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The opinion of the court was delivered by
Gilkeson, P. J. :
This was an action in replevin for 10 head of stock. The plaintiff, as administratrix of the estate of E. A. Taft, alleged special ownership (by virtue of a certain chattel mortgage given to her estate by defendant Darius Baker, to secure the payment of $360) and right of possession in herself. The answer of defendant. Baker, after a general denial, alleges : (1) Usury in note to the amount of $90 ; (2) payment of the sum of $200, and prays judgment for the sum of $500, his damages. The answer of Israel Lloyd was a general denial. Plaintiff replied to the answer of defendant Baker by a general denial.
The testimony is not preserved in the record, but in lieu thereof is “an orderly and concise statement of facts admitted, or uncontradictedly established by the record,” from which it appears that Baker, in addition to his special defense set out in the answer, claimed upon the trial that there was certain other property mentioned in the mortgage — to wit: 1 mowing-machine, of the value of $35 ; 2 cultivators, of the value of $20; and 2 stirring plows, of the value of $12 — that the plaintiff, before or at the time of the commencement of this action, had taken possession of, and had not accounted for. The defense of defendant Lloyd was an agister’s lien (under contract with defendant Baker) for the care and keep of the stock for the sum of $232. The case was tried before the court and a jury; special findings, but no general verdict returned by the jury. Judgment was rendered against the plaintiff and in favor of both defendants. Plaintiff brings the case here for review.
There are numerous errors assigned, or, as the plaintiff in error pertinently puts it, “a record of error without end, so large that none larger are made”; but we will only notice the important one, which requires a reversal of the judgment. The court erred in rendering judgment of any kind in this action. The record in the case discloses that no general verdict was rendered by the jury, nor was it waived, but, on the contrary, the court’s attention was specially called to it upon objection to its render ing judgment upon the special findings nor was the real issue in this casé — the unlawful detention — ever submitted to the jury, either in the general instructions of the court or the special questions submitted to them by the court of its own motion. The special questions submitted are in substance as follows :
“1. Was there a contract entered into between Baker and Lloyd for the pasture, feed and care of the stock?
“2. Did Baker deliver the stock to Lloyd in pursuance of this contract?
'‘3. What is a reasonable compensation for pasturing, feeding and caring for the stock?
“4. What was the value of the stock when taken from Lloyd by the sheriff?
“5. What was the value of the mowing-machine, two cultivators and two stirring plows when taken from Baker?
“6. What consideration did Taft give or pay Baker for the note for $360?
“ 7. Do you find that Taft took and reserved from Baker more than 12 per cent, interest per annum? If yes, how much?
. "8. Did Baker make a payment, or payments, to Taft on this note? If yes, how much?
"9. How much, if anything, do you find due on this note?”
The most that can be said of the verdict is that it is responsive to only a part of the issues in the case, and is therefore defective ; and the rule is that when a verdict varies from the issues in a substantial manner, or finds only a part of that which is in issue, no valid judgment can be rendered thereon. (Patterson v. United States, 2 Wheat. 221; Mattson v. Hanisch, 5 Bradw. 102; Ridenour v. Beekman, 68 Ind. 236; Appleton v. Barrett, 22 Wis. 568; Child v. Child, 13 id. 17.) But, aside from the general rule, we need not go further than to examine the statutes and decisions of our own state to be convinced that the judgment in this case is erroneous. Section 266, code of civil procedure, provides :
“Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money, or of specific real or personal •property, shall be tried by a jury, unless a jury trial is waived, or a reference ordered, as hereinafter provided.”
Section 286 of the code reads :
“In all cases the jury shall render a general verdict, and the court shall in any case, at the request of the parties thereto or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact,” etc.
In the trial of this case, as we have said, neither a jury nor a general verdict was waived; yet no general verdict was submitted by the court to or returned by the jury. The jury only found upon particular questions of fact, submitted by the court upon its own motion, evidently upon the theory that, by special findings, the general verdict was dispensed with. But we think the language of the code is too imperative to admit of this, and too unmistakable in its meaning to warrant such a construction. The litigant is entitled to the identical benefit the law confers. When it grants him the right to trial by jury, the court has no power to deprive him of it; and when this court did deprive plaintiff of the verdict, it substantially deprived her of that right to a trial by jury which the statute expressly gave.
In Henrie v. Buck, 39 Kan. 382, Mr. Justice Johnston, in passing upon almost the identical question here presented, says :
“Another matter only needs attention, and that is the refusal of the court to permit a return of a general verdict by the jury. We see no reason to except this case from the statutory rule, which provides that, in any case which may be and is tried by a jury, a general verdict shall be rendered. (Civil Code, §§ 267, 268.) ”
It was the right and duty of the court to submit special questions upon request of the parties, but it could not properly dispense with the general verdict.
The judgment of the district court will be reversed, and the cause remanded.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
The petition in error in this case contains the following assignment's of error :
“1. Errors of law occurring at the trial, and excepted to by the plaintiff.
“2. Irregularity in the proceedings of the court and prevailing party, by which plaintiff was prevented from having a fair trial.
“3. The verdict and ruling are not sustained by the evidence and are contrary to law.
“4. Error in sustaining the demurrer to evidence, and refusing to let the case go to the jury.”
The trial court sustained a demurrer to the evidence of the plaintiff, upon the ground that the evidence did not show facts sufficient to constitute a cause of action in behalf of the plaintiff and against the defendant, and the jury were discharged from the further consideration of the case, to which rulings of the court the plaintiff duly excepted, and gave notice of a motion for a new trial, which motion was thereafter filed. The grounds upon which the application was based were, that the plaintiff -was prevented from having a fair trial in consequence of the order of the court discharging the jury and sustaining defendant’s demurrer to the evidence, and that errors of law occurred at the trial which were duly excepted to by the plaintiff.
It will be seen from the foregoing that the alleged errors occurred at the trial, and, although a motion for a new trial, in which the alleged errors were pointed out, was overruld by the court, we cannot say that the court erred in this ruling. The demurrer to the evidence was sustained on October 7, 1890, while the ruling on the motion for a new trial was not made until November 8 thereafter; and, for aught that appears in the record, this motion may have been overruled because it was not filed within the statutory time. The defendant in error, however, insists that no question based upon the proceedings of the trial court is presented for our consideration, as the assignments of error do not include the action of the court in overruling the motion for a new trial. Where the only errors complained of for which a new trial was asked occurred at the trial, the overruling of such motion must be specifically assigned for error, or the complaining party will not be entitled to have the proceedings of the trial court reviewed. (Clark v. Schnur, 40 Kan. 72; Binns v. Adams, 54 id. 615; C. B. & Q. Rld. Co. v. German Ins. Co., ante, p. 395, 42 Pac. Rep. 594.)
It therefore follows that the judgment must be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action by the owners of a garage to recover from the defendant, The Southern Kansas Stage Lines Company, the balance of a second year’s rent of the garage under the renewal statute, R. S. 67-502, on the strength of the claim that by the purchase of the business, rights and assets of the lessee as a motor carrier the defendant assumed the liabilities of the lessee carrier, including the liability of said renewed lease. The appeal is by the defendant from the orders of the trial court overruling its demurrer to the amended petition, overruling its motion to determine questions of law and overruling its motion for judgment on the pleadings.
The amended petition alleges the making of a written lease for the use of the garage for one year, with a monthly rent of $100, with a carrier not now a party to this action; that the lessee occupied the garage three months more than the one year named in the written lease and then vacated it, leaving the rent for nine months of the renewal year unpaid, and three months later the motor carrier sold its business, rights and assets as a motor carrier to the defendant. The claim is for $900, less $150 rent collected from others during that period, plus $30 for repairs, making a total of $780.
The amended petition further alleges that the lessee motor carrier sold, transferred and assigned its business, right and assets as a motor carrier to the defendant stage line company and applied to the public service commission to transfer its certificate of convenience and necessity to the defendant stage line company, showing that the liability insurance policy of the motor carrier on file with the commission had already been assigned to the purchaser, and the public service commission made the transfer requested. The certificate of transfer contained the following clause: “the said purchaser to assume the duties, responsibilities and liabilities existing under and by virtue of said certificates.” A copy of the lease, the application for transfer of certificate of convenience and necessity and the order of the commission making the transfer are attached to the amended petition as exhibits.
We will assume for the purposes of this case that the terms of the written lease were in line with the requirements of R. S. 67-502 and such as to authorize a renewal for another year under the allegations of the amended petition, so that the lessee motor carrier would have been liable thereunder for the rent of the balance of that renewal year. This attitude will be necessary in considering the demurrer to the petition, although some of these matters are put in issue by the answer on file.
In addition to the three assignments of error made by the defendant, as above mentioned, the defendant also insists that-the trial court committed error in its order requiring it to produce certain records, documents, etc., on the motion of the plaintiff. Much has been said by the courts in the way of limiting the privilege, extent and purpose of such orders (Railway Co. v. Burks, 78 Kan. 515, 96 Pac. 950; 10 R. C. L. 1092; 22 C. J. 961; and 5 Jones Commentaries on Evidence [2 ed.] 3850), but regardless of the liberality in granting the order and the extent of the order,, we think it is well settled that it is not an appealable order and not reviewable until after judgment. It was said in the Burke case concerning the error “assigned upon the order requiring the defendant to permit an inspection and copy of the alleged reports,” that—
“The order, however, is of a purely intermediate character. Its consequences cannot be observed until they are registered in the result of the trial on the merits, and hence it is not reviewable until after judgment.” (p. 518.)
This ruling was referred to with approval in Chippeaux v. Western Coal and Mining Co., 124 Kan. 475, 260 Pac. 625.
Was there error in overruling defendant’s demurrer to the amended petition? Starting with a presumed liability of the lessee motor carrier, as stated above, the plaintiffs maintain that the defendant, in the purchase of the motor carrier’s business and assets, became liable under the order of the public service commission in the transfer of the certificate of convenience and necessity to the defendant in which order the commission required the defendant purchaser “to assume the duties, responsibilities and liabilities existing under and by virtue of said certificate.” If it is admitted for the purpose of this argument that the claim of the plaintiffs is a liability of the former motor carrier, the question remains as to whether it is one that exists under and by virtue of the certificate of convenience and necessity. Or in more specific terms, is a balance due for rent of a garage by the former motor carrier a liability existing under and by virtue of the certificate of convenience and necessity transferred to the purchaser? Both parties cite the case of Shattuck v. Pickwick Stages Corp., 135 Kan. 602, 11 P. 2d 996, which was an action to recover damages sustained in an automobile collision with a motor carrier bus, where both the motor carrier at the time of the collision and its successor in business and transferee of the certificate were made parties defendant. It was there held that—
“Under the statute regulating motor carriers, a motor carrier which succeeds to the business, rights, assets and certificate of convenience and necessity of another motor carrier, succeeds to existing liabilities of the other to the extent of assets acquired.” (Syl. ¶ 4.)
It will be observed that the liability there under consideration was for a tort committed by the original motor carrier in the line of its operations under its certificate of convenience and necessity. The case is not concerned with ordinary debts or liabilities of the original motor carrier. The collision occurred in August, 1928, when the stage line was owned and operated by the Pickwick Stages Corporation. In October, 1928, the business and assets were sold to the Pickwick-Greyhound Lines and the certificate transferred to the purchaser. In the opinion, on page 607, the general conclusion is limited to the only matters there under consideration, namely, liability resulting from negligent conduct of the business, by the following sentence:
“Under the motor-carrier law the special privilege conferred by the certificate issued to Pickwick Stages was burdened with liability resulting from negligent conduct of the business.”
It is further said in the opinion that—
“Pickwick-Greyhound Lines was not just an ordinary purchaser of property. It desired not merely the business and assets, but the particular special privilege which Pickwick Stages held. Pickwick-Greyhound Lines was bound to know the law. The law provided that it took the certificate as if the certificate had been issued to it originally. The order transferring the certificate specified that it assumed existing liabilities under the certificate. It took the benefit burdened with the corresponding obligation.” (p. 607.)
We cannot avoid concluding that the holding in the Shattuck case was limited to liabilities existing under and by virtue of the certificate of convenience and necessity which would not ordinarily include delinquent rent on a garage.
But plaintiffs do not limit themselves in the allegations of their amended petition to the liabilities imposed by the order transferring the certificate of convenience and necessity, but elsewhere therein they allege that — ■
“The defendant, The Rapid Auto Transit Company, sold, transferred, and assigned its business rights and assets as a motor carrier to the Southern Kansas Stage Lines Company, a corporation ...”
Under this allegation the plaintiffs maintain that they have been deprived of all assets to which they could look for satisfaction of their claim, and such a sale and purchase of assets is essentially a merger and should be attended with the same consequences as in a consolidation. A merger or consolidation is very different from a sale or purchase of assets, and the language of the allegation above quoted does not suggest nor intimate either merger or consolidation.
It is said in 7 R. C. L. 183:
“. . . it may be stated as a general rule that in order to render the purchasing company personally liable for the debts of the selling corporation, it must appear that (a) there be an agreement to assume such debts; (6) the circumstances surrounding the transaction must warrant a finding that there was a consolidation of the two corporations; or (c) that the purchasing corporation was a mere continuation of the selling corporation; or (d) that the transaction was fraudulent in fact. . . .”
Plaintiffs in their brief admit the above quotation states the general rule regarding liability of purchasing corporations, but state that if the information had been produced as requested by the court this case would fall within the purview of the line of decisions showing merger or consolidation from a view of the whole transaction, which they claim would have been proper and illuminating, but that the defendant used every method at its command to prevent the circumstances and nature of the transaction from being disclosed and brought to view. This is good argument with reference to the proof, but not as to the allegations of the petition, which would be necessary to permit the introduction of such proof. There are no allegations in the amended petition that would make evidence as to merger or consolidation competent. Neither are there any allegations of agreement to assume the debt, nor want of consideration, nor that the transaction was fraudulent. The naked allegation of sale and purchase will not justify a reasonable inference of any of these fundamental matters.
Plaintiffs cite the forcible language from the decision in Ball v. Oil & Gas Co., 113 Kan. 763, 216 Pac. 422, as follows:
“Even against a demurrer a petition is liberally construed and held sufficient if the facts stated, whether well pleaded or not, with all the reasonable inferences to be drawn therefrom, constitute a cause of action.” (p. 766.)
It is not a question in the case at bar of these matters being well pleaded or not. The pleading is not ambiguous. The language is clear and concise. It bases the liability of the defendant upon the purchase of the business, rights and assets of the lessee, motor carrier, which is not enough to state a merger or consolidation, or even a reasonable inference thereof. (See, in this connection, Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025; Condenser Co. v. Electric Co., 87 Kan. 843, 126 Pac. 1087; Jackson v. Insurance Co., 101 Kan. 383, 167 Pac. 1046; and Crozier v. Shoe Co., 103 Kan. 565, 175 Pac. 376.) We conclude that the demurrer to the amended petition should have been sustained.
There was no error in the overruling of defendant’s motion to determine in advance of the trial the questions of law as authorized by R. S. 60-2902. That section provides that the court may in its discretion do so, and there is no suggestion that there was any abuse of discretion. Under such circumstances there was no reversible error in overruling this motion.
Defendant also assigns error in the overruling of its motion for judgment in its favor on the pleadings. If the demurrer to the pe tition should have been sustained, as we have just held, then since the reply is only a general denial of new matter set up in the answer, the rights of the plaintiffs are not strengthened or changed thereby, and there is no good reason why the judgment for the. defendant should not follow the ruling that the petition is demurrable. It is so ordered.
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The opinion of the court was delivered by
Wedell, J.;
This was a criminal prosecution under a cleaning and pressing ordinance of the city of Atchison.
The material facts are: Defendant lived at St. Joseph, Mo. A. S. Winetraub was engaged in the dry-cleaning business in Kansas City, Mo. Winetraub, by written contract, employed defendant as his agent to solicit and obtain business for him at Atchison. The contract provided in substance: Defendant was to solicit such business, collect the clothing at a central depot in the city of Atchison, trans port it to Winetraub’s place of business in Missouri for processing; it was then to be returned to the central depot in Atchison, where it could be called for by. owners or distributed to them by defendant; defendant was required to keep a record of clothing handled, to' collect for services and remit to Winetraub; Winetraub was required to furnish defendant with a schedule of prices from time to' time; for the time being it was agreed the location of the central depot at Atchison was to remain at the place on which defendant had taken a lease in his own name; if business justified, Winetraub was to supply such help as might be required; defendant was to render such services in transporting cleaning work as Winetraub required; defendant was to receive a weekly salary of twenty percent.
It appears defendant had assigned the lease, before any business was transacted, on the central depot to Winetraub, or Lyon Cleaners, the latter being the name under which Winetraub operated. Defendant had been operating several days when he was arrested. Other facts might be narrated, but the above are sufficient to present the general plan of operation.
Defendant was charged in three counts with alleged violations of three separate sections of the same ordinance. He was convicted and fined on each of the three counts in the police court of the city of Atchison. From that judgment he appealed to the district court. The case was tried to the court without a jury. Following the introduction of the city’s evidence, defendant moved to be discharged for the reason the ordinance was void, illegal’ and unconstitutional. The motion was sustained as to counts two and three, and overruled as to count one. The city objected to the ruling on counts two and three and reserved the questions of law involved in that ruling. Both parties have appealed. Defendant contends the city’s appeal on counts two and three must be dismissed, and that the business conducted was interstate commerce, hence not subject to regulation by city ordinance. In the view we take of this case, it is unnecessary to treat any questions presented other than the constitutionality of the ordinance.
The prosecution was based on sections 1, 2 and 5 of the ordinance. Count 1 pleaded a violation of section 1, count 2 of section 2, and count 3 of section 5. Those sections read:
“Section 1. That any person, firm, partnership or corporation engaged in soliciting, taking orders, delivering or furnishing cleaning, dry cleaning or pressing, in connection with the business commonly known as ‘dry cleaning’ in the city of Atchison, shall pay an annual license fee of ten dollars ($10); said license to be issued in the' name of the applicant therefor, and to be nontransferable. In the event the applicant shall be a partnership the names of the partners shall be stated in the application: Provided, That any change in the personnel of said partnership other than by death shall automatically act as a termination of said license: Provided further, That in the event the applicant shall be a domestic corporation no license shall be issued until a charter shall have been granted; and if a foreign corporation such license shall not be issued until such corporation shall have been duly authorized to do business in this state, in the manner provided by law.”
“Sec. 2. That no person, firm, partnership or corporation engaged in soliciting, taking orders, delivering or furnishing cleaning, dry cleaning or pressing, in connection with the business commonly known as ‘dry cleaning’ in the city of Atchison, shall remove any article delivered into their custody from the county of Atchison, until there shall have been filed with the city clerk a bond to the' city of Atchison for the use and benefit of any and all persons having claims for loss or damage under this section, executed by said person, firm, partnership, or corporation as principal and by some surety company authorized to do business in the state of Kansas, as surety, in the sum of twenty-five hundred dollars ($2,500) conditioned that the principal will return such property to the owner thereof within five (5) days of the date of its removal from Atchison county, and for the payment to the owner of all damages to or loss of said property; which bond shall be approved by the board of commissioners before the license' is issued.”
“Sec. 5. That before any person, firm, partnership or corporation which solicits, takes orders, delivers, or furnishes cleaning, dry cleaning or pressing in the city of Atchison, shall remove any article delivered into its custody from Atchison county, Kansas, such person, firm, partnership or corporation shall file with the city clerk of the city of Atchison a written statement which shall give a description of the article or articles so to be taken from the city of Atchison, the name and address of the owner thereof,' the place to which such article is being removed, and the date when it is to be returned, which statement shall be dated as of the date such article is removed, and subscribed on behalf of the person, firm, partnership or corporation by the person so removing such article.”
Defendant contends the ordinance violates the fourteenth amendment to the constitution of the United States. The pertinent portion thereof reads:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Does the ordinance discriminate between a business operated outside the county and one conducted within the county?
Section 1 requires payment of a license fee from all who are engaged in soliciting or furnishing the service. Standing alone this section is therefore not discriminatory.
Section 2 in its operation results in classification of business. This classification distinguishes between business which moves clothing to a destination outside the county for processing, and local business, which performs the service within the county. It burdens the former class with the posting of a particular kind of bond, to wit: a surety company bond, and in the sum of $2,500. The bond shall guarantee the return of wearing apparel in five days, irrespective of whether the owner requires a return within that period or not. The bond must guarantee the payment of all damages to or loss of property. The bond must satisfy not the owner of the clothing but the board of commissioners. The license Required by section 1 cannot be obtained prior to compliance with section 2.
Section 5 places an additional burden on the first classification by requiring a detailed listing with the clerk of every article and other detailed information before the clothing may be removed from the county.
While there is no prosecution for violation of section 3- of the ordinance, a portion of it will assist in disclosing the general nature of this ordinance, and the indivisibility of it. In part, section 3 reads:
“That before any license shall be issued to any person, firm, partnership or corporation as herein provided such applicant therefor shall file with the city clerk an application which shall set forth the exact location where such cleaning, dry cleaning or pressing will be done, together with a full statement of the plan of operation and method of doing business which applicant proposes to conduct; and such other information said commissioners may require; . . .”
Analysis of the ordinance in its entirety readily discloses a license cannot be obtained by a business operated outside the county by complying only with section 1 of the ordinance. Compliance with sections 2, 3 and 5 is a prerequisite to the issuance of- the license. The city itself would have violated the ordinance, had it issued a license to defendant without first insisting upon compliance with each and all of the sections mentioned. The sections of the ordinance are interrelated and clearly indivisible. The trial court discharged defendant on counts two and three, based on sections 2 and 5, on the ground those sections were unreasonable. The city complains of that ruling, but insists the conviction on count one must be sustained even though sections 2 and 5 are invalid. That contention is based on section 7 of the ordinance, which reads:
“Sec. 7. That if any terms or provisions hereof shall be held to be unreasonable, illegal, unlawful, ultra vires or void, the same shall not in any manner be construed to annul, render void, or make ineffective any other provision or requirement of this ordinance.”
Were the ordinance divisible, there might be some merit in the contention. The ordinance being indivisible, the contention is not sound. To hold otherwise would mean defendant could be convicted for failure to comply with certain prerequisites to the obtaining of the license, which prerequisites -are void. Such a position is. obviously untenable.
If sections 2 and 5 are unconstitutional the conviction cannot be sustained on count one. That the ordinance discriminates between classifications of business is patent on its face.
Does it violate the fourteenth amendment to the constitution of the United States? The general principle involved in this inquiry is not new in this state. It received the thorough consideration of a divided court in the case of In re Irish, 121 Kan. 72, 250 Pac. 1056. In the dissenting opinion by Justice Dawson it was, in part, said:
“Whether an exercise of legislative power ‘is flagrantly unjust, unreasonable or oppressive’ (Desser v. City of Wichita, supra) is a question which in the nature of things must be broadly addressed to the judicial conscience. In pretending to exact a tribute of $150 per annum from nonresidents of Holton for the right to sell bread in that little city, the ordinance grossly offends against my sense of justice and good faith. The only evidence presented to us shows such an exaction will amount to virtual prohibition. It may be said that this evidence is the mere conclusion of the witness. It is also my conclusion — one I draw by taking judicial notice of the pertinent facts and circumstances; I am persuaded this provision of the ordinance will never bring one legitimate dime into the city' treasury, and I cannot persuade myself it was ever intended to do so. . . .1 hold the tax unjust, unreasonable and oppressive; and if. in its practical operation it does amount to prohibition, as I believe and as time will certainly demonstrate, it is violative of both the state and federal constitutions. (Const., art. 12, sec. 5; U. S. Const., 14th Amend.; City of Lyons v. Cooper, 39 Kan. 324, 18 Pac. 296; In re Chipchase, Petitioner, 56 Kan. 357, 43 Pac. 264; State v. Wilson, 101 Kan. 789, 792, and citations, 168 Pac. 679.)” (pp. 74, 75.)
A rehearing was granted in In re Irish, 122 Kan. 33, 250 Pac. 1056, and in conformity with the former dissenting opinion, a united court held:
“An ordinance of a city of the second class which provides for a license fee of $150 a year to be paid by each person, firm, or corporation, not a resident of the city, who sells any bread or bakery products to any firm or corporation in the city and prescribes a penalty for the violation of the ordinance, but does not provide for any license fee to be paid by residents of the city engaged in the same kind of business is invalid because it violates the fourteenth amendment to the constitution of the United States.” (Syl. ¶12.) (Italics inserted.)
Later the decision in the Irish case was approved. (Hair v. City of Humboldt, 133 Kan. 67, 299 Pac. 268. In the Hair case there was only a partial discrimination as to a license fee. In that case it was said:
“An ordinance of a city of the second class which provides for a license of $1 a day or $10 a year for a person operating a bakery within the city from which bread and bakery products are sold, and $1.50 per day or $120 a year for a person selling bakery products therein and not owning or operating a bakery and having no bona fide place of business within the city, and which prescribes a penalty for the violation of the ordinance, is invalid because it violates the fourteenth amendment to the constitution of the United States.” (Syl. 112.)
The city in this case insists the Irish and Hair cases are not applicable to this case. We think otherwise. In the Irish case there was a discrimination against bakers who were nonresidents of the city of Holton, in the nature of a license fee, while none was exacted from resident bakers. In the Hair case there existed a discrimination in the nature of a larger license fee exacted from bakers not owning or operating a bakery and having no bona fide place of business within the city of Humboldt. The city contends there is no unjust or unreasonable discrimination in this case, in that all who solicit dry-cleaning business in the city of Atchison are required to pay the same license under section 1 of the ordinance, whether the processing is done within or outside the county. Were that the entire ordinance, there would be merit in the contention. This ordinance, however, is just as discriminatory and objectionable in principle as were the ordinances in the Irish and Hair cases, if not more so. The vice in this ordinance is in its regulatory provisions. It discriminates in the requirement of a surety company bond,, the return of wearing apparel within a specified time, the supplying of lengthy data and reports. None of these requirements are made of local businesses. The discrimination as to the particular classification of business is based upon no real and substantial distinction. The classification is not a reasonable but an arbitrary one. It is based solely on location. In the Hair case, supra, it was said:
“In the ordinance we are now considering, those selling bakery products are classified as those owning and operating a fixed place of business in Humboldt and those not owning such a fixed place of business. Appellant argues that this is a reasonable classification and does not come under the rule in the Irish case. We are not impressed with this distinction.” (p. 70.)
Neither are we impressed with the attempted distinction in this case on the ground section 1 of the ordinance requires a license from all regardless of location, when the remainder of the indivisible ordinance arbitrarily discriminates against ,a business solely on the basis of its location.
In In re Riley, 39 Cal. App. 58, 177 Pac. 854, the headnote reads:
“License ordinance of town which discriminates between dyeing and cleaning businesses situated within and without town, discrimination being based solely on location of businesses, is void as attempt to enforce discrimination not based upon difference in nature of businesses transacted, etc.”
In Matter of Application of Hines, 33 Cal. App. 45, 164 Pac. 339, it was said:
“We are of the opinion that the provisions of the ordinances under which petitioner has been convicted attempt to create and enforce a discrimination not based upon differences in the nature of the business being transacted or differences in the manner of conducting the same business, or any other difference other than the mere fact of difference in destination of the goods collected and delivered by wagons collecting for laundries located outside of the city and the destination of goods collected for delivery to laundries within the city. The license provisions in question are plainly devised as a protective tariff for the benefit of laundries located in the city of Venice or laundry wagons doing business with laundries located in the city of Venice, and apparently they have no other purpose.” (p. 47.) (Italics inserted.)
The city further urges this court has held the regulatory provisions of an ordinance are not unreasonable as to a bond requirement (Peoples Taxicab Co. v. City of Wichita, 140 Kan. 129, 34 P. 2d 545), nor as to requirements of minute details of business operation (City of Kansas City v. Garnier, 57 Kan. 412, 46 Pac. 707; City of Wichita v. Wolkow, 110 Kan. 127, 202 Pac. 632). Those cases are not helpful here. First, each of them was decided upon a valid principle of genuine police regulation. Second, they were universal in their application. They apply to all engaged in the taxicab business and to pawnbrokers and secondhand dealers within the respective cities. They were not discriminatory as between classifications of a particular trade or business.
The city also rélies much on the case of Richmond Linen Co. v. Lynchburg, 160 Va. 644, 169 S. E. 554. That case turns upon the subject of classification. In all deference to the opinion, it is not in harmony with the decisions of this court and we decline to follow it.
We hold this ordinance violates the fourteenth amendment to the constitution of the United States. It follows the judgment must be reversed as to count one and affirmed as to counts two and three. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
Two mortgage-foreclosure cases, both commenced by the'same plaintiff and against the same defendant, but on different tracts of land, have been consolidated upon appeal. The defendant was Louise Miller, a widow, who has died since the appeal was perfected, and a motion for revivor in the name of the executors of her estate and others was allowed. The appeal in each case has been taken by the plaintiff from the ruling of the trial court granting an extension of the eighteen-months period of redemption under the provisions of chapter 226 of the Laws of 1935, generally known as the second moratorium act of 1935. The- ruling in the case of Kansas City Life Ins. Co. v. Anthony, 142 Kan. 670, 52 P. 2d 1208, is applicable to the facts in these cases and the granting of further extensions under the moratorium law was erroneous.
The judgment is reversed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff, employed by defendant to operate its gasoline filling station, sued his employer to recover moneys he alleged he was compelled to pay, or which were deducted from his salary or commissions because of leakage alleged to have been caused by a defective gasoline pump. A jury trial resulted in a judgment for plaintiff for $1,441.67, with interest since August 1, 1933. Defendant has appealed.
The facts may be briefly stated as follows: The defendant, C. E. Hose, a resident of Kansas City, Mo., doing business as the Economy Oil Company, owned and operated gasoline filling stations in Kansas. For about two years plaintiff was employed as filling-station attendant by defendant at its station on Southwest boulevard, and then was placed in charge of defendant’s station at Merriam, Kan., where he was an attendant for a little more than three years. He went to the Merriam station May 1, 1930, and for the first two years was paid a salary of $140 per month. Thereafter his compensation was figured on a commission basis. Defendant owned the station and all the equipment, and it was his duty to keep the same in repair. Defendant also owned all the merchandise sold at the station. Defendant had as his general manager and superintendent one C. H. Vinson, who came to the station once or twice a week and checked the sales and merchandise on hand, at which time plaintiff was required to account for gasoline or other merchandise sold and to pay for any difference in quantities not so accounted for. Soon after plaintiff went to work at the Merriam station there was found to be a shortage of gasoline on hand, figured from the' previous check-up, the amounts delivered in the meantime, and the amounts sold. This shortage was charged to plaintiff as against his salary or commissions. He complained of that and said there must be some leakage in the tanks or pumps. In installing the station defendant had purchased what he thought was first-class equipment from standard manufacturers and had it installed by competent workmen, and thought there was nothing wrong with it, and that there was no leakage coming from equipment; and perhaps thought plaintiff was not keeping as close record as he should of sales of gasoline, although this was not clearly contended at the trial. Plaintiff was allowed $35 a month to employ an assistant, or a night man. Apparently it was suspected that some of this loss occurred when the night man was on duty, for five different night men, employed for a time, later were discharged. Plaintiff kept talking about this leakage and demurring to being charged with it, and wanted to dig out the tanks or pumps to see if any leakage could be found. Most of these complaints were made to Yinson, who ordinarily checked the station, but some of them were made to the defendant Hose, who sometimes checked it personally. He was told not to dig up the tanks or pumps, and that if he didn’t quit talking about leakage he would be “fired.” At one time Vinson did discharge him, but before the date set for his checking out he was told he might continue. There was visible evidence of leakage from the pumps or tanks in that the ground near them was saturated with gasoline. Eventually plaintiff did dig around one of the tanks to see if he could find a leak, but was unable to find it. In August, 1933, defendant dug, or permitted plaintiff to dig, about one of the pumps and found a tap at the bottom of the pump which apparently had never fitted properly and from which gasoline was leaking. This was repaired and there was no leakage after that time. Not long thereafter plaintiff asked defendant to reimburse him for the sums which he had been required to pay for leakage. Defendant declined to do so; hence this lawsuit.
In his answer defendant denied liability and pleaded a settlement in August, 1933, and also set up a counterclaim for $353.02, claimed to be due from plaintiff when he quit work December 4, 1933, and also alleged if there was any shortage it was due to plaintiff’s negligence.
Turning now to the legal questions argued. Appellant contends the court erred in permitting plaintiff to testify to the conversations he had with Vinson, who died prior to the trial. It is contended plaintiff was an incompetent witness to such conversation under our statute (R. S. 60-2804), the pertinent part of which, as pointed out by appellant, reads:
“No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, where either party to the action claims to have acquired title, directly or indirectly from such deceased person.”
The point is not well taken. Plaintiff did not claim to have ac quired title to anything from Vinson; his claim is against defendant Hose. Plaintiff and Vinson were employees of Hose, in different capacities. Competency is the rule; incompetency the exception. (Madden v. Glathart, 125 Kan. 466, 470, 265 Pac. 42.) The statute is for the protection of persons adversely interested in the estate of such a deceased person. (Schultz v. United Telephone Co., 133 Kan. 730, 3 P. 2d 506.) Neither the plaintiff nor the defendant in this case was interested in the estate of Vinson; the litigation is not concerned with that estate, or any claim against it.
Appellant next complains of two instructions given by the court pertaining to negligence of plaintiff, if found, which would defeat his recovery. We have examined these instructions and find nothing seriously wrong with them. They correctly state well-recognized rules of law applicable to the question treated. Appellant’s complaint is that their wording should have been modified so as to make them more specifically applicable to the facts of the case. Perhaps some modification of the wording would have been appropriate, but defendant should have called the court’s attention to that when the instructions were given, and suggested appropriate modifications. That is the time it is important to have instructions properly phrased. Defendant did not do that, nor did he call the trial court’s attention to the matter at any time. It is too late to do it here. When an instruction given is accurate as far as it goes, and is defective only in its wording, as applied to the facts of the case, a party must make his objections and suggestions promptly, or they will be unavailing. (Master Sales Company v. Sytsma, 114 Kan. 120, 122, 217 Pac. 291; Foley v. Crawford, 125 Kan. 252, 262, 264 Pac. 59.)
Appellant next contends the evidence is insufficient to support the verdict, and that the verdict is against the weight of the evidence. The record contains an abundance of evidence to support the verdict. No good purpose would be served by detailing this evidence. The weight to be given the evidence was for the jury and the trial court.
Appellant next contends the verdict shows on its face the jury did not properly consider the evidence; that the verdict does not accord with the instructions of the court, and that the court erred in receiving the verdict, rendering judgment thereon, and in overruling a motion for a new trial. We have carefully examined all that is said on these points and find none of them to be well taken.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one to enjoin unauthorized use of trade-marked milk bottles. Plaintiff prevailed, and defendants appeal.
The milk industry in the city of Wichita is conducted by three groups: Those who pasteurize and distribute milk, an association of natural-milk producers and distributors, called the Wichita Natural Milk Producers Association, and a group which may be called independent producers and distributors.
Each member of the pasteurizing group registered a trade-mark blown in the bottle for his own use, and the natural milk producers’ association registered a trade-mark blown in the bottle for use by its members. This was done pursuant to the trade-mark law of this state, R. S. 81-101 and following sections, and it may be noted here, use of trade-marked bottles increased the business of the pasteurizers and natural-milk producers five percent.
The first section of the trade-mark law, R. S. 81-101, provides that the owner of any kind of container or receptacle, including bottles, may register his name, brand, design, trade-mark, device or other mark of ownership, stamped, impressed, or affixed as a label, on the container, or blown in the bottle, with the secretary of state.
Thé material portion of R. S. 81-102 reads:
“It shall be unlawful for any 'person or persons or corporation, or any of the agents of such person or persons or corporation, without the written consent of the owner thereof, to willfully use or fill with any similar substance as the same originally contained any of the receptacles enumerated in section 1 of this act, bearing a trade-mark so registered as aforesaid, with intent to sell, barter or exchange the same as genuine, or to change, shift, intermix, dilute or adulterate the original contents of any such receptacle, with intent to sell, barter, exchange the same as if it were genuine and original. . . .”
R. S. 81-103 provides a penalty for violation of the trade-mark law. R. S. 81-104 provides for action for injunction against using, handling, or trafficking in trade-marked containers by persons other than the owner, and for action for damages resulting from prohibited uses.
R. S. 1933 Supp. 65-706, which is a part of the statute concerning production and distribution of milk, cream, and dairy products, makes it unlawful for any person other than the rightful owner to use any milk can, milk bottle, or other receptacle, marked with the brand or trade-mark of the owner, except with written consent of the owner.
Assume that there is but one milkman for a city. He makes a delivery of milk to customers, large and small, this morning. He does not merely deliver a quantity of milk at a price per pint or quart. He delivers the milk in a bottle which costs some money. The bottle belongs to him. Tomorrow, morning he will deliver milk again, and will pick up empty bottles, which he expects to receive and which the customer expected to return. He may not, however, get back all the bottles left this morning. Bottles accumulate in homes and numerous other places where milk is used. Some are lost, some stray, some are stolen, and some are broken. It requires seven or eight bottles for one to saturate the milk trade. Therefore, in order to insure against loss of bottles, the customer makes a deposit for the number of bottles he uses. When a bottle is returned, the deposit is returned in money or credit.
Assume there are two milkmen for a city. Each one does business with his customers in the manner described. A grocer takes milk from both, and does business with his customers as if he were a milkman. The milkmen use standard bottles. Each one picks up bottles of the other, and identity of the owner of a particular bottle is not traceable. Neither milkman nor grocer considers he is in the business, first on one side of the transaction and then on the other, of making daily sales and purchases of milk bottles, and they are not so engaged. They are dealing with an incident of conduct of the milk business, and the same is true of the relation of the grocer to his customers. In sporadic cases, milk and bottle are sold for a lump price.
When several kinds of trade-marked bottles came into use, special arrangements became necessary to facilitate the handling of the milk trade, and it may be said here the pasteurizers and the members of the natural milk association, using marked bottles, deliver ninety-four percent of the milk sold in Wichita. The owner of one kind of trade-marked bottle could not, and of course would not, use the trade-marked bottle of another owner. When a delivery of milk was made, bottles were picked up indifferently and a bottle exchange was established, a sort of bottle clearing-house, where each owner could receive his own trade-marked bottles in exchange for other trade-marked bottles. The exchange was paid one half cent per bottle for the service.
Trouble arose when the independents, using plain bottles only, or bottles bearing an unregistered mark, picked up trade-marked bottles and used them in delivering their own milk.' One defendant sold 100 bottles of milk daily. She owned only 175 to 200 bottles, and could not, normally, with her own stock of bottles, supply her customers two days in succession. Another defendant was a large dealer who lacked several thousand bottles of having enough to supply his trade. The result was, independents conducted their business by a method described by the court in the case of People v. Ryan, 243 N. Y. S. 644, 230 App. Div. 252, as bootlegging milk bottles to save the expense of purchasing an adequate supply of their own. Beside that, every time one delivered his own raw milk in a pasteurizer’s trade-marked bottle, he was plainly guilty of deception ; and every time he delivered his own milk in any trade-marked bottle he violated a property right of the owner of the bottle.
When use of trade-marked bottles was adopted by the owners they notified the trade generally, by advertisement, and notified milk dealers by letter, that title to trade-marked bottles would no longer be in the possessor, but would remain in the owner. This was an innovation, disturbing to an old custom, something which it is always difficult to make prevail. It was difficult to educate people to understand that a marked bottle belonged to the owner, whoever had possession of it. Independent milk dealers resisted the new plan, and it was necessary to proceed in a practical way, in order to effectuate the change.
When use of trade-marked bottles was inaugurated, the exchange operated for a time without charge. All kinds of bottles were accepted indiscriminately. A large number of plain bottles accumulated, which were sold to a dealer in Wichita, who conducts a wholesale bottle business throughout a large territory. He disposed of the plain bottles by filling orders from outside the city in the usual course of business. The proof was, this was not done to create any plain-bottle shortage in the city, as some independents charged. After the first week, few plain bottles came in, the number at the time of trial being about a gross per week. The total delivery in Wichita is about 26,000 bottles of milk daily.
Some plain bottles do come into the exchange, brought there by owners and users of trade-marked bottles who pick them up. A pasteurizer leaves at a grocery store a case of twelve marked bottles of milk. He picks up twelve of his own bottles if he can. If there are not twelve of his own bottles available he picks up other trademarked bottles. If there are not twelve marked bottles available he will fill out the number with plain bottles. The testimony was, he is obliged to do this or lose a customer, but he does not do this to relinquish title and permit his bottles to be commingled with the common property of the community. On some occasions when there was a temporary bottle shortage, owners and users of marked bottles have delivered milk in plain bottles they had picked up, but this was not typical of their conduct of the milk business.
These departures from normal practice are magnified by defendants, who contend the owners and users of marked bottles are doing just as they previously did, a bottle is still just a bottle, and the owners of the marked bottles parted with title to the possessors. One fact which alone refuted this contention was that the deposit to secure the return of marked bottles was fixed at three cents per bottle. The bottles cost, at wholesale, more than six cents apiece, and it is idle to contend they are being sold daily for less than half price.
The question of fact, whether in the face of difficulties in working under an untried law, plaintiff forfeited benefit of the law, is the turning point in the case. No special findings were requested or were made. The court found generally in favor of plaintiff. The general finding was contrary to the contention of defendants. As this court remarked once before, it does not retry cases on the facts. It looks for evidence to sustain the findings of the district court, and in this instance the general finding was abundantly justified.
With the wisdom of permitting owners to trade-mark their milk bottles the courts have nothing to do. The purpose of the statutes which have been referred to is four-fold: To protect the public health in respect to a necessary article of food in universal use; to prevent deception in the sale of milk; to secure to the owner his property interest in his containers, and to secure to the owner all benefits which may accrue to him from publicity of his brand of milk. The statutes are valid as enactments pursuant to the police power of the state. The independent milkmen and dealers in milk are charged with knowledge of the law. The brand on the bottle is prima facie evidence of ownership. The burden rests on a user other than the owner to show written consent of the owner to the use. Without that consent the use is forbidden. That the statute cuts across old habits and customs, and makes radical change in conduct of the business of supplying milk to a community, is not important. That some consequent advantages are enjoyed and some consequent disadvantages are suffered are natural results of operation of the law. The laws were enacted in the interest of the general welfare, and small minorities, whose interests were presumably considered when the laws were framed, must respect them and conform to them. If, when balanced against general good, too great individual harm results, the remedy is by appeal to the legislature.
Defendants contend that injunction to prevent unauthorized use of marked bottles will create a monopoly of. the milk business, to destruction of defendant’s business. There are several .answers. One is, the contention is not sound. Another is, if defendants cannot do business in competition with business conducted with marked bottles they suffer no injury in a legal sense. The trade-mark law was enacted ten years after the law in restraint of trade was enacted, and the all-important dairy products law, which is purely a public health law, containing the provision forbidding use of trademarked bottles without consent of the owner, was enacted thirty years after the law in restraint of trade was enacted.
Defendants’ chief witness testified he had tried to exchange marked bottles for plain bottles at the exchange, had been refused, and he had not tried again, believing it vould be of no use. The same witness said, “They haven’t got enough plain bottles to ex change.” The manager of the exchange testified they did not have plain bottles at the exchange to exchange for marked bottles.
Some cases are cited. It is not necessary to review them. None of them involves closely related statutes, nor closely related facts. One case cited by plaintiff is quite similar to this one, and injunction was granted. (Denver Exchange v. McKinzie, 87 Colo. 379, 287 Pac. 868.) No public-health statute intervening to prevent unauthorized use of trade-marked bottles was involved. The decision does make it unnecessary to discuss a contention made here that plaintiff lacked capacity to sue.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, C. J.:
Defendant was charged with violation of the banking laws in an information containing three counts. He was convicted, and appeals.
Words not now material being omitted, the statute reads as follows:
“Every . . . assistant cashier ... of any bank who embezzles, abstracts or willfully misapplies any of the moneys, funds, securities or credits of the bank, ... or who makes use of the name of the bank in any manner, with intent in either case to injure or defraud the bank . . . shall be deemed guilty of a felony, . . .” (R. S. 1933 Supp. 9-140.)
Words not now material being omitted, the' first count of the information reads as follows:
“. . . Ralph B. Garvin, ... an assistant cashier ... of the Erie State Bank, . . . did . . . abstract and misapply moneys, funds, securities and credits of the said Erie State Bank, . . by placing a credit and deposit in the said Erie State Bank, ... in the sum of two thousand one hundred and fourteen dollars and thirty-nine cents ($2,114.39) to the credit of one H. W. Blaine, without depositing any money, funds, securities or credits in said Erie State Bank, ... to offset the liability of said Erie State Bank, . . . thereby created, with the intent of he, the said Ralph B. Garvin, to injure and defraud the said Erie State Bank, . . .”
The second count of the information alleged in similar way a credit to H. G. Barnes in the sum of $1,404.39, without corresponding deposit. The third count charged embezzlement of money deposited in the bank by a school district in the sum of $381.27, and defendant was properly convicted on this count.
As indicated, count 1 of the information was based on conduct of defendant as assistant cashier of the Erie State Bank. The Erie State Bank was organized to effect a merger of the Bank of Erie and the Allen State Bank. Blaine had a deposit in the Bank of Erie. The transcript of accounts to be taken over by the Erie State Bank did not contain the Blaine account, and the new bank commenced operation without any account with Blaine. Subsequently defendant put into the ledger of the new bank the ledger sheet from the Bank of Erie containing Blaine’s account. Defendant did this without making any deposit to the credit of Blaine.
Count 2 of the information was based on similar conduct of defendant concerning the account of Barnes in the Bank of Erie.
The counts of the information stop with the creation of the Blaine and Barnes accounts in the ledger of the new bank without making deposits to cover them. The proof went further., In order to balance his books defendant took out of the new bank ledger the ledger sheet showing the account of one Hardman in the sum of $3,460.32, and tampered with some small accounts to force a balance. The evidence also showed the new bank failed. While it was doing business the Blaine account was active. Checks were drawn, deposits were made, and when the bank failed a small credit balance remained. The Barnes account was inactive, and when the bank failed only one check of $70 had been drawn against the account and paid.
Because of the similarity of the offenses charged in counts 1 and 2, what follows applies to both.
Defendant contends count 1 contained repugnant allegations, rendering it void, in that it was not possible for defendant to create a liability of the bank by crediting Blaine and making no corresponding deposit. The classic case in 3'Mod. 104, 2 Jac. II (1686) is cited, in which it was held “An indictment charging that the defendant forged certain writing obligatory, by which A was bound, is repugnant; for if the bond be forged, A could not be bound by it.”
The chances are that this court would say the words “by which A was bound” were descriptive of the writing, and did not refer to fact of obligation. However that may be, defendant’s contention rests on lack of authority of an officer of a bank to bind the bank by a transaction of the character described. (Hier v. Miller, 68 Kan. 258, 75 Pac. 77.)
A similar contention was made and was pressed to its logical conclusion in a recent case. A county treasurer embezzled money belonging to the county which was deposited in a county depositary. He did this by means of checks on the depositary, on which the counter-signature of the county clerk was forged. He had no authority to get money out of the bank that way, and so it was contended the money which he obtained and which he spent in gambling on the board of trade was still in the bank. (Cherokee County Comm’rs v. United States F. & G. Co., 141 Kan. 301, 305, 40 P. 2d 371.)
If bank officers did none but authorized acts there would be little need for a penal statute. In this instance, as a consequence of defendant’s unauthorized conduct, the assets of the Erie State Bank were depleted substantially to the extent of the Blaine credit.
The court does not read the first count of the information as defendant reads it. The count does not charge that Blaine was given credit, that a liability was thereby created, and that no deposit was made to offset the liability so created. The essence of the charge is, Blaine was given credit for a deposit when no deposit was, in fact, made. So considered, there is no repugnancy in the count.
Defendant moved to quash count 1 because it failed to state facts sufficient to constitute a cause of action, and the motion was denied. So we have the question whether giving Blaine credit as if a deposit had been made when no deposit was in fact made, is within the denunciation of the statute.
As indicated, what defendant did was to put on the books of the bank a fictitious deposit. This necessarily demoralized the financial affairs of the bank. The assets of the bank were put behind the deposit. The depositor was given power to deplete the funds of the bank, and the court holds defendant misapplied funds of the bank to the extent of the deposit. Therefore, the motion to quash the information was properly denied.
At the trial it was proper to follow the" consequences of the fictitious deposit to, the end, as indicated by the statement of facts appearing above.
The specifications of error contained in the abstract raised in various forms the questions which have been discussed. Another specification is that the court admitted illegal testimony. The subject need not be discussed, because the matters complained of did not affect the result. In admissions duly proved defendant told the whole story of his misdeeds, and the court will not reverse the judgment of conviction merely to vindicate rules of evidence and trial practice when the ultimate result must necessarily be the same.
The judgment of the district court is affirmed.
Wedell, J., not sitting.
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Per Curiam:
This is one of the five cases in which the facts were detailed in the opinion rendered in the moratorium cases December 7, 1935, and reported in 142 Kan. 670, 52 P. 2d 1208. On January 2, 1936, the petition of the appellees for a rehearing was denied and in connection therewith the appellees were allowed, pursuant to their urgent request, until February 15, 1936, to redeem from the foreclosure sale. The appellant promptly asked a reconsideration of that part of that order denying a rehearing for the want of jurisdiction, this court having held in the opinion rendered December 7, 1935, that the foreclosure judgment rendered by the trial court fixing the period of redemption at eighteen months was res judicata.
The appellant by its appeal to this court from the order of the trial court, extending the period of redemption under the moratorium act (Laws 1935, ch. 226) was presumed to have brought its case to this court in a way and manner to have given this court complete jurisdiction of all the matters involved in the case. This court reversed the judgment of the trial court and held the foreclosure judgment to be res judicata. Is there any question of the jurisdiction or the authority or right of this court to have affirmed that judgment, which would have extended the period of redemption to January 15,1937? The fact that the judgment was reversed did not deprive this court of its jurisdiction over the judgment from which the appeal was taken or the judgment to which the extension had been made, when either affirming or modifying would have effected an extension.
R. S. 60-3330 authorizes this court to modify as well as affirm or reverse the judgments of the trial court, and this rule especially applies in equity cases. But this power and authority is necessarily limited to the time this court has jurisdiction of the case. It could not be exercised in any case where the jurisdiction was ended or concluded. R. S. 60-3317 provides that the appellate court shall—
“. . . in any case pending before it . . . render such final judgment as it deems that justice requires or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.”
In the recent mortgage foreclosure case, Prudential Ins. Co. v. Foster, 139 Kan. 112, 30 P. 2d 104, it was held:
“R. S. 60-3317 authorizes the supreme court to direct a final judgment to be rendered by the trial court, and, in an action of an equitable nature, to direct such a judgment to be rendered as fairly and finally disposes of the matters in controversy.” (Syl. fl 2.)
In the case of Neef v. Harrell, 82 Kan. 554, 109 Pac. 188, where the period of redemption in a mortgage foreclosure case was fixed at eighteen months and on appeal was reduced to six months, this court said in the opinion:
“That time has already expired, but in order that opportunity may be given for the exercise of the right of redemption after the final judgment in the case the period will be extendéd until June 15, inclusive.” (p. 555.)
The finding of this court that a judgment of the district court was res judicata does not prevent this court from the exercise of equitable jurisdiction in modifying that judgment while the appeal is pending in this court, which appeal was from a subsequent judgment setting aside and annulling such former judgment. Pendency of the appeal in this court is the limitation of its equitable jurisdiction, just as the expiration of the term of court limits the jurisdiction of the district courts over their judgments.
Appellant cites the recent case of Thornton v. Van Horn, 140 Kan. 568, 37 P. 2d 1015, which applies wholly to modification of judgments by district courts and the proceedings of taking further evidence and reaching a different conclusion, and not to the effect of a new law as to such former judgment, as in the case at bar. The syllabus in that case is as follows:
“Rule followed that after the expiration of the term of court at which a judgment was rendered, the court has no further control of it, and subsequent proceedings in the same case conducted after the expiration of the term, which had the effect of rendering nugatory the judgment already entered in appellant’s behalf, were void.”
Further along the same line, as applicable to the control of the district courts over their former judgments, it was held in Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176:
“Rule applied that the district court has absolute control of its judgments during the term at which they were rendered.” (Syl.)
And it was held in Martindale v. Battey, 73 Kan. 92, 84 Pac. 527, that—
“After the expiration of the term at which a judgment is rendered the court has no power to set it aside because of its being based on an erroneous ruling.” (Syl. II2. See, also, Cornell University v. Parkinson, 59 Kan. 365, 53 Pac. 138; Moore v. McPherson, 106 Kan. 268, 187 Pac. 884; Isenhart v. Powers, 135 Kan. 111, 9 P. 2d 988; Quinton v. Adams, 87 Kan. 112, 123 Pac. 740; and Piatt v. Flaherty, 96 Kan. 42, 149 Pac. 734.)
The last two cases above cited are urged as being approvals by this court of the renewed jurisdiction of the district court after the term at which the judgment was rendered by reason of the mandate of this court directing certain action to be taken by the district court. In addition to complying with the mandate, the district courts went further and exercised equitable jurisdiction by granting further time for redemption and on appeal to this court such extensions were not reversed, but the per curiam opinion on the rehearing of the Flaherty case, on page 46, immediately following the opinion in that case shows that the matter of exercising equitable jurisdiction in cases that have been appealed belongs properly to the appellate court. So that the general rule of the jurisdiction of the district courts terminating at the expiration of the term should prevail and apply in cases appealed as well as those not appealed. And the renewed jurisdiction after the issuance of the mandate of the appellate court is properly limited to the matters contained in the mandate.
Appellant’s petition should be denied and the extension heretofore granted for redemption to February 15,1936, should remain in force. It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
In a petition for a rehearing counsel for appellant reargues the matters covered in our first opinion. The court is satisfied with its disposition of the error assigned on the admission of evidence touching the plaintiff’s reason for limiting his demand so that the cause could not be removed to the federal court. That point needs no further discussion.
But touching the computation of interest on plaintiff’s demand and its allowance by the trial court, appellant now makes the point that until the jury returned its verdict the-exact amount due plain-, tiff was not absolutely fixed, that under the evidence the jury might have found a different sum than the precise amount prayed for by plaintiff. Counsel for the appellee tacitly admits the force of this argument. He now says:
“We agree with counsel that the value of the services of Clogston as an attorney was for the jury to determine. . . .
“We might add, however, that even if it be conceded that the addition of this interest was erroneous, it furnishes no ground for either a reversal of the case or the granting of a rehearing, but this court has ample authority to order that the judgment be reduced by eliminating the interest between the date of the filing of the suit and the date of the judgment, and if the court should conclude that including this interest was erroneous the whole matter can be corrected by merely modifying the original opinion of the court in this matter accordingly, thus obviating the necessity of either a rehearing or a new trial.”
Since the value of plaintiff’s services required a jury’s determination, interest could not begin to run until that value was ascertained, consequently the judgment of the district court requires modification by computing the interest from the date of the judgment instead of from the date the action was begun.
Thus modified the judgment will be affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The action is on a promissory note. The plaintiff seeks to recover from John Casey, as maker of the note, and from Forest C. Cochran and Azel F. Cochran, personally and as executors of the last will and testament of Casey G. Cochran, deceased, and as executors of the partnership estate of C. G. Cochran & Sons. The plaintiff alleged that a mistake had been made in writing the note by omitting the word “at” after the name of the payee to designate the place of payment, and asked that the mistake be corrected. Judgment was rendered against the estate of C. G. Cochran. From that there is no appeal. The note was not corrected. A number of special questions were answered by the jury. A verdict was returned in favor of John Casey as follows:
“We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find [for] the defendant John Casey. Casey shall have his stock returned to him and he must pay Zurich State Bank $5,000 to be deducted from contract with Cochran.”
On motion of the plaintiff a new trial was granted as to the defendant John Casey. From the order granting the new trial he appeals.
At the close of the evidence of John Casey, the plaintiff demurred thereto. That demurrer was overruled. The plaintiff requested the court to instruct the jury to return a verdict in favor of the plaintiff. That instruction was not given. The plaintiff cross appeals.
1. The plaintiff argues that the note, under the evidence, should have been corrected as prayed for in its petition. The note sued on was in part as follows:
“$5,000. Hays City, Kan., March 23, 1926.
“July 24, 1926, after date, for value received, I promise to pay to the order of C. G. Cochran & Sons, the Citizens State Bank of Hays City, Kan., at its office . . . five thousand arid no/100 dollars with interest at the rate of eight per cent per annum from maturity until paid. Demand, protest and notice of nonpayment of this note are waived by both makers and indorsers hereof.” ■
Following that language the note stated that to secure its payment fifteen shares of the capital stock of the Zurich State Bank had been deposited with the note and contained a number of stipulations concerning the disposition of the bank stock on the failure of the maker to pay the note. The note sued on was a renewal of the obligation to pay contracted by defendant Casey when he purchased the bank stock. The note had been renewed some fourteen or fifteen times. In most of them the note had recited “pay to the order of C. G. Cochran & Sons at the Citizens State Bank at Hays City, Kan.” It will be noted that the word “at” in the present note is omitted. The petition alleged that this was done by mistake. There was evidence which tended to prove that fact. The plaintiff argues that the trial court should have made that correction and that it was error not to do so. This is an action to recover on the note from those liable thereunder. The issues were submitted to the jury, which in answer to a special question found that the word “at” had not been omitted by mistake. In view of the finding of the jury and of the fact that a new trial has been granted on the motion of the plaintiff, its contention that the note should have been corrected cannot be sustained.
2. Casey complains of the order granting a new trial. His counsel recognize the often declared rule of this court that the judgment of the trial court granting a new trial will not be reversed except for manifest error, but it is contended by him that there was manifest error in granting a new trial because “the appellant’s (Casey’s) rights are so determined and established by the record that a new trial could accomplish nothing except. additional expense.” The reason for granting a new trial was not disclosed by the trial court. Under these circumstances the case falls within the rule declared in City of Sedan v. Church, 29 Kan. 190, where this court said:
“Trial courts are invested with a very large and extended discretion in the granting of new trials; and new trials ought to be granted whenever, in the opinion of the trial court, the party asking for the new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice, although it might be difficult for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the supreme court could understand them as well as the trial court and the parties themselves understood them.” (Syl. If 2.)
See, also, Klopfenstein v. Traction Co., 109 Kan. 351, 198 Pac. 930; Hughes v. Vossler, 110 Kan. 279, 281, 203 Pac. 1107; Stille v. Stille, 115 Kan. 420, 223 Pac. 281. Many other cases might be cited.
Error in sustaining the motion for a new trial has not been shown.
The judgment is affirmed.
Burch, J., not sitting.
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The opinion of the court was delivered by
Dawson, J.:
On September 29, 1927, the plaintiff Nyhart and some seventy-five other taxpaying residents of the Nortonville road benefit district of Atchison county brought this action to restrain the defendant board of county commissioners from levying a special tax upon their several properties to pay for the pavement of a class A highway in that district constructed in 1926.
Plaintiffs’ cause of action was based on the assumption that the county board had on hand sufficient funds for the maintenance of the state highway system in Atchison county and also enough road moneys to pay for the completion of all federal-aid projects under construction on March 17, 1927, which was the date when chapter 255 of the Session Laws of 1927 took effect.
The answer of the county board alleged that the road funds were required for the payment of another federal-aid project under proceedings which were under way on March 17, 1927, which culminated in a contract let September 1,1927, and under which construction was begun on the date this action was filed, September 29,1927, and that such road project was not yet completed.
In lieu of formal proof counsel for each of the parties dictated into the record certain statements of fact, upon which the judgment of the court was invoked. The most significant parts of plaintiffs’ statement read:
“That the defendants are about to place the property of the plaintiffs as above referred to on the tax roll of Atchison county, Kansas, and assess and levy a tax to pay for said concrete road. . . .
“That at the time of bringing this action and the filing of the petition herein, provision had been made for the proper maintenance of the said highways in Atchison county, Kansas, and that no tax or assessment has been levied against the land above referred to; that is to say, for the purpose of obtaining funds to.pay for said concrete road.
“That said concrete road was built prior to the completion of the state highway system in Atchison county, Kansas, in accordance with federal-aid specifications; that is to say, same was completed in 1924.”
The statement of counsel for defendants is too long for repetition, but it recites that in June, 1925, the defendant board applied for federal aid on a road known as K. T. Trail, Highway 73-E, and on February 16, 1926, a resolution to construct and maintain that road as a federal-aid road was adopted; that on September 1, 1927, the contract for the work was let, and on September 10, 1927, work on the road was begun. The contract price was $63,537.30; that the federal aid available was $25,000, leaving $38,537.30 to be provided out of the county and state road funds; that other road projects in the county had not been completed, and that balances of contract prices were or would be due thereon, viz.:
On the Catholic Cemetery road........................ $3,513.13
On the Muscotah road..'.............................. 11,438.53
The statement for the county board showed the status of the road funds on hand and in sight, together with an estimate of the cost of maintaining the state highway system in Atchison county, all of which made it obvious that these pending and necessary expenditures would leave no available road funds with which the county board could pay the cost of the Nortonville road chargeable to plaintiffs’ lands.
The trial court gave-judgment for defendants, and plaintiffs appeal. They invoke part of section 9 of chapter 255, of the Laws of 1927, which reads:
“That after provision has been made for the proper maintenance of the state highways in the county and when no tax or assessment has been levied against the lands in said benefit district, the county commissioners may pay. the portion of the costs chargeable to the lands in such benefit districts out of the county and state road fund of said county, in which event no special assessment shall be levied against the lands in said benefit district or districts.”
The entire statute, and particularly the whole of section 9, needs to be considered. One highly important proviso of that section reads:
“Provided, however, That such payments and reimbursements shall be optional with the county board in any county where any proceedings are now under way for the construction of a state road in accordance with some federal-aid specification until the construction of such road shall have been completed.”
Since the other pending road projects will require all the available road funds on hand and in expectancy for some time to come, and proceedings for the construction of “K. T. Trail, Highway 73-E” as a federal-aid project were already under way when the 1927 statute was enacted, it is clear that the circumstances under which the county board is authorized, at its option, to pay the cost of the Nortonville road chargeable to plaintiffs’ lands have not yet come into existence, and the judgment of the district court was correct.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.;
This is an appeal from an order reviving a judgment.
On May'21, 1925, plaintiff recovered a judgment against the defendants. On April 15, 1930, an execution was issued on the judgment and returned unsatisfied. On July 13, 1935, plaintiff filed his motion to have the judgment revived. Proper notice was given defendants, who filed a written objection that the judgment had lapsed; that the court had no power to revive; that the court was without jurisdiction; that the judgment was barred by the statute of limitations; that no death or absence of the defendants had been shown, nor any other reason given for said revivor. On July 24, 1935, the trial court heard plaintiff’s motion and defendants’ objections and decreed revivor. Defendants appeal.
Defendants’ principal contention is the judgment was not dormant and could only become dormant and subject to revivor where some of the parties die or are under legally disability. The contention is not good.
While the statutes with reference to revivor of judgments do not define what constitutes a dormant judgment, R. S. 60-3405, dealing with executions, provides that if execution be not sued out within five years from the date of the last judgment or the date of the last execution thereon, such judgment shall become dormant. That sec tion sufficiently defines what constitutes dormancy for our purposes here. R. S. 60-3221 provides:
“If a judgment become dormant it may be revived in the same manner as is prescribed for reviving actions before judgment at any time within two years after it becomes dormant.”
There is no question here as to the procedure followed, only that the factual situation did not warrant a revivor because there had been no change in the situation of the judgment creditor and judgment debtors. The difficulty with this argument is that it ignores R. S. 60-3220, which provides for that situation. If defendants’ argument is good, then R. S. 60-3221 is meaningless.
Prior to 1909 the limitation on time to' revive was one year, instead of two years, as at present. In Angell v. Martin, 24 Kan. 334, the situation of the parties remained unchanged. Attempt was made to revive a judgment nineteen years after the last execution was issued. In discussing the question of time, it was said:
“A party may, by the issue of executions every five years, keep a judgment alive indefinitely. It remains in force without execution for five years, and the plaintiff may revive it at any time within one year thereafter, so that practically a plaintiff may neglect his judgment for six years, lacking a day, and then revive and put it in force for five years more.” (p. 336.)
In Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630, where there had been no change in the parties, the question was the effect of absence from the state, and it was held absence did not prevent the statute of limitations from running. In the opinion it was said:
“For nearly a quarter of a century this court has held, in substance and effect, that if for any cause a judgment becomes dormant it can only be revived within one year from the time that such revivor could first have been had, and that in cases where execution could have been lawfully issued at the instance of the plaintiff thereon, his failure to cause such execution to issue for a period of five years after its rendition would render such judgment dormant, and thereafter it must either be sued upon or revived by motion within the following or sixth year, or it would cease to be a judgment.” (p. 820.)
“Thus it will be seen that this court, by a long course of decisions, has adjudicated and declared the effect of dormancy upon a judgment, and has pointed out the remedies which may be pursued within the proper time to save a debt which has become merged into a judgment.” (p. 821.)
Although the facts of the above cases prevented revivors of the judgments involved, the quotations make it clear that this court has always construed the statute that the judgment creditor has had an absolute right, if he proceeded within the requisite time, to have a dormant judgment revived. The statutes with reference to revivor provide the periods within which action must be taken to procure revivor in various cases and in effect establish statutes of limitation. Failure to proceed within these periods is fatal to a revivor. Here, however, the judgment creditor, in the time allowed therefor, proceeded properly to have his judgment revived.
The action of the trial court in reviving the judgment was correct, and its judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
W. A. Springer was charged with being a persistent violator of the intoxicating liquor law. He was found guilty and has appealed.
The principal complaint here is that the court erred in excluding evidence offered on behalf of defendant tending to show that he was insane at the time of the first conviction relied upon by the state. This excluded evidence was not offered by affidavit, or other appropriate method, on the hearing of the motion for a new trial, as required by R. S. 60-3004 (see State v. Vandruff, 125 Kan. 496, 502, 264 Pac. 1060, and cases there cited). Hence, the question argued is not properly before us. We may say, however, that the proper rule would appear to be that the question whether defendant, at the time of the prior conviction, was insane to the extent that it would affect the validity of the judgment and sentence of the court should have been raised at the trial of that case, and not having been raised then could not be considered on the trial of this case.
Appellant further contends that the evidence in this case is not sufficient to support the verdict. This contention lacks merit. The ■evidence was abundant; we shall not take space-to recite it. In fact, the evidence indicates that the jury was unduly lenient with defendant in that it returned a verdict of guilty on one count only.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from the ruling of the district court affirming the order of the probate court in probating a codicil to a will. No pleadings were filed in the probate court, but upon appeal to the district court answers were filed in that court alleging reasons why the codicil should not be admitted to probate. The following is the instrument offered for probate as a codicil:
“It being rny desire to protect the Bank of Inman, of Inman, Kansas, from a loss on a note given them by E. J. Rump, one of my grandsons, I request the probate court of McPherson county, Kansas, to allow a claim against my estate after my death for the unpaid amount which is thirteen hundred forty-seven dollars and eleven cents ($1,347.11), the same to draw six (6) percent from January 4, 1932, not to be compounded.
“This amount to be deducted from the part of the estate due my daughter, Mrs. Henry Rump.
“Signed at Inman, Kansas, this 4th day of January, 1932.
“August Knackstedt.
“Witnesses: Anna B. Blake, Fred W. Baerg.”
There is no question about the will and earlier codicil. The will was executed in 1918 and consisted of four provisions: first, payment of debts; second, directions to carry out terms of antenuptial contract; third, balance of property to be divided equally among his eleven children, including the daughter, Phine Rump, or Mrs. Henry Rump; and fourth, the naming of executors. Ten years later, in 1928, the testator executed a codicil to his will changing the executors and naming A. Bartels as such. About four years later, on January 4, 1932, he executed the above-quoted instrument.
The testator died on November 9, 1932. The will and first codicil were filed and admitted to probate November 28, 1932. On January 12, 1933, the president of the Bank of Inman filed the above-quoted instrument as a claim against the estate, making service upon A. Bartels, the executor, who was also cashier of the bank. Thereafter. a special administrator was appointed' by the probate court to represent the estate in regard to this claim of the bank. On February 22, 1933, the same instrument was filed as a codicil to the will of the deceased, and formal affidavits were made before the probate judge by both of the witnesses to the signature of the deceased to said instrument, and on the 1st day of March, 1933, the probate court admitted the instrument to probate as a codicil. Appeal was taken to the district court and answers filed. After the introduction of evidence by the bank a demurrer was filed to the evidence of the bank and was overruled by the trial court on September 14, 1934. Later evidence was introduced in defense and on rebuttal, and judgment was rendered by the trial court on August 9, 1935, affirming the decision of the probate court. On September 19, 1935, the motion for a new trial was overruled, and five days later notice of appeal was served.
Several errors are assigned by appellants, which are argued under five different headings.
The bank raises a preliminary question as to the right of appellants to be heard on matters involved in the ruling on the demurrer to the evidence of the bank, for the reason that the appeal was not taken within six months after the demurrer was overruled. To this proposition the attorney for Mrs. Henry Rump in a supplemental brief states the rule does not apply to her for the reason that she first appeared in district court as an intervener by her attorney, W. H. Carpenter, after the ruling on the demurrer, and by stipulation the evidence introduced prior thereto was not again introduced. This is supported by the language of the demurrer given in the abstract which commences with the words, “The defendant demurs.” The defendant referred to was the special administrator, and Mrs. Rump is referred to as the intervener. The record, however, whether correct or not, indicates that Mrs. Rump was in the case as an intervener prior to the time she was represented by Mr. Carpenter. The journal entry of the probate proceedings states that she appeared in person and by her attorney, Mr. Cassler, and that she arid the special administrator appealed to the district court. Likewise, the journal entry of the proceedings names her as an intervener appearing from the very beginning of the trial in the district court by her attorney, Mr. Cassler. Under these circumstances we cannot relieve her from the consequences of the ruling on the demurrer without taking an appeal from such ruling within six months.
The usual scope as to the questions involved in overruling a demurrer to the evidence is general, but in this particular case the trial court limited its ruling on the demurrer to two grounds; first, as to the competency of the witnesses signing the instrument, one of whom was a stockholder in the bank that was a beneficiary; and second, that the bank had no power to become a beneficiary under a will or codicil. These were not all the propositions involved and included in the final judgment, as shown by the same journal entry, among which findings was the following:
“. • • and that said instrument should be admitted to probate and recorded as a codicil to the last will and testament of said testator.”
The fact that there were other and further things to be determined than those two mentioned in the ruling on the demurrer to the evi dence is shown also by the stipulation made immediately after the submission of the demurrer in the following language:
“It is stipulated and agreed that all questions as to the claim allowed in favor of the Bank of Inman be reserved for further hearing.”
The only possible claim at that time to which such reference could apply was the probating of the instrument as a codicil in which an allowance was mentioned. It could not possibly refer to the claim filed by the bank against the estate, which the bank had abandoned six weeks after filing it. If it concerns the second attempt, it all depends upon the question of the instrument being a codicil. If it is a lawful and intended codicil, of course its provisions must be carried out, including the allowance of claims as well as other provisions contained therein.
We therefore hold that the naming of only two grounds of determination in overruling the demurrer to the evidence of the bank, and the parties reserving the right to develop special questions which depended necessarily upon the instrument being a codicil, which the trial court finally held the instrument to be, will not limit a review of the general question as to whether or not the instrument is a codicil except as to the two grounds named by the court in its ruling on the demurrer.
Was the instrument above quoted a codicil? We have no statutory definition of such an instrument. General texts and decisions permit and tolerate many defects and omissions to exist in order to effect and carry out the intention and wish of a testator. There are several things about this instrument, aside from the two mentioned in connection with the demurrer, which raise serious doubts as to its being a codicil. Its language is more like a unilateral contract than a codicil. It fails to refer to the will of which it is claimed to be a codicil. It fails to revoke or modify any terms of the will by reference. All the'se defects have, in many instances, been overlooked, if the intention is unquestionable.
As to the intention of the -deceased, we have the fact that he was not without experience in such matters, having made and executed one codicil and having placed it with the will in the office of the probate court. We have' no hint, suggestion or thought of this being put with the will and codicil. He did not ask the witnesses to sign the instrument nor tell them what it was. The cashier, Bartels, asked them to sign it, without telling them what it was they were signing, and the deceased “nodded.” One witness heard the deceased say to Bartels after it was signed by the witnesses, “Otto, that fixes it.” One witness testified she did not know the nature of the instrument until some time later she read it.
When we try to learn the intention of the deceased when he signed the instrument, we naturally think of the conference between him and the cashier of the bank when he wrote the document, and that in a measure, is naturally reflected by the attitude and conduct of both of them afterward. It can- forcibly be said that Bartels did not regard the paper as a codicil for some time after its execution. The deceased lived about ten months after the signing of the instrument. Then Bartels, as executor of the estate, had the will and codicil probated the same month the testator died, but made no attempt, as was his duty, to have this other instrument probated with the will and codicil. After several weeks the officers of his bank filed this document as a claim against the estate, and notice of this claim against the estate was served on Bartels, as executor. About six weeks later the idea was somehow evolved that this document never was a claim against the estate, but all the time had been a codicil. It was the unmistakable duty of the executor when this claim was served on him to at once tell the court it was intended by the deceased, when he wrote it for him, that it was a codicil to his will. With intelligent people, as these undoubtedly were, this would have been the only course, if Bartels had understood the deceased so intended. The contrary course gives us serious doubts as to this instrument ever being thought of or intended by the deceased as a codicil. Without its being intended by the deceased to be a codicil it cannot be such. All the evidence and circumstances are against such being his intention. It is not for others to decide after his death that it had better be a codicil than a claim against the estate.
We cannot overlook the fact that there could be no moral or natural duty on the part of the deceased to take the sum therein mentioned away from a member of his family and donate it, without any return, to a corporation. Counsel for appellee cite many references to texts and decisions as to the right of the testator to do as he wishes in disposing of his property, some of them saying even to the extent of the disposition being unnatural and unreasonable. With these we entirely agree when it is shown to have been his intention so to do. Here we are confronted with an indisputable alternative. Either the deceased did not intend' this instrument as a codicil, or the bank officers, including the executor who wrote the instrument, wholly disregarded his intentions when they filed it as a claim against the estate. We believe the former, and the evidence and circumstances including the language of the instrument do not justify the latter.
It was held in the case of Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950:
“It is the testator’s intention which must always control in the construction of a will, and this must be gathered from the language of the entire will interpreted by the application of legal principles.” (Syl. ¶ 1.)
There is no conflicting testimony here as to the attitude of the one who wrote the instrument and reflected the intention of the deceased at that time, and therefore the ruling in McCarthy v. Weber, 96 Kan. 415, 151 Pac. 1103, does not apply. The evidence of the son as to a conversation with deceased about protecting the bank against loss is more nearly in line with an intention to pay or allow a claim than to make a testamentary devise. We do not believe the construction of the instrument and the unconflicting testimony as to the intent of the deceased make even a prima facie case in favor of the validity of the instrument as a codicil. (Hospital Co. v. Hale, 69 Kan. 616, 619, 77 Pac. 537.)
“Whether or not an instrument is testamentary in character depends upon the intention of the maker. It is the animus testandi that makes an instrument a will. When the animus testandi is established, the character of the instrument is fixed and it is a will if the other requirements as to form and execution have been complied with. In the absence of a testamentary intent, there can be no will.” (28 R. C. L. 59.)
“In order that an instrument be entitled to probate as a will it must be testamentary in character, and whether it is testamentary in character depends upon the intention of the maker. The animus testandi gives the instrument its testamentary character, and when this is established it is a will if the requirements as to form and execution have been complied with. Where there is no testamentary intent there can be no will.” (Thompson on Wills, 2d ed., § 12.)
We conclude that there was no evidence here showing the intention of the deceased to make a codicil other than the instrument itself, and it alone is not sufficient in form and contents to show such to be the intention of the deceased.
The judgment is reversed.
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The opinion of the court was delivered by
Harvey, J.:
This appeal involves the right of a bank, as garnishee, to offset a note owed to the bank by the principal debtor against his deposit in the bank, in view of the circumstances here inafter stated. The trial court held against the bank and it has appealed.
The facts giving rise to the controversy, so far as here pertinent, are as follows: Plaintiff, residing and being engaged in business at Salina, owned cattle which were being pastured for him by one A1 Chapman, who was operating a farm and ranch. In some way plaintiff learned that on the night of August 17, 1921, Chapman and three other persons — J. D. Jones, George Talley and E. L. Jones — aiding and assisting him, took four carloads of plaintiff’s cattle out of the pasture, drove them to a shipping point and shipped them to Kansas City, where they were sold. On tracing the matter he found that George Talley claimed to have purchased the cattle from A1 Chapman for $3,800, paying for them by check, which Chapman had deposited to his credit at the Hedville State Bank. Plaintiff went to the bank and inquired concerning the matter, found the deposit had been there made, and that charges had been made against the deposit by checks drawn thereon and certified checks issued by the bank and then outstanding. He also learned that on August 13, 1921, A1 Chapman had opened an account at the Hedville State Bank by borrowing $700, for which he gave his note secured by a chattel mortgage on growing corn, kafir corn and cane, and the representatives of the bank thought the security sufficient. The plaintiff made further investigation and promptly brought an action naming A1 Chapman, J. D. Jones, George Talley and E. L. Jones as defendants, in which it was alleged that plaintiff was the owner of the cattle in question and the defendants had converted them to their use to the damage of plaintiff in the sum of $6,470, and caused a garnishment summons to issue to the Hedville State Bank, also to two banks at Salina. To this garnishment summons the Hedville State Bank answered that on the date of the garnishment there was a credit on the books of the bank in favor of A1 Chapman in the sum of $1,866; that it had issued to the defendant E. L. Jones its cashier’s check for $1,148, and to J. D.-Jones its cashier’s check for $400, and had transferred an equal amount of the funds from the Chapman account to its cashier’s account to take care of the cashier’s checks; that Chapman was indebted to the bank in the sum of $700, with interest thereon at 8 per cent from August 13, 1921, leaving a balance in the two accounts of $2,712.45; that it had no other property or money or effects of defendants in its possession or under its control; that it was informed that the plaintiff, and J. D. Jones, E. L. Jones and George Talley, claimed some right to the money; that upon the surrender of the cashier’s checks it was ready, willing and able to pay to the court the sum of $2,712.45.
In November, 1923, the case came on for trial between the plaintiff and the principal defendants, resulting in a judgment for the plaintiff. Among other things the court found that at the time of' the service of the garnishment summons the Hedville State Bank had funds.of the defendant, A1 Chapman, in the sum of $3,412.45; that the garnishee claimed the right to $700 thereof; that the motion filed by plaintiff for judgment upon the answer of the garnishee was, by agreement of the parties, considered as a demurrer to the answer, and sustained, and the Hedville State Bank was allowed twenty days in which to make answer setting forth its claim to $700 of the deposit. The judgment of the court disposed of the case as to other garnishees, and as to the money standing to the credit of Chapman in the Hedville State Bank other than the $700, and concerning those matters no question is now raised.
On November 30,1923, the Hedville State Bank filed an amended answer, as garnishee, which repeated the allegations of its former answer; that at the time of the garnishment there was a credit on its books in favor of Chapman of $1,866; that there were then two cashier’s checks outstanding aggregating $1,548. It further averred that Chapman was then indebted to the bank in the sum of $700, with interest at 8 per cent from August 13, 1921, which indebtedness was evidenced by a note due in 120 days from date, a copy of which note was attached; and it was further averred that the indebtedness still exists, and that no part of the same has been paid; that at the time of the issuance of the service of the garnishment summons Chapman was, and ever since has been, wholly insolvent, and unless the bank is permitted to offset the money on deposit to the credit of Chapman it will lose that debt. For further answer the garnishee averred that the action in which the garnishment summons was issued was an action sounding in tort, and that the clerk of the court was without authority in law to issue such summons, and that the issuance and service thereof was void, for which reason the court had no jurisdiction to make any orders concerning the money in the hands of the garnishee. As to this point the trial court held that the action was founded on the implied contract to pay for the cattle, and no serious complaint is now made of that ruling.
The plaintiff took issue on this amended answer of the garnishee in which it was averred that at the time of the service of the garnishment summons the money on deposit in the bank to the credit of Chapman arose from the misappropriation of plaintiff’s property. At that time the indebtedness on the $700 note to the bank had not matured; that the bank had not made any application of funds to such indebtedness, and had not done so at the time of the filing of its amended answer. At the time the bank loaned money to Chapman, evidenced by the $700 note, it took good and sufficient security for the payment of the indebtedness, had such security at the time it was served with the garnishment, and at the time it filed its amended answer as garnishee; that if the bank had not recovered its indebtedness from Chapman it was because it neglected to appropriate' such security; that the bank did not make the loan to Chapman on the financial standing or solvency of Chapman, but on the fact of the security it then took. In reply to this notice to take issue the bank filed a general denial. On these issues the case was tried in January, 1928.
By bringing the action in the form it was brought plaintiff, so far as the civil liability of Chapman and his confederates was concerned, elected to ratify the conversion and to treat the matter as a debt from Chapman to plaintiff in so far as it related to the proceeds of the cattle deposited by Chapman in the bank. Appellant argues that because Chapman was at the time of the trial shown to be insolvent, the bank had the right to set off the debt of Chapman to the bank even though his note to the bank was not then due against his deposit there. (Docking v. Commercial National Bank, 118 Kan. 566, 235 Pac. 1044. See, also, 7 C. J. 655, and Meinhart v. Farmers State Bank, 124 Kan. 333, 259 Pac. 698.) This argument lacks merit for the reason that it is clear when the bank made the loan of $700 to Chapman on August 13 it did so, not on the theory that Chapman was then insolvent, but for the reason that it regarded its security then taken to be good. Neither did the bank make this loan to Chapman on the theory or hope that he would later steal plaintiff’s cattle to get the money to pay the bank. The bank did not, in fact, set off the sum due it from Chapman against his deposit, and had not done so even to the time its amended answer as garnishee was filed, more than two years later. The bank, in fact, continued to take renewal notes from Chapman, and it did so in evidence of his debt to the bank and because the bank did not want past-due paper, and because Chapman had thought or advised the bank officials that he would be able to take care of it. If the bank had made this set-off prior to taking these renewal notes there would, of course, have been no indebtedness for which to take a note. More than that, plaintiff, at the time he filed that action, had other remedies open to him than to sue Chapman for the money, in a sense ratifying the sale of his cattle and treating the matter simply as a debt. He might have taken steps to follow the cattle themselves in the hands of the purchasers, or the proceeds wherever found. He was induced, in part at least, not to take that step because the officers of the bank, when he discussed the matter with them on August 21, advised him that the bank had made the loan to Chapman on August 13 on the security then given, and that the bank considered itself secured. It may very well be true, as argued by appellant, that the subsequent renewal notes were not taken in payment of the original debt, but the fact they were taken at all can be justified only on the theory that the original debt existed at the time the several renewal notes were taken.
That is about all there is in this case. There is no error in the judgment of the court below, and it is affirmed.
Burch, J., not sitting.
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The opinion of the court was delivered by
Burch, J.:
The action was one of quo warranto to oust the North Wichita drainage district of Sedgwick county from exercise of corporate power. The judgment was that the writ be denied. Defendant in its answer prayed for an affirmative ’judgment that the corporation was legally organized, and appeals to.obtain a supplemental judgment to that effect. Plaintiff appeals, and challenges soundness of the judgment rendered.
The principal contention of the state is that chapter 163 of the Laws of 1925, under which the district was organized, contravenes section 17 of article 2 of the constitution relating to special legislation and singleness of subject of legislation. The statute is prospective, and applies to any county in the state having a population of more than 85,000 and less than 130,000. Under repeated decisions the legislature was authorized to make such a classification. The statute is general, and it operates uniformly in all counties to which it applies.
It is contended the act contains more than one subject. The act is a drainage act, supplemental to an existing drainage statute, and relates to the incorporation and powers of drainage districts — a single comprehensive subject.
It is contended the statute impaired vested rights of property-owners in that a new method of financing drainage projects was adopted. No right to benefit of the existing method of taxation had vested in any property owner when the statute was enacted, and no property owner has a vested right to the continuance of any particular method of taxation under which he has not been taxed.
It is contended the act removed the officers of the drainage district from supervision of the district court. The contention is well founded. Supervision was given to the board of county commissioners, where as a matter of good policy it belonged.
It is contended the statute under which proceedings were had, to the stage at which they were controlled by the act of 1925, was unconstitutional. The subject need not be discussed because, as applied to this case, the legislature adopted the proceedings under the previous law as the basis for operation of the act of 1925, and so legitimated them, if there was any doubt of their validity.
The court concludes the statute 'of 1925 is constitutional and valid, and the drainage district is a legally organized corporation. The judgment of the district court is supplemented by a finding and judgment to that effect.
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The opinion of the court was delivered by
Hopkins, J.:
These were actions against the receiver of an insolvent bank to have certain claims preferred over general creditors, the actual question involved being whether deposits by the plaintiffs made for the special purpose of paying taxes constituted funds of a trust character, thereby entitling the plaintiffs to preference and payment before distribution to general creditors. The plaintiffs prevailed and the receiver appeals.
The facts which were agreed to disclosed, among other things, that Matzen had been a customer of the bank for more than five years; that November 24, 1925, he drew his check on his account at the bank for $282.47 for the purpose of having the bank pay his taxes on certain real estate in Sedgwick county, he at that, time having sufficient funds in the bank to pay the check. The bank received the check and charged the amount thereof against his account, issuing receipts therefor in triplicate, one of which was delivered to Matzen. What was done in this instance was similar to others by the same bank. It had a system of making receipts in triplicate, delivering one to the customer, mailing one to the county treasurer, and retaining one. Matzen’s check was deposited by officers and employees of .the bank in an account carried on the books under the name of “tax account,” of which practice and methods Matzen had no knowledge. Under the system of bookkeeping followed, the tax account was made up of cash and checks delivered by customers to the bank for the purpose of having the bank pay their taxes. The bank did not pay Matzen’s taxes and he was afterward compelled to pay them. On December 5, 1925, the bank was taken charge of by the bank commissioner. The balance on hand in the tax account at that time was something over $7,000. The actual cash on hand at the close of business on November 23, 1925, was $578.65; at the close of business on November 24 it was $995.20, and on December 5 it was $867.61. Taxes were paid and receipts similar to the one issued Matzen were issued to seventy-one such depositors. At all times mentioned the Goddard State Bank was a county depositary, but the tax account above mentioned was not a county account nor subject to the check of the county treasurer. It had been the custom of the bank in previous years to send the county treasurer' check for the entire amount of funds in the tax account just before the 20th of December.
The material facts in the Heschmeyer case were substantially the same.
Practically the same questions here presented have heretofore been considered and passed upon by this court. In Goodyear Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992, it was held that a check drawn on the general checking account of a depositor and placed in a special fund was identical' with a deposit in cash. The court said:
“If Poell Brothers, instead of paying the draft upon them by check, had used currency for the purpose, there can be no doubt that the receiver would hold the amount in trust for the plaintiff, for the total of cash or its equivalent which came into his hands would necessarily or at all events presumptively have been that much larger by reason of such payment. The court is of the opinion that the rule applies that where a payment to a bank is made by a check drawn thereon the result is the same as though the depositor had presented his check, received the money over the counter and then used it in making the payment.” (p. 773.)
In Secrest v. Ladd, 112 Kan. 23, 209 Pac. 824, the Goodyear case was approved and the following comment made:
“No reason is seen for disallowing a preference for the amount drawn out of the savings account by plaintiff and turned over to the bank as a part of the special deposit. It was as effectually impressed with the trust as if plaintiff had drawn the cash from the bank and placed it with other moneys in the fund to be used for the specified purpose.” (p. 26.)
This same rule was applied in the case of the First Church of Christ Scientist v. Ætna Bldg. and Loan Ass’n, 122 Kan. 672, 253 Pac. 574, and the earlier decisions of this court, citing authorities from other jurisdictions, discussed and approved. The cited cases are, as far as the question under consideration is concerned, identical with those here. (See authorities cited in Tire & Rubber Co. v. Bank, supra; Kesl v. Bank, 109 Kan. 776, 204 Pac. 994; Am. Nat’l Bank v. Miller, 229 U. S. 517; Federal Res. Bank v. Peters, 139 Va. 45, 42 A. L. R. 742; State Nat. Bank v. First Nat. Bank, 124 Ark. 531, 187 S. W. 673; Hawaiian Pineapple Co. v. Browne, 69 Mont. 140, 220 Pac. 1114; Note in 47 A. L. R. 761.)
While not unmindful of the rights of innocent third parties (general depositors) and while giving full consideration to the forceful .argument by the receiver against the rule followed in the cited cases, we are convinced, all things considered, that it is the safer and in principle the sounder, and will adhere to it.
The judgments are affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action by the beneficiary in a life insurance policy against the insurance company which issued the policy on the life of her husband, now deceased.
The petition alleges the usual points for recovery upon such a policy, and the answer and cross petition admits the allegations of the petition in effect, and then alleges the tender of the returned premium to the plaintiff and her refusal to accept it, and that the insured at the time he made application for the insurance and at the time it was issued and delivered to him knew that he had made application to another life insurance company for insurance and that such application had been refused, and also knew that he was not in good health and free from disease and injury at the time of his application to the defendant company, and in spite of such knowledge on his part made false and fraudulent answers on his application for insurance, and the defendant did not know these answers to be false and fraudulent, and would not have issued the policy and delivered it if it had been so informed, and that the answers were made with the intent to defraud the defendant, and defendant tendered into court the amount of the premium.
Defendant in its cross petition set up two questions in the application which it alleges were falsely and fraudulently answered by the insured with the intention of defrauding the defendant insurance company, and defendant prayed that the policy be surrendered, rescinded and set aside. To this the plaintiff replied admitting the tender of the returned premium and admitting the answers to the questions, 6A and 10, as set up in the cross petition, but denied each, every and all of the allegations of the answer and cross petition, and specifically denied that the insured made fraudulent answers and representations, but alleged that the defendant was fully apprised and informed of all the facts material to the inducement and procurement of the contract at the time he, the insured, made the application.
The trial court held that the burden of proving the fraud alleged in the answer and cross petition was upon the defendant. The defendant introduced its evidence. At the close of the evidence of the defendant the plaintiff moved the court to direct the jury to render a verdict in favor of the plaintiff. The defendant also moved for an order directing the jury to render a verdict in favor of the defendant. The court sustained the motion of the plaintiff and overruled the motion of the defendant. A directed verdict was rendered in favor of plaintiff for the face of the policy with interest. There were several errors alleged in the introduction of testimony and the defendant moved for a new trial, which was overruled, from all of which rulings the defendant appeals.
Before considering the facts and testimony in the case we may briefly refer to the legal distinctions that are discussed in the briefs as between fraud and misrepresentations. A mere misstatement of the actual truth unintentionally made and in good faith may not amount to fraud. It was said in Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996, that a mere misstatement, unless willful and fraudulent, will not avoid the policy in the absence of a warranty of the truth of the statement. The following statement from 14 R. C. L. 1021 is helpful in making a proper discrimination:
“A misrepresentation in insurance is a statement of something as a fact which is untrue, and which the assured states, knowing it to be untrue, with an intent to deceive, or which he states positively as true, without knowing it to be true, and which has a tendency to mislead, such fact in either case being material to the risk. ... To render the policy voidable a false representation must relate to a material matter, and must have been relied on by the insurer. A fair test of the materiality of a fact is found in the answer to the question whether reasonably careful and intelligent men would have regarded the fact, communicated at the time of affecting the insurance, as substantially increasing the chances of the loss insured against so as to bring about a rejection of the risk or charging an increased premium.”
Many of the decisions cited have to do with warranties, which are not in any way involved in this case, because the contract between the applicant and the insurance company provides that—
“This policy, and the application herefor constitute the entire contract between the parties hereto. All statements made by the insured as the basis for the contract shall, in the absence of fraud, be deemed representations and not warranties. . . .”
The question of good faith is also discussed, which of course is proper in the determination of the existence of fraud; likewise innocence and lack of knowledge. Another feature discussed is the knowledge of the agent being that of the company and the sufficiency of information to put it upon inquiry.
Another feature of the application is mentioned and deserves consideration. It is in the nature of an agreement made as a part of the application in which the applicant said over his signature that “The statements and answers are full, complete and true, and are offered by me as the basis for the proposed contract for insurance.” “I hereby certify that I have examined and accept the provisions of the policy applied for, and said company shall not be held responsible for agent’s statements at variance therewith.” Immediately following the answers to the questions the insured stated: “I hereby certify that I have read and find correctly recorded as made by me each of the above statements.and answers, and I renew and affirm the declaration as to such statements and answers made by me in Part I of this application.”
There is no conflict of evidence, and the sole question is, Does the testimony given establish fraud, the burden of proof that it did es tablish fraud being assumed by the defendant? This is limited in the allegations of the defendant to the answers given to two questions, 6A and 10. These questions and answers thereto are as follows:
“6A. Has any life insurance company ever examined you either on an application for insurance or for any other reason, without issuing a policy? (If so, state name of company and give particulars.) A. No.
“10. Are you now in good health, free from diseases and injury? A. Yes.”
As to the answer to the first question, it is conceded to be incorrect. But, of course, being incorrect or untruthful will not make it fraudulent. A fraud must never be presumed. The plaintiff insists that the deceased, Doctor Scott, gave “a full, complete and true answer” to this question to the appellant’s agent, E. G. McCalester, and to show plaintiff’s reason therefor we quote the following from plaintiff’s brief, pages 23 and 24:
“Mr. McCalester testified that he went over this application with the insured prior to its being executed, that Doctor Scott told him that he had previously made an application to and had been examined by the Mutual Benefit Life Insurance Company of New Jersey. Mr. McCalester testified that the insured told him that no policy of insurance was issued by the Mutual Benefit Life Insurance Company on that application. This we submit was a true and correct statement by the insured to the appellant’s agent of the facts sought to be determined by this question. These statements made by the insured were responsive to the question and gave to .the appellant, by and through its agent, E. G. McCalester, whose agency and authority has not in any stage of the proceedings been questioned, all the information demanded by the question. At the time of this conversation between McCalester and the insured, the insured asked McCalester his opinion as to the proper answer to that question in view of the facts just detailed and McCalester in spite of those facts advised the insured to answer question 6A ‘No.’ ”
Of course this reasoning seeks to place the burden of making the incorrect answer on the agent of the defendant, and through him on the company. One thing stands out, why an intelligent and professional man, like the applicant, after stating in the affirmative the only two things involved in the question should ask the agent or any person “his opinion as to the proper answer” to that question. So the agent at least did not volunteer the false answer. The above-quoted extracts from the application show that the applicant read and verified the answers given as being true, and exonerated the company for the agent’s statements at variance therewith.
When McCalester, the agent, was on the witness stand as a witness for the defendant he identified only the application, but in cross-examination the plaintiff brought out this conversation between him and the applicant with reference to the answer to question 6A, part of which is stated above. The further evidence furnished by this witness does not go to the question of the incorrect answer given to this question but tends to furnish a reason for the applicant wanting to find other than an affirmative answer to this question. The following is one of the answers given by this agent on cross-examination:
“Doctor Scott told me how he had made an application in another insurance company, in a company that he had $10,000 insurance with, and that he had figured on taking out $2,000 or $3,000 more, but they had failed to do just as they started in to do and he had canceled the application.”
The first witness called by the defendant was a brother of Doctor Scott, who testified that he, as agent for the Mutual Benefit Life Insurance Company, of Newark, N. J., had taken the application of his brother for insurance in that company on February 10, 1934, had sent it in and received a copy of a letter from the company about it, and told his brother in March, 1934, that his application had been declined by the company, and in June, 1934, he wrote to the defendant company asking if he might take an application from his brother for a policy in the defendant company.
An officer of the Mutual Benefit Life Insurance Company in a deposition testified that the application of Doctor Scott had been rejected on March 3, 1934. On March 19, 1934, Doctor Scott wrote a letter to the Mutual Benefit Life Insurance Company at Newark, N. J., of which the first paragraph is as follows:
“I have had some correspondence with your general agent, Mr. Poindexter, at Wichita, Kan., relative to my policies numbers 87 9631-2, since you declined to issue the smaller policy, that I might have the benefit of the accumulated dividends. He also declined to answer my inquiries. Hence this request to the home office.”
The second paragraph speaks of a test of urine, and the third paragraph asks about withdrawal of dividends on his present policies.
The secretary-treasurer of the defendant company testified that the answer to question 6A was material and any application, where it was answered in the affirmative, would be rejected by the company. In Steele v. Woodmen of the World, 115 Kan. 159, 222 Pac. 76, it was held:
“Questions asked upon an application for a beneficiary certificate as to whether the applicant ever failed to obtain life, accident or health insurance applied for, and whether any physician had ever declined to recommend applicant for life, accident or health insurance, are material, and false answers given by him to such questions operate to annul the certificate.” (Syl. ¶ 4.) (See, also, Glasgow v. Woodmen of the World, 107 Kan. 354, 191 Pac. 470.)
We think this false answer to question 6A was a material one which would change the attitude of the company as to the risk proposed. The applicant solicited an answer after giving the affirmative answer himself. He confirmed the false answer in the contract following the same. The fraudulent purpose and design is shown by his concealing the truth even from the agent by making another false statement to him when his own letter, the testimony of his brother and the records of the New Jersey company showed conclusively that he knew differently. Of course it takes more than falsehoods to constitute fraud, but among the many elements involved therein are concealment, lack of good faith, financial advantage to self and disadvantage to others. There are enough of these to establish fraudulent intent and purpose in making this false answer to enable us to hold that the defendant had made out a case of fraud as it had alleged and to the extent that it was error to sustain the plaintiff’s motion for a peremptory instruction for judgment in favor of the plaintiff.
Appellant claims the answer of the applicant to question 10 was equally false and fraudulent. The question was, "Are you now in good health, free from disease and injury?” And the answer was “Yes.” This and the other answers were made in July, 1934. Applicant was examined by the defendant’s physician the same month and recommended as a good risk. Doctor Hartman testified that he examined the applicant in August, 1934, and found a cancerous growth. After the applicant returned from the Mayo Hospital, where an, operation had been performed, this witness, in the month of November, 1934, discovered symptoms of gallstones, and after the death of the applicant in December, 1934, in a postmortem examination both matters were verified. Doctor Hartman gave it as his professional opinion that a gallstone had been forming several years and the cancer from six to nine months, and further that it was entirely possible that the applicant, although a physician himself, might not have known or thought he had either of these diseases.
Many of the authorities cited by plaintiff as to good faith in making such answers are more nearly applicable to the attitude of the applicant in his answer to this question than in his answer to question 6A. The testimony of Doctor Hartman sounds reasonable and is the only testimony on the subject of the applicant knowing of his having serious diseases. This answer calls for an opinion rather than a positive statement of fact. How different the situation would have been if he had made the same answer after having broken a leg a few years before. Other physicians might have different opinions as to Doctor Scott knowing of either of these troubles earlier. It was only about a month after he answered these questions that he had Doctor Hartman examine him. However, he kept on at his work, we are told. We do not feel that the defendant established fraud in connection with the answer to this question.
We do not find assignments of error concerning the introduction of evidence to be serious enough to justify further consideration in this connection. We do not find error in overruling defendant’s motion for a directed verdict.
Since we have found that the defendant established sufficient fraud in connection with the answer of applicant to question 6A to submit the case to the jury, and the judgment for plaintiff should not have 'been directed, there was error in overruling the defendant’s motion for a new trial.
The judgment is therefore reversed, and the case sent back with instructions to set aside the judgment and grant a new trial.
Dawson, J., concurs in the judgment of reversal, but holds that judgment for defendant should be directed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus brought by a taxpayer to compel the defendants, the county commissioners, county clerk and county treasurer^ to comply with the order of the state tax commission by changing the tax rolls of the county so as to agree with said order and cancel the excess amount of valuation of plaintiff’s property and apply the proper levy to the valuation fixed by the state tax commission. An alternative writ was issued and an order was made to show cause why the court should not issue a peremptory writ of mandamus. At the same time an injunction was issued against such officers restraining them from issuing execution and selling any of plaintiff’s property for taxes during the pendency of the mandamus action. The defendants have filed a motion to quash the alternative writ and also a motion to dissolve the restraining order.
The excess assessment, as claimed by the plaintiff, is that imposed by the assessor for escaped assessments for the years 1929 to 1933, inclusive, under the provisions of R. S. 79-1427. It is based upon double the assessed value of the outstanding contract for balance due on the sale of 650 shares of the capital stock of the Beacon Publishing Company, less the intangible property listed for taxation by the plaintiff for each of the five years. The motion of the plaintiff for the writ and the exhibits thereto attached state that the plaintiff each of the five years involved duly made his annual tax return and each year made diligent inquiry of the proper taxing officials, including the deputy assessor and the state tax commission and its attorney, regarding the taxability of said agreement, and was advised by each and all of them that the same was not taxable, and therefore did not return such property for taxation for any of said years. That thereafter, about February 1, 1935, the plaintiff duly filed with the state tax commission his complaint and application for relief from a tax grievance, and thereafter a hearing was had and the commission made an order holding that the property was subject to taxation under the intangible law (Laws 1927, ch. 326; R. S. 1933 Supp. 79-3108 to 79-3120, inclusive) for all six years except the year 1930, and for the year 1930, there being no intangible law that year, it was subject to the escaped assessment law, and fixed the amount due for that year and exonerated the plaintiff from penalties and also of tax or penalties for the other years under the intangible law.
The motion for the writ shows that the county clerk and county treasurer did not change their records to conform to the order of the tax commission, and the plaintiff offered to pay the county treasurer for the full amount of the taxes as found and directed by the tax commission, which the county treasurer refused to accept, but the county treasurer threatened to issue to the sheriff of said county tax warrants to be levied upon the property of the plaintiff for the collection of the escaped assessment taxes imposed by the assessor.
The exhibits attached to the plaintiff’s motion for the alternative writ in this case were the contract of sale of shares of stock in the printing plant and the obligation for payment of the same, the order of the tax commission made July 26, 1935, holding this contract to be intangible property and therefore not liable for taxation under the escaped assessment law, except for the year 1930, for which the value of the contract as personal property was found to be $225,000, and a supplemental order correcting the rate of taxation for the year 1930 to the personal-property rate of taxation for that year instead of the rate of 1934. This was the situation, as stated in the motion for a writ of mandamus, when the motion was filed and the alternative writ was issued.
The motion of the defendants to quash the alternative writ is like a demurrer, and for the consideration thereof the statements contained in the motion for the alternative writ and the attached exhibits are regarded as the facts in the case.
A preliminary matter has to do with the injunction feature of the case. Defendants maintain that two causes of action are improperly joined, that this is an application for an injunction as well as an alternative writ of mandamus, and such misjoinder is ground for quashing the writ. There is no ambiguity about the cause of action. It is a mandamus action and not an action for an injunction. But an injunction pending the hearing of the mandamus action is always proper to hold matters in statu quo — in this case to prevent the sale of the property of the plaintiff until this hearing is completed.
It was held in the early case of C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kan. 223, 21 Pac. 1071, which was an original mandamus case like the one at bar, that—
“Inherently the supreme court must have the power to protect its own jurisdiction, its own process, its own proceedings, its own orders, and its own judgments; and for this purpose it may, when necessary, prohibit or restrain the performance of any act which might 'interfere with the proper exercise of its rightful jurisdiction in cases pending before it.” (p. 225.)
. . every regularly constituted court has power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, and the enforcement of its judgments and mandates. . . '. So demands, matters, or questions ancillary or incidental to or growing out of the main action, and which also come within the above principles, may be taken cognizance of by the court and determined, for such jurisdiction is in aid of its authority over the principal matter.” (15 C. J. 810, 811.)
“The court, in the exercise of its power to grant injunctions, may issue a restraining order or temporary injunction, in aid of or as ancillary to a proceeding. . . .” (14 R. C. L. 323.) (See, also, State v. Brewing Association, 76 Kan. 184, 90 Pac. 777; and Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 135 Kan. 450, 10 P. 2d 893.)
We have no hesitancy in concluding that there is no misjoinder of causes of action here, as there is only one cause of action in the case, and that is mandamus. The injunction feature is wholly ancillary, and as no good reason is assigned for dissolving the injunction as an ancillary matter, the motion to dissolve such injunction is denied.
The defendants insist that because the state tax commission is an administrative board and not a judicial body its findings upon legal questions are not binding on county officers and that they have discretion to do as they think best, and therefore they cannot be compelled to conform to any such order issued by the tax commission either by an order of that commission or by a court. Is the compliance with the order of the commission a discretionary matter or a ministerial duty? Defendants cite Robinson v. Jones, 119 Kan. 609, 240 Pac. 957, in support of the view that the duties of these defendants are discretionary. That was a mandamus tax case where the county officers refused to carry out the order of the state tax commission to cancel certain uncollected taxes and refund the part collected for what was termed overriding oil royalties, and the court upheld the right of the county officers to defend on the ground that the order was erroneous as a matter of law, yet it nowhere held such matters were discretionary, but that they were purely ministerial duties.
“Plaintiffs’ rights having been established by the tax commission, compliance with its mandate is a purely ministerial duty, and the suggested remedies are not fair substitutes for specific performance.” (p. 611.)
It also held:
“Mandamus is a remedy properly invocable by an aggrieved taxpayer to compel a board of county commissioners to comply with an order of the tax commission to cancel uncollected taxes and to refund taxes which have been collected.” (Syl. ¶ 1.)
“The tax commission is an administrative body, and its decisions in all matters within the scope of its supervisory power, involving administrative judgment and discretion, are conclusive upon subordinate taxing officials. In the exercise of its functions, the tax commission must as a matter of necessity interpret the tax laws, and such interpretations are prima facie binding.” (p. 612.)
Another case cited by defendants along the same line is Chicago, R. I. & P. Rly. Co. v. Ford County Comm’rs, 138 Kan. 516, 27 P. 2d 229, which holds that the orders of the state tax commission are not conclusive on the courts on questions of law. In other words, on such questions the matters are subject to review, but that does not help the contention of the defendant county officers, that such matters cannot be controlled by mandamus. In fact, this case cited was an original proceeding in mandamus, and it was there held:
“While the state tax commission has supervisory and controlling power over subordinate taxing officers, the power exercised is administrative, not judicial, and its decision ordering the county to issue a refunding warrant to a taxpayer who had paid an alleged illegal tax under a protest is not conclusive on the courts on questions of law nor does it prevent the court from rendering a proper judgment on the issues involved in the order.” (Syl. H 1.)
Defendants cite the definition of discretion given in Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, as follows:
“Discretion is defined, when applied to public functionaries, to be ‘a power or right, conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others.’” (p. 372.)
The two cases previously cited take discretion out of the tax duties here under consideration and make them subject to review by the courts, and that is the present question. It was said in the recent case of Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936, that it was governed by the rule announced in the Ford county case, and then added:
“It was there said, inter alia, that an order of the state tax commission is only an administrative order, not a binding judgment like that of a judicial tribunal. But such an order is prima facie valid, and public officials may and should act upon it, where its validity is not promptly challenged before a court of competent jurisdiction.” (p. 626.)
In Kittredge v. Boyd, 136 Kan. 691, 18 P. 2d 563, which was a mandamus action against the state treasurer to recover an inheritance tax paid under protest, it was said that mandamus has become the familiar vehicle to accomplish the end of obtaining an authoritative determination of legal questions.
Under all these authorities cited by both parties there can be no doubt of the legal question involved in this action being one that should properly be determined in a mandamus action.
The defendants contend that they should not be compelled to comply with an order of the state tax commission which is erroneous and invalid. As shown by the authorities heretofore cited, both the taxpayer and the county officers have a right to review the orders of the commission, and this case is brought by the taxpayer for that very purpose, viz., to review the legal questions involved in the order of the commission.
Defendants claim that the intangible tax law, R. S. 1933 Supp. 79-3108 to 79-3120, is supplemental to the then existing tax laws and did not repeal any of the provisions of the general tax law, and that by this action the plaintiff seeks to compel the defendants to comply with an order of the state tax commission which is erroneous and invalid. Both parties very learnedly go into the discussion of the constitutionality of the intangible tax law, the questions of the inconsistencies of the two laws, the repeal of the old law or parts thereof by the new law, by implication or otherwise, and the validity of the new intangible law. These very interesting and well-argued propositions may raise very essential and important matters for future consideration, but we think a determination of them is not necessary here, except to hold that the intangible act contains its own requirements and conditions for imposing the penalty of the personal-property levy which the commission did not find had been established as to false or fraudulent listing or failure to list, which applies to all the years except 1930, and we hold that the order of the commission was not erroneous or'invalid as to all the years except 1930.
R. S. 1933 Supp. 79-3118 is as follows:
“If any person, partnership, association, company or corporation shall knowingly give a false or fraudulent list or statement required by this act, or shall fail or refuse to deliver to the assessor when called upon for that purpose, a list of the taxable property which under this act is required to be listed, or shall temporarily convert any part of such property into property not taxable, for the fraudulent purpose of preventing such property from being listed, or of evading the payment of taxes thereon, or shall transfer or transmit any property to any person with such intent, he or it shall be guilty of a misdemeanor, and subject to a fine of not less than fifty dollars nor more than five thousand dollars; and in addition thereto any such,property which, for any of the foregoing reasons, has not been returned under this act shall be subject to the regular personal-property rate of taxation within the taxing district where the owner thereof resides.”
As to the year 1930, there was no intangible law in existence at that time, and this contract held by the plaintiff was that year just like other personal property owned by him, and as it was not listed it was subject to the provisions of the escaped assessment statute, R. S. 79-1427. This finding or determination of the tax commission was not erroneous nor under a law claimed to be invalid as applied tó this particular year. Plaintiff here seeks to enforce the order of the tax commission imposing taxes on escaped assessments without doubling the same.
The defendants also claim that the assessment of this valuable contract held by the plaintiff was an escaped assessment for' all these five years, made by the county assessor, which was final and' conclusive and was not subject to review by the state tax commission, and they emphasize in this connection the duty of plaintiff to candidly and honestly list the contract for taxation at its true value as being a duty of the owner rather than a duty of the assessor, citing among other cases the case of Davis-Wellcome Mortgage Co. v. State Tax Comm., 140 Kan. 734, 38 P. 2d 1100, which fully bears out defendants’ contention as to duty, but does not justify excessive consequences.
The provisions of the statute on escaped assessments, R. S. 79-1427, are as follows:
“That if the assessor shall discover that any personal property, which was subject to taxation in any year, has not been assessed, or for any cause any portion of any personal property has escaped taxation in any year or years within five years next preceding, it shall be the duty of the assessor to list and value such property at twice its real value for each such year during which such property, or any portion thereof, was not taxed, and it shall be designated on his return as ‘escaped assessment’ for the preceding year or years, and he shall indicate in his return the year or years for which such escaped'assessment or assessments is made. If the owner of such property shall be deceased, then the taxes charged as herein provided shall be assessed against the estate of such deceased person for three years only preceding his death, and shall be paid by the legal representative or representatives of such estate: Provided, That in the event that such escaped assessment is due to error of any assessor, or that any taxpayer was not afforded an opportunity to list his escaped property, then such escaped assessment shall be entered at its true value.”
Defendants insist that for the reasons assigned above the order of the commission was erroneous and the motion to quash the alternative writ should be sustained. The motion to quash the writ is aimed at the writ, which includes the motion for the writ and the exhibits attached, one of which is the order of the commission; and the motion to quash reaches the insufficiency of the combination because they all go together to make up the writ. Many cases are cited on this subject from other jurisdictions which may have differently worded statutes.
The language of R. S. 79-1602 as to the duties of the county board of equalization seems to be general enough to include even escaped assessments when it states:
. . shall make such changes in the assessment of property as shall be necessary in order to secure an assessment of all property at its actual value in money. . . . The board shall hear and determine any complaint made by any taxpayer as to the assessment and valuation of any property in the county which may be made to the board by the owner of such property or his agent or attorney.”
Then the state board is created and its duties are defined by R. S. 1933 Supp. 79-1409, as follows:
“The tax commission as hereby created shall constitute a state board of equalization, and shall equalize the valuation and assessment of property throughout the state; and shall have power to equalize the assessment of all property in this state between persons, firms or corporations of the same assessment district, between cities and townships of the same county, and between the different counties of the state, and the property assessed by the said tax commission in the first instance. And any person feeling aggrieved by the action of the county board of equalization may, within thirty days after the decision of said board, appeal to the state board of equalization for a determination of such grievance.”
R. S. 79-1702 also provides:
“If any taxpayer shall have a grievance not remediable or which has not been remedied under section 1 of this act such grievance may be presented to the tax commission at any time prior to the first day of August of the year succeeding the year when the assessment was made and the taxes charged which are the basis of the grievance, and the said commission shall have full authority to inquire into the grounds of complaint, and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax if uncollected together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected.”
These statutes were held to apply to excessive levies on railroad property in the case of Atchison, T. & S. F. Rly. Co. v. Drainage District, 133 Kan. 586, 1 P. 2d 253, and to grievances as to valuations generally, and ordering of refunds in the Zimmer case.
It was held in Lipke v. Lederer, 259 U. S. 557, 42 S. Ct. 549, with reference to the collection of a government tax as a penalty that—
“Before collection of taxes levied by statutes enacted in plain pursuance of the taxing power can be enforced, the taxpayer must be given fair opportunity for hearing — this is essential to due process of law.” (p. 562.)
As prescribed by R. S. 79-301, every person of full age and every corporation should make a list of his taxable property for the assessor, and the order of the commission attached to the writ in this case so holds the plaintiff responsible for having failed so to do, but does excuse him from the penalty imposed as the statutory proviso permits, because the assessor was equally at fault. Defendants urge that the citizens should not be made to suffer this loss of penalty because of the fault of an officer, but that is a matter to take to the legislature which added a provision to the section on escaped assessment, eliminating the penalty where the escaped assessment was due to the error of any assessor.
Our attention is directed to limitations on officers in making corrections and their liability, as prescribed by R. S. 79-1701, 79-1702 and 79-1703. The first of these sections mentions the clerical and other errors that may be corrected by the county clerk, the board of county commissioners and the state tax commission, giving to the latter such power and authority with reference to “all grievances” “not remedied as hereinbefore provided previous to February 1,” and the section concludes with the following language:
“Valuations placed on property by the assessor or by the county board of equalization shall not be considered under this section as erroneous assessments.”
R. S. 79-1702 is quoted above, and it authorizes the tax commission to consider the grievances of any taxpayer not remediable or which have not been remedied under section 1. (State, ex rel., v. Riley County Comm’rs, 142 Kan. 388, 47 P. 2d 449.) We fail to see the elimination of assessments from the grievances that may be remedied by the tax commission by these sections, as claimed by the defendants. Our statutes do not seem to exclude penalties and assessments from such grievances as may be thus remedied as the statutes of some other states seem to do.
The claim that the remedies afforded through the county equalization board and the state tax commission to the aggrieved taxpayer are limited to those of the current year will not affect the situation in this case as the assessment for the escaped assessment wag made in the current year in which the remedy was sought.
It is argued that the failure of the taxing officers to list the contract of the plaintiff for the several previous years is not a defense and furnishes no ground for the issuance of the writ. It may not, but under the proviso with which R. S. 79-1427 closes it furnishes reason and facts sufficient to eliminate the penalty imposed by the assessor for the year 1930. And under the intangible law for the other years, a different penalty is provided to be imposed under certain definite circumstances found in this case not to have been established.
Since we have not concluded that the order of the state tax commission was erroneous, we need not consider the argument of the defendants as to the insufficiency of the writ of mandamus when one of the facts on which it is grounded may be shown to be erroneous.
We conclude that the motion of the defendants to quash the alternative writ should be overruled and denied and the peremptory writ of mandamus prayed for should be allowed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
This appeal involves the allowance of expenses under , R. S. 22-1204.
On March 12, 1935, Ellen Doyle, of Marion county, Kansas, died intestate, leaving no known heirs. Josiah Good, of that county, was appointed administrator of her estate by the probate court of Marion county, and duly qualified as such. Decedent’s personal estate was appraised at $445,015.17 and her real estate at $22,925. As might be expected, many persons, either singly or in groups, have filed petitions in the probate court alleging heirship and consequent rights to the estate.
In 1935 the statutes with reference to administration of estates of intestates dying without known heirs were amended and revised by the Laws of 1935, chapter 168, effective May 15, 1935. In State, ex rel., v. Good, decided October 5, 1935, and reported in 142 Kan. 434, 49 P. 2d 633, and involving this same estate, it was held the estate should be administered under the law as it existed prior to the enactment of the Laws of 1935, chapter 138.
Under R. S. 22-1201 et seq., it was the duty of the probate judge to notify the county attorney and the attorney general of the existence of an estate such as that described above, and under R. S. 22-1206 the attorney general could supersede the county attorney and perform his duties in the prosecution or defense of the interests of the common schools under the act. R. S. 22-933 to 22-935, inclusive, made provision for disposal of real estate and proceeds arising therefrom.
The attorney general superseded the county attorney. On July 18 and 19,1935, a hearing was had in the probate court with respect to the claims of Henry Young and six others that they were heirs. At this hearing the attorney general was represented by two of his assistants. According to the stipulation of facts dictated into the record on a subsequent hearing in the district court, this hearing was continued in order to permit the administrator of the estate and the attorney general to investigate the validity of the claims, and it appears the hearing had not been concluded when the present controversy was heard in the district court.
The attorney general appointed Harold M. Hauser and A. M. Ebright as special assistants for the purpose of making the investigation. We are not now concerned with that investigation further than that Mr. Hauser filed in the probate court a claim for expenses in the sum of $204.63 and Mr. Ebright filed a similar claim for $136.85. A hearing was had on these claims, the administrator, the claimants to the estate, Henry Young et al., and Messrs. Hauser and Ebright being present or represented by counsel. In orders with reference to each, the probate court held:
“It is the judgment of the court after hearing said application, that the provisions of the statutes of the state of Kansas relating to the allowance of such expenses is unconstitutional, contrary to the constitution of the state of Kansas, and the constitution of the United States, and said application is hereby denied.”
An appeal was taken to the district court which heard evidence thereon, the parties being present or represented as in the probate court. The district court, in deciding the matter, said:
“Mr. Hauser, in these two cases relating to the Doyle estate, I question very seriously whether or not it would be constitutional to do that. I think it clearly appears from the 'language of this statute that that is a matter of discretion of the probate court, understand, as to whether or not they (expense claims) should be allowed. Of course all of that is subject to review. I don’t think there is any abuse of discretion on the part of the probate court in disallowing the claim. That will be the order. The claims are disallowed.”
The journal entries stated:
“The court, having heard said evidence, oral arguments and duly considered the briefs filed herein, on the 19th day of February, 1936, being a regular day of the February, 1936, term of said court, finds against the claimant and affirms the decision of the probate court of Marion county, Kansas, and denies said claim.”
The motions of Hauser and Ebright for a new trial were denied, and they appeal. The matter will be discussed as though there were but one claimant.
Strictly speaking, in view of the judgment of the probate court, and its affirmance and approval by the district court, the only question presented by this appeal is the constitutionality of the Laws of 1913, chapter 273, which appears as R. S. 22-1201 to 22-1206, inclusive. In the brief of the claimants to the estate, Henry Young et al., is an argument against constitutionality, which has been adopted by the administrator in his brief, and which argument, we assume, is that made in the two lower courts, and which forms the basis for their decisions. Some other matters argued will also be mentioned.
It may first be noted that prior to the enactment of the Laws of 1935, chapter 168, if a person died intestate and without heirs, his property eventually went to the state permanent school fund, provision being made for payment to the rightful heir within the time stipulated. From this, appellees argue the state of Kansas is a claimant, and is to be treated as a person and as a citizen of the state of Kansas. It must be remembered, however, that this state has always had statutes regulating the descent of property of an intestate. It is only failure of some person to prove heirship within the terms of those statutes that permits the property of one dying intestate and without heirs, to be ultimately appropriated, not to the state of Kansas generally, but to its permanent school fund. The state has the power to regulate the descent of property, it can and does specify the shares going to widow and children, it has power to alter those shares; it has provided for the.descent of property of one who dies unmarried and without issue, and the conditions following if one or both of his parents be dead. It could alter these provisions by legislative act at any time, and it could, as perhaps it should, specify the degree of consanguinity necessary that anyone take as an heir at law. It has provided a course of procedure for the collection, conservation and care of property of an intestate that it may ultimately reach the parties entitled thereto under the above statutes, and there is no doubt of its power to provide that in the event a person dies intestate, leaving no heirs, the property should go to the state permanent school fund. It stands, to a certain extent, at least, as “parens patriae” in seeing that the property of every decedent, whether by will or descent, reaches those entitled thereto, either as legatee, devisee, heir at law or creditor, and to that end it has and maintains courts for settling all disputes as to súch property, and in the administration of each estate, under provision of statute, not only are court costs paid out of the corpus of the estate, but allowances are made to executors or administrators for their services and expenses. In addition, the national government, under the estates tax law, and the state, under the inheritance tax law, each may take a part of the estate and appropriate it to its own use.
Nothing in the record before us indicates in what manner or for what reason either the probate court or the district court concluded the statutes assailed violated any provision of either the federal or state constitution. We shall therefore take up the various provisions of each constitution under which appellees assert the statute is unconstitutional. Appellees’ contention is that the state is a claimant; that the statute (R. S. 22-1204) permits an allowance out of the assets of the estate to the county attorney, who represents the state as a claimant, and that such an allowance is not made to any other claimant, and therefore discrimination results in violation of article IV, section 2, clause 1, of the United States constitution, pertaining to privileges and immunities of citizens ' in the several states and the fourteenth amendment to the United States constitu tion pertaining to denial by the state to any person within its jurisdiction the equal protection of its laws. We cannot agree. In addition to what has been said, it is our judgment that the statute making it the duty of the probate court to notify the couny attorney, whose duty it is to investigate and scrutinize the claims of claimants to the estate to prevent spoliation of the estate by fraudulent claimants and to conserve the estate means more than a very literal reading of the statutory language may indicate. What the legislature intended was that where an estate of a deceased person was being administered and the heirs, or pretended heirs, are unknown to the probate court, it should notify the county attorney in order that the estate might not be spoliated or dissipated but might be preserved for the rightful owner, either an heir or the state for its common school fund. The fact that thereafter some person or persons might claim to be heirs did not oust the county attorney. It is conceded in the case at bar that in addition to the claimants to the estate involved in this appeal, theré are many other claimants to the estate. Whether any or all of them may succeed in establishing their claims of heirship remains to be determined. In the meantime, the county attorney has a positive statutory duty to see that no fraudulent claimants to the estate are permitted to spoliate the estate to the detriment of the true heirs, if any be found so to be, failing which the property of the estate will escheat to the state for the benefit of its common schools. In connection with his duties, the probate court, in its discretion, may make an allowance out of the estate to defray his reasonable expenses. So construed, the statute does not discriminate between the claimants to the estate.
Neither can it be said that the allowance of a claim for such expenses and subsequent payment thereof is a taking of property without due process of law or a taking of private property for public use without just compensation, under the fifth amendment to the United States constitution. At the time the claims in- question were filed, due notice was given to the administrator, the person designated by our statutes and who represents all persons so far as administration of assets is concerned. Neither would payment of an allowance be the taking of private property for public use, any more than the allowance to the administrator for his services and expenses would be. The contention under the fifth' amendment is not good.
And finally, it is argued that the statute violates section 17 of the bill of rights of our state constitution in that distinction is made between citizens of Kansas and citizens of other states in reference to the descent of property. This argument presupposes the state is a claimant and a citizen of itself, and that the pretended or unknown claimants to the estate are in fact heirs and in fact nonresidents of Kansas. We have held the state, under the statutes involved, is not a claimant. We now hold that it is not a citizen of itself, and we are unable to read into the statute any attempt to discriminate between the claimants to the estates based on residence or nonresidence in Kansas, or based on their being citizens of this or any other state. If it should develop finally there are two heirs, and two only, one a resident of Kansas and one a resident of another state, each, depending on his relationship to the decedent, will receive equal treatment. The statute does not violate the above section of our bill of rights.
We do not find the statutes assailed unconstitutional for any of the reasons assigned.
It is further argued that even though the county attorney may be entitled to an allowance for expenses, the provision for such allowance is personal to him and does not avail the attorney general in the event he supersedes the county attorney, and in connection therewith it is argued the county attorney is not supplied with any expense account or contingent fund, whereas the attorney general is, and that the estate, if finally so determined, goes to the state and not to the county, and there is good reason why the county attorney should be paid expenses out of the assets of the estate which reason does not apply to the attorney general. However persuasive the argument may be, the statute authorizing the attorney general to supersede the county attorney makes no such provision, although the new act (Laws 1935, ch. 168) does.
The fact the new act provides for payment of expenses to the county attorney, or the attorney general, from different sources, leads to a conclusion that the old act contemplated they should be paid from the same source, there being no statement therein to the contrary. In our opinion the statute authorizing the attorney general to take charge (R. S. 22-1206) is sufficiently broad that it must be held, where the attorney general does supersede the county attorney he is entitled to the allowance for expenses.
It is further argued the attorney general may not appoint, as special assistants to aid in making the inquiries and examinations incumbent under the statute, attorneys other than those -specifically provided for in the statutes, and that neither Hauser nor Ebright are in such class. The present controversy did not arise on that question, and it will not be considered further.
It is also argued that the allowance of reasonable expenses is discretionary with the probate court. That is the language of the statute, and, as in all similar cases, it means a proper, as distinguished from an arbitrary, exercise of discretion. The district court states it did not think there was any abuse of discretion on the part of the probate court in disallowing the claims. The probate court, however, did exercise its discretion when it continued the hearing of July 18 and 19, 1935, to permit the administrator and the attorney general to investigate the validity of the claims presented. The only question, insofar as the attorney general is concerned, is what constitutes reasonable expenses. Insofar as the administrator is concerned, it is no concern of his who the true heirs may be, for under the facts of this case, and under the statutory provisions, the duty of preventing spoliation of the estate by fraudulent claimants thereto is on the county attorney or attorney general. The duty of the administrator is to collect the assets of the estate and administer them under the statutes and orders of the probate court, and ultimately distribute them to the persons found entitled. His allowance for services and attorney’s fees is on account of that duty and cannot be predicated on his undertaking a duty cast on another official.
From the record before us it appears the hearing in the probate court of July 18 and 19, 1935, was continued for the purpose of permitting the attorney general to investigate validity of claims to the estate, and it is no longer open to question that what was done was done with knowledge and consent of the probate court about as far as it could be had and given in advance. The only question remaining is as to reasonableness of the amounts of the claims.
The judgment of the district court is reversed, and the cause remanded with instructions to set aside its order affirming the judgment of the probate court and to remand the cause to the probate court to hear the claims as to the reasonableness of the amounts claimed.
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The opinion of the court was delivered by
Dawson, J.;
J. P. Evans was convicted of embezzlement in the district court of Montgomery county.
He brings his case here for review upon an abstract based on a partial transcript of the record. The state interposes no objection and has filed no brief.
From this incomplete record and the abstract and brief submitted by defendant we glean the material facts to be as follows:
William A. Mitchell, who had been a soldier, died on May:18, 1921. He was survived by his widow, Goldie Mitchell, and by his mother, Elizabeth Mitchell. During the years- in which the mother survived her son she drew payments of money from the government on account of his war-risk insurance.
The mother died in May, 1930, at which time there was a balance of $7,820 still due on account of the deceased soldier’s 'war-risk in surance. To collect that insurance in conformity with pertinent government requirements his widow was appointed administratrix of his estate by the Montgomery county probate court. She had remarried in the meantime; and she qualified as administratrix bearing the name of Goldie Mitchell Garr.
So far as appears, about the only duty to be performed by the administratrix was to satisfy the government regulations so that this considerable sum of insurance money would be paid to her. Apparently she was the sole heir of the deceased Mitchell.
The administratrix employed the defendant to collect the money due from the government. This he did without delay. Thereafter from time to time defendant paid to the administratrix certain sums of money, $200 in May, 1931; $100 in December, 1931, and at other times various sums which may have amounted to another $100. He paid $832 in her behalf as the purchase price of an automobile. He also paid $700 to one Ada Ingram to settle some baseless claim she had lodged against the William A. Mitchell estate. Defendant also, on cross-examination of the administratrix, elicited some evidence that he had incurred expenses in the performance of attorney’s services for the administratrix which may have amounted to $200 or $300, and that the cost of her official bond was $76. For his services as attorney he was allowed a fee of $782, being 10 percent of the sum he collected from the government.
Defendant resided at Ulysses. The administratrix resided first one place and then another, at Garden City, at Manter, and at Gravett, Ark. She was a woman of very little education, having only attained to the sixth grade of the common school. At defendant’s request she signed whatever papers he presented to her — power of attorney, endorsements of certificates of deposit, and other instruments. A considerable part of the money collected from the government was deposited for a time in certain Topeka banks. The record intimates this was done at the insistence of the bonding company which was surety on the bond of the administratrix.
In the summer of 1932, the administratrix called on defendant at Ulysses for the purpose of getting him “to tell and itemize what [he] had done with that money” — meaning the money he had collected from the government and which belonged to the estate for which she was administratrix. She stayed at defendant’s residence for some time. Defendant told her he had deposited the money in various banks where she could not find it — apparently on some claim or pretense of some undetermined amount still due him for attorney’s services.
At length the administratrix complained to the - probate court. That tribunal made efforts to induce defendant to appear and account for the moneys he held as attorney for the administratrix. Not until a citation was issued did he appear. By that time the administratrix had employed a reputable firm of attorneys who, on her behalf, made formal demand upon him for $2,300, which sum, according to some calculation, defendant was withholding of the moneys of the administratrix. He did not comply, and admitted he could not comply with the demand, giving the poor excuse that he had loaned the money to his sister in California. He told the same story to the probate judge. The record reads:
“. . . If the court please, and gentlemen, I beg of you to give me the same sporting chance that you would if you were going to shoot a jack rabbit. ... I admit I have the money, but I have let my sister have if, and I can’t get it at this time, and if you insist on my producing the money today I will have to go to jail, because I can’t do it, and I want some other time.”
This formal demand upon defendant and his statement of his inability to pay over the money occurred in the office of the probate court of Montgomery county on November 22,1932.
The warrant for defendant’s arrest on the charge of embezzlement was issued and served on August 30, 1934.
Jury trial; verdict of guilty; sentence under the statute; appeal.
Defendant urges various objections to the judgment. He contends that his crime was not committed in Montgomery county; that the money never was in that county; and that the state’s evidence showed that the crime was committed in Grant county at the time he refused to account for the money on demand of the administratrix in the summer of 1932, which would be more than two years prior to the inception of this prosecution and therefore barred by the statute of limitations.
It is the law that the crime of embezzlement is committed when one who is entrusted with the money or property of another fails to have it forthcoming on the lawful demand of the person to whom it belongs. This is a rule of necessity. The state could never show at what particular instant of time or in what particular locality any wrongdoer conceived and put into execution his wicked design of appropriating to his own use the money or property entrusted to his keeping.
In State v. Sanders, 127 Kan. 481, 484, 274 Pac. 223, it was said:
“. . . It lias repeatedly been held that any use of the funds of an estate or .other trust fund by ’the custodian thereof in willful, violation of his duties pertaining thereto, which prevents the fund from being immediately forthcoming on lawful demand therefor, constitutes embezzlement on the part of such custodian, and it is immaterial whether the custodian’s relationship to the fund be that of executor, administrator, trustee, or other functionary. (State v. Pratt, 114 Kan. 660, 220 Pac. 505; State v. Robinson, 125 Kan. 365, 263 Pac. 1081; Docking v. National Surety Co., 122 Kan. 235, 237, 238, 252 Pac. 201, and citations.)”
The demand for the money was made in Montgomery county; defendant’s failure to have it forthcoming on that demand occurred in that county, and the venue was properly laid in that county.
In the cross-examination of the prosecuting witness, defendant sought to formulate his questions so as to elicit answers which would show that his offense was committed in Grant county more than two years before his arrest and prosecution in Montgomery county. The-transcript reads:
“Q. What time in July did you come down there? [to Grant county] A. I don’t remember just what date.
“Q. What did you come for, if you remember? A. We went down there to try to get you -to tell and itemize what you had done with that money.
“Q. That was along after June, about the first week in July, wasn’t it? A. It was up in July.
“Q. Mrs. Garr, did I understand jmu correctly that you came up there specially to make me settle up and not to harvest? A. Yes, sir.
“Q. Did you then make a demand on me for the money, as you testified to the jury a while ago; or did you not?
[Counsel foe the State] : “Object to that as assuming a proposition not in evidence. •
“The Court: Objection sustained. You are.assuming that what she said was a demand; she never said at any time that she went up there and demanded the money; you are assuming that some of the things she said was a demand.
“Q. Tell the court and jury what I said about paying back this $2,300, or any part of it at that time,’ or. that request of, yours, or demand or whatever you want to call it that I pay it back, what did I say, if you remember? A. I don’t remember just the exact words, but you told me you had it scattered so they could not find it,' I tried to get you to tell me where it was at, and you would not tell me.
“Q. Did I also tell you I would pay it back when a court of competent jurisdiction told me to and not before? A. You told me whenever the court ordered you to pay it over you would pay it.”
This testimony did not show an unqualified demand for the money nor an unqualified refusal to pay it over, so as to establish the commission of the offense of embezzlement in Grant county, nor to stai’t the running of the statute of limitations.
Another contention of defendant is that the money never was in Montgomery county. But an administratrix is an officer of court,' and an attorney is an officer of court. The money was an asset of the estate of Mitchell, deceased. That estate was being administered in the probate court of Montgomery county. Constructively the money was in custodia legis of the Montgomery county probate court. Only by authority of that court did the administratrix and her counsel, this defendant, get their hands on it. Moreover, the place where defendant got his hands on the money was not the vital matter in this lawsuit, although it was charged in the information that it occurred in Montgomery county. The gist of the offense was his failure to produce the money on lawful demand, and that criminal delinquency occurred in Montgomery county.
Defendant’s next argument is based on the assumption that the sum embezzled was not established, because the $2,300 included his “reasonable and lawful fees, charged and undetermined commissions.” This point is devoid of merit. There was no evidence— at least none in the partial record submitted for our review — that there were any lawful fees and charges deductible from the $2,300. An unfaithful attorney is not entitled to any compensation whatever, and this record, incomplete as it is, clearly reveals defendant’s criminal breach of professional fidelity to his client’s interest.
Defendant next propounds the question: “Can this defect be cured by a jury verdict that the defendant did embezzle over $20?” This question requires an affirmative answer. The state’s contention was that the sum withheld by Evans was $4,780, but whether that sum was established by the evidence is not clear. What is clear is that at least defendant was a defaulter to the extent of $2,300. Indeed, he repeatedly admitted it, as in his plea to the probate court for time and leniency, “for a jack rabbit’s chance,” as quoted above. Furthermore, so long as the sum embezzled was in excess of $20, and that fact neither was nor could be denied, it made no difference in the grade of the felony committed. (R. S. 21-545; 21-533.)
Defendant projects some other questions- — -whether he had a contract of employment with the prosecutrix, whether it was a contract with which the probate court was concerned, whether he was an attorney for the estate of Mitchell, whether he could look to the estate for his fee, whether the amount of his fee was determinable by the probate court. In our opinion these questions are merely camouflage to obscure the real issue. Not one of them was of the slightest consequence in this prosecution nor in this appeal. Defendant was in possession of a large sum of money belonging to the administratrix of the Mitchell estate. That sum was not forthcoming on lawful demand made in her behalf. Defendant’s criminal delinquency thereupon became complete and his criminal responsibility therefor became unescapable.
No semblance of error appears, and the judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:'
The appeal in this case is by the plaintiff from the ruling of the trial court in sustaining a demurrer to his petition, consisting of three counts. The first count is upon an oral contract and to recover damages resulting from the breach thereof by depriving the plaintiff of the use of certain well-drilling tools and the depreciation on the value of them and the loss of tools stolen and destroyed. The second count is based upon a tort, describing the same situation as plead in the first count in language necessary and appropriate to make the same general statement of facts a tort. The third count is for malicious prosecution, involving and concerning the same subject matter. Each cause of action concludes with an allegation of the same amount of damages. A careful distinction is made in the three separate counts to clearly present the same general matter, with the evident thought of having three different avenues to one recovery by determination of jury, or possibly by timely election.
The petition sets out the substance of the oral contract and the pleadings and decisions in three former suits between the same parties. Baker, the plaintiff herein, was an experienced oil-well driller, but without equipment or funds. The four defendants were associated together as partners composing the Wizard Oil Company, controlling a large acreage of oil and gas leases on which they desired to drill several wells. The oral contract was briefly to the effect that the oil company would purchase a complete string of tools to be used to drill wells on its leases; that Baker, after drilling the first well, was to get $3 per foot, to be applied on account of the purchase price of the tools, and when the purchase price was thus fully paid the tools were to become his. This arrangement was made November 25,1919. Shortly thereafter a similar oral contract was made for a second string of tools, the total original cost of both strings being $25,500. Under this arrangement work progressed until seven wells were finished; and a disagreement arose as to the settlement. The oil company ordered Baker off the leased property and denied him the use of the tools. On May 29, 1921, the oil company procured an order enjoining him from using the tools or interfering with the possession of them by the oil company. The injunction bond was in the sum of $2,500, which was later increased to $5,000. On June 7, 1921, the plaintiff commencéd a mechanic's lien action to recover what he claimed to be due him from the oil company in addition to the purchase price of both strings of tools, viz., the sum of $18,000. In the injunction suit Baker answered denying generally the allegations of the petition, and by way of cross peti tion alleged that he was the owner of both strings' of tools, and was being greatly damaged by being deprived of the use and possession of them. In the mechanic’s lien suit the oil company denied generally the allegations of the petition, and by way of cross petition gave the details of the oral agreement, and alleged that Baker was to be charged with certain amounts expended on the wells and was to be credited with the difference between such expense and his earnings on the purchase price of the tools; that the expenses on the wells exceeded his earnings by $26,000.
On March 11,1926, the oil company filed a motion in the injunction suit asking that the petition and answer and cross petition in it be dismissed because the same matters and issues were involved in it as were in the mechanic’s lien case. The court never acted on this motion, but in the absence of both parties on November 20, 1926, dismissed the injunction action without prejudice for want of prosecution. On June 13,1927, the court approved the report of. the referee in the mechanic’s lien case, finding Baker to be the owner of both strings of tools, and rendering judgment in his favor for the possession of them and giving him a judgment against the oil company on his account for $2,800.
In August, 1927, Baker commenced an action on the injunction bond and recovered a judgment against the oil company and the sureties on the bond in the sum of $5,000 on November 25,1927. No appeal was taken from this judgment nor the one in the mechanic’s lien case, but both were promptly paid. This action was commenced December 19, 1927.
Our attention is called not only to the similarity but to the use of almost identical language in the action on the injunction bond and the first and second counts of the petition in this case with reference to the items of recovery, viz., damages for depreciation in value of the tools, loss of tools having been stolen and removed, and for the deprivation of the use of the tools. Plaintiff bases his loss and right to damages in the first count where a breach of contract is alleged, in the second where a tort or conversion is alleged, and in the third where malicious prosecution is alleged, not only on the procuring of the injunction by the oil company, depriving the plaintiff .of the possession and use of the tools, but also upon the answer and cross petition of the oil company in the mechanic’s lien suit. It is not usual that one is censurable or made subject to damages by reason of making a defense in an action brought against him, even if unsuccessful in such defense, but whether the oil company is thus made liable in these transactions is not so important when we note that the injunction suit was instituted prior to the mechanic’s lien suit, and from the injunction suit the oil company cannot escape any of the liability incident thereto, whether recoverable on the bond, by action for breach of contract, tort, or malicious prosecution. We need not here decide whether the mechanic’s lien action involved the ownership of the tools or the liability of the oil company for the deprivation of the tools by reason of its motion to dismiss the injunction action because it presented the same issues as contained in the mechanic’s lien action. The fact remains that the injunction order deprived Baker of the use of the tools, and the injunction was in force when the mechanic’s lien action was commenced, so that the plaintiff’s causes of action are complete in this respect as based on the deprivation by reason of the injunction; and the averments as to answer and cross petition in the mechanic’s lien action could do no more at most than to intensify and augment the claims of the breach, tort and malicious prosecution.
The first question, therefore, for our consideration here is whether or not the first and second causes of action are sufficient to entitle plaintiff to recover an amount in addition to the amount already recovered by him on the injunction bond. We think not, on the theory that the injunction bond is designed to cover all damages the party enjoined can possibly sustain. Our own statute providing for an injunction bond (R. S. 60-1110) states that it is required to be given “to secure to the party injured the damages he may sustain if it be finally decided that 'the injunction ought not to have been granted.” In the case of Jacobs v. Greening, 109 Kan. 674, 202 Pac. 72, it was held:
“No action for the wrongful procurement of a restraining order (not brought upon a bond) will lie without a showing of malice.” (Syl. If 2.)
This seems to be the general rule, to which there appear to be exceptions made in some jurisdictions.
“It is a general rule that damages caused by an injunction, erroneously granted in the exercise of jurisdiction where the proceedings have been regular, cannot be recovered -from the party who obtained the writ in the absence of a bond or undertaking, unless it be shown that the transaction was malicious and without probable cause, in which case an action for malicious prosecution will lie though it is held that to justify a recovery want of probable cause must be clearly shown.” (14 R. C. L. 479.)
“A common-law action may be brought, independently of an injunction bond, to recover damages resulting from the suing out of an injunction maliciously and without probable cause.” (32 C. J. 464.)
“While under some statutes the rule may be otherwise, the general rule is that no recovery can be had in excess of the penalty of the bond, even though the actual damages exceed that amount, and the court has no power to make an allowance beyond that amount for disbursements.” (32 C. J. 466. See, also, note in 45 A. L. R. 1517; note in L. R. A. 1916E, 1284.)
It was stated above that the defense made by the oil company in the mechanic’s lien case could not afford a separate basis on which either the first or second cause of action could rest, but the skillful and careful pleading of the causes of action in this case is proof in itself of the evident intention of the pleaders to rely upon the allegations concerning the defense made by the oil company in the mechanic’s lien case, and therefore deserves more consideration than above given. Such resistance of the rights of Baker to recover the amount due him in addition to the purchase price of the tools, even to the extent of the company being terribly mistaken as to what was earned and due him, cannot reasonably be said to have constituted a breach of the contract or amount to the commission of a tort. This feature of the case should support itself. ' If it needs the support of the injunction suit, then it must follow the above holding as to the injunction allegations and be limited to the amount of the injunction bond. If not, it must be able to stand alone on its own footing. In other words, eliminating from these two causes of action all references to the injunction suit, then would the remaining allegations constitute causes of action on breach of contract and in tort? If they would, then when did such causes of action accrue? The answer is plain: The day the oil company filed its answer and cross petition, October 12,1921. The injunction did not prevent or hinder the plaintiff from bringing his action at any time; besides, it was not necessary to wait for the determination of the action in which this objectionable defense was filed. The contract was breached and the tort committed when the unwarranted defense was interposed. Nothing has occurred since except the decision in the case, which only serves to further convince the plaintiff that the defense was in violation of the contract and tortious.
This case was commenced more than six years after such answer and cross petition was filed and would, as far as this feature is concerned, be barred by the statute of limitations. We have treated this part of the case as if it would in itself constitute good causes of action on contract and in tort, but there is a serious question about it in that respect.
“Damages occasioned by the suit independent of the injunction are not recoverable. The recovery is confined to damages arising from the operation of the injunction itself.” (32 C. J. 465.)
We conclude that the first and second causes of action cannot be maintained for damages for the wrongful procurement of an injunction order beyond and in addition to the amount provided by the injunction bond, without a showing of malice and want of probable cause, which these two causes do not contain; and if such action can be based upon the defense interposed by the oil company in an independent case, then it is barred by the statute of limitations.
As to the third cause of action for malicious prosecution, there is no question about it being barred by the one-year statute of limitations. The injunction action was dismissed November 20, 1926, and this action was commenced December 19, 1927 — more than one year thereafter. It was less than one year from the decision in the mechanic’s lien case, but no good reason has been assigned why the statute would not begin to run as soon as the plaintiff was free from the restraining order of the court to collect his additional damages because of the malicious conduct of the oil company. There was nothing in this case that depended upon the result of a pending case or which could be attacked with the defense of another suit pending, as there was in the Algeo case in 125 Kan. 245, 263 Pac. 1077, or other estate or partnership cases cited. The rule applies here that was followed in the cases of Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642, and Home v. Bergin, 127 Kan. 593, 274 Pac. 284.
Appellant urges that there was a period of 200 days intervening between the dissolution of the injunction and his getting possession of the tools at the close of the mechanic’s lien case, but, as stated above, he did not need to wait on the decision in that case. It is true the bond did not cover damages incurred after the dismissal of the injunction suit, but plaintiff was at liberty to proceed at once with an action of this kind or a replevin action to recover his property. Besides, there was no legal interference to his taking possession of the goods during that short period. The allegations do not show any demand or attempt to get possession of them during that period. We think this short period is not specifically covered in the pleadings so as to come within any one of the causes of action.
As to the lost and stolen tools not returned, we conclude that the purpose of the injunction bond is to cover such loss as well as depreciation in value and deprivation of the use, except, as stated above, upon a showing of malice.
We find no error in the sustaining of the demurrer to each of the three causes of action.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiffs appeal from the decision of the district court refusing to enjoin the issuance of general obligation bonds of the defendant city, authorized by a vote of the electorate, and to be issued to pay a portion of the cost of improving the public levee in that city, and refusing to enjoin the performance of certain contracts between the defendant city and the individual defendants for the erection of improvements on the levee.
As to the principal facts there is no dispute. The governing body of the city will be referred to as the city. On March 5, 1935, the city passed an ordinance calling a special election on April 2, 1935, to vote bonds to raise money for the purpose of improving the public levee, the enacting clause and the body of the ordinance specifying the purpose for which the bond moneys were to be used in substantially the same language as is contained in the proposition submitted as hereafter quoted. The ordinance provided for giving of notice of election signed by the mayor and city clerk and that the election should be held at the several voting places designated and provided by law. The ordinance had a preamble of seventeen whereas clauses, which will be hereafter referred to. Thereafter notice was given in accordance with the ordinance. The date of the special election was the same date as the general city election and the election boards at the general city election functioned as the election boards at the special election. The ballot used contained the following proposition:
“Shall the following be adopted?
“A proposition to vote bonds in the amount of three hundred thousand ($300,000) dollars, to raise money for the purpose of improving the public levee of the city by constructing flood protection works, raising the surface thereof, and the construction thereon of docks, wharves, river and rail terminals and a grain elevator terminal dock and wharf to make the public levee of the city convenient, useable and accessible for use in connection with water transportation on the Missouri and Kansas rivers adjoining said levee, the proceeds of said bonds to be used only when used in cooperation and conjunction with other funds advanced for such purposes by the 'United States of America.
“To vote in favor of the bonds make a cross X mark in the square after the word ‘yes.’ Yes □
“To vote against the bonds make a cross X mark in the square after the word ‘no.’ No □”
The result was a vote of 21,287 for the bonds and 18,018 against the bonds, or a total of 39,305 votes. At the general city election, there were 39,904 votes cast for candidates for mayor.
On May 14, 1935, the city adopted a resolution authorizing the mayor and the city attorney to negotiate with the public works administration for a loan and grant from the United States. It may here be observed that a previous negotiation resulted in an agreement which this court held to be unauthorized. (See State, ex rel., v. Kansas City, 140 Kan. 471, 37 P. 2d 18.) An agreement having been reached with PWA, on August 8, 1935, the city passed an ordinance declaring it necessary in the public interest to immediately develop the public levee for levee purposes, and authorizing the mayor on behalf of the city to enter into a loan and grant agreement with the United States. The agreement provides for a loan and grant not exceeding $1,456,000; that the government will buy bonds at principal amount of $1,054,000, and will make a grant of $482,000. We need not now notice the further details of this contract. On January 30, 1936, the city determined the Morrison-Glasscock-Connor Company was the lowest bidder for construction of a pile foundation for a grain elevator terminal dock on the levee, and that it be awarded the contract for construction thereof upon giving bond and upon approval by the PWA. In the latter part of January and the early part of February, 1936, ordinances were passed providing for leases to various persons and corporations for use of parts of the levee or the improvements thereon. On February 11, 1936, the city passed an ordinance directing the issuance of the $300,000 general obligation bonds authorized at the election of April 2, 1935. On February 14, 1936, this action was filed in the district court, the petition alleging twenty-five paragraphs of reasons why plaintiffs claimed the election and subsequent proceedings were illegal and void. The city’s amended answer admitted many allegations of fact pleaded in the petition, alleged the petition did not state facts sufficient to constitute a cause of action, and denied facts not admitted. After a trial, the court denied the relief prayed for by plaintiffs, rendered judgment in favor of the defendants, and the plaintiffs appeal. We have been favored with over 350 pages of brief by appellants, appellees and amici curiae, and while there is much interesting discussion therein, not many points are discussed which need any considerable treatment herein.
The first and principal point argued by appellants is that the election proclamation and the proposition as submitted on the ballot are fatally defective in that the electorate was not advised that the total cost of the improvement was to be $1,756,000, the only sum mentioned being the amount of the bonds to be issued, i. e., $300,000, and that therefore the election and subsequent proceedings are invalid, the appellants in support relying upon our recent decisions in City of Iola v. Hobart, 141 Kan. 709, 42 P. 2d 977; Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P. 2d 877, and Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421. The eases do not support the contention. The Iola case was in mandamus to compel execution of the contract for construction of a swimming pool. There the election proclamation called for issuance of bonds in the sum of $30,000 to provide funds, while the proof showed that cost of site plus the cost of construction, all contemplated in the proposition submitted, would exceed $46,000. The Eureka case was for an injunction which was granted by the trial court. We reversed, holding the notice of election to vote bonds in the sum of $65,000 for construction of an electric-lighting system, power-plant building and appurtenances thereto, did not disclose to the electorate that although part of the same improvement, the city had by separate contract provided for an additional outlay of over $99,000 for equipment, to be evidenced by so-called “revenue certificates.”. The Board of Education case was in mandamus and we refused the relief prayed on the ground the resolution for erection of a school building contemplated the use of a large grant from the United States, called for an election for bonds of about half the amount to be expended, but did not advise the electorate thereof either in the notice calling the election or in the propostion submitted on the ballot.
In the case at bar, we have no such situation. It is probably true that when the city passed the ordinance calling the election and when the election was held, it hoped to be able to get about as favorable a loan and grant agreement with the PWA as it had in the contract which we held unauthorized, but that was hope only and not fact. The notice of the election and the ballot both included these words:
“The proceeds of said bonds to be used only when used in cooperation and conjunction with other funds advanced for such purposes by the United States of America.”
Of course, it would have been possible to have stated more fully the plan of the city, to have said that if a loan and grant agreement for a specified amount were not made the bonds should not be issued, or to have included other clauses of condition, but we think it clear from the proposition as submitted that the voters were informed the proceeds of the bonds, if issued, would be used only when there was financial cooperation between the city and the United States.
We note criticism of the seventeen whereas clauses of the ordi nance calling the bond election. We need not examine these clauses to determine their literal correctness, or lack of it, nor whether they served a useful purpose in the ordinance or were, as appellants urge, propaganda. The criticism is coupled with argument as to whether in aid of the election notice the ordinance may be given the force of public law. (See Board of Education v. Powers, supra, and cases cited.) We express no opinion as to whether such a principle may be applied, it not being necessary in this case to resort thereto. The election proclamation and the proposition stated on the ballot are sufficient in and of themselves so that no resort need be made to the ordinance calling the special election.
It is next urged that more than one proposition was submitted, and some semblance of plausibility is given this argument because the election proclamation contained a statement the different propositions should be separately numbered and printed on the ballot. Just why such inept language was used we do not know, but a mere reading of the election proclamation and of the ballot shows it was intended to improve the public levee by the doing of certain things, all of which were related to one another, and any of which would be more or less useless without the others. The question whether a notice of special election submitted more than one propostion was discussed in Pittsburg Board of Education v. Davis, 120 Kan. 768, 245 Pac. 112, to which reference is made. Without further discussion, we hold that in the election proclamation and on the ballot used only one proposition was submitted and there was no need for division.
In 1929 the legislature enacted the Laws of 1929, chapter 115 (R. S. 1933 Supp. 12-672, 12-673), authorizing any city to construct, maintain, operate and lease out docks, wharves and river terminals, and to issue general obligation bonds for that purpose. At the special session in 1933, chapter 33 (R. S. 1933 Supp. 12-674), was enacted authorizing cities to cooperate with the federal government in making public improvements. At the same special session, chapter 43 (R. S. 1933 Supp. 13-1238 to 13-1245, inclusive) was enacted. It authorized cities having a population of over 115,000, in manner and form provided, to secure funds for improving and constructing public levees, docks, wharves, river terminals, grain elevator terminal docks, etc. The last section of the act provided the powers granted are supplemental to certain acts, including R. S. 1931 [1933] Supp. 12-673, and not a modification thereof. Appellants contend that the proposed improvements must be made under one act or the other, that they must be fully paid for either by general obligation bonds, or by revenue bonds, and that an improvement cannot be made, the cost of which is to be met from both sources. We are of the opinion that such a construction of the statute would ignore the express statement in R. S. 1933 Supp. 13-1245 that the powers granted in the revenue bond act were supplemental to R. S. 1931 [1933] Supp. 12-673 pertaining to general obligation bonds, and that the legislature meant both sources of revenue could be used to carry out one improvement.
As previously indicated, many reasons were alleged in the plaintiffs’ petition why the special bond election is not valid. We have examined those not herein discussed and find they are without merit, or are not sufficient to warrant injunctive relief.
Appellants also stress claimed illegality of contracts made by the city for the improvement of the levee, or the use of it as improved. In their petition, it is alleged the doing of these acts is not authorized by law and may result in creation of a public burden and the levy of illegal taxes. There is no allegation that plaintiffs will be harmed in any manner different from the public at large. While testimony was taken showing the various acts and contracts complained of, there was no showing in the evidence that plaintiffs would have their tax burdens increased. Their apprehension that such a result would follow depends on events which may or may not occur. In any event, by reason of statutory provision (R. S. 1933 Supp. 13-1238 to 13-1245, inclusive), their tax liability on account of improving the public levee is limited to payment of principal and interest of the $300,000 general obligation bonds, and under this decision those bonds were lawfully authorized. There was’ no showing appellants would sustain any special damages and different in kind from the public generally. Appellees urge that in such case appellants may not maintain an action for injunctive relief. We agree. The question raised has been before this court many times, and it has been repeatedly held the only proper plaintiff in an action for injunctive relief against abuse of power by municipal officers is the state, or one of its officers charged with responsibility of scrutinizing the acts of public officers and boards. (See Warner v. City of Independence, 121 Kan. 551, 247 Pac. 871; Grecian v. Hill City, 123 Kan. 542, 256 Pac. 163; Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 267 Pac. 996; Young v. Washington County Comm’rs, 127 Kan. 227, 273 Pac. 398; State, ex rel., v. City of Newton, 138 Kan. 78, 23 P. 2d. 463; City of Holton v. Jackson County Comm’rs, 138 Kan. 163, 23 P. 2d 605; Rodenbeck v. Darby, 139 Kan. 759, 33 P. 2d 306; Kansas Utilities Co. v. City of Burlington, 141 Kan. 926, 44 P. 2d 223.) And many others of like effect may be found in our decisions.
It has not been made to appear the trial court erred in refusing appellants’ prayer for injunctive relief, and its judgment is affirmed.
Owing to the public interest involved, it is ordered that if no petition for rehearing be filed within ten days the mandate of this court shall immediately thereafter be issued to the trial court.
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The opinion of the court was delivered by
Hopicins, J.:
The action was one by an administrator to compel a widow to abide by written consent to a will, the question being whether her rights under the law had been explained to her at the time of execution of the consent. The widow prevailed, and the administrator' appeals.
The facts are substantially told in the court’s findings, which follow:
“1. Elias K. Sechler and the defendant herein married in 1895. Each had been married before and each had children by- the prior marriage. The greater part of the property owned by the husband at the time of his death had been accumulated since his marriage to the defendant.
“2. On February 14, 1925, Mr. Sechler had his will drawn, and desiring to secure the consent of his wife to the provisions thereof he informed her of the making of the will and asked her to go with him to his lawyer’s office and sign the will. The provisions of the will were not discussed. The defendant accompanied her husband to the lawyer’s office where the will was read to her. She was asked if she was satisfied with the will and she answered that she was. The lawyer then wrote on the will below the signature of the testator the following words: ‘I hereby approve and affirm this will.’ The defendant then signed her name in the presence of two witnesses.
“3. At the time she signed her name, defendant had not been informed, nor did she know, what her rights were under the law with respect to her husband’s property disposed of by the will. She did not know that in the absence of consent given, she might after the death of her husband elect to take under the law. Under the circumstances shown, the consent of the wife was not fairly and understandingly given.”
The court concluded that the relief prayed for should be denied.
The plaintiff contends that written consent by the wife to the husband’s will cannot be successfully attacked. Numerous cases are cited in support of the contention which in our opinion are not applicable to the facts before us. The pertinent statute reads:
“No man while married shall bequeath away from his wife more than one-half of his property, nor shall any woman while married, bequeath away from her husband more than one-half of her property. But either may consent in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property away from the one so consenting.” (R. S. 22-238.)
The defendant testified that she was 65 years-old; that she and the testator were married in 1895; that her husband at that time had a claim in Oklahoma — nothing else. That she went there with him to live; that when they moved there, there was a sod house and a sod stable; that they lived there from 1895 to 1912. That she had four children at the time of her marriage to the testator and he had four; that she took care of his children as her own for a number of years. That they lived there and improved the farm, erected buildings, raised crops and chickens and the money was used to improve the farm and was all put in a common bank account. That they eventually sold their farm to one of the testator’s sons for a consideration of $15,000 or $16,000. That a home in Wichita was paid for after the son bought the Oklahoma farm; that it was worth approximately $2,500 and was encumbered for $500. That her husband was 78 years old when-he died. That about a year previously she went with him to the lawyer’s office; that the will was read to her there, but that she .did not understand it. The will in question provided payment of $1,000 to the defendant and one-fifth of the estate. It will be noted that the court found that the greater part of the property owned by the husband at the time of his death had been accumulated since his marriage to the defendant. Also, that at the time she signed her name she had not been informed, nor did she know, what her rights were under the law with respect to her husband’s property disposed of by the will. She did not know that in the absence of consent given she might, after the death of her. husband, elect to take under the law. The statute provides that either husband or wife may consent in writing “that the other may bequeath more than one-half of his or her property.” Not that the mere consenting to a will is sufficient, but that she must consent that he bequeath more than one-half of his property from her. The trial court found “that the consent of the wife was not fairly and understandingly given.”
In Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608, it was said in the opinion:
“Nevertheless it cannot be thought the legislature intended that a wife, under the stress of expected widowhood and actuated by a desire to please her husband . . . should be held bound by such consent when it fairly appears that she did not understand its effect upon her property rights.” (p. 356.)
In State, ex rel. Minn. L. & T. Co., v. Probate Court, 129 Minn. 442, 446, 152 N. W. 845, it was said:
“We take the correct holding to be that when a trust and fiduciary relation exists, as there does between husband and wife, the wife having a legal right in case of the death of her husband, to some share in his property and reposing trust and confidence in him, there is cast upon the husband, in taking a consent to the making of his will,' or to a codicil to it, the affirmative duty of making to his wife a fair disclosure of his property and her rights, so that her consent will be an actual one, based upon an intelligent knowledge of his property and the effect of her consent, as distinguished from one merely formal. As great a duty of disclosure as that stated is required in ante-nuptial settlements. If this is done, and the consent is not fairly and reasonably obtained by putting the wife in possession of the facts, which she ought to know in order to determine her course intelligently, she may, after his death, if she proceeds without laches, renounce her consent and elect to take under the statute. If the provision of the statute relative to descents, giving effect to a consent by one spouse to the will of another, without a reserved right of election after the death of the other, does not work justly under such a rule, it should not work at all. We have in mind no other trusts or fiduciary relation at all resembling that here involved, where the law requires one party to submit to a surrender at the instance of the other, of valuable rights, though the surrender is made in compliance with all legal forms, if made in ignorance of the existence of such rights or without fair .opportunity for investigation, the other party having full knowledge. The rule stated we adopt.” (See, also, Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065.)
The plaintiff contends that the wife by her acts after the husband’s death and the reading of the will, confirmed her consent. We hardly think so. Defendant testified:
“I did not know anything about my rights under the will. The first time that I ever had independent legal advice as to my rights under the will was at the probate court the second or third week after my husband’s death.”
It can hardly be said that she confirmed the consent when she had no knowledge of her rights. In 12 C. J. 425 it is said:
“A confirmation necessarily supposes a knowledge of the thing ratified, the term implying a deliberate act intended to renew and ratify a transaction known to be voidable.”
If the defendant had no knowledge of her rights at the time of signing the consent to the will she cannot be held to have confirmed or approved it, and her consent cannot have amounted to a legal agreement to relinquish her statutory share. (Jack v. Hooker, 71 Kan. 652, 81 Pac. 203.) The plaintiff contends that it is not necessary for the widow to make an election where consent is given. [Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444.) This is the general rule. There are, however, conditions under which the general rule does not apply; where, as in this case, the consent is not fairly and understanding^ given, the rule has no application. In view of the fact that the defendant was requested by her husband to sign the will without knowledge of her legal rights and without explanation of the effect upon her rights to her husband’s property if she consented, we think the court was fully justified in its finding that her consent was not'understandingly given.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
After the decision in this case (Frowe v. McPheeters, 126 Kan. 596, 270 Pac. 580), Charles Hilleary filed'a motion for rehearing, or to set aside the judgment as to him, claiming that he had never been served with notice of a cross appeal by the plaintiff and was not a party to the litigation in this court. Although the plaintiff had presented the case on the theory that Hilleary was a litigant here, he has now filed an answer to Hilleary’s motion, admitting that no notice of a cross appeal was served upon Hilleary and consenting that the decision as to Hilleary may be set aside. So far as the order of reversal affects Hilleary, the same is therefore set aside.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case involves the question of whether or not there was any consideration for twenty-three contracts made subsequent to the execution of a commission contract, each of which subsequent contracts attempted to modify the original contract by authorizing certain deductions from the commissions earned under the original contract.
The plaintiff, an agent of the defendant oil company, seeks by this action to recover the deductions made each month by the defendant company during the two years and more that the original commission contract was in force.
The original contract, made March 1, 1931, covered the territory within twenty-five miles of the defendant’s bulk-sales station in Topeka, and stated in detail the commission to be allowed the plaintiff for all sales of defendant’s products made by him within that territory. The defendant on the date this contract was made owned or had leased a few filling stations within this territory, and within a few days after making the original commission contract plaintiff signed separate contracts as to each of these filling stations, agreeing to pay the defendant company each' month a certain amount per gallon to reimburse the company in part for expenses paid by the company at said station. Afterwards a similar agreement was signed as to sales made at each newly purchased or leased filling station, and such deductions were made in each monthly statement rendered by the company, and checks were regularly sent by defendant to plaintiff for the balance. These deductions during the twenty-six months the agency lasted amounted to something more than $12,000. There is no controversy about the exact amount. The plaintiff is either entitled to recover all of such deductions or none, and it seems to depend almost entirely upon the question of whether there was any consideration for the plaintiff in his executing these twenty-three subsequent contracts.
The voluminous evidence introduced was all documentary and by stipulation, except the oral evidence of the plaintiff. The following paragraphs of the original contract, called commission-agency agreement, are pertinent to the matter now under consideration:
“The company shall:
“(1) Have the right at its opinion to withhold any commissions, moneys or anything of value in its possession belonging to or due agent, for the purpose of reimbursing itself for any amounts due hereunder from agent at any time.
“These commissions shall be subject to deductions herein mentioned and/or counterclaims by the company, and, after deductions therefor have been made, the resulting sum shall be in full payment for all services rendered by agent hereunder. . . .
“This agreement shall continue in full force and effect until terminated by either party of [on] five days prior written notice.”
The question of want of consideration was not raised until the reply was filed. The plaintiff based his cause of action upon the commission-agency agreement, from which the above quotations were made, and the plaintiff claimed the amounts that had been deducted during the twenty-six months from his earned commissions under the terms of the agreement. The answer of the oil company set up the twenty-three station-agency agreements signed by the plaintiff authorizing, as it claimed, such deductions to be made, and also pleaded the same as a counterclaim. The reply of plaintiff to this answer and counterclaim was a general denial, and specifically denied that the station-agency agreements, the execution of which was admitted, constituted valid contracts or agreements between the parties or had any binding effect upon the plaintiff, for the reason that there was and is no consideration whatever for the execution thereof, and that said contracts are therefore void. This was denied by a further pleading of the defendant.
The burden of proof to show want of consideration for the station-agency agreements was therefore upon the plaintiff, and he testified on that question as follows: “Q. D'id you ever receive any consideration for signing this contract?” (referring to one of them, exhibit No. 6), and his answer, after objections were overruled, was “No, sir.” He made the same answer as to the other station-agency agreements after objections to questions were overruled.
These station-agency agreements were all made between the plaintiff as party of the first part and defendant oil company as party of the second part, and signed by them. Some of the pertinent portions of them were as follows:
“Witnesseth: That whereas the agent is the commission sales agent of the company at Topeka, Kansas, and
“Whereas, the company owns or has leased the following-described land (describing the particular filling-station lot)....
“Whereas, the agent will be paid commissions upon sales and/or transfers of gasoline and other petroleum products made by the company to the operator of the station on the above-described premises.
“Now, therefore, for and in consideration of the premises and other good and valuable considerations, the agent, effective the 1st day of March, 1931, shall pay the company not later than the tenth day of each and every calendar month, one cent per gallon for all gasoline . . . dollars ($............) to reimburse the company in part for expenses paid by the company at said station.”
The following is paragraph 9 of the stipulation or agreed statement of facts as filed in the case at the beginning of the trial:
“That during the period from March 1, 1931, to and including April 17, 1933, the defendant company acquired by ownership or lease a number of parcels of land, together with the service filling station and other improvements thereon at the time of acquisition or placed thereon by the defendant company, to which the company made sales and/or transfers of gasoline and other petroleum products, upon which the plaintiff was paid commissions under his commission-agency agreement. Said commissions are included in the total of $55,771.14 referred to in Paragraph VI, as having accrued to the plaintiff. In connection with each of them and at a time when plaintiff was the com mission agent of the defendant, the plaintiff and the defendant entered into a written contract, termed a ‘station agency agreement,’ wherein the plaintiff agreed to pay to the defendant a specified sum or sums based on a unit price on sales to reimburse the- defendant company in part for expenses paid by it at said station.”
The defendant filed requested findings of fact and conclusions of law containing both findings and conclusions as to there being consideration for the station-agency agreements. The trial court copied in its findings of fact paragraph No. 9 of the stipulation above quoted, being paragraph No. 9 of its findings, but also made as finding of fact No. 13 the following:
“No consideration or anything of value was received by plaintiff from defendant under any of the station-agency agreements signed by him or for the signing thereof.”
The first conclusion of law made by the trial court is as follows:
“Plaintiff has received no consideration for the execution of any of the station-agency agreements executed by him and involved herein, and such station-agency agreements are therefore void.” ' '
The defendant filed a motion for new trial on account of erroneous rulings of the court, that the conclusions of law and findings of fact are contrary to the law and evidence, that conclusions of law, findings of fact and the judgment of the court are contrary to the evidence and agreed statement of facts and are not supported by any evidence, and for other reasons.
Appellant calls attention to the language contained in stipulation or agreed statement Of fact No. 9 which in effect appellant claims is an admission of benefit or consideration received by plaintiff by the purchase or lease of additional filling stations to which the plaintiff will be able thereafter to sell goods and receive commissions, which statement is copied verbatim in finding No. 9 of the trial court. Appellant also calls attention to the language of these twenty-three contracts themselves which the appellant claims contain a consideration; also to the fact that the evidence of the plaintiff upon the trial, which is usually limited to the consideration of the trial court, was only opinion evidence.
Appellee argues in support of the finding and conclusion of the trial court that even if some of the language in the station-agency agreements may be construed as showing consideration in the way of paying commissions upon sales made to the filling stations acquired by the defendant company, that seven or more of these filling stations were acquired before the making of the commission-agency contract on March 1, 1931, and that plaintiff was from the very beginning supplying these seven or more stations and receiving commissions from such sales before he signed the contract, although they dated back to a prior date, and that he had a right under his commission-agency agreement to avail himself of all the business of the filling stations newly acquired by the defendant company.
Appellee also cites the case of Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264, where it was held that the functions of the supreme court were limited to alleged errors where findings of fact and conclusions of law were made by the trial court, and that the attention of the trial court should be called to errors or omissions in such findings and conclusions before the motion for new trial was filed. That case, however, differs materially from the one at bar in that the testimony seemed to be mainly oral and no request for findings or conclusions of law was made or suggestions made along that line to the trial court until the filing of the motion for new trial.
Buck v. Uplinger, 79 Kan. 858, 99 Pac. 1134, seems to be along the same line as the Shuler case.
R. S. 16-107 is as follows:
“All contracts in writing, signed by the party bound thereby, or his authorized agent or attorney, shall import a consideration.”
Appellant cites the case of Drake v. Seck, Adm’x, 116 Kan. 717, 718, 229 Pac. 67, where it was plainly and positively held that the statement of the witness that “there was no consideration for the notes, was a mere opinion and conclusion of the witness. . . . But there were the notes, importing a consideration (R. S. 16-107), deemed prima facie to have been executed for a valuable consideration.” It is further held in the same case that—
“Want of consideration is not a mere burden-shifter, but is an affirmative defense (R. S. 16-108), which must be established by a preponderance of the evidence in order to defeat recovery. (Fuller v. Scott, 8 Kan. 25.) The presumption of consideration is not a presumption of law; it is a presumption of fact. It extends to any fact which, under the situation and circumstances of the parties, might reasonably supply a consideration, and it cannot be overthrown except by proof of facts warranting the inference of no consideration of any kind. Consideration may arise in various ways, and proof of absence of one kind does not necessarily disprove presence of another kind.” (p. 718.)
Appellee contends that the so-called station-agency agreements were not intended to speak the truth and were coercive. It appears they were generally sent by the company from Denver,. Colo., to plaintiff, with a letter requesting plaintiff to sign them. It is further contended that while the contracts are to reimburse the company in part for the expense paid by the company at said station, it is not shown in the contract or elsewhere what relation the deduction bears to the expense or whether there was any expense incurred or borne by the defendant company. It would not seem to be necessary under the terms of the contracts to specifically state in each contract, or any of them, the exact part of the expense plaintiff had incurred when it is expressly stated in them that such payment is based upon a certain price per gallon.
Appellee further contends that the contracts do not show either a benefit to the party promising or a detriment to the company to which the promise is made, as defined by texts and opinions cited, as the true application of the definition of consideration. The benefit the trial court found in finding No. 9 was acquisition by the company of the new or additional filling stations “to which the company made sales and/or transfers of gasoline and other petroleum products, upon which the plaintiff was paid commissions under his commission-agency agreement.” The company was not bound by the commission-agency agreement to purchase or lease any filling stations.
We agree with appellee that the case of Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594, is not strictly applicable here, as it cannot be well said that the subsequent agency contracts are shown to have been contemporaneous contracts, but as far as a consideration is concerned they should each have such.
The modifications made by exhibits 1 and 2 as to the use of new and additional oils we think do not affect the issue here as to want of consideration. Of course the plaintiff was not bound to sign any of these subsequent agreements, but would his business, sales and commission increase if the defendant ceased to purchase or lease new filling stations? Neither one was .bound to go further in the way of getting or using new filling stations by the terms of the commission contract.
We have carefully considered the many additional points raised by the appellee as to the necessity of a showing of expense incurred by defendant in procuring and maintaining the several filling stations before any deduction should be allowed, even if it should be held there was a consideration for such contracts. There is nothing in the pleadings as we read them that requires such a preliminary showing or anything approaching the necessity of an accounting.
We conclude that these agency contracts themselves show a consideration, that finding of fact No. 9 finds a consideration, although another finding and conclusion find and hold the contrary. On this part of the appeal we hold the judgment of the trial court should be reversed and the defendant should recover.
Another question is involved in this case and this appeal, involving $362.43, which the plaintiff claims was improperly deducted from the commission to which he was entitled under the commission-agency agreement, and it was for the failure of the defendant company to allow the plaintiff the full amount specified by said contract as commission on peddler sales. Plaintiff had been allowed one cent per gallon commission on all sales made to oil peddlers, as they were called, who came to the bulk station and obtained the oil, from the date of the contract until December 1,1932, six months before the contract terminated. During the month of December, 1932, the company wrote the plaintiff, as it did to all other bulk commission agents, that effective December 1 the rate of commission would be one half cent per gallon under section fourth (4) (h), instead of fourth (4) (a). The letter was not signed by plaintiff as being accepted or agreed to, as other letters were. It was apparently a matter of construction as to which of the two subdivisions as to commissions was the proper place for the peddler sales. Subdivision (a) provides:
“(a) 1 cent per gallon on sales of kerosene and/or gasoline when sale is made at the bulk station or where freight or drayage is prepaid or allowed and deducted from the invoice.”
Subdivision (h) is as follows:
"(h) V2 cent per gallon on all gallonage products, and Vs cent per pound on all products sold by the pound, transferred to other stations, districts, or departments of the company, when such transfers are made at the bulk station.”
The plaintiff testified in detail as to the exact routine in the peddler-sale work and business, and the trial court in finding No. 14 found the way in which such peddler sales relate to the business at the bulk-sales station, and the second conclusion of law is as follows :
“The sales made by plaintiff which have been denominated ‘peddler sales’ should be credited to plaintiff under the provisions of- ‘fourth 4 (a)’ of the commission-agency agreement between the parties.”
We find the plaintiff did 'not sign the letter making such change and there was sufficient evidence to support the finding of the trial court concerning peddler sales, and we concur in the conclusion as to the same.
The judgment will be reversed, as above stated, as to station-agency agreements, but affirmed as to commission on peddler sales. It is so ordered.
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The opinion of the court was delivered, by
Johnston, C. J.:
Leonard E. Burton is challenging the correctness of a ruling sustaining L. B. Bardwell’s demurrer to his petition. The plaintiff alleged that on November 13, 1917, Alvira J. Bard-well entered into a lease contract with the defendant, Bardwell, by which he rented from her a quarter section of land for a period of ten years from January 1, 1918, for which defendant was to pay as rental $200 per year, in semiannual installments of $100, pay the taxes on the land, keép the buildings insured at his own expense, keep the fences and buildings in repair, protect and care for trees and shrubbery, and keep Alvira J. Bardwell as one of his own family. There was a further stipulation that in case she might require medical service, medicines or nurse, the expense of these was to be paid by her. The defendant did not move upon the farm until January 1, 1918, nor did he contribute anything prior to that time, for the keep or maintenance of Mrs. Bardwell, as she died on the farm on November 15, 1917, about twelve days after the execution of the lease. In her will she provided for the payment of debts, and it is stated that there was sufficient personal property to pay all debts, and all the residue of her property of every kind was devised and bequeathed to the plaintiff, Burton. Defendant entered into the possession of the property on January 1, 1918, and has remained in the possession of the land for the full term of the lease, and has paid $200 each year as cash rental for the farm. It was alleged that in December, 1927, the plaintiff made a demand upon defendant to pay the balance of the rent alleged to be due on the premises under the contract, to wit: an amount equal to the care and keep or board and room of Alvira J. Bardwell, for the period of ten years from January 1, 1918, to January 1, 1928, and that the defendant had refused to pay the same. It is alleged that a fair and reasonable cash rent for the premises described during the period mentioned would be $575 per year; that the reasonable value for keeping said Alvira J. Bardwell as one of the family would be $25 per month, or $300 per year, and that therefore there is justly due to the plaintiff for the ten-year period $3,000 as additional rental for the premises. It is further stated that when the defendant entered into possession of the premises he knew that he could not furnish care and keep for Mrs. Bardwell since he knew that she had died prior to that time, and that the $200 cash rental and the taxes on the premises were not an adequate and just rental for them. The plaintiff therefore prayed for the recovery of the sum of $3,000 with interest thereon from January 1, 1928, at the rate of six per cent per annum. The court held that a cause of action was not stated, and sustained the defendant’s demurrer.
It will be observed that while the ten-year lease contained requirements as to the care and cultivation of the farm, and provided for many contingencies, there is nothing in it relating to the possibility of Mrs. Bardwell’s death. Can we imply a condition not provided for in the contract and require the lessee to pay as rent a substitute for the personal service he had agreed to render her? No Kansas case is cited in which the direct question was presented and determined. There is a case (Wilson v. Highley, 98 Kan. 154 157 Pac. 411) where plaintiff brought an action against her two brother's to cancel a deed executed by her mother to the brothers in consideration of a promise by the brothers that they would keep and care for the mother and clothe and look after her during her natural life. The deed recited a consideration of $1,000 received by the mother. In addition to cancellation the plaintiff asked that she be deemed to be the owner of a third interest in the land as well as for rents and profits. The contract had been made twenty-two years before the action was, brought and she alleged that the brothers had never paid any consideration for the land, nor furnished any care or support for the mother, who died two or three years before the suit was brought. Several objections were urged against plaintiff’s petition, including the statute of limitations, which would have barred the mother if she had been alive and had brought the action. Also, that the agreement for keep and care was oral and contradictory of the written instrument, and still another that the agreement was a personal covenant between the mother and her sons and the court held that, “If she had any cause of action against them for the breach of such a covenant, it was a personal one which died with her.” (p. 156.) So here, if the services to be rendered by the lessee are personal, in their character and by reason of the death of the lessor it became impossible to perform them, performance would be excused. The provision for the care of the lessor as one of the family of the lessee is more of a personal nature than the ordinary one of board and room, and any claim for it would necessarily die with her and would not descend to her heirs or representatives. (Marvel v. Phillips, 162 Mass. 399.) See, also, Browne v. Fairhall, 213 Mass. 290. The plaintiff could not have required the defendant to accept him or any other person as a member of his family and care for the substitute as a member of the family during the period of the lease. A case quite in point is In re Shearn’s Estate, 38 Utah, 492, where property was leased for a term of five years at a rental of $1,500 payable in monthly installments. The tenant to pay all water rates, plumbing bills, gas and electric light bills and also that the lessee should keep the lessor during the term of the lease, “with the reasonable comforts of life, including board and room.” Installments of cash rent were paid by the tenant and he cared for the lessor for a few months until his death and thereafter declined to pay anything under the care, board and room provision of the lease. It was held that:
“Covenants for support are almost universally regarded as personal and unassignable without the express consent of the beneficiary.” (p. 496.)
And further held that the tenant had the right to discharge the obligation assumed by him in the manner stipulated in the lease and could not be required to provide any substitute performance. It was further stated that if the lessor had elected not to accept the comforts, room and board, and had left the premises he could not have demanded their values, so long as the lessee was ready, able and willing to comply with the obligation to provide for the lessor in accordance with the agreement. That the lessor could not have maintained an action for the money value of the comforts, board and room and no more could the executor maintain such an action. It was further held that the mere fact that the lessor died and can no longer receive the comforts stipulated for did not change the obligation of the lessee in the absence of .an express stipulation providing for such an emergency, a stipulation which the courts could not supply. (See, also, Potts Drug Co. v. Benedict, 156 Cal. 322; Jennings v. Lyon, 39 Wis. 553; In re Williams’ Estate, 22 N. Y. Supp. 906; 24 Cyc. 1190.)
Here the'lessee stood ready to carry out the agreement to maintain the lessor. There was no default on his part. No complaint is made as to his compliance with the other stipulations or the conditions of the executory contract. It must be assumed that he paid the taxes for the ten-year period, that he tilled the farm as required by the lease, that he kept the buildings and fences in good repair and took good care of the fruit and ornamental trees and shrubbery, that he kept up and paid the insurance on the buildings, that he paid the cash rental of $200 per year, and was ready to turn back the farm with all the improvements he had made thereon at the expiration of the term in as good condition as when he entered, except such deterioration as might arise from reasonable use and wear. The obligation performed by the lessee, as will be seen, constituted a large part of the consideration for the use of the land, and since he was able and willing to comply with the personal obligation of keeping the lessor as one of his family, that covenant must be regarded ás extinguished by her death. It would have been competent for the parties to have provided in the contract for such an emergency or of a substitute for the service in the event of her death, but having failed to do so and the lessor’s death having made performance of that condition impossible, performance must be regarded as excused. Several conditions and exceptions were anticipated and provided for in the lease. As we have seen, the matter of sickness of the lessor was anticipated and provision therefor was included; that if she needed medicine, medical care or nursing, the expense of these should be paid by the lessor herself. When considering the obligations of. the parties in the event of sickness they could easily have provided what the duties and obligations of the parties should be in case death resulted from the sickness or from other causes. It was stipulated that if waste or removal of improvements were made by the lessee, the lessor might at once reenter and occupy the farm and the lessee was required to pay for all improvements taken from the premises. There was a provision that he would not sublease or assign his lease without the written consent of the lessor, and that such action would entitle the lessor to take possession of the farm. Another provision was that the lessor waived all exemption laws so far as the fulfillment and enforcement of the covenants of the lease were concerned. Still another was that in the last year of the lease, to'wit, August 1, 1928, the lessor should have the right to reenter and occupy the farm and to plant all ground to fall wheat not occupied by crops. All of these contingencies were thought of and provided for, but nothing was included as to any alternative for the keeping of the less'or as a member of the lessee’s family in the event of the lessor’s death. Since the lease did not provide for a substitute for such a personal service, the court cannot supply one. Relating to the question involved it has been said:
“It may be agreed that one may occupy land in consideration of furnishing a home for another. In such a case, so long as the lessee complies with the terms of the agreement, no money judgment can be taken against him; and such care and maintenance of the lessor will operate as a satisfaction of the rent during the entire term of the lease, even though the lessor dies before its expiration. Moreover, the fact that the lessee agrees to furnish the lessor with room and board during the term of the lease, in addition to a specified rental, does not render the lessee liable for an increased amount for the period intermediate the death of the lessor and the end of the term.” (36 C. J. 386.)
It is further contended that the contract terminated with the death of the lessor, and that the plaintiff as legatee of the lessor is entitled to recover the reasonable rental of the premises. Aside from the rule that the performance of the provision for personal service was excused by the impossibility of rendering it, and further that any claim for it did not descend to the heir and legatee, the plaintiff is not in a position to insist that the lease had ended on the death of the lessor. The plaintiff had recognized the existence and binding force of the lease throughout the ten-year period. The lessee had occupied the farm and had paid the rental to the plaintiff during that time. The plaintiff had thus treated the lease as an existing contract and had allowed the lessee to occupy the premises by accepting the rental throughout the term of ten years, and by allowing him to pay the taxes thereon for that time and the insurance on the buildings and keeping the improvements in repair in accordance with the provision of the lease, and in doing so he treated it as a valid existing contract. If the lease was open to the claim of termination by reason of the death, a question it is not necessary to decide, his acts in recognizing its existence for so long a time and taking the benefits arising from the occupation under the lease precludes the plaintiff from asserting that it had terminated or had become invalid. His conduct and course of dealing naturally led the lessee to rely on the existence and validity of the lease during the ten-year term and operated as a waiver of defects in it, if any existed. By collecting the rental under the lease he in fact confirmed it and after ten years of acquiescence and acceptance of the rentals under the lease, he will not be heard to say that the lease was nonexistent or without validity.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover the value of a hedge fence, alleged to be owned in common by plaintiff and defendants and to have been cut down and appropriated by defendants, and to have the hedge fence adjudged to be the boundary line between the land of plaintiff and that of defendants. There was a trial to the court. Extensive findings of fact were made, also conclusions of law, and judgment was rendered for plaintiff. Defendants have appealed.
Briefly, and so far as is here pertinent, the facts found are as follows: The parties claim title under James Morgan, who in 1875 owned the east three-quarters (480 acres) of a certain section of land in Sedgwick county. He conveyed the south half of this to his son, William Morgan, and the land directly north of that he conveyed to his daughter Malinda Parkinson a part, and to one Murray Myers the remainder. In 1880 Murray Myers, Malinda Parkinson and her husband, David Parkinson, and William Morgan, agreed upon what they thought was the dividing line between the land of William Morgan on the south and the lands of Murray Myers and Malinda Parkinson on the north and planted a hedge on the line so agreed upon, with the intent that the hedge should be the dividing line between the properties. William Morgan continued to own the land conveyed to him by his father until 1913, and lived upon and occupied it until 1908, and later occupied it by tenants. During all that time, since the hedge was planted, he claimed to own the land south of the hedge, and was in the actual, exclusive, open and adverse possession of it. He claimed title to half of the hedge, repaired it, contributed to its upkeep, and from time to time cut posts from it. In 1913 he sold his land to the plaintiff, John A. Simon, and pointed out to him the hedge fence as the dividing line between his property and the land north of it. Since 1913 the plaintiff has been in the actual adverse possession of the land on the south of the hedge fence, claiming to own it and one-half of the fence, as did his grantor.
In 1893, William Morgan, David Parkinson and one James S'iever made written application to the county surveyor to have the section in which this land was situated, and one other section, surveyed for the purpose of ascertaining and establishing the true section lines, half-section lines and quarter-section lines in the sections. The survey was made in May, 1893, by a deputy surveyor. The half-section line through this section by this survey was located fifteen feet south of the hedge fence at the east end thereof and three feet south of it at the west end, tending to show a strip of land three-quarters of a mile long, 15 feet wide at one end and 3 feet wide at the other, south of the hedge, as not in the land conveyed to William Morgan by his father’s deed, but within the land conveyed by the deeds to Malinda Parkinson and Murray Myers. Some doubt as to accuracy of the survey as to this line arose by reason of the fact that the original government comers were not found. There was no evidence that this line as run by the surveyor was the same that was run by the government survey. Then the acreage of the section was short, and whether this shortage was in the south half of the section, or the north half, or equally divided, was not shown. If the shortage was in the north half of the section, the line would have been north of the hedge. After this survey William Morgan, as above stated, continued in the actual possession of the land up to and including half of the hedge fence, but he now did it intending to hold it adversely to the owners of the land north of it, if, in fact, they had any title or right to possession of this narrow strip. On one or two occasions he proposed to buy this narrow strip from the owners of the land north of it. He did this seeking to avoid any controversy over the ownership and right to possession, and preferring, if the other parties did have any title to or rights therein, to acquire the same by deed rather than by adverse possession. But nothing came of these proposals. ■
As to the land north of this hedge fence: Murray Myers conveyed his part of the land to Jacob Fox in 1884, and in 1900 Fox conveyed it to David Parkinson, and in 1919 Malinda Parkinson and David Parkinson conveyed their land to the defendant, Mary Mohr. From the time the hedge was planted in 1880 until the survey in 1893 the owners of the land on the north regarded the hedge as the line between their land and the land south of them. After the survey they claimed, at least tentatively, to own the narrow strip sopth of the hedge, but made no effort to acquire possession of it until about 1925. They farmed or otherwise used the land from the hedge north, and contributed to keeping the hedge fence up by trimming it and otherwise caring for it, and cut from it a small quantity of fence posts and wood. In 1923 defendants pulled a few rods of the hedge, but this was done to give air to the house. In January, 1925, defendants cut a part of the hedge, and more in January, 1927. This appears to have been done under a claim of ownership. This action was brought soon thereafter.
Plaintiff claimed a half interest in the hedge fence and all the land south of it, on two theories: First, thei agreement when the hedge fence was planted that it should be the division line, and long acquiescence in that agreement. Second, if defendants had title to any land south of the hedge plaintiff had acquired it by adverse possession. Naturally there was some confusion in these theories, both in the evidence and in the findings. This confusion gives rise to the argument of appellants.
We think it so happens in this case that the judgment of the trial court should be sustained on either theory.
As to the first of these: The rule is well settled in this state that when adjoining landowners who do not know the exact location of the line between their lands desire to construct a permanent partition fence on the line, go upon the premises and without a survey attempt to locate such line, and do so as nearly accurately as possible, and construct a permanent fence thereon, with the understanding and agreement that the same shall be the partition line and fence between their properties, it becomes so by virtue of such agreement, although a later accurate survey may show the true line to ba one side or the other of the line and fence located and constructed by such agreement. (Sheldon v. Atkinson, 38 Kan. 14, 16 Pac. 68; Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019; Parks v. Baker, 81 Kan. 351, 105 Pac. 439; Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836; Kastner v. Baker, 92 Kan. 26, 139 Pac. 1189; Terrell v. Chessmore, 94 Kan. 611, 614, 146 Pac. 1162; Dean v. Evans, 106 Kan. 389, 188 Pac. 436; Kyte v. Chessmore, 106 Kan. 394, 397, 188 Pac. 251; Shafer v. Leigh, 112 Kan. 14, 209 Pac. 830; Bailey v. Brown, 125 Kan. 149, 152, 266 Pac. 35.)
See, also, McBeth v. White, 122 Kan. 637, 253 Pac. 212, and Blanford v. Biven, 123 Kan. 269, 254 Pac. 1030.
This is what the parties did in this case. And at least until the survey in 1893 all parties acquiesced in such agreement and in the location of such line and fence. Even after the survey, although the owners on the north claimed the survey located the true line, they made no attempt to claim possession south of the fence for thirty years or more, and during all of that time the parties acquiesced in the agreement made at the time the hedge was planted in 1880. This case, therefore, falls within the principle controlling the cases hereinbefore cited.
It is true that one who by mistake as to the true boundary line occupies a strip of land owned by another, without the intent to take and hold land beyond the line, or to claim land which he does not own, does not acquire title by adverse possession. (Scott v. Williams, 74 Kan. 448, 87 Pac. 550; Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195.) But this doctrine is not applicable to the facts here for the reason that the owner on the south was in possession intending to hold it adversely even if a part of it, as the survey tended to show, was owned by those who owned on the north.
These conclusions necessarily require that the judgment of the court be affirmed. As to the second theory, it is argued that even if William Morgan acquired title to this narrow strip of land by adverse possession, after the survey in 1893, the title so acquired can be transferred only by a conveyance, citing George v. Gist (Ariz.), 263 Pac. 10, and allied cases, with the result that plaintiff has shown title to be in one not a. party to this action. This argument lacks merit for the reason that the conveyance to plaintiff was “according to United States survey.” There is no showing that by the United States survey the line was south of the hedge— in fact, to give plaintiff full acreage the line would have to be north of the hedge.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a promissory note executed in Texas, payable in Missouri, and sued on in Kansas upon attachment and publication service. The trial court held that a defense based on the Texas statute of limitations was good, and the plaintiff appeals.
The petition contained the usual recitals of a cause of action on a promissory note, including allegations concerning the residence of the plaintiff in Missouri, the residence of the defendant makers in Texas, and set up a copy of the note with its indorsements, viz.:
“Fort Worth, Texas, November 7, 1919.
No. 7596. $3,000.00.
“On May twelfth, 1920, after date, without grace, for value received, I, we, or either of us, promise to pay to the order of Guarantee Cattle Loan Company,
Three Thousand and 00/100 Dollars,
At the office of the Guarantee Cattle Loan Company, Kansas City Missouri, with interest at the rate of eight per cent per annum after maturity. The makers and endorsers of this note severally waive demand, notice and protest.
(Signed) Clay & Easley.
“Address: Comanche, Texas. By H. R. Clay
“Endorsements: Oct. 31, 1921, cr., $1,308.68. Demand, notice and protest waived. Payment guaranteed. — Guaranty Cattle Loan Company; J. C. Swift, President.”
This action was begun April 21, 1926.
The principal defense was made by defendant J. M. Easley, who pleaded that “by the laws of the state of Texas, where the cause of action arose, this cause of action could not be maintained because of the lapse of time.” The Texas statute of limitations provides that an action on a debt evidenced in writing shall not be commenced or prosecuted at any time more than four years after the cause of action thereon has accrued.
Plaintiff’s reply alleged the default of defendants at the place of payment under the terms of the note, and pleaded the Missouri statute of limitations which allows ten years in which to bring an action upon a written promise for the payment of money.
The Kansas statute pertinent to a cause of action which has arisen between nonresidents of this state reads:
“Where the cause of action, has arisen in another state or country, between nonresidents of this state, and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state.” (R. S. 60-310.)
In view of the foregoing, where did the cause of action arise between these litigants? “In Texas where the note was given,” say defendants. But the giving of a note, which is the making of a contract, does not give rise to a cause of action. Surely every simple business transaction between men does not give provocation for a lawsuit. It was not the making, execution, and delivery of this note which gave rise to the cause of action; it was not the promise to pay, but the breaking of that promise — the default of the makers to pay the debt at the place and time they agreed to pay it — which gave rise to the cause of action. (Bruner v. Martin, 76 Kan. 862, 866, 93 Pac. 165; Land Co. v. Bassett, 85 Kan. 48, 51, 53, 116 Pac. 475.) That breach of contract, that default of payment, was in Kansas City, Mo., and therefore the statute of limitations which governed the cause of action arising therefrom was the Missouri statute, so long as it was not out of accord with the law or public policy of the forum where the action was begun. (8 C. J. 86, 92.)
In Bruner v. Martin, 76 Kan. 864, 93 Pac. 165, it was recognized that theretofore this question of law was an open one in this jurisdiction and that the authorities elsewhere were in conflict. But the rule announced in Bruner v. Martin was reiterated in Land Co. v. Bassett, 85 Kan. 48, 51, 53, 116 Pac. 475; and in Shearer v. Insurance Co., 106 Kan. 574, 577, 189 Pac. 648, it was said:
“A cause of action upon a contract does not arise until there has been a breach (1 Enc. L. & P., 1008), and it arises where the breach takes place. (40 Cyc. 83.) The only breach of the contract alleged in the petition was the refusal to pay the amount due under it, and this occurred, presumptively at least, at the residence of the plaintiff, and not in Wyandotte county. The words 'where the cause of action arose’ do not refer to the place where the transactions took place out of which the cause of action grew. That was settled for this jurisdiction in Bruner v. Martin, 76 Kan. 862, 93 Pac. 165, where the reasons for the decision and the authorities bearing thereon are fully set forth.”
Recent cases which accord with Bruner v. Martin in holding that a promissory note made in one state to be performed in another state is governed by the law of the place of performance, without regard to the place where it was written, dated, or signed, unless the note itself shows clearly that it should be governed by the law of the place where made, are: Joffe v. Bonn, 14 F. (2d) 50, 52; United Bank & Trust Co. v. McCullough, 115 Neb. 327; Commercial Credit Corporation v. Boyko, (N. J.) 137 Atl. 534; Banca Ital. Di Sconto v. Columbia Counter Co., 252 Mass. 552, 560.
See, also, Goodrich on Conflict of Laws, 245-248; Conflict of Laws, Restatement No. 4, A. L. I. §§ 384, 385; and note to Bruner v. Martin, in 14 L. R. A., n. s., 776.
The case of Timmonds v. Messner, 109 Kan. 518, 200 Pac. 270, cited by defendant, refers to Bruner v. Martin and contains nothing at variance therewith.
The other matters urged in support of the judgment have all been noted, but cannot be sustained. Plaintiff cannot be denied the right of appeal because he did not introduce the Missouri statute of limitations. He pleaded it, and the record reads:
“The Court: Is there anjr dispute about the Missouri statute?”
[Counsel for Defendant] : “No. I don’t think so. . . .”
It is also urged that because plaintiff filed no motion for a new trial he cannot be heard on appeal. Why not? There were no trial errors which it was his duty to give the trial court an opportunity to correct as a prerequisite to this appeal. The one material error assigned is on the trial court’s ruling that plaintiff’s cause of action was governed by the Texas statute of limitations and barred thereby. Such a ruling opened the way for an immediate appellate review without a motion for a new trial. (Perkins v. Accident Association, 96 Kan. 553, 152 Pac. 786; Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922; Doty v. Shepard, 98 Kan. 309, 158 Pac. 1; Close v. Mining Co., 105 Kan. 257, 182 Pac. 392; State, ex rel., v. Telephone Co., 115 Kan. 236, 268, 223 Pac. 771; Seigle v. Soldiers’ Compensation Board, 119 Kan. 253, 254, 237 Pac. 657.)
The judgment of the district court is reversed.
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from the judgment of the district court of Wyandotte county dismissing this action, which was one to recover damages for an alleged overcharge on an interstate shipment of grain.
Plaintiff’s petition alleged that it was a corporation with headquarters in St. Joseph, Mo., and that it was engaged in the business of shipping and dealing in grain, and that defendant was a common carrier operating a system of railways extending through various states and including the cities and villages of Hebron, Neb., Fair-view, Kan., and St. Joseph, Maysville and Raytown, in Missouri.
Plaintiff alleged that S't. Joseph is recognized by defendant and other railway carriers as a primary grain market and basing point for the fixing of freight rates on grain shipments which may originate at local points and pass through St. Joseph to final destination. As a basing point in the defendant carrier’s freight-rate structure, it was alleged—
“That St. Joseph, Mo., as such basic point is accorded proportional rates on such shipments with the right of diverting or reconsigning said shipments and with all the privileges incident thereto. That the tariffs of freight charges on grain shipments passing into or through St. Joseph, Mo., adopted °and published' according to law by the various common carriers desiring to participate in such business, and including the defendant, provide for such proportional rates, transit privileges, privileges of diversion and reconsignment’ at St. Joseph, Mo.”
It was also alleged that defendant's published tariff prescribes a rate of 17 cents per hundredweight for carload shipments of corn originating at Hebron, Neb., passing through St. Joseph, to Raytown, and a rate of 11 cents per hundredweight on carload shipments of corn originating at Fairview, Kan., passing through St. Joseph to Raytown; and that the tariff also provides for transit privileges, diversion and reconsignment of carload shipments of grain at St. J oseph.
Plaintiff further alleged that on March 9,1925, it held paid freight bills on inbound carload shipments of corn from Hebron and Fair-view aggregating 84,000 pounds to St. Joseph, for which upon surrender of such paid freight bills plaintiff was entitled to have 84,000 pounds of bulk corn transported from St. Joseph to Raytown or any station intermediate between St. Joseph and Raytown; and that the stations of Hebron, Neb., Fairview, Kan., and St. Joseph, Maysville and Raytown in Missouri, were all stations upon the line of defendant’s railway and that the distance between St. Joseph, Mo., and Maysville, Mo., is a shorter distance than the distance between St. Joseph, Mo., and Raytown, Mo., and that the shorter distance was included within the longer distance and in the same direction.
Plaintiff alleged that on March 9, 1925, in the usual course of business it loaded one of defendant’s freight cars with 84,000 pounds of bulk corn for transportation to Maysville, and at the same time it surrendered to defendant paid freight bills on its prior corn shipments from Hebron and Fairview, and defendant shipped, transported and delivered the consignment of March 9 pursuant thereto. But- a few days later defendant exacted from plaintiff an additional sum of $19.90 as freight charges on that shipment. Plaintiff alleged that this exaction was arbitrary and illegal and his claim and demand for its repayment were rejected. He therefore prayed judgment for $19.90 and interest and a reasonable attorney’s fee.
To this petition defendant filed an answer, traversing plaintiff’s allegations of fact and pleading certain affirmative defenses; but the trial court, apparently on its own motion, held that it had no jurisdiction and dismissed the action. Hence this appeal.
It will be discerned that the plaintiff grain company alleges a cause of action against defendant redressible or justiciable somewhere. Why not in a state court of general jurisdiction? Amid various recitals of plaintiff’s petition whose relevancy need not at present concern us, it is alleged in substance that defendant exacted from plaintiff $19.90 more than its own tariff schedules prescribed. The subject matter of an action to recover that sum is one which any court of general jurisdiction is competent to adjudicate if it obtains jurisdiction of the parties.
In the recent case of Thomas v. Chicago, B. & Q. Rld. Co., 127 Kan. 326, 273 Pac. 451, it was said:
“A state court has jurisdiction of an action for damages against a railway carrier for the exaction of a rate in excess of its own official schedules, where the reasonableness of the scheduled freight rate is not assailed and where no question affecting the power or administrative policy of the Interstate Commerce Commission is involved.” (Syl. ft 4.)
It will be noted that plaintiff’s petition makes no complaint of the reasonableness of defendant’s scheduled tariff rates for the transportation of this carload of grain; and it does not assail defendant’s tariff rules governing proportional rates and privileges of diverting or reconsigning carload shipments of grain through the primary market and basic rate-making point of St. Joseph. On the contrary, plaintiff’s action is based upon the alleged exaction of a small sum of money in excess of defendant’s published tariff and the denial to plaintiff of the reconsignment privileges-which its tariff professes to extend to grain dealers holding paid inbound freight bills. The allegations of plaintiff’s petition may not be true. Defendant’s published tariff, fairly construed, may not be susceptible of the interpretation given it by plaintiff. A controversy of that sort presents a justiciable issue of disputed fact — one which a state court of general jurisdiction is fully competent to solve.
In a painstaking brief appellee seeks to uphold the trial court’s dismissal of this action by explaining that there is a group of cities on and near the Missouri river known in railroad parlance as group 8, and' that the Interstate Commerce Commission has given its sanction to a schedule of freight rates on grain to all the points in this group, and that Raytown, Mo., belongs to that group and that Maysville does not, and in consequence a shipment of grain recon signed through St. Joseph to Maysville would not be entitled to the same rate as one to Raytown. That contention may be a good defense in whole or in part to the cause of action alleged by plaintiff. We express no opinion on that point. But it counts for naught on the question whether the district court had jurisdiction. Appellee contends that the state court has no jurisdiction where the controversy is based on a violation of the fourth section of the transportation act. If defendant’s officially published tariffs filed with and approved by the Interstate Commerce Commission specified rates in violation of the principles of rate making dictated by section 4 of the transportation act, any grievance of plaintiff suffered thereby would not be justiciable in a state court. Plaintiff’s remedy would be through a proceeding before the Interstate Commerce Commission for a rate conforming to section 4 and for an order of reparation for plaintiff’s actual damages sustained because of the rate complained of. (Davis v. Portland Seed Co., 264 U. S. 403, 68 L. Ed. 762, and citations.) And if plaintiff were unjustly denied relief by the Interstate Commerce Commission or felt aggrieved at its disposition of his complaint, a state court could give him no redress. The national government could not permit its official commissions and departments to be haled into the state courts of any or all of the forty-eight states of the Union by anybody who could formulate on paper an alleged grievance against their official conduct. Only the federal government’s own courts could be given jurisdiction of such a controversy. (Penna. R. R. v. Puritan Coal Co., 237 U. S. 121, 59 L. Ed. 866.) But our time will not permit us to explore the whole range of freight-rate controversies jurisdiction over which necessarily and exclusively is vested in the federal courts. Here all we have is a petty grievance growing out of an alleged overcharge in excess of the authorized and published freight schedules of the defendant carrier. Plaintiff’s petition stated a cause of action and the district court of Wyandotte county had jurisdiction to adjudicate it.
The judgment is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for rent stipulated in a farm lease to be paid. It was tried to the court, judgment was for plaintiff and defendant has appealed.
Plaintiff owned an 80-acre farm in Reno county on which he lived with his family. Defendant was familiar with the place and on two or more occasions had talked with plaintiff about renting it, and on one occasion had been in the house. On February 15, 1927, a lease was executed by them by which plaintiff leased to defendant the farm for one year. The lease contained many provisions usual in farm leases. Among other things the lessee agreed to properly prepare and put in crop all the land in cultivation; to accept said farm and improvements in their present condition, and to reside on said premises continuously, and to pay as rent $350, of which $200 was to be paid March 10, 1927, and $37.50 on the tenth day of each month for four months thereafter. The lease contained the provision:
“All payments from said lessee shall become due and payable upon the forfeiture of this lease or upon his abandoning said premises.”
Also the following:
"Additional stipulation: In case of failure to make payments as aforesaid lessor to be entitled to immediate possession of said premises and interest of lessee to be terminated except as to the obligation to pay said rental.”
About March 1 plaintiff moved to another farm 'about eighteen miles away and defendant moved some farm implements and a load of hay to the leased premises, and he and his boy did some work about the place for a day or two; but he never moved his family there, and later moved away the things he had taken there. A day or two later he met plaintiff and told him that he was going to back out of his contract, and plaintiff replied that the rent would have to be paid. About a week later defendant saw plaintiff again and said he had decided not to take the place. “You do whatever you want to ... I don’t want it.” He did not pay the rent due March 10, nor any rent. Plaintiff, by his own efforts and through real-estate agents, tried to find another tenant, but it was after March 1, when tenants ordinarily move onto farm premises for the year, and -he was unable to do so. About March 18 plaintiff traded the farm to one J. T. Randles, to whom he conveyed it by deed.
One defense pleaded was that the residence on the farm was not in good condition, and that plaintiff had agreed to put it in good condition and had failed to do so. What talk there was about that matter was before the lease was executed in which defendant agreed “to accept said farm and improvements in their present condition.” There was no claim that there was fraud which induced defendant to execute the lease, nor did defendant claim that he did not know the contents of the lease when he signed it. So that defense failed.
Appellant argues that Randles, if anyone, would be entitled to the rental, citing R. S. 67-516. This statute has no application here.' Defendant was not in possession of. the premises as tenant when Randles acquired title thereto, or at any time thereafter. He had abandoned the premises and refused to pay rent or otherwise comply with the lease before that time, and under the terms of the lease plaintiff’s right to possession of the premises and his obligation to pay rent to plaintiff had become fixed.
It is argued that the lease was terminated by mutual consent. There is no evidence to support this view, and the findings and judgment of the trial court are against it.
Lastly, it is argued that the provision to pay rent in the event the lessee abandoned the premises is in the nature of a penalty as distinct from liquidated damages, and several cases construing contracts of a different character than the one before us are cited. The cases are not in point. In 17 C. J. 933 it is said:
“The distinction between penalty and a provision for liquidated damages is that a penalty is in effect a security for performance, while a provision for liquidated damages is for a sum to be paid in lieu of performance.”
But we need not go into an extended discussion of this question and the many cases that have been passed upon by the courts concerning it. Here is an agreement which the parties were competent to make. It was not induced by fraud. It contemplated that defendant should have possession of the premises for the term, but specifically provided that the rent should be paid in any event, even though defendant abandoned the premises or the lease were forfeited. The evidence is that plaintiff made diligent efforts to find another tenant, but was unable to do so. There is no contention on behalf of defendant that a tenant was, or could have been, found. Plaintiff was confronted with the alternative of permitting his land to lie idle and the improvements unoccupied and uncared for, or disposing of the place. There is nothing in the record to indicate that plaintiff’s damages were less than the stipulated rent.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action on a fire insurance policy by the owner of the building to set aside the award of the appraisers and umpire and recover from the defendant insurance company for the loss sustained. The jury answered many special questions as to the appraisement and award and some as to the extent of the loss, and returned a verdict for plaintiff for $1,019.90 with interest. The court, after overruling motion for new trial and other motions, rendered judgment for plaintiff accordingly, together with an attorney fee of $600, from which judgment the defendant appeals.
The appellant complains of the failure of the trial court to sustain its motion to strike out of the amended petition certain parts referring largely to occurrences leading up to the agreement for appraisement. The court did sustain the motion as to five such parts, but overruled it as to others. The theory of the appellant in this respect is correct, and the trial court followed it generally, but did not follow it where a different purpose could reasonably be attributed to the clauses attacked, viz., irregularity, unfairness and dishonest method in the selection of the appraisers and umpire, which are features to be considered in the attempt of the plaintiff to set aside the award. These clauses have to do with the competency of the arbitrators and umpire and such matters as might disqualify them if the statements were proved to be true. (Anderson v. Burchett, 48 Kan. 153, 29 Pac. 315.) We think the court sustained the motion to strike out parts of the petition as far as it was prudent and safe to go.
The trial court overruled the defendant’s objection to the introduction of certain testimony as incompetent and defendant’s demurrer to the evidence of the plaintiff, and in its brief the appellant argues these two points together, presenting the well-recognized precedent that an award of appraisers is supported by every reasonable intendment and presumption, and that it will not be vacated or set aside unless it clearly appears that it was made without authority or was the result of fraud, mistake, misfeasance or malfeasance of the appraisers (26 C. J. 424). Unless there was evidence to support such findings the award must stand and the demurrer should have been sustained.
Our attention is directed to words and conduct of the plaintiff, some of which appeared unreasonable and full of feeling, which may in a measure have provoked remarks from the appraisers and umpire, but for the purpose of the demurrer to the evidence the uniform rule must be followed by the trial court and this court that if there is any evidence on each of the essential elements of the petition the demurrer must be overruled.
“A demurrer to the evidence of plaintiff should not be sustained unless the court is able to say that, admitting every fact that is proven which is favorable to the plaintiff, and admitting every fact that the jury might fairly and logically infer from the evidence favorable to the plaintiff, still, the plaintiff has failed to make out some one or more of the material facts of his case.” (Rowan v. Rosenthal, 113 Kan. 604, syl. ¶ 2, 215 Pac. 1008.)
The objection to the introduction of certain testimony claimed to be incompetent is in connection with the effort to set aside the award, one of the most serious objections being to that of the plaintiff, where he testified as to an estimate having been made by the defendant’s agent in the sum of $1,300. The attitude and effort of the witness was wrong, but the court protected the defendant as far as possible by limiting its purpose by a specific and immediate instruction to the jury. The trial court scrupulously guarded against this estimate of loss being considered an offer of compromise or settlement, and did everything required in such a case to prevent the jury from using the evidence for an improper purpose. A careful reading of the briefs and abstracts shows that most of the objectionable part of such testimony had reference to the alleged unfairness of the appraisers and umpire and the alleged unfair and objectionable methods pursued by them in making the appraisement and award. Such evidence was competent for the plaintiff in his endeavor to set aside the award, which was one of the two features of his side of the case.
Serious objection is made to the questions and answers which attempt to show replacement cost without deduction for depreciation. We note that the policy in this case stipulates that in making such estimates depreciation must be deducted from actual cash value, which in no event should exceed the cost to replace the same, and again it stipulates that the company has an option to repair, rebuild or replace the property lost or damaged and does not. mention a deduction in that connection for depreciation. Replacement of a total loss might require a deduction for depreciation, because the owner in that event would have an entirely new building for the old one that was destroyed, but a replacement in case of repairs for partial loss will have reference to the condition and value at the time of the fire and will be the amount necessary to put the property in the same condition it was when the loss occurred. If it was a twenty-year-old building when the fire damaged it, the expense of putting it back in the same condition it was in at the time of the fire would be less than it would have been if it had just been erected. The two cases cited in this connection make this distinction. (Moulton et al. v. Globe Mut. Ins. Co., 36 S. D. 339; Security Ins. Co. v. Kelly [Tex. Civ. App.], 196 S. W. 874.)
The answers of the jury to some of the special questions are justly criticized- — one of them was even outside of the issues — but they are not inconsistent with the general verdict, and under such circumstances should stand.
“It is error for a court to set aside a general verdict and enter judgment on the special findings, unless the special findings compel such action. Where it is possible to harmonize the special findings with the general verdict the latter is controlling.” (Osburn v. Railway Co., 75 Kan. 746, syl., 90 Pac. 289. See, also, Lewellen v. Gas Co., 85 Kan. 117, 116 Pac. 221.)
The answer of the jury to one question shows that the appraisers and umpire failed to consider some of the damaged property, enumerating it. Appellant shows by the list furnished by the appraisers some of these articles were considered, but they were not all in such list, and there is evidence to support several of the articles enumerated. This is one of the grounds mentioned in former decisions for showing possible unfairness of the appraisers and umpire. Another of such grounds is a wide discrepancy between the amount of the award, $439.76, and the finding of the jury, $1,019.90. We have not attempted to state or discuss the evidence of the plaintiff as to apparent interest of one appraiser and the umpire and the apparent attitude they showed toward the plaintiff and his interests. It is sufficient to say there is evidence enough to support most of the findings in this regard and to bring this case within the rule of former Kansas cases where awards of this kind have been set aside.
“Upon an examination of the evidence tending to show misconduct on the part of the arbitrator appointed by the defendant, his long-continued services in such business for this and other insurance companies, the great difference between the amount awarded and the actual loss as found by the court upon the trial, Ihe refusal to examine part of the goods remaining after the fire, and the attendant circumstances, it is held that a finding of the district court upon which the award was- held invalid cannot be set aside.” (Ross v. Insurance Co., 86 Kan. 145, syl. ¶ 2, 119 Pac. 366.)
“An ai'bitration and award of the loss suffered by the owner of insured property on account of a fire may be set aside or disregarded upon a showing of a refusal to consider a material portion of the property lost or damaged.” (Kirkham v. Insurance Co., 92 Kan. 941, syl. ¶ 1, 141 Pac. 1012.)
“An appraisement made under a policy of fire insurance to ascertain the amount of damage to the property caused by fire is not binding on the assured where the appraisers failgd to ascertain the damage to all the property covered by the policy and described in the contract submitting the matter to them.” (Graff v. Insurance Co., 107 Kan. 648, syl. ¶ 1, 193 Pac. 356.)
We think this case comes well within the rules announced in the cases above cited and we find no reversible error in the trial of it.
The judgment is affirmed.
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The opinion of the court was delivered by
Gilkeson, P. J. :
Both parties to this action are dissatisfied with the judgment of the trial court, and ask its reversal. "We think the judgment of the court below is correct as to the law governing the recovery in actions of this kind, and the only error we find is mathematical — the amount being too large.
The law governing corporations of this kind is found in article 17, chapter 23, General Statutes of 1889, paragraph 1426, being section 271 of said chapter, which sets forth the powers of such associations, among others, as,follows : That it may loan "money to its members on the security of United States bonds, or bonds of the state of Kansas, the stock of such association, or real estate, which loans shall be repaid in such stated periodical installments as are prescribed in the by-laws, and all contracts between such associations and their members shall be deemed valid and binding in law : Provided, That the sum of all the repayments agreed to be made by the borrower, for the whole time for which he receives his loan, shall not exceed the actual amount of money borrowed, with interest thereon at 12 per cent, per annum for the whole time'for which it was so borrowed.”
Paragraph 1427, section 272, is as follows :
“Whenever, by reason of default in the payment of loans or dues by members of such association, it becomes necessary, according to the by-laws, to bring suit on any mortgage for the purpose of collecting such loans or dues, no greater sum shall be recovered than that actually due at the time of judgment, and the amount so due may be ascertained by adding to the sum of arrears the per cent, value of all future installments designated at the rate per cent., according to the times and period of payments established by the by-laws, not inconsistent with section 1 of this act. And whenever, by the constitution or by-laws of any such association, loans shall be made or have heretofore been made to its members by the share for premiums, the amount for which judgment shall be rendered shall not be greater than the actual amount of money loaned, with interest to the time of judgment at 12 per cent, per annum, and all unpaid fines lawfully assessed against the borrower for non-payment under such by-laws, not exceeding 2 per cent, per month, less the amount paid in on such shares, with like interest from the time of payment or payments.”
The latter portion of this section unquestionably applies only to such loans as have been made to a member by the share upon premiums, and the case at bar falls within its provisions, and the amount to be recovered in this action from Mrs. Murphy is governed by its terms. It is conceded that the amount loaned Mrs. Murphy was $630. This, with 12 per cent, interest thereon, from the date of the loan to the date of the judgment, together with all fines legally assessed for non-payment, establishes and limits the amount of recovery, and she is entitled to credit for all sums paid in on her shares of stock, with interest thereon at the same rate, from the time they were paid. We should first ascertain the amount (if any )^ due the association at the time default was made, viz., July 30, 1893, as this is the amount for which suit is brought. Under the terms of the contract, the interest began on November 30, 1888, and the first instalment of interest then was due December 30, 1888. But it is admitted that she made a payment of $11.65 in November, and both parties having allowed this as a legal credit, we will do so. This amount, then, should be deducted from the actual amount loaned of $630, making the principal upon which interest- should be calculated from November 30, 1888, the date of loan, to July 30, 1893, the date of default. The interest on this loan should have been calculated on the amount actually loaned, and not on the amount .bid for. As the payments made for interest in this casé exceeded the amount of interest due at the time they were made, the interest should be calculated to the time of payment, added to the principal, and from this amount (interest and principal) the amount paid should be deducted, and the balance treated as a new capital, and so on until all the payments are accounted for. And as “the amounts paid in on the shares draw the same interest from the time of said payment or payments ” they should be treated in the same way. So, in making our computation, we have treated them in the aggregate as monthly payments of $11.65 per month; and we find the amount due on the default to be $190.14. To this amount we add the unpaid fines for August, September, October, November, and December, 1893, and January, February, March, and April, 1894, (they being all the months for which the association would have the right to charge, as the suit was commenced in May, before the fine for that month fell due, and after the commencement of the action no fines could be legally assessed,) and, at 2 per cent, per month of the monthly instalments, would be 24 cents each, amounting to $2.16, and upon the aggregate amount, viz., $192.30, interest would be charged at the rate of 12 per cent, per annum from July 30, 1893, to the date of judgment, November 26, 1894, viz, $32.42, making a total for which judgment should have been rendered of $224.72.
The plaintiffs in error complain of an overcharge of fines assessed and collected against her in the sum of $20. The court below finds that she has paid as fines the sum of $31. Upon what testimony the findings of the court or the complaint of the plaintiffs in error is based we are unable to state, as none of the testimony in this case is preserved in the record ; nor has the slightest attempt been made by the plaintiffs in error to inform us as to the amount per month of fines charged, or for what months or number of months they were charged, and we can only say, that, if the plaintiffs in error have been charged fines to exceed 2 per cent, per month of the monthly instalments, she is entitled to a credit therefor, together with interest thereon from the time they have been charged, and we base this upon the presumption that testimony was introduced upon this point, for we do not think that the learned trial judge would have made a finding unless it was sustained by evidence.
It will be noticed in our calculations that we have omitted therefrom the sum of $5 paid in October, 1888. We do not think this is a proper credit to be allowed against this loan. It was paid as dues on stock, it is true, but paid as a membership payment, and the plaintiffs in error would have been liable for it, even though she had never made this loan. This is equally true of the payment of $5 made in November, but as both parties have treated this as a legitimate credit, we have so allowed it.
The court in its calculations allowed monthly fines for each month from the date of default to the date of the rendition of the judgment, being 16 months. This we think is error. When the plaintiff below exercised its option to declare the debt due, the payment of fines unquestionably ceased, nor could it after the commencement of its.action continue legally to assess fines against the defendants below.
The judgment in this case will be modified, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
In an action commenced in the district court of Clay county by Thomas Perry, the plaintiff in error, against Anna T. Buckell, one William Stacy was summoned as garnishee. Stacy answered, and paid into the court the sum of $126, which he admitted he was owing under a contract made between him and the defendant, Buckell. Afterward,the. defendant in error, W. F. Blatch, filed an inter-plea in the case, claiming that the money was owing to him instead of to Mrs. Buckell. Upon issues joined between Perry and Blatch, the court adjudged the money garnished to belong to the latter. Of this decision and judgment Perry complains.
Tlie evidence sliows that W. F. Blatch, a non-resident of the state, was the owner of a quarter-section of land in Clay county of which Mrs. Buckell had charge. With the owner's consent, Mrs. Buckell used the land in various ways, and, at her own expense, inclosed it with a fence, with the understanding that she should be repaid therefor out of the use of the land. Thereafter she leased the land, in her own name, to William Stacy, for a cattle pasture, during the season of 1891, she agreeing to be responsible for his cattle and to supply them with salt. In consideration of the use of the pasture and said services of Mrs. Buckell, Stacy agreed to pay her the sum of $130. The evidence shows, without substantial dispute, that there was still due Mrs. Buckell, on account of the fencing, about $70, and that her services in looking after and caring for the cattle while in the pasture were a substantial part of the inducement for the consideration agreed to be paid by Stacy. On the part of the plaintiff, it was contended that Mrs. Buckell had leased the land from Blatch, and that, therefore, she was entitled to what was due on the subletting to Stacy. On the other hand, it was claimed by the interpleader, Blatch, that Mrs. Buckell acted simply as his agent in leasing the pasture, and that he, as owner and principal, was legally entitled to the money paid therefor.
The evidence is somewhat conflicting and unsatisfactory concerning the arrangement between Blatch and Mrs. Buckell, and it is not clear what their relations in fact were. But, in the view we take of the case, it is not necessary for us to determine these matters, for, if she had a lease from Blatch, the entire rent to be paid by Stacy was owing to her ; and if she was only an agent, yet she was an agent with an interest of such a character that she might, in her own name, have maintained an action upon the contract against Stacy. This is not, in any view of the facts, a debt or fund in which the defendant and Blatch are interested as partners. If it were, it would not be attachable at the suit of a creditor of one of the partners for his individual debt. (Trickett v. Moore, 34 Kan. 755.) But, conceding that there was a joint ownership of the money, each owner had an interest which was easily determinable and capable of being definitely fixed, and therefore was, in law, an interest which was certain. The garnishee, without objection, paid the money into a court having full jurisdiction of all the parties"and of the subject-matter of their controversy. Whatever interest Mrs. Buekell had at the time the garnishee was summoned was transferred to the plaintiff by the garnishment, so as to be beyond the reach of any subsequent agreement between her and Blatch. Thereafter, the only question left was the determination of how much of this garnished fund legally belonged to the defendant as against the interpleader, Blatch. What she could have legally claimed was subject to garnishment in this action. (Whitney v. Munroe, 19 Me. 42; Thorndike v. DeWolf, 6 Pick. 120; Miller v. Richardson, 1 Mo. 310; Fogleman v. Shively, 4 Ind. App. 197.)
We think the court should have found what the defendant’s interest was in the money paid in by the garnishee, and should have applied that amount on the plaintiff’s judgment, returning the balance to Blatch.
The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
This action was brought by A. J. Ream against R. Sauvain, as principal, and Benjamin Gus-tin and Ellen Gustin, as sureties, on a note executed by the defendants to the plaintiff under date of November 23,1889, for the sum of $258.92. The defendants, in defense, alleged that the only consideration for the note was the illegal promise of Ream to desist from the further prosecution of a criminal case which he had instituted against Sauvain before a justice of the peace of Smith county on a charge of embezzlement. Trial was had before the court without a jury, and a general finding made by the court in favor of the defendants, upon which judgment was rendered.
The evidence shows that, for some months prior to the date when the note was given, Sauvain was in the employ of Ream and in charge of his harness shop in said county; that on November 20, 1889, Ream made complaint, under oath, before one H. H. Reed, a justice of the peace of said county, charging the said Sauvain with unlawfully and feloniously embezzling certain goods and money, of the value of $200, the property of the complaining witness ; that on such complaint Sauvain was arrested, and gave his recognizance for his appearance before said justice on November 25, for a preliminary examination ; that after his arrest and prior to November 25, negotiations ■were had between Ream and Sauvain for a settlement of their differences, which resulted in the execution of the note in question and the dismissal of the criminal prosecution. Upon the trial of this case, the principal controversy was as to the consideration of the note, the plaintiff contending that the sole consideration was the settlement of Sauvain's civil liability for the goods alleged to have been appropriated by him, while the defendants claimed that the only consideration and inducement for the giving of the note was the promise of Ream to dismiss the criminal case, and not further to prosecute Sauvain on account of the alleged embezzlement. On the part of the defendants, there was testimony to the effect that the settlement of the civil liability did not enter into the transaction ; that, in fact, Sauvain was not indebted to Ream in any such amount; and that Ream, as the inducement for giving the note, among other things, said :
“ I won’t prosecute this case any further. I will see that the costs are paid and release you. . . . There is only two things you can do — you can sign that note, or I will send Rud (meaning Sauvain) over the road. . He said that he would dismiss the case and see that the costs were paid, and he would prosecute it no further. ... If you do n’t do that, I will send him to the penitentiary in spite of h — 1 and d — n.”
Benjamin G-ustin further testified :
“I says, ‘Jack [meaning Ream], I don’t like to sign this note at all,’ and I says, ‘I would not do it under no other consideration whatever, only to save Rud, as you say — to save him from going to the penitentiary.’ . . . My understanding all the time was, that that was to stop this criminal suit by the signature of myself and Andy, or my wife, on that note, and for no other reason.”
The plaintiff’s testimony was equally positive that he only demanded the note as payment and settlement of the actual losses sustained by him by reason of the wrongful appropriation of his property by Sauvain. Upon this conflicting testimony, the court found in favor of the contention of the defendants, and that the note was, consequently, void. This finding and conclusion were sustained by the evidence.
Plaintiff’s contention is that the decision is erroneous, even conceding the truth of the allegations of the defendants’ answer and the evidence introduced in its support. The argument of counsel for plaintiff in error, as presented in their brief, seems to be based upon the assumption that the defense was duress in the execution of the note, and they cite a large number of decisions upon the proposition that the lawful arrest and imprisonment of a person, or the threat to effect his lawful arrest, does not constitute such duress as will avoid a contract which was induced by such arrest or threat. We are not furnished with a brief for the defendants in error, and do not know what their theory of the issues to be tried may have been. We think, however, it is clear that the defense presented was not duress, but illegality of consideration. These defenses may coexist, but there is no necessary connection between them. Illegality of consideration may be successfully pleaded against one attempting to enforce an executory contract, without regard to duress or other elements of the contract, or other circumstances surrounding the parties to it. Hence, the merits of the criminal charge against Sauvain do not enter into this controversy. But, the prosecution having been instituted, the interests of the public demanded that it should be investigated, and not used in barter for the private gain of the prosecutor; and his promise or agreement to stifle the prosecution furnished no valid consideration for the note, nor will the law aid him in its collection. This is so though a part of the consideration of the note may have been the settlement of the civil liability of Sauvain ; for the entire consideration would even then be tainted by the illegal promise. Of course Ream had the right, notwithstanding the arrest and prosecution of Sauvain, to settle with him for the value of any goods taken; but the evidence tends to show, and the court has found, that he did more than that. The consideration of the note being illegal, the plaintiff’s action must fail. (Friend v. Miller, 52 Kan. 139.)
The judgment is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
The errors assigned in this action are: “(1) The court erred in sustaining the petition in error of said H. Hohenschild, plaintiff in error, in said court; (2) the court erred in rendering judgment for said Hohenschild, plaintiff in error, in said court; (3) the court erred in not rendering judgment for the said W. H. Shaffer, ¥m. Hogben, and A. W. Krause, defendants in error, in said court.” Defendant in error contends that the errors complained of in this action are not reviewable in this court. We cannot agree with counsel on this proposition. When an error is apparent by an examination of the pleadings and judgment, such an error can be reviewed in this court. (Stapleton v. Orr, 43 Kan. 170.) Where the district court, on a petition in error from a justice of the peace, reverses the judgment of the justice, it is not necessary for the aggrieved party to file a motion for a new trial in order to have the decision of the district court reviewed on petition in error. (Lyons v. Osborn, 45 Kan. 650.) If the record shows the final judgment to be erroneous, it is reviewable in an appellate court without exception. (Koehler v. Ball, 2 Kan. 160; Wilson v. Fuller, 9 id. 176.) We think this case is properly here for review.
Did the trial court err in sustaining the petition in error, and in rendering judgment for Hohenschild, plaintiff in error? This we must answer in the affirmative. The only question presented to the district court upon the petition in error was, Did the justice of the peace err in admitting testimony? The testimony admitted by the justice of the peace over the objection of plaintiff in that court shows that this note was given to Abbott & Hohensehild for a balance due them for their services as architects for making plans, etc., for the Knights of Pythias building, the property of Cydon Lodge No. 5, K. P., Salina, Kan ; that it was not a personal note of the signers, but was the note of the said lodge; that they signed it in their official capacity as trustees of said lodge ; that this was known to the' payee Abbott, and that it was intended and understood at the time it was made to be the note of the lodge ; that said Abbott was present as a member of said lodge at the meeting when the defendants, as trustees, were directed to make this note; that said Abbott wrote the note, including the words ‘Trustees of Cydon Lodge No. 5, K. P. Salina, Kan.,” and was present when it was executed and delivered.
In Kline v. Bank of Tescott, 50 Kan. 91, where the parties wrote their names on the back of the note as “Board of Directors,” Chief Justice Horton, in delivering the opinion of the court, said :
“If the parties who wrote their names upon the back of the note as directors had signed their names upon the face thereof, they could have shown by extrinsic'evidence that they were acting for the corporation only.”
If it is not clear from the face of the note whether the signers contracted on behalf of the association, or for themselves, then, as between the original parties, extrinsic evidence may be introduced to show that in fact it was the intention of all the parties, at the time of the execution of the note and its acceptance, to bind the association only, and not to make the signers liable personally. (Benham v. Smith, 53 Kan. 495.)
• “ Considerable diversity of decision, it must be admitted, is found in the reported cases where the record presents the case of a blank indorsement by a third party, made before the instrument is indorsed by the payee, and before it is delivered to take effect, the question being whether the party is to be deemed an original promisor, guarantor, or indorser. Irreconcilable conflict exists in that regard ; but there is one principle upon the subject almost universally admitted by them all, and that is, that the interpretation of the contract ought in every case to be such as will carry into effect the intention of the parties, and in most cases it is admitted that proof of the facts and circumstances which took place at the time of the transaction are admissible to aid in the interpretation of the language employed.” (Good v. Martin, 95 U. S. 90.)
We think the parties who signed this note as trustees had the right at the trial to introduce this testimony, and that it was properly admitted.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
Clark, J., concurring.
Garver, J., not sitting, having been of counsel in court below.
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The opinion of the court was delivered by
Gar ver, J.:
This was an action brought in the district court of Phillips. county by Reling J. Peterson against John C. Huston to recover damages for an alleged breach of warranty, made by the defendant to the plaintiff, upon the sale of a horse. The amended petition, upon which the case was tried, alleged that the defendant warranted that the horse was identical with one named “Red Murdock,” with a recorded number 3997 in the Clydesdale stud-book; that he was perfect in health, and a sure foal-getter. A written bill of sale and warranty was given, at the time of the sale, that the horse was “Red Murdock,” with a registered number 3997; that he had been imported by Huston, and that he was a foal-getter with proper care and handling. The plaintiff alleged that the full warranty, as made at the time of the sale, was not inserted in the writing, and was omitted therefrom by the fraud of the defendant. The horse was valued at about $1,000, the consideration given by Peterson being 80 acres of land in Phillips county. Before completing the sale Peterson saw, and had opportunity to exajnine, the horse. On the morning of July 20, 1890, having completed the purchase by delivering the deed to the land and receiving the bill of sale and warranty, he started with the horse for his home, distant about 25 miles. After going about eight miles the horse showed signs of sickness, refusing to eat or drink, and after going three or four miles further he lay down, and the nest day died.
Two trials of this case have been had. The first, resulting in a verdict for $200 in favor of the plaintiff, was set aside by the court and a new trial granted. Upon the last trial there was a verdict and judgment for the plaintiff for $500. The first trial was had on a petition which set up the written warranty, given at the time of the purchase of the horse, as the contract of warranty made by the defendant. After the new trial was granted on the application of the defendant, the plaintiff, by leave of court, filed a second amended petition, in which he relied upon a verbal warranty.
The plaintiff in error first alleges error in the ruling of the court permitting the second amended petition to be filed, it being contended that by the amendment the plaintiff was allowed to change his cause of action from one on contract to one on tort for fraud and deceit. We do not think the ruling of the court is subject to this objection. As we read the last petition, we do not understand that the pleader intended to change his case from an action on contract to an action for tort. There is still the allegation of the contract of warranty, the breach thereof, and the consequent damage. The allegation of fraud is made merely with reference to the contents of the writing, for the purpose of avoiding its legal effect. The amendment was such as the court, in its discretion, had a right to permit.
The principal contention is as to the evidence, the plaintiff in error insisting that the defendant in error failed to make out his case and that the verdict is without support in the evidence. After a careful examination of the record we think this contention must be sustained. The only evidence offered in support of the allegation of a warranty, independent of the writing, is the testimony of the plaintiff himself. He testified to conversations had during the negotiations ; that the horse was represented to be sound and a sure foal-getter; that a written warranty to that effect was to be given; that he could not read English, and that the defendant’s agent, Pendarvis, read the writing over to him before he accepted it. We do not think the evidence discloses such facts as allow the admission of evidence tending to show a parol warranty. As a written warranty was given, all previous conversation and statements of the parties, so far as intended to be warranties, must be presumed to have been included in the writing. There is no evidence whatever to sustain the allegations that the actual warranty was fraudulently omitted from the written instrument, or to show that, at the time the writing was delivered, it was intended by the parties to be other than it was. The plaintiff was accompanied by his son, and there was also present Pendarvis, his wife, and a son, from either of whom Peterson could have informed himself of the contents of the writing if he was not able to read it for himself. The undisputed evidence in the case shows that the bill of sale and warranty was read by Pendarvis to Mr. Peterson in the presence of the above-named parties. These persons were all examined as witnesses upon the trial, and by none of them, including the plaintiff, .is there any claim that Pendarvis did not correctly read the instrument. How, then, can it be said that by fraud an instrument was imposed upon Peterson different from the one he supposed he was receiving? Under these circumstances, it must be conclusively presumed that the entire contract was reduced to writing, and that all previous negotiations of the parties were embraced therein. Consequently parol testimony was not admissible for the purpose of showing that the contract was different from that evidenced by the writing. (Rodgers v. Perrault, 41 Kan. 385; Willard v. Ostrander, 46 id. 591; McMullen v. Carson, 48 id. 263; Breeding Ass’n v. Scott, 53 id. 534.)
But if the .warranty be taken in its broadest sense, as alleged by the plaintiff, as to the soundness of the horse, there is an entire failure of evidence tending to show that the horse was not sound at the time of the sale. The plaintiff himself says that the horse seemed to be all right. until they had traveled about eight miles on their way; that then, when put into a stable, the horse broke out into a severe sweat and appeared to be in great pain, showing a desire to lie down. The day is said to have been the hottest of the summer. That the horse had a severe attack of sickness is very evident, and it is reasonable to suppose it was caused by his becoming overheated, or otherwise afflicted, on the road. There is, at least, nothing tending to show any previous ailment or unsoundness of the horse. There is a like failure of evidence as to any other breaches of the contract of warranty.
The judgment will be reversed, and the case remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Gar ver, J. :
This was an action brought by the defendant in error, as plaintiff, to recover damages from the plaintiff in error, as defendant, for breach of promise of marriage. The defendant denied the making of the contract. There was a verdict and judgment in favor of the plaintiff for $2,000. Various errors are assigned for a reversal of the judgment. It is contended by the plaintiff in error that the evidence was not sufficient to show that a contract of marriage was ever entered into ; that there was entire failure to prove %ny substantial damages; that the court erred in its instructions to the jury upon the elements of damages; and that the amount of damages allowed by the jury was excessive, and given under the influence of passion and prejudice.
The first complaint is of such a nature that it can receive but little consideration in an appellate court, unless the record shows an entire want of competent evidence to sustain the verdict. We are free to admit that the evidence is not of a very satisfactory character to sustain the allegations of the'petition. The plaintiff testified to the defendant’s attentions to her for a period of five or six years, and that, in February, 1891, there was a formal engagement made for their marriage the following July; that an engagement ring was at that time presented by the defendant to her and accepted, and that thereafter she made preparations for her marriage with the defendant at the time named.- The defendant admitted his acquaintance with, the plaintiff, and, to a certain extent, his attentions to her and the giving of the ring, but emphatically denied any promise or agreement to marry, or that any such matter was seriously talked of or considered between them. Some trivial facts and circumstances were shown tending to corroborate the story of each party ; but, in the main, the case turned upon the assertions of the plaintiff and the denials of the defendant. At the time of the claimed contract the plaintiff was about 25 and the defendant about 50 years of age. We think there was sufficient testimony upon which the jury might conclude that there was a mutual agreement and understanding between the plaintiff and the defendant that they would be married in July,. 1891, or at least within a reasonable time after the agreement was made. As the trial court approved the verdict rendered on conflicting evidence, we will not disturb it. It is not necessary in this class of cases to show, by express words, the intention of the parties to contract the marriage relation. There must, of course, be an offer and an acceptance — a mutual contract entered into — but no particular form of words is essential to show such offer and acceptance. It is sufficient that the relations of the parties and the circumstances surrounding them, as shown by the evidence, were such that it might be fairly inferred by the jury that the minds of the parties met upon that proposition. (Johnson v. Leggett, 28 Kan. 590; Homan v. Earle, 53 N. Y. 267; Blackburn v. Mann, 85 Ill. 222; Thurston v. Cavenior, 8 Iowa, 155; Coil v. Wallace, 24 N. J. L. 291.)
As to the breach of the contract, there is practically no dispute. The plaintiff testified that on the return of the defendant from Oklahoma, in July, he informed her that he would not marry her. This action was immediately commenced, on July 29, 1891. It is well settled that a positive refusal to perform a contract of this kind, even if made before the time fixed for its performance, constitutes such a breach of the contract as will authorize an immediate action therefor. (Kurtz v. Frank, 76 Ind. 594; Haloway v. Griffith, 32 Iowa, 409; Burtis v. Thompson, 42 N. Y. 246.)
The principal complaint on the part of the plaintiff in error is upon the question of damages. The petition alleged the contract, the breach, the financial circumstances of the defendant, and the resulting damage to the plaintiff in the sum of $5,000. Under such a general allegation damages may be allowed for all injuries which the law presumes are the natural and necessary results of the breach of the contract. It is not necessary, in pleading, to state the formal description of damages which are implied by law. While this is an action arising out of contract, it is, as to the measure of damages, classed with torts ; and the rules applicable to the recovery of damages in an action for tort must be looked to, rather than the ordinary rules which govern an action on contract. Judged by this rule, the allegations of the petition were specific enough to authorize the recovery of all such damages as naturally and necessarily follow from the breach of such a contract. (Harrison v. Swift, 13 Allen, 144; Kelley v. Riley, 106 Mass. 339; Thorn v. Knapp, 42 N. Y. 474.) As in most actions founded in tort, so in an action for a breach of a promise of marriage, there is no rule by which damages can be accurately and definitely computed. The several matters which may properly be considered in estimating damages are ordinarily of such a nature that it would be extremely difficult, if not impossible, to attempt by direct evidence materially to aid the jury in placing a money value upon them. Being placed in possession of the facts and circumstances of the case, it must be left largely to the good judgment and intelligence of- the jury, whose province it is to say what amount should be allowed as proper compensation for the loss which the plaintiff has sustained by reason of the defendant’s failure to comply with his promise. Under the general allegation of damages, the plaintiff may recover not only an indemnity for pecuniary loss and the disappointment of her reasonable expectations of an advantageous settlement in life, but also compensation for injury to her feelings and affections and mortification which she had been made to undergo, and the harm that may have been done to her prospects in life. (Reed v. Clark, 47 Cal. 194; Royal v. Smith, 40 Iowa, 615; Grant v. Wiley, 101 Mass. 339; Bennett v. Beam, 42 Mich. 346; Fidler v. McKinley, 21 Ill. 308.)
In the case last cited it is’ said :
“In cases of this character it is almost impossible to lay down any rule by which the measure of the damages can be fixed with any degree of precision. There is no scale by which such damages can be graduated with certainty. They admit of no other test than the intelligence of the jury, governed by a sense of justice. Such injuries are accompanied by facts and circumstances affording no definite standard by which such wrongs can be measured, and, from the necessity of the case, must be judged of and appreciated by the view that may be taken of them by impartial jurors. To the jury, therefore, as a favorite tribunal, is committed the exclusive task of examining these facts and circumstances and valuing the injury and awarding compensation in the shape of damages. The law conferring upon them this power, and exacting of them the performance of the trust favors the presumption that they are governed by pure motives. It therefore makes every allowance for the difference of disposition, capacity, views, and even frailties, in cident to the examination of such matters of fact, when no criterion can be supplied; and not till the result of the deliberation of the jury shocks the understanding, and leaves no doubt of their prejudice or passion, will courts find themselves compelled to interpose. ' The moral worth of the parties, their social position and standing in the community, and a great variety of other circumstances and facts, must necessarily be, and generally are, considered by the jury in estimating the damages in this and all other actions sounding in damages. And in cases of this nature the jury must be left to exercise a large discretion in awarding damages, and courts have rarely felt themselves called upon to disturb their verdicts, and then only where it is apparent from the great disproportion between the offense and the finding that , the jury acted under prejudice, partiality, or gross ignorance or disregard of their duty.”
A marriage engagement is not a mere matter of sentiment, and may properly be considered as in one sense a business transaction entered into with a view, in part at least, to pecuniary advantage. Hence, it is proper in süch a case to prove the financial circumstances of the defendant as tending to. show the plaintiff's reasonable expectations of worldly advantage resulting from the intended marriage. (Collins v. Mack, 31 Ark. 685; Reed v. Clark, supra; Wilbur v. Johnson, 58 Mo. 600; Royal v. Smith, supra; Bennett v. Beam, supra.) The evidence tended to show that the defendant, a bachelor, with no one dependent upon him for support, was worth $9,000 or $10,000. We do not think it can be said, under the circumstances of this case, that the verdict for $2,000 must have been given by reason, of influences other than a fair consideration of the evidence. The instructions of the court on the subject of damages, we think, were within the rules of law applicable to this case and the issues fully and fairly submitted to the jury. Even if the instructions were subject to the criticism made upon them, any error in that respect would be unavailing to the plaintiff in error, for the reason that no exceptions thereto were saved.
Judgment will be affirmed.
AH'the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
This was an action, commenced November 7, 1891, upon a warrant issued in favor of J. S. Walker by the city of Frankfort, under date of January 1, 1883, for the sum of $94.60, payable January 1, 1884, with interest at the rate of 10 per cent, per annum. A demurrer to the petition was interposed by the defendant, and sustained by the trial court, on the ground that the petition showed upon its face that the action was barred by the statute of limitations. Did the court err in so ruling? This is the only question in this court.
The city warrant which is the basis of this action was issued in payment for work done by the payee, J. S. Walker, in the construction, in said city, of a sidewalk which was built in front of lot 20, block 67, pursuant to a city ordinance duly enacted for that purpose. It is conceded that the warrant was, when issued, a valid and binding obligation of the city; but the plaintiff in error contends that a cause of action did not accrue thereon - against the city until a demand for payment had been made. We think it is -well settled in this state that such warrant created an absolute liability against the city, upon which an action could be maintained after the time named for its payment, without regard to what the city may have done with reference to making or collecting an assessment upon the lot improved. (City of Wyandotte v. Zeitz, 21 Kan. 649; City of Burrton v. Savings Bank, 28 id. 390; City of Atchison v. Leu, 48 id. 138.)
We think it is also clear that an action on such warrant would ordinarily be barred in five years after its maturity. (Walnut Township v. Jordan, 38 Kan. 562.) To avoid the effect of the statute of limitations, the plaintiff claimed, and so alleged in his petition, that the city had made a written acknowledgment of its liability within five years next preceding the commencement of the action, and thus removed the bar of the statute. In support of this claim, there is attached to the petition, as a part thereof, a copy of a resolution passed by the city council of said city, in 1889, for the purpose of making an assessment upon said lot 20, to provide means to reimburse the city for the construction of said sidewalk. The resolution, so far as pertinent to this case, recited:
“Whereas, The sidewalk tax levied on the 7th day of July, A. L>. 1884, against lot 20, in block 67, in the city of Frankfort, Kan., for the building of a sidewalk along the said lot, as by ordinance 39 provided, has not been paid; and whereas, there was, on the 1st day of January, A. D. 1883, due against such lot for the building of such sidewalk, as aforesaid, the sum of $94.60 ; and whereas, on such last-mentioned date, a voucher for such assessment was duly issued to J. S. Walker in payment for such walk by the said city of Frankfort, and bears interest at the rate of 10 per cent, per annum from date ; and whereas, there is now due upon such sidewalk-tax assessment the sum of $150; and whereas, J. J. Barber, city clerk for said city, neglected to report such assessment according to law : therefore, be it resolved, that an assessment is hereby levied against said lot 20, in block 67, to pay for said sidewalk, . .
and the clerk is ordered to report the assessment to the county clerk.”
We do not think this resolution is such an acknowledgment as the statute contemplates. There are no words which can be construed to be an acknowledgment of an existing liability to the holder of this warrant. Under the statute, the writing must not only be an express acknowledgment of a subsisting liability, (Hanson v. Towle, 19 Kan. 273; Elder v. Dyer, 26 id. 604,) but it must be an acknowledgment made to the creditor, or to some one representing him. (Sibert v. Wilder, 16 Kan. 176; Schmucker v. Sibert, 18 id. 104; Clawson v. McCune’s, Adm’r, 20 id. 337.) This resolu tion was adopted without any apparent regard for the holder of the warrant; its sole object and purpose was to make an assessment on the lot in front of which the sidewalk had been built. So far as the resolution itself indicates, the warrant may have.been paid, and not have been at that time an outstanding obligation against the city.
The demurrer having been properly sustained, the judgment is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Johnson, P. J. :
On the 2d day of May, 1887, Oliver Marsh and Clarissa A. Marsh made their promissory note, payable to R. H. Lockwood and J. W. Clendenin, and to secure the payment of this note and the money to become due thereon they executed and delivered to the payee therein named a mortgage on land situated in Ford county, Kansas. The conditions of the note and mortgage having been broken, the payees of the note and mortgage, on the 9th day of February, 1889, commenced suit in the district court of Ford county, Kansas, to recover judgment upon this note and for a decree of foreclosure of the mortgage, and in the suit a number of persons other than the payers and mortgagors were made defendants, for the reason, as stated in the petition of the plaintiffs below, that since the execution of said mortgage said persons had acquired some interest in or lien upon the mortgaged premises, which interest and lien were inferior and subordinate to and subject to the lien of the plaintiffs. Upon the filing of the petition and precipe, a summons was issued by the clerk of said court, directed to the sheriff of said county, and all of said defendants were duly served with summons by the sheriff except Wiler, Ackerland & Co., Herman Mier, Mrs. S. H. Overhuls, H. M. Weaver, E. 0. Jones, and H. H. Kimbrel. On the 9th day of July, 1889, the plaintiffs, by their attorney, made and filed an affidavit of non-residency of defend ants Wiler, Ackerland & Co., Herman Mier, Mrs. S. H. Overboils, E. 0. Jones, H. H. Kimbrel, and H. M. Weaver, setting forth that each of .them is a non-resident of the state of Kansas, that service of a summons cannot be made on said defendants within the state of Kansas, and that plaintiffs, with due diligence, are not able to make service upon them or either of them within the said state of Kansas. Said affidavit states that the action was for the foreclosure of a mortgage on lands in Ford county, Kansas, describing the land ; and afterward, to wit, on the 11th day of July, 1889, the plaintiffs below caused a notice of publication to be published for three consecutive weeks in a .newspaper printed and published in Ford county, and of general circulation therein, as required by section 74 of the code of civil procedure, and made due proof of such publication before’ the court. On. the 6th day August, 1889, the defendants E. 0. Jones, H. H. Kimbrel, and H. M. Weaver, by their attorneys, appeared specially in court, and filed a motion to set aside and hold for naught the publication summons in this case, for the reason that the same does not describe the mortgage on which the plaintiffs’ cause of action is based, as required by law, and does not state the nature of the judgment to be rendered against these defendants. At the January term, 1890, of said court, this motion was sustained by the court, and the publication notice set aside and held for naught; and thereafter, on the 6th day of March, 1890, the plaintiffs, without filing another affidavit, thereafter caused the service to be made on said defendants by publication for three consecutive weeks in a newspaper printed and published in Ford county, Kansas, and of general circulation therein, as required by section 74 o’f the code of civil procedure, and made proof to the court of such publication; and the defendants H. M. Weaver, E. 0. Jones, and H. H. Kimbrel, by their attorneys, again appeared specially for the purpose of a motion only, and moved the court to set aside and hol'd for naught the publication service of summons, for the reason that no affidavit for service by publication was made by any one and filed therein for said service by publication on these defendants; that the affidavit for publication service on these defendants on which said service was based was made on July 9, 1889, about eight months before said service by publication was made. On application of the plaintiffs, the court permitted them to make and file an amendment or supplement to their original affidavit for pmblication, to which ruling of the court these defendants, by their attorneys, excepted, and thereupon plaintiffs filed an amended or supplemental affidavit stating the following facts.
“B. F. Milton on his oath says, that he is an attorney for plaintiffs ; that as such attorney he made the within affidavit, dated July 9, 1889 ; that he now amends said affidavit so that the same shall stand and include the following additional statement: Affiant says the facts as to non-residence of the defendants Wiler, Ackerland & Co., Herman Mier, Mrs. S. H. Overhuls, H. M. Weaver, E. 0. Jones and H. H. Kim-: brel were true from said date, July 9, 1889, up to and on said March 6, 1890, when a new service by publication was made, and that at no date during the time intervening were plaintiffs able, with due diligence, to make service of summons upon said defendants personally within the state of Kansas, for that said defendants were at and between said dates non-residents of said state of Kansas. All other allegations of the within affidavit are hereby referred to and made a p>art hereof, and the same continued to be true from the date as above stated up to and on March 6, 1890.”
The motion of defendants to set aside and hold for naught the publication service was overruled by the court, and defendants duly excepted. Afterward, at the September, 1890, term of the court, judgment was rendered upon said note against Oliver Marsh and Clarissa A. Marsh for the amount due as principal and interest thereon, and a decree of foreclosure of such mortgage against all of the defendants named in the petition, the court making the following findings :
“That said defendants, Oliver Marsh, Clarissa A. Marsh, PI. M. Weaver, E. 0. Jones, H. H. Kimbrel, J. H. Crawford, Lewis Wiler, Isaac Wiler, William Ackerland, Max Ackerland, and E. A. Wiler, doing business under the firm name of Wiler, Ackerland & Co., George Ingleheart, Robert Winnie, and John A. Johnson, doing business as Ingleheart, Winnie & Co., J. H. Crawford, Peter Smith, Herman Mier, M. V. Markley, Mrs. S. H. Overhuls, J. S. Marcus, Steven Field, as assignee of 0. Marsh & Sons, were duly summoned to appear in this action. And the court further finds, that said plaintiffs have a lien on the real property in said petition described,, by virtue of the mortgage in said petition set out, to secure the payment of said indebtedness, subject, however, to the lien of-dollars described in said petition.”
At the same term of court at which the decree was taken, the defendants H. M. Weaver, E. 0. Jones and H. H. Kimbrel filed their motion to set aside the judgment of foreclosure rendered against them, for the reason that it is void for want of jurisdiction over them, which motion was overruled by the court, and these defendants duly excepted, and the court allowed them 90 days to make and serve a case for the supreme court. Case was made, signed and settled and filed with petition in error in the supreme court, and afterward duly certified to this court by order of the supreme court.
The only error complained of by plaintiffs in error is that the court erred in permitting plaintiffs below to amend their affidavit for publication notice, and rendering judgment against these defendants upon such service. The original affidavit, filed July 9,1889, contained all the facts that were required under section 73 of the code of civil procedure, and was in every way sufficient to authorize the service of summons on defendants by publication ; and the publication notice based on this affidavit, being set aside because it did not comply with the requirements of section 74 of the code of civil procedure, left the affidavit for publication just as though no attempt to give notice by publication had been had, and the plaintiffs could proceed and give another notice by publication on this affidavit, as it had not spent its force nor was not void, and could properly be the basis of another publication service; and when the publication notice had been made based on this affidavit, any defect which was found to exist in the affidavit could be cured by amendment. (Gen. Stat. 1889, ch. 80, § 139.) In Pierce v. Butters, 21 Kan. 128, Valentine, J., speaking for the court, says :
“After this case was brought to the supreme court, the defendants in error, plaintiffs below, discovered the said defects and error in their case, and with due notice to the adverse party, and .... with leave of the court below, amended the defective and erroneous proceedings in the following particulars to wit: They amended the first affidavit by filing a new and amended affidavit, stating and showing that at the time of the commencement of this suit all of the defendants were non-residents of the state, and that service of summons could not be made upon any of them within this state, and that the action was and is one to foreclose a mortgage, etc. This amended affidavit was sufficient.....Now, with these amendments, we tliink the judgment of the court below ought to be affirmed.”
In the case of Harrison v. Beard, 30 Kan. 532, the supreme court says:
“While the affidavit was thus defective and insufficient it was not wholly void; therefore, as the amended affidavit was positive and sufficient, the court erred in not permitting the affidavit for publication to be amended.”
There being no error in the proceedings of the district court, the judgment is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J.:
The vital question presented to this court is as to whether or not the defendant in error was the lawful wife of Lorenzo D. Conn at the time of his death. The first contention of plaintiffs in error is, that the court did not acquire jurisdiction over the defendant in the divorce suit, and that because of that fact the decree that was entered divorcing the plaintiff from George P. Curtis and the subsequent marriage of the plaintiff herein to the said Lorenzo D. Conn were absolute nullities. The findings of fact, however, do not support this contention of the plaintiffs in error. The fact that the court found that neither the files and, papers of the case nor the records of the court nor the evidence upon the trial show that an affidavit was made and filed that the residence of Curtis was unknown to the plaintiff, and could not be ascertained by any means within her control, raises the presumption that such affidavit was not made and filed; but this presumption, and the finding of fact concerning the envelope addressed to George P. Curtis and its contents, throw no light upon the question presented. These findings do not affirmatively establish the fact that a copy of the petition, with a copy of the publication notice attached thereto, was not within three days after the first pub lication was made inclosed in an envelope addressed to the defendant at his place of residence, postage paid, and deposited in the nearest post-office, as required by the statute to complete the service by publication, in the absence of the making and filing of an affidavit that such residence is unknown to the plaintiff, and cannot be ascertained by any means within her control. The plaintiffs in error alleged in their answer that the decree of divorce was void for want of jurisdiction of the court over the defendant, George P. Curtis, and the burden of proof to establish that allegation was upon them ; and, in the absence of a finding of a want of jurisdiction, this court must presume that that allegation was not supported by the evidence introduced upon the trial, especially as it appears that at the hearing of the divorce suit the court found that it had acquired such jurisdiction. True, there are attached to the findings of the court certain exhibits which are probably copies of certain documentary evidence introduced upon the trial, but, as the evidence cannot be brought upon the record in this manner, the exhibits must be wholly ignored; and the evidence not having been preserved in the record, this court cannot say that the trial court erred in its findings of fact.
As it must be presumed from the record that the plaintiff below was lawfully divorced from her husband on November 18, 1887, the remaining question to be determined is as to whether or not the marriage of the defendant in error to Lorenzo D. Conn 16 days after the decree of divorce was entered was valid? The statute in force at the time the decree was entered, as well as at the time of the marriage of the defendant in error to Lorenzo D. Conn, reads as follows:
“A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other ; and no proceeding for reversing or' vacating the judgment or decree divorcing said parties shall be commenced unless within six months after the rendition of said judgment or decree, and during said six months and the pendency of said proceeding for reversing or vacating said judgment or decree, it shall be unlawful for either of said parties to marry, and any person so marrying shall be deemed guilty of bigamy : Provided, Such decree shall be final; and no proceedings in error to the supreme court shall be allowed or taken unless a notice of an intention to prosecute such proceeding in error be given in open court and noted on the journal of the court within three days after the entry of the decree or judgment, and the petition in error and transcript be filed in the supreme court within three months after the rendition of such judgment or decree.” (Laws of 1881, ch. 126,. §10
In this state a marriage contract is to be considered as a civil contract. Paragraph 3739, General Statutes of 1889, prohibits certain persons thérein named from entering into the marriage relation with each other, and declares any marriages prohibited by that paragraph to be absolutely void; and the paragraph following subjects the parties who contract marriage contrary to the provisions of said paragraph 3739 to punishment by fine and imprisonment. That statute, however, has no application to the facts in this case. The statute under construction provides that a decree of divorce shall operate as a dissolution of the marriage contract, and shall be final, unless a notice of an intention to prosecute proceedings in error for reversing or vacating the decree shall be given in open court and noted on the journal of the court within three days after the entry of the decree, to be followed by. the filing of the petition in' error and transcript in the supreme court within ,three months after, the rendition of such decree. The record shows that no such notice was ever given, nor were any such proceedings in error ever commenced, although nearly three "years had elapsed when this action was tried. We think, under the findings of fact, the presumption is that the plaintiff, within the time limited and in the manner required by law, sent the defendant, .Curtis,’ a copy of the petition "and .publication notice, and this; coupled with the finding as to the" notice" by publication, operated to give the court jurisdiction, and as no notice of intention to prosecute .proceedings in error was given in open court and noted on the journal of the court within three days after the entry of the decree, the decree so entered then becam'e final and the parties thereto were ho longer husband and wife.
Our attention has been called to the case of Wilhite v. Wilhite, 41 Kan. 154, in support of the contention that the marriage of plaintiff to Lorenzo E>. Conn before the expiration of six months from the rendition of the decree was absolutely void. The statutes of Oregon declared that the decree of divorce should have the'effect to terminate the marriage, except that neither party should be capable of contracting marriage "with a third person until the time limited in" which" an appeal could be taken had expired ; and the court held that under that law a decree of' divorce does not absolutely terminate the "marriage relation nor entirely free the" parties from its obligation and liabilities until" the expiration "of the time allowed in which to take an appeal. And in the case of Smith v. Fife, 30 Pac. Rep. (Wash.) 1059, cited by counsel, the statute of'Washington, which " contains" a provision that neither party should be capablé of contracting marriage with a third person until the period in which an appeal may he taken under the provisions of the civil-practice act had expired, received a similar construction. It will be observed that the laws of both of these states, unlike section 1, chapter 126, Laws of Kansas, 1881, make the parties to the divorce proceedings incapable of- contracting marriage within the time limited for taking an appeal; while our statute simply declares that it shall be unlawful for either party to marry within six months after the decree is entered. It does not in terms pronounce them incapable of entering into the marriage relation within that period, nor does it declare void a marriage solemnized in violation of the prohibition of the statute., Our supreme court, in the case of The State v. Walker, 36 Kan. 297, recognized this distinction between a statutory prohibition and a declaration of incapacity to contract. In that case it is held that “punishment may be inflicted upon those who enter the marriage relation in disregard of the prohibited statutory requirements, without rendering the marriage itself void” ; and on page 303 It is said that by the terms of the marriage act marriage is declared to be a civil contract, and that, in the absence of all civil or statutory regulations, the mutual present assent, to immediate -marriage of persons capable of assuming that relation constitutes a marriage at common law, and its validity will be Sustained unless some statute expressly declares it to be void. In Stevenson v. Gray, 17 B. Mon. 193, Chief Justice Marshall, in construing the Kentucky statute which prohibited a -marriage between a nephew and his uncle’s wife, said:
“ This is not a case of ordinary contract; and though it be regarded as prohibited under the penalty, it was not absolutely void, because it was not so declared by the statute ; and it is not now even voidable, because the statute does not provide for nor intend its being avoided after the death of one of the parties ; and being now to be regarded' and treated as a valid marriage, . . . it is also to be regarded as having all the consequences of a valid marriage, . . . and as therefore entitling the surviving husband to all the rights of a lawful husband in the real and personal estate of his deceased wife.”
In 1 Bishop on Marriage and Divorce, the following rules are laid down :
Sec. 283. “In considering whether or not a provision is to be deemed of the one class or the other [mandatory or directory] , not only its words but the nature of the subject should be taken into account. Marriage existed before statutes ; it is of natural right; it is favored by the law. Hence, in reason, any commands which a statute may give concerning its solemnization should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void what has been done in disregard thereof. Consequently, the doctrine has become established in authority that a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.”
Sec. 286. . . . “ If marriage were an ordinary contract, and if it were executory only, not executed, the rule of interpretation under consideration would not apply. But, viewed as’ a contract, it is, as we have seen, executed. And the common rule in executed contracts of the ordinary sort is, that what has been done contrary to the commands of law is valid, and not liable to be avoided.”
Sec. 304. “With the dissolution” [by a divorce from the bond of matrimony] “the obligations arising from the marriage are completely discharged, and the parties stand in the same position as though such marriage had never been contracted. . . . Upon such a divorce, the status of marriage is necessarily taken from both parties ; so that, as one of the consequences, both are at liberty to form new alliances.”
Sec. 306a. "If, after the rendition of a divorce sentence” [which had the effect of authorizing the parties to remarry], "a statute should be passed forbidding the divorced person to contract a new marriage, it would subject him to indictment on violating it. But, ... it could not be carried by interpretation so far as to make the marriage null, unless it also contained an express clause of nullity.”
The statutes of Georgia prohibit one through whose improper or criminal conduct a divorce has been granted from marrying during the life of the person from whom he has been divorced. In construing this statute, in Park v. Barron, 20 Ga. 702, the court held that by the divorce the marriage was totally dissolved, and that while a former husband would subject himself to the pains and penalties enacted against bigamy should he contract marriage a second time during the life of the woman from whom he had been divorced, yet as he was of full age, and able to contract, and as the subsequent unlawful marriage was not declared by the statute to be void, it could not be so held by the court; and that a public policy which looks to the protection of the innocent and unoffending, to the peace of families and the welfare of society, would forbid the inference of a purpose on the part of the legislature, which they have not expressed, that the marriage of a party against the prohibition of the statute should be void.
We think that as the decree of divorce entered on November 18, 1887, became final three days thereafter, because of the failure to give notice in open court of an intention to prosecute proceedings in error, and as the statute contained no clause of nullity regarding a subsequent marriage, nor declared the parties incapable of contracting marriage within the period of six months from the date of the decree, the marriage of plaintiff below to Lorenzo D. Conn, on December 4, 1887, was valid, although she might be prosecuted for consummating such marriage in violation of the statute. This construction seems to be in accord with the views of the legislature, when, in 1889, the law was amended so as to make absolutely void a marriage by either party to a divorce suit before the expiration of six months from the rendition of the decree, and during the pendency of proceedings in error. As the defendant in error was the wife of said Lorenzo D. Conn at the time of his death, it was proper that the real estate of which the latter died seized should be partitioned among the parties to this suit in the manner directed by the court, and the judgment and decree will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Johnson, P. J. :
Andrew Prince brought suit before a justice of the peace of Ford county, Kansas, to recover from Benjamin Ferguson the sum of $166 for work and labor. The defendant filed no answer or bill of particulars, and none was demanded by the plaintiff. Upon the trial, judgment was rendered for the plaintiff below, and the case'was taken to the district court by defendant below on appeal, and the case was tried in the district court without a jury, and, after the plaintiff below had submitted his evidence to prove the statement in his bill of particulars and rested his case, the defendant- below stated in open court that -he would submit evidence to prove two defenses : (1) That he would offer to prove that prior to the commencement'of this action the plaintiff and defendant met, together with three of their neighbors as arbitrators, and had by agreement settled all the differences between them, including the claim sued on in this action, up to date ; that by such settlement the plaintiff was found to be indebted to him in the sum of $24 ; (2) that defendant would offer evidence to show set-offs and counter-claims in his favor against the plaintiff, which would amount to more than the amount claimed by plaintiff’s bill of particulars. The plaintiff below then made a motion in open court that defendant below be required to elect upon which one of the defenses he would offer proof, and the court sustained the motion and decided that the two defenses were inconsistent, and required the defendant to elect upon which defense he would proceed. The defendant excepted to this decision of the court, and thereupon he,elected to stand on the defense of settlement ; and after defendant below submitted his evi dence in support of the defense of settlement, he again offered to submit evidence to prove set-off and counterclaim, which he claimed in the aggregate would exceed the amount claimed by plaintiff in his 'bill of particulars. To the offer the plaintiff below objected, and the court sustained the objection, and defendant below excepted. The defendant below then rested his defense, and the plaintiff below submitted rebutting testimony and rested, and upon all th'e evidence submitted the court found for the plaintiff below, and rendered a-judgment in his favor for the amount found due.
The record presents but one question for the consideration of this court, and that is, whether the court erred in deciding that the two defenses offered were inconsistent, and whether inconsistent defenses are admissible. Section 71, chapter 81, General Statutes of 1889 (¶4921), reads:
“In all cases before a justice, the plaintiff, his agent or attorney, shall file with such justice a bill of particulars of his demand, and the defendant, if required by the plaintiff, his agent or attorney, shall file a like bill of particulars he may claim as a set-off; and the evidence on the trial shall be confined to the items set forth in said bill.”
Section 122, chapter 81, General Statutes of 1889 (¶4974), provides that upon appeal
‘ ‘ the case shall be tried de novo in the district court upon the original papers on which the cause was tried before the justice, unless the appellate court, in the furtherance of justice, allow amended pleadings to be made or new pleadings to be filed.”
In the case of Wagstaff v. Challiss, 29 Kan. 506, the supreme court in its opinion says:
“If a plaintiff, in an action before a justice of the peace, desires to know in advance whether the de fendant claims a set-off, and the items thereof, the defendant,1 if required by him, shall file a bill of particulars — not otherwise. None is required by said section 71, before the justice, unless demanded by the plaintiff. If a plaintiff does not require the defendant to file any bill of particulars or other pleading before the justice, such defendant may prove on the hearing before the justice any defense which he may have, without any pleading whatever. On appeal to the district court, the parties lose no rights and gain none. Each party, without filing new pleadings, may prove finy cause of action or defense which he might have proved before the justice.-”
When defendant below stated in open court that he would offer evidence to support two separate defenses, did that amount to the same thing in effect as though he had set up the two defenses in an answer or bill of particulars? We think it did — that the defendant then stood in the same situation as though he had set up the two defenses in a written pleading ; and the same rule in relation to the evidence thereunder must be applied as though the statement were contained in a pleading. This being so, then, under the liberality of our code, can the defendant be permitted to interpose inconsistent defenses to an action in a justice’s court? Section 94, chapter 80, General Statutes of 1889 (¶ 4177), reads:
“The answer shall contain:' First,-A general or specific denial of each material allegation of the petition controverted by the defendant. . . . The defendant may set forth, in his answer, as many grounds of defense, counter-claim, set-off, and for relief, as he may have, whether they be such as have been heretofore denominated, legal, or equitable, or both. Each must be separately stated and numbered, and they must refer, in an intelligible manner, to the causes of action which they are intended to answer.”
In the case of Butler v. Kaulback, 8 Kan. 672, Mr. Justice Valentine, delivering the opinion of the court, says :
“In the nature of things a party cannot have inconsistent defenses. It is impossible that a thing may be true and untrue at the same time. For this reason parties are not allowed to set up inconsistent defenses, for such defenses carry falsehood upon their face. Therefore, whenever a defendant admits anything in his answer, it is right to presume that the admission is intended to modify and control anything else that may be found in the answer'in apparent conflict therewith.”
In the case of Wright v. Bacheller, 16 Kan. 267, Mr. Justice Valentine, delivering the opinion, says :
“But in verifying the first defense she siuore 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 he true that she executed the mortgage under duress which she never executed. The setting up of inconsistent defenses like these should never be encouraged.”
Bliss, in his work on Code Pleading, section 342, says :
“Following the liberal policy of the law, as first shown in the statute of Anne, the codes authorize the defendant to make as many defenses as he may have, and the most important question that hence arises pertaining to its extent — whether the permission is so general as to relieve the defendant from the obligation to tell the truth, so general as to authorize him to make inconsistent defenses, and of such a nature that some must necessarily be untrue. To aid in the solution of this question, it is well to consider the rule in equity practice from which so much has been borrowed. Daniell thus briefly states it: ‘Although a defendant may be permitted to set up, by Ms answer, several .defenses as the consequence of the same state of facts, or of facts which are consistent with each other, a defendant cannot insist upon two defenses which are inconsistent with each other, or are the consequence of inconsistent facts. And, in the application of this rule, it makes no difference whether the inconsistent defenses are each substantially relied upon, or are set up in the alternative ; that answer is bad which either contains inconsistent defenses or an alternative of inconsistent defenses.’ ”
In the case of Auld v. Butcher, 2 Kan. 159, Cobb, C. J., delivering the opinion of the court, says :
"Suppose the defendant, together with the answer filed by him, had filed an additional answer setting up the three years’ limitation as a bar to the partnership account? The one would have been in irreconcilable antagonism with the other. By one answer he sets up a partnership account upon which he alleges there is a large balance due to him, and prays the court to take an account of the partnership business and give him a judgment for the balance in his favor. By the other he declares in the same breath, that the whole partnership account is barred by the statute of limitations, and no judgment can be rendered on it. In such case, the court, on motion, would compel the defendant to elect which answer he would stand upon, and strike the other from the record. . . . But surely the defense attempted in this case is not less.inconsistent with the defendant’s answer than if it had been placed upon the record with it.”
Were the two defenses which the defendant below proposed to prove inconsistent defenses? If the first one was true, was the second one necessarily false? If the plaintiff and defendant had met with three of their neighbors and made a settlement of all matters between them up to the date of the commencement of the action, and a balance had been found due the de fenclant below, it would be inconsistent to say that there were then existing unsettled differences between them that could form either a set-off or a counterclaim. We think the court ruled correctly on the motion to require the defendant below to elect upon which one of the inconsistent defenses, stated by him, he would proceed to submit his evidence. We do not think the court erred in sustaining the objection of the plaintiff below to defendant’s offer to submit evidence to prove a counter-claim or set-off after defendant had elected to rely upon his defense of a settlement. After a careful examination of this case, we do not find any error committed by the distinct court upon the trial.
The judgment of the district court is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Fromme, J.:
Thomas O. Kelly appeals from a conviction for the theft of over $50.00 by threat (K. S. A. 1973 Supp. 21-3701 [c]). He attacks the conviction on the sole ground that the prosecution violated his constitutional right of due process by withholding evidence during the trial.
A brief summary of facts will be sufficient for the purposes of this appeal. James Ruppelius was a truck driver, a resident of Rochester, Minnesota. He parked his truck at the “Slcelly Truck Shop” on the west edge of Topeka, Kansas. It was after 1:30 a. m. on September 18, 1972, when he arrived. While browsing through some books in a bookstand he was approached by two women who invited him to a party. The two women provided the transportation. The car was driven by the defendant. They arrived at a house at 1710 Fillmore Street. Ruppelius testified that he stayed in the house approximately fifteen minutes, that no party was in progress and that he then accepted an offer by one of the women to return him to the truck stop. On the trip back he was accompanied by the defendant and the two women plus another man whom he did not know. His companions proceeded to drive him into the country to a place near the Blackburn Nursery. They stopped the car, took approximately $125.00 from his person by threat and then drove off, leaving him in the middle of the road. Ruppelius made his way on foot to a telephone, called the police and gave them a description of the car and the occupants. The car was picked up by the police at 3:00 a. m. that same morning. The defendant was driving and he was accompanied by a man and the two women.
The defendant and the two women were charged and tried together and each had separate counsel. Ruppelius testified for the prosecution and was subjected to a searching cross-examination by all three defense counsel. The cross-examination was directed toward establishing that Ruppelius accompanied the women to 1710 Fillmore to engage in sexual relations. While being cross-examined Ruppelius repeatedly and categorically denied having sexual relations with the women.
After Ruppelius testified at the trial, he was excused from further attendance so he might return to his home in Minnesota. Thereafter the prosecutor learned from the investigating officers that Ruppelius had previously admitted to having sexual intercourse. It is not clear from the record whether this admission was in the form of oral or written statements, but it is agreed the prosecutor had no knowledge of the prior inconsistent statements until after Ruppelius had been excused from further attendance at the trial.
On learning of the inconsistency the prosecutor put the investigating officers on the witness stand and they testified fully as to the prior inconsistent statements. Thereafter, the defense put Leonard Keeling on the stand and he testified he was present at 1710 Fillmore Street when Ruppelius and the women arrived. He further testified that Ruppelius spent a half hour in the bedroom with one of the women before leaving the premises.
The defendant was convicted. On a motion for new trial he argued that he was denied due process of law because the prosecution knowingly used perjured testimony on a material issue and because the prosecution failed to make timely disclosure of the prior inconsistent statements. The trial court denied the motion and found that the prosecution did not withhold or suppress any evidence. It further found that the defendant’s conviction did not rest on perjured testimony. This appeal followed.
Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence the evidence withheld by the prosecution must be clearly and unquestionably exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant. (State v. Hill, 211 Kan. 287, Syl. ¶¶ 2, 3, 507 P. 2d 342.) This rule which was recognized in Hill appears to be an outgrowth of several federal decisions which we will examine in order to evaluate the present contention of the defendant.
In Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791, 55 S. Ct. 340, reh. den. 294 U. S. 732, 79 L. Ed. 1261, 55 S. Ct. 511, it was held that a conviction which is obtained by the use of perjured testimony by the prosecutor violates the constitutional requirement of due process and justifies the granting of a new trial. The testimony withheld or suppressed by the prosecution in Mooney would have been material and favorable to the defense because it would have tended to overcome the unfavorable perjured testimony.
The rule announced in Mooney was clarified somewhat in Pyle v. Kansas, 317 U. S. 213, 87 L. Ed. 214, 63 S. Ct. 177, where it is stated:
“. . . Petitioner’s papers are inexpertly drawn but they do set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution, and, if proven, would entitle petitioner tO' release from his present custody. . . .” (317 U. S. at p. 215. Emphasis supplied.)
Thereafter the high court in Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194, expanded the previous rule by recognizing that even a negligent or passive failure to disclose material evidence favorable to the defense may be sufficient to justify a new trial. In Brady the defendant’s attorney requested permission to examine extra-judicial statements made by a co-defendant. The request was made prior to trial. Several written statements were provided by the prosecution but one, which indicated that defendant merely played a passive role in the perpetration of the crime, was overlooked until after conviction. The high court held:
“. . . [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.” (373 U. S. at p. 87.)
The language "upon request” in the above quote has led to some confusion. It has been argued that a request for information is a condition precedent to the prosecution s duty to supply exculpatory evidence. Courts, however, have generally held that a duty to disclose exculpatory evidence to the defense exists even where no request has been made. (See United States v. Wilkins, 326 F. 2d 135 [2nd Cir. 1964]; United States v. Hibler, 463 F. 2d 455 [9th Cir. [1972]; Simms v. Cupp, 354 F. Supp. 698 [D. Or. 1972].)
Rules developed in Mooney, Pyle and Brady were further clarified in United States v. Keogh, 391 F. 2d 138, 34 A. L. R. 3d 1 (2nd Cir. 1968). In Keogh the court categorized the cases involving suppression of evidence into three classifications: (1) where there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could not have escaped the prosecutors attention; (2) where there is a deliberate refusal to honor a request for evidence where the evidence is material to guilt or punishment, irrespective of the prosecutor’s good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that it was so material that the defense could have put the evidence to significant use.
The court stated in Keogh that in the third classification the evidence withheld must have a high degree of materiality relating to a defendant’s guilt or punishment if the conviction is to be found constitutionally infirm. In Keogh, speaking of this third classification, the court said:
". . . While we do not dispute that relief may sometimes be granted even in such cases, the standard of materiality must be considerably higher. . . . Deliberate prosecutorial misconduct is presumably infrequent; to invalidate convictions in the few cases where this is proved, even on a fairly low showing of materiality, will have a relatively small impact on the desired finality of judgments and will deter conduct undermining the integrity of the judicial system. The request cases also stand on a special footing; the prosecu tion knows of the defense’s interest and, if it has failed to honor this even in good faith, it has only itself to blame. Failure to appreciate the use to which the defense could-place evidence in the prosecution’s hands, or forgetfulness that it exists when a development in the trial has given it a new importance, are quite different. Since this must happen to the most scrupulous prosecutors and the issue of deterrence scarcely arises, the problems of the courts and the wider interests of society unite to require a substantially higher probability that disclosure of the evidence to the defense would have altered the result. . . .” (391 F. 2d at pp. 147, 148.)
This subject is futher covered in the annotation, Withholding Evidence — By Prosecution, 34 A. L. R. 3d 16.
In State v. Hill, supra, this court considered a case falling in the second classification categorized in Keogh. In Hill the defense had requested and was refused copies of statements of witnesses prior to trial. The trial court did require production of all statements of the defendant and the names and addresses of all other witnesses. It was pointed out in the opinion that our statute, K. S. A. 22-3213 (Weeks), preserves the confidentiality of statements of witnesses, other than the defendant’s, until after the witnesses have testified. Such pretrial statements of witnesses are to be made available to the defense on request after the witnesses have testified. It was further pointed out in Hill that even broader discovery lies within the discretion of the trial court under K. S. A. 22-3212. (See State v. Hill, supra, at page 294.)
This court in Hill did, however, recognize the three classifications of cases set forth in Keogh but applied the limitations appearing in our statutes (K. S. A. 22-3212 and 22-3213 [Weeks]). Under our decision in Hill, in order to constitute reversible error when there has been a deliberate refusal of the prosecution to honor a request for the written statements of witnesses, the request must come after the witnesses have testified, the evidence withheld must be clearly and unquestionably exculpatory and the withholding of the evidence must be clearly prejudicial. Hill is one of the “request” cases in the second classification categorized in Keogh.
In the present case appellant does not contend the prosecution deliberately -and in bad faith withheld the evidence. So this case does not fall into the “bad faith” classification which requires a fairly low showing of materiality and prejudice. In the present case there was no request for the evidence made upon the prosecution and there could be no deliberate refusal to honor a request. So this case does not fall into the “request” classification, which under Hill requires a clear showing that the evidence withheld was exculpatory 'and prejudicial. Therefore, the appellant’s present claim that evidence was withheld by the prosecution must fall into the third classification discussed in Keogh 'and recognized in Hill, the “oversight” classification.
The rule to be applied in this “oversight” classification of cases may be stated as follows: When 'the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, the defendant should be granted a new trial only if the record establishes: (1) that evidence was withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that 'the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly .prejudicial to the defendant.
In the present case the circumstances of the alleged withholding were examined by the 'trial court on 'the motion for new trial. The trial court found that the prosecution did not withhold or suppress the evidence. We agree with that finding.
The prosecutor upon learning of these prior inconsistent statements, during the progress of the 'trial, immediately rectified this oversight by placing the investigating officers on 'the witness stand. The officers were questioned and 'they testified fully and frankly concerning the extra-judicial statements of Ruppelius concerning hi's sexual activities on 'the morning in question. The jury was given all evidence available to the prosecution before it retired to consider the verdict. The questionable reliability of the testimony of Ruppelius at the trial was fully exposed to the jury by the prosecutor.
This might well dispose of the matter but let us assume arguendo that evidence was withheld. Two additional requirements must be met before the appellant would be entitled to a new trial. First, could the prior inconsistent statements of the victim be exculpatory when they tended only to impeach the credibility of the victim?
It has generally been held that evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. (Brady v. Maryland, supra.) However, this rule was somewhat expanded in Giglio v. United States, 405 U. S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763, to include evidence bearing upon the credibility of a key witness on an important issue in the.case. In Giglio it was held that 'credibility may be a material issue when the prosecution s case rests almost entirely upon the testimony of that witness. In such a case the reliability of the testimony of the witness may well be a determining factor by which the jury arrives at guilt or punishment. For this reason evidence materially affecting credibility may fall under the heading of exculpatory evidence.
In the present case Ruppelius was the victim and the only witness available to the state to establish the crime. His reliability was an essential jury consideration upon which guilt and punishment would rest. Once it was established that Ruppelius was not a reliable witness the jury would be free to disregard his testimony. If he engaged in sexual intercourse with the women it might be inferred that he first engaged their services as prostitutes, became disenchanted with his bargain, refused to pay and was then forced to pay for their services. We are of the opinion that under 'the guidelines of Giglio the prior inconsistent statements of Ruppelius in this case, if withheld, might rise to the level of exculpatory evidence which would have altered the result of the trial.
Now let us examine the second additional requirement. Was the evidence so material to the outcome of this 'particular case that its withholding, if any, would be clearly prejudicial?
Under the facts previously outlined it appears the prosecution placed the prior inconsistent statements of Ruppelius in evidence by the testimony of two police officers. In addition the defendant, by calling an independent witness (Keeling), was able to impeach the testimony of Ruppelius on the subjeot matter in question. The credibility of the witness was, therefore, seriously eroded on the question of whether he did engage in sexual intercourse with the women. It does not appear- that the rights of the defendant were prejudiced. He was only deprived of an opportunity to recall Ruppelius to the witness stand and further confront him with the prior inconsistent statements he had made to the officers. We cannot say that the extent of his deprivation would be sufficient to require a new trial.
Accordingly, we hold 'the defendant-appellants claim, that material exculpatory evidence was wrongfully withheld by 'the prosecution in violation of constitutional due process, is not established by the record.
The judgment is affirmed.
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The opinion of the court was delivered by
Milton, J.:
Defendant in erro'r was register of deeds of Cherokee county during the years 1892 and 1893, and in November of the latter year was reelected for the ensuing term. Chapter 95, Laws of 1893, which took effect in March, 1893, by its express terms applied only to the fees and salaries of such officers as should thereafter be elected in the respective counties. Afterward said chapter was declared unconstitutional by the supreme court in the case of The State v. Deets, 54 Kan. 504, 38 Pac. 798, and the defendant in error commenced this action to recover the sum of $563.24 alleged to have been paid over by him under the provisions of said act, the same being the amount of the-official fees received by him from January to November, 1894, inclusive, all of which he claimed lawfully and justly belonged to him; and to recover the further sum of $251.15, alleged to have been received by him as fees of his office for the month of December, 1894, and paid to the commissioners under an express agreement for the repayment thereof if the said law should thereafter be held unconstitutional. The void act provided for forfeiture of office and for penalties in the event of failure to comply with its requirements. Plaintiff alleged that by a mistake of facts, that is, by reason of not knowing to whom the said fees lawfully belonged, and because of his fear of the forfeiture and penalties prescribed in the said law, he made the aforesaid payment. He also alleged that he faithfully complied with the provisions of the law as to fees of his office, keeping correct, itemized account of all fees received by him, and paying over to the board of county commissioners on the first day of the regular monthly session of said board all of such fees, to be by the said board conveyed into the county treasury as part of the general county fund. The petition did not refer to the plaintiff’s salary. Under the law in question, it was provided that the register of deeds should be paid by the county commissioners $100 per month, such payment to -be made monthly by an order drawn on the county treasurer by the board. The defendant filed two demurrers, one to the counts alleging the payments first named, and the other to the count alleging the agreement in regard to the December fees. Each demurrer was overruled.
The defendant electing to make such action of the court ground for proceedings in error, judgment was rendered in favor of the plaintiff as prayed for.
The payments were made without protest or objection ; they were entirely voluntary, unless the law itself created duress ; that it did not, seems clear under the circumstances of this case. While it is true that failure to comply with the provisions of the statute might have led to a forfeiture of office, yet there was no legal, necessity for the defendant in error to occupy that office after the law became operative. When he sought reelection he knew that if reelected he would receive a salary and be required to turn over all fees received in his official capacity. It thus appears that he invited the law’s compulsion in the premises.
The theory of plaintiff below and of the trial court was, that the payment of fees to the commissioners was under a species of duress. The petition repeatedly alleges, that to avoid forfeiure of office and the penalties provided for in the act and to prevent being involved in litigation, “ all of which were threatened by said act for non-compliance therewith,” such payments were made. We think that this theory is incorrect, and that the action of the court in overruling the demurrer to the second, third and fourth counts of the petition was erroneous.
Further than this, it appears to be a correct legal proposition that money paid without protest, in compliance with provisions of a law thereafter declared unconstitutional, cannot be recovered in an action therefor. See Kraft v. The City of Keokuk, 14 Iowa, 86, and the cases there cited.
The allegation in the petition respecting payment by mistake of fact is so far modified by the accompanying allegations as to lose its force. The petition clearly indicates payments made under a mistake of law. It is familiar law that relief cannot be granted on the ground of such mistake. Stz'ong reasons for the rule are given in the case of Jacobs v. Morange, 47 N. Y. 57. See also Painter v. Polk Co., 81 Iowa, 242, 47 N. W. 65, wherein it was held that a county cannot maintain an action to recover fees paid to a sheriff under a mutual mistake of law in supposing that they were authorized by statute.
As to the claim for a repayment of the December fees, we think the court properly overruled the demurrer thereto. The agreement made as to such fees ought to be enforced. The judgment of the district court will be modified by deducting therefrom the sum of $563.24, and affirmed as to the remainder thereof, the costs in this court being divided between the parties.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced in the probate court of Elk county by the defendant in error, Susan M. Pratt, to recover from V. Blake, administrator of the estate of H. P. Woodward, deceased, for personal services rendered by her to said Woodward in his lifetime, commencing October 18, 1883, and continuing until his death, on December 1, 1893.
The petition alleges :
“ That on or about the 18th day of October, 1883, at Elk Falls, in the county of Elk, the said H. P. Woodward was taken sick, and was bedfast and dangerously sick for the period of about six months ; that during all of said sickness of said Woodward this plaintiff nursed him and cared for him ; that when said deceased recovered from said spell of sickness he retained said claimant in his employ continuously up to the time of his death, and that said claimant nursed him during his last sickness ; that during all of said period of time, to wit, from the 18th day of October, 1883, to the 1st day of December, 1893, said deceased was affected with heart and stomach trouble, and'was subject to sick spells and was sick a great many times— the exact times and dates when said deceased was sick this claimant is unable to give, but said sick spells of said deceased were very frequent and severe ; that during each and every spell of sickness of said deceased, during all of said times of ten years and more, this claimant nursed and cared for said deceased, and during all of said, time this claimant attended to the washing, ironing and mending of the clothes of the deceased; that said deceased was a bachelor and had a room where he made his home ; that during all of said time this claimant kept his room neat and tidy and made his bed; that at all times when deceased would be absent he always delivered the keys to his room and trunk to this claimant and requested her to see and attend to. his things, which this claimant always did. Claimant further says, that there never was any express agreement between her and deceased as to how much she should receive for said services, yet she avers that said-services were reasonably worth to said deceased the said sum of $125 a year for each and every year, amounting to the aggregate sum of $1265 ; that deceased never paid to said claimant anything whatever for said services.”
The evidence shows that Mrs. Pratt rendered the services and that Woodward accepted them. Ther„e was no evidence introduced tending to show that he had retained her to perform those services. Mrs. Pratt did not testify, but the other witness testified that she nursed him and cared for him whenever he needed it and continously tended his room and did his washing. The court found in favor of Mrs. Pratt and rendered judgment in her favor for the sum of $1265. Blake brings the case here for review.
Counsel for both parties concede that there is only one question involved and that is the statute of limita tions-. Plaintiff in error contends that all that part of defendant in error’s cause of action accruing more than three years prior to the death of Woodward is barred by the statute. On January 30, 1894, defendant below filed in the district court an offer to permit the plaintiff below to take judgment for $400 and all costs to that date. This offer was refused. Counsel for defendant in error contends that the action was on a contract for services, which could have been terminated by.either party at any time, or by the death of either party, and hence was capable of being performed within one year, and therefore does not come within the statute of frauds ; and that being a continuous contract for services, the cause of action dues not accrue until the services are completed and the contract terminated.
There being no evidence of a contract between the parties, the defendant in error must recover on an implied contract from Woodward to pay what the services were reasonably worth. For this reason, the statute of frauds does not enter into this case. The contract was not void, for there was no contract. The question then arises as to when a cause of action accrues on an implied contract to pay the reasonable value of services rendered. Does the cause of action accrue at the end of each day, week, month, or year? The rule seems to be stated in Carney v. Havens, 23 Kan. 86, wherein the court quoted approvingly from Littler v. Smiley, 9 Ind. 116, as follows:
“Against an account for work and labor done under an agreement for payment, not specifying at what time such payment should be made or how long such labor should be performed, the statute, of limitations does not commence running until the’ labor ends.”
We see no difference in principle between that case and this. That was an account for work and labor done under an agreement of payment. This is an account for work and labor done under an implied agreement of payment. This cause of action, therefore, accrued when the labor ended by the death of Woodward.
The judgment of the district court is affirmed.
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The opinion of the court was.delivered by
Dennison, P. J.:
This is an action of attachment, brought in the district court of Sedgwick county by the Wichita National Bank,' plaintiff in error, against one E. E. Slade, in which the'bank sought to recover a judgment on two' certain promissory notes and to hold the attached property for the payment of the judgment. The Wichita Produce Company, the Wichita Wholesale Grocery Company and the Allen & Wright Produce Company each filed a verified inter-plea, alleging, in substance, that they were judgment creditors of defendant Slade, and that executions had been levied on the attached property, whereby they had obtained liens thereon. They moved the court to discharge the attachment, for the reason that the grounds set out in the affidavit were wholly untrue. The court sustained the attachment, and found that the grounds set out in the affidavit were true as to Slade, and rendered a judgment against him on the notes. The court found that the grounds set out in the affidavit were untrue as to the intervenors, and discharged the attachment as to them. The Wichita National Bank brings the case here for a review of said order of the district court discharging the attachment as to the intervenors.
It is contended by the plaintiff in error that the intervénors could not dispute the grounds of attachment, in the absence of fraud in the proceedings. This question has been recently decided by the supreme court, sustaining the legal proposition contended for by the plaintiff in error, in Implement Co. v. Wagon Works, 58 Kan. 125, 48 Pac. 638. In the opinion in that case this statement of the law is quoted with approval:
“A junior attaching creditor may intervene in a prior attachment suit and here contest his rights with the plaintiff in that suit, but he cannot be let in to defend the suit and dispute the grounds of the attachment, in lieu of the defendant, nor to defeat the attachment for mere errors or irregularities in the proceedings, but only for imperfections which are unamendable and render the proceedings void. (Sannover v. Jacobson & Co., 47 Ark. 31.)”
' The court also, ou the same page of the opinion, quotes approvingly from the Encyclopedia of Pleading and Practice, vol. 3, p. 69, as follows :
“ Creditors of the defendant who have, subsequent to the attachment, acquired liens -upon the attached property, as by judgment or attachment, may move to dissolve the prior attachment, but not upon the ground of mere irregularities in the proceedings which have béen waived by the defendant himself.”
A motion has been filed to dismiss the petition in error for the reason that the motion for a new trial was not filed .after the rendition of the judgment. There is no merit-in the motion, but if there was this might be a reason why we would not consider some of the errors complained of, but would be no reason for dismissing the petition in error.
The judgment of the district court is x*e versed, and the cause remanded with instructions to sustain the attachment of the plaintiff in error.
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The opinion of the court was delivered by
Dennison, P. J.:
This is an action of ejectment, commenced in the district court of Allen county by the defendant in error, to recover the possession of certain lands in said county. The action was commenced September 9, 1893, and the plaintiff in error became a defendant in the court below on March 29, 1894. The patent from the government to the Missouri, Kansas & Texas Railway Company, under which the plaintiff in error claims title, was dated November 8, 1873, and recorded in the office of the register of deeds of Allen county, Kansas, November 21, 1873. The court found that Aaron F. Harris, one of the pérsons through whom the title came from the railway company to the plaintiff in error, was absent from the state of Kansas from the year 1883' until he conveyed the land to plaintiff in error on September 1, 1889, continuously except about one month, and that the plaintiff in error was absent from the state two or three months after receiving the deed from Harris. The court.found for the plaintiff below, and the defendant below brings the case here for review.
The only question presented to us arises out of the statute of limitations. Counsel agree that the cause of action accrued on November 3, 1873, and that therefore the statute began to run from that date, and they are also agreed that the action was commenced as to the plaintiff in error on March 29, 1894. It will therefore be seen that the action was commenced over twenty years after the cause of action accrued. Counsel for the plaintiff in error evade the question of the absence from the state of persons who were in possession of the land during this time. Construing section 15 of chapter 95 of the General Statutes of 1897 (Gen. Stat. 1889, ¶4098), the supreme court says: “ The time that a defendant is out of the state after a cause of action has accrued against him cannot be computed as any part of the period within which an action must be brought.” (Ament v. Lowenthall, 52 Kan. 706, 35 Pac. 804.) This section has been held to apply to the holders of the title to real estate. “ When the plaintiff is the holder of a tax deed, the defendant may prove that the plaintiff was absent from the state after the recording of the tax deed, so as to show that the plaintiff cannot invoke the protection of the statute of limitations.” (Case v. Frazier, 31 Kan. 689, 3 Pac. 497.)
We understand the question to be whether for fifteen years there has been a person in possession of and' claiming title to the land within the state of Kansas, so that he could be made a defendant in an action to recover the same. Harris left the state in the year 1883, the precise time not being shown.
Giving the plaintiff the full benefit of the year 1883, the statute had run from November 3, 1873, until December 31, 1883. This would be ten years, one month, and twenty-eight days. The running of the statute was then suspended until September 1, 1889, except for about one month when he was in the state. The running of the statute was resumed by the conveyance to the plaintiff in error and continued until March 29, 1894, except for two or three months while Ard was out of the state. It will therefore be seen that the statute had been in operation but about fourteen years and eight months. The statute requires fifteen years in such a cáse as this.
The judgment of the district court will be affirmed.
Schoonoveb, J., concurring.
Milton, JV, not sitting.
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The opinion of the court was delivered by
Milton, J.:
This action was brought by C. A. J. McCombs on a constable’s bond executed by H. C. Holdredge, as principal, and ¥m. Corzine and Ira T. Gabbart, as sureties, to recover damages for the alleged wrongful seizure and sale by Holdredge, as constable, of personal property belonging to the plaintiff below under orders of attachment issued by a justice of the peace of the city of Caldwell in certain civil actions instituted by the John Deere Plow Company against McCombs. The defendants jointly demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendants, electing to stand on the same, bring the case here for review.
The petition alleged that the orders of attachment were void for the reason that they were issued by the justice of the peace without any proper or legal affidavits having been first made, and for the further reason that no attachment undertaking had been given as required by law; but it was not alleged that the constable was aware of such facts. Copies of the orders of attachment and a copy of the constable’s bond were annexed to the petition as exhibits. Each order was regular on its face. The bond was in the penal sum of $1000 and contained the statutory conditions. The petition also alleged that without the personal knowledge of the plaintiff, and during his temporary absence from the state of Kansas (his residence being in Sumner county), the seizure and sale of his property under the orders of attachment took place, and that the total value of the property taken by the constable was $1580. The property was mainly wheat in the stack, and it was alleged that the constable wasted 500 bushels of the grain by reason of negligence in the thrashing thereof. It was further alleged that the constable sold the attached property at private sale. The petition did not intimate that McCombs had any defense to the actions brought by the John Deere Plow Company, and did not deny that the grounds for attachment as stated in the affidavit may have existed.
Was the demurrer to the petition properly overruled ? On the state of facts as disclosed by the petition, we think it must be held that the officer was protected in making the levy, and that no action for damages lay against him or his sureties on account thereof. The overwhelming weight of authority has firmly established' the rule that where a writ of attacnment or an execution, "fair on its face,” has been issued by a court of competent jurisdiction in the premises, the officer is protected in obeying its commands, and is not concerned with any irregularities that may exist back of it. See Cooley on Torts, 460, 463. On page 463 it is said :
"The protection the officer receives «from the ap parent validity of the process is personal to the officer and those called in by him to assist in the service ; that is to say, it protects them against being made liable as trespassers,in obeying its command.”
The following from- Drake on Attachments, sections 117 and 118, is applicable here :
“ But though an attachment sued out without sufficient bond having been taken should be considered absolutely void as to the defendant, yet it will, unless the defect appear on the face of the writ, justify an officer in making a levy under it. It was’ so held in Kentucky, where, as stated in the last section, the court, on writ of error by the defendant, held the attachment void in such case.
“But though an officer executing the writ under such circumstances is not liable as a trespasser, yet the party who causes the writ to issue without giving bond, and the officer who issues it, are both so liable to the defendant.”
See also Freeman on Executions, section 101, and the cases cited in the note thereto. In harmony with the foregoing is the decision in the case of Barr v. Combs, 29 Ore. 399, 45 Pac. 776, which was an action of trespass for the seizure, detention and sale under an execution, of certain personal property belonging to the plaintiff, by the defendant Combs, as sheriff, at the instigation and request of his codefendant Rader, the execution creditor. The plaintiff alleged that prior to the issuance of the execution, the judgment on which it was based had been paid, and sought to introduce certain evidence to charge the sheriff with knowledge of that fact. The court, referring to the execution, which was regular on its face, said :
“ It was, therefore, a complete protection to him although he may have known that the judgment on which it was based had in fact been satisfied. A sheriff cannot, be wiser than his process; and if the officer or tribunal by which it is issued has jurisdiction oyer the subject-matter and the process is regular on its face, showing no departure from the law or defect of jurisdiction, it will afford a complete protection to the officer executing it against any prosecution therefor, and he is not affected as to this rule of protection by anything he may have heard or learned outside of the process. Crock. Sher. § 283; Erskine v. Holnbach, 14 Wall. 613; Twitchell v. Shaw, 10 Cush. 46; Mason v. Vance, 1 Sneed, 178; O’Shaughnessy v. Baxter, 121 Mass. 515; Watson v. Watson, 9 Conn. 140; Webber v. Gay, 24 Wend. 485; People v. Warren, 5 Hill, 440.
“When, therefore, the execution was placed in the hands of Combs for service, it was his duty to execute it as commanded by its terms, and he is not liable for trespass in so doing, even if he knew the judgment had been paid.”
No liability having been incurred by the officer or his sureties by reason of the levies under the writs of attachment, the next inquiry is whether such liability has arisen from the subsequent acts or negligence of the officer. The petition alleged that, by reason of his negligence in respect to the thrashing of the wheat levied on, 500 bushels thereof were wasted. As shown by the appraisement, that quantity of wheat was worth about $135. The petition also alleged that the constable sold the attached property at private sale. Treating such allegations as substantive facts, it must be held that the officer was guilty of a breach of his bond in each of the two particulars stated. In this view, it appears that the demurrer to the petition was properly overruled, and the order of the court overruling the same will accordingly be affirmed. As the record does not disclose the nature of the judgment entered by the trial court, the cause will be remanded for further proper proceedings.
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The opinion of the court was delivered by
Milton, J.:
The petition in error in this case was filed on March 15, 1897. The first paragraph reads :
“That in the trial of this action in the district court the court erred in rendering judgment in favor of the defendant upon the second count of the petition of the plaintiff, and in not rendering judgment in favor of the plaintiff upon said second count.”
Other paragraphs allege various errors respecting the second count of the plaintiff’s petition for his second cause of action. The prayer of the petition is as follows:
“ Plaintiff therefore asks that said judgment of the district court upon said second count in plaintiff’s petition may be reversed, and said cause remanded to the district court of Greeley county for a new trial of said second count in plaintiff’s petition.”
From the purported case-made, which is attached to the petition in error, but not referred to therein, it appears that on July 2, 1895, an action was begun in the district court of Greeley county by Otho Nowland! against the city of Horace. The petition set forth two causes of action on warrants of the defendant city — the first on a warrant in the sum of $125 and interest, and the second on a warrant of $50 and interest. The judgment of the court was in favor of the plaintiff on the second cause of action, and in favor of the defendant for costs on the first cause of action. The defendant in error has moved to dismiss the proceedings in error, and the plaintiff in error has asked leave to amend the petition in error by substituting the word "first” for the word "second” wherever the latter occurs therein. In his brief the plaintiff in error has made two specifications of error, both of' which relate to the action of the court in respect to> the "first count” of the petition filed in the trial; court.
It is claimed by the defendant in error that the petition in error is fatally defective because it fails to refer to or identify the judgment of which a review is sought. While the petition in error is very informal and incomplete in this regard, we think it can be ascertained from the prayer thereof that complaint is made of a certain judgment rendered by the district court of Greeley county. It is also claimed that the failure to identify the case-made by some reference thereto in the petition in error rendered the latter invalid. This must be regarded as an amendable defect.
The petition in error complains of the action of the court in rendering judgment for the defendant on the " second count ” of the petition and in overruling the motion of plaintiff for a new trial on his second cause of action, while the case-made shows a judgment in plaintiff’s favor on the second cause of action, and that the motion for a new trial referred only to the first cause of action. Counsel for the defendant in error deny the jurisdiction of this court to permit the amendment of the petition in error as requested, for the reason that more than one year has elapsed since the petition in error was filed and that the proposed amendment is equivalent to the filing of a new and distinct assignment of error. In support of their position, counsel cite the cases of Cogshall v. Spurry, 47 Kan. 448, 28 Pac. 154, and Crawford v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 474, 25 Pac. 865. In the latter case an application was made to amend the petition in error by assigning the overruling of the motion for a new trial as an additional ground of error. In denying leave to amend, the supreme court said:
“We think the application to amend was made too late. Such applications are usually allowed as a matter of course, if made within a year after the final order or judgment complained of is given. Even after that time, if the amendment requested related to matters of form only, or the new error assigned was involved in the final judgment or order of which complaint was made, the amendment would ordinarily be permitted upon such terms and conditions as the court might deem just. But where the new assignment of error is not involved in the assignment already made, but states a new and distinct cause of complaint, the amendment cannot be made after the lapse of the period of limitation.”
In the present case the complaint made relates to the judgment of the court on the second cause of action set forth in plaintiff’s petition. The proposed amendment relates to the judgment on the first cause in said petition. It must therefore be held that the new assignment of error which would be created by the amendment is not involved in the assignment already made, but states a new and distinct cause of complaint. Under the doctrine of the foregoing case the amend ment cannot be allowed. As it stands, the petition in error is fatally defective.
As the brief of the plaintiff in error relates to matters not set forth in the petition in error, it fails to present any matter for our consideration. The proceedings in error will therefore be dismissed.
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The opinion of the court was delivered by
Schoonover, J.:
The defendant heirs insist that no petition in error has been filed in the case in this court, and that, therefore, we are without jurisdiction to hear and determine the case. It is not denied that a paper purporting to be a petition in error has been filed, but it is urged that such paper is not a petition in error, because it does not contain the names of the parties, plaintiff and defendant.
The title of the petition in error is as follows :
“In the matter of the appeal of R. R. Beam, administrator of the estate of Catherine Butler, deceased, from a judgment of the district court of Harper county, Kansas, refusing to approve his amended first annual report as such administrator, upon an appeal from the probate court of Harper county, Kansas. Petition in error.”
Appellant was the only party to the action in the court below. We are unwilling to concede that the statute cited must be so construed as to preclude a party feeling himself aggrieved by a judgment or ruling from having such ruling or judgment reviewed by an appellate court where he is the only party to the suit in the lower court, and could not therefore file a petition containing the names of the parties, plaintiff and defendant. The legislature never intended to make the right of appeal conditional upon the performance of an impossibility. The law provides for a liberal construction of statutes, with the view of promoting their object, and we think that a reasonable construction of the statutes in question would be that the petition in error must contain the names of the parties, plaintiff and defendant, if there are parties both plaintiff and defendant. Following the precedent of the supreme court in the cases of In re Lowe, Appellant, 47 Kan. 769, 28 Pac. 1089, and In re Johnson, 12 Kan. 102, we shall hold that this court has jurisdiction to entertain the appeal.
The only question to be decided in this case is, Did the court err in charging the administrator with the entire amount collected by Noftzger? In the findings of fact returned, the court found that the money was collected by the attorney, and that he retained $300 of it, claiming that such amount was due him for services rendered. There is no evidence to show that the money was ever actually received by the administrator. “An executor- or administrator cannot be charged with debts or choses in action until he has actually received the money.” (Ruggles v. Sheman, 14 Johns. [N.Y.] 446; Smith v. Hurd, 8 Smedes & M. [Miss.] 682; Jones v. Williams, 2 Cal. 102; Douthet, Adm’r, v. Douthet, 1 Ala. 594.) If it be urged that the attorney acted as agent for the administrator, and that the receipt by the agent amounted to the receipt by the principal, then we reply- that the administrator had a right to employ an attorney, using reasonable care and prudence in the selection of such attorney, and-that he would not be responsible for the loss of the funds, even should the attorney have embezzled them, unless such funds were lost through negligence of the administrator. (Christy v. McBride, 2 Ill. 75; Julian v. Abbott, 73 Mo. 580.)
In this case it is clear that the attorney retained the money under the claim that he was entitled to it. If the administrator could not be charged with funds •embezzled by an attorney, where the administrator was not guilty of negligence, we cannot see why he should be charged with money retained under the claim of right. If the administrator should lose the right to recover such money, by neglecting to bring an action for its recovery before the right to do so was barred by the statute of limitations, he would then be properly chargeable with the loss. It does not appear from the record, however, that the right to recover has been lost, either because the statute has run or for any other reason. We shall hold, therefore, that the court erred in charging the administrator with the whole amount collected.
The judgment of the district court is reversed.
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The opinion of the court was delivered by
Wells, J.:
This suit was brought by the defendants in error to enjoin the collection of special assessments for grading a portion of Hudson avenue, in Kansas City, Kan. The court of common pleas of Wyandotte county, in which the action was brought, upon a hearing sustained the petition of the plaintiffs and perpetually enjoined the defendants from collecting said special assessments. The defendants below bring the case here for review.
The first reason given for a reversal of the case is that “The amended petition of the defendant in error does not state facts sufficient to constitute a cause of action.” It was held in McBride v. Hartwell, 2 Kan. 411: “Whether the petition stated sufficient facts is not a question the supreme court can look into until it first be presented to the district court.” We are not cited to any place in the record where the question was presented to the district court. On the contrary, an answer was filed and the parties proceeded to trial and raised no objection to the sufficiency of the petition. There áre exceptions to the rule above stated, but this case does not furnish one. As was said in Sweet v. Ward, 43 Kan. 698, 24 Pac. 941:
“What was defectively stated in the petition, if anything was so stated, must be construed as having been made good by the evidence, findings, and judgment. It must be considered that the evidence cured all the defects of the petition and supplied all its omissions.”
The next proposition is that “the petition of the property owners is regular on its face, and sufficient to start the thirty-day statute of limitations.” The statute of limitations referred to is contained in paragraph 590, General Statutes of 1889 (Gen. Stat. 1897, ch. 32, § 209-217):
“No suit to set aside the said special assessments, or to enjoin the making of the same, shall be brought, nor any defense to the validity thereof be allowed, after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.”
In support of the claim that the petition was sufficient to start the statute of limitations, we are cited bv the plaintiffs in error to Doran v. Barnes, 54 Kan. 238, 38 Pac. 300, as conclusive on the point. The syllabus of that case reads :
“An action to enjoin the collection of an assessment made by a city of the first class in paving a street must be commenced within thirty days from the time when the amount of the assessment is ascertained, if all the proceedings prior to and including such assessment purport to be regular and apparently confer full jurisdiction upon the mayor and city council to order the paving complained of.”
The law provided that proceedings to grade should be initiated by a petition signed by a majority of the resident property owners of a majority of the front feet on said street, and that said petition should be ordered spread upon the journal by a majority of the council elect. In .the Doran case the petition showed on its face that it was signed by a majority of the owners as required, and was ordered spread on the journal. In the case at bar the petition did not appear on its face to be signed by the necessary property holders and was not ordered spread upon the journal, and, under the decision cited, it conferred no jurisdiction and did not start the statute of limitations.
The next cause of complaint on the part of the plaintiffs in error is : “ No cause of action existed on account of the instalments of the assessments not certified to the county clerk by the city clerk at the time of the commencement of this action, and it was error to render judgment enjoining the collection of the same.” Paragraph 10 of the amended petition reads :
“That the said city council apportioned the whole cost of said alleged improvement against the lots abutting on said Hudson avenue, a copy of which said apportionment the city clerk of the city of Kansas City, Kan., certified to the county clerk of the county of Wyandotte, state of Kansas, and the said county clerk certified the same to the county treasurer of said Wyandotte c'ounty, and the said assessments for the whole cost of said work are about to be collected by the said county treasurer from and against the lots abutting on said Hudson avenue.”
Upon the trial, among other admissions by the defendant below is the following: “That the allegations contained in paragraph 10 of the plaintiff’s petition are true.” Under this admission, it is unnecessary to determine what would have been the status of the case if the admission had not been made.
From all the record in this case it seems clear to us that the injunction should have been allowed and made perpetual. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Milton, J.:
In this action the defendant in error sought to recover judgment against plaintiff in error in the sum of $10,000 as damages for injury to real property and the trees, grass and other improvements thereon, caused by the smoke, noxious odors and poisonous gases which escaped from the smelting plant of plaintiff in error. The petition alleged that the poisonous gases from' the smelter were carried by the prevailing winds over and upon plaintiff’s premises, and that thereby seventy-two fruit-trees, of the value of fifty dollars each, and 300 shade and ornamental trees, of the value of ten dollars each, a vineyard, shrubbery, grasses and other vegetation were 'greatly injured or entirely destroyed. It was also alleged that the property, which consisted of 22-n-acres of well-improved land near the corporate limits of the city of Girard, was rendered undesirable for a residence by reason of the noxious gases, and that the property, as a whole, was damaged in the sum of $10,000. The smelting company answered -with a-general denial and an allegation that the smelters were located in their present place under an agreement with Loren Brown, the husband of the defendant in error, and that the defendant in error acquired title to the land from Loren Brown by quitclaim deed,, and with full notice and knowledge of the said agreement. The reply contained a general denial only. The cause was tried at the March, 1896, term of the district court of Crawford county, resulting in a verdict and judgment in favor of the plaintiff below for $1000.
From the testimony the following facts appear : The smelter was located, in the fall of 1898, at a point about seventy-five rods west of south of plaintiff’s premises. The prevailing wind in that locality is from a southerly direction in the spring and summer. Prior to 1894, the plaintiff’s land was exceptionally desirable as a place of residence. The improvements consisted of a two-story dwelling-house, a large barn, a good orchard of apple and other fruit-trees, a vineyard, shade-trees, and shrubbery. The larger part of the land was set to blue-grass and clover and was used for pasture. The premises were well kept. In the spring and summer of 1894, the trees, shrubbery and grass showed unmistakable signs of injury. The grape-vines died, as did also many of the apple trees. The trees that survived bore no fruit, and the pasture failed. Witnesses for the plaintiff testified as to the value of the property before the location of the smelter and at the time of the trial. There was no expert testimony as to the chemical properties of the gases from the smelter, and no direct proof that such gases were capable of destroying vegetation. The testimony as to the alleged agreement between Loren Brown and the smelting company was conflicting. The inference drawn by the jury that the gases from the smelter occasioned the damage of which the plaintiff complained appears to us to be irresistible. In this respect the verdict is amply supported by the evidence.
Counsel for plaintiff in error contends that the court erred in the admission of testimony as to the diminished value of the real property as a whole, and insists that the plaintiff should have been required to prove the value of the fruit and ornamental trees which were alleged to have been destroyed by the poisonous gases. The decision in Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, and certain decisions by this court are cited as sustaining this contention. We do not so understand those decisions. In the Lycan case, it was held that damage to realty was properly shown by proof of the value of the trees destroyed by fire. In the syllabus the court said :
“It is only where the damages to one part of the land affect the other parts and are incapable of more definite and direct proof, that the evidence is necessarily confined to proof of the value of the whole tract before and after the injury, though the actual damages can never, in any case, exceed the difference between such values.”
In the present case the only measure of a large part of the plaintiff’s' alleged damages was to be found in the diminished value of the real property as a whole. We think the court did not err in the admission of testimony showing the value of the property before and after the injury.
For the reasons just stated, we hold that the court did not err in instructing the jury that the measure of plaintiff’s damage was the difference between the value of the real estate before and after the alleged injury thereto. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
There are numerous assignments of error. The first contention is, that the court erred in admitting an inventory taken by the plaintiff in 1887 of her stock of goods covered by her policy. The loss occurred in 1894. The objection made at the time of the offer was that the' evidence was incompetent and too remote in point of time. It appears from the evidence that all of the data which had existed and which would show the value of the goods destroyed were burned, except this inventory and the plaintiff’s accounts of purchases and sales of goods subsequent thereto; that these were the best and only evidence within her control, or in existence, aside from her personal knowledge and recollection thereof ; so that the inventory was not offered as original evidence, but as secondary, and of the highest quality in existence. Counsel cite, in support of their contention that the evidence was inadmissible by reason of these objections, the cases of Insurance Companies v. Weides, 9 Wall. 677, 14 id. 375. These cases, instead of sup porting the contention, are directly against it. We can see no reason why, as a basis of arriving at the value of the stock of goods destroyed, the only inventory in existence should not be used. Counsel contend that there is no evidence in support of its correctness, but that it was introduced as showing the value of the goods per se at the time it was taken. In this counsel are mistaken. It clearly appears from the evidence that the inventory is an original inventory taken by the plaintiff herself, and that it is a correct inventory, including values of the goods then in the store.
The next contention is that the court erred in permitting the plaintiff to testify to the amount of the footings to the inventory. The record discloses that the footings were not carried forward ; that they did not appear therein. Plaintiff testified that she had made careful computation, and that her computation was correct, and we can see no reason why she should not be permitted to testify thereto instead of taking the time of the court or referring the matter to some other person to compute. If her computation was incorrect, that fact could have been ascertained and her attention called to it, or the fact itself made to appear.
The third contention is that the court erred in permitting the plaintiff to introduce in evidence her books showing purchases and sales subsequent to the inventory of 1887. As we said before, the evidence discloses that this was the only means left to the plaintiff, or the defendant, for that matter, to ascertain the value of the goods in the store at the time it was burned, and was so offered, and under the circumstances it was not error to admit it.
The next contention is that the court erred in per mitting tlie plaintiff to testify to certify conversations between her and the agents of the plaintiff company,' had after the loss, in which conversations the agents requested the plaintiff not to bring suit, and represented to her that the company would pay the loss without suit, and that it was unnecessai'y to put the defendant company to costs therein. This was in support of their allegation of waiver of the contract limiting the time within which suit was to be brought. The contention is that these agents were not authorized to waive this condition of the policy. In support of this contention, our attention is called by counsel to the nineteenth clause of the policy, as follows :
‘■The insured herein expressly acknowledges that he receives notice hereby that all agents of this company are prohibited from and directed not to make any agreements for this company of any kind, except in writing or print, and no agent is authorized to change, alter of waive any written or printed contract made with this company except it be in writing or print. It is also expressly agreed and understood that this company has special agents called adjusters to whom the adjustment of all losses is entrusted, and that no local agent has any authority whatever to act or do any thing relating in any manner to the adjustment of a loss.”
It is sufficient answer to this provision in the policy to say that this waiver of the contract of limitation did not relate to the adjustment of the loss, nor were the conversations had with merely local agents, but with general agents of the company who were entrusted with the business of the company respecting that policy. It is contended, however, that these agents who issued the policy, received the premium and completed the contract for the company, cannot be presumed to have had any such authority without actual proof thereof. This contention cannot be sustained, under the decisions of our supreme court. The first case bearing on the question is Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533. The second paragraph of the syllabus of that case is :
“An agent of an insurance company, authorized to issue policies of insurance and consummate the contract, binds his principal by any act, agreement, representation or waiver within the ordinary scope and limit of insurance business which is not known by the insured to be outside the authority granted to the agent.”
The clause in the policy does not give notice to the assured that these agents were not authorized to waive this provision. The case cited discloses, it is true, that the waiver of a provision of the policy was made at the time of its consummation. In Insurance Co. v. Munger, 49 Kan. 178, 30 Pac. 120, in the second paragraph of the syllabus, it is said :
“An agent of an insurance company who is given full power to receive proposals of insurance against loss and damage by fire within a given territory in this state, and is authorized to fix rates of premium, to receive moneys, and to countersign, issue and renew policies of insurance, is a general agent of such company, and may, after loss, bind the company by a parol waiver of the conditions as to furnishing complete proofs of loss within thirty days after such loss shall have occurred, with builder’s estimate of the value of the building, notwithstanding the policy provides that a waiver shall be void unless it is in writing, signed by the agent, and indorsed thereon.”
In the opinion the court quote Wood on Fire Insurance, §§ 419, 447; Rivara v. Queen’s Insurance Co., 62 Miss. 728; and refer to Bliss on Insurance, § 296, Phenix Ins. Co. v. Bowdrie, 67 Miss. 620, 7 South. 597, and Franklin F. Ins. Co. v. Colf, 20 Wall. 560, in sup port of their conclusion, embodied in the second paragraph of their syllabus, and approve of the doctrine therein announced. The court, in Rivara v. Queen’s Ins. Co., supra, say:
“ The powers of insurance agents to bind their companies are varied by the character of the functions they are employed to perform. Their powers in this respect may be limited by the companies, but parties dealing with them as to matters within the real or apparent scope of their agency are not affected by such limitations unless they had notice of the same. An insurance agent clothed with authority to make contracts of insurance or to issue policies stands in the stead of the company to the assured. His acts and declarations in reference to such business are the acts and declarations of the company. The company is bound not only by notice to such agent but by anything said or done by him in relation to the contract or risk, either before or after the contract is made.”
Within the rule laid down in these decisions, there can be no question but that the declarations of the agents who issued this policy and their request to the plaintiff to desist from bringing suit were binding on the company and were sufficient as a waiver of the contract limiting the time within which suit was to be brought.
The fifth contention is that the court erred in permitting Charles B. Graves to testify as to conversations had by him with one Winney to the effect that Winney told the witness, who was attorney for the plaintiff, that he (Winney) would examine the loss as adjuster for the companj, and agreed with the plaintiff’s attorney, the witness, that no suit should be bi’ought until the attorney should be further advised about the conclxxsions of Winney upon his investigation of the matter. This contention is based on the proposition that there is no evidence tending to show that Winney was the adjuster of the defendant company. The only evidence of that fact is that the agents who issued this policy, who had induced the plaintiff to desist from bringing the suit, knowing that the witness Graves was the attorney for the plaintiff, took Winney to the office of the attorney, and introduced him to the attorney as the adjuster having charge of the loss, for the purpose of discussing the matter for the benefit of the company. It is said that neither the plaintiff nor her counsel had any right to rely on the statement of the general agents of the company that this was the adjuster; had no right to rely on the representation that he was the adjuster having charge of the matter ; and had no right to rely on his arrangement regarding the adjustment of the loss and the delay or omission of the plaintiff in bringing suit; that notwithstanding the fact, which is admitted, that the agents who issued the policy were in fact the agents to the extent that the courts of this state say they are, with the authority which the courts of this state say they have, yet this company will now be permitted to say, not that this man was in fact their adjuster, but that these representations by their agent were not sufficient authority on which the plaintiff might rely and on which she might lawfully base her conduct with respect to the business existing between them.
The insurance company in no manner pretends to contradict the fact that Winney was the adjuster, specially authorized to adjust this loss. There seems, to be no room for contention, under the authorities cited, over this matter. Under these authorities, the plaintiff doubtless had a right to rely on the statements of the general agents of the company that he was its adjuster, and the proof, uncontradicted in any manner, was sufficient to warrant the jury in finding' that Winney had the authority of such an adjuster to bind the company in contract whereby it waived the benefit of this provision in the policy limiting the time in which a suit might be brought.
The sixth assignment of error is that the court denied the defendant’s motion to withdraw from the jury the evidence in regard to the conversations and contracts of waiver between the plaintiff and these agents of the company. The seventh assignment of error is that the court overruled the demurrer of the defendant to the plaintiff’s evidence. The contention under this assignment is that there was no legal evidence of the value of the goods destroyed, and hence no legal evidence of the amount of the plaintiff’s right of recovery. This contention is determined by what we have said under the fourth and fifth assignments.
The eighth assignment is practically the same as the fourth and fifth assignments.
The ninth assignment is that the court erred in its instructions to the jury numbered 3, 4, 5, and 6. The third instruction is in effect that if the jury find that the company, through its agents, represented that it would not be necessary to bring suit and requested the plaintiff and her attorney not to bring suit, that would amount to a waiver of a condition of the policy, and the jury on that proposition should find against the company. The fourth instruction is in substance the same, though different in form, to the effect that if the jury should find that the plaintiff delayed bringing suit until after the expiration of the six months on account of the inducements held out by the officers of-the defendant, causing her to believe that the loss would be adjusted without suit, this would be a Waiver of the six months’ limitation of the policy. The fifth is that if the adjusting agent of the defendant agreed with the plaintiff’s attorney to investigate the loss personally, and to obtain an adjustment without suit, and requested the attorney to delay bringing the suit' until notified by the adjuster that a settlement was impossible, then the plaintiff would have a right to delay bringing the suit until such notice was given by the adjuster, or by the defendant through some other agent; and further, that if one of the defendant’s agents who made the contract introduced to the attorney of the plaintiff a person whom he represented to be the adjuster for the defendant, for the purpose of having the adjuster and attorney consider the plaintiff’s claim, and if the plaintiff’s attorney believed him to be an adjuster, then any arrangement made by the attorney with the supposed adjuster concerning the loss would be as binding on the defendant as if he were in fact the officer he represented himself to be. The sixth is that an insurance agent having authority to issue policies, collect premiums and consummate insurance contracts has, in the absence of proof to the contrary, full power to bind the company in all matters concerning said insurance contract and losses by fire thereunder. The principles annonnced in these instructions are in harmony with the decisions of the supreme court heretofore cited. They are in line with the evidence, and giving them constituted no error.
It is contended further that, inasmuch as there was a reasonable time after the arrangements made between the agents and adjuster and the plaintiff and her attorney within which the plaintiff might have brought her suit, she would have no irght to rely on the waiver; in fact, that it would not amount to a waiver except for the time being. It appears from the evidence that this conduct on the part of the agents of the company continued from soon after the loss until within a short time prior to the expiration of the six months, and while there was sufficient time after the arrangement between the adjuster, Winney, and the plaintiff’s attorney, within which suit might have been brought, yet the arrangement was that no suit should be brought until some time in the future, when notice should be given of a failure of agreement, and no such notice was ever given.
The judgment is affirmed.
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The opinion of the court, was delivered by
Mahan, P. J.:
This action was begun by the defendant in error, as administrator of the estate of Charles W. Brown, deceased, against the plaintiff in error, under section 418 of the code, to recover damages on account of the death of Brown, which it was alleged was occasioned by the wrongful acts or omissions of the plaintiff in error. Brown was a brakeman on a freight-train of the plaintiff in error on the 2d day of September, 1887. The train was loaded with coal at Lansing, on the Leavenworth branch, and was being taken thence to Wamego. The train ran through the switch at the Lawrence junction and was thereby derailed, the train wrecked, the engineer, fireman and the brakeman Brown killed. There was a trial to a jury, which resulted in a verdict for the plaintiff in the sum of $1500. There had been a former trial in which the plaintiff recovered $3000. This judgment was reversed by the supreme court (U. P. Rly. Co. v. Sternberger, 54 Kan. 410, 38 Pac. 486) because the special findings of the jury were not sustained by the evidence and were inconsistent with one another. The supreme court, in that case, indulged in some comments unfavorable to the verdict, to the effect that it was excessive, but did not base the judgment of reversal thereon, saying that by reason of the other errors it was not necessary to do so.
There are sixteen assignments of error presented for consideration. The first thirteen assignments are based on the action of the trial court in admitting or excluding evidence. We do not deem it necessary to refer specifically to the first six assignments. No substantial error was committed by the court in its action in the matters referred to therein. All of the testimony objected to had relation to the conduct of the deceased toward his wife and minor son. It was competent for the purpose of showing the relations between the deceased and his family, as bearing on the question of pecuniary injury suffered by them in the death of the husband and father. The court did not abuse 'its discretion in any particular therein, nor was the secondary evidence complained of permitted to be introduced without proper foundation.
The seventh assignment of error is based on the exclusion by the court of what is designated as the sworn statement of Mrs. C. W. Brown, the widow, for whose benefit the recovery was sought in the first place, together with her minor son, Charles F. Brown. It is contended that this statement was admissible under the exception to the rule of law excluding hearsay, which admits the statements of deceased persons made against their interest, and which are offered in evidence after the death of the witness. Had the paper been, strictly speaking, such a statement, it would have been competent evidence, and it would have been error to reject it, as was decided by the supreme court in the case of Walker v. Brantner, 59 Kan. 117, 52 Pac. 80. The statement was offered as an entirety and excluded as an entirety. Much of it was immaterial and did not come within the rule contended for in that respect. Some parts of the writing were statements against interest, or might have been called statements against interest, had they been made in the ordinary course, but they were not. It was an attempt on the .part of the defendant, plaintiff in error, to introduce the deposition of Mrs. Brown, taken by the defendant without notice to the plaintiff or his counsel. After the suit was begun, and within a day or two prior to the death of Mrs. Brown, counsel for the plaintiff in error, with a detective, a notary public, and a doctor, all in the employ of the defendant, went to her bedside and took her deposition. It is this deposition so taken without notice that was sought to be introduced as a voluntary statement of the deceased against her interest. It would seem that this explanation should be sufficient, without any further argument in support of the action of the court.
The eighth assignment of error is that the court permitted the deposition of Mrs. Wilson, the mother of Mrs. Brown, to be read to the jury. The objection was that the. deposition was incompetent and not rebuttal. This contention is without merit. The ninth, tenth, eleventh, twelfth and thirteenth assignments of error are similar to the first five, are based entirely on technical contentions, and are without merit. The fourteenth contention of counsel is that the court erred in using certain language in giving its instructions to the jury. After reciting to the jury the nature of the cause of action and the grounds of negligence complained of by the plaintiff, it added : “The grounds of negligence claimed by the plaintiff are more fully set out in the petition, to which you are referred." The contention is that it was the duty of the court to construe the pleadings. The court did construe them. The court stated to the jury very clearly and concisely what the issues were and what it was necessary for the jury to find in order that the plaintiff might recover. This reference to the petition, under the circumstances, could not have prejudicially affected the rights of the defendant. The fifteenth assignment of error is that the court gave the following instruction :
“And it is charged that by reason of the alleged failure find neglect above referred to, and by and •through the carelessness, unskilfulness and improper conduct and default of the servants and employees of the company, the train on which deceased was working was run through an open switch and wrecked, and that he thereby lost his life.”
The contention is that there was in the petition no allegation of negligence on the part of the other servants and employees of the company, and that the court did not confine the plaintiff to the specific allegations of negligence as ground for damages alleged in the petition. Counsel cite in support of their position Telle v. Rapid Transit Rly. Co., 50 Kan. 455, 31 Pac. 1076. In this contention counsel are mistaken. There is a specific allegation of negligence on the part of the fellow servants and fellow employees of the deceased. This petition was so construed by the supreme court. There was evidence offered without objection in support of this allegation, and the' evidence sustains the verdict of the jury.
The sixteenth assignment of error is that the court overruled the motion of the plaintiff in error for a new trial. Nothing has been pointed out constituting such error as would warrant the court in sustaining the motion. There was no evidence to sustain the contention that Brown was guilty of contributory negligence. It was his first trip over the line. He had no means of knowing that the train was approaching the junction. The landmarks were nothing to him, not knowing that they were landmarks.
The case was fairly submitted to the jury. The verdict and the findings indicate that the jury gave careful attention to the evidence and to the instructions of the court. The judgment is affirmed.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was originally commenced in justice’s court in Sedgwick county by Campbell to recover from the railway company the sum of $8.75 and an attorney’s fee, as provided for by chapter 167 of the Laws of 1897. Campbell shipped a car-load of cattle from Attica, Kan., to Kansas City, Kan., and presented his contract to the conductor and was carried to Kansas City. Upon his return, he presented his contract to the conductor and demanded to be carried to Attica, which demand was refused, and he was compelled to pay $8.75, the regular passenger fare from Kansas City to Attica. Campbell obtained judgment in the justice’s court and the railway company appealed to the district court. He obtained a judgment against the railway company in the district court and it brings the case here for review.
The only question raised is the constitutionality of said chapter 167, Laws of 1897. It is contended that the act is in conflict with that part of section 1 of the fourteenth amendment to the constitution of the United States which provides :
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
By the terms of the act in question, a railway company, “in consideration of the usual price paid for the shipment of said car, shall pass the shipper or his employee to and from the point designated in the contract or bill of lading without further expense to the shipper in the way of fare.” We cannot agree with the counsel for the plaintiff in error that the railroad company is required to carry the shipper or his employee without consideration therefor. The act itself provides for a consideration, which is ‘ the usual price paid for the shipment of said car.” There is no attempt made to fix the rate per car. The only requirement is that for the usual price per car it shall carry the shipper or his employee to and from the destination of the consignment. It was evidently the intention of the legislature to compel the corporation to grant the same privileges to a person who had but one car-load of stock to ship that it does to those who have more than one car-load. Instead of depriving the corporation of the equal protection of the law, it compels it to grant equal protection to the limited shipper. It does not say how much the. railroad company shall charge per car, but requires it to grant the same privileges to the shipper of one car-load of stock that it has been granting to the shipper of two or more car-loads.
There is no attempt made to prescribe the conditions or terms of the contract between the company and the shipper, other than that the price per car and conditions shall include transportation for the shipper of the stock to and from the point of shipment. Nor is there an attempt to prescribe the manner of transportation or the terms and conditions attached thereto. This act is not an attempt to regulate interstate commerce, nor is it class legislation.
The provision pertaining to attorney’s fee has been held, in Railroad Co. v. Mathews, 58 Kan. 447, 49 Pac. 602, to be constitutional and valid. Counsel for plaintiff in error say in their brief that the decision in the Mathews case is squarely against their contention in this case, but, being in conflict with the decision of the United States supreme court in the case of Gulf, Colorado. & Santa Fe Rly. v. Ellis, 165. U. S. 150, 17 Sup. Ct. 255, it is not binding on this court. So long as the decision of our supreme court in the. Mathews case is unreversed Ave shall follow it. The title to the act in question is not in conflict Avith section 16, article 2, of the constitution of the state of Kansas.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
The record in the case contains the following:
“The plaintiff was given sixty days in which to make and serve a case for the court of appeals, and the defendant ten days thereafter in which to suggest amendments thereto ; said cause to be settled on ten days’ notice.
“ Thereafter, and before the expiration of the sixty days, upon application duly had, said time to make and serve a case for the court of appeals was by the court duly extended to the 1st day of October, 1895.
“Thereafter, and before the 1st day of October, 1895, upon application duly had, said time to make and serve a case for the court of appeals was duly extended to the 1st day of November, 1895.
“Thereafter, oh October 26, 1895, on the request of plaintiff, the following chambers order was made — without any formal application — simply a request by letter:
“ ‘Now, on the 26th day of October, 1895, for good cause shown, the time for making and serving a case for the court of appeals in the above-entitled cause is extended to December 1, 1895.
J. S. West, Judge.'"
Upon this record, the defendant in error filed a motion to dismiss, alleging that there had been no valid extension of time' to any period after November 1, 1895. Section 590, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4650), provides : “ The court or judge may, upon good cause shown, extend the time for making a case . . .” What facts shall constitute “good cause” must be.determined by the court or judge. The showing stated in the record is very meager, and we are doubtful as to its sufficiency, but the order shows-a compliance with the statute. It will, therefore, be presumed that the time was extended “for good cause shown,” although the record states that the time for making and serving a case was extended “without any formal application — simply a request by letter.”
This action was commenced by Charles Campbell in the district court of Linn county against EL C. Reese to recover on his statutory liability as a stockholder in the Citizens’ Bank of Mound City. The defendant Reese answered, and alleged that he had paid to bona fide creditors of the bank a sum in excess of his liability as a stockholder.
Plaintiff in error contends that the trial court erred in permitting the defendant to prove payments made on different dates from those alleged in his answer. The payments alleged in the answer to have been made are as-follows : February 6, 1894, to H. E. Burton, $979.46 ; June 23, 1894, to H. A. Strong, $470. The payments proved were made to the same persons, in the same year, but on the 23d day of July. This is not such a variance as will constitute error.
It is further contended that the payments made July 23 are not available as a defense. They were made after the petition had been filed and summons issued, but before service on the defendant. In the absence of actual notice, the. notice imparted by the record is not sufficient to bind the defendant. In the case of Marshall v. Shepard, 23 Kan. 326, the supreme court said:
“The doctrine of lis'pendens applies only in cases w-here the suit is about some specific piece of property, and then only to the extent of preventing a purchaser, pendente lite, from acquiring an interest in the thing in litigation, to the prejudice of the adverse party.”
The last contention of plaintiff in error is that payment by a stockholder, by means of a promissory note, of a claim against the corporation, is not suffi cient to relieve the stockholder of his statutory liability. In the case of Howell v. Manglesdorf, 33 Kan. 197, 5 Pac. 761, the court said: “He may also set up as a defense, that he is discharged by having already paid the amount of his individual liability to other creditors of the corporation.”- _ (
Payment, in this connection, cannot be used in its restricted sense ; that is, the discharge in money of a sum due. In this case it is disclosed by the evidence that bona fide claims against the insolven t bank were purchased by defendant in error. A part was paid in cash, and for the balance he gave a promissory note, which was accepted by the creditor as payment. From a careful reading of the evidence, we are satisfied that the whole transaction was for value and done in good faith. We know of no authority that will preclude the pleading and proof of such payment as'a defense.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
The plaintiff in error seeks to reverse a judgment of the district court of Reno county in favor of the defendant in error in the sum of $129.68. The facts appearing in the record are, in brief, as follows : The defendant in error delivered to the plaintiff in error, at St. Louis, Mo., to be forwarded to Hutchinson, Kan., one box of clothing, of the alleged value of $144.45, receiving a bill of lading therefor. After the goods reached Hutchinson, the defendant in error requested the station agent to hold the goods for a few days, and the agent consented to do so, without charge for storage. About thirty days after the arrival of the box of goods, the husband of the defendant in error was introduced to the railway company's agent at the depot in Hutchinson, and stated that he had “come for that box,” meaning the box billed to the defendant in error. The goods were thereupon delivered to him, and he disposed of the same, all of which acts were without the knowledge or consent of the defendant in error, who was ignorant of the fact that he had obtained the goods until some days later, when she called for the box. She held the bill of lading, and the same had not been transferred. The defendant in error and her husband were not living together.
The district court instructed the jury that the only question of fact for their determination was the fair market value of the goods at the time they were delivered by the defendant company to a person other than the plaintiff; that the defendant, having as bailee accepted the goods from the plaintiff, was bound in law to deliver the same to her or her authorized agent, and that there was no evidence in the case to show that the goods were so delivered. An examination of the record shows that the evidence warranted the giving of this instruction. The court refused to give certain instructions asked for by the defendant below, which in effect .stated that the delivery of the box of goods to the husband of the defendant in error was only slight negligence and not such as to render the railway company liable, for the loss of the goods. The instructions were properly refused, as not being the law and as invading the province of the jury. (Wheeler & Wilson Mfg. Co. v. Morgan, 29 Kan. 519; L. L. & G. Rld. Co. v. Maris, 16 id. 333; U. P. Rly. Co. v. Moyer, 40 id. 184, 19 Pac. 639.) The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
Upon a motion to revive a judgment in favor of the defendant in error and against the testator of the plaintiff, an objection was made to the introduction of the summons and return on the ground that the summons was void. It was issued November 9, 1887. . The answer-day was fixed in the summons for the 9th day of December, 1887. The officer was directed to return the writ on the 19th day of- December, 1887. It was contended that for this reason the summons was void and gave the court no jurisdiction'. The. return of the sheriff upon this summons. recited that it was served on the 14th day of November, 1887, “Upon the within-named James M..Dendry.” In the body pf the summons the. defendant was properly, named as James M. Ple-ndry.
The summons was not void. The return-day fixed by the clerk as December 19, 1887, instead of November 19, 1887, was an apparent clerical error that might have been corrected at any time on the record itself. The indorsement on the summons stated that it was returnable November 19, 1887. The record of the court so recited. It could-not have misled the defendant. The summons advised him -when his answer was due. The court acquired jurisdiction by the serv-' ice thereof on the defendant to render the judgment' it did- render. The second contention, namely, that the summons was void because it was served on James M. Dendry instead of James M. Hendry, the defendant, is likewise without merit. (Bank v. Sewing Society, 28 Kan. 424, and cases cited there by the court.) The same remarks apply to the third contention, which is that the amendment of the return of the sheriff on' the summons was void because at the. time the amendment was made the sheriff’s term' had expired. > '■
The fourth contention is that the execution issued September 9, 1892, and .the return, .thereon were not proper evidence because the execution was not returned and filed within the sixty days limited by the statute. It is true that the record discloses that it was not filed in the clerk’s office until the -26th of November, 1892. The return states that it was made on the 8th of November and within the sixty days. It is contended that because it was. not filed within' the sixty days it does not prove that any execution was issued or any effort made in good faith to collect the debt,-and therefore there was nothing to prevent the judgment from becoming dormant within five years from the last execution, which was issued August 5, 1889, or more than five years prior to the death of the defendant Hendry. The execution was filed and it- became, a part of the record and was evidence of the facts which it recited necessary to be proved by the plaintiff; that is, that execution had issued in good faith to the sheriff of Douglas county in an effort by the plaintiff to collect his judgment. It is true, as counsel say in their brief, that after the return-day nothing can be done under the execution. It is then functus officio. However, had a levy been made prior to the return-day, the writ would have been sufficient warrant for the sheriff making a sale. So that the fact of its not being returned does not render the act of the clerk in issuing it void, nor the act of the plaintiff in having it delivered to the sheriff void ; nor does it prevent it from becoming a part of the'record upon being filed, and, as a part of the record, proving the facts necessarily recited both in the writ and the return. The proof justified the judgment of revivor; no valid reason was shown by the defendant to the contrary.
The judgment is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced in the district court of Greenwood county by plaintiff in error against the defendants in error for the wrongful and unlawful detention of certain real estate claimed by plaintiff in error as his homestead. The case was tried by the court, special findings of facts were made, and the court found in favor of the defendants. The plaintiff brings the case here for review. -
The contention of plaintiff in error is that the homestead was conveyed without the joint consent of both husband and wife. The trial court found that plaintiff in error A. J. Bell and Naomi S. Bell were husband and wife ; that Naomi S. Bell was the legal owner of the premises ; that the premises were occupied by plaintiff in error and his wife as a homestead ; that Naomi S. Bell entered into an agreement with L. V. Slasor for the purchase of the homestead; that in pursuance of the agreement a deed was prepared and sent to plaintiff in error A. J. Bell, who was temporarily residing in Miami county, Kansas ; that Bell signed and acknowledged the execution of the deed and returned it to his wife, Naomi S. Bell, and two days thereafter Naomi S. Bell signed and acknowledged the deed and delivered it to the defendant L. V. Slasor, who immediately took possession of the land and has been in such possession ever since. The court also found that “ while in Osawatomie (Miami' county) plaintiff authorized his .wife Naomi S. Bell to sell the homestead upon terms satisfactory to the plaintiff, but just what those terms were is not disclosed by the evidence.”
Upon these facts did the trial court err in holding the conveyance good? We think not. No fraud, deception, misapprehension or illiteracy appears. In fact, the transaction, so far as it relates to the execution of the deed in question, -was conducted by the husband and wife without suggestion from any one. Only one'deed was executed. This was sent by the wife to her husband at Osawatomie, where he signed and acknowledged it and returned it to her ; and she signed, acknowledged and delivered the same to the defendants in error two days later. The failure of’ the husband ' and wife to sign and acknowledge the execution of a deed, conveying their homestead, at the same time and place is not sufficient of itself to show that it was made and executed without the joint consent of both husband and wife.
Our attention is called to the following authorities: Tarrant v. Swain, 15 Kan. 146; Chambers v. Cox, 23 id. 393; Coughlin v. Coughlin, 26 id. 116; Bird v. Logan, 35 id. 228, 10 Pac. 564; Howell, Jewett & Co. v. McCrie, 36 id. 636, 14 Pac. 257. There, can be no dispute as to the law in this state. . The homestead cannot be alienated without the joint consent of husband and wife, when that relation exists. The application of this plain provision of our organic law must depend on the facts in each particular case.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Milton, J.:
This was an action for damages for alleged conversion by O. S. Gibson and J. "W. Mann of a horse belonging to Ered. C. Gross, the plaintiff below. Trial was had to the court December 5,1892, and judgment was rendered in favor of Gross for $125. The petition stated a cause of action for conversion of exempt property. The answer of the defendants, now plaintiffs in error, averred that Gibson was sheriff and Mann a deputy sheriff of Cowley county on and prior to December 9, 1890, and that on said day Mann levied on the horse under an execution duly issued out of the district court of that county, on an unsatisfied judgment in favor of the Union Debenture Company and against the plaintiff Gross ; and that all further proceedings under the writ, including the sale of the seized property and the return of the writ to the clerk of the court, were in strict accordance with the commands of the writ and the provisions of law. The execution was lost after being so returned.
After these proceedings in error were begun, one of the plaintiffs in error, J. W. Mann, died. Permission has been granted by this court, at the request of Gibson, that the case proceed in his name alone. Counsel for defendant in error contends that the judgment should be affirmed for the reason that it was rendered jointly against Gibson and Mann, one only of whom now appears in this court. As counsel admits that the judgment has not been revived in the district court against the personal representative of the deceased debtor, it seems proper to hold that the judgment now stands against Gibson alone and that he is entitled to maintain these proceedings.
The court made findings of fact and conclusions of law, one of the conclusions being that the plaintiff was the head of a family and his property exempt from seizure, at the date of the levy. This conclusion is the first error of which complaint is made. The facts show that the plaintiff, after the death of his wife, placed his two little children with relatives, disposed of nearly all of his household goods, and for several years prior to the levy lived at different places as a boarder, but did not at any time reside with his children. Within the provisions of paragraph 2998 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 118, § 3), as construed in Zimmerman v. Franke, 34 Kan. 650, 9 Pac. 747, the plaintiff was not the head of a family at the date of the alleged conversion of his property, and the.property was not exempt.
The judgment as entered was erroneous, and it is therefore reversed, and the case remanded with instructions to enter judgment in favor of the plaintiff in error for costs. .
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The opinion of the court was delivered by
Wells, J.:
The only reason urged by the defendant why the judgment of the district court should be reversed is that the state failed to prove that the offense was committed in Shawnee county. A review of the evidence shows that of the witnesses who testified on the trial each one located the place where the offense was committed as 514 or 516 Kansas avenue, or both of, said numbers, except George Bass, who located it at 514, without even giving the name of the street, and R. M. Curtis at 514 and 516 Kansas avenue, up-stairs, known as the Jockheck building; but by agreement the affidavit of George Hungate was admitted, and in his evidence the location was fixed at 514 and 516 Kansas avenue, in the city of Topeka, Kansas. This was sufficient to fix the venue. Courts will take judicial notice of such general facts as everybody in their jurisdiction is supposed to know. In State v. Reader, 60 Iowa, 527, 15 N. W. 423, it was said : “As the court will take judicial notice in what county a given incorporated town is situated, when it is proven that a crime was committed in an incorporated town, the venue is sufficiently shown.” In Sullivan v. People, 122 Ill. 385, 13 N. E. 248, it was held : “The court will take judicial notice that Chicago is in Cook county, and proof that a crime is committed in Chicago is proof that it was committed in Cook county.”
The evidence was sufficient to sustain the verdict. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J.:
This action was originally brought in the district court of Rooks county by the plaintiff in error against the defendants in error. In his petition, he substantially asserts ownership and right of possession of certain notes and mortgages therein described, and alleges that he allowed the defendant Farr to deposit said notes and mortgages with the defendant the Exchange Bank of Stockton to secure the nóte of the defendants Felix Smith and Geo. O. Farr for $959.50, falling due May 15, 1895. He avers that h.e believes the fact to be that, by agreement between said bank and said Smith and Farr, the bank received from Smith and Farr certain other mortgage security and the payment of interest, and in consideration thereof extended the time for the payment of their note several times, by reason whereof said bank lost its right to. plaintiff’s notes and mortgages. He therefore prays a disclosure of the facts by the defendants, and if it be found that said note of Smith and Farr has been extended, that the plaintiff’s notes and mortga.ges be returned to him ; but if the court should find that said note has not been extended, then that the court render judgment in his favor, for the use of the bank, against Smith and Farr, for the amount due on their note to the bank, and foreclose the mortgage last given by them as security therefor, and that plaintiff have return of his notes and mortgages, and all other equitable relief.
To this petition the defendants demurred, on the grounds that several causes of action were improperly joined and that the petition did not state facts sufficient to constitute a cause of action. This demurrer was sustained on both grounds as to all the deifendants except the bank, and was sustained in favor of the bank on the first ground and overruled as to the second. Thereupon the action was dismissed by the court as to all the defendants except the bank, and the plaintiff was required' to elect whether he would proceed in equity or at law as in replevin, and, duly objecting to such order, the plaintiff elected to adopt the latter course. In this there was error. The petition stated a cause of action, and but one. If the allegations of the petition were true, and by reason of extensions the surety had been released, then the plaintiff was entitled to a restitution of his property ; but if the surety had not been released and the other allegations of the petition were true, then the plaintiff was entitled to have the matter closed up, the security of the principal debtors exhausted, the balance made from his security, and the remainder turned back to him. And in this Smith and Parr were necessary parties.
In relation to the order of the court compelling plaintiff to elect a name for his cause of action, we quote from the language of Mahan, P. J., in Freeman v. Trickett, 6 Kan. App. 84, 49 Pac. 672:
“ Our code of civil procedure has abolished all forms of actions, and has declared that there shall be but one form of action, which shall be called a civil action. It provides that the plaintiff shall state the facts constituting his cause of action concisely, without repetition, and it then becomes the duty of the court to say whether or not it states a cause of action, and to what relief the plaintiff is entitled ; but it is unnecessary to say whether it would have been called at common law by this, that or the other name. The court simply has to determine whether the rights of the plaintiff have been violated by the acts of the defendant, and if so, what the plaintiff's measure of recovery is.”
It is not necessary to consider the other allegations of error. The judgment is reversed, and the case remanded with direction to grant a new trial and to overrule the demurrer to the petition.
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The opinion of the court was delivered by
Milton, J.:
This action was brought by the Badger Lumber Company to foreclose a mechanic’s lien for building material furnished to J. B. Bryan under a contract made in December, 1891, to be used in the erection of a dwelling-house on a lot in the city of Winfield. Eighteen holders of mechanics’ liens were made defendants, together with J. B. Bryan and Mattie Bryan, his wife, Cora L. Johnson, now plaintiff in error, and Mahlon E. Johnson, her husband. The petition alleged that the contract was made with J. B. Bryan, the owner of the lot. In their joint answer and cross-petition, Cora L. Johnson and Mahlon E.. Johnson averred that in August, 1891, Cora L. Johnson, then and ever since the legal owner of the lot in question, entered into a written contract with J. B. Bryan for the sale and conveyance of the lot to the latter upon the performance of certain conditions on his part; and that he had wholly failed to perform the conditions of the contract, a copy of which was annexed to the cross-petition, and was not entitled to a conveyance of the legal title to the property.
The defendant lien-holders answered severally, and averred that they had entered into contracts with J. B. Bryan, who was the equitable owner of the lot, and the agent of Cora L, Johnson, the legal owner of the property, to furnish materials or labor for the construction of the dwelling-house. They also an swered the cross-petition of the Johnsons, denying all the averments thereof except that relating to the agreement to convey the premises to Bryan. The Johnsons replied to each of the cross-petitions of the defendant lien-holders, and denied under oath the. allegation therein as to the agency of Bryan. The plaintiff filed a single unverified reply to all of the cross-petitions, denying the averments thereof. ' The record consists of the pleadings, the journal entry of judgment, the motion for a new trial and the order overruling the same, and does not contain the evidence introduced on the trial. As a part of its judgment, the court found as follows :
“That the legal title to the real estate set out in plaintiff’s petition herein and in the answers and cross-petitions of all the defendants herein . was at all times since the filing of .the mechanics’ liens in this case, and is now, in the defendant Cora L. Johnson, and that the equitable title to said real estate is in the defendant J. B. Bryan, and was at all times hereinafter mentioned.”
Other findings were to the effect that the plaintiff and each of the lien claimants had entered into separate contracts with J. B. Bryan for furnishing materials or labor to be used in and about the erection of the dwelling-house hereinbefore mentioned. The court also found that Cora L. Johnson was entitled to a lien on the real estate in the sum of $500 and interest, for unpaid purchase-money, and that her lien was subject and inferior to the liens declared in favor of the other parties to the action. The judgment ordered the sale of the property and a distribution of the proceeds of such sale, pro rata, in satisfaction of the claims of the lien-holders of the mechanics’ liens, and payment of the residue, if any, to Mrs. Johnson.
The petition in error does not assign for error the overruling of the motion for a new trial, which was filed by Oora L. Johnson and her husband. The grounds of the motion were the same as those of the motion in the case of National Bank v. Jaffray, 41 Kan. 691, 19 Pac. 626. Under the authority of that decision, it must be held that no question is properly raised as to matters occurring on the trial of the case.
The only question that can be considered is whether the pleadings authorized such a judgment as was rendered. (Mitchell v. Milhoan, 11 Kan. 617, 625.) The facts set forth in the pleadings and the findings, which appear as a part of the journal entry of judgment, show that Cora L. Johnson was the legal owner and J. B. Bryan the equitable owner of the premises in controversy at and after the times when the several contracts for matérial and labor were made.” The record must be taken as showing that the court so found from the pleadings and evidence, and concluded therefrom that the equitable owner of the real property could encumber the entire estate, both legal and equitable, by contracts resulting in mechanics’ liens. This conclusion is contrary to decisions heretofore rendered by the supreme court. In the case of Seitz v. U. P. Railway Co., 16 Kan. 133, it appears that a contract for the erection of a hotel was made with the equitable owner of the real estate, and that the holders of the mechanics’ liens sought to enforce the same against the entire estate. The judgment of the court below was that the property should be sold and the claim of the railway company, the legal owner of the land, be first paid from the proceeds of the sale. The supreme court held that the judgment of the district court was correct, and that the mechanic’s lien under the contract with the equitable owner extended only as far as the title of that owner extended, and did not reach the legal estate or affect the right of the party holding the legal title. In Lumber Co. v. Schweiter, 45 Kan. 207, 25 Pac. 592, the same doctrine was declared. Again, in Getto v. Friend, 46 id. 24, 26 Pac. 473, we find a decision to the same effect, one paragraph of the syllabus reading :
“In actions to foreclose mechanics’ liens for work done and for material furnished under a contract with one who has an executory contract for the purchase of a city lot and is in possession thereof, the lien of the mechanic or material-man must be measured by the extent of the equity of the purchaser under the executory contract.’ ”
It is evident that the judgment of the trial court is not supported by the pleadings and the findings. It will therefore be reversed, and the cause remanded for further proceedings in accordance with the foregoing views.
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The opinion of the court was delivered by
Milton, J.:
The issue between the plaintiff in error and the defendants in error, who were respectively plaintiff and defendants below, may be summed up as follows : The answer averred that the plaintiff had no right of action on the mortgage which he sought to foreclose for the reasons that, in a transaction between the plaintiff and defendant George Holtom, whereby certain lands were actually exchanged and transferred between the parties, the plaintiff had accepted a deed from George Holtom and Ann Holtom, his wife, for the mortgaged premises, in which he, the plaintiff, had assumed and agreed to pay the said mortgage, and that although the said deed was in blank as to the name of the grantee, yet that the same was so left at the request of the plaintiff for his convenience, he being authorized by the grantors to insert his own name or the name of some other person as grantee therein whenever he should choose to do so, and that after the delivery of the deed the plaintiff had assumed to own and exercise acts of ownership over the said land. The reply admitted practically all of the allegations of the answer, except that the plaintiff alleged that he was acting as agent of his daughter, Belle Calhoun, and of her husband, N. S. Calhoun, in affecting an exchange of lands with the defendant George Holtom, and that the defendants well knew lie was so acting. He also alleged that he had bought the mortgage for a valuable consideration. The reply concluded as follows :
"That at the request of said'N. S. Calhoun and Belle Calhoun, and by their direction, the plaintiff has deposited with the clerk of this court the blank deed aforesaid, to be by said clerk returned and delivered to said George Holtom, as the court may direct.”
This action was commenced more than three years after the exchange of the lands, and George Holtom had fully performed all of the terms and conditions of the agreement for such exchange. There was evidence tending to prove that the plaintiff desired to take the deed with a blank for the name of the grantee because of the insanity of his wife. He testified that the deed was made in that form at his own request. The judgment of the district court was in favor of the defendants Holtom and wife for costs.
As we view the record, the foregoing states the only issue in the case requiring our consideration ; and if the judgment of the trial court is correct as to such issue, there was no error in rejecting the offer of the record of the deed from the mortgagors, Beymer and wife, to their immediate grantee — the offer having been made for the purpose of showing that Holtom’s grantor was liable for the payment of the debt sued on herein and which Holtom had by the terms of the deed to himself assumed and agreed to pay.
Counsel for plaintiff in error earnestly argue that the deed executed by the defendants in error and delivered to plaintiff was void because no grantee was named therein. They ask this question : "What rights .could the plaintiff enforce under such blank deed by reason of his being in possession thereof?” The cases of Ayres v. Probasco, 14 Kan. 175, and The, State v. Matthews, 44 id. 603, 25 Pac. 36, are cited as supporting the proposition that the deed was absolutely yoid. We do not understand that the supreme court of this state has decided that such a deed is yoid where the grantors therein are insisting upon its validity and where the party to whom the deed was delivered, and at whose request it was left in blank as to the name of the grantee, entered into possession of the land attempted thereby to be conveyed. In effect, the judgment of the trial court in this case has written the name of the plaintiff into that deed as the grantee therein, and as between the defendants in error and the plaintiff in error the latter is adjudged to be the' owner of the land. The general finding in favor of the defendants in error is a finding that the plaintiff acted for himself and not as the agent of the Calhouns in the matter of the exchange of lands and that he was bound by the terms of the agreement for the exchange to pay the debt secured by his alleged mortgage.
The judgment of the trial court is sustained by competent evidence and will be affirmed.
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The opinion of the court was delivered by
Milton, J.:
In this action F. Finnup recovered judgment against Garfield township, Finney county, on a number of county warrants issued under the authority of the county commissioners of Garfield county prior to March 7, 1893, at which date the organization of that county was declared invalid by the supreme court, in the case of Hie State, ex rel., v. Comm'rs of Garfield Co., 54 Kan. 372, 38 Pac. 559. Each of the counts of the petition was in form as follows :
“Plaintiff states, for his-cause of action, that the defendant is a duly organized municipal corporation and the legal successor of Garfield county, Kansas, and is constituted of the same territory and inhabitants formerly composing Garfield county, Kansas, and that on-day of-the board of county commissioners of Garfield county audited and allowed to the plaintiff against said Garfield county, Kansas, the sum of-dollars, and ordered a warrant issued on the treasurer of said county, a copy of which is hereto attached, marked exhibit-, and made a part hereof, and that on the-day of - said warrant was duly presented to the treasurer of said county for payment and indorsed by said treasurer ‘ Presented for payment and not paid for want of funds/ and that the defendant is indebted to the plaintiff upon said warrant in the sum of-dollars, with six per cent, interest thereon from the-day of-.”
The defendant filed a motion, consisting of several separate paragraphs, to strike out certain allegations from the petition, and, in effect, asked that each and every allegation of each count of the petition be stricken out. The motion was overruled. The de fendant then demurred on all except the second of the statutory grounds. The demurrer being overruled, the defendant answered by a general denial, and an allegation that Garfield county never had a. legal existence, and that on the 7th day of March, 1893, the supreme court of Kansas had so decided; and a further allegation that one of the warrants on its face appeared to have been issued at an adjourned meeting of the county commissioners. The affidavit verifying the answer related only to the allegation respecting the invalidity of the county organization. The plaintiff offered in evidence the original warrants and no further evidence was introduced by either party. The following admission appears in the record:
“It is admitted that there were persons claiming to act and were acting as the various county officers, as named under the law of Kansas, of the alleged county of Garfield, up to the time the supreme court, in the case of The State, ex rel., v. Rowe, declared them to be usurpers.”
The foregoing refers to the case of The State, ex rel., v. Comm’rs of Garfield Co. et al., supra.
After a careful consideration of the various propositions argued by counsel, we have reached the conclusion that the trial court did not err in overruling the demurrer and the motion to strike out, and that the judgment in favor of the plaintiff below was correct. The reasons for this conclusion are as follows :■ The status of Garfield township as a municipality, and in relation to the creditors of Garfield county, has been settled and determined by the legislature and the supreme court. In the case of The State, ex rel., v. Comm’rs of Garfield County, supra, wherein the act creating Garfield county was declared unconstitutional and void, and the county was held to be an unconstitu tional and void organization, the rights of its creditors were expressly declared not to have been adjudicated or determined. Eleven days after that decision was rendered, chapter 98, Laws of 1893, entitled “An act creating the township of Garfield, of Finney county, Kansas,” etc., took effect. By this act the territory formerly known as Garfield county became a municipal township of Finney county. Section 2 of the act declares that the territory so attached should in no way become liable for any of the indebtedness theretofore created by Finney county ; and section 3 declared that Finney county should in no way become liable for the indebtedness theretofore created by the organization theretofore known as Garfield county. In the case of The State, ex rel., v. Lewelling, Governor, 51 Kan. 562, 33 Pac. 425, the said act was declared constitutional and valid. In Riley v. Garfield Township, 54 Kan. 463, 38 Pac. 560, on the hearing of the motion to quash the alternative writ of mandamus, the court held :
“ The township of Garfield, in Finney county, is, as a public municipal corporation, the legal successor of Garfield county, and therefore is liable for the valid debts created by that county during its de facto organization or existence.”
In the same case, in the trial on its merits, the court held that Garfield county, from the time of its organization until the decision in the case of The State, ex rel., v. Comm’rs of Garfield Go., supra, was a county de facto, and that the acts of its officers were the acts of de facto officers, and binding as such between the people of the county and persons dealing with them as public officers. (Riley v. Garfield Township, 58 Kan. 299, 49 Pac. 85.)
From the foregoing, it is clear that Garfield township became the municipal successor of Garfield county, and therefore liable for the payment of the warrants sued on in this action, as the same were in due form and, presumptively, properly issued. The decision in Vandriss v. Hill, 58 Kan. 611, 50 Pac. 872, is not only not opposed to, but in fact sustains, the conclusion we have reached.
Counsel for plaintiff in error seems to claim that the defendant in error is bound by the language of the “ admission ” hereinbefore quoted, and that thereunder the officers who issued the warrants sued on must be regarded as usurpers. This position is untenable, in view of the decision in Riley v. Garfield Township, supra.
The contention that the plaintiff should have pleaded that he had made a demand on the proper officers of Garfield township for payment of the warrants is answered by the decision of this court in the case of Finney County v. Gray County, ante, p. 745, 54 Pac. 1100, where it was held that such an allegation was not necessary. This question was not raised by the answer and was therefore waived; besides this, the petition here alleges that the warrants were duly presented to the treasurer of Garfield county for payment, and indorsed by the said treasurer, “ Presented for payment and not paid for want of funds.”
Other claims of counsel do nob require specific mention. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This'action was commenced in the district court of Miami county by defendant in error A. Young against the Missouri, Kansas & Texas Railway Company, to recover for a personal injury sustained by being caught between the ends of a freight train as it was being backed over a crossing for the purpose of coupling the two ends together. The case was submitted to a jury, a verdict returned, and judgment rendered in favor of plaintiff below for $475. The railway company brings the case here for review.
The allegation of negligence in the petition is as follows :
“That on or about the 7th day of December, 1894, this pláintiff was driving along one of the public streets of the city of Paola, across which the said defendant operates said railroad; that at the place where said railroad crosses said public street said defendant had standing one of its freight-trains cut in two or divided for about the width of said public street so that one part of said train stood on one side of said public street and one part on the other side ; that as this plaintiff approached said crossing, diligently watching and listening for signals, and driving a team of horses hitched to his wagon, said train was standing perfectly still and motionless ; that just as the team driven by this plaintiff had got upon the track over and upon which said defendant operates said railroad said defendant negligently, and without giving any signal or notice of any kind that could be seen or heard by this plaintiff, backed one part of its said train swiftly and suddenly upon the wagon in which this plaintiff was riding, so that said wagon was broken, damaged, and destroyed, and this plaintiff violently thrown from and out of said wagon and against one of the cars of said defendant, and was by said negligent backing of said train as aforesaid wounded and bruised and rendered sick and unwell, so that he suffered great bodily and mental pain and anguish, and was thereby, by the said negligent act of the said defendant, permanently and seriously injured, all to the damage of this plaintiff in the sum of $2000.”
The defendant answered by a general denial, and alleged contributoi’y negligence on the part of the plaintiff Young.
The first contention of the plaintiff in error is that the trial court erx-ed in refusing to sustain the demux’rer to the evidence. It is disclosed by the testimony that the train was standing on one of the principal public crossings in the city of Paola. The train was uncoupled and divided, the two divisions being about twenty feet apart and standing one on each side of the public cx^ossing. The train had been in this position about twenty minutes before the ac cident. The plaintiff below, with his team and assistant, approached the crossing from a field, through a gate which is about fifty feet from the crossing.
Plaintiff testified as follows :
“Ques. And you stopped when you opened the gate? Ans. I stopped for him to open the gate and then I stopped for him to shut it and get on.
“ Q,. Did you look? A. Yes, sir.
“ Q. Did you see anybody around the train? A. No, sir.
“ Q,. Then what did you do? A. After he got on the wagon I started to go across the railroad-track, and just as the horses got on the track they began to back up, and they backed up quick, and I knew I could n’t back them up and get off the track, and I thought I could get them across, and I whipped up the horses, and just as I got the fore wheels across the bumper struck the wagon, and I hit them a little harder, and then the wagon turned oyer this way (indicating) , and it caught me in here (indicating),' and it pinched me and caught my knees, and they backed the whole train a few feet with me in there.
“Q,. Now, then, before the train backed, did you hear any noise? A. No, sir.
“Q,. Any whistle? A. No, sir.
“ Q,. Or the ringing of any bell? A. No, sir.
“ Q. "Was there any signal or whistle or signal of any kind given? A. No, sir; I didn’t see any one; I thought they had gone to their suppers.”
Further quotations are unnecessary. Witness Lewis Menges testified in about the same manner. From an examination of the evidence demurred to, we are satisfied that the overruling of the demurrer by the trial court was not error. (Railway Co. v. Toomey, 6 Kan. App. 410, 49 Pac. 819.)
The second ground for reversal is that the trial court erred in giving the following instruction :
‘ ‘ If you find from the evidence that the plaintiff sustained the injuries as alleged in the petition, or any part thereof, and that such injuries so sustained were caused by the negligence of the employees of the defendant company, and that the plaintiff was not himself guilty of negligence contributing to such injuries, then you ought to find for the plaintiff.”
Counsel insist that this instruction is misleading in that it does not confine the jury to the issues framed by the pleadings, but permits them to find against the company on any negligence of the employees of the company who may have caused the injury. The instruction is a correct general statement of the law, and under the broad allegations in the petition is not misleading. If counsel. for plaintiff in error had desired a more specific statement, he should have requested special instructions. In the case of Hoyt v. Dengler, 54 Kan. 309, 38 Pac. 260, the supreme court said : “Where no instructions are asked, a failure to make them as full as the plaintiff would like is not ground of error.” (Reamer v. Columbia, 5 Kan. App. 543, 47 Pac. 186.)
The other objections presented have been considered. They are not sufficient to require a reversal of the case. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dennison, P. J.:
Our jurisdiction to review this case is challenged on the ground that the petition in error was not filed in this court within one year from the rendition of the final order complained of. The motion for a new trial was overruled April 12, 1894. The petition in error was filed in the supreme court on April 1, 1895, and sent from there to this court and filed July 81, 1895.
The law creating the courts of appeals provides :
“ In the event of any case being sent from a lower court on appeal or writ of error to the wrong court of appeals, or to the supreme court, it shall be the duty of the court to which the case has thus been sent, immediately upon such fact coming to its attention, to direct its clerk to forward the transcript or record therein, with the order of transfer, to the clerk of the proper court of appeals'. ... On the receipt of such record by the proper clerk, he shall at once file the same in his office, and the case shall be proceeded with in the court to which it is transferred as if the same had gone there directly from the trial court.” (Laws of 1895, ch. 96, § 10 ; Gen. Stat. 1897, ch. 84, § 24.)
Construing this statute, we hold that where, within the year, a case is filed in the supreme court or in the •courts of appeals and a summons issued thereon, or a waiver thereof filed — as was done in this case — the action is commenced in time, although it is not sent to the proper court until after the year had expired. We will, therefore, examine the case on its merits.
This action was brought in the district court of Crawford county by the defendant in error to recover from the plaintiff in error a balance claimed to be due from him to the Farmers’ Alliance Cooperative Association. It appears that the said association was indebted to Haldeman and others, and gave to Haldeman and the Ridenour-Baker Grocery Company a chattel mortgage to secure the indebtedness due them. Possession of the goods, merchandise, notes and accounts of the association was given to Haldeman until such time as by sales and collections he could obtain funds sufficient to pay the two mortgages. While Haldeman was in possession, the defendant in error, Johnson, was by the court appointed receiver, and Haldeman was ordered to turn the possession of the property over to Johnson, and to make a verified account of his transactions while in possession of the goods and file the same with the clerk of the district court of said county. This was finally done, and Johnson receipted to Haldeman for the property he received from him, and in full settlement of all accounts between the association and Haldeman.
Afterward Johnson brought suit against Haldeman, alleging that certain items were improperly charged, and that his accounting was incorrect. Haldeman attaches to his answer, which was filed March 5,1894, a copy of the statement filed with the clerk under the order of the court, which has his name and that of Nettie R. Cole signed thereto, and following each name are the following words: “ Subscribed and sworn to before me, this 27th day of November, 1893.” This is signed and sealed by a notary public.
Many of the assignments of error are founded on the theory that the allegations of the answer as to the correctness of this account are duly verified by the affidavit of the defendant below. We are unable to find in the answer a statement that this account is correct. The account itself is prefaced with the following statement:
“Girard, Kan., November 27, 1893.
“ To the Honorable the District Court in and for Crawford County, Kansas:
“Statement of H. W. Haldeman and RidenourBaker Grocery Company, mortgagees, in compliance with an order issued by said court November 16,1893, concerning the property of the Farmers’ Alliance Cooperative Association, of Girard, Kansas.”
The language of the statute is that an allegation of the correctness of any account duly verified, etc., shall be taken as true unless the denial of the same be verified, etc. There being no allegation of the correctness of the account, there can be no denial'thereof, and the account is in issue under the general denial.
Other assignments of error are to the effect that the court erred in admitting and excluding evidence. We have carefully examined thd record and the briefs and find no reversible error in the rulings of the trial court thereon.
The jury returned a verdict against the plaintiff in error for the sum of $1000. The court overruled the motion for a new trial on condition that the plaintiff below would remit the sum of $330 from the verdict of the jury. This was done and judgment was accordingly rendered for the sum of $670.
It was held by the supreme court in Broquet v. Tripp, 36 Kan. 700, 14 Pac. 227, that the trial court had ample authority to order such a reduction ; and in Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352, it was held that the supreme court had authority to order such a reduction. In either case the acceptance of the successful party was necessary ; otherwise a new trial would be granted. The only cases in -which the correctness of this practice is questioned are those in which it clearly appears that the jury were influenced by passion and prejudice. An examination of the record fails to disclose passion or prejudice on the part of the jury. There was evidence introduced showing that the account of Haldeman for expenses in running the business was largely in excess of what the expenses had been when Smith was manager. It is more reasonable to suppose that the jury found this fact against Haldeman and included it in their verdict, than to assume that they were influenced by passion and prejudice.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
This action was brought by the plaintiff in error against the defendants in error to recover the sum of $1250, claimed to be due under the terms of a lease of certain land for coal-mining purposes, for the year beginning August 1, 1893. The defendants were the assignees of the lease. It was executed on the 20th day of June, 1893, and the assignment thereof was made in February, 1894. By the terms of the lease, the lessees agreed that at their own expense they would sink all necessary shafts, put in all requisite machinery and hoisting apparatus, construct suitable railway-tracks and switches, and erect and maintain all equipments necessary to successful operation of the mine, and that they would put the mine in a first-class condition and would employ experienced miners to operate the same. They agreed to pay as royalty one-half cent per bushel of eighty pounds for all “lump” and “mine-run” coal taken from the mine, and to pay the amount due for royalty for each month on or before the 1st day of the following month. The lease further provided as follows :
“Said parties of the second part further agree to commence work at once and vigorously prosecute the same, so as to have said mine in working order at the earliest possible time. Said mine shall have a capacity of not' less than two cars per day of royalty coal, in the absence of ‘ horsebacks ’ and other faults in the coal stratum.
“Said parties of the second part agree to operate said mine continuously, unless prevented by strikes or other unforeseen or unavoidable causes, until June 20, 1895, or until all coal underlying said tract of land (except as hereinafter provided) which can be practicably mined shall have been taken out. The annual output of said mine, dating from August 1, 1893, shall not be less than 500 cars of 500 bushels each of royalty coal.
“ This lease and contract shall continue and be in force for a period of two years, unless, all the minable coal underlying said land be removed under this contract before the expiration of two years.”
■ It was also stipulated in the lease that all the machinery and other property owned by the lessees and used in and about the operation of the mine should remain on the land after the termination of the lease until all claims and demands of the lessor for royalties, or in any other manner growing out of the lease, should be satisfied, and that the lessor should have a lien on all of the said property for the payment of such claims and demands. The plaintiff testified that he Lad received in the aggregate $450 and no more, as royalties from the original lessees, and from the defendants for the year named in the petition. There was no dispute that this sum was in full payment of all royalties accruing for the coal actually mined during that time.
While the answer set up various defenses, the only substantial issue presented for decision by the trial ■court was, whether the lease bound the defendants to pay annually a sum equal to the agreed royalty on 500 cars of 500 bushels of coal each, even if a less quantity than the minimumnamed in the lease should be actually taken from the mine in any year. This issue was decided in favor of the defendants, and, in the absence of testimony respecting actual damages resulting from the failure of the defendants to comply in this particular with the terms of the lease, judgment was entered for nominal damages in the sum of one dollar.
The testimony of the defendant showed no substantial reason for not operating the mine more extensively, except that the operation thereof was unprofitable, owing to the poor market for coal. The defendants offered no evidence in mitigation of damages. A short time before the commencement of this action the surrender of the lease by the lessees was proposed on certain conditions, but no agreement was reached and the surrender was not made. The evidence offered in respect to an explosion which occurred in the mine in the latter part of December, 1893, cannot be regarded as having any weight, for the reason that the defendants took the assignment of the lease after that occurrence, with full knowledge of the same.
Construing the lease as an entirety, we think it must be held that it fArnishes the agreed minimum measure of plaintiff’s recovery for the one year’s use and control of the mine by the defendants and their assignors. The testimony of the plaintiff showed that he had received only $450 as royalties for coal actually mined during the year named in the petition. Prima facie, he was then entitled to judgment for $800. The testimony on behalf of the defendants did not tend to disprove th e prima facie case thus made by the plaintiff for said sum.
The judgment of the district court will be reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Mahan, P. J.:
Defendants in error move to dismiss upon three grounds : First, that no bond for costs was given as provided by rule 2 of this court. A deposit of money was made with the clerk in lieu of bond, to the clerk’s approval. This was sufficient to authorize summons in error to issue. Second, that the case-made w;as not made and served within the time and mode prescribed by the statute. Under this ground it is contended that no motion for a new trial was required to preserve the exceptions to the action of the court assigned for error ; that no order was made for an extension of time within three days after the orders and judgment complained of; and that the order extending time to make and serve a case after the motion for new trial was denied was therefore void. There was a trial of issues of fact in the case, by the court, and findings of fact made therein, with conclusions of law therefrom. A motion for a new trial was necessary to enable the defendant to avail herself of any supposed errors occurring during the trial or to present the question of the sufficiency of the evidence to sustain the findings of fact. Third, that the brief of the plaintiff in error does not conform to rule 6 of the court. By amendment, with the permission of the court, the brief has been made to conform to the rule without apparent prejudice to the rights of the defendants in error. The motion'to dismiss is denied.
The assignments of error on the merits are as follows : (1) In reducing the amount of the value of improvements made upon the land, that had been agreed upon by the parties ; (2) in allowing, in reduction of the value of improvements, a part of the taxes levied on the land which had been paid voluntarily in 1890 by the plaintiff; (3) in allowing the plaintiffs a second election or to change their prior election made under the occupying claimants’ act; (4) in refusing to allow defendant to reduce the appraised value of the land without the improvements by the amount of rents received by the plaintiff from the improvements while wrongfully in possession thereof during the pendincy of the suit; (5) that the conclusions of law are not supported by the facts as found; and (6) in denying defendants’ motion for a new trial.
The first and second assignments cannot be sustained, because the court therein followed the instructions of this court contained in its opinion in this case, reported in Hentig v. Redden, 1 Kan. App. 163, 41 Pac. 1054. That opinion became the law of the case, and error cannot be predicated on the action of the trial court in observing the diréctions therein given.
The question presented under the third assignment is, Had the plaintiff placed himself in a position so inconsistent with his right to elect to take the appraised value of his land as a successful claimant under the occupying claimants’ act as would in law estop or preclude him from an exercise of that statutory right? He cannot be said to have exercised that privilege before, as the time therefor arrived only when the value of the land and the value of the improvements, respectively, had been determined.
On February 18, 1885, the plaintiff recovered a judgment that he was the owner and entitled to the possession of the land in controversy, upon the payment of taxes. It was a part of that judgment that the defendant was entitled to the benefits of the occupying claimants’ act. The court found the amount of the tax lien, including therein taxes on the improvements as well as on the lands, and charged the defendant with rents and profits of the property, including the improvements, and gave the plaintiff judgment for the excess thereof over the taxes and value of improvements-. This part of the judgment was reversed by this court and the case remanded for a new trial on this branch of the case. Subsequently the amount of the tax lien was determined separately, neither party asking a redetermination of the questions arising under the occupying claimants’ act.
The plaintiff paid the tax lien, asked for and obtained a writ of possession, and was thereunder put in possession of the land December 10, 1890, and remained in possession until he conveyed the land to his grantees, November 29, 1893, and his grantees remained in possession until the trial of June 22, 3896, wherein the judgment was rendered which is complained of in this proceeding.. The plaintiff having theretofore died, the action was revived in the name of the grantees so in possession in. violation of the provisions of the occupying claimants’ act and of the clefendant’s rights thereunder. On the 25th day of June, 1896, they came into court, tendered a deed to the defendant for the land, elected to take the value of-the land, and asked the court to fix a date by which the defendant should pay them the appraised value, or be precluded of all right to her improvements which they had possessed and enjoyed for almost six years. On July 6, 1896, the court permitted the election, and required the defendant to pay them the value, $100.0, in ninety days, and adjudged that, upon her failure to pay, the grantees of plaintiff hold the premises free from all claims of the defendant, and the deed should be returned to them. On the 8th of July the defendant moved the court for an order restoring her to the possession of the property. This was, on July 13, denied her. On the same day she moved the court to ascertain the rental value of her improvements during the several years the plaintiff and his grantees had been in the wrongful possession, and that this rental value be set off against the $1000 so required to be paid by her. This was denied on August 3, 1896. This refusal constitutes the ground of the fourth assignment. Was the position of the grantees of the plaintiff thus voluntarily assumed such as to create a bar or estoppel to their right of election at the time it was allowed?
The court had adjudged the value of the improvements to be a lien on the land, and had decreed a sale of the land in case the grantees did not pay the amount in thirty days. So it will be observed that the land and the possession thereof with the improvements were, by the grantees of the plaintiff and by the court, against the objections and exceptions of the defendant, treated as rightfully in the plaintiff’s grantees. Mr. Bigelow, in his work on Estoppel, page 673, says :
“A party cannot occupy inconsistent positions, and where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of his rights and of the fact, determines an election and works an estoppel.”
There is no paucity of authorities sustaining this statement of the law. The rule has been applied and a party held to be estopped to assert the provisions of a statute making an act unlawful where he had accepted benefits therefrom. (Scholey v. Rew, 23 Wall. 331.) It cannot be asserted that the defendants in error did not know all the facts and their rights thereunder presently accrued or to accrue in the progress of the case. For the fact that there was long delay in determining the rights of the plaintiff in error under the occupying claimants’ act they are at fault. They have been in receipt of the benefits of that long delay and of those arising from their possession, to the injury of the plaintiff in error. We conclude that the acts and position of the defendants in error for so long a time were inconsistent with their claim of election to sell their land at the appraised value, and it being impossible by reason of such acts and position to allow the election without great injustice to the plaintiff in error, the claim of election ought to have been denied.
That part of the judgment allowing this election is reversed, but the judgment is in all else affirmed, and the case is remanded with directions to the trial court to set aside and vacate that part of the judgment giving the defendants in error the election to take the appraised value of the land and requiring the plaintiff in error to pay the same in ninety days upon condition of her forfeiting her rights as occupying claimant in case of her failure so to do. The costs of this court will be divided between the plaintiff and defendants in error.
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The opinion of the court was delivered by
Milton, J.:
This is an action in replevin whereby J. W. Green sought to recover from the defendant railroad company the possession of one Pond lathe and fixtures, then upon a car and about to be. shipped from Hutchinson, Kan., to Des Moines, Iowa. The railroad company answered, averring that it had received the property for shipment to one E. R. Mason, and that the plaintiff and Mason each claimed to be the owner and entitled to the possession of said property. The defendant therefore asked the court to require Mason to interplead in the action. Thereafter Mason filed an interplea, averring that he had acquired the property by purchase from the owner thereof, and that he was the absolute owner and entitled to the immediate possession of the property at the time the plaintiff brought this action. The case was tried by the court and judgment was entered in favor of Mason for a return of the property, or in lieu thereof that he recover $600.
The lathe was a very large and very heavy-piece of machinery, which constituted a part of the manufacturing plant belonging to the South Hutchinson Barb Wire and Manufacturing Company, a corporation organized by Ben. Blanchard, who was its first president. The plant was operated for a few weeks after it was first opened in 1887, and thereafter the lathe was occasionally used. Ben. Blanchard bought the machinery from E. R. Mason, removed it to Hutchinson, erected the buildings, incorporated the manufacturing company, and became the owner of all but four or five shares of the capital stock thereof. He gave his own notes to Mason for the machinery and afterward the company gave its notes, secured by a real-estate mortgage covering the manufacturing plant, in lieu of the Blanchard notes. Mason transferred the notes and mortgage to the Iowa National Bank, which afterward foreclosed the mortgage. The sale of the .mortgaged property under foreclosure took place in July, 1892, and was confirmed on the 7th of September of that year.
In the preceding June, James Blanchard, the secretary of the company, executed and delivered to Mason, with the consent of the said bank, a bill of sale of the lathe and other machinery belonging to the manfacturing company, for a consideration stated at $300. Blanchard purported to execute this instrument as the president of the company. He was not authorized by the directors of the corporation to make the transfer, and such transfer was not afterward ratified by the directors. The last meeting of the directors was held in January, 1891. In February, 1893, Mason caused the lathe to be removed from the building in which it had stood for several years, and placed upon-a car for shipment. It was then replevied, as already stated.
At the tax sale of 1889, the plaintiff Green purchased the lots on which the manufacturing plant was situated for the taxes of the preceding year, and afterward paid the taxes levied against said property for the years 1889, 1890, and 1891, as the same became due and payable. The whole amount of said taxes and interest thereon was $1046.48 on September 10, 1892, when a tax deed was duly issued to plaintiff, and such deed was on the same day duly recorded. Baxter & Baker were then in possession of the premises so conveyed, under an arrangement made between them and James Blanchard, who had general charge and supervision over the property. The sheriff’s deed was issued in the foreclosure action on the 21st day of September, 1892, H. W. Gleason, attorney for the bank, being named as the grantee in the deed. We have not been favored with a brief on behalf of the defendants in error.
As the lathe weighed about three tons, it required no fastenings to hold it in place. It was readily connected, when its use was desired, with a belt wheel on an overhead shaft. It was an essential part o'f the machinery of the manufacturing plant as originally planned and as at first operated. We think it was a fixture, within the doctrine heretofore declared by our supreme court and by this court. See Cook v. Condon, 6 Kan. App. 574, 51 Pac. 587. Being a part of the realty, the lien for taxes, evidenced by the tax-sale certificate, was on the lathe as on other parts of the realty. Assuming that the bill of sale was made by James Blanchard with authority (a violent assumption under the facts in the record), such bill of sale did not of itself operate to sever the lathe from the realty, and the machine was still in place and a part of the realty when the tax lien ripened into a tax deed whereby the entire property was conveyed to the plaintiff.
The deed appears to be valid on its face, and it was not attacked in any way. It must therefore be treated as an absolute conveyance of the legal title, and we must hold that thereunder the plaintiff became entitled to the possession of the entire property as it stood on September 10, 1892. The subsequent removal of the lathe by Mason was a trespass on the realty. If it be held 'that by reason of the severance of the lathe from the realty it became personal property, it could properly be retaken in a replevin action, as was decided by the supreme court in the case of Cent. Branch Rld. Co. v. Fritz, 20 Kan. 430.
The judgment of the district court will be reversed.
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The opinion of the court was delivered by
Schoonoveu, J.:
The first question presented in this case is the validity of the provision in section 224, chapter 158, General Statutes of 1897, providing for an additional levy of one-half mill to pay the delinquent state tax in all counties where there is a deficiency.
Several questions are presented in the brief of defendant in error which must be passed without comment. They are questions of fact, and no proof having been offered to sustain the position taken, there is nothing in the record which will warrant the court in considering them. No oral evidence was admitted. The court is therefore bound as to questions of fact not to go outside of the agreed statement, which, so far as the question now involved is concerned, is as follows :
“That the auditor of the state of Kansas, on the second Monday in July, 1895, reported to the clerk of Edwards county, Kansas, a balance claimed by said auditor to be due from said Edwards county, Kansas, to the state of Kansas, as delinquent taxes, the same being the correct amount as shown by his books, and said county clerk then and there determined the rate per cent, necessary to raise the said amount of state delinquent taxes to be one-half mill on ‘the dollar, which was the correct rate, and thereupon extended and placed the said state delinquent tax upon the rolls of said county for that year opposite the name of said railroad, the same being the sum of $92.56, and charged the same against the property of the Atchison, Topeka & Santa Fe Railroad Company, and that said $92.56-was in addition to the amount required to raise the state tax for the current year. That the said The Atchison, Topeka & Santa Fe Railroad Company has always, for each of the various years prior to the year 1895, paid in full the legal taxes assessed and levied against its property in said county of Edwards for state purposes.”
This brings the case within the rule laid down in the case of McIntire v. Williamson, ante, p. 711, 54 Pac. 928, wherein it was held that the provision in section 224, chapter 158, General Statutes of 1897, providing-for an additional levy of one-half mill to pay the delinquent state tax in all counties where there is a deficiency, is constitutional.
It is further contended that the tax designated the “fire tax,” levied under chapter 273, Laws of 1895-(Gen. Stat. 1897, ch. 170), is unauthorized and void,, because it excludes railways, when possible, from the ‘‘fire districts” and does not give them equal protection ; that the tax levied on the Santa Fe railway in this case was illegal because said railway was not within the fire districts for which the tax was levied and further, that the law provides no way for collecting the tax when it is levied.
Defendant claims that the tax is levied in those localities known as the fire districts. We cannot concur in this contention. The tax is levied in the counties or townships. In this case it was levied in the townships, and the townships, for convenience, are-divided up into ‘ ‘ fire districts ’ ’ for the purpose of' protecting the whole township from fires. It is easy to see from the reading of the law that the railroads must either run through one of these districts or along the line and between two of them. The districts run up to the right of way, but do not cross it. If the surrounding country on each side of the railway is protected from fires coming from the right of way, is not the right of way protected from fires coming from the outlying districts ?
It is further contended that the tax is not general. “General taxes may be said to be taxes imposed throughout the state, or some civil division thereof.” (25 A. & E. Encycl. of L. 17, note 4.) Counties or township are civil divisions of the state. This is therefore a general tax, and all property in the respective townships is liable to pay the tax levied therein. The state may provide by general taxation for the prevention of calamities, such as fires. (Cooley, Taxation, 1st ed., 102.)
Defendant further contends that if this is a general tax then no way is provided for its collection. In our opinion, the general law for the collection of taxes applies in this case. There will be no difficulty in finding the proper disposition of taxes levied for prevention of fires if this law is taken in connection with the general law, as will appear from the following citations. The township trustee shall make an estimate of the tax to be levied and present it to the county commissioners on or before the first Monday of August in each year. Then it is the duty of the board to make the levy, which is made at the regular meeting of the board on the first Monday in August of each year. (Gen. Stat. 1897, ch. 170, § 3 ; Gen. Stat. 1897, ch. 158, § 134; Gen. Stat. 1889, ¶ 6931.) The county clerk shall make up a tax-roll and deliver same to the county treasurer and charge him with taxes. (Gen. Stat. 1897, ch. 158, § 136; Gen. Stat. 1889, ¶ 6933.) The treasurer receives taxes' and gives receipts therefor. (Gen. Stat. 1897, ch. 158, § 140; Gen. Stat. 1889, ¶ 6938.) The township treasurer shall receive and take charge of all money belonging to the township and pay it ont on orders from the trustee. (Gen. Stat. 1897, ch. 42, § 34; Gen. Stat. 1889, ¶ 7093.) The fire and road overseers shall draw the money due their respective districts in such manner as they draw money from their respective township treasurers. (Gen. Stat. 1897, ch. 170, § 7.)
By these citations, the money is traced from the taxpayer to the county treasurer, thence to the township treasurer, and from him to the fire or road overseer. It is clearly indicated by these provisions of the statute, that the legislature fully intended this tax to be collected in the usual way, under the general law for the collection of taxes.
From the agreed statement of facts, we conclude that the tax was properly levied. We see no good reason for holding the law unconstitutional, and must therefore reverse the case, with directions to dissolve the injunction and tax the costs to plaintiff below.
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The opinion of the court was delivered by
McElroy, J.:
This action was instituted in the district court of Brown county by the defendant in error, Mary M. Warren, against the city of Hiawatha, for damages on acount of alleged personal injuries sustained by her in falling on a defective sidewalk. The plaintiff filed her petition and a precipe for summons, and in lieu of a cost bond filed her affidavit setting forth that her cause of action was just, and that by reason of her poverty she was unable to give security for costs. The defendant filed its motion to set aside the summons and service for the reasons that no security for costs had been given; that the poverty affidavit on file was not verified according to law ; and that the summons was improvidently issued and served. This motion was overruled. Thereafter the defendant city filed its answer setting up a general denial and contributory negligence. The plaintiff’s reply was a general denial. A trial was had before the court and a jury, which resulted in a judgment for plaintiff in the sum of $108.50. The defendant, plaintiff in error, filed its motion for a new trial, which was overruled, and presents the case to this court for review.
The first assignment of error is that the court erred in overruling the motion of defendant to set aside the summons and the service thereof. The poverty affidavit was in the form prescribed by statute; it was subscribed by Mary M. Warren, sworn to by her before a notary public of Milwaukee county, Wisconsin, on the 20th day of December, 1894, and was filed with the petition in the office of the clerk of the district court on December 22, 1894. The plaintiff contends that the poverty affidavit must be sworn to before the clerk of the district court in which the action is brought, and in support of this contention we are referred to the case of Warner v. Warner, 11 Kan. 121. The authority cited is not in point. That was an action for divorce, and the petition was verified before the attorney of the plaintiff. When this question was before the supreme court in Cole v. Hoeburg, 36 Kan. 263, 13 Pac. 275, the court said:
“ It is claimed that the court below erred in refusing to set aside the service of summons by publication, upon the ground that the poverty affidavit was not 'made before the clerk ’ of the district court. . . . It was sworn to before a justice of the peace, but was filed with the clerk of the district court. . And further, is not an affidavit filed with the clerk of the district court, but sworn to before some other officer, just as good as an affidavit filed with such clerk and sworn to before him ? The statute does not in terms say that the affidavit shall be sworn to before the clerk. It simply says, ‘ that in any case where the plaintiff or plaintiffs have a just cause of action against the defendant or defendants, by reason of his, her or their poverty, is or are unable to give such security for costs, on affidavit of the plaintiff or plaintiffs made before the clerk that such is the fact, no bond shall be required.’ Now, may not an affidavit sworn t© before some proper officer, and filed with the clerk, be considered as an affidavit made before the clerk?”
"We think the poverty affidavit is a substantial compliance with the statute, and that the court properly overruled the motion to set aside the summons and service. (Gen. Stat. 1897, ch. 95, §§ 355, 356; Gen. Stat. 1889, ¶"¶ 4439, 4440.)
The second assignment of error is that the court erred in instructing the jury. It is urged that the court erred in instructing the jury that, “in addition to the right to recover for the mental and physical suffering, the plaintiff might recover for loss of time resulting from her injuries.” The petition says the plaintiff became sick and unable to perform her duties from the time of the accident for a long period of time. The allegations of the petition were sufficiently broad to justify a recovery for loss of time, if a recovery could be had under the evidence and law.
The judgment is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
The appellant was charged with violating a city ordinance of the city of Iola, passed while said city was a city of the third class. The case was submitted on an agreed statement of facts in the court below, and *the defendant was found guilty and adjudged to pay a fine of one dollar. He now appeals to this court.
Section 64, chapter 88, General Statutes of 1897 (Gen. Stat. 1889, ¶ 977), provides:
“The council may also regulate and provide for taxing the owners and harborers of dogs, and authorize the killing of dogs found at large contrary to any ordinance regulating the same.”
The particular section of the ordinance under which the defendant was arrested is as follows :
“ That no person shall be allowed to keep within the limits of said city any dog or hybrid over three months old, unless said person shall comply with the following regulations, to wit: The owner, keeper or harborer of any dog or hybrid shall cause his or her name, with the name and description of such animal, to be registered with the .city clerk in the dog register, and shall pay to the said city, on or before the 30th day of April, in each year, an annual tax of one dollar for each male dog and two dollars for each female dog or hybrid, and shall keep upon the neck of such animal so registered a metallic or leather collar, to which shall be kept attached a metallic check, to be furnished by the city, with the registry number, the letters ‘ D. T. P.’ and the word ' Iola’ stamped thereon ; provided, that the license may be issued for any fraction of a year, to expire on May 1 following, and the tax therefor shall be apportioned accordingly. Upon payment of the tax hereinbefore provided for and the clerk’s fee for registering and license, the city clerk shall register the dog or hybrid for which the same is paid, and shall issue to the person paying the same a license for such animal; and any person who shall keep, own and harbor any dog or hybrid in the city of Iola in violation of the provisions of this section shall be deemed guilty of a misdemeanor. . . .”
This complaint charges :
“That defendant did then and there unlawfully keep, own and harbor a certain dog (a more particular description the affiant is unable to give), without having the name and description of such animal registered with the city clerk in the dog register, and without having paid the annual tax thereon, contrary to the provisions of the ordinance of said city made and provided.”
The case was submitted to the trial court on the following agreed statement of facts :
“First. — That on May 11, 1898, a complaint was filed in the police court of the city of Iola (a city of the second class), Allen county, Kansas, charging the defendant with ‘ on the 10th day of May, 1898, and before that time and after the 30th day of April, 1898, did keep, own and hai’bor a certain dog, etc., contrary to the provisions of the ordinance of said city made and provided.’ Said complaint filed herein and made a part hereof.
“Second. — That on the same day, May 11, 1898, a warrant was issued on said complaint out of said court; that on May 13, 1898, a trial was had in said court, defendant found guilty, and sentenced to pay a fine of two dollars and costs of action, and defendant appeals to this court.
“Third. — That the ordinance under which said complaint was filed and warrant issued, trial had and defendant sentenced is ordinance No. 314, page 189, etc., passed by the council of said city, while it was a city of the third class, which said ordinance is referred to and made a part of this agreed statement of facts; and the clerk made the publication of notice to register as required by section No'. 3 of said ordinance.
“Fourth. — It is agreed to be the fact that the defendant did own a dog over three months old, as described in complaint, on April 30, 1898, since then and now owns said dog ; that he has continuously, since April 30, 1898, before then and now keeps said dog on his premises, in the city of Iola, aforesaid, keeps and always has kept said dog tied securely, and does not,, nor.has he ever, permitted him to run at large.
“Fifth. — It is further agreed that the defendant, prior to the filing of complaint herein, during the year-1898, did not register said dog in the office of the city-clerk of the city of Iola, Allen county, Kansas, nor did he pay any tax on said dog prior to filing of complaint herein, for year 1898.
“On the part of plaintiff, it is claimed that under the aforesaid facts the defendant is guilty of a violation of said ordinance, and that the said ordinance is a constitutional and valid enactment.
“1. On the part of defendant, it is-claimed that said! ordinance is invalid and is in violation of the constitution of the state of Kansas and the constitution of he United States ; and
“2. That even if the same is a valid ordinance, under the facts of the case this defendant is not guilty of violating same.”
It is conceded by the appellant that the city may in a legal and proper manner regulate the running at large of dogs. It is also conceded that the city may tax dogs, if taxed as other personal property. It is admitted that the appellant was the owner of a dog that was never permitted to run at large, and the question presented is, Can a person who owns a dog that is kept confined on his premises be prosecuted for the violation of the ordinance?
In the ordinance complained of, two distinct offenses are created — one of keeping, owning and harboring a dog without complying with the provisions of the ordinance in regard to registration, and the other of permitting dogs to run at large without complying with the ordinance in such respects. The question in this case has not been directly passed on by the supreme court, but in our opinion the law as stated in the case of The State, ex rel., v. City of Topeka, 36 Kan. 76, 12 Pac. 310, maybe extended to cover the objection raised by the appellant in this case.
It is further contended that the ordinance is invalid because it contained more than one subject, which subjects are not clearly expressed in its title. The ordinance was passed by the city council of the city of Iola while it was a city of the third class. The statute governing cities of the third class at the time the ordinance was passed provided that “the style of all ordinances shall be : ‘Be it ordained by the mayor and councilmen of the city of--.’ ” (Gen. Stat. 1889. ■¶" 939 ; Gen. Stat. 1897, ch. 38, §46.) The ordinance in controversy complies with the provision of the statute.
In the case of the City of Cherokee v. Fox, 34 Kan. 16, 7 Pac. 625, our supreme court said : “Nor is such ordinance void for the reason that it has no title, when in fact its title corresponds precisely with the requirements of the statute.” See City of Humboldt v. McCoy, 23 Kan. 249. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
This action was brought by the plaintiff in error to recover the sum of $800, alleged to be due him as salary for the years 1895 and 1896 as county attorney of Gray county. In October, 1894, the board of county commissioners of Gray county fixed- the salary of the county attorney at $280 per year, and thereafter the plaintiff in error was elected to that office, and served for the years stated. The statute under which the commissioners purported to act was paragraph 1799 of the General Statutes of 1889 (Gen. Stat. 1897, ch.-30, §§ 66, 67, 68,) which reads :
“The county attorneys of the several counties of this state shall be allowed by the board of county commissioners, as compensation for their services, as salary, per year, as follows : In counties of from 1000 to 5000 inhabitants, not more than $400 ; provided, that in any county which shall have attached thereto six or more unorganized counties for judicial purposes the compensation shall be $700 ; from 5000 to 7500 inhabitants, $400 ; from 7500 to 10,000 inhabitants, $500 ; from 10,000 to 12,500 inhabitants, $700 ; from 12,500 to 15,000 inhabitants, $1200; . . . 25,000 inhabitants and upwards, $2000.”
At the regular meeting of the board of .commissioners of said county, in April, 1895, the plaintiff in error filed his voucher for $100, the sum he claimed to be due as his salary for the first quarter of the year, which claim, as presented, the county commissioners declined to allow, but instead allowed seventy dollars, for which they issued a county warrant in due form, payable to the order of the plaintiff in error. He refused to accept the warrant, and for each of. the succeeding quarters of the year 1895 and of the year 1896 presented his voucher for $100, with precisely the same result.
The eight vouchers filed by the plaintiff in error were annexed to his petition as exhibits, and the eight warrants for seventy dollars, each drawn in his favor by order of the board of county commissioners, were .attached as exhibits to the answer of the defendant board. The case was submittéd to the court on the pleadings, and judgment was entered in favor of the •defendant for costs.
As the record is presented to us for review, it consists of a transcript, duly certified, a case-made, and a petition in error, all separate. The defendant in error has moved to dismiss the proceedings in error for the reason that neither the transcript nor the case-made is attached to the petition in error, and for the further reason that the case-made is invalid because not served within the time allowed by the trial court. On the 31st day of May, 1897, plaintiff below was given ninety days in which to make and serve the case, and service thereof was made on August 31, 1897. Excluding May 31 and including August 31, we find that the case-made was not served within ninety days, as provided for in the order of the court. It is therefore invalid. (Ætna Life Ins. Co. v. Koons, 26 Kan. 215; Gimbel v. Turner, 36 id. 679, 14 Pac. 255.)
The transcript bears evidence of having been attached to the petition in error, though in a careless manner. We have therefore decided to determine the case upon its merits. Counsel for plaintiff in error contend that while, under the constitution of the state, the leg islature may confer on tribunals transacting the county business -of the several counties such power of local legislation as it shall deem expedient, the legislature has not in fact conferred on the boards of county commissioners the power to fix the salary of county attorneys in counties of from 1000 to 5000 inhabitants. Counsel would read the statute as follows :
“ The county attorneys of this state shall be allowed by the boards of county commissioners as compensation for their services, as salary per year, in counties of from 1000 to 5000 inhabitants, $400/’
It is argued that the statute does not confer a discretion on the board of county commissioners to fix the salary of a county attorney at less than $400 per year, but it forbids their allowing more that sum. We are unable to adopt this view; for if the statute be. so construed, the salary to be allowed to county attorneys would be $400, irrespective of the population of the county, unless such population should exceed 7500 inhabitants. Such construction would also eliminate, as meaningless, a considerable portion of the statute. The apparent intention of the legislature was to fix the salaries of county attorneys according to population, in all -counties having inore than 5000 inhabitants, and to leave it to the discretion of the boards of county commissioners in counties having fewer than 5000 inhabitants to fix such salaries at $400 or less. This view is strengthened by the fact that under the provisions of another statute the boards of county commissioners are authorized to examine, settle and allow accounts against their respective counties.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
This action was brought by the defendant in error against the plaintiff in error and two other railroad .companies, to recover the sum of $5000 as •damages ijor personal injuries received while -in the discharge of his duty as brakeman in the railroad yards at Wichita. Before the trial was had, the action was dismissed as to the other two companies. Verdict and judgment were rendered in favor of Kennedy in the sum of $500.
The petition alleged that on the 18th day of January, 1891, the plaintiff, “while attempting to couple ■engine No. 6 belonging to said defendants, having an oval draw-bar or head, which draw-bar or head was broken, onto a coach belonging to said defendants, having a Miller draw-bar or head, at Wichita, Sedgwick county, Kansas, was injured by being squeezed between the platform of said coach and the tender of said engine in a manner and to such an extent as to render such plaintiff incapable of doing manual labor." It was further alleged that the injury was caused by the negligence of the defendants, their servants and their employees in the management of their cars, engines, trains, and machinery, and in the use of defective, insufficient and improper cars, engines, and appliances, and with negligent operation of said cars, engines, and trains ; all of which the defendants then and prior thereto knew were defective and insufficient, while the plaintiff did not have any opportunity to ascertain such defects. The defendant-company denied generally the allegations' of the petition. A portion of the statement of the plaintiff’s case to the jury by his counsel was as follows :
“The plaintiff in this case, John Kennedy, was employed as a brakeman on the Wichita & Western railway; and on or about the 18th day of January, 1891, .in attempting to make a coupling of a coach to that of the tender of an engine, the coach having a. Miller draw-bar on it and the engine having an oval draw-bar, and the oval draw-bar of the engine being broken, the two cars passed, and Mr. Kennedy was caught in between the tender of the engine and the platform of the coach, and was severely squeezed. The plaintiff in this case will prove that on account of the imperfect condition of the draw-bar of the engine, which was broken, this injury occurred ; that if the dyaw-bar was complete and perfect, under the circumstances. they could not have passed."
From the testimony, it appears that there were two-transverse “slots" in the.draw-head of' the engine, and that for some months before the plaintiff was injured the central portion of the roof of the upper slot had been broken out, leaving the lower slot alone fit for use. The Miller draw-bar was about one inch higher than the draw-head of the engine, and it was a difficult matter to make the coupling between the cars and the engine. The difficulty was increased by the fact that, the engine was on a curve while the car was on a straight track. Plaintiff had worked with this same engine and car for a long time, and was well aware of the condition of the draw-head of the engine, and had not made any objection to using the same. He knew that the Miller draw-bar was so constructed that it would slip sidewise, and the defective condition of the engine draw-head was known to the defendant long prior to plaintiff’s injury.
Instruction 9, given by the court, was as follows :
“Of course, in this case the burden of proof is upon the plaintiff to establish his case. And so you are instructed that before the plaintiff can recover in this action he must show by the greater weight of evidence that the defective draw-head on the engine was the immediate and proximate cause of the injury. If you find from all the evidence in the case that if the engine draw-head had been perfect, and the plaintiff had attempted to couple the car -into the lower pocket of the draw-head, and that the Miller draw-head in that event would have slipped by, then you should find a verdict for the defendant, for the reason that the plaintiff relies upon the fact of the defective draw-head upon the engine.”
This instruction was excepted to by the defendant only. It therefore became the law of' the case so far as the plaintiff was concerned. Special findings Nos. 15 and 16, as returned by the jury, read :
“15. Is it not a fact that when the engine and car came together at the time of the accident the link with. which plaintiff was trying to make a coupling pushed the Miller draw-bar to one side just as, or just before, the Miller draw-bar struck the draw-head of the engine? Ans. Yes.
“ 16. Is it not a fact that if the engine draw-head had been perfect, and plaintiff had attempted to make the coupling in the lower slot of the engine draw-head, the accident would have happened? Ans. Yes.”
The defendant’s motion for judgment on the special findings and its motion for a new trial were overruled.
The foregoing facts bring this case within the principle governing the decisions in the following cases: Rash, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; A. T. & S. F. Rld. Co. v. Schroeder, 47 id. 315, 27 Pac. 965; Morbach v. Mining Co., 53 id. 731, 37 Pac. 122. In all these cases it was held that the injured employee had assumed the risks incident to his dangerous employment.
The plaintiff’s petition and statement of his case, as well as his testimony, presented a certain theory as to the cause of the injury ; that is, that the draw-heads passed each other because of the defective condition of the draw-head on the engine. That theory was rejected by the jury, as appears from the findings quoted above. The instruction of the court in respect to that theory was the law of the case so far as the plaintiff was concerned. The jury disregarded that instruction in returning a verdict for the plaintiff. The trial court ought to have set aside the verdict and granted a new trial. We are asked to order that judgment be rendered in favor of plaintiff in error on the special findings of fact. This we are unwilling to do, under the circumstances of the case. We hold, however, that the trial court erred in overruling the motion for a new trial. Its judgment will therefore be reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Schoonover, J.:
The principal question in this case is, Did the Finney county district court obtain jurisdiction of the persons of John O’ Loughlin and Charles Shultz by service of summons and their appearances in the Finney county district court? Plaintiff in error in his brief sets out, among others, the following specifications of errors :
“ Third. — That the district court erred in sustaining the demurrer of Henry Entz to the plaintiff’s second amended petition and rendering judgment for costs in favor of said Entz against said Kauter. . . . ”
“ Fifth. — The district court erred in sustaining the first motion by defendant Shultz to quash and set aside the summons and service on him, the said Shultz, over the objections and exceptions of the said plaintiff.
“ Sixth. — The district court erred in sustaining the second motion filed by said Shultz to quash and set aside a summons and the service thereof on him, the said Shultz.”
“ Tenth. — The district court erred in sustaining the plea in abatement by the said O’Loughlin and in rendering a judgment for costs against said Kauter.
Other specifications of error are set out in plaintiff in error’s brief, but it will be unnecessary to consider them, as they merely present the same question as the specifications here set out, but in a different form.
At the outset we are met by an objection of counsel for defendants in error to the consideration by us of the third, fifth and sixth specifications of error, and we must hold that the objection is well grounded. The order sustaining the demurrer filed by Entz and entering final judgment in his favor was made on the 10th day of May, 1897, and the petition in error was not filed until June 4, 1898, more than one year from the date of the final judgment, and this court cannot, therefore, review the alleged error. (Blackwood v. Shaffer, 44 Kan. 273, 24 Pac. 423.)
The ruling quashing and setting aside service of the first summons served on Shultz was made May 10, 1897, and the petition in error having been filed more than one year thereafter, this court is without jurisdiction to review the alleged error. (Newberry v. A. K. & C. Rly. Co., 52 Kan. 613, 35 Pac. 210.)
The case-made was not served on defendants until nearly nine months after the final order quashing the second summons served on Shultz, and, as it does not appear from the record that the court made any order extending the time for serving a case, it must be held that, under sections 588 and 589, chapter 95, General Statutes of 1897, the case was not served in time, and the plaintiff cannot now ask to have the ruling reviewed. (Ætna Life Ins. Co. v. Koons, 26 Kan. 215.)
The only error assigned in plaintiff in error’s brief which this court has power to review and which it is necessary to consider is the ruling sustaining O’Loughlin’s plea in abatement, and, in determining this question) we find that it is not necessary to decide whether jurisdiction was obtained by any of the various writs of summons. We must hold that by filing his demurrer the defendant O’Loughlin entered a full appearance to the action. (Carter v. Tallant, 51 Kan. 516, 32 Pac. 1108; The City of Crawfordsville v. Hayes, 42 Ind. 200.) In the last-named case it was held that a full appearance to an action waives all defects in the process and in the service thereof. O’Loughlin filed his demurrer after the plaintiff had elected to stand on the replevin undertaking, and the jurisdictional question was clearly presented. Had the plaintiff elected to stand on the supersedeas bond, the question of jurisdiction as to O’Loughlin’s person would probably not have arisen, since service of summons was made on Entz in Finney county, the county where the action was brought.
The petition in error is dismissed as to defendants in error Henry Entz and Charles Shultz, and the judgment of the district court on the plea in abatement of defendant in error John O’Loughlin is reversed, and the cause remanded with instructions to overrule said plea in abatement.
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The opinion of the court was deliverd by
Milton, J.:
This was an action in replevin by the defendant in error against the plaintiff in error to recover the possession of 827 sacks of flour. The petition alleged that the plaintiff was the owner of 4800 sacks of flour, embracing sis different brands, as enumerated in the petition, which flour was stored in the mill and warehouse of the Kinsley Milling Company ; that the flour was purchased by and delivered to the plaintiff on the 22d day of October, 1890, and that thereafter the defendant unlawfully and wrongfully took and detained possession of 827 sacks thereof, 'the same being of the aggregate value of $1245. The answer was a general denial. The case was tried to a jury, which returned a large number of special findings of fact. The verdict was for the plaintiff, in the alternative, and the value of the flour was fixed at $790. The judgment was in accordance with the verdict.
The basis of the plaintiff’s claim of ownership -was an instrument in writing, in form a bill of sale, and in the intention of the parties and in legal effect a chattel mortgage, given to the plaintiff by the Edwards County Bank on October 22, 1890, and filed for record the following day. It was signed “ Edwards Co. Bank, by L. Gf. Boise, cashier.” It was executed and delivered to secure past-due obligations given by the Edwards County Bank to the First National Bank of Larned, as well as an additional loan of about $1800 to the first-named bank at the date of the execution of the instrument. The Edwards County Bank was then, and for several years prior thereto had been, the entire owner of the property purported to be owned by the Kinsley Milling Company, although the title to the milling company’s real property stood in the name of Fred I. Boise and W. L. Plobbs. L. G. Boise,- as the representative of the Edwards County Bank, was the general manager of the milling enterprise, and Hobbs was in the employ of the bank, under the supervision of L. G. Boise. Fred I. Boise was in no way connected with the transaction herein ■mentioned. Hobbs was in charge of the operating of the mill. It was agreed between representatives of the creditor bank and Boise, for the debtor bank, that the mortgage should cover 4800 sacks of flour then in the mill and warehouse. A count of the sacks of flour haying shown the number to be 4244, it was then agreed that enough flour from the wheat in the mill should be ground to bring the total number of sacks of flour up to 4800, and the transaction was thereupon consummated on that basis. It was agreed that-the Larned bank should take immediate possession of the 4244 sacks of flour, and to this end the said bank appointed L. G. Boise as its agent to take charge of the flour, and gave him the following written authority ;
“Larned, Kan., Oct. 22, 1890.
“We hereby authorize L. G. Boise, of Kinsley, Kan., to sell and ship all the flour belonging to the First National Bank of Larned, all of said flour being stored in the mill and warehouse of the Kinsley Milling Company, Kinsley, Kan. All sales of said flour are to be made and the same shipped in the name of the First National Bank of Larned, Kan. ; and all bills of lading are to be made in their name and forwarded to them by L. G. Boise.
First National Bank op Larned.
By J. W. Rüsh, President."
Boise thereupon-assumed to act as agent for the mortgagee and exhibited the foregoing writing to Hobbs, and instructed him to continue the sale of flour as usual, subject to the said within instructions. The mill was operated for five or six days after the-mortgage was given and 600 or more sacks of flour were manufactured during that time, and placed with that on hand. On October 28 Boise testified that he agreed to sell two wagon-loads of flour in the sack toFaulk, and so informed Hobbs. That quantity of flour was on the same day delivered by Hobbs to Falk. On October 28, Hobbs delivered several hundred sacks of flour to Falk for the purpose, as stated by Hobbs himself, to satisfy a claim which Falk held against the milling company for wheat sold and delivered. Falk testified that he intended to give the milling company and the bank credit for the value of the flour he had received and that he had not done so, and did not know the quantity of flour he had obtained. The record is silent as to the number of sacks of flour contained in the two wagon-loads delivered on October 25 and as to the value thereof.
Two of the special findings returned by the jury are as follows :
“3. Is it not a fact that at the time the defendant took the flour in controversy that the only possession of the same that the Edwards County Bank, the Kinsley Milling Company, L. G. Boise, and W. L. Hobbs, or either of them, had, was possession of the same as agent for plaintiff? A. Yes.”
”6. Is it not a fact that the defendant, when he took the flour in controversy, took it for the purpose of converting it to his own use in payment of a claim he had against the Kinsley Milling Company or L. G. Boise or some other party? A. It is.”
The first assignment of error is that the court erred in overruling the demurrer to the plaintiff's evidence. The point argued is, that whereas, the petition axxd affidavit alleged that the plaintiff was the absolute owner of the property in controversy, the evidence showed a limited ownership thex’eof, since the bill of sale was merely a chattel mortgage. The case of Kennett v. Peters, 54 Kan. 119, 37 Pac. 999, is relied on as sustaining the contentioxi. In the case cited the action was for conversion, and the petition alleged absolute ownership under a chattel mortgage. The supreme court held that the allegation of general ownership was not satisfied by proof of special ownership under the mortgage. Counsel for defendant in error answer this contention by pointing out that the mortgage in the present case was given to secure a past indebtedness and a present loan, and that the debt secured by the instrument was due immediately after its execution. They cite the following in support of their position: “If a mortgage is given to secure a past-due indebtedness, and no provision is made for any future credit, the condition as to default in the payment of the indebtedness is broken as soon as it is made.” (Pollock v. Douglas, 56 Mo. App. 487.)
Counsel also say that as the mortgagee, through its agent Boise, was in possession of the mortgaged property after defáult, the following from Armel v. Layton, 33 Kan. 47, 5 Pac. 441, is controlling in the premises : “A mortgagee in possession after default is not merely alien-holder, but he is the real owner of the mortgaged property, and in him is vested the entire legal title.” Counsel further cite the following from the. syllabus in Williams v. Miller, 6 Kan. App. 626, 49 Pac. 702: “A mortgagee in possession is the owner of the personal property described in the mortgage, as against an officer who takes the property under an attachment as the property of the mortgagor ; and possession cures any defect which may arise from authorizing the mortgagor to sell the property.” We think the position of counsel for defendant in error is correct, and that the court did not err in overruliug the demurrer to the evidence.
Counsel for plaintiff in error next contends that the description of the flour in the bill of sale, by merely naming the various brands, without stating the number of sacks of each kind, was insufficient, and that the bill of sale was void for uncertainty. Possession by the mortgagee cured the deficiencies in the description of the property. It may be fairly inferred from the evidence that when the bill of sale was executed there was sufficient wheat in the mill to produce, when ground, the number of sacks of flour necessary to make the total number thereof 4800. As fast as it was sacked the flour was placed with that already in the possession of the agent of the plaintiff. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612; Jones, Chat. Mort. § 178.)
It is further contended that the oral agreement to manufacture flour which should be subject to the mortgage was void. It was held by the supreme court, in the case of Cameron, Hull & Co. v. Marvin, supra, that a party cannot mortgage property which is afterward to be created, purchased, or procured; but it is also decided in the same case :
‘ ‘ When a mortgagee takes possession of the future-acquired property under such a stipulation in the mortgage, he then holds the property by way of pledge, but in the same manner as though the mortgage had been executed at the time he takes possession of the property and in the same manner as though he had taken the property under and by virtue of a chattel mortgage covering the property.”
It is further contended that the' court erred in instructing the jury that.the mortgage on flour to be made out of wheat then on hand would, under the facts proved, be valid up to the total of 4800 sacks of flour contemplated by the mortgage, and that the burden of proof would be on the defendant to show by a preponderance of the evidence that the flour he purchased was not a part of the mortgaged flour. It is claimed that since the burden of proof in a replevin suit is always on the plaintiff, it devolved on the plaintiff in this action to prove that the flour purchased and taken by Falk was part of the flour in existence when the mortgage was made. Counsel says that since none of the flour manufactured after the mort gage was given was covered by the mortgage, Falk or any other person had a perfect right to purchase all or any part of it, and that he did so purchase the flour free from any lien.
The jury found that about 600 sacks of flour were manufactured after the execution of the bill of sale, and were placed in the possession of the mortgagee. It must be held, therefore, that Falk wrongfully took from the possession of the mortgagee the flour in controversy, and that the burden was properly placed on him to show that he obtained flour other than that which was received by the mortgagee’s agent as part of the 4800 sacks. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
This was an action by Riggs & Nevi-son against' Moyer and Johnson, in the nature of a creditor’s bill, under the provisions of section 501 of the code. There was a general finding for the plaintiffs, and a judgment that Moyer pay to the plaintiffs sufficient of the money in his hands belonging to Johnson to satisfy the plaintiffs’ judgment against her. The judgment in this case was rendered in the absence of the defendants. Subsequently there were two motions on behalf of Moyer to set aside the judgment. The first motion was on the grounds : (1) That-the trial was had when the case did not stand for trial; (2) that the issues had not been joined in the case ; (3) that the plaintiff was not entitled to judgment on the pleadings; and (4) that the judgment appears to be void on its face. The second motion is on the grounds : (1) That the petition states no cause of action ; (2) that the answer contained new matter constituting a full defense to the claim set up in the petition and was not replied to, and the defendants did not waive a reply or assent to a trial without one ; (3) because of mistake and omissions of the clerk in setting the case down in the trial docket at a time when the issues had not been joined, and because the judgment was rendered in the case as thus set for trial without the knowledge of the defendant or notice to him; (4) because on the face of the petition there is no cause of action stated against him ; (5) because on the face of the answer not replied to the plaintiff was not entitled to any relief; and (6) because the judgment was void on its face. These motions were both denied, and the rulings thereon constitute the first and second assignments of error in the brief. The third assignment of error is that the judgment was for the plaintiff when it should have been for the defendant.
The plaintiff in error contends, under the first assignment of error, that the petition states no cause of action, in that it fails to allege that at the time the suit was commenced Moyer had money of his co-defendant, Johnson, in his possession or under his control, and also because it does not state either that execution was issued on the judgment and returned “ no property,” or that the defendant Johnson was insolvent and had no property subject to execution. Is it necessary, in an action to recover assets not within the reach of an execution, to allege the issuance of an execution and a return of “no property,” or facts that would make the issuing of an execution ineffectual? The language of the statute is :
“When a judgment debtor has no personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he may have in real estate ... or any interest he may have in any banking, turnpike, bridge or other joint-stock company, or interest he may have in . . . any money, goods or effects which he may have in the possession of any person . . . shall be subject to the payment of such judgment by action, or as hereinafter prescribed.”
The supreme court held, in Ludes v. Hood, Bonbright & Co., 29 Kan. 53, that such an action is an independent action authorized by the code, and not a proceeding in aid of execution. If considered as a creditor’s bill in the ordinary sense, it was necessary that the plaintiffs allege that execution had issued on their judgment 'and that there had been a return thereof of “no property.” (4 A. & E. Encycl. of L. 574, and cases there cited; Jones v. Green, 1 Wall. 330; Taylor v. Bowker, 111 U. S. 110, 4 Sup. Ct. 397; Kiser v. Sawyer, 4 Kan. 503.)
If we should say that the action is governed entirely by the statute, then it is necessary that the plaintiff bring himself within its terms. He would have to allege the recovery of a judgment, and that the defendants had no personal or real property subject to levy on execution sufficient to satisfy his judgment, or that he had had execution issued and that it had been returned “no property.” “That the defendant had no property ” would be a sufficient allegation to bring him within the statute. The petition was fatally defective in not showing that the plaintiff was without relief by the ordinary process of the court, and for this reason the second motion to set aside the judgment and grant a new trial should have been sustained.
We do not deem it necessary to consider other contentions, as the conclusions herein expressed necessitate a reversal of the judgment and a new trial. The judgment is reversed, with directions to the court below to sustain the second motion and award to the defendants a new trial.
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The opinion of the court was delivered by
Wells, J.:
This action was brought in the district court of Rawlins county by the defendant in error to recover on a promissory note given her by the plaintiffs in error. The defendants below filed an answer admitting the execution and delivery of the note sued on¿ and pleading as a defense thereto that at the time of the execution of the note the plaintiff was the wife of a stepson of defendant S. N. Orr and the mother of two little girls, aged respectively about six and four years ; that in October, 1889, the husband of plaintiff, the father of said girls, died indebted to S. N. Orr in the sum of $100 ; that about the 1st of November, 1891, plaintiff with her two children came and made her home with defendant S. N. Orr, remaining there for about three years and ten months ; that the note sued on was executed by the defendant E. L. Orr, and that the defendant S. N. Orr advanced the money for which it was given with the express understanding between said S. N. Orr and plaintiff that the loan was made by S. N. Orr to E. L. Orr for the sole benefit of plaintiff's two girls, and also that the sum of $100 owing to S. N. Orr by the husband of plaintiff at the time of his death should inure to the benefit of said children, and that said sums should be held in trust for said children ; and that said plaintiff then agreed that, before she would handle the proceeds of the note sued on, she would become the legally appointed and qualified guardian of said girls, which she has neglected and refused to do. At the same time the defendant S. N. Orr filed a'counter-claim, alleging that at the time of the commencement of this action plaintiff was indebted to said defendant on an account in the sum of $887 and interest, and praying judgment therefor. To this answer and counter-claim a demurrer was filed, on the grounds that they constituted no defense and were a misjoinder of causes of defense.. The demurrer was sustained by the court. The defendants made no further appearance, judgment was rendered for the plaintiff on her pleadings and evidence, and the. case is brought here for review.
The first question requiring consideration is, Does the answer of the defendants state a defense to plaintiff’s action? The complaint set up may be summarized as follows : S. N. Orr gave the plaintiff $100 to loan to E. L. Orr on a promissory note signed by E. L. Orr and S. N. Orr, payable to plaintiff, under an agreement between plaintiff and S. N. Orr that before plaintiff would ask to handle any of the proceeds of the note thus given she should become the legally appointed and qualified guardian of her two minor children, and that said sum, together with $100 owing to said S. N. Orr from the husband of plaintiff at the time of his death, should be by the plaintiff held in trust for said two minor children. Plaintiff has neglected and refused to become said legally appointed and qualified guardian, but, instead, seeks now to recover said sum for her sole use and benefit. The question as to how the plaintiff procured the money to loan E. L. Orr is immaterial except as furnishing a consideration for the alleged contract. Does the failure to comply with the contract constitute a defense to the action on the note? Certainly not as to the defendant E. L. Orr; he owes the money. The contract for the payment thereof was made with the plaintiff and in her name, and, under section 22, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4105), she was authorized to collect the same in her own name, and as between themselves S. N. Orr was only security for E. L. Orr. We are of the opinion that while S. N. Orr would probably have the right, in some proper proceeding on behalf of the children, to prevent the money from being diverted from the purpose to which it was appropriated by him, yet the facts stated do not constitute a defense to the action. The legal effect of the facts stated is not to defeat a recovery, but to show that if the money is recovered the plaintiff will misappropriate it. This, upon a proper showing, can be guarded against. The demurrer to the answer was properly sustained.
The next question is, Should the demurrer have been sustained as to the counter-claim of S. N. Orr? It is contended by the defendant in error that there is a misjoinder of causes of defense, that the counter-claim does not state facts sufficient to constitute a defense to the plaintiff’s cause of action, and that certain items in the counter-claim appear on their face to be barred by the statute of limitations. It is not necessary to consider the .last ground, as that applies only to a few small items and would not authorize the sustaining of the demurrer to the whole pleading.
It is contended that rules as to a misjoinder apply as well to the defense as to the prosecution. This is a mistake. Any defendant in an action on contract may plead as a set-off or counter-claim any cause of action arising on contract which he may have against the plaintiff. The counter-claim shows on its face a valid cause of action and it was error to sustain the demurrer thereto. The judgment is reversed and a new trial directed.
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The opinion of the court was delivered by
Milton, J.:
In habeas corpus proceedings before A. M. Jackson, judge of the district court of Cowley county, the defendant in error was discharged from the custody of the plaintiff in error, the sheriff of said county. The sheriff’s return showed that the petitioner was detained under an order of arrest issued by a justice of the peace in a civil action after judgment had been entered therein. After the order of arrest was issued, and prior to the commitment of the petitioner, the justice summoned a jury, which, after a hearing of testimony, returned a verdict sustaining three of the six grounds stated in the affidavit for the order of arrest. The costs of the habeas corpus pro ceedings were adjudged against the plaintiff in error, who now asks a review of that proceeding and that the decision of the district judge be reversed and that the defendant in error be remanded to the custody of the sheriff of Cowley county.
As the weight of authority sustains the proposition that an appeal from a decision in habeas corpus proceeding cannot be taken, except where provision is made therefor by statute, and as no such provision appears in our laws, the action of the district judge in the premises cannot be reviewed, nor can the questions argued by counsel for both parties be considered. The proceedings in error will be dismissed.
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The opinion of the court was delivered by
McElroy, J.:
This was an action in replevin brought by W. W. Hotchkiss against Henry Schnavely, Benjamin Schlaudecker, A. L. Pullins, E. M. Gale, Robert Fleming, J. O. Craig and E. C. Raymond for the recovery of certain personal property. The plaintiff claimed the property by reason of a chattel mortgage executed by Schlaudecker &■ Schnavely. The answer was a general denial. Atrial was had before the court and a jury, which resulted in a verdict for plaintiff. The defendants’ motion for a new trial was overruled, and they present the-case to this court for review. Since the case was filed in this court Hotchkiss died, and all subsequent-proceedings have been had in the name of James Bishop, as administrator of his estate. The plaintiffs, in error allege error'in the proceedings : (1) That the court erred in its instructions ; (2) that the verdict-of the jury is contrary to the evidence and the law (3) that the court erred in overruling the defendants’ motion for a new trial.
The record discloses that -Schlaudecker & Schnavely executed their chattel mortgage on February 13, 1892,, to W. W. Hotchkiss to secure the payment of $125, due one year after date, on one lot of butcher’s tools. The mortgage was filed with the register of deeds of' Morris county on the 15th day of February. There after Schlaudecker sold his interest in the property toPullins, who assumed the payment of the mortgage. The business was then conducted in the name of Schnavely & Pullins until the 10th day of April, 1893,. when Fleming & Gale purchased and took possession of the business, including the mortgaged property. They continued in possession of the business and property until this action was instituted. Hotchkiss filed an affidavit of renewal on the 19th day of December, 1893, demanded the possession of the property, and commenced this action for its possession. At the trial, Hotchkiss insisted that Fleming & Gale had notice of the mortgage lien at the time they purchased the-property, and that they assumed and agreed to pay the same as a part of the purchase-price. The court, instructed the jury on the question of notice as follows
“As to that matter, the law requires, where a party has knowledge of the existence of a chattel mortgage,, even though it may not be perfect upon the record, or-has notice of the existence of a chattel mortgage — the law requires him to use due diligence in making inquiry ; and charges him with whatever knowledge might have been acquired by such inquiry respecting-the rights of the mortgagee under the chattel mortgage.”
The plaintiffs in error contend that this instruction, is erroneous; that a subsequent purchaser in good, faith is one who purchases for a valuable consideration, after the expiration of the year from the filing of the mortgage, where no renewal affidavit is filedthat he-who purchases after the expiration of one year, in the absence of the renewal affidavit, has a right to presume-the mortgage paid. This would be true if the party should act alone- on the record information. The statute applicable to the registration of mortgages is- chapter 120, General Statutes of 1897 (Gen. Stat. 1889, ¶" ¶ 3905, 3906).
“Sec. 4. Every mortgage so filed shall be void as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year after the filing'thereof, unless within thirty days next preceding the expiration of the term of one year from such filing, and each year thereafter, the mortgagee, his agent or attorney, shall make an affidavit exhibiting the interest of the mortgagee in the property at the time last aforesaid claimed by virtue of such mortgage, and if said mortgage is to secure the payment of money, the amount yet due and unpaid. Such affidavit shall be attached to and filed with the instrument or copy on file to which it relates.
“ Sec. 5. If such affidavit be made and filed before any purchase of such mortgaged property shall be made, or other mortgage deposited or lien obtained thereon in good faith, it shall be as valid to continue in effect such mortgage as if the same had been made and filed within the period above provided.”
A subsequent purchaser in good faith must acquire the mortgaged chattels for a valuable consideration, without actual knowledge of the existence of the mortgage. Actual notice, as applied to conveyances, does not necessarily mean actual knowledge ; it may be implied, if the party had knowledge of such facts as would lead a fair and prudent man, using ordinary caution, to make further inquiry ; and if he evade inquiry he is chargeable with notice of the facts which by ordinary diligence he would have ascertained. (Swiggett v. Dodson, 38 Kan. 702, 17 Pac. 594; Herman, Chat. Mortg., § 91.)
The record very satisfactorily shows that Fleming & Gale, knew of the existence of the mortgage. There is also some competent evidence tending to show that they knew the mortgage indebtedness was unpaid ; in fact, that they assumed and agreed to pay the same as a part of the purchase-price. The instruction of which complaint is made was very proper under the evidence. The verdict is supported by some competent evidence. The motion for a new trial was properly overruled.
The judgment is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
Objection is made to the consideration of the merits of the case for the reason that the court found the facts and conclusions of law and rendered the judgment it did render at the request of the parties. We do not so construe the record. The court made special findings at the request of both parties. The language of the recital thereof in the record is not as clearly expressed as it might be, but this is doubtless the meaning of it. Objection is also made that the record fails to set out the motions for a new trial, and does not show any ruling on any of the motions for a new trial, which purport to have been filed two days after the judgment was rendered. The jour nal entry recites that the motions for a new trial were filed November 29, two days before they purport to have been filed. It is apparent from the entire record that these dates are confused. The findings and judgment of the court were doubtless announced November 29. On the 1st day of December the motions were filed and overruled, and in recording the proceedings the date of the rendition of the judgment is inserted at the beginning, and the entry carried through to completion under that date, not observing that the two days had elapsed between the rendition of the judgment and the conclusion of the proceedings thereon. These objections are exceedingly technical and do not merit further notice.
There are no assignments of error in the brief of the plaintiffs Taylor Bros. & Co. From the argument, we conclude that complaint is made because the trial court held them to be estopped by the recital in their mortgage, under which they claim relief, from assailing the good faith and validity of these prior mortgages to which theirs were made expressly subject, and also because the court refused to hold that these mortgages as a whole constituted in law a general assignment for the benefit of creditors at large. In Jones on Mortgages it is said ( § 595 ) : “ One taking a mortgage expressly subject to a prior mortgage cannot avoid it and acquire a larger lien than contracted for, although the mortgage be invalid as against the mortgagor.” The contract limits the security granted, and it is not within the power of one party to enlarge its scope. This view is supported by the authorities practically without division, and rests on elementary principles.
There is nothing in any of these mortgages, nor in all of them, from which can be inferred an intent to make an assignment either in fact or in law. They are mortgages creating liens only; they are given to secure debts with preferences, subject to redemption by payment. They reserve the ultimate title and property to the mortgagors. The defendants, who likewise claim under their mortgages containing like recitals, are in the same condition, and the court rightfully held them estopped thereby from attacking the good faith of those to which theirs were made expressly subject.
The only plaintiffs in error named in the proceedings are Taylor Bros. & Co., who were plaintiffs below, Charles P. Kellogg & Co., Englehart, Winning & Davidson Mercantile Company, and the Wingate, Stone & Wells Mercantile Company. So that the only parties complaining of the judgment below, aside from the plaintiffs, TaylorBros. & Co., are those named in the first conclusion of law, which is to the effect that they were not entitled to be heard on their answers to show that the prior mortgages of Stewart, Biggs, Hamble and the bank were void because they had no judgment on their claims. There is no doubt that the holding of the court on this proposition was in accord with the general rule under the old chancery doctrine respecting creditors’ bills. Our supreme court follows and approves this rule and applies it to our code practice. (Tennent v. Battey, 18 Kan. 324; Bank v. Chatten, 59 id. 303, 52 Pac. 893; Harrison v. Shaffer, 60 id. 176, 55 Pac. 884.) In such cases the course was to dismiss the bill because it did not disclose facts to give a court of equity jurisdiction. In this case the court retained jurisdiction, adjudicated the rights of the parties respecting the property, and rendered personal judgment in behalf of each of the creditors against the copartners. There are exceptions to this rule, well recognized, by courts in jurisdictions where the old chancery practice prevails, notably the supreme court of the United States and the circuit courts of appeals. It seems to us that the facts of this case bring it within one of the well-recognized exceptions.
It is not necessary for us to decide whether the cause of action on the claims of these creditors for money was improperly joined with the action in behalf of all the creditors to set aside and cancel these prior mortgages as fraudulent and to marshal the assets of this copartnership, because the .question was not presented to the court below either by demurrer or answer, and ■was therefore, if any such misjoinder existed, waived under the provisions of the code. However, see Harris v. Avery, 5 Kan. 148-151, on the question of joinder. That an adequate remedy by the ordinary proceeding at law did not exist to these creditors is plain. The copartnership was, by the acts of the copartners, determined ; they were insolvent; all their assets, firm and personal, were covered by these prior mortgages, were in the possession of the mortgagees, and were being .disposed of by sale and scattered beyond their reach irrevocably. Their claims against the Riggs Brothers were expressly admitted, not only by the mortgages, but by the pleadings in the case. Being parties, they were concluded by the judgment and left without remedy. That they had a right to participate in the partnership assets would seem to be beyond a doubt, and if the mortgages which they sought to attack were tainted with fraud, as they allege in their answers, they gave the holders no right of priority, and in fact no rights whatever against these bona fide creditors. They were entitled to judgment against the copartners by the confession of all parties.
It has been held by the courts of the United States that cases founded on these facts constitute an exception to the rule requiring a judgment at law and execution returned ‘ ‘ no property ” as a prerequisite to the creditor’s right to attack fraudulent conveyances. (Talley v. Curtain, 8 U. S. App. 347, 54 Fed. 43; Town et al. v. Smith et al., 115 Ind. 480, 16 N. E. 811; Sage v. Memphis &c. Railroad Co., 125 U. S. 376, 8 Sup. Ct. 887; Case v. Beauregard, 101 U. S. 691; Oelrichs v. Spain, 15 Wall. 228; and Albany &c. Steel Co. v. Agricultural Works, 76 Ga. 135.) It is true that the court adjudged that the receiver was wrongfully appointed and that the injunction was wrongfully granted, and did vacate the orders therefor and adjudge costs against the plaintiffs, except the costs and expenses of the receiver, which were adjudged to be paid from the funds in court. Section 242 of the code (Gen. Stat. 1889, ¶ 4349, Gen. Stat. 1897, ch. 95, § 264) provides that “ a receiver maybe appointed in an action by a creditor to subject any property or fund to his claim, ... on the application of the plaintiff or any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured.” If the court had jurisdiction to marshal the assets of this copartnership, the averments of the answers, as well as of the petition, justified an injunction under section 248 of the code. (Gen. Stat. 1889, ¶ 4333 ; Gen. Stat. 1897, ch. 95, § 248.)
We are of the opinion that the facts in this case bring it clearly within the exception to the general rule above stated, and that, the court having jurisdiction of the case and of the parties, it was its duty to determine all their rights ; that these creditors had a proper standing in the court to impeach the validity of these prior mortgages, which stood in the way of their just participation in the assets of their copartnership debtors ; and the court erred in rejecting the evidence in support of the allegations of fraud and want of consideration, and erred in holding that their answers did not contain facts sufficient to constitute a cause of action against their codefendants who held these prior mortgages, which they averred were without consideration, fraudulent, and void.
We do not deem it necessary at this time to determine the question whether the facts alleged in the answer of Charles P. Kellogg & Co. would entitle them to be subrogated to the lien of these prior mortgages, as that question may not arise in a subsequent trial of the case. The judgment of the district court, so far as it affects the interest of the defendants Charles P. Kellogg & Co., Englehart, Winning & Davidson Mercantile Company, and Wingate, Stone & Wells Mercantile Company, will be reversed, and the case remanded with directions to awrnrd to the-above-named plaintiffs in error a new trial on the issues made between them and other parties to the case.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by Samuel Knox on the 12th day of June, 1893, against Elizabeth C. Henry and others, for the recovery of the amount-due on a promissory note due and payable according to-the terms thereof on the 8th day of February, 1888, and for the foreclosure of a real-estate mortgage. The plaintiff in his petition, after setting out the particular facts constituting his cause of action, states that on the 13th day of May, 1890, he commenced an action thereon, which was afterward, on the 27th day of January, 1893, dismissed without prejudice for want of prosecution; and that the present action was brought within less than one year from the time of the dismissal of the former. The defendants contended in the trial court that the action was barred by the five-year statute of limitations, which contention was sustained by the court and judgment rendered for defendants. Motion for a new trial was overruled, and the plaintiff presents the case to this court for review.
The parties agree that the note on which this action was brought was due and payable on the 8th day of February, 1888, and that an action thereon would be barred by the statute of limitations on the 9 th day of February, 1893, unless something occurred in the meantime to prevent the statute from running. The first action was instituted within due time, on the 13th day of May, 1890. The present action was brought on the 12th day of June, 1893, within less than one year after the dismissal of the former action. The question to be determined is whether the cause of action is saved by section 17 of the code of civil procedure, chapter 95, General Statutes of 1897, which reads:
1 ‘ If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause ■of action survive, his representatives, may commence a new action within one year after the reversal or failure. ”
The defendants here contend that this section is not applicable ; that the first action was commenced within due time — within two years, three months and five ■days after it accrued, and when dismissed there were jet twelve days remaining within which to bring an action ; that he was bound to commence action within that time if he would prevent the running of the statute against his claim; and that section 17 was ■enacted to give one year when, and only when, the time had expired while the action was still pending.
The clause “and the time limited for the same shall have expired” as used in section 17, evidently means “shall have expired after the commencement of the first action and before the expiration of one year after such action fails.” An action brought within due time is saved by this section for the period of one year after the failure of the action, whether such action would be otherwise barred at the time of the dismissal, or at any time within one year after the failure of such action. The limitation cannot be construed to apply to causes only where the time shall have expired at the date of the dismissal; it applies as well where the time expires within one year after dismissal. This construction of the section preserves the rights of all vigilant litigants uniformly, without doing violence to the language.
Section 17 of our code is almost an exact copy of the Ohio statute. The supreme court of that state, 'in construing their statute in the case of The Executors v. Raikvay Co., 12 Ohio St. 620, say: plaintiffs were entitled to a year after the dismissal within which to commence another action, as well for the last-mentioned cause of action, for the commencement of an action upon which the time limited had not expired, as for the first-mentioned cause of action upon which the time so limited for commencing an action had expired at the time of the dismissal of the action by the district court.”
“Under section 23 of the code of civil procedure, the
The judgment will be reversed, and the case remanded for a new trial, and for further proceedings not inconsistent with the opinion herein.
Mahan, P. J., concurring.
Wells, J., dissenting.
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The opinion of the court was delivered by
McElroy, J.:
This was an action of forcible entry and detainer brought by G. W. Schuster against D. M. Gray, before a justice of the peace of Jefferson county. The action was instituted by the filing of a verified complaint and the issuance and service of a summons. The defendant made a special appearance, and moved the court to quash and set aside the complaint for the reason that the same did not state a causé of action. The motion was heard and overruled by the justice. A trial was had and the findings and judgment of the justice were for the defendant. The plaintiff took an appeal to the district court. When the case was called for trial the defendant renewed his motion to quash the complaint, which motion was sustained. The plaintiff thereupon asked leave to amend his complaint, which was denied, and to which ruling he excepted. The plaintiff presents the case to this court for review and alleges error in the proceedings of the trial court. We will examine the errors assigned in the order in which they are presented.
It is first contended that the court erred in sustaining the motion of the defendant to quash the complaint. The plaintiff alleged in his complaint, in substance that he is the owner and in possession of the northwest quarter of section 12, township 10, range 17, in Jefferson county ; that on the 16th day of April, 1896, the defendant Gray forcibly entered upon a portion of said premises, being thirty acres of and in the southwestern portion of said quarter-section, and is unlawfully and forcibly detaining the same from plaintiff; that plaintiff caused a written notice to be served on the defendant notifying him to leave and quit the premises, or action would be brought against him for the possession of the same that the defendant unlawfully and forcibly withholds and detains the premises from plaintiff; and that the plaintiff is and has been at all times entitled to the possession of said premises. The complaint' is insufficient and fails to state a cause of action for at least two reasons. If the plaintiff is the owner and in possession of the premises he has no cause for complaint. A plaintiff is always bound by his allegations deliberately made ; he cannot obtain benefit from contradictory allegations. A party should state in his pleading the real facts of his case, and not fictions. If the plaintiff is the owner and in possession of the premises, he has no cause of action against the defendant for an entry and detention there of. Again, there is no sufficient particular description of the premises so entered upon or detained, as contemplated by section 102, chapter 103, General Statutes of 1897 (Gen. Stat. 1889, ¶ 5018). The court properly sustained the motion to quash the complaint.
The second assignment of error is that the court erred in refusing to permit the plaintiff to amend his complaint. The defendant in error insists that the complaint cannot be amended, for the reason that the filing of a perfect complaint is a condition precedent to the issuance of a summons, and that the summons could not issue until the plaintiff filed his complaint in writing under oath with the justice. This is true. The complaint must be filed before the summons can issue ; yet we are of the opinion that the complaint was sufficient to authorize the issuance of summons. Our statute is very liberal on the subject of amendments. The provisions of the code on the question of amendment, so far as applicable, are:
“. . . The justice shall immediately make out a certified transcript of his proceedings in the cause. . No notice of appeal shall be required to be filed or served, and the cause shall be tried de novo in the district court upon' the original papers on which the cause was tried before the justice, unless the appellate court; in furtherance of justice, allow amended pleadings to be made or new pleadings to be filed.” "'(Gen. Stat. 1889, ¶4974; Gen. Stat. 1897, ch. 103, §189.)
“ The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform in any respect to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.” (Gen. Stat. 1889; ¶ 4222; Gen. Stat. 1897, ch. 95, § 139.)
In the case of Culp v. Steere, 47 Kan. 750, 28 Pac. 989, the court, on the question of amendments, say :
“ The provisions of our statute authorizing amendments are very broad, liberal, and comprehensive. (Civil Code, § 139.) About the only limitations upon making amendments are, that they shall be made only ‘ in furtherance of justice, and on such terms as may be proper’ ; and if of pleadings, that the amendments shall ‘ not change substantially the claim or defense.’ ”
The plaintiff below should have been permitted to amend his complaint on such terms as the court deemed proper. The trial court erred in refusing to permit him to amend his complaint. The judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Schoonover, J.:
Frank Carroll and wife executed their note and a mortgage on their homestead to Daniel L. Chipman. It is now alleged by Chipman that' at the time of the execution and delivery of the note and mortgage there was a verbal agreement between Frank Carroll, the mortgagor, and C.W. Chandler, the resident agent of Chipman, who negotiated the loan, that the property should be insured for the benefit of Chipman. Before the trial Frank Carroll died and the action was revived against the widow and children, the plaintiffs in error. At the trial, C. W. Chandler, the resident agent of Daniel Chipman, was called as a witness for defendant in error, to prove that at the time the loan was made and the mortgage executed Carroll agreed to keep the mortgaged property insured for the benefit of the mortgagee,. The plaintiffs in error objected to his competency as a witness to testify in that respect. The trial court overruled the objection. Of this ruling the plaintiffs in. error complain.
Section 333, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶4417), provides that “no party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person.” The question presented is, Does this section prohibit C. W. Chandler, the authorized agent of Carroll to make the contract, from testifying? The tendency of the later decisions is that such statutes are to be literally and strictly construed, and that all doubts should be resolved in favor of admitting, and against restricting, the evidence. It does not appear that Chandler had any legal interest in the result of the suit. He was not testifying in his own behalf and had nothing to lose or to gain by the operation and effect of the judgment to be rendered.
The General Statutes of Minnesota (1878), chapter 73, section 8, provide that “it shall not be competent fpr any party to an action, or interested in 'the event thereof, to give evidence therein, of or concerning any conversation with, or admission of, a deceased or insane party or person, relative to any matter at issue between the parties.” The supreme court of that state, in the case of Darwin v. Keigher, 45 Minn. 64, 47 N. W. 314, construing this section, said that it does not apply to an agent of a party to the action, such agent not being a party to the action, nor having any legal ■ interest in the event of it.
The question has never been submitted to the' supreme court of this state, but the following authorities throw some light on it: National Bank v. Beard, 55 Kan. 773, 42 Pac. 320; Shorten v. Judd, 56 id. 43, 42 Pac. 337; Murphy v. Hindman, 58 id. 184, 48 Pac. 850; Pulsifer v. Arbuthnot, 59 id. 380, 53 Pac. 70.
Several errors are assigned, but they are not sufficient to require a reversal of the case. The judgment of the district court is affirmed.
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The opinion .of the court was delivered by
Wells, J.:
The only question necessary to be considered in this case is that of jurisdiction. The judgment in the court below was rendered on February 12, 1895. A motion for a new trial was filed on the same day. On the 4th day of March the motion was argued and overruled, and ninety days’ time was taken to make and serve a case for the supreme court. On April 8, 1895, being at the next succeeding term, the court, on the motion of the plaintiff, set aside its order of March 4, overruling the motion for.a new trial, and allowed further argument thereon, which was made on July 8, 1895, at which time the motion was again overruled and 180 days from March 4, 1895, given to make and serve a case for the supreme court. It is contended by the plaintiff in error that, as the order setting aside the previous order of the court overruling said motion for a new trial was made within the ninety days allowed to make and serve a case, the whole matter was thus kept open until it was finally decided in July, at which time a further extension was granted. On the other hand, it is contended that the order of March 4 could not be set aside at a subsequent term of the court and that any attempt to do so was without jurisdiction and was absolutely void, and that the attempt to extend the time for making and serving a case after the original time had expired was also a nullity.
On this question there are no authorities cited by the defendant in error, and those cited by the plaintiff in error are not in point. We think that the law is too well settled to admit of serious controversy that when a motion for a new trial, as in this case, has been heard and decided, and that term of court has expired, the court has no jurisdiction at.a subsequent term to reopen and reconsider said motion. (5 Encycl. of Pl. & Pr. 1049; Black, Judgm., § 305; Bronson v. Schulten, 104 U. S. 410.) If this conclusion is correct, then it necessarily follows that the order made in this case in April was a nullity, and that the order made in July, long after the time originally limited for making and serving a case had expired, was without jurisdiction.
The motion to dismiss the proceedings in error i§ sustained and said proceedings in error are dismissed.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced on' the 3d day of February, 1898, in the district court of Sedgwick county by defendant in error against the plaintiff in error", to recover compensation for damages which defendant in error had sustained by reason of the permanent appropriation of certain land belonging to him by plaintiff in error. Many errors are discussed and elaborate briefs have been filed by both parties. In this opinion we discuss only one error, which is decisive of the case. Is the cause of action barred by the statute of limitations? This is the vital question.
It is alleged in the petition "that the defendant has appropriated, and had at the time the original petition herein was filed, and ever since that time, and for more than six years prior thereto, a portion of plaintiff's land to its own use and for the use of said railroad.”
The jury found in answer to special questions 1 and 11 as follows :
“Q,. 1. Is it not a fact that the railroad in question was constructed and operation thereof commenced over and across the plaintiff’s premises prior to the 1st day of December, 1886? A. Yes.”
“Q,. 11. Do you find that the right of way across the plaintiff’s premises was permanently appropriated in the year 1886 by any railway company? A. Yes, continuously.”
In the case of W. & W. Rld. Co. v. Fechheimer, 36 Kan. 45, 12 Pac. 362, the supreme court said :
“Where a railroad company enters upon land and constructs its road without the consent of the landowner, and without making compensation for the land taken and injured, the owner may pursue any one of the several appropriate remedies, and may, where the road is in its nature, design and use of a permanent character, elect to bring an action for a permanent appropriation and injury ; but in such a case it should appear that the verdict and judgment include damages for the entire injury; and it should also clearly appear from the pleadings, or from the evidence, findings, and judgment, what interest in the land the owner has parted with, and also what interest has been acquired by the company.”
In the case under consideration the defendant in error elected to bring an action for a permanent appropriation and injury more than six years after the road was constructed and in operation. In the case of Cohen v. St. L. Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138, the court said :
“Where a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having obtained a right of way by any formal condemnation proceedings, and without having procured any title to the land over which it operates its railroad or any easement therein, the owner of the land may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad Compaq as taking the property under the right of eminent domain, and may commence an ordinary action to recover compensation for all the damages which he has sustained by reason of the permanent taking and appropriation of the right of way by the railroad company.”
If this is an ordinary action to recover compensation for all damages which he has sustained by reason of the permanent taking and appropriation of the right of way, when should it have been commenced ? Can the injured party wait, with full knowledge of the appropriation, and elect to commence his action at any time, say six, ten or twelve years, after his land has been appropriated ? .We cannot consent to this interpretation of the law. There is no hardship in requiring parties to commence their actions, criminal or civil, within certain reasonable periods. If they stand inactive and permit their claims to be barred, it is not the law that is responsible for the hardship entailed. More than five years elapsed between the time of the permanent appropriation in 1886, as found by the jury, and the commencement of this action. Under section 12, chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶4095), the cause of action is barred.
The judgment of the district court is reversed.
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The opinion of the court was delivered by
Wells, J.:
Prior to the second Monday of January, 1897, John P. Marquand was county commissioner of the first district of Trego county for the term ending at that time. A. P. Hinshaw was commissioner of the second district and held over. F. C. Swiggett was commissioner of the third district and held over. At the general election held in November, 189G, Joshua Musgrove and John F. Barclay were the opposing candidates to succeed Marquand and were the only persons voted for to fill the office. Musgrave received the certificate of election. Barclay contested, and on January 9, 1897, the contest court decided in his favor. Musgrave filed Ms official bond and oath of office November .14, 1896, and Barclay filed his official bond and oath on January 9, 1897. On January 11, 1897, it being the second Monday of January and the-beginning of the new term of office, Barclay, as commissioner from' the first district, and Hinshaw from the second, met, elected Hinshaw as chairman, and proceeded to transact business as the board of county commissioners, and among other things let the county printing to the Western World, Swiggett, the commissioner from the third district, refusing to act with them. Later in the same day, Swiggett, the county clerk and Marquand organized a pretended board of county commissioners, and among other business let the county printing to the plaintiff in error, and this action was brought to recover pay therefor under said contract. The action was tried in the court below without a jury, and the issues were found for the defendant generally and judgment rendered accordingly. To reverse this the cause is brought to this court.
The only question necessary to consider is, Was John P. Marquand county commissioner de facto -of Trego county at the time the county printing was claimed to have been let to the plaintiff ? The supreme court has held that two persons cannot be officers de facto for the same office at the same time. (McCahon v. Comm’rs of Leavenworth Co., 8 Kan. 437.) Marquand’s term of office had expired and his successor had been elected and qualified. Either Musgrave or Barclay was commissioner de jure of that district, and Barclay was such defacto. Marquand had no claim to the office. In order to constitute a person an officer de facto, he must hold the office under some appearance or color of right.
The judgment of the court below was correct and is affirmed.
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The opinion of the court was delivered by
Wells, J.:
This was a prosecution begun in the police court in the city of Holton, for the violation of the ordinances of said city by selling intoxicating liquors without being engaged in the business, of a druggist and not having a permit for such sales for lawful purposes, and' by keeping a tippling shop in said city. The defendant below, the appellant here, was convicted in the police court and duly took an appeal therefrom to the district court, where he was again found guilty. Judgment was rendered thereon, and the case is brought here for review. '
The first assignment of error is that the court erred in sustaining plaintiff’s objection to the introduction of evidence on the motion to quash the warrant. This objection was made on two grounds : (1) That no notice of the intention to introduce evidence in support of said motion was given the city ; and (2) that as the complaint was regular on its face and verified positively, it was sufficient to give the court jurisdiction to issue the warrant and put the defendant on trial. This last proposition contains the substance of the principal contention in the case, except that it is contended by the appellant that the complaint was not verified positively. In this he is mistaken. The body of the complaint commences : “Ed. Ernest, of lawful age, being first duly sworn, on oath deposes and says.” This is followed by a recital of the alleged facts constituting the offense, and ends with the signature of the complainant and the jurat of the officer administering the oath. All this is positive and contains no qualification whatever. The exact question herein was decided by the supreme court in the case of The State v. Carey, 56 Kan. 84, 42 Pac. 371. The first section of the syllabus reads :
“An objection to a warrant that the person who verified the complaint, although in positive form, had no knowledge of the facts save such as were based upon rumor, hearsay, information,-and belief, and a subsequent plea in abatement to ah information for a felony on the same ground, were properly overruled without any evidence thereon.”.
We think that this case settles the law of this state on the main question at issue herein and disposes of the first and second assignments of error.
The third assignment of error is in overruling defendant’s motion to quash the warrant because the ordinance under which it was issued is void. The first reason given for the invalidity of the ordinance .is that the subject is not clearly expressed in the title, as required by section 59, chapter 87, General Statutes of 1897 (Gen. Stat. 1889, ¶ 765). The title of the ordinance in question is : “An ordinance to prohibit the keeping and sale of intoxicating liquors, except for medicinal, scientific and mechanical purposes.’’ This title is sufficiently comprehensive to cover tippling shops, saloons, “joints,’’ or any other place, regardless of the name, where liquor is kept and sold. The other objection urged to the validity of the ordinance is that it gives a larger maximum of imprisonment than does the state law. To this the appellee answers that it is a distinction without a difference, as the state law gives ninety days and the ordinance three months, and says : “ If it had stated in th'e ordinance that it should not be more than three calendar months, there might be some reason for the contention.’’ Taken in connection with subdivision eleven of section 8, chapter 1, General Statutes of 1897 (Gen. Stat. 1889, ¶ 6687), which says: “The word ‘month’ means a calendar month," unless otherwise expressed,’’ that is about what the ordinance does say. Our supreme court has held that both the state and city, under their respective laws, have jurisdiction of the offense committed against its own law by the same act, but as to the exact extent of the right of the city to vary the punishment from that given under the state law there is considerable difference in the authorities. We find nowhere in our own reports an authoritative settlement thereof, and we shall not attempt to decide it in this case. As the difference between the penalty allowed by law and the ordinance is trifling and uncertain, and as the punishment in this case was within the limits fixed by each, we do not think any material error was committed in that respect by the court below.
The fourth, fifth, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth assignment of error are without merit and require no comment other than as above given. The sixth and seventh assignments of error are in relation to the evidence of the probate judge, who testified that he was the custodian of the records of druggists’ permits issued ; -that he had examined the records of his office for several years and that no druggist’s permit had been issued to the defendant. This was competent evidence. (The State v. Schweiter, 27 Kan. 501.) The sixteenth assignment of error is: “That the court neglected to instruct the jury as to the presumption of law arising from his (the defendant) neglecting to testify as a witness.” This was not error. The statute expressly provides that the circumstance of the defendant’s neglect or refusal to testify shall not be referred to by any attorney prosecuting in the case,, nor shall the same be considered by the court or jury before whom the trial takes place. The remaining allegations of error are based on those hereinbefore considered, and are not valid.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Dennison, P. J.:
This is an action for an injunction, brought by Baxter in the district court of Marion county, to restrain Yeagley and B. R. Davis, the sheriff of the county, from selling certain personal property. Baxter had brought an action in justice’s court against one Charles Waddell, in which a judgment was rendered in his favor. An execution was issued thereon and levied on the personal property in controversy. After the commencement of Baxter’s action, but before judgment was rendered therein, Yeagley, this defendant in error,'commenced an action against said Waddell before the same justice of the peace and caused an order of attachment to be issued therein which was delivered to the defendant in error Davis, as sheriff, to serve. Davis, having other official business to perform, gave the papers to one D. F. Myers, stating to him : “I hereby specially appoint you to serve the summons in this case and the order of attachment upon Charles Waddell.” And thereupon the sheriff orally administered an oath to the said Myers to act as his deputy for the purpose of serving the summons and order of attachment. Myers proceeded to serve the summons and order and to levy the attachment on the property in controversy and to summon and swear the appraisers, making out the inventory and return as “ deputy sheriff specially appointed to serve the within writ.” Judgment was rendered by default in favor of Yeagley in the action, and the sheriff was proceeding to sell the property.
The appointment of Myers by the sheriff, was not indorsed on either of the writs, nor made in writing, nor was the return of either writ verified. The levy of Baxter was made subsequent to the attachment of Yeagley andón the.same property, and this action was brought to enjoin the sale thereof by the sheriff by virtue of the attachment. A temporary writ was issued, which upon the hearing was dissolved. Baxter brings the case here for review.
As we view this case, the only question necessary to be determined is the authority of Myers to serve the writs. This involves an examination of the authority of sheriffs to appoint persons to do particular acts. Sec-, tion 5 of chapter 88, General Statutes of 1897 (Gen. Stat. 1889, 1763), among other things contains the following - language : “And persons may also be deputed by such sheriff or under-sheriff in writing to do particular acts.’.’ Section 62, chapter 95 (Gen. Stat. 1889, ¶4142 ), provides
“The' summons shall be served by the officer to whom.it is directed, who shall indorse on the original writ the time and manner of service. It may be also served by any person not a party to the action, appointed by the officer to whom it is directed. The authority of such person shall be indorsed on the writ. When the writ is served by a person appointed by the officer to whom it is directed, or when the service is made out of the state, the return shall be verified by oath or affirmation.”
These are the only sections of the statute which we find or have been referred to which authorize a sheriff to appoint a deputy to do special or particular acts in civil cases. Assuming that the sheriff has only such powers as are delegated to him by the statute, we must hold that when he deputizes a person to do a particular act the appointment must be in writing, and if the appointment is to serve a summons, the authority must be indorsed on the writ. The authority not appearing on the summons, Waddell was not summoned, and needed not to appear; in fact, he did not appear, and judgment was rendered by default. The justice obtained no jurisdiction of his person, and the judgment is void.
It is contended by the defendant in error that the appointment by a sheriff of a special deputy to serve process issuing from a justice's court is governed by the statute allowing constables to appoint deputies. Section 80, chapter 103, General Statutes of 1897, (Gen. Stat. 1889, ¶ 5061), provides as follows :
“All process provided for by this act may be directed to the sheriff of the county, in the discretion of the justice, and be by the sheriff served and returned in the same manner as provided for in cases where the-same is issued to the constable.”
The authority of constables to appoint deputies is. contained in section 3, chapter 105, General Statutes; of 1897 (Gen. Stat. 1889, ¶ 5081), which reads as follows :
"All constables shall be ministerial officers in justice's courts in their respective counties, and civil and criminal process may be executed by them throughout the county, under the restrictions and provisions of the law. They may appoint one or more deputies, who may perform the same duties as their principals, and such principals shall be responsible on their official bonds for the acts of such deputies.”
We need not determine the manner in which constables may appoint deputies. Section 30, chapter 103, supra, provides that the sheriff shall serve and return process in the same manner as provided for in cases where the same is issued to the constable. This has no reference to the manner in which he appoints his deputies.
Section 31, following (Gen. Stat. 1889, ¶ 4858), explains fully what is meant by the manner and time of service and return. It must be served at least three days before the time of appearance, in the following manner : "By delivering a copy of the summons, with the indorsements thereon, ... or leaving the same at his usual place of residence.” It is returnable not more than twelve days from its date in some cases and not more that thirty days in others. It is not necessary to determine the effect of the failure of Myers to verify his return.
The judgment of the district court is reversed, and the case remanded with instructions to grant the injunction.
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The opinion of the court was delivered by
Milton, J.:
This action was brought by Edward Clark against the St. Louis & San Francisco Railway Company, before a justice of' the peace of Butler county, to recover damages from the company growing out of its alleged negligence in transporting a carload of live stock from Andover in said county to Kansas City, Mo. Clark claimed that the company undertook to ship the stock from Andover to Kansas City, and for that purpose furnished him a car at that station on March 30, 1888 ; that he put into the car in sound and healthy condition sixty head of fat hogs, which the company agreed to deliver in good condition in Kansas City ; but that by reason of the negligence of the company only forty-four of the hogs were delivered in Kansas City, thus damaging plaintiff, by a failure to deliver sixteen of the hogs, in the sum of $250. From a verdict and judgment in favor of Clark in the sum sued for, the railroad company appealed to the district court. In that court Clark moved to dismiss the appeal, for the reason that no surety had signed the appeal bond. Another bond was thereupon exhibited to the court, properly signed by sureties and indorsed as having been filed and approved before'the justice within the time prescribed by law for taking an appeal. The motion to dismiss the appeal was overruled, and a trial Ny jury was had in the district court, resulting in a verdict and judgment for the plaintiff in the sum of $245.92. Upon proceedings in error by the railroad company the judgment of the district court was reversed. (St. L. & S. F. Rly. Co. v. Clark, 48 Kan. 321, 29 Pac. 312.)
The case was thereafter again tried in the district court, the plaintiff renewing his motion to dismiss the appeal from the judgment of the justice of the peace, for the alleged insufficiency of the appeal bond. The motion was overruled, and thereupon the case was tried to a jury, and a verdict was returned in favor of the defendant company. A very complete statement of the facts as they appear in the present record can be found in the opinion of the supreme court in the case just mentioned.
The defendant in error suggests various objections to the case made, and asks that the proceedings in error be dismissed. The first objection is that the record does not show that the case-made was served in time or that it was served at all. The record contains nothing showing that the case-made was served on the defendant in error or that amendments thereto were suggested. It was settled and signed long after the time given for serving the same and for suggesting amendments. On the day it was signed and settled, and prior to the signing and settling thereof, the district judge permitted counsel for plaintiff in error — counsel for both parties being present— to insert in the case-made, at the conclusion of the testimony therein set forth, the following language : ‘ ‘ The foregoing is all the evidence introduced and offered upon the trial of this case and all objections thereto and the exceptions.” We do not understand that counsel for defendant in error claim the case-made was not served, but simply that the record fails to show that it was served. This objection is probably answered by the fact that the defendant was represented at the settling of the case-made, and did not then, or since, offer to prove that service was not made.
We think the district judge erred in permitting the case-made to be amended by inserting the statemen-t above quoted after the time for making and serving the case-made and for suggesting amendments thereto had expired. In the case of Eddy v. Weaver, 37 Kan. 540, 15 Pac. 492, the supreme court held that it was improper for the trial judge to insert a similar statement in his certificate to the case-made under like circumstances. The court regarded such statement as not falling within the category of new propositions necessary to make the case, as it was originally made and served or the amendments thereto as orginally suggested, speak the truth, and as being therefore equivalent to making a new case for the supreme court after the time for making and serving the same had elapsed. We are unable to avoid the conclusion that, within the doctrine of the foregoing case, the district judge exceeded his jurisdiction and authority in permitting the amendment to be made in the present instance. According to this view, the evidence set forth in the case-made before us cannot properly be examined.
This leaves but one question for our consideration, namely, the alleged error of the trial court overruling the motion to dismiss the appeal from the judgment of the justice of the peace. Counsel for plaintiff in error state in their brief that the appeal bond was in fact given long after the time for taking the appeal had expired. As before stated, the record shows that this bond was marked “filed” and “approved” by the justice on May 11, 1888, the day the case was first tried. As the record stands, we cannot hold that the court erred in overruling the motion to dismiss the appeal.
We have read the entire record and have given careful attention to all the claims of counsel' for the plaintiff in error in respect to the alleged errors of the court in the admission and in the rejection of testimony. The conclusion we have reached is that, while some of the rulings of the trial court were incorrect, no such error appears as would require a reversal of the judgment. The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
J. D. Larabee commenced an action in replevin against L. A. Hall, in the district court of Stafford county, to recover certain personal property on which Larabee held a chattel mortgage. A redelivery bond was executed, signed by J. B. O. Cook, defendant in error, and others, conditioned as follows :
“Now, we, the undersigned, residents of said county, bind ourselves to the said plaintiff in the sum of three thousand dollars, that said defendant shall deliver to the said plaintiff the property herein returned to him, if such delivery be adjudged, and pay all costs and damages awarded against him in said action.”
The property was valued at $1080.76. Upon the final trial the amount of Larabee’s interest in the property was found to be $924.16, with interest. The costs amounted to $474.92. Execution was issued, the costs were paid in full, $605.84 in cash was paid on Larabee’s interest, and property described in the redelivery bond and valued at $231 was turned over to the sheriff by L. A. Hall. There was no judgment for damages. The issue in this case is clearly stated in the brief of defendant in error, as follows :
“ Plaintiff contends that the judgment obtained in the replevin action should not be credited with any property that was returned under the execution, but only by the actual amount that such property subsequently brought at forced sale by Larabee under his chattel mortgage (which was eighty-eight dollars). Defendant, on his part, contends that by a return of any part of the property his obligation on the redelivery bond is pro tanto fulfilled. He also claims that under the conditions of his bond he never in any manner, by implication or otherwise, assumed or agreed to pay Hall’s indebtedness to Larabee or guaranteed. that the property in dispute would sell for an amount equal to Larabee’s interest therein.”
The contention of the defendant in error is correct. There was no judgment for damages. The property was described, itemized and a value placed on each article in the redelivery bond at the time it was executed. Under the conditions of the bond, when the property, or any part of it', was returned, the obliga: tion of the sureties created by the bond should be reduced to the extent of the property returned, at the value designated in the bond. In the case of Edwards v. Ellis, 27 Kan. 348, the supreme court said:
It is well settled that the law will not increase or enlarge the terms of an undertaking to the prejudice of its signers, or create a liability against the sureties which they did not intend to incur, and which is not within the express conditions of the undertaking.” (Henrie v. Buck, 39 Kan. 381, 18 Pac. 228; Hays v. Closon, 20 Kan. 120; Brock v. Bolton, 16 S. E. 370.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
Our authority to consider this case is challenged, for the reason that it is not affirmatively shown by the record that a motion for a new trial was filed within three days after the return of the verdict and at the same term of court. It appears from the record that the trial of the case was commenced on the 19th ,day of February, 1897, and a motion for judgment on the special findings was filed February 21, 1897. The journal entry reciting the proceedings from the commencement of the trial, on the 19th day of February, 1897, including the verdict and special findings returned by the jury, was filed on the 23d day of March, 1897, and contained the following statements:
“Upon the return of the said verdict and such special findings, the court inquired of the various parties and from counsel if any request was desired to be made, and the answer being in the negative, said jury was discharged.
“Thereupon, in open court, said defendant gave notice of this motion for judgment on the findings and also its motion for a new trial, and thereupon filed its motion for judgment on the findings and afterwards filed its motion for a new trial, said motion being filed during court and within twenty four hours from rendition of judgment.”
On the 27th day of February, the motion for judgment on the special findings and the motion for a new trial were argued, and overruled by the court. From an examination of this record, we hold the fact to be that the motion -for a new trial was filed within three days after the return of the verdict, and that it was filed at the regular term of court at which the verdict was returned.
The question submitted in this case is, When a qiiasi-municipal corporation, a county, with statutory authority enters into a contract for the rent of a building for court-house purposes, is it liable in damages, when the building is destroyed by the negligence of its officers? The jury, in its spécial findings, found that the county commissioners were negligent in allowing a part of the house to be occupied by a person not a county officer, in violation of the lease, and by allowing hay and straw and other combustible material to be and remain in the unoccupied rooms, and in leaving the hall door open, and further found that the fire could have been avoided by the commissioners if they had complied with the terms of the lease and kept the hall doors shut and the unoccupied rooms free from hay, straw, and other combustible materials.
It is well settled in this state that a quasi corporation, in the absence of an express statute imposing the liability, is not liable for the negligence of its officers. In the case of Lumber Co. v. Elliott, 59 Kan. 42, 51 Pac. 389, the supreme court said : “A guasi-municipal corporation, like the board of education of a city, is never liable for the consequence of a breach of public duty or the neglect or wrong of its officers, unless there is a statute expressly imposing such liability.” In the case of Comm’rs of Marion Co. v. Riggs, 24 Kan. 255, the supreme court said : “In the absence of a liability expressly declared by statute, a county is not liable for damages accruing from defective highways or public bridges.” (Eikenberry v. Township of Bazaar, 22 Kan. 556; Township of Quincy v. Sheehan, 48 Kan. 620, 29 Pac. 1084; Field v. Albemarle, 20 S. E. 954; Frye v. County of Albemarle, 9 S. E. 1004.)
The judgment of the district court will be reversed.
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The opinion of the court was delivered by
McElroy, J.:
This action whs brought by Freeman, plaintiff in error, against the board of county commissioners of Wyandotte county, for services rendered by plaintiff in error as an attorney and counselor at law. A trial was had before the court and a jury. The plaintiff introduced his evidence and rested, and the defendant board of county commissioners interposed a demurrer to the evidence, which was sustained, the plaintiff excepting. A motion for a new trial was filed and overruled, and the-case is presented to this court for review.
It appears from the record that J. J. Squires com menced an action in ejectment in the circuit court of the United States for the district of Kansas against Quindaro township, in Wyandotte county, C. F. Horstman, trustee, Frank Brown, clerk, and D. Braman, treasurer, of such township, to recover the title and possession of Quindaro park. The board of county commissioners employed Freeman as attorney and counselor at law to defend the suit, and he performed the. services. The board of county commissioners paid the expenses of Freeman incident to the action. Freeman presented his bill for $1500, payment of which was rejected by the board. He appealed to the district court, where judgment was rendered on the demurrer as before stated. Quindaro park, the subject of the litigation in the action in which the professional services were rendered, was dedicated to the public, the fee of the park, however, being in Wyandotte county. The action of Squires was defeated, and this proceeding was brought to recover compensation for such services. The Squires case is reported as Quindaro Township v. Squires, 51 Fed. 153.
The defendant in error, in the trial court and here, contends that the suit of Squires against Quindaro township in the circuit court was one in which Quindaro township and its officers alone were interested ; that the action involved a township matter and not a matter in which the county had any interest; that inasmuch as neither the board of county commissioners nor any of the county officers were parties to the action in the United States circuit court, the board of county commissioners' had no right or power to employ counsel in such suit, and that the board of county commissioners in employing such counsel acted without authority, and such contract is void.
The only question in this case is whether the county commissioners had the power and authority to employ the plaintiff in error to defend such suit at the expense of Wyandotte county. In the case of Squires against Quindaro township, the subject-matter of the litigation was Quindaro park. • This park was dedicated to the use of the public, the legal title being vested in Wyandotte county. In Thacher & Stephens v. Comm’rs of Jefferson Co., 13 Kan. 182, the court said:
“In many cases the county is bylaw constituted the general agent or guardian for the protection of the rights and interests of townships, and of other subdivisions of the county, and may prosecute or defend therefor. Thus, the county, through the board of county commissioners, may maintain an action against the county treasurer for a misappropriation or misapplication of the funds of a township or school district, etc., although the county as a corporation can have but little interest in the funds of such township or school district. (Comm’rs of Jackson Co. v. Craft, 6 Kan. 145.) . . . We suppose that whenever the county is interested at all in the result of a suit, either in its own behalf or in that of some township of the county, and the suit is brought against the legal representatives of the county, and is beyond the limits of the county, the county commissioners may, if they choose, employ counsel to take care of the interest of the county.”
The plea of ultra vires, as a general rule, will not prevail when it will not advance justice but will on the contrary accomplish a legal wrong. It is very well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been in good faith performed by the other party and the corporation has had full benefit of the performance of ths contract. We are of the opinion that the county has such an interest in its townships as will enable the county commissioners to assist them in defending their rights, and that Wyandotte county has such an interest in Quindaro park and township as to enable the county commissioners to make a legal contract for the services of Freeman in defending the action of Squires, and that the contract so made with Freeman fixed a legal liability on the county to pay the reasonable value of such services rendered. The court ■erred in sustaining the demurrer.
The judgment will be reversed, .and the cause remanded with direction that the trial court overrule the demurrer and grant a new trial.
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The opinion of the court was delivered by
Milton, J.:
This was a statutory action to quiet title to real estate, brought by John T. Stewart against the First National Bank of Wellington, Kansas, in the district court of Sumner county. The decree of the court was in the usual form, quieting the title of the plaintiff to the land, as against the defendant and all persons claiming under the defendant, and enjoining the defendant from setting up or asserting any lien on or interest in the land or any part thereof by virtue of the mortgage under which it claimed. The court also ordered the defendant to cancel the mortgage, and that in case the defendant should fail so to do then the register of deeds of Sumner county should make such cancelation. The record states that by agreement the case was submitted for decision on the petition and answer. From these it appears that the mortgage and the note, which was payable on demand, were executed more than five years prior to the commencement of this action, which was brought to quiet plaintiff’s title as against defendant’s mortgage, under the claim that the same was barred. The mortgage was dated December 8, 1886, and recorded October 15, 1887. This action was begun on August 26’ 1893. Stewart held the fee-simple title and was in possession of the mortgaged premises. The mortgage had been executed by A. A. Richards and wife, who thereafter conveyed the land to Stewart. When this conveyance was made Stewart was aware that the note and mortgage were owned and held by defendant below, having been made payable to its cashier. The mortgagors and the mortgagee have resided in Sumner county continuously since the mortgage was given. No part of the note has ever been paid nor has it been kept alive by written promises to pay.
Counsel for 'plaintiff in error contend that the trial court erred in granting equitable relief to plaintiff below without requiring him to do equity; that is, to pay the debt secured by the mortgage as a condition precedent to the cancelation thereof. We think counsel are mistaken as to the character of this action. It was evidently brought under section 594 of the code (Gen. Stat. 1889, ¶4697, Gen. Stat. 1897, ch. 96, § 1). In its answer the defendant referred to the mortgage, which was made an exhibit to plaintiff’s petition, and asserted its right to maintain a lien on the real estate therein mentioned to secure the payment of the debt evidenced by the note. The defendant also asked for a “decree declaring and adjudging its mortgage to be a valid and subsisting lien on all of said real estate, prior and superior to any right or title to said real estate which the plaintiff may have or claim to have, and that the plaintiff’s right and title to said real estate, if any he have, is subject to said mortgage and the lien thereof.” As from both the petition and the answer it appeared that the note and mortgage were barred at the time this action was commenced, it was proper for the trial court to quiet the plaintiff’s title as against the purported lien of the mortgage. While it was not necessary, to make the decree effectual, that an actual cancelation of the mortgage on the record should be made, it cannot be held that the court committed reversible error in making the order.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dennison, P. J.:
This action was commenced in the district court of Linn county by the defendant in error to recover a judgment against the plaintiff in error on a promissory note and to foreclose a real estate mortgage given by plaintiff in error to secure the payment of the note. The answer of the defendant in the court below alleged payment to Robert Kincaid as the agent of the plaintiff below. An application for a continuance was overruled, and the case went to trial before a jury. The court sustained a demurrer to the evidence introduced by the defendant below on the ground that no agency had been established. A motion was filed asking for a new trial for the following causes : (1) Accident and surprise which ordinary precaution could not have guarded against; and (2) newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial. To sustain this motion, the affidavit of James Tyrer was filed, tending to show that he was present when Kincaid turned over to the plaintiff $175 which he had collected from the defendant on the note in controversy. None of the evidence is in the case-made.
The petition in error alleges that the court erred in overruling the motion for a new trial. No other error is complained of. There is no argument on the question of accident or surprise and we are not informed as to the nature of the accident or the cause of the surprise. The .only question presented is the question of newly-discovered evidence. On the hearing of a motion for a new trial under our statutes on the ground of newly-discovered evidence, the questions to be considered are whether the evidence is newly-discovered and material, or merely cumulative, and whether diligence has been exercised in its discovery. On the question whether the evidence was newly-discovered and was material, we are inclined to hold in favor of the plaintiff in error. We cannot, however, say that the plaintiff in error made such a showing of reasonable diligence that the court erred in overruling the motion for a new trial, and we do not know of any way of determining whether the evidence is cumulative, for the reason that none of it is contained in the record.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This suit was commenced by plaintiff in error against defendant in error in the district court of Reno county to recover on two promissory notes. In April, 1888, the Bank of Commerce, a state bank, was reorganized into the National Bank of Commerce. Among the assets of the state-bank were two notes, secured by mortgage, which could not be transferred to the new bank as assets under the national banking laws. In order that the assets represented by these notes might be transferred to the national bank, Hiram Constant executed notes of like amount to the National Bank of Commerce, which the bank was to hold, and collect the original notes, and apply the amount collected on the Constant notes. A contract was executed whereby Constant -was to be held harm less. - He never received the notes secured by mortgage or h ad any control over them. This state of affairs continued until the death of Constant. After his death, Mr. Atkinson, an officer of both banks and husband of the defendant in error, procured defendant in error to take Constant’s place, and on the execution by her of the notes of which these in suit are renewals the Constant notes were taken up and surrendered to his legal representatives. It is contended that the bank agreed to hold the defendant in error harmless, and delivered to her the following contracts :
“article or agreement.
“This Agreement, Made and entered into this 16th day of April, 1888, by and between the National Bank of Commerce, at Hutchinson, Kan., party of the first part, and Hiram Constant, of Hutchinson, Kan., party of the second part, witnesseth :
“ That,Whereas, Said Hiram Constant has this day executed his two promissory notes, of even date, one for three thousand two hundred and eighty-two and dollars ($3282.84), the other for three thousand six hundred and fifty-six and dollars ($3656.31), both due ninety days after date, bearing interest from maturity at twelve per cent, per annum ; and, whereas, said National Bank of Commerce has this day assigned to said Hiram Constant certain notes, described as follows : The first note signed by Dudley Rhoads and Ploma E. Rhoads, for $7000, dated May 17, 1887, due sixty days after date, and credited ‘August 8, 1887, $2800,’ ‘September 16, 1887, $1290.66,’ and ‘April 17, 1888, $39.41’ ; said note draws interest from maturity at twelve per cent, per annum. The second note signed by Frank B. Hyde, Martha E. Hyde, O. S. Carpenter, and Hannah L. Carpenter, for $4000, dated December 18, 1886, due ninety days after date, bearing interest from maturity at twelve per cent, per annum, credited as follows: ‘July 18, 1887, interest paid to date’; ‘January 3, 1888, cash on interest, $200’; ‘February 2, 1888, cash paid, $200’; ‘March 3, 1888, cash paid, $200'; ‘April 5, 1888, cash paid, $200/ Both of the above notes secured by second mortgage upon certain lots in the city of Plutchinson, Kan., described in three certain mortgages, duly executed, acknowledged, and recorded upon pages 554, book 38 ; 222, book 38 ; 442, book 38, of the records of Reno county, Kansas. Now, therefore, said National Bank of Commerce agrees with said Hiram Constant as follows : In case said Constant shall collect said notes of Dudley Rhoads et al. and F. B. Hyde et al. by foreclosure and sale of said property under mortgage, the said bank agrees to indemnify said Constant for all loss that may accrue to him as between the amount of the notes given by Constant to said bank and the amount that may be realized from sale under mortgage of the real estate above described, t,o the end that no loss or damage may accrue to said Constant by reason of the giving of said notes to the National Bank of Commerce, as aforesaid ; the consideration of this agreement being one dollar and the greater security of the indebtedness of said F. B. Hyde and Dudley Rhoads.
“ Witness the signature of the president and cashier of said bank and its seal hereto affixed, this 16th day of April, 1888. (Signed) G. W. Hardy, President.
[seal.] F. E. Carr, Cashier.”
“State of Kansas, Reno County, ss.
“Whereas, Hiram Constant, who was a party to the original contract hereto attached, being dead, it is understood and agreed by and between the National Bank of Commerce and L. F. Atkinson that she assumes the place on said notes, being at this date of the amounts as follows : Dudley Rhoads, $986 ; Carpenter & Plyde, $785 ; and the said National Bank of Commerce agrees to and with said L. F. Atkinson that they will hold her harmless on account of said notes and from all loss or annoyance on account of her signing said notes or any renewal of same.
Witness our hands, this 15th day of March, 1890.
National Bank of Commerce, Hutchinson, Kan.
G. W. Hardy, President.
[seal.] > W. T. Atkinson, Cashier.”
Plaintiff in error in its reply denies that it ever made or executed the alleged contract with defendant Hiram Constant. The introduction of these.contracts in evidence over the objection of plaintiff, without proof of their authority to make the same, is the only serious question involved in this case.
It was admitted that the signatures attached to the contract- were the signatures of the president and cashier, as they purported to be, and the seal was the bank’s seal. On this admission, without proof of authority to execute the contract, or that the seal was attached by authority, the contract was admitted in evidence. Was this error? In the case of Town Co. v. Swigart (43 Kan. 292, 23 Pac. 569), the supreme court said:
“Where the president and secretary of a corporation execute a contract in behalf of the company, which is regular on its face and not shown to be outside of the regular business of the corporation, it is prima facie evidence that it was executed with authority, and those who deny the authority take upon themselves the burden of establishing their claim.
‘ ‘ Where the president and secretary of a corporation act openly and publicly as its agents in making contracts and generally in managing its business, with the understanding and acquiescence of the directors that they shall so act, the corporation will not be relieved from liability upon contracts so made upon the mere ground that the directors failed to formally confer authority on these officers by vote or resolution entered on the records of the corporation.”
Under the admissions and the rule in this case, it was not error to admit the contracts in evidence. The other errors assigned are not sufficient to require a reversal.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, C. J.
Lawrence Liebeno was charged under G. S. 1935, 21-424, of forcibly ravishing a thirteen-year-old girl. A jury trial resulted in a verdict of guilty, as charged. The trial court overruled his motion for a new trial, and upon competent evidence found that defendant had twice previously been convicted of felony. The court sentenced him under G. S. 1945 Supp. 21-107a to confinement in our state penitentiary “for the period of his natural life, unless sooner released by competent authority.” Defendant has appealed.
The evidence which the triers of fact cannot be criticized for believing may be summarized briefly as follows: The girl was á student in the junior high school in Leavenworth. She lived with her mother, who taught a sixth-grade class in the Leavenworth schools. On April 2, 1946, when her school was out, shortly after three o’clock, she delivered a paper she had written to her teacher and started to walk to her home. She was carrying school books', a pencil and a small brown leather purse in which was her locker key, 35 cents in change and a slip of paper on which was written her name and address. She was wearing a brown skirt, a green blouse, shoes and stockings, but no coat. As she was walking along the sidewalk, defendent, driving a Chevrolet coup-é, drove up to the curb and said, “Come here a minute, young lady.” She thought he wanted to inquire about directions and went near his car. He asked her if she would like a job at the Hollywood theater taking tickets. She told him she did not because she had to stay at home with her mother. He said that it paid good. She started to walk away and he said, “Get in,” real crossly. She was frightened and got in the car. He drove to the south on Highway 73 and kept talking to her aboút jobs and the good pay she might receive, When he reached the intersection of an east and west highway at the Wallula store he turned east on a dirt road, known as the Goode Road, and traveled about two miles, crossed a bridge and stopped on the south side of the road, two wheels of the car being off the traveled portion. He spoke of being lost and said he couldn’t find the boss’s house. He told her to put her books on the shelf behind the seat. She said she would just hold them. He took a wrench out of the glove compartment of the car and told her to put her books back there, which she did. He took his glasses off and put them back there. He then told her that he would kill her with the wrench if she didn’t do what he said. She was frightened. He told her to get out of the car. She did. He held the wrench in his hand and told her he would hit her over the head with it if she didn’t do what he told her to. She said, “If I get out and you don’t hurt me, will you take me back home?” He had her crawl under a wire fence; he climbed over it, and'they walked south into the woods, where there were small trees and bushes. He told her not to scream, that he would hit her with the wrench. He had a blanket which he had brought from his car and spread it on the ground. Her blouse had three buttons; the top one was not buttoned. He grabbed the blouse near her neck and tore it off her. One of the buttons came off, the other was broken. He threatened her again, told her to take her clothes off and to lie down. She did so. He removed his clothes and had sexual intercourse with her. He then had her get up and .put her clothes on and he put on his. .They walked back to' the car. He told her to get in the car and to lie down on the floor so no one could see her, which she did. After they got into the car he drove a short distance and turned around in a driveway or intersection and drove back to Leavenworth, the same route he had driven. He kept the wrench in his hand, or on the seat near him. When they got into Leavenworth he told her not to scream or he would kill her and that if she ever told anyone about it he would kill her. He let her out several blocks from her home and she walked home. When she reached home her mother had not come from her daily teaching, but did arrive about five o’clock. She promptly told her mother all that had happened. The mother called Leo R. Channell, an osteopath physician. He had been in the practice of his profession in Leavenworth for a number of years and had previously treated the.family. He found the girl had bruises and scratches on her body, her vagina had been injured — entrance had been made; the hymen was torn. While the hemorrhage was not great there was blood on her legs and on her clothing. He gave her a cleansing douche to cleanse the body and to make sure she would not have any trouble with infection or the possibility of pregnancy. The girl had noticed the car in which defendant had taken her, and particúlarly the interior of it. The instrument panel'had been painted with a grey paint, evidently with a paint brush, for it was streaked. The ignition key ring had a red dice on it. There was a floor lever shift which had a white knob at the top, described by her as like a door knob but smaller. There were a few dark streaks on that and it had two distinct parallel marks across it. The seat had a woven straw mat seat cover with different colored straws, and upon the end of the seat where she sat there was a large blotch such as might have, been made at some time by spilled ink or some other fluid. She gave a fairly good description of defendant except that she slightly overestimated his weight and height and estimated his age at 35. The evidence proved he was 29.
The matters were reported to the sheriff’s office at Leavenworth and an undersheriff took up the investigation. He talked with the girl and that evening had her go with him over the route defendant’s car had traveled. The investigation, was continued the next day by the sheriff’s force. Near the bridge one of them noticed tracks of an automobile and a truck, and- east of. the bridge again noticed the tracks of the automobile on the south side of the road. He later noticed them where the car had turned around. He was familiar with various makes of tires and the imprints they make. He went to the place where the offense occurred and there found the girl’s purse, which still contained the locker key, her change, 35 cents, and the slip of paper with her name and address. He also found a button' which had been torn from her blouse and the half of another button, which had been broken in two. He later found the other half of the button in defendant’s car near the edge of the floor. He found the distance from Leavenworth to the place of the offense, measured by his speedometer, was 10.2 miles. He timed his driving speed to the place as 16 or 17 minutes. He made further investigations and the next day went to the home of the defendant, which was farther east than the place of the crime. There he found in the yard the automobile which had the peculiar interior marks described by the girl. He also noticed the tires on the right side of the car and particularly the tire on the right front side. He compared tlie imprints of the tires made on the road near the scene of the crime and at the bridge and where the car was turned and found them to correspond with the tires on defendant’s car. When he examined the tracks he had noticed that the front tire appeared to have a place cut out of one side. The tire on the right wheel, of plaintiff’s car had such a place cut out such as would be made by hitting a stone or some sharp object. He had defendant take the car into town and the girl examined it. She had thought the color of the car in which she rode was green, but when the car was brought in it looked blue. There was also some difference in the floor covering. She was hesitant about identifying it positively, although it did have the interior peculiarities which she had noticed. Defendant was kept in jail that night. The next morning he and seven other inmates of the jail were brought out into the show-up room. The girl was brought in and asked if she could identify any of the persons as the one who had been with her on April 2. She promptly identified defendant. The place where the crime was committed is in Wyandotte county, so the sheriff of that county was notified.
E. R. Edwards, sheriff of Wyandotte county, and his two deputies, Ray Wélty and W. R. Wilson, went to Leavenworth on April 5 and took the defendant to the sheriff’s office at Kansas City. On the way the sheriff asked defendant if he wanted to tell the sheriff anything. Defendant answered that he would rather tell the sheriff than anyone because he knew that the sheriff would treat him right if he'told the truth. He then went ahead and told about having the girl get in his car in Leavenworth and talking to her about getting a job and driving to the place where he stopped his car, and that he got the girl out of the car, through the fence, and “that he attacked her.” He said he held her hand while he was getting through the fence and told her not to scream because there wasn’t a house within a quarter of a mile and “that he would kill her if she screamed or made any noise.” He further stated that as a result of his attack “that he got satisfaction.”
On reaching his office the sheriff obtained the services of the shorthand reporter of the county attorney’s office and told defendant he would like to have a statement of the facts for the records of his office. Defendant stated that he did not want to sign anything, and the sheriff told him he need not sign it. Answering questions propounded him by the sheriff he told the story of the offense substantially as1 the girl had told it to the officers of Leavenworth county and later on the witness stand, with the exception that defendant said the completed offense was not accomplished, that what he did was only an attempt to accomplish it. At Kansas City he made statements also to a newspaper reporter and to an assistant county attorney which were not taken in writing but were in accord with t,he statements which were taken by- the stenographer.
In this court appellant first contends that the verdict was contrary to the law and the evidence. There was a lengthy trial which began on July 10 and was completed July 17. Capable, experienced attorneys appeared on each side. No detail in presenting evidence or legal questions was overlooked. It would serve no useful purpose to go through this evidence at greater length than the general summary above stated.
Under this head counsel for appellant argues that no penetration was shown beyond a reasonable doubt. The point is not well taken. The girl’s specific testimony on that point is supported by the testimony of the osteopathic physician. The only thing in the evidence which tends to controvert it is contained in the statement of the defendant made to the sheriff of Wyandotte county. The weight to be given to this evidence was for the triers of fact.
Counsel for appellant also argues that the verdict was contrary to the law and evidence because defendant established an alibi. It- is true he offered evidence tending to support an alibi. Much evidence was offered to the contrary. This again was a question of fact.
Counsel for defendant argues it was error to permit the stenographer to read questions and answers propounded to defendant by the sheriff of Wyandotte county. When the transcript of the statement was offered in evidence it was objected to as having been obtained by threats which amounted to duress. Preliminary to the ruling upon the objection the court, in the absence of the jury, heard evidence as to the circumstances under which the statement was made. This disclosed no threats or duress. The state did not use the transcript of the testimony, but called the stenographer and had her read from her notes. Testifying in his own behalf the defendant admitted that the questions were propounded to him by the sheriff and that he made the answers as read by the stenographer from her ■notes. His testimony was that the answers he made were not true and that he made them because the sheriff had told him that if he did not answer the questions he, the sheriff, would send for defendant’s wife and for a- Mr. Wycoff, and that he did not want them brought in and questioned. The triers of fact had a right to, and no doubt did, consider his testimony in that regard and all the other testimony bearing upon the question. The testimony of the stenographer was rightfully received. '
Counsel for defendant contends that it was improper to receive the testimony of the osteopathic physician for the reason that a regular medical physician should have been called. The point is not well taken. The witness testified that he had been graduated from the osteopathic college in Kansas City in 1910 and duly licensed to practice osteopathy by the State Board of Osteopaths; that in the school the study of anatomy was stressed and that this included the study of female as well as male anatomy; that he had practiced his profession in Leavenworth for 36 years, the principal portion of his practice being obstetrics, which included the examination of the vaginal tract of female patients. The weight of his testimony was, of course, for the triers of fact. We think the court Correctly ruled him competent to testify.
Counsel for appellant has mentioned in his brief several rulings of the court upon the admission of evidence which he thinks are subject to criticism. We have examined all of those and what counsel has said about them and find that they are. trivial in the extreme and do not need special treatment in this opinion.
Finally it is argued that under G. S. 1945 Supp. 21-107a the sentence should have been for an indefinite term of not less than fifteen years. The statute says “for a period of not less than fifteen years.” The point has been ruled adversely to appellant’s contention in Fitzgerald v. Amrine, 154 Kan. 209, 117 P. 2d 582, and the authorities cited therein.
We find no error in the record. The judgment of the court below is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Harvey, C. J.
This was a proceeding for the custody of Sharon Kolene McCarty, about six years of age, and arose as follows: On September 26,1937, the appellant here married Ada Marie Urquhart, the daughter of the appellees here. On October 10, 1941, she filed a suit for divorce against her husband in the district court of Marion county upon the ground of extreme cruelty. Among other pertinent allegations she alleged that the child whose custody is now in question, then fourteen months of age, had been born to them; that she was then in the custody- of plaintiff, and “that defendant is an unfit person to have her care or custody or control”; that they had accumulated during their marriage one Dodge car of the value of $100 and that plaintiff had certain household furnishings which had been given to her by her parents; that defendant was an able-bodied man, employed at $100 per month, and that plaintiff was wholly dependent upon him for support. She prayed for divorce, alimony, suit money and attorney’s fees. Personal service was had upon defendant. He made no defense.
On January 17, 1942, the court heard the evidence and among other things found “that the allegations contained in plaintiff’s petition are true and that plaintiff is entitled to relief prayed for”; that plaintiff should have the custody of the minor child, Sharon Kolene McCarty, with the right of the defendant to visit the child twice per month. The court rendered a decree accordingly and further decreed that defendant should pay to the clerk of the court for the benefit of plaintiff the sum of $30 per month for the care, support, education and maintenance of the minor child, the first payment to be made February 1, 1942, and that defendant should pay the costs, including a fee of $50 for plaintiff’s attorney.
It appears there had been a temporary order for alimony which had not been paid, for which there were contempt proceedings heard on March 14,1942, as a result of which the court ordered the defendant to be confined in the jail for six months unless he paid to the clerk of the court the sum of $100, upon the payment of which he should be discharged from jail. He was taken into custody and paid the money the same day.
Later, in 1942, the plaintiff in that action married a Mr. Bonte and lived with him for a few months at Topeka and then at Wichita, and in March, 1943, they moved to Powell, Wyo.
On July 19, 1941, the appellant here married Ruth McCarty, and to that union one child- was born, Kathleen K. McCarty. Appellant sued her for divorce in Sedgwick county and she filed a cross petition therein, seeking a divorce on the ground of his extreme cruelty. This action was tried June 18,1943, and the divorce was granted to Ruth McCarty upon her allegations and proof of the extreme cruelty of her husband. She was given the custody of their minor child and he was orderded to pay into court $6 a week for the support of the child.
On December 19, 1943, the appellant married his present wife, Virginia McCarty. She had been twice married and divorced from her former husbands. She worked at the Dunegan stores in Wichita, and. has continued to do so. Defendant worked for various parties in Wichita, but about April 1,1946, was employed by the S. A. Long Company.
On July 14, 1946, both Mr. and Mrs. Bonte were drowned by the capsizing of a boat near Cody, Wyo., and Sharon Kolene McCarty was one of the survivors. Soon thereafter the appellees here learned of the tragedy and arranged to have Sharon Kolene McCarty brought to their home in Ottawa.
On July 26, 1946, the appellant here'filed in the original divorce action in Marion county a motion for custody of the child, in which he alleged that the divorce was granted to the plaintiff in that action and that she was given the custody of the child; that in the month of July, 1946, plaintiff in that action, Ada Marie McCarty, died; that on December 19, 1943, he had remarried and established a home; that “this defendant alleges that he is a fit and proper person for the care and custody of his minor child and that he is now a resident of Wichita,” employed by the S. A. Long Company and earns a sufficient salary to maintain his home and support and educate the child. He also alleged that his present wife “is a fit and proper person to have the care and custody of said minor child.” The motion was for an order giving him the custody of the child and permitting him to take the child to his home in Wichita.
The record does not show that this motion was served upon anyone. But on some date, not shown, the appellees here filed a petition for permission to intervene and to answer the application of appellant for the custody of Sharon Kolene McCarty for, the purpose of protecting the interests of the child and in which they advised the court that the child had -been with them, since the death of her mother and that they are the parents of the mother of the child. This petition was granted and appellees filed a verified answer to the application of the appellant for the custody of the child, in which they alleged that they reside at Ottawa, Kan.; that they are maternal grandparents of the child and have the child with them, and that the child’s mother was drowned July 14, 1946, at Cody, Wyo., together with her husband, and that the child was one of the survivors; alleged the decree of divorce of January 17, 1942; that the appellant was cited for contempt, and paid $100; that in addition thereto he made three payments for the support of the child in 1942 which aggregated $100, and that since December, 1942, he had paid nothing for the support of the child and was in arrears in such payments in the sum of $1,480; alleged the marriage of appellant to Ruth McCarty and her divorce from him upon the ground of- his extreme cruelty and that she was given the custody of their child, and appellant was ordered to pay support money, which he had not done, and alleged the marriage of appellant to his present wife. It was further alleged that the appellant “has a vicious temper-, is abusive and extremely cruel and is an unfit person to have custody of Sharon Kolene McCarty; that he attacked and beat the mother of this child as she sat in a car holding this baby in such a vicious manner that he knocked out some of her front teeth and made her bleed profusely from the face, necessitating the care of a dentist and doctor”; and further alleged that appellant is unable to care for the child. Appellees further alleged that they own their own home in Ottawa; that A. W. Urquhart was the County superintendent of Marion county for about ten years; that he is a Baptist minister; that he has an income of about $1,500 per annum and is worth approximately $15,000; that they are ready and willing to care for the child; that the child hás no funds or property, and asked for an order of the court granting to them the custody of the child, and that a proper order be made that the appellant pay monthly for the support of such child, and asked that he .be proceeded against for indirect contempt for the nonpayment of the support money heretofore decreed by the court.
' Without further pleadings the case went to trial. The first question presented was who had the burden of proof. After argument and consideration of authorities the court held the burden to be upon appellant, who called several witnesses, and he and his present wife testified in his behalf. A number of witnesses were called by the appellees and gave testimony. We think it would serve no useful purpose and that it would not be a kindness to the appellant or to the child to set this evidence out in detail. Generally speaking, the evidence went to the fitness of the appellant to have the custody of the child. At the conclusion of the evidence the court found against appellant on that issue, gave the custody of the child to appellees, and directed appellant to pay $30 per month for the support, main-tenance and education of the child. Appellant filed a motion for a new trial, which was considered by the court and was overruled, and he has appealed. ' •
We are first confronted with appellees’ motion to dismiss the appeal because it was not filed in time under our statute. (G. S. 1945 Supp. 60-3309.) The trial was had and the court’s decision rendered on September 3, 1946. The motion for a new trial was heard and overruled on October 9, 1946, and the notice of appeal was filed on November 7, 1946. This was more than two months after the decision on the merits but within that time after the ruling on the motion for a new trial. In such a situation the rule is that if the motion for a new trial raises nothing more than purely legal questions involved in the decision the appeal is too late (Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531), but if it pertains to alleged trial errors, such as rulings on the admission of evidence, or.other rulings of the court pertaining to.the trial*itself., or requires the consideration of all the evidence, the competency of witnesses and the weighing of the testimony, the ruling of the trial court upon the motion for a new trial is regarded as a ruling upon those questions, from which an appeal can be taken. (Phillipson v. Watson, 149 Kan. 395, 87 P. 2d 567.)
Appellant first contends that the court erred in placing upon him the burden of proof upon the question of his fitness to have the custody of the child. We think there was no error in that particular in view of the fact that that was one of the issues specifically made in the divorce action and decided against the appellant here. More' than that, in ’this particular proceeding the question on whom the burden of proof rested was not very material. The whole matter was gone into fully and there is ample, competent evidence to sustain the court’s conclusions irrespective of who had the burden of proof.
Appellant argues that the question of appellant’s fitness to have the custody of the child was not in issue. The record previously stated is to the contrary. The testimony offered by appellant went directly to that point, as did the testimony offered by appellees.
Appellant complains that the court overruled his objections made to some of the evidence offered by appellees upon the ground that it was too remote. At the most this went only to the weight to be given the testimony as distinct from its competency.
In this court appellant complains because the trial court made an order requiring him to pay to the appellees a sum monthly for the support, maintenance and education of the child. That point was not complained of in the motion for a new trial, hence appellant is not in position to be heard upon it. More than that, we see nothing wrong with that portion of the evidence.
The judgment of the court below is affirmed.
Hooh, J., not participating.
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