimony; the court overruled the objection, and no further mention of it occurred. Our analysis of those issues indicates no error occurred. Frye and Allen’s whereabouts the night prior to the accident was relevant to the issue of Frye’s negligence: Whether to allow the claimed repeated references to the sympathectomy procedure was discretionary with the judge. Under these circumstances, it was not a close call as to whether the defendant should have been granted a new trial or that what occurred was sufficiently similar to Blakey to warrant reversal. Was the Verdict Excessive? Frye initially states she is seeking a remittitur. She then points out the recent case of Dixon v. Prothro, 251 Kan. 767, 840 P.2d 491 (1992), and notes remittitur is improper if the jury’s award is based on passion or prejudice. She then argues she is entitled to a new trial. There are two separate types of damages, economic and noneconomic. See Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 360, 837 P.2d 330 (1992). Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and other such losses. Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents. There are different standards of review employed in addressing challenges to an award of these damages. Pain and Suffering “Pain and suffering have no known dimensions, mathematical or financial. There is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensation for the injuries suffered, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.” ’ ” Ratterree v. Bartlett, 238 Kan. 11, 23, 707 P.2d 1063 (1985). Awards for pain and suffering are overturned only if the collective conscience of the appellate court is shocked. See Merando v. A. T. & S.F. Rly. Co., 232 Kan. 404, 417, 656 P.2d 154 (1982). Frye argues the award of $65,000 for two years of pain and suffering prior to the trial, when compared to the award of $20,000 for future pain and suffering, should shock the conscience of this court. For authority she cites Slocum v. Kansas Power & Light Co, 190 Kan. 747, 378 P.2d 51 (1963), and Blevins v. Weingart Truck if Tractor Service, 186 Kan. 258, 349 P.2d 896 (1960), each of which resulted in remittiturs reducing the damage award by one-third. Frye asserts that under the circumstances in this case, it is also reasonable to reduce the amount for past pain and suffering awarded the plaintiff. In Slocum, a 12-year-old boy touched a noninsulated power line carrying approximately 14,000 volts of electricity. Slocum lost his left forearm, left hand, and the middle finger of his right hand. A doctor testified that it might be necessary to amputate Slocum’s left arm in the future. Slocum also suffered large areas of scarring on his stomach and his outer and inner thighs. He spent 160 days in the hospital and endured treatment his doctor described as “among the most painful that can be endured by mankind.” 190 Kan. at 753. He had established economic damages of approximately $8,500, and the jury awarded $95,000 in total damages. This court, in a 4-3 decision, affirmed the trial court’s order that Slocum accept a remittitur to $60,000 or a new trial on the issue of damages. In Blevins, 186 Kan. 258, the 29-year-old plaintiff was involved in an auto accident. He suffered a mild cerebral concussion, a scalp laceration, and a contusion on his left chest. Although his chest stopped hurting within 2 days, 10 days after the accident he had a 5-day attack of back pain. About six weeks after the accident, he sneezed and the back pain returned, along with pain that radiated into his groin and the back of his legs. He never sought treatment for the back pain. During this time he only missed two days of work — -those immediately following the accident. He sought $50,000 in damages, received a verdict of $8,300 (of which $300 was damage to his vehicle), and agreed to a remittitur of $3,000. The defendant appealed that award of damages, but this court affirmed the trial court. Frye cites 13 cases from other jurisdictions where appellate courts have reduced pain and suffering awards. However, there is no provision in current law for comparison of one plaintiff’s recoveiy with another’s to serve as the basis for overturning a jury’s verdict. Kuhl v. Atchison, Topeka & Santa Fe Rwy. Co., 250 Kan. 332, 344, 827 P.2d 1 (1992). But see Wahwasuck v. Kansas Power & Light Co., 250 Kan. 606, 619, 828 P.2d 923 (1992) (“In view of the evidence, the collective conscience of this court is not shocked. Far larger damage awards have been upheld.”). One of the cases Frye cites also recognizes this rule, Engman v. City of Des Moines, 255 Iowa 1039, 1048, 125 N.W.2d 235 (1963) (“The question of excessive damages in a personal injury case depends upon its own facts and the comparison of verdicts is of litde value.”). The question of excessive verdicts for noneconomic damages has been addressed in many Kansas cases. The standard of evaluation by which an award for noneconomic damages is measured is such amount as a reasonable person estimates to be fair compensation when that amount appears to be in harmony with the evidence as arrived at without passion or prejudice. Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 352-53, 789 P.2d 541 (1990), overruled on other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 (1991). Evaluation of the award made to McKissick must be made in light of the evidence introduced in her case. Frye’s chief complaint seems to be the disparity between the past pain and suffering and the future pain and suffering awards. At the time of the pretrial order, McKissick was seeking $150,000 for past pain and suffering and $200,000 for future pain and suffering. The trial testimony indicated the pain was much more severe during the périod immediately following the accident. The award for past pain and suffering included the pain from her ankle injury as well as her other injuries. After several months of treatment, the doctors testified the plaintiff seemed to get better with the only remaining complaint being her ankle. The award does not shock the collective conscience of this court. Future Medical Expenses Frye argued in the Court of Appeals that the award of $30,000 for future medical expenses is based on passion and prejudice because it relates solely to treatment by “a chiropractor, a fellow who cannot even give pain medicine.” She claimed it was “absurd” to base the amount awarded on the testimony of a chiropractor. The Court of Appeals, when reversing the jury’s award for future medical expenses, opined that the testimony of the chiropractor was “pure speculation and conjecture” and was not supported by sufficient evidence. In her cross-petition for review, McKissick responds that Dr. Wright’s testimony was competent evidence to support the award for future medical expenses. In Marcotte Realty & Auction, Inc. v. Schumacher, 229 Kan. 252, 624 P.2d 420 (1981), this court addressed the question of whether there was sufficient evidence to support an award of $32,000 in damages. The award was based upon a finding by the trial court that the Schumacher land could have been sold for $300 per acre if the real estate salesman had made further inquiries into the potential buyer s financial background. The testimony included that of an official of the Federal Land Bank, an official of the Farmers Home Administration, the Director of the Kansas Real Estate Commission, a real estate specialist with the Kansas Real Estate Commission, and three licensed real estate salesmen or brokers. No witness had testified as to the fair market value of the Schumacher land. There was considerable evidence of the value being between $200 and $250 per acre. The sole evidence to support the award of damages was that the potential buyer testified he would have liked to buy the Schumacher land, he could probably have gotten financial help from his father, and he thought his wife would consent to a second mortgage on their mobile home, combined with the buyer s father’s testimony that if his son had wanted the Schumacher land, and if he had asked, then the father would have helped. 229 Kan. at 267. This court noted that “ ‘[i]t is a fundamental principle of law that recovery may not be had where it is not shown with reasonable certainty that damage was suffered.’ ” 229 Kan. at 267 (quoting Apperson v. Security State Bank, 215 Kan. 724, 735-36, 528 P.2d 1211 [1974]). It opined: “[T]he evidence falls far short of establishing with reasonable certainty that Schumacher suffered damage as a result of an act or omission to act on the part of Marcotte.” 229 Kan. at 267. In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recovery of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an estimate of the amount of loss. Cerretti, 251 Kan. at 360-61. Dr. Wright testified, after discussing his previous diagnosis and treatment of McKissick, that “she would have to have treatment about once a week right up until she could either overcome that or it would gradually get worse, and we may have to slide it up where it would be a twice a week treatment program.” Dr. Wright testified the cost of one visit would be $34. There was no other testimony regarding future medical needs. The jury was instructed McKissick had a life expectancy of 20 years; $30,000 divided by $34 equals 882 treatments, or 17 years of weekly visits. The jury believed Dr. Wright’s testimony that McKissick needed future medical treatment for the rest of her life. The question is whether a chiropractor’s testimony is sufficient to establish with a reasonable certainty that McKissick will need future medical care, which if needed will cost $30,000. Chiropractors are licensed under the Kansas Healing Arts Act, K.S.A. 65-2801 et seq., and the practice of chiropractic is recognized as one of the healing arts. Taylor v. Maxwell, 197 Kan. 509, 511, 419 P.2d 822 (1966). They are allowed to, treat patients within the scope of specific therapies permitted by that act. See K.S.A 65-2871. In Taylor, one of the issues on appeal was whether a chiropractor had been qualified to testify as an expert witness. This court found no error in admitting the testimony of the chiropractor. The appellate courts are not to reweigh the testimony or pass on the credibility of witnesses. See, e.g., Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988). McKissick sought a total of approximately $800,000 in damages. She received about $150,000, which was reduced by the comparative fault percentage of 20%. The verdict is supported by sufficient evidence and not so excessive as to shock one’s conscience. The judgment of the Court of Appeals reversing the award of $30,000 for future medical expenses is reversed; on all other issues the Court of Appeals is affirmed. The judgment of the district court is affirmed.	[ -48, -22, -11, -81, 12, 96, 98, 26, 80, -121, -84, 19, -81, -55, 29, 107, -81, -65, 65, 106, -9, -93, 23, -29, -77, -77, 107, 70, -77, 72, -12, 119, 77, 48, -54, 21, 102, 74, 69, 80, -50, -106, -87, -7, 73, -126, -72, 58, 66, 3, 49, -97, 70, 42, 57, -57, 109, 40, 91, -71, -127, -80, -128, 13, 95, 0, -79, 52, -100, -85, 90, 26, -104, 49, 0, -24, 114, -90, -126, -44, 107, -103, 12, 38, 99, 33, 17, -51, 124, -68, 6, 94, 47, -89, -102, 121, -55, 8, -106, -67, 116, 10, 13, 92, -4, 85, 72, 124, -61, -37, -112, -111, -49, 48, -100, 70, -17, -113, 18, 97, -115, -14, 92, -123, 58, -109, 91, -74 ]
The opinion of the court was delivered by Kingman, C. J.: A jury having been waived, this cause was tried by the court; and at the request of both parties special findings of fact and conclusions of law were made. All the evidence and proceedings in the cause are preserved, making a somewhat voluminous record, to which the ingenuity of counsel has been able to assign forty-three causes of error, although but two were noticed in the brief, or were pressed in argument. Still, we have carefully looked into the record to consider the other errors alleged. Most of them-relate to admissions of testimony, and are not well taken, as the testimony elicited tended to throw light upon the questions at issue, and in none of them do we find cause for’reversing the judgment; nor do we deem their discussion of sufficient importance to demand such labor at our hands. I. Passing then to the two main questions which were pressed in the argument, we shall for convenience consider first, the one involving the real subject or the controversy, as its consideration necessarily involves the statement of facts out of which the other question arose. The subject of the controversy in this action was, whether the bank was entitled to a credit of $3,000 paid by it on a draft, the pretended acceptance of which by the defendants in error, was a forgery. The facts of the case, as found by the court, are very full and minute, and seem to be fairly supported by the evidence in the case. So much of them as are necessary to understand the grounds of the decision of this court are as follows : 'Weichselbaum & Tappan in the latter part of the year 1868, and the first part of 1869, were partners doing business at Forts Dodge and Darned in this State, keeping an account and depositing money with the plaintiff in error in the name of Tappan only. On the 21st of August, 1868, one Theodore Miller drew a bill of exchange on Weichselbaum & Tappan for $3000, payable at the bank (plaintiff in error) on the 1st and 4th November following, which was accepted by W. & T. on the 1st of September. On the 18th of September, Miller, being indebted to a firm in St. Louis, gave them a bill of exchange drawn by himself on Weichselbaum & Tappan, of the same tenor, for the same amount, and due at the same time, and payable at the same place as the one first' above mentioned, which purported to be accepted by Weichselbaum & Tappan. This acceptance was a forgery. This bill by indorsement became the property of the Second National Bank of St. Louis, and was by that bank indorsed and forwarded to the plaintiff in error, who received it on the 1st of October; and soon thereafter the bank sent a notice to Weichselbaum & Tappan, at Ft. Dodge, that the draft was there for collection. On the 28th of October the bank received a check from Tappan for $3,000, with instructions to pay Weichselbaum & Tappan’s acceptance for $3,000 due the 1st and 4th November. On the same day the bank cashed the check, and paid the amount of the draft to the Second National Ban]/ of St. Louis, and forwarded the draft so paid by mail to- Tappan at Ft. Dodge, which letter was received by Mr. Haight, the book-keeper of W. & T. at that place, and who attended, to'the correspondence and business of the firm at that place. Haight never informed his employers of the receipt of said draft, but forwarded it to Tappan at Fort Darned, where it was received by the book-keeper at that place as early as the middle of November, who, supposing the acceptance to be genuine did not inform either Weichselbaum or Tappan about it until it was found on the 24th February, 1869. When the draft was received at Ft. Dodge, and during most of the time till it was found, Tappan was absent at Ft. Darned or elsewhere, on business. Weichselbaum was absent in Europe from June, 1868, till the 6th of November, at which time he reached Leavenworth on his return. On the 3d of November, Scott & Oo. presented the genuine draft first mentioned for $3,000, to the bank of plaintiff in error for payment, and it was protested for want of funds, and because the bank had no instructions to pay it. On the 6th of November, Weichselbaum having reached Leavenworth on his return from Europe heard of the dishonor of this bill and made arrangements with the bank to pay it, and was then informed as to the other draft, and what had been done with it, and said it was all right. Previous to this time, while at St. Louis, he had been told of this draft and acceptance, but not that it was a forgery, but supposed both drafts had been accepted by his firm during his absence. About the 1st of March, 1869, and with diligence after it was found, Weichselbaum brought in the forged acceptance and tendered the same to the bank, which was received; and before the suit was brought a demand was made for the money. It is also found as a fact, and is apparent from the evidence, that Weichselbaum and Tappan, and the officers and agents of the bank, as well as the bank in St. Louis, and the firm who took the forged acceptance, all acted in good faith, in the whole transaction. We leave out of view the promise made by the cashier of the bank, to pay the amount of the acceptance, if it was found to be a forgery; and the fact that Lucein Scott, of the firm of Scott & Co., who held the genuine acceptance, was also president of the bank; for neither of these facts imposed any obligation to pay the money; nor is it pretended that- Scott acted in bad faith. Nor can we regard the statements of Weichselbaum made in, St. Louis to Ryan & Co., and in Leavenworth to the cashier of defendant’s hank, as of any importance; for they were made in both instances upon the false information that the acceptance was the acceptance of his firm; and as it purported to have been made while he was absent in Europe, he could not be presumed to have any personal knowledge upon the subject. Whatever significance such declarations might have had, had they in any way contributed to give credit to the bill, or have induced the bank to pay it, need not now be determined; for it is not pretended that any action of any one was in the slightest affected by the statements so made. The question then recurs: Which of these parties shall sustain the loss ? In other words, where does the law leave it? The action was for a balance due the plaintiffs from the bank. If the bank was entitled to a credit for the $3,000 paid by it on the forged acceptance, then the judgment should have been for the defendant; if not so entitled, the plaintiffs’ claim was correct, to the amount of the j udgment. If the bank was entitled to this credit, when did it become so ? Certainly not by the check of Tappan of the date of October 24th, for accompanying that check was a letter of instruction to pay therewith the acceptance of Weichselbaum & Tappan due Nov. 1st and 4th. By paying upon paper that was not W. & T.’s the bank acquired no right to the money. W. & T. had a genuine acceptance due at those dates. The letter evidently had reference to the genuine acceptance. They could not foresee that a forgery would be perpetrated; or if one was, that it would be overlooked by the bank. Undoubtedly the officers of the bank supposed the letter had reference to the acceptance then in bank, and acted on that supposition; but the mistake here, which led to all the consequences, was the bank’s mistake, and not the plaintiffs. It was the duty of the bank to know whether the acceptance was genuine or not. They took no steps to ascertain these facts,; and out of this primary negligence has the loss occurred. Up to this point no act of the plaintiffs had contributed to the loss. The forged acceptance was paid before it was due. If on the 4th of November the plamtins had been m Leavenworth, and learning of the protest of their acceptance, to meet which they had provided the funds, and had then been informed that the bank had paid out their money on a forged acceptance, and had then demanded their money at the counter of the bank, it would have been preposterous for the bank to have answered, “You have no money here; we paid it out on a forged acceptance.” Or, if when the letter containing the forged acceptance reached Fort Lamed by the middle of November, the forgery had been immediately discovered and the bank notified thereof, it can hardly be claimed that the loss would not fall on the bank. For the plaintiffs had done no act, been guilty of no negligence that would impair their rights. But it is claimed that in not discovering the forgery and returning the forged draft immediately upon its receipt, the plaintiffs by their negligence therein made themselves liable f°r the money. Good faith required the notice of the forgery to be given as soon as discovered; but what obligation' of a legal character were they under to give such notice? They were not parties to the bill. They had not paid it, nor directed it to be paid. What diligence were they bound to use in law to discover such a forgery ? In Weisser v. Dennison, 10 N. Y., 69, where checks forged by the confidential clerk of the depositor were paid by the bank, charged to the depositor in his bank book, the book balanced, and the forged checks among others returned to the clerk who examined the account at the request of the principal, and reported it correct, and the principal did not discover the forgeries until several months afterwards, when he immediately made them known to the bank, it was held that the bank could not retain the amount of the forged checks. The court said that Weisser had done nothing which facilitated or contributed to a fraud on the bank; “the most that could be said was, that he had omitted to do that which would have enabled him to put the bank on its guard against frauds, with which his name was only an accidental circumstance, to which he had in no way contributed, and against which he was under no peculiar obligation to guard the bank. Whatever loss the bank has sustained, it has suffered from its own negligence or want of skill in matters as to which, in the first instance, it only was bound to exercise skill and diligence. He had a right to assume that the bank had discharged its own duty to itself, and was not bound to conceive it possible that the bank had charged him with money which had not been paid upon his order. He was under no. contract with, the bank to examine with diligence his returned checks and hank book.” -In many respects this case.is similar to the one under consideration, especially as to the principles on which it was decided; though an element in it, as to the confidence of "Weisser in his clerk, and his reliance on his clerk’s acts, mjake that a stronger case for the bank than the present one. In Ellis & Morton v. Ohio Life and Trust Co., 4 Ohio St., 628, it was held that where money was paid on forged paper in a case in respect to which a party was bound to inquire, and where the defendants by their negligent failure to perform their duty contributed to induce the plaintiffs to act on the paper as genuine, the plaintiffs could recover, and that it was “ sufficient to give notice when the forgery was discovered.” In that case both parties were bound to exercise skill and diligence, in the examination of the paper, to ascertain whether it was genuine or not; but the plaintiffs having taken the paper on the strength of the examination made by the defendants, were held less culpable than the defendants, and entitled to recover. In Gloucester Bank v. Salem Bank, 17 Mass., 32, the following rule is laid down: “ In all such cases the just and sound principle of decision has been, that ^ the jogs can pe traced to the fau]t or negligence of either party, it shall be fixed upon- him. Generally, where no fault or negligence is imputable, the loss has been suffered to remain where the course of business has placed it.” This seems to us a just and fair exposition of the law. It is a principle of natural justice that where a loss has happened, he through whose means it happened, should sustain it, although innocent, rather than he who is not only innocent, but wholly without the imputation of negligence. In this case, the neglect- of ', the plaintiff to examine into the genuineness of the acceptance, was induced by the act of the defendants. They were not bound in law or by contract to make the examination. As to this paper, there was no privity of contract between the parties. There was no neglect in giving notice of the forgery as soon as it was discovered. The non-discovery of the fraud, and the retention of the paper, would only be evidence tending in some degree, however slight or otherwise, accoi'ding to the circumstances, to show that the parties accepted and treated the acceptance as genuine, but such an inference is wholly negatived in this case by the testimony, and the court so found. The case last cited, as well as that of the U. S. Bank v. The Bank of Georgia, 10 Wheaton, 333, involves questions as to payments made bona fide in counterfeit bank notes, purporting to be of the payee’s own issue, and received by the bank as cash, and afterwards discovered to be forged. The cases pretty strongly imply that in case of a payment of forged bank notes in such a case, and no immediate discovery and notice, the payment will be considered absolute; but in each of these cases the court said there was on the part of the bank taking the counterfeit notes, a degree of negligence which takes away all right to call on the party paying to make, good the notes. They took in payment their own notes which they were presumed to know, and which they had -greater facilities for knowing than any one else, and retained them in one case nineteen days, and in the other forty-seven days, before notice of the spurious character of the notes was given. In the. .latter case a distinction seems -to be made between banknotes, used as money, and bills of-exchange; for Mr. Justice Story observes : “ Bank notes constitute tbe currency of tbe country, and ordinarily pass as money. When they are received as payment, the receipt is always given for them as money. They are good as a tender, unless specially objected to; and they are not like bills of exchange, considered as mere securities or documents for debt.” Whether there is a distinction on this point really to be made between bank notes and commercial paper, may be doubted; and unquestionably had Weichselbaum and Tappan themselves paid the forged bill, or authorized its payment, it would have been a different case, and would have brought it within the two last cases cited; but they did neither; and they were not bound to suppose that any one had paid, without authority, a claim against them that never had an existence. When the letter covering the forged acceptance reached their clerks at Forts Dodge and Darned, they had a. right to assume it was what the bank represented it to be, and to so treat it; and this was all they did until subsequent correspondence revealed to them that they had twice been charged with $3,000, although they had given but one acceptance for that amount. Then their attention to the bill was challenged. It was hunted up, and its spurious character ascertained. It is not a case of money paid, and an attempt to recover it back. It was never paid, and in this as well as some other respects it differs from Price v. Neale, 3 Burrow, 1354. . In that case the plaintiff, upon notice being sent to him of the bill being due, sent his servant to take it up and pay it. The second bill was actually accepted by the plaintiff. Both bills were forged. Bpon the discovery of the forgery of the drawer’s name, repayment was demanded and suit brought therefor. The court held that there could be no recovery because of the neglect of the plaintiff in not ascertaining the genuineness of the bills before he paid them. We refer to this ease with some hesitation, for what it decides has been variously understood by different courts. See Smith v. Mercer, 6 Taunton, 75; Young v. Adams, 6 Mass., 87; Markle v. Hatfield, 2 Johnson, 262; U. S. Bank v. Bank of Georgia, supra. There are two reports of the case — the one cited above, and the one in 1 BL, 390. In Smith v. Mercer, Dallas states the neglect was, “ the having paid, when due diligence would have prevented such payment.” The plaintiffs in error claim that the neglect was, in not giving timely notice. We are inclined to think the first is the true ground of the decision; and if so, it is against the plaintiffs in error. It fixes the neglect upon them in the first instance, and would be fatal to their defense. The bank could not have given any legal notice of the fraudulent character of the bill, that would save any of their rights against any parties thereto, had Weichselhaum & Tappan immediately upon receipt thereof by the middle of November, discovered and given notice of the forgery; and this distinguishes this case from the many cases where the giving of such notice might have saved innocent parties thfeir recourse on others. From a careful and extended examination of the authorities, only a few of which we have mentioned, we are of the opinion that the judgment of the court below was correct. II. The action was brought in the name of Tappan, in whose name the deposits in the bank were made;. The hank, as one of the grounds of defense, set up n p > n • ti • a detect or parties, alleging that the money deposited was the money of W. & T. During the trial some testimony was given on this point, and on the hear 'ing the court found that there was a defect of parties, and allowed the petition to be amended by making W. a party plaintiff, and then entered judgment accordingly. This is in strict conformity with section 139 of the code. An examination of the record shows that this was a proper case for the application of the provisions of this section. It is apparent that the real subject of the controversy was the liability of the bank for the money deposited. There could have been no injustice in permitting an amendment that would save all the cost and labor of a re-trial.of the real issue of the case. As the defect of parties was one of the issues made by the defendants, wo think it would have been proper for the court below to have fixed some terms Up0n which the amendment should be allowed, at least equal to the costs of the defendant in sustaining that branch of its defense. At most, the amount would have been trifling; and the court trying the cause was the better judge of what that amount should be. As the court permitted the amendment without fixing any terms, we are to understand that in its judgment none were justly to be made. We shall not disturb a ruling so made on such vague knowledge as this court must possess of the terms proper to be imposed. Very little testimony was given on this point, it being, positive and not controverted, and that by witnesses necessarily examined on, the material issues. 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The opinion of the court was delivered by Six, J.: This is a novel civil service employment termination case. The primary questions are whether the plaintiff, a state classified employee whose position was declassified and terminated by the legislature, was employed by written contract and whether the plaintiffs wrongful termination claim is controlled by K.S.A. 60-511, a five-year statute of limitations. In resolving the statute of limitations issue, we consider the employment relationship of a classified civil service employee and the State. Background — The Legislative Termination The plaintiff, Lee Wright, began working in the Kansas Water Office (KWO) in 1959 and held a classified position as hydrologist in 1984. That year, the Kansas Legislature enacted S.B. 501 (K.S.A. 74-2614a), which declassified 17 KWO civil service employees and also directed their termination. Wright was among those terminated. Five years later, in Darling v. Kansas Water Office, 245 Kan. 45, 774 P.2d 941 (1989), we held that S.B. 501 was unconstitutional. Six of Wright’s KWO co-workers were the Darling plaintiffs. Wright was the “other” person referred to in the Darling opinion. 245 Kan. at 47. He did not seek and obtain reappointment with the KWO as an unclassified employee, as 10 of his co-workers did. He did not join the six Darling plaintiffs in their pursuit of relief in the courts, which they eventually obtained. Wright did nothing about his termination for four years, until the district court in Darling held that S.B. 501 was unconstitutional. The stipulated facts indicate that Wright made a conscious decision not to join his co-workers, the Darling plaintiffs. The Darling plaintiffs, in addition to the administrative appeal filed with the Board, filed a separate action in the district court against the KWO and its director, testing the constitutionality of S.B. 501. The two actions were consolidated and reached us as Darling. Wright first heard of the introduction of S.B. 501 through an announcement by the KWO Director at a staff conference in the early part of 1984. The Director advised Wright and other KWO employees not to speak with any legislators about the bill. Later, the Director called a staff meeting and informed the employees that it was beyond his authority to tell them not to talk to their legislators and that he really did not mean what he had said. Wright felt he could discuss the bill with legislators despite the Director’s directions because “the stakes were very high.” However, he elected not to do so. He did talk to a legislator at a social gathering and mentioned he felt S.B. 501 was a mistake. Because of the humiliation he felt and his belief that he could not have worked amicably with the Director, Wright would not have accepted reinstatement at the KWO so long as the Director was there. This fact was not known until Wright’s deposition in August 1990. Wright testified that since the Director has now left the KWO, he would accept reinstatement contingent upon: (1) the offered position having the same level of responsibility as the one from which he was terminated, (2) the offered position being one for which he is qualified, and (3) his supervisor agreeing to an amicable relationship. Wright believed that he had no legal recourse to the declassification of his position or his termination because these actions were accomplished through legislation. He was aware of the Board’s refusal to entertain the appeal of the Darling plaintiffs, even though their appeal was filed within 30 days of termination. Following the district court in Darlings ruling that S.B. 501 was unconstitutional, Wright appealed his termination to the Civil Service Board (Board) under K.S.A. 75-2949(f). Appeals under K.S.A. 75-2949(f), however, must be .filed within 30 days after the challenged termination. The Board dismissed Wright’s appeal on jurisdictional grounds. Wright then sought relief from the Board’s dismissal by filing a “Petition for Judicial Review” in the district court under the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Wright named the KWO as defendant. In his petition, Wright argued that the KWO was es-topped from asserting his failure to file within 30 days as a defense because: (1) The State’s own unconstitutional and bad faith conduct prevented him from filing within the 30-day period; (2) KWO’s notice of termination failed to advise him of the right to an appeal to the Board within 30 days as was required by statute; and (3) the State terminated him in a manner that would have rendered an appeal to the Board within the initial 30-day period futile because the Board would have declined jurisdiction. The District Court’s Decision The district court noted that the KWO arguments concerning the 30-day K.S.A. 75-2949(f) requirement are based on the presumption that Wright must exhaust administrative remedies before appealing. The district court concluded that exhaustion was not required in Wright’s case, reasoning: “The Kansas Civil Service Board admits to this limitation. [An administrative agency is not allowed to make final decisions on constitutionality of a statute.] In the related case brought by plaintiff’s co-workers the Board dismissed the case for lack of jurisdiction due to the fact plaintiffs were no longer classified employees and ‘because the Board had no authority to determine the constitutionality of the legislation which had ordered their termination.’ Darling v. Kansas Water Office, 245 Kan. 45, 53 (1989) (quoting the decision of the Shawnee Dist. Ct.). In the case currently before the court no administrative remedy was available to the plaintiff and therefore, he is not required to pursue an appeal before the Civil Service Board. Since plaintiff was not required to exhaust his administrative remedies the K.S.A. 75-2949(f) thirty (30) day time limit should not bar this action.” Acting sua sponte, the district court converted Wright’s administrative law appeal under K.S.A. 77-607 to a Chapter 60 civil action for wrongful termination. The district court reasoned that Wright had no administrative remedy to pursue because his claim rested on the constitutionality of S.B. 501, upon which the Board could not pass. Thus, the case moved forward not as an administrative appeal but as a contract case, with the KWO defending Wright’s legislative termination. The KWO filed a motion for summary judgment, alleging that Wright’s claim of wrongful termination was barred by a statute of limitations or laches. The KWO asserted that Wright’s claim arose out of an oral contract or, in the alternative, out of a liability created by statute. The district court held that Wright had a binding written contract with the State. Consequently, although Wright’s converted Chapter 60 civil action was filed 4 years and 122 days after termination, it was not time barred as the five-year statute of limitations, K.S.A. 60-511(1), controlled. The court awarded Wright damages for back pay, longevity pay, a health insurance differential, annual leave pay, costs for job search, and prejudgment interest. The district court also ordered reinstatement. The KWO appeals. We exercise jurisdiction under K.S.A. 20-3018(c) (a transfer from the Court of Appeals on our own motion). We reverse the district court. Wright did not have a binding written contract with the State. K.S.A. 60-511(1) does not apply. Wright’s wrongful termination claim is controlled by a three-year statute, K.S.A. 60-512(2), as “[a]n action upon a liability created by a statute other than a penalty or forfeiture.” Discussion The case was submitted to the trial court on an agreed stip ulatiori of facts and documentary evidence. We have the same opportunity as the trial court to examine and to determine what 'the facts and documentary evidence establish. Therefore, a de novo standard of review applies. Hudgens v. CNA/Continental Cos. Co., 252 Kan. 478, Syl. ¶ 1, 845 P.2d 694 (1993). We choose to decide the case as it is presented to us on appeal from the district court. We focus on the concepts of civil service, classified employee, written contract, and hmitation of actions. We hold that Wright did not have a written contract with the State, and consequently, his converted Chapter 60 civil action filed 4 years and 122 days after termination is time barred. Our disposition of the appeal by the application of K.S.A. 60-512(2), a three-year limitation statute, negates the obligation to address the numerous other contentions raised by the KWO, including the propriety of the district court’s sua sponte conversion of Wright’s administrative appeal under the KJRA to a Chapter 60 civil action. Whether Wright was employed under a written contract is relevant to the consideration of the statute of limitations question. K.S.A. 60-511(1) states: “The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.” The district court found that Wright was employed under a written contract composed of two documents. The first document was entitled “Personnel Requisition and Appointment Record.” It contains Wright’s name, address, and social security number, and it names the Kansas Water Resources Board as the employing agency. It also shows the place of work, the position number and title, salary, classification status, starting date, and various other information. The document is signed by Wright, with his oath and promise to faithfully discharge the duties of his employment, and is also signed by the executive director of the agency. The second document, entitled “Position Description,” describes the duties and responsibilities of the position to which Wright was appointed. Although we have reviewed the Kansas Civil Service Act (KCSA), K.S.A. 75-2925 et seq., in previous cases, the characterization of a classified civil service employee’s employment re lationship with the State under a breach of contract claim of wrongful termination is one of first impression. We hold that the employment relationship between the State and Wright did not arise out of a written contract. Rather, the relationship is fixed by statute. The KCSA controls a classified civil service employee’s employment status. The KCSA affords the right of continued employment in the absence of a legitimate cause for termination. The employment relationship of a classified employee to the State is one of statutory status. Our holding does not preclude the possibility that a classified civil service employee might enter into a special contract of employment with an agency for particular tasks or a particular term in exchange for separate or additional consideration. In the instant case, however, Wright alleges no special circumstances beyond the fact of his classified employment, which he contends (and the district court concluded) was grounded in a binding written contract. We disagree. : Although the Public Employer-Employee Relations Act, K.S.A. 75-4321 et seq., is not at issue in the case at bar, K.S.A. 75-4321(a)(4) provides a legislative signal for the characterization of public employment: “(a) The legislature hereby finds and declares that: (4) there neither is, nor can be, an analogy of statuses between public employees and private employees, in fact or law, because of inherent differences in the employment relationship arising out of the unique fact that the public employer was established by and is run for the benefit of all the people and its authority derives not from contract nor the profit motive inherent-in the principle of free private enterprise, but from the constitution, statutes, civil service rules, regulations and resolutions.” (Emphasis added.) See Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 803, 667 P.2d 306 (1983). Other jurisdictions considering the issue have reasoned that the terms and conditions of employment in the civil service are not determined by a written contract between the State and the employee. Rather, the statutes and regulations of the appropriate agency or agencies control the relationship. See Matter of Dower v. Poston, 76 Misc. 2d 721, 725, 351 N.Y.S.2d 272 (1973); Per sonnel Division v. St. Clair, 10 Or. App. 106, 110, 498 P.2d 809 (1972). In Kemmerer v. County of Fresno, 200 Cal. App. 3d 1426, 246 Cal. Rptr. 609 (1988), the plaintiff was dismissed from a'position with the Fresno County Department of Social Services. He appealed and ultimately was reinstated. He filed a claim for damages, alleging breach of an express and implied contract of employment. The court determined that Kemmerer had no contract with the county: “Plaintiff’s causes of action predicated upon the existence of a contract between him and the County are grounded upon the false premise that he served under a contract of employment which included an implied covenant of good faith and fair dealing. However, \ . . it is well settled in California that public employment is not held by contract but by statute. . . . Nor is any vested contractual right conferred on the public employee because he occupies a civil service position since it is equally well settled that “[t]he terms and conditions of civil service employment are fixed by statute and not by contract.” [Citations omitted.] Indeed, “[t]he statutory provisions controlling the terms and conditions of civil service employment cannot be circumvented by purported contracts in conflict therewith.” ’ ” [Citations omitted.] 200 Cal. App. 3d at 1432. Our recognition of the impact of the KCSA on Wright’s employment is in accord with text authorities in the public employment law area. “Most courts have held that public employment is a matter of status, not contract. . . . Attempts to utilize such concepts as express contract, oral representations as contracts-in-fact, promissory estoppel, fraudulent inducement, and handbooks and manuals (to show modifications of at-will employment status) have foundered because job security is deemed to be accorded only by operation of law.” Silver, Public Employee Discharge and Discipline § 1.4, p. 1-10 (1989). Silver further observes: “The complex questions presented by this controversial wing of wrongful discharge law are somewhat reduced in public employment situations because courts generally hold that government employment is a matter of statutory status, not contract, even though particular employees or groups of employees may indeed have contracted for their services.” Silver, § 21.1, p. 21-1. We discussed the nature of the KCSA in Kansas Dept. of SRS v. Goertzen, 245 Kan 767, 780, 783 P.2d 1300 (1989). The legislature adopted the KCSA to provide all citizens an equal opportunity for public service. The KCSA also established conditions of service and created a department of administration. See K.S.A. 1993 Supp. 75-3702a. The KCSA extended to the Director of Administration the power to recommend rules and regulations, including issues involving standards of performance, leaves of absence, transfers, layoffs, vacations, hours of work, and other conditions of employment. 245 Kan. at 780. In Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, Syl. ¶¶ 5, 6, 562 P.2d 117 (1977), K.S.A. 1979 Supp. 75-2949 was interpreted to require that a valid cause be present to justify termination of a civil service employee. The KWO observes that Wright’s theory rests upon the K.S.A. 75-2949(a) good cause requirement. The KWO reasons that but for the statute, Wright could be terminated for any or no reason. Thus, according to the KWO, Wright’s claim is based solely on the violation of the statute. Consequently, the KWO maintains that Wright’s cause of action can be interpreted as “[a]n action upon a liability created by a statute” that is barred by the three-year statute of limitations. K.S.A. 60-512(2). We agree. A liability is “created by a statute” for purposes of K.S.A. 60-512(2) where liability for resultant damages would not arise but for the statute. A statute that merely provides a procedure for obtaining relief does not trigger K.S.A. 60-512(2); it must provide a new substantive right that does not otherwise exist at common law. See Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 633, 556 P.2d 199 (1976); Hollinger v. Dickinson County, 115 Kan. 92, 95, 222 Pac. 136 (1924); Pretzel v. Fiss, 84 Kan. 720, 723, 115 Pac. 536 (1911); Pecenka v. Alquest, 6 Kan. App. 2d 26, 28, 626 P.2d 802, rev. denied 229 Kan. 670 (1981). In Alquest, for example, the Court of Appeals held that the three-year limitations period of K.S.A. 60-512(2) applied to the plaintiffs’ action under the veteran’s preference law, K.S.A. 73-201 et seq. The Alquest plaintiffs, both of whom were veterans, were discharged by Social and Rehabilitation Services (SRS) when their jobs were eliminated because of budgetary considerations. They sued the State, SRS, and several SRS employees, alleging that their veteran’s preference rights were violated. The veteran’s preference law requires state and city departments to retain equally qualified vet erans over non-veterans when making reductions in force. The Court of Appeals concluded that the veteran’s preference law creates an implied civil right of action for damages where none would otherwise exist, and therefore this action was subject to the three-year statute of limitations under K.S.A. 60-512(2). See Pecenka v. Alquest, 232 Kan. 97, 652 P.2d 679 (1982), for the sequel dismissing the veterans’ claims on the basis of jurisdiction. Wright, in his amended pretrial questionnaire, states his claim as one for wrongful termination. He contends that he was terminated without a merit-based reason, contrary to the provisions of the KCSA. He was not terminated because of deficiencies in his work performance (K.S.A. 75-2949e) or because of conduct detrimental to State service (K.S.A. 75-2949f). Wright argues that his contract of employment included his rights under the KCSA. Consequently, the contract was breached by his termination without good cause and a hearing. The focus of his claim is that as a classified civil service employee, he held a right not to be terminated without a hearing and without good cause. He would not have had these rights but for the KCSA. Thus, his wrongful termination action clearly relies on the KCSA to provide the basis of liability he seeks to impose on the KWO. K.S.A. 75-2949(a) provides that “no permanent employee in the classified service shall be dismissed . . . for . . . nonmerit reasons.” Personnel administration actions “shall be based on merit and fitness to perform the work required and shall provide fair and equal opportunity for public service.” K.S.A. 75-2925. The grounds for dismissal for deficiencies in work performance are set forth in K.S.A. 75-2949e, while K.S.A. 75-2949f lists examples of personal conduct detrimental to the State. Wright, on the other hand, was legislatively dismissed and reasons that because we declared S.B. 501 unconstitutional in Darling, his relationship to the State was restored to that of a statutorily protected classified employee. We agree with Wright that he was wrongfully terminated. Unfortunately, he waited too long to seek relief. The case at bar presents a unique factual setting. In the vast majority of civil service employment termination cases, exhaustion of administrative remedies is required under K.S.A. 75-2949(f) and, thus, the statute of limitations for an independent action is not a factor. In Goertzen,we observed: “By creating a civil service law that granted permanent status to a state employee, the Kansas Legislature gave the employee an interest in continued employment that the state cannot infringe arbitrarily.” 245 Kan. at 780. Wright’s permanent status and interest in continued employment was created by the KCSA. The State’s liability as asserted by Wright arises from the KCSA. We hold that Wright’s breach of employment contract claim for wrongful termination as converted by the trial court and pursued by Wright is an action “upon a liability created by a statute” and consequently must have been filed within three years of his termination. K.S.A. 60-512(2). Reversed.	[ -112, 110, -36, 76, 12, -32, 50, 18, 83, -91, -91, 83, -19, -125, 29, 121, 91, 37, -48, 123, -27, -78, 115, -120, 114, -13, -39, 92, -65, 95, -12, 94, 76, 48, 10, -43, -26, -62, -51, -44, -126, 7, 8, -8, 80, -64, 60, 123, -78, 95, 113, -66, -77, 42, 24, -61, -24, 48, -37, 45, 65, -77, -82, -107, 94, 16, -77, 5, -98, 7, -64, 47, -104, 48, -95, -8, 115, -90, -62, -20, 7, -119, 36, -90, 98, 55, 12, -25, -4, -8, 4, -42, -115, -92, -104, 88, 99, 13, -100, -99, 60, 22, 7, -4, -25, -124, 31, 44, -116, -114, -58, -79, 79, 126, -106, -125, -17, -127, 1, 100, -121, -94, 93, 71, 51, 23, -26, -44 ]
The opinion of the court was delivered by Sanford, J.: This was an action brought by Justus Schuck, and others, against Wm. IT. Haight and James Eyburn, to recover the sum of $495.75 for work and labor done and performed by the said plaintiffs for and on account of the said Haight and Eyburn. The work was alleged to have been done upon three buildings, belonging to said parties last named; and the plaintiffs sought to enforce and foreclose an alleged mechanics’ lien for the abovenamed sum, which they claimed to exist in their favor against said buildings and the lot on which they were erected. No answer was filed by Haight or Eyburn, and a default was entered as to them. After a finding of the facts of the case, or such portion of them as was covered by special interrogatories submitted to a jury duly empanneled therein for their decision, the court proceeded to find, and thereupon stated, the conclusions of law as follows: “ 1. That the plaintiffs had no mechanic’s lien, as set up in their said petition.” “ 2. That the plaintiffs are entitled to a personal judgment against said Eyburn and Haight on the default against them.” Judgment was accordingly rendered against the said Eyburn and Haight, for the sum found to be due to the said plaintiffs by the jury, as by their said petition alleged. To all of these proceedings exceptions were duly taken; and as to Haight the case is brought here for review. By virtue of a summons which was issued in said ac tion and served on the said William H. Haight, June 1st, 1868, he was required to answer the petition of the plaintiffs on the 22d of June, 1868. This he failed to do; nor did he file such answer at any other time, or apply or make any attempt to do so, until during the progress of the case, to-wit, on the 23d of February, 1869. He was therefore in default after the said 22d of June, unless by reason of some order of the court, or by reason of some action on the part of the plaintiff’, he was relieved from such default. The record and bill of exceptions show that on the 25th of May, 1868, and before any summons had been served on Haight, and before he had made 0 any appearance to the action, an order was macle by the court, and entered on the journal, granting leave to the plaintiffs “ to amend their petition and make new parties defendant therein, in ten days from the date ” thereof; and “ that the time for the defendants to answer said amended petition be fixed at twenty days after the filing of the same.” At the most, under this order, the plaintiffs would have had only until June 4th, 1868, to file such amended petition. But being so filed, that is, within the time fixed, and notice there'of having been given to the defendants, as required by section 144 of the civil code, Comp. Laws 1862, such defendants would have had only until the 24th of June, 1868, to file their answer. If however, no notice were given to the defendants of such filing of an amended petition, and such notice was not in some manner waived, or the want thereof supplied, x x there would be no default on the part of such defendants on a failure to answer. But if the plaintiffs failed to file such amended petition within the time fixed by the court, they would then have bad no right and should not have been allowed to file it at all, unless by the further order of the court. And in case of such failure, and no further order beiüg obtained, they would have been referred to, and must have relied upon their original petition. To the latter the defendants would have been required to answer within the time they would have had to answer an amended petition, unless the court should by order extend such time» It is claimed on behalf of the plaintiff here, that the plaintiffs below did not amend their petition by the interlineation of the name or names of certain party or parties defendant; that no such amended petition was filed, nor was the original petition so interlined, refiled; that no notice of the amendment by interlineation was given to Haight, and that as a consequence he was not rightfully in default, as he was adjudged to be by the court. As to the fact that no amended petition was filed, there is no doubt; nor is it shown that notice of an amendment otherwise made, was ever given. Then, as to the other points, the record must be examined. When liberally construed, the record affords strong inference that the amendment by interlineation, which is complained of, was in fact made. Such inference is to be drawn from the fact of leave to amend being asked by the plaintiffs, and also from the fact that the defendant Haight, by his counsel, appeared and moved the court to strike the plaintiffs’ petition from the files, “ because of amendments being made to said petition without authority of court, and because no amended petition had been filed.” Ic is also suggested from the fact that the copy of the petition as shown in the record, when taken in connection with the certificate of the clerk, shows that an interlineation was made, and also from the further fact that the interlined name in the record of such petition does not appear in either of the first two summonses which were issued in the case. But from the sources named, and they include all that materially bear upon the point in question, as disclosed by the record, nothing conclusive is to be derived. It frequently happens in practice that leave to amend is taken by a party, of which such party never avails himself. Attorneys also, and in good faith, often apply to the courts for orders, to which they are not entitled, and which it would be error to grant. The interlineation in the. record of the petition, even, when considered in connection with the certificate of the clerk, is only suggestive, and really proves nothing. It is not shown when such interlineation in the original petition was made; and for all that affirmatively appears, it might have been so made before or upon the filing of such petition in the clerk’s office, and thus, before any summons was issued thereon. Then as to the point in regard to the summons itself. That also is merely suggestive, and easily explained away. It is of very common occurrence that when there are sevéral parties defendant to a suit, several writs of summons are issued, and no two contain the names of all, or of the same parties to be served. It is to be seen, in view of the foregoing considerations, that it is only by inference -that we are able to find from the records that the acts complained of, as to the amending of the petition, assuming that they were erroneous, were in fact allowed or done, as alleged by the plaintiff in error. This is not sufficient; and we do not think ourselves authorized to pass upon matters alleged as error in the proceedings of the court below, when the real facts relative thereto are left so much in doubt. We^cannot therefore say that the entering this default against' the plaintiff in error was erroneous. II. As to the application to set aside the default and allow the plaintiff in error to file his answer which is set out i. DEFAUM-set- the record, that was a matter resting to a orét:o”n'oí?oourt. very great extent in the sound discretion of the court below; and more especially ought we to regard it as beyond our province to inquire into, inasmuch as there was no showing upon the merits, except as appeared in the answer; nor was there anything offered tending to excuse the default. It is therefore impossible to know the precise grounds upon which the court based the refusal complained of. • III. But it is contended upon other grounds, that the court erred in rendering judgment against the plaintiff in error. It is claimed that the action having ° been brought to foreclose an alleged mechanic’s lien under the provisions of chap. 137, Comp. Laws, 1862, and the court having found “ that the plaintiffs had no mechanic’s lien as set up in their petition,” the whole case thereby failed, and that no personal judgment could follow such finding. ¥e think we can appreciate the industry and tact of the plaintiff in error, as indicated by his argument upon this part of the case. Such argument, and the authorities relied on to support it, ¿re perhaps quite conclusive as to a similar case arising under the laws and practice of the States in which the decisions were made. But the same result does not follow when the question is considered in the light of the provisions of our mechanics’ lien law. The principal part of the decisions quoted from and referred to in the counsel’s brief, were made by the New York courts; and to these we have given especial attention. It is probable that they are in accordance with the law of that State. But in comparing the New York statute with that of our own State upon the subject of mechanics’ liens, we find that there is but little in common between the two. It will not be important however to point out or dwell upon the differences' which we discover, but it will better serve our purpose in this case to call attention to some of the provisions of our lien law as seem to show that the framers thereof intended that in cases of this kind a different rule should prevail here from that which has obtained in New York, as respects the recovery of judgment. Section 29 contains a provision to the effect, that in case the proceeds of the sale shall not be sufficient to pay the claims adjudged against the defendant in a suit brought to enforce such lien, an execution may issue in favor of any creditor whose claim is not satisfied, for the balance due as upon a judgment in actions of debt. This provision very clearly shows that this proceeding is not under our law intended to be “ a proceeding in rem,” merely, as it has been held to be under the New York law; but that it goes against the debtor as well. How else could an execution be authorized to go against any other property of the debtor than the specific property against which the lien exists, and is sought to be enforced ? And yet under the terms of this provision, such execution would lie against any and all property of the debtor not exempt by law, and until it was fully satisfied. And it makes no difference how small a portion of the creditor’s claims may have been satisfied out of the lien property, or how large the “ balance due ” may be, the debtor’s other property must be held for its payment, It seems to us that the principle here recognized yrould authorize a personal judgment against the defendant debtor,. and hold his unexempted property subject to its satisfaction, even if the lien should wholly fail. Section 27, also, fully recognizes the right of a plaintiff in this proceeding to recover a personal judgment against the defendant debtor, and it provides that the judgment so rendered shall be a lien against the property of the owner, that is, the owner of the property subject to the lien; or in other words, the debtor, as judgments in actions of debt, and that executions may issue thereon in the same manner as upon such other judgments. Other considerations might be advanced as bearing upon the point under examination, but it seems unnecessary to do 'so. The provisions already referred to make it sufficiently certain that the legislature in passing the mechanics’ lien law, intended to provide that a personal judgment against the debtor ana owner of the property, subject to the lien, might be rendered. , Several other points are made by the counsel for plaintiff in error, but they do not seem to be important as furnishing any sufficient reason why the judgment below should not stand, or otherwise. The judgment must be affirmed. All the justices concurring.	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The opinion of the court was delivered by Abbott, J.: This case is filed in the United States District Court for the District of Kansas and comes to this court by certification under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Judge Kathryn H. Vratil certified to this court the following question: Where an employee-at-will claims that an employer terminated his or her employment in retaliation for the exercise of statutory rights under die Workers’ Compensation Act, K.S.A. 44-501 et seq., and that he or she is therefore entitled to maintain a cause of action for wrongful discharge under Kansas law, is plaintiff required to prove that claim by clear and convincing evidence? Highly summarized from the facts given by the certifying court, the facts are as follows: Plaintiff Emma Tovar began working for defendant IBP, Inc., in 1975. Plaintiff Amoldo Ortega began working for IBP in 1988. Both plaintiffs were employees-at-will. Both were injured on the job, Tovar in April 1989- and Ortega in May 1990. Tovar filed a workers compensation claim in August 1989 and Ortega filed a workers compensation claim in November 1990. Both plaintiffs were in the care of a physician and both complained of continued pain. IBP placed Tovar on light duty and in a position within her physical capabilities after she suffered a back injury, but she eventually obtained temporary total disability benefits and was off work completely. She returned to work but then received a series of medical excuses for four- to six-week periods and was again off work completely. In April 1991, Tovar’s physician gave her a six-month off-work slip. IBP questioned why Tovar had been and would be off work for so long, and eventually Tovar’s physician released her on May 31, 1991, for part-time work. IBP informed Tovar’s attorney that she was to report to work on June 17, 1991, but this date was later changed to July 1, 1991. Tovar was aware that she was to begin work on that date, but she failed to report to work on that date. There is some dispute as to whether she ever reported for work after July 1, 1991. IBP ultimately gave Tovar another deadline by which to return to work, August 16, 1991, which was in turn extended to August 19, 1991. When To-var failed to report on that date, IBP terminated her employment. IBP contends the termination was due to “job abandonment.” After an injury to his shoulder, Ortega was placed in a restricted-duty job where he would only use one arm. He later un derwent surgery on his shoulder. On November 8, 1990, Ortega’s one-arm restriction was lifted and he was permitted to use his injured arm as long as he did not raise it over shoulder level or lift more than five pounds. Because IBP had no such restricted-duty position available, it placed Ortega on a medical leave of absence, during which time he received temporary total disability benefits. On January 7, 1991, Ortega’s physician determined that he could lift up to 10 pounds with his injured arm. Ortega returned to work on January 14, 1991. On May 13, 1991, Ortega was assigned to the dew claw machine in keeping with his medical restrictions. He worked the machine that day with no complaints. On May 14, 1991, he was given an unscheduled break because the machine broke down. After resuming work, he requested a break because his hands were hurting. His supervisor declined the request. Ortega ceased working his position and refused to resume work when requested. Ortega was taken to a supervisor’s office, where a verbal altercation ensued. Ortega was suspended at that time. On May 15, 1991, the IBP personnel director interviewed Ortega and reviewed his file. On May 16, 1991, IBP terminated Ortega. IBP contends Ortega was terminated for misconduct and insubordination. The plaintiffs have included a substantial statement of facts in their brief, providing facts not indicated in the certifying court’s statement of facts. The plaintiffs also challenge the propriety of an evidentiaiy ruling made by the certifying court. The defendant filed a motion to strike the facts portion of the plaintiffs’ brief. The motion was denied subject to further consideration at oral argument and final submission. Because the question before this court, involves a question of law not related to the facts of one particular case, the plaintiffs’ statement of facts is not relevant to the áppeal. The propriety of the certifying court’s findings of fact and evidentiaiy rulings is not before this court. If either party wishés to add facts to those the certifying federal court furnishes this 'court, any changes must be made in the federal court. The same rule applies to evidentiary rulings made by the federal court. This court permitted amicus curiae briefs to be filed by the Kansas Trial Lawyers Association and the Kansas Association of Defense Counsel. Kansas has long adhered to the doctrine of employment-at-will. The employment is terminable at the will of either the employer or the employee. Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, Syl. ¶ 1, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990). “[A]n employer may discharge his ‘at-will employee’ for good cause, for no cause, or even for a wrong cause, without incurring liability to the employee for wrongful discharge.” Morriss v. Coleman Co., 241 Kan. 501, 508, 738 P.2d 841 (1987). However, the doctrine of employment-at-will has been gradually eroded in Kansas and in other states. In Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), the Court of Appeals recognized the tort of retaliatory discharge. “[T]he discharge of an employee in retaliation for filing a workmen’s compensation claim is actionable at law and may support an award of both actual and punitive damages.” 6 Kan. App. 2d 488, Syl. ¶ 7. “The Workmen’s Compensation Act provides efficient remedies and protection for employees, and is designed to promote the welfare of the people in this state. It is the exclusive remedy afforded the injured employee, regardless of the nature of the employer’s negligence. To allow an employer to coerce employees in the free exercise of their rights under the act would substantially subvert the purpose of the act.” 6 Kan. App. 2d at 495-96. Since Murphy, the tort of retaliatory discharge has been expanded beyond discharge in retaliation for filing a workers compensation claim. In Coleman v. Safeway Stores, Inc., 242. Kan. 804, Syl. ¶ 3, 752 P.2d 645 (1988), this court held that “[allowing an employer to discharge an employee for being absent or failing to call in an anticipated absence as the result of a work-related injury allows an employer to indirectly fire an employee for filing a workers’ compensation claim, a practice contrary to the public policy of this state.” Thus, even where the employee had not yet filed a workers compensation claim, an employer is prohibited from firing an employee who is absent from work due to a work-related injury and who might- file a workers compensation claim. This court also held that an action for retaliatory discharge existed notwithstanding that a collective bargaining agreement protected the worker from such discharge, overruling prior decisions to the contrary. 242 Kan. 804, Syl. ¶ 4. Thus, the tort of retaliatory discharge applies to both at-will employees and to employees covered by a collective bargaining agreement. The same day the decision in Coleman was filed, this court recognized the tort of retaliatory discharge for “whistle-blowing.” Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988). Noting that at-will employees are statutorily protected from discharge in certain situations, such as where the employee reports child abuse, reports abuse of certain adults in need of care, testifies before the Secretary of Human Resources, or reports unsafe or unlawful working conditions to the Secretary of Human Resources, this court held that at-will employees are also protected from discharge in retaliation for reporting Medicaid fraud. This court recognized the public policy of encouraging citizens to report crimes and held that public policy also “requires that citizens in a democracy be protected from reprisals for performing their civil duty of reporting infractions of rules, regulations, or die law pertaining to public health, safety, and the general welfare.” 242 Kan. at 899-900. Thus, the “termination of an employee in retaliation for the good faith reporting of a serious infraction of such rules, regulations, or the law by a co-worker or an employer to either company management or law enforcement officials (whistie-blowing) is an actionable tort.” 242 Kan. at 900. The Court of Appeals recognized the cause of action where an employee was discharged when the employer believed she was the source of an uncomplimentary newspaper article. Pilcher, 14 Kan. App. 2d 206. The court held that even though the information allegedly reported to the newspaper did not show that the employer violated the law, the employers actions as set forth in the article were “certainly sufficiently harmful to the public interest to qualify it as the basis for a claim of retaliatory discharge for ‘whisde-blowing.’ ” 14 Kan. App. 2d at 213. In Brown u. United Methodist Homes for the Aged, 249 Kan. 124, 135, 814 P.2d 72 (1991), this court discussed the exception to the employment-at-will doctrine which permits “suits of a tort nature for retaliatory discharge based on the theory that dismissal of employees for reasons, violative of a particular public policy are actionable. Conduct of an employer violative of public policy and giving rise to a cause of action has been recognized when an employee is discharged in retaliation for opposing an illegal or unethical activity of the employer, in retaliation for filing workers compensation claims, in retaliation for exercising rights under labor-management relations statutes, as a penalty for refusing to take a polygraph exam, as a penalty for taking time to serve on jury duty, and for various other violations of public policy interests. [Citation omitted.]” This court also recognized an exception to the employment-at-will doctrine based upon an implied contract theory. In Brown, the plaintiff had alleged that he was discharged both in retaliation for filing a workers compensation claim and in violation of an implied contract. The Court of Appeals took the tort of retaliatory ’discharge yet a step further in Marinhagen v. Boster, Inc., 17 Kan. App. 2d 532, Syl. ¶ 5, 840 P.2d 534 (1992), rev. denied 252 Kan. 1092 (1993), stating: “When a married couple both work for the same employer, and one exercises his or her rights under the Workers Compensation Act following an on-the-job injury, the employer may not retaliate against the non-injured spouse by terminating him or her from employment any more than the employer can retaliate against the injured spouse. To allow such would frustrate the purpose of our opinion in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), to protect employees by allowing them to freely exercise their rights under the Act.” Thus, it is clear that this state has recognized exceptions to the doctrine of employment-at-will when an employee is discharged in contravention of public policy. The question before this court is this: What is the standard of proof required to prevail in an action for retaliatory discharge? Generally, the standard of proof in a civil action in Kansas is proof by a “preponderance of the evidence.” Cf. In re Estate of Stratmann, 248 Kan. 197, 202, 806 P.2d 459 (1991); State v. Parson, 15 Kan. App. 2d 374, 380, 808 P.2d 444 (1991). A preponderance of the evidence standard is required to obtain workers compensation benefits. K.S.A. 44-501(a); K.S.A. 44-508(g). The standard is also used to disqualify a former employee from unemployment benefits. National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 687, 772 P.2d 786 (1989). Several actions, however, require proof by clear and convincing evidence. Because there is a presumption of honesty and fair dealing, the clear and convincing evidence standard is applied in actions for fraud. See, e.g., Newell v. Krause, 239 Kan. 550, 722 P.2d 530 (1986). Clear and convincing evidence is required to rebut the statutory presumption that the useful life of a product is 10 years, although only a preponderance of evidence is needed to survive a summary judgment motion. K.S.A. 1993 Supp. 60-3303(b)(1); Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, Syl. ¶ 5, 845 P.2d 65, rev. denied 252 Kan. 1091 (1993). Clear and convincing evidence is also required, for example, in guardianship proceedings, K.S.A. 59-3013; for mental illness commitments, K.S.A. 1993 Supp. 59-2917; in attorney discipline proceedings, Supreme Court Rule 211(f) (1993 Kan. Ct. R. Annot. 178); to determine the existence of an agency relationship, Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 827 P.2d 24 (1992) (also phrased as "clear and satisfactory evidence”); to void a written consent to adoption, K.S.A. 1993 Supp. 59-2114; and to prevail on a claim for punitive damages, K.S.A. 1993 Supp. 60-3701(c). In Palmer, 242 Kan. 893, this court stated that retaliatory discharge for whistle-blowing must be proven by clear and convincing evidence: “To maintain an action in tort for retaliatory discharge for ‘whistle-blowing’, an employee has the burden of proving by clear and convincing evidence, under the facts of the case, a reasonably prudent person would have concluded the employee’s co-worker or employer was engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare; the employer had knowledge of the employee’s reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report. However, the whistle-blowing must have been done out of a good faith concern over the wrongful activity reported rather than from a corrupt motive such as malice, spite, jealousy or personal gain.” 242 Kan. 893, Syl-. ¶ 3. At least one federal district court in Kansas has applied this court’s statement in Palmer of a clear and convincing evidence standard for whistle-blowing cases to actions for wrongful discharge in retaliation for filing a workers compensation claim. In the related cases of Roskob v. IBP, Inc., 810 F. Supp. 1229 (D. Kan. 1993), and Madrigal v. IBP, Inc., 811 F. Supp. 612 (D. Kan. 1993), Judge Belot applied the clear and convincing standard based on this court’s language in Palmer. Roskob was injured on the job and alleged that she was fired in retaliation for intending to file a workers compensation claim, and Madrigal, Roskob’s daughter, alleged that she was fired in retaliation for her mother’s intent to file a workers compensation claim. Judge Belot granted IBP’s motions for summary judgment in both cases, finding that neither Roskob nor Madrigal could sustain the clear and convincing burden of proof. Further, the Court of Appeals in Pilcher, 14 Kan. App. 2d at 214, noted that the trial judge instructed the jury that the plaintiff was required to prove “ ‘by clear and convincing evidence that she was discharged for filing a claim under the Workers’ Compensation Act.’ ” Although the court did not address the propriety of the clear and convincing standard in workers compensation retaliation cases, the court implicitly approved application of that standard. There are two questions necessary to the resolution of the certified question in this case. First, does the same standard of proof apply in both whistle-blowing retaliation cases and workers compensation retaliation cases? Second, if the same standard of proof does apply, what is that standard? The plaintiffs contend that whistle-blowing retaliation implicates different concerns than workers compensation retaliation. They argue that in whistle-blowing cases the employee has taken some kind of affirmative action in choosing to report a co-employee’s or an employer’s violations, whereas an employee filing a workers compensation claim has not taken affirmative action because he or she is merely seeking compensation for a work-related injury not his or her fault. The defendant responds that, like the whistle-blower, an employee who files a workers compensation claim has also taken affirmative action in deciding to file the claim. The defendant also notes that the rationale for both whistle-blowing retaliatory discharge actions and workers compensation retaliatory discharge actions is the same: both are judicially-recognized exceptions to the employment-at-will doctrine based on public policy. It therefore contends that the same standard of proof should be required in both types of actions. We agree. Both whistle-blowing and workers compensation retaliatory discharge actions are exceptions to the very well-established doctrine of employment-at-will. Both are tort actions for the same type of conduct of the employer: firing an employee in retaliation for something the employee has done. It is true that a workers compensation retaliation case stems ultimately from an employee’s on-the-job injury which is normally not the employee’s fault. But a whistle-blower also has no control over the fact that his employer or a co-worker has engaged in illegal or other unacceptable practices. Further, although the employee’s claim for workers compensation benefits seems to more directly benefit only the employee, whereas the whistle-blower is taking action to benefit a greater part of the community, the Court of Appeals in Murphy, 6 Kan. App. 2d at 495-96, recognized that workers compensation is “designed to promote the welfare of the people in this state.” The tort of wrongful discharge in retaliation for filing a workers compensation claim is based on the same public policy as the whistle-blowing retaliatory discharge tort. In recognizing the whistle-blowing retaliatory discharge tort in Palmer, this court was merely extending the public policy of Murphy to other situations. Both exceptions to the employment-at-will doctrine developed to control the actions of employers which violate public policy. An employer violates public policy when it fires an employee for whistle-blowing or for filing a workers compensation claim. We find no justification for applying different standards of proof in whistle-blowing and workers compensation retaliatory discharge cases. The basis of both workers compensation retaliation cases and whistle-blowing retaliation cases is the employer’s bad motive in discharging the employee. Both types of retaliatory discharge actions should require the same standard of proof. The next question, then, is what standard of proof is required? As discussed above, this court in Palmer, 242 Kan. 893, required that whistle-blowing retaliatory discharge actions be proven by clear and convincing evidence. The defendant and the Kansas Association of Defense Counsel (KADC) urge this court to apply that standard to workers compensation retaliation cases. The plaintiffs and the Kansas Trial Lawyers Association (KTLA), on the other hand, urge this court to apply a mere preponderance of evidence standard. The KTLA notes that the standard of proof was not at issue in Palmer, and it urges this court to consider the statement that clear and convincing evidence is required as dicta. The Palmer court engaged in no discussion about why a clear and convincing standard of proof, rather than the typical preponderance of the evidence standard, was utilized! The plaintiffs note that retaliatory discharge cases require plaintiffs to prove their cases by circumstantial evidence because the employer seldom admits to a retaliatory motive in discharging an employee. They contend that a higher standard of proof is inconsistent with proving claims by circumstantial evidence. Requiring clear and convincing evidence will erode an employee’s right to sue for retaliatory discharge, and the tort of retaliatory discharge is narrow enough without requiring a higher standard of proof. The plaintiffs insist that there are no good reasons for requiring a higher standard. The plaintiffs stress that a higher burden becomes especially difficult when employees are not permitted to present evidence that a particular employer had a pattern of discharging employees in retaliation. They state, “In the instant case, the district court has barred any pattern and practice evidence” and they cite numerous cases which hold that evidence of an employer’s pattern of retaliatory conduct is admissible. We emphasize again that the certifying court’s evidentiary rulings are not before this court. Evidentiary rulings are made on a case-by-case basis. Where, as here, this court is setting forth a rule of law to be followed in all cases of retaliatory discharge, consideration of the evidentiary rulings in one such case is inappropriate. The KTLA joins the plaintiffs in urging a preponderance of the evidence standard. It encourages this court to adopt a standard of proof consistent with that in discrimination cases. It also notes that a clear and convincing standard is difficult for juries to understand. Further, the KTLA urges in the interest of fairness that this court adopt the preponderance standard because retaliatory discharge evidence consists primarily of circumstantial evidence and a higher standard makes retaliatory discharge claims difficult to prove. The defendant suggests that a clear and convincing evidence standard is not too difficult. It stresses that “clear and convincing evidence” is a quality of evidence, not a quantity of evidence. It also notes that a standard of clear and convincing evidence does not preclude proof by circumstantial evidence. The defendant urges this court to balance “the interest of the employee and the interest of the employer who is at risk of being sued by every employee who has been terminated and coincidentally has filed a workers’ compensation claim.” It emphasizes the strong status of the employment-at-will doctrine in Kansas. Because retaliatory discharge is based on the employer’s intent and not on the employer’s negligence, it should require a higher standard of proof. The defendant also suggests that because the plaintiffs here seek punitive damages in addition to compensatory damages, and because punitive damages require proof by clear and convincing evidence, the plaintiffs have somehow accepted the burden of proving retaliatory discharge by clear and convincing evidence. This suggestion is entirely untenable. The KADC joins the defendant in urging this court to adopt the standard of clear and convincing evidence. The KADC, like defendant, claims that an easy standard of proof will amount to a guarantee of employment for injured workers. It also posits that utilization of the clear and convincing standard in other cases has produced good results. The plaintiffs and defendant also engage in an exhausting discussion and comparison of the treatment of retaliatory discharge actions in other states and the standard of proof other jurisdictions require in such cases. The plaintiffs cite cases from Illinois and Indiana, two jurisdictions relied upon by the Murphy court in recognizing for the first time the tort of retaliatory discharge in Kansas. Both of these states utilize a preponderance of the evidence standard. See Netzel v. United Parcel Service, Inc., 181 Ill. App. 3d 808, 812, 537 N.E.2d 1348, lv. to appeal denied 127 Ill. 2d 620 (1989); Peru Daily Tribune v. Shuler, 544 N.E.2d 560, 564 (Ind. App. 1989). In Netzel, the court noted that retaliatory discharge cases are most similar to breach of employment contracts by wrongful discharge and held that the traditional tort analysis should be applied to retaliatory discharge cases. The court thus held that only a preponderance of evidence was required. 181 Ill. App. 3d at 812. In Peru Daily Tribune, the question before the court was whether there was error in a jury instruction which did not contain “but for” language, although the “but for” test was the test adopted for retaliatory discharge cases. The court, although not discussing the standard of proof required in retaliatory discharge cases, approved a jury instruction which required that the retaliatory discharge be proven by a preponderance of the evidence. 544 N.E.2d at 564. Further, the plaintiffs point out that the New Mexico Supreme Court in 1989 stepped back from its earlier holding that retaliatory discharge must be proven by clear and convincing evidence and changed the standard to a preponderance of the evidence. Chavez v. Manville Products Corp., 108 N.M. 643, 777 P.2d 371 (1989). There, the court held that because the tort of retaliatory discharge is the sole exception to the employment-at-will doctrine in the state, “requiring the at-will employee to show the discharge contravened a clear mandate of public policy . . . sufficiently limits the exception to at-will employment.” 108 N.M. at 649. Further, the court stated that, because retaliatory discharge is an intentional tort, “the standard of proof required in retaliatory discharge cases should be consistent with the majority of other intentional torts — proof by a preponderance of the evidence.” 108 N.M. at 649. Both the plaintiffs and the defendant spend a substantial portion of their briefs discussing the language other jurisdictions employ in describing what must be proven to succeed in a retaliatory discharge action. They cite various jurisdictions which have held that retaliation must be the “sole” reason for discharge, that re taliation must be “a motivating factor” in the discharge, that retaliation must be “a determinative factor” in the discharge, that the evidence must “exclude other reasonable hypotheses with a fair amount of certainty,” that there must be a “causal link by direct evidence” or by “compelling circumstantial evidence,” or that retaliatory motive must be more than “mere speculation” and must be established with “reasonable certainty and probability.” The plaintiffs include in their brief an appendix listing states which recognize retaliatory discharge actions and what standard of proof each state requires or whether it follows the burden-shifting analysis set forth by the United States Supreme Court for Title VII discrimination cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). The defendant also points out that some jurisdictions do not apply the burden-shifting analysis under McDonnell Douglas to retaliation cases and that jurisdictions which do apply the burden-shifting analysis in workers compensation retaliation cases also require the plaintiff to establish a causal connection between the workers compensation claim and the discharge before shifting the burden to the employer to produce evidence of a valid reason for the discharge. Further, the defendant stresses that in the burden-shifting analysis, the plaintiff still bears the burden to prove that the employer’s reasons for discharge are mere pretext. The defendant also suggests that even under a burden-shifting analysis the plaintiff ultimately bears the burden of persuasion. See St. Mary’s Honor Center v. Hicks, 509 U.S. _, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). We find the plethora of cases cited by both parties to be of limited assistance. What the cases and the discussion by the parties make clear is that each state treats retaliatory discharge actions in its own way. Those jurisdictions which recognize the tort of retaliatoiy discharge each employ different language in describing the methods or standard by which the action must be proven. An analysis of retaliatory discharge actions in other jurisdictions only reinforces that this court should decide the question before it based on Kansas law and not on the law of any other juris diction. The Court of Appeals first recognized the tort of retaliatory discharge not because other jurisdictions had done so, but because recognition of the cause of action was in keeping with sound public policy. Likewise, the appellate courts of this state did not extend the tort of retaliatory discharge beyond those instances where die employee has filed a workers compensation claim because other states had done so, but again, because extending the cause of action was in keeping with sound public policy of the State of Kansas. In Kansas, retaliatory discharge actions must establish that the discharge was “based on” the employee’s exercise of some right. Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 147, 814 P.2d 72 (1991). Kansas has adopted the McDonnell Douglas burden-shifting analysis for employment discrimination actions. Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982). The burden “is on the complainant to prove by a preponderance of the evidence that the respondent is guilty of a discriminatory practice. Initially, the complainant must present a prima facie case of discrimination. Then tire burden of going forward with the evidence shifts to respondent and this burden may be discharged by evidence of a legitimate, nondiscriminatoiy reason for respondent’s conduct. Once the respondent discharges this obligation, the complainant must continue with the burden of proving by a preponderance of the evidence that the reasons offered by respondent were merely a pretext for discrimination.” 231 Kan. 763, Syl. ¶ 2. See Beech Aircraft Corp. v. Kansas Human Rights Comm’n, 254 Kan. 270, 864 P.2d 1148 (1993). To establish a prima facie case of discrimination, the plaintiff must show that he or she is a member of a racial minority, that the employer was seeking applicants for a position for which he or she applied and was qualified, that he or she was rejected for the position despite his or her qualifications, and that after rejecting the plaintiff the employer continued to seek applicants with his or her qualifications. McDonnell Douglas, 411 U.S. at 802. A somewhat modified burden-shifting analysis is also applied in cases where a public employee is terminated after having exercised his or her right to free speech protected by the First Amendment. Larson v. Ruskowitz, 252 Kan. 963, 850 P.2d 253 (1993). In such cases, the public employee must first make a prima facie showing that his or her protected communication was a motivating factor for the termination (or suspension from employment), and upon such a showing the burden shifts to the governmental employer to produce evidence it would have terminated or suspended the employee even without the communication. 252 Kan. 963, Syl. ¶ 4. The Larson court distinguished cases involving violation of a public employee’s free speech rights from whistle-blowing retaliatory discharge cases, noting that whistle-blowing and workers compensation retaliatory discharge actions protect employees in both the public and private sectors, while violation of free speech actions only are available to public employees. Answering the certified question requires this court to balance the tradition and status of the employment-at-will doctrine with the public policy protecting employees-at-will from employer retaliation. The appellate courts of this state in recognizing retaliatory discharge actions have already decided that the balance works in favor of the employee to an extent. The question, however, is to what extent. The defendant maintains that requiring a standard of clear and convincing evidence for a retaliatory discharge case places no greater burden on a plaintiff than would a preponderance of the evidence standard. It notes that clear and convincing evidence may be established by circumstantial evidence. The defendant cites Turon State Bank v. Estate of Erampton, 253 Kan. 621, 861 P.2d 117 (1993), where this court recognized that fraud cases, which require proof by clear and convincing evidence, are frequently proven by circumstantial evidence because there is rarely direct and positive testimony of reliable witnesses. The plaintiffs, on the other hand, insist that requiring clear and convincing evidence in retaliatoiy discharge cases, which are generally proven by circumstantial evidence because rarely will an employer admit to having discharged an employee in retaliation for exercising a right, will for all practical purposes extinguish the cause of action as few, if any, plaintiffs will be able to meet such a burden. “Preponderance of evidence” is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.” Black’s Law Dictionary 1182 (6th ed. 1990). In other words, a “preponderance of the evidence” means that evidence which shows a fact is more probably true than not true. The United States Supreme Court has noted that “clear and convincing evidence” is an intermediate standard of proof. Santosky v. Kramer, 455 U.S. 745, 756-57, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). The Court has stated that “[bjecause the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake.’ [Citations omitted.]” Grogan v. Garner, 498 U.S. 279, 286, 112 L. Ed. 2d 755, 111 S. Ct. 654 (1991). Over the years, this court has discussed clear and convincing evidence in the context of many issues and causes of action, and some confusion exists as to how a jury should be instructed. We hold that clear and convincing evidence is not a quantum of proof but, rather, a quality of proof. A party having the burden of proving a discharge from employment in retaliation for having filed a workers compensation claim must establish that claim by a preponderance of the evidence, but the evidence must be clear and convincing in nature. It is clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it. Chandler v. Central Oil Corp., 253 Kan. 50, 58, 853 P.2d 649 (1993).	[ -104, 122, -47, -115, 8, -31, 48, -102, 115, -105, 37, 83, -19, -29, -115, 123, 123, 101, 117, 107, -62, 51, 23, 8, -42, -9, -8, -43, -72, 79, -12, -36, 77, 56, 10, -43, -26, -46, -51, 28, -56, 5, -119, -20, 25, -128, 48, 123, -6, 71, 113, -50, -69, 42, 24, -57, 40, 41, 123, 45, 113, -95, -125, 13, -18, 1, -93, 5, -98, 78, -40, 59, -104, 48, -31, -88, 82, -74, -62, 52, 51, -71, 0, 103, 98, 51, 29, -27, 108, -72, 47, 50, -97, -91, -111, 88, 91, 12, -76, -99, 124, 4, 38, 120, -12, 69, 127, 108, 14, -117, -62, -79, 79, 100, -68, -117, -25, -125, -126, 65, -34, -78, 92, 5, 58, -105, 91, -108 ]
The opinion of .the court was delivered by Kingman, C. J.: These cases are brought to this, court from one action in the district court, each party alleging error. Both cases will be examined together. I. The notice of publication described the land attached, and for the sale of which judgment was prayed, as “ the northeast quarter of section nine, town five, range eighteen.” It is not stated in what county the land lies; nor whether it is in range eighteen east, or west, of the sixth principal meridian, either of which would be in Kansas. The suit was brought in Leavenworth county, where one defendant, Burris, was served with process. The land was attached as the property of Trowbridge in Atchison county. The notice of publication was defective. The party attempting to bring another before the court by constructive service ought to state with certainty the nature of the judgment claimed. There was no difficulty in doing so in this case. If courts commence refining upon what may be omitted in such notice, the door will be open to endless construction, and possibly to ingenious subterfuges, by which the notice may be made to mislead instead of putting an absent defendant on his guard. It is said in argument that the court will take notice that the country where the land would lie west of the meridian, is wild land, unsurveyed, in an unsettled county. This' fact, if it be one, might be ascertained at the proper office. But this is evidence, and does not “ appear.” If the fact were made to appear by proper evidence, we might consider its value. In the rapid extension of settlements in this state, it would be perilous for any court to say, on its own knowledge, wbat part of the State was unsettled. The district court was right in holding the notice of publication insufficient. II. The defendant Trowbridge moved to set aside the judgment and sale, which motion the court granted. By this motion Trowbridge entered on appearance in the action. In Marsden, et al. v. Soper, 11 Ohio St., 503, the judgment was entered without jurisdiction of the person of the defendant. The defendant moved to vacate the judgment, which motion was after-wards dismissed. The grounds of the motion did not appear in the record in the supreme court, yet the court held that by the motion such an appearance was made as waived the objection to the jurisdiction, giving as a reason therefor that “ if the motion was based on an alleged want of jurisdiction, it would be no such appearance, or waiver; but if it was grounded upon irregularity, or error in the judgment alone, aside from the question of jurisdiction, it would constitute such waiver.” In Massachusetts a similar ruling was made. After the decision of the ease, and before judgment was entered, the defendant made a motion as to the taxation of costs. This was held to be an appearance in the case for all purposes. The court laid down the rule as follows: “ It is well settled that a defect of service is waived by a general appearance of defendant, or,-if he appears for any other purpose than to object to the sufficiency of the service.” 1 Allen, 371. And such is the current of decisions, some of which are referred to in the briefs. Tested by this doctrine, Trowbridge, by his motion, entered an appearance in this case. The 5th, 6th, 7th and 8th grounds of his motion go to the merits of the- ease, and to questions of irregularity in the proceedings, other than jurisdictional ones; therefore it must be held to be such an appearance as waived the defective notice of publication. III. The plaintiff, when the motion to set aside the judgment and order of sale was- sustained, moved for default and judgment against defendant Trowbridge. The court sustained the motion, and judgment was entered against him over his objections. We are clear that defendant was entitled to time to answer. It was neither reasonable nor legal to file an answer while the judgment was still standing against him on the record. It would have been impertinent to have done so. As the case stood, there was nothing to answer until the judgment was vacated. Nor could the defendant be expected to stand with his answer ready. It might never be required. While the motion to vacate was a waiver of the defective service, it was not a waiver of all defendant’s rights. For this reason the judgment is reversed, with directions to peimit an answer to be filed, and such further proceedings thereon taken as shall be in accordance with law. All the Justices concurring.	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The opinion of the court was delivered by Abbott, J.: The basic issue in this appeal is whether the trial court erred in refusing to convert the defendants’ sentences under K.S.A. 1993 Supp. 21-4724. There is also a jurisdictional question as to whether the conversion issue may be appealed. Both defendants are now on parole, having completed their sentences while their cases were on appeal. The issue is not moot, however, because a successful appeal here will affect the length of time each defendant will be on parole or the length of time each defendant will serve if his parole is revoked. See State v. Aleman, 16 Kan. App. 2d 784, 786, 830 P.2d 64, rev. denied 251 Kan. 940 (1992). Defendant Leonard (Jon) Gonzales, Jr., was sentenced prior to July 1, 1993, for two counts of terroristic threat, class E felonies. Defendant Buford W. Bailey was sentenced prior to July 1, 1993, for the offense of theft, a class E felony. Both defendants were eligible for the retroactivity provision of the sentencing guidelines; however, the district judge refused to convert their sentences and instead reimposed the original sentences. Gonzales and Bailey appealed to the Court of Appeals, and the cases were transferred to this court and consolidated for appeal. Gonzales entered a plea of nolo contendere to the offenses on February 18, 1992. He was sentenced to concurrent terms of one to two years for each offense and was placed on probation for a period of three years. On January 25, 1993, Gonzales’ probation was revoked after he was terminated from the Sedgwick County Community Corrections Program. Gonzales was ordered to the Labette County Conservation Camp, and when he was not accepted into that program, the original term of incarceration was imposed on March 9, 1993. His subsequent motion to modify was denied. The Department of Corrections prepared a sentencing guidelines report on Gonzales. His offenses are severity level IX, and his prior criminal history is level D (one prior person “felony” offense as a juvenile). The report noted that Gonzales was eligible for conversion. The State requested a hearing and opposed conversion of Gonzales’ sentence. After a July 27, 1993, hearing, Judge Anderson agreed with the Department of Corrections that the appropriate sentence under the guidelines was a 12-month sentence under grid block IX-D. However, based on Gonzales’ prior unsuccessful termination from community corrections and his unwillingness to enter the Labette County Conservation Camp, Judge Anderson declined to convert Gonzales’ sentences. Judge Anderson also found that even if the sentences were converted, Gonzales should not be placed on presumptive probation. He treated this as a refusal to convert. Defendant Buford Wayne Bailey was sentenced on October 20, 1992, to a term of one to three years, and he was placed on probation for a period of three years “with the special condition that the defendant follow the program set by Community Corrections.” Bailey’s probation was revoked after he failed to successfully complete the McPherson County Community Corrections Program, and on January 7, 1993, the original term of incarceration was reinstated. His subsequent motion to modify was denied. On July 21, 1993, the Department of Corrections prepared a sentencing guidelines report. Bailey’s offense is a severity level IX crime, and his prior criminal history is level H (four prior nonperson misdemeanor offenses). The report noted that Bailey was eligible for conversion. The State requested a hearing and op posed conversion of Bailey’s sentence. Judge Anderson declined to modify Bailey’s sentence and reimposed the original one- to three-year sentence. Judge Anderson opined that he had the authority to exercise discretion in determining if the defendant is entitled to conversion. He declined to modify Bailey’s sentence based on Bailey’s prior record and based on his failure at probation and community corrections. Judge Anderson ordered the defendant to serve the remainder of his original sentence. Both Gonzales and Bailey appealed the district court’s refusal to convert their sentences to the Court of Appeals. The Court of Appeals ordered the parties in both cases to address the following issue in their briefs: “Does the court of appeals lack jurisdiction over the above-captioned case because the sentencing guidelines, specifically chapter 291 section 268 of the 1993 session laws, do not provide for appeal of a district court order reviewing a challenge to a department of corrections sentencing guidelines report?” Thereafter, the cases were consolidated upon the request of defendants. The appeals were transferred to this court upon this court’s motion pursuant to K.S.A. 20-3018(c). Neither defendants nor the State are of the opinion there is a jurisdictional problem here. K.S.A. 1993 Supp. 22-3602(a) provides for appeal as a matter of right from any judgment against a defendant in the district court “[ejxcept as otherwise provided.” That section provides that no appeal is permitted from a judgment of conviction upon a plea of guilty or nolo contendere except by a K.S.A. 60-1507 motion. Here, although both defendants entered pleas of nolo contendere, neither is appealing from the judgment of conviction. Rather, each appeals from the judgment of the district court declining to convert his sentence. The issue as framed by the Court of Appeals states that K.S.A. 1993 Supp. 21-4724 does not provide for appeal of a district court order reviewing a challenge to a Department of Corrections sentencing guidelines report. Both defendants and the State agree that the sentencing guidelines reports prepared by the Department of Corrections were correct. Each defendant contends that the district court’s refusal to convert his sentence to a guidelines sentence amounts to imposition of an illegal sentence. They properly state that an illegal sentence may be corrected at any time. K.S.A. 22-3504. Further, defendants properly state that appeal from the sentence imposed for felony offenses committed on or after July 1, 1993, is limited pursuant to K.S.A. 1993 Supp. 21-4721. No such limit on appeals for crimes committed prior to July 1, 1993, is contained in the Act. In State v. VanReed, 245 Kan. 213, 777 P.2d 794 (1989), this court permitted a defendant to appeal a district court’s failure to impose the statutory presumptive sentence of probation. We see no valid reason to deny defendants the right to appeal the district court’s failure to make what defendants claim is a mandatory conversion of their sentences. In VanReed, this court found a narrow exception to the rule that “there is no direct appeal from a denial of probation following a guilty or nolo contendere plea” and stated that “[b]y the adoption of K.S.A. 21-4606a [presumptive sentence of probation for certain offenders], the legislature has implicitly authorized a direct appeal of a decision by the sentencing court to deny the presumptive sentence.” 245 Kan. at 217. Likewise, the legislature has provided in K.S.A. 1993 Supp. 21-4724(b)(l) that certain offenders who “were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act” (emphasis added), and this court finds that the legislature has implicitly authorized appeal of a decision by the district court to deny the seemingly mandatory modification. K.S.A. 1993 Supp. 21-4724 is a limited retroactivity provision whereby the sentences of certain offenders who were sentenced prior to July 1, 1993, the date the Kansas Sentencing Guidelines Act went into effect, are converted to sentences under the Sentencing Guidelines Act. Both Gonzales and Bailey were eligible for conversion under this statute. Gonzales is classified in grid block IX-D, a presumptive nonimprisonment sentence with an 11- to 13-month sentence if incarceration is imposed. Bailey is classified in grid block IX-H, a presumptive nonimprisonment sentence with a 6- to 8-month sentence if incarceration is imposed. Defendants suggest three arguments to show that the district court erred in refusing to convert their sentences. First, defendants contend that conversion under K.S.A. 1993 Supp. 21-4724 is mandatory for eligible defendants and that a district court has no discretion whether to convert a defendant’s sentence. Further, defendants contend that conversion must be to the range of sentences in the appropriate grid block; the district court lacks the power to depart from that range. Finally, defendants suggest that even if the district court has the power to issue a departure sentence, the district court here failed to comply with the Sentencing Guidelines Act requirements for imposing a departure sentence. The State, conversely, contends that when one of the parties requests a hearing pursuant to K.S.A. 1993 Supp. 21-4724(d)(l) regarding conversion, the district court has discretion in determining whether to convert a defendant’s sentence to a guidelines sentence. The State maintains that nothing in K.S.A. 1993 Supp. 21-4724 makes conversion mandatory and that reading the provisions of the statute together shows that conversion is instead discretionary. Further, the State argues that even if conversion is mandatory and the district court’s failure to convert the sentences of Gonzales and Bailey amounts to a departure, the court was not required to comply with the rules governing departure under the Sentencing Guidelines Act. The rules of statutory construction have been frequently stated. “The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. ‘In construing statutes, the legislative intention is to be determined from a general consideration of the entire act.’ State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). In order to construe one part of a statute, it is permissible to look at other parts of it.'The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.’ Easom v. Farmers Insurance Company, 221 Kan, 415, Syl. ¶ 3, 560 P.2d 117 (1977).” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991). See City of Wichita v. 200 South Broadway, 253 Kan. 434, Syl. ¶¶ 1, 2, 855 P.2d 956 (1993). “The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted.” “In determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.” “In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and -reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature.” Brown v. Keill, 224 Kan. 195, Syl. ¶¶ 2-4, 580 P.2d 867 (1978). However, “[w]hen a statute is plain and unambiguous, [the court] must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.” In re Estate of Fortney, 5 Kan. App. 2d 14, 21, 611 P.2d 599 (1980). Both sides find language in the Act to support their positions. Many of the arguments support both mandatory and discretionary conversion. As we view the Act, the legislature had several things in mind. First and foremost, the legislature was faced with an overcrowded prison system and had a choice of building and maintaining additional prison facilities at a time when the State was and is financially hard-pressed to maintain its existing prison system or of devising a method of reducing the inmate population. The legislature very clearly opted to reduce the prison population and devised a method to incarcerate serious offenders and to handle less dangerous offenders by nonprison sanctions or by imposing shorter sentences. The legislature was also interested in standardizing sentences so that similarly situated offenders would be treated the same. The legislature heard testimony and expressed concern that surveys showed both a facial bias and a geographical bias. The geographical bias indicated that judges in rural communities imposed longer sentences and that defendants from rural areas were not paroled as readily and had their parole revoked more frequently. K.S.A. 1993 Supp. 21-4724(b) provides: “(1) Except as provided in subsection (d), persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-1 or 6-G of the nondrug grid or in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 and amendments thereto, if sentenced pursuant to the Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act. “(2) Except as provided in subsection (d), offenders on probation, assignment to community corrections, conditional release or parole for crimes classified in subsection (b)(1) committed prior to July 1, 1993, who have such probation, assignment to community corrections, conditional release or parole revoked shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.” (Emphasis added.) We believe that the legislative intent in adopting-the retroactivity provision of the Sentencing Guidelines Act was to make conversion mandatory and that the provisions in K.S.A. 1993 Supp. 21-4724(d) require the trial court to settle any disputes concerning criminal history and to impose a sentence within the correct grid box just as if the trial judge were imposing an original sentence under the guidelines. The trial judge may consider any information available as of the original sentencing date that he or she could have considered in imposing an original sentence under the guidelines, and the trial judge may depart from the guidelines. Any departure must be consistent with the departure provisions of the guidelines, and a parole or probation violation after the original sentencing date may not be considered in converting the sentence. Any departure must be justified by the trial court by written findings and an order as required by the guidelines. The grounds for departure are set forth in K.S.A. 1993 Supp. 21-4716, K.S.A. 1993 Supp. 21-4717, and K.S.A. 1993 Supp. 21-4718. Departure requires substantial and compelling reasons. The trial court in these cases did not make findings and impose departure sentences, although in Gonzales’ case Judge Anderson did state, “If it’s a departure, then I am going to depart.” The Sentencing Guidelines Act does not provide for an indeterminate sentence. Yet by reimposing each defendant’s original sentence, Judge Anderson did impose an indeterminate sentence. Such a sentence is not a “departure” from the guidelines; it is merely reimposition of a sentence under the law as it existed prior to July 1, 1993. Having found that conversion is mandatory, reimposition of the defendants’ previous sentences was illegal. Further, even if reimposition is considered a departure, the mandates of K.S.A. 1993 Supp. 21-4716, -4717, and -4718 were not followed. Reversed and remanded for resentencing.	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The opinion of the court was delivered by Valentine, 3.: The defendant William Finley, was charged, on information of the county attorney of Doniphan county, with the offense of assault with intent to commit murder. A trial was had, and the defendant was found guilty of an assault only, and was fined one hundred and fifty dollars, and he now appeals to this court. Two questions are raised: First, Does the information charge any offense ? Second, Had there been any preliminary examination, etc., before the information was filed ? The appellant raised these questions in the court below by moving to quash the indictment, and also by moving in arrest of judgment. I. An^assault is a criminal offense, (Gen. Stat., p. 825, §48,) of which the district court has original jurisdiction, concurrent with justices of the peace; (Gen Stat., 383, § 308; Laws of 1869, p. 149;) and this information clearly, and beyond all doubt, sufficiently charges an assault: 2 Wharton’s Am. Cr. Law, § 1263; 3 Sneed, 66; Whart. Prec. Ind. and Pleas, 214; Train & Hurd’s Prec. Ind., 38;) and the defendant is found guilty of an assault only. If it was necessary we would also state that we think the information is sufficient as an information charging an assault with intent to commit murder: Whart. Am. Cr. Law, §§ 292, 1281; 3 Gill & Johns., 8; 5 Cranch, 87; 24 Miss., 371; 4 Hill, 133; and should be held good on a motion to quash, or on a motion in arrest of judgment, when the verdict is only for an assault. The facts constituting the offense need not be stated in the information in minute detail, but only in general terms. II. There are two answers to the second question: Jñrst, there was a preliminary examination, as appears from the record brought to this court; Second, the said question was not properly raised m x j. j. o the court below. It is true, that before the county attorney is authorized to file an information in a criminal action in the district court, there must have been a preliminary examination, unless the defendant has first waived such examination, or unless he is a fugitive from justice; (§ 69, crim. code;) or, unless the district judge has ordered the information to be filed; (§71, id.) But it is not necessary that the information itself should show these facts: State v. Barnett, 3 Kas., 250, 254, et seq. All that is required of the information is, that it charge the ojíense sufficiently, and show that it is prosecuted by the proper officer. If there had been in fact no preliminary examination in this case, and no sufficient cause existed for filing the information without a preliminary examination, the defendant should have raised the question in the court below, in a proper manner, ás by a plea in abatement. He could not raise the question by a motion to quash the information, nor by a motion in arrest of judgment. The judgment of the court below is affirmed. All the Justices concurring.	[ -32, -18, -3, -99, 42, -32, 34, -68, -120, -95, -16, 115, 109, -53, 9, 115, -10, 123, 85, 121, -44, -73, 118, 99, -74, -13, 17, -43, -77, -49, -26, -2, 13, -96, -54, -43, 102, 74, -57, -34, -126, -113, -87, -52, -46, 64, 32, 59, 126, 15, 49, -65, -93, 106, 28, -45, 41, 40, 75, -66, 82, 113, -118, 15, -51, 22, -77, -90, -100, -125, -40, 60, -104, 49, 0, -8, 123, -122, -126, -12, 77, -119, -115, 106, 99, 33, -116, -49, 116, -103, 15, 110, -67, -90, 24, 65, 73, 13, -105, -97, 118, 112, -121, 112, -25, 87, 25, 108, 1, -57, -76, -79, 79, 36, 26, 115, -21, 21, 16, 113, -59, -82, 84, 64, 18, -37, -97, -44 ]
The opinion of the court was delivered by Abbott, J.: Pursuant to a plea agreement, the defendant, Andre Jackson, pleaded guilty to one count of aggravated kidnapping, three counts of aggravated robbery, one count of aggravated battery, and one count of kidnapping. Under the plea agreement, the State agreed not to file charges against Jackson for two other robberies. The State also agreed to, and did, recommend a fife sentence on the aggravated kidnapping count and concurrent sentences for the remaining counts, for a controlling term of life imprisonment. This is the sentence the trial court imposed. After the defendant pleaded guilty, he waived a presentence investigation and was sentenced as recommended in the plea agreement. Some three weeks later, he filed a pro se motion to withdraw his guilty plea, claiming that he was coerced into pleading guilty by his attorney, that he had ineffective assistance of counsel, and that he had discovered new evidence, and he requested appointment of new counsel. His motion was denied without a hearing. The defendant contends he was denied due process of law when the trial court denied his motion to withdraw his guilty plea without a hearing and without appointing counsel to represent him. Jacksoris handwritten motion to withdraw his guilty plea stated in pertinent part as follows: “My purpose of withdrawing my plea 1.) On Novenmber [sic] 13, 1992 I was extremly [sic] pressured and press [sic] into this plea. 2.) Insuffent [sic] cousel [sic] toward the case. 3.) Compeled [sic] to plea 4.) Also new evidence found in the case.” His request for appointment of counsel stated in pertinent part: “1.) On Nov 13 1992 motion to withdraw plea was filled [sic] in the above captioned case. 2.) One of the allgation [sic] in the motion to withdraw my plea — was that my attorney corced [sic] me into pleaing [sic] guilty 3.) That I am finacially [sic] unable to hire an attorney to represent me in the above case 4.) That my rights to counsel would be violated if I am represented by the same counsel who I am saying corced [sic] me.” In neither of these pro se motions did Jackson indicate what new evidence was discovered or how it was discovered, nor did he allege any evidentiary basis for his claims of insufficient counsel and coercion. K.S.A. 22-3210 controls the entry of pleas of guilty and nolo contendere. Subsection (d) sets forth the circumstances which permit a defendant to withdraw a plea of guilty or nolo contendere: “A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” Hence, after sentencing a defendant may be permitted to withdraw his guilty plea only if to do so would correct manifest injustice. See State v. Dunham, 213 Kan. 469, 474, 517 P.2d 150 (1972). “The decision to deny a motion to withdraw a plea of guilty lies within the sound discretion of the trial court, and it will not be disturbed on appeal absent a showing that the trial court abused its discretion.” State v. Hill, 247 Kan. 377, Syl. ¶ 2, 799 P.2d 997 (1990). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.] A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. [Citation omitted.]” State v. Larry, 252 Kan. 92, 95, 843 P.2d 198 (1992). Jackson’s argument is not that the court abused its discretion in denying his motion to withdraw guilty plea because withdrawal was necessary to correct manifest injustice, but that the court abused its discretion and violated his right to due process by summarily denying his motion without a hearing and without appointing counsel. He argues that in his case the determination of manifest injustice cannot be made by merely reviewing his motion and the record of his guilty plea; thus, a hearing and appointment of counsel was necessary before a decision on the motion could be made. Jackson points to the transcript of his guilty plea hearing, which he claims shows that he was dissatisfied with his court- appointed attorney’s representation and that he had attempted to retain an attorney before he agreed to plead guilty. Although K.S.A. 22-3210(d) sets forth the circumstances under which a guilty plea may be withdrawn, that statute is silent on the procedures governing a motion to withdraw guilty plea. Neither the statute nor case law on K.S.A. 22-3210(d) motions clearly specify whether and in what circumstances a hearing or appointment of counsel is required. Both the State and the defendant suggest that the procedures governing hearings on K.S.A. 60-1507 motions and motions for new trial under K.S.A. 22-3501 provide guidance for hearings on K.S.A. 22-3210(d) motions. We agree. Indeed, this court has in the past addressed motions to withdraw pleas of guilty or nolo contendere which have been pursued as 60-1507 motions. See Hicks v. State, 220 Kan. 279, 552 P.2d 889 (1976); Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976); Rhone v. State, 211 Kan. 206, 505 P.2d 673 (1973). K.S.A. 60-1507(b) requires a hearing on a 60-1507 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” This court has also held that when a post-verdict motion for a new trial based on newly discovered evidence (K.S.A. 22-3501) is filed after sentence has been imposed, it is comparable to the procedure provided under K.S.A. 60-1507. State v. Dunn, 243 Kan. 414, 436, 758 P.2d 718 (1988); State v. Bryant, 227 Kan. 385, 391, 607 P.2d 66 (1980). K.S.A. 22-3501 permits the granting of a new trial “if required in the interest of justice.” In Bryant, the motion for a new trial was filed less than one-and-a-half months after a jury verdict of guilty and less than two weeks after sentencing, and the denial of this motion was the subject of appeal. The alleged new evidence was that a main witness against the defendant had recanted his testimony. The district court made a preliminary inquiry into the alleged new evidence, at which time the witness repudiated his recantation. The court then denied the defendant’s motion for a new trial without further hearing. 227 Kan. at 389-90. This court held that there was no abuse of discretion in failing to conduct a full evidentiary hearing, noting that under K.S.A. 60-1507 the district court “normally conducts a preliminary inquiry to determine whether the claims asserted in the motion are substantial, before granting a full evidentiary hearing and requiring the petitioner to be present.” 227 Kan. at 391. The K.S.A. 60-1507 procedure governing hearings should apply to motions to withdraw guilty plea filed after imposition of sentence. Requiring a hearing in every case in which a defendant seeks to withdraw his plea of guilty or nolo contendere would create an extreme burden on the courts, and such a rule is not feasible or justified. A hearing on a motion to withdraw a plea of guilty or nolo contendere is limited to those instances in which the defendant’s motion raises substantial issues of fact or law and should be denied when the files and records conclusively show that the defendant is entitled to no relief. It is clear that “[tjhere is no constitutional right to counsel at each and every post-conviction proceeding or motion.” State v. Nunn, 247 Kan. 576, 583, 802 P.2d 547 (1990). In State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980), this court discussed at length the constitutional right to counsel as the issue arose in the context of a motion for a new trial and noted that Kansas statutes provide for counsel at pretrial proceedings, at trial, on appeal, and also on K.S.A. 60-1507 motions if the trial court, after examining the merits of the motion, determines that the motion presents substantial questions of law or triable issues of fact. 228 Kan. at 373-75. This court pointed out, however, that no statute provided for counsel for motions for new trial. We discussed the United States Supreme Court application of the constitutional right to counsel: “[T]he trend has been for the court to determine whether the matter before the court is a critical stage of the proceeding although the court has not been as willing to provide counsel in post-conviction proceedings as in pretrial proceedings. "In Coleman v. Alabama, 399 U.S. 1, 9, 26 L. Ed. 2d 387, 90 S.Ct. 1999 (1970), the U.S. Supreme Court held that ‘[t]he determination whether the hearing is a “critical stage” requiring the provision of counsel depends, as noted, upon an analysis “whether potential substantial prejudice to defendant’s rights inheres in the . . . confrontation and the ability of counsel to help avoid that prejudice.” United States v. Wade, supra, [388 U.S.] at 227.’ ” 228 Kan. at 377. This court stated: “We think it is clear that the customary motion for a new trial which must be filed within ten days under K.S.A. 22-3501 and which is principally for the purpose of calling to the attention of the trial court alleged trial errors is a stage of the criminal proceedings which falls within the purview of K.S.A. 1979 Supp. 22-4503, and counsel must be provided for the purposes of such a motion. Are subsequent motions, filed after the ten day period and frequently after an unsuccessful appeal, seeking a new trial on the grounds of newly discovered evidence, also within the purview of the statute? We think not.” 228 Kan. at 375. In Nunn, 247 Kan. at 584-85, this court elaborated on the Andrews rule concerning appointment of counsel, again in the context of motions for new trial, stating: ‘While it would simplify matters for all courts and litigants if we were to adopt a bright-line rule that counsel be appointed for all post-trial motions, such a rule would not appear to be feasible or justified. Obviously, counsel should be appointed in cases where the motion raises substantial questions of law or triable issues of fact requiring an evidentiary hearing, legal arguments, and/or briefs of the parties. It appears just as obvious that if the motion, whether or not it is the defendant’s first based upon newly discovered evidence, fails to state any substantial issues of law or fact, or states sufficient facts to allow a determination based upon the motion itself, then appointment of counsel and the holding of a hearing would be unwarranted. We adhere to our prior rulings that the determination of whether to appoint counsel and hold a hearing on post-trial motions not filed ‘within 10 days after the verdict or finding of guilty, or within such further time as the court may fix during the 10-day period,’ is one best left to the sound discretion of the trial court considering all the circumstances of the particular case. If the trial court correctly determines from the pleadings and record that the motion raises no substantial questions of law or fact, then the refusal to appoint counsel and hold a hearing does not constitute an abuse of discretion.” We went on to hold that if a hearing on a motion for new trial is held and the State is represented, then an indigent defendant is entitled to appointed counsel to represent him or her at the hearing. 247 Kan. at 587; cf. State v. Pierce, 246 Kan. 183, 199, 787 P.2d 1189 (1990) (if hearing on motion to modify sentence is held and the State is represented, the defendant should be represented by counsel or should be present in person if appearing pro se). As with motions for new trial, no Kansas statute provides for appointment of counsel for motions to withdraw a plea of guilty or nolo contendere. In the context of whether appointment of counsel is required, motions to withdraw plea after sentencing are comparable to motions for new trial after sentencing and to K.S.A. 60-1507 motions. If a motion to withdraw a plea after sentencing reveals facts which, if true, would show manifest injustice such that withdrawal of the plea may be warranted, then the motion has clearly brought into play the substantial rights of the defendant. In that case, the motion to withdraw a plea would constitute a critical stage of the proceedings such that appointment of counsel would be necessary to protect the defendant's rights. However, as with a motion for new trial after sentencing and a 60-1507 motion, if the motion to withdraw a plea fails to raise substantial questions of law or triable issues of fact requiring an evidentiary hearing, legal arguments, and/or briefs of the parties, then the motion does not constitute a critical stage of the proceedings and due process does not require appointment of counsel. A hearing and appointment of counsel may be required for some motions to withdraw a plea of guilty or nolo contendere. However, if there is no substantial question of law or triable issue of fact and the files and records conclusively show that the defendant is not entitled to relief on the motion, then there is no requirement that a hearing be held or that counsel be appointed. Here, Jackson was represented by a public defender. Before entering his guilty pleas, Jackson informed the court that his brother was trying to hire a lawyer for him. The following exchange occurred: “THE DEFENDANT: I would like to ask you a question. “THE COURT: Okay. “THE DEFENDANT: I’ve been talking to my brother. He’s going to pay for me an attorney. I haven’t been able to get in touch with him. I’ve been in D.E. I haven’t been able to get in touch with him. I don’t know if he’s found me a lawyer or not so I’m wondering if I could somehow get in touch with my brother to see if he’s got me a lawyer or something. “THE COURT: Let me ask you this: has Mr. Loeffler [defense counsel] been a good lawyer to you? "THE DEFENDANT: Yeah, he’s been all right. I don’t think he’s doing all he can to help me. “THE COURT: Do you think he’s a little overloaded? “THE DEFENDANT: Yeah. “THE COURT: Have the courts been fair, treated you properly? “THE DEFENDANT: Yes, sir, Your Honor. “THE COURT: Is there anything in your background that you know that might lead me to believe that you are not mentally able to understand what you are getting yourself into? Talking about a history of mental illness, having your head injured? “THE DEFENDANT: No. “THE COURT: Let’s do this: is your brother here? "THE DEFENDANT: Yeah, he’s in Wichita. “THE COURT: Let’s do this: why don’t you tell your lawyer where they might find him right now, have your lawyer call him and find out has he hired you a lawyer, what he’s going to do about that, if that’s what you want to do. “Your lawyer is a good lawyer. If you are satisfied that he’s done everything right, that’s just fine. If you want to, we’ll see if we can get ahold of your brother, see what he has to say before we .go on with this, if wé can find him. We’ll do whatever you want to do about that. We’ll get him up here, we’ll get him over to the jail to visit with you. “If we can’t, we’ll tell you that. You can decide whether to go on and do it. If you don’t, that’s what we’ll do, we will not. It’s your case. “Do you want to do that? Okay. You want to try to see if we can get ahold of' him? “THE DEFENDANT: Yeah.” The court recessed, but attempts to reach Jackson s brother were unsuccessful. Mr. Loeffler informed the court that Jackson’s grandmother was unaware of whether Jackson’s brother had made efforts to secure counsel for Jackson. Mr. Loeffler stated, “I consulted with Mr. Jackson about that. He says that he wishes to go on with the plea at this point, Your Honor.” The court asked Jackson if that was what he wanted to do, and Jackson replied, “Yes, Your Honor.” Jackson now suggests that this record, along with his motion alleging ineffective assistance of counsel and that he was pressured into and compelled to plead guilty, does not conclusively show that he is entitled to no relief on his motion. The district court denied his motion without a hearing and without appointing counsel, holding that Jackson’s contentions were conclusory and contrary to the record of the plea hearing and that he had provided no basis for withdrawal of his plea. Jackson failed in his pro se motion to allege any facts in support of his assertions that he was pressured into and compelled to plead guilty and that his counsel was ineffective. (He also did not specify what new evidence was discovered, but Jackson’s appellate brief largely ignores his claim of newly discovered evidence.) Clearly, Jackson should have designated additional facts in support of his contentions of coercion and ineffective assistance of counsel. This court has on several occasions pointed out the burden on the movant in a K.S.A. 60-1507 motion to allege facts sufficient to warrant a hearing on the motion. We have repeatedly held that mere conclusions of the defendant or movant are not sufficient to raise a substantial issue of fact when no factual basis is alleged or appears from the record. For example, in Burns v. State, 215 Kan. 497, 524 P.2d 737 (1974), this court considered a defendant’s claim of ineffective assistance of counsel in a K.S.A. 60-1507 motion. We stated: “Bums’ motion contends he was misled by his court-appointed attorney as well as betrayed by the county attorney. The burden of establishing incompetency of an attorney or ineffective assistance of counsel to the extent necessary to overcome the presumption of regularity of a conviction is upon the petitioner. [Citations omitted.] Mere conclusionary contentions of a petitioner for which no evidentiary basis is stated or appears are not sufficient basis for relief from conviction. [Citation omitted.]” 215 Kan. at 499-500. See Sullivan v. State, 222 Kan. 222, 223, 564 P.2d 455 (1977); Hicks v. State, 220 Kan. 279, Syl. ¶ 2, 552 P.2d 889 (1976); Robinson v. State, 218 Kan. 1, 2, 542 P.2d 305 (1975); State v. Brown, 204 Kan. 430, 432, 464 P.2d 161 (1970); Wisely v. State, 201 Kan. 377, 378, 440 P.2d 632 (1968); Wright v. State, 5 Kan. App. 2d 494, 495, 619 P.2d 155 (1980). Here, the defendant has failed to set forth anything but mere conclusions, and there is no evidentiary basis in the record for requiring an evidentiary hearing on, or appointment of counsel for, the defendant’s post-conviction motion to withdraw his plea. Affirmed.	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The opinion of the court was delivered by Safford, J.: The order complained of in this case was made by the judge of the district court in a proceeding in aid of an execution, which was prosecuted under and by virtue of the provisions of the code of 1862, Comp. L., ch. 26, §476, ei seq. Several objections are urged as to the validity of the said order, and the regularity of the proceedings by which it was obtained; but owing to the condition . . ° of the record which is brought to this court, they cannot, for the most part at least, be considered. A portion of the evidence, from which the judge below found the facts upon which the order was based, is preserved in the record, and is presented in the form of a statement in regard to the matter of the inquiry, signed by the attorneys of the party against.whom the proceeding was directed as garnishee, and sworn to by such party. But what other and further evidence was before the said judge, and what ■ facts other than those set out in the statement referred to, if such other facts were necessary to sustain the finding made, were by such other evidence proven to his satisfaction, we are not advised by the record. It follows then, that, inasmuch as it does not appear upon what the judge below acted, this court will not undertake to say that the facts established by the evidence were not sufficient to sustain such an order as was authorized by the code in like cases; §479, ch. 26, Comp. L. 1862. As a consequence therefore, the finding of the judge, and his order requiring the. plain tiff in error to pay the money in his hands as garnishee, into the hands of the clerk of the district court, will not be disturbed. But that part of the order awarding an execution against the garnishee to collect the money, in case of default in the payment thereof to: the clerk, we think was wrong, and for the reason that it was not authorized by the sections of the statuté relating to such proceedings as were had in this case, or any other provision of the code which has been brought to our notice. It is contended that the proceedings before the judge were irregular, and not in conformity to law. This may be true to some extent; but we think that any informality was waived by the voluntary appearance and answer of the garnishee, and cannot be taken advantage of here. The order entered below will be modified in accordance with the views above expressed, and the costs in this court divided equally between the parties. All the Justices concurring.	[ -80, 106, -40, -35, 42, -32, 42, -102, 84, -95, -25, 83, 41, -126, 4, 35, 115, 63, 116, 121, 70, -77, 22, 65, -13, -13, -45, -43, 49, -20, -26, -36, 76, 32, -22, -43, 102, 98, -63, -44, -50, 1, -87, -23, -37, 0, 48, 59, 18, 11, 101, 30, -29, 40, 25, -54, 105, 40, -55, 47, -48, -15, -98, -115, 111, 6, -109, 38, -100, 3, -56, 46, -104, 49, 2, -8, 115, -74, 6, 84, 109, -5, 9, 98, 102, 1, 117, -51, -72, -40, 55, 126, -115, -89, -102, 89, -22, 9, -106, -99, 110, 16, -89, 118, -25, 21, -103, 108, 73, -113, -106, -79, 31, 52, -102, 74, -21, -127, 17, 81, -50, -30, 92, 102, 80, -101, -122, -112 ]
The opinion of the court was delivered by Abbott, J.: This is a direct appeal by Lawrence C. Stafford from his convictions and sentencing for two counts of first-degree murder, one count of aggravated burglary, and one count of unlawful possession of a firearm. He was sentenced to consecutive life sentences without the possibility of parole for 40 years for the murder offenses. The other sentences were to run concurrently with each other and with the murder sentences. The defendant raises several evidentiary issues and claims the trial court erred in replacing a juror during the sentencing phase of the trial and in imposing consecutive hard 40 sentences. Stafford had a three-year relationship with one of the victims, Maiy Workman. On January 5, 1992, someone broke into Workman’s home and shot and killed her and a male friend, John Kang. Entry appeared to have been through a basement window, and Stafford’s fingerprints were found on both the interior and exterior basement window. Stafford had conveyed to a number of people his intention to kill Workman and King, and at one time he was charged with illegally entering King’s apartment after he was found hiding behind the refrigerator with a loaded shotgun in October 1991. This is not a fact-driven case; facts will be added as necessary in discussing the issues. I. HEARSAY At trial, Roy Danks, the Emergency Medical Technician who treated King at a neighbor’s house where King had gone seeking help after he was shot, testified that King told him Stafford had shot both King and King’s girlfriend. Danks admitted that he never heard King say that King “saw” Stafford shoot him and his girlfriend. The neighbor testified that when he discovered King on his back porch, King said that he and his girlfriend had been shot, and when the neighbor asked who shot him, King replied, “Larry Stafford.” The admissibility of Danks’ testimony concerning what King told him was determined prior to trial. The State sought to admit the testimony under K.S.A. 1993 Supp. 60-460(d)(2) or (3). Stafford responded with a motion to suppress the statements King made to Danks. A hearing on both motions was held immediately before trial, and the trial court ruled that the statements were admissible pursuant to K.S.A. 1993 Supp. 60-460(d)(3). K.S.A. 1993 Supp. 60-460(d) provides for admitting into evidence ‘‘[a] statement which the judge finds was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.” This court has recognized that “[t]he trial court is necessarily given considerable discretion in admitting statements under this exception. [Citations omitted.] In Smith v. Estate of Hall, 215 Kan. 262, 268, 524 P.2d 684 (1974), we held that under this provision the presence or absence of an incentive to falsify or distort is a question of fact to be determined by the trial judge in light of all the circumstances. See also State v. Brown, 220 Kan. 684, 688, 556 P.2d 443 (1976).” State v. Hobson, 234 Kan. 133, 158, 671 P.2d 1365 (1983). Stafford contends admitting the statements was error. He argues there was no evidence that King claimed to have actually perceived or observed Stafford commit the shootings. Further, Stafford argues there was no evidence that King’s statements were made without an incentive to falsify or distort. He suggests that because King was involved in a romantic triangle with Stafford and Mary Workman, because there was evidence that Stafford had on an earlier occasion broken into King’s house, and because there was evidence that Stafford had made threats against King and Workman, King could have assumed that Stafford committed the shootings without actually having seen Stafford. Stafford failed to object at trial to the testimony of Danks that King told him Stafford shot King and King’s girlfriend, although he did object prior to trial. When an unfavorable ruling on an evidentiary question is received prior to trial, a party must make a timely objection to such evidence when introduced at trial in order to preserve the issue for appeal. See State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 (1993); State v. Milo, 249 Kan. 15, 18, 815 P.2d 519 (1991); State v. Nunn, 244 Kan. 207, Syl. ¶ 5, 768 P.2d 268 (1989). Moreover, Stafford did not object, either before or during trial, to the admissibility of King’s statements through the testimony of Workman’s neighbor. Stafford’s failure to timely object at trial to the testimony concerning statements King made about who shot him and his girlfriend precludes Stafford from raising this issue on appeal. In any event, consideration of the merits of this issue reveals no error. Stafford argued to the trial court that King did not perceive Stafford commit the shootings. The trial court did not comment on this argument. Stafford points out on appeal that both witnesses testified that King did not say he actually saw Stafford commit the shootings. However, it is clear that King perceived the shootings. After he was shot, King was mobile and was able to transport himself to two houses seeking help. King was aware that he had been shot three times and that Workman had also been shot. The testimony was that King was alert when paramedics began treating him. It is reasonable that, when asked who shot him, King would merely reply with a name rather than include an indication that he actually saw the person shoot him. King’s failure to affirmatively indicate he saw Stafford shoot him does not affect the fact that the statements were made after King perceived, and was himself a victim of, the shooting. Stafford also asserts that King’s statements were not made without an incentive to falsify or distort. Stafford’s reliance on the evidence that Stafford had made threats to kill King and Workman is misplaced. The State points out the lack of evidence that King was aware of these threats. Further, Stafford’s observation that there was evidence Stafford had broken into King’s house and threatened King with a gun on a prior occasion does not necessarily show an intent to falsify or distort. King’s statements were made shortly after he had been shot, near the scene of the crime. At the time he made the statements, King feared he was going to die. Nothing indicates that King may have had an incentive to falsify or distort. The trial court’s ruling on the admissibility of King’s hearsay statements will be reversed only for an abuse of discretion. There is no dispute that King , was unavailable as a witness by virtue of his death. See K.S.A. 60-459(g). King made the statements after having recently perceived the shooting and while the shooting was still fresh in his mind. We find nothing inconsistent with the trial court’s finding that the statements were made in good faith and with no incentive to falsify or distort. There was no abuse of discretion in permitting the witnesses to testify about King’s statements that Stafford shot him and Workman. II. UNAVAILABLE WITNESS Stafford next contends that the trial court erred in allowing the transcript of Cynthia Gifford’s preliminary hearing testimony to be read at trial. Stafford claims that this was error because it violated his constitutional right of confrontation. “In cases of necessity, it is generally held that the right of confrontation under the Sixth Amendment and Section 10 of the Kansas Bill of Rights is satisfied if the accused has been once confronted by the witness against him in any stage of the proceedings on the same accusation and has had an opportunity of cross-examination.” State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987). K.S.A. 1993 Supp. 60-460(c) permits a witness’ prior testimony to be used as an exception to the hearsay rule: “Subject to the same limitations and objections as though the declarant were testifying in person, ... if the judge finds that the declarant is unavailable as a witness at the hearing, testimony given as a witness in another action or in a preliminary hearing or former trial in the same action, or in a deposition taken in compliance with law for use as testimony in the trial of another action, when . . . the issue is such that the adverse party on the former occasion had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the testimony is offered, but the provisions of this subsection (c) shall not apply in criminal actions if it denies to the accused the right to meet the witness face to face.” “Unavailable as a witness” includes a witness who is unable to be present or to testify at the hearing because of a then-existing physical or mental illness. K.S.A. 60-459(g)(3). “The sufficiency of proof of unavailability is a question for the trial court within its discretion and its ruling will not be disturbed unless an abuse of discretion is shown.” State v. Steward, 219 Kan. 256, Syl. ¶ 6, 547 P.2d 773 (1976). Cynthia Gifford testified at the preliminary hearing on March 16, 1992. She stated that Stafford was despondent and depressed and informed her that he wanted to shoot Workman in the face to disfigure her and to shoot King in the abdominal area. Gifford indicated that Stafford made these comments several times in October and early November 1991, though she did not recall the exact dates. She related that Stafford made these comments at a time when he was taking prescription drugs, sometimes in double doses and sometimes with alcohol. On May 18,1992, prior to trial, the State sought to have Gifford declared an unavailable witness and to read at trial her testimony given at the preliminary hearing. Dr. Einspahr, Gifford’s doctor, testified that Gifford was diagnosed on April 14, 1992, with cholangiocarcinoma of the liver, a cancer of the bile ducts. This cancer is not curable and treatment is largely ineffective. Gifford had elected not to undergo chemotherapy and instead opted for a treatment of pain control. She was receiving numerous medications, including two kinds of narcotics, a major tranquilizer, a minor tranquilizer, a muscle relaxant, and a diuretic. She was also receiving oxygen as needed. Gifford was medicated 24 hours a day. Dr. Einspahr testified that Gifford reported experiencing auditory hallucinations as a result of the medication she was taking. These hallucinations involved mistaking “common noises in the house for human voices,” for example. Dr. Einspahr admitted the possibility, though not a certainty, that Gifford would experience auditory hallucinations in court were she to testify. Dr. Einspahr also related that Gifford was experiencing short-term memory loss. Dr. Einspahr was unsure of die extent of Gifford’s memory loss or what her memory had been like prior to her diagnosis. He did, however, think that her memory lapses were at least in part due to the medication she was taking. Dr. Einspahr opined that Gifford was unstable. He testified that she was physically able to be present in court to testify but that it would be emotionally difficult for her. He also thought that testifying would raise her level of anxiety. Dr. Einspahr further stated that Gifford would be on medication at the time she would testify in court. He did not think that it would be in Gifford’s best physical well-being to testify, though he added that it would not injure her if it were only “an hour or two visit.” When asked whether it would be in her best mental well-being to testify, Dr. Einspahr stated: “From what I have seen, it’s likely to make her very anxious, I think, and I think that’s reversible. I mean she could be sedated [afterward] and recover from it.” The trial court ruled that Gifford’s preliminary hearing testimony was admissible pursuant to K.S.A.1993 Supp. 60-460(c). The court found as follows: “Ms. Gifford suffers from what is obviously, from the testimony, ... a terminal illness. The Doctor testifies that her appearance here would induce a certain amount of anxiety. The — Her mental status is unstable. Doctor further testifies that anxiety could cause further instability as to her mental status. She suffers from auditory — auditory hallucinations, a loss of memory and also the doctor points out that — that her memory loss is such that it may be — she may be stimulated by comments from another person, which then cause her to recollect and so forth. Well, obviously, she's not going to have the aid of another person testifying as to prompting her and so forth to cure lapses or losses in memory. “And Court, for all of those reasons, finds and concludes that [Ms. Gifford] is unavailable as a witness, as a matter of law and as contemplated by the statute, and would find, therefore, that the testimony adduced at the preliminary hearing is admissible for all of those reasons.” Though Stafford objected prior to trial to the State’s motion to admit Gifford’s preliminary hearing testimony, he failed to make a contemporaneous objection when that testimony was read at trial. Stafford’s failure to object at trial precludes him from raising this issue on appeal. See Toney, 253 Kan. at 656; Milo, 249 Kan. at 18; Nunn, 244 Kan. 207, Syl. ¶ 5. In any event, there was no abuse of discretion. While Gifford may have been physically able to be present to testify, she was not able to testify. She was diagnosed with terminal cancer less than two months before trial. She was taking numerous medications and was experiencing memory lapses and auditory hallucinations. The defendant was fully able, through the assistance of the same counsel who represented him at trial, to cross-examine Gifford at the preliminary hearing. The trial court did not abuse its discretion in finding that Gifford was unavailable as a witness and in permitting her preliminary hearing testimony to be read at trial. III. PHYSICIAN’S TESTIMONY Stafford next argues that the State impermissibly questioned a witness concerning an issue about which the State had previously objected when that witness was questioned by defense counsel. Dr. Teeter testified on behalf of the defendant. Stafford saw Dr. Teeter on September 12, 1991, complaining of chest pains which Stafford related to extreme emotional distress and being upset over the breakup of a relationship with his girlfriend. When defense counsel asked Dr. Teeter if Stafford described the nature of the breakup, the State objected to any testimony concerning statements that Stafford had made to Dr. Teeter as hearsay because Stafford was not available as a witness. (Stafford had not yet testified.) The trial court sustained the State’s objection. Dr. Teeter then testified that he saw Stafford every couple of weeks and that he prescribed Valium. On October 22, 1991, Stafford presented himself at St. Francis Hospital complaining of suicidal ideation; he had taken 30 milligrams of Valium plus alcohol, though his prescribed dosage of Valium was only 10 milligrams. Dr. Teeter testified that Stafford was admitted to the psychiatric unit at Stormont-Vail Hospital. Dr. Teeter saw Stafford during the hospitalization. The State inquired: “On October 22nd when you talked to him, it wasn’t only the question about the depression about the breakup with his girlfriend, but he also acted agitated and homicidal at that time, didn’t he?” Dr. Teeter answered: “That’s what he stated to me, yes.” Defense counsel objected on the same hearsay grounds the State had earlier asserted and asked that the answer be stricken. The State argued that it was an admission against interest, but the court sustained the objection and instructed the juiy to disregard Dr. Teeter’s response. The defendant contends this exchange between the State and Dr. Teeter was improper and requires reversal of his conviction. He states: “There was no legitimate basis for the prosecutor to pose the question; it was asked simply to present the jury with inadmissible evidence that Mr. Stafford allegedly had told his doctor that he was homicidal.” Stafford points out that it is improper for a lawyer to place an improper matter before the juiy. State v. Crowley, 220 Kan. 532, 536, 552 P.2d 971 (1976); State v. Carson, 216 Kan. 711, 713, 533 P.2d 1342 (1975). The jury was instructed to disregard Dr. Teeter’s response. An admonition to the jury to disregard evidence normally cures prejudice resulting from the improper submission of that evidence. See State v. Mick, 229 Kan. 157, Syl. ¶ 3, 621 P.2d 1006 (1981). Nothing reflects that the judge’s admonition was not sufficiently curative here. Stafford suggests that even though other witnesses had previously testified about threats Stafford had made to kill Workman and King, the other witnesses indicated that Stafford was drinking and abusing prescription medication at the time he made those threats and, therefore, the jury was more likely to give credence to Dr. Teeter’s testimony. We disagree. Stafford was also abusing alcohol and prescription medication at the time he made the statement to Dr. Teeter. Further, Dr. Teeter’s testimony indicated a general statement made by Stafford that he was homicidal, with no indication toward whom Stafford was homicidal. The other witnesses, conversely, testified about exactly whom Stafford wanted to shoot and, in some instances, how the shooting would occur. A general statement made to a doctor is not necessarily more credible than much more specific statements made to other witnesses. The judge’s admonition to the jury to disregard Dr. Teeter’s response cured any error that occurred when the jury heard Dr. Teeter’s response. See State v. Hollis, 240 Kan. 521, 535-36, 731 P.2d 260 (1987). IV. CONSECUTIVE HARD 40 SENTENCES Stafford contends that the sentencing judge abused his discretion in imposing consecutive hard 40 sentences for the two counts of first-degree murder. K.S.A. 1993 Supp. 21-4608(a) vests the sentencing judge with authority to determine whether sentences for different crimes imposed on the same day should run concurrently or consecutively. ‘Whether separate sentences imposed on the same day should be concurrent or consecutive is discretionary with the trial court. State v. Strauch, 239 Kan. 203, 219, 718 P.2d 613 (1986).” State v. Pioletti, 246 Kan. 49, 68, 785 P.2d 963 (1990). “One who asserts that the court has abused its discretion bears the burden of showing such abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Stated another way, discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Heywood, 245 Kan. 615, 621, 783 P.2d 890 (1989). See State v. Brown, 249 Kan. 698, Syl. ¶ 10, 823 P.2d 190 (1991). “The sentencing criteria set forth in K.S.A. 21-4606 apply to a trial court’s determination of the sentence to be imposed and the sentence includes whether multiple terms of imprisonment are to be served consecutively or concurrently.” State v. Adkins, 236 Kan. 259, 264, 689 P.2d 880 (1984). See Pioletti, 246 Kan. at 68; State v. Strauch, 239 Kan. 203, Syl. ¶ 8, 718 P.2d 613 (1986). The criteria set forth in K.S.A. 1993 Supp. 21-4606(b) include: “(1) The defendant’s history of prior criminal activity; (2) The extent of the harm caused by the defendant’s criminal conduct; (3) Whether the defendant intended that the defendant’s criminal conduct would cause or threaten serious harm; (4) The degree of the defendant’s provocation; (5) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense; (6) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission; (7) Whether the defendant has compensated or will compensate the victim of the defendant’s criminal conduct for the damage or injury that the victim sustained.” The trial judge found that the evidence in the case supported the findings made by the jury in recommending the hard 40 sentence, and he did impose the hard 40 sentence for both counts of first-degree murder. The trial judge then adopted the presentence investigation (PSI) report and thoroughly evaluated the sentencing factors set forth in 21-4606. He sentenced Stafford to consecutive terms of life imprisonment without eligibility for parole for 40 years for each first-degree murder conviction, to a concurrent sentence of 5 to 20 years’ imprisonment for the aggravated burglary conviction, and to a concurrent sentence of 3 to 10 years for the unlawful possession of a firearm conviction. Stafford contends that imposing consecutive sentences for the first-degree murder convictions was an abuse of discretion. He argues: “The court stated that consecutive sentences were imposed because there were separate crimes involving separate victims. This fact, however, was already factored into the sentencing decision. The juiy’s decision to recommend the hard 40 was based in part upon the fact that Mr. Stafford allegedly killed more than one person. Mr. Stafford’s punishment was thus already enhanced for this reason.” Stafford’s argument is inaccurate. The court thoroughly evaluated the requisite factors under 21-4606. Although the fact that Stafford killed two people was one factor in the jury’s decision to recommend the hard 40 sentence, this fact was not the sole reason the trial court imposed consecutive sentences on the murder counts. Other factors recognized by the court in sentencing Stafford included: Stafford had two prior offenses, one of which was for voluntary manslaughter (the other aggravating circumstance relied upon by the jury in recommending the hard 40 sentence); Stafford intended to cause or threaten serious harm as evidenced by the fact that multiple gunshot wounds were inflicted; there was no provocation; there were no substantial grounds tending to excuse or justify the offenses; and the victims’ conduct did not induce or facilitate the offenses. It was for all of these reasons that the court imposed consecutive sentences on the two counts of murder. There was no abuse of discretion in imposing consecutive sentences for the murder convictions. Moreover, relying upon a particular aggravating circumstance in imposing consecutive sentences when that circumstance has already been relied upon in imposing the hard 40 sentence, even if that circumstance is the sole reason for imposing consecutive sentences, is not inappropriate. Stafford argues: “The Kansas legislature has chosen to make the fact that the defendant’s conduct caused the death of more than one person [an] aggravating factor to be considered in the determination of whether the ‘hard 40’ should be imposed. K.S.A. [1993] Supp. 21-4625(2). Because this factor is set forth as a specific statutory basis for determining whether a more onerous sentence should be imposed, the court’s reliance upon the same factor to also order two ‘hard 40’ sentences to run consecutively constitutes impermissible multiple punishments.” He recognizes, however, that a somewhat similar argument, though not in a consecutive sentencing context, was rejected by the United States Supreme Court in Lowenfield v. Phelps, 484 U.S. 231, 98 L. Ed. 2d 568, 108 S. Ct. 546 (1988). There, the defendant was convicted of first-degree murder, an element of which under the facts of the case was that he had a specific intent to kill more than one person. This element was also relied upon by the jury in imposing the death penalty. The Supreme Court stated: “[T]he fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm.” 484 U.S. at 246. The Kansas Legislature has indicated when it does not want elements of a crime also used to enhance the sentence for the crime involved. The legislature has provided for enhanced sentences where a defendant has had particular previous felony convictions, but at the same time it created ah exception for those defendants convicted of a felony of which a prior felony conviction is a necessary element. K.S.A. 1993 Supp. 21-4504(e)(l). The new sentencing guidelines also specify that “[p]rior convictions of the present crime, regardless of number, shall not be included in the criminal history score when they are elements or enhance the severity level of the present crime of conviction.” K.S.A. 1993 Supp. 21-4712. Thus, if the legislature had intended to preclude an aggravating factor relied upon by the jury in recommending the hard 40 sentence from also being relied upon by the trial judge as a factor in imposing sentence or in determining whether sentences imposed should run- concurrently or consecutively, the legislature would have so stated. Stafford also argues that imposing consecutive sentences based on a factor relied upon in imposing a mandatoiy term of incarceration violates the Fifth Amendment double jeopardy proteCL tion against multiple punishments for the same offense. He states, “In Ohio v. Johnson, [467 U.S. 493, 499, 81 L. Ed. 2d 425, 104 S. Ct. 2536 (1984),] the United States Supreme Court noted that the double jeopardy protection against cumulative punishments ‘is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature/ ” Stafford’s reliance on this principle is misplaced. Stafford is not being punished more than once for the same offense. As discussed in the above paragraph, had the legislature intended to limit the factors justifying imposition of consecutive sentences to factors not relied upon in imposing a hard 40 sentence, the legislature would have done so. The criteria set forth in K.S.A. 1993 Supp. 21-4606 are to be considered by the court both in imposing a sentence and in determining whether sentences should be served consecutively or concurrently. Nothing limits the use of the same factors both in imposing sentence and in making that sentence consecutive to another. The fact that one of the factors considered by the jury in recommending the hard 40 sentence was also one of the factors, or even the only factor, considered by the court in imposing consecutive sentences does not constitute an abuse of discretion in imposing consecutive sentences. There was no error. V. EXCUSING A JUROR K.S.A. 1993 Supp. 21-4624 provides in part: “(2) [U]pon conviction or adjudication of guilt of a defendant of murder in the first degree based upon the finding of premeditated murder, the court upon motion of the county or district attorney, shall conduct a separate sentencing proceeding to determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If any person who served on the trial jury is unable to serve on the jury for the sentencing proceeding, the court shall substitute an alternate juror who has been impaneled for the trial jury. If there are insufficient alternate jurors to replace trial jurors who are unable to serve at the sentencing proceeding, the trial judge may summon a special jury of 12 persons which shall determine the question of whether a mandatory term of imprisonment of 40 years shall be imposed. . . . “(5) If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 1993 Supp. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 1993 Supp. 21-4628 and amendments thereto; otherwise, the defendant shall be sentenced as provided by law. The jury, if its verdict is a unanimous recommendation of a sentence of a mandatory term of imprisonment of 40 years, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. If after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of imprisonment for life with eligibility for parole and shall commit the defendant to the custody of the secretary of corrections.” (Emphasis added.) The State sought imposition of the hard 40 sentence for both murder convictions. The jury which heard the guilt determination phase of Stafford’s trial continued to hear the hard 40 determination phase. The following aggravating circumstances were submitted to the jury: “That the defendant was previously convicted of a felony in which the defendant inflicted death on another”; “[t]hat the defendant knowingly or purposely killed more than one person”; and “[t]hat the victim was killed because of the victim’s prospective performance of the victim’s duties as a witness in a criminal proceeding.” The juiy deliberated from 11:37 a.m. to 12:30 p.m. and from 1:30 p.m. to sometime before 1:55 p.m. At that time, two of the jurors requested to be excused. Judge Macnish met with both of these jurors separately, and then beginning at 1:55 p.m. each juror met with Judge Macnish, the defendant, counsel for the defendant, and counsel for the State. Juror Widner requested to be excused but after discussion agreed to continue deliberating. Immediately after Juror Widner rejoined the jury, the parties met with Juror Tuttle and addressed her request to be excused. Juror Tuttle indicated that her emotional make-up was such that she could not continue deliberating. She stated that she was becoming physically ill. She responded affirmatively when asked if she felt that the other members were “set on one side” and she was “set on the other side,” and she added that she did not feel like the jury had a choice as to the decision to make. Juror Tuttle did not think that she would be able to follow the instructions the court had given the jury, and she thought that the jury misunderstood the instructions. Juror Tuttle indicated that she thought either she or the rest of the jurors were confused about the instructions, but she did not feel that she could discuss the matter with the other jurors or that submitting a question to the court would help. Juror Tuttle stated that in her mind she was unable to serve as a juror.. The district court concluded that Juror Tuttle was unable to serve and dismissed her. After Juror Tuttle left the room, defense counsel stated: “For the record, I would like to voice my objection to releasing of Mrs. Tuttle. I don’t think, based upon the responses to the questions that were propounded to her by both the — both Mr. Debenham and the Court and myself, that there wa's sufficient information to show that she was unable to serve. I think what Ms. Tuttle — based upon what — My understanding of what she said is that she didn’t- — did .not,want to serve; she had her own convictions and she may have had some questions or something of that nature but there was nothing about her appearance, to me, that indicated that she was physically unable to serve, the more so that — and moreover, that she did not want to serve. She did not want to make that difficult decision. That would be my objection.” The State responded that Juror Tuttle did appear physically distressed “and that she is — simply wouldn’t make a decision even though it appears that she knows what decision has to be made in her mind, she will not make — that opinion.” The trial judge stated: “I feel that she did fully understand that [she had the prerogative to. not make a decision] and that — and that she simply, in her own. words, was — was unable to serve, and there was an adámancy'in her demeanor and her voice and her responses; and, for those reasons, Court found her to be unable to serve.” An alternate juror was then selected. The court instructed the jury: “[Y]ou may now resume your deliberations; and Ms. Tuttle is unable to continue and Ms. Heller is now a member of the jury with a full voice in discussions and a vote on the issues.” The jury retired to the jury room at 2:25 p.m. At 3:15 p.m., the jury presented a question and took a break before resuming its deliberations at 3:50 p.m. At. 4:33 p.m., the following question was presented: “Kathy Widner [the juror who had previously requested to be excused] does not feel she can carry out her duties in .this matter and respectfully requests to be excused.” Before the court responded to this communication, the jury informed the courf.it had reached a verdict. The jury found on both counts of murder two aggravating circumstances which outweighed any mitigating circumstances and recommended that the hard 40 sen tence be imposed on both counts. The jury was polled, and each juror, including Juror Widner, indicated he or she was satisfied with the verdicts. Stafford contends that excusing Juror Tuttie was an abuse of discretion because there was not reasonable cause to excuse her. He also suggests that her comments indicate that the jury was unable to reach a unanimous decision and therefore the court should have dismissed the jury and imposed a life sentence with parole eligibility in 15 years. Moreover, Stafford argues that the trial court improperly instructed the jury after impaneling the alternate juror. A defendant has no right to any particular juror or to the original 12 jurors who are impaneled to hear a case. State v. Stallings, 246 Kan. 642, Syl. ¶ 1, 792 P.2d 1013 (1990); State v. Haislip, 237 Kan. 461, Syl. ¶ 1, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985); State v. Heck, 8 Kan. App. 2d 496, 504, 661 P.2d 798 (1983). Likewise, a defendant has no right to have the same 12 jurors who determine his or her guilt also determine whether to recommend the hard 40 sentence. K.S.A. 1993 Supp. 21-4624(2). This court has not considered the discharge of a juror from hard 40 deliberations after the deliberations have begun. No statute deals specifically with replacing a juror with an alternate juror after hard 40 deliberations have begun. However, K.S.A. 22-3412 does provide for discharging a juror and substituting an alternate juror during deliberations. Subsection (3) provides in part: “If the alternate jurors are not discharged on final submission of the case and if any regular juror shall be discharged from jury service in any such action prior to the jury reaching its verdict, the court shall draw the name of an alternate juror who shall replace the juror so discharged and be subject to the same rules and regulations as though such juror had been selected as one of the original jurors.” Here, there were two alternate jurors impaneled prior to trial. They were not discharged upon final submission of the guilt determination phase of trial nor were they discharged upon final submission on the hard 40 determination phase. Nothing in K.S.A. 1993 Supp. 21-4624 et seq. prohibits substituting a juror during the sentencing phase after deliberations have begun. The provision in K.S.A. 22-3412(3) for replacing a juror thus is not limited to juries determining guilt; that statute also applies to a jury determining whether to recommend the hard 40 sentence. Likewise, case law concerning substitution of a juror during the guilt determination phase applies to substitution of a juror during the hard 40 determination phase. Stafford argues that the trial court erred in its instruction to the juiy after the alternate juror was substituted. The court instructed the jury, “[Y]ou may now resume your deliberations; and Ms. Tuttle is unable to continue and Ms. Heller is now a member of the juiy with a full voice in discussions and a vote on the issues.” Stafford failed to object to this instruction and thus is barred from raising a claim of error on appeal. In any event, this instruction does not amount to reversible error. Stafford points out that in Haislip, 237 Kan. at 469, the trial court after replacing a juror instructed the jury to begin its deliberations anew; this court stated: “This instruction was necessary as a defendant has a right to a verdict reached only after full participation of all the jurors who ultimately return the verdict.” After replacing a juror, the trial court should instruct the jury to begin its deliberations anew. Though the jury here was instructed to “resume” its deliberations rather than “begin anew” its deliberations, the instruction given by the trial court did inform the jury that the substitute juror was to fully participate in discussions and vote on the verdict. This instruction, while not recommended, does not amount to reversible error, particularly in light of what follows. The trial court’s excusal of Juror Tuttle is troublesome. This court has stated the standard of review of a trial court’s substitution of a juror after deliberations during the guilt determination phase have begun: The decision to discharge a juror and substitute an alternate juror lies within the sound discretion of the trial court. Stallings, 246 Kan. 642, Syl. ¶ 1; Haislip, 237 Kan. 461, Syl. ¶ 3. “The defendant has a burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court.” Stallings, 246 Kan. at 646. “Dismissing one juror and replacing that juror with an alternate is not an abuse of discretion where ‘reasonable cause’ exists.” Stallings, 246 Kan. 642, Syl. ¶ 2. See Haislip, 237 Kan. 461, Syl. ¶ 2. In Stallings, a juror was discharged because of religious convictions. The juror did not indicate his religious concerns during voir dire. Although he indicated he was the deciding vote, he also indicated that he could not make a judgment because of his religious beliefs. This court found that there was reasonable cause to discharge the juror and that the defendant had failed to show substantial prejudice; thus, there was no abuse of discretion. 246 Kan. at 647-48. In Haislip, a juror was excused without examination. The juror wrote a note requesting to be excused indicating that she was not the deciding vote but that she could not handle the fact that it was a murder trial. The trial court discharged the juror for incapacity, finding that she was “ ‘simply not up to the stress of a decision.’ ” 237 Kan. at 467. The defendant claimed prejudice because a hung jury might have resulted had the juror not been discharged. This court rejected that argument because the defendant had no right to the original 12 jurors impaneled. After reviewing portions of the juror’s voir dire examination, this court went on to find no abuse of discretion in discharging the juror. This case differs somewhat from prior cases in which a juror has been replaced. For a jury determining guilt, a hung jury results in the defendant being neither convicted nor acquitted; a hung jury leaves the case undecided and subject to retrial. In the hard 40 context, a hung jury is not an undecided jury. By statute (K.S.A. 1993 Supp. 21-4624[5]), a hung jury results in a sentence of imprisonment for life with eligibility for parole. Thus, to replace a juror who may cause a jury to be unable to reach a unanimous vote to recommend the hard 40 sentence is to deprive the defendant of a verdict. Our prior cases holding that a possible hung jury is insufficient to show prejudice are not applicable to hard 40 proceedings. The trial court cannot replace a juror during hard 40 sentencing deliberations unless it has reasonable cause and makes findings of a valid legal reason to excuse the juror other than the juror’s reluctance to recommend the hard 40 sentence. Here, the trial court made a finding that the juror “is at this point unable to further serve.” The record and findings do not set forth an adequate reason to justify excusing the juror in this case. Defendant’s sentences are vacated, and the case is remanded for resentencing. 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The opinion of the court was delivered by Valentine, J.: This is a petition in error to reverse an order of the district court of Shawnee county, setting aside the report of the referee. The action x was brought by the plaintiffs in error on the official bond of R S. Craft, Treasurer of Jackson county. The other defendants were the sureties of said Craft. The case was referred; a trial was had before the referee, and during the trial the defendant took a number of exceptions to the ruling of the referee. Jacob Iiixon, the chairman of the board of commissioners of Jackson county, was called and examined as a witness on the part of the plaintiffs in error. Said Iiixon testified, among other things, that he was present and helped to make the final settlement with Craft, and that he then supposed the settlement was all right. The witness, during his examination, held in his hand the record of said settlement, and gave some other testimony relating thereto. On cross-examination, the defendants asked the witness the following questions : “ At the time you made this settlement with Mr. Craft did you find a single item that is now embraced in that settlement to be wrong ?” “ Can you swear- now that there are any errors in that settlement?” “ Were not all the accounts and charges of Mr, Craft carefully examined by you at the time of making the final settlement ?” “ At the time of making the final settlement with Mr. Craft did you not make a careful examination of all his accounts, and find them correct ?” Objections were made to these questions by the plaintiffs, and the referee refused to allow them to be answered by the witness. The testimony of the witness, given on his examination in chief, was probably, just what the plaintiffs expected, and possibly just what they desired. The plaintiffs admitted the settlement, but desired to show that there were mistakes in the same; and in order to do this it was necessary to show that the parties making the settlement were, at the time of making the same, ignorant of any errors occurring therein — for if they were not so ignorant, there could not, of course, be any mistake. After the witness had testified con corning said settlement, and given his opinion with reference to the same at the time the settlement was made, the defendants undoubtedly had a right to cross-examine him. They had a right to cross-examine as to the nature and extent of the examination he gave relative to the different accounts, and the items of each account, and to ascertain fully the opinion he had of each item that was claimed to be erroneous. They had a right to know whether he was really ignorant of the items, as the plaintiffs claimed, and if he was so ignorant, whether he had used the proper diligence to avoid such ignorance. But if the plaintiffs were really mistaken as to the testimony of said witness; if said testimony was really different from what they expected it would be, and was solely in favor of the defendants, still we know of no rule of evidence that would prevent the defendants from a cross-examination of the witness upon such testimony. But the defendants would, of course, be confined to facts and circumstances connected with the matters stated in the examination in chief. The decision of this question disposes of the-.whole case, and therefore we do not think it is necessary to decide the other question raised in the case, or even to mention those unimportant questions, which will probably not be raised in the case again. II. There is one important question, however, which will undoubtedly be raised again on another trial of the action, which we will now consider. The ' question is, whether the board of county commissioners can maintain an action against the county treasurer and his sureties, on the treasurer’s official bond, for all moneys which the treasurer has received by virtue of his office, and failed and refused to pay over to his successor in office, or to otherwise account for, whether said moneys belong to the State, county, township, school district, or other fund; or, whether the board of county commissioners are confined to the county fund alone. It is our opinion that the board of county commissioners are not confined in their action to the county fund alone, but may sue for all delinquencies. Craft held .his office from January 8th, 1864, to January 9th, 1866. This suit was commenced September 10th, 1866. Hence the following statutes referred to, are the statutes in force during his term of office, and when this suit was commenced. The county treasurer’s bond is given to “ The Board of County Commissioners,” (§ 104, Comp. L. 1862, p. 428,) in which name counties'sue and are sued; (§ 5, p. 409.) The county treasurer’s bond is intended to cover all the different funds that come into his hands by virtue of his office; (§ 105, p. 429.) The code of civil procedure provides that “ A person with whom, or in whose name, a contract is made for the benefit of another, may bring an action without joining with him the person for whose benefit it is prosecuted.” (§34, Comp. L., p. 129.) The treasurer, in his bond, agrees to “ render a just and true account of all moneys which shall come into his hands as treasurer, whenever required by the board of county commissioners, or by any provision of law.” (§ 105, p. 429.) “ The. county clerk, in keeping the accounts of his county with the county treasurer,” charges him with all the different funds the treasurer receives, and credits him with all he pays out; (Laws of 1864, p. 70, §2; Laws of 1863, p. 103, §16; Comp. L., p. 865, § 31.) The statutes also provide that “ The said treasurer shall keep a just and true account of the receipts and expenditures of all moneys which shall come into his hands by virtue of his office, in a book or books to be kept by him for that purpose, which books shall be open at all times for the inspection of the board of county commissioners, or any member thereof, and to all county and territorial officers; and, at the annual meeting in July, of the said board of commissioners, or at such other time as they may direct, he shall settle with them his accounts as treasurer, and for that purpose he shall exhibit to them all his books and accounts, and all vouchers relating to the same to be audited and allowed.” (Comp. L., p. 430, § 110; Laws of 1864, p. 73, § 10.) ' Of course the accounts of each fund must be kept separately, and under §§ 32 and 578 of the code, (Comp. L., 129, and 225,) each township, school district, etc., may sue for delinquencies in its own fund and recover from the treasurer or from the county, or from any person that illegally withholds its funds; but this does not necessarily prevent the county-commissioners from suing the treasurer in a case like the one at bar. For the error of the referee in refusing to allow the witness Hixon to he cross-examined, as to matters upon which he had already been examined in chief, the report' of the referee ought to have been set aside; and therefore the decision of the court below is affirmed, and the cause remanded for such further proceedings as may be proper. All the Justices concurring.	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The opinion of the court was delivered by Six, J.: This case requires a focus on venue in the consideration of probable cause during a preliminary hearing. Beatrice Martinez was charged with theft of a vehicle under K.S.A. 21-3701. A car stolen from a Wichita (Sedgwick County) parking lot was discovered on fire the next day in Harvey County. Martinez had been in the stolen car with another individual who confessed to having set it on fire. The district court dismissed the complaint against Martinez based on the absence of probable cause. The State appeals the dismissal of the complaint. Our jurisdiction is under K.S.A. 1993 Supp. 22-3602(b)(l) (appeals may be taken to this court by the prosecution as a matter of right from an order dismissing a complaint, information, or indictment). We conduct a de novo review of the evidence when considering the trial court’s preliminary hearing probable cause finding. State v. Starks, 249 Kan. 516, 617, 820 P.2d 1243 (1991). The single issue is whether there was probable cause to believe Martinez had committed the crime of theft. We reverse the trial court and remand the case with directions to reinstate the charges. Facts Law enforcement officers were at the scene of a burning abandoned car in Harvey County. A passing truck driver asked if the officers investigating the fire were looking for anyone. The driver had seen two people walking about a half-mile to the south. Beatrice Martinez and Scott Riener were picked up and returned to the location of the burning car. The name on Reiner’s identification card was Robert A. Sisler. Martinez, when initially questioned, stated that she had just come from visiting family. Riener (Sisler) and Martinez denied knowledge of the theft and fire and fabricated explanations for being in Harvey County. A fireman asked if someone in the burning car had been wearing glasses. A deputy looked at Riener, who was wearing none. Eyeglass frames were recovered from the car and they appeared to match the glasses the deputy observed in the Sisler (Riener) identification photo. The car was identified as a stolen vehicle. Sisler was, in fact, Scott Riener. Upon further questioning, Riener replied that he knew the story he told was not truthful. He said that he and Martinez had been at a club in Wichita when they were approached by a person known to him as ‘Wolf.” Wolf gave him a set of car keys, saying that the car was stolen and that they could use it and then make it disappear. Riener stated that Martinez whispered “let’s take the car and go to Wichita [Newton] to visit family friends.” According to Riener, they were intoxicated. When they had driven beyond Newtoil, Riener tutned the car around and the motor died. Riener could not start' the car, so they abandoned it and commenced walking towards Wichita. They were arrested a short time later. Riener ultimately admitted that he set the car on fire. Martinez said that she and Riener had left their Wichita residence around 10:30 p.m. Using the stolen car, which had been parked in front of their residence, they drove to four or five bars in Wichita. Riener told her they could use the car and that the car needed to disappear. She stated that they started driving toward Newton but thought they had gone too far and turned around. The car died, and Riener told her to start walking. Martinez admitted knowing the car was stolen and that Riener was going to set it on fire. She said that Riener had been the driver and that she did not know how to drive. At the preliminary hearing, the State defended the Harvey County venue and requested that if the trial court did not agree, Martinez should be bound over on possession of stolen property. Riener was bound over on all charges. The trial court then reasoned: “Now, I have a lot of problems, very frankly, with the case concerning Ms. Martinez. Now, it’s clear to me that a version of events here, the State’s version, will support the charge of aiding and abetting the — the act of possession of stolen property, but it is also clear to me that the one action that we know for sure she took was counseling Mr. Riener to do this down in Sedgwick County, because that apparently — the only testimony I have is that — that that statement was made down there in a club, apparently, in Sedgwick County. It’s clear to me that Mr. Riener did something more to bring him within the ambit of the law, and that is when he crossed the county line into Harvey County he was operating the vehicle, and I’m buying the State’s argument on that that that indicates that he did exert control over the vehicle. But no act of Ms. Martinez other than continuing to ride in the vehicle has been shown, no affirmative act of any kind has been shown tying Ms. Martinez to anything further with Harvey County. Now, maybe this is a continuing offense, as the State alleges, but, frankly, I think the evidence is just too slender for me to bind Ms. Martinez over and I’m dismissing Count II as to Ms. Martinez." The trial court also found no probable cause to bind Martinez over on the possession of stolen property charge and ordered her released from custody. Applicable Statutes K.S.A. 1993 Supp. 22-2902(3) requires that a defendant be bound over for trial if from the evidence presented at the preliminary hearing it appears a crime has been committed and.there is probable cause to believe the defendant committed the crime. We discussed the rules applicable to preliminary hearing probable cause bind-overs in Starks, 249 Kan. at 520. K.S.A. 21-3701, the criminal theft statute, states, in part: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property: “(a) Obtaining or exerting unauthorized control over property; or “(d) Obtaining control over stolen property knowing the property to have been stolen by another.” K.S.A. 1993 Supp. 21-3110 provides definitions for terms in the criminal code. The pertinent definitions are: “(1) ‘Act’ includes a failure or omission to take action. “(6) To ‘deprive permanently’ means to: “(a) Take from die owner the possession, use or benefit of his or her property, without an intent to restore the same; “(11) ‘Obtain’ means to bring about a transfer of interest in or possession of property, whether to the offender or to anotiier, “(12) ‘Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of tide to, interest in, or possession of property.” The relevant venue statutes are: K.S.A. 22-2609. “When property taken in one county by theft or robbery has been brought into anotiier county, the venue is in either county.” K.S.A. 22-2607 relates to aiding and abetting: “(1) A person who intentionally aids, abets, advises, counsels or procures another to commit a crime may be prosecuted in. any county where any of such acts were performed or in the county where die principal crime was committed. “(2) A person who knowingly harbors, conceals or aids another person who has committed or has been charged with a crime with intent that such other person shall avoid or escape from arrest, trial, conviction or punishment for such crime, may be prosecuted in any county where any of such acts were performed or in the county where the principal crime was committed.” ■ The State’s Contentions The State emphasizes Martinez’ involvement as an aider and abettor, although it asserts that the preliminary hearing evidence sustains the bind-over as a principal. Martinez exerted unauthorized control over the car as a principal by: (1) telling Riener to take the car; (2) riding in the car to go to clubs in Wichita; and (3) suggesting that she and Riener go to Newton to see her relatives. Martinez knew the car was stolen and rode in it to her advantage. Martinez admitted she knew Riener planned to bum the car. Martinez was guilty, in the alternative, as an aider and abettor. Anyone who aids and abets in the commission of an offense may be charged, tried, and convicted in the same manner as any of the principals involved in the crime. K.S.A. 1993 Supp. 21-3205. The facts support a finding that Martinez knowingly associated herself with the criminal enterprise and assisted in the furtherance of the criminal act. Martinez (1) told Riener to take the car when he was approached by Wolf so they could go visit her family; (2) said that Riener parked the car in front of their house; (3) stated that Riener told her they could use the car but that it would have to disappear; (4) acknowledged she knew the car was stolen and that Riener intended to set it on fire; and (5) used the car with Riener to go to clubs in Wichita and to Newton. These facts show that Martinez knew the car was stolen and would never be restored to its lawful owner. Martinez, by riding in the car, participated in permanently keeping the property from its owner. The fact that Martinez did not drive the car is irrelevant under the aider and abettor theory because she used the car to her transportation gain. Martinez intended to further the criminal enterprise when she initially was stopped by the officers and told them she had nothing to do with the car. Martinez volunteered no information about the car, nor did she try to extricate herself from her association with Riener by telling the officers that he had stolen and burned the car. Consequently, Martinez knowingly continued to cover up the criminal violations. K.S.A. 22-2609 is the controlling venue statute. Venue for the aiding and abetting charge under K.S.A. 22-2607(1) is supported in that the unauthorized control and permanent deprivation of property elements started in Sedgwick County but ended in Harvey County. Martinez knowingly concealed and aided Riener with an initial cover story that was an attempt to mask Riener s cul pability for the crime, so venue also was proper under K.S.A. 22-2607(2). Martinez’ Contentions Martinez reasons that under K.S.A. 21-3701, theft may be charged in alternative ways. The State is alleging that she either (1) obtained or exerted unauthorized control over property, K.S.A. 21-3701(a), or (2) obtained control over stolen property knowing the property to have been stolen by another, K.S.A. 21-3701(d). The State’s evidence shows that the car either was stolen by Wolf and given to Riener (the crime of receiving stolen property), or Riener stole the car himself (theft). The two crimes are mutually exclusive; one is either guilty of theft or of receiving stolen property, but not both. State v. Alvarez, 9 Kan. App. 2d 371, 373, 678 P.2d 1132, rev. denied 235 Kan. 1042 (1984). If the car was stolen by Riener before he picked Martinez up, the theft was completed prior to her involvement. Consequently, the evidence did not support the theft charge under K.S.A. 21-3701(a). In the alternative, if the car was given to Martinez and Riener by Wolf in Sedgwick County, she was guilty of possession of stolen property in Sedgwick County under K.S.A. 21-3701(d). Martinez claims the crime of receiving stolen property must be prosecuted in the county in which the property allegedly was received, citing Alvarez, 9 Kan. App. 2d 371, Syl. ¶¶ 6 and 7. Harvey County lacked jurisdiction over the receiving stolen property offense. Martinez relies on State v. Palmer, 248 Kan. 681, 810 P.2d 734 (1991), in asserting that theft is not a continuing offense. She reasons that the theft only occurred in Sedgwick County. The theft was completed when Riener stole the car. The car was driven into and removed from the parking lot by someone other than herself. She did not promote or assist in the crime. She cannot be held criminally responsible for theft because the crime was completed prior to when she came into contact with the car. Martinez concedes that Riener could be charged with theft under K.S.A. 21-3701(a) in Harvey County. However, a defendant must have committed the theft in the first county in order to be charged with theft in the county where the property is taken. No evidence suggests that she participated in the theft of the car from its original parking space. Consequently, she could not be charged with theft in Harvey County. The evidence does not support the crime of obtaining control of stolen property under K.S.A. 21-3701(d). Even if her suggestion to Riener that they take the car constitutes intentionally obtaining control over stolen property, that crime occurred in Sedgwick County and may not be prosecuted in Harvey County. The State improperly relied on the confession of her codefendant, Riener, citing Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). She could not cross-examine Riener because of his Fifth Amendment privilege. See K.S.A. 1993 Supp. 22-2902(3) (witness shall be examined in defendant’s presence at the preliminary examination). The State lacks evidence to support either theft charge absent Riener’s statements. Only evidence admissible at trial can properly be considered by the magistrate. The State relied on Riener’s confessions to implicate her, i.e., his statement that she suggested they take the car. This evidence was inadmissible and could not properly have been considered at the preliminary hearing. Martinez acknowledges that she did not object to the evidence at the preliminary hearing. Analysis Martinez admitted she knew the car was stolen yet continued to ride in it to her benefit. She knew Riener planned to bum the car but did nothing. She assisted Riener in attempting to cover up the crime when she was interviewed by the police. The coverup further points to her countenance and approval of the crime. If from the facts and circumstances surrounding Martinez’ presence at the time and from her conduct it appears that her presence did in fact encourage Reiner to commit the act, guilt may be inferred. See State v. Smolin, 221 Kan. 149, Syl. ¶ 1, 557 P.2d 1241 (1976). Martinez provided evidence that she encouraged the criminal activity and failed to take steps to oppose Riener’s actions. Her Fifth Amendment argument, appearing for the first time on appeal, is not persuasive. She did not object to the police officer’s testimony concerning Riener’s confession. Additionally, her reliance on Bruton is misplaced. Bruton involved a jury trial of codefendants Evans and Bruton. A postal inspector testified that Evans confessed to him that Evans and Bruton committed, the armed robbery. The trial judge instructed the jury that although the confession was competent evidence against Evans, it was inadmissible hearsay against Bruton. The confession was to be disregarded in determining Bruton’s guilt or innocence. The Supreme Court reversed, holding that “we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination. The effect is the same as if there had been no instruction at all.” 391 U.S. at 137. The jury trial stage has not yet arrived in the case at bar. The constitutional protections afforded by Bruton will be available to Martinez if she is tried as a codefendant. There is no constitutional right to allow the accused to confront witnesses against the accused at the preliminary hearing. See Gerstein v. Pugh, 420 U.S. 103, 121-23, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); State v. Sherry, 233 Kan. 920, 929, 667 P.2d 367 (1983). Martinez’ counsel did cross-examine the detective who related Riener’s confession. We have repeatedly held that “[o]ne who stays in a car, in which he [or she] knows the main participants in the crime plan to make their getaway, has been held to intentionally aid and abet in the commission of the crime.” State v. Huff, 235 Kan. 637, 641, 681 P.2d 656 (1984). See State v. Burton, 235 Kan. 472, Syl. ¶ 5, 681 P.2d 646 (1984). Martinez can be viewed as an aider and abettor of the theft under the application of Huff and Burton. Additionally, Martinez also can be viewed as having participated in the venture in such a fashion as to further its success. See State v. Green, 237 Kan. 146, 149, 697 P.2d 1305 (1985); State v. Gardner, 10 Kan. App. 2d 408, 417, 701 P.2d 703, rev. denied 237 Kan. 888 (1985). She actively participated in the cover-up of the crime. ,, With regard to the.venue question, we recendy considered the proper venue for.-aiding and abetting in connection with drug trafficking and possession of controlled substances. State v. Chapman, 252 Kan. 606, 847 P.2d 1247 (1993). Chapman was pros ecuted in Ottawa County, a county the car containing the drugs was driven through by two involved individuals, Porter and Heberly. Chapman was not in the car. Chapman had passed the drugs on to Porter at an Oklahoma truck stop. Chapman argued that venue was .improper. The State claimed that when Porter and Heberly received the drugs from Chapman in Oklahoma, he could have been charged in any Kansas county through which the pair drove on the way to their destination in Cloud County. We concluded that the drug trafficking was a continuing offense committed in each county Porter and Heberly traveled through in reaching their destination; consequently, venue in Ottawa County was proper. 252 Kan. at 614. Guidance for resolution of the instant case is provided by Chapman’s observation that “[t]he defendant’s participation, not the commission of the substantive offense, is the act which constitutes aid to the principal.” 252 Kan. at 614. We have held that theft is not a continuing offense. Palmer, 248 Kan. 681, Syl. ¶ 2; State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980). We choose, however, to characterize theft under the venue statute as a “traveling offense.” See K.S.A. 22-2609. Consequently, with regard to the theft allegation under K.S.A. 21-3701(a), venue was proper in either county if Martinez is, in fact, determined to be an aider and abettor. This is true even if the aiding and abetting occurred in Sedgwick County. Martinez’ reliance on Palmer is misplaced. Palmer is a statute of limitations case. We rejected Martinez’ continuing offense argument in State v. Freitag, 247 Kan. 499, 502, 802 P.2d. 502 (1990) (A bicycle stolen in Missouri surfaced at a triathlon in Kansas. Jurisdiction of a felony theft charge under K.S.A. 21-3701[a] was in Kansas. Venue was established by K.S.A. 22-2610, which indicates that when the theft occurs in another state the trial is in the county where the property is recovered.). We stated in Freitag, “As pointed out in Gainer, the continuing offense doctrine arises in statute of limitations questions and has only limited application therein. There is no statute of limitations issue in the case before us and the continuing offense doctrine has no application.” 247 Kan. at 502. No statute of limitations question is before us in the case at bar. The continuing offense doctrine is not at issue. The broad view advocated by Martinez concerning the fact that theft is not a continuing offense would render the K.S.A. 22-2609 venue statute useless. Martinez relies on Alvarez as support for her arguments concerning venue and receiving stolen property. Alvarez reasoned: “When the charge was receiving stolen property, the common law placed venue in the county where the property was received. 22 C.J.S., Criminal Law § 185 (22), p. 483; State v. Rider, 46 Kan. 332, 26 Pac. 745 (1891). “K.S.A. 22-2609 is simply a statutory statement of the general rule that a charge of larceny may be prosecuted in the county where the theft occurred, or in any 'other county into which the thief has brought the property. That statute was not intended to expand that general rule by allowing one to be prosecuted for receiving stolen property in any county other than that where the property was allegedly received.” 9 Kan. App. 2d at 374-75. The Court of Appeals' conclusion concerning the application of K.S.A. 22-2609 is not supported by any authority. K.S.A. 22-2609, a venue statute, applies to all of the acts of theft set out in K.S.A. 21-3701. The holding in State v. Alvarez, 9 Kan. App. 2d 371, to the contrary is disapproved. The consolidated theft statutes, K.S.A. 21-3701 et seq., were part of the 1970 Kansas Crimes Act passed by the legislature in 1967, with a July 1, 1970 effective date. See Wilson, Thou Shalt Not Steal: Ruminations on the New Kansas Theft Law, 20 Kan. L. Rev. 385 (1972), for a discussion of consolidation of theft statutes. K.S.A. 22-2609 was enacted as part of the Kansas Code of Criminal Procedure during the 1970 legislative session. The prior statute, K.S.A. 62-407 (Corrick), referenced “burglary, robbery, larceny or embezzlement” in place of “theft.” We conclude that when the legislature used the term “theft” in K.S.A. 22-2609, the venue statute, it intended the term to have the meaning defined by K.S.A. 21-3701 in the criminal code adopted three years earlier. We presume the legislature acts with full knowledge and information concerning the subject matter of a statute, including prior and existing legislation. Szoboszlay v. Glessner, 233 Kan. 475, 480, 664 P.2d 1327 (1983). K.S.A. 22-2609 applies to all of the acts of theft set out in K.S.A. 21-3701. Venue for the receiving stolen property charge could'either be in Sedgwick or Harvey County.	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The opinion of the court was delivered by Sarrord, J.: The question first presented for the consideration of the court upon the argument of this case, was PracticaI1y decided in the ease of Thompson v. The State, 5 Kas., 159. But notwithstanding such previous determination, and owing to the importance of the question made, as bearing upon the case at bar, it has been deemed the duty of the court to review the whole matter, and with especial reference to the authorities cited and the arguments submitted by appellant’s counsel, as sustaining the positions-they have assumed. This has been carefully done; and as a result the members of the court remain satisfied as to the correctness of the decision referred to. "We also think that the record before us, showing as it does, that the witness on account of whose absence a continuance was asked for, was beyond the limits of the State, presents a proper case for the application of the same principles and practice, and the court was right in so holding. II. It is claimed that the court below erred in the excusing of certain persons who were summoned as jurors, and who might otherwise have been u : ° accepted by the parties, as triers in this case. We are of the opinion that this whole matter of excusing jurors from serving in any particular case, and upon application to be so excused, is, to a great extent^ within the discretion of the court having cognizance thereof; and unless such discretion has been abused, a reviewing court will not interfere. Such does not appear to have been the case in the present instance; and besides, the record shows that a jury acceptable to all was in fact obtained. III. It is further claimed that the court erred in permitting certain witnesses to testify on the part of the State whose names were not indorsed upon the in-x formation before the trial. It is the duty of _ . . _ , the prosecuting attorney to indorse upon such information the names of the witnesses known to Mm at the filing of the same; and with respect to the names of such other witnesses as may afterward become known to him, they are to be indorsed before the trial, under the direction of the court. Crim. Code, Gen. St. 1868, p. 831, § 67. These provisions are no doubt wise and salutary in their aims and effects. But as we understand it, there is nothing in them, or any other statute which would have the effect of prohibiting a witness from testifying whose name had become known to the prosecution after the commencement of the trial, and without his name being indorsed upon the information at all. Nor do we think that such a prohibition, if it did exist, would as a rule be calculated to promote j ustice. Cases, as is. well known to every practitioner at the bar, often occur, where during the progress of a trial, a necessity arises for the introduction of certain kinds of testimony which could not have been known or anticipated on the part of the prosecution before the commencement of the trial; as, for example, if it should be within the power of the prosecution, and justice should require, the impeachment of a witness sworn on the defense, and such witness had been hitherto entirely unknown to the prosecuting attor ney. In sueb a case the universal practice has been to call and examine witnesses without regard to their having been previously named and summoned, or even thought of. Other instances, in which the adoption of a rule such as is contended for might operate to defeat the ends of justice, will readily be suggested; and it is not seen how injustice would be likely to result from allow-1 ing such witnesses to be examined in any case. In this case, especially are we at a loss to see how the appellant has been prejudicially affected by the course pursued, relative to the matter under consideration. IV. It is further claimed that a new trial should have been granted in this case by reason of the remark of a juryman, made in open court and during the ° v 1 A progress of the trial, that “ he thought the watch sufficiently identified,” etc. Such conduct on the part of a juror was no doubt improper, and entirely1 uncalled for by the circumstances of the case. But it does not appear from the record, or otherwise, that it operated to the prejudice of the appellant. The remark of the juror did not show prior knowledge of the case, or • prejudice against the accused; nor did it indicate that the: juror was disposed to give the accused any other than a fair trial. Then, as to its having- any possible effect on the minds of the remaining eleven jurors, it is-not claimed or even intimated in the arguments of counsel. How, then, shall we say that the verdict was affected thereby? ■ V. But again it is claimed that the court below erred in the instructions to the jury in the following statement: “ Should you find defendant guilty of the murder of Jacob Barnett, without deliberation and premeditation, except in those• cases embraced in the statute-which T have read to yoü, the offense would be murder in the second degree.” The objection urged here, and to the instruction given at the instance of the county attorney, is, that the court assumed that a killing and murder had been committed. Considered apart from the rest of the charge, and unexplained, this objection might be held to rest upon substantial grounds; but taking the instructions named in connection with what goes before, and as explanatory of them,, we are of the opinion that the jury could not have been misled thereby. But we think the charges complained of could not have prejudiced the appellant, upon another ground, and that is, from the fact charged, and by the finding and verdict of the jury, they may be regarded, as it were, out of the case, so far as any influence they might have had upon the minds of the jury. The instructions named related to inferior degrees of homicide; while the accused was charged with, and convicted of, murder in the first degree. VI. Another point is urged for the appellant, relative to the.'giving of a charge by the court concerning the effect, as testimony, of the affidavit for a continuance, and which charge it is claimed was not heard or understood by all of the jury. We think that this objection is scarcely worthy of serious consideration. The very fact that the affidavit had been read and treated as the deposition of the absent witness, and as the law prescribes, and especially when taken in connection with the further fact, as shown in the record and admitted upon the argument, that the charge asked for was in fact read to the jury, would seem to show beyond a doubt that the court performed all that could be reasonably required in the premises, and that the jury must have fully understood what was the duty required at their, hands, as relating to the testimony referred to. VII. The last point made by the appellant is, that the verdict is not sustained by sufficient evidence. This however, is not specially pressed, and we do not feel called upon to examine the testimony at length in this opinion. We will say, however, that after a careful reading of the entire record, we are of the opinion that the jury had the warrant of ample testimony to support their finding. Some other questions are raised upon the record and argument of counsel, but they do not seem to call for any pai’ticular discussion. We think there is no error shown in this ease for which a reversal of the judgment should be had. The judgment of the court below must be affirmed. All the Justices concux’ring.	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The opinion of the court was delivered by McFarland, J.: This is an appeal from an award of punitive damages entered in an action by the beneficiaries of a trust for recovery of damages for oil and gas investments made by the Trust. This is the third time the case has been before us. The factual background underlying the action is complex and is set forth in Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1991), hereinafter referred to as Gillespie 1. In that opinion, inter alia, we affirmed the basic compensatory damage award against Paul Seymour, Jr., (hereinafter referred to as Seymour) in the amount of $2,476,422 plus certain allowances for a total damage award of $3,320,029. Awards of punitive damages had been entered against Seymour in the amount of $2,000,000 for a period prior to July 1, 1987, and $89,250 for the period thereafter. K.S.A. 1993 Supp. 60-3701 controls the determination of punitive damage awards on actions accruing between July 1, 1987, and July 1, 1988. We stated: “The trial court found the plaintiffs’ cause of action herein accrued in August 1987. Without stating any legal basis therefor, the trial court circumvented the operation of the [K.S.A. 1990 Supp. 60-3701] by entering two separate punitive damage awards based on the effective date of the statute (July 1, 1987). The award for punitive damages based on conduct occurring prior to July 1, 1987, was made without application of the statute, and the post-July 1 award was presumably in compliance with the statute, although we cannot see from the record the basis for the $89,250 calculation. ‘We hold that the determination of the punitive damage award against Seymour was erroneous. Only one award of punitive damages may be entered, and it must be made in accordance with the mandates of K.S.A. 1990 Supp. 60-3701. The awards of punitive damages entered against Seymour must be reversed and the case remanded for entry of a punitive damage award determined pursuant to K.S.A. 1990 Supp. 60-3701.” 250 Kan. at 146. On remand, the trial court’s determination was as follows: “MEMORANDUM OPINION “I have been directed by the Supreme Court to malee a single punitive damage award. This ruling applies to Paul Seymour, Jr. I previously made awards for punitive acts before July 1, 1987 and for punitive act[s] after July 1, 1987. (July 1, 1987 is the effective date of K.S.A. 60-3701.) “The previous award of punitive [damages] was for $89,250 subsequent to July 1, 1987 and for $2,000,000 prior to July 1, 1987. “The Court finds that the profitability of defendant’s misconduct exceeds the limitation of K.S.A. 60-3701(e). The profitability existed for many years more than the number of years set out in Section (e). The acts began in 1974 and continued until 1987. Plaintiffs suggest that the limitation of section (f) is $6,439,039. “My previous award as to Paul Seymour, Jr., was $2,089,250. Other awards of punitive damages were made but were reversed on appeal. “I will not change the amount of the award because of the reversals. “Punitive damages are awarded to plaintiff against Paul Seymour, Jr., in the amount of $2,089,250.00 “Judgment is entered for plaintiffs against defendant, Paul Seymour, Jr., for punitive damages in the amount of $2,089,250.00.” Seymour appealed this decision, and we again reversed the punitive damage award against Seymour (Gillespie v. Seymour, 253 Kan. 169, 853 P.2d 692 [1993], hereinafter referred to as Gillespie II). K.S.A. 1993 Supp. 60-3701 has remained unchanged at all pertinent times herein although it was referred to as K.S.A. 1990 Supp. 60-3701 in Gillespie I and K.S.A. 1992 Supp. 60-3701 in Gillespie II, by virtue of the time each case was before us. K.S.A. 1993 Supp. 60-3701 provides: “(a) In any civil action in which exemplary or punitive damages are recoverable, the trier of fact, shall determine, concurrent with all other issues presented, whether such damages shall be allowed. If such damages are allowed, a separate proceeding shall be conducted by the court to determine the amount of such damages to be awarded. “(b) At a proceeding to determine the amount of exemplary or punitive damages to be awarded under this section, the court may consider: (1) The likelihood at the time of the alleged misconduct that serious harm would arise from the defendant’s misconduct; (2) the degree of the defendant’s awareness of that likelihood; (3) the profitability of the defendant’s misconduct; (4) the duration of the misconduct and any intentional concealment of it; (5) the attitude and conduct of the defendant upon discoveiy of the misconduct; (6) the financial condition of the defendant; and (7) the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplaiy and punitive damage awards to persons in situations similar to those of the claimant and the severity of the criminal penalties to which the defendant has been or may be subjected. “At the conclusion of the proceeding, the court shall determine the amount of exemplary or punitive damages to be awarded and shall enter judgment for that amount. “(c) In any civil action where claims for exemplary or punitive damages are included, the plaintiff shall have the burden of proving, by clear and convincing evidence in the initial phase of the trial, that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice. “(d) In no case shall exemplary or punitive damages be assessed pursuant to this section against: (1) A principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer; or (2) an association, partnership or corporation for the acts of a member, partner or shareholder unless such association, partnership or corporation authorized or ratified the questioned conduct. “(e) Except as provided by subsection (f), no award of exemplary or punitive damages pursuant to this section shall exceed the lesser of: (1) The annual gross income earned by the defendant, as determined by the court based upon the defendant’s highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded; or (2) $5 million. “(f) In lieu of the limitation provided by subsection (e), if the court finds that the profitability of the defendant’s misconduct exceeds or is expected to exceed the limitation of subsection (e), the limitation on the amount of exemplary or punitive damages which the court may award shall be an amount equal to 11/2 times the amount of profit which the defendant gained or is expected to gain as a result of the defendant’s misconduct. “(g) The provisions of this section shall not apply to any action governed by another statute establishing or limiting the amount of exemplary or punitive damages, or prescribing procedures for the award of such damages, in such action. “(h) As used in this section the terms defined in K.S.A. 60-3401 and amendments thereto shall have the meaning provided by that statute. “(i) The provisions of this section shall apply only to an action based upon a cause of action accruing on or after July 1, 1987 and before July 1, 1988.” In Gillespie II, we held: “The enactment of K.S.A. 1992 Supp. 60-3701 (and its companion K.S.A. 1992 Supp. 60-3702) represents a substantial change in the award of punitive damages in Kansas. Prior thereto, the trier of fact determined the amount of damages based upon rather nebulous factors. Appellate review thereof was limited. We stated the general rules relative to punitive damages in Binyon v. Nesseth, 231 Kan. 381, 386, 646 P.2d 1043 (1982), as follows: ‘An appellate court will not find a punitive damage award excessive unless it is of a size to shock the conscience of the appellate court. See, e.g., Cantrell v. R. D. Werner Co., 226 Kan. 681, 686, 602 P.2d 1326 (1979); Henderson v. Hassur, 225 Kan. 678, 697, 594 P.2d 650 (1979). The Court of Appeals in 7 Kan. App. 2d at 118 quoted Henderson v. Hassur on principles of law governing the extent of punitive damages allowed. That portion of Henderson reads: “ ‘It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 273, 133 P.2d 149 (1943). Punitive damages are imposed by way of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs. Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 402, 507 P.2d 189 (1973). The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. Will v. Hughes, 172 Kan. 45, 55, 238 P.2d 478 (1951). In fixing an award of punitive damages a jury may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. Ayers v. Christiansen, 222 Kan. 225, 229, 564 P.2d 458 (1977).’ 225 Kan. at 694.’ ” “Under K.S.A. 1992 Supp. 60-3701, a bifurcated proceeding is established. The trier of fact determines if punitive damages should be awarded. The court, in a separate proceeding, then establishes the amount thereof. A substantial list of factors is set forth in the court’s consideration in determining the amount of the award. Limitations on the amount of the award are set forth in subsection (e) and (f) as follows (repeated for convenience): ‘(e) Except as provided by subsection (f), no award of exemplary or punitive damages pursuant to this section shall exceed the lesser of: (1) The annual gross income earned by the defendant, as determined by the court based upon the defendant’s highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded; or (2) $5 million. ‘(f) In lieu of the limitation provided by subsection (e), if the court finds that the profitability of the defendant’s misconduct exceeds or is expected to exceed the limitation of subsection (e), the limitation on the amount of exemplary or punitive damages which the court may award shall be an amount equal to IV2 times the amount of profit which the defendant gained or is expected to gain as a result of the defendant’s misconduct.’ “We believe that it is the clear legislative intent of K.S.A. 1992 Supp. 60-3701(e) and (f) that sufficient findings of fact be made by the district court to afford meaningful appellate review of the size of the award. If the award entered had been $865,861 under (e)(1) it would have been sufficient herein to state that amount, as the parties had agreed on the figure. The district court opted, however, to award punitive damages subject to the restriction in subsection (f). It was, therefore, incumbent upon the district court to make sufficient findings of fact to afford meaningful appellate review. This, obviously, did not occur herein and the punitive damage award against Paul Seymour, Jr., must, again, be reversed and the matter remanded for redetermination. Under the totality of the circumstances, we conclude that, upon remand, the matter should be assigned to a different district court judge. “The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.” 253 Kan. at 172-74. On the remand of Gillespie II, Judge C. Robert Bell replaced Judge Paul Buchanan. Judge Bell awarded punitive damages against Seymour in the amount of $2,000,000 under K.S.A. 1993 Supp. 60-3701(f). In this action, Seymour appeals therefrom. By virtue of the issues raised, it is necessary to set forth, in toto, the memorandum opinion of the trial court as follows: “FINDINGS OF FACT, CONCLUSIONS OF LAW and AWARD OF PUNITIVE DAMAGES “As the Supreme Court has pointed out in its opinion found in Gillespie vs. Seymour, 253 Kan. 169 (1993), the factual background of this case is complex and is mostly set forth in Gillespie vs. Seymour, 250 Kan. 123, 823 pac. 2nd 782 (1991), referred to in the later opinion as Gillespie I. The Court will refer to the later opinion as Gillespie II. The Court in Gillespie I awarded total compensatory damages of $3,320,029. Of this figure $843,607 was a tax correction factor added to a basic award for compensatory damages in that initial case of $2,476,422. The compensatory award was left undisturbed by the Appellate Court in both Gillespie I and Gillespie II. In Gillespie I the Trial Court had awarded punitive damages on a bifurcated basis according to the years in which the various activities took place and which were governed by different punitive damages statutes. The Court also awarded punitive damages against others than Paul A. Seymour Jr. In Gillespie II the Supreme Court set aside the finding of the trial court awarding punitive damages against Paul Seymour Jr. in the amount of $2,089,250. for the reason that the Trial Court failed to make findings relating to the assessment of the punitive damages. The Court ordered that upon remand the matter should be assigned to a different District Court Judge. It has been assigned to this division. “The Court has conducted an evidentiary hearing and has received briefing from counsel in connection with the matter and has made the following preliminary ruling before commencing the evidentiary hearing; to wit; that the threshold issue before the Court is the question of the profitability of the actions involved in Paul Seymour Jr. and that the Court would assume that the entire amount awarded as compensatory damages was profit to Seymour unless the defendant Seymour could carry the burden of going forward to demonstrate otherwise. Defendant Seymour, through his counsel, has objected to this ruling of the Court but the proceedings were conducted with that rule in place. Following the presentation of evidence, the Court extended to counsel for all parties for an opportunity to supplement the record; the additional exhibits submitted are hereby incorporated as D, E, F, and G. The defendant contends that the maximum amount available under subsection (f) of K.S.A. 60-3701 is $632,520, and because that amount is less than that available under subsection (e), it is not appropriate to award damages under subsection (f). “The amount available under subsection (f) is calculated by defendant by combining the trust ‘overcharges’ and the profit earned by Paul Seymour, Jr. on the oil and gas leases he owned individually. According to plaintiffs’ expert, Gary Gibbs, the Brown-Gillespie Trust was overcharged a total of $668,149. during the period from 1974 through 1987. (Plaintiffs’ Trial exhibit 77). Since Paul Seymour, Jr. was a fifty-one percent owner of Arrowhead Petroleum, his maximum profit from those overcharges would be $263,532. (Defendant’s Calculation of Profit). Paul Seymour Jr. earned $368,988 profit on oil and gas wells he invested in during the period from 1974 through 1987. (Defendant’s Calculation of Profit). The overcharges and the profit combine to equal a maximum of $632,520. (Id.) According to K.S.A. 60-3701 (f), that subsection is only to be applied in cases in which the defendant’s profit exceeds the amount available under subsection (e). Therefore defendant contends that since profit earned from the wrongdoing did not exceed $865,861, subsection (f) should not be applied. “The Court makes the following findings: “1. Paul A. Seymour Jr. was aware that his misconduct, that is, his finagling and cheating the Trust would cause serious harm and damage to the Trust or as stated by the Court in Gillespie I at page 137 ‘In the case before us, overcharging the Trust account is only a portion of the claim. The Trial court found, in essence, that Seymour systematically engaged in a plan to allocate worthless or low value oil and gas interests to the Trust, in exchange for its investments in the company he dominated, Arrowhead.’ At page 142 ‘In essence (the Trial Court) held that the Trust was systematically cheated in the way Arrowhead and Seymour applied the investment funds.’ “2. Seymour’s highest gross annual income within the five year period as provided under K.S.A. 60-3701(e)(l), was $865,851. “3. Seymour’s misconduct occurred over a period of at least 14 years from 1974 to 1987. He will be seventy years old on January 7, 1994. “4. Seymour concealed his misconduct over said 14 year period by failing to maintain adequate business records; destroying business records; and in failing to advise Pauline Gillespie of the full story of how the Trust monies were handled. “5. Seymour’s attitude upon discovery of his misconduct was consistent denial evidenced by his testifying untruthfully at the time of trial to justify his misconduct. This attitude shows no sign of amelioration or change even to the present. No expression of contrition or acknowledgment of wrongdoing has ever been made in this record by Seymour. “6. Evidence of Seymour’s financial condition was offered at the punitive damages evidentiary hearing conducted on November 7, 1990. At that time plaintiff exhibit 1 reflected Seymour’s net worth to be $595,356. All defendants filed for protection under the Bankruptcy Act Chapter 11 on December 28, 1990 and the proceedings ongoing in the bankruptcy court have not resulted in a final executed plan but are still undergoing a series of revisions. The Court finds that the motions by the plaintiffs to have all or portions of the compensatory damages awarded by the trial court declared nondischargeable have not yet been acted upon. The Court further finds that any punitive damages awarded herein will be nondischargeable in bankruptcy. “7. Seymour has received [sic] no other damages or punishment, civil or criminal, resulting from his misconduct. “8. The maximum award under K.S.A. 60-3701(e)(l) is $865,861. “9. Seymour’s profitability from said misconduct was $2,642,500., the amount of money Seymour benefitted by cheating the Trust. It is irrelevant that he was not a good enough oil operator to multiply the ‘ill gotten’ funds. “10. The maximum award under K.S.A. 60-3701(f) is one and one half times $2,642,500. or $3,963,750. The Court expressly rejects the notion that the defendant Seymour has been adequately punished by the award of actual damages herein. The Court notes that Seymour utilized Trust funds to fulfill his obligations to participate in other drilling programs on wells completed as dry holes and that he utilized carried interests made possible by the Trust funds as a means of additional compensation to himself and other employees of his operating company. The Court further is of the opinion that the activities of Seymour are matters of high profile in the oil business in general and that the oil business is particularly sensitive to the deterrent effect of punishment for fraudulent and finagling activities. As then Justice Schroeder said in Adair vs. Transcontinental Oil Co., 184 Kan. 454, 338 pac. 2nd (1959) at page 472, ‘The oil industry is fraught with brilliant and ingenious minds, some of which, lured to the industry by the element of chance and potentially fabulous profits, are bent upon sharp practices. The law must be ever vigilant to prevent fraud.’ “The Court is of the opinion that it is not necessary to award the maximum possible damages of $3,963,750. to have a deterrent effect on others but the Court is disturbed by the apparent necessity, due to the complicated history of this case, that it should award something less than an amount equal to the actual compensatory damages (unadjusted for tax benefits) as punitive damages. It is of course true that there were activities by others such as Dorothea and Paul Seymour III which could have contributed to the cumulation of the actual damages and for which the Supreme Court has previously decided that Dorothea and Paul III should not be liable for participating in a breach of trust for punitive damages. This Court accordingly takes cognizance of these rulings when it states that the punitive award should be somewhat reduced from the amount of compensatory damages by virtue of these rulings. “The Court finds that the award of punitive damages in this case against Paul Seymour Jr. should be and hereby is assessed at $2,000,000. “This order is effective upon the date it bears having been filed by the Court with the Clerk in the original and copies disseminated to Counsel on said date. “October 25, 1993 “DATED “/s/ C. Robert Bell “C. Robert Bell “Judge, Division 24 The first three issues herein are interrelated and are as follows: 1. Whether the trial court erred in imposing upon Seymour the burden of proving the amount of punitive damages; 2. Whether the trial court committed error by disregarding the undisputed evidence of Seymour s “profit”; and 3. Whether the punitive damage award is supported by the evidence; Central to all three issues is whether the trial court erred in its holding as to what constituted Seymour s profit. As will be recalled, an award for punitive damages under K.S.A. 1993 Supp. 60-3701(e) may not exceed the lesser of: “(1) The annual gross income earned by the defendant, as determined by the court based upon the defendant’s highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded; or (2) $5 million.” It is undisputed that the annual gross income under subsection (e)(1) is $865,861. The punitive damage award herein may not exceed that amount unless the court finds the profitability of the defendant’s misconduct exceeds or is expected to exceed $865,861 (subsection [f]). Seymour introduced expert testimony that he personally profited from the Trust’s investments in Arrowhead Petroleum, Inc., the corporation in which Seymour is an officer and 51 percent owner of the stock, in the amount of $632,520. Inasmuch as this sum is less than $865,861, Seymour argues the trial court erred in awarding damages under subsection (f). We do not agree. Before proceeding further it is appropriate to clear up the confusion that appears to exist in the trial court’s opinion by virtue of the inclusion of two figures as to the Trust’s damages. The basic compensatory award was $2,476,422, to which were added certain allowances for a total compensatory damage award of $3,320,029. The complex means used to arrive at these figures is discussed in Gillespie 1 and need not be repeated herein. In Gillespie 1 there was a finding that the Trust’s investments in Arrowhead were in the amount of $2,642,000. As we stated in Gillespie I: “In essence, the trial court voided all the Trust’s Arrowhead investments from and after 1974, took off the tax savings made each year as a result of the investments, computed what the Trust would have made in the after-tax investments of part of the Trust’s stock and bond portfolio, and allowed for income tax on the judgment. This, the trial court concluded, would make the Trust whole for the damage it had sustained.” 250 Kan. at 141. Thus, the $2,642,000 figure was reduced to $2,476,422 in the basic compensatory damage award. In its finding of Seymour’s profits, the trial court utilizes the total Trust investment figure of $2,642,000. No issue is raised herein as to the utilization of the gross, unadjusted figure as opposed to the basic compensatory damage figure of $2,476,422. It is clear from the trial court’s rationale that the punitive damage award would have remained the same no matter which of the two figures had been utilized. For consistency and the salce of simplicity, we will use the actual basic compensatory damage figure utilized by the trial court as Seymour’s profit. After this digression, we return to our discussion of the issues. Profit is defined in Webster’s New Collegiate Dictionary 919 (5fh ed. 1977) as: “profit ... 1: a valuable return: GAIN 2: the excess of returns over expenditure in a transaction or series of transactions; esp: the excess of the selling price of goods over their cost 3: net income usu. for a given period of time 4: the ratio of profit for a given year to the amount of capital invested or to the value of sales 5: the compensation accruing to entrepreneurs for the assumption of risk in business enterprise as distinguished from wages or rent.” This definition is consistent with the common understanding that profit is gain over expenditure. As used in K.S.A. 1993 Supp. 60-3701(b)(3) we believe it has a broader meaning. It must be borne in mind that K.S.A. 1993 Supp. 60-3701 applies to punitive damage awards in general. Product liability actions frequently include claims for punitive damages. In such actions there is no correlation between the compensatory damage award and the defendant’s “profit” on the transaction. A product which sold for $25 may cause millions of dollars of personal injury or property damage. In such cases “profit” involves looking at the defendant’s profit from the course of conduct giving rise to the plaintiff’s injuries. See U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). In the case before us, we have an affirmed award of compensatory damages in the amount of $2,476,422. Neither personal injury nor property damage is involved. This involves money only, and the compensatory damage figure represents the Trust’s injury as a result of what the trial court refers to as Seymour’s “finagling” of its investments. Under the circumstances herein, we find no error in the trial court’s determination that the amount of compensatory damages was Seymour’s profit under K.S.A. 1993 Supp. 60-3701. To hold otherwise could lead to incongruous results. As the plaintiffs point out, under Seymour’s theory, had Seymour gambled away all the Trust moneys in Las Vegas, he could argue he had no profit at all — despite the Trust’s huge loss of funds. With this basic determination having been made, we turn to the particular claims made in the first three issues. Seymour first contends the trial court erred in placing the burden of proving punitive damages upon Seymour. This claim is without merit. The trial court had the affirmed award of compensatory damages before it. In the hearing it only afforded Seymour the opportunity to introduce evidence of and to argue that a lesser figure should be utilized as his “profit.” This does not constitute an improper shifting of the burden of proof. Next, Seymour argues that the trial court ignored the undisputed evidence from his expert that Seymour personally profited only to the extent of $632,520. This issue is controlled by our previous determination as to what was Seymour’s profit herein. Finally, Seymour argues that the award is not supported by the evidence. Again, this issue is essentially the same question as to what is profit. Additionally, we note that the trial court considered each of seven factors set forth in K.S.A. 1993 Supp. 60-3701(b) (l)-(7) and made findings of fact relative to each. These findings are supported by the evidence, and our collective conscience is not shocked by the size of the award. We find no error or abuse of discretion in any of the first three issues. For his next issue, Seymour contends that no punitive damage award should be entered herein. The crux of his argument is that as the punitive damage awards entered against him in Gillespie I and II were reversed and remanded, and as the punitive damage award herein is also fatally flawed, a sort of three-strikes-and-you-are-out-rule should preclude any further consideration of punitive damages herein. We are unaware of any case in which such rule has been applied. In any event, we have found no error in the entry of punitive damages herein and so this issue is moot. For his final issue, Seymour contends the trial court erred in holding that the punitive damage award was not dischargeable in Seymour’s pending bankruptcy proceedings. In Matter of Brown, 56 Bankr. 954, 956 (Bankr. E.D. Mich. 1986), the court stated: “The subject matter of bankruptcies is the relation between an insolvent and his creditors extending to his and their relief. Wright v. Union Central Life Ins. Co., 304 U.S. 502, 58 S. Ct. 1025, 82 L. Ed. 1490 (1938), rehearing denied 305 U.S. 668, 59 S. Ct. 56, 83 L. Ed. 434. The authority to establish a uniform system of bankruptcy rests with Congress, and is derived from the United States Constitution. This authority is codified in the Bankruptcy Code. The district courts have original and exclusive jurisdiction of cases arising under Title 11. See, 28 U.S.C. § 1334(a) “. . . The grant of federal jurisdiction to the bankruptcy court on the traditional bankruptcy matters contained in Title 11 is paramount to that of the state courts.” See In re Harris, 155 Bankr. 135, 136-37 (Bankr. E.D. Va. 1993); In re Rabeiro, 151 Bankr. 965, 967 (Bankr. M.D. Fla. 1993). In Brown v. Felsen, 442 U.S. 127, 134-39, 60 L. Ed. 2d 767, 99 S. Ct. 2205 (1979), the United States Supreme Court held that a state court decision, irrespective of its contents, could not have res judicata effect on a bankruptcy court’s determination of dischargeability because dischargeability is “the type of question Congress intended that the bankruptcy court would resolve.” 442 U.S. at 138. At issue in Brown was whether the bankruptcy court could consider extrinsic evidence in determining the discharge-ability of a judgment. The Brown decision held that the bankruptcy court could consider such evidence and that a contrary rule would frustrate the purpose of the Bankruptcy Act. Whether or not the punitive damage award is dischargeable in the pending bankruptcy proceeding is for the bankruptcy court to determine. The trial court herein lacked jurisdiction to declare the award nondischargeable and, accordingly, erred in attempting to determine this issue. The judgment is affirmed in part and reversed in part.	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By the Court: The order overruling the demurrer, and the judgment of the district court, are affirmed.	[ -110, 126, -100, -2, 74, 32, 3, -100, 70, -107, 39, 83, 35, -29, 21, 119, 19, 91, -111, 120, -10, -13, 4, -64, -10, -13, -39, -41, -77, 108, -18, 47, 76, 48, -62, -35, 102, -127, -27, -48, -58, 19, -119, 77, -31, 3, -80, -88, 82, 10, 96, 3, -45, 46, 25, -62, 41, -83, -40, -75, 65, -77, -102, -115, 15, 21, -111, 38, -98, -122, -40, -90, -124, 57, 7, -8, -77, -10, -122, 116, 107, -5, -116, -74, 104, -127, 97, -18, -68, -24, 38, -6, -97, -26, -101, 25, 42, 11, -74, 60, 100, 54, -113, 110, -29, -124, 31, 45, 22, -33, -106, -77, -113, 117, -102, -61, -49, -77, 49, 36, -19, 48, 92, 70, 93, 19, -106, -70 ]
The opinion of the court was delivered by Holmes, C.J.: This case is before the court on questions certified by the United States Court of Appeals for the Tenth Circuit pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Chief Judge Stephanie K. Seymour, Circuit Judge presiding, has certified to this court the following questions: “1. Does Kansas recognize a cause of action for loss of chance of recovery? “2. If so, what are the standards of proof for such a claim?” Although the facts of the case are unnecessary for our determination of the legal questions submitted, we deem it advisable to reiterate them as they may be helpful in providing background for a proper understanding of the issues and our resolution of them. The facts, as set forth by the certifying court, read: “On November 22, 1986, plaintiff Julie Delaney’s car collided with another automobile in the State of Kansas. As a result of the accident, the plaintiff suffered numerous injuries, including a transected aorta, lacerated knees, three fractures in the right arm, a broken nose, lacerations on the face, and neck fractures. An ambulance transported her to St. Joseph Memorial Hospital in Lamed, Kansas. When she arrived at St. Joseph, the plaintiff was complaining of chest pain. Dr. Cade, a member of St. Joseph’s staff and the physician on call on November 22, began treating her. The plaintiff alleges Dr. Cade commenced suturing the lacerations on her knees without performing a physical examination, ordering x-rays, or starting an IV. “After two hours at St. Joseph, Dr. Cade transferred her to Central Kansas Medical Center (CKMC) in Great Bend. Ms. Delaney alleges she had feeling and movement in her legs when she left St. Joseph but had lost that feeling by the time she arrived at CKMC. She also asserts CKMC was not equipped to provide her with the necessary medical treatment. Doctors at CKMC provided medical care to Ms. Delaney and then transferred her to the University of Kansas Medical Center in Kansas City. “At K.U. Medical Center, a physician performed an aortagram which showed the plaintiff had a transected aorta which had thrombosed. The physician operated on the plaintiff to repair the transected aorta. Plaintiff claims that as a result of the thrombosed aorta she is permanently paralyzed. She contends Dr. Cade’s treatment, and his delay in transferring her to a facility that was equipped to treat her injuries, deprived her of a significant chance to better recover from her permanent injuries. “The plaintiff supports her claims with the deposition testimony of three expert witnesses, Dr. Moran, Dr. Caliendo, and Dr. Harrison. These experts agree the thrombosis of her aorta caused the plaintiff’s paralysis. Between thirty and sixty separate factors predispose an individual to thrombosis, and Dr. Moran stated, it is not known why the plaintiff’s aorta thrombosed. “The defendants contend Dr. Harrison was the only witness to testify regarding any loss of chance the plaintiff may have suffered. In his deposition testimony, Dr. Harrison explained ten percent of patients with thoracic aortic injuries like Ms. Delaney’s will suffer permanent paralysis regardless of how the injury is managed. If the plaintiff was in that ten percent, she would have been a paraplegic no matter how much time passed between the accident and surgery. In addition, Dr. Harrison testified he had no way of determining whether the plaintiff was in that ten percent or in the other ninety percent. However, Dr. Harrison did state that the plaintiff’s risk of cord injury was increased five to ten percent by the prolonged period of shock that she suffered prior to surgery. “The United States District Court for the District of Kansas granted partial summary judgment for Dr. Cade, holding Kansas did not recognize the doctrine of significant chance of recovery. Delaney v. Cade, 756 F. Supp. 1476, 1484 (D. Kan. 1991). Ms. Delaney has appealed this decision to the United States Court of Appeals for the Tenth Circuit.” QUESTION ONE: DOES KANSAS RECOGNIZE A CAUSE OF ACTION FOR LOSS OF CHANCE OF RECOVERY? At the outset, we point out that the loss of chance of recovery theory in medical malpractice cases applies to two ultimate results: first, the extent to which the alleged malpractice reduced an already injured or ill person’s chance of surviving the injury or illness and, second, the extent to which the alleged malpractice reduced an already injured or ill person’s chance of a better recovery from the injury or illness. In the first circumstance, the patient fails to survive and the loss suffered is the lost chance of surviving the preexisting injury or illness or at least a lost chance of a substantial increase in the length of such survival. Most of the recorded cases involve factual scenarios in which the patient died when there was a possibility of survival or died sooner than would otherwise have resulted if properly treated. Throughout this opinion such cases will simply be referred to as loss of survival cases. In the second factual circumstance, the patient survives the preexisting injury or illness but fails to make the extent or quality of recovery that might have resulted absent the alleged medical malpractice. We will refer to such cases simply as loss of better recovery cases. In either event, the gravamen of the cause of action is negligence and, as in all medical malpractice actions, it is necessary for the plaintiff to prove three elements by a preponderance of the evidence: (1) The physician, or other health care provider, was negligent in the treatment of the patient; (2) the negligence resulted in harm to the patient; and (3) the plaintiff suffered dam ages. Cleveland v. Wong, 237 Kan. 410, 416, 701 P.2d 1301 (1985). Additionally, we note that the loss of chance cause of action was recognized by this court in loss of survival cases nearly 10 years ago. Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984). Thus, the narrow issue now before us is whether the loss of chance cause of action is also applicable to cases involving the loss of a chance for a better recovery. The United States District Court in the present case found Roberson was limited to death cases and, primarily on public policy grounds, declined to extend or recognize the loss of chance doctrine to cases not involving death. We do not find the reasoning of the district court to be persuasive. While a cause of action for the loss of a chance has been recognized in nonmedical cases since at least 1911, Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), the doctrine did not gain much impetus in medical malpractice cases until publication in 1981 by Professor Joseph H. King, Jr., of his extensive article Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L. J. 1353 (1981). The loss of chance theory arises in medical malpractice cases wherein the patient is suffering a preexisting injury or illness which is aggravated by the alleged negligence of the doctor or health care provider to the extent that the patient dies, when without negligence there might have been a substantial chance of survival or the actual recovery is substantially less than it might have been absent the alleged malpractice. In essence, the theory comes into play when the traditional probability standard of causation is not met. The loss of chance theory began receiving broad support and acceptance after the publication of Professor King’s article. In his article, Professor King presents various arguments in support of the proposition that a “lost chance” for a better recovery or survival has value and should be compensated when a physician’s negligence has destroyed or substantially reduced such a chance. “It is the thesis of this article that the loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should .be .valued appropriately, rather than treated as an all-or-nothing prop osition. Preexisting conditions must, of course, be taken into account in valuing the interest destroyed. When those preexisting conditions have not absolutely preordained an adverse outcome, however, the chance of avoiding it should be appropriately compensated even if that chance is not better than even.” 90 Yale L.J. at 1354. Thus, the issue of whether a court should adopt the loss of chance theory is essentially one of adopting a standard of causation which departs from the traditional standard applied in negligence cases. On the general question of whether to recognize the loss of chance cause of action, there are many cases on both sides of the issue. Annot. 54 A.L.R.4th 10. In Roberson v. Counselman, 235 Kan. 1006, we recognized the lost chance of recovery theory in a medical malpractice case in which the patient’s chance of survival was substantially reduced. Plaintiff’s husband sought treatment from his chiropractor, Dr. Counselman, complaining of pain in the left shoulder area and left side causing hard breathing and chest ache. Although defendant chiropractor was aware of Roberson’s prior heart history, which included medication and treatment for a heart condition during the past 10 years5 defendant failed to recognize that Roberson was exhibiting symptoms of heart disease and failed to refer him for appropriate medical treatment. Instead, defendant administered two chiropractic adjustments and released him. Later that evening, Roberson suffered a heart attack and died at his home. Roberson’s widow sued defendant, alleging that he was negligent in failing to refer her husband to a cardiologist. Specifically, she contended that defendant’s negligence substantially reduced her husband’s chances of surviving the heart attack. The district court granted summary judgment for defendant, ruling the traditional negligence standard of causation applied and that plaintiff had failed to demonstrate that “but for defendant’s negligence, deceased would have had a better than even chance of surviving the heart attack.” 235 Kan. at 1013. In support of her argument, plaintiff retained three medical experts who testified regarding the impact defendant’s negligence had on the deceased’s chances of surviving the heart attack. The first expert, a chiropractor, opined that defendant breached a duty owed his patient in not referring him to a medical specialist. The second expert, a cardiologist, testified that defendant’s act increased the patient’s chance of dying from 19 percent to 25 percent, while the second cardiology expert testified that defendant’s patient had a 40 percent chance of survival with treatment and no chance of survival without treatment. In granting defendant’s motion for summary judgment, the district court concluded that because plaintiff’s evidence demonstrated that the deceased’s chances of survival were only 40 percent at best, plaintiff failed “to establish a submissible jury issue of causation,” notwithstanding defendant’s negligence. 235 Kan. at 1013. In reversing the district court’s ruling, this court noted that summary judgment was granted due to plaintiff’s failure in establishing to a reasonable probability a causal connection between defendant’s negligence and the death of her husband and not because of insufficient evidence demonstrating that defendant had breached a duty owed to the deceased. Following this discussion, the court reviewed fundamental principles of causation, recognizing that the case afforded the court its first opportunity to consider the loss of chance theory in a medical malpractice setting. In examining the theory, the court reviewed various case law, ranging from jurisdictions which refused to recognize the theory (see Cooper v. Sisters of Charity, 27 Ohio St. 2d 242, 272 N.E.2d 97 [1971]) to those which did based upon any increased risk as set forth in Restatement (Second) of Torts § 323(a) (1963) when the harm was due to defendant’s negligence (see Jones v. Montefiore Hospital, 454 Pa. 410, 431 A.2d 920 [1981]). Additionally, we note that Jones was a case which recognized the theory of loss of chance in a non-death case. In Jones, plaintiff sued defendant physician for both failing to properly diagnose her breast cancer and the resulting harm caused from the delay in treatment. In reversing the jury verdict favoring defendant, the Pennsylvania Supreme Court held that the district court erred in charging the jury on the traditional “all or nothing” theory of proximate cause. Instead, the court adopted § 323 of the Restatement (Second) of Torts, which allows for recovery in instances where the defendant has increased the risk of harm actually sustained by the plaintiff. In doing so, the Pennsylvania court relaxed the usual sufficiency of proof necessary in order to place the issue of causation before the jury. After reviewing case law from other jurisdictions, and noting the different approaches courts have taken regarding this theory, the Roberson court rejected the traditional greater than 50 percent argument and recognized that “lost chance” was a compensable injury. In setting forth the standards of proof necessary in a loss of chance claim, the court stated: "The question of causation in cases involving negligent treatment of a potentially fatal condition (including failure to refer the patient to an appropriate specialist) is generally a matter to be determined by the finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making the determination, the finder of fact should take into account both the patient’s chances of survival if properly treated and the extent to which the patient’s chances of survival have been reduced by the claimed negligence.” 235 Kan. at 1020. In adopting a theoiy of recovery which many consider to be a radical departure from traditional standards of proof, the court reasoned: “There are sound reasons of public policy involved in reaching this result. The reasoning of the district court herein (which is similar to the extreme position taken in Cooper v. Sisters, 27 Ohio St. 2d 242), in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale a segment of society often least able to exercise independent judgment would be at the mercy of those professionals on whom it must rely for life-saving health care.” 235 Kan. at 1021. Donnini v. Ouano, 15 Kan. App. 2d 517, 810 P.2d 1163, rev. denied 248 Kan. 994 (1991), is the only other Kansas appellate court case which has considered or discussed the loss of chance theory in a medical malpractice case. It clearly illustrates the distinction between the traditional greater than 50 percent probability standard of causation and the reduced standard applied under the loss of chance theory. Donnini, a 55-year-old pharmacist, consulted Dr. Will after experiencing an episode of gross he maturia (blood in the urine). Dr. Will, a general practitioner, hospitalized his patient and called in Dr. Ouano for consultation. Dr. Ouano performed certain diagnostic tests upon Donnini but failed to diagnose his kidney cancer. Ouano was released but suffered another episode of hematuria some months later. Thereafter, he was referred to a urologist who correctly diagnosed the kidney cancer. Despite treatment, Donnini died of the disease. Donnini’s widow and his estate sued Ouano for the wrongful death of Donnini. “The decedent’s family proceeded to trial against Ouano on two alternative theories. First, they proceeded on the theory that Ouano’s negligence was the probable cause of decedent’s injuries and death. Second, they proceeded on the theory that Ouano’s negligence deprived the decedent of a substantial possibility of recovery from the cancer.” 15 Kan. App. 2d at 519. The jury found Ouano to be 41.7 percent at fault, Will 43.7 percent at fault, and the decedent 14.6 percent at fault. The jury also found Donnini’s chances for survival had he received proper medical care to be 55 percent and that he had 0 percent chance of survival under the care actually given. In affirming the district court, the Court of Appeals stated: . “Ouano argues the jury’s finding that Donnini had a 55 percent chance of survival if treated properly shows this is a loss of chance case. He argues the jury’s finding of a 55 percent chance of survival was Donnini’s chance of surviving cancer, not the raw likelihood that Ouano caused Donnini’s death. “Ouano relied on Boody v. U.S., 706 F. Supp. 1458 (D. Kan. 1989), as support for his argument. Boody was a loss of chance case where a doctor failed to diagnose cancer. The plaintiff’s cancer was misdiagnosed, and she was deprived of a 51 percent chance of surviving five years. She was not deprived of a 51 percent chance of being cured. 706 F. Supp. at 1465. “In comparison, the jury’s finding in the instant case on percentage of chance of survival is not limited to five years. Bass testified that, in March 1985, Donnini probably had a grade II, stage O, A, or B tumor, which has a good prognosis. By the time cancer was diagnosed, Donnini had a grade II, stage D tumor that had metastasized. Tumors are graded from I to IV. This indicates the tumor’s rate of growth. Stage indicates the size of the tumor and where it is located. The stage increases as the tumor grows into deeper layers of tissue. Bass testified that a patient living five years is probably cured of the tumor for which he has been treated. Thus, Donnini had a greater than 50 percent chance of being cured according to Bass’ testimony. “A cause of action in which the patient had a greater than 50 percent chance of surviving does not fall under the causation rule from Roberson. The Boody court stated: ‘Roberson is part of a growing number of courts to adopt this type of causation test and recognize a cause of action for a less than even chance of surmvaU (Emphasis added.) 706 F. Supp. at 1463.” 15 Kan. App. 2d at 521-22. The Donnini court then held: “Where a jury finds it is more likely than not that a tortfeasor’s conduct was a substantial factor in bringing about tire harm, the tortfeasor’s negligence is the cause in fact of the harm and the case is determined under traditional negligence law.” Syl. ¶ 2. “The loss of chance rule is an exception to the normal requirement of proving causation in a negligence cause of action. It applies when a doctor’s negligence eliminates or substantially reduces a patient’s chance of survival.” Syl. ¶ 3. “Where the jury finds a patient would have had a greater than 50 percent chance of surviving had he received proper medical treatment, traditional negligence rules apply, not the loss of chance rule.” Syl. ¶ 4. In addition to Roberson and Ouano, two Kansas federal district courts have considered the loss of chance of recovery theory. In Boody v. U.S., 706 F. Supp. 1458 (D. Kan. 1989), plaintiff husband sued under the Federal Tort Claims Act, alleging negligence by an Air Force physician for failing to detect lung cancer from an x-ray of his wife, who subsequently succumbed to the cancer. Plaintiff’s expert witness opined that the misdiagnosis, which resulted in a 14-month delay in discovery and treatment of the cancer, destroyed decedent’s “fifty-one percent chance of surviving five years” from the lung cancer. 706 F. Supp. at 1459-60. In finding the expert testimony persuasive, the court awarded plaintiff lost chance damages under the loss of chance of survival theory recognized in Roberson. Borgren v. U. S.,716 F. Supp. 1378 (D. Kan. 1989), was another action under the Federal Tort Claims Act in which it was alleged that Army physicians had negligently failed to diagnose breast cancer from a mammogram. The doctors’ misdiagnosis led to a three-year delay in discovering the cancer, which resulted in plaintiff undergoing a modified radical mastectomy. Relying on expert medical testimony, the court determined that the delay resulted in the plaintiff’s loss of between a 30 and 57 percent chance of survival for 10 years. The facts of Borgren are unique from Boody and from Roberson in that the patient survived and was granted damages not only for the decreased chance of survival but also for disfigurement, pain, suffering, and mental anguish. In essence, Borgren is more akin to a loss of better recovery case than to a loss of survival case even though the court referred to it as a loss of chance to survive. The loss of chance of recovery theory basically entails the adoption of a different standard of causation than usually applies in negligence cases. As we said in Roberson, “causation is easier stated than explained.” 235 Kan. at 1013. One authority attempts to explain the theory as follows: “The ‘loss of chance’ doctrine has emerged over the past decade in response to the traditionally strict standard requiring proof that in reasonable probability the defendant’s tortious conduct proximately caused the plaintiff’s injury or death. Lost chance is a concept which presents a better method to evaluate the tort victim’s diminished chance of survival or recovery when the evidence establishes the plaintiff’s possibility of survival or cure is less than probable. “Application of the lost chance principle in medical malpractice cases often involves circumstances where the plaintiff or patient was already suffering from some disease or disorder at the time the health care malpractice occurred; Consequently, the loss of chance doctrine serves to fairly compensate the plaintiff for the toriious deprivation of an opportunity to live longer or recover from a physical injury or condition inflicted by the defendant’s wrongful act or omission. In the medical malpractice context, lost chance endeavors to allow a plaintiff to recover for the diminished chances of surviving or recovering from a disease or malady which results from the health care defendant's malpractice.” (Emphasis added.) Keith, Loss of Chance: A Modem Proportional Approach to Damages in Texas, 44 Baylor L. Rev. 759, 760 (1992). In the case now before this court, we are asked whether Kansas recognizes a cause of action for loss of chance for a better recovery in medical malpractice actions. The trial court made a determination, based on its reading of Roberson, that Kansas would not recognize such a cause of action in a loss of better recovery case even though we had recognized it in loss of chance for survival cases. We have found no support for the trial court’s position. While it is true that several jurisdictions have refused to recognize such a cause of action in either type of case, we have found no jurisdiction which has applied the theory to one type of case and denied it in the other. Although many jurisdictions are like Kan sas, in that the issue has only come up in a loss of survival case or a loss of a better recovery case, none of those cases have indicated that the theory was exclusively limited to the one type of case being considered. As in most appellate opinions, these jurisdictions have merely refrained from expressing an opinion on a different factual situation not before the court for decision. In Roberson ,we were faced with the question of whether the loss of chance theoiy would apply in a loss of survival case. We determined it would and our opinion was limited to the case before us. Because the facts in Roberson involved a loss of survival case in no way detracts from the public policy expressed in the opinion. In the oft-cited case of Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), the court stated: “When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass.” 368 F.2d at 632. We have found no authority or rational argument which would apply the loss of chance theory solely to survival actions or solely to loss of a better recovery actions and not to both. As noted by plaintiff in her brief: “There is certainly nothing in that [Roberson] rationale to justify leaving the season open on persons who suffer paralysis, organ loss, or other serious injury short of death while protecting only those who do not survive the negligence.” We acknowledge that the vast majority of cases we have reviewed involved death of the patient and a loss of chance of survival. We also recognize that the apportionment of damages may be more difficult in a loss of a better recovery case than in the cases resulting in death. However, the fact that most cases have involved death of the patient and that damages may be difficult to resolve in a loss of a better recovery case should not be grounds to refuse to recognize the doctrine when medical malpractice has substantially reduced a person s chance of a better recovery. We conclude that the answer to question one: “Does Kansas recognize a cause of action for loss of chance of [a better] recovery?” is “Yes.” QUESTION 2: IF SO, WHAT ARE THE STANDARDS OF PROOF FOR SUCH A CLAIM? We now turn to the even more difficult question posed by the certifying court. As already discussed, the loss of chance theory is, essentially, one that allows an injured plaintiff to recover damages based upon a reduced standard of causation rather than the traditional one which requires the plaintiff to prove that it is more probable than not that the damage suffered was caused by the negligence of the defendant. In Boody, the court stated the basic principles required to recover for negligence based upon medical malpractice as follows: “3. Negligence in a medical malpractice action requires the plaintiff to prove three elements by a preponderance of the evidence: 1) a physician was negligent in his/her treatment of plaintiff; 2) the physician's negligence caused harm to plaintiff; and 3) plaintiff suffered damages. Cleveland v. Wong, 237 Kan. 410, 416, 701 P.2d 1301 (1985). “4. The first element, negligence, is shown by demonstrating the violation of a duty. A physician has a duty to “ ‘use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians.’ ” Durflinger v. Artiles, 234 Kan. 484, 489, 673 P.2d 86 (1983) (quoting Malone v. University of Kan. Medical Center, 220 Kan. 371, 375, 552 P.2d 885, 888 (1976)). In a medical malpractice case, ‘expert medical testimony is ordinarily required to establish negligence or lack of reasonable care on the part of a physician or surgeon in his medical diagnosis, performance of surgical procedures and care and treatment of patients.’ Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978) (emphasis added).” 706 F. Supp. at 1462-63. Here, we are concerned with the causation element of a medical malpractice cause of action. The discussion of the standards of proof of the causation element in a loss of chance case is not only inextricably intertwined with any discussion of the theory itself but also with the damages resulting from the lost or diminished chance. Although a variety of approaches has emerged among jurisdictions which have examined the loss of chance theory, three general approaches are utilized by courts confronted with the theory and the standard of proof to be adopted: (1) the all or nothing approach; (2) the relaxed standard of proof approach; and (3) the any loss of chance approach. The all or nothing approach, or traditional approach, is that approach followed by jurisdictions which refuse to recognize the “lost chance” as a distinct and compensable injury. These jurisdictions, which are now probably the minority, strictly adhere to the principle that the plaintiff must prove that the defendant’s negligence was the proximate cause of the injury or death suffered by the plaintiff. As such, the plaintiff must establish that there existed a better-than-even chance of avoiding the physical injury or resulting death. If the plaintiff meets this burden, compensation is awarded for the particular injury or wrongful death suffered, not the lost chance of a better recovery or survival. Thus, these jurisdictions refuse to relax the traditional view of proximate cause in medical malpractice actions. As pointed out in Roberson, this argument is best illustrated in Cooper v. Sisters of Charity, 27 Ohio St. 2d 242, 272 N.E.2d 97 (1971). As the all or nothing (traditional) approach is nothing more than a rejection of the loss of chance theory, which we have already determined is applicable in Kansas, further consideration of the traditional standard of proof would be irrelevant. The relaxed standard of proof approach, commonly referred to as the “substantial chance” approach, requires plaintiff to present evidence that a substantial or significant chance of survival or better recovery was lost. If plaintiff meets this initial threshold, the causation issue is submitted to the jury, using the traditional proximate cause standard to ascertain whether, in fact, the alleged malpractice resulted in the loss of a substantial or significant chance. Thus, the jury must find by a preponderance of the evidence that the alleged negligence was the proximate cause of the lost chance, but the lost chance itself need only be a substantial or significant chance, for a better result, absent any malpractice, rather than a greater than 50 percent chance of a better result. An example of this approach is found in Herskovits v. Group Health, 99 Wash. 2d 609, 664 P.2d 474 (1983). In Herskovits, representatives of decedent’s estate brought a medical malpractice action against defendant for failing to properly diagnose decedent’s lung cancer. Defendant’s negligence led to a six-month delay in the detection of decedent’s cancer. Expert testimony opined that plaintiff lost a 14 percent chance of surviving five years. The trial court granted defendant’s motion for summary judgment, ruling that defendant’s actions were not the proximate cause of decedent’s death. In reversing the trial court’s order, the Washington Supreme Court held that compensation for the loss of 14 percent was appropriate because “[t]o decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.” 99 Wash. 2d at 614. The relaxed standard of proof approach was utilized by this court in Roberson, where the court stated: “The question of causation in cases involving negligent treatment of a potentially fatal condition (including failure to refer the patient to an appropriate specialist) is generally a matter to be determined by the finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making the determination, the finder of fact should take into account both the patient’s chances of survival if properly treated and the extent to which the patient’s chances of survival have been reduced by the claimed negligence.” 235 Kan. at 1020. Although Roberson follows the line of cases which have relaxed the standard of proof necessary to permit the case to go to a jury, the court used the term “appreciable” in referring to the extent of the lost chance instead of the terms “substantial” or “significant” which other courts have adopted. Except for the Kansas federal district court cases of Boody and Borgren, which refer to Roberson, our research has failed to disclose other case law where the degree of lost .chance was described as “appreciable.” A vast majority, if not all, of the cases which adopt a relaxed standard of proof approach refer to the extent of loss as being substantial or significant. See McBride v. United States, 462 F.2d 72 (9th Cir. 1972); Jeanes v. Milner, 428 F.2d 598 (8th Cir. 1970); Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455 (1987); Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991); Kallenberg v. Beth Israel Hosp., 45 App. Div. 2d 177, 357 N.Y.S.2d 508 (1975); McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467 (Okla. 1987); Herskovits v. Group Health, 99 Wash. 2d 609. At the other end of the spectrum is the third, or any loss of chance, approach. Under this approach, the courts permit the jury to determine the loss of chance of survival or better recovery no matter how small such chance may be. Thus, plaintiffs are not required to meet any threshold but merely must prove that there was some chance, even one percent, of a better recovery. If the plaintiff is able to provide evidence that the defendant’s conduct resulted in any lost chance, even a de minimis amount, summary judgment would be precluded and the case submissible to the jury. Under this approach, courts generally base their determination on an increased risk of harm approach as stated in Restatement (Second) of Torts § 323(a) (1963). That section provides: “Negligent Performance of Undertaking to Render Services: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or tilings, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if “(a) his failure to exercise such care increases the risk of such harm . . . .” Jurisdictions utilizing this particular approach rely on § 323 as the basis for relaxing the standard of proof necessary in loss of chance actions to the extent that any degree of lost chance is submissible. Jurisdictions employing this approach include: Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824 (1985); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). One author describes the loss of any chance approach as follows: “Generally, section 323(a) of the Restatement (Second) of Torts subjects a person to liability if he increases the risk of harm to another. In medical malpractice cases, the risk of harm arises independently of the physician, yet he is responsible for any action which increases the potential for harm to result. Courts adopting this approach attempt to compensate the plaintiff for an increased risk of harm rather than the loss of a chance. Damage awards are not discounted for the percentage of harm caused by the physician and death is frequently the compensable injury. “This approach differs from the preceding approach, in that any percentage is sufficient to go to the jury, whereas, under the loss of a substantial chance approach courts are limited by their definition of substantial. However, this area really presents an entirely different theory of tort law, functionally based on a physician’s duty to rescue a patient. Cases applying section 323(a) employ language from all of the other approaches, so, in its essence, it is a hybrid of all the other approaches and not a very good one.” Boggs, Lost Chance of Survival Doctrine: Should the Courts Ever Tinker with Chance? 16 So. Ill. U.L.J. 421, 432-33 (1992). In Roberson, we recognized that this court has adopted Restatement (Second) of Torts § 323, in a different context in Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 657 P.2d 532 (1983). However, we do not read Roberson as adopting the any loss of chance approach which Boggs attributes to those cases which rely on § 323. While appreciable loss might be construed as “any loss” no matter how small, in the context in which it was used and considering the cases and authorities relied upon in Roberson, we conclude the court used the term as being synonymous with substantial or significant. Thus, we disapprove the language in Roberson and its syllabus ¶ 4 which refer to the loss of “an appreciable chance to survive.” 235 Kan. 1006, 1020. The more appropriate language would contemplate a substantial chance to survive. Considering the various approaches adopted by the courts, we are of the opinion that the middle ground or so-called relaxed standard of proof approach is the better rule. In an action to recover for tire loss of a chance to survive or for the loss of a chance for a better recovery, the plaintiff must first prove the traditional elements of a medical malpractice action by a preponderance of the evidence. The plaintiff must prove that the defendant was negligent in treating the patient, that the negligence caused harm to the plaintiff, and that as a result the plaintiff suffered damages. In proving that the plaintiff suffered harm, the plaintiff must prove that the lost chance of survival or the lost chance for a better recovery when the plaintiff does survive was a substantial loss of the chance. We do not adopt the any loss of a chance approach nor do we attempt to draw a bright line rule on the percentage of lost chance that would be sufficient for the case to be submitted to the juiy. As we recognized in Roberson, the question of causation is generally a matter to be determined by the finder of fact. Our only deviation from the Roberson standard is that the evidence must show that the patient had a “substantial” chance of survival or of a better recovery rather than an appreciable one. We now turn to the final factor in the question submitted and the issue of the proper measure of damages when there has been a substantial lost chance of survival or for a better recovery. It appears to us that any such determination must involve at least two factors. First, the trier of fact must determine the degree to which the otherwise expected recovery has been compromised or adversely affected, and, second, it must calculate the monetary damages resulting therefrom. In the death cases, the degree or extent of the harm resulting from the alleged loss of chance is obvious. It is in the recovery cases where the determination becomes far more difficult. In the loss of a chance for a better recovery cases, we are again convinced that the diminished recovery obtained as a result of malpractice must be one of substance and not merely a minor result that might possibly have been somewhat better absent the malpractice. In Perez v. Las Vegas Medical Center, 107 Nev. 1, the court limited the loss of chance theory to medical malpractice actions in which the plaintiff suffered death or debilitating injury. The Nevada Supreme Court reversed the lower court’s order for summary judgment, which was based upon the court’s conclusion that decedent “probably would have died anyway due to his serious preexisting physical condition.” 107 Nev. at 4. The plaintiff, who was being held at a local detention center, complained of illness for two days before officials admitted him to the hospital for treatment. During his four-day stay, no effort was made to diagnose plaintiff’s persistent headaches. Plaintiff died from a massive brain hemorrhage shortly after being returned to the detention center. Plaintiff’s medical expert testified that with proper medical treatment, plaintiff had no better than a 50 percent chance of surviving the brain hemorrhage. In reversing the summary judgment and adopting the loss of chance theory, the Nevada court limited any recovery to those cases in which the patient actually died or suffered debilitating injury as a result of the alleged malpractice. The court stated: “[T]he plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation.” 107 Nev. at 6. We agree that the damages recoverable should be limited to the amount attributable to the lost or reduced chance itself and not the total damages, which would include those resulting from the preexisting condition. As stated by Professor King: “The defendant should be subject to liability only to the extent that he tortiously contributed to the harm by allowing a preexisting condition to progress or by aggravating or accelerating its harmful effects, or to the extent that he otherwise caused harm in excess of that attributable solely to preexisting conditions. The effect of preexisting conditions should depend on the extent to which such conditions affect the present and future value of the interest lost.” King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353, 1360 (1981). In a case involving the loss of chance for a better recovery, the lessened degree of recovery resulting from the medical malpractice must be more than a token or de minimis amount. While we decline to limit any recovery to a result that is “debilitating,” we are satisfied that the reduced recovery or impaired result must be a substantial one. In calculating damages, there are two common approaches courts have taken in a loss of chance action. The first approach, and the minority view among applicable jurisdictions, is die valuation approach. See James v. United States, 483 F. Supp. 581 (N.D. Cal. 1980). Under this method, the court or juiy is left without instruction or guidance in ascertaining the appropriate damage figure. Instead, the trier of fact is permitted to use its experience, judgment, and common sense in determining the appropriate value for the lost chance. Although this method is the simplest because the introduction of statistical evidence is unnecessary, the goal of reaching some degree of precision in determining the loss allocation is lacking. The second and most logical approach is the proportional damage approach recommended by Professor King. See McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467 (Okla. 1987). Under the proportional damage approach, the amount recoverable equals the total sum of damages ordinarily recovered for the underlying injury or death multiplied by the percent of lost chance. Because this method requires expert medical testimony in ascertaining the appropriate (percent) amount of damages recoverable, courts employing this method eliminate the risks of compensating the plaintiff for anything other than the value of the lost chance. This method was employed by the Kansas Federal District Court in Boody v. U.S., 706 F. Supp. 1458 (D. Kan. 1989). In selecting this approach, the district court dismissed the other methods, concluding that the proportional damage method was the most reasonable approach and the method this court would likely adopt. In relevant part, the court stated: “This method is preferable because it apportions damages in direct relation to the harm caused; it neither overcompensates plaintiffs or unfairly burdens defendant with unattributable fault. Second, the percentage method gives juries and judges concrete guidelines on how to measure damages, alleviating the ‘pulling out of the hat’ problem identified with the first method. If the decision maker believes plaintiff’s expert(s) on causation, the percentage of chance lost, then it makes die usual finding on the value of a life ($X) and multiplies $X by the percentage of chance lost to arrive at the compensation for the lost chance to survive.” 706 F. Supp. at 1465-66. For a thorough discussion on the issue of valuation of lost chance, see King, 90 Yale L.J. at 1380-86. We conclude that the proper method for calculating damages in a medical malpractice action based upon the loss of a chance for survival or on a loss of the chance for a better recovery is the proportional recovery method as described in Boody and by Professor King. CONCLUSION In conclusion, we hold that (1) Kansas does recognize a cause of action for the lost chance for a better recovery due to medical malpractice; (2) to withstand summary judgment, a plaintiff must show that the lost chance for a better recovery was a substantial loss of chance as opposed to a theoretical or de minimis loss; (3) the resulting injury or lessened degree of recovery suffered by the plaintiff as the result of the malpractice must be substantial; and (4) the finder of fact shall calculate the monetary recovery on the basis of the proportional damage approach. In closing, we feel compelled to express a caveat. In adopting and applying the loss of chance theory to medical malpractice cases, it must always be kept in mind that the practice of medicine and the furnishing of appropriate health care is not an exact science. In many, if not most, instances there is more than one acceptable approach to treatment, and the fact that one doctor selects one method as opposed to another does not in and of itself mean that one method is better than or preferable to another. For eveiy treatment there are undoubtedly other doctors who might have performed or used a different one. Courts should use extreme caution in second-guessing the methods used by medical care providers, particularly in an area as nebulous as the loss of a chance for a better or more satisfactory recoveiy. We realize this opinion, coming to the court as a certified question, leaves many issues unanswered and does not provide any bright line rules of simple application. In this new area of law, the courts must be free to consider the various issues on a case-by-case basis and be free to furnish careful guidance to the jury, depending upon the facts of each case.	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The opinion of the court was delivered by Saeford, J.: This was an action brought to recover damages for the breach of a parol agreement for the sale of land. By the terms of the agreement, as appears from the pleadings and the proofs, Lister was to convey to Batson certain described lands upon an agreed consideration, and at a specified time, to-wit, on the next day but one after the making thereof. He reserved the right to occupy the dwelling situate on the premises for the period of four weeks, and to remove certain trees .and shrubs there planted and growing. Nothing was paid on account of the purchase' money, at the time or since, but Batson entered upon a portion of the premises and performed some labor, and made preparation for making some improvements thereon. It further appears that the land concerning which the agreement was made, was the homestead of Lister, and that by reason of the refusal of his wife to consent to the sale thereof he was unable to carry out his said agreement; all of which was brought to the notice of the purchaser on the next day 'after the one on which the deed was to have been made, 'and who on the next day was forbidden the premises of which the plaintiff in error still retains the possession. ' Upon the trial below, which resulted in a verdict and judgment for the sum of two hundred dollars damages as .against the vendor,\and in favor of the purchaser, the court instructed the jury that — “ The measure of damages “ in such case is the difference between the price of the “ land as agreed upon, and the amount it was worth at “ the time the conveyance was contracted to be made.” This was duly excepted to by the plaintiff in error as being erroneous; 'and it is insisted upon here as ground for the reversal of the judgment. In .view of the authorities bearing upon the question thus raised, we are of the opinion that the point is well taken. The . . current of such authorities seems to establish proposition that in case of the refusal of a vendor on a parol agreement to sell land to fulfill his contract, and when the vendee has -had possession but the purchase price has not been paid at all, and a suit is brought for damages, such vendor is only to be charged with the labor done upon such land and improvements made thereon by such vendee. In other words, the vendee in such case is entitled to compensation only for the expenditure of money and labor bestowed upon the land of which he is denied any benefit by the fault of the vendor. This it will be seen is held to be the rule in cases where possession of the land has been in yen(jee'. anc[ most certainly it ought not to be extended so as to allow increased damages in a case like the one at bar, where the possession of the vendee was at most only partial: 14 B. Monroe, 364; Hilliard on Vendors, 161, 163. It is also to be remembered in this connection that the agreement in this case was made with reference to such property, that under the constitution and laws of the State it could not be enforced in full, without the consent of the wife of the vendor, and this is shown to have been withheld: Sec. 9, Art. 15, Constitution. But it does not however, follow that the party injured by the vendor’s undertaking what he could not perform could not obtain redress to the extent of actual compensation in accordance with the rule above laid down, by a resort to a suit at law for damages. Several questions are raised and argued with great ability on the part of the plaintiff in error, but inasmuch as the case must go back on the point already noticed, it will not be necessary to discuss or to decide them. It may not be out of the way, however, to remark, that we entertain very grave doubts as to whether the record here shows that a prima facie case was even made out by the plaintiff. The judgment is reversed, and the cause remanded for further proceedings. All the Justices concurring.	[ -48, 126, -40, 47, 26, 104, 42, -40, 112, -93, 39, -45, -23, -61, 16, 99, -29, 109, 68, 106, -49, -78, 15, 3, -46, -45, -13, -51, -71, 108, -26, 85, 76, 36, -62, 85, -26, 64, -47, -48, -114, -93, -119, 109, -47, 72, 48, 57, 16, 75, 69, -98, -13, 36, 49, -50, 104, 44, 107, 53, 17, -8, -66, -113, 107, 7, -128, 38, -36, 67, -38, 108, -112, 29, 0, -24, 115, -74, -122, 84, 5, -101, 9, 102, 103, 32, 113, -17, -56, -24, 46, -2, 13, 38, 84, 88, 3, 104, -82, -99, 92, 20, -73, 118, -29, -99, -99, -83, 3, -121, -42, -93, -97, 124, -104, 24, -21, 35, 53, 97, -50, -86, 92, 97, 122, -101, -98, -37 ]
The opinion of the court was delivered by Six, J.: This case focuses on a dispute between a taxpayer and an improvement district arising from the district’s levy of ad valorem taxes to pay for bonds issued to finance sewer improvements. Our journey to resolution of the controversy considers the constitutionality of the Improvement Districts Act, K.S.A. 19-2753 et seq. (Act); the requirement of administrative remedy exhaustion; and the interpretation of K.S.A. 1993 Supp. 79-2005(m) (disbursement by the county treasurer of taxes paid under pro test). The constitutional issue involves questions concerning sufficiency of notice to the taxpayer. Voters in the Oaldawn Improvement District (Oaldawn or the District) in Sedgwick County authorized the issuance of general obligation bonds to finance a sewer repair project under the Act. Oaklawn levied ad valorem taxes against all property in the District to pay principal and interest payments on the bonds. The Boeing Company (Boeing), a taxpayer, sought an injunction under K.S.A. 60-907 prohibiting the levy, assessment, and collection of future taxes against Boeing’s tangible property located within Oak-lawn. The district court sua sponte declared the Act unconstitutional and granted the injunction. The constitutional issue was neither briefed nor argued by the parties. Oaklawn appeals. Our jurisdiction is under K.S.A. 1993 Supp. 60-2101(b) (direct appeal to this court from a judgment in a civil action in which a statute is held to be unconstitutional). We hold the Act constitutional and reverse on the basis that Boeing has not exhausted appropriate administrative remedies. Facts The facts stipulated to by the parties were approved by the district court and made a part of the record. Additional testimony was introduced at trial. Oaklawn is a quasi-municipal corporation formed by the Sedgwick County Board of Commissioners for the purpose of undertaking improvements to properties within District boundaries. Oaklawn is adjacent to the south Wichita city limits. There are approximately 1,032 homes located in Oaklawn, most of which were valued at $20,000 or less, along with several small retail establishments. Boeing owns substantial commercial facilities located south of Wichita, some of which are inside the District. Boeing also leases and conducts operations on properties within Oaklawn. One of Oaklawn’s functions has been to provide sewer service to its residents. The primary method of financing sewer construction in the District has been by assessing the costs of the improvements as fixed sums against the properties benefited. In 1980, Oaklawn constructed a new trunk line running along the western edge of the District to carry sewage to the City of Wichita plant. The trunk line was financed by an Environmental Protection Agency (EPA) grant and tax assessments based on special benefit. Oaklawn’s treatment plant was eliminated because the District was provided access to Wichita’s plant. In 1982, Oaklawn annexed, at the request of the landowner, 90 acres of unimproved property located between the boundaries of Oaklawn and the Boeing complex. The landowner petitioned for annexation to obtain sewer service for planned warehouses. The 90-acre tract was sold to Boeing in 1983. This land was part of a plan for the development of a high-tech commercial complex. As part of the planning for the project, Boeing performed engineering studies during 1983-84 to identify the sewer trunk line capacity required to service the proposed development area. Boeing determined that a 24-inch trunk line would be needed to handle the anticipated volume. Boeing informed Oaklawn of its plans and need for expanded sewage facilities. Boeing determined that the Oaklawn sewer system did not have sufficient capacity to accommodate the anticipated volume. As a result, Boeing decided to construct its own sewer system. Oaklawn’s engineering representative was notified and concurred in Boeing’s decision. Boeing estimated that the construction of the separate sewer system could cost $2.75 million. A temporary connection to the Oaklawn system was disconnected in 1985, and Boeing’s property was connected to the then operational new trunk line. At no time other than during the temporary sewer service was Boeing’s 90-acre tract or any other property owned by Boeing connected to Oaklawn’s sewer system. No other services, such as water, fire hydrants, or street lighting, have been provided by Oaklawn to Boeing properties. Commencing in 1984 through 1987, Oaklawn, at the request of the owner, annexed acreage with three office buildings for the intended purpose of providing sewer service. Boeing leased the three buildings, with a total projected occupancy of 2,050 employees. Sewer service for these buildings is provided by Oaklawn. Sewage from the leased buildings does not pass through the improvement lines which are the subject of this litigation. Boeing acquired 24 acres of unimproved land within the District. The 24-acre tract was also within the service area of the Boeing sewer line constructed in 1985, so the tract was connected directly to that system. Boeing did not seek service from Oaklawn. Oaklawn determined it was necessary to undertake a major renovation and reconstruction of its existing lateral sewer lines located in the original residential portion of the District. Oaklawn applied for an EPA grant in 1988 to finance a portion of the projected repair costs. Several methods of spreading the $1.27 million in local costs were considered. On May 31, 1988, and June 4, 1988, Oaklawn held public meetings for the purpose of discussing financing of the lateral sewer improvements. Several articles in local newspapers concerning the project and issuance of the general obligation bonds to pay for the project appeared in June 1988 (two in the Derby Daily Reporter and one in the Wichita Eagle). Oaklawn’s residents voted on June 7, 1988, to finance the local costs by the issuance of general obligation bonds to be repaid by ad valorem taxation. The EPA rejected the grant application. Oaklawn decided to undertake the sewer improvements in two phases, with the first phase covering the portions of the lateral sewer lines in the worst condition at a cost of $1 million. A letter dated March 24, 1989, with the caption, “To All Citizens of The Oaklawn Improvement District,” invited participation at an informational meeting held on April 1, 1989. The purpose of the meeting was to discuss funding for the first phase of the project. Boeing contends that it was neither notified by letter nor invited to attend this meeting. Notice of the election was published for two consecutive weeks in the Derby Daily Reporter. Issuance of the bonds required the approval of more than 50% of those voting. Sedgwick County Election Commission records indicate there were approximately 826 registered voters within Oaklawn. Boeing states that it was not allowed to vote in this election. The issuance of the first series of bonds was approved at the April 4, 1989, election by a vote of 77 in favor, 29 opposed. The second phase of the rehabilitation was similarly approved by a 40-0 vote in an election held March 20, 1990, following another informational meeting and notice by publication. Upon completion of the rehabilitation project, Oaklawn levied ad valorem taxes against all taxable real and personal property in the district to fund the sewer bond installment payments. Of the total of $205,833 in taxes levied in 1990, Boeing paid $122,150 (59.3%). Boeing paid $116,280 (67.4% of the total of $172,571) in 1991 and was assessed for $202,587 (70% of the total of $289,608) in 1992. Although Boeing did not protest the payment of the 1990 taxes, it did pay its 1991 and first half 1992 taxes under protest and currently has refund actions pending before the Board of Tax Appeals (BOTA). The assessments are levied entirely against Boeing’s tangible personal property because its real property is subject to an Industrial Revenue Bond exemption. The Pretrial Order An amended pretrial conference order was agreed to by the parties and approved by the district court. Boeing contended that the levy exceeded the authority granted Oaklawn under the Act and that the tax was a taking of property under color of state law without due process or just compensation in violation of 42 U.S.C. § 1983 (1988). (Boeing alleged it received no special or direct benefit.) Boeing sought injunctive relief against the levy and collection of future taxes. Boeing did not seek to invalidate the issuance of the bonds. Oaklawn challenged the district court’s jurisdiction, asserting Boeing’s failure to exhaust administrative remedies. Oaklawn contended that the Act vested it with the power to levy ad valorem property taxes against all property in the District to repay bonds issued for a project benefitting the District as a whole. Oaklawn also claimed that the project benefited Boeing’s property. Rulings of the District Court The district court ruled from the bench, granting Boeing’s requested injunctive relief against future collection of the ad valorem tax. The court stated: “No evidence in the case before me [shows] how the matter has been treated by the plaintiff [Boeing] on the tax reports and the Court won’t speculate about that because the Court finds it [is] in the final analysis, unnecessary to decide whether this is in fact a special or a general tax. “...Iam compelled by the facts of this case to hold that plaintiff in this case was denied, under the circumstances of this case, substantive and procedural due process by virtue of the failure of the enabling statute to provide for such due process. I, therefore, am going to declare the obligation of the plaintiff to be null and void and to enjoin any officials connected therewith from any proceedings to collect the same.” At a later bench hearing on the question of laches (the court held Boeing guilty of laches in delaying commencement of the instant action until October 1991), the trial judge observed: “I feel that the evidence here is clear that the defendant Oaldawn Improvement District proceeded in accordance with the statute. There’s no argument about that. It’s the statute which is defective. I can see no alternative to that. I can’t see any way statutorily that the Oaldawn Improvement District could have proceeded which would have rendered constitutional notice available to the defense under these circumstances. And, therefore, I think it’s a fatal constitutional flaw in the statute, but I am fashioning the relief as prospective only.” The court invalidated the tax, holding that the Act was unconstitutional because of its failure to provide Boeing with substantive and procedural due process. Boeing was not given personal notice of Oaldawn1 s plans for the assessment. The district court relied on Walker v. Hutchinson City, 352 U.S. 112, 1 L. Ed. 2d 178, 77 S. Ct. 200 (1956) (reversing Walker v. City of Hutchinson, 178 Kan. 263, 284 P.2d 1073 [1955]). The court declined to decide whether: (1) Oaldawn had the power to levy general taxes; (2) the tax levy was a general or a special assessment; and (3) Boeing’s property was benefited by the sewer improvements. The court also enjoined the Sedgwick County Treasurer from paying over to Oaklawn, or to the State on behalf of Oaklawn, Boeing’s 1992 taxes. Appellate Motion to Stay Oaklawn filed a motion in this court to stay the district court judgment. We granted a limited stay during the pendency of the appeal. Oaklawn was permitted to administratively perform all necessary acts to levy the bond assessment and to place the tax on the rolls for later collection in the event the District prevails on appeal. The Trial Court’s Order Impounding Taxes Paid by Boeing Under Protest Boeing was not entitled to a freeze on disbursement of taxes paid under protest. K.S.A. 1993 Supp. 79-2005(k) indicates that tax refunds are to be paid by the county and then charged to the taxing district involved. The freeze order was contrary to K.S.A. 1993 Supp. 79-2005(m). The plain language of the statute requires the county treasurer to forward all protested taxes to the taxing unit for whose benefit they were collected, i.e., to the State Treasurer for the benefit of Oaklawn to pay the bondholders. The resolution of the other issues renders this question moot. The Constitutional Issue Our standard for reviewing the constitutionality of statutes is well known. Constitutionality is presumed. We resolve all doubts in favor of validity. Before the statute may be stricken, we must clearly identify a violation of the constitution. The burden of proof is on Boeing. See Blue v. McBride, 252 Kan. 894, 915, 850 P.2d 852 (1993). The proper construction of the statutes at issue in the instant case presents a question of law. Our review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, Syl. ¶ 2, 823 P.2d 782 (1991). Boeing’s Contentions Walker applies to the unique facts in the instant case because over 3/4 of the total tax will be paid by a single taxpayer. Walker established the rule that “if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests.” 352 U.S. at 115. The tax directly affected Boeing’s rights and Oaklawn knew who would pay the brunt of the tax. The evidence suggests that after Oaklawn failed to obtain the EPA grant, it proceeded with the sewer project solely because it believed the big taxpayer could be forced to pay for most of the project. Oaklawn made no attempt to notify Boeing in advance even though Boeing would be adversely affected by the bond financing method. Publication notice was merely for an election to issue general obligation bonds, and the notice did not specify that Boeing would be taxed for 3A of the bond payments. OaHawn's failure to provide Boeing with notification is even more inexcusable given the fact that Oak-lawn personally informed District residents by letter. Consequently, the trial court’s reliance on Walker was well placed. Boeing also relies on Dodson v. City of Ulysses, 219 Kan. 418, 420, 549 P.2d 430 (1976), citing the following language: “[P]ublication notice alone is constitutionally insufficient when proceedings may directly and adversely affect a party’s rights and his whereabouts are known or easily ascertainable. Under those circumstances some other form of notice, reasonably calculated to inform the party, is required to conform with the requirements of due process. [Emphasis added by Boeing.]” Boeing reasons that the trial court’s ruling of unconstitutionality was correct and that we need not reach the constitutional issue because the case can be disposed of on statutory grounds. Discussion The absence of notice as a due process constitutional infirmity within the Act was neither advanced by Boeing nor briefed by the parties prior to the trial court’s ruling. OaMawn asserts that the record shows that the sewer repair bonds were issued in accordance with the statutory requirements and that the required publication notice was provided. The trial court acknowledges that OaMawn complied with the provisions of the Act. There is no constitutional privilege for personal notice and prior hearing in opposition to an improvement which may end in an assessment. A general tax levy to make up a deficiency in a special assessment fund is not invalid under the Fourteenth Amendment because bonds were issued without taxpayer notice. Utley v. St. Petersburg, 292 U.S. 106, 109, 111, 78 L. Ed. 1155, 54 S. Ct. 593 (1934). Due process is satisfied if the taxpayer is provided an opportunity to present challenges and defenses to the validity of the tax levied against property for the improvement. See Chicago, etc. R.R. v. Risty, 276 U.S. 567, 573, 72 L. Ed. 703, 48 S. Ct. 396 (1928); Newson v. City of Wichita, 186 Kan. 444, Syl. ¶ 4, 351 P.2d 10 (1960). Walker, a condemnation case, did not involve an improvement project. In Walker, the City of Hutchinson condemned land owned by a known resident whose name was on the City’s official records. Walker addressed the following question: What type of notice is due a landowner as a prerequisite to proceedings to fix compensation for a taking in condemnation cases? 352 U.S. at 115. Walker held that under its facts the owner whose land was taken for public use was entitled to personal notice and an opportunity to be heard before the right to just compensation could be foreclosed. 352 U.S. at 115. Newspaper publication alone was held to be insufficient. 352 U.S. at 116. In Dodson, 219 Kan. 418, we discussed Walker and rejected the due process rationale employed by the district court in the case at bar. The City of Ulysses, proceeding under the general paving law, passed a resolution authorizing the paving and curbing of two city blocks. Notice was published for two consecutive weeks in a newspaper of general circulation as required by statute. No protests were received and an ordinance was passed authorizing the improvement. Citing Walker and Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950), the plaintiff taxpayers in Dodson sought to enjoin the special assessments levied against their property. The taxpayers contended that they were denied due process when they were only given publication notice of the City’s intent to make the improvement. 219 Kan. at 420. We relied on Utley and distinguished the Walker/Mullane line of cases in rejecting the taxpayer constitutional due process claim. We held that “the mere making of a public improvement does not ‘deprive any person of. . . property’ ” and that personal notice was not required. 219 Kan. at 421-22. Due process applies at the time when the ultimate tax liability is determined. 219 Kan. at 422. Dodson observed that the legislature might well have provided, as a matter of fair play, that persons with a right to protest be given personal notice of that right. 219 Kan. at 423. Neither the relevant statute nor the Kansas Constitution required personal notice. Dodson was decided in 1976. The legislature has not added a personal notice requirement to the Act. The K.S.A. 19-2765(a)(9) and K.S.A. 19-2768 requirements for publication notice of elections were satisfied by Oaklawn. Oaklawn did not in itiate a condemnation action. Walker does not control the case at bar. The Act is constitutional. Exhaustion of Administrative Remedies Boeing paid the 1990 Oaklawn tax liabilities imposed by the levy it now questions. Protests for 1991 and 1992 were filed under 79-2005. The protests are pending before BOTA. Oaklawn suggests that the BOTA protests raise the same issues presented in the case at bar: (1) Was Boeing’s Oaklawn property directly benefited by the 1990 sewer improvements; and (2) Did Oaklawn have the power to levy and collect the tax against Boeing properties to finance the district’s 1990 lateral sewer improvements which do not benefit Boeing’s property? Boeing has clearly stated that its challenge is to the spreading of the tax against Boeing property. Boeing does not challenge the initiation of the 1990 sewer improvements or the validity of the bonds issued to finance the project. In J. Enterprises, Inc. v. Board of Harvey County Comm’rs, 253 Kan. 552, 857 P.2d 666 (1993), we emphasized the significance of the doctrine of exhaustion of administrative remedies in taxation matters. Matters of assessment are administrative in character. 253 Kan. 552, Syl. ¶ 2. Such matters, “according to the present Kansas statutory and regulatory scheme, ought to be decided in the first instance by the paramount taxing authority in this state, the Board of Tax Appeals (BOTA).” 253 Kan. at 555. /. Enterprises expresses a number of legal rules applicable to a challenge brought under K.S.A. 60-907: (1) the interpretation of a statute involving taxation is, in the first instance, an administrative function entrusted to the appropriate administrative authorities, and K.S.A. 60-907 jurisdiction does not vest merely because a party claims that a statutory construction issue is presented; (2) an erroneous interpretation of a statute by administrative taxing authorities does not, alone, render a tax arbitrary, capricious, and unreasonable so as to vest a court with jurisdiction; (3) the mere fact that no refund relief is sought and that taxpayers seek only prospective relief does not defeat B OTA’s initial jurisdiction; and (4) for a tax to be illegal so as to vest jurisdiction in the courts under K.S.A. 60-907, the action of administrative officials must be without valid legislative authority, amount to fraud or corruption, or be so oppressive, arbitrary, or capricious as to amount to fraud. Boeing has not claimed that the assessment of the ad valorem tax to pay principal and interest payments on the bonds was illegal or was arbitraiy, capricious, or unreasonable and tantamount to fraud. Rather, Boeing claims that Oaklawn’s spreading of the as-, sessment was done erroneously, i.e., the District misapplied the Act when it assessed Boeing’s tangible personal property that allegedly did not benefit from the project. Boeing believes the Act only permits special assessments based on a special benefit to real property; consequently, the levy was unauthorized and constituted a taking of property without just compensation. Boeing reasons that the central question is Oaklawn’s authority to tax Boeing property for the improvements. The answers depend on the interpretation of statutes relating to matters of taxation and assessment. The question is whether the Act’s language requiring “benefit” to property in the district and permitting “general taxation” for a project commenced under K.S.A. 19-2765(a)(9) is authority for either general ad valorem property taxes or special assessments. We hold that such a determination is administrative in character and properly entrusted initially to BOTA. Boeing discusses J. Enterprises, highlighting the fact that we also recognized that some questions which may have tax implications are nonetheless “essentially nontax questions such as whether the taxing authority took the action without valid legislative authority; whether the taxing authority acted lawfully; or whether the action taken under the statute was so arbitrary, capricious, unreasonable, and subversive of private rights as to indicate a clear abuse rather than a bona fide exercise of power.” 253 Kan. at 566. Boeing characterizes Oaklawn’s actions, first in causing Boeing to build its own sewage system, and then in assessing several additional million dollars for repairs to OaWawn’s system, as so arbitrary, unreasonable, and subversive of private rights as to grant the court jurisdiction. Boeing asserts that it was deliberately kept “in the dark”; consequently, Oaklawn should not now be permitted to assert the requirement of administrative remedy exhaustion. Boeing advances the view that the primary issue in the instant appeal requires judicial interpretation of an improvement district’s authority to tax and the question of whether Oaklawn exceeded that authority. Boeing maintains that no administrative expertise in the “ ‘assessment, exemption, equalization, or valuation’ ” of property is required. We do not agree. Boeing’s advancement of an issue of statutory construction, coupled with an injunction request, did not vest the district court with jurisdiction. The problem with Boeing’s reliance on the unconstitutionality of the Act to overcome the exhaustion requirement is that the district court, not Boeing, raised the issue. Boeing is currently before BOTA, having protested payment of the 1991 and 1992 levy. Boeing has not exhausted its administrative remedies. We reverse and remand to the district court with directions to dissolve the injunction and dismiss the case.	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The opinion of the court was delivered by Valentine, J.: In the consideration of this case it is necessary that we should go back to the very foundation upon which the plaintiffs build their superstructure; that we should look into the origin and organization of their supposed corporation; that we should investigate the validity of their Pennsylvania charter, and that we should determine whether they have any legal status, or legal corporate existence in Kansas. The defendants deny that the plaintiffs have any legal corporate existence in Kansas or elsewhere; and deny particularly that they have any legal right to engage in any such business in Kansas as they have engaged in on such a grand scale for the last two years. It is certainly with no feeling of hostility towards any one, that we investigate these questions. They are thrust upon us without our consent. The plaintiffs bring the case here, and these questions necessarily arise in the case at the very threshold of its examination,- and we could not well, if we would, escape from their investigation. It must be admitted that the plaintiffs have been of great benefit to the people of Kansas. They-have vastly increased the wealth of the State. They have expended' millions of money in enterprises of incalculable benefit to the public. They have built and are building within this State, long lines of railroads, instruments of commerce and intercourse essential to the prosperity of any people, and a species of improvement without which civilization itself could no longer progress. But let us turn to the plaintiffs’ Pennsylvania charter. “ It is well settled that, while a nation possesses an exclusive jurisdiction within its own boundaries, neither constitutions nor statutes have any intrinsic force, ex proprio vigore, beyond the territory of the sovereignty which enacts them, and the respect which is paid to them elsewhere depends on comity alone.”- (Sedg. on Stat. and Cons. Law, 69.) This is a maxim, self evident, and universal in its application, applying as well between the different States of this Union as between foreign States; and needs only to be stated to be assented to. It would be absurd in the extreme to suppose that the laws of any State or country could have any force or operation beyond the boundaries of the State enacting them. “ A corporation is an artificial being, invisible, intangible, and existing only in the contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.” (4 Wheat., 636.) It “ can have no legal existence out of the boundaries of the sovereignty by which it is created.” “ It exists only in contemplation of law and by force of the law; and when that law ceases to operate and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty.” — (13 Peters, 520, 588, 539.) “It is a rule of law that a private corporation whose charter has been granted by one State cannot hold meetings and pass votes in another State. — (14 N. J., 380, 383.) “ Corporate acts performed by the body of the corporation while sitting out of the State which creates it, are void and of no effect.” — (20 Ind., 292, 297. And see 27 Me., 509, 524.) A corporation, in order to have any legal or valid existence, must have a home, a domicile, a principal place of doing business, within the boundaries of the State which creates it. It may send agents into other States to do business, but it cannot migrate iñ a body. If it attempts to migrate in a body, to go beyond the jurisdiction of the laws which bind and hold it together, it dissolves into its original elements, and the persons who comprise it become only individuals. And even where a corporation has a legal and valid existence in its own State, the only .recognition that other States*will give to it is such as the rules of courtesy and comity between States require. Under the rules of comity, a foreign corporation may by its agents usually exercise in another State all the powers which it could exercise in its own State, which are not repugnant to the laws and institutions, nor prejudicial to the interests of such other State. And comity would perhaps allow a foreign corporation to exercise in another State, powers beyond what it could exercise in its own State, which were absolutely necessary to the exercise of its legitimate functions in its own State. For instance: Suppose that grapes and wine could not be produced in the State of Pennsylvania; and suppose that the State of Pennsylvania desired to charter a corporation to furnish grapes and wine from the States of New York and California to the people of the State of Pennsylvania. ' The States of New York and California might, through comity, allow said corporation to hold, occupy, and operate vineyards in their respective States for that purpose. But this is certainly as far as any kind of courtesy or comity would go. No rule of comity will allow one State to spawn corporations, and send them forth into other States to be nurtured, and do business there, when said first mentioned State will not allow them to do business within its own boundaries. The first section of the plaintiff’s charter says that this corporation, (the New York and California Vineyard Company,) may do business any where except r J J J J. n the State of Pennsylvania — which is equiva]ent to saying that it shall not do business in the State of Pennsylvania; and the fourth section says that it shall establish their offices where their business is located, which is equivalent to saying that they shall not establish any office in the State of Pennsylvania. From the only territory in the whole world, over which the State of Pennsylvania has any jurisdiction or control, and in which it could authorize a corporation to have an office, or to do business, it excludes this corporation; and the attempt on the part of the State of Pennsylvania to authorize this corporation to have an office, or to do business anywhere else except in the State of Pennsylvania, is ultra vires, illegal and void. The truth is, that while this supposed corporation was originally organized for the whole United States, except the State of Pennsylvania, and afterwards by its amended charter of February 17th, 1870, for the whole world except Pennsylvania, it had no legal or valid existence anywhere upon the face of the earth. At the very creation of this supposed corporation its creator spurned it from the land of its birth, as illegitimate, and unworthy of a home among its kindred, and sent it forth a wanderer on foreign soil. Is the State of Kansas bound by any kind of courtesy, or comity, or friendship, or kindness to Pennsylvania, to treat this corporation better than its creator (the State of Pennsylvania) has done ? It can hardly be supposed so, when we come to see how carefully our own constitution has guarded the creation of corporations in our own State. The said charter would be void for other reasons than these we have mentioned, if it had been enacted by the Legislature of the State of Kansas. It contravenes two' provisions of our constitution. It is a special act, conferring corporate powers; (§ 1, Art. 11, Const.;) and the subject of the act is not clearly expressed in the title; (§16, Art. 2, Const.) The following authorities bear upon the questions discussed in this case: Redfield on Railways, 56, 57, 58, and note 10; Ames & A. on Corps., §§ 161, 273; 13 Peters, 520, 588; 14 Peters, 122, 129; 1 Black, 286, 295; 51 Penn. St., 228, 231; 5 Bush. (Ky.) 69, 75, et seq; 20 Ind. 492, 525, et seq; 14, N. J., (1 McCarter,) 380, 383; 27 Me., 509, 520, et seq; 1 Sumner, 46, 62. The writ of mandamus is refused. All the Justices concurring.	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The opinion of the court was delivered by Davis, J.: Anita Marie McVay filed a medical malpractice action against Dr. Joseph E. Rich and Memorial Hospital Corporation of Topeka for injuries she allegedly sustained in an operation performed by Dr. Rich at Memorial Hospital. McVay settled with Dr. Rich. The trial court granted Memorial Hospital summary judgment on McVay s claim that the hospital had negligently granted or continued staff privileges in Dr. Rich when it knew or should have known that he was incompetent. The Court of Appeals affirmed in 18 Kan. App. 2d 746, 859 P.2d 399 (1993), and we granted McVay’s petition for review. The sole question before this court is whether the following decision of the Court of Appeals is correct: “Under the provisions of K.S.A. '65-442(b) and K.S.A. 1992 Supp. 40-3403(h) [now K.S.A. 40-3403(h)], a licensed hospital cannot be held liable for damages because of the rendering of or failure to render professional services within the hospital by a physician who is licensed to practice medicine and surgery and covered under the Health Care Stabilization Fund, if the physician is not an employee or agent of the hospital.” 18 Kan. App. 2d 746, Syl. ¶ 1. The following facts as set forth in the Court of Appeals’ opinion are undisputed: “In April of 1990, McVay filed a lawsuit against Joseph E. Rich, M.D., and Memorial. Specifically, McVay alleged that on August 29, 1988, Dr. Rich negligently performed a hysterectomy and that as a result of his negligence, she was required to undergo additional surgeries. “McVay also claimed that Memorial, the hospital where the hysterectomy was performed, was negligent in not properly providing or performing a quality assurance program or taking corrective action to suspend or revoke Dr. Rich’s staff privileges when Memorial knew or should have known Dr. Rich’s staff privileges had been withdrawn at other area hospitals. As a result of Memorial’s alleged negligence, McVay claimed she required additional surgery and will incur additional medical expenses in the future. She also claimed she suffered and will continue to suffer pain, mental anguish, embarrassment, and humiliation as a result of her medical condition, which was caused by Memorial’s negligent care and treatment. “The record shows that Dr. Rich failed to renew his license to practice medicine and surgery within the time required by statute and therefore his license was cancelled as of August 1, 1987. The Kansas State Board of Healing Arts (BOHA) also found probable cause to believe Dr. Rich made false statements on his request for reinstatement and practiced medicine from August 1, 1987, to October 30, 1987, without a valid license. The BOHA issued a final order in February of 1988 reinstating Rich’s license to practice medicine as of February 6, 1988. “Subsequently, in August of 1988, the BOHA filed another petition for revocation of Dr. Rich’s license, finding probable cause that Rich had violated the Healing Arts Act, K.S.A. 65-2801 et seq. There is also evidence in the record to suggest that Dr. Rich’s staff privileges had been revoked at St. Francis and Stormont-Vail hospitals in Topeka. Dr. Rich was licensed to practice medicine and surgery at the time he performed surgery on McVay." 18 Kan. App. 2d at 746-47. Court of Appeals’ Decision The Court of Appeals identified the issue in the following manner: “The sole issue in the case is whether the trial court erred in ruling that Memorial was immune from liability as a matter of law based on K.S.A 65-442(b).” 18 Kan. App. 2d 746. The district court had granted summary judgment on the basis of K.S.A. 65-442(b). The Court of Appeals’ decision then turns on its interpretation of K.S.A. 65-442(b), which provides: “There shall be no liability on the part of and no action for damages shall arise against any licensed medical care facility because of the rendering of or failure to render professional services within such medical care facility by a person licensed to practice medicine and surgery if such person is not an employee or agent of such medical care facility.” In affirming the trial court’s conclusion that the above statute immunized the hospital from liability for plaintiff’s claim, the Court of Appeals considered K.S.A. 65-442(b) in the context of the legislative scheme that the legislature recently enacted “to try to stem the perceived tide of ever-increasing medical malpractice insurance premiums.” 18 Kan. App. 2d at 749. The court also noted that K.S.A. 40-3401 et seq., the Health Care Provider Insurance Availability Act (HCPIAA), provides immunity to health care providers qualified for coverage under the Health Care Stabilization Fund from “vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund.” K.S.A. 40-3403(h). The HCPIAA requires health care providers to maintain minimum professional liability insurance as a condition to providing services in Kansas. K.S.A. 40-3402. The “fund” is the Health Care Stabilization Fund, which is designed to cover amounts due in excess of the required professional liability insurance coverage. K.S.A. 40-3403(a), (c). A health care provider is “qualified for coverage under the fund” if he or she has the required professional liability coverage or qualifies as a self-insurer under the statute. K.S.A. 40-3403(g). The Court of Appeals concluded that “[t]he language of these statutes shows the legislature’s unmistakable intent to limit the liability of health care providers and medical care facilities.” 18 Kan. App. 2d at 751. “The plain language of K.S.A. 65-442(b) indicates that the legislature meant to immunize licensed medical care facilities from liability arising out of the rendering of or failure to render professional services by persons licensed to practice medicine but not employed by the medical facility.” 18 Kan. App. at 751. “K.S.A. 1992 Supp. 40-3403(h) . . . eliminates not only vicarious liability but also responsibility for any injuiy arising out of the rendering of or failure to render professional services by another health care provider who is also covered by the fund.” 18 Kan. App. 2d at 752. Corporate Negligence Theory McVay argües now and argued before the Court of Appeals that the plain language of K.S.A. 65-442(b) states that hospitals would not be liable for damages “because of” a licensed doctor’s rendering or failure to render professional services. Her action against the hospital does not seek to hold the hospital liable for damages because of Dr. Rich’s negligence but because of the hospital’s own negligence in allowing Dr. Rich to practice medicine in its hospital. Thus, she argues that K.S.A. 65-442(b) does not prevent this court from recognizing the hospital’s liability for negligently retaining an independent contractor. The recognition of an employer’s liability for, negligently retaining or employing an independent contractor, is commonly referred to as the theory of “corporate negligence.” Because cor porate negligence imposes liability on the hospital for its own negligence rather than making the hospital liable for another’s negligence, McVay contends that K.S.A. 65-442(b) does not bar her claim. The theory of corporate negligence has been discussed at length by courts and commentators. See, c.g., Darling v. Charleston Hospital, 33 Ill. 2d 326, 211 N.E.2d 253 (1965), cert. denied 383 U.S. 946 (1966); Comment, Corporate Negligence: Defining the Duty Owed by Hospitals to their Patients, 30 Duq. L. Rev. 639 (1992); Comment, Hospital Liability: The Emerging Trend of Corporate Negligence, 28 Idaho L. Rev. 441 (1992). With respect to hospitals, “[corporate negligence . . . stands for the proposition that hospitals have an independent duty to ensure the health and safety of their patients.” 28 Idaho L. Rev. at 442. The independent duties a hospital may owe to a patient may include, for example, the duty to exercise reasonable care in the procurement and maintenance of equipment; the duty to exercise reasonable care in granting, renewing, and extending staff privileges; the duty to monitor and review patients’ treatment and progress; and the duty to make and enforce rules. 30 Duq. L. Rev. at 648-56. Although the parties talk about “corporate negligence” as though it were a new legal doctrine, courts and commentators long have distinguished between an employer’s vicarious liability for its employees’ or independent contractors’ torts and an employer’s liability for its own negligence in connection with the work to be done. See Prosser and Keeton, The Law of Torts § 71 at 510 (5th ed. 1984). "Where there is a foreseeable risk of harm to others unless precautions are taken, it is his duty to exercise reasonable care to select a competent, experienced, and careful contractor with the proper equipment, and to provide, in the contract or otherwise, for such precautions as reasonably appear to be called for. So far as he in fact gives directions for the work, furnishes equipment for it, or retains control over any part of it, he is required to exercise reasonable care for the protection of others; and he must likewise interfere to put a stop to any unnecessarily dangerous practices of which he becomes informed, and make a reasonable inspection of the work after it is completed, to be sure that it is safe. ... In all of these cases, he is hable for his personal negligence, rather than that of the contractor.” Prosser and Keeton at 510-11. The Restatement (Second) of Torts also recognizes an employer’s liability for negligent selection of an independent contractor: “An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.” Restatement (Second) of Torts § 411 (1963). Comment (b) to section 411 clarifies that such liability is different from vicarious liability: “The employer of a negligently selected contractor is subject to liability under the rule stated in this Section for physical harm caused by his failure to exercise reasonable care to select a competent and careful contractor, but only for such physical harm as is so caused. In order that the employer may be subject to liability it is, therefore, necessary that harm shall result from some quality in the contractor which made it negligent for the employer to entrust the work to him.” While Kansas has recognized an employer’s liability for negligent retention of an employee, see, e.g., Thies v. Cooper, 243 Kan. 149, Syl. ¶ 1, 753 P.2d 1280 (1988); Plains Resources, Inc. v. Gable, 235 Kan. 580, 590-91, 682 P.2d 653 (1984), McVay concedes that there are no cases in which this court has recognized an employer’s liability for negligently retaining an independent contractor. Nor have we found any Kansas cases that expressly have rejected imposing liability on employers for negligent hiring and retention of independent contractors. McVay contends that her claim against the hospital is not because of Rich’s negligence but because of the hospital’s negligence in allowing Rich to perform surgery in its hospital. Although she would have no claim against the hospital if she had not been injured by Rich, she claims that the hospital owed her an independent duty to exercise reasonable care in extending staff privileges. She claims essentially that medical care, especially surgery, is “work which will involve a risk of physical harm unless it is skillfully and carefully done.” Accordingly, she contends that the hospital had a duty to “exercise reasonable care to employ a com petent and careful contractor.” Restatement (Second) of Torts § 411. The commentators note one policy reason for imposing such a duty on a hospital is to encourage hospitals to exercise reasonable care in selecting physicians: “The most powerful reason for holding a hospital liable for the damages caused by an independent physician is that the hospital has the capability to determine who will be granted use of its facilities. Once these privileges have been granted, the hospital is in the best position to monitor the use of its facilities by competent physicians, and hospitals generally are in a better financial position to absorb these burdens than are patients.” 28 Idaho L. Rev. at 454. A central theme running throughout the cases adopting the corporate negligence theory is perhaps best expressed in the following quote from the Duquesne Law Review article on hospital liability for corporate negligence: “[A]s a matter of public policy, ‘hospitals are in the best position to protect their patients and, consequently have an independent duty to select and retain only competent independent physicians seeking staff privileges.’ ” 30 Duq. L. Rev. at 650-51 (quoting Insinga v. LaBella, 14 Fla. 214, 543 So. 2d 209 [1989]). . McVay cites cases from numerous jurisdictions in her brief that have adopted the corporate negligence theory in imposing liability on hospitals for their negligence in retaining independent contractor physicians. See, for example, Darling v. Charleston Hospital, 33 Ill. 2d 326. None of the cases cited address statutes that are even remotely similar to K.S.A. 65-442(b) or 40-3403(h). Whatever reasons may exist for the adoption in Kansas of the corporate négligence’ theory in regard to hospital liability, we simply do not reach this question. The clear, unambiguous language of K.S.A. 65-442(b) and K.S.A. 40-3403(h) requires the conclusion that those statutes bar McVay’s claim against the hospital. McVay’s claim is barred by 65-442(b) because her claim is “because of” Dr. Rich’s rendering or failure to render professional services. McVay would have no claim against the hospital if Rich had not negligently treated her. Her claim against the hospital is derivative of and dependent upon her claim against Dr. Rich. Similarly, McVay’s claim against Memorial “arisefs] out of [Dr. Rich’s] rendering .of or the failure to render professional services,” so it is barred by K.S.A. 40-3403(h). K.S.A. 40-3403(h) provides: “A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act.” Under K.S.A. 40-3403, a health care provider who is qualified for fund coverage will not be vicariously hable or responsible for claims “arising out of” the professional negligence of another health care provider who is qualified for fund coverage. The undisputed facts establish that at the time of the operation both Dr. Rich and the hospital were health care providers, both were covered under the fund, Dr. Rich was not an agent or employee of the hospital, and McVay s injury arose out of the rendering of professional services by Dr. Rich. Given these undisputed facts, the Court of Appeals was correct in its conclusion that “K.S.A. 65-442(b) eliminates all liability and provides that no action for damages may be brought against a licensed medical care facility if that action arises out of the rendering of or failure to render professional services by a licensee who is not an employee or agent of the facility. In other words, a hospital cannot be held liable for the malpractice of a physician who is an independent contractor, pursuant to K.S.A. 65-442(b), nor can the hospital be vicariously hable or otherwise responsible for the malpractice of a licensee pursuant to K.S.A. 1992 Supp. 40-3403(h).” 18 Kan. App. at 753. Constitutionality The plaintiff did not raise before the trial court, nor before the Court of Appeals, a constitutional challenge to K.S.A. 65-442(b) or K.S.A. 40-3403(h). In the plaintiff’s brief before this court, counsel contends that the statutes as applied by the trial court and the Court of Appeals are unconstitutional because they violate §§ 1 and 18 of the Kansas Constitution Bill of Rights. According to the plaintiff, the Court of Appeals’ approach in deciding the case raised constitutional questions of first impression, and it therefore is appropriate for the plaintiff to challenge the statutes’ constitutionality before this court. Apparently, this claim is based upon the plaintiff’s contention that the Court of Appeals utilized the case of Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991), which upheld the constitutionality of K.S.A. 40-3403(h). We agree with the Court of Appeals’ statement that the sole issue was whether the trial court erred in ruling that Memorial was immune from liability as a matter of law based on K.S.A. 65-442(b). While the Bair decision was discussed, the resolution of this case by the Court of Appeals did not involve the constitutionality of the statutes but rather an interpretation of K.S.A. 65-442(b). Early cases before this court expressed the wisdom that this court should not consider the constitutionality of a statute if the same question has not been raised below. In Keplinger v. Kansas City, 122 Kan. 158, 164, 251 Pac. 413 (1926), we approved the following language from 12 C.J. 780: “ ‘It is a well-settled principle that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question.’ ” We held in Board of County Commissioners v. Brown, 183 Kan. 19, Syl. ¶ 2, 325 P.2d 382 (1958): “Acts of the legislature are presumed to be constitutional and valid and no challenge thereof should be entertained on appeal to the Supreme Court unless the particular constitutional provision alleged to be violated, or the particular controlling record to prove the invalidity, has been alleged in the pleadings and presented to the lower court.” See Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976). In Brown, we also explained an important rationale for this general rule: “This rule is based upon considerations of practical necessity in the orderly administration of the law and of fairness to the court and the opposing party, and upon principles underlying the doctrines of waiver and estoppel. Obviously, the ends of justice are served by avoidance of the delay and expense incident to appeals, reversals, and new trials upon grounds of objection which might, have been obviated or corrected in the trial court if the question had been raised. There would be no assurance of any end to litigation if the new objections could be raised on appeals. (3 Am. Jur., Appeal and Error, § 246, p. 25.)” 183 Kan. at 22. Only in cases where it is virtually impossible to decide the issue on the merits without considering the constitutionality will this court entertain the question of constitutionality. For example, in the case of Van Sickle v. Shanahan, 212 Kan. 426, Syl. ¶ 3, 511 P.2d 223 (1973), we noted: “The constitutionality of a statute or an amendment to the Constitution should be considered in an action where it is necessary in order to determine the merits of tire action or where the issues cannot be intelligently decided without doing so, notwithstanding tire failure of tire parties to raise tire constitutional question, failure to plead the question, or failure to present the question to the district court.” We should address constitutional questions raised for the first time in this court only when “[w]e cannot intelligently dispose of this litigation without considering and discussing” those constitutional questions. State v. Nelson, 210 Kan. 439, 443, 502 P.2d 841 (1972). In this case, we are not faced with a’“compelling state interest,” Vaughn v. Murray, 214 Kan. 456, Syl. ¶ 4, 521 P.2d 262 (1974), nor has plaintiff advanced any justification for this court to depart from its “ well-settled principle that the constitutionality of a statute will not be determined in any case, unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question.’ ” Keplinger, 122 Kan. at 164. As indicated above, our rule is grounded in wisdom based upon experience as well as upon fairness — wisdom, because a constitutional challenge, while seemingly a strictly legal question, often involves facts which may not be injected into the record upon such a late challenge; wisdom, because this court profits greatly from having the matter tried by the parties before the trial court and refined again before the Court of Appeals, if that is the path it takes; fairness, because consideration of the issue for the first time on appeal smacks of trial by ambush. Even if the constitutional question is genuinely raised, the opposing party is prevented from responding by marshalling evidence before a court to counter the alleged infirmity. It has been said that the wheels of justice grind exceedingly slowly but exceedingly fine. It is precisely this grist for the mill that gives birth to sound constitutional decisions. We, therefore, decline to consider for the first time on appeal the constitutional challenge, based on our general rule and because no compelling State interest has been demonstrated. The judgments of the Court of Appeals and the district court are affirmed.	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The opinion of the court was delivered by Kin&man, C. J.: On the 20th of February, 1863, an act was passed “ to fund the territorial debt.” The debt was to be funded by issuing bonds therefor of a certain tenor. The eighth section of this act directs that the proper officers of the State shall causé to be levied and collected in each year thereafter, with the other State taxes, a tax sufficient to pay all interest on said bonds as it should fall due, and also a tax to create a sinking fund for the ultimate payment of the bonds. The ninth section pledges the faith of the State for the payment of these bonds and all interest thereon. The tenth section provides that the state treasurer shall annually invest the sinking fund in the bonds so issued, at their market value. In pursuance of this law, the bonds were issued, and one of them, of the denomination of $500, belongs to the defendant in error. In the years 1868 and 1869 a special tax of one-half mill upon the dollar was levied and collected in each year for the specific purpose of creating a sinking fund, for the redemption of the bonds of the State, which had, before that time, been issued by the authority of the State. The acts providing for this tax declare that this fund shall be applied exclusively for the objects therein designated. On the 28th of February, 1870, the Legislature passed a joint resolution, (ch. 113, Laws 187.0, p. 233,) directing the State Treasurer to invest the said sinking fund ih the warrants of the State issued in pursuance of an act (ch. 1, Laws of 1870, p. 17,) “making appropriations for current legislative expenses, and for salaries of the supreme and district judges.” This joint resolution was passed over the objections of the governor. The record fairly raises but two questions for examination and consideration in deciding the case: First, Is the joint resolution in conflict with the provisions of the constitution ? Second, Has the defendant-in error such an interest in the fund appropriated by the joint resolution, as authorizes the courts to grant him the relief sought in this case, even if the resolution itself is in conflict with the constitution ? I. It is never a pleasant duty to examine questions involving the constitutionality of acts of the Legislature. The result of such investigations may be such ° ** as necessarily compels a court to declare the . n -,. . * n , - acts or a co-ordinate branca of the government of no effect, and thé reported cases show with what reluctance courts are compelled to conclusions involving such grave and delicate consequences; and it is only upon the clearest convictions that they are willing to do so. The present case is attended with the further embarrassment of passing upon questions involving, in the opinion of the legislature, the value of the compensation of its members and of the judges throughout the State. Nor was the action of the legislature taken through inadvertence or want of consideration, as is sometimes the case, for the resolution was passed over the veto of the governor, whose objections were urged in an elaborate and powerful message, on the return of the resolution without his approval; so, if we reach a conclusion adverse to the constitutionality of the resolution, wo must do so not only to the injury of the pecuniary interest of the members, but against the deliberate if not the unbiased judgment of the legislative branch of the government. Still, in a proper case, courts can no more avoid this than any other duty. It is claimed that the resolution is in violation of sections three, four, and five, of article eleven, of the constitution ; that it violates section threé by borrowing money for the current expenses of the government, instead of raising revenue therefor, as that section requires; that it violates section four, in this, that it takes the money raised for one object and appropriates it to a different one; that it violates section five in at least three impor tant particulars: 1: It creates a “public debt,” and this can be done by the legislature for two purposes only, and the object of the resolution is only to use the sinking fund to defray the current expenses of the State. 2: It seeks to seize and sequester a fund specifically raised and appropriated by law for the payment of the public debt, and apply it,to a different object. 3: Tbe resolution to a certain extent repeals sections eight and ten of tbe act of 1863 creating tbis bonded debt. These sections provide for a tax to create a sinking fund and prescribe tbe manner of its investment. Section five of article eleven of tbe constitution prohibits tbe repeal of such laws until tbe debt is extinguished. It is not proposed to comment upon or decide these several propositions in detail, though it would perhaps require great ingenuity to show that each of them was not well founded; but tbe decision of tbe ease does not require us to go into an investigation so extensive. A few observations will indicate tbe grounds of our decision. It is apparent from tbe resolution and the law to which it refers, that tbe object of tbe resolution is to use for a short time so much of tbe sinking fund as may be necessary to pay tbe members of tbe legislature and tbe judges of tbe State. Provision is made for tbe payment of interest, and tbe early return of tbe money to tbe sinking fund, so that no great injury could result to tbe fund from its use, as contemplated by tbe legislature, and no doubt tbis consideration bad great weight with tbe legislature. But in construing a constitution it would be dangerous to give much weight to such reasoning. Rules fundamental in their character, and intended to serve wise ends, are made chiefly to restrain those on whom they are imposed from looking to immediate benefits, regard less of far-reaching consequences. The sinking fund is solemnly set apart for a specific purpose. The wisdom of this provision is not questioned. It is only- asserted that no great mischief can flow from its temporary use, when such ample provision is made for its speedy replacement. But if, as a question of power, which alone we have to do with, one dollar of this fund can be used for the ordinary expenses of the State, then every cent of it may. If it can be thus used for one day, it may be for all time. If one legislature may thus use it, then may all, and the result might be that every obligation of the State would mature, without there being one dollar in the treasury to pay with. No man can read article eleven of our constitution and not know that such a result cannot be reached but in plain violation thereof. All finespun theories and ingenious reasoning are swept away, when we confront what may be the possible consequences of admitting the existence of the power of the legislature to use the fund for the ordinary purposes of the State, with these plain provisions of the constitution. If this resolution is constitutional, there is no use to which the sinking fund might be applied, that would not be so. We are therefore constrained to hold that the resolution is in conflict with the provisions of the constitution. II. The other question in this case, is whether Horton, the defendant in error, sustains such a relation to the subject-matter of this action as will enable him to maintain this action and entitle him to the relief prayed for. It will be remembered that the case was tried on a demurrer to the petition, and of course all the necessary and proper averments of the petition are taken as true. It is alleged in the petition that the misappropriation of the fund will endanger,the payment of plaintiff’s bond at maturity, and the credit of the State in the judgment of capitalists, holders, and dealers in public securities, will be impaired, and therefore the present value of the bond be diminished. This being all taken as true, it is apparent that the defendant in error baa a direct pecuniary interest in the preservation and lawful administration of the sinking fund — an interest which he holds not merely as a citizeD, and in common with every other member of the community; he does not represent the whole public, who are alike aggrieved, but his own separate and personal interest, which is specially damaged by the proposed action of the treasurer; and in this respect the case differs from that of Craft v. The County Commissioners of Jackson county, decided at this term of the court, (5 Kas., 518.) lie does not sue the State. . He only asks that certain illegal and unauthorized acts of its agents, tending to the special injury of his individual property, shall be restrained. And this, we think, ho has a clear right to do. The judgment must, therefore, be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Fromme, J.: Robert L. Norris was convicted by a jury of making and endorsing (K.S.A. 21-37l0[l][a]) and of issuing a forged check (K.S.A. 21-37l0[l][b]). He attacks the constitutionality of this statute and alleges several trial errors. Four blank check forms were stolen from a business owned and operated by Mrs. Haggard, and on December 2, 1978, a check purporting to be drawn by Mrs. Haggard in the amount of $203.47 was presented by the appellant to a clerk in a Wichita grocery store. The check was payable to a Dan Norris. Appellant presented an identification card in the name of Dan Norris. A regiscope picture was taken of the appellant cashing the check. The check was returned with the notation “Reported stolen.” Appellant in his trial testimony explained his actions. He said he was staying at a halfway house where persons recently released from prison are cared for. Patrick Mullin, a friend he had known in prison, enlisted his help in cashing a check. Mullin informed him he was working for Haggard and had gotten the job by using the name of appellant’s brother, Dan Norris. Appellant agreed to assist Mullin, and obtained an identification card from the brother. The identification card was obtained on the pretext it was needed to get someone into a club. Appellant, rather than Mullin, cashed the check because the identification did not fit Mullin. The money received was all turned over to Mullin. The above trial testimony varied in one important detail from an oral statement appellant gave the police after his arrest. Detective Phipps testified as to his conversation with appellant. Phipps had been advised by appellant that two attempts were made before the check was cashed. Appellant told the officer that when the check was first presented they refused to cash it, so he “filled out another check” and pássed it. This statement was the primary basis for the “making and endorsing” count. Appellant denied having made this statement to the officer when questioned during the trial but it is not our function to decide the credibility to be assigned to testimony of witnesses. The first point concerns the alleged unconstitutionality of the forgery statute under which appellant was charged. It is alleged the provisions of the statute are too vague and indefinite to withstand constitutional challenge under Section 10 of the Kansas Bill of Rights and the Fourteenth Amendment of the United States Constitution (due process clauses). The test of whether a statute is so vague and indefinite that it fails to inform an accused of the nature and basis for the charges against him or her is the same under Section 10 of the Kansas Rill of Rights as it is under the due process clause of the Fourteenth Amendment of the United States Constitution. See State v. Stauffer Communications, Inc., 225 Kan. 540, 545, 592 P.2d 891 (1979); State v. Kirby, 222 Kan. 1, 3-4, 563 P.2d 408 (1977); State v. Conley, 216 Kan. 66, Syl. ¶ 1, 531 P.2d 36 (1975). The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys such warnings it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. The underlying principle supporting this test is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be prohibited. State v. Stauffer Communications, Inc., 225 Kan. at 546; State v. Gunzelman, 210 Kan. 481, Syl. ¶ 2, 502 P.2d 705, 58 A.L.R.3d 522 (1972). This test is consistent with that recognized by the United States Supreme Court. See United States v. Harriss, 347 U.S. 612, 617, 98 L.Ed. 989, 74 S.Ct. 808 (1954). When considering the validity of a statute thé court starts with a presumption of constitutionality; all doubts must be resolved in favor of validity of the statute, and before it can be stricken a clear showing must be made that the statute violates the constitution. State v. Kirby, 222 Kan. at 3-4. The forgery statute, K.S.A. 21-3710, prohibits three different types of conduct connected with forged instruments when such conduct is purposeful and with intent to defraud. The first type of conduct is listed under (a) and reads: “Making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such real person; or altering any written instrument in such manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof; or making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed with the authority of one who did not give such authority; or” The second is listed under (b) and reads: “Issuing or delivering such written instrument knowing it to have been thus ■ made, altered or endorsed; or” The third is listed under (c) and reads: “Possessing, with intent to issue or deliver, any such written instrument knowing it to have been thus made, altered or endorsed.” Subsection (c) proscribing possession of forged instruments was not charged in the present case and we are not here concerned with that subsection. Turning first to subsection (a) of this statute, it proscribes and prohibits the making, the altering or the endorsing of any written instrument knowingly and with intent to defraud. A further explanation is added. The making, altering or endorsing of the instrument, to constitute the crime, may have been done in such a manner that (1) it purports to have been made, altered or endorsed by another person, real or fictitious, and if a real person then such conduct must be without authority of such real person, or (2) if a written instrument is altered it may purport to have been made at another time or with different provisions and without authority of the real maker, or (3) the written instrument may have been made, altered or endorsed in such manner it purports to have been made, altered or endorsed with the authority of one who did not give such authority. This conduct prohibited by the statute is not vague or indefinite. The appellant should have had no trouble in understanding what conduct on his part was prohibited. Accepting the testimony of Detective Phipps as true the appellant admitted “filling out another check.” The check purported to have been made by Mrs. Haggard was without her knowledge or authority. The blank checks had been stolen. The check was made payable to Dan Norris without his knowledge and endorsed in his name without his authority. Under the evidence it appears clear that appellant should have reasonably understood such actions on his part were prohibited under this statute. Now turning to subsection (b) of the statute, which proscribes the issuance or the delivery of a forged instrument knowing it to have been thus made, altered or endorsed, the prohibition contained in such paragraph of the statute could hardly be stated more clearly. Its message was and is — don’t issue or deliver an instrument when you know it has been forged or altered in some particular. The provisions of K.S.A. 21-3710(l)(a) and (b), which prohibit certain acts of forgery, convey sufficiently definite and certain warnings as to the conduct proscribed when measured by common understanding and practice. These provisions of the criminal statutes are not unconstitutional as being in violation of Section 10 of the Kansas Bill of Rights and the Fourteenth Amendment of the United States Constitution (due process clauses). Appellant’s second point is that the State failed to establish a prima facie case of forgery in that proof of an intent to defraud was lacking. Normally intent is not susceptible of direct or concrete proof. Intent depends upon a state of mind of the individual which, unless expressed, can only be inferred from the actions of the individual. Therefore, intent to defraud should be left for the jury to decide if there are facts and circumstances which would support an inference of an intent to defraud. State v. Giddings, 216 Kan. 14, 18-19, 531 P.2d 445 (1975), modified on another point in Wilbanks v. State, 224 Kan. 66, 74-75, 579 P.2d 132 (1978). In a prosecution for forgery where the charge includes the making and forging of the false signature of another to a bank check, proof that such signature is not in the handwriting of the person whose signature it purports to be is prima facie evidence that the signing of such name was unauthorized and is a forgery. State v. Decker, 207 Kan. 374, Syl. ¶ 2, 485 P.2d 171 (1971). In determining whether the trial court should have entered a verdict of acquittal the appellate court is limited to ascertaining whether there was a basis for a reasonable inference of guilt, which in this case would include a reasonable inference of an intent to defraud. See State v. Duncan, 221 Kan. 714, 719, 562 P.2d 84 (1977). We need not review the evidence or discuss the inferences arising therefrom. The evidence supported a reasonable inference that appellant participated in these crimes knowingly and with an intent to defraud either Mrs. Haggard or the grocery store where the check was issued and the money was received. As his third point appellant contends he was denied a fair trial because of jury misconduct. On a motion for new trial appellant offered the testimony of two jurors concerning certain statements made by a third juror. The testimony offered was to the effect the third juror stated, “[Y]ou can’t believe anything they say, because they’re ex-cons,” and “If he did it once, he’ll do it again.” Appellant argues that these statements were improper in that each juror had made a commitment on voir dire not to allow a witness’ criminal record to prejudice his or her decision. K.S.A. 60-441 provides that upon inquiry as to the validity of a verdict no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent to the verdict or concerning the mental processes by which it was determined. In this case the evidence was offered for the purpose of examining the mental process by which the juror reached his verdict. The evidence did not relate to extraneous misconduct by the juror; therefore, the evidence may not be introduced or considered by the courts. See Crowley v. Ottken, 224 Kan. 27, 30-31, 578 P.2d 689 (1978); State v. McDonald, 222 Kan. 494, 496, 565 P.2d 267 (1977); State v. Morgan, 207 Kan. 581, 582-583, 485 P.2d 1371 (1971); Brown v. Hardin, 197 Kan. 517, 523, 419 P.2d 912 (1966). Appellant’s final point of error concerns the instructions. K.S.A. 21-3710 requires a specific intent to defraud. In the instructions “intent to defraud” was set forth as an element or issue to be proven by the State. However, no further definition was given as to the meaning of “intent to defraud.” Under the general definitions set forth in the Kansas Criminal Code, K.S.A. 1978 Supp. 21-3110(9), “intent to defraud” means an intention to deceive another person, and to induce such other person, in reliance upon such deception to assume, create, transfer, alter or terminate a right, obligation or power with reference to property. The appellant at trial advised the court through his counsel that he had examined the instructions and had no objections. Appellant now contends that these same instructions were clearly erroneous because of the lack of a definition of intent to defraud, and that under K.S.A. 22-3414(3) this error may be raised for the first time on appeal since he claims the instructions were clearly erroneous. We do not agree. The trial court need not define every word or phrase in the instructions. It is only when the instructions as a whole would mislead the jury, or cause them to speculate, that additional terms should be defined. State v. Griffin, 221 Kan. 83, 558 P.2d 90 (1976). A term which is widely used and which is readily comprehensible need not have a defining instruction. State v. Schoenberger, 216 Kan. 464, 532 P.2d 1085 (1975). In the present day when both state and federal governments have stressed consumer protection against fraud in sales and services of consumer goods purchased by the general public, the term “intent to defraud” is generally understood. The phrase is one which men of common intelligence and understanding can comprehend and is not a term that requires definition. Since the term is defined in the Kansas Criminal Code (K.S.A. 1978 Supp. 21-3110[9]), it would have been proper on the request of either the defendant or the State to have given the statutory definition. However, in the absence of a request failure to define the term does not constitute error. Judgment affirmed.	[ 48, -24, -15, -99, 15, -32, 42, -102, 83, -95, -92, 115, -87, 64, 4, 121, -13, -83, 84, 97, -52, -77, 39, -23, -14, -13, -55, -43, -76, 75, -66, -44, 76, 50, -30, 93, 102, 2, -121, -36, -114, 44, 41, -45, 120, -120, 32, 39, 4, 11, -15, -99, -13, 58, 30, -58, -23, 44, 75, -65, 80, -69, -66, -123, 93, 22, -77, 7, -98, 5, -8, 14, -100, 49, 0, 120, 51, -90, 2, 100, 107, 57, 12, 102, 98, 48, 49, -83, -84, -52, 14, 127, -97, -89, -110, 104, 99, 44, -65, -99, 116, 20, 14, -12, -32, 20, 95, 108, 10, -50, -106, -109, -115, 50, -106, -21, -53, 35, 0, 113, -52, -32, 85, 87, 120, 27, -114, -42 ]
The opinion of the court was delivered by Prager, J.: This is an action brought by a bailor-shipper against a bailee-carrier to recover damages resulting from negligent in jury to a motor vehicle. The defendant-appellant, Auto Transporters, Inc., d/b/a Nationwide Auto Transporters, is engaged in the business of transporting motor vehicles between various points throughout the United States. It is licensed by the interstate commerce commission as an interstate carrier. The plaintiff-appellee, James R. Nolan, in March of 1977, contracted with Nationwide to transport his 1977 Oldsmobile from Los Angeles, California, to Davenport, Iowa. The automobile had been purchased around the first of March and had been driven 197 miles at the time it was delivered to Nationwide. Nolan had recently been transferred from California to the Kansas City area and was planning to be in Davenport, Iowa, while recuperating from recent hospitalization. At the time the automobile was delivered, Nolan and Nationwide executed an agreement for the transportation. The agreement is in the form of a shipping order. The shipping order authorized Nationwide Auto Transporters to pick up the automobile in Los Angeles and to deliver it in Davenport for a total sum of $155. A down payment of $55 was to be paid upon delivery of the automobile to Nationwide in Los Angeles. The balance was to be paid on delivery of the automobile to Nolan at its ultimate destination. The shipping order contained a number of provisions pertaining to the time of delivery and limiting Nationwide's liability for delay. We note in particular the following: “We are sorry that we can not guarantee any exact delivery time. . . . “The carrier does not guarantee delivery on any particular schedule. Therefore, carrier will not honor auto rental accruals. “Under no circumstances will any guarantee of a delivery date or time be made. We cannot be responsible for any delivery times with respect to car rentals. . . . The number of days the car is in transit is under our jurisdiction, but no penalty may be imposed on us if the car is late for any reason. WE WILL MAKE EVERY EFFORT TO MOVE YOUR CAR AS FAST AS POSSIBLE.” The shipping order also contained the following conditions: “It is expressly understood that unless otherwise requested nationwide will use casual drivers who are independent contractors. . . . “Should nationwide be liable on account of loss or damage, it shall have the full benefit of any insurance in effect by the owner as is standard with all driveaway companies. ” On April 1, 1977, the automobile was extensively damaged in a one-vehicle collision whén the automobile was driven off the road by one of Nationwide’s drivers at a point near Richfield, Utah. The cost of repairing the Nolan automobile was covered by Nolan’s personal automobile insurance policy, except for the first $250, which was a deductible under the policy and, therefore, payable by the owner. The repair of the automobile was delayed approximately ten weeks by the inability of the automobile dealer in Richfield, Utah, to get replacement parts. While the car was being repaired, Nolan rented an automobile for his personal and business use. Nolan was in the insurance business and needed a car in order to carry put his profession. Plaintiff incurred rental expenses for substitute vehicles in the total amount of $1,296.12 while the car was being repaired. The automobile was finally repaired early in June 1977. On June 9, 1977, Nolan flew to Utah to pick up the car and drove it back to his home in Kansas City. The total amount of this travel expense was $434.03. It is these items of damage that are disputed on the appeal. After recovering possession of his car, Nolan presented a claim to Nationwide for the damages and expenses incurred as a result of the injury to his automobile. Being unable to achieve a satisfactory settlement, Nolan filed this action in the limited action department of the Wyandotte County District Court pursuant to the Code of Civil Procedure for Limited Actions, K.S.A. 61-1601 et seq. In his petition, plaintiff pleaded the delivery of his automobile under the bailment agreement and then alleged that the automobile was involved in a one-vehicle collision occurring when the defendant’s employee negligently lost control of the vehicle and ran off of the road down an embankment. Plaintiff further alleged that, as a direct and proximate result of defendant’s negligence and breach of the bailment agreement and express warranties, he had been damaged in the sum of at least $2500. In its answer, Nationwide pleaded contributory negligence as a defense to the petition and, by way of an affirmative defense, alleged that the driver of the defendant’s automobile was an independent contractor, not an agent or employee of the defendant and, therefore, Nationwide was in no way responsible for any of the “intentional or negligent acts” of the driver. On the morning of the trial, the plaintiff offered evidence and submitted his case on the theory that there is a presumption of negligence when personal property is damaged while in a bailee’s possession. Nolan testified at the trial and identified bills and receipts for his expenses totaling $2,317.39. The defendant did not contest the issue of liability and the only evidence that it offered was the shipping order. Following the hearing and after the parties had rested, the trial court entered judgment in favor of the plaintiff in the amount of $2,317.39 and costs, effective November 9, 1977. On November 10, 1977, the defendant filed a motion for a new trial, which was overruled by the trial court on November 16, 1977. On November 28, 1977, defendant filed a notice of appeal to the Court of Appeals with the Clerk of the District Court of Wyandotte County. Thereafter, the case was transferred to the Supreme Court for disposition. At the outset, plaintiff Nolan urges that the appeal should be dismissed for lack of appellate jurisdiction. Plaintiff maintains that the notice of appeal was not timely filed. Plaintiff relies upon K.S.A. 61-2102(o), which provides as follows: “(a) All appeals from actions pursuant to this chapter shall be by notice of appeal specifying the order, ruling, decision or judgment complained of, and shall be filed with the clerk of the court from which the appeal is taken within ten (10) days after the entry of such order, ruling, decision, or judgment . . . (Emphasis supplied.) As noted above, the journal entry of judgment was filed on November 9, 1977. The defendant’s motion for a new trial was filed on November 10 and denied by the trial court on November 16, 1977. The notice of appeal was filed on November 28, 1977. The plaintiff relies upon the strict wording of K.S.A. 61-2102 and argues that, under that section, a notice of appeal must be filed within ten (10) days after the entry of judgment. Since the journal entry of judgment was filed on November 9,1977, the last day for filing a notice of appeal was November 19, 1977. It is the position of the defendant that the filing of the motion for a new trial suspended the running of the time for filing notice of appeal. Defendant points out that the motion for a new trial was filed on November 10 and overruled on November 16, 1977. The tenth day following the order overruling its motion for a new trial fell on Saturday and thus the defendant had until Monday, November 28, 1977, to file a notice of appeal. In this regard, it should be noted that under chapter 60, K.S.A. 60-2103(a) expressly provides that the running of the time for appeal is suspended by the filing of a timely motion for a new trial and that the time for appeal does not commence until an order has been entered denying the motion for a new trial. The issue arises in the case now before us because chapter 61 does not have a section comparable to 60-2103(o) and thus does not specifically provide for the tolling of the time allowed for filing a notice of appeal when the losing party files a motion for a new trial. Under a strict interpretation of chapter 61, the plaintiff is correct in his position that no timely appeal was filed by the defendant. We have concluded, however, that before an appeal may be taken either to the Court of Appeals or to the Supreme Court in any action, whether filed under chapter 60 or chapter 61, the district court must have exhausted its jurisdiction and the judgment appealed from must have become a final judgment, not subject to vacation or modification by the trial court on motion for a new trial. At the time chapter 61 was adopted to govern civil procedure in courts of limited jurisdiction, an appeal taken from a court of limited jurisdiction went to the district court and was determined in the district court by a trial de novo. The Kansas trial courts were unified in 1976 by statutes effective January 10,1977. At that time, many sections of the Code of Civil Procedure for Limited Actions were amended. One important change was provided in the amendment to 61-2102. The new statute differentiated between appeals in limited actions heard by a district magistrate and appeals in limited actions heard by a district judge or an associate district judge. Appeals from decisions of a district judge or an associate district judge are taken to the Court of Appeals. Appeals from decisions of a district magistrate judge are taken to a district judge or an associate district judge of the county to be heard de novo. The provision of K.S.A. 60-2103(a), providing for the suspension of the time for appeal pending the disposition of a motion for a new trial, was not specifically made applicable to appeals in cases involving limited actions under chapter 61. In our judgment, this was an oversight. We have concluded that the orderly administration of justice requires the suspension of the time for filing a notice of appeal to an appellate court from the district court during the period a motion for a new trial is pending in the district court and until such motion is overruled. Both chapters 60 and 61 require that those Codes of Civil Procedure be liberally construed to secure the just, speedy, and inexpensive determination of every action or proceeding. (K.S.A. 60-102 and 61-1608.) Since January 10, 1977, courts of limited jurisdiction, other than municipal courts, have been abolished. The only trial court in the state system is the unified district court. Until the trial court has had a full opportunity to correct trial errors by ruling on a pending motion for a new trial, the jurisdiction of the appellate courts of this state should not be invoked. A contrary rule might well result in unnecessary delays and expenses in the determination of such an action. Furthermore, it should be noted that K.S.A. 61-2101 authorizes an appeal from “a final judgment” or from “any order, ruling or decision which determines the action at any stage of the proceedings.” We have held that a final order from which an appeal will lie is one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court. Connell v. State Highway Commission, 192 Kan. 371, 388 P.2d 637 (1964); Cusintz v. Cusintz, 195 Kan. 301, 404 P.2d 164 (1965). We have concluded that when an appeal is taken from a district court to an appellate court in an action brought either under chapter 60 or under chapter 61, the running of the time for filing a notice of appeal is suspended by the filing of a timely motion for a new trial and is to be computed commencing with the entry of an order overruling the motion for a new trial. We, therefore, hold that the notice of appeal was timely filed by the defendant, Nationwide, in this case. We turn now to the merits of the appeal. The basic issue raised by Nationwide is that the trial court improperly permitted the plaintiff to recover two elements of damages: (1) the expenses incurred by the plaintiff in renting substitute automobiles while his own vehicle was being repaired and (2) the expenses incurred by the plaintiff in traveling to Utah in order to regain possession of his automobile. As noted above, the issue of liability was not disputed by the defendant; nor did the defendant dispute the right of the plaintiff to recover the $250 deductible and the cost of certain other repairs and loss of hubcaps during transportation. These items totaled $525. Simply stated, Nationwide maintains that the plaintiff’s action was one necessarily based on the bailment contract, which, by the specific terms set forth in the shipping order, excluded any liability for damages resulting from delay in delivery. The defendant argues that the expenses relating to rental vehicles and the expenses incurred by plaintiff in taking possession of his automobile were elements beyond the contemplation of the parties as shown by the specific language of the shipping order. Plaintiff relies upon the rule of Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145, 5 Eng. Rul. Cas. 502 (1854), which was recognized and followed in Kansas State Bank v. Overseas Motosport, Inc., 222 Kan. 26, 563 P.2d 414 (1977). It is thus the position of Nationwide that the contract between the parties specifically covered the subject of delays in delivery, that the defendant cannot be held liable for such items of expense, and that the plaintiff cannot recover for such items in this breach of contract action. To the contrary, the plaintiff, Nolan, contends that the action is not one based on contract but is one in tort, based on the theory of negligence, and that, under a negligence theory, he is entitled to recover all damages which were the natural and probable result of the defendant’s wrongful act. Foster v. Hamburg, 180 Kan. 64,299 P.2d 46 (1956). It cannot be denied that in his petition plaintiff based his right to recover in part on a negligence theory. In its answer, the defendant pleaded contributory negligence as a defense and further alleged that its driver was an independent contractor and, therefore, the defendant was not responsible for his negligent acts. It is clear that plaintiff in his petition asserted a cause of action in tort based upon the negligence of Nationwide’s employees. We have concluded that the district court did not commit error and that its judgment, awarding the disputed items of expense to plaintiff, should be affirmed. In arriving at this result we have considered and applied certain basic principles of law, well-recognized in this state. They are as follows: 1. In the absence of proof to the contrary, the liability of a common carrier engaged in interstate commerce for loss sustained in transporting property is presumed to be its liability under the common law. At common law, a carrier is liable for the full loss sustained by the shipper unless the carrier effectively limits its liability. First National Bank v. Bankers Dispatch Corporation, 221 Kan. 528, 562 P.2d 32 (1977). 2. A common carrier may relieve itself from the strict liability imposed upon it by common law by a special contract, but it cannot contract for exemption from the consequences of its agent’s negligence. K.C. St. J. & C.B. Rld. Co. v. Simpson, 30 Kan. 645, 2 Pac. 821 (1883); Missouri Valley R. Co. v. Caldwell, 8 Kan. 244 (1871); 14 Am. Jur. 2d, Carriers § 554, p. 76. 3. A common carrier is, in law, a bailee for hire. A special contract of a common carrier that it shall not be liable for certain specific losses operates only to relieve it of liability as an insurer, and leaves it responsible for ordinary negligence as any other bailee for hire. Missouri Valley R. Co. v. Caldwell, 8 Kan. 244. 4. Where bailed property is damaged while in the possession of a bailee as the result of the bailee’s negligence, the bailor has a choice of remedies. The bailor may elect to affirm the contract, waive the tort, and bring his action in contract; or he may abandon the contract and proceed against the bailee in an action in tort based upon the bailee’s negligence. Continental Ins. Co. v. Windle, 214 Kan. 468, 520 P.2d 1235 (1974). 5. Where bailed property is destroyed or damaged while in the exclusive possession and control of the bailee, the law presumes the bailee’s negligence or other fault to be the cause of the loss and casts on the bailee the burden of going forward with the evidence that the loss was due to other causes consistent with due care on its part. The presumption of lack of due care on the part of a bailee, where the bailment is destroyed or damaged while under his possession or control, is simply an application of the doctrine of res ipsa loquitur to the liability of a bailee. Farm Bureau Mutual Ins. Co. v. Schmidt, 201 Kan. 621, 443 P.2d 254 (1968); Virginia Surety Co. v. Schlegel, 200 Kan. 64, 434 P.2d 722 (1967). 6. In tort actions brought to recover damages for negligent injury to an automobile, when repairs can restore the automobile to its previous condition, the measure of damages is the fair and reasonable cost of the repairs plus a reasonable amount to compensate for loss of use of the automobile while being repaired with ordinary diligence, not to exceed the value of the property before the damage. Venable v. Import Volkswagen, Inc., 214 Kan. 43, 519 P.2d 667 (1974); Lester v. Doyle, 165 Kan. 354, 194 P.2d 917 (1948); PIK Civ. 2d 9.10 (1977). 7. Damages for loss of use of a motor vehicle may be measured by the cost of renting a substitute vehicle while repairs are being made. 8 Am. Jur. 2d, Automobiles and Highway Traffic § 1047, p. 608; Nelson v. Hy-Grade Construction & Materials, Inc., 215 Kan. 631, 527 P.2d 1059 (1974). 8. One injured by the wrongful or negligent act of another may recover, as part of his damages, expenses incurred in the exercise of reasonable diligence to avoid the consequences and to lessen the injury. This is the doctrine of avoidable consequences. Town Co. v. Leonard, 46 Kan. 354, 26 Pac. 717 (1891); St. L. & S. F. Rly. Co. v. Sharp, 27 Kan. 134 (1882). 9. Under the doctrine of avoidable consequences, expenses which have been held to be recoverable include expenses reasonably incurred by the owner in reclaiming or taking possession of his property, 22 Am. Jur. 2d, Damages § 162, p. 232; Campbell v. Company, 91 N.H. 390, 20 A.2d 644 (1941), and traveling expenses made necessary by the circumstances in which the injured party was left as the result of the wrongful act. Lewark v. Parkinson, 73 Kan. 553, 85 Pac. 601 (1906). With these basic principles of law in mind, we turn to apply them to the factual circumstances disclosed by the evidence in this case. The plaintiff’s evidence established that his automobile was damaged as a result of the negligence of the defendant’s agent, while the automobile was in the possession of the defendant as bailee. Plaintiff was entitled to recover in an action in tort based upon the defendant’s negligence. As part of his damages, the plaintiff was entitled to recover for the loss of use of his automobile while it was being repaired with ordinary diligence. Damages for loss of use could properly be established by evidence of the cost of renting substitute vehicles while the repairs to plaintiff’s automobile were being completed. We, therefore, find that the trial court did not err in allowing the plaintiff, as an element of damages, the expenses that he incurred for substitute vehicles. We, likewise, conclude that the plaintiff was entitled to recover reasonable expenses incurred by him in traveling to Utah to retake possession of his car. Plaintiff testified that such travel was taken to avoid further rental expenses either to himself or to Nationwide. The trial court, as trier of facts, apparently found that the expenses incurred were reasonable and were incurred for the purpose of mitigating damages under the doctrine of avoidable consequences. We find no error in awarding these expenses to the plaintiff. The case must, therefore, be affirmed on the merits. The plaintiff has moved the court to allow attorney fees and expenses as provided for in Supreme Court Rule No. 7.07(h), 224 Kan. xlviii. The court has considered the request and concluded that it cannot find that the appeal was taken by the defendant frivolously or solely for the purpose of harassment or delay. The motion for allowance of attorney fees is, therefore, denied. Judgment affirmed.	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The opinion of the court was delivered by Prager, J.: This is an original action in habeas corpus brought pursuant to K.S.A. 60-1501. The petitioner, Edward E. Case, claims deprivation of due process in the denial of his Sixth Amendment right to confer privately with his counsel while being held for trial in the Lyon County jail at Emporia. The facts in the case have been stipulated by the parties and are as follows: Petitioner is currently incarcerated in the Lyon County jail pending trial on a criminal complaint. Michael C. Helbert was appointed counsel for Case and conferred with his client in the jail. The room provided for attorney-client consultation is divided by a steel wall with a small glass window, which prohibits any physical contact with the petitioner. The prisoner’s side of the conference room is 8 6’’ deep, 410’’ wide, and 910 ” high. The attorney’s side is 8’6” deep, 6’6’’ wide, and 7’8 ” high. This room is visually monitored by a permanently-mounted camera at the rear of the attorney’s end of the room. The camera is not wired for sound. The only alternative location for an attorney-client conference is the defendant’s cell, which is equipped with a microphone capable of picking up and/or recording conversations. On August 1, 1979, during a conference with petitioner, attorney Helbert placed his suit coat over the camera lens to insure a “confidential atmosphere.” Deputy Sheriff Charles Schreck interrupted the conference to demand that the coat be removed. When Helbert declined to remove his coat, Schreck consulted with Judge R. E. Miller who confirmed the sheriff’s position. The coat was then removed, and this action filed requesting restraint of respondent’s televising, photographing, filming, listening to, or recording attorney-client conversations. Petitioner claims such visual surveillance of an attorney-client conference constitutes an illegal condition of detention. The issue before this court is whether the visual surveillance of the attorney-client conference was justified by some compelling state interest or whether it was an unreasonable interference which deprived the petitioner of his Sixth Amendment right to the effective assistance of counsel. There are many cases dealing with the right to private communications between the prisoner-accused and his counsel. None are factually similar, so there is no easy disposition of the issue. Moreover, there are cases on both sides of the issue, many without sufficient factual statements to be helpful. The Sixth Amendment right to the effective assistance of counsel is applicable to the states through the Fourteenth Amendment. E. g., Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 (1963); Martinez Rodriguez v. Jimenez, 409 F.Supp. 582, 594 (D. Puerto Rico 1976). The right to counsel includes the right to confidential attorney-client communications. Adams v. Carlson, 488 F.2d 619, 631 (7th Cir. 1973); Krull v. United States, 240 F.2d 122, 126 (5th Cir.), cert. denied 353 U.S. 915 (1957). The right to private and confidential communications is not absolute, however, and is subject to reasonable regulation. Baker v. Beto, 349 F. Supp. 1263 (S.D. Tex. 1972); Smith v. Peyton, 276 F.Supp. 275, 277 (W.D. Va. 1967); Krull v. United States, 240 F.2d 122; Matter of Hughes v. Cashin, 184 Misc. 757,54 N.Y.S.2d 437 (1945). Most courts have required some justification, generally security reasons, for any intrusion on the privacy of the attorney-client consultation, Adams v. Carlson, 488 F.2d at 632, and do not impose the “compelling state interest” standard of justification showing of harm or prejudice. See, e.g., Owens-El v. Robinson, 442 F.Supp. 1368 (W.D. Pa. 1978) (Overcrowding of the attorney-client conference room was occasional rather than constant, and mere speculation that the crowded conditions might interfere with defense preparation held insufficient to warrant judicial interference); Krull v. United States, 240 F.2d at 126. (Although corrections officer was present during the attorney-client conference, there was no constitutional infringement as there was no showing that the information was overheard, passed on to the prosecutor, or that the defense was hampered or prejudiced.) Petitioner relies mainly on Ahrens v. Thomas, 434 F.Supp. 873 (W.D. Mo. 1977), where the lack of facilities for private consultation between client and attorney was held to deny the defendant his Sixth Amendment right of access to the courts. Petitioner also cites Owens-El v. Robinson, 442 F. Supp. 1368; Jones v. Wittenberg, 440 F. Supp. 60 (N.D. Ohio 1977) (Partition between prisoner and attorney ordered removed and soundproof doors ordered installed); Moore v. Janing, 427 F. Supp. 567 (D. Neb. 1976); Goldsby v. Carnes, 365 F. Supp. 395 (W.D. Mo. 1973) (Private attorney consultation rooms to be provided free of both audio and visual intrusion except one small look-through glass panel); Collins v. Schoonfield, 344 F. Supp. 257 (D. Md. 1972) (City jail conditions which allowed attorney-client conversations to be overheard by jail personnel and other prisoners held to violate the constitutional right to counsel absent justification). Respondent counters with cases allowing visual observation of attorney-client consultations in the prison setting. See, e.g., Baker v. Beto, 349 F. Supp. at 1271 (Observation of prisoner and visitor without attempt to listen is reasonable as “obviously necessary” for prison security). Morales v. Turman, 326 F. Supp. 677 (E.D. Tex. 1971); People v. Del Rio, 25 Misc. 2d 444, 207 N.Y.S.2d 186 (I960); Krull v. United States, 240 F.2d at 122; Matter of Hughes v. Cashin, 184 Misc. 757, (Consultation room was 45" long, so it was possible for the prisoner and counsel to confer “out of earshot but under visual supervision”); William Frank Ellis v. The State, 149 Tex. Crim. 583, 197 S.W.2d 351 (1949). See also Ray v. Rose, 392 F. Supp. 601 (W.D. Tenn. 1975) (Stressing the prison’s responsibility for prisoner safety and to prevent escape, the court okayed closed circuit monitoring of the hallway and cell, the screening of letters, and the log of all visitors of the infamous James Earl Ray, especially since there was no showing of prejudice). Other cases not cited by the parties more adequately explain the rationale behind the decisions. For example, in Adams v. Carl son, 488 F.2d at 624, prison authorities modified the attorney’s visiting room when, gunpowder from the “outside” was found in a prisoner’s cell. The modification consisted of a soundproof, glass partition between the prisoner-client and his attorney. Communications were by telephone. Noting that the constitutional right of counsel includes the right of private consultation, the burden was placed on the prison authorities to show some threat to the order or security of the prison. The court noted that attorneys were officials of the court, and to justify an impairment of the private consultation, the prison authorities were required to present facts to support a reasonable suspicion that the attorneys were involved in the contraband smuggling. Stover v. Carlson, 413 F. Supp. 718 (D. Conn. 1976) involved interference with attorney-prisoner communications through the mail rather than face-to-face. Prison authorities opened letters stamped “attorney-client” only in front of the prisoner to check for contraband. To achieve this privileged status, the letters were required to specifically designate “attorney-client,” though neither the prisoners nor their attorneys were notified of this requirement. In ordering the practice to cease, the court held that even one accidental opening outside of the prisoner’s presence chilled his Sixth Amendment rights. It was stressed that the practice furthered no “substantial governmental interest of security, order, or rehabilitation,” but significantly limited Sixth Amendment freedoms. Finally, Fowler v. State, 6 Md. App. 651, 253 A.2d 409 (1968), mainly concerned the voluntariness of incriminating statements of the accused. Defendant had been picked up on bad check charges and while in custody, was interrogated about a rape murder. The right-to-counsel issue was present because, during the interrogation, defense counsel met with defendant and requested a private consultation. The police detectives refused to leave the room, and defendant and counsel spoke in low tones for around fifteen minutes. It was held that the right to confer with counsel prior to questioning “contemplates a consultation outside the immediate earshot and superintending presence of law enforcement officers.” (p. 671.) At the outset, it should be stated that habeas corpus is an appropriate remedy in this case. In Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972), it was held that habeas corpus provides an appropriate remedy for inquiry into mistreatment of a continuing or probably continuing nature alleged by an inmate of a penal institution. A determination of the issue raised in this case is particularly important, because it appears that the visual surveillance complained of by the petitioner has become the standard practice followed by the sheriff of Lyon County with the approval of the district judge. We have concluded that under the factual circumstances presented, the Lyon County jail policy of visually monitoring all consultations between attorneys and clients is an unreasonable interference with the right to confidential attorney-client communications. The confidentiality of communications between an attorney and his client who is charged with crime should be carefully protected by the courts. Such communications in a jail setting should be afforded as much privacy as is reasonably possible under the circumstances. If there is a private room readily available, it should be made available to the jail inmate and his attorney. If there is no private room available, then as much privacy should be afforded as is reasonably possible under the circumstances. In the case now before us, the petitioner and his counsel requested privacy through the simple device of hanging counsel’s coat over the television camera lens to insure a “confidential atmosphere.” The respondent has offered us no sufficient justification for the denial of the request. The respondent has made no showing that the practice of denying such requests furthers any substantial governmental interest in security, order, or rehabilitation. Counsel for respondent in his brief refers to the Kansas Advisory Jail Standards and Procedures published by the Kansas Department of Corrections. Section 15 of the jail standards provides as follows: “Right to Consult with Attorney. Any person committed, imprisoned or restrained of his liberty for any cause whatever and whether or not such person is charged with an offense should, except in cases of imminent danger of escape, be allowed to consult with any licensed attorney at law of this state whom such person may desire to see or consult, alone and in private at the place of custody, as many times and for such period each time as is reasonable. When any such person is about to be moved beyond the limits of this state under any pretense whatever, the person to be moved should be entitled to a reasonable delay for the purpose of obtaining counsel and of availing himself of the laws of this state for the security of personal liberty.” (p. 18.) (Emphasis supplied.) It does not appear that the respondent has complied with that section to the extent reasonably possible. It must be emphasized that attorneys are officers of the court. It should be presumed, absent a contrary showing, that an attorney representing an incarcerated client will strive to uphold the credibility and standards of the judicial system rather than to subvert them. Absent a showing of any risk to the order or security of the jail, the practice of visually monitoring an attorney-client conference when privacy is requested, is unreasonable. Such unreasonable interference violates an accused’s Sixth Amendment right to effective representation by counsel. Accordingly, the writ is allowed and the respondent, Daniel R. Andrews, sheriff of Lyon County, is directed to permit attorneys consulting clients held in the county jail to place their coats over the television camera lens during such a conference. Judgment is entered in favor of the petitioner. Fromme, J., not participating.	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The opinion of the court was delivered by Kaul, J.: This is an interlocutory appeal brought by defendant-appellant in a mortgage foreclosure action. The sole issue presented concerns the appointment of a receiver by the trial court on application of plaintiff-appellee at the time the foreclosure action was filed. The appeal is taken pursuant to the provisions of K.S.A. 60-1305. For convenience the appellant will be referred to as Rainbow or defendant and the appellee as Hutton or plaintiff. At the outset it should be noted that prior to oral arguments in this court, plaintiff filed a motion to dismiss on the ground the matter pending is moot. Plaintiff’s motion was premised on the fact that defendant, after taking this appeal, did, on March 3, 1978, file a bankruptcy petition in the United States District Court. A bankruptcy receiver was appointed and all funds in the hands of the state court receiver were transferred to him. Under an arrangement approved by the bankruptcy court, the mortgaged property was sold and there is no longer any property in the hands of the state court receiver to be administered or succeeded to. Thus, in essence, plaintiff says, since the bankruptcy proceedings have terminated the state court receivership the issue of wrongful appointment before this court is moot. Nevertheless, since we do not have the record of the bankruptcy proceedings before us and in view of the fact the defendant incorporated in his pleadings below a counterclaim for damages for wrongful appointment, we deem it to be in the interests of the litigants to resolve the issue on the merits. While the question presented is narrow, a clear understanding of the issue as it was presented to the trial court necessitates recitation of some of the background facts. Rainbow was certificated as a limited partnership on March 8, 1972. The certificate discloses the partnership was formed by two corporations; the RLT Construction Company, a Missouri corporation and the General Financial Corporation, Inc., a Kansas corporation located in Overland Park. It appears that assignments by the two original partners of partial interests were subsequently made to other parties. On the same date Rainbow executed a mortgage and note to Kansas Savings & Loan Association in the amount of $3,926,800.00. Thereafter, Rainbow commenced construction of Rainbow Tower, a high-rise apartment building. Cost overruns were experienced in the project and in November of 1974, a supplemental mortgage and note for $628,200.00 were negotiated with Kansas Savings & Loan. The building was completed in 1975. Rainbow soon encountered financial difficulties. Four payments were missed in 1976, taxes became delinquent and substantial unpaid interest accrued. Meanwhile, the affairs of Kansas Savings became entangled and on February 1, 1977, W. Craig Hutton was appointed trustee by the Kansas Savings & Loan commissioner. Hutton assumed management of Kansas Savings and ordered an audit of the books by an accounting firm which disclosed substantial insolvency whereupon Hutton was appointed receiver in July of 1977. Hutton’s appointment as receiver was approved by the District Court of Johnson County and a bond was posted in the amount of $250,000.00. Thereafter, on October 20, 1977, the instant foreclosure action was filed. In his verified petition, Hutton alleged unpaid principal in the amount of $4,531,016.04, unpaid accrued interest in the amount of $220,218.27 and that the property in question had a probable fair market value of $3,400,000.00 and an estimated gross annual income of $480,000.00. Hutton further alleged that under the terms of the mortgage, Kansas Savings was entitled, without notice, to the appointment of a receiver and the assignment of all rents and income upon the mortgagor’s default. He further alleged that defendant is in possession of the property, collecting and retaining the rents and income and that unless a receiver is appointed to collect and conserve such rents, plaintiff will suffer irreparable damage. Upon the filing of the petition an immediate ex parte hearing was held upon plaintiff’s application for the appointment of a receiver. Hutton testified generally in line with the allegations of his petition. He further testified that since the mortgage was executed in 1972 “we have never received a full payment, and as of this date there is $220,218.27 in back interest alone due and owing.” Hutton further testified that real estate taxes for two years were delinquent and that because of the makeup of the limited partnership debtors no personal liability could be imposed upon individuals in the event of deficiency on default. At the conclusion of counsel’s examination Hutton was further interrogated by the trial court. The trial court noted the provisions of K.S.A. 60-1304 and queried counsel concerning the court’s responsibilities and limitations thereunder. After a discussion with counsel concerning the type and amount of a bond and possible conflict of interest with respect to Hutton’s appointment as receiver herein, the court announced from the bench: “I do specifically make the finding here in open court that immediate and irreparable injury is likely to result unless this appointment is made at this time, the nature of which would be that monies would not promptly get to the Kansas Savings & Loan; additional amounts might be siphoned off by those interested in Rainbow Tower during the time that the hearing was pending on the appointment of a receiver; that interest would be lost. . . While, as we have indicated, the provisions of the mortgages pertaining to receivership upon default were before the court no mention thereof was made by the court in its determination. The day following the ex parte appointment, counsel for Rainbow telephoned the trial judge and expressed objections to the appointment; he was directed by the judge to file appropriate motions and a hearing was scheduled for November 4, 1977. In response to counsel’s call, the court did direct Hutton to retain in a separate account all rents collected from Rainbow tenants. The main thrust of Rainbow’s motion to vacate and its evidence in support thereof was that on December 15, 1976, Rainbow and Kansas Savings entered into a so-called “work-out” agreement negotiated by one of the partners and Robert S. Kerr, then managing officer of Kansas Savings. This agreement radically modified the payments provided for in the original note and mortgage. Rainbow claimed that payments required under this “work-out” agreement had been made or tendered in accordance with the provisions thereof and therefore Rainbow was not now in default. Rainbow further contended that Hutton had wrongfully concealed the “work-out” agreement and payments made or tendered thereunder from the court and therefore the receivership should be vacated and plaintiff estopped by his conduct from seeking such relief. In response to Rainbow’s contentions, plaintiff Hutton testified that he made no mention of the “work-out” agreement simply because he did not consider it a valid and binding agreement and, moreover, even if it were valid it had not been complied with in that payments called for were not paid until time for payment had expired. Hutton further testified that he rejected payments tendered after he had determined the “work-out” agreement was invalid and that such tendered payments were much less than those specified in the mortgage notes. In this connection Hutton testified that he had reason to believe that Robert S. Kerr who signed the “work-out” as managing officer of Kansas Savings had, together with other former officers of Kansas Savings at the time, an ownership interest in the project itself and that Rainbow had made a payment of $20,000.00 to a partnership in the project consisting of a corporation owned by these principals of Kansas Savings. Hutton testified that by reason of this identical ownership and the further fact that Kansas Savings received nothing under the “work-out” that it didn’t have a legal right to receive under the original loan documents, he attached little significance to the “work-out” agreement but did find that in any event the terms thereof had not been complied with. It is well settled in this jurisdiction that the appointment of a receiver, ex parte and without notice, to take over one’s property is a drastic action. Braun v. Pepper, 224 Kan. 56, 578 P.2d 695 (1978); Redfearn v. Bronson Mutual Telephone Co., 189 Kan. 105, 367 P.2d 76 (1961). The rule only expresses the clear intent of the controlling statute, K.S.A. 60-1304. The statute limits ex parte appointments to those cases where, after hearing evidence, the judge makes a finding that immediate and irreparable injury is likely to result, and shall set forth the probable nature of such immediate and irreparable injury. In the instant case, as we have previously indicated, the trial court made the requisite statutory findings. This leaves the question whether there was sufficient evidence before the court to support the findings made. We believe there was. The mortgage note was in substantial default, taxes were delinquent and no tax payments were being made, individual partners in Rainbow had no personal liability and could not be held for any deficiency. Thus, if rents were withheld by Rainbow during the course of foreclosure proceedings, irreparable harm to Kansas Savings would result. Evidence was adduced that several former officers of Kansas Savings wholly owned a corporation that held a partnership interest in Rainbow and that a $20,000.00 unexplained payment had been made to such corporation. While this court has directed the use of extreme caution in the ex parte appointment of receivers (Braun v. Pepper, 224 Kan. 56), where a trial court finds that failure to so appoint is likely to result in immediate and irreparable injury and in the exercise of judicial discretion appoints a receiver, appellate courts are not inclined to disturb such exercise of discretion in the absence of abuse thereof. Geiman-Herthel Furniture Co. v. Geiman, 160 Kan. 346, 355, 161 P.2d 504 (1945); Kline v. Orebaugh, 214 Kan. 207, 519 P.2d 691 (1974). A statement pertinent to the particular facts and circumstances appearing in the case at bar appears in 55 Am. Jur. 2d, Mortgages § 971, p. 837: “Moreover, if after looking at the situation of the litigating parties, the situation of the property, and the prospects of the future, it should appear to the court that these would be benefited and require the appointment of a receiver, no court could, notwithstanding that it is said to be a matter in its discretion, justly refuse the appointment.” The evidence here concerning the situation of the litigating parties, the situation of the property and cash flow therefrom and the prospects for the future clearly warranted the appointment in the first instance as well as the court’s denial of the motion to vacate. Finally, Rainbow contends appellee should be barred from the relief requested on the basis of the doctrine of equitable estoppel. The elements of the doctrine have been enumerated in numerous decisions of this court and need not be repeated. See Place v. Place, 207 Kan. 734, 486 P.2d 1354 (1971), Pelischek v. Voshell, 181 Kan. 712, 313 P.2d 1105 (1957), and cases cited therein. The first and perhaps most important requisite is that there be a false representation or concealment of material facts. It is Rainbow’s contention that Hutton’s failure to inform the court at the first hearing concerning the “work-out” agreement amounted to concealment of material facts so as to invoke application of the doctrine. Rainbow’s contentions in this regard were explored in depth at the hearing to vacate. The trial court was satisfied with Hutton’s explanation of his position. Hutton was not fully aware of the circumstances surrounding the “work-out” agreement until he received an audit of the entangled affairs of Kansas Savings in mid-July, 1977. At this time, Hutton determined the agreement was invalid and rejected any of the reduced payments under the agreement that were tendered thereafter. Nothing was concealed from Rainbow, which undoubtedly knew more about the agreement than did Hutton. Hutton testified that he had told Rainbow why he was returning their checks. We find no abuse of discretion in either of the trial court’s rulings, and its judgment is affirmed. APPROVED BY THE COURT. Fromme, J., not participating.	[ -48, -20, -79, 78, 8, 98, 56, -88, 81, -96, 39, 87, 109, -38, 20, 111, -10, 61, -31, 120, 5, -74, 103, 72, -46, -13, 88, -35, -80, -1, -26, -43, 72, 48, 66, 21, -30, -126, -123, 84, 14, -122, 56, -64, -47, -64, -80, -21, 28, 1, 84, -41, -13, 41, 56, 64, 72, 40, 123, 29, -46, -8, -113, 5, 95, 3, 35, 4, -66, -57, -8, 14, -112, -76, 0, -24, 114, -74, -98, 116, 67, -101, 8, 36, 98, 2, 65, -21, 116, -72, 46, 28, -99, -89, -111, 24, 18, 9, -66, -99, 124, 19, -89, -4, -18, -124, 31, -20, 3, -50, -46, -109, -115, 118, 26, -125, -1, -125, 48, 116, -113, 96, 92, 99, 58, -37, -84, -75 ]
The opinion of the court was delivered by Prager, J.: This is an appeal by the city of Overland Park from the dismissal of a complaint by the district court, following an appeal to district court by the defendant after a municipal court conviction. The district court dismissed the case for denial of a speedy trial because the case was not tried within the ■ 180-day limit prescribed by K.S.A. 1977 Supp. 22-3402. For purpose of this appeal, the facts are undisputed and are as follows: The defendant-appellee, Donald A. Fricke, was arrested on November 1, 1977, for a violation of an Overland Park city ordinance. Defendant was represented by court-appointed counsel in the municipal court. He was found guilty and received a jail sentence and a fine. He appealed to the district court on February 7, 1978, the same day he was convicted. Defendant’s appeal was docketed in the district court. On February 22, 1978, the defendant appeared at a docket call and announced that he was maintaining his not guilty plea and wanted a trial. The trial date was to be determined later. On October 3, 1978, the complaint was dismissed by the district judge for failure of the city to bring the defendant to trial within the 180-day limit required by K.S.A. 1977 Supp. 22-3402. The city’s motion to vacate the dismissal was denied on October 13, 1978. The city of Overland Park then appealed to this court. On the appeal, the city does not seek to justify the delay in bringing the defendant to trial. Suffice it to say, the defendant Fricke was caught up in the dispute between Johnson County and various cities in that county as to who was responsible to pay the fees of attorneys appointed to represent indigent defendants in district court on appeals from municipal court convictions. This dispute was recently settled in City of Overland Park v. Estell Sc McDiffett, 225 Kan. 599, 592 P.2d 909 (1979). The city’s argument that the dismissal of the complaint by the district court was in error rests solely on the proposition that K.S.A. 1977 Supp. 22-3402 is inapplicable to municipal court appeals in the district court. K.S.A. 1977 Supp. 22-3402 provides in pertinent part as follows: “(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3). “(4) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.” In support of its position, the city concedes the defendant was charged with a crime, was held to answer on an appearance bond, and was not brought to trial within 180 days from his first appearance in district court. However, the city points out the statute refers to 180 days after defendant’s arraignment on the charge. The city argues that it is the word arraignment which governs the application of the statute. The city urges that the appearance by the defendant in district court at the time the municipal appeal docket was called was not an arraignment within the meaning of the statute. It directs our attention to City of Ogden v. Allen, 208 Kan. 573, 493 P.2d 277 (1972), where this court held that there is no statutory requirement that a defendant must be rearraigned in district court on a municipal court complaint, since he has already been arraigned in municipal court. Hence, the city argues that the provisions of K.S.A. 1977 Supp. 22-3402 could apply only to the arraignment of the defendant in municipal court. In addition, the city contends that K.S.A. 1977 Supp. 22-3402 has no application to this case because the case involves an appeal and, even though the matter is tried de novo at the district court level, it is still an appeal by the defendant from the municipal court. The city then cites Kansas cases holding that a district court may dismiss a municipal court appeal for failure of the defendant to prosecute such appeal with due diligence, and reasons that the Supreme Court by these decisions is acknowledging that cases from the municipal court to the district court are really appellate cases and, therefore, it would be illogical to hold that K.S.A. 1977 Supp. 22-3402 should be applied in such cases. See City of Wichita v. Houchens, 184 Kan. 297, 335 P.2d 1117 (1959), and City of Wichita v. Catino, 175 Kan. 657, 265 P.2d 849 (1954). The city cites an Oregon case, State v. Dodson, 226 Or. 458, 360 P.2d 782 (1961), which distinguishes between cases originally filed in an Oregon Circuit Court and those originally filed in courts of limited jurisdiction which are appealed to a circuit court. As to the latter cases, the Oregon Supreme Court held that where the defendant has been afforded a speedy trial and convicted in a justice court and thereafter appeals to a circuit court, the burden is upon the defendant to prosecute his appeal with reasonable diligence and the Oregon speedy trial statute, providing for dismissal of an indictment for failure to bring a defendant to trial within a reasonable time, does not apply to such appeals. The court reasoned that the Oregon statute clearly placed the burden in such cases upon the defendant to prosecute his appeal with reasonable diligence and he should not be discharged because of the State’s inaction. The issue must, of course, be determined from the Kansas statutes and case law. We should first consider the pertinent Kansas statutes. K.S.A. 1977 Supp. 22-3402 is a part of the comprehensive Kansas Code of Criminal Procedure. K.S.A. 22-2102 declares the scope of the application of the Code of Criminal Procedure as follows: “22-2102. Scope. The provisions of this code shall govern proceedings in all criminal cases in the courts of the state of Kansas, but shall have application to proceedings in police and municipal courts only when specifically provided by law.” K.S.A. 22-3610 governs trials when a case is appealed to district court from a court of limited jurisdiction. It provides: “22-3610. Hearing on appeal. When a case is appealed to the district court, such court shall hear and determine the cause on the original complaint, unless the complaint shall be found defective, in which case the court may order a new complaint to be filed and the case shall proceed as if the original complaint had not been set aside. The case shall be tried de novo in the district court.” K.S.A. 1977 Supp. 22-3609 establishes a right to appeal to the district court from a municipal court and sets forth the procedural steps required to perfect an appeal: “22-3609. Appeals from municipal courts. (1) The defendant shall have the right to appeal to the district court of the county from any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas or which imposes a sentence of fine or confinement or both. Such appeal shall be assigned by the administrative judge to a district judge or associate district judge. The appeal shall stay all further proceedings upon the judgment appealed from. “(2) An appeal to the district court shall be taken by filing a notice of appeal in the court where the judgment appealed from was rendered. No appeal shall be taken more than ten (10) days after the date of the judgment appealed from. “(3) The judge whose judgment is appealed from, or the clerk of such court, if there be one shall certify the complaint, warrant and any appearance bond to the district court of the county on or before the next court day of such district court occurring more than ten (10) days after the appeal. “(4) No advance payment of docket fee shall be required when the appeal is taken. “(5) Hearing on the appeal shall be to the court unless a jury trial is requested in writing by the defendant.” K.S.A. 1977 Supp. 22-3609a provides for a criminal appeal from a district magistrate judge to a district judge or associate district judge. The procedure to be followed in all municipal courts is governed by the Code of Procedure for Municipal Courts, K.S.A. 12-4101 et seq. That code contains a speedy trial provision which is even more stringent than the one provided for criminal cases in the district court. K.S.A. 12-4501 states as follows: “An accused person entering a plea of not guilty, or for whom the court entered a plea of not guilty, shall be tried on the earliest practical day set by the court, unless trial is continued for good cause: Provided, That an accused person in custody shall be tried on the earliest day that the municipal court convenes, unless trial is continued upon motion of the accused person and for good cause.” K.S.A. 12-4601 grants a defendant convicted in municipal court a right to appeal to the district court in all cases. It is provided that the appeal shall stay all further proceedings upon the judgment appealed from. K.S.A. 12-4602 provides that after an appeal is taken to the district court, a hearing and judgment on appeal shall be as provided by K.S.A. 22-3610 and 22-3611. From our analysis of the statutory provisions discussed above, it is clear that it was the intent of the legislature that the various provisions of the Kansas Code of Criminal Procedure apply to all criminal cases pending in the district courts. K.S.A. 22-2102 clearly expresses that intention. K.S.A. 22-3610 allows an amended complaint to be filed if the criminal complaint is defective. The defendant would, of course, be arraigned on such a complaint and the case would then proceed to trial on the new complaint. It is also important to note that the speedy trial provisions of K.S.A. 1977 Supp. 22-3402 are applicable not only to the initial trial but also to a subsequent trial in the event a mistrial or new trial is granted for any reason. Section (4) of that statute specifically provides that in the event a mistrial is declared or a conviction is reversed on appeal, the time limitations provided for in the statute shall commence to run from the date the mistrial is declared or the date the mandate of the appellate court is filed in the district court. From all of these statutes, it is clear that the legislature intended that persons charged with crime should be granted a prompt and speedy trial. There is nothing in the statutes to indicate that the legislature intended to exempt municipal court appeals from the statutory speedy trial provisions. This conclusion is consistent with the philosophy of prior decisions of this court which guarantee a speedy trial to all persons charged with crime. In State v. Hess, 180 Kan. 472, 304 P.2d 474 (1956), it was held that the fact defendant had been tried once and a mistrial declared did not deprive him thereafter of his right to a speedy trial under the speedy trial statute which was in effect at that time. (G.S. 1949 62-1432.) In Hess, the State argued that 62-1432 required only that a defendant be given a trial within three terms after the filing of the information, and that it had no application to later proceedings in the case. This claim was held to be untenable, because, if given effect, it would reduce the constitutional guaranty of a speedy trial to a mere shadow, without force except in cases where the defendant was given no trial at all. It is stated in the opinion that there is as much injustice in restraining a defendant indefinitely after a mistrial as there is in restraining him without any trial at all. This philosophy from the Hess case was incorporated into K.S.A. 1977 Supp. 22-3402(4) which is cited above. Another Kansas case is persuasive on the issue now before us. In State v. Brockelman, 173 Kan. 469, 249 P.2d 692 (1952), the defendant was charged with reckless driving in a complaint filed in a justice of the peace court. Defendant pleaded guilty to the offense and was sentenced to serve 90 days in the county jail and to pay a fine of $100. Later that same day the defendant, apparently having second thoughts in the matter, employed an attorney and posted a statutory appeal bond, conditioned on his appearance in the district court at the next term to answer the complaint. The justice of peace did not certify the case immediately to the district court as he was required by statute to do, because the prosecuting attorney came to his office and told the judge not to proceed with the transcript. The judge understood the county attorney wanted him to forget the appeal. Thereafter, someone had a change of mind. The appeal was finally certified by the justice of the peace to the district court on December 29, 1951, which was one year after the appearance bond was filed and approved. The defendant’s motion to dismiss the prosecution was sustained by the district court and the defendant was discharged. This court on appeal by the State held that the constitutional right to a speedy trial obtained without respect to the grade of the crime and was applicable to a reckless driving charge. The analogy between the factual circumstances in Brockelman and those of' the present case is obvious. In each case, the statutory right to a speedy trial was asserted in district court in an appeal from a court of limited jurisdiction. In each case the district court held the statutory speedy trial provisions applicable. The opinion in Brockelman declares that the speedy trial statute was intended to prevent the oppression of a citizen by holding criminal prosecutions suspended over him for an indefinite time, and to prevent delays in the administration of justice. The obligation is placed on the prosecution to proceed with reasonable dispatch in the trial of criminal cases. It is a direction to the prosecuting officer to act and not delay the prosecution of those charged with crime. Brockelman is clearly in point and, in our judgment, controls the disposition of the case now before us. We have concluded that K.S.A. 1977 Supp. 22-3402, which provides a statutory right to a speedy trial to persons charged with crimes in the district courts of this state, is applicable to criminal cases which have been appealed to the district courts from municipal court convictions. Such cases should be dealt with in the same way as a mistrial, where a defendant is granted a new trial de novo. We hold that in district court cases involving appeals from municipal courts, the time limitations provided in K.S.A. 1977 Supp. 22-3402 shall commence to run from the date the appeal is docketed in district court or at the expiration of the time the appeal should have been docketed under the time schedule set forth in K.S.A. 1977 Supp. 22-3609(3), whichever occurs first. This holding places a duty on the city to see that the appeal is docketed in a timely fashion. The time limitations for trial in district court should commence to run when there is, or should be, a complaint against the defendant pending in the district court. The judgment of the district court is affirmed. Fromme, J., not participating.	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The opinion of the court was delivered by HoetoN, C. J.: This is an original action of mandamus to compel the mayor and council of the city of Manhattan to issue to the Chicago, Kansas & Nebraska Railway Company $15,000 of bonds of that city. The action is submitted upon an agreed statement of facts, which shows that on the 17th day of June, 1887, a petition was presented to the mayor and council of the said city of Manhattan, signed by more than two-fifths of the resident tax-payers of said city, praying that an election be held to vqte upon the question of issuing the bonds; that the mayor and council acted upon the petition and ordered the election; that proclamation was made; that on the 5th day of July, 1887, the election was held ; that the returns of‘the votes cast at the election were canvassed, and by the canvass it was ascertained and declared that the proposition to vote the bonds had carried by a majority of twenty-two votes; that the election was held, and the bonds voted under and pursuant to chapter 67 of the Laws of 1886, commonly known as the terminal-facilities act; that all of the provisions and conditions of the act were duly complied with, and that afterward the plaintiff demanded of the defendants that they issue the bonds, which was refused. The assessed value of all taxable property within the city of Manhattan, as shown by the assessment books and records in the office of the county clerk of the county of Riley, for the year 1886, is the sum of $594,000; for the year 1887, the sum of $607,400; for the year 1888, the sum of $723,640. The defendants refused to issue the bonds upon the ground, first, that the House and Senate Journals of 1886 show affirmatively that no law was at that time passed entitled “An act to authorize cities of the first and second class to issue bonds,” etc., known as house bill No. 301; and, second, that if they issue the fifteen thousand dollars of bonds voted at the election, the bonded indebtedness of the city would then exceed ten per cent, of the value of the taxable property within the city, and that by virtue of § 5 of chapter 99 of the Laws of 1885, cities of the second class are prohibited from issuing bonds in excess of that amount. (Gen. Slat. 1889, ¶ 797.) The title of the act of 1886, in the enrolled bill on file in the office of the secretary of state, reads: “An act to authorize cities of the first and second class to issue bonds for the purpose of aiding railroad companies in securing and paying for lands and right-of-way, depot grounds, and terminal facilities.” The body of the act embraces cities of the second class as well as cities of tbe first class. Upon the authority of The State ex rel. v. Francis, 26 Kas. 724, it must be held that the title of the act of 1886 was properly agreed to, and that the act was properly passed and approved. In that case it was decided, among other things, that — “The enrolled statute on file in the office of the secretary of state is very strong presumptive evidence of the regularity of the passage of the statute, and of its validity; and it is conclusive evidence of such regularity and validity, unless the journals of the legislature clearly, conclusively and beyond all doubt, show that the act was not passed regularly or legally.” The serious question in this case is,-whether the limitation of the bonded indebtedness of a city of the second class to ten per cent, of the assessed value of its taxable property, as prescribed by §5, chapter 99, of the Laws of 1885, (Gen. Stat. of 1889, ¶797,) limits the amount of the aid that may be extended to a railroad company under chapter 67, Laws of 1886, (Gen. Stat. 1889, ¶ 1305.) In 1872, the legislature of the state passed an act to incorporate cities of the second class and to repeal former acts. Section 40 of that act reads: “At no time shall all the bonded indebtedness of any city of the second class exceed twenty per cent, of the assessed value of all the taxable property within said city, as shown by the assessment books of the year previous to the one on which the last issue of bonds was made.” In 1885, the legislature amended said §40 so as to read: “At no time shall the bonded indebtedness of any city of the second class exceed ten per cent, of the assessed value of all the taxable property within said city, as shown by the assessment books of the year previous to the one on which the last issue of bonds was made: Provided, Bonds issued for improvements for which a special tax is levied upon the property improved shall not be included in estimating said bonded indebtedness: And provided further, That nothing in this section shall be construed to prevent the issuing of bonds to refund existing bonded indebtedness.” The act of 1872 made no provision for cities of the second class to subscribe for stock to any railroad company, or to issue bonds for the purpose of aiding any railroad company. An examination of the various provisions of the act of 1872, and the amendments thereto, renders it doubtful whether that act was intended to apply to any bonds except those referred to or issued under that act. We need not decide this question at this time. Chapter 67, Laws of 1886, is the latest statute, and is complete in itself. It covers the entire subject-matter therein referred to. It contains a limitation upon the amount of bonds to be issued to any railroad company. This is as follows: “That no city of the first class shall extend aid under this act to any one railroad company to a greater amount than thirty thousand dollars, and no city of the second class shall extend aid under this act to any one railroad company to a greater amount than twenty thousand dollars: Provided, That aid shall not be extended to any railroad under this act which has received aid from the same city under any former act.” We think, therefore, that § 5 of chapter 99, Laws of 1885, does not control or limit the provisions of said chapter 67, Laws of 1886. (The State v. Studt, 31 Kas. 245; The State v. Comm’rs of Rush Co., 35 id. 150; Quincy v. Jackson, 113 U. S. 332; Commonwealth v. Comm’rs of Allegheny Co., 40 Pa. St. 348; Amey v. Allegheny City, 24 How. 364.) Upon a careful consideration of all the statutes referred to, we are of opinion that the reasons of the defendants for the refusal to issue the bonds voted are not sufficient in law. The peremptory writ of mandamus will be issued as prayed for. All the Justices concurring.	[ 116, 92, -76, 126, -118, 68, 30, -102, 99, -80, -89, 115, -119, 90, 21, 57, -99, 125, 81, 107, -12, -109, 71, -93, -109, -13, -13, -35, 49, 77, -26, 71, 76, 52, -118, -107, -58, -62, -57, 92, -114, -91, -117, -56, -37, 64, 52, 123, 51, -125, 17, -86, -5, 40, 16, -29, -24, 45, -39, 45, -47, -15, -71, -116, 119, 70, 1, 4, -112, -123, -64, 62, -112, 49, 21, -32, 115, -90, -122, -10, 77, -39, 104, 98, 38, -111, -107, -83, -14, -120, 29, -35, -121, -89, -109, 25, 43, 53, -106, -37, 69, 87, 39, 126, -18, -123, 28, 108, 15, -114, -90, -109, 11, 126, 20, 19, -53, 33, 16, 113, -52, -76, 94, 103, 58, -101, -113, -120 ]
Opinion by GREEN, C.: This case was appealed from a justice’s court to the district court of Harvey county, where it was tried by a jury and a verdict rendered for $33 for plaintiffs below. The only error relied upon, is the failure upon the part of the trial, court to send a bailiff for the counsel for defendant in the court below, when the jury returned into court with a verdict. It appears from the record that after the jury had been out for a few hours, the counsel who had charge of the case for the defendant below made an arrangement with the court whereby he was permitted to retire from the court-room and go to his law office, and that he was to be called by a bailiff when the jury had agreed upon a verdict. This, it is claimed, the court failed to do. When the jury did come into court with a verdict, the same was received, in the absence of the counsel, and the jury discharged, without giving the defendant any opportunity to poll the jury. Was this error? The record discloses the fact that the verdict was received by the court, read aloud in the presence of the jury by the clerk, and after such reading the court inquired if that was the verdict of each and all of the jurymen, to which the jury made no dissent; but the jurymen were not polled. Ordinarily it is the duty of counsel, in charge of a ease upon trial; to remain in the court-room until its final disposition. It was a matter of courtesy, upon the part of the trial judge, that permission was given to counsel to retire from the court-room; it was extended without the knowledge or consent of the other parties to the action. It could hardly be claimed that it was a part' of the judge’s duties to send for counsel, when his presence was necessary; it had doubtless escaped the judge’s mind, in the press of his official duties, that he was to dispatch a messenger to counsel upon the return of the jury with a verdict. It being a matter outside of the duties of a judge, and made solely for the convenience and accommodation of connsel, we do not think the plaintiff below should be obliged to try the case a third time for this omission, upon the part of the trial judge, to notify the counsel. There is no showing made that the defendant below was in anywise wronged, or that any different result would have been reached. It is possible that the jury could have been polled, if counsel had returned to the court-room in a reasonable time. He simply retired upon the promise of the judge to send word to him. This he omitted to do, and it being a favor extended to counsel alone, we think the case should not be reversed for this oversight of the judge, and the judgment should be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ -16, -12, -52, -51, 10, 96, 34, -40, 80, -93, 99, 83, -23, -37, 80, 107, 48, 47, 85, 107, -46, -74, 23, 97, -86, -45, 80, -60, -80, 111, -10, -3, 76, 48, -62, -43, 6, 72, -57, 86, -126, -123, -71, 101, -39, 34, 48, 48, 22, 15, 113, 94, -29, 104, 57, 67, 76, 60, -37, 63, 80, -79, -116, 15, 111, 5, -79, 39, -104, -121, -40, 46, -128, 61, 8, -8, 114, -106, 3, 84, 47, -85, 9, 102, 96, 33, 13, 107, -72, -119, 39, -66, 29, -25, -112, 57, 107, 9, -74, -99, 127, 20, 39, -4, 100, 21, 29, 102, 11, -50, -106, -77, -49, 5, -114, -117, -29, -125, 20, 97, -116, -22, 92, 70, 115, -37, -50, -124 ]
Opinion by SimpsoN, C.: January 30, 1888, John Lark, the defendant in error, plaintiff below, commenced this action before A-Wellington, a justice of the peace of Saline county, under chapter 105, art. 10, §90, Compiled Laws of 1885, to enforce an alleged lien on the hogs of Barnett, the plaintiff in error, in the sum of $40, claimed as damage to growing crops. On the return-day of the summons, on motion of Barnett, the justice ordered that Lark give security for costs. The case was then continued to February 14, at which time Lark deposited $5, a non-negotiable promissory note for $13, and also gave a bond in the sum of $15. The justice ap proved the bond, retained the $5, but rejected the note, and the case was again continued to February 28, at which time, on application of Barnett, the justice ordered that Lark give additional security, which he neglected and refused to do, claiming that by reason of his poverty he was unable to do so, and in lieu thereof filed his poverty affidavit, under §581 of the code. The justice also rejected this, and Lark failing to comply with the order, the case was dismissed at his costs, and the justice thereupon rendered judgment against Lark in the sum of $56.05, to which ruling and judgment Lark excepted. A bill of exceptions was made, sealed and signed, and the case taken to the district court on the petition in error. At the March term, 1888, the district court reversed the judgment of the justice, and rendered judgment against Barnett, the plaintiff in error, for all the costs that had accrued in both courts, amounting to $69.15, and ordered that the case be retained in the district court for trial. A motion for a new trial was made and overruled by the court, to which the plaintiff in error duly excepted. Lid the justice err in dismissing the action, upon Lark’s failure to comply with the order requiring him to give additional security for costs? is the question propounded by counsel for plaintiff in error. We think he did, for the reason that § 581 of the code applies to actions before a justice of the peace. That section provides in substance, that in cases where the plaintiff has a just cause of action against the defendant, and by reason of his poverty is unable to give security for costs, an affidavit that such is .the fact dispenses with the usual bond for costs. In this case such an affidavit was filed, and there was no showing made against the truth of the affidavit. Section 186 of the justices’act makes no provision for a person to commence an action before a justice of the peace, when by reason of his poverty he cannot give security for costs or make a deposit of money to secure payment of the same, but § 185 of the same act provides that the provisions of the code of civil procedure which are in their nature applicable to the proceedings before justices, and in respect to which no special provision is made by statute, shall govern proceedings in justices’ court. Section 185 of the justices’ act has been construed in the following cases: Alvey v. Wilson, 9 Kas. 401; Points v. Jacobia, 12 id. 54; Stevens v. Able, 15 id. 584; Clark v. Wiss, 34 id. 553; Israel v. Nichols, 37 id. 68. From an examination of these cases it will appear that this court has universally held that any provision of the code in its nature applicable to proceedings before justices of the peace, and in respect to which no special provision is made by statute, must govern in actions pending before justices of the peace; the object of this provision, and the controlling idea in its construction, being to assimilate the mode of procedure before justices to that of the district court. We recommend that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	[ -80, 108, -104, 63, -118, 96, 8, -102, 83, -119, -13, 83, -23, -42, 4, 113, -15, 49, 117, 123, 118, -74, 7, 97, -14, -13, -109, 85, -79, 111, -28, -35, 12, 48, -62, 85, -57, 64, -59, -36, -50, -122, 43, 105, -15, 64, 48, 123, 20, 11, 97, -82, -93, 47, 52, 67, 105, 44, -53, 61, -56, -16, -66, 79, 79, 4, -111, -57, -100, 6, -38, 62, -104, 53, 1, -8, 123, -74, -126, 84, 79, -101, -115, 102, 102, 33, -51, -17, 56, -120, 63, 23, -115, -89, -44, 88, 43, 15, -74, -99, 117, 86, -121, 124, -20, -123, 25, 124, 3, -50, -112, -95, -115, 52, -100, -121, -25, -94, 53, 112, -49, -32, 92, 102, 49, -101, -49, -3 ]
The opinion of the court was delivered by "VALENTINE, J.: The controversy in this case is, whether or not a certain road in Wabaunsee county is a legal highway or not. It appears that on or about October 2, 1874, a petition for the appointment of viewers to view, lay out and locate a certain public road was presented to the board of county commissioners of Wabaunsee county, and on November 7, 1874, the petition was “taken up and granted,” and three viewers were appointed for the above purpose. It appears that these viewers met at the proper time and place, viewed and located the road, and made a report of their proceedings to the county board. On January 4, 1875, the report was “taken up, report approved and roads ordered opened” by the county board. The principal objection to the legality of the road as a public highway is, that it does not appear from the records of the county board that the petition for the appointment of the viewers and location of the road was signed by twelve householders, as required by law. (Gen. Stat. of 1889, ¶ 5474.) Now, as the petition itself shows that more than twelve persons signed the same, and states that they were “residents and householders” of Wabaunsee county, and as the county board granted the petition, appointed the viewers, and afterward approved the report of the viewers and ordered the road to be opened, we think it may be fairly said that the records of the county board show that the petition was signed by the requisite number of householders as required by law, and that the petition itself was a legal and valid petition. (Howell v. Redlon, 44 Kas. 558; same case, 24 Pac. Rep. 1109.) Another objection is made to the legality of the aforesaid road, upon the ground that the petition asked for two separate and distinct roads. Such is not shown to be the fact, however. From the petition and the entire proceedings we would think that the supposed two roads were in fact only one road. Besides, there being no substantial irregularities in the establishment of the aforesaid road, but only slight irregularities, if irregularities at all, it must be considered that the act of the legislature approved March 7,1885, (Laws of 1885, ch. 16, p. 13,) legalizing certain roads and highways of Wabaunsee county, cures all defects and renders the aforesaid road and the record thereof legal and valid in every respect. The judgment of the court below will be affirmed. All the Justices concurring.	[ -11, -24, -1, -66, 106, 64, 16, -103, 72, -91, -76, 115, -81, 82, 5, 113, -70, -67, 84, 75, -57, -78, 83, -125, -109, -13, -13, -42, -79, -40, -10, 83, 76, 33, -102, -99, -26, 72, -51, 82, -52, 14, -71, -33, -48, -64, 52, 63, 18, 75, 113, -114, -29, 46, 24, -61, 43, 40, 91, 41, 24, -72, -100, -105, 75, 6, -77, 34, -104, 1, -54, 14, -104, 49, -52, -8, 87, -90, -106, -9, 73, -71, 12, -78, 103, 1, 53, -17, -8, -36, 12, 122, -115, -121, -72, 25, -120, -128, -98, -67, 116, 82, 67, 126, -81, 71, 89, 108, 12, -117, -78, -79, -49, -68, -102, 80, -61, 13, 48, 113, -57, -38, 95, 101, 17, 89, -105, -78 ]
The opinion of the court was delivered by NalentINE, J.: This was a criminal prosecution, in the district court of Butler county, under § 15, chapter 80, of the Laws of 1879 (Gen. Stat. of 1889, ¶711); in which prosecution the defendant, W. O. Bush, who was the city clerk of the city of El Dorado, a city of the second class, was charged upon information in two counts with registering J. N. Hanna as a voter — Hanna not being present, nor appearing in person, nor giving his name, age, occupation, or place of residence. The title to the act in which the aforesaid § 15 is found, and §§ 8 and 15 of such act, read as follows: “An Act to provide for and to regulate the registration of voters in cities of the first and second class, and to repeal all prior acts in relation thereto.” “Sec. 8. No person shall be registered unless he appear in person before the city clerk, at the city clerk’s office, during usual office hours, and apply to be registered, and give his name, age, occupation, and particular place of residence, as required to make the proper entries in the poll-books.” “Sec. 15. If any officer shall neglect or refuse to perform any duty required by this act, or in the manner required by this act, or shall neglect or refuse to enter upon the performance of any such duty, or shall enter, or cause or permit to be entered on the registry books, the name of any person in any other manner or at any other time than as prescribed by this act, or shall enter, or caüse or permit to be entered on such list, the name of any person not entitled to be registered thereon according to the provisions of this act, or shall destroy, secrete, mutilate, alter, or change any such registry books, he shall, upon conviction, be punished by confinement and hard labor in the penitentiary not exceeding one year, and shall forfeit any office he may then hold.” The portions of the foregoing sections particularly applicable to this case are those which read as follows: “No person shall be registered unless he appear in person before the city clerk, at the city clerk’s office, during usual office hours, and apply to be registered, and give his name, age, occupation, and particular place of residence. . If any officer [a city clerk] . . . shall enter, or cause or permit to be entered' on the registry books, the name of any person in any other manner or at any other time than as prescribed by this act, ... he shall, upon conviction, be punished,” etc. The defendant moved the court to quash the information upon the following grounds, to wit: “ First, that the act of the legislature of the state of Kansas, under which said information is pretended to be drawn, to wit, chapter 80 of the Laws of 1879, is unconstitutional, being in contravention of § 16 of article 2 of the constitution of the state of Kansas; second, that no offense is charged against the defendant in said information; and third, that neither of the counts of said information states and charges an offense against the laws of the state of Kansas.” The court sustained the motion and discharged the defendant, and the state of Kansas appeals to this court. No brief for the defendant hás been filed in this court, but from the plaintiff’s brief and the defendant’s motion to quash, we can probably obtain a correct understanding as to what were the grounds upon which the court below quashed the information. It is claimed, as we understand, that the title to the act is not broad enough to authorize a provision in the body of the act creating a criminal offense or prescribing a punishment therefor. We think it is. (The State v. Barrett, 27 Kas. 213, and cases there cited; Durein v. Pontious, 34 id. 353.) The offense in the present case and the punishment therefor have relation to the general subject contained in the title to the act, which is the registration of voters in certain cities, and such offense and punishment are included within such subject within the meaning of the constitution. They clearly relate to the registration of voters. It is further claimed, as we understand, that the information is defective for the reason that it does not allege any criminal intent on the part of the defendant. Of course a crime cannot be committed unless the person committing the acts supposed to constitute the crime entertains a criminal intent; and that criminal intent must in some manner be averred in the information or indictment either expressly or impliedly. But when the commission of an act is made a crime by statute, without any express reference to any intent, then the only criminal intent necessarily involved in the commission of the offense is the intent to commit the interdicted act; and in such a case it is not necessary to formally or expressly allege such intent, or any intent, but simply to allege the commission of the act, and the intent will be presumed. In the present case the wrong committed was the registration of the name of J. N. Hanna as a voter without his appearing in person or being present, and without his giving his name, age, occupation, or place of residence. In such a case all that is necessary is simply to allege the fact that the defendant so registered the name of Hanna, without also stating that he so registered such name with the intent to so register the same. It is alleged in the information that the defendant “unlawfully and feloniously” so registered the same. Mr. Bishop, in his work on Criminal Procedure, (volume I,' § 521,) uses the following language: “Starkie says: ‘To render a party criminally responsible, a vicious will must concur with the wrongful act. But though it be universally true that a man cannot become a criminal unless his mind be in fault, it is not so general a rule that the guilty intention must be averred upon the face of the indictment.’ For in a large part of the crimes the vicious will appears prima faeie in the act itself; hence to allege simply the act makes the required prima fade case, and any non-concurrence of the will therein is matter of defense.” And in note 2 to the same section, he uses the following language: “ Where the act is in itself unlawful, an evil intent will be presumed, and need not be averred; and, if averred, is a mere formal allegation which need not be proved by extrinsic evidence.” In the American and English Encyclopaedia of Law, (vol. 4, p. 681,) the following language is used: “ Where the statute contains nothing requiring acts to be done knowingly, and the acts done are not malum in se, nor infamous, but are merely prohibited, the offender is bound to know the law, and a criminal intent *need not be proved. . . . The intent is immaterial where the statute declares it a misdemeanor to obstruct a public road. When the statute does not make intent an element of the crime, intent need not be alleged, although, under general principles, it must be proved. And it is held that one who does that which the law forbids, is presumed to have had the criminal intent.” In the present case we think the criminal intent was impliedly and sufficiently alleged by the allegations setting forth and averring the commission of the prohibited acts. The judgment of the court below will be reversed, and the cause remanded for further proceedings. All the Justices concurring.	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Per Curiam: Upon the application of the plaintiff to have the judgment rendered in this court corrected (ante, p.681), we find, upon an examination of the record, that the facts of the case were found by the court below. Upon those facts the judgment of that court, as to the assessments for the improvement of Third, Fifth, and Tenth streets, was reversed. Under §559 of the code, the motion to correct the judgment of this court will be allowed, and the court below will be directed to render judgment upon the facts found by it in favor of the plaintiff and against the defendants for an injunction against the collection of the assessments on the streets above named.	[ -16, 124, -43, -18, 74, -96, 56, -104, 73, -79, -73, 51, -83, -53, 28, 37, -61, 105, -47, 115, -44, -77, 3, 67, -14, -45, -13, 85, 50, -3, 103, -44, 76, 48, -62, -99, 66, -128, -59, 20, -122, 31, 120, -55, -55, 96, 52, 123, 18, 15, 49, 79, -89, 44, -103, -61, -24, 40, -23, -87, 65, -8, -124, 13, 105, 7, -95, 116, 28, 3, -34, 12, -108, 117, 1, -8, 51, -74, -58, 116, 5, -69, 0, 96, 102, 16, 65, 111, -72, -100, 7, -4, -113, -89, -101, 24, 73, 38, -74, -67, 116, 2, 39, 110, -26, -99, 31, 44, 1, -114, -92, -79, -33, -16, -118, 67, -17, 19, 16, 80, -51, 56, 95, -18, 23, -45, -98, -107 ]
Opinion by StraNG, C.: Action for replevin for a horse, tried in the district court of Republic county, October 12, 1888, by the court without a jury. The court made special findings of fact, and of law, and entered judgment thereon in favor of the defendants in error. Among other findings of fact, the court found that the action was begun by the plaintiffs below after the defendants below had sold and finally parted with the horse. Plaintiffs in error asked for judgment on the findings, which was refused. They then filed a motion for a new trial, which was overruled. The action was tried all the way through as an action of replevin, with an affidavit and bond and order of delivery. The answer was a general denial. The judgment was for the return of the property and damages, both on account of depreciation in value while in the possession of the defendants below and for its detention; or if delivery of the property could not be had, for its value, and damages for its detention. With a finding that the action was commenced after the property was sold and finally parted with by the defendants below, the judgment should have been for the defendants. (Ladd v. Brewer, 17 Kas. 204; Moses v. Morris, 20 id. 213; Brown v. Holmes, 13 id. 482.) It is therefore recommended that the judgment of the district court be reversed, with instructions to render judgment for the plaintiffs in error for costs. By the Court: It is so ordered. All the Justices concurring.	[ -14, -26, -47, 44, 74, -32, 34, -102, 67, -117, 55, 87, -87, -62, 16, 61, 106, 109, 117, 111, 78, -77, 87, -12, -45, -45, 3, -59, -73, 111, 100, 87, 76, 48, -54, 85, -60, -62, -127, 86, -114, -115, 27, 108, -39, 72, 56, 43, 22, 11, 97, -82, -45, 38, 29, -61, 105, 45, 107, 59, -63, -7, -14, 69, 45, 6, -128, 38, -100, 67, -40, -18, -100, 49, 0, -8, 115, -12, -126, 84, 9, -103, 12, 102, 103, 33, 53, -49, 48, -120, 47, 92, -113, -121, -118, 88, 59, 103, -106, -99, 81, 66, 71, 124, -17, -123, 29, 124, 7, -50, -106, -77, -81, 54, -126, 3, -37, 21, 22, 117, -51, -16, 88, 70, 16, -101, -113, -2 ]
The opinion of the court was delivered by VALENTINE, J.: In this action we think the defendant had the right to prove a parol warranty of the sufficiency of the implement purchased for the purpose for which it was purchased, notwithstanding the words contained in the instrument sued on, to wit: “No promise or contract outside of this note will be recognized. Isaac Stark.” Upon the face of the note it would seem that Stark, the promisor, the one who signed the note, would be the person who would not recognize any other promise or contract outside of the note. (See also, Thompson v. Manufacturing Co., 29 Kas. 476.) Wethinkthere was also sufficient evidence from which the jury might find a warranty. The implement was sold, however, by an agent of the plaintiff, but as such agent had the entire control of the property, and assumed to have the right to make the warranty, and as the defendant had no notice to the contrary, and as a warranty at least to the extent of the price of the property would seem to be within the scope of the agent’s authority, and as the company afterward accepted the fruits of the agent’s sale, we would think that the facts would authorize a holding that the agent did have sufficient authority to make the warranty. We also think that the defendant had a right to prove a rescission of the contract of purchase and sale, and his offer to return the property to the plaintiff. Upon this question there is a conflict of authority. Some courts hold that where the title to the property has passed to the vendee, and no fraud can be shown on the part of the vendor, but only a breach of the warranty, the vendee cannot rescind the contract; but other courts hold otherwise, and this court seemingly holds otherwise. (Weybrich v. Harris, 31 Kas. 92.) In the case just cited it is held that the vendee has one of two remedies: First, he may return the property and rescind the contract; or, second, he may affirm the contract and sue for damages for the breach of the warranty. In 3 Am. & Eng. Encyc. of Law, 929 to 931, the following language is used: “A contract may be rescinded when the entering into the same has been induced by a false representation, fraudulent or otherwise, made by a party thereto, provided such representation be one of fact (this rule does not apply to cases of actual fraud), as distinguished from either matter of law or mere opinion or intention, — that it be such as to induce the contract, and that it* be made as part of the same transaction. Such a contract, however, is voidable and not void, and cannot be rescinded if the parties cannot be put in statu quo, nor after third persons have for value acquired rights thereunder, and the rescission must take place within a reasonable time, notice of the election to rescind having been communicated to the other party, though this may be done by bringing suit to have the contract set aside. Otherwise the right of rescission will be considered waived by acquiescence.” We think this is a correct statement of the law, although there are some authorities to the contrary. (See 1 Benj. Sales, [4 Corbin’s Am. Ed.] §§ 623 to 635, and especially §§ 628 to 634.) It is not necessary in this case that we should hold that in all cases of a breach of warranty in the sale of personal property the vendee may return or offer to return the property and rescind the contract, but we think that such is the rule for cases like the present, where the property purchased and received is substantially different from what it was warranted to be and will not answer the purpose for which it was warranted. It must also be remembered that in the present case nothing had been paid for the property when the contract was rescinded, but only a promissory' note had been given for the purchase-price thereof. Of course an offer to return the property where the offer is refused answers the same purpose as an actual return, provided that the property is retained for the benefit of the vendor whenever the vendor may choose to receive it. In this case the vendee offered to return the property and then kept it for the plaintiff, and at all times he kept it just as safely and as well as he kept his own property. The offer to return the property was on two different occasions and to two different agents of the plaintiff. On the first occasion the agent had the note sued on in his possession and was attempting to collect the same. On the other occasion the agent was at the defendant’s house attempting to collect the note, and while- the implement was present and in sight of both the agent and the defendant, the defendant offered to return the same. The plaintiff itself was a non-resident of the state of Kansas, and a resident of Detroit, Michigan, and it does not appear that the plaintiff had any resident agent in Kansas to whom the property could be returned, until about the time when the defendant offered to return the same, and the defendant offered to return the same just as soon as he could find any agent of the plaintiff to whom he could make the offer. Many objections are made by the plaintiff to the instructions given by the court to the jury, and to its refusal to give other instructions asked for by the plaintiff; but still we think the case was fairly submitted to the jury upon proper and sufficient instructions. The principal questions involved in this case as it was tried in the court below were, whether the implement sold by the plaintiff's agent to the defendant was warranted to be sufficient for a particular purpose, or not, and whether it was in fact sufficient for such purpose, or was essentially insufficient. These questions were questions of fact, and we think they were fairly and properly submitted to the jury; and the-jury found against the plaintiff and in favor of the defendant, and the court below approved the verdict, and we do not now think that we can disturb such verdict. The agent who sold the property to the defendant seems to have been an itinerant salesman, who could not afterward be found by the defendant; nor could any agent of the plaintiff be found by the defendant until the note sued on was presented to him for collection; and the defendant did not even know where the place of business of the plaintiff was. We cannot say that any material error was committed by the trial court, and therefore its judgment will be affirmed. All the Justices concurring.	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Opinion by G-jreeN, C.: The facts material to this case are substantially as follows: On the 6th day of May, 1890, the appellant was tried before a justice of the peace and a jury, in Junction City, Geary county, and convicted of violating the prohibitory law. Judgment was rendered against her on the same day, by the justice of the peace, at 2:50 p. M. Upon the following day, the attorney for the defendant went to the office of the justice of the peace with a recognizance, a few minutes before one o’clock in the afternoon, but found the door locked. The attorney, being engaged in the trial of another case before another justice of the peace in the same city, did not return to the justice’s office before whom the defendant was tried until a quarter to five o’clock on the same afternoon, when the bond was declined, for the reason that the twenty-four hours had expired in which a recognizance could be accepted. Subsequently the bond was presented to the justice, who made the following indorsement thereon: “This bond presented for filing and approved on May 7, 1890, at 4:45 p. M. of that day, and by me accepted and approved as of that date and hour.” The papers were transmitted to the district court, and a motion was made and sustained to dismiss the appeal, for the reason that the same had not been taken in time. The appellant brings the case here and insists that the appeal was taken within the twenty-four hours after the rendition of the judgment; that the recognizance was at the office of the justice of the peace within the statutory time. The language of the statute is: “No appeal shall be granted or proceedings stayed, unless the appellant shall within twenty-four hours after the rendition of such judgment, enter into a recognizance to the state of Kansas, in a sum and with sureties to be fixed and approved by the justice before whom said proceedings were had, conditioned for his appearance at the district or criminal court of the county, at the next term thereof, to answer the complaint against him.” (Gen. Stat. of 1889, ¶ 5454.) There is nothing in the record, to show that this recognizance was filed in time. The defendant had the right of appeal, and to complete that right certain conditions were imposed upon her, viz., the giving of a bond, to be approved by the’ justice before whom she had been convicted, within twenty-four hours after judgment. This she did not do. It is clearly the duty of .the party wishing to effect an appeal in a criminal case to see to it that the recognizance is furnished and delivered to the justice of the peace within the statutory time, and if not delivered in accordance with the requirements of the statute, no valid appeal is effected. While appeals are favored, and substance rather than form should control, the appellant failed to place herself within the provisions of the law granting the right of appeal. If she had presented her recognizance, with sufficient sureties, at the office of the justice of the peace, within the. time allowed by law, during business hours, or if the justice had indicated his approval within the twenty-four hours, it would have been good; but this was not done. The attorney for the defendant went to the justice’s office at the dinner hour, with the bond, and, not finding the officer, carried it away with him, and made no further effort to furnish a bond until the time had expired. While an appeal cannot be defeated through any omission of the justice of the peace to make the necessary and proper entries upon his docket, yet the statute must be substantially complied with by the appellant to make an appeal effectual. (Bubb v. Cain, 37 Kas. 692; Struber v. Rohlfs, 36 id. 202.) We recommend an affirmance of the judgment of the district court, in dismissing the appeal. By the Court: It is so ordered. All the Justices concurring.	[ -48, -22, -3, 79, 10, -64, 38, -104, 98, -125, 36, 83, -91, -58, 84, 121, 27, 109, 117, 105, -52, -74, 23, 1, -14, -13, -63, -35, -69, 79, -12, -1, 76, 48, 10, -43, 70, 72, -63, -36, -50, -121, -120, -32, -55, 74, 48, 59, 18, 11, -15, 46, -77, 42, 80, 71, -24, 45, -53, -81, -16, -15, -78, 13, 127, 20, -109, 68, -100, -123, 88, 46, -100, 61, 1, 104, 115, -90, -122, -12, 108, -85, 44, 98, 98, 33, 53, -21, -88, -88, 38, 114, -115, -89, -111, 8, 75, 45, -74, -103, 117, 20, 39, -8, -10, 5, 93, 124, 12, -33, -74, -107, 15, 60, -96, -59, -29, 32, 48, 113, -59, -26, 94, 66, 51, -37, -114, -108 ]
Opinion by Strahg, C.: Action on account, begun before a justice of the peace of Atchison county, where the plaintiff obtained a judgment for $50. Defendant appealed to the dis- tricfc court, where the case came on for trial November 12, 1888, before the court aud jury. After the plaintiff' had introduced his evidence and rested, the defendant demurred thereto, and the court sustained the demurrer. A motion for a new trial was filed and overruled, and the plaintiff asks this court to reverse the action of the district court on said demurrer, and send the case back to be tried by a jury. We think the court below should have submitted the case of the plaintiff' to the jury. There certainly was some evidence to support his contention. The evidence, as it now stands, makes a prima facie case against the defendant. It shows that one J. F. Mounts desired to purchase of the plaintiff, a merchant in the city of Atchison, some groceries, on credit; that the plaintiff, by his chief clerk, refused to sell Mounts any more goods on credit, he already being indebted to the plaintiff for goods before purchased of him. Mounts then called the defendant, for whom he, Mounts, was at the time working, to the rear of the store room, and asked him if he would become responsible for some groceries for him. Defendant said he would. Mr. Toohy, plaintiff’s clerk, asked Mr. Ward, the defendant, how much in groceries he should let Mounts have, and Ward said, “ What he wants.” Toohy then asked Ward “if he should let Mounts have $100 worth,” and Ward replied that “he did not think Mounts would need so much.” Mounts also said “he did not think he would want $100 worth.” Toohy then asked Ward “if he should let Mounts have $50 worth,” and Ward said, “Yes, but he wanted some time on it, until the money would be coming to Mounts from him.” Toohy asked him “how long a time he wanted,” and he said, “ Ninety days.” This evidence was corroborated and supplemented by other witnesses. The account for the goods sold pursuant to the arrangement made, as above described, was kept with Mounts; that is, the goods sold him were charged to him, instead of being charged to Ward, and the defendant claims that he is thus let out. The plaintiff offered evidence to explain why the goods were charged to Mounts instead of to Ward. We think the whole matter should have been submitted to the jury, for them to say whether the goods were sold to Mounts on his own credit, or on the credit of Ward. If the goods were sold to Mounts on the credit of Ward, then the undertaking of Ward was an original one, and he would be liable under the circumstances set forth in the evidence of plaintiff. (Burkhalter v. Farmer, 5 Kas. 477.) The evidence shows that the plaintiff had before sold some goods to Mounts, for which he had taken Mounts’s note for $23.13. After the arrangement was make with Mounts and Ward to sell Mounts goods on Ward’s credit, plaintiff surrendered to Mounts his note and charged the amount thereof up to the new account, so as to secure the payment of said sum through Ward. This plaintiff could not do. Ward in no way became liable for goods sold by the plaintiff to Mounts before the arrangement of February 27,1888, was made with Ward. This item should be dropped from plaintiff’s claim on a new trial. It is recommended that the judgment of the district court be reversed, and the cause remanded for a new trial. . By the Court: It is so ordered. All the Justices concurring.	[ -80, -20, -71, 13, 26, 96, 32, -102, 65, -94, 53, 119, -23, -63, 16, 41, -6, 109, 68, 107, -58, -105, 39, -120, -46, -13, -55, -59, -79, 109, -90, -43, 77, 48, 10, 21, -26, 64, 33, 28, -114, -120, -87, -60, -15, -120, 48, -71, 4, 10, 49, 6, -5, 42, 28, 67, 73, 44, 75, 61, -15, -15, -30, 13, 127, 23, 19, 54, -100, 71, -40, 46, -112, 49, 1, -24, 122, -74, -122, 84, 105, -103, 12, 102, 98, 33, 53, -21, 24, -119, 47, -1, -113, -121, -128, 88, 3, 45, -66, -99, 117, 20, -122, -4, -8, 21, 28, -20, 7, -50, -106, -109, -113, 118, -98, 31, -13, -105, 17, 97, -49, -94, 92, 70, 60, -101, -113, -72 ]
The opinion of the court was delivered by JOHNSTON, J.: George Storch brought this action against A. B. Harvey & Co. to recover $493.95, alleged to be due as rent for a store building in Muscotah. A written lease was executed on February 6, 1884, “for the term of one year, with the option of the second party to keep said premises three years, if so desired, at the same rate of rent as the first year.” The rent agreed to be paid was $282 a year, in monthly installments of $23.50. The defendants went into possession of the premises, and continued to use the same until July 1, 1885, paying rent up to that time. The possession of the premises was then surrendered, and the property was leased to others, and the rent was paid to and received by plaintiff. The plaintiff claims that the defendants, by occupying the building beyond the year stipulated in the lease, exercised their option to hold it for three years, and were liable for the rent under the terms of the lease for the full time. On the other hand, the defendants claim that they only held the property under the lease for the year specified, when they elected not to exercise the option to hold longer under the lease; that they desired the use of the building for a short time after the expiration of the year, and until they could complete a building which they were about to erect for their own use, and that, prior to the expiration of the year, they entered into another contract with plaintiff to lease the building temporarily at a rental of $23.50 per month for such time as they desired to use it. The case was tried with a jury, which adopted the theory of the defendants and gave a verdict in their favor. The plaintiff complains of the result, and assigns numerous grounds of error; but the real question involved, and which was submitted to the jury, was whether a second contract was made, as the defendants claim. It is conceded that the defendants surrendered the possession of the property on July 1, 1885, and that they paid the rent for the term of one year, and also at the rate of $23.50 per month for the time which they held it beyond the year. The rent for the fractional month from June 6, 1885, to July 1, 1885, was $19.50, which was paid by defendants and accepted, and no further demand for rent was made until December 6, 1887, which was ten months after the expiration of three years. The testimony of Harvey was to the effect that he went to Stoich about a month previous to the .expiration of the term, and notified him that they would not hold the premises under the lease beyond the term, and at the same time entered into another contract with him, by which they were to hold the premises at a rental of $23.50 per month until their own building was completed. They proceeded with the erection of their own building, a fact well known to plaintiff's agent, and finished it on July 1, 1885, when they moved their goods over from the plaintiff’s building, and rent was then accepted by the plaintiff for the actual time which defendants occupied the premises. There is also testimony tending to show that plaintiff accepted the possession of the premises and let the same to others, taking compensation therefor. If the defendants had held over the term without declaring their purpose, it might be taken as evidence that-they had elected to exercise their privilege and hold the lease for the additional period of two years, under the terms of the lease, but the jury have found, upon sufficient testimony, that defendants were occupying the premises, after .February 6, 1885, under a new and independent contract. It was the duty of the lessees, if they desired to continue under the lease, to give prompt notice of their purpose; but as they did not desire to continue the lease, no election was required. However, if a notice had been necessary, it was given in good time; and accepting defendants’ testimony, as we must, the exercise of the option was not a mere mental operation of the defendants, unknown except to themselves, but they made a new contract, which leaves no room for contending that the further occupation of the premises indicated an intention of the defendants to hold under the original lease. Plaintiff seems to contend that a writing was necessary between the parties in order to change the terms of the lease, or the conditions under which they continued in possession of the premises. There is no change of the original lease; it terminated at the end of the year, unless the defendants desired to and did elect to extend it. They did not desire to exercise this privilege, and so notified the plaintiff; and the new lease was for so brief a period that-it was unnecessary to commit it to writing. Considerable complaint is made of the rulings of the court in the admission of testimony; but we find no such errors as would justify the overturning of the verdict. The agency of . McLain is sufficiently shown to warrant the introduction of testimony of what was said and done by him in connection with the leasing of the premises. He resided in Muscotah, where the property was situated, and was invested with authority to care for the property and to collect the rents therefor. The second contract leasing the premises, however, was made directly with the plaintiff himself. The deposition of one of the defendants had been taken in advance of the trial, and after this party had testified at the trial, the plaintiff read a portion of the deposition which he had given, with a view of contradicting him, and inquired of him if he had so testified. The defendants then, over the objections of the plaintiff, read additional portions of the deposition which related to the same subject; and of this he now complains. It would be manifest injustice to introduce a portion of the testimony of a witness on any subject, without allowing the introduction of all that was said by the witness on that subject. The court committed no error in admitting the other answers or statements of the witness concerning the same transaction. The ruling of the court on the giving and refusal of instructions is a subject of complaint; but we find no prejudicial error, and think that the charge given fairly presented the case to the jury. The findings of the jury appear to be sufficiently definite, and these answer some of the numerous objections urged against the rulings on the testimony. The real, and in fact about the only, question in the case is one of fact, as to whether a second contract was made, and upon this there is a sharp conflict in the testimony; but the verdict of the jury settles that conflict in favor of the defendants, and we find no sufficient ground for disturbing the verdict. The judgment will be affirmed. All the Justices concurring.	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Opinion by GreeN, C.: This action was commenced by C. J. Smith in the district court of Reno county, to recover damages for the alleged illegal, unlawful and wrongful destruction of his right of ingréss to and egress from his premises, upon a legally laid out street in the city of Hutchinson. The plaintiff' below alleged that he was the owner of lots 55 and 57,'avenue “6” east, in Handy’s addition to said city; that prior to the 16th day of September, 1886, he had erected a house upon said lots and was at said date using, and had since used the same as a residence; that the only outlet and inlet he had to said property was from said avenue; that the railway company, on or about the 16th day of September, 1886, illegally, wrongfully and improperly obstructed said avenue, by erecting its track and switches much higher than the grade, and had kept its track and switches in such a condition as to obstruct the avenue and deprive the plaintiff of the use and benefit of the same as a means of ingress to and egress from his dwelling, and had further obstructed the avenue by improperly leaving large piles of ties and other building material in front of plaintiff’s residence, and permitting large numbers of cars to stand upon the said track on said avenue. The railroad company answered that it was authorized to build its railroad along said avenue by an ordinance of the city of Hutchinson, and that its line of road was constructed in conformity with the terms and conditions of such authority; that the track of the railroad company was located fifty feet from the residence of the plaintiff. The jury returned a verdict for the plaintiff, for $225. With the verdict, the jury returned the following interrogatories and answers: “2. When the defendant located its road and built its track on avenue ‘G,’ was the grade of said avenue established adjacent to and abutting upon the plaintiff’s property in question ? A. No.” “4. State what is the approximate height of the embankment in said avenue ‘G,’ in front of plaintiff’s property. A. A cut of fifteen inches! “5. Did the defendant make any ditches in said avenue ‘G,’ in front of plaintiff’s property, or any part thereof? A. No.” “ 7. What is the width of avenue ‘ G,’ in front of plaintiff’s property, or any part thereof? A. 120 feet. “8. Where on avenue ‘G,’ abutting in front of plaintiff’s property, is the main line of the defendant’s road located ? A. Thirty feet to center of track. “9. Where on avenue ‘G,’ abutting upon plaintiff’s property, is any side-track or switch located, and how many sidetracks and switches, if any, are located at that point ? A. One switch, north of main line. “ 10. What is the distance at the nearest point between plaintiff’s property and any switch or side-track of defendant ? A. Forty-four feet to center of said track. “11. What is the nearest distance between plaintiff’s property on said avenue ‘G,’ and the defendant’s main line? A. About twenty-seven feet. “ 12. Is there room for an ordinary vehicle and team to be driven on avenue ‘G,’ between the nearest track and plaintiff’s property ? A. Yes.” \| j\“ 14. Is there room for ordinary vehicles to turn around in said space? A. No. “15. What is the average distance between the north line of plaintiff’s property and the nearest track of the defendant? A. About twenty-seven feet.” “17. If, in estimating damages, you take into consideration the standing of cars or of coaches on avenue ‘G/ state whether the said standing of cars or coaches was in the said avenue ‘G,’ adjacent to or abutting upon the property of the plaintiff in question. A. We do not. “18. Does the testimony introduced show that defendant’s cars were permitted to stand upon said avenue ‘G,’ adjacent to plaintiff’s property, if at all, only for temporary time and temporary purposes? A. Yes. “ 19. If you answer the last question in the negative, state whether the cars were permitted to stand at such place more than is usual, customary or incidental to the necessities of railroad business. A. They were not. “20. Were the cars and coaches complained of at all times the same cars and coaches, or did they consist of different cars and coaches, which came and went in the regular course of traffic business? A. Different cars. “21. What was the market value of plaintiff’s property immediately before defendant’s road was located and its tracks constructed in said avenue ‘G,’ immediately abutting thereon? A. $1,000. ■ “22. What was a fair market value.of plaintiff’s property immediately after defendant’s road was located and .its tracks constructed.in said avenue ?G’ abutting thereon? A.' $775.” “24. In estimating damage done to plaintiff’s property, wbat do you take into consideration ? A. By taking market value immediately before and after constructing said road.” “ 27. If the plaintiff has sustained damage by reason of the construction of defendant’s tracks, did the damage occur by reason of the plaintiff not being able to use the said avenue ‘Gr’ for the purpose it had been used prior to the construction of the said tracks ? . A. Yes.” .“34. What, if any, obstruction to the passage of vehicles and teams is there in that part of the said avenue ‘G’ between the plaintiff’s property and the main line of defendant’s road ? A. None. “ 35. What, if any, obstruction to the passage of vehicles and teams is there in that part of the said avenue ‘Gr’ south of the main line of the defendant’s road, between Maple street on the east and Poplar street on the west? A. None at present. “36. Is plaintiff prevented by any act proved to have been committed by the defendant from having access to his said property at any point on said avenue ‘Gr’ abutting thereon? A. Yes. “37. If you answer the last interrogatory in the affirmative, state what it is. A. By not having the road properly ballasted.” “43. Can the plaintiff use the said avenue ‘G’ adjacent to and abutting upon his said property in passing and repassing to and from the same, either to Poplar street on the west or Maple street on the east? A. Yes. “44. Has the defendant with its tracks and cars permanently obstructed plaintiff’s means of ingress to and egress from his said lots ? A. Yes, to a certain extent.” “46. In estimating plaintiff’s damage, do you take into consideration the general inconvenience and annoyance incident to the operation of defendant’s railway so near plaintiff’s said property? A. No. “47. Is plaintiff prevented from traveling upon said avenue ‘G’ and using the same as a public thoroughfare, by reason of the locating and constructing of defendant’s tracks therein ? A. Yes.” It is claimed by the plaintiff in error that to justify a recovery in this case for damages by the abutting lot-owner, there must be such an obstruction of the street in front of the lots owned by the defendant in error that he is practically denied ingress to and egress from his premises; that the findings show quite conclusively that the plaintiff below was not deprived of such right; that notwithstanding the construction of the railroad track in the street, he still has twenty-seven feet of such street in front of his place free from obstruction; that there is room for ordinary vehicles and teams to pass between the railroad track and his property, and that he can still use avenue “ G,” adjacent to and abutting upon his property, in passing to and from the same, either to Poplar street on the west or Maple street on the east, and hence this case comes within the rule of non-liability of railroad companies, for constructing their lines along public streets, to abutting lot-owners for damages. On the other hand, the defendant in error contends that if the railroad company had lawfully constructed its track and legally operated its trains, it might be within the rule of non-liability heretofore adopted by this court, but that the defendant below constructed its line of road along the street in question in an illegal, improper and wrongful manner, and because of the manner of the construction and operation of the road, he was entitled to recover; that as an abutting lot-owner, he has the right to every part of the street, and for the reason that the road was so constructed that he was deprived of the use of a portion of the avenue, he was thereby damaged. The question of damages to abutting lot-owners by reason of the location of railway tracks in streets and avenues has been settled by this court, and the rule is, that “to entitle a person owning lots abutting on a city street, along which a rail-roa(i company has constructed and is operating its line, by authority of the city council, to recover damages, there must be such a practical obstruction of the street in front of the lots that the owner is denied ingress to and egress from them.” (K. N. & D. Rly. Co. v. Cuykendall, 42 Kas. 234.) In that case, the court said: “But where .the location of the track is such that space enough is left in the street in front of the lots of the abutting owner, so that be can pass between the sidewalk and track, and the railroad is operated in a legal and proper manner, the lot-owner cannot recover because the space within which he has heretofore passed from and to his lots is restricted.” See also A. & N. Rld. Co. v. Garside, 10 Kas. 552; C. B. Rld. Co. v. Twine, 23 id. 585; Heller v. A. T. & S. F. Rld. Co., 28 id. 625; K. C. & O. Rld. Co. v. Hicks, 30 id. 288; C. B. U. P. Rld. Co. v. Andrews, 30 id. 590; O. O. C. & C. Rld. Co. v. Larson, 40 id. 301. From the special findings, it appears that the plaintiff below has twenty-seven feet of the street in front of his lots unobstructed, so that it cannot be said that he is deprived of the right of ingress and egress, but that the use of the full width of the street in front of his premises has.been restricted, and for this alone, under the previous decisions of this court, there can be no recovery. This brings us to the question of the right of the plaintiff to recover for the improper construction of the road. The special finding of the jury upon this branch of the case is to the effect that the plaintiff was deprived of free access to his premises, because the railroad track was not properly ballasted. The complaint is made that the ties were laid upon the street and no provision made for vehicles to cross over the railroad track on that part of the street in front of plaintiff's lots. Did the failure of the railroad company to properly ballast its track deprive th$ plaintiff of his right of ingress and egress? The jury found that there was no obstruction to the passage of vehicles and teams in that portion of the avenue south of the main line of the defendant’s railroad, between Maple street on the east and Poplar street on the west, so the plaintiff' had the unobstructed use of twenty-seven feet of the street. There is no question but the city of Hutchinson authorized the construction of the railroad on this particular street, and, while the ordinance conferring this authority is not before us in tbe record, we must assume that the terms and conditions imposed by its provisions were complied with. There is no evidence to show that the railroad was not constructed in accordance with the ordinance. Now, can it be said that the plaintiff’s property was damaged, or any right to its proper use affected by the failure of the railroad company to properly ballast its road-bed? That seems to be the only finding of the jury, with reference to the constructing of the railroad, of which plaintiff below can complain. Can it be said that'the failure, upon the part of the railroad company, to properly ballast its road-bed, is such a wrongful and unlawful construction as would give the plaintiff below the right to recover damages for depriving him of his right of access to his property? Text writers and courts make a distinction between the right of the public to pass and repass along a highway, and the right of the owner of roadside or abutting property to have access to the same. If the claim of the plaintiff is to be sustained, it must be based upon the ground that a private right has been interfered with — that is, the right to pass from his premises to the street, or from the street back again; and this is quite different from the public right of using the street. This court has said, in the case of K. N. & D. Rly. Co. v. Cuykendall, supra: “So that if the location and construction of a line of railroad are authorized by the city council, and its location in the street is such as to give the lot-owner ingress to and egress from his lots, such use of the street by the railroad company does not interfere with the use of the lot-owner and, consequently, he cannot recover for those remote and indirect inconveniences, arising from smoke, noise, offensive vapors, sparks, fires, shaking of the ground, and other annoyances.” As stated, the ordinance authorizing the construction of the railroad is not before us, and we .cannot say whether there was such a departure, by the railroad company, from the terms and conditions of the ordinance authorizing the location as would entitle the plaintiff to recover. It does not appear to us that the failure to ballast the road-bed in front of the plaintiff’s lots interfered with his right of access to bis property from and to the street, and a judgment based upon such a finding alone is erroneous. "We recommend that the judgment of the district court be reversed, and judgment entered upon the special findings of fact for the railway company. 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.: James Hutchinson brought his action against the Chicago, Kansas & Western Railroad Company, to recover damages for failure to construct cattle-guards. He claimed damages to his crops in the sum of $50, and for time and labor in guarding his premises, $125. The jury returned a verdict in favor of the plaintiff and against the railroad company for $85. Judgment was entered thereon. The railroad company excepted, and brings the case here. Prom the evidence adduced at the trial, it appears that in 1886 the railroad company constructed a line of railroad through Wilson county and across the premises of Hutchin son; that upon some portion of the road and including the track across the land of Hutchinson, the company let to some person the contract to do the grading of the road-bed, and to some other person the contract to lay the track; that the track was laid across the land on the 19th day of July, 1886; that at that time the track-layers and graders moved on west and were not there any more; that up to that time no damage was claimed; that construction trains commenced running on the road and across the land as soon as the track was laid, but no passenger trains were run until October 2d, 1886. At that time the railroad company took full charge and possession of the road. It is claimed that the trial court erred in instructing the jury as follows: “As regards the right of the plaintiff to recover, I will say further that it makes no difference in this case whether the railroad in question was constructed by the defendant company or by the construction company.” We perceive no error in the language used. Paragraph 1259, Gen. Stat. 1889, reads: “When any railroad runs through any improved or fenced land, said railroad company shall make proper cattle-guards on such railroad when they enter and when they leave such improved or fenced land.” We think that the duty of making proper cattle-guards by a railroad company, when its road enters and when it leaves any improved or fenced land on its right-of-way, is a duty to the land-owner from the railroad company, annexed by statute to the privileges granted the corporation, and that the failure to perform the duty is not excused by alleging or proving the negligence of a contractor grading the road or of a contractor laying the track upon the road.' (Nelson v. V. & C. Rld. Co., 26 Vt. 717; H. & G. N. Rld. Co. v. Meador, 50 Tex. 77; B. C. & E. S. Rld. Co. v. Austin, 21 Mich. 390; Lowell v. B. & L. Rld. Corp., 23 Pick. 24; see also Railroad Co. v. Sharp, 27 Kas. 134; St. L. & S. F. Rly. Co. v. Ritz, 33 id. 404; Railroad Co. v. Morrow, 32 id. 217; A. T. & S. F. Rld. Co. v. Shaft, 33 id. 522; Railroad Co. v. Wilson, 28 id. 637; Mo. Pac. Rly. Co. v. King, 31 id. 500; Mo. Pac. Rly. Co. v. Manson, 31 id. 337; U. P. Rly. Co. v. Harris, 28 id. 206, and Railroad Co. v. Curl, 28 id. 622.) In Railway Co. v. Fitzsimmons, 18 Kas. 34, and Railroad Co. v. Willis, 38 id. 330, no statutory duty cast upon a railroad company was involved. The judgment of the district court will be affirmed. All the Justices concurring.	[ -12, 110, -4, -65, -118, 106, 50, -102, 83, -93, -92, 83, -19, -57, 20, 97, -26, 61, 85, 43, -42, -109, 3, -93, -110, -13, -45, -51, -77, 73, 100, -42, 77, 16, -54, 21, -90, 64, 65, 92, -114, 36, -85, -19, -39, 0, 60, 123, 22, 71, -79, -98, -13, 42, 24, -61, -83, 44, 111, 45, -111, -15, -70, -57, 126, 6, -111, 100, -102, 5, -24, 46, -104, 53, 0, -104, 115, -96, -121, 116, 65, -103, 9, 102, 99, 33, 28, -49, 72, -104, 14, -6, -113, -26, -80, 24, 35, 13, -97, -99, 80, 86, -122, -2, -11, 77, 89, 108, 1, -117, -80, -125, -113, 44, -112, 69, -53, -93, 19, 101, -58, -78, 93, 71, 115, -101, -113, -98 ]
Opinion by Simpson, C.: This action was commenced in the district court of Harper county on the 29th day of September, 1886, upon an alleged contract for services that Stevens claims that Cross employed him to perform. On the 14th day of October, Cross filed a motion to require Stevens to amend his petition, and state whether or not the contract was a written or verbal one. At the time the motion was filed, we think the record shows that the court was in session and continued for some time, but no one called the motion. At the January term, 1887, the attorney of Stevens called the attention of the court to the motion, and it was sustained, and leave was given Stevens to amend his petition within, ten days from the 5th day of January, with leave to Cross to plead to the amended petition within ten days. At the time this motion was called to the attention of the district court and the order made to file an amended petition, neither Cross nor his attorneys were present. Stevens caused an amended petition to be filed on the 7th day of January, 1887. The April term of the court passed by, and at the June term Stevens produced his witness, a default was entered, and judgment rendered in favor of Stevens for $663 and costs. Neither Cross nor his attorneys had knowledge of the rendition of such judgment until a day or two before the 7th day of July, but on that day Cross filed a motion in said action to set aside said judgment, and for leave to file an answer to-the amended petition. This motion was supported by the affidavits of Cross and Hatton & Ruggles, his attorneys, showing that none of them had knowledge or notice that their motion to compel Stevens to -amend his petition had been sustained, or that the plaintiff had obtained leave to amend his petition. The motion of Cross to compel an amendment to the petition of Stevens was noted on the motion docket in these words: “George B. Stevens v. George D. Cross. “Oct. 14, 1886. Motion to require plaintiff to state in bis petition whether contract or agreement was in writing or verbal. HattoN & Ruggles.” On the margin of the motion docket there was an entry in the handwriting of the judge of the court, as follows: “Jan. 5, 1887. Sustained. Ten days given to file amended petition; ten days to defendant to plead.” A somewhat similar entry was made by the clerk in the “ minute docket,” but no journal entry was made of the ruling on the motion. Pending the motion to vacate and set aside the final judgment, Stevens filed a motion for a nuno pro tuno entry to be made on the journal of the court, showing that the motion of Cross to the petition had been sustained and leave given to file an amended petition, and ten days allowed within which to plead to the amended petition. The court sustained the motion for the nuno pro tuno order, and overruled the motion to vacate and set aside the judgment. Exceptions to these rulings were saved, and we are asked to review them. The first proposition of counsel for the plaintiff in error is, that a copy of the amended petition should have been served on Cross, and this was not done, and hence Cross had no notice or knowledge of the disposition of his motion; that the only records of the district court that impart notice are an appearance docket, journal, the judgment and execution dockets; that the entry on the motion docket, or the minute docket of the clerk does not bind them. They also rely on §136 of the code, which provides “That the plaintiff tnay amend his petition, without leave, at any time before the answer is filed, without prejudice to the proceedings, but notice of such amendment shall be served on the defendant, or his attorney, and the defendant shall have the same time to answer or demur thereto, as to the original petition.” This section has no application to the facts presented by this record. In this case a motion was directed against the petition, that was sustained by the court, and leave given to file an amended answer within a limited time. The amendment was not a voluntary one, as is contemplated by this section of the code, and we do not believe, under all the circumstances of this case, that the plaintiff wa^ required to serve notice of the filing of the amended petition. The motion was filed by Cross; it primarily was the duty of his attorneys to call it up for discussion and ruling. If they neglected to do so, the attorneys of Stevens had the right to have it disposed of. They waited for more than a reasonable time before doing so, no attention being paid to it by Cross or his attorneys. They could not indefinitely prolong a case by directing a motion against the petition of the plaintiff, and then absenting themselves and require notice to be given of its disposition. The power of the court to make its journal speak the truth, and to show the action of the court upon any question, has been so often discussed and maintained, that there can no longer be any doubt but that whenever, by mistake, accident or omission, an order has not been entered on its journals, or has been improperly transcribed, or defectively stated, it can be entered or corrected either at the term, or at any subsequent term, so that what actually did occur shall truthfully appear. It is clear to us that the court below did not commit error in requiring the nunc pro tunc order to be entered on the journal of the date when the order was made and noted on the motion docket. There was delay in urging the motion; there was negligence in not inquiring about its final disposition, that in our judgment excludes any equitable consideration of the motion to vacate and set aside the judgment rendered at the July term against the plaintiff in error, and we feel certain that the court below committed no error under all the facts of this case in overruling it. We recommend that the judgment be affirmed. By the Court: It is so ordered. All the Justices concurring.	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Opinion by GreeN, C.: This action was brought by Henry N. Tennis, as administrator of the estate of John S. Tennis, deceased, in the district court of Wyandotte county, to recover the sum of $10,000 damages, on account of the alleged negligent killing of the decedent. The record discloses that John S. Tennis was killed under the following circumstances: On the afternoon of August 30, 1887, he was walking on the railroad track of the defendant in a westerly direction, in Kansas City, some two hundred feet from a coal chute, where engines took on coal. At the point in question, there was a double track located upon a fill, the south side of which sloped downward some twenty or thirty feet to a stream called Jersey creek; the other side of the fill was a few feet above the natural surface of the ground. The general direction of the road was east and west, but west of the coal chute some distance the railroad curved toward the north. Just prior to the fatal accident, the decedent was observed walking westward upon the track used for east-bound trains; a west-bound train was standing at the coal chute taking on a supply of fuel; it appears that the deceased was within thirty or forty feet of this train when it was coaling; about the time he reached a point two hundred feet west of the coaling place, an east-bound train came around the curve in front of him; in the meantime, the train which had been standing at the coal chute started westward; to avoid the eastbound train, the deceased stepped from the south to the north track, and had not taken more than two or three steps before he was struck and instantly killed by the train going west. The train was running at the rate of twelve miles an hour. The road had been in operation something over a month before the accident. It was admitted, upon the trial, that the accident complained of did not occur in a public street of the city, and no claim was made that the rate of speed at which the train in question was running was in violation of any ordinance. The case came on for trial on the 23d day of March, 1888, before the court and jury, and upon the conclusion of the evidence for the plaintiff, the defendant interposed a demurrer to the evidence, on the ground that no cause of action had been proved, which was sustained by the court; and the plaintiff below brings the case to this court, alleging that the trial court erred in sustaining the demurrer to the evidence, and also in sustaining an'objection of the defendant to a question asked one of the witnesses, by the plaintiff, as to what statement the engineer made in regard to the accident. The first and principal contention of the plaintiff in error is, that the court erred in sustaining the demurrer to the evidence; that where the injury occurred was a sort of thoroughfare, where men, women and children had been in the habit of walking; that the train on the north track was being run at a wanton and reckless rate of speed, and that the decedent was run over and killed without any notice or warning whatever. The defendant in error insists that the testimony of the plaintiff showed that Tennis was a trespasser upon the defendant’s right-of-way, and that the negligence of the deceased was the direct cause of his death; that there is nothing in the evidence to show willfulness or wantonness upon the part of the railway company, and that the demurrer was properly sustained. Was the decedent killed under such circumstances as to indicate that his death resulted from negligence? If so, the demurrer should have been overruled. The law of this jurisdiction has been settled, that a railroad company has the exclusive right to occupy, use and enjoy its railway track, and such exclusive right is absolutely necessary to enable it to properly perform its duties, and any person walking upon a track of a railway, without the consent of the company, is held in law to be there wrongfully, and, therefore, to be a trespasser; and, in case of an injury happening to such person so trespassing upon it, from the movement or operation of the cars of the company over it, he is without remedy, unless it be proved by affirmative evidence that the injuries resulted from culpable negligence after the deceased was noticed upon the track. (Mason v. Mo. Pac. Rly. Co., 27 Kas. 83.) We do not think the evidence indicated that the public had acquired any fight to the railroad track, as a thoroughfare, with the consent of the railway company. The road had been in operation but a short time, and it could hardly be contended that the use of the track had been acquired by prescription. The settled policy of the law is to make the track "of a railroad, which is exclusively the roadway of the company, and upon which cars are operated by steam and kindred agencies, clear of all obstruction which might impede the free and exclusive use of the track, for the purpose for which it was constructed. There seems to be sound reason for this policy.. It is stated by Mr. Justice Paxson, in the case of Mulherrin v. D. L. & W. Rld. Co., 81 Pa. St. 366: “We hold these corporations to a strict line of responsibility whenever passengers are injured by accidents to their trains. It follows that we should be equally emphatic as to their control of their tracks. Except at crossings, where the public have a right-of-way, a man who steps his foot upon a railroad track does so at his peril. The company have not only a right-of-way, but such right is exclusive at all times and for all purposes. This is necessary, not only for the proper protection of the company’s rights, but also for the safety of the traveling public. It is not right that the lives of hundreds of persons should be placed in peril for the convenience of a single foolhardy man who desires to walk upon the track. In England it is a penal offense for a man to be found unlawfully upon the track of a railroad. It would add materially to the public safety were there a similar law here.” The law would have a different application where a railroad track was laid in a public street; the rights of the pub- lie and the railroad company, respecting the use of the same, would be mutual. (L. N. A. & C. Rly. Co. v. Phillips, 112 Ind. 59.) It is claimed that the place where the decedent was killed was almost a public thoroughfare, and made so by people passing up and down the track, and that it was gross negligence for the defendant to run its trains at such a high rate of speed as to endanger the lives of persons walking upon its road. Admitting that such was the case, still a duty rested upon the decedent to keep a sharp lookout for trains, from both directions. He must have known that trains passed over the road at frequent intervals. He certainly knew of the train at the coal chute, and the direction in which it was going. He could see the condition of the fill in front of him and determine whether it was a safe place to venture or not. The evidence was to the effect that he saw the east-bound train coming around the curve, and stepped from the south to the north track, but a few feet in front of the west-bound train. AVe think the engineer of this train had the right to assume that the decedent would get off the track in time to avoid dauger, and there would not be willfulness in letting his train move on; we think the fact that he did leave one track and pass to the other strengthened the engineer in this assumption, that the man would avoid the danger from the approaching train, and there would be no necessity for his giving any signals or stopping’his train. Again, the evidence clearly indicated that the decedent stepped but a few feet in front of the moving train; that he had taken but two or three steps before the engine struck him. A signal would have been of no avail, and the train could not have been cheeked in time to prevent the accident. It is now the settled rule in this and other states, where the plaintiff seeks to recover for injuries on the ground of the defendant’s negligence, that, if the ordinary negligence of the plaintiff directly or proximately contributed to the injury, he cannot recover, unless the injury was intentionally and wantonly caused by the defendant. (U. P. Rly. Co. v. Adams, 33 Kas. 427, and authorities there cited.) Whenever persons undertake to use a railroad track as a footway, they are supposed to do so with full knowledge and understanding of its dangers, and they assume the risk of all its perils. (B. & O. Rld. Co. v. The State, 62 Md. 479; McLaren v. I. & V. Rld. Co., 8 Am. & Eng. Rld. Cases, 219; J. M. & I. Rld. Co. v. Goldsmith, 47 Ind. 43; Railroad Co. v. Houston, 95 U. S. 702; Railroad Co. v. Jones, 95 id. 442; 1 Thomp. Neg. 453, 459; Morrisey v. Easton Rld. Co., 126 Mass. 377; Railroad Co. v. Monday, 49 Ark. 262; Williams v. S. P. Rld. Co., 72 Cal. 120; Railroad v. Hummell, 44 Pa. St. 378.) In a recent case decided by the supreme court of California, where the decedent, while walking along a railroad track without license, was run into and killed a distance of one hundred and fifty yards from a crossing behind him, from which direction the train was coming, the engine was in a reversed position, and there was no headlight or cow-catcher on the tender; the bell was not rung nor was the whistle blown at the crossing, though provided for by statute. Had such signals been given, decedent would probably have heard them and escaped injury; he was not seen by the engineer until after the accident. It was held that the decedent was a mere trespasser, to whom the company owed no duty, and, therefore, it is not liable. (Toomey v. S. P. Rld. Co., 27 Pac. Rep. 1074.) The rule has been stated by Judge Cooley, in his book on Torts, p. 660: “The general duty of a railway company to run its trains with care becomes a particular duty to no one until he is in a position to have a right to complain of the neglect; the tramp who steals a ride cannot insist that it is a duty to him; neither can he, when he makes a highway of the railway track and is injured by the train.” It was held in Iowa that a railroad company did not owe to trespassers upon its track such care that an engineer was re °l&red to look out for them, but after discovering them, it would be negligence not to use every means to avoid inflicting injury. (Masser v. Rld. Co , 68 Iowa, 602.) We think, under the facts in this case and the great weight of authorities, the demurrer to the evidence was properly sustained. It is next contended that the court erred in sustaining an objection to a question asked one of the witnesses for the plaintiff, as to what the engineer said about the accident. The transaction was complete; the train had run a little more than the length of itself and stopped, and was standing some little distance from where the man was struck, and the witness stated that some five minutes after he walked across to the place, and he was asked if he had any conversation with the engineer, which was objected to and sustained. To have made the statement of the engineer admissible, the declaration attempted to be drawn from him must have con- , i . n , , , , . . stituted. a part oi the res oestce: that is, the A u ' 7 statement must have been connected with and part of the transaction in question. Any statement the engineer might have made would have been concerning a past and completed transaction, and hence, would have been incompetent evidence against the railway company to prove the manner and cause of the decedent’s death. The fact that the statement was made in five minutes after the accident would not render the evidence admissible, if the conversation referred to a past occurrence, and not connected with the res gestee. “There must be concurrence in point of time between the act and the declaration; otherwise, it is but a narrative of what has been, or an assertion of what will be done.” (The State v. Montgomery, 8 Kas. 351; Swenson v. Aultman, 14 id. 273; The State v. Pomeroy, 25 id. 350; Jenkins v. Levis, 25 id. 479; U. P. Rly. Co. v. Fray, 35 id. 700; Dodge v. Childs, 38 id. 529.) We recommend an affirmance of the judgment. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Simpsón, C.: This was an action of ejectment, and for the rents, issues and profits of the southwest quarter of section 27, township 15, range 12, in Lyon county, commenced August 7, 1885, by John Clare, as plaintiff, against these plaintiffs in error and one Frederick Bolin, as defendants. Bolin was an occupant claiming under a void tax deed. His answer was a general denial; and the judgment which was finally rendered in the case, at the October term, 1887, was: First, against Bolin and in favor of Clare for the recovery of the land, but that Clare be not let into possession until he should refund the taxes which Bolin had paid, with interest as provided by the- statute in such cases, and should pay the value of Bolin’s improvements, less the value of his use and occupation; second, against Bolin and in favor of the plaintiff’s in error for an undivided half of the land, but that they be not let into possession until they had refunded to Bolin one-half the taxes he had paid, with interest, etc., and one-half of the value of his improvement less one-half of the value of his use and occupation; the value of the improvement and the use and occupation in both cases to be afterwards determined. The answer to the petition by the defendants Ruggles, filed August 19, 1885, consisted of two divisions or counts, the first being a special denial. The second count of their answer commences, “And for a second and further defense and cross-petition against the plaintiff and against their said co-defendant Frederick Bolin,” and sets up their claims to an undivided half of the land as heirs of R. M. Ruggles, deceased, under a deed therefor, made by the plaintiff Clare to said R. M. Ruggles, on the 26th day of March, 1873, and in the life-time of said R. M. Ruggles, and alleges that Clare and Bolin deny their said right and unlawfully keep them out of possession, and asks judgment for possession accordingly. To this defendant Bolin filed answer September 5,1885, consisting of general denial. On the 16th day of September, 1885, Clare - filed a “reply to that portion of the answer of the defendants Ruggles, described as a second and further defense, and numbered second;” which reply is in two divisions or counts, the first count being a denial, and the second count commencing, “And plaintiff further replying says,” and sets out a copy of the deed from Clare to R. M. Ruggles under which these plaintiffs in error claim, and alleges a breach on the part of Ruggles in the conditions on which the conveyance was made, and a failure of the consideration therefor, and a forfeiture of title accordingly. To the second count of this-reply of Clare, the defendants Ruggles filed a reply consisting of a general denial, but this was afterward withdrawn by consent and the Ruggles heirs filed a demurrer instead to the second count or division of the plaintiff’s reply, upon the ground that the same did not state facts sufficient to constitute a defense to their claim as stated in the second count of their answer. On the hearing of this demurrer, July 19,1886, the court sustained the demurrer; and afterward plaintiff dismissed the cause as to the defendants Ruggles, and took time in which to file an amended “ reply.” Clare’s amended reply to the second count of the answer of the defendants Ruggles was accordingly filed on the 13th day of September, 1886, and it was word for word the same as the original reply, except that the amended reply contained these words which were not in the original reply, to wit: “ Plaintiff further avers that the estate of R. M. Ruggles is wholly insolvent and nothing whatever can be collected of it.” This amended reply was in turn demurred to by the defendants Ruggles, upon the same ground as was the original reply, but this time the demurrer was overruled, to which due exception was taken. On the 28th day of January, 4887, the defendants Rug-gles filed a reply to the amended reply of Clare, treating their answer as a cross-petition and the amended reply of Clare as an answer to it, and thus the pleadings stood at the final trial, which took place on the 26th of October, 1887. The trial was by the court without a jury. At the conclusion of the evidence touching the question of title, the following proceeding was had: “The court having announced the intention of taking the case under advisement, it was in open court agreed by all parties, that if the judgment should be against the defendant .Bolin, upon the issues of the title, the amount to be refunded and paid to him for improvements, less the value of his use and occupation of the premises as provided by statute in such cases, if the court should adjudge him entitled thereto, should be determined and ascertained in the manner provided by statute after the final judicial determination of the question of title in the district court; or if said cause should by either party be carried for review to the supreme court within a reasonable time, then after such determination under the proceedings in the supreme court; and thereupon the [district] court took said cause under advisement.” On the 9th of February, 1888, the court announced and made its findings of fact in writing, as follows: “1. A patent in due form was duly issued by the government of the United States on the 1st day of August, 1860, to this plaintiff, John Clare, whereby he became the owner of the land in question, being the land located by John Clare, as assignee of Catherine Fike, of military land warrant No. 82162, issued under the military bounty act of congress of March 3, 1855. “2. On the 15th day of February, 1865, the county clerk of Lyon county, Kansas, issued to L. D. Bailey a tax deed, purporting to convey said land to L. D. Bailey, based upon the sale of the land to him for the delinquent taxes of 1860 and payment of the subsequent taxes of 1861 and 1862, and which deed was recorded in the office of the register of deeds of said county on the 10th day of July, 1865. “3. On the 1st day of April, 1871, the county clerk of said county issued a tax deed in due form for said land to S. H. Dodge, based on the sale of 1866, for the delinquent taxes of 1865, to L. D. Bailey, and the assignment of the sale certificate by him to Dodge, which deed was duly acknowledged, and on the 20th day of April, 1871, duly recorded in the office of the register of deeds of said Lyon county. “4. On the 26th day of March, 1873, this plaintiff, John Clare, with his wife, Susan A. Clare, duly executed and delivered a deed of the conveyance of the undivided one-half of said land to R. M. Ruggles, which deed having been, on the 15th day of April, 1873, duly acknowledged, the same was, with due certificate of the acknowledgment thereof, duly recorded in the office of the register of deeds of said Lyon county, Kansas, on the 19th day of April, 1873, which deed is in words and figures following, to wit: ‘“Know all men that John Clare, of the city of Covington, county of Kenton and state of Kentucky, for and in consideration of the payment of all back taxes now due on the land herein described, and the redemption of the same from all tax claims of all kinds, and the clearance of that half of the same not hereby conveyed from all taxes now due and tax claims for which the said land may have been sold for and now due, and for which it is now subject to sale, does hereby sell and convey unto R. M. Ruggles, of Emporia, Kansas, the following real estate, to wit: “1 The undivided one-half of the southwest quarter of section number 27, in township 15, range 12, containing one hundred.and sixty acres, being the land located by John Clare, January 11, 1859, upon military land warrant No. 82162, in the name of Catharine Hike, as shown by the record in the register’s office at Lecompton, Kansas; said land warrant was issued under the military bounty act of March 3, 1855. “ ‘ The undivided one-half is hereby conveyed to said R. M. Ruggles, in consideration of clearing the whole of all taxes now due and tax claims of all kinds for which said land has been sold and is now subject to sale, together with the appurtenances thereto belonging, to have and to hold the same to the said R. M. Ruggles, his heirs and assigns forever; the grantor hereby covenanting that the title so conveyed is unincumbered, and that he will warrant and defend the same against all claims whatsoever. “‘In witness whereof, the said John Clare, together with Susan A. Clare, his wife, who hereby relinquish all right of expectancy of dower in and to the land hereby conveyed, have hereunto set their hands and seals thiB 26th day of March, 1873. John Chabe. Susan A. Clabe.’ “5. On the 15th day of April, 1873, E. M. Euggles commenced an action in the name of John Clare, as plaintiff, against Solomon H. Dodge, as defendant, in the district court of Lyon county, state of Kansas, for the possession of the land in question. The defendant therein, S. H. Dodge, duly appeared and answered, denying the plaintiff’s title and defended therein, and upon the final trial offered in evidence the tax deed described in paragraph numbered 2 of these findings, in connection with a subsequent deed duly executed and acknowledged and recorded, of the con veyance of said land by L. D. Bailey to him, said Dodge, and said Dodge likewise gave in evidence and put in issue the validity of two other tax deeds, to wit: The deed described in paragraph numbered 3 of these findings, and a tax deed in due form, issued and acknowledged by the county clerk of said county on the 30th day of October, 1874, and on the 31st day of October, 1874, duly recorded in the register of deeds’ office of said county, of the said land to S. H. Dodge, based on the sale of said land in 1871 to him for the delinquent taxes of 1870, and payment of the subsequent tax of 1871; and it was duly admitted on said trial that said land was vacant and unoccupied, and final judgment was duly rendered therein on the — day of May, 1876, upon the general verdict of the jury in favor of said John Clare and against said Solomon H. Dodge for the recovery of said land, together with his costs therein, taxed at $37.35, and that he should not be let into possession of said laud until he paid to said Dodge $348.26, as and for the taxes which said Dodge as the holder of the aforesaid tax deeds had paid on said land, and the interest, costs and charges thereon; said sum of $348.26 constituted the back taxes on said land at the time of and, mentioned in said deed from Clare to Euggles, with the accumulated costs and interest thereon, and said judgment for back taxes remains wholly unsatisfied on the records of said court. “6. Said E. M. Euggles was an attorney at law, and had the executive charge, care and labor of the conduct of the litigation described in paragraph numbered 5 of these findings in behalf of said Clare from the commencement to the end; that said E. M. Euggles died intestate on or about the 24th day of April, 1879, leaving the defendant Sue L. Euggles, his widow, and the defendants Robert and Willie Ruggles, bis children, who are his only heirs; and the claims against said R. M. Ruggles, deceased, exceeded the assets of his estate. “7. On the 24th day of August, 1880, the county clerk of said Lyon county duly executed, acknowledged and delivered a tax deed of the land in question to J. M. Steele, which deed was on the same day duly recorded in the office of the register of deeds of said county, which deed is based on the sale of said land on the 7th day of September, 1875, and the first Tuesday of September, for the delinquent taxes of 1874, to the county for the want of bidders, and subsequent assignment of the sale certificate by the county clerk to L. A. Wood, and by him to said J. M. Steele; a copy of said tax deed is hereto attached marked ‘ Exhibit A/ and made a part hereof. The notice, and only notice given by the county treasurer of the sale of land in the year 1875 for delinquent taxes, stated that such sale would be on the 3d day of September, and the first Tuesday of that month, in 1875, and no notice whatever was given of the meeting of the county board of equalization for the year 1874, and no meeting of said board was held in that year, except upon the 11th day of July, 1874. Subsequent deeds purporting to convey said land, and duly conveying all the interest of the respective grantors therein, have been duly executed, acknowledged and delivered, as follows: By said J. M. Steele and his wife to S. B. Riggs, and by said S. B. Riggs and his wife to Frank Edwards, and by said Frank Edwards and his wife to this defendant, Frederick Bolin, which last deed is dated on the 31st day of July, 1883, and recorded on the 13th day of December, 1883, up to which time said land had never been entered upon or actually occupied by anybody, and none of these defendants, except Bolin, ever took actual possession of said land, the same being vacant and unoccupied up to that date, and thereupon said Frederick Bolin took possession, and has since paid taxes and made lasting and valuable improvements thereon. The said Frederick Bolin with his wife did on the 4th day of October, 1886, duly execute, acknowledge and deliver a mortgage of said land to the Kansas Lumber Company, to secure a therein-recited and still-subsisting indebtedness of said Frederick Bolin of $224.95, with twelve per cent, interest from October 4,1886, for lumber and material used in building and improvements on the land in question, and said mortgage still subsists and is undischarged. “8. On the 13th day of'July, 1885, Solompn H. Dodge for a consideration of $25 duly executed, acknowledged and delivered his quitclaim deed to the land mentioned in the petition to this plaintiff, John Clare, which deed so acknowledged was, on the 1st day of August, 1885, duly filed and recorded in the office of the register of deeds of Lyon county, Kansas. “9. On or about the 1st day of August,' 1885, T. N. Sedg-wick, acting as the attorney and agent of John Clare, requested the defendant Sue L. Buggies to procure and deliver a quitclaim deed of herself and Bobert and Willie Buggies, defendants, of the undivided half of the land in question to said John Clare, for which he- offered to pay the sum of $50. “10. On the 27th day of January, 1887, the defendants Sue L., Bobert and Willie Buggies tendered the plaintiff, John Clare, $29 to cover the consideration of the above mentioned quitclaim deed from Dodge to Clare, with 7 per cent, interest from the date thereof to the date of tender, and the cost of procuring the same and recording, which sum they have brought into court to keep said tender good, and are still ready and willing to pay.” “conclusions op law. “1. That said tax deed to J. M. Steele is void, and the claim of title of the defendant Frederick Bolin thereunder is invalid, but said Bolin is entitled to have his taxes paid thereunder, with charges and interest as allowed by law, refunded; also the value of his lasting improvements, less damages by waste, if any, and of the rents and profits as provided by the occupying claimant’s law, all to be hereafter ascertained, the same to be first applied to the discharging of said mortgage given by said Bolin on said land, and the excess to be paid to him. “2. The plaintiff ought to recover his costs as against the defendants.” At the time said deed was given to said Buggies, Clare’s title was incumbered by tax deeds and taxes then due, and for which said land had been sold or was subject to sale, as follows: A tax deed dated February 15, 1865, and recorded July 10, 1865, for the delinquent taxes of 1860,’61 and ’62; a tax deed “in due form,” dated April 1, 1871, and recorded April 20,1871, for the delinquent taxes of 1865; also, a tax-sale certificate for the delinquent taxes of 1870 and 1871, upon which a deed in due form was issued on the thirteenth day of October, 1874, and recorded October 31, 1874, all of which tax deeds and claims were held and owned by one Solomon H. Dodge. On the 15th day of April, 1873, R. M. Ruggles, as attorney for this plaintiff commenced an action against Dodge in the district court of Lyon county for the recovery of said land. Dodge defended in said action under all the above tax deeds; and in May, 1876, judgment was rendered in favor of Clare for possession of the land and costs, “but that he should not be let into possession until he paid to said Dodge $348.26 as and for the taxes which said Dodge, as the holder of the aforesaid tax deeds, had paid on said land.” The court in this case found that said $348.26 constituted the “back taxes” on the land at the time of the deed from Clare to Ruggles, the only proof of which is the inference from what has been here stated. This court also found that “ said judgment for back taxes remains wholly unsatisfied on the records of said court.” The clerk testified on this trial that he had examined the records and papers of that cade, and found no memoranda or entry of payment or satisfaction; his testimony was the only evidence whether said sum has been paid or not, and the record contains all the evidence. Said R. M. Rug-gles died intestate and insolvent, April 24,1879, leaving these plaintiffs in error his only heirs. The land in question was always vacant and unoccupied until the 31st day of July, 1883, when Bolin took possession under a tax deed based on the tax sale of 1875 to his grantors through whom he claimed in this action. On the 13th day of July, 1885, Solomon H. Dodge quitclaimed this land to Clare for $25, and the deed was duly recorded August 1, 1885. It was agreed in open court by all the parties — “ That the defendants, Sue L. Ruggles, Robert Ruggles and Willie Ruggles, tendered to the plaintiff, John Clare, $29 on the 27th day of January, 1887, to cover the consideration of the above last-named quitclaim deed from Solomon H. Dodge to Clare, with 7 per cent, from the date thereof to the date of tender, and the cost of procuring and recording the same, which sum they have brought into court to keep said tender good, and they are still ready and willing to pay the same.-” The parties complaining here are Mrs. Sue L. Ruggles and her children, Robert and Willie Ruggles. Bolin does not bring up his branch of the case. The contention on the part of the plaintiffs in error is, that the warranty deed executed by Clare and wife to R. M. Ruggles during his life-time is an absolute conveyance; an executed grant, not expressing or subject to any condition, precedent or subsequent; and, if this is so, then that Clare could only pursue such remedies as were applicable to the contract relations growing out of the undertaking of Ruggles to clear the land of taxes and from clouds on the title. In this action no such remedy is pursued, but the claim of Clare for redress is based upon the supposed fact that the conditions upon which the conveyance was made have never been performed by Ruggles, and hence there was a total failure of consideration and the deed is void. Clare’s petition was an ordinary one in ejectment. The plaintiffs in error answered, setting up the conveyance by Clare and wife to R. M. Ruggles, for the undivided half of the land described in the petition of Clare. To this answer Clare replied, admitting the execution of the deed to Ruggles for an undivided half, but alleged that Ruggles failed, neglected and refused to pay the back taxes and to remove the tax liens, etc., as he was required to do by the conditions of the deed, and that said deed was and is void. To this reply a demurrer was filed by the plaintiffs in error, and this demurrer was sustained by the court, and thereupon Clare dismissed the action as to these plaintiffs in error, but Clare filed an amended reply to the answer of the plaintiffs in error, by lea^e of the court; this amended reply was a copy of the original, except that there was added an allegation that when Clare was first apprised of the failure of Ruggles to pay all back taxes on said land to divest it of all tax liens, he immediately rescinded the contract, and demanded from the heirs of Ruggles a reconveyance to him of the undivided half of the laud. To this amended reply the plaintiffs appeared and filed a dejnurrer that was overruled by the court, and to which ruling due exceptions were saved. Then the amended reply of Clare to the answer of the plaintiffs in error was considered as an answer to a cross-petition of the plaintiffs in error, and they filed a reply to this amended answer, denying generally and specifically, the allegations therein, and all parties went to trial in this condition of the pleadings. We suppose that the errors really complained of by the plaintiffs in error are the ruling on their demurrer to the reply of Clare and the judgment for costs against them. The controlling question is whether the deed from Clare and wife to Ruggles is an absolute conveyance. We think it vested in Ruggles an absolute title to one-half of the land. In the absence of fraud, the consideration expressed in the deed cannot be impeached, contradicted or varied for the purpose of invalidating the deed. In the case of Johnson v. Town Co., 14 Kas. 391, it was sought to show, to invalidate the deed, that the instrument was not to be considered a deed until certain things were done by the grantee and. other parties, and that none of the conditions had been fulfilled. The court say that such evidence is inadmissible; and the court further say, “that a deed apparently fully executed and acknowledged and delivered to the grantee, to become an absolute deed upon some condition, is not in escrow, but is immediately a deed absolute.” In Curtis v. Board of Education, 43 Kas. 138, this court say, referring to the deed in that ease: “There are no words in the deed stating that the estate was or should be conveyed upon condition; or that it might be forfeited under any circumstances whatever; or that the estate might under any circumstances revert to the grantors or their heirs; or that they might under any circumstances ever have the right to reenter the premises. Nor was the estate conveyed, or to be continued in existence upon any such terms as ‘provided’ or ‘if ’ something in the future should be done or not done, or happen or not happen. Indeed, there is nothing sufficiently strong in any part of the deed or in the whole deed to indicate that the estate was conveyed or intended to be conveyed upon any condition either precedent or subsequent; but taking the whole deed together, it shows that an absolute estate in fee simple was intended to be conveyed, and was conveyed, and was to continue in the grantees forever. The authorities are uniform, that estates upon condition subsequent, which, after having been fully vested may be defeated by a breach of the condition, are never favored in law, and that no deed will be construed to create an estate upon condition, unless the language to that effect is so clear that no room is left for any other construction. See the case of Packard v. Ames, 16 Gray, 327, and other cases cited in the opinion.” This ruling establishes the deed from Clare and wife to R. M. Ruggles as an absolute conveyance to him of one-half of the land in controversy. This leaves Clare to his other remedies against the estate of Ruggles. We do not think that the fact of the insolvency of the Ruggles estate, that was established on the trial, varies the rule, or makes the deed dependent on any subsequent performance by Ruggles. It follows from this, that the court erred in overruling the demurrer to the reply of Clare, and that the judgment against the plaintiffs in error was wrong. It is recommended that the judgment be reversed. By the Court: It is so ordered. All the Justices concurring.	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Opinion by SimpsoN, C.: Bird commenced this action in the district court of Cheyenne county, claiming that on the 11th day of April, 1885, Eva Ostrander, Chárles Muller, Samuel McKnight and Lawrence Flanigan each purchased a quarter-section of school land situate in Cheyenne county from the state of Kansas, the whole purchase embracing section 36, township 2 south, .of range 41 west; that this purchase was made under the provisions of the act to provide for the sale of school lands, approved February 22,1864, and acts amendatory and supplemental thereto; that certificates of purchase were issued to each by the county clerk of Rawlins county, to which the county of Cheyenne was then attached; that these certificates of purchase were duly assigned by these respective purchasers to Beverstock and Cochran, who were purchasers for value, having paid $100 for each assignment. He further alleges that, after said certificates were assigned, and were in the possession of Beverstock and Cochran, they were either lost or stolen, without fault or negligence on their part; that after they were so lost or stolen, they were sold by some of the defendants without the knowledge or consent of said Beverstock and Cochran; that the names of Beverstock and Cochran were erased from the assignments made to them by the original purchasers, without their knowledge or consent; that the defendants Henry K. White, E. S. Douglass and E. K. White claim to be present owners of said certificates of purchase of the several pieces of school land. He further alleges that, when it was discovered that said certificates of purchase then owned by and in the possession of Beverstock and Cochran were lost or stolen, such proceedings were had as to cause the clerk of Rawlins county to deliver to Bever-stock and Cochran certified copies of said certificates of purchase and the assignments thereon to Beverstock and Cochran; that on the 2d day of October, 1885, Beverstock and Cochran, for and in consideration of the sum of $885 in hand, paid them by one Charles B. France, duly assigned said certificates of purchase to the said France, and that said Charles B. France did subsequently assign said certificates of purchase to the said Bird, who by virtue of such assignments became the absolute and unqualified owner of the same; that the assignments of Beverstock and Cochran to France, and from France to Bird, are in writing, indorsed on the back of the certified copies; that afterward Bird tendered to the treasurer of Rawlins county all the interest due and payable on said four certificates of purchase, who refused to accept the same; but that said treasurer did permit the defendant E. K. White to pay the same; that in 1886 the said Bird, desiring to make final payment of the four certificates of purchase, tendered to the county treasurer the full purchase-price for said land, together with interest from the day of sale to the day of tender, which was refused. Attached to the petition are copies of the four certificates of purchase and the written assignments of the four original purchasers to Beverstock and Cochran, the petition being verified. Among the other prayers for relief was one that the defendants be restrained from claiming any interest in and to said certificates of purchase. A temporary injunction was allowed until the final hearing. The defendants Henry K. White (who was sued as E. K. White), E. S. Douglass and C. F. Mathieson filed the answer admitting the purchase by Flanigan, McKnight, Ostrander, and Muller, as described in the petition, and that each received a certificate of purchase. They admit that they now claim by virtue of certain assignments made by the said original purchasers and their assignees to be the absolute owners of each and all of these certificates of purchase, each owning an undivided-third interest therein. They further aver that, long before they or any of their co-defendants acquired any interest in said certificates, and before the pretended acquisition of any interest in said certificates of purchase by Bird, the said Beverstoek and Cochran repeatedly disavowed any claim or interest to or in said land or in said certificates, and caused the same to be sold without any visible appearance of any ownership by them therein, and to be delivered to those under whom these defendants claim title to said certificates, they buying the same from other persons than Beverstoek and Cochran, and paying therefor upon the faith of such representations and disclaimer of ownership and interest therein by said Beverstoek and Cochran. This answer is verified. Of the other defendants, Hendricks, Russell, Tindall and Hemming filed disclaimers. The defendants Way and Kerndt made default and filed no answers, so that the real controversy is between Bird on the one hand, and White, Douglass and Mathieson on the other. The cause was tried by the court at the May term, 1888, and a general judgment entered, in the following language: “This day this cause came on to be heard on the issue joined between the parties, the plaintiff in person and by attorneys S. W. McElroy and John D. Hayes, and the defendants by their attorneys, James Donovan and M. A. Wilson. The plaintiff introduced his testimony and rested, then the defendants their testimony and rested; and the court, being fully advised in the premises, does find that the plaintiff at the commencement of this action was, and now is, the owner of four certificates of purchase, as follows, to wit: The same being fully described in plaintiff's petition, and embracing the entire section 36, in township 2 south, of range 41 west, in Cheyenne county, Kansas. The court further finds that the said plaintiff derived his title to the said certificates of purchase from one Charles B. France, and said France his title from Beverstock and Cochran, and Beverstock and Cochran from the four original purchasers of the said land, to whom the state" of Kansas issued certificates of purchase, which were on the 11th day of April, 1885, assigned to said Beverstock and Cochran, and by Beverstock and Cochran to Charles B. France, duly assigned October 2, 1885, and said Charles B. France transferred same to the plaintiff herein before the commencement of this action; that the said four original certificates issued to the four original purchasers were lost and unlawfully mutilated, and the names of Beverstock and Cochran were erased from each of said certificates of purchase, and afterward the name of C. P. Russell was inserted in the said original assignments in place of the names of Beverstock and Cochran, the original and first assignees, and that such erasure was made and the name of C. P. Russell inserted without the knowledge and consent of Beverstock and Cochran, or either of them; that the defendants Henry K. White, Edward S. Douglass and C. F. Mathieson are now in possession of the four original certificates of assignment, and claim their title to the same from said C. P. Russell, and C. P. Russell from N. A. Way; and the court-further finds that the said N. A. Way had no interest in said certificates, or right to said land; that the fraudulent alteration of said four assignments was illegal and void, and passed no title to said certificates, nor any valid interest in said land. “It is therefore ordered, adjudged and decreed by the court, that the plaintiff's interest and title to said certificates of purchase is paramount and superior to the interest of the defendants, and he is entitled to a patent to section 36, township 2 south, of range 41 west, from the state of Kansas, upon the payment of the amount due the state upon said contracts, and the further sum of $103.68 to the clerk of the court for Henry K. White, the same being the amount the said White has paid as interest on the said contracts; and it is further ordered, adjudged and decreed by the court, that.the interest of the defendants in and to said land and certificates of purchase be forever canceled and held for naught, and the plain tiff’s ownership in and to said certificates of purchase, and right to said land therein described, forever sustained, and the defendants pay the costs of this suit, taxed at $41.45, for which let execution issue.” A motion for a new trial was overruled, and White, Douglass and Mathieson bring the case here for review. Only Iwo assignments of error are insisted upon here. The first is, that these plaintiffs in error were entitled to a judgment on the pleadings; and the second is, that the trial court erred in not sustaining the motion of the plaintiffs in error in the nature of a demurrer to the evidence. Numerous inquiries present themselves on a perusal of this record, and their determination may have the effect to dispose of a number of questions discussed by counsel for plaintiffs in error. The case was tried by the court on the 15th day of May, 1888, and on that day a motion was filed by attorneys for White, Douglass, and Mathieson, asking that judgment be rendered in their favor because the evidence introduced by the plaintiff (Bird) fails to show a cause of action, and because the testimony of the plaintiff fails to show any legal or equitable interest in his favor. The record fails to show anywhere that there was any ruling or disposition whatever of this motion. The attorneys of the plaintiffs in error classify this motion as a demurrer to the evidence, and assuming this to be a demurrer, still the lower court never acted on it, and we cannot. The motion for a new trial assigned as causes therefor the following: First, that the decision is contrary to the evidence; second, that the plaintiff, Benjamin Bird, is not the party in interest, and has no legal or equitable standing in this court, as is shown both by the testimony and the record; third, that the plaintiff in this action relies on duplicate certificates issued by the county clerk of Rawlins county, Kansas, without any authority by law; fourth, that Bever-stofek and Cochran made an assignment on the duplicate certificates, knowing at the same time that the original certificates were in the hands of other parties; fifth, that there is no legal evidence of any trust being established between France and Bird, or that C. B. France held any trust in said duplicate certificates for Benjamin Bird; seventh, that whatever interest is claimed by Bird was acquired by a quitclaim deed from Beverstock and Cochran; eighth, that no instruments in writing have been introduced in evidence to establish any legal or equitable interest of Benjamin Bird, C. B. France, or Bever-stock and Cochran. It will be noticed that the only statutory cause assigned for a new trial was, that the decision was contrary to the evidence, and we have to indulge in a very liberal construction of statutory expression to construe this into the scope of the sixth subdivision of §360 of the civil code. The other causes assigned for a new trial are (if they are anything) errors of law occurring at the trial. But they are not saved by proper objections and exceptions, and are general statements of propositions that seem to have lodgment in the minds of counsel, but never formulated by distinct and specific questions to witnesses, nor called to the attention of the court as legal questions arising on the facts presented at the trial; so that it seems to us that the only question fairly presented by the record is, whether the judgment is sustained by sufficient evidence. We find that certified copies of the original certificates of purchase are attached to the amended petition, and that these show a written assignment from the original purchasers to Beverstock and Cochran, duly acknowledged by each purchaser before the county clerk. This, at least, makes a prima facie case that the original certificates were so assigned. One of the controverted questions of fact was, whether they were so assigned, and there is some evidence that they were not, espeeiálly by Hemming, and there is also some evidence tending to show that they had been, but the names were erased. These original certificates were delivered by Meiksell to Hemming at the instigation of Way. Cochran does not know how they left his possession, and there is no word of explanation from either Meiksell or Way how they became possessed of them. There is no doubt of the assignment to and possession of Cochran — that he bought the certificates, whether with the understanding or without it, that Way was to have an interest. So there is a conflict as to whether or not, at the time Beverstock’and Cochran applied to the county clerk and received certified copies of the certificates and assignments, they knew that the originals were in existence, and not lost or stolen as they preferred to believe. So there is a conflict as to whether or not White, when he purchased the original certificates, had knowledge from Bird that the persons he bought from had no interest in them. We cite these various conflicts in the evidence for the purpose of invoking the operation of a rule so often expressed that its repetition is becoming wearisome, that, where the evidence is conflicting, and there is sufficient or auy evidence to sustain the judgment, it will not be disturbed by this court, for the reason that the trial court or the jury had an opportunity to see the witnesses, observe their hearing and demeanor, and had opportunities for comparison that this court cannot have. There is some evidence to sustain the judgment, and all we can do in this state of the record is, to 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 GeeeN, C.: This was an action in replevin, brought by the plaintiffs in error to recover certain specific articles of personal property, levied upon by the defendant in error, as sheriff, under an execution issued on a judgment in favor of M. Trendenberg against C. J. Ponceler. The defendant denied generally, and alleged ownership and title of the property in C. J. Ponceler; that the execution had been levied upon the property described in plaintiff’s petition as the property of C. J. Ponceler; and that the same was subject to sale for his debts. The plaintiffs obtained possession of the property. Upon the issues joined, a trial was had at the September term, 1887, and resulted in a verdict and judgment for the defendant. A reversal of this judgment is urged, upon the ground that the court below erred in rendering judgment upon the verdict returned by the jury. The verdict was: “ We, the jury, find that the defendant did not wrongfully detain the property replevied in this case from the plaintiffs; and said defendant is entitled to the return of the same, or the value thereof, set out in the affidavit for replevin.” The judgment of the court upon this verdict was, that the plaintiffs should return said .property taken in replevin, describing the same as in the affidavit for replevin; or, in case the same could not be returned, that the defendant should receive the value thereof, being the sum of $150. After hearing the motion for a new trial, the court directed the journal entry to be corrected, by striking out of the judgment the words: “ The sum of one hundred and fifty dollars'.” The value of the property taken in replevin was not ascertained; the affidavit was not in evidence before the jury, and is notin the record. We cannot tell how much the value of the property may have exceeded -the judgment and costs upon which the execution was issued. The interest of the sheriff could only be to the extent of the amount set out in the execution under which he made the levy. His interest in the property was special, and he would only be entitled to a judgment for the return of the property; or, if the same could not be had, the value of his special interest therein by virtue of the execution and levy. (Shahan v. Smith, 38 Kas. 474; Friend v. Green, 43 id. 168.) We are of the opinion that the verdict and judgment are erroneous, and recommend a reversal. By the Court: It is so ordered. All the Justices concurring.	[ 82, 108, -112, -82, 10, 32, 42, -102, 65, -128, -90, 51, -23, -50, 16, 47, -11, 105, 117, 107, -58, -77, 119, -127, -45, -14, -109, 85, -80, 77, -26, -41, 12, 112, -54, -43, 102, -62, -67, -42, -114, -115, -70, -28, -39, 100, 48, 59, 16, 11, 113, -114, -29, 46, 53, -37, 107, 40, 95, -67, -48, -8, -7, -115, 107, 23, -112, 54, -100, 67, -38, 40, -116, 61, 0, -24, 115, -90, -122, 84, 33, -69, 44, 98, 102, -127, 69, -17, -72, -120, 47, -9, -115, 7, 17, 88, 91, 41, -106, -33, -33, -128, -89, 124, -20, -107, 21, 100, 3, -17, -106, -77, -81, 124, -120, -61, -33, 3, 52, 113, -51, -32, 92, 71, 91, -69, -98, -33 ]
Opinion by StrANG, C.: In March, 1886, the plaintiff Roseltha A. Parsons, was the owner in fee of the real estate described in her petition filed in the district coart. The defendant Cyrus Parsons represented to her that his brother, who, he said, was a rich man in Pennsylvania, would purchase the said property of the plaintiff, and pay her $4,000 therefor. The plaintiff consented to sell for that amount. Afterward, said Cyrus Parsons exhibited to the plaintiff a note executed by the defendant, Anson Parsons, payable to the plaintiff on demand, for $4,000, but said he was instructed to hold the note until the deed was executed. The plaintiff then executed a deed to said Anson Parsons for the property; had it recorded and sent to him. Cyrus Parsons then refused to turn the note over to the plaintiff until she paid a certain obligation signed by himself, with Fay Parsons, the husband of the plaintiff. The plaintiff then demanded the note, or that the property bé deeded back to her. This demand was made on both of the defendants, and they refused to do either. Fay Parsons, as the agent of the plaintiff, for her, made the same demand, which was refused. December 8,1887, the plaintiff commenced her action to set aside the deed thus obtained from her, upon the ground that it was secui'ed through fraud. April 24, 1888, the ease was tried by the court, a jury having been waived. Anson Parsons was in default. The court found that due and proper services by publication had been had on him. The plaintiff introduced her evidence and rested. The defendant demurred to the evidence, and the demurrer was sustained. Motion for new trial was overruled, and case brought here for review. We fail to discover in the record any reason in law, or in fact, for the action of the district court. The plaintiff alleges that the deed from herself to Anson Parsons was obtained from her fraudulently. We think her evidence establishes a clear prima facie case, and, unexplained, is sufficient to support her right to the relief sought. The evidence shows that Anson Parsons, instead of deeding the property back to the plaintiff from whom his deed came, deeded it to Fay Parsons, notwithstanding both the plaintiff, and Fay Parsons for her, demanded that it be deeded back to the plaintiff. This action of Anson Parsons, together with the stealthy manner in which it was accomplished, with the other evidence in the case, shows pretty conclusively that the transaction was a scheme on the 'part of Cyrus Parsons, to which Anson Parsons lent himself for Cyrus’ benefit, to get the title out of the plaintiff, and in the name of Fay Parsons, so that a judgment against him and Cyrus could be collected out of the property. The law never uses fraud as a means for the collection of a debt. The demurrer to the evidence should have been overruled. (Mo. Pac. Rly. Co. v. Goodrich, 38 Kas. 224; Gardner v. King, 37 id. 671.) It is recommended that the judgment of the district court be reversed, and the case remanded for new trial. By the Court: It is so ordered. All the Justices concurring.	[ -16, -8, 120, 47, -70, -32, 10, -102, 67, -126, 39, 115, -23, 84, 16, 59, -31, 43, 113, 105, 86, -77, 7, -62, -14, -13, -31, -43, -71, -51, -10, -41, 76, 48, -62, 117, 103, -126, -91, -48, 14, 5, -87, 96, -37, 96, 112, 59, 64, 77, 113, -50, -77, 47, 53, 70, -19, 46, 107, -71, -48, -31, -97, 13, 95, 2, -110, 117, -76, 2, -56, 46, -112, 57, 0, -23, 122, -90, 22, 116, 79, -117, 9, 34, 98, 49, -27, -3, -72, -116, 47, 118, -115, -89, -14, 72, 11, 44, -68, -99, 125, 20, 35, 124, -20, -99, 28, 108, 15, -17, -106, -111, -81, 50, -98, 3, -25, 19, 53, 112, -49, 32, 92, 114, 112, -101, -113, -69 ]
The opinion of the court was delivered by Mason, J.: Michael L. Breen, a married man, having no children, died testate. By the terms of his will his widow was to have one-half of all his property, and collateral relatives the other. She elected not to accept the provisions of the will, but to take what she was entitled to under the statute. The sole question presented is whether the collateral relatives were entitled to one-half of all the property, or to one-half of what should remain after setting apart to the widow the exempt personal property owned by the testator at the time of his death. The district court took the view first stated, and the widow appeals. In 1875 it was decided that, as the statute then stood, if a widow upon the death of her husband, he dying testate without surviving issue, elected to take under the law, she would be entitled to the whole of his •estate, whatever might be the provisions of the will. This decision was based upon the statutory language that a widow who does not elect to take under her husband’s will “shall retain hey share of the real and personal estate of her husband as she would be entitled to by law in case her husband had died intestate.” (Barry v. Barry, 15 Kan. 587.) In 1883 a new section .(Laws 1888, ch. 163, § 1) was added to the act in relation to wills, reading as follows: “Any married person having no children may devise one-half of his or her property to other persons than the husband or wife.” (Gen. Stat. 1909, § 9812.) A preliminary contention is made by the appellant that this section affects only real property, inasmuch as it uses the word “devise” and not “bequeath.” “Devise,” however, is used with respect to the disposal of personal property in statutes as well as in wills. (3 Words & Phrases, p. 2047; 14 Cyc. 284.) In the case cited it was said that the word “bequeath” in the section there construed (Gen. Stat. 1909, § 9811) probably means “devise and bequeath.” Such has undoubtedly been the interpretation placed upon it, and the term used in the subsequent statute should be given a similarly elastic meaning. In Carmen v. Kight, 85 Kan. 18, 116 Pac. 231, a will was upheld by which a childless wife disposed of one-half of all her property otherwise than to her husband, but the point suggested was not raised. The principal contention of the appellant is based upon the provisions of the statute relating to setting apart to the widow the exempt personal property owned .by her husband at the time of his death. The following are the sections by which the matter may be affected: “In addition to her portion of her deceased hus band’s estate, the widow shall be allowed to keep absolutely, for the use of herself and children of the deceased, all personal earnings and personal property of the deceased which were exempt to him from sale, execution, garnishment and attachment, at the time of his death.” (Gen. Stat. 1909, § 3484, as amended by Laws 1911, ch. 189, § 1.) “If there be no children, then the said articles shall belong to the widow; and if there be children and no widow, said articles shall belong to such children.” (Gen. Stat. 1909, § 8485.) “The property to which the widow and children may be entitled under the second preceding section shall be stated separately in the inventory, and shall not be appraised, except such part thereof as may be necessary under the fourth and sixth subdivisions of said section ; and such property shall be retained by the widow and children, and in no case shall it be liable for the debts of the deceased.” (Gen. Stat. 1909, §3486.) “After allowing to the widow and children of any deceased intestate of this state the homestead provided in the next section of this act, and the personal property and other allowances provided by law respecting executors and administrators and the settlement of the estates of deceased persons, the remainder of the real estate and personal effects of the intestate, not necessary for the payment of debts, shall be distributed as hereinafter provided.” (Gen. Stat. 1909, § 2935.) Provisions for setting apart specific property to the widow on the death of her husband have been held to be entitled to a liberal construction for her benefit, and to apply where there is a will as well as in the case of intestacy. (3 Ene. L. & P. 265.) The statutes which are interpreted in the many decisions on the subject are so different from each other and from those here involved that a review of them is not regarded as advisable. The question is whether the law which authorizes a husband who has no children to will to others than his wife one-half of his property, means that he may so dispose of one-half of all his property, or of one-half of what remains after the exempt portion has been set off to his wife. The law as it existed prior to 1883 contained two provisions in apparent conflict with each other. The statute then as now provided that any person of full age and sound mind owning property of any sort might dispose of it by will (Gen. Stat. 1909, §9776), but that one spouse should not (except by consent) will more than half of it away from the other (Gen. Stat. 1909, § 9811). This was in effect a declaration that a married person could dispose of one-half of his property by will in any way he might see fit. But the statute then as now provided that if the wife elected not to accept the provisions of the will she should retain such share of her husband’s property as she would have received had he died intestate. In the case of a widow who renounced the will of her childless husband, in which he undertook to give to others one-half of his property, the question arose as to which provision of the statute should control — that which apparently gave him the right to make a valid disposition of half of his property as he saw fit, or that which said that his wife might at her pleasure take it all by the law of descents, notwithstanding any will he might make. In the Barry case it was decided that the latter provision should control the former. The act of 1883 was manifestly passed in view of this decision and with the intent to change the law as there announced. Literally it did no more than declare the law as it already existed. But its obvious purpose and effect was to prevent the rule as newly announced, that a childless husband might dispose of half of his property by will, from being subordinate to the other rule that his widow might at her election take just what the statute would have given her had there been no will. The old rule that the widow who elects not to take under the will of her childless husband gets just what the law would have given her had there been no will is modified by the new declaration, so that now in that event the will controls to the extent of one-half of the property, and by the operation of the law of descents she receives the remainder. (Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815.) The statute of 1883, being the later expression of the legislative purpose, should also control in the case of a seeming conflict with any of the provisions above quoted. We conclude that the trial court rightly decided that the will operated to dispose of all of the testator’s property, including the exempt personalty. The judgment is affirmed.	[ -13, 104, -44, 127, 42, 34, -118, -104, -32, -85, 37, 83, 73, -6, 81, 43, 115, -117, 65, -22, -10, -93, 7, -64, -14, -5, -111, -33, -77, -52, 110, 95, 77, 32, 42, -43, 102, -117, -51, -48, 12, -124, -85, 73, -37, 80, 56, 103, 86, 11, -47, -33, -77, 41, 57, 71, 40, 42, 91, -76, 80, -72, -85, -123, 127, 22, -79, 7, -36, -25, 72, -114, 20, 25, 0, -32, 115, -74, -122, 116, 15, -103, 8, 98, 102, -80, 53, -17, -112, -104, 15, 63, -67, -25, -106, 89, 1, 73, -74, -71, 125, 36, 79, 124, -26, -108, 92, -4, 28, -113, -42, -79, -119, 124, -104, -109, -17, -59, 48, 113, -39, 42, 92, 99, 114, -109, -114, -98 ]
The opinion of the court ivas delivered by West, J.: Property owners affected by a special assessment for the construction of certain sewers united in a suit to enjoin the city from issuing improvement bonds and from causing any assessments or levies to be made to pay for the cost of the construction of such sewers. The amended petition alleged that ordinance No. 3036, which purported to provide for the main sewer, did not bound or describe any portion of the city. Also, that on November 16, 1909, an ordinance was passed declaring it necessary to con.struct certain sewers. A copy of this ordinance shows that it provided for the construction of “the sewers hereinafter described comprising District S.ewer No. 9. in Sewer District No. 9 as a part of the foul water sewerage and drainage of the city,” and described dis trict No. 9 sewer as twelve inches in diameter, of tile or cast iron where necessary, extending along certain lines, a ten-inch sewer along certain other lines, an eight-inch sewer, a northeast branch sewer eight inches in diameter, a southwest branch eight inches in diameter along certain described lines, with “all the necessary manholes, lampholes, flush tanks, junctions, masonry structures and other appurtenances necessary to make the sewer effective as provided in this ordinance and in accordance with the plans, specifications and stipulations hereinbefore mentioned.” It was alleged that without any further act in this respect and without any notice to the plaintiffs the board caused such sewer to be constructed, “and also a large number of lateral sewers in said district,” as shown in a map attached; that for the construction of such main trunk and lateral sewers the commissioners had agreed to pay many thousands of dollars, and had levied the assessments complained of, and had proceeded without a previous estimate of the cost being made and filed as required, and without first hppropriating by ordinance to pay for such construction, and without issuing or arranging to issue internal-improvement bonds; that the amounts assessed were grossly excessive and greatly exceeded the benefits; that the sewers had been so constructed that some of the plaintiffs were practically -barred from access thereto. Later, an amendment to this amended petition was filed, setting up careless and improper construction and averring that the city had, as provided by ordinance and custom and law, given property owners affected by the special assessments notice that within thirty days from the date fixed in such notice such asses-ments must be paid, and that relying on the time and date so fixed and upon the custom, ordinance and practice of the city in this respect, the plaintiffs rightfully relied on the date so fixed as the time from which the thirty days statute of limitations would begin to run. Still later, a supplemental petition was filed alleging that a later ordinance had been passed to supersede the former ordinances touching the main sewer, which ordinances were thereby abandoned. To these pleadings a demurrer was interposed on the ground that they did not state facts sufficient to constitute a cause of action, and on the further ground that several causes of action were improperly joined. From an order overruling the demurrer on both grounds the defendant appeals. While it is alleged that by ordinance No. 3256 the city ascertained, determined and attempted to levy the amounts to be paid on the lots of the respective plaintiffs for sewers in district No. 9, and that the former ordinances referred to in the plaintiffs’ pleadings had been wholly abandoned, an inspection of such ordinances shows that No. 3036 created the district, No. 3058 declared the necessity of building the sewers, and No. 3231 determined the amount of special assessments necessary to pay the cost of the sewer described in No. 3058, also “apportioning, ascertaining, charging and assessing the amount due on each lot liable for such assessment.” No. 3256 levied the ten annual installments of such special assessments and prescribed the sum due each year, “The special assessments having been heretofore apportioned by ordinances of this city against the property herein described.” Ordinance No. 3231 was passed December 20, 1910, and published December 24. Suit was begun January 25, 1911. The statute provides that no such suit may be maintained “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.” (Gen. Stat. 1909, § 994.) Ordinance No. 3231 required the city clerk immediately to mail to the property owners affected a notice of the amount charged against their property, giving such owners thirty days’ notice that improvement bonds payable in ten annual installments would be issued and that such owners might redeem their property from liability on account of such assessments by making certain payments. It is stated that on the notice which was sent appeared the date of December 28, and the plaintiffs construed this as a continuation of such a custom and as a waiver on the part of the city of the right to avail itself of the thirty days statute of limitations beginning at the date of the publication of the ordinance, and cite the case of Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1099. It was there held that an ordinance having been passed levying special assessments and requiring the clerk to cause it to be published in a daily newspaper, which he did, but because of numerous errors appearing in the publication he ignored it and caused it to be correctly published on the day following, an action brought within thirty days of the last publication was in time. There is no question here about the publication of the ordinance on the 24th of December, and it has been repeatedly held that the amount due on each lot or piece of ground is ascertained when the ordinance levying the assessment is published. (Hoffmeyer v. Reed, 88 Kan. 363, 128 Pac. 383, and cases there cited.) The statutory provision quoted has been held to cut off defenses of every kind that might be made against such assessment. (Rockwell v. Junction City, 93 Kan. 1, 142 Pac. 268; Railway Co. v. Montgomery County, 93 Kan. 319, 322, 144 Pac. 209.) The mere custom of sending out notice and the requirement to send it, in this instance obeyed by the clerk, can not be deemed sufficient to operate as an amendment of the statute, or as an extension of the time fixed thereby, or as an estoppel upon the city which the plaintiffs can invoke. The amendment to the petition also alleged that after December 28, 1910, the plaintiffs received notice of additional assessments, as shown by exhibits B to L, inclusive, which were ordinances determining and ascertaining the assessments for certain lateral sewers. These ordinances appear to have all been passed either on January 3, 10, 11 or 24, 1911, and published January 6, 12 or 27, Nos. 3247 and 3248 being published January 27, two days after the suit was brought. As to the assessments made by ordinances Nos. 3244, 3233, 3234, 3235, 3236, 3245, 3237, 3238 and 3239, all published on January 6 or 12, the pleadings filed by the plaintiffs stated sufficient facts to constitute a cause of action. It is contended that as to Nos. 3247 and 3248, published two days after the suit was brought, the ^action was premature, and attention is called to Mason v. Independence, 61 Kan. 188, 59 Pac. 272, and Baldwin v. Neodesha, 83 Kan. 263, 111 Pac. 185. The first of these cases was decided before the enactment of the statute under which this suit was brought. (Laws 1905, ch. 113, § 1, Gen. Stat. 1909, § 1040.) The second involved assessments in a city of the second class, and the statute applicable is not mentioned. Here the provision is that an injunction may be had by “any person against whose property any . . . special assessment . . . may be levied or charged, or whose property or rights may to any extent be injuriously affected by any such illegal act threatened or’ about to be done by any city officer.” (§ 1040.) The petition alleged that the sewer had already been constructed, and “for the construction of said' main trunk sewer and the laterals herein mentioned, which at this time are not completed, the said commissioners of said city have agreed to pay many thousands of dollars.” The amendment avers, among other things, that various assessment ordinances had been published, including those now under consideration. The petition was filed January 25, 1911, the amended petition February 11, 1911, the amendment to the petition February 18,1911, and the supplemental petition March 28, 1911. An amended petition must usually be considered as of the date the original petition was filed. (Brown v. Galena Mining and Smelting Co., 32 Kan. 528, 4 Pac. 1013.) But a pleading must be j udged by what it is and not by what it is named, and the amendment to the petition in fact contained an averment of matters which had occurred since the filing of the original petition, and hence was in part a supplemental petition. Both by statute and by decisions a supplemental petition may set forth facts occurring subsequent to the filing of the original petition. (Civ. Code, § 145; Williams v. Moorehead & Knowles, 33 Kan. 609, 7 Pac. 226; Dreilling v. National Bank, 43 Kan. 197, 23 Pac. 94; Brown v. Stuart, 90 Kan. 302, 303, 133 Pac. 725.) It is urged that there was no evidence that any burden would be placed on the property of any of the plaintiffs to pay for the laterals referred to in ordinances Nos. 3247 and 3248 until the enactment thereof, to which it is replied that under the present statute an injunction will lie when any such burden is threatened or about to be imposed, and that in view of the ordinances and other acts of the city it was plain and clear that it was intended to levy the assessment for the two lateral sewers in question, and that such previous acts present clearly the situation contemplated by the statute. Prior to the enactment of this section it was the settled law of this state that injunction would not lie on account of mere threats or until steps were actually taken to impose the burden. (Bridge Company v. Comm’rs of Wyandotte Co., 10 Kan. 326; Troy v. Comm’rs of Doniphan Co., 32 Kan. 507, 4 Pac. 1009; Challiss v. City of Atchison, 39 Kan. 276, 18 Pac. 195; Andrews v. Love, 46 Kan. 264, 26 Pac. 746; Comm’rs of Seward Co. v. Stoufer, 47 Kan. 287, 27 Pac. 1000; Comm’rs of Barber Co. v. Smith, 48 Kan. 331, 29 Pac. 565; Hurd v. Railway Co., 73 Kan. 83, 84 Pac. 553.) Hence it is fairly concluded that by the language used by the legislature when the amendment of 1905 was made (Laws 1905, ch. 113, § 1, Gen. Stat. 1909, § 1040) it intended to permit such suits to be brought without waiting until the tax is actually levied when it can be shown that it was intended to be levied. “An injunction may be obtained to prevent an irreparable injury, even though no such injury has as yet occurred. If such injury is threatened or impending to property or property rights an injunction will be granted. The threatened injury must, however, be clearly impending, and it is generally not sufficient to show mere threats to do the thing sought to be enjoined; some overt act toward carrying out the threat must usually be shown. . . . There must be at least a reasonable probability that the injury will be done if no injunction is granted, and not a mere fear or apprehension.” (22 Cyc. 757, 758.) . It is argued that whatever causes of action may be shown by the pleadings, if any, are improperly joined, and it is suggested that each property owner affected by the assessment for each alley or lateral sewer is in no way affected by those whose property is assessed for a separate and distinct lateral, and that unless some of the plaintiffs own property in more than one of the blocks affected by these sewers they could not enjoin assessments of property owned by another plaintiff in another block. Section 88 of the civil code is invoked, which permits the plaintiff to unite several causes of action in the same petition, but requires that they must affect all the parties to the action except in actions to foreclose mortgages and other liens, and authorities in support' of the rule provided by this section are cited. In response to this counsel for the plaintiffs invokes section 1040 of the General Statutes of 1909, providing that in actions of this kind “any number of persons whose property or rights may be charged or affected injuriously by such threatened illegal or unauthorized act may join as parties in the application to obtain such injunction.” This clause follows the provision that any person against whose property any tax, special assessment or burden may be levied or whose property rights may be injuriously affected may enjoin. It is clear that if an assessment levied by one ordinance affected the property rights of numerous persons they could all join, although one had no interest in the property owned by another; but if all the special assessments are provided for by special ordinances, each affecting only the property of one of a number of persons, there is nothing in the section referred to which would appear to authorize a joinder of their causes of action. It is argued that the main sewer with the laterals constitute one scheme of public improvement, and that the district through which such system of sewers is to run should be regarded as similarly affected by an assessment of each or all of such sewers. If four property owners in four parts of the city remote from one another should unite to enjoin the levying of assessments for four separate sewers in their four neighborhoods, all such ordinances being void, it would not be for the protection of their property from “such threatened illegal or unauthorized act,” but from four separate, different and distinct illegal and unauthorized acts, in no one of which three of the plaintiffs could have any possible interest. And the fact that the construction of these various lateral sewers was provided for in the same ordinance which provided for the construction of the main sewer does not change or minimize the effect of levying the assessment for the different laterals at different times and by different ordinances. (Griffith v. Griffith, 71 Kan. 547, 81 Pac. 178.) It must be held, therefore, that in so far as the plaintiffs are separately affected by each of these lateral assessment ordinances, they must proceed without uniting with those not likewise affected. It is insisted that ordinance No. 3036 does not describe or circumscribe any certain territory of the city and does not bound anything and is “an absolute failure.” Whatever a study of the metes and bounds and lots and blocks set forth in this ordinance might show, it is unnecessary to enter upon it, for the reason that the statute of limitation relieves us from that burden. The pleadings taken together contain sufficient alie-; gation to warrant the introduction of evidence touching the property affected by the assessment ordinances for the lateral sewers, but on account of the misjoinder of causes of action the demurrer on that ground was improperly overruled. The demurrer on the ground that no cause of action was stated, which of course involves the thirty-day statute of limitation, was also improperly overruled, and the judgment is therefore reversed and the cause remanded for further proceedings in accordance herewith, including permission, on such terms as the court may deem proper, for the plaintiffs to plead further, if they so desire, in respect to the lateral sewer assessments.	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The opinion of the court was delivered by Mason, J.: The Chicago Lumber Company, a judgment creditor of Floyd C. Cox, brought an action seeking to subject to the payment of its claim real estate that had been deeded by Cox to his father-in-law, Henderson Long, upon the ground that the conveyance was made in fraud of creditors. A jury was impaneled which returned answers to special questions. Judgment was rendered for the plaintiff, and Cox and Long appeal. There was direct evidence against .Cox, by his own declarations, of his purpose to convey the property to his father-in-law for his own benefit, by reason of a threatened damage action, and of his treatment of it as his own after the execution of the deed. The principal controversy-is whether any competent evidence to show that Long participated in the design was in troduced. The jury found that at the time of the execution of the deed Cox was indebted to Long in the sum of $1895, but they did not find that it was made in satisfaction of this debt, and they did find that it was made for the purpose of defrauding Cox’s creditors. The evidence as to Long’s intention in the matter was necessarily circumstantial. His relationship to Cox is to be taken into account in interpreting his conduct. (20 Cyc. 201.) There .was evidence tending to show these facts: Prior to the execution of the deed to Long, Cox was negotiating with S. A. E. Moore for the sale of the property to him.' About the time that Long received the deed, by mail, he also received from Cox what he called a blank deed, but which appears to have been a deed to Moore, which he executed and returned. Cox and Moore continued their negotiations and entered into a written agreement by the terms of which in exchange for a deed to the property in question from Long, Moore was to convey some western Kansas land to Cox. The deal contemplated the delivery by Moore of a deed to some Topeka property, the name of the grantee being blank. The building on the property in controversy at the time of the negotiations contained planing-mill machinery, and the contract between Moore and Cox seemed to contemplate its inclusion in the deal. Long testified, that the deed to him excepted the machinery; that he understood Cox was keeping the machinery to put in a cheaper building; that he understood Moore was going, to rent it from Cox; and that he understood that Moore was to give Cox a mortgage on it. He testified that before the deed was made to him he advertised that he wanted to trade the property for farm property, and that “the object was to get shut of the mill, or the house, and get some money out of it and may be get a less place to live in or less place to run the mill.” He also tes-fied: “There was no reason against Mr. Cox deeding the property to Moore and Moore deeding to me or Mr. Cox deeding it direct. There was no reason why the deed was made to me at that time. He had promised to deed it to me for a good while and had not done it. I don’t know any reason why he could not have deeded the property directly to Mr. Moore, only he had promised to make it to me. Probably he thought he would do it in that way. The reason he made it that way is he promised to make it a good while before.” There was direct evidence that Cox regarded the conveyance to Long as a means of handling the property for his own benefit, and we think there was room for a reasonable inference that Long acquiesced in this view of the matter. Complaint is made of the admission of various items of evidence on the ground that while they might have been competent as to Cox, they were not so as to Long. If they were competent for any purpose no error was committed in admitting them. The objector’s remedy was to ask an instruction limiting their effect. (Sweet v. Savings Bank, 73 Kan. 47, 84 Pac. 542.) A special objection is made to rulings allowing evidence of declarations made by Cox after the execution of the deed to Long. The plaintiff contended that a design existed, common to Cox and Long, to delay and defraud creditors of Cox. If competent evidence was introduced tending to support that contention, the declaration of either relating to matters within, the scope of such design, during its pendency, was admissible against the other. (16 Cyc. 999.) The plaintiff sought the enforcement of two judgments, one rendered in its favor, and another which had been assigned to it by L. D. Roose. The defendants.object to proof of the assignment because it was not in writing. A transfer of a judgment may be effected by parol. (23 Cyc. 1416.) The judgments were rendered by a justice of fhe peace, abstracts being filed in the district court. The defendants objected to the admission of the abstracts on the ground that they had not been properly entered on the court dockets. The objection is untenable. The files of an action for damages growing out of personal injuries, brought after the execution of the Long deed, were admitted. This and other evidence regarding the damage claim was pertinent as tending to show that the bringing of the action may have been anticipated. An attorney who acted for Cox and Moore in the preparation of a contract regarding the property in question was permitted to testify concerning their conversation. This was proper within the rule that communications under such circumstances are not privileged. (Black v. Funk, 93 Kan. 60, 143 Pac. 426; Sparks v. Sparks, 51 Kan. 195, 32 Pac. 892; 4 Wigmore on Evidence, § 2297.) Long was called as a witness by the plaintiff: and asked a number of questions which were objected to on the ground that they amounted to cross-examination. No error was committed in this connection. The record shows that Cox was asked whether he was indebted to the plaintiff and Roose on the 28th of April, 1913, and answered that he was. The deed to Long was made on the 24th of April, 1913, and the defendants maintain that there is no evidence that the indebtedness referred to had then accrued. The 28th of April marked no step in the transactions involved. The questioner obviously intended to name the day on which the deed was made. No'suggestion is made that in fact credit was extended to Cox after the 24th and the discrepancy in dates is not material. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: 'The Warren Mortgage Company brought an action to enforce a lien against a tract of land, the •validity of which was denied by Roy Leben and S. B. Leben. The plaintiff recovered judgment, and the Lebens appeal. The principal question presented is whether the findings (only one of which is challenged as having no support whatever in the evidence) justify the judgment rendered. The matters shown by the findings will be spoken of as the established facts. In the following statement the December dates are in 1911 and the others in 1912. On December 1 the land involved was owfed by B. F. M. Klump and Lee Ward, who about that time gave B. M. LeGrande an option to purchase it,' expiring March 1. A few days later- LeGrande applied to the mortgage company for a loan of $3000 on the land, representing that Thomas F. Winters, his adopted son, was buying it. On December 25 the company’s agent advised LeGrande -that it would lend $2800 on the property. On the same day Winters made a formal application for the loan, which the company accepted January 4, subject to the approval of the title. On December 21 LeGrande entered into a written contract with S. B. Leben to exchange the land and $500 for a stock of goods, which recited that the deed was to be received subject to a mortgage for $3000 to run seven years at seven per cent interest. Leben knew that the mortgage referred to had not been made, but that it had been applied for and that the negotiations were pending. The contract concluded: “This bill of sale or a copy is to be put up with the deed to be held in Escrow with J. Gardner until the abstract is brought up to date, and until a sufficient time is given to show the goods are all clear of debt.” On the same day the stock of goods was delivered to LeGrande, who had learned that it was clear of debt. LeGrande and S. B. Leben agreed that the deed should be made to the latter’s brother, Roy Leben. A deed from Winters to Roy Leben (intended to cover the land, but by a defective description omitting eleven acres of it) with a check for the $500, was placed in the hands of Gardner, it being the intention of all the parties that they were not to be delivered until the mortgage should be recorded and noted on the abstract of title. The warranty clause was followed by the words “except a mortgage for three thousand dollars.” Roy Leben knew all about the transaction. The title to the land was still in Klump and Ward. The purpose of the loan was to pay the balance of the purchase price to them. They executed a deed to Winters, which was placed in a bank to be delivered on the payment of the price. On February 12 Gardner and the Lebens, in violation of the agreement, delivered the deed to Roy Leben, and it was recorded on that day, all without the knowledge or consent of LeGrande, Winters or the mortgage company. The mortgage company intended to place the loan with the Merchants Loan & Trust Company, for which it acted as agent, and the papers were made out in that name. As they were later assigned to the plain-tiif, further reference to the Merchants company will be omitted. On February 16 Winters executed a mortgage for $2800, due in seven years, bearing 5% per cent interest, and a commission (or interest) mortgage for $294, due in seven years, bearing interest at ten per cent after maturity. The mortgages were recorded May 10. On March 4 the mortgage company paid the amount of the loan ($2795 — a deduction of $5 being made for abstract and recording fees) to the banker who held the deed to Winters, and it was applied on the purchase price to Klump and Ward. This left a balance of $200, which was furnished by S. N. Brees, who had been acting as the agent of LeGrande, on his promise that a second mortgage should be executed to secure its repayment, and the banker continued to hold the deed as security for this agreement. On April 29 Brees orally assigned his claim to the company, for $200, and it received the deed to hold as security for the execution of the second mortgage. On the same day Roy Leben orally promised to give the company a mortgage on the property for $3000, due in seven years, bearing seven per cent interest, and the company agreed upon the execution of such mortgage to deliver the deed to Winters. On April 22 Roy Leben had agreed with the company that he would make a deed back to Winters for the tract described in the deed to him, and that Winters should then execute the $3000 mortgage and reconvey to him the entire tract, including the part inadvertently omitted in the first deed. This arrangement failed because Winters at the time refused to make a new deed. The interests of the two Lebens are substantially the same, as are those of LeGrande and Winters, and for the purpose of an abbreviated statement the acts of S. B. Leben may be regarded as those of Roy Leben, and the acts of LeGrande as those of Winters. The situation then presented is substantially this: Winters had an option on the land. He contracted for its sale to Leben subject to a mortgage for $3000, for which he was negotiating. He received his payment and placed a deed to Leben with Gardner to hold until the mortgage should be of record and shown upon the abstract. Gardner delivered the deed before this condition was fulfilled. Winters obtained $2800, which he applied to the payment of the purchase price, by giving a mortgage for the money lent him for that purpose. This left $200 to be paid before he could obtain his deed. He procured this by a promise to make a second mortgage for the amount, and the undelivered deed was held as security for the performance of the agreement. As against Winters the mortgage company has a legal mortgage for $2800, and a claim for $200 which is secured by the deed which it still holds, and which has not been delivered to the grantee. This is '-not the case of an attempt to create a mortgage by the deposit of the title deeds — conveyances which have become effective by delivery. It is the retention of an undelivered deed as security for the purchase price by one who stands in the attitude of the unpaid vendor.^ Leben has no interest which can conflict with that of the mortgagee. The deed to him conveyed nothing, because it was not legally delivered, and because at the time of its manual delivery, Winters had no title to convey. The execution and delivery of a warranty deed by Winters before he himself had a title would have bound him personally, and by equitable estoppel as well as by the statute any title which he afterwards •obtained would have inured to the benefit of .the grantee. But by this principle, Leben could only get from Winters what Winters himself obtained, and Winters never did for a single instant have title to the property save in subjection to the mortgage. The mortgage was essentially — in view of the relations of all the parties — one for purchase money. One who executes a purchase-money mortgage is not regarded as obtaining the title and then placing an incumbrance on it. He is deemed to take the title charged with the incumbrance, which has priority even over preexisting claims. And a mortgage given to a third person to obtain the money used in buying the property is entitled to the same preference. “The priority of the purchase-money mortgage to •other liens created before the execution of the mortgage rests upon the doctrine that the deed from the vendor and the mortgage by the vendee are parts of one single and entire transaction; Because the seizin of the vendee is thus instantaneous, the title to the land does not for a single moment rest in him, but merely passes through him and vests in the mortgagee without stopping beneficially in the purchaser,. a,nd during such instantaneous passage the prior lien cannot attach to the title.” (23 A. & E. Encycl. of L. 470.) “A mortgage given for the unpaid balance of purchase-money on a sale of land, simultaneously with a deed of the same and as a part of the same transaction, takes precedence of prior j udgments and all other existing and subsequent claims and liens of every kind against the mortgagor, to the extent of thé land sold.”' (27 Cyc. 1180.) “As a general rule, a mortgage given to secure purchase money is none the less a purchase-money mortgage because executed to one who lends the purchase money rather than to the vendor of the property.” (23 A. & E. Encycl. of L. 466.) “Where a purchaser of land, at the same time he receives a conveyance, executes a mortgage to a third person, who advances the purchase-money for him, such mortgage is entitled to the same preference over other liens existing against the mortgagor as it would have had if it had been made to the vendor himself.” (27 Cyc. 1182.) The finding which is attacked as without support in the evidence is to the effect that the deed was delivered, to Leben before LeGrande had time to have the abstracts brought down to date. The court also found that the. parties contemplated that the mortgage should be shown on the abstract, and in this view the finding as to insufficient time was well founded. Complaint is made of tfie rejection of evidence offered by the Lebens, chiefly relating to their information regarding the land. The rejected evidence has been examined and is not regarded as affecting the vital questions by which the controversy is to be determined. The court found that LeGrande had not been guilty of any fraud or misrepresentation in the deal with the Lebens. The appellants also contend that they should have been allowed a jury trial on the ground that the essential matter in controversy is the title to the real estate. It is conceded that Park v. Busenbark, 59 Kan. 65, 51 Pac. 907, 'is against the contention, but we are asked to review that decision. We think the present case falls in the class of those in which a jury trial is not a matter of right. The j udgment is affirmed. ■	[ -11, 118, -4, -83, 26, 96, 42, -6, 72, -128, 39, 123, -19, -62, 4, 101, -62, 109, 68, 106, -43, -77, 23, -117, -46, -13, -39, -51, 53, 109, 52, 86, 13, 32, -62, -107, -26, 42, -57, 80, -114, -123, -98, 71, -39, 80, 52, 27, 112, 76, 21, -98, -13, 44, 29, -50, 41, 40, -37, 57, -112, -8, -69, -121, 127, 19, -111, 101, -72, 35, 120, -114, -112, 113, -127, -24, 122, -74, -106, 116, 65, -103, 41, 38, 103, 1, 69, -17, -8, -104, 47, 86, 13, -90, -110, 88, -94, 104, -66, -99, 116, 80, 38, -2, -20, 21, 29, 100, 15, -113, -42, -63, -115, 124, -104, 8, -10, -125, 49, 112, -49, -88, 93, 98, 90, 27, -113, -71 ]
The opinion of the court was delivered by West, J.: The defendant appeals from an order sustaining a demurrer to his answer to a bill of particulars setting out a judgment recovered by the plaintiff against the defendant in the county court of Kay county, Oklahoma. The defendant and the Tonkawa Milling* Company were sued jointly in that court, but no service was had on the milling company, and the defendant defaulted, and the judgment was taken against him for $315.15 and costs, upon which judgment suit was brought in the city court of Wichita, and judgment rendered thereon, and the cause appealed to the district court, where an answer was filed denying that the judgment was ever rendered, alleging that a summons was served upon the defendant in an action pending in some court in Oklahoma in which the present plaintiff was plaintiff; that D. J. Donohue was a member and manager of the plaintiff partnership; that at the time the summons was served upon the defendant he and Donohue were contemplating a business trip to Washington; that the defendant talked with Donohue over the telephone and said that he could not take the trip because he had been served with a summons; that thereafter Donohue, for and on béhalf of the plaintiff, agreed with the defendant that the cause should be continued; that subsequently the journey was made, during which the defendant explained to Dono-hue that he was not indebted to the plaintiff, and Donohue “agreed that the said action would not be pushed as against this defendant, but that the same would be dismissed as to this defendant, and this defendant relied upon the said agreement made with said Donohue and paid no more attention to the said summons or the action in which the same had been issued.” ■Further, that the defendant was not indebted to the plaintiff, and that but for the arrangement with Dono-hue he would have appeared in the action and made his defense, and shown and proved that he was not indebted to the plaintiff in any sum; that if the judgment set out was rendered in the action mentioned it was in violation of the agreement and the defendant was deterred from making his defense by reason of the promise and representations of Donohue, and “by reason of the-facts set forth, such judgment, if it has been rendered, was obtained by the fraud and misrepresentations of the plaintiff as aforesaid.” The defendant prayed judgment for costs and that the plaintiff be enjoined from bringing any proceedings for collection of the judgment, if any had been rendered, and for such other and further relief as might be just and proper. ■ It is asserted by the defendant that the answer stated a good defense. Assuming, without deciding, "that it amounted to a direct attack upon the judgment, it is nevertheless apparent from the answer that the Oklahoma court issued a summons which was in fact served upon the defendant and that he made default, •and it must be presumed that the court had full and •complete jurisdiction to render the judgment which it did render. It is also apparent that the fraud sought to be charged against the plaintiff partnership consisted of an agreement by its managing member first to continue "the cause and later to have it dismissed. No time is mentioned when such dismissal was to take place or to ■which such continuance was to be had, and taking thé allegations as strongly as their language will permit they amount to a confession that the defendant paid no further attention to the cause in which he had been served with a summons, and now seeks to avoid liability because of the failure of the plaintiff’s managing member to continue or dismiss. If this be fraud it is certainly not such as impairs the jurisdiction of the court, and hence the judgment is not void but is at most only voidable. (Simpson v. Kimberlin, 12 Kan. 579; Carter v. Hyatt, 76 Kan. 304, 308, 91 Pac. 61.) The real situation is that of a judgment procured by the fraud of the prevailing party if it be conceded that, the conduct complained of amounted to fraud. The civil code provides the method and means for vacating a judgment for fraud practiced by the successful party in obtaining it, which is by petition verified by affidivit, filed in the court which rendered such judgment. (Civ. Code, §§ 596, 599; Mulvaney v. Lovejoy, 37 Kan. 305, 15 Pac. 181; Vail v. School District, 86 Kan. 808, 122 Pac. 885; The State v. Soffietti, 90 Kan. 742, 136 Pac. 260.) When the attack is made by answer such pleading must contain all that would be-required in a petition filed for that purpose. (Simpson v. Kimberlin, 12 Kan. 579, 589.) While probably the statutory method does not supersede a suit in equity in the proper court to enjoin the enforcement of a judgment procured by fraud which does not inhere in the judgment (List v. Jockheck, 45 Kan. 748, 27 Pac. 184; Bleakley v. Barclay, 75 Kan. 462, 469, 89 Pac. 906; Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 735, 106 Pac. 1079), still the city court in which this action was brought has no power to vacate judgments or to enjoin their enforcement (Shaw v. Rowland, 32 Kan. 154, 4 Pac. 146; Laws 1899, ch. 130), and as the district court in trying the cause on appeal was sitting as a city court it had no jurisdiction to prevent the enforcement of the judgment by injunction (Sanford v. Shepard, 14 Kan. 228; Stanley v. Farmers’ Bank, 17 Kan. 592; Kuhuke v. Wright, 22 Kan. 464; Robbins v. Sackett, 23 Kan. 301; Zeigler v. Osborn, 23 Kan. 464; Wagstaff v. Challiss, 29 Kan. 505; Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. 931; Merywethers v. Youmans, 81 Kan. 309, 105 Pac. 545; The State v. Linderholm, 84 Kan. 603, 114 Pac. 857). And likewise it was powerless to set the judgment aside. (Shaw v. Rowland, 32 Kan. 154, 157, 158, 4 Pac. 146.) While this point was not presented by either party it is one vital to the appeal, as it goes to the jurisdiction of the trial court, and hence must be considered. It follows that many interesting questions argued orally and in the briefs are rendered academic and their decision becomes unnecessary. The judgment is affirmed.	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The opinion of the court was delivered by West, J.: Mary Turner, a girl fifteen years of age, by her father and next friend, alleges that she is restrained of her liberty by certain officers of Shawnee county, acting under color of authority from the probate court, who are unlawfully holding and imprisoning her “solely under and by virtue of'an insufficient complaint and void' warrant, and under a void order and commitment committing said Mary Turner to the Industrial School for Girls at Beloit”; that she was arrested upon a warrant issued upon a complaint which charged no crime warranting her arrest and was not positively verified; that no summons was issued to her or either of her parents, neither of whom voluntarily appeared; that the evidence taken upon the hearing was insufficient to show probable cause of the commission of any crime to warrant her commitment to the school named. The exhibits attached to the petition together with the return of the matron of the county jail show that a probation officer filed a complaint verified on information and belief that Mary Turner did on or about the-day of the -month of 1914 violate the laws of the state and the ordinances of the city of Topeka, and did then and there unlawfully remain out late at night; that she is incorrigible and knowingly associates with thieves, and vicious and immoral persons, and is growing up in idleness and crime. Upon this complaint a warrant was issued by the judge of. the juvenile court commanding the matron to arrest Mary Turner and bring her before the judge at his office, then and there to abide the order of the court in the premises. After the hearing a final order was made setting forth that it was found by the court “that the above named child was a delinquent child and is incorrigible; that said child knowingly associates with immoral persons, and is growing up in idleness and crime; that said child violated the ordinances of the city of Topeka by carrying what is commonly known as knucks.” Also, “that said child knowingly and willfully violated the ordinances of the city of Topeka by remaining out until late hours of the night.” And it was ordered that she be committed and delivered to the superintendent of the Industrial School for Girls at Beloit, there to be safely kept under the direction and control of the authorities having charge of such institution until discharged according to law. In the paper called “Commitment to Industrial Schools” it is recited that the petition and complaint coming on to be heard Mary Turner and her parents and the probation officer were present in court and it was found that due and legal notice had been given to the probation officer, “Mr. and Mi's. Pete Turner having appeared voluntarily upon service of the warrant on said child.” The transcript of the evidence shows abundant ground for the finding already mentioned touching the delinquency and conduct of the child. The probation officer testified that he informed the judge “that she would not be here for trial if we did not take her into custody.” The copy of the warrant attached to the petition accords with the allegation of the latter, that the girl was imprisoned and deprived of her liberty solely upon a warrant based upon a complaint verified on information and belief. It must be taken as true, therefore, that while the parents appeared without service of process upon them, the daughter was taken into custody by the probation officer on the strength of the warrant based upon the complaint, both of which have already been described. It must also be taken as true that the intention of the officers is to place the child in the industrial school as indicated. Section 8680 of the General Statutes of 1909, enacted in 1889, provides that probate courts shall have power, to commit to the school in question: “Third, any girl under sixteen years of age who is incorrigible and habitually disregards the commands of her father, mother or guardian, and who leads a vagrant life, or resorts to immoral places or practices, and neglects or refuses to perform labor suitable to her years and condition, and to attend school.” The only other grounds applicable are liability to punishment by imprisonment under any existing law of the state. Section 2782 makes it a misdemeanor punishable by fine or imprisonment or both to carry on one’s person knucks in a concealed .manner. But there is no evidence whatever that Mary Turner made any attempt at concealment of the knucks carried by her, hence the only ground of the section in question which applies is the third already quoted. This section further provides that before such girl shall be committed the probate court shall cause a complaint to be filed setting forth the charges complained of in writing, and before he shall investigate such charges shall give at least five days’ notice to all persons interested in the filing of such complaint. Section 1 of the juvenile court act passed in 1905 (Laws 1905, ch. 190, Gen. Stat. 1909, §§ 5099-5118) provides that the probate judge shall be in charge of the juvenile court, which shall have authority among other things, to issue all process necessary in any case “the same as justices of the peace are authorized to do in misdemeanors.” All writs and process are to be served by the probation officer. Section 2 defines a “delinquent child” as one who, among other things, is incorrigible or knowingly associates with thieves, vicious or immoral persons, or is growing up in idleness or crime. Section 3 provides that any probation officer may, without warrant or' other process, at any time until the final disposition of the case of any child over whom the court shall have jurisdiction, take the child placed in his care by the court and bring the child before the court, “or the court may issue a warrant for the arrest of any such child; and the court may thereupon proceed to sentence or make such other disposition of the case as he may deem best.” Section 4 authorizes a petition in writing when filed to be verified upon information and belief. Section 5 requires that unless the parties voluntarily appear in court, it shall issue summons requiring the child and the persons having custody thereof to appear. If the person so summoned fails, without reasonable cause, to appear and abide the order of the court or to bring the child, he may be proceeded against for contempt, or a warrant be issued against such person “or against the child itself.” Section 12 provides for an appeal from the order of commitment upon the demand of the child’s parent, guardian, custodian, or any relation within the third degree of kinship. Section 14 places all punishments and penalties imposed by law upon persons for the commission of offenses against the laws of the state or ordinances of a city by delinquent children under sixteen within the discretion of the juvenile court. Section 15 expressly provides: “And in no case shall any proceedings, order or judgment of the juvenile court in cases coming within the purview of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state.” At first blush the claim of the petitioner, that his daughter is unlawfully restrained and was unlawfully arrested, appeals strongly to one’s sense of liberty, but a close examination into the matter discloses that the juvenile court, while a modern institution, is provided for in numerous acts which have been before the courts for interpretation. In a general way, it may be said that these statutes, instead of attempting to punish juvenile offenders for misconduct, criminal or otherwise, try to remove them from the path of temptation, and by preventive and corrective means seek to direct them in the paths of rectitude. It is an assertion upon the part of the state of its right to exercise its power as parens patries for the welfare of such of its minor citizens as are deprived of proper parental control and oversight, and are disposed to go wrong. These words, meaning “Father of his country,” were applied originally to the king, and are used to designate the state, referring to its sovereign power of guardianship over persons under disability. When this country achieved its independence, the prerogatives of the crown devolved upon the people -of the states. “The sovereign will is made known to us by legislative enactment. The state, as a sovereign, is the parens 'patrise. . . . The courts of the United States can not exercise any equity powers, except those conferred by acts of congress, and those judicial powers which the high court of chancery in England, acting under its judicial capacity as a court of equity, possessed and exercised, at the time of the formation of the constitution of the United States.” (Fontain v. Ravenel, 58 U. S. 369, 384, 15 L. Ed. 80.) In the case cited Mr. Chief Justice Taney, in a concurring opinion, said: “And the chancery jurisdiction of the courts of the United States, as granted by the constitution, extends only to cases over which the court of chancery had jurisdiction, in its judicial character as a court of equity. The wide discretionary power which the chancellor of England exercised over infants, lunatics, or idiots, or charities, has not been conferred. These prerogative powers, which belong to the sovereign as parens patrise, remain with the States.” (p. 393.) While the old Spartan theory that the child and the citizen are for the state has been reversed by our civilization, which regards the state as an institution for the good of the child and the citizen, still the state as parens patrise may exercise over the child parental care and authority in order that he may receive the highest good from the state and achieve the best results for himself thus guarded and directed in youth. As said in Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N. W. 422: “Every statute which is designed to give protection, care, and training to children, as a needed substitute for parental authority and performance of parental duty, is but a recognition of the duty of the state, as the legitimate guardian and protector of children where other guardianship fails. No constitutional right is violated, but one of the most important duties which organized society owes to its helpless members is performed just in the measure that the law is framed with wisdom and is carefully administered.” (p. 665.) The authorities are nearly all to the effect that statutes of this kind are parental rather than criminal, so that a jury may not be demanded as a matter of constitutional right. This, together with the express declaration of the closing section, that all proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state, makes it clear that neither the' stigma nor the penalty of crime should be held to accompany the proceeding and order in this case. The following are among the numerous authorities touching the interpretation and effect of similar statutes: Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N. W. 422; Commonwealth v. Fisher, Appellant, 213 Pa. St. 48, 62 Atl. 198, 5 Ann. Cas. 92, and Note, 96; Ex parte Januszewski, 196 Fed. 123; In re Sharp, 15 Idaho, 120, 96 Pac. 563, 18 L. R. A., n. s., 886, and Note; Lindsey v. Lindsey, 257 Ill. 328, 100 N. E. 892, 45 L. R. A., n. s., 908, and Note; Hunt v. Wayne Circuit Judges, 142 Mich. 93, 105 N. W. 531, 7 Ann. Cas. 821, and Note, 831, 3 L. R. A., n. s., 564, and Note; Pugh v. Bowden, 54 Fla. 302, 45 South. 499, 14 Ann. Cas. 816, and Note, 819 ; 1 Wharton’s Criminal Law, 11th ed., §§ 368-375. The state had the same right to bring Mary Turner before the juvenile court that her parents had, and when once there by proper compulsion of either sort of parental authority the court had jurisdiction to proceed as it did. Finding in the record no infringement upon her legal and constitutional rights the petition for her discharge is denied.	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The opinion of the court was delivered by Mason, J.: A defendant, after the impaneling of a jury, objected to the introduction of any evidence, on the ground that the petition failed to state a cause of action. The objection was sustained, and the plaintiff appeals. The petition was filed May 21,1913, and alleged substantially these facts: The defendant represented to the plaintiff that the defendant, and his father and brother, were interested in a certain corporation to the amount of $30,000; that the company was offering its preferred stock for $100 a share, which at that figure was a safe and profitable investment. These representations were false, and were made to defraud the plaintiff by inducing him to purchase stock of the company through the defendant. The plaintiff relied on the representations and authorized the defendant to buy for him, from the company, twenty-eight shares of its capital stock, giving him $2800 for that purpose, $800 in 1904 and $2000 in June, 1907. The defendant converted the money to his own use, procured from other sources twenty-eight shares of stock which had been previously issued, and delivered them to the plaintiff under the representation that he had purchased them from the corporation. The defendant and his father and brother were not interested in the company to the extent of $30,000. The company was offering its stock on more favorable terms than $100 a share. The stock delivered to the plaintiff was of no value. The plaintiff first became aware of the actual facts about May 1, 1912. He offered to restore the stock he had received, to the defendant, and demanded the return of the money he had paid him, less the dividends paid on the stock. He asked judgment for $2800, less the sum of $140, which he had received as dividends on the stock first delivered. The defendant describes the action as one for the rescission of a contract of sale and the recovery of the purchase price, and contends that it can not be maintained, because the owners of the stock, from whom the defendant procured it, are not made parties. The plaintiff, however, does not' attempt to state a cause of action against the original owners of the stock, who may have acted in entire good faith, so far as appears from the pleading. Giving the petition the liberal construction to which it is entitled when attacked in the manner indicated, it may be regarded as stating a cause of action for damages resulting from the fraudulent representations of the defendant. It does not use the word “damages,” but it contains allegations that the defendant, by false representations, induced the plaintiff to pay twenty-eight hundred dollars, for which he received stock having no value. Such conduct, irrespective of any profit to the defendant, would render him liable for the amount of the plaintiff’s loss. (Hewey v. Fouts, 92 Kan. 268, 140 Pac. 894.) The plaintiff, however, contends that he may recover the amount paid to the defendant upon the ground that it was received and used by an agent in fraud of the rights of his principal, and we think the contention must be sustained. “The relation of an agent to his principal is ordinarily that of a fiduciary, and as such it is his duty to act with entire good faith and loyalty for the furtherance and advancement of the interests of his principal in all dealings concerning or affecting the subject-matter of his agency, and if he fails to do so he is responsible to his principal for any loss resulting therefrom, or the principal may repudiate the acts of the agent and recover back any money or property paid him.” (31 Cyc. 1430.) (See, also, Guernsey v. Davis, 67 Kan. 378, 73 Pac. 101; Sterling v. Smith, 97 Cal. 343, 32 Pac. 320; Whitehead v. Lynn, 20 Colo. App. 51, 76 Pac. 1119; Miller v. Wright et al., 109 N. Y. 194, 16 N. E. 205; Marvin v. Buchanan, 62 Barb. [N. Y. Supr. Ct.] 468.) To avoid the bar of the statute of limitations the plaintiff relies upon allegations in the petition that on or about May 1, 1912, he “for the first time discovered and became aware of the actual facts in regard thereto, and that the statements and representations of the defendant as hereinbefore set forth were false.” The defendant maintains that these allegations are insufficient because they refer to the time when the plaintiff received actual knowledge of the facts, as distinguished from constructive notice, through such information as to put him on inquiry, which would be suf ficient to interrupt the running of the statute. The language of the code is that “the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” (Civ. Code, § 17, subdiv. 3.) To name a certain date as that on which the plaintiff for the first time discovered the actual facts and the falsity of the representations relied upon, is essentially to plead that the fraud was then discovered, and should be regarded as negativing any earlier notice, actual or constructive, unless upon a motion directly challenging the language for uncertainty. The judgment is reversed and the cause remanded for further proceedings.	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The opinion of the court was delivered by West, J.: The plaintiff, a broom-corn company, sued the defendant, a warehouse company, to recover a balance alleged to be due by reason of certain contracts and dealings between the parties touching the purchase and handling of broom corn. There was a counter claim. The defendant recovered. The plaintiff appeals, and complains of error in the admission and exclusion of evidence and in refusing and giving instructions. The evidence rejected consisted 'mainly of letters offered on cross-examination and in rebuttal, which letters were from the defendant to the plaintiff discussing various phases of the broom-corn market, and from the plaintiff to the defendant touching the same matter. In the contract set out in “Exhibit B” it was agreed that the warehouse company should have pay for certain broom corn mentioned therein, and that the remainder should be shipped to defendant’s warehouse for storage, “American Warehouse Company to have the privilege of selling on commission of $5 per ton. Prices to be made by Louisville Broom Works.” Much of the controversy centered around the question whether or not the failure to sell was the fault of the defendant or attributable to the failure of the plaintiff to fix prices, and the correspondence referred to appears to have been largely in reference to the advisability of selling at the prices as they ranged from time to time during the period covered by these letters. While we see no sufficient ground for rejecting this correspondence, still the record shows that the entire matter was quite thoroughly gone over by members and representatives of the two corporations, so that the jury had before them the respective claims and contentions of each party as stated upon the stand by its witnesses, and as the oral testimony, like the rejected letters, was conflicting, so that either view taken by the jury would be well supported, it is impossible to see how any real prejudice resulted from the refusal to receive in evidence this correspondence. When “Exhibit 0” was offered, the court, in sustaining an objection thereto, said: “So far the evidence fails to show that the Louisville Broom Works had given the American Warehouse Company any prices at which to sell, consequently they could n’t do anything no matter what the condition of the market was.” This exhibit was, in effect, quite similar to the other rejected letters, practically all of which were at the most only cumulative to the abundant and similarly conflicting oral testimony. It is contended by the defendant that even if error was committed the letters offered and refused were not produced upon the hearing on motion for a new trial as required by section 307 of the civil code. The abstract recites that it was “agreed that the record should show and that it should be considered that on the hearing of the motion for a new trial all letters and evidence which was offered at said trial and ob jections made and sustained should be considered as offered on the motion, and should be considered by the court on the hearing of the motion for a new trial.” It is plain that this is not a compliance with the code requirement that “such evidence shall be produced at the hearing of the motion by affidavit, deposition or oral testimony of the witnesses, and the opposing party may rebut the same in like manner.” (Civ. Code, •§ 307; New v. Smith, ante, p. 6, 145 Pac. 880, and cases there cited.) Assuming, without deciding, that this stipulation did not amount to a waiver of the statute or properly supersede its requirement, still, as already indicated, had the correspondence in question all been admitted it does not appear that the result would or should have been changed. Certain telegrams were received in evidence over the objections of the plaintiff, but if they had any bearing on the issues it was without harm to either party. An account forwarded by the defendant February 7, 1912, including the $939.63 charge was offered, doubtless to show that the plaintiff’s attention was then called thereto in which there was no material error. The only items in dispute requiring notiee were those of the plaintiff for $250.06, previously paid by way of commissions, a $40 item composed of advances made to growers of broom corn binding bargains when their crops were purchased, and the claim of the defendant for $939.63. The defendant insists that the record fails to show that the com on which the items making up the $40 were advanced was ever delivered to the defendant, and the counter-abstract so states, and we do not observe that such statement is challenged. As to the $250.06 item, while it is called commissions in the account, it is shown by the testimony to have been an estimate of the expenses included in buying broom corn. Some of the defendant’s employees were on salaries and others on commissions differing in amount, and considering such sal aries and commissions and the expenses while out making purchases the defendant deemed the charge reasonable, and this view appears to have been taken by the jury, and it was fairly supported by the evidence. The remaining item depends-on the location of the fault for not selling the broom corn stored in the defendant’s warehouse. The plaintiff insists that the defendant failed to heed its request to sell and therefore was responsible for its own failure to earn commissions, while the defendant contends that it could not sell until the plaintiff fixed a price in accordance with the terms of the contract and that no price was fixed although requested by the defendant, hence the fault lay entirely, with the plaintiff. But the testimony on this point was such as to support a finding either way, and. hence it can not be said that the conclusion reached by the jury should be set aside. It is argued that the matter of fixing a price was optional rather than compulsory. But the agreement of October 11, among other things, covered various items including the cancellation of an order previously given for fifty cars of broom corn, the payment for ten other cars, and the following: ■ “The balance of the Broom Corn from Shattuck purchased by Adams and Louisville Broom Works to be shipped to Wichita and placed in American Warehouse Company’s warehouses for storage. American Warehouse Company to have privilege of selling on Commission of $5.00 per ton. Prices to be made by Louisville Broom Works.” The language imports a binding agreement that the plaintiff should fix prices at which the defendant could sell for a commission of $5 a ton. It was not a mere agency or option, but what its plain language clearly indicates. The fluctuation of prices and the state of the market were matters on which both parties took their chances, and against which they failed to provide when they settled on the terms of their contract. It is suggested that the plaintiff might have fixed a price impossible to be procured, but while such a contingency has not arisen it may be said that the law presumes that parties to contracts will act, not unreasonably, but reasonably and in good faith. The jury were instructed that if the plaintiff paid the $250.06 knowing that it was embraced in a joint account rendered by the defendant, and made no complaint for an unreasonable length of time after knowing the facts in reference thereto, then such conduct might be considered in determining whether or not such charge was reasonable — what was an unreasonable time being for the jury to determine from the evidence. Surely the plaintiff has no ground for complaint of this instruction. Another is criticised for its recognition that if the $500.12 called commissions was really for reasonable expenses incurred it was a proper charge against the two parties in their joint account, and it is said that the defendant was under contract to place this corn in the warehouse at its own expense. But that portion of the October 11 contract reads as follows: “The American Warehouse Company is to also place 10 cars more of broom corn in warehouse to be paid for; % by Louisville Broom Works and % by American Warehouse Company and to be handled on joint account profits or losses to be divided equally.” The 10th instruction was to the effect that if the plaintiff failed to fix a price and prevented the defendant from selling and earning its commission the latter could receive $5 a ton less whatever its expenses would have been if permitted to sell. Agreeing^ as we do with the trial court in the construction of the contract, we agree also with the rule announced in this instruction. We have painstakingly examined and considered every point raised, and while the record presents the usual conflict'in evidence and contrast in contentions it does not disclose any error materially prejudicial to the plaintiff. The judgment is therefore affirmed.	[ -78, -8, -19, -115, 10, 96, 42, -70, 69, -95, 39, 119, -19, -42, 24, 113, -9, 29, -48, 106, -42, -121, 19, 99, -46, -45, -77, -35, 49, -17, -27, 92, 76, 60, -62, -43, -26, -64, 67, 22, -50, 5, 57, -24, -3, 80, 52, 58, 116, 75, 81, -100, -13, 36, 28, -61, 107, 40, 107, 57, -16, -8, 42, -113, 85, 6, -110, 54, -100, 37, -38, 30, -112, 49, 1, -32, 115, -74, -122, 116, 41, -103, 8, 98, 99, 1, 5, -81, 24, -72, 38, -33, -113, -90, -48, 88, 11, 97, -66, -99, 112, 18, -90, -2, -2, 29, 31, 108, 7, -113, -110, -93, 63, 44, -100, 95, -21, -93, 18, 81, -51, -88, 93, 5, 26, -101, -114, -48 ]
The opinion of the court was delivered by Dawson, J.: The Baxter Telephone Company is a Kansas corporation, which for several years past has enjoyed a franchise from the city of Baxter Springs, a city of the second class, in Cherokee county, Kansas. This franchise authorizes it to exercise its corporate rights in the streets and alleys of the municipality, which rights include the maintenance of a telephone exchange and the proper cables, poles, wires and other equipment pertinent to the telephone business. This company was lawfully exercising these privileges prior to the enactment of the public utilities law of 1911, and since its enactment that company has complied with its provisions and has duly and regularly made its report to the public utilities commission. The Cherokee County Mutual Telephone Association is an unincorporated association of persons and local telephone companies for the mutual exchange of telephone messages in Cherokee county, and to some extent it provides for long-distance connection and toll-line service to points in northern Kansas, and to Missouri and Oklahoma. Baxter Local No. 121 of The Cherokee County Mutual Telephone Association is a voluntary telephone association of twenty-six persons residing in and about Baxter Springs and is organized for the purpose of giving mutual telephone service to its membership. It contemplates an affiliation with The Cherokee County Mutual Telephone Association upon an understanding that when it is ready and fully equipped for business it may become a member of The Cherokee County Mutual Telephone Association for the interchange and transmission of messages. On July 3, 1913, the city of Baxter Springs published an ordinance granting a franchise to Baxter Local No. 121,- to operate a telephone exchange and to use the streets and alleys of the city for its telephone business; and pursuant thereto, and without any license under section 31 of chapter 238 of the Laws of 1911, from the public utilities commission, Baxter Local No. 121 set about the establishment of its local exchange and telephone system within the city limits. Thereupon The Baxter Telephone Company, the established corporation engaged in the telephone business in Baxter Springs, brought suit against The Cherokee County Mutual Telephone Association and Baxter Local No. 121, and certain of the officers and members of those voluntary associations as representatives of their whole memberships, alleging that the plaintiff corporation was serving the public in the city with efficient and sufficient service on reasonable and satisfactory terms, and that it had an investment in the telephone business in Baxter Springs of about $16,000 to $20,000, and that the construction of another exchange in Baxter Springs would cause the plaintiff great and irreparable injury and damage other and different in kind from that suffered by any other person, firm or corporation, by reason of the parallel and intersecting lines of the other associations interfering with the plaintiff’s lines and with the construction of future lines of the plaintiff as they would be required; and that the stringing of wires, cables and the setting of poles over the streets and across the lines of the plaintiff would interfere with and impair the high-class service furnished by plaintiff and cause plaintiff an increase in cost of maintenance and a loss of patronage and reduction of revenue. On the plaintiff’s petition, summarized as above, temporary and permanent injunctions were asked against the county and local associations and against a number of officers and members of those associations to restrain them from constructing the proposed telephone system in Baxter Springs. The district court granted a temporary injunction and the defendants filed a demurrer and a motion to set aside the temporary injunction. Affidavits, oral testimony and documentary evidence were introduced in support of the motion to dissolve the temporary injunction, and the motion and demurrer were heard and considered together. The motion was allowed and the demurrer was sustained. From these rulings of the trial court the plaintiff below submits two propositions for our consideration: (a) Has The Baxter Telephone Company such a peculiar interest in this matter different from the general public that it may maintain this suit in its own behalf; and if so, (5) does the public utilities law require Baxter Local No. 121 of The Cherokee County Mutual Telephone Association to secure a license from the public utilities commission before engaging in business in Baxter Springs? Ordinarily the usurpation of a corporate privilege or public franchise can only be challenged by an action in the name of the state by its proper officer. In Kansas that proper officer would be the county attorney. (Gen. Stat. 1909, § 2226; The State, ex rel. County Attorney, v. Eble, 77 Kan. 179, 93 Pac. 803.) The attorney-general is likewise frequently called upon to challenge the exercise of some unauthorized corporate power. (The State, ex rel. Attorney-general, v. Stock Yards Co., ante p. 96, 145 Pac. 831; The State, ex rel. Attorney-general, v. Garfield County, 54 Kan. 372, 38 Pac. 559.) The cases of Houser v. Smith, 80 Kan. 260, 101 Pac. 1001, and The State, ex rel. Attorney-general, v. Bentley, 80 Kan. 227, 101 Pac. 1073, considered together, are instructive. The former, although but briefly reported, was an injunction suit against the county treasurer of Gove county to restrain him from collecting a hig-h-school tax on the ground that “there was and is no high school in said county of Gove which has been established or created according to law.” (p. 260.) The plaintiffs were private citizens and were nonsuited. But a radically different result was obtained when an officer of the state challenged the legality of the organization of the high school. In .the latter case the organization of the high school was declared void. By the railroad and utilities acts the power is conferred upon the attorney for the public utilities commission to challenge the exercise of unauthorized corporate acts. (Gen. Stat. 1909, §7182; Laws 1911, ch. 238, §§ 2, 7; The State, ex rel. Attorney for the Public Utilities Commission, v. Gas Co., 88 Kan. 165, 127 Pac. 639.) The latter case is-quite pertinent. There the gas company had received the assent of the city to raise the rates for gas; but it had not received the assent of the public utilities commission. In the case at bar the appellee, Baxter Local No. 121, has received the assent of the city, but that of the state commission is still wanting, if such assent is required. These illustrations show that if there is a usurpation of powers by the appellees, the state has provided itself with officers to challenge such usurpation. A private plaintiff who is likely to be injured in some special manner or whose situation is peculiarly affected by the exercise of a usurped power could maintain the action, but no such case is presented here. In Mining and Gas Co. v. Gas and Mining Co., 55 Kan. 173, 40 Pac. 326, it was said: “A corporation org-anized for the purpose of supplying a city with natural gas, and authorized by an ordinance passed by the city council to use the streets and public grounds of the city for the purpose of laying its mains and pipes, has no standing in court to test the right of a rival company to use the streets for a similar purpose, or the validity of subsequent ordinances, under which the defendant claims the right to use the streets.” (Syl. ¶2.) An especially apt case in this connection is Amusement Syndicate Co. v. City of Topeka, 68 Kan. 801, 74 Pac. 606, where the owner of an opera house sought to enjoin the use of a large public auditorium for public entertainment for profit. This court said: “We can not decide the principal questions discussed here, for the reason that the action is brought by one who has no right to challenge and correct the administration of purely public affairs. The plaintiff is alleged to be a large taxpayer, it is true, but it has been repeatedly held that a private party can not maintain an action against public officers, where the acts complained of affect merely the interests of the public generally. Before a private party can be allowed to maintain an action to challenge the conduct of public business, he must allege an interest personal and peculiar to himself that is not shared by and which does not affect the general public. Assuming it to be true that the city is using its building in a manner not warranted by law, it affects the plaintiff only as it does others having halls and buildings in which entertainments may be held. As was said in Comm’rs of Barber Co. v. Smith, 48 Kan. 331, 333, 29 Pac. 565, Tt is not enough that his damages are greater than those sustained by the general public, thus differing only in degree, but they must be different in kind.’ “Plaintiff refers to Spencer v. School District, 15 Kan. 259, 22 Am. Rep. 268, where an action by a private person was maintained to enjoin the use of a schoolhouse for other than school purposes; but in that case, which may be termed a border one, the action was maintained because of the destruction of plaintiff’s own personal and private property, which was in the schoolhouse, namely, the books, slates, pens, inkstands, etc., that were wasted and destroyed by the misuse of the building. Here no such reason exists, and the fact that the continuance of the wrong affecting other members of the community interferes with plaintiff’s business in a greater degree than with that of the others gives it no right to complain. If, as has been suggested in the argument, a county having a poor farm should grow thereon more than enough to supply the wants of the inmates and should sell the surplus, it would hardly be contended that every farmer in the county who might be slightly affected by the competition would have a right to institute an action to enjoin the county and its officers from cultivating the farm and selling the surplus products. “All of the cases, from Craft v. Jackson County, 5 Kan. 518, down to the latest decision on the question, argue against the right of plaintiff to maintain this proceeding. In Mining and Gas Co. v. Gas and Mining Co., 55 Kan. 173, 179, 40 Pac. 326, where one company was seeking to prevent another from interfering with its monopoly of gas business, it was said: “ ‘A private person or corporation will not be recognized in a court of justice as the guardian of purely public interests, nor to further its private ends by assuming that character.’ "The plaintiff having no right to maintain the action, the judgment of the trial court denying the injunction will be affirmed.” (p. 801.) Under the demurrer all the material allegations of plaintiff’s petition must be taken as true, but it does not appear that a mere rival in business has such an interest as will permit it to maintain an action of this character. Assuming for the moment that the business of the Baxter Local No. 121 is of such a character that it would require a license from the public utilities commission before engaging in the telephone business in Baxter Springs, it must be conceded that in the exercise of a sound discretion the public utilities commission might grant that license; and, if it did, its competition for public patronage would be just as keen and it would occupy the streets and diminish and divide the revenue of appellant just as much with a license as without one. Licenses to engage in any trade or calling within the limits of a city are common. Hackmen, draymen, pawnbrokers, and the like are required in most Kansas towns to have licenses issued by the city authorities. But we think the licensees of these callings could hardly maintain an injunction suit against any person who presumed to exercise any such calling without a license; yet the competition of an unlicensed hackman or pawnbroker would tend to lessen the business and diminish the revenues of those lawfully engaged in such business. • Doctors, lawyers, and school teachers require a license or certificate to practice their professions, but none of these could maintain a suit to enjoin another person from engaging in any of their peculiar professions without such certificate, notwithstanding any probable loss of income on account of the invasion of their professions by unlicensed practitioners. We can see no fundamental difference between the telephone business arid any other business, except that owing to its importance and general use one telephone system is likely to be more satisfactory and less expensive than where two or more such companies occupy the same field. This the legislature has recognized and has provided that as a matter of public policy no public utility like a telephone company, excepting one strictly mutual, will be authorized to do business until it has obtained a certificate or a license of authority as a public convenience and necessity within the community where it seeks to do business. This is a part of the state’s program for the regulation of public utilities, but the administration of that program and the enforcement of the law pertaining thereto is vested in public officers authorized to use the name of the state to carry it into execution. Prior to the passage of the public utilities act any number of telephone companies which' could persuade a city government to grant a franchise for the use of the streets and alleys might establish a telephone system within such city. The competition of these would affect the business and affect the revenues of other utilities of the same character which had previously been established. The enactment of the public utilities law was an extension of the police power of the state over such utilities, but it did not grant any additional rights to such utilities as were established and maintained before the adoption of that act; and the Baxter Telephone Company procured no rights thereunder which it can maintain against possible competitors. The public utilities law was not enacted as an extension or enlargement of the powers and privileges of an existing telephone company. In view of this it may be unnecessary to determine the question as to whether Baxter Local No. 121 of The Cherokee County Mutual Telephone Association requires a license from the public utilities commission or not. The evidence shows that it proposes to affiliate with The Cherokee County Mutual Telephone Association for the exchange and transmission of messages and to become a member of that county association, and the evidence shows that the county association does receive and transmit messages for pay from persons who are not members of the individual local telephone associations of that county, and from an inspection of the by-laws it appears clear that the Baxter Local No. 121 intends to conduct its business in harmony with the other local associations which comprise the county association. If so, it will probably not limit its business to that of a strictly mutual character as defined by the public utilities act, and it is doubtful if its plan of organization and management and the operation of its telephone system will be exempt from the control of the public utilities commission. But that matter should await the challenge of the state on the relation of some officer authorized to bring the matter before a tribunal of competent jurisdiction. We perceive no error in the judgment of the district court of Cherokee county and its decision is affirmed.	[ -80, 120, -80, -66, 24, 96, 50, 50, 123, -79, -92, 115, -55, -55, -115, 123, -38, 93, 18, 121, -57, -73, 7, 42, -120, -5, -111, -35, -79, 93, -12, -44, 73, 32, -54, 85, -26, 78, -59, -98, -58, 2, -103, 109, 89, 2, 36, 109, 114, -54, 81, 77, -13, 42, 28, -61, -87, 44, 121, 41, -112, -15, -86, -43, 125, 6, 33, 4, -104, -123, -24, 46, -104, 17, -120, -24, 123, -90, -122, -12, 13, -7, 8, 96, 98, 35, -95, -17, -4, 8, 14, 122, -99, -26, -80, 88, -32, 77, -75, 29, 98, 6, -125, -2, -1, 5, 83, 124, -127, -114, -76, 3, 15, -2, -102, 22, -17, -25, 48, 113, -49, -78, 93, 67, 58, 27, -97, -100 ]
The opinion of the court was delivered by Porter, J.: The plaintiffs brought suit to enjoin the collection of taxes levied against their lands by the board of county commissioners to construct and pay for a bridge on a public highway over what is known as the “Colley Ditch.” The court overruled the demurrer to the petition, and the defendants, electing to stand on the demurrer, have brought the case here for review. The Colley ditch was established and constructed in 1893 by the county board pursuant to the provisions of chapter 204 of the Laws of 1891. The ditch was-built at the expense of the landowners benefited thereby, and, among other improvements, a small bridge was built where the ditch crossed a public highway. All the taxes levied for- the construction of the ditch and bridges over the same were duly paid by the landowners benefited by the improvement. In 1918 the bridge in question had become out of repair and unsafe for public travel, and by order of the board of county commissioners, it was torn down and the road was closed. A resolution was then adopted by the board ordering a new bridge to be built across the ditch in this highway, and the board proceeded to levy the cost of the bridge on the lands benefited by the construction of the ditch. The old bridge was built of wood, and cost approximately $750; the new one will consist largely of concrete and iron, and will cost approximately $5000. It is the plaintiffs’ contention that the board has no authority to build a new bridge and to assess the cost of the construction against their lands, for the reason that under the act of 1891 the board’s authority was limited to the repair of bridges, made necessary by the construction of the ditch. There is no express provision in the act of 1891 by which the board is given authority to levy a tax for the construction of new bridges, but the defendants contend that a consideration of the whole act shows that it was the intent of the legislature that the cost of any bridge made necessary by the construction of the ditch should be paid for by a tax levied upon the property benefited thereby, and that the authority to levy a tax for new bridges is necessarily implied from the powers expressly conferred. This contention is based upon certain provisions in sections 12, 13 and 15 of the act. In sections 12 and 13 it is provided that “the construction of all bridges made necessary by the construction of such ditch shall be let upon notice ... in such manner as such board may deem best, . . . but neither said board nor said county shall in any event be liable under any contract made under this act to pay any money, unless the same shall be first collected and paid into the county treasury as provided in this act.” Section 15 reads: “If there shall be a surplus of the moneys so collected, over and above the costs and expenses of such ditch, such' surplus shall be thereafter from time to time when necessary, applied by said board to the repairing and keeping up of such ditch. If there shall not be sufficient moneys so collected to pay such costs and expenses, and to make the necessary repairs, such additional amounts as the board shall deem necessary for that purpose may from time to time be apportioned, upon the basis reported by said viewers, against the said tracts of land, railroads, and highways> and collected in the manner provided in the foregoing section; the said board may cause such repairs of said ditch and the bridges over the same to be made from time to time, either with or without advertising for bids, and upon such terms and specifications as they may deem best, but such repairs must in every case be paid for out of moneys apportioned and collected as aforesaid.” The defendants make a further contention that the word “repair” should not be given a restricted meaning, but one broad enough to include the erection of a new bridge whenever the old one became so dilapidated and out of repair that a new one became a necessity. As to the defendants’ first contention, it is true that the intent of the legislature is clearly expressed to the effect that the county shall never in any event be chargeable with the expense of any bridge made necessary by reason of the construction of the ditch, but that such expense should be borne by those persons whose property is benefited by the improvement. But construing the entire act together, it is seen that wherever the construction or repair of a bridge is mentioned, the bridge is referred to as one “made necessary by the construction of such ditch,” and wherever any contract is authorized to be let by the county board it is a “contract made under this act.” The legislature might have provided, if it had seen fit, that where a bridge made necessary by the original construction of the ditch was subsequently destroyed or became so unsafe that a new bridge was required, the cost of such new structure should be imposed upon the landowners benefited by the construction of the ditch. But the legislature went so far only as to require that the cost of the original construction of any such bridge and of keeping it in repair should be paid by a tax levied upon the landowners of the district. Our conclusion, therefore, is that the power to levy a tax for the construction of a new bridge is one which can not be necessarily implied under the authority conferred by the act of 1891. Under this statute the board acts for the time being as a drainage board. Under its general powers it “can exercise only those powers expressly conferred and such others as are necessarily or fairly implied in, or which are incidental to, the powers expressly granted. Beyond these it takes nothing by implication.” (Brown v. The State, 73 Kan. 69, 71, 84 Pac. 549.) (See, also, City of Leavenworth and others v. Norton and others, 1 Kan. 432, 436; Felker v. Elk County, 70 Kan. 96, 78 Pac. 167.) As to the second contention, we see no reason for extending the ordinary meaning of the word “repairs.” To “repair” has been usually construed to mean the making over of something which is in existence. (State v. White, 16 R. I. 591, 18 Atl. 179; 34 Cyc. 1336, 1340; 7 Words and Phrases, p. 6096 et seq.; 4 Words and Phrases, Second Series, p. 271 et seq.)- The words “necessary repairs” are plain and unambiguous, and the legislature must be considered as having used them in the sense in which they are ordinarily understood. It is clear that the authority given in the act to repair the old bridge does not by necessary implication carry with it the power to build a new bridge to cost nearly seven times as much as the old one, notwithstanding the erection of a new bridge may be found to be necessary. It follows, therefore, that the demurrer was rightly overruled, and the judgment is affirmed. Dawson, J., not sitting.	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The opinion of the court was delivered by Burch, J.: On August 15, 1911, the plaintiff, Lydia E. Inscho, the owner of five hundred shares of preferred stock issued by the defendant, sued the defendant to recover the sum of $35 as a seven per cent dividend on her stock for the preceding year. On the same day the judge of the district court on presentation to him of the verified petition, appointed a receiver for the defendant. On the same day the receiver qualified and took possession of all the defendant’s property. On the same day an intervening stockholder filed a pleading praying judgment for a $7 dividend. Later two other stockholders intervened, asking for dividends in sums of $35 and $70, respectively. Issues were made up, and in March, 1912, a referee was appointed to hear the case. In October, 1912, the'referee reported findings of fact and conclusions of law and recommended the discharge of the receiver. Various motions relating to the referee’s report were filed, including a motion by the defendant to discharge the receiver and a motion for judgment in favor of the defendant on the referee’s findings of fact. On November 29, 1912, the cause was finally submitted to the district court. The cause was held under advisement until June 7, 1913, when the referee’s report was adopted, except the recommendation to discharge the receiver, the referee’s findings were stated as findings of the court, and judgment was rendered in favor of the plaintiff, the interveners, and all other holders of preferred stock, for dividends, for the redemption of their stock, and for other relief. The defendant appeals. The defendant was organized under the laws of the state of Arizona with a capital stock of $100,000 common stock and $50,000 preferred stock. It engaged in l-' the business of prospecting for and producing gas and oil. It first drilled for gas and oil in Chase and Morris counties, and spent a large sum of money in such work without return. It then developed a good gas field near Muncie, in Wyandotte county. It then explored a field in Marshall county, Oklahoma, and purchased a majority of the stock of an Oklahoma corporation known as the Mal-Millan Company, organized for the production of gas and oil and occupying the Marshall county field. Large sums of money were spent in these ven tures without success. It then returned to the Muncie field and was operating there when the action was commenced. The petition disclosed that the plaintiff purchased her stock on July 5, 1910. It was alleged that the net earnings of the defendant, from which 7 per cent annual dividends on preferred stock were payable, were and had been for some months about $3000 per month; that such earnings were sufficient to enable the defendant to pay one annual dividend to the plaintiff in the sum of $35, but that such dividend had not been paid, and the plaintiff desired to subject the property of the defendant to payment of her claim. The petition further alleged that at a recent meeting of the board of directors a reserved privilege to redeem the preferred stock at par with accumulated dividends had been exercised, a resolution had been adopted to create a sinking fund for the redemption of the preferred stock, and the preferred stockholders had been notified of the action taken. A copy of the plaintiff’s certificate of stock was attached to the petition, the material portions of which read as follows: “This certifies that Mrs. Lydia E. Inscho is the owner of 500 Shares of the Preferred Capital Stock of the Mid-continent Development Comoany, full paid and nonassessable, on which there shall be paid by said Company from its net earnings a fixed yearly dividend from date of issuance, at the rate of seven per cent per an-num, payable semi-annually, winch shall be earned before dividends are declared from time to time on the ^ Common Stock. This Stock is also Preferi’ed as to the assets of the Corporation in case of winding up its affairs, and shall not be entitled to any further dividends nor have any voting power. The stock is redeemable at the option of the Company after one year from date of issuance by paying par value thereof,' with accrued dividends.” The remainder of the petition was quite prolix and redundant, but may be summarized as containing the following charges against the defendant. Nothing had been paid for the common stock. . Subscriptions to the entire amount of the preferred stock had been paid into the company’s treasury. The common stock controlled the corporation, and the money supplied by the preferred stock had been wasted through fraudulent conduct, illegal investments, and culpable mismanagement. Fraudulent, illegal and wasteful transactions were in contemplation. Members of the board of directors were financially interested in rival enterprises, were not giving their time to the affairs of the company, and dissensions existed among the officers and directors, so that the rights of plaintiff were jeopardized. The company was in imminent danger of insolvency. Its assets consisted largely of gas wells, and unless a receiver were appointed the company would be managed in the interest of its rivals, its assets would be exhausted and squandered, and the preferred stockholders would lose not only their dividends but their investment. The prayer was for judgment for $35, for the appointment of a receiver to conduct the business of the company, and for other relief. The intervening petitions were of the same character. The case may be disposed of upon the findings of fact. The evidence appears to have been voluminous, and little of it is abstracted. The plaintiff and the in-terveners appear to have been satisfied with the findings of fact and rested upon them. This court can not say that any others should have been made, and under the well-established rule the facts found embrace all the facts of the case open to consideration on appeal. “Much testimony is quoted by both parties in support of their respective positions upon which neither the referee nor the court made findings. This court can consider the written instruments executed by the parties, other written documents, the pleadings, admissions and stipulations, and findings of fact. It can also consider the evidence upon any branch of the case which is all in depositions, as that procured by the plaintiff to explain his inability to produce the notes and mortgages which Carolus had assumed. But it can not found its judgment upon oral testimony not reduced to findings of fact by the trial court. If the parties desired findings in respect to the matters covered by such testimony a request for further findings should, have been made. (Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264.) Therefore many matters debated in the briefs are not open to consideration.” (Lynds v. Van Valkenburgh, 77 Kan. 24, 33; 93 Pac. 615.) The findings show that the corporation was organized in 1908, and was authorized to do business in Kansas in July, 1909. Fifty thousand dollars of the common stock were issued to S. R. Walker in exchange for oil and gas leases which cost him but a small sum of money and his labor in obtaining them. A decision of the board of directors that the leases were valuable was implied by the exchange of stock for them, and the charter of the company made such a decision conclusive. The preferred stock was sold at par. Officers of the company received a commission for disposing of this stock, and the finding is that payment of these commissions was unfair treatment of the purchasers of stock. There is no finding that payment for services of this character was ultra vires, or was not regularly provided for, or was accepted with knowledge of illegality. One share of common stock was given with each share of preferred stock. This action the court found to be proper if the board of directors deemed it for the best interest of the company, and there is no finding that the board of directors did not so regard it. Holders of preferred shares purchased other shares of common stock, so that instead of the corporation being controlled by holders of common stock only, the preferred stockholders owned 82 per cent of the common stock. There is no finding that any officer or director of the corporation was guilty of any fraud or bad faith or breach of trust in any transaction alleged in the petition to be fraudulent, and excepting the criticism for paying commissions on the sale of stock, a matter not alleged in the petition, there is no finding of fraud or had faith or breach of trust in the conduct or management of any of the company’s business. It is expressly found that the expenditures made in Morris and Chase counties and in Oklahoma, which consumed the proceeds of the sale of preferred stock not invested in the Muncie field, were made in good faith and without wrongful intent. The court found that the laws of Oklahoma did not permit' the defendant to hold the stock of the Mal-Millan company, but there is no finding that this fact had any effect whatever on the finances of the defendant. There is no finding that the state of Oklahoma ever complained, or that the operations of the defendant were embarrassed or the value of the investment reduced because of the prohibition. The defendant presents a forceful argument in favor of the legality of the purchase, and if a similar question should ever be presented to the courts of Oklahoma the decision may be interesting to ponder. The subject is of no importance now. The court found that the Mal-Millan company had no property of any value and was considerably in debt, and the investment may be considered as lost through poor business judgment, although the court made the following finding concerning it: “The investment made in the stock of the Mal-Millan Company has not proven worthless, but the Mal-Millan Company is a going concern, producing the highest grade of crude petroleum found in Oklahoma, which commands the highest market price, and the same is being sold by said Mal-Millan Company as produced, and said Mal-Millan Company is rapidly paying off its debts and getting on a sound financial basis.” Some of the directors, how many is not stated, held interests in other gas companies, their entire attention was not devoted to the defendant’s interests, and from about May 1, 1911, to January 4, 1912, there were dissensions among the directors. In August, 1911, the .board of directors was increased from nine to eleven members. At the regular stockholders’ meeting held on January 4, 1912, more than three months before the referee was appointed to hear the case and eighteen months before the court made its findings of fact, a new board of directors was elected in which no dissen-, sion existed, and of-which no complaint is made. There is no finding that the business affairs of the defendant were being manipulated in the interest of rival companies by the old board, or were so neglected by the old board as to endanger the welfare of the company,- or that the business policies pursued during the period when the directors were inharmonious were not for the best interest of all the stockholders. On the other hand, the findings show that the period from January 1, 1911, until the receiver was appointed in August, 1911, was the period of the company’s greatest prosperity. Its earnings were brought up to about $3000 per month through the operation of its gas wells and of a pipe line which had been constructed with money borrowed for the purpose in 1910 with the approval of the entire board. The company was bringing in new gas wells, which policy the referee and the court recommended should be continued. It had rapidly liquidated the indebtedness incurred to build the pipe line and for development work, and was anticipating the payment of dividends which the petition itself alleged the defendant was able to pay. On August 7, 1911, eight days before this suit.was commenced, the board of directors by unanimous vote authorized the secretary and treasurer to proceed with the payment of dividends on the preferred stock, and at the same meeting the board of directors by unanimous vote provided for the redemption of the preferred stock and dividends accrued thereon — a part of the relief the plaintiff prayed for— by the creation of a sinking fund for the purpose — a method which the court adopted. There is no finding of culpable waste or squandering •of assets. The findings state that the proceeds of the sale of the preferred stock were spent with entire unanimity on the part.of the board of directors. The corporation was engaged in prospecting for gas and oil. It takes no finding by a court to establish the truth of the fact that if wells bored prove to be dry there are no returns. The business judgment of the board of directors, which the plaintiff could impugn only in case of recklessness or extravagance equivalent to breach of trust, is questioned in nothing but the Mal-Millan transaction, which occurred before the plaintiff acquired her stock, and long before the action was commenced the defendant had turned its energy to the development of the Muncie field. Instead of being in imminent danger of insolvency when the receiver was appointed, the findings show the defendant owed but $2500, while it owned a pipe line, practically paid for, which cost $11,-000 to build, and owned gas wells which produced a total income of $16,378.19 between February 10 and September 15 and were producing an income of $3000 per month. At the time the resolution to pay dividends on the preferred stock and to create a sinking fund for the redemption of the preferred stock were adopted the corporation owed debts to the amount of about $5000, which were due and payable. It proceeded to pay out in the liquidation of this indebtedness the sum of $2893.85, which left $19.40 in the treasury. This sum passed into the hands of the receiver upon his appointment. No demand was made by the plaintiff or by the in-terveners or by any other stockholder of the company upon the directors for payment of a dividend. Very soon after the suit was commenced the president of the defendant offered personally to pay the plaintiff her dividend but the offer was refused. The foregoing constitutes a summary of the findings of fact so far as they bear upon the appointment and retention of the receiver. They do not sustain the allegations of the petition upon which the appointment of the receiver was based, and did not warrant the court in continuing to withhold the management of the corporation from those to whom the stockholders and the law committed it. ■ Generally a corporation may contract with its officers- and directors if the transaction be untainted by bad faith. If payment of commissions by the old board of directors on the sale of stock constituted an actionable appropriation of the funds of the company, something which the court refrained from finding, the remedy was for the stockholders to request the board to compel restoration. Doubtless a request upon the new board of January, 1912, would have received attention, but if upon request the board of directors refused to act, the stockholders, or a single stockholder suing for all, could have brought the action. Taking the findings of fact as they stand, employment of the extraordinary remedy of absolute ouster of the old board for accepting commissions for selling stock would have been improper, and application of the remedy to the new board was without any justification. Bad judgment in the Mal-Millan venture and ill success before the company returned to active exploitation of the Muncie field were not grounds for the appointment of a receiver. The right to supplant the board of directors acting in August, 1911, with a receiver depended upon the financial condition of the company at that time and upon what the policies in process of execution by the board of directors then in authority seemed to promise. Beginning with the determination to build the pipe line, the policies of the company so far as they are disclosed by the findings of fact were sound. Its directors were acting in good faith and within their lawful powers. No single transaction constituting a breach of trust or jeopardizing the welfare of the company is stated. The business was prosperous, and the directorate, instead of denying claims of preferred stockholders, was recognizing them and preparing to satisfy them. Conceding for present purposes that the plaintiff was entitled to receive a declared dividend on her stock and consequently was a creditor, her claim could not rise superior to the claims of creditors holding current obligations of the company which were due and payable. (Branch v. Jesup, 106 U. S. 468, 475.) The discharge of those obligations could not constitute misconduct on the part of the defendant’s managing officers, much less ground for peremptory removal: Other supposed grounds for the receivership have been discussed in connection with the statement of the findings of fact. The result is the receiver was improvidently appointed and his retention in office after the court discovered the facts was unjustifiable. “Before a receiver can properly be appointed it is necessary that the plaintiff should have a probable cause of action against the defendant, and that the benefit to be derived from such cause of action might be lost or substantially impaired if the receiver were not appointed.” (Elwood v. National Bank, 41 Kan. 475, syl. ¶ 4, 21 Pac. 673.) “Dissatisfaction by a minority of the stockholders of a corporation with its management by the majority, in the absence of fraud or insolvency, is not sufficient to authorize the court to appoint a receiver at the instance of the minority.” (Fluker v. City Rly. Co., 48 Kan. 577, syl. ¶2, 30 Pac. 18.) “The appointment of a receiver rests largely within the discretion of the court, and before it will take the property and business of a liquidating bank from the control of the directors into its own hands, upon the application of a stockholder, it must appear that the danger of loss or injury to the rights of the plaintiff is clearly proved, and the necessity and right for the appointment of a receiver free from reasonable doubt.” (Watkins v. National Bank, 51 Kan. 254, syl. ¶ 4, 32 Pac. 914.) The principle here stated applies with even greater force when it is proposed to take the property and business of a solvent concern in promising circumstances out of the hands of its directors at the instance of a piqued stockholder holding but a slight fraction of the corporate stock. The decision' in the' case of Feess v. Bank, 84 Kan. 828, 115 Pac. 563,. covers all essential features of this case. In view of the full and clear statement of principles contained in that decision, it is held that the appointment and retention of the receiver in this case constituted an. abuse of judicial discretion. 'The plaintiff undertakes to distinguish the Feess case by pointing out that it involved the appointment of a receiver for a solvent bank, one of whose valuable assets was public confidence, and that the receiver was directed to wind up the affairs of the corporation. The effort to distinguish, fails. General principles governing the duties of the courts of this state in respect to the appointment of receivers were stated, as the following quotations from the syllabus and the opinion show: “Under the law a majority of the stockholders have the control of a corporation and the majority of its directors have power to determine the policy to be pursued and to manage and direct its affairs, and the minority must submit to their judgment so long as the majority act in good faith and within.the limitation of the law.” (Syl. ¶ 7.)' “It was held in In re Lewis, Petitioner, 52 Kan. 660, 35 Pac. 287, that under the code a receiver may be appointed at the suit of a stockholder ‘where the business and affairs of a corporation have been so mismanaged that it has become insolvent, and where it is made to appear that all the, officers and directors of the same have conspired together to divert its' business to another company, dissipate its funds, and fraudulently absorb and apply its assets to the individual benefit of such officers.’ (Syl. ¶ 1.) Conduct and conditions less serious than those enumerated would justify the appointment of a receiver, but.it is a power that should be sparingly and cautiously exercised. It is a last- resort provision and is only to be employed where there is a pressing necessity and no other adequate remedy is afforded. . . . The policy pursued in respect to loans and discounts seems to have been satisfactory to a majority of the directors and to those owning the controlling interest- and more than nine-tenths of the capital stock. Those owning the majority of the stock claimed the right to control the management and policy of the bank, and a number of the matters of which complaint is made grew out of the differences of opinion in respect to what was the better policy. The law gives the majority of the stockholders the right to control the policy and business of a corporation and'the minority must submit to their decisions when the majority act in good faith and. within their powers. “It has been said that ‘the very foundation principle of a corporation is that the majority of its stockholders have the right to manage its affairs, so long as they keep within their charter rights. No principle of law is more firmly fixed in our jurisprudence than the one which declares that the courts will not interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs.’ ” (pp. 836, 839.) Other principles recognized and applied in the Feess case, but not stated so formally, are that business transactions which are merely unwise, irregularities and misconduct which are not so culpable as to jeopardize the corporation and the rights of stockholders, and dissensions among directors, so long as a majority of them control, do not warrant the appointment of a receiver. The plaintiff further seeks to distinguish the Feess case on the ground that the defendant here was insolvent, and to make the defendant insolvent the total issue of preferred stock in the sum of $50,000 is counted among its liabilities. Besides this, it is claimed the plaintiff was at all times merely a creditor of the corporation and not a stockholder, a view in which the district court concurred. The plaintiff’s stock certificate, copied above, evi denced the rights of a stockholder of the company and not the rights of a bondholder or creditor. The plaintiff purchased shares of the original capital stock of the company, received a certificate of stock, cast her fortunes with the company, took with it the risk of its ventures, and depended upon the net earnings of the company for returns upon her investment. She was not guaranteed a seven per cent annual dividend at all events. If there were no net earnings she received nothing and could not, as creditors may do, appropriate capital or general assets to the satisfaction of her claim. The fact that preferred stock had no vote and the. corporation reserved the right to retire preferred stock by redeeming it did not change this express feature of the contract. So long as she remained a stockholder her only source of returns was net earnings, and if there were debts of the company she could not share such assets with creditors, in case of dissolution, but was merely preferred over common stockholders in case there were assets to distribute. To sustain the contention that the plaintiff was merely a bondholder or creditor and not a stockholder of the corporation: and was entitled to interest and not dividends, the plaintiff cites the text found in 10 Cyc. 574 concerning the doctrine that-the guaranty of stated dividends creates an absolute debt. This text was deduced from three decisions. The first is Williams v. Parker, 136 Mass. 204. It is based upon a statute. The opinion reads: “The question which underlies all others in this case is whether the guaranty that each share of the preferred stock ‘shall receive semiannual dividends of four dollars on each share’ is an absolute guaranty, or is conditional upon the earning of sufficient profits by the corporation. This depends upon the construction to be given to the St. of 1855, c. 143. No condition is expressed in the statute, , and the natural meaning of the words used is, that the corporation is to guarantee to each holder of preferred stock that he shall, while the corporation does business, receive semiannual dividends of four dollars on each share; so that, if the net earnings of the corporation are insufficient to pay such dividends, the corporation shall make good the difference out of any property it has. If the legislature had intended that the holders of preferred stock should only be entitled to a preference over the common stockholders in dividends to the extent of four dollars semiannually on each share, and should never receive a greater dividend than this, it would have been easy to express this intention accurately; and the only guaranty required of the corporation would have been, that it should appropriate the net earnings first to the payment of a dividend of four dollars semiannually upon each share of the preferred stock. . . . The cases cited, in which either the preferred stock, was issued without statutory authority, or the dividends thereon by the terms of the promise or guaranty were held to be, either expressly or impliedly, payable out of the net earnings of the corporation, afford but little aid in the construction of the St. of 1855, c. 143.” (pp. 206, 207.) The plaintiff’s certificate of stock in express terms conditioned payment of dividends on net earnings of the corporation. The next case cited is W. C. & Phila. Railroad Co. v. Jackson, 77 Pa. St. 321. It arose under a special statute passed to aid a railroad company which required more money to complete its road than could be realized from the sale of authorized stock and bonds. The act recited, “that making a floating debt for that purpose would be onerous to the management of the road and probably unduly hazard the interest of the stockholders” (p. 322), and provided for an issue of preferred stock bearing eight per cent annual dividends payable out of net earnings and redeemable after one year when the profits of the road would justify. The court treated this act as one to enable a corporation to borrow needed money, and said: “The payment for his shares by Mr. Gray, and the issuing of the certificates to him by the defendant, made as complete a contract as if he had been a purchaser of bonds instead of a subscriber for stock. And his contract rights were precisely defined by the Act of 1855. In effect, it was an agreement for the advance of money to an embarrassed railroad company. A corporation may issue new shares and give them a preference as a mode of borrowing money, where it has power to borrow on bond and mortgage, as preferred stock is only a form of mortgage.” (p. 327.) In the case of Sternbergh, Appellant, v. Brock, 225 Pa. St. 279, 74 Atl. 166, the supreme court of Pennsylvania said of this decision: “In West Chester, etc., R. R. Co. v. Jackson, 77 Pa. 321, a loose expression was used, when it was said that ‘preferred stock is only a form of mortgage.’ Whatever the extent of the preference in that case may have been, speaking generally, stock, whether it be common or preferred, does not represent indebtedness; its possession means ownership of the company.” (p. 284.) The last case cited in support of the Cyc. text is that of Burt v. Rattle, 31 Ohio St. 116. It involved the interpretation of 'a statute which the court regarded as one to enable corporations of a certain class to borrow money by means of preferred stock. The statute contained a provision relieving holders of preferred stock from liability for debts of the corporation. The constitution of the state imposed individual liability for debts upon stockholders, and if holders of preferred stock issued under the statute were stockholders the statute was unconstitutional. If they were creditors the statute was valid; The preferred stock which was issued was secured by mortgage. The court held that the statute was valid and the preferred stockholders were creditors. Very clearly this decision evidences no general rule, and the position of the supreme court of Ohio on the subject under consideration must be sought for elsewhere. It may be found in the case of Miller, Executor, v. Ratterman, Treas., 47 Ohio St. 141, 24 N. E. 496. A portion of the opinion reads: “The question in the case is, whether the certificates are certificates of stock or certificates of indebtedness? . . . The relation of a holder of preferred stock is, in some of its aspects, similar to that of a creditor, but he is not. a creditor save as to dividends after the same are declared. Nor does he sustain a dual relation to the corporation. He is either a stockholder or a-creditor; he cannot, by virtue of the same certificate, be both. If the former, he takes a risk in the concerns of the company, not only as to dividends and a proportion of assets on the dissolution of the company, but as to the statutory liability for debts in case the corporation becomes insolvent; if the latter, he takes no interest in the company’s affairs, is not concerned in its property, or profits as such, but his whole right is to receive agreed compensation for the use of the money he furnishes, and the return of the principal when due. Whether he is the one or the other depends upon a proper construction of the contract he holds with the company. ... As supporting the claim that it was not stock that was issued but certificates of indebtedness, special attention is called in argument to those portions of the certificates which provide that holders shall not vote unon them at any meeting of the holders of the capital stock of the company; that the rights of the holders to the dividends are guaranteed, and are to be secured by mortgage on the property, rights and income; that no further or other mortgage shall thereafter be made to the prejudice of the holders of the preferred stock; that the dividends are guaranteed by The Cincinnati, Hamilton & Dayton company, which company had executed a mortgage to Stanley Matthews, trustee, to secure the payment of dividends.” (pp. 154,155.) The decision was that the certificates were certificates of stock and not certificates of indebtedness. In discussing the features of the certificates which are similar to those contained in the plaintiff’s certificate, the court said: “It further stipulates that the holders of the certificates of stock shall not have or exercise the right to vote the same at the meeting of the stockholders of the company, thus indicating that it was stock they intended' to authorize the issue of and not certificates of indebtedness, for the inhibition against voting would be wholly useless had it been intended that the holders should become creditors. The provision is not unusual. It is sometimes found in the statute itself. . . . Nor is it, in this instance unreasonable. The promise to the preferred stockholders was to award them the first net earnings, the holders of the common stock to share in such of the net earnings as they might, by good management, be able to make over and above the eight per cent. As the burden was upon the common stockholders, the power to manage might fairly be left with them. In any view, it is fair to treat the proviso as but an arrangement between two classes of stockholders which did not concern the public. It is, true that one characteristic of stock generally is that it can be voted upon. But this is not essential. . . . Nor did the stipulation guaranteeing to the holders of the preferred stock payment of dividends thereon negative the idea that they were stockholders. It was not a stipulation to pay dividends in any event, but a stipulation to pay only out of surplus profits, for the company must be presumed to have proceeded in view of the terms of the second section of the act referred to, and the general rule of law on the subject. That rule is that payment of dividends to preferred stockholders differs from such payment to the holders of common stock only in that they are entitled to dividends in priority to any dividends upon the common stock. Dividends to either are to come from one common source, to wit: from funds properly applicable to the payment of dividends, that is to say, net earnings. In the nature of things this must be so. As well might one member of a partnership be permitted to appropriate to his own use assets .of the firm to the prejudice of creditors, as for a stockholder of a corporation to do it. A contract to permit this to be done would be contrary to public policy and void.” (pp. 157, 158.) Notes reviewing cases bearing upon this subject may be found in 27 L. R. A. 136 and 73 Am. St. Rep. 227. Some leading cases on the subject are the following: Hamlin v. Toledo, St. L. & K. C. R. Co., 78 Fed. 664; Heller v. Marine Bank, 89 Md. 602, 43 Atl. 800; Field v. Lamson & Goodnow Manuf. Co., 162 Mass. 388, 38 N. E. 1126; Branch v. Jeswp, 106 U. S. 468, 475; Warren v. King, 108 U. S. 389, 398; Hamlin v. Continental Trust Company, 47 U. S. App. 422, 435; Chaffee v. Railroad Co., 55 Vt. 110. 'The plaintiff’s stock falls within the general description of preferred stock given in 10 Cyc. 568: . “Preferred stock is not an indebtedness of the corporation, or an absolute agreement to pay certain dividends upon its shares, but is merely a pledge of its profits in favor of certain shares in preference to the others, in other words an agreement to give a preference to particular shares over the other shares in the division of profits, but only in case there shall be profits to divide. Hence if it appears in any case that no profits have been earned the holders of preferred stock cannot maintain actions against the company to enforce payment of the guaranteed dividends.” The result is the plaintiff was not a creditor of the corporation by virtue of her purchase of preferred stock. The district court misconceived the law on this subject, regarded the preferred stock as a debt, and held dividends on the preferred stock to be “interest,” as appears by the following conclusion of law: “That at the commencement of this suit the defendant was indebted to plaintiff and said interveners for accrued interest on their said shares of preferred stock as follows, to-wit: To plaintiff in the siim of $35.00; to D. P. Smyers in the sum of $70.00; to J. M. Smythe in the sum of $7.00; to Harry Lee Inscho in the sum of $35.00; and to other holders of its preferred stock of the defendant in the various sums of money which had accrued as interest on said preferred stock up to the commencement of this suit, all aggregating the sum of $1,373.75.” On August 7, 1911, the board of directors of the defendant adopted the following resolutions: “Resolved, that the Mid-Continent Development Company hereby exercises its option and obligates itself to redeem the preferred stock of this company by paying par value thereof with accrued dividends at the rate of 7% from date of issuance.” “Resolved, that the Mid-Continent Development Company shall redeem the preferred stock of this company with accrued dividends; and 75% of the gross earnings, which is from now on, be formed into a sinking fund for that purpose to be known as a preferred stock fund and to be kept and maintained for that purpose, which shall be apportioned to the preferred stockholders as often as 25% of the entire amount due is accumulated and this process of distribution shall continue until the entire amount of the preferred stock and accrued dividends shall have been paid in full.” The court held that these resolutions constituted a contract on the part of the defendant to redeem the preferred stock and to create a sinking fund for that purpose in accordance with the second resolution. Possibly this was true as to those preferred stockholders only who assented to the arrangement. However this may be, the two resolutions must be read together, and when so construed they do nothing more than pledge seventy-five per cent of the gross earnings accruing “from now on” to the redemption of preferred stock. The portion of the gross earnings so set apart was to be apportioned as often as twenty-five per cent of the preferred stock with accrued dividends was accumulated, until all preferred stockholders were paid in full. Holders of preferred stock remained stockholders having no right to demand redemption until an apportionment of accrued earnings was made, and then became creditors only with respect to the apportionment. Any other interpretation of the resolutions perverts their manifest purpose. The only enforceable obligation created by the resolution was to create the sinking fund and make apportionments, and it is idle to say that by virtue of the resolutions the entire issue of $50,000 of preferred stock became a liability of the company to be taken into consideration in determining solvency. It is not claimed that any apportionment of gross earnings was possible within the eight days which elapsed between the adoption of the resolutions and the appointment of the receiver. The bookkeeping liability of a corporation on its capital stock is not a feature in determining solvency, which refers to ability to sat isfy creditors. It' is not claimed that dividends due on the preferred stock would so deplete assets as to render the corporation insolvent. The express claim is there existed net earnings to pay them. The corporation was solvent, and the claim just stated will now be considered. The plaintiff in her brief properly describes the action as an equitable one to subject the property of the defendant to payment of her claims as a preferred stockholder. The dividend assured being payable “yearly . . . from time of issuance” at a stated rate per cent upon the amount of stock, the plaintiff was entitled to a return upon her stock for each year. That is, the dividends were cumulative. The decisions are quite uniform to this effect. The case of Fidelity Tr. Co. v. Lehigh Val. R. R. Co., Appellant, 215 Pa. St. 610, 64 Atl. 829, states the principles and refers to a number of authorities. The dividend claimed by the plaintiff was payable out of net earnings only. The findings of fact read as follows: “5. Finding its operations in Oklahoma wholly un-remúnerative, the defendant resumed work in Wyan-dotte County, Kansas, in the Muncie field. The defendant found it necessary to build a pipe line for the purpose of connecting the company’s wells with certain manufacturing plants, to whom the defendant expected to sell its gas. Up to that time the entire $50,000 of preferred stock had been sold and the money spent. The defendant, therefore, had to borrow and did borrow about $11,000, and used it for the purpose of building said pipe line. “7. . . . The borrowing of the $11,000, as above stated, was a necessity. This borrowed money was used, as aforesaid, in building said pipe line in the fall and winter of 1910. This line was built with the expectation of furnishing gas to four prospective customers, namely: United Zinc & Chemical Company, the Santa.Fe’s Icing Company’s Plant, the Santa Fe Elevator and the town of Turner, with whom the defendant had contracts for such purpose. “8. The defendant continued to drill new wells, and the Chemical Company to use more gas until on or about the 10th of August, 1911, the Chemical Company paid to the Development Company about $3,000 in payment of gas consumed during the preceding thirty days. Between February 10th and September 15th, 1911, the defendant received from the Chemical Company for gas the total sum of $16,378.19, and the defendant company applied this money on the repayment of the money borrowed to build the pipe line, in drilling wells and connecting them with the pipe line and in paying the general expenses of the Development Company. This $16,378.19 is the only income ever received by the defendant. The building of the pipe line, the drilling of other wells and connecting them with the pipe line was development work. The money made by the defendant from the sale of its gas in the year 1911 was used, in a great measure, for development work and could properly have been used for the payment, in part at least, of the accrued dividends on the preferred stock. “11. The gross receipts of sales of gas up to the 15th day of August, 1911, were about $2800 per month; the net receipts were about $2000 per month. As the gas yield in the Muncie field is decreasing in quantity, the Muncie gas field being a shallow one, your Referee considers it good business management and in the interests of the stockholders to drill as much as a well per month. This would cost about $750 or more. The operating expenses would be $500. So a fair estimate of the amount of money which could be devoted to the payment of preferred stock and dividends would be about $1500 per month, or one-half of the gross receipts.” The findings further state that when the resolutions of August 7, 1911, were adopted the company owed $5000, which was then due and payable/which indebtedness had been contracted for building the pipe line, drilling wells, and current expenses. A part of this indebtedness consisted of three promissory notes aggregating $1500, current accounts amounting to $400, and a disputed account of about $600. The latter part of finding number 8, that the money made by the defendant from the sale of gas in the year 1911 was used in a great measure for development work, and that such money could have been used, in part at least, to pay dividends on preferred stock, states conclusions drawn from the specific facts found. Unless consistent with the specific facts found the conclusions are valueless. Analyzing the findings of fact, it appears that the total earnings up to September 15, a month after the receiver was appointed, were $16,378.19. What the earnings were up to August 15, when the action was commenced, or up to August 7, when the resolutions were adopted, is not stated. If it be assumed that the earnings for the month preceding September 15 were equal to the average, about $2800, earnings up to the time the action was commenced were about $13,578.19. When the action was commenced the indebtedness of the company was $2500. One thousand dollars of this sum was upon current accounts and so was not a part of the debt incurred for building the pipe line. Not more than $1500 of the money borrowed to build the pipe line remained unpaid. Therefore something like $9500 of the money borrowed to build the pipe line had been paid. Gross receipts from the sale of gas averaged $2800 per month, and net receipts averaged $2000 per month. Average expenses per month were therefore $800. The total expenses for six months were $4800, and for seven months were $5600. Using the smaller sum, the money paid on the pipe-line debt and the money necessary for current expenses would amount to $14,300, or more than the receipts for the period, to say nothing of expenditures for drilling new wells and net earnings available for the payment of dividends. The findings state the sum of $16,378.19 received from the chemical company was the only income ever received. What became of the contracts with the Santa Fe Icing Company, the Santa Fe Elevator Company and the town of Turner is not disclosed, and there is no finding that gas sold had not all been paid for. If, however, the average income were $2800 per month, as stated in finding number 11, and the statement is repeated in finding number 15, not copied above, the in come from February 10 to August 15 should have been $16,800, and the income to September 15 should have been $19,600. The result is the findings convict themselves of utter unreliability. The definition of the term “development work,” inserted quite unnecessarily in the findings, may be accepted. The building of the pipe line was development work, but $11,000 of borrowed money were used to build the pipe line. This borrowed money constituted a debt of the corporation incurred antecedent to earnings and in order that there might be earnings. Earnings "used to pay that debt were not spent in development work and can not be counted as a part of the income spent “in a great measure for development work.” Suppose the plaintiff' were the holder of a certificate of indebtedness, as she claims to be, and that her money had been used to build the pipe line, earnings used to repay her would not be used in development work but in discharging her debt. In finding number 11 it is said that operating expenses for the future consistent with good business management would be about $500 per month. As already shown, the finding is that operating expenses were about $800 per month. Payments for gas sold appear to have been made about the 10th of the month for the preceding thirty days. There must have been operating expenses preceding such payments. Counting from January 1 to August 15 at the rate of $500 per month, operating expenses would amount to $3750. But using the dates specified in the findings, operating expenses from February 10 to August 15 would amount to $3000. This sum added to the sum deduced from the findings as paid on the pipe-line debt makes $12,500 paid out for other than development work. If, therefore, the operating expenses be figured at what they should have been instead of at what they actually were, still finding number 8 that the money made from the sale of gas was used in great measure for development work is untrue. There is no finding whatever of the number of new wells brought in by the defendant in 1911, or of their cost, or of the cost of connecting them with the pipe line — one of the important subjects of the litigation. It does appear from the financial result of bringing in new wells that the income rose to its highest point, ■$3000 per month, on August 10. For bringing in new wells the defendant was sued, a receiver was appointed, and judgment was rendered against it. Yet the referee and the court find that the policy of drilling new wells ought to be continued and that earnings ought to be withheld from preferred stockholders for their own benefit sufficient to bring in one new well a month at a cost of $750 or more. If from January to August one new well a month were brought in at a cost of $750 per well, the sum of $6000 was expended in doing that which was inequitable and vicious for the board of directors to do, but which was entirely equitable and just for the receiver to do. It is manifest that a judgment based upon findings of fact of this character can not stand. Whatever the income of the defendant may have been, the findings do show that it was all spent to repay the money borrowed to build the pipe line, to drill wells and to connect them with the pipe line, and to pay general expenses. The existence or nonexistence of net earnings may be determined from these facts. The case of Burk v. Ottawa Gas Co., 87 Kan. 6, 123 Pac. 857, involved the equitable right of a stockholder to enforce payment of noncumulative dividends on preferred stock payable out of net profits. The opinion delivered in that case reads as follows: “The directors of the corporation owed a positive duty to pay a dividend to the preferred stockholders whenever in any year there were net profits available. The funds that might be used for that purpose could not rightfully be expended for extensions merely for the benefit of the business, nor could they be withheld to .meet the expenses of the next year. Inasmuch as the only possible source of profit to the preferred stockholder from his investment is the distribution of earnings in the year in which they accrue, he has a right to insist that an accounting shall be taken annually, and that the surplus of one year, available for a dividend, shall not be carried over to meet a possible deficiency of the next. “The holder of the preferred stock, however, is not generally a creditor until a dividend is declared, but as equity regards as done that which ought to be done, if under the facts of this case a dividend or dividends ought to have been declared in a certain year or years to such stockholders, they should be regarded as creditors to such extent from such time or times, in this equitable action. The company’s contract with the preferred stockholder is not to pay him at all events the amount of the net profits of each year up to six per cent, but to declare a dividend on that basis. The obligation to declare a dividend arises only when there is (or as to the stockholder ought to be) money available with which to pay it. Although the business of the year may show the earning of net profits, counting as- gain what has gone into betterments, yet if the money taken in has been expended in performance of a duty superior to that owed to the stockholder, no obligation to declare a dividend can arise.” (p. 16.) For obvious reasons the fact that dividends are cumulative and so are not lost for failure to declare them each year may be taken into account in determining whether or not there ought to be money available with which to pay them and in estimating the duties of the corporation to stockholders, and to others, such as creditors. In the Burk case the only debts of the corporation were fixed charges, so that the rule stated in the syllabus for computing the net profits of the Ottawa Gas Company did not refer to the payment of other debts out of earnings. In the opinion, however, principles general in their application were stated. Although the terms “net profits” añd “surplus” were employed, and those terms are technically distinguishable from “net earnings,” they were not used in the technical sense, and referred to the same fund which in this case is denominated “net earnings.” In the Burk case a superior duty was owed to patrons entitled to extensions. In this case a superior duty was owed to creditors. The effort of the plaintiff to establish her position as a creditor holding simply a certificate of indebtedness is a tacit acknowledgment that the right of a stockholder to earnings is inferior to the rights of creditors. The plaintiff’s preference was merely the preference of one class of stockholders over another class, and no stockholder, preferred or common, could claim as a dividend any portion of earnings necessary to satisfy the matured demands of ordinary general creditors. It is not necessary to go beyond the plaintiff’s brief for authorities on this subject.- Speaking generally, net earnings are what remain of gross receipts after deducting the expenses of producing them. Speaking generally, net earnings can not be withheld to liquidate bonded indebtedness maturing in- the future, nor other indebtedness in its nature permanent, nor to liquidate floating indebtedness properly convertible into bonded indebtedness, and a situation might arise in which a corporation ought to borrow money to pay preferred dividends. But as was said in the case of Hazeltine v. Railroad Co., 79 Maine, 411, 10 Atl. 328, cited by the plaintiff, the question whether money on hand shall be regarded as net earnings “depends usually on several considerations — is a relative question— not always susceptible of clear demonstration — and is a matter to a considerable extent of good judgment in conducting the company’s business and of good faith in upholding its contracts on the part of directors.” (p. 416.) In the case of Railroad Co. v. Belfast, 77 Maine, 445, 1 Atl. 362, a case cited by the plaintiff .involving the right to a noncumulative dividend, the same court said: “The difficulty is in deciding what should be considered as net earnings; that is, net earnings such as are applicable to dividends. In a general sense, net earnings are the gross receipts less the expenses of operating the road to earn such receipts. But several kinds of charges must first come out of net earnings before dividends are declared. The creditor comes in for consideration before the stockholder. The property of a corporation is a trust fund pledged for the payment of its debts. Therefore, if there is a bonded, funded, permanent or standing debt, the interest on it must be reckoned out of net earnings. If there is a floating debt, which it is not wise and prudent to place in the form of a funded debt, or to postpone for later payment, that should also be paid. If the financial situation of the company is such as to render it expedient to commence or continue the scheme of a sinking fund for the ex-tinguishment of the company’s indebtedness some day or other, an annual contribution out of the net earnings for that purpose would be reasonable.” (p. 452.) Numerous citations of decisions by federal courts appear in the plaintiff’s brief, and the rule .for estimating net earnings applied by those courts is clear. “A certificate for shares of stock in a railroad corporation declared that such stock should be entitled to preferred dividends, out of the net earnings, not to exceed a specified rate, after payment of mortgage interest in full. After the certificate was issued, the corporation borrowed money and issued bonds therefor bearing interest, and also took leases, on rent, of connecting railroads: Held, that the holder of the certificate was not entitled to be paid a dividend, beforé payment of the interest on such bonds, or of such rent.” (St. John v. The Erie Railway Company, 10 Blatch. [U. S. Cir. Ct.] 271, syl.) This decision was affirmed in the case of St. John v. Erie Railway Company, 89 U. S. 136. In the case of Union Pacific R. R. Co. v. United States, 99 U. S. 402, the rule was extended to allow payment for permanent improvements, consisting of station buildings, shops, etc., out of earnings. The syllabus reads: “The ‘earnings’ of the road include all the receipts arising from the company’s operations as a railroad company, but not those from the public lands granted, nor fictitious receipts for the transportation of its own property. ‘Net earnings,’ within the meaning of the law, are ascertained by deducting from the gross earnings all the ordinary expenses of organization and of operating the road, and expenditures made bona fide in improvements, and paid out of earnings, and not by the issue of bonds or stock.” (Syl. ¶ 2.) In the case of Warren v. King, 108 U. S. 389, it was said: “Thus he can have no income on his stock unless there are net earnings. Those net earnings are what is left after paying current expenses and interest on debt and everything else which the stockholders, preferred and common, as a body corporate, are liable to pay.” (p. 398.) The brief for the plaintiff directs attention to the rules announced by the highest courts of Connecticut and Massachusetts. The following quotations indicate the views of those courts. “The general rule, even in the absence of any statute on the subject, is that dividends, in a going concern, can be properly declared and paid only out of profits, and not out of capital, or assets required for the security and payment of creditors. Morawetz on Private Corporations (1st ed.), §344; Redfield on Railways, § 240; 2 Thompson on Corporations, § 2152. This rule applies whether the stock upon which the dividend is declared is common stock or, as in this case, preferred stock. Warren v. King, 108 U. S. 389; Cotting v. New York & N. E. R. Co., 56 Conn. 156-169.” (Davenport, Receiver, v. Lines, 72 Conn. 118, 128, 44 Atl. 17.) “A corporation, under statutory authority, issued preferred stock, the certificates of which provided that the holders thereof were entitled to dividends thereon annually out of net profits, in preference to the holders of any other stock of the corporation, to the amount of a certain rate per cent; . . . The capital of the corporation became seriously impaired, and its indebtedness amounted to a large sum, and was payable on demand or on short time. The assets, though appearing to be largely in excess of the indebtedness, would have suffered a very great shrinkage from the valuation put upon them if disposed of to pay debts or to close up the business. During a portion of the time only were there net profits sufficient to warrant the payment of dividends on the preferred stock at the rate named in the certificates. The directors of the corporation refused to declare dividends, in part because they believed that it would endanger the ability of the corporation to pay its debts, and in part because they did not deem it proper so to do on account of the impairment of the capital. Held, that the directors did not appear so plainly to have acted in disregard of the rights of the preferred stockholders as to justify the interference of a court of equity.” (Field v. Lamson & Goodnow Manuf. Co., 162 Mass. 388, syl. ¶ 4, 38 N. E. 1126.) Citations might be extended indefinitely, but it is not necessary. In the case of Ryan, et al., v. L. A. & N. W. Rly. Co., et al., 21 Kan. 365, this court said: “The claims of stockholders in a corporation are subordinate to the claims of creditors, and the stockholders are not entitled to any division of the profits and moneys of a corporation until all its debts are paid.” (Syl. ¶ 7.) The origin of the pipe-line debt was such that it was justly entitled to absorb earnings before stockholders received dividends. It appears to have been payable as the company had funds and what there was left of it in August, 1911, was due. Without elaborating further, the board of directors did not disregard the rights of the preferred stockholders by paying off the pipe-line debt. The court knows what everybody knows, that the flow of gas from natural gas wells tends to diminish. The bringing in of new wells is not only a necessity to enable a producer to utilize his plant and fulfill his contracts with consumers, but failure to adopt such a policy means ultimate extinction of his business. In such a situation the drilling of new wells is a part of the cost of producing the mineral sold and is properly chargeable to expense. Finding number 11 shows that to have been the situation in the Muncie field. If wells had been brought in and then not used,, but simply capped and laid by for future use, the anology of investing earnings in permanent improvements to the disadvantage of stockholders entitled to annual dividends' would hold. But the defendant was simply getting the product of its gas field to market at the cost of drilling new wells. With the pipe-line debt paid dividends were certain, and the plaintiff could lose nothing because her dividends were cumulative. Indeed, the plaintiff would have had fair ground for charging the directors of the defendant with slack management if they had not developed the field and kept up production by drilling new wells. There is no place in the figures disclosed by the findings for excessive expenditures in drilling new wells. Finding No. 8 being that the total sum earned by the ' company was expended to repay the money to build the pipe line, to drill wells and connect them with the pipe line, and to pay general expenses, there were no net earnings to distribute. At the directors’ meeting of August 7, the following resolution was adopted: “.Resolved, That the directors hereby authorize the secretary and treasurer to proceed with the payment of the fixed yearly dividend from date of issuance at 1% and prepare a list of the preferred stockholders with the amount due to each.” At that time there was a little more than $2900 in the treasury, which was at once paid out on the debts of the company. The money was not net earnings, and the duty to pay the debts of the company was superior to the duty to pay dividends on the preferred stock. The judgment of the district court is reversed and the cause is remanded with direction to sustain the motion to discharge the receiver, sustain the motion for judgment in favor of the defendant on the findings of fact, and render judgment in favor of the defendant against the plaintiff and the interveners for costs.	[ -16, 110, -108, -116, 8, -32, 104, 26, 72, -88, 36, 83, -103, -38, 16, 93, -30, 45, 69, 106, -10, -77, 23, -29, 91, -69, -71, -51, -72, 94, -10, -42, 73, 32, 74, 21, -58, -48, -57, 28, -114, 5, 41, -24, -39, 40, 60, 59, 48, 73, 65, 47, -13, 41, 29, 75, 109, 46, -1, -68, -31, -8, 42, -123, 127, 22, 3, 6, -104, -89, -56, 62, -104, 49, 72, -23, 114, -90, -122, -12, 15, -103, 12, -94, 103, 115, 5, -25, 106, -120, 30, -97, -115, -25, 48, 24, -94, 64, -66, -99, -84, 22, -121, -6, -22, 5, 88, 124, 7, -102, -106, -95, 7, 36, -104, 19, -29, -125, 54, 100, -51, -14, 92, 71, 120, -109, -49, -80 ]
The opinion of the court was delivered by Dawson, J.: This action arises from the negligent failure of the Western Union Telegraph Company to deliver to the addressee at Wichita the following telegram: “401 ks rc 10. Forbes Junction Colo. Mar. 8, 1912. Mrs. Annie Ramey, c/o Post Office, General Delivery, Wichita, Kas. Father killed this morning. Wire me if you can come. Johnnie Keith. 431 pm.” Keith was the brother of Mrs. Ramey, and he paid for the message. Promptly upon its receipt in Wichita, the telegraph company placed the message in its business envelope and dispatched it to the post office, but unfortunately the envelope was addressed, “Mrs. Annie Ramsey,” and although Mrs. Ramey called at the post office nearly every day inquiring for her mail, it did not occur to the clerk in the post office that the letter addressed to Mrs. Ramsey should be delivered to Mrs. Ramey, but on March 16, eight days later, he permitted her to open it in his presence. Her father’s funeral had been delayed for six days in hope of her attendance, and she alleges that she would have attended the funeral, and that she was deprived “of the consolation of seeing her said father before his burial, because of which plaintiff suffered great and irreparable anxiety, distress and mental pain and anguish, which was great and overpowering and was due and caused by the failure and malicious negligence of the defendant, its agents and employees to comply with and in breach of its said contract.” The charge for sending this telegram, fifty cents, had been prepaid by the sender, and there is no evidence that Mrs. Ramey had reimbursed her brother for this telegraph charge. The jury awarded the appellee fifty cents for actual damages and $299.30 for punitive damages. Counsel for appellant demurred to the petition, demurred to the evidence, and excepted to instructions given and refused; and in their appeal they urge that the plaintiff below did not show actual damages and consequently no punitive damages could be awarded. In Schippel v. Norton, 38 Kan. 567, 16 Pac. 804, Mr. Justice Valentine said: “Where no actual damage is suffered, surely no exemplary damages can be allowed. Exemplary damages can never constitute the basis of a cause of action. They are never more than incidents to some action for real and substantial damages suffered by the plaintiff; and when given they are given only in addition to the real and actual damages suffered and recovered by him. And when given they are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his wrongful acts, and that it is proper for the public to impose them upon the defendant as punishment for such wrongful acts in the private action brought by the plaintiff for the recovery of the real and actual damages suffered by him. No right of action for exemplary damages, however, is ever given to any private indvidual who has suffered no real or actual damages. He has no right to maintain an action merely to inflict punishment upon some supposed wrongdoer. If he has no cause of action independent of a supposed right to recover exemplary damages, he has no cause of action at all. As lending support to the foregoing views, we would refer to the following cases, to wit: Gilmore v. Mathews, 67 Maine, 517; Stacy v. Publishing Co., 68 Maine, 279; Freese v. Tripp, 70 Ill. 496; Meidel v. Anthis, 71 Ill. 241; Ganssly v. Perkins, 30 Mich. 492; Maxwell v. Kennedy, 50 Wis. 645, 648, 649.” (p. 572.) This doctrine has been consistently followed in: Adams v. City of Salina, 58 Kan. 246, 48 Pac. 918; Bank v. Grain Co., 60 Kan. 30, 55 Pac. 277; Cole v. Gray, 70 Kan. 705, 79 Pac. 654; Sondegard v. Martin, 83 Kan. 275, 111 Pac. 442. Let us how inquire as to the actual damages. The appellee did not reimburse her brother for the telegraph charge of fifty cents, and therefore such payment can not be made the basis for tacking on punitive damages. The failure to allege and prove some '•sort of actual damages is fatal to an allowance of punitive damages. In the leading telegraph cases decided by this court where recovery for failure or delay in delivering the telegram was the main issue the payment of the cost of the message to the telegraph company or by reimbursement to the sender seems to have been considered an essential element in plaintiff’s case. (West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807; Telegraph Co. v. Woods, 56 Kan. 737, 44 Pac. 989; Telegraph Co. v. Bodkin, 79 Kan. 792, 101 Pac. 652; King v. Telegraph Co., 81 Kan. 223, 105 Pac. 449; Hollingsworth v. Telegraph Co., 82 Kan. 472, 108 Pac. 807.) Let us now inquire whether mental anguish, anxiety and distress of mind will furnish sufficient basis for an allowance of punitive damages. The prior adjudications of this court incline strongly to the contrary, when these elements have to be considered alone. It is too difficult a task for courts and juries to measure the extent of such damages, and all too easily might they be made the subject of counterfeit claims for injuries. In West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, it was said: “In Schippel v. Norton, 38 Kan. 567, we recently held, where no actual damage is suffered no exemplary damages can be recovered; but as actual damages are shown in this case, that decision is not applicable. “It seems, however, to be claimed upon the part of the plaintiff that he is entitled to recover for his men tal anguish or suffering occasioned by the delay in the announcement of the death of his brother. Where mental suffering is an element of physical pain, or is a necessary consequence of physical pain, or is the natural and proximate result of the physical injury, then damages for mental suffering may be recovered, where the injury has been caused by the negligence of the defendant; but in an action of this kind, we do not think that damages for mental anguish or suffering can be allowed. ‘Such damages can only enter into and become a part of the recovery where the mental suffering is the natural, legitimate and'proximate consequence of the physical injury.’ (City of Salina v. Trosper, 27 Kan. 544.) The general rule is: ‘That no damages can be recovered for a shock and injury to the feelings and sensibilities, or for mental distress and anguish caused by a breach of the contract, except a marriage contract.’ (Russell v. Telegraph Co., 3 Dak. 815, 19 N. W. 408.) In So Relle v. Telegraph Co., 55 Tex. 308, it was decided that an action for mental suffering alone can be maintained. The opinion in that case, however, was prepared by a’ member of the commission of appeals of Texas. And subsequently, in the case of Railway Co. v. Levy, 59 Tex. 563, the supreme court of Texas overruled that decision. (See, also, Wood’s Mayne Dam., 1st Am. ed., 74.)” (p. 99.) We do not overlook the fact that about four months after judgment appellee obtained leave to amend her petition by alleging that she had paid her brother the fifty cents for the expense of the message. Without deciding whether such amendment was too late, it was properly objected to by appellant because it did not correspond with the proof. The case is reversed and remanded with instructions that the demurrer to plaintiff’s evidence be sustained.	[ -80, 124, -8, -65, 8, 98, 42, -102, 51, -111, -89, 87, -55, -63, -115, 127, 117, 61, -16, 120, -12, -89, 15, -22, -46, 83, -79, -43, -79, -35, -28, -34, 77, 48, 74, -43, 102, 74, -59, -100, -52, 10, 9, -28, -35, -126, -80, 123, 18, 67, 113, -49, -13, 42, 24, -62, -88, 62, 105, -83, -128, -79, -21, -121, 127, 22, 1, 36, -104, 39, -8, 14, -104, 49, 8, -24, 114, -89, -122, 116, 103, -87, 68, 102, 98, 32, 5, -23, -20, -120, 39, -10, -99, -25, -106, 104, 43, 45, -106, 29, 13, 20, 3, -8, -101, 29, 29, 100, 11, -114, -48, -93, 47, 118, -100, -97, -17, -89, 0, 80, -52, -96, 93, 67, 58, -101, -113, -66 ]
The opinion of the court was delivered by Mason, J.: Willard M. Finch brought' an action to quiet title to a tract of land. George W. Beyer, a defendant, asserted a claim to it under an instrument termed a lease, by which certain rights relating to minerals purported to be transferred. The plaintiff contends that this instrument is void under section 20 of chapter 316 of the Laws of 1911 (the same as Gen. Stat. 1909, § 9334) because it undertook to pass title to the minerals, and had neither been recorded within ninety days of its execution nor listed for taxation. The trial court held the instrument to be valid, and the plaintiff appeals. The statute referred to reads: “That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves; provided, that when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.” The principal question presented, and one which if decided in the negative practically ends the case, is whether the instrument referred to creates such a separate estate in the land as to require its record or listing for taxation. It reads as follows: “This Agreement, Made this 7th day of October, A. D. 1912 between W. M. Finch and wife, E. A. Finch of Rantoul, County of Franklin and State of Kansas, Lessor and Ed. McCoole, of Edgerton, Johnson County, State of Kansas, Lessee. “Witnesseth, That the Lessor in consideration of One Dollar the receipt of which is hereby acknowledged, and of other valuable considerations, do hereby demise and grant unto the Lessee all the oil, gas and other minerals in and under the following described tract of land, and also the said tract of land for the purpose and with the exclusive right of operating thereon for oil, gas and other minerals, together with the right of way, the right to lay pipe lines over, and to use water from the premises, and also the right to erect or remove at any time all property placed thereon by the lessee, which tract of land is situated in the County of Franklin, State of Kansas, to-wit: N. W. 1-4, Section 10, Township 17, Range 21, “Consisting of 160 acres, more or less. To have and hold the same unto the lessee for the term and period of 5 years from the date hereof and as much longer as oil, gas and other minerals are found in paying' quantities thereon. “The Lessee paying to the lessor as royalty: “1. The eight (1-8) part of all oil produced and saved from the premises, delivered free of expense into tanks or pipe lines to the Lessor’s credit. “2. (a) Should gas be found in paying quantities to pay the Lessor the sum of One Hundred Fifty Dollars per year for each well from which gas is being sold or utilized off of the premises. “(b) And allow the Lessor the free use of gas for domestic purposes, piped at his own risk and expense. “1. To drill no wells within 200 feet of any building now o.n said premises. “2. To pay all necessary damages to fences or growing crops. “It is mutually agreed: “1. (a) Second party agrees to commence well on the above described premises within sixty days from the date hereof and in case of failure to do so this lease shall become null and void and without any further effect whatever, unless the Lessee shall pay for the delay at the rate of $250.00 dollars per year thereafter until a well shall be commenced. “ (b) Such payment shall be made to the Lessor’s credit in Rantoul Bank at Rantoul, Kansas. Second party agrees to furnish pipe for gas to house. “2. The lessee shall have the right at any time to terminate this lease by releasing the same of record, and shall thereafter be released from all obligations and liabilities under the same. “This contract shall extend to and be binding upon the heirs, assigns, successors and personal representatives of the Lessor and Lessee herein.” In Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750, the form of an oil-and-gas lease there presented was held not to effect a transfer of title to the minerals. It was said that “there is no standard form for an oil- and-gas lease,” and that “each instrument must be interpreted in the light of its own peculiar provisions.” (p. 339.) In Gas Co. v. Oil Co., 83 Kan. 136, 109 Pac. 1002, an instrument falling in the other classes was considered. In the present case a severance of the title is suggested by the words “hereby demise and grant unto the lessee all the oil, gas and other minerals” in and under the land described; but the instrument purports also to grant and demise the land itself for the purpose of operating thereon for minerals. Moreover, the extent of the grant is limited by the subsequent provision to a term of five years and as much longer as oil, gas and other minerals are found in paying quantities. The lessee undertakes to commence a well within sixty days, but assumes no further obligation to develop the mineral resources of the property. Having done that much, he was at liberty to prosecute such further operations as he saw fit for five years, and for as much longer as minerals should be found in paying quantities, upon accounting to the lessor for the stipulated royalties. Under this arrangement we think the title to the minerals did not pass until they were severed, and that the instrument was not required to be recorded or listed for taxation. Complaint is made of the rejection of evidence tending to show an abandonment of rights under the lease, but the evidence was not produced on the hearing of the motion for a new trial. The judgment is affirmed.	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The opinion of the court was delivered by West, J.: The plaintiff sued for damages on account of an injury received by the fall of a friction-hoist elevator in the defendant’s packing house. The facts including the description of the elevator are found * in Root v. Packing Co., 88 Kan. 413, 129 Pac. 147. The decision in that case ordered a reversal of the plaintiff’s judgment for error in overruling a demurrer to his evidence. The case was again tried, resulting in a verdict and judgment for the plaintiff, and the defendant appeals, complaining of the overruling of the demurrer to the evidence, of the admission of certain evidence, the exclusion of certain evidence, the giving a,nd refusing of certain instructions, and the amount of the verdict. The petition alleged that the elevator was unfit for human beings to ride on, in that its construe tion was such that it was exceedingly liable to accident by reason of its parts being liable to get out of repair and refusing to work, and that no appliance could be attached that would insure safety to those riding thereon in case of 'accident, and that the apparatus which was attached thereto for the purpose of stopping it in case for any reason the appliances to hold it stationary or cause it to ascend or descend should refuse to work, was insufficient, worn, and had not been properly inspected or kept in repair. It will be observed that these allegations amounted to a charge of improper construction, want of inspection and defective condition. In the former opinion it was said that no attempt was made to establish liability on the second ground. This time testimony was introduced as to the character of construction, also touching defective condition and failure to inspect. Complaint is made that improper evidence was received, both expert and nonexpert, as to the operation of friction-hoist elevators of the kind in question. It is argued that testimony that elevators of this sort work improperly because overloaded or because improperly adjusted or because of moisture on the bull wheel or wear on the face of the brake block does not tend to show anything inherently wrong in this class of elevators, and it is contended that testimony declared incompetent in the former opinion was received upon the second trial. That thus referred to in the former opinion was expert or opinion evidence and.not evidence of the actual operation of -the elevator; that is to say, it was therein held incompetent for a witness to testify whether or not in his opinion certain things would happen in the operation of the elevator; ánd- on the second trial' the happening of such things was actually testified to. While a number of the witnesses were sufficiently familiar with such elevators to- be deemed experts, their testimony was mainly with reference to actual construction and operation, and we find no departure therefrom amounting to' material error. Criticism is made of certain medical evidence touching the plaintiff’s condition after the injury, but nothing prejudicial is found therein. Complaint is made of the evidence of one witness who described the safety devices and was permitted to testify that he knew of no test thereof having been made. This taken in connection with the evidence of improper and defective operation and the charge of failure to inspect was neither outside the issues nor incompetent. Error is predicated upon the admission of the testimony of Doctor Hassig that the plaintiff did not complain to him of hernia or varicose veins when examined by the doctor, to which the plaintiff replies that on cross-examination the plaintiff testified that he did not tell the doctor anything about these matters, because he was looking for it himself; also, that Doctor Hassig testified on redirect examination that the plaintiff told him about the varicose veins, and hernia. The abstract shows that this was the fact, and hence this complaint is without substantial basis. Fault is also found because the court refused the testimony of a master mechanic for another packing house that the electric elevators there require more frequent repair than the friction-hoist elevators, and that the former would sink down a little when brought level with the floor and loaded. The witness did testify that friction-hoist elevators with the block properly adjusted would not sink and slide down the shaft; that when loaded and brought up level with the floor and loaded there would be a slight descent, depending on what kind of rope is used on the cable; that it would simply take the slack out of the rope. The defendant offered to prove by this witness that as to the six friction-hoist elevators in his plant the electric elevators require more frequent repairs and will sink down or give a little when brought level with the floor and loaded, and that the friction-hoist elevators there had been conducted with less repairs than the electric elevators. The witness was permitted to go ahead and explain in detail the working of the friction-hoist elevators and the cause of their failure to work properly, and the refusal to permit a comparison between them and another class of elevators in the manner indicated by the offer was not material error, there being nothing to indicate that the electric elevators in question should be regarded as furnishing a -standard by which to judge the .one on which the injury occurred. Complaint is made of instruction No. 8, which was to the effect that the test to be applied in determining the question of negligence was not merely whether the defendant omitted to do something which it could have done, or whether better machinery could have been obtained, but whether in selecting the elevator ordinary care and prudence were exercised and whether it was in fact adequate and proper for carrying passengers and employees, and the use to which it was applied. The use of the words “merely” and “passengers” is the fault found with this instruction. There was no evidence that the elevator was used for the transportation of persons other than employees, and while the use of the word “passengers” was inaccurate the instruction as a whole was not sufficiently misleading to work material prejudice. It is urged that instruction No. 10 unnecessarily called attention to the fact that the evidence might have disclosed negligence in some other particular than that alleged in the petition, but as the jury were plainly told that they must be confined to the allegations of negligence found in the petition it is impossible to see how the defendant was harmed by this instruction. Instruction No. 14 was to the effect that if the fall was caused by the defective, improper and faulty construction of the elevator and that the appliance regularly and ordinarily used for stopping it failed to work by reason of its being insufficient, worn or out of repair, such construction being unknown to the plaintiff, he could recover. Counsel seem to regard this as a suggestion to the jury that some other sort of safety device should have been used. We regard this instruction, however, as fairly following the allegations of the petition on which evidence had been introduced. Instruction No. 16, submitting the question of diligence in inspection of the elevator, is complained of on the ground that the defendant made no attempt to prove failure in that respect. There was testimony by a witness whose duty it was to inspect the elevator that on the morning before the accident he saw the brake block and saw that it was too thin, but did not notice whether it was cracked or not. And there was considerable testimony introduced in chief and drawn out in cross-examination touching the matter of inspection which made this instruction applicable and proper. Complaint is made that the jury were told that they could not assess plaintiff’s damage in a greater amount than the sum claimed in the petition. This language, however, closed an instruction giving the proper basis of recovery, and the result does not indicate, as suggested, that the jury regarded it as a hint that more than twice the amount found would have been approved by the court. Instruction No. 8, offered by the defendant,, its refusal being assigned as error, was to the effect that any single defective or imperfect operation of the elevator would not of itself be sufficient evidence nor any evidence that the defendant had any previous knowledge or notice of any defect or insufficiency. The jury were 'expressly told, however, in the 16th instruction that if •they should believe that the elevator was reasonably safe and suitable and the defendant had used due diligence in the matter of inspection and repair it could not-be held liable for any injury not resulting from failure to exercise such care nor resulting from any cause which could not be foreseen or prevented by the exercise of ordinary care. In view of the evidence touching the matter of inspection and repair it was not prejudicial error to refuse this instruction, for there was no occasion for the jury to regard a single defective or imperfect operation as of itself evidence of previous notice or knowledge of any defect, and hence no necessity for the instruction appears to have existed. The rule of law embodied in the instruction is correct, but its applicability to the situation presented by the entire evidence shown by the record is so negligible, or so nearly so, that it can not be said that the defendant suffered material prejudice by its refusal. Counsel say it would have restrained the jury in coming to the conclusion that “there must have been something wrong or the accident would not have happened” and would have compelled them to search the evidence for proof of the facts. But we are not supplied with any reasonable ground for the suggestion and have failed to discover one in the record presented. Under the command of the codes, civil and criminal, and the authority of precedent for over half a century, we are prohibited from reversing judgments for mere technical errors or irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining when it appears upon the whole record that substantial, justice has been done. (Crim. Code, § 293; Civ. Code, §§ 141, 581; Hopkinson v. Conley, 75 Kan. 65, 88 Pac. 549; Coleman v. MacLennan, 78 Kan. 711, 744, 98 Pac. 281; The State v. Hammon, 84 Kan. 137, 145, 146, 113 Pac. 418; Saunders v. Railway Co., 86 Kan. 56, 62, 63, 119 Pac. 552.) Finally, it is insisted that the verdict is excessive and was given under the influence of passion and prejudice. This was one of the grounds set forth in the motion for a new trial, and the fact that such motion was overruled would indicate that the trial court did not regard the verdict too large or deem it the result of passion or prejudice. The former trial resulted in a verdict for $5000, the latter, five years after the in jury, in a verdict for $12,000. It is suggested that this disparity in itself indicates passion and prejudice. But the contrary was held in Railway Co. v. Johnson, 59 Kan. 776, 53 Pac. 129. The evidence is said to be wanting in a disclosure of such injuries as to justify the verdict, and the construction put thereon by counsel would leave it a frail support. But the jury regarded the injuries much more seriously, and it remains to inquire whether or not they did so rightfully. The plaintiff testified that he was forty-seven years old, which is equivalent to saying that he was forty-two when the inj ury occurred. “When I come to, everything hurt me. I could not sit or lay down; . . . They took me home in a carriage. ... I remained in bed six months, during that time everything hurt me. I could n’t lift myself. . . . I suffered the greatest pain in the right side for six months. I got up and stayed up about ten minutes. For a whole year I could n’t sit up long, on my feet all the time. I get up and walked awhile and then lie down again. After the six months I was at the hospital eight days. I left the hospital because they was going to make an operation on me, and I didn’t want to be operated on. I have tried to work but I can not. When I started to work the whole side hurts me and I still have pains in thé side. I- have broken bones down there, ribs, whatever it is. . . I first discovered that I had a hernia or rupture the time I got hurt. In about a week after I was injured I saw those big veins come out on my legs. ... I did n’t tell the Doctor anything about the varicose veins because he was looking for himself. I never told him anything about the hernia. After these varicose veins came on they never went away; they are still larger. . . . The first time I tried to work was right away after the first trial, (which was had in 1911) I tried to get work at an iron foundry. Before the injury I always stood on my feet at my work and all the work I ever did at the packing houses was this heavy work, lifting trucks and pushing them.” The jury examined the plaintiff’s person, and of course we have no means of knowing what evidence of injury they found thereby or how his condition "and appearance impressed them. Doctor Richards testified that when he was called in July, 1908, to treat the plaintiff he was undoubtedly suffering pain; he had two fractured ribs, possibly three, on the right side, and the symptoms of a general jar up, vomiting, nausea and weakness. His principal pain was at the seat of the fractured ribs; “He had pain all over his abdomen and called my attention to it through his interpreter. No point particularly outside of the seat of the fractured ribs.” He treated him.about six weeks for the fractured ribs; his attention was from time to time called to different little points or pains about the abdomen but he never treated them particularly. “There were considerable signs of trouble inside, through vomiting and weakness that continued for some length of time.” He found no indication of hernia and never examined him with reference to varicose veins. Varicose veins in a man’s limbs always get larger. He may be cured by an operation. Doctor Nesselrode examined the plaintiff at the time of the former trial and found an inguinal hernia, varicose veins and a roughness of the rib. He regarded the plaintiff unfit for manual labor, but thought that with operations for the hernia and varicose veins and the hernia cured he ought to be in condition to perform manual labor. After retiring for a personal examination of the plaintiff witness returned and testified to finding a right inguinal hernia and very extensive varicose veins on his right leg. There was testimony to show that operations for the hernia and varicose veins might reasonably be expected to prove successful, and if so, the plaintiff would be able to do manual work. Of course the actual success and permanence of such operation and degree of restoration must be somewhat problematical, and the testimony already quoted and referred to indicates that an able-bodied man forty-two years old was rendered unable to earn a living in his accustomed way or to do hard work, and that such condition had existed fox- five years and without an operation would continue and tend to grow worse. The record does not show what he. was earning, but it must be presumed that he was making reasonable wages for the wox-k he was doing, and with his physical ability and life expectancy it is a very difficult matter to say what he is entitled to recover. Not having seen the paintiff or examined his person the sum seems large, but the jury who had these advantages did not so regard it, and the defendant placed but one medical witness on the stand and he had not examined the plaintiff for some time. The physician who examined him critically in 1912 did not testify, and the jury did not have his judgment to aid theirs in considering the evidences of injury presented by their physical examination. We are not able to say from the record before us that the verdict is so excessive as to show passion or prejudice. (M. K. & T. Rld. Co. v. Weaver, 16 Kan. 456; K. P. Rly. Co. v. Peavey, 34 Kan. 472, 8 Pac. 780; Van Vrankin v. Railway Co., 84 Kan. 287, 114 Pac. 202; Barnett v. Cement Co., 91 Kan. 719, 139 Pac. 484.) Having carefully examined and considered each point raised by the appeal the record shows no error of a materially prejudicial character and the judgment is affirmed.	[ -79, 120, -36, -81, 26, 96, 42, -6, 97, -123, 39, 83, -51, -61, 29, 51, -12, 127, 85, 99, -34, -77, 83, -85, -46, -13, -13, -59, -79, 106, 116, -10, 72, 48, -62, -43, -26, -64, 65, 84, -118, 4, 40, -22, 121, 0, 52, 122, -76, 79, 97, -97, -13, 42, 28, -61, 41, 44, 107, -3, -16, -7, -126, 5, 95, 2, -93, 38, -98, -59, 88, 28, -40, 53, 0, -4, 115, -74, -125, -12, 105, -101, 12, 98, 98, 32, 13, 47, -72, -104, 39, -49, -83, -89, -112, 8, 41, 33, -66, -35, 112, 18, 36, 126, -9, 89, 27, 108, 7, -113, -12, -111, -121, 34, -100, -93, -21, -125, 18, 113, -51, -96, 92, 101, 19, -97, -121, -70 ]
The opinion of the court was delivered by Burch, J.: The cause originated in the probate court by the presentation of a claim against the estate of William Hamilton, deceased. The claim was allowed and the administrator of the estate appealed to the district court. • Judgment was rendered in the district court in favor of the claimant and the administrator again appeals. The claim filed in the probate court consisted of an account showing various debits and credits and stating a balance due. It arose under the following circumstances: The claimant, Fannie Eadie, was formerly the owner of a tract of land which she mortgaged and then sold. The purchaser assumed payment of the mortgage and gave a second mortgage to secure a portion of the purchase price. The purchaser defaulted upon both mortgages and the plaintiff was obliged to take measures to protect her interests. Having no experience in such matters she consulted her brother, John Hamilton, who in turn consulted their brother, William Hamilton. The result was the claimant assigned her note and mortgage to William Hamilton, who agreed to foreclose the mortgage, purchase the land at the foreclosure sale, hold the land for the plaintiff until a favorable opportunity should present itself, and then sell the land and account to the plaintiff for the proceeds, less all expenditures. Pursuant to this arrangement, William Hamilton purchased the first mortgage, foreclosed both mortgages, purchased the land at the foreclosure sale, paid costs and attorney fees, made other advancements, and after keeping the land for a number of years, sold it at a profit above all expenditures. He died without having rendered an account of his transactions to his sister. The administrator resisted the claim on the principal ground that its enforcement involved the exercise of equitable jurisdiction not granted to the probate court. It was contended further that an attempt had been made to create a trust in land not expressed in writing, and that the claim was barred by the statute of limitations. ■ ■ Certain facts were agreed to and certain others were found specially by the jury, upon which judgment denying the claim was asked. All the facts thus established were clearly not sufficient to authorize such a judg ment, and the only remaining assignment of error ap-' plicable to the defenses other than want of jurisdiction is that the court overruled the administrator’s demurrer to the claimant’s evidence. This assignment of error can not be considered because no motion for a new trial was filed. It may be observed that the claimant • assigned her note and mortgage to William Hamilton to be handled in a certain way for her benefit. Conceding that the trust agreement was not in writing and contemplated that real estate should be purchased, held, and sold, the trustee could not procure possession of the note and mortgage under the agreement and then refuse to account for them at all. Equity would not permit him to convert the note and mortgage to his own use in violation of the confidence reposed in him and contrary to the intention of both parties, but would charge him with a constructive trust for the prevention of such a fraud. The case not being one involving simply the breach of an oral contract relating to land, but being-one in which the law itself imposes a trust upon the situation created by the conduct of the parties, the plaintiff’s claim was properly provable by parol evidence. (Piper v. Piper, 78 Kan. 82, 95 Pac. 1051; Clester v. Clester, 90 Kan. 638, 640, 185 Pac. 996.) The note and mortgage were not recoverable, the land was not recoverable, and the fund produced by the foreclosure of the mortgage and the purchase and sale of the land was not identifiable. The claimant was obliged to rely upon the personal liability of the trustee, both under the contract and under the facts as they existed when the claim was presented. The claimant occupied a position identical with that of a contract creditor of the trustee, and consequently the probate court, and the district court on appeal from the probate court, had jurisdiction to adjudicate the claim. (O’Neil v. Epting, 82 Kan. 245, 108 Pac. 107.) The judgment of the district court is affirmed.	[ -15, 108, -36, -84, -102, 96, 40, -38, 66, 33, 55, 95, 125, -61, 20, 5, -9, -23, 85, 107, 87, -77, 7, 0, -46, -78, -15, -35, -75, -3, -12, 95, 76, 48, -62, -43, -26, -126, -59, 80, -118, -57, -101, 100, -39, 66, 52, 123, 118, 77, 117, -83, -13, 46, 53, -38, 105, 42, -53, 56, -16, -72, -81, -115, 127, 3, -111, 101, -38, 99, 122, 42, -112, 49, 0, -24, 115, -74, -122, 116, 75, -101, 8, 102, 98, 33, -51, -19, -8, -104, 6, 108, -97, -90, -77, 24, 43, 97, -65, -103, 125, 0, 39, -4, -18, 84, 30, 108, 29, -118, -42, -79, -81, 118, -104, 3, -25, 3, 50, 113, -51, -94, 92, -26, 121, -103, -114, -104 ]
The opinion of the court was delivered by West, J.: The plaintiff sued for personal injuries sustained September 14, 1912, by the fall of a suspended rock in the defendant’s quarry. The action was begun February 12, 1913, and on March 18 thereafter the defendant being in default of an answer, the plaintiff produced certain evidence and a judgment rendered in his favor by the court for $1 and costs, which the defendant paid into court. March 20 the plaintiff filed a motion for a new trial, setting up accident and surprise and misunderstanding by counsel of orders and instructions of the court, by reason whereof plaintiff was not afforded sufficient opportunity to present his evidence and be heard on the merits and because the judgment was in part contrary to the plaintiff’s equitable rights. On April 20, 1918, this motion was sustained and the plaintiff was ordered to pay the costs. Thereupon an amended petition was filed re-alleging the grounds set out in the original petition, to which an answer was' filed setting up a general denial and the former judgment, alleging that it had never been lawfully set aside, also alleging contributory negligence and assumption of risk. Later a plea in abatement was filed, setting up in detail the former proceeding and judgment, to which plea a demurrer was sustained. The trial, November, 1913, resulted in a verdict for the plaintiff, and the defendant appeals and complains of the order overruling the plea in abatement and the act. of the court in not receiving evidence to support the defense of contributory negligence and assumption of risk; of error in an instruction that the defendant had not elected to come within the provisions of the workmen’s compensation act, and in refusing evidence upon that question, and that the judgment was not sustained by sufficient evidence. It is contended that the court had no jurisdiction to set aside the judgment first rendered after it had been paid, and that the motion did not come within sections 596 and 602 of the civil code which preclude the setting aside of a judgment until it is adjudicated that there is a valid cause of action, but the record shows that the court found upon argument and consideration that the motion ought to be sustained, which implies an adjudication that there was a valid cause of action. Moreover, the plea in abatement set out an express finding by the court at the rendition of the original judgment that the plaintiff’s injury was the result of the defendant’s negligence, causing him pain, anguish and loss of time. The mere payment of the judgment into court without its acceptance by the plaintiff, followed by the motion for a new trial, was certainly not sufficient to oust the jurisdiction of the court to grant such motion. The language of the motion would indicate, however, that it was drawn under section 305 of the civil code, concerning new trials, ánd not under section 596, relating to the vacation of judgments. The recital of the record also shows that evidence was in troduced upon the hearing of the motion, the character of which is not disclosed, and there is nothing before us indicating that the order was void or improper. The motion was filed in time and during the term at which the judgment was rendered, and it is a familiar rule that the court has control over its own judgments during the term. The jury were instructed that the workmen’s compensation act applied to the case and provided compensation for workmen injured in certain hazardous undertakings, and that the defendant company not having elected to come within the provisions of the act could not invoke the provisions of that act touching contributory negligence and assumption of risk as a bar to the action. The act of 1911 provided that it should apply only to employers “who have elected or shall elect before the accident to come within the provision hereof.” (Laws 1911, ch. 218, § 8.) There was no evidence that the defendant had so elected, but on the contrary one of its attorneys testified that a search óf his office records and correspondence failed to disclose that such election had been made. Under the law as it existed at the time of the injury, the defendant not having elected to come within its provisions could not avail itself of assumption of risk or contributory negligence, save in mitigation of ■ damages, and the court so instructed, and there was neither allegation nor proof of such election but proof to the contrary, and the court therefore rightfully assumed and instructed that none had been made. As said in Gorrell v. Battelle, 93 Kan. 370, 372, 144 Pac. 244, the defendant always knows whether or not he has elected, and if he denies liability in good faith on that ground he will ask the court to investigate that issue first to save further trouble and expense. Plaintiff’s counsel in their brief offer to submit to a new trial if the records in the secretary of state’s office show an election. It is urged that the court erred in refusing evidence offered by the defendant touching contributory negligence and assumption of risk, but the record fails to show the rejection of any evidence of this kind and none was produced on the hearing of the motion for a new trial, and hence we are afforded no means of knowing what such evidence, if any, was. The remaining complaint is that the verdict is excessive. The record discloses, however, that after the plaintiff had his arm treated and returned to work the swelling and pain resulted in having an X-ray examination, which was followed by three operations, after which he had no control over the arm though able to do certain kinds of work. A surgeon testified that he took the X-ray picture and found evidence of a fracture of the radius; that he operated and brought the fractured ends of the bone together and united them with a plate; that he again operated and removed a piece of necrosed bone, and examining the arm at the trial, fourteen months after the injury, he testified that there was no union of the bone. The plaintiff testified that he was forty-three years of age and before the injury was making from $1.12 to $5.32 a day, and that after the injury it took him about three weeks to do five days’ work. This evidence fully justified the jury in returning a verdict for $2999.99, and such sum does not indicate passion or prejudice. The judgment is affirmed.	[ -16, 120, -44, -99, 10, 96, 42, -104, 73, 37, -91, 87, -83, -125, 12, 97, -13, 57, 85, 107, 92, -77, 6, -117, -110, -77, 115, -59, 49, 108, -12, 118, 77, 48, 74, -107, 102, 72, -47, 22, -114, 12, 25, -52, -39, 64, 48, 127, 116, 75, 49, -66, 99, 46, 28, -53, 45, 45, 107, -67, -48, -72, -125, 5, 109, 0, 3, 7, -98, 103, 120, 60, -104, 49, 2, -24, 114, -74, -106, -12, 97, -103, 8, 98, 98, 49, 85, 103, -8, -72, 46, -66, -115, -92, -111, 24, 11, 15, -106, -99, 102, 20, 38, 126, -19, 13, 93, 44, 3, -117, -42, -13, -113, 60, -100, -61, -53, -125, 52, 112, -52, 42, 92, 71, 123, -101, -97, -104 ]
The opinion of the court was delivered by Brewer, J.: The questions in this case have already been decided by this court in the recent cases of Dodge v. Coffin, and Haynes v. Cowen, 15 Kas. 277, 637, and no further opinion is necessary. For reasons given in the opinions in those cases, this judgment will be affirmed. All the Justices concurring.	[ -15, -24, 117, 62, 10, 64, 35, -103, 56, -75, 39, -45, -87, -109, 21, 113, -1, 93, 85, 106, -43, -73, 87, -15, -45, -13, -5, -58, -79, 72, -26, 119, 76, 32, -118, -43, -26, -54, 69, 84, -50, -124, -88, -52, -39, -8, 52, 105, 80, 75, -91, -122, -61, 46, 26, -57, 41, 44, -39, 45, 80, 49, -116, -123, 79, 6, -79, 38, -100, -127, -56, 44, -112, 49, 8, -24, 115, -90, -124, -76, 107, -71, -116, 98, 111, 3, 61, 65, -100, -104, 46, 126, -73, -122, 24, 25, 75, 33, -105, 29, 123, 0, 6, -6, -2, 85, 95, 124, 5, -114, -74, -79, -57, 121, -70, 64, -53, -29, 49, 113, -51, 126, 85, -59, 30, -111, -106, -72 ]
The opinion of the court was delivered by Brewer, J.: A motion for a rehearing in this case has been made, and an extended written argument filed in support thereof. The point made is this: The court in the prior opinion rested the decision upon the curative effect of the 41st section of ch. 100 of- the laws of 1872. The work, payment for which the city was seeking to collect, was done in 1871. This curative section was enacted subsequently, in 1872, and we held it valid, and applicable to the proceedings in question. Now counsel contends that this 41st section is substantially the same as the 20th section of ch. 62 of the laws of 1871, and must therefore be considered as enacted in 1871, and before instead of after the work. He rests this claim upon a rulfe for the construction of statutes found on page 999 of the Gen. Stat., which reads: “ The provisions of any statute, so far as they are the same as those of any prior enactment, shall be construed as a continuation of such provisions, and not as a new enactment.” This, as are all the other rules of construction, is subject however to this important qualification which prefaces them: u In the construction of the statutes of this state the following rules shall be observed, unless suoh construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the statute.” Now in determining the intent of the legislature we are not limited to a mere consideration of the language employed. We may properly look to the purposes to be accomplished, the necessity and effect of the enactment under the different constructions suggested. Thus, if the legislature should pass at one session an act for raising revenue, which should specify no year, but simply direct the levy of a certain tax, and the succeeding legislature should pass an act in exactly the same language, no one would contend that the second was a mere continuation of the first, taking effect as of its date, and providing for no new levy. For the manifest intent of the legislature, an intent not manifested by the form of words, but by the purposes to be accomplished, and the surrounding circumstances, repudiates such a construction. So, if in 1875 the legislature had passed an act in exactly the same language as ch. 20 of the laws of 1874, appropriating $7,000 to the Leavenworth Protestant Orphan Asylum, is it not plain that the same would have accomplished a new donation ? So again, if year by year we found the legislature passing acts in the same terms, validating defective tax proceedings, and curing irregularities therein, would not every one be constrained to say that these successive acts should be construed as separate enactments, each operating upon all defects and irregularities prior to it, and not as simply a continuation of the first and operating only .upon matters prior to that? For otherwise, why this repetition of laws? In the illustration last cited the first enactment would cure (so far as remedial legislation can cure) all the preexisting irregularities and defects; and a. mere repetition would add nothing to its curative power. And to impute to the legislature an intent to go through the form and time and expense of legislation to do that already fully and completely done, is unwarranted. Now, is there any principle underlying these several cases of legislation which serves to indicate the legislative intent— any fact which makes plain its purpose? This fact is evident in reference to them all. The earlier act had accomplished its purpose, and spent its force prior to the enactment of the second. Much of legislation, perhaps most, is prospective in its reach, and, so to speak, of continuing operation. That is, it establishes a rule of action for future and indefinite time, operating upon all matters which may thereafter arise coming within its terms. Thus, the crimes act, defining what shall constitute certain offenses, and prescribing penalties therefor, operates upon all acts thereafter done coming within its terms. In case of a repetition of such legislation it may well be held, in view of the rule of construction above quoted, that in the absence of any particular matters indicating a contrary intent, the second enactment simply keeps alive and continues in force the prior. This preserves that continuity in legislation which is the evident purpose of the rule. It prevents those unfortunate breaks and interruptions, with their deplorable results, which in the absence of such a rule have been so often felt and so frequently noticed by courts here and in other states. But there is some legislation which, though prospective, operates only for the performance of a single definite act; and some retrospective, operating upon existing and past circumstances, and defining the rights and obligations derived therefrom. In both such cases the law is without any continuing force. In the first case, when the act authorized or required has been done, the law has exhausted its purpose, and spent its force. And in the second, it accomplishes its purpose at the very moment of its passage. In a certain sense it dies at the moment of its birth. Thus, an act authorizing an appropriation, accomplishes its purpose and exhausts its force when the appropriation has actually been made; and an act validating prior defective acknowledgments, or irregular tax proceedings, accomplishes its purpose as soon as it is passed. It becomes no stronger by lapse of time, and reaches and operates upon no other matters. Now in such cases, if a succeeding legislature enacts a similar law it cannot be that the legislature intended simply a continuation of the prior law, for there is really nothing to continue — that law has ceased to have force. It has no living, present operation, nothing to be continued. And the only way in which an intent to accomplish anything can be established is by construing the later law as a new enactment. It must be presumed that the legislature was familiar with the rules it had laid down for the construction of its own enactments, understood the scope and effect of its legislation, and by every law intended to accomplish something. We think therefore that this may be stated as a general rule, that where the legislature enacts a law which is the same in terms as a prior statute, if such prior statute has wholly accomplished its purpose, aud spent its force, the latter law must be held, notwithstanding the rule of construction quoted, to be a new enactment, and not merely a continuation of the former. We have given this subject careful thought, for our first impression, after reading the brief of counsel, was, that his point was a good one. But the disastrous results which would flow from making this rule one of general application caused us to hesitate and reexamine the matter. That reexamination has satisfied us of the soundness of the distinction we have drawn between the classes of legislation as affected by this rule. Upon that, this motion is decided. We may be pardoned also for suggesting this query: Does the rule in any case prevent the later law from operating as a law of the date of its passage upon all matters within its terms ? Is it not satisfied when it preserves a continuing force to the legislative command, a continuing operation to the legislative rule, leaving to each law to act as a present expression of legislative .intent upon all matters within its terms? Must both laws in effect bear date as of the time of the enactment of the first? We have assumed in this case that the law of 1871 was purely retrospective in its operation; that it applied only to prior defects and irregularities, and was not intended to apply to defects that might thereafter arise in subsequent tax proceedings. Such is the claim of counsel, and for the purposes of this case and argument we do not question the claim. We have also assumed that there is such a similarity between the two statutes as to bring them within the terms of the quoted rule, although the latter law speaks of “taxes and assessments for improvements,” while the language of the former is “taxes for improvements.” The claim of counsel is, that the context makes it plain that this expression was intended to include both taxes and assessments in the sense that these terms are generally used. To sustain this claim he has devoted a large portion of his argument. Yet conceding both these matters to be as counsel claims, we are constrained, for the reasons given, to decide adversely upon the main question, and must overrule his motion. All the Justices concurring.	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The opinion of the court was delivered by Brewer, J.: The proceedings in this case were had under §§ 65, 66 and 67 of the Tax Law, (Gen. Stat., page 1041.) Ross was cited to appear before the county clerk for failing to return all his personal property for assessment. He appeared, an inquiry was had, testimony heard, and the county clerk found that he had omitted from his return considerable property, and ordered that it be corrected. The case was taken on error to the district court, which affirmed the decision of the county clerk, and it comes to us on error from the district court. Several objections are 'made to the record. It is claimed that the evidence does not support the findings of the clerk. It is unnecessary to say more than that after examining the evidence, we are satisfied that there is enough to support both the findings and the order made: by the clerk. Again, it is said that the findings do not support the order. The findings are— “That the information as alleged is true, and that Melvin Ross had in his possession, on the 1st day of March 1874, which he refused to list to the said R. E. Carlton, assessor of said township of Baker, the following personal property, to-wit: three horses, twenty-seven hogs, four head of cattle, notes $1,000, and notes secured by mortgage $1,210.” The objections are, that he failed to find, “First, the value of the property; second, that the property was in Crawford county on the first day of March; third, that the property belonged to Melvin R. Ross; fourth, that Ross willfully and fraudulently failed to list said property — in order to compel him to pay costs.” The order made by the county clerk was as follows: “It is therefore considered by me, that said personal property above described should and of right be assessed against him, the said Melvin R. Ross, and that he pay the costs and expenses of this examination.” The record stops with this order, and shows no further proceedings. Whether the county clerk himself valued this property, or referred the matter back to the assessor, and indeed whether the personal assessment of Mr. Ross has actually been raised a single dollar, are matters not appearing in this record. Perhaps if raised at all, it was only raised to the amount of the notes, whose face is prima facie their value. At any rate, until we are informed as to the actual increase in the amount of the assessment, we cannot say that there was error in failing to place a value upon any specific property. In reference to the site and ownership of this property, it may be said that we may not expect the same precision in these proceedings as in those of courts, at least those of superior jurisdiction. The information given to the clerk was that Mr. Ross “ did not list the true amount of his personal property.” He finds this information to be true. Now what is fairly implied by this information — that he had failed to list all his personal property? or, that he had failed to list all that he ought to have listed — the true amount subject to assessment? This last seems a reasonable construction; and when the clerk finds the information to be true, he finds that Ross failed to list all his property subject to assessment, and then specifies the omitted property. In reference to the costs, the statute provides that if the party makes “a false statement of the amount of property for taxation, to evade the payment of taxes,” he shall pay all the costs and expenses of these proceedings. Where there is no intention to evadé the payment of taxes the county pays the costs; (§ 66.) The county clerk charges the costs upon Ross. He finds that he “ refused ” to list this property. Such a refusal, it is true, may be consistent with an honest belief that the property was not taxable, and may not have been made with the intention of evading the payment of taxes. But there is no finding that the omission was from mistake, or an honest error of judgment; and a man is presumed to intend that which is the natural and necessary result of his actions. But again and chiefly, in these proceedings separate and distinct findings of fact are not essential, certainly not when none are demanded. The order is evidence of what the clerk found to be the facts. He may and must, it is true, file in his office a statement of the facts, or the evidence, on which he has made the correction; but it may be either the facts, or the evidence. Here he filed a statement of the evidence, and also of the facts he found therefrom. But as the latter was unnecessary, there is no error if it be incomplete. We can regard simply the evidence and the order. And when he charges the costs against Ross, it is equivalent to or rather implies a finding that Ross made an untrue return to evade the payment of taxes. Again, it is said that the conferring of judicial powers upon the county clerk is in conflict with §§1 and 11 of article -3 of the constitution. The point in the counsel’s mind seems to be, that as a vacancy in a judicial office is, according to the constitution, to be filled by appointment of the governor, while a vacancy in the county clerk’s office is according to the statute filled by appointment of the county board, that therefore the county clerk is not a judicial officer, and no judicial functions can be committed to him. If it were conceded that these sections confer judicial powers upon the county clerk, that thereby he becomes pro tanto the judge of a court, and holds a judicial office, and that the constitution requires that all vacancies in judicial offices shall be filled by appointment of the governor, and that such provision applies to such an officer, the result, it seems to us, would be, that the statute providing for appointment by the county board would be void as conflicting with the constitution, and not that the grant of powers would be null because the constitutional method of filling vacancies was ignored in the statute. So that, if all be as counsel seem to claim, the result would not be as contended for. We do not wish however to be understood as deciding that the premises are as claimed. Finally, it is insisted that these provisions of the statute are void, because there is no allowance for a trial by jury. We do not understand that the right of trial by jury, as preserved in the state constitution, entitles a party to a jury except in such cases and proceedings as prior to the constitution gave-a right to a jury. As to all matters which prior to constitution were disposed of by summary proceedings, the legislature may make similar provision to-day. As to proceedings which (like the one before us) are simply*proceedings in assessment, and not to enforce in any way a penalty, either by fine or by double or treble tax, no right to a jury existed prior to the constitution. It would be strange indeed if the state had not the right in a speedy and summary way to complete its assessments; and that is all these proceedings contemplate. We see no error in the record, and the judgment must be affirmed. All the Justices concurring.	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The opinion of the court was delivered by Porter, J.: In an action before a justice of the peace, the plaintiif on the 26th day of May, 1909, recovered a money judgment against the defendant. Within ten days thereafter the defendant filed' in the district court a petition in error to which was attached a bill of. exceptions signed and allowed by the justice of the peace. Thereafter the plaintiff filed a motion to • dismiss the proceedings on the ground that the district court had no jurisdiction to hear and determine the same, which motion the court denied. The case came on for hearing, and the court held that the justice erred in refusing to sustain defendant’s motion to quash the summons, and thereupon the court entered judgment dismissing the action at the costs of the plaintiff. The sole question involved in the appeal is settled by the decision in Kroenert v. Sawyer, 87 Kan. 374, 124 Pac. 418, wherein it was held that the only way in which a review can be had of a judgment or final order of a justice of the peace is by appeal, since the amended code (§ 567) has abolished petitions in error and bills of exceptions. The judgment will therefore be reversed and the cause remanded with directions to set aside the judgment dismissing the action, and to dismiss the petition in error at the costs of the defendant.	[ -44, -30, -36, 14, 10, 96, 34, -98, 64, -95, -74, 83, -87, 80, 0, 121, 115, 41, 81, 106, -34, -93, 23, -29, -46, -109, -63, -35, -79, 124, -26, -41, 76, 48, 66, -75, 70, -63, 1, 92, -114, 2, 8, -24, -39, 74, 48, 123, 18, 11, 113, -18, -29, 46, 24, -61, -23, 60, -6, -67, 112, -80, -118, 13, 127, 20, -95, 34, -98, 7, 124, -84, -104, 49, 1, -23, 114, -90, -122, -44, 97, -71, 41, 98, 98, 49, 61, -17, -72, -87, 46, 26, -115, -25, -100, 24, -53, 37, -74, -97, -19, 48, 7, 124, -21, -116, -33, -84, 3, -102, -44, -79, -81, 60, -120, 127, -17, -93, 52, 117, -123, -20, 92, 71, 18, -101, -50, -112 ]
The opinion of the court was delivered by Valentine, J.: This was an action upon a promissory note and a real-estate mortgage made to secure said. note. The action was commenced by Henry Wright against C. B. Bacheller and Allie B. Bacheller. The court below rendered a personal judgment in favor of Wright and against C. B. Bacheller for the amount of the note; but rendered a judgment in favor of the other defendant, the said Allie B., that said mortgage should be delivered up and canceled 'and held to be no cloud upon the mortgaged premises. It is this latter judgment of which the plaintiff in error now complains. The principal questions involved in the case are, whether the court below erred in refusing to allow Wright to amend his replication, and whether the answer of the defendant Allie B. is sufficient to sustain the judgment rendered in her favor. There are several other questions however involved in the case, which we may consider as we pass along. The discussion of the first question will require that we shall give substantially a history of the proceedings in the court below. The petition was an ordinary petition on a note and mortgage. It described the note and mortgage, alleging the execution of the note by the defendant C. B. Bacheller, and the execution of the mortgage by both defendants, and giving a copy of the note, but not giving a copy of the mortgage. The defendant C. B. Bacheller never filed any pleading or motion in the case, or made any appearance as a party therein. The defendant Allie B. contested the plaintiff’s cause of action. She filed an answer, but before doing so moved the court below “to compel the plaintiff to file with and make a part of his said petition a copy of said mortgage-deed mentioned in plaintiff’s petition.” The court sustained the motion, and a copy of said mortgage was so filed. There was a clerical mistake however made in the petition in describing said mortgage. In one place, where the word “exchange” occurred in the original mortgage the word “chenange” was written in the petition. In all other respects the mortgage seems to have been correctly described. But the copy of the mortgage filed in the case in pursuance of said motion of the defendant, and of the order of the court below, seems to have been an exact and literal copy in every particular of the original mortgage as the same was executed by the two defendants. Afterward, the defendant Allie B. filed an answer to the plaintiff’s petition, containing two defenses. The first defense was substantially a'denial of the very existence of said mortgage. It reads as follows, (omitting the heading,) “That she denies each and every allegation in plaintiff’s petition contained, so far as the same in any manner refers to the mortgage-deed mentioned in plaintiff’s petition.” This defense was verified by the oath of said Allie B. Baoheller, and of course put in issue the execution of said mortgage, and threw the burden of proving its execution and its existence upon the plaintiff. The second defense reads as follows: “The defendant Allie B. Baoheller, further answering, separately, for herself, and for a cross-petition says: That if she ever executed any mortgage-deed (which she denies,) to said plaintiff, either separately or conjointly with her husband C. B. Baoheller, the execution of the same was while the married relation between her and the defendant C. B. Baoheller subsisted, and she, this defendant, was a feme covert; and that said mortgage-deed, if any was given (which she denies,) was given to secure the payment of a pretended promissory note to the consideration of which said pretended promissory note this defendant was an entire stranger, (if there was any consideration for the said note, which this defendant denies;) and that said mortgage-deed (if any was executed, which she denies,) was for the premises which were used and occupied at the time as a homestead by this defendant and her family, and which said premises has ever since been'and now is used and occupied as a homestead by this defendant and her said family, (consisting of three minor children;) that said mortgage-deed (if any there was executed by this defendant, which she denies,) the execution of the same was not the voluntary act and deed of this defendant, but the execution of the same (if any execution there was,) was extorted from and forced upon her, this defendant, by her said husband, said C. B. Bacheller, while the marriage relation existed as aforesaid, by threats and intimidations by the said C. B. Bacheller to her (this defendant) made, that he the said C. B. Bacheller would kill her, the said defendant, if she, the said defendant, did not execute the same; and that he, the said C. B. Bacheller, would do this defendant grievous and great bodily harm unless she, the said defendant, did execute the said mortgage-deed to said plaintiff for the said premises, and that he the said C. B. Bacheller would turn this defendant, then his lawful wife, out of house and home, unless she, the said defendant, would execute the said mortgage-deed, (if said mortgage-deed ever was executed,) and that he the said C. B. Bacheller would drive her, the said defendant, from her said home and send her to her father in the state of Kentucky, unless she the said defendant would execute the said mortgage-deed to said plaintiff; and that he the said C. B. Bacheller, who was at that time the lawful husband of this defendant, would separate himself from and abandon this defendant, together with her children, unless she the said defendant would execute said mortgage-deed; and that this defendant, believing that the said C. B. Bacheller would put his said threats and intimidations into execution if she the said defendant should not execute the same, and by reason thereof, and out of fear that he would do so, she the said defendant was constrained, forced, and compelled, by fear of great bodily harm, to execute the same against her (the said defendant’s) will and consent, and contrary to her express wishes; and this defendant paid out of her own private earnings, and her separate property, a great portion of the purchase,-money of said premises. “Wherefore this defendant prays that said pretended mortgage-deed (if any there was executed,) be set aside and held for naught, and this defendant’s title to said premises so as aforesaid occupied by her as a homestead be forever quieted against any claim of the said plaintiff thereto, and for such other and further relief as to the court, in equity and good conscience, may seem just' and proper, besides the cost of this action.” Afterward, on the 27th of April 1873, the plaintiff filed his reply to this answer, which reads as follows: {Title.) “And now comes the plaintiff by O. M. his attor v ney, and for reply to the defendant Allie B. Bacheller’s answer herein, denies each and every allegation therein.” On the 23d of May the plaintiff filed his motion for leave to file an amended replication in said action, which motion was granted, and the court entered an order allowing the plaintiff to file an amended reply; and on the same day the plaintiff filed an amended reply, which is duly entitled in the name of the court, and names of plaintiff and both defendants, and which then reads as follows: “And now comes the said plaintiff, Henry Wright, and for his amended and special replication herein, (leave of court first had,) says, first, he admits that at the time of the execution of the mortgage in question the said Allie B. Baeheller was the lawful wife of the defendant C. B. Bacheller. “The plaintiff for a further special replication to the second defense of defendant Allie B. Bacheller stated in her answer filed herein, states that on the 24th of December 1872, and after the execution of the mortgage in dispute, the defendant C. B. Bacheller, by a judgment rendered in this court, obtained a divorce from the defendant Allie B. Bacheller; that a judgment was rendered in said divorce suit, directing the said C. B. Bacheller to convey to the said Allie B. Bacheller the house and lot mentioned in plaintiff’s petition, said conveyance to be by quitclaim deed, which the defendant C. B. Bacheller did execute and deliver to the defendant Allie B. Bacheller on the 1st day of January 1873; that by agreement between the defendants, the defendant Allie B. Bacheller was to pay off and discharge the said mortgage; that she well knew that the amount claimed was due and owing to the plaintiff for money borrowed of him to pay off a mortgage, which last-mentioned mortgage was given for the balance due for the purchase-money of said house and lot; and that the defendant Allie B. Bacheller, then and there promised the defendant C. B. Bacheller to pay the sum due the plaintiff on the mortgage in the petition mentioned, if the said C. B. Bacheller would so deed her said house and lot, the said C. B. Bacheller at the time having the legal title to. said house and lot. Wherefore plaintiff asks judgment,” etc. The case was afterward tried by the court below, without a jury. The record shows that when the plaintiff first offered upon the trial to introduce his evidence, “the defendant Allie B. objected to the introduction of any evidence being given by' the plaintiff against her, because no evidence was admissible under the pleadings, which objection was overruled by the court, to which ruling of the court the said Allie B. Bacheller excepted.” The plaintiff then introduced his evidence, to nearly all of which the defendant Allie B. objected, as being “irrelevant, incompetent, and immaterial.” At one time the objection was, that the evidence was “incompetent and irrelevant, and no issue joined, and inadmissible under the pleadings.” The said evidence of the plaintiff was introduced for the purpose of proving the due execution of said mortgage, and prima fade it unquestionably did so prove the same. After the plaintiff rested his case, the defendant Allie B. demurred to the plaintiff’s evidence on the grounds, as alleged by her, “that the plaintiff has not adduced sufficient evidence in this case to entitle him to any relief against the defendant, or to prove a cause of action,” which demurrer the court overruled, and the defendant excepted. The defendant Allie B. then introduced several witnesses for the purpose of proving that she did not execute said deed voluntarily, but that she executed it because her husband threatened to drive her from the premises if she did not execute it. She herself testified that she executed the mortgage, but that she did not do it voluntarily. The défendant then rested, and the plaintiff proceeded to offer rebutting evidence, and while introducing such evidence the defendant for the first time raised the. specific question that there was no sufficient reply in the case putting in issue the allegations of the defendant’s answer. “Defendant Allie B. Bacheller moved to strike out all the evidence introduced by plaintiff in rebuttal on the ground that it was incompetent, irrelevant, and immaterial under the issues made by the pleadings, and no general denial in; overruled, and excepted to by defendant Allie B. Bacheller. But afterward, the court having minutely examined the pleadings decided that there was no general denial in reply, and ruled out the plaintiff’s evidence in rebuttal so far as Ed. S. Waterbury’s testimony, and that part of exhibit A of this bill of exceptions, which purports to be the acknowledgment of Allie B. Bacheller — to which ruling of the court the plaintiff excepted.” Exhibit A was the said mortgage, and the acknowledgment thereon, as the same appears to have been executed and acknowledged by the two defendants. The mortgage and acknowledgment were in due form, and appeared on their face to be properly executed, and both had previously been read in evidence. It is evident from the foregoing, as well as from the absence of every thing in the record showing the contrary, that the precise question as to whether the plaintiff had a general denial in the case, had not previously been raised. The “Defendant Allie B. Bacheller then moved the court for judgment in her tavor upon the pleadings in the case, to which plaintiff objected. The plaintiff then filed a motion for leave to amend his amended reply, supported by affidavits,” which motion reads as follows: {Title.) “Comes now the plaintiff in the above-entitled cause, and moves the court for leave to amend his amended reply so as to deny each and every allegation of the second defense set forth in the answer of defendant Allie B. Bacheller, except that she was the wife of C. B. Bacheller — for the reason that the attorney of said plaintiff was of the opinion, until the present ruling of the court, that the original reply filed herein (which was a general denial) was to still stand, and was not superseded by the amended reply filed hérein, but that in point of law said amended reply was only additional to the original reply. O. M., Att’y for Plaintiff.” The affidavit of said O. M. in support of said motion reads as follows: {Title and Venue.) “O. M. being duly sworn deposes and says, that he is the attorney for the plaintiff in the above-entitled cause, who made up the pleadings for the plaintiff in said cause, and that when he filed the amended reply herein he had no intention of abandoning the original reply then on file in said cause, but intended the amended reply to be only an addition to said original reply, and then believed (and did believe until the ruling of the court this morning) that such was the legal effect of said amended reply, and that it- did not supersede said original reply but that both stood together.” The court below overruled the plaintiff’s motion for leave to amend his reply, and then overruled the defendant’s motion for judgment on the pleadings. Afterward, other and additional evidence was introduced by each of the parties. Under the circumstances of this case we think the court erred in overruling the plaintiff’s motion to amend his reply. The plaintiff seems to have prosecuted his action in the utmost good faith in every particular, from beginning to end. He seems to have been entirely willing and desirous . _ _ . "ave the case tried and decided upon its merits, notwithstanding the extraordinary answer filed by the defendant. He made no attack upon the sufficiency or good faith of such answer, but seemed desirous only of showing by evidence that the allegations thereof most favorable to the defendant were not true. And up to the time that the court ruled that he had no general denial in the case, he thought he could do so. He seems to have supposed that his “ amended and special replication,” was only a special replication in the case, and that his “general denial” was still his general plea therein, putting in issue all the material allegations of the second defense stated in defendant’s answer. He in good faith intended that such should be the case, and with a few additional words in his reply such might have been the case. Amendments may be made in the manner the plaintiff intended to amend his original reply. (Fitzpatrick v. Gebhart, 7 Kas. 35, 44; Hill v. Supervisors, 10 Ohio St. 621.) But the plaintiff , by the omission of a few words failed to make the amendment he desired to make. Now, replies may sometimes be waived by the parties going to trial without them. (Wilson v. Fuller, 9 Kas. 177, 189, 190; Russell v. Smith, 14 Kas. 336.) A reply may sometimes be filed during the progress of the trial. (Taylor v. Hosick, 13 Kas. 518, 526; Grant v. Pendery, 15 Kas. 236.) Amendments may sometimes be made to pleadings during the progress of the trial, or even subsequent thereto, upon such terms as may be just. (Code, §139.) Courts may sometimes commit substantial error by refusing to permit amendments to be made. (Koons v. Price, 40 Ind. 164.) And they may even commit substantial error in some cases by refusing to permit amendments to be so made during the progress of the trial. (Gaylord v. Stebbins, 4 Kas. 42; Hunt v. Fyffe, McCahon, 75; Stringer v. Davis, 30 Cal. 318; Schieffelin v. Whipple, 10 Wis. 81, 82; Bailey v. Kay, 50 Barb. 110.) But when we examine the defendant’s answer, the reason becomes still more apparent why the plaintiff should have been allowed to amend his reply. The plaintiff desired to amend his reply so that it would put in issue those allegations of the defendant’s answer which declared that she was forced by her husband to execute said mortgage against her will. He wished to deny what she had already in one sense denied. He wished to deny that she had involuntarily executed the mortgage. She had already denied that she had executed it either voluntarily or involuntarily. This she did in the same defense in which the allegations are which the plaintiff wished to deny. But in verifying the first defense she swore substantially that she never executed said mortgage in any manner, either voluntarily or involuntarily. In the second defense she denies that “ she ever executed any mortgage-deed to said plaintiff, either separately or conjointly with her husband.” These allegations are inconsistent with the affirmative allegations of the answer; for it-cannot be true that she executed a mortgage under duress which she never exe°uted. The setting up of inconsistent defenses like these should never be encouraged. (Butler v. Kaulback, 8 Kas. 672, 673.) Under the circumstances of this case we think the court below should have allowed the plaintiff to amend his reply so that he could have litigated the question of duress upon its merits. The defendant claimed that her second defense was not merely a defense to the plaintiff’s action, but that it also set forth a cause of action on her part by way of counterclaim, for which she asked affirmative relief. Said second defense was filed as a cross-petition, and the court below granted the affirmative relief which she asked. Now if said answer was what the defendant claimed it to be, and what the court below held that it was, then the plaintiff could not dismiss the whole action so as to commence again, for he could not dismiss the defendant’s cross-petition, or counterclaim; (Code, § 398.) And the plaintiff should not have been required under the circumstances to take the chances as to whether said second defense stated a good affirmative cause of action on the part of the defendant or not. We think the amendment ought to have- been allowed without costs. We have assumed in this opinion that the second defense stated in the answer was sufficient, as a defense, to require a reply thereto, but we do not so decide. We simply express no opinion upon that subject. If it was not sufficient, then of course the judgment of the court- below founded thereon cannot be sustained. As a cross-petition, setting forth an affirmative cause of action, a counterclaim, we think it was wholly insufficient. In such a case the cause of action must be set forth with the same particularity, completeness and exactness as’it would be if it were set forth in a petition by a plaintiff. Viewed in this light, is said count sufficient? May a plaintiff allege in his petition that he never executed any mortgage, but if he did it was done under duress, and then ask the court to have it canceled and held null and void? We think not; and therefore we think that the second defense in defendant’s answer is not sufficient to sustain the judgment rendered thereon. This might be otherwise if the judgment were attacked collaterally. But when attacked directly by a petition in error, as in this case, we do not think that the judgment can be sustained. The- plaintiff in error raises several other questions. For instance, he claims that the court below erred in permitting the defendant to introduce certain evidence of one R. M. Bradley,-a witness for the defendant, which evidence reads as follows: “By some means, one or more of the letters I wrote to her fell into the hands of Bacheller, who answered it in an inso lent manner, stating that unless his wife should unite with him in such mortgage, she should leave his premises, as he intended to do as he pleased with his own family, and his own business. There were several other threatening'declarations in the letter against his wife, all tending in the same direction. These letters were destroyed by me, together with some others of the same character. As Bacheller and his wife were still living together as man and wife, deponent supposed that they would continue to do so, and did not want said letters to be seen by others.” Now there is no evidence in the case that shows that Bradley ever saw Bacheller, or knew anything about his handwriting; and n°ttdng to show how Bradley knew that the answer he received was written by Bacheller, or came from him. There is nothing in the record that shows that Bacheller’s wife ever knew, till the day of the trial, that Bacheller ever wrote any such letter to Bradley, or that he ever wrote any letter of any kind. There is nothing to show when Bacheller wrote this letter, or that it had any reference whatever to the mortgage in controversy. There was some illegal testimony offered and ruled out that tended to show that it had reference to the Wright mortgage. The genuineness of the letter, or its relevancy to the case, was not in any manner proved or shown, except by the foregoing evidence of Bradley.- Whether this evidence of Bradley was erroneously permitted to be introduced, it is now wholly unnecessary for us to decide. If the issues had been properly made up, the court would have erred in striking from the plaintiff’s evidence the defendant’s acknowledgment appended to said mortgage; for in such a case the acknowledgment should have been considered for what it was worth. (Gen. Stat. 188, § 26.) The judgment of the court below in favor of the defendant in error and against the plaintiff in error will be reversed, and cause remanded for further proceedings in accordance with this opinion. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: This was an action on a promissory note. Charles E. Briggs was the maker thereof, and James Faulkner was the payee. Faulkner assigned the note to D. S. Tye, and Tye commenced this action against Briggs to recover the amount thereof. Briggs answered, setting up three defenses. The plaintiff Tye demurred to the third defense, and the court below sustained the demurrer. This is the first ruling of the court below assigned for error. Whether such ruling was erroneous or not, it is now wholly unnecessary to determine; for after said ruling was made the defendant amended his answer, setting forth therein all that he had previously set forth in the defense demurred to, and much more, and then went to trial upon the facts as alleged in his amended answer. Under this amended answer he could prove all that he had a right to prove under his original answer, and more too. Therefore any error that the court may have committed by sustaining said demurrer was rendered wholly immaterial by these subsequent proceedings. The defendant set forth in his answer and amended answer substantially the following as the facts: Sarah L. Larimer owned a certain piece of land, but James L. Gilbreath and Mary Ann Gilbreath pretended to own the same. Said Tye and Faulkner acted as the agents of said Gilbreaths in procuring a sale of said land. And although they knew that Gilbreaths had no title to said land, still they induced the defendant Briggs to purchase the same. Briggs, in consideration for said land and another piece of land, paid to said agents $700 in cash, and gave to them said promissory note. Faulkner then, in consideration for said cash and note, and as attorney-in-fact for said Gilbreaths, executed to' Briggs a general warranty deed for said land — said deed containing all the usual covenants. Said agents however transcended their authority by inserting said covenants. Afterward said Larimer evicted the defendant from said land. Said agents still retain the money paid to them by the defendant, not having paid any portion thereof to their principals. The said Gilbreaths are non-residents of the state of Kansas, and are wholly insolvent. The defendant has been damaged to the amount of $1,000 by said transactions, for which amount he asks judgment. He also asks to have said note canceled, etc. The plaintiff replied to this answer by filing a general denial. The action was then tried before the court and a jury. Under the pleadings the burden of proof rested upon the defendant. He offered first to introduce a sheriff’s deed for the purpose of showing that the title to said land had been transferred by said sheriff’s deed from said Gilbreaths to said Sarah L. Larimer prior to the time when he purchased said land from Gilbreaths’ agents. The plaintiff objected, and the court sustained the objection. This is the second ruling of the court below assigned for error. Said sheriff’s deed reads as follows: “Know all men by these presents that, whereas, Horace Hull recovered a judgment before Lyman E. Rhoades, a. justice of the peace within and for the county of Allen, on the 10th of July 1860, against J. L. Gilbreath for the sum of $30.19 debt, and $3.60 costs of suit, and whereas the,said Horace Hu,ll afterward on the 14th of April 1863 sued out of the clerk’s office of the 4th judicial district an execution on the said judgment bearing date the 14th of April 1863 and directed to the sheriff of said Allen county commanding him,” etc., etc. This deed is defective in not showing that a transcript of the judgment rendered by justice Rhoades was ever filed in the office of the cleric of the district court in and for Allen county, and in not showing that the execution was issued by the cleric of the district court in and for Allen county. At the time said execution was issued there were about eight clerks of the district court of the “4th judicial district.” There was one for each county. The first-mentioned . , _ _ defect is more material, as we think, than the second. It is possible that presumptions might aid the second, but we can hardly think they could sufficiently aid the first. We do not wish however to decide that said first-mentioned defect necessarily renders the deed void. But we do think that it destroys the prima facie validity of the deed. That is, it renders the deed apparently void. Such a deed is not prima fade evidence of title in the grantee. And if in any case such a deed should be held to be valid, or any evidence of title in the grantee, other evidence than the deed itself must first be introduced to show that the proceedings upon which the deed is founded, and which the deed itself fails to show, were in fact regular and valid. The plaintiff in error claims that said deed contains all that the law requires that it should contain. We think differently however. The statute among other things requires that the deed “shall recite the execution or executions, or the 'substance thereof.” (Comp. Laws, 200, § 450.) And we think that the execution should contain all the above-mentioned things which this deed omits. The execution should show upon its face that it was regularly issued, that it was issued by the proper officer, that it was issued by an officer having authority to issue it; and therefore we think it should show in this case, upon its face, that the transcript of the justice’s judgment was duly filed in the office of the clerk of the district court before the execution was issued. The statute-does not pretend to designate everything that shall-be inserted in an execution, or in a sheriff’s deed; and therefore, in the absence of statutory provisions we should think upon general principles enough should be stated in the execution or in the sheriff’s deed to show prima facie that all the necessary proceedings to make such instrument valid were in fact had. It will hardly be presumed in the absence of all evidence that something was done which the instrument itself does not even intimate was done. The filing of the transcript of a justice’s judgment is purely the act of the judgment-creditor himself. The issuing of an execution on the same is purely a ministerial act of the clerk. The clerk does not judicially determine that the transcript was filed. No judicial determination is held upon the subject. Even a decision of the court upon a confirmation of a sheriff’s sale is no judicial determination of that question. (Koehler v. Ball, 2 Kas. 160, 172; Challiss v.Wise, 2 Kas. 194; White-Crow v.White-Wing, 3 Kas. 276.) The fact of the filing of the transcript of the justice’s judgment is left to be proved prima facie by the sheriff’s deed. But if the sheriff’s deed does not show it, then it must be proved by other evidence. And until it is proved it cannot be presumed that any proceeding depending thereon is valid. Until such fact is proved it would be proper to exclude the deed as evidence. For if such transcript had never been filed, of course the deed would be void. Afterward the defendant offered to introduce the justice’s judgment, with all the proceedings connected therewith; the execution, and all the proceedings connected therewith, and evidence tending to show that a transcript of the justice’s judgment had been duly filed with the clerk of the district court of Allen county before said execution was issued; but the plaintiff objected, and the court below susV ' tained the objection. This ruling is also covered ^ secon(j assignment of error. The execution is about as defective as the sheriff’s deed. It does not show that any transcript of the justice’s judgment was ever filed in the office of the clerk of the district court. But even if the execution were perfectly formal, still the judgment itself is defective, and apparently void. The transcript thereof shows that the action was commenced on July 9th 1860; that the summons was issued on that day, made Teturnable July 14th, and requiring the defendant J. L. Gilbreath to appear and answer on July 14th, at 1 o’clock p.m. The summons was received by the constable on July 10th, was served by leaving a copy thereof at the defendant’s residence on the same day, and was returned on July 14th. The transcript also shows that the judgment was rendered on July 10th. Whether this was before or after the justice handed the summons to the constable, is not shown. Whether it was before or after the summons was served on the defendant by leaving a copy thereof at his residence, is not shown. But it was, in any case, just four days before the justice had any jurisdiction to render any judgment against the defendant. (Sagendorph v. Shult, 41 Barb. 102.) The execution also shows that the judgment was rendered on July 10th 1860, and so does the sheriff’s deed, and there is nothing in the record tending to show that the judgment was rendered at any other time. It does not appear that the defendant ever made any appearance in the case, either on July 10th, or July 14th, or on any other day. But it does appear affirmatively, that he did not make any appearance on July 10th, or at the time when the •judgment was rendered. If this judgment was rendered on July 10th, (and the evidence unquestionably shows that it was,) it is of course void, and the court below did not err in refusing to receive it in evidence. Eor the reasons, if any are thought to be necessary, showing that such a judgment is void, we would refer to the case of Sagendorph v. Shult, supra. The judgment of the court below is 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 Samuel Miner against Louisa B. Pearson and Walter C. Pearson on a promissory note and a mortgage. The petition below alleged that both of the defendants executed said note and mortgage; and the copy of the note attached to the petition shows that both of the defendants executed the note, the name of Louisa B. Pearson being signed to the note first. It does not seem from the record that a copy of the mortgage was attached to the petition. The petition prayed for a personal judgment against both of the defendants, and that the land m'ortgaged be sold to satisfy such judgment. The defendants, although duly served with summons, made default by not filing any answer in the action. And by such default they admitted the truth of all the' allegations of the plaintiff’s petition. And therefore the court below should have rendered a personal judgment against both defendants for the amount of the note and mortgage, and should have rendered the further judgment that the land mortgaged should be sold to satisfy the debt. The court below rendered a judgment on the default/ but in doing so it did not render any personal judgment against Louisa B. Pearson. Why this was so, the record does not show. But the plaintiff, in his brief, attempting to account therefor, says: “ The court stating as a reason therefor, that Louisa B., being a feme covert, (wife to Walter C.) was not bound by her contracts set forth in the petition.” Now the record does not show that Louisa B. Pearson was a feme covert,, the wife of Walter C. Pearson, or the wife of any other person. But even if it did, still that would not be a sufficient reason for not rendering a personal judgment against her. A married woman may in this state bind herself by her contracts to the extent of her separate property. And a personal judgment may be rendered against her which will reach any or all of her separate property not exempt from execution under the exemption laws. Deering v. Boyle, 8 Kas. 525; Wicks v. Mitchell, 9 Kas. 80; Going v. Orns, 8 Kas. 85; Monroe v. May, 9 Kas. 466; Knaggs v. Mastin, 9 Kas. 532; Faddis v. Woollomes, 10 Kas. 56; Larimer v. Kelley, 10 Kas. 298; Furrow v. Chapin, 13 Kas. 107; Tallman v. Jones, 13 Kas. 438. There is no reason apparent in the record for the decision of the court below, and the reason suggested 'by counsel (which is not apparent in the record) is not a good one. The cause will be remanded, with the order that the judgment be modified so as to correspond with this opinion. All the Justices concurring.	[ -77, 108, 85, -68, -22, 96, -86, -120, -30, 33, -78, 119, -5, -54, 16, 41, -26, 41, 85, 107, 87, -77, 7, 64, -46, -13, -15, 84, -79, 94, -26, 87, 76, 48, -118, 85, -26, 106, -63, 80, 14, -123, 41, -23, -39, -64, 48, 59, 80, 9, 85, -50, -13, 46, 29, 78, -24, 46, 107, 61, 80, -8, -97, -97, 89, 2, -109, 53, -68, 7, -22, -86, -104, 49, 1, -23, 118, -90, -122, 84, 75, 59, 9, 118, 98, 1, -107, -17, -72, -120, 38, 118, -99, -90, -79, 88, 3, 36, -66, -99, 92, 84, -89, 126, -26, 13, 28, 108, 29, -53, -74, -80, 15, 126, -102, 3, -25, 75, 48, 113, -49, 104, 92, -31, 51, -101, -114, -102 ]
The opinion of the court was delivered by Herd, J.: This is an action by plaintiff-appellant Marion L. Wells, against defendants-appellees A. V. Davis and Pauline Davis and Davis Van and Storage, Inc. Wells obtained a judgment against Davis Van Lines, Inc. in a prior action and now seeks to have that judgment satisfied in this suit. Defendants-appellees filed a motion to dismiss the action and that motion was sustained by the trial court. Wells appeals. We reverse the trial court. It is essential to an understanding of the instant case that the parties and issues in the first action be reviewed. To that end, we present the facts in Case No. 65,735 in the District Court of Johnson County, Kansas. On July 16,1976, Wells sued Davis Van Lines, Inc. and A. V. Davis for wages he had earned as a truck driver for Davis Van Lines, Inc. The petition in that case alleged four grounds for recovery, but only the first two were litigated: against Davis Van Lines, Inc. for failure to pay wages under a contract of employment, invoking penalties under K.S.A. 44-315(a) and (b); against A. V. Davis personally, for failure to pay wages under a contract of employment, invoking penalties under K.S.A. 44-315(a) and (b); against A. V. Davis, alleging Davis Van Lines, Inc. was the alter ego of Davis, its principal stockholder; and against both A. V. Davis and Davis Van Lines, Inc., alleging fraud for issuing checks which were returned marked insufficient funds. Wells recovered a judgment in the amount of $28,229.53 against Davis Van Lines, Inc. based upon the first allegation against the company. A. V. Davis was personally absolved of liability. No appeal was taken. Thereafter, Wells attempted to satisfy his judgment but was unsuccessful due to the insolvency of Davis Van Lines, Inc. While attempting to collect from Davis Van Lines, Inc., Wells discovered Davis and his wife also owned Davis Van and Storage, Inc., which was solvent. On January 3, 1977, Wells brought the instant action against A. V. and Pauline Davis, later amended to include Davis Van and Storage, Inc., alleging its assets and that of Davis Van Lines, Inc. were commingled and that both were the alter egos of A. V. and Pauline Davis. The amended petition also alleged A. V. and Pauline Davis were liquidating the assets of both companies and that they personally depleted the assets of Davis Van Lines, Inc. and put those assets in Davis Van and Storage, Inc. to avoid the creditors of Davis Van Lines, Inc. Wells then made the following allegation: “That plaintiff obtained a judgment against Davis Van Lines, Inc. on the 15th day of November, 1976, in the amount of $28,229.53 in Case No. 65735 in Division 6 of the District Court of Johnson County, Kansas; and that execution has issued on that judgment but has been returned unsatisfied, and that unless judgment is entered against A. V. Davis, Pauline Dávis, and Davis Van and Storage, Inc., upon this First Amended Petition of plaintiff, plaintiff will have no reasonable expectation of any complete recovery upon his judgment.” Defendants moved to dismiss the action on the theories of res judicata and collateral estoppel. The motion was sustained and this appeal followed. K.S.A. 17-7101(b) is determinative of the allegation against A. V. and Pauline Davis. The statute provides: “No suit shall be brought against any officer, director or stockholder for any debt of a corporation of which he is an officer, director or stockholder, until judgment be obtained therefor against the, corporation and execution thereon returned unsatisfied.” Appellant, obtained a judgment against Davis Van Lines, Inc. on November 15, 1976; execution was issued and returned unsatisfied. A. V. Davis and Pauline Davis are both stockholders and directors of Davis Van Lines, Inc. Wells obviously has a cause of action against both A. V. and Pauline Davis under the statute unless his premature joinder of A. V. Davis in the first suit would preclude further action against him. We do not believe the premature joinder of Davis affects plaintiff’s rights because the allegations against Davis were not adjudicated. No reason was given by the trial court for the failure to adjudicate that issue. We hold res judicata and collateral estoppel are not bars to this action against A. V. Davis and Pauline Davis pursuant to the provisions of K.S.A. 17-7101(6). With regard to Davis Van and Storage Co., Inc., Wells alleges A. V. Davis and Pauline Davis are the directors, principal stockholders and alter egos of that corporation. He further alleges: “5. That as of August, 1976, and thereafter, the corporate office of Davis Van Lines, Inc. has been 6307 Robinhood Lane, the address and residence of each of the individual defendants and the corporate address of Davis Van and Storage, Inc. has been the same. “6. That in all manners and respects, Davis Van Lines, Inc., and Davis Van and Storage, Inc., are and were no more than a shell or a sham and a vehicle by which A. V. Davis and Pauline Davis have done business. That the monies of both Davis Van Lines, Inc., and Davis Van and Storage, Inc., are and have been commingled with monies of A. V. and Pauline Davis and utilized by A. V. and Pauline Davis for their own personal benefit. That certain stock in United Van Lines which purportedly is owned or was owned by Davis Van and Storage, Inc., was shown as an asset on the ledgers of Davis Van Lines, Inc., on the first day of February, 1977, when the attorney for the judgment creditor examined the books and records of Davis Van Lines, Inc., in the presence of A. V. Davis and James G. O’Sullivan, the attorney for Davis Van Lines, Inc. “7. That each company, Davis Van Lines, Inc., and Davis Van and Storage, Inc., at all times material hereto was the alter-ego of A. V. Davis and Pauline Davis, and that any and all steps prerequisite to a lawsuit against said individual defendants pursuant to K.S.A. 171701 [sic] have been taken by the plaintiff. “8. That A. V. and Pauline Davis are currently attempting to liquidate the assets of Davis Van Lines, Inc., and Davis Van and Storage, Inc., and that the business entity, Davis Van and Storage, Inc., has been used and shall be used as a vehicle by which A. V. Davis and Pauline Davis may conceal assets of Davis Van Lines, Inc. and themselves, personally. “9. That A. V. and Pauline Davis personally depleted the assets of Davis Van Lines, Inc., to the extent that the business of Davis Van Lines, Inc., with a net worth of nearly $400,000 on December 31, 1975, became worthless in August of 1976, according to their own financial statements. “10. That, though Davis Van and Storage, Inc. is shown as being in good standing by the office of the Secretary of State of the State of Kansas as of February 14, 1977, A. V. Davis, by his own testimony, alleged that Davis Van and Storage ceased to operate in November of 1976, but that said Davis Van and Storage continues to be the depository for certain assets of A. V. Davis and Pauline Davis as a part of a scheme by A. V. Davis and Pauline Davis to avoid the just and lawful creditors of Davis Van Lines, Inc., and of A. V. Davis and Pauline Davis.” In Hutchinson Nat’l Bank & Trust Co. v. English, 209 Kan. 127, 130, 495 P.2d 1011 (1972), we stated: “The salutary rule of res judicata forbids a suitor to twice litigate a claim for relief against the same party. The rule is binding, not only as to every question actually presented, considered and decided but also to every question which might have been presented and decided. (Topeka State Bank v. Waters, 121 Kan. 126, Syl. f 1, 245 Pac. 1028; Smith v. Russ, 184 Kan. 773, 776, 339 P.2d 286; Wells, Administrator v. Ross, 204 Kan. 676, 465 P.2d 966.) In Kansas the rule of res judicata is not binding and does not apply to a different claim for relief even though it may be between the same parties. (Tidewater Oil Company v. Jackson, 320 F.2d 157; Topeka State Bank v. Waters, supra; Smith v. Russ, supra.) However, when a different claim for relief is filed between the same parties a collateral estoppel may be invoked as to questions and issues shown to have been actually decided in the prior action. (Green v. Kensinger, 193 Kan. 33, 39, 392 P.2d 122; Bumison v. Fry, 199 Kan. 277, 428 P.2d 809.)” One of the requirements for invoking res judicata or collateral estoppel is the existence of parties who are the same or in privity with one another. Williams v. Evans, 220 Kan. 394, 396, 552 P.2d 876 (1976). Davis Van and Storage was not a party to the first action and is not in privity with the parties to the first action. The existence of privity depends upon the circumstances of each case. A privy is: “[Ojne who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, or purchase.” Bernhard v. Bank of America, 19 Cal. 2d 807, 811, 122 P.2d 892 (1942). See also Goetz v. Board of Trustees, 203 Kan. 340, 454 P.2d 481 (1969). Davis Van and Storage, Inc. derived no interest from Davis Van Lines which could cause it to be in privity with Davis Van Lines. The use of collateral estoppel also requires the issue brought against the parties in the second suit must have been adjudicated in the first action even though the claim is different. Williams v. Evans, 220 Kan. at 396. Res judicata requires, in addition to identity of the parties, that the claim or cause be identical. Goetz v. Board of Trustees, 203 Kan. at 349. Neither plaintiff’s allegation of alter ego nor the party Davis Van and Storage, Inc. was a part of the first action. Therefore, neither res judicata nor collateral estoppel is available as a defense to an action against Davis Van and Storage, Co., Inc. The trial court held although Davis Van and Storage, Inc. was not a party to the first action, plaintiff’s second suit against the company was barred by res judicata and collateral estoppel because the “plaintiff could have and should have litigated a theory of alter ego or piercing the corporate veil” against Davis Van and Storage, Inc. in the first action. The transcript indicates the trial court believed Davis Van and Storage, Inc. should have been named as a party to the first action. K.S.A. 60-219(o) states: “Whenever a ‘contingently necessary’ person, as hereafter defined, is subject to service of process, he shall be joined as a party in the action. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action. “A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” Davis Van and Storage, Inc. was not a contingently necessary party to the first action. Marion Wells first sued Davis Van Lines, Inc. as an employee of that company. The suit was for failure to pay wages he had earned as a truck driver for the company. There is no reason complete relief could not have been accorded Wells from a suit against Davis Van Lines, Inc. He had no prior knowledge of the company’s insolvency. Wells was not an employee of Davis Van and Storage, Inc. That company would not have been a proper party to the wage suit. We hold appellant correctly proceeded against A. V. Davis, Pauline Davis, and Davis Van and Storage, Inc. The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. Miller and Holmes, JJ., dissenting.	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The opinion of the court was delivered by McFarland, J.: This is a direct appeal by defendants Gary E. Howell and Gary J. Taylor from their convictions of aggravated assault on a law enforcement officer (K.S.A. 21-3411) and aggravated robbery (K.S.A. 21-3427). Each defendant was also convicted of unlawful restraint (K.S.A. 21-3424), but said convictions are not before us on appeal. The case involves a complex factual situation. By virtue of the narrow issues raised on appeal, only such facts as are necessary for their determination will be included herein. The first point on appeal is whether the trial court erred in overruling the defendants’ motion to quash the aggravated robbery count in the information. This count (Count Two) reads as follows: “That on or about the 20th day of June, 1978, the said Gary E. Howell & Gary J. Taylor, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully feloniously and willfully take property, to-wit: a 1975 Dodge Van, red and black in color, license tag #F08759, from the person of Gene Swarz, while the said Gary E. Howell & Gary J. Taylor were armed with a dangerous weapon, to-wit: a pistol in violation of K.S.A. 21-3427. Aggravated Robbery is a Class B felony pursuant to K.S.A. 21-4501(b).” After the State rested its case defendants moved to quash Count Two on the ground that it alleged no crime, as the element of aggravated robbery, requiring the taking to be by force or threat of bodily harm, was absent. The State did not request amendment of the count pursuant to K.S.A. 1978 Supp. 22-3201(4) and took the position that the count was legally sufficient. The trial court overruled the motion, holding the count to be legally sufficient in that it alleged the taking of property occurred while the defendants were armed with a dangerous weapon. The statutes or relevant parts thereof are as follows: K.S.A. 21-3426. Robbery. “Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21-3427. Aggravated robbery. “Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 1978 Supp. 22-3201. The charge. “(2) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of .the statute, shall be deemed sufficient.” Defendants contend Count Two is jurisdictionally defective, as an element of the crime is wholly absent. The State contends the information was legally sufficient because: 1. K.S.A. 21-3427, by requiring the use of either a weapon or great bodily harm, relieves the State of the requirement of specifically setting forth in the information that any threats were used or force applied in the taking of property. The allegation that defendants had a deadly weapon was sufficient to convey the meaning that the taking of the property from the person of another was accomplished by force or threat of bodily harm. 2. Count Two follows the format prescribed by the Kansas County and District Attorneys Association, Prosecutor’s Desk Manual (rev. 1976). In the case before us the jury was properly instructed on the elements of aggravated robbery, including the element missing from the information. A similar question was raised in United States v. Denmon, 483 F.2d 1093 (8th Cir. 1973). The Eighth Circuit reversed a conviction of selling stolen property for failure to allege in the indictment that the defendant acted knowingly, unlawfully and willfully, and rejected the government’s argument that proper instructions remedied the defect. The court held, 483 F.2d at 1095: “However, the failure of the indictment to charge that the defendant acted knowingly, unlawfully, and wilfully is fatally defective to the Government’s prosecution of this indictment. Morisette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952), holds that a criminal intent is an essential element of an offense under § 641. Despite this fact, the Government contends that the trial court’s proper instruction requiring a finding of criminal intent has remedied the defect in the indictment. We think a defect of the type present in this case is more than a matter of mere form or technical pleading and constitutes a substantive defect in the indictment. It is elementary in American jurisprudence that an indictment must set forth the essential elements of the offense charged, and if it does not, a conviction based thereon is fatally defective.” Denmon is in accord with Kansas case law. In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. State v. Minor, 197 Kan. 296, Syl. ¶ 5, 416 P.2d 724 (1966). A conviction based upon an information which does not sufficiently charge the offense for which the person is convicted is void. State v. Daniels, 223 Kan. 266, Syl. ¶ 4, 573 P.2d 607 (1977); State v. Minor, 197 Kan. 296. If the facts alleged in a complaint or information do not constitute an offense in the terms and meaning of the statute upon which it is based, a complaint or information is fatally defective. State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978); State v. Bishop, 215 Kan. 481, Syl. ¶ 1, 524 P.2d 712 (1974). A governing rule is that if the allegations of an information may be true and the defendant still is innocent of the offense defined by the statute the information is jurisdictionally defective. State v. Jamieson, 206 Kan. 491, Syl. ¶ 2, 480 P.2d 87 (1971). If the information is fatally defective the district court lacked jurisdiction to try defendants for aggravated robbery and their convictions for same are void. The evidence introduced at trial to show commission of the crime sought to have been charged and the jury instructions thereon have no bearing on this question. The failure of the information charging defendants with taking property from the person of Gene Swarz while armed with a dangerous weapon to charge that the taking was by force or by threat of bodily harm, was fatally defective to the State’s prosecution of the information. The taking could have been lawful. It is not a crime to take property while armed with a dangerous weapon. The additional element of taking by force or by threat of bodily harm is an essential element of the crime. The defendants’ convictions of aggravated robbery are reversed. Inasmuch as the statute of limitations has not run, the county attorney may, in his discretion, commence a new prosecution for this offense on proper complaint and information. The second point on appeal is whether the trial court erred in overruling defendants’ motion for dismissal or for a directed verdict on the charge of aggravated assault on a law enforcement officer. The relevant facts are as follows: A state highway patrol trooper observed a van exceeding the speed limit on Highway 50 near Dodge City. As he was turning around to pursue the vehicle he received a radio transmission describing the stolen Swarz vehicle. He pulled close enough to the van to observe the license tags. At that point a person on the passenger’s side commenced firing at him. The trooper pursued the vehicle. Ultimately, the vehicle stopped and both its occupants fired at the officer. The chase then resumed with defendants eventually stopping and surrendering. Defendants were charged in Count One as follows: “That on or about the 20th day of June, 1978, the said Gary E. Howell & Gary J. Taylor, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully feloniously, willfully and intentionally threaten to do bodily harm to a properly identified State Law Enforcement Officer, to-wit: Arlyn Salmans while said officer was engaged in the performance of his duty, with a deadly weapon, to-wit: a pistol which resulted in the immediate apprehension of bodily harm to the said person of Arlyn Salmans, in violation of K.S.A. 21-3411. Aggravated Assault on a Law Enforcement Officer is a Class C felony pursuant to K.S.A. 21-4501(c).” The statutes involved, in relevant part, are as follows: K.S.A. 21-3408. Assault. “An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” K.S.A. 21-3410. Aggravated assault. “Aggravated assault is: “(a) Unlawfully assaulting or striking at another with a deadly weapon; or “(b) Committing assault by threatening or menacing another while disguised in any manner designed to conceal identity; or “(c) Willfully and intentionally assaulting another with intent to commit any felony.” K.S.A. 21-3411. Aggravated assault on a law enforcement officer. “Aggravated assault of a law enforcement officer is an aggravated assault, as defined in section 21-3410, committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of his duty.” The information charges the defendants “did . . . threaten to do bodily harm.” “Threat” is defined by K.S.A. 1978 Supp. 21-3110 (24) as a “communicated intent to inflict physical or other harm on any person or on property” and the jury was so instructed. Defendants contend “communicated intent” is restricted to verbal communication. Black’s Law Dictionary 349 (4th ed. rev. 1968) defines “communicate” as “to bestow, convey, make known, recount, impart; to give by way of information.” Under the circumstances herein defendants could have been charged in the language of an “attempt to do bodily harm” or “striking at another with a deadly weapon.” The firing at the officer, however, was a sufficient communicated intent to inflict physical harm to constitute a threat as defined by K.S.A. 1978 Supp. 21-3110 (24). No error is shown in the convictions of aggravated assault on a law enforcement officer. The judgment is affirmed as to defendants’ convictions of aggravated assault on a law enforcement officer and reversed as to defendants’ convictions of aggravated robbery. Fromme, J., not participating.	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Per Curiam: On the 22nd day of September, 1978, and on the 2nd day of January, 1979, the State Board of Law Examiners held hearings on complaints filed by Arno Windscheffel, Disciplinary Administrator, ágainst Dwight V. Kingery, an attorney duly licensed to practice law in the State of Kansas. The Board on January 5, 1979, found that the respondent had violated the following rules of the Code of Professional Responsibility (220 Kan. cix - cxxvii); DR 1-102(A)(3); DR 1-102(A)(4); DR 1-102(A)(5) and DR 1-102(A)(6). In support of said findings a panel of the Board found that respondent had been convicted in the United States District Court for the District of Kansas of one count of violating 18 U.S.C. § 3150 and seven counts of violating 18 U.S.C. § 1341 and § 1342, and that defendant was guilty of (1) illegal conduct involving moral turpitude, (2) conduct involving dishonesty, fraud, deceit and misrepresentation, (3) conduct prejudicial to the administration of justice and (4) other conduct adversely affecting his fitness to practice law. It was recommended that Dwight V. Kingery be disciplined by “Disbarment” as provided by Rule No. 203(a)(1) (220 Kan. lxxxiii). A copy of the report, findings and recommendations of the panel was mailed to the respondent on the 9th day .of January, 1979, along with a citation directing him to file with this court either a statement that he did not wish to file exceptions to the report or his exceptions to the report. Thereafter respondent duly filed his exceptions to the report and the matter was set for hearing before this court. On June 8, 1979, the matter came on for hearing before this court. Arno Windscheffel, Disciplinary Administrator, appeared for the State of Kansas and the Kansas Board for Discipline of Attorneys (formerly the State Board of Law Examiners), and the respondent, Dwight V. Kingery appeared by John S. Schweiker, his attorney. Respondent, through his attorney, then moved the court for an order of continuance which was denied. The court heard arguments of counsel and took the matter under advisement. Having considered the arguments of counsel and after consideration of the entire record, the court finds that the recommendation of the State Board of Law Examiners should be accepted. It is, Therefore, by the Court Considered, Ordered and Adjudged that the said Dwight V. Kingery be and he is hereby disciplined by disbarment and that he pay the costs of this action. It is Further Ordered that the Clerk of the Appellate Courts shall strike Dwight V. Kingery’s name from the roll of attorneys admitted to practice law in the State of Kansas. It is Further Ordered that this Order of Disbarment be published in the official Kansas Reports. By Order of the Court, dated this 14th day of July, 1979.	[ -80, -54, -100, 127, 8, 35, 58, 24, 89, -119, 119, 82, -23, -53, 4, 121, 83, 41, 80, 122, -59, -74, 115, -62, 102, -69, -24, -47, -74, 127, -20, -67, 73, -16, -54, 85, 6, -54, -47, 92, -114, 4, -119, -16, 91, 1, 48, 105, -105, 15, 49, -66, -29, 42, 31, -61, 104, 60, 122, -52, 65, -47, -101, 29, 127, 16, -78, -123, 62, 7, -44, 63, -104, 56, 1, -8, 49, -74, 6, -12, 15, 25, 9, 102, 98, -80, 13, 103, -96, -88, 47, 121, -99, -89, -103, 88, 9, 9, -106, -99, 116, 118, 39, -4, -29, -51, 59, 104, 14, -117, -12, -111, -33, 84, -50, -102, -21, -121, 16, 81, -115, 38, 92, 70, 58, 31, -50, -28 ]
The opinion of the court was delivered by McFarland, J.: Raymond D. Babcock was convicted of burglary (K.S.A. 21-3715), álthough the briefs of the parties refer to the offense as being theft (K.S.A. 21-3701). The disposition of the case is summarized in chronological order as follows: (1) October 4, 1977, defendant received a 1 to 10 sentence; (2) January 19, 1978, sentence was suspended and defendant was placed on probation with special conditions relative to transitionary stay at the Topeka Halfway House; (3) September 15, 1978, defendant’s probation was revoked and original sentence was reinstated, with defendant to receive credit for time spent in custody; and (4) January 4, 1979, court ordered credit to include time spent in the Halfway House. There is no dispute that defendant should receive credit for all time spent in jail and in the Kansas Reception and Diagnostic Center (K.R.D.C.). The propriety of the Halfway House credit is the sole issue on appeal by the State, based on a question reserved. The issue before us divides into two questions. The first is whether K.S.A. 21-4614 mandates the inclusion of the Halfway House time as credit on the sentence. The second question is whether, if such credit is not statutorily mandated, the trial court had discretion to grant it. We will first determine the question of whether such credit is mandated by the statute. The statute relative to jail time credit is as follows: K.S.A. 21-4614. Deduction of time spent in confinement. “In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury, the judge, if he sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the journal entry of conviction, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in jail pending the disposition of the defendant’s case. In recording the commencing date of such sentence the date as specifically set forth by the court in the journal entry of conviction shall be used as the date of sentence and all good time allowances as are authorized by the Kansas adult authority are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted.” Prior to July 1, 1974, the granting of jail time credit was discretionary with the sentencing judge. The removal of the judge’s discretion in this area by the above cited statute was discussed in State v. Thorn, 1 Kan. App. 2d 460, 461, 462-63, 570 P.2d 1100 (1977), as follows: “The language of K.S.A. 21-4614, providing that the computation date of the sentence ‘shall . . . reflect . . . time which the defendant has spent in jail . . .’ is clearly mandatory. The statute was amended in 1973, effective July 1, 1974, to include the mandatory language. Prior to the amendment, the statute provided that allowance for time spent in jail pending disposition of the defendant’s case was discretionary with the court. Hazelwood v. State, 215 Kan. 442, 524 P.2d 704. The amendment of K.S.A. 21-4614 removed the district court’s discretion. “The 1973 amendment making the jail time credit provisions mandatory rather than discretionary discloses legislative intent to give criminal defendants sentenced to incarceration credit for all time spent in custody on the charge for which they are sentenced. The statute places no limits, conditions or discretion upon the grant of credit.” Kansas appellate courts have approved credit under the mandatory credit statute in the following situations: (1) Time in a mental hospital on transfer from jail to be evaluated for competency to stand trial (State v. Mackley, 220 Kan. 518, 552 P.2d 628 [1976]); (2) time in jail by juvenile court order, prior to certification (State v. Thorn, 1 Kan. App. 2d 460); (3) time in jail in another jurisdiction where defendant was being held solely for the Kansas court on warrant for violation of probation in case in question (Thom); and (4) all time in jail on the charge, whether prior to or after conviction (Thom). Credit was not extended to time in jail on an unrelated charge (Campbell v. State, 223 Kan. 528, 575 P.2d 524 [1978]), or for time on probation (State v. Snook, 1 Kan. App. 2d 607, 571 P.2d 78 [1977]). Jail time credit is wholly a matter of statute and, as would be expected, varies widely among the states. California is apparently the only state which specifically authorizes credit for time spent in halfway houses. Cal. Penal Code § 2900.5 (West 1978 Supp.). Ry virtue of the great disparity in the language of the various statutes, case law of other jurisdictions is of little assistance in resolving the issue before us. The following language from State v. Mackley, 220 Kan. at 519, concerning the nature of Mackley’s confinement in the mental hospital, on transfer from jail to determine competency to stand trial, is relied on by both parties in support of their respective positions: “Under the circumstances of this case, the confinement at the state mental hospitals was tantamount to being in jail. The physical place of confinement is not important as the appellant technically continued to be in jail while held in custody at the hospitals. He was not free on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical intents and purposes, he was still in jail. The court takes judicial notice that the state mental hospitals have the facilities to enforce confinement of their patients, which brings them within the dictionary definition of a ‘jail.’ ” The State argues the halfway house fails the Mackley test and defendant argues the halfway house passes the Mackley test. At this point we must go into some detail as to the circumstances in this case. At the time of original sentencing defendant was seeking probation. There was considerable discussion of defendant’s past history of difficulty in complying with rules. The court sentenced defendant to incarceration, but was obviously waiting for a K.R.D.C. evaluation report before considering the matter of sentencing closed. On motion of defendant within the statutory 120-day period for sentence modification (K.S.A. 1978 Supp. 21-4603), the sentence was suspended and defendant was placed on four years of supervised probation subject to the general conditions of probation and certain special conditions. The following excerpt from the transcript of the hearing reflects what was occurring: “THE COURT: Well, I think that you understand that the Halfway House is a temporary arrangement designed to assist you to get adjusted and get you employed, and you can move out of that as soon as you can. There is nothing permanent about that. “What is the average stay there, Mr. Marchand? “MR. MARCHAND: Your Honor, there the average stay is sixty days or so. Some inmates have been known to stay longer. The other aspect of the Halfway House is that people have been known to fail. That is to be unable to live up to the rules of the house and to be remanded to the custody of the jail. So it’s kind of a two-sided coin. “THE COURT: (To defendant Babcock) What do you think? Do you think you can live by the rules there? “DEFENDANT BABCOCK: Yes, I think so. “THE COURT: You know what my alternative is, I guess. “DEFENDANT BABCOCK: Yes. “THE COURT: Alright, based on the information now before the Court, I am satisfied that the most productive judgment in this case will be to vacate and modify the Court’s judgment and to suspend the imposition of sentence heretofore imposed and to place this defendant upon four years supervised probation on the usual conditions and upon the following conditions: One, that he remain in the Shawnee County Jail pending an opening in the Halfway House, that as soon as an opening occurs there — and there may be one there now, I just don’t know — that he go to our Halfway House until such time as the administrators believe that he is sufficiently well adjusted to maintain his residence elsewhere and that he remain there until he has full time employment in the community. Another condition of probation will be that he have and maintain full time employment in the community throughout the term of our probation, and the people at the Halfway House will help you, Mr. Babcock, in getting to the place that you need to go check in to work and this kind of thing, and as soon as full time employment can be obtained he should have daytime passes or whatever is required for him to go to work and return each time. “Now, if, Mr. Babcock, you do not live up to the rules and regulations of the Halfway House then I have to bring you back to the Shawnee County Jail and at that time we will have a hearing about whether we should revoke your probation. “Now, the thing I want to make very clear to you is that your sentence is not vacated. It’s just suspended, and if at any time during this probation or period you fail to complete the terms and conditions of the probation — and you read them very carefully because it requires reporting and a good number of other things— then a hearing will be had and if I find you have violated the terms you will go back down to where you have been and that will be the end of it and I don’t want that to happen and I am not threatening you but I do want you to understand it and I think you do. “DEFENDANT BABCOCK: Yes, sir.” The Halfway House is a privately operated facility that is not subject to control of the courts, corrections officials, or law enforcement agencies. The order of probation went into effect and defendant moved into the Halfway House. On February 18, 1978, defendant was returned to jail for alleged probation violation, and was released without hearing on February 27, 1978, to return to the Halfway House where he remained until July 18, 1978. On that date he was again returned to jail for alleged probation violations. He remained in jail until August 4, 1978, when he was released on bond, pending final disposition of his case. In revoking defendant’s probation, the trial court found: “Based upon the evidence presented at the hearing held before the Court on the motion of the State to show cause why defendant’s probation should not be revoked, the Court is satisfied that the defendant has violated the terms of his probation in several particulars. First, in not cooperating with his probation officer and in not reporting as required and, likewise, in failing to comply with the rules of the halfway house wherein he has been situated. Second, in not maintaining full time employment provided as part of his program at the halfway house and third, in being absent without leave from the halfway house and fourth, in violating the laws through the use of intoxicants while under probation. In view of the many opportunities given the defendant to conform his conduct to that of a law abiding citizen here in the community, in lieu of incarceration, and because of the defendant’s demonstrated inability to do so, the Court has no alternative but to revoke the probation of the defendant and reinstate its original sentence of one to ten years in the custody of the Secretary of Corrections.” It is apparent that defendant’s stay at the Halfway House was a condition of probation (defendant received credit for every day he was confined in jail and no issue arises as to the days he spent in jail while on probation). In determining whether time in a particular facility is required to be included as jail credit pursuant to K.S.A. 21-4614, the crucial question is whether the person is in custody. In such a determination the circumstances of placement of the person in the facility are of greater significance than the nature of the facility itself. K.S.A. 21-3809 sets forth the crime of escape from custody. K.S.A. 1978 Supp. 21-3611(l)(d) (aggravated juvenile delinquency) provides that escape by a juvenile from a state training or rehabilitation facility is a class E felony if the defendant has previously escaped therefrom. In State v. Pritchett, 222 Kan. 719, 567 P.2d 886 (1977), this court upheld a conviction of aggravated juvenile delinquency when the second escape was from a Topeka hospital where the defendant had been taken by the training facility for treatment. In so doing this court said: “In United States v. Rudinsky, 439 F.2d 1074 (6th Cir. 1971), a prisoner was confined to a federal treatment center after conviction for mail theft. While there he was placed on a work release program which allowed him to leave the facility during the day and return at night. When he failed to return on time and did not account for his whereabouts, he was hunted, apprehended and convicted for his waywardness. The appellate court turned aside the argument that he was not in custody of prison officials when he disappeared. (See also, State v. Furlong, 110 R.I. 174, 291 A.2d 267 [1972].) “A similar argument was made and rejected in Commonwealth v. Hughes, 364 Mass. 426, 305 N.E.2d 117 (1973), where a prisoner failed to return from a furlough. “It has been held that a prisoner who walked away from a work detail on a dock or a firefighting brigade had escaped even though he was already beyond the physical confines of the correctional facility. (Giles v. United States, 157 F.2d 588 [9th Cir. 1946]; People v. Owens, 236 Cal. App. 2d 403, 46 Cal. Rptr. 91 [1965].) “In Tucker v. United States, 251 F.2d 794 (9th Cir. 1958), a federal prisoner was being held in a Los Angeles jail awaiting appearance in another matter. While in the jail the prisoner became ill and had to be transferred to a private hospital for treatment. While he was being wheeled to an examination room the prisoner leaped from his gurney and escaped. On appeal defendant argued he was not in ‘custody’ when he left; therefore, he could not be guilty of escape. The court declared his argument to be ‘so outlandish as to be void of a semblance of merit or common sense.’ (Tucker v. United States, supra at 799.) “The common thread which runs through these cases is the idea that custody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner’s liberty is restrained. (Jones v. Cunningham, 371 U.S. 236, 242, 9 L.Ed.2d 285, 83 S.Ct. 373, 92 A.L.R.2d 675.) There is no requirement that the prisoner be constantly supervised or watched over by prison officials. (United States v. Rudinsky, supra at 1076.) The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.” 222 Kan. at 720. We believe the same common thread referred to in Pritchett is present in determining the jail time credit question. K.S.A. 21-4614 requires that a defendant be given credit for “time spent in jail.” The credit so granted is limited to time a defendant is in the actual or constructive control of jail or prison officials. This criteria was met only while defendant was in jail awaiting an opening in the Halfway House and while he was back in jail on allegations of probation violations. At all times when defendant was in the Halfway House he had a court probation officer. When problems arose, they were reported by Halfway House personnel to the defendant’s court probation officer, who then took such action as he deemed appropriate. Defendant was not in the Halfway House under the control, actual or constructive, of the jail officials — he was there solely to fulfill a condition of probation. We therefore conclude K.S.A. 21-4614 does not require that a defendant be granted credit for time spent in a halfway house fulfilling a condition of probation. We must then determine the second question of whether the trial court had the power, in its discretion, to grant credit for halfway time. It should be pointed out that the trial judge did not reduce defendant’s sentence by halfway time. Rather, he gave credit for it on the sentence itself. Defendant received the minimum sentence for the crime for which he was convicted. The credit given resulted not in a reduction of the sentence, but in a back dating of the effective date of sentencing. Any reduction in sentence would have resulted in a sentence below the lawful limits of sentencing. In State v. Snook, 1 Kan. App. 2d at 607-08, the Kansas Court of Appeals stated: “Appellant first argues that our statutes require that time spent on probation be credited on the sentence. Our review of the statutes, however, leads us to conclude that the legislature did not intend that probation time be counted toward service of the sentence. K.S.A. 22-3716(2) provides that ‘[i]f the violation [of probation] is established, the court may continue or revoke the probation or suspension of sentence, and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.’ (Emphasis added.) The emphasized language on its face authorizes the court to require service of the sentence in full, without regard to time spent on probation. The authority to require service of ‘any lesser sentence’ would permit the court to give consideration to time spent on probation, but does not require it. Although the statute is very specific in authorizing alternative dispositions if the violation is established, it is silent concerning mandatory credit for time served on probation. Following generally accepted rules of statutory construction, the court presumes that such silence was not due to mere oversight but rather was the intended result of the legislature.” K.S.A. 1978 Supp. 21-4603(2) provides in part: “Any time within one hundred twenty (120) days after a sentence is imposed or within one hundred twenty (120) days after probation has been revoked, the court may modify such sentence or revocation of probation by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within one hundred twenty (120) days after the receipt by the clerk of the district court of the mandate from the supreme court or court of appeals. The court may reduce the minimum term of confinement at any time before the expiration thereof when such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction. The power here conferred upon the court includes the power to reduce such minimum below the statutory limit on the minimum term prescribed for the crime of which the inmate has been convicted. The recommendation of the secretary of corrections and the order of reduction shall be made in open court.” See State v. Sargent, 217 Kan. 634, 538 P.2d 696 (1975); State v. Rios, 225 Kan. 613, 592 P.2d 467 (1979). The legislature has prescribed the statutory limits of sentencing for the offense of burglary. The only authorization for sentencing below such limit is pursuant to K.S.A. 1978 Supp. 21-4603(2), above quoted, and inapplicable here. The legislature has required credit for jail time and no discretion is granted to the court in allowing same. We therefore conclude the trial court was without authority to grant defendant credit on his sentence for time spent in the Halfway House. Appeal sustained.	[ 80, -22, -35, 30, 11, 96, 11, -104, 98, -13, 48, 83, -27, -57, 5, 105, 19, 109, 84, 121, -19, -73, 103, -63, -30, -13, -39, 81, -71, 95, -92, -108, 72, 112, -62, 113, 70, -56, -43, 28, -114, -121, -72, 65, -47, 10, -80, 46, 10, 10, -15, 31, -93, 41, 18, -50, 73, 14, 95, 63, -104, -15, -85, 5, 107, 86, -93, -92, -112, 7, 112, 37, -100, 57, 0, -24, 115, -106, -122, 116, 79, -117, -116, 102, 98, 33, 52, -21, -20, -71, 46, 51, -99, -89, -103, 88, 69, 76, -74, -67, 116, 22, 47, 120, -25, -124, 61, 108, 14, -49, -68, -111, -115, 53, -122, -65, -5, 33, -127, 97, -52, -26, 92, -42, 121, -101, -114, -76 ]

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