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The opinion of the court was delivered by
Burch, J.
The appeal in this case is from orders overruling demurrers to a petition and a motion to strike certain allegations, which motion was treated and ruled upon as a demurrer.
The action was brought to recover $55,000 as actual damages and $20,000 as punitive damages for personal injuries alleged to have been sustained by the plaintiff while working for the defendants in their lead and zinc mine located near Picher, Okla. The plaintiff alleges that he contracted fibrosis silicosis and tuberculosis as a consequence of having- inhaled silica dust in harmful quantities over a period of time. The petition is predicated upon alleged acts of common law negligence by the defendants and their failure to comply with certain Oklahoma statutory regulations. The defendants concede that the second amended petition filed by the plaintiff alleges a basis for recovery at common law but assert that because the plaintiff alleges therein that he'brought another action against the same defendants for the same cause -of action in a district court of Oklahoma, a presumption prevails as a result of the resistance of certain motions to make definite'and certain that the Oklahoma action is still pending and that, therefore, the plaintiff cannot recover in the present action by reason of our statute, G. S. 1935, 60-7Q5, which reads:
“The defendant may demur to the petition only when it appears on its face, either: . . . Third, that there is another action pending between the same parties for the same cause. . .
The defendants also contend that the allegations in the petition relative to the Oklahoma statutory regulations should have been stricken from the petition because of the failure to allege therein certain conditions precedent which the defendant assert must be alleged before the Oklahoma statute, the same being section 417, title 45, of the Oklahoma Statutes of 1941, becomes applicable. The defendants’ contentions will be considered in the order of their assertion.
1. The first amended petition filed by the plaintiff contained an allegation reading as follows:
“Plaintiff states that on or about August 31, 1944, he brought suit on the within cause of action against the defendants in the District Court of Ottawa County, Oklahoma; . .
The defendants filed a motion seeking to require the plaintiff to amend the petition “by attaching true and correct copies of the pleadings and files of the case filed in Ottawa county, Oklahoma, . . .” Plaintiff resisted the motion and the district court overruled it. The defendants concede that in the absence of a motion to make definite and certain, the demurrer would not have been good because an allegation merely alleging that an action had been brought would not have been equivalent to alleging that the action was pending, as our statute reads. But they assert that by reason of the motion having been filed and resisted the court, on demurrer, must construe the petition strictly, arid that the inference arising from the successful resistance of the motion seeking to require the plaintiff to attach copies of all the pleadings and files in the case is that the action filed in Oklahoma must be still pending. In support of such reasoning they cite the case of Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441, which reads: ^
“Another such rule is that where a motion to make definite and certain is successfully resisted a pleading must thereafter, when tested by demurrer, be strictly construed against the pleader as to all matters covered by the motion [citing cases], . . (p. 788.)
The second amended petition, against which the demurrer under consideration was filed, contained the same allegation relative to the Oklahoma action as was set forth in the first amended petition. Therefore, we observe that the plaintiff did not see fit voluntarily to explain in any way or to make definite and certain the status of the litigation in Oklahoma. In such circumstances we are inclined to agree with the defendants that a presumption may prevail from the present condition of the pleadings that the action is still pending in Oklahoma. However, it does not necessarily follow from a ruling to .such effect that the demurrer should have been sustained. The plaintiff asserts that the mere pendency of an action for the same cause of action in another state is not a bar to an action in this state. The defendants contend, in reply, that our applicable statute, hereinbefore quoted, does not distinguish as to jurisdictions in which another action is pending and that it was the evident intent of the legislature, in passing the statute, to relieve a defendant from the burden of having to defend the same action twice regardless of whether the two cases were pending in the same state or in different states. There is much logical merit in the argument advanced by the defendants but the overwhelming weight of authority holds to the contrary. In U. P. Rly. Co. v. Baker, 5 Kan. App. 253, 47 Pac. 563, the opinion volunteers the following dictum:
“Of course, the mere pendency in another state of an action- for the same cause of action, is not a bar to an action in this state.” (p. 256.)
The rule is set forth in 1 C. J. S. 98, § 65, as follows:
“Pendency of a prior action in one state, ordinarily, is not ground for abating a subsequent action in another state.”
The text continues:
“In the application of the doctrine of ‘another action pending,’ each state is regarded as foreign to every other state, and hence, the pendency of an action in pers'onam, or transitory action, in one state' cannot, as a general rule, be pleaded in abatement of an action subsequently commenced in another state between the same parties for the same cause of action, . . .” (p. 98, § 65.)
In support of the statement the text cites many United States Supreme Court decisions, also cases from seventeen or more state reports, and 1 C. J. 85. Moreover, the text continues, as follows:
“This rule is not affected by the code provisions prescribing demurrer, answer, or motion, as the mode of raising the objection of another action pending, as such a provision applies only to actions and suits pending in the same state.” (p. 100, § 65.)
1 Am. Jur. 42, § 39, states the rule, as follows:
“The pendency of a prior suit in one state cannot be pleaded in abatement or in bar to a subsequent suit in another state even though both suits are between the same parties and upon the same cause of action.”
Such text cites in support of the rule a colossal collection of cases and continues as follows:
“This, generally speaking, is the rule, although the courts of the state where the prior suit is pending had complete jurisdiction. Both suits may proceed until judgment is rendered in one of them.” (p. 42, § 39.)
The general rule seems to be subject to an exception in cases involving jurisdiction over the custody or dominion of specific property but we are not concerned with the exception in the present case. Mr. Justice Sutherland repeated the rule in Chicago, R. I. & P. Ry. v. Schendel, 270 U. S. 611, 70 L. Ed. 757, 46 Sup. Ct. 420, 53 A. L. R. 1265, as follows:
“Where both are in personam, the second action or proceeding ‘does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res judicata by the court in which the action is still pending in the orderly exercise of its jurisdiction, as it would determine any other question of fact or law arising in the progress of the case. The rule, therefore, has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded.’ (Kline v. Burke Constr. Co., 260 U. S. 226, 230, 67 L. Ed. 226, 230, 24 A. L. R. 1077, 43 Sup. Ct. Rep. 79.)” (p. 615.)
The rule has been applied under a code provision reading exactly the same as ours, in the case of Carpenter v. Hanes, 162 N. C. 46, 77 S. E. 1101, from which the following is quoted:
“. . . the remedy is by a demurrer, ‘That there is another action pending between the same parties for the same cause.’ (Revisal, 474, 3), and in such case even, it must appear that the other action is pending in this state.” (p. 50.)
Counsel for the defendants have not cited us any case holding to the contrary and our limited research has not disclosed one. Consequently, we conclude that our statute pertaining to a demurrer where there is another action pending applies only to another action pending in this state. ,
2. The remaining error asserted by the defendants is that the district court ruled incorrectly in not sustaining their motion to strike all references and allegations in the second amended petition pertaining to the Oklahoma statute. The original and first amended petitions alleged only that the defendants’ violation of the statute had consisted of their failure to comply with a portion of the statute ■reading as follows:
“. . . the Ground Foreman in charge of the underground workings in-any such mine or mines, so equipped with a water line, shall require all ground or dirt after being shot or blasted to be thoroughly wet or sprinkled to such an extent as shall prevent, as far as is practicable any dust from arising therefrom, while the employees are at work therein.”
The defendants attacked the first petition, insofar as it pertained to the Oklahoma statute, in a motion to make the petition more definite and certain by requesting that the plaintiff be required to set forth therein “the entire text of the Oklahoma statute relied on." The motion was overruled. After the first amended petition was filed containing the same allegation as to the Oklahoma statute, the defendants again sought to have the petition made more definite and certain by a motion containing the following paragraphs:
“4. That plaintiff be required to amend ... by separately stating and numbering his pretended causes of action therein, the one being based upon alleged violation, by defendants, of an Oklahoma Statute, and the other being based upon alleged common law liability.
“5. That plaintiff be required to amend ... by pleading the entire Statute relied on (instead of a selected excerpt therefrom), so as to show with particularity the applicability of said Statute to the instant case. . . .”
The district court overruled the request contained in paragraph “4” but sustained the motion as to paragraph “5.” Therefore, it will be seen that the defendants, by proper and timely motions, had sought to require the plaintiff to plead the statute with sufficient particularity to establish clearly whether the statute was applicable or inapplicable in the present case. The defendants assert, and we agree, that in such circumstances the pleading which follows should be strictly construed under the authorities hereinbefore set forth. Following the court’s ruling on the motion, the plaintiff’s second amended petition was filed. It contained the same allegation pertaining to the portion of the statute set forth in the pre ceding petitions but also attached the entire statute relied on as an exhibit and as a part of the petition. In addition, the ^second amended petition set forth in a separate paragraph a claim for the recovery of punitive damages. Such paragraph contained several allegations pertaining to the violation of the statute. The defendants -moved to strike the entire exhibit, which consisted of the statute and all references and allegations pertaining to the statute, from the second amended petition. The defendants assert that the motion to strike was the equivalent of a demurrer and that, therefore, the adverse ruling thereon was an appealable order. The plaintiff does not contend to the contrary and our decisions support defendants’ assertion. Consequently, we must consider whether the second' amended petition alleged a cause of action predicated upon a violation of the Oklahoma statute.
We are advised in the plaintiff’s brief that .the Supreme Court of Oklahoma has not given reported consideration to construction of the involved statute in similar circumstances. Being without such assistance, since the litigation is in Kansas, we must construe the Oklahoma statute. Examination of such statute reveals that section 417 thereof is the only section requiring construction in the present case. It reads:
“The Mine Inspector is hereby authorized, empowered and (firecied to thoroughly inspect all underground excavations in all such mines as often as such Inspector may deem proper, for the purpose of ascertaining or discovering in the air in any such mine or mines the presence of dust in such quantities as shall be injurious to the health of the employees engaged in working in such underground excavations; and upon finding dust in the air of any such mine or mines in quantities exceeding three hundred particles per cubic centimeter, as shall tend to injure the health of the employees of such mine, such Inspector shall immediately notify the Operator of such mine or mines, in writing, specifying the underground excavation so found to contain dust particles in excessive amounts, as aforesaid in the air thereof, and such Operator of such mine or mines shall within fifteen days after receiving such written notice, provide, install, and equip, and thereafter at all times maintain in such mine a water line fully equipped, and in good serviceable working order and repair, leading up to the face of any and all drifts where dust is produced, or so close to the face of said drifts so that by the use of a suitable hose extension or sprinkling attachments to be supplied by the owner or owners of said mine, the mineral or earth in and adjoining the face of the drift or drifts of such mine can be sprinkled or wet by water from said pipe line; thereupon and thereafter, every person drilling, squibbing or blasting in said mine shall keep the face, surface, and drill holes in said drifts or drift wet or moist by the use of water from said water line to such an extent in such a way as shall prevent, as far as possible, any dust raising from the working of any such face, or from the drilling, blowing, or shooting of any hole or holes; and the Ground Foreman in charge of the underground workings in any such mine or mines, so equipped, with a water line, shall require all ground or dirt after being shot or blasted to be thoroughly wet or sprinkled to such an extent as shall prevent, as far as is practicable any dust from arising therefrom, while the employees are at work therein.” (Emphasis supplied.) (Oída. Stat. 1941, Tit. 45, § 417.)
We are unable to find in the plaintiff’s petitions any allegations asserting that the defendants’ mine ever has been inspected by the state mine inspector. Insofar as the pleadings show, no one has ever determined that the air in the defendants’ mine contained dust particles in excess of “three hundred particles per cubic centimeter, as shall tend to injure the health of the employees.” The petitions do not allege that any mine inspector has ever notified the defendants “in writing” (or otherwise) of the presence of excessive amounts of dust in their mine. Consequently, no statutory conditions precedent have been alleged which would have required the defendants to equip their mine with “a water line.” It also follows that since the allegations do not assert a basis requiring the installation of a water line that the alleged failure on the part of the ground foreman to use a water line in a proper manner would not constitute a violation of the statute. Such certainly is correct in the absence of any allegation that the defendants’ mine ever had been equipped voluntarily with a water line. The plaintiff’s pleadings contain no allegation to such effect. We find nothing in the section under consideration, and it is the only section which the plaintiff alleges is germane to the controversy, which requires the defendants to do anything in the absence of an inspection and a written requirement by the mine inspector.
Counsel for the plaintiff insist that the foregoing interpretation of the statute would emasculate the purposes of the act. In support of such an argument they rely largely upon the case of Simpson v. Iron Works Co., 249 Mo. 376, 155 S. W. 810. The cited case can be readily distinguished from the present case. Such case arose under the so-called “Factory Act” of Missouri (R. S. 1909, sec. 7828), which provided that belting should be guarded when possible and if not that notices of danger should be conspicuously posted. A subsequent section of such act (7842) declared that whenever the factory inspector found that the belting was dangerous and not sufficiently guarded he should notify the employer to make the necessary alterations and additions within thirty days and that a failure to comply with the notice within thirty days should be deemed a violation of the act. Still later provisions of the act (sections 7846-7851) set forth that a violation of the provisions should be punishable as a misdemeanor. The opinion holds that the first section, which required that the operator guard the belting when possible and, if not, to post notices of danger, was not dependent upon the subsequent section providing for inspection. The opinion reads:
“If the employer is guilty of negligence per se in violating the statute imposing personal duties on him, as is the law, then his negligence exists prior and independently of the report thereof by the inspector.” (p. 386.)
We have no similar sequence of statutes in the present case. The plaintiff has not alleged or called to our attention any provision of the Oklahoma statute which requires a mining operator to install a water line prior to and independently of the requirement of the state mine inspector. Plaintiff’s counsel insist that we should read such a requirement into the act for humanitarian and practical purposes. They call our attention to the title of the act which reads in part that the act was enacted “For the Protection of the Lives, Health, Safety and Welfare of Persons Employed” in lead and zinc mines. The title of the act was not referred to in the petitions but if it had been our construction of the act would not be inconsistent with the title. If our construction of the act is impractical, that difficulty arises by reason of deficiences in the provisions of the act. If such is the case, the remedy rests within the discretion of the Oklahoma legislature. We cannot invade its domain and read into the statutes provisions which do not therein exist. After careful consideration of all arguments advanced by counsel for the plaintiff, we conclude that the order of the trial court overruling the motion to strike all references and allegations pertaining to the- Oklahoma statute contained in the second amended petition was erroneous.
The corporation defendant named in this case filed a separate, demurrer upon two grounds. The district court sustained its demurrer upon the second ground set forth therein and such ruling was not appealed from by a cross-appeal on the part of the plaintiff. Consequently, we do not pass upon such ruling. The first ground of the corporate defendant’s demurrer has been considered herein and was overruled by the district court. The separate demurrer of the individual defendants, which contained the same grounds, was overruled entirely. The rulings of the district court pertaining to the demurrers, with the exception noted, are affirmed. The motion to strike apparently was filed by all of the defendants. The district court’s ruling on such motion is reversed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Thiele, J.
This is an appeal from an order and judgment of the district court sustaining motions to set aside answers of the jury to special questions, to set aside the verdict of the jury and to grant a new trial, and arises out of the following facts:
A petition for the allowance of a claim against the estate of C. A. Lightfoot, deceased, was filed in the probate court by Lulu E. West and “Harry West, Executor.” (The record does not show of whose will or estate Harry West is executor.) The substance of the claim was that Lulu E. West was entitled to recover. $2,508 for board furnished the decedent at one dollar per day and thirty dollars for nursing care, or a total of $2,538. Neither the abstract nor the counter abstract contains the defenses filed to the claim, but from statements made in the briefs it appears the administrator denied the existence of any contract, claimed an offset for rent furnished the claimants by the deceased and alleged the claim was barred by the statute of limitations. The record does not disclose the result in the probate court, but there was an appeal to the district court where a jury trial was had. At the trial the court refused to admit certain evidence offered by the administrator, reference being made to it later. Under instructions, to which the administrator objected in part, the jury returned a verdict in favor of both claimants for the full amount claimed - and answered four special questions. The administrator filed his motions to set aside the answers to the special questions, to set aside the verdict and for a new trial. The district court heard these motions and sustained them, and the claimants appealed to this court.
In order to clarify matters hereafter mentioned, we note the following: Rebecca West Lightfoot who was the stepmother of Harry , West, the husband of Lulu E. West, owned a residence in El Dorado, Kan. Before her death Lulu West came to the Lightfoot home to help care for Mrs. Lightfoot, who died in 1936, survived by her husband Charles A. Lightfoot. The residence property was set off to him as a homestead. After the death of Mrs. Lightfoot, Mrs. West did not leave the residence and it was contended that about the time of Mrs. Lightfoot’s death Harry West also moved in. The claim filed in the probate court by the Wests stated that C. A. Lightfoot was indebted for board for a period beginning November 11,1936, and ending December 31, 1943. ■
In the trial in the district court Mrs. West was a witness in her own behalf and on cross-examination was asked whether she had not testified,on the hearing of her claim in the probate court that, she had no contract with Mr. Lightfoot for board or nursing, and an objection to such testimony, was sustained. At a later point the then probate judge was called and asked whether Mrs. West had not so testified, and an objection to his answering was sustained. Questions were also asked some of the witnesses tending to elicit testimony as to who was the owner of Mrs. Lightfoot’s residence property after her death and objections thereto were sustained.
Without detailing it, on the hearing of the administrator’s motions, affidavits were filed to show the testimony that would have been given had the objections not been sustained, and that it would have been to the effect that Mrs. West testified in the probate court that there was no contract with C. A. Lightfoot for board and nursing, also that title to the residence property was in Rebecca C. West, who married Charles A. Lightfoot and predeceased him, and that he continued to reside in the property as his home until his death. In its comments the trial court stated it did refuse to admit the evidence, not for reasons advanced by administrator’s counsel but because it had a different theory in mind, and it thought it was wrong on both items of evidence which it refused to admit; that it was proper to show what Mrs. West had testified in the probate court, and it thought the record (as to title) was competent and the reason it ruled it out was it was only cumulative; that it did so in the interest of time, which was no excuse and no reason, and it should have been admitted. The court made further comments on the confusion of the jury as to what the instructions meant, and stated it was going to sustain the motions. The record discloses a journal entry showing such an order was made. '
The appellants specify error in six particulars. In their brief they make a statement of questions involved, divided into seven parts, but in their argument there is no separate discussion of either the specifications or of the questions stated. We shall follow the order of argument insofar as is necessary to dispose of the appeal. It is first contended that under G. S. 1935, 60-3117 it is the duty of the clerk of the court to enter judgment in conformity with the verdict of the jury unless by special order of the court the case is reserved for future consideration; that no such reservation was made and therefore there exists a judgment'for $2,538; that no motion to vacate it was filed, no appeal taken from it and appellees ’ have no right to be heard with respect to it. Appellants ignore G.' S. 1935, 60-3118 which provides that where there has been a special finding on a particular question of fact, the court shall order what judgment shall be entered. That situation obtained here and appellants’ contention cannot be sustained.' .It may be further remarked that the trial court must approve a verdict and that it did not do — by its decision it indicated nonapproval. (See, e. g., Pugh v. City of Topeka, 151 Kan. 327, 99 P. 2d 862; Cole v. Lloyd, 161 Kan. 150, 166 P. 2d 577; and cases cited.)
Appellants contend that there was an abundance of evidence to support the verdict, and that therefore the motions to set aside the verdict should have been denied. We cannot dispose of the matter so easily. It may be true that appellants’ evidence made out a case for recovery but the appellee was entitled to present his defense, not in part but in whole, for the consideration of the jury. If the trial court erred in the admission or exclusion of evidence, and upon motion for a new trial it was convinced the error was material and prejudicial, it was its duty to grant a new trial.
Appellants direct our attention to decisions holding that discretion of the trial court in granting or refusing a new trial is a legal and not a capricious one (Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348); that the exclusion of cumulative testimony is harmless error (Glover v. Bux, 150 Kan. 55, 90 P. 2d 1117), and that where the trial court states its reasons for granting a new trial, the appellate court may examine the questions to see whether the reasons given, as a matter of law, justify the granting of a new trial (Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P. 2d 869), as well as to other decisions of similar import. We think that under the above and like decisions, the rulings of the trial court were correct. It was important to learn whether there was an express contract between the claimants and the decedent and its terms, or whether there could be recovery only as on quantum meruit, to determine whether the statute of limitations relied on by the administrator had any effect and certainly a statement by one of the claimants in the probate court had some bearing on the matter. And because the testimony sought to be adduced tended to impeach the claimant’s story as detailed on the trial in the district court, it would have had some bearing on the weight the jury would place on her testimony. This part of the excluded testimony was not cumulative in any particular.
With respect to the testimony tending to show who was the owner of the residence occupied by the deceased, it may be said that in some, but not all, aspects it was cumulative. When it is' borne in mind that both claimants were occupying a house, ownership of which was claimed by the decedent’s estate, and that decedent’s estate was claiming an offset for rents due from them, the question became of importance.
Our examination of the record satisfies us that the trial court in granting a new trial did not act arbitrarily or capriciously; that the grounds it asserted for its conclusion constituted legal grounds for a new trial, and upon our examination of those grounds we hold that the order for a new trial was properly made.
Appellants also make some complaint that the trial court refused to allow Harry West to testify as to the contract in question; The abstract contains none of his testimony, and therefore does not show what he may have been asked, what objection was made, the ruling of the court, or any other matter necessary to a consideration of the question, assuming it were otherwise before us. Appellants never filed any motion for a new trial, nor in any way preserved in the record what Harry West would have answered if permitted to testify. There is nothing before us for review.
In order that it may not be said to have been overlooked, we note also that the trial court stated other reasons for its conclusion, including that the jury was not confused on the evidence but was as to what the instructions meant. As the trial court ruled correctly-concerning the wrongful exclusion of evidence, it is not necessary that we review any possible error which there may have been in the instructions.
The judgment of the trial court is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.
The plaintiff, a boy of seventeen years of age, by his mother and next friend, commenced this action to recover damages from the city of Galena for injuries he was alleged to have suffered while resting in an alley.
The city’s motion to make the petition more definite and certain, its motion to strike a portion thereof and its general demurrer to the petition were overruled. The city appeals. The material allegations of the petition were:
“That on the 21st day of July, 1945, and at about the hour of between 10:00 and 11:00 o’clock A. M. of said day, a cast iron boiler base, about four feet in diameter, and the said base weighing about three to four thousand pounds, was standing in an alley of the 'said defendant, the city of Galena, Kansas, on the edge of the said alley against a brick wall, on the west side of the said alley, in an upright positon without any brace, support or other means of preventing the same from falling and in such an upright position that the same was insecure and at all times liable to fall to the east inflicting injuries upon any person or persons using the said alley.
“That the said alley runs north and south from 7th Street to 8th Street through the first block west of Main Street between 7th and 8th Streets in said city, and the said boiler base at the time aforesaid was resting in the position aforesaid, at a point about 50 feet south from the sidewalk which runs along the south side of 7th Street, between Main and Short Streets of said city.
“That the said boiler base had been standing in the said position at the said point in the said alley for a period of approximately one year prior to the aforesaid time, and long enough that the officers, agents, servants and employees of the City of Galena, Kansas, knew or by use of reasonable care should have known that the said boiler base was standing in the alley in the position aforesaid.
“That the said Charles Johnson, a minor, at the aforesaid time of the 21st day of July, 1945, at about the hour of between 10:00 and 11:00 A. M. of said day was in the said alley, at the point where the said boiler base stood, and the said Charles Johnson sat down to rest in the said alley. That while the said Charles Johnson was. resting, the said boiler base then standing in the said insecure position and by reason of jar caused by heavy traffic on 7th Street or by other cause to Claimant unknown, toppled over to the east into the said alley, and the boiler base fell on the said Charles Johnson while he was resting as aforesaid in the said alley, thus inflicting upon him the following injuries, to-wit: A transverse fracture of the olecranon process of the ulna bone and a small oblique fracture of the inner portion of the head of the radius of the left elbow; also a severe blow and bruise to the left side of the head and a bruise and sprain to the left side of the neck also a severe cut and bruise on the point, of the right elbow. «,
“That the said injuries we.re sustained by the said Charles Johnson on account of the aforesaid negligence of the City of Galena, Kansas, which said negligence consisted of the said City of Galena, Kansas, failing to keep the aforesaid alley open and free from dangerous hazards and failing to prevent the placing therein of obstacles which might or could cause injuries to person or persons lawfully using said alley and failing to remove or cause to be removed any obstacle or hazards placed therein.”
Attached to and made a part of the petition was the notice of injuries and claim for damages served on the city.
It may be well to state a few concise general principles of law pertaining to alleys and to comment briefly on some of our own decisions. In 1 Elliott on Roads and Streets, 4th ed., it is said:
“If the alley is a public one, it is a highway, and, in general, is governed by the rules applicable to streets [p. 30] . . . The rights and duties of a municipal corporation respecting public alleys are substantially the same as those respecting streets. They may be improved at the expense of adjoining owners, and it is the duty of the municipality to use ordinary care to make and keep them in a reasonably safe condition for travel.” (p. 33.)
To the same effect are 4 McQuillin on Municipal Corporations, 2d Rev. ed., p. 22; White on Negligence of Municipal Corporations, p. 260; 25 Am. Jur., Highways, § 401; Anno. 44 A. L. R. 814; Anno. 48 A. L. R. 434. These principles have been substantially applied in this state in cases where cities were held liable for injuries sustained in alleys. A few of them are Atchison v. Acheson, 9 Kan. App. 33, 57 Pac. 248; Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658; Fletcher v. City of Ellsworth, 53 Kan. 751, 37 Pac. 115; Dallas v. Concordia, 84 Kan. 734, 115 Pac. 558.
We think, however, the instant case is not controlled by the Atchison case, supra, where a party stepped into an alley at night and into a large open hole in the pavement; or by the Fletcher or Dallas cases, supra, in both of which persons in the darkness of night stepped into large unguarded cellarways in an alley; or by the Osage City case, supra, where a dangerous piece of machinery, uncased and unprotected, was permitted to remain in an alley for years and injuries were sustained by a little girl under nine years of age when she fell onto the machinery.
In Axtell v. City of Newton, 108 Kan. 32, 193 Pac. 1054, the city was held not liable by reaspn of a large stone falling on a person in an alley when the city knew the stone was located on or near the edge of the alley, ordered it moved, but did not have knowledge of its changed and unstable condition at the time it fell. That case was tried on the same theory the instant petition was sought to be framed, namely, that the city had notice of the unstable condition of the object and not upon the theory the city was liable merely because the object, where situated, constituted an obstruction in the alley.
Another alley case, occasionally referred to as the “bomb” case, in which liability of the city was denied is Monical v. City of Howard, 339 Kan. 537, 31 P. 2d 1000, but it is not in point.
Appellant contends the instant petition must now be strictly construed against appellee and relies upon the well established rule stated in Lofland v. Croman, 152 Kan. 312, 103 P. 2d 772, to wit:
“After a proper motion to make material allegations of a definite and certain has been overruled, such pleading cannot, in respect to such allegations, to be upheld against a general demurrer unless it fairly states a cause of action upon some definite theory without resort to inferences or the construction of doubtful language.” (Syl. J[ 3.)
See, also, Frogge v. Kansas City Public Service Co., 159 Kan. 687, 157 P. 2d 537.
We need not set out all portions of appellant’s motion to make definite and certain. Some facts the motion sought to have alleged were not material. Some facts requested were highly material and should have been alleged. The effect of one portion of the motion was to have appellee allege facts, not conclusions, which disclosed why the city knew, or should have known, the object complained of was in danger of falling and therefore constituted a hazard to travel in the alley.
The city is charged with liability by reason of its alleged negligence in failing to keep the alley .open and free from dangerous hazards. What particular kind of a boiler base was this that the city is charged with having unlawfully permitted to stand at the edge of the alley? The city was not given the slightest idea and we have no way of knowing. How high was it? The petition is wholly silent. Was it resting on a flat or sloping surface? The petition failed to state. Did it actually tilt to the east indicating the need of a brace or support to keep it from falling? What were ihe facts, not the conclusions, which placed the city on notice with respect to the unstable condition of this object? Was it square or round? The only inference in that regard is to be found in the allegation that it was four feet in diameter. The petition alleged it weighed about three to four thousand pounds. The claim for damages, & part of the petition, alleged the object weighed three or four hundred pounds. The city is not charged with having placed the object in the alley, but it is alleged it was permitted to remain in the described position for approximately one year. It is therefore evident the position of the object did not change during approximately one year and that it had not previously fallen. No facts are alleged, in plain and concise language, showing the city knew, or should have known, the object was in danger of fall ing. While courts should never be hypercritical it does seem to us the city was entitled to have a reasonably accurate statement of facts, rather than conclusions, which were designed to fasten notice upon it concerning the unstable condition of the object. In many cases motions to make a pleading definite and certain are not especially important but the facts sought here concerning notice to the city are the essence of the action. Absent such notice liability does not ordinarily attach. Appellant expressly moved that the court require appellee to state such facts. In their absence the court also should have sustained appellant’s motion to strike the allegation that the object was at all times liable to fall “. . . to the east inflicting injuries upon any person or persons using the said alley.” In the absence of the necessary averment of facts the quoted allegation was a mere conclusion. A demurrer, of course, never admits naked conclusions but only facts well pleaded. (Kretchmar v. City of Atchison, 133 Kan. 198, 204, 299 Pac. 621; Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22.)
We are not favored by a brief from appellee and consequently are not apprised of his contentions but upon sound rules of pleading we think the petition, when properly challenged by motion, should be held not to fasten notice on the city that the boiler base was in such insecure position as to be in danger of falling.
Appellant also, in effect, contends an alley is not designed as a resting place but only for those who travel upon it in the ordinary and accustomed modes; that the instant injury did not occur in that manner and the city is not liable. The contention presents a highly interesting phase of municipal law. The importance of the question, however, is such that we prefer not to pass on it in the absence of a brief from appellee.
The order overruling the demurrer to the petition is reversed.
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The opinion of the court was delivered by
Parker, J.
This is an appeal from a judgment sustaining a motion by the director of a school district to dismiss an action instituted by an individual in the name of such district.
On the 27th day of April, 1945, there was filed in the district court of Logan county an action entitled The Joint Consolidated School District No. 2, by and through W. A. Engelhardt, a householder of said District, Plaintiff, vs. Harry H. Johnson, J. K. Nelson, J. E. Yawter, J. K. Nelson, as Clerk, and J. E. Vawter, as Treasurer of The Joint Consolidated School District No. 2, also known as the Oakley Consolidated School District, and The American Surety Company of New York, a corporation, Defendants.
The petition, captioned as indicated, contains twenty-four causes of action, but we need give attention to the first cause only, since the allegations of the other twenty-three, except for names of school district employees and the amounts each is alleged to have received from the corporate entity, are identical in form and substance and present the same question. Hereafter, unless otherwise stated, reference to the petition and its contents is limited to allegations appearing in the first cause of action but what is said and held with respect thereto is equally applicable to the other causes of action to which we have referred.
Material averments of the petition will be outlined as briefly as possible. In substance such pleading contains the following allegations:
Plaintiff is a citizen of the United States; has lived within the boundaries of Joint Consolidated School District No. 2, known as the Oakley Consolidated School District, for more than three years prior to the date'of the filing of the petition; has been during such period of time the owner of both personal and real property located within the boundaries of such district; has contributed to its support by the payment of taxes, and brings the action for and on behalf of the district, its voters and patrons, by reason of the neglect or refusal of its present director and the present county superintendent of the county in which it is located to prosecute it.
During the month of May, 1943, defendants, Johnson, Nelson and Vawter, were respectively director, clerk and treasurer of the district. Since May, 1943, defendant Nelson has been the clerk, and defendant Vawter, the treasurer of such district. The defendant, The American Surety Company of New York, a corporation, is a surety upon Vawter’s bond, which bond has never been released, canceled or discharged.
On May 4,1943, at a special meeting Johnson, Nelson and Vawter, acting as the school district board, passed the following motion:
“To pay the teachers a bonus in bonds and stamps. The following are to receive a bonus for $75.00 bond: (Here follow the names of D. W. Cowan and nineteen other teachers, and employees of the district), James Rice and Mildred Reed are to receive bonds and stamps in the amount of $41.66, Inez Zeigler in the amount of $16.66 and Henry Carr for $50.00.”
D. W. Cowan is a teacher and instructor who had been hired by the district under a written contract to teach' its school during the period, or term, from July 1, 1942 to June 30, 1943.
Pursuant to the adoption of such motion, Vawter, as treasurer of the district, on or about May 4, 1943, issued, executed and delivered a check or warrant drawn upon the funds of such district in the sum of $75, which check or warrant was cashed by Cowan. The school district'was not obligated to Cowan in any such sum and its payment to him constituted a payment of money from the district’s school fund as a gift, gratuity or bonus, which facts were well known to defendants, Johnson, Nelson and Vawter, and constituted a wrongful, unauthorized and unlawful use of. the funds of the district.
On the 4th day of March, 1945, plaintiff requested R. B. Medlin, who was then the director of the district, to institute an action against Vawter, as treasurer of the district, for the purpose of attempting to collect for and on behalf of the district the money paid by such defendant to Cowan.
About March 3, 1945, plaintiff requested the county superintendent of Logan county to commence such an action against Vawter, as treasurer, in the event Medlin failed, neglected or refused to institute proceedings as demanded by him.
Medlin, as director of the school district, and the county superintendent, each failed, neglected and refused .to bring, or institute, or cause to be instituted proceedings against Vawter or the other defendants, who were officers of the district, for the purpose of collecting or attempting to collect the money wrongfully and unlawfully paid to Cowan.
The petition concludes by asking that the district have judgment on the first cause of action against all defendants for the amount-paid to Cowan out of school district funds pursuant to the bonus motion. It prays also for a similar judgment on each 'of the other twenty-three causes of action set forth therein.
Attached to the petition, which was not motioned on the point in question, and by appropriate allegations made a part thereof, are what are referred to in that pleading as the requests made to the present director of the district and to the county superintendent. For our purposes, although such pleading fails to specifically so state, we must assume those requests, identified as exhibits “A” and “B” respectively, were in writing and that they were either read to or served upon the officials named.
Examination of exhibit “A” reveals it is captioned “Demand” and addressed to R. B. Medlin, as director of the district. By its terms, it expressly requested and demanded that officer to commence proceedings against Vawter, as treasurer, his bondsmen, and the other members of the school board, for the purpose of collecting the money spent and disbursed by the school board in paying the involved bonuses.
Exhibit “B” has a similar heading and is addressed to Ethel J. Murphy as county superintendent of Logan county. It recites that a demand had been made upon Medlin as director to institute proceedings against the treasurer and his sureties for the purpose therein stated and contains a specific demand that in the event of his failure, neglect or refusal to do so then, and in that event, such official institute proceedings against Vawter and his sureties and the individuals who were members of the school board during the month of May, 1943.
Also attached to the petition, amended in that respect only as a result of defendants’ motion requesting- it, is a copy of the treasurer’s bond. Pertinent portions of that instrument read:
“Now Therefore if the said J. E. Vawter shall safely keep all moneys which may be collected or received by him, or which may otherwise come into his hands by virtue of his office, as required by law, and pay the same over to the proper person or authority, and shall honestly and faithfully discharge and perform all the duties of his office, and shall deliver to his successor in office all the books, records, papers and all other things belonging to said office, then this obligation shall be void; otherwise to remain in full force and effect.”
Sometime after the filing of the petition and the amendment thereto the following motion was filed:
“Comes now the above named School District by R. B. Medlin, the duly elected, qualified and acting director of such School District and Plaintiff above named, and moves the Court to dismiss this action.
J. H. Jenson,
Attorney for Joint Consolidated School, District No. 2.”
The sustaining of such motion followed by a judgment dismissing the action and the taxing of the costs thereof to W. A. Engelhardt as plaintiff therein resulted in this appeal.
Before proceeding further we note the notice of appeal is directed to R. B. Medlin, as director of the school district, as well as all other parties named as defendants in the petition, except Harry H. Johnson who, we are informed by appellant, is not now an official of the district, was not served with summons, and is no longer involved. Hence, since no question is raised by anyone as to proper parties, any reference to appellees includes all persons named in such notice.
From the factual situation disclosed by the foregoing statement it is evident the fundamental question squarely presented by the record in this case is whether a qualified voter of a school district may institute and maintain an action in the name of the district against the treasurer thereof and his bondsmen to recover funds alleged to have been drawn from its treasury on a warrant based on an illegal and unauthorized allowance by its board even though its director appears in the action and moves to dismiss that proceeding.
At the outset it can be stated it will not here be necessary to direct attention to the comparatively few instances where a private person may maintain an action challenging the regularity of official or corporate action. Appellant recognizes the well-established rule (See Nixon v. School District, 32 Kan. 510, 4 Pac. 1017, also Dunn v. Morton County Comm’rs, 162 Kan. 449, 177 P. 2d 207, and the numerous cases there cited expounding the principle) that in the absence of specific statutory authority, an individual cannot by virtue of being a citizen and taxpayer maintain an action against a school district or its officers where the act complained of affects merely the interests of the public in general and not his own in particular. He asserts and concedes his right to maintain the action as captioned is derived solely from provisions of a statute expressly granting him that privilege.
The statute upon which appellant relies, in force and effect on the date he filed the suit, is G. S. 1943 Supp. 72-1016. It reads':
“The treasurer of each common-school district shall execute to the district a corporate surety bond, to be not less than one hundred twenty-five percent nor more than two hundred percent to the amount, as near as can be ascertained, to come into his hands as treasurer at any one time: Provided, The treasurer of any common-school district where the amount as nearly as can be ascertained to come into his hands as treasurer, shall not exceed one thousand dollars at any one time during the year, may, when the board so determines, in' lieu of such corporate surety bond, execute to the district a bond in double the amount, as nearly as can be ascertained, t-o come into his hands as treasurer during the year, with two or more sufficient sureties, conditioned to the faithful discharge of the duties of said office. The amount and sufficiency of all bonds shall be determined by the county superintendent, and upon his approval endorsed on the bond, shall be filed with the county superintendent, who shall immediately notify the district clerk of such approval and filing. In the event of the breach of any condition thereof, the director shall cause a suit to be commenced thereon in the name of the district, in which suit it shall not be necessary to include the treasurer as a party to said suit and the monqy collected shall be applied to the use of the district, as the same should have been applied by the treasurer. Should any director neglect or refuse to prosecute, then the county superintendent shall, or, any qualified voter in the district may, cause such prosecution to be instituted.”
Notwithstanding the parties agree the fundamental question involved is the one heretofore stated, the appellees raise several collateral questions relating to the sufficiency of the petition, which should first be determined. In their disposition the motion to dismiss must be regarded as tantamount to a demurrer, and subject to the rule it admits all well-pleaded facts to be found in that pleading together with all reasonable inferences to be drawn therefrom.
Appellees first point to the language “any qualified voter in the district may cause such prosecution to be instituted,” appearing in the last sentence of 72-1016, supra. They contend the petition contains no allegation to the effect appellant was a qualified voter, and argue that for such reason it fails to state a cause of action or' disclose his right to maintain the proceeding. Let us see. Appellant identifies himself in the caption of the petition as a householder of the district. G.. S. 1935, 77-201, Twenty-fijth, provides:
“The term ‘householder’ shall be construed to mean a person of full age, and owning or occupying a house as a place of residence, and not as a boarder or lodger.”
In addition, among other things heretofore mentioned, he states that he is a citizen of the United States who has lived in the district for more than three years prior to the date of the filing of the cause. Under the rule, when tested by a demurrer, we do not believe it can be said as a matter of law the petition fails to show that appellant was a qualified voter of the district.
Next, appellees contend the petition does not allege a breach of a condition of the bond. It does set forth the resolution under which payments sought to be recovered were made, providing the district teachers were to be paid a “bonus” and states the district was not obligated to Cowan or others similarly paid. In addition, it charges such payments were made as a gift under conditions known to the defendant members of the board. The term bonus has a well-known meaning. It is defined in Webster’s New International Dictionary, Second Edition, as “Something given in addition to what is ordinarily received by, or strictly due to, the recipient” and as “money, or an equivalent, given in addition to an agreed compensation.” It is true, of course, that the term “bonus” does not always denote a gift or gratuity and that under proper factual allegations it may have an entirely different meaning. However, in view of the common and accepted definition of the term it is our view that when found in a petition, standing alone and unexplained, a reasonable inference to be drawn from its use is that it implies, if in fact it does not actually signify, an outright donation. Of a certainty, when accompanied by express allegations identifying it as a gift, the term as used in the pleading under consideration must be so construed.
That a public officer entrusted with public funds has no right to give them away is a statement so obviously true and correct as to preclude the necessity for citation of many authorities. (See 43 Am. Jur. 112, § 308.) Equally well established is the proposition that school funds can be expended by the district board only for purposes authorized by the statute either expressly or by necessary implication (47 Am. Jur. 363, § 92). This court has so held as recently as Rose v. School District No. 94, 162 Kan. 720, 179 P. 2d 181. We find nothing in our statute pertaining to schools which permits the payment of gifts or gratuities by school district boards. In fact, if funds of the district are so expended they are paid out for purposes other than that for which they were raised and their payment is unlawful. Under our decisions, well supported by other authorities, the drawing of money from the public treasury on a warrant based on an illegal and unauthorized allowance by a board of officials constitutes a breach of an official bond providing such officers shall faithfully perform their duties and renders their sureties liable for the amount so drawn (City of Anthony v. Corbin, 133 Kan. 337, 299 Pac. 603; Superior Grade School District No. 110 v. Rhodes, 147 Kan. 29, 75 P. 2d 251; 43 Am. Jur. 193, § 422). It follows appellees’ contention the petition did not allege a breach of the treasurer’s bond cannot be sustained.
Another claim is that under the .pleadings there could be no liability on the treasurer’s bond. We have just answered the contention but further resort to provisions of the bond, heretofore set forth at length and for that reason not repeated, and to our decisions can only serve to emphasize the correctness of our answer.
In City of Anthony v. Corbin, supra, we held:
“The condition of a city clerk’s bond, providing for the faithful discharge of his official duties, is broken by his approval and allowance of claims and countersigning city warrants in payment thereof, known by him to be illegal claims against such city.” (Syl.)
To the'same effect is Superior Grade School District No. 110 v. Rhodes, supra, holding:
“The treasurer of a common-school district paid out money of the district for a purpose for which it had not been raised. Held: (1) The payment was unlawful and void as to the school district. (2) The school district, in an action brought for that purpose, rightfully was given judgment against the school-district treasurer and his bondsmen for the sum so paid.” (Syl.)
Still another contention advanced is that appellant on appeal for the first time claims a right to maintain the action under the provisions of G. S. 1943 Supp. 72-1016. To support this claim appellees point out that the director and clerk are made defendants, whereas the statute merely provides the suit can be maintained on the bond or, at the most, against the treasurer and his surety, and argue this fact in itself evidences no attempt was ever made to come within its terms. The answer to the contention is to be found in the petition. It alleges the defendant, The American Surety Company, was the surety upon the treasurer’s bond which was then in force and effect. In addjtion the requests, served upon the director and county superintendent and made a part of that pleading, expressly state that demand was being made upon such officials to commence proceedings against Vawter, as treasurer, and his bondsmen. Assuming the correctness of appellees’ claim appellant did not base his cause in the court below expressly upon 72-1016, supra, the allegations to which we have specifically referred were sufficient to put the trial court on notice that appellant was claiming, a right to prosecute the action as an individual, and it was required to take judicial cognizance of any statute which permitted him to do so. The argument supporting the contention — where as here the motion to dismiss is equivalent to a demurrer — is answered by our decision in Updegraff v. Lucas, 76 Kan. 456, 93 Pac. 630, where we held:
“A petition which otherwise states a cause of action is not subject to a demurrer for the reason that it seeks to recover more or different relief than that to which pláintiff is entitled.” (Syl. ¶[ 1.)
Appellees’ final claim with respect to failure of the petition to state a causé of action is that inasmuch as that pleading discloses the warrants involved were drawn by the clerk and approved by the director it was the imperative duty of the treasurer to pay them irrespective of the 'legality of the bonus claims which gave rise to their execution. As supporting this contention they direct our attention to G. S. 1935, 72-1017, which reads:
“The treasurer of each district shall pay out, on the order of the clerk, signed by the director of the district, all public moneys which shall come into his hands for the use of the district.”
On the point in question it must be remembered that the complete duty of a school district treasurer is not covered by the provision just quoted from our school laws, but must be considered in connection with other sections of the general statutes prescribing the duties of that official. One of these, G. S. 1945 Supp. 10-801, states:
“All warrants shall be drawn to the order of the person or persons entitled to receive the same, and shall specify the nature of the claim or service for which they were issued and out of what fund payable; and the term 'warrants,’ as used in this act, shall be understood to include all orders of any kind or description authorized by law to be drawn on public treasurers for money payments . . .” (Emphasis supplied.)
Another, G. S. 1935,10-802, reads:
“No warrants shall be issued except under due authority as provided by law; . . .” (Emphasis supplied.)
Still another, G. S. 1945 Supp. 10-806, provides:
“It shall be the duty of the treasurer of any county, city, township, school district or board of education to pay on presentation any warrant properly drawn on any fund in his custody by virtue of his1 office, . •. .” (Emphasis supplied.)
Without the benefit of precedent we would have little hesitancy in holding that the language of the three preceding sections of the statute is to be construed to mean that a school district treasurer has no right to issue a warrant unless the claim on which it is based is authorized by law. Our decisions (City of Anthony v. Corbin, supra; Superior Grade School District No. 110 v. Rhodes, supra) permitting recovery from the treasurer and his sureties, and our recent decision in Chaney v. Edmonds, 153 Kan. 668, 113 P. 2d 81, holding that a warrant to pay attorneys, drawn upon the wrong fund, is not “properly drawn,” make that conclusion inescapable. If statements appearing in the opinion of Faulk v. McCartney, 42 Kan. 695, 22 Pac. 712, cited and heavily relied upon as sustaining appellees’ claim, support a contrary conclusion they are to be disregarded as erroneous.
Having disposed of subordinate questions consideration of the fundamental issue whether appellant has legal capacity to institute and maintain the action is not so intricate. Notwithstanding the rule which precludes individuals generally from maintaining suits questioning the action of public officials, there can be no doubt but that the legislature has power to grant them that privilege either singly or collectively. Illustrative of legislative exercise of this right is G. S. 1935, 60-1121, repeatedly approved by our decisions (Jackson v. Joint Consolidated School District, 123 Kan. 325, 255 Pac. 87; Carothers v. Board of Education, 153 Kan. 126, 109 P. 2d 63; Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651). It reads:.
“An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burden as taxpayers may be increased by. the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction: . . (Emphasis supplied.)
We discern no sound basis for differentiation between the foregoing section of the statute and G. S. 1943 Supp. 72-1016 providing that in event of the breach of any condition of a school district treasurer’s bond any qualified voter of the district may cause a prosecution to be instituted thereon if the director of the district or the county superintendent neglect or refuse to bring the action. True enough, as is suggested, the school district has additional protection. If the director refuses to take action for the recovery of funds illegally expended by. the district board the voters may act, or the public functionary selected by law may do so. Even so, that does not limit the right of the legislature' to grant similar power to others. All section 72-1016 does is to carve out another exception to the general rule and provide a further and additional method of recovery at the instigation of a qualified voter, dependent, of course, upon the exist ence of conditions and circumstances therein outlined. As originally enacted it has also been recognized and approved. In School District v. Brand, 71 Kan. 728, 81 Pac. 473, we held:
“Under section 6174 of the General Statutes of 1901 (now G. S. 1943 Supp. 72-1016) in case of the breach of any condition of the bond of a school-district treasurer, if the director neglect or refuse to prosecute an action any householder of the district may cause such prosecution to be instituted in the name, and for the benefit, of the school district, and may maintain and prosecute the action to final judgment.” (Syl.)
Since the appellant’s petition contains allegations sufficient to bring him within the scope of the provisions of G. S. 1943 Supp. 72-1016, we conclude he has legal capacity to maintain the action. Obviously, what has been here said and held with respect to his right to do so applies only to the ruling on the motion to dismiss and is in no sense to be construed as determinative of the rights of the parties in further proceeding before the trial court.
In conclusion it should be stated we have not been unmindful of the provisions of our school law which prescribe the duties of a school district director. Dealing with that specific subject G. S. 1945 Supp. 72-1004, in part reads:
“He shall appear for and in behalf of the district in all suits brought by or against the district, unless other directions shall be given by the voters of such district at a district meeting. . . .”
Nor have we overlooked decisions cited by appellees having to do with its force and effect. We simply hold .that G. S. 1943 Supp. 72-1016 (amended by Laws 1945, ch. 288, sec. 1, and now G. S. 1945 Supp. 72-1016), notwithstanding the general powers conferred upon a director by the last quoted section of the statute, specifically authorizes and permits a qualified voter of a school district to prosecute an action for an alleged breach of any condition of the district treasurer’s bond in the event its director neglects or refuses to do so. It follows, neither that statute nor decisions pertaining thereto are determinative of the issue involved in the case at bar.
The judgment sustaining the motion to dismiss the action is reversed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.
This action was instituted by a number of landowners on behalf of themselves and the Cow Creek Valley Flood Prevention Association to enjoin the city of Hutchinson and its officials from proceeding with a proposed flood-control project. No final judgment has been1 rendered. The defendant city has appealed from an adverse ruling made in the determination of questions of law prior to trial and plaintiffs have cross-appealed from a number of such rulings.
Before considering the principal appeal of the defendant we are met with plaintiffs’ contention the rulings of the trial court and defendant’s appeal are premature. Plaintiffs frankly state their cross-appeal was taken only for protection in the event this court should determine the principal appeal is properly here.
We rshall first direct our attention to the question whether defendant’s appeal is properly before us.
Defendant filed a motion to have plaintiffs’ petition made definite and certain and to strike portions thereof. It abandoned that motion and filed its answer. Plaintiffs filed a motion to strike numerous designated portions of defendant’s answer, . . for the reason that the same is redundant, is an attempt to plead evidence which has no bearing upon the issues in the case and for the further reason that the same does not constitute an answer or defense to any of the issues in plaintiff’s petition nor does it set out any issues in defense of the petition, and for the further reason that it is irrelevant and immaterial.”
There has been no ruling on that motion and plaintiffs have had no opportunity to file a reply for the. purpose of joining issues on any allegations contained in defendant’s answer. Immediately after plaintiffs filed the above motion to strike the defendant filed a motion for a determination of questions of law prior to trial. The trial court made such rulings.
The city contends it had the right to obtain a determination of questions of law prior to trial under authority of G. S. 1935, 60-2902. It provides:
“Issues of law must be tried by the court or judge unless referred. The court or judge may in his discretion hear and pass upon any or all questions of law arising in the case, not raised by motion or demurrer but appearing to be involved in the case under the allegations of the pleadings, as well as those raised by motion or demurrer, in advance of the trial of the facts, and the questions so decided and the rulings of the court thereon shall be stated in writing and filed as a part of thé record in the case.”
The plaintiffs contend they were entitled to have a ruling on their motion to strike and, following such ruling, to appeal therefrom, if adverse, or to file a reply to the answer; that in any event there could be no determination of questions of law prior to trial under the statute until the issues in the case were completely joined by appropriate pleadings.
■ Obviously the statute was not intended to deprive parties, in the process of joining issues, from attacking a pleading by motion or demurrer and obtaining a ruling thereon. That point requires little, if any, exposition. The effect of a ruling on some motions is such as to make the ruling appealable. (G. S. 1935, 60-3302; 60-3303.) If a demurrer is sustained or overruled the order is appeal-able. (G. S. 1935, 60-3302.) Where a motion to strike is tantamount to a demurrer the ruling thereon is reviewable. (Miller v. Whistler, 153 Kan. 329, 110 P. 2d 744; In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824; Funkhouser Equipment Co. v. Carroll, 161 Kan. 428, 168 P. 2d 918.) Plaintiffs’ motion to strike, as previously shown, challenged, among other things, the sufficiency of the answer to state a defense. It was, therefore, clearly tantamount to a demurrer. We have no doubt G. S. 1935, 60-2902, was not intended to deprive parties of their right under the code of civil procedure to attack pleadings by appropriate motions or demurrers and to obtain rulings thereon and to appeal therefrom where the ruling is appealable.
What then is the true purpose of the statute and at what stage of the proceedings may the trial court properly exercise its discretion to determine questions of law which will govern the trial of the facts? We think the primary purpose of the statute is to enable district courts to aid counsel in the orderly and efficient trial of cases. It vests in the district court the discretion to determine, in advance of trial, questions of law arising in the ease irrespective of whether pleadings are challenged by motion or demurrer. Such procedure may, in certain cases, serve to aid counsel in trying cases with greater efficiency and with a substantial saving of time and expense. It must, however, be observed the statute grants such discretionary power to pass upon questions of law “arising in the case” only “under the allegations of the pleadings.” That means all of the pleadings that may be filed under the provisions of the civil code. Until such pleadings are completed it cannot be certain that the issues are fully joined. Until the issues are fully joined there can be no determination of questions of law which may be relied upon to govern the trial of the case. In the instant case there being no ruling on plaintiffs’ motion to strike portions of defendant’s answer, plaintiffs could not appeal from such ruling and were also deprived of all opportunity to file a reply to the allegations of the answer. A reply might, in view of plaintiffs’ contention, become exceedingly important in this case. G. S. 1935, 60-717 provides:
“When the answer contains new matter, the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him; and he may allege, in ordinary and concise language, and without repetition, any new matter not inconsistent with the petition, constituting a defense to such new matter in the answer; or he may demur to the same for insufficiency, stating in his demurrer, the grounds thereof, and he may demur to one or more of such defenses set up in the answer, and reply to the residue.”
It is, of course, possible that questions of law, or some of them, now appearing from the incomplete pleadings may not be substantially changed by the filing of a reply. On the other hand, we cannot assume such questions of law will be affected in nowise by other legal questions that may be raised by allegations of a reply. But whether they are or not the statute clearly contemplates all issues in the case should be fully joined by the pleadings in the manner provided by the code of civil procedure before there can be a proper determination of questions of law upon which counsel may rely as governing the trial of the case.
No case is cited and our research discloses none in which this court has ever entertained an appeal from determination of questions of law prior to trial under the statute where the issues were not fully joined by the pleadings authorized by the code. In fact, we recall no case in which an appeal has been attempted under such circumstances. A careful examination of important questions now alleged to be involved and of others which may become involved in this litigation clearly emphasizes the necessity of proceeding properly under the statute in question. Any other procedure may easily result in confusion and a defeat of the very intent and purpose of a wholesome statute.
Parties frequently motion a pleading or demur to it. As previously indicated that is a statutory privilege not denied by G. S. 1935, 60-2902. Notwithstanding that right it may be helpful to the trial court and the parties, in certain cases, to delay a ruling on a motion or demurrer until the pleadings are completed and the issues are fully made up in order that the trial court and the parties may be fully advised of contentions in the premises. Such a problem was ably handled by the district court in Haynes Hardware Co. v. Western Casualty & Surety Co., 156 Kan. 356, 133 P. 2d 574, where the court recognized defendant’s right to obtain a ruling on a demurrer to a petition but also clearly understood it could not determine ques tions of law in the case until the issues were completely joined. We there said:
“Appellant demurred to the amended petition on the ground it did not state a cause of action and for the reason several causes of action were improperly joined. Appellant had previously lodged a general demurrer to the original petition, which was sustained. That ruling will be treated later under a separate contention. When the last demurrer was presented the trial court suggested it might be advantageous to the parties not to have a ruling thereon at the time and that they join issues by appropriate pleadings and have a pretrial of all legal questions involved pursuant to the provisions of G. S. 1935, 60-2902. They were advised that, if such procedure were followed, they would waive no rights under the demurrers previously filed and that no prejudice would result to any of the parties by reason of the suggested procedure. The parties stipulated to follow the suggested procedure and joined issues by filing appropriate pleadings. Later the parties also stipulated as to the facts. Pursuant to the provisions of G. S. 1935, 60-2902, the trial court filed its rulings on all issues of law and rendered judgment accordingly.” (p. 357.)
Of course, parties frequently do not desire to stipulate as to facts and they are not obliged to do so. But the manner in which the situation presented was handled in the Haynes Hardware Co. case discloses how the rights of parties with respect to a motion or demurrer may be preserved and the statute in question made to operate effectively, with a saving of time and expense of intermediate appeals, if the parties are willing to so proceed.
In the instant case the determination of questions of law to govern the trial of the case was premature. It follows defendant’s appeal is likewise premature. Its appeal and the cross-appeal must, therefore, be dismissed. It is so ordered.
Hoci-i, J., not participating.
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The opinion of the court was delivered by
Parker, J.
This action was instituted under the declaratory judgment law to obtain judicial interpretation of certain provisions of the Kansas compensating tax act. It was submitted in the court below upon the pleadings and stipulations of fact. The plaintiff appeals from a judgment construing the involved provisions of the act in accord with the construction placed thereon by the defendants.
Plaintiff, a Delaware corporation, owns and operates an interstate pipe-line system and is engaged in the business of transport ing natural gas from a point in the state of Oklahoma to points in the states of .Kansas, Nebraska, Iowa and Illinois. In the transaction of its business it sells and delivers such commodity to disT tributors and consumers in those states. The defendants are state agencies and officials, charged by statuté with the administration and enforcement of the Kansas compensating tax act as amended by chapter 370 of the Laws of 1945, now G. S. 1945 Supp. 79-3701 to 79-3711, inclusive.
Inasmuch as certain sections of the act are essential to. a proper understanding as well as the determination of the issue raised by the pleadings they will be set forth before further reference is made to the factual situation upon which that issue depends.
G. S. 1945 Supp. 79-3702 defines terms used in the act and so far as pertinent, reads: ■
“(c) The word ‘use’ means and includes the exercise within this state by any person of any right.or power over tangible personal property incident to the ownership of that property, except that it shall not include processing, or the sale .of the property in the regular course of business and except storage as hereinafter defined.
“(d)' ‘Storage’ includes any keeping or retention in this state for any purpose except sale in the regular course of business or subsequent use solely outside this state of tangible personal property purchased from a retailer.”
G. S. 1945 Supp. 79-3703 relates to the tax imposed. It provides:
“There is: hereby levied and there shall be collected from every person in this state a tax or excise for the privilege of using, storing, or consuming within this state any article of tangible personal, property purchased subsequent to June 30, 1945. Such tax shall be levied; ajid. collected in an amount equal to the purchase price paid by the taxpayer multiplied by the rate of two percent. All transactions involving compensating tax or use tax prior to July 1, 1945, shall be administered under the law as it exists prior to that date.” /;.>
G. S. 1945 Supp. 79-3704 exempts certain persons from liability for payment of the tax levied by virtue of the preceding section. It reads: .
“The provisions of this act shall not apply:
•“(a) In respect to the use, storage or consumption of any article of tangible personal property brought into the state of Kansas by a nonresident who is within the state for not to exceed sixty days for his or her use or enjoyment while within the state; or by a railroad or public utility for consumption or movement in interstate, commerce ...”
The first six paragraphs of plaintiff’s petition relate to the capacity of the parties, the nature of plaintiff’s business, the manner in which it is carried on, and other formal matters, none of which are in controversy or need be related. Paragraph 7 states:
"That plaintiff has exercised and will exercise, within the state of Kansas the privilege of using, storing, or consuming articles of tangible personal property purchased and to be purchased subsequent to June 30, 1945, which property is and Will be of the following description; transmission pipeline of various dimensions, casing, flanges, coupling, headers, tees, valves, compressor engines, generators, meters, regulators, tanks, separators, pumps, motors, oilers, structural and .building materials, piping for water system, water well equipment, telephone wire, poles, cross-irons and appurtenances, radios, aerials and appurtenances, miscellaneous materials and supplies, and sundry equipment and machinery pertinent to the operation of an integrated interstate natural gas pipeline system; all of which articles were brought into the state of Kansas with the design and purpose of incorporating the same into the transportation system owned by plaintiff as an integral part thereof, by way of repair, maintenance, construction, reconstruction, replacement, addition or Extension thereto as a necessary incident and requirement for the operation thereof. That plaintiff intends, in the future, to bring into the state of Kansas items of tangible personal property of like description and nature for the same purpose. That all of such property heretofore or hereafter brought into the state of Kansas has been or will be used according to such design and purpose.”
Then such pleading alleges the defendants have made demand for and are about to assess and collect compensating taxes against plaintiff in respect to all property of the kind and nature described in paragraph 7 brought into the state by it prior to or after the institution of the action for the uses and purposes therein described.
In conclusion it states that although plaintiff is ready and willing to pay any and all use or compensating taxes lawfully assessed against it, or that may be collectible from it, under and by reason of the Kansas compensating tax act the items of tangible personal property described in paragraph 7 were and will be brought into the state of Kansas by it as a “public utility for consumption or movement in interstate commerce” and charges that under the provisions of section 4 (a) of the act it is exempt from the payment of such tax in respect to all such articles of property and that defendants have no lawful right to assert, assess, demand or collect, use or compensating taxes against it by reason of its use, storage or consumption within the state of Kansas.
Defendants in their answer concede plaintiff’s business is interstate in character. They admit they have advised plaintiff it is liable under the act for the use or compensating tax in respect to all articles of tangible personal property described in paragraph 7 of the petition and assert that they intend to and will collect taxes thereon unless the act is judicially construed to exempt it from payment thereof. They then specifically deny that such property was or will be brought into the state by plaintiff as a public utility for consumption or movement in interstate commerce and charge that it is taxable under the law and the rule and regulation set forth in paragraph 9 of their answer.
The rule and regulation referred to in paragraph 9 of the answer is identified therein as rule No. 18 of the compensating tax rules and regulations. It was promulgated by the director of revenue, approved by the commission, and has been filed with the revisor of statutes, as provided for and required by G. S. 1945 Supp., ch. 77, art. 4. So far as applicable to the issue involved it reads:
“a. All pipe lines engaged in the transportation of property shall be deemed to be a public utility within the meaning of the term ‘public utility’ as used in Section 79-3704(a) of the act.
“b. All tangible personal property purchased out of the state and brought into the state of Kansas for use, storage, or consumption by pipe lines is subject to the tax in the same manner as is tangible personal property brought into the state by other firms, persons, or corporations, except as exempted herein.
“c. Charges for electrical energy, gas, motor fuels, distillate, etc., sold to pipe line companies, and consumed in generating power necessary to transport gas, gasoline, crude oil, etc., in interstate commerce through the pipe lines, are exempt from the compensating use tax.”
To the answer the plaintiff filed a reply alleging in substance that rule 18 as promulgated and adopted by the defendants is invalid and of no force and efféct for the reason that the enforcement of such rule will result in depriving it of the benefits of the exemption granted to railroads and public utilities by the express terms of G. S. 1945 Supp. 79-3704 (a).
Having joined issue on the question, conceded by the parties to be the only one involved in the action, whether plaintiff is liable for payment of the compensating tax on the articles of property described in paragraph 7 of the petition when brought into the state of Kansas in the manner and under the conditions and circumstances therein set forth the cause was submitted in the court below upon the following stipulated facts:
“The parties to the above-entitled proceeding by their respective attorneys of record hereby stipulate and agree that the following facts may be taken as true, provided, however, that this stipulation is without prejudice to the right of either party to introduce further evidence not inconsistent with the facts herein stipulated.
“Plaintiff’s business and commerce is and was at all times entirely interstate in character.
“Plaintiff is.a public utility within the meaning of the term, ‘public utility,’ and as used in Section 4 (a) of Chapter 370, Laws of Kansas, 1945.
“Plaintiff is a public utility within the terms of Rule No. 18 of the compensating tax rules and regulations as promulgated by the Director of Revenue, approved by the Commission of Revenue, and Taxation and filed with the Revisor of Statutes.
“A description of those articles of tangible personal property enumerated in paragraph 7 of plaintiff’s petition which have been or will be brought into the state of Kansa? by plaintiff, and the manner and method of their use by plaintiff in the operation of its interstate transmission system is as follows: (Detailed description omitted.) ■
“The articles of tangible personal property described in Paragraph 7- of plaintiff’s petition will be worn out or their useful life exhausted over a period of years through wear and tear or natural causes for the purpose purchased through their use and employment by plaintiff in the operation of its interstate transmission system in the manner set forth in paragraph IV of this stipulation but defendants do not agree that the activities of plaintiff with respect to the use and employment of said-articles of tangible personal property amount to or result in a consumption thereof within the meaning of Section 4 (a) of Chapter 370, Laws of Kansas, 1945, as interpreted in defendants Rule No. 18 set forth in defendant’s answer.
“It is further stipulated and agreed by and between the parties hereto that all of the tangible personal property described in paragraph VII of the Plaintiff’s Petition and paragraph IV of the Stipulation of Facts filed herein is purchased by plaintiff outside the State of Kansas and is brought into the State of Kansas for the purposes described in said Petition and Stipulation, but that prior to such use, said property will be temporarily held, stored or warehoused until such time as such property can be installed or put to use in replacement of worn out or damaged equipment or in new installations in plaintiff’s pipeline system.”
.Based on the foregoing pleadings and facts the trial court rendered judgment declaring that under the provisions of the Kansas compensating tax act: (1) The property involved in the action is not brought into the state by plaintiff “for consumption or movement in interstate commerce” as that term is used in G. S. 1945 Supp. 79-3704 (a) and that nothing’tó be found therein exempts plaintiff from payment of taxes imposed on such property by the terms of G. S. 1945. Supp. 79-3703, and (2) rule 18 of the Kansas compensating tax rules and regulations is a lawful and valid regulation.
In advance of determination of liability under the present act it will be necessary to give some consideration to the historical events responsible for its enactment in the present form.
The original Kansas compensating tax law (Laws 1937, ch. 375) levied a tax or excise for the privilege of using articles of tangible personal property within the state, purchased subsequent to May 30, 1937. Under that statute no tax Ayas levied, nor was there an attempt to levy a use tax, on tangible personal property purchased outside the state and brought therein for use by a railroad or public utility engaged in carrying on interstate business, for the reason it was conceded that such a tax would be a burden on interstate commerce and therefore unconstitutional (see Pacific Telephone and Telegraph Co. v. Henneford, 195 Wash. 553, 81 P. 2d 786). At the time of the enactment of the 1937 act there was in force and effect in the state of California a compensating tax law which, unlike our own, was broader in its scope and taxed the use, storage and consumption of property brought into the state. The validity of this law was challenged on the ground it violated the commerce clause of the federal constitution in proceedings which eventually reached the supreme court of the United States. On the 30th day of January, 1939, in two cases (Southern Pacific Co. v. Gallagher, 306 U. S. 167, 83 L. Ed. 587, and Pacific Telephone and Telegraph Co. v. Gallagher, 306 U. S. 182, 83 L. Ed. 595), that tribunal decided the California act did not violate the commerce clause and upheld the right of that state to collect the tax on the theory that storage of property therein, an event made taxable by the act, was an event occurring within the state after actual movement into the state in interstate commerce had ceased and prior to the use or consumption of such property in interstate commerce.
This, then, was the situation when in 1945 the Kansas legislature, cognizant of the fact the compensating tax law then in force and effect did not permit the collection of a use tax on tangible personal property purchased outside the state by a public utility engaged in the business of interstate commerce, amended that law to tax use, storage or consumption of such property.
What has been heretofore stated clarifies, if in fact it does not definitely establish, the purpose of the Kansas legislature in enacting the compensating tax act now' under consideration, and brings us to the point where we can now give consideration to the force and effect of its terms with respect to the issue whether appellant.is liable for the payment of compensating tax on the property described in para graph 7 of the petition. As we do so it is well to note the parties are in accord on many matters important to its decision. Since reference to them will simplify the issue they will now be mentioned. It is not disputed, if in fact it is not agreed, as follows:
1. So far as applicable to the case at bar the exemption clause (G. S. 1945 Supp. 79-3704) has no application to property brought into the state by a nonresident for not to exceed sixty days and for our purpose it is to be read thus:
“The provisions of this act shall not apply:
"(a) In respect to the use, storage or consumption of any article of tangible personal property brought into the state of Kansas ... by a railroad or public utility for consumption or movement in interstate commerce; . . .” (Emphasis supplied.)
2. Under the two decisions in the Gallagher cases the act does not violate the commerce clause of the federal constitution and the state may lawfully collect the tax or excise imposed by the provisions of G. S. 1945 S'upp. 79-3703.
3. Kansas is the only state in the nation that has a provision in its compensating tax law exempting tangible personal property brought into the state by a railroad or public utility for consumption in interstate commerce.
4. Without the exemption clause (79-3704, Supra) appellant would be taxable under the act upon its purchases of property described in paragraph 7 of the petition.
5. Under the pleadings and stipulations of fact the question whether the legislature exempted property brought into the state for the purpose therein conceded from the tax imposed by the act (79-3703, supra) depends upon the interpretation or construction to be placed upon the word “consumption” as used in section 79-3704 (a) heretofore quoted.
6. The meaning of the word “consumption” as used in the section last mentioned is not defined in the act.
. In determining whether the property involved is exempt it must be remembered that we are dealing with a statute which imposes a tax on all tangible'personal property bought outside the state and thereafter brought into it for use, storage or consumption. Likewise, kept in mind that the section which exempts certain property from the payment of that tax does not exempt all use or storage but extends only to property brought into the state for consumption or movement in interstate commerce. Otherwise stated, the language of the exemption section simply means that with respect to the tax imposed on use, storage or consumption by section 79-3703, there is an exemption if the property is brought into the state for such consumption or movement.
With the exemption section thus construed, what import is to be given to the word “consumption” as used therein? The question, since the legislature did not define the term, must be determined on the basis of legislative intent.
At the outset it must be conceded the word “consumption” is susceptible of various meanings. Webster’s New International Dictionary defines the word as follows:
“1. Act or process of consuming,; waste; decay; destruction; also, the using up of anything, as food, heat or time.
“2. The use of (economic) goods, resulting in the diminution or destruction of their utilities — opposed to production. Consumption may consist in the active use of goods in such a manner as to accomplish their direct and immediate destruction, as in eating food, wearing clothes, or burning fuel; or it may consist in the mere keeping, and enjoying the presence or prospect of, a thing, which is destroyed only by the gradual processes of natural decay, as in the maintenance of a picture gallery.
“3. A progressive wasting away of the body, esp. that attendant upon pulmonary phthisis, called pulmonary consumption; hence, pulmonary phthisis or tuberculosis. See Phthisis, Tuberculosis.”
From the foregoing definition it is apparent the term as used in the act in question with respect to tangible personal property may refer to its continued use under circumstances where it will be destroyed by gradual processes or its use under conditions where it will be immediately destroyed or exhausted, or it may have reference to both.
Appellant, recognizing the necessity for judicial ascertainment of the meaning of the term as used in the act, directs our attention to G. S. 1935, 77-201, Second, which reads:
“Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and- such others as may have acquired a peculiar and appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning.”
It contends the word “consumption” is of common and popular usage and the statutory rule just quoted requires that it be construed to apply to continued use as well as immediate destruction and exhaustion of the property. With this contention we cannot agree. Consumption as applied to use of goods in interstate commerce is a technical term and we are required to ascertain the in tent and the purpose of the legislature in making use of it in the act in controversy, not from the statutory rule to which appellant refers but from well-established rules of statutory construction to be found in our decisions to which we now refer.
When it appears the meaning of language used in a statute is indefinite, uncertain or ambiguous, the cardinal rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature in enacting it governs when that purpose and intent is ascertainable from the language to be found therein. (Hunziker v. School District, 153 Kan. 102, 109 P. 2d 115). Another principle, of almost equal importance, is that when a statute is susceptible of more than one construction it must be given, that construction which, when considered in its entirety, gives expression to its intent and purpose (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550).
Thus in State, ex rel., v. Moore, 154 Kan. 193, 117 P. 2d 598, in dealing with the general duty of a court in ascertaining legislative intent we held:
“In construing a statute, the legislative intention is to be determined from a general consideration of the whole act, and effect must be given, if possible, to the entire statute and every part thereof.
“In determining and giving effect to the legislative intention, as expressed in the statute, it is a court’s duty, so far as practicable, to reconcile the different provisions so far as to make them consistent, harmonious, and sensible.
“The words of a statute must be taken in the sense in which they were understood at the time the statute was enacted.” (Syl. Iffi 1, 2, 5.)
With respect to specific matters which may be considered by a court in determining legislative intent our decisions are numerous. In Motor Equipment Co. v. Winters, 146 Kan. 127, 69 P. 2d 23, we announced that it was essential to consider statutes in existence when the statutes involved were enacted. In Ruppenthal v. Maag153 Kan. 588, 591, 113 P. 2d 101, we stated the best means of ascertaining such intent was to fix what the situation was at the time of the enactment of the particular statute in controversy. In In re Estate of Butler, 159 Kan. 144, 152 P. 2d 815, we said legislative intent is to be determined by construing language employed in the statute under consideration with reference to the particular subject concerning which the words are used.. In Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042, we held that when the interpretation of a statute according to the exact and literal import .of its words will defeat the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason/ disregarding, as far as may be necessary, the strict letter of the law. In Kelly v. Lassen Hotel Co., 161 Kan. 444, 168 P. 2d 527/ we decided that the provisions of a statute should be construed together and in their entirety in determining the purpose of the legislature in'its enactment. Long ago, in City of Emporia v. Norton, 16 Kan. 236, we held that in the determination of legislative intent the court is not limited to mere consideration of words employed, but may properly look'- to the purpose to be accomplished, the necessity and effect of the statute, under the different constructions permitted by.its terms. In In re Brenner, 151 Kan. 788, 100 P. 2d 688, we decided that words in a statute must be construed in light of the context and the general purpose of the enactment. And, in Johnson v. Hensley, 150 Kan. 96, 102, 90 P. 2d 1088, we said that the legislative history of an involved statute is entitled to consideration as an aid in determining legislative intention.
When the involved statute in its entirety is tested by the foregoing legal principles we are convinced the intent of the legislature in using the word “consumption” as found in G. S. 1945 Supp. 79-3704 (a) was to limit the exemption from payment of the compensating tax to such articles of tangible personal property as were brought into the state by a public utility for use in such manner as to accomplish their direct and immediate consumption in interstate commerce." This conclusion, in óúr opinion, is justified when consideration is given to: (1) The statute (Laws 1937, ch. 375) in force and effect when the one involved was enacted; (2) the conceded non-liability of public utilities for payment of the tax under the terms of the 1937 statute when property was purchased outside the state and brought into the state by them for purposes of carrying on their interstate business; "(3) the force and effect of the decisions of the Supreme Court of the United States in the Gallagher cases; (4) the knowledge of'the legislature that by amending the 1937 act a valid compensating tax could be levied on property brought into the state and stored even if it was later used for purposes of interstate commerce; • (5) the legislative history pertaining to, and the purpose of, the legislature in enacting the 1945 compensating tax act; (6) the universally accepted canon of statutory" construction requiring that a statute be so interpreted, if possible, as to give force and effect to each and all of its provisions, and (7) the fact, which it must be assumed to have known, that by substitution of "the word “use” for “consumption” in the last clause of G. S. 1945 Supp. 79-3704 (a), the legislature would have definitely exempted all property used in interstate commerce, notwithstanding that prior to that use it had become subject to payment of the tax under other provisions of the act by reason of having been temporarily stored within the state. It becomes inescapable, we believe, when, coupled with the indicative considerations to which we have just referred, it appears the statute as finally enacted imposes a compensating tax on the privilege of using, storing or consuming any tangible personal property bought outside and brought within the state and exempts only so much of that property as is brought therein by a railroad or public utility for consumption or movement in interstate commerce. Such a construction gives force and effect to the over-all tax imposed by G. S. 1945 Supp. -79-3703, as well as the exemption granted by G. S. 1945 Supp. 79-3704 (a). To hold otherwise would result in almost if not complete nullification of section 79-3703, give undue weight to section 79-3704 (a), and defeat the general purpose of the compensating tax statute.
The conclusion just announced makes it unnecessary to give consideration to appellant’s contention that rule 18 as promulgated arid adopted by appellees deprives it of the exemption granted by the terms of G. S. 1945 Supp. 79-3704 (a). Such rule under our decision does not deprive appellant of any exemption to which it is entitled under that section, or any other provisions of the compensating tax act. .It is therefore a lawful and valid regulation.
The judgment of the trial court is affirmed.
Hoch, J., not participating.
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The opinion of the court was delivered by
Parker, J.
This is an action to recover damages for personal injuries sustained by a pedestrian as a result of a collision with a motor truck. Plaintiff appeals from an order sustaining defendant’s demurrer to the evidence.
There is no issue with.respect to the pleadings, hence allegations to be found therein need not be related at length. For our purposes it can be said the petition alleges that plaintiff was struck and severely injured by defendant’s truck while it' was being driven by one of its employees in a northerly direction on th& west side of the center of Main street in the city of Pratt and charges that his injuries, therein fully described, resulted from several particular acts of negligence on the part of defendant, each and all of which are averred to be the direct and proximate cause of his condition. Defendant’s answer denies any and all negligence, charges that the col lision and plaintiff's injuries are the proximate result of his own negligence and alleges that even if defendant was guilty of negligence in any particular whatsoever the plaintiff was likewise guilty of negligence contributing to the cause of his injuries. The reply is a denial of all new matters set forth in the answer.
With issues thus raised the case came on for trial to a jury. After the plaintiff had adduced his evidence and rested defendant demurred thereto. The trial court sustained the demurrer upon two grounds: (1) That the evidence was insufficient as a matter of law, and (2) that it disclosed that the plaintiff was guilty of negligence which was the proximate cause of his injury.
In our discussion and decision of the issues we shall speak of the parties as they appeared in the court below.
At the outset in support of his position on appeal plaintiff argues the judgment shows error on its face. He argues the trial court found defendant was guilty of no negligence and then held plaintiff was guilty of contributory negligence with the result the grounds for the decision as rendered are wholly inconsistent, the first being contrary to the second. The argument misconceives the import to be given the second ground of the trial court’s decision which we construe to be that plaintiff’s negligence precluded his recovery but even so the contention lacks merit. The well-established rule is that if the trial court renders a correct judgment under the facts and the law, a judgment will not be disturbed merely because wrong reasons are given for its rendition. (City of Wichita v. Boles, 156 Kan. 619, 135 P. 2d 542; Egnatic v. Wollard, 156 Kan. 843, 846, 137 P. 2d 188; Nebraska Hardware Mut. Ins. Co. v. Johnson, 156 Kan. 756, 137 P. 2d 125; State Highway Comm. v. Stadler, 158 Kan. 289, 294, 148 P. 2d 296; Greep v. Bruns, 160 Kan. 48, 60, 159 P. 2d 803 and Arensman v. Kitch, 160 Kan. 783, 792, 165 P. 2d 441.) We therefore turn to the record to see if it upholds.the judgment.
The factual’ picture disclosed by the evidence up to the moment just prior to the occurrence of the accident resulting in plaintiff’s injuries is not a subject of dispute between the parties and can be stated thus:
On October 1, 1945, the plaintiff was 48 years of age, he had a good average income and he was strong and healthy both in mind and body. At that time, and for several years prior thereto, he had engaged in the auto repair business and the selling and servicing of farm implements in the city of Pratt. His place of business was located on the east side of the five hundred block on South Main street in the heart of the business section of that city, about ninety feet north of where such street intersects with Sixth street.
South Main street, as the name indicates, is the main business street of Pratt and runs north and south. It is one hundred feet wide from the lot lines with sixteen feet of sidewalk and dirt parking strip on each side. Its remaining sixty-eight feet is paved with brick. The five hundred block has no marked crosswalks and is bounded on the north by Fifth street and on the south by Sixth street. There is an electric stop-and-go signal at the intersection of Fifth and Main, but none at the intersection of Sixth and Main.
Plaintiff was accustomed to crossing Main street in the middle of the block between the intersections at Fifth and Sixth streets and had never had an accident while doing so.
The day of October 1, 1945, was bright and clear. The streets of the city were dry. On the morning of that day plaintiff had been doing some work on an automobile which was parked diagonally in the middle of the block on the west side of Main street and almost directly across the street from his place of business. Just as he was completing that work one of plaintiff’s friends, a Mr. Don Heading, happened to be passing by and stopped to talk to him. Just to the south of the car on which plaintiff had been working was a parked truck having a long wheel base and a thirteen foot bed but there was nothing about it, or anything else on Main street at the time, which interfered with the vision of anyone who had occasion to look down such street to the south. The sun was shining brightly. The two men visited briefly for a moment. Plaintiff said that he was busy, had all he could do, and that he had just told some man that if he would bring his car around to the back end of the shop he would fix it. At about 10 a.m. Heading, who was going south, turned to leave. As he did so he saw plaintiff start to walk east across the street, he observed him light a cigar when about two feet from the rear of the parked truck and then walk on to the east. Just as the witness reached a spot on the west sidewalk, eight or ten feet to the south of the parked truck, he heard a crash and immediately turned around to see what had happened.
From this point on the story is not so clear and had best be stated in record form. As that is done it is well to remember that except for the driver of the defendant’s truck and the plaintiff, to whom reference will be made later, there were no eyewitnesses to the im pact between plaintiff and the truck, and that only two persons testified as to what took place immediately thereafter.
One of such witnesses, Don Heading, testified as follows:
“When I was about 8 or 10 feet south of the Chevrolet truck I heard a noise just like two trucks going together. I looked around and saw Goodloe spinning. I dropped what I had in my arms and run out to him. I saw him falling. Goodloe was going east and the truck hit him and he was just spinning and fell a little bit to the northwest. ...”
Cross-examination—
“Goodloe had lit his cigar before he ever started across the street. That there was no question about that. That he was in plain view of the accident and that as he heard the impact and turned around he saw Mr. Goodloe right at the side of this truck spinning around.”
Redirect Examination—
“That the truck hitting Goodloe was a pick-up, that the large truck parked on the west side of the street had a flat bed on it, that he could easily see oyer the bed, that Goodloe, was hit by the front panel of the door; that is, right there where the glass rolls up and there is the back panel.”
The r.ecord discloses additional testimony on the part of this same witness in the form of questions and answers. We are not told just when, during the course of 'his examination, this testimony was elicited; whether on direct, cross- or redirect examination. However, it explains and clarifies other statements made by Mr. Heading and for that reason will be quoted. The record on this particular phase of the evidence reads:
“Mr. Heading testified in detail as to what he saw and his testimony in that regard was as follows:
“Q. Now when you heard the impact and turned, what was the first thing you saw? A. I saw Mr. Goodloe right at the side of this truck, right about the door panel spinning.
“Q. He was spinning right about the door panel? A. Yes, sir.
“Q. Now from your position there, were you able to tell what part of the side of the truck struck what part of Mr. Goodloe? A.. Well, I would say he either hit the front part of the door panel where the windshied glass joins with the door post or the glass, or the door panel; that is where the door shuts back and he hit on the right side of the head, I guess it was about here (indicating) on the right side of the face (indicating).
“Q. On the right side, you are indicating? A. Yes.
“Q. That is the position you are indicating? A. On the right side.
“Q. In your opinion he was struck by the right side of the truck at about the door of the cab? A. Yes sir.
“Q. The left side of the truck? A. Yes, the left side of the truck.
“Q. About even with the door of the cab? A. Yes, that is right.
“Q. As to whether it was the front post or the back post, you don’t know? A. I don’t know which one hit him; but it was right at the cab door, one door panel or the other.
“Q. Can you tell what it did to him? A. He hit the truck and it caused him to spin and he was thrown slightly to the west and in a prone position.”
A further interrogation on direct examination of such witness and its answer should be noted. They read:
“Q. Could you observe whether or not he was struck by the projecting mirror of the truck. A. Well, there was something at that time on the left side of the truck and it hit his face. I don’t know whether he was cut by hitting the mirror or whether he hit the door. I thought he cut his face on the door handle as he went down.”
The second witness to whom we have heretofore referred, one C. A. Schoole, testified on direct examination: .
“That he was working for the John Deere people in the John Deere building on South Main Street. That on October 1, 1945 at 10 o’clock that he was waiting on a customer and looked out on the street and saw a man spinning and fall to the ground, as a pickup truck passed him.”
On cross-examination, in response to a question whether Goodloe’s body was thrown in a westerly direction from the truck:
“Yes, that is where it was; whether it was thrown or fell, — that is where the body was laying.”
On redirect examination:
“Just turned around and went down as he turned.”
The plaintiff did not call Mr. Sellers, the driver of the truck, as a witness. However, he did use Roy Peak, the deputy sheriff, who was permitted, without objection, to testify regarding the conversation he had with that individual immediately after the accident. Therefore, such testimony must be given consideration. On direct examination Mr. Peak stated that in response to his inquiry as to how the accident happened the driver said “I seen 'the man and I thought he was going to get right in the cab with me.” The record with respect to his cross-examination on such matter reads:
“Q. Didn’t you and Mr. Sellers have a conversation as to what point of the truck was struck by the plaintiff in this case as he walked into the truck? A. I tried to re-enact the accident with him and I got my head in the cab door just like it was; I stuck my head in there at the angle and everything the way it was and re-enacted the scene and the side of the door showed — when I put my head on the inside of it there I called his attention .to it. I said-it looks like a man’s head hit here (indicating). There is the print of a man’s head.
“Q. He mentioned to you, did he not, that he thought the fellow was going to stop when he saw him;.didn’t he say that he looked; that he was going slow and he thought the man was going to Stop and the fellow came right on. in? A. Well, it kind of left that impression.
“Q. That he first thought the fellow was going to stop and then he just kept coming. That was the substance of that conversation. A. Yes.
“Q. Let me direct your attention a little more to the matter I was asking you about; Isn’t it true that the substance of your conversation at the latter part of this same conversation was that you pointed out to him the imprint bn the door? A. Yes.
“Q. Which you told him you thought had been made by the man’s head. A. Yes, sir.
“Q. And he looked at it, and he agreed with you that that was the impression made by the man’s head? A. Yes.
“Q. As the man walked into the side of the truck. A. Yes.
“Q. All of that conversation took place in substance did it not. A. Yes, sir.”
Other evidence material to the issues can be briefly summarized. Several witnesses testified as to where plaintiff was lying after the accident. They placed him all the way from four to eight feet west of the center of Main street. Others gave their version of where the truck stopped. They located it all the way from twenty to forty feet beyond the point of impact on the east side of the street. Some stated its left hind wheel was near the center line of the street but the record discloses no testimony on the part of any witness placing the truck, at any time, on the west side of such line. At least one, perhaps two witnesses, examined the truck and stated their examination disclosed that its brakes were very bad. In fact one witness went so far as to say the truck had no brakes at all.
It will be observed, we have made no mention of plaintiff’s injuries which, it can be said, are conceded to be serious and permanent. The reason for failing to do so is obvious. They are not involved in ruling on the demurrer to the evidence.
Likewise, it may be noted, we have refrained from referring to plaintiff’s testimony in his own behalf. That comes from the fact that he is now suffering from amnesia and testified that he has no recollection of the events happening immediately prior to the accident.
It is, of course, elementary that on demurrer we give full credence to the evidence challenged and give the party adducing it the benefit of all inferences and conclusions to be drawn from the surrounding facts and circumstances. Plaintiff points out we have even said that in testing its sufficiency we do not weigh the evidence or compare testimony of the same witness on direct or cross-examination but accept that version which is most favorable to the party who relies upon it as sustaining his cause of action. Indeed that is the rule. However, it does not follow, as suggested by plaintiff, that because an answer to a question propounded to a witness is seemingly inconsistent with his answers to other questions, but in fact is not actually so by reason of the physical facts and circumstances to which he has testified or his subsequent explanation of incongruities apparent in his testimony, that we are bound to accept the one answer and disregard the others. In that situation it becomes our duty to compare statements made by the witness and reconcile them if possible to do so. The liberal doctrine prevailing in this jurisdiction with respect to the sufficiency of evidence on demurrer is not to be extended to the point where it requires an obviously erroneous construction of the testimony of any witness.
Thus in the instant case, while it is true the witness, Heading, on one or two occasions stated that the defendant’s truck hit the plaintiff, it is apparent from an examination of his entire testimony, herein set forth at length, he did not by those statements intend to imply the defendant’s truck ran into, against, upon or over the plaintiff but actually meant that the plaintiff, while, crossing the street in the middle of the intersections between Fifth and Sixth streets, collided with such truck, the point of impact being'the left side door of that vehicle. That this was the true situation is evidenced by all the other evidence. Therefore, we shall proceed with our disposition of the contentions advanced with respect to negligence of the parties on the premise that phase of the factual situation has been conclusively established as herein indicated.
Conceding, at the outset, that from our legion of reported negligence cases there may be found decisions in which something has been held or said that can be regarded as tending to support the respective contentions advanced by each of the parties it must be kept in mind that every negligence action is first of all dependent upon the factual situation disclosed by the record on which it is decided. There are, of course, certain fundamental principles of law applicable to negligence actions generally but in the final analysis the facts of each particular case determine its decision when tested by those principles.
Most of the legal rules having application to the facts disclosed by the record in the case at bar are fully sét forth in two of our outstanding automobile negligence cases, consistently followed and approved by this court in subsequent decisions. We have reference to Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, and Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846. In each such decision it was said:
“The simple fact that there was a collision and someone was injured is not of itself sufficient to predicate liability. (Zinn v. Updegraff, 113 Kan. 25, 35, 213 Pac. 816; 9 Blashfield Cyclopedia of Auto Law, 399.) It is familiar law that negligence is never presumed; it must be established by proof. Like any other fact, it may be established by circumstantial evidence. (Mayes v. Kansas City Power and Light Co., 121 Kan. 648, 249 Pac. 599.) But the circumstances ‘relied on must be of such a nature and so related one to the other that the only reasonable conclusion to be drawn therefrom is the theory sought to be established.’ (Cornwell v. O’Connor, 134 Kan. 269, 271, 5 P. 2d 861.) ‘A fact is not proven by circumstances which are merely consistent with its existence.’ (Canestro v. Joplin-Pittsburg Rld. Co., 135 Kan. 337, 341, 10 P. 2d 902.)
“In Whiteker v. Wichita Rld. & Light Co., 125 Kan. 683, 265 Pac. 1103, it was held:
“ ‘A finding of negligence cannot rest on mere conjecture, but must be established by competent proof.’ (Syl. ¶ 1.)
“See, also, Beeler v. Railway Co., 107 Kan. 522, 192 Pac. 741; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830, and A. T. & S. F. Rly. Co. v. Toops, 281 U. S. 351, reversing Toops v. Atchison L. & S. F. Rly. Co., 128 Kan. 189, 277 Pac. 57.”
Almost identical statements appear in the more recent case of Miller v. Gabbert, 154 Kan. 260, 266, 118 P. 2d 523.
To' the foregoing canons of law we might add two more which are applicable here. One, so universally recognized as to almost, preclude necessity for citation of authorities, is that negligence is not actionable unless it is the. proximate cause of injury (see West, Kansas Digest, “Negligence,” § 56). The other, similar in character, but having particular reference to recovery of damages for injuries sustained in motor vehicle collisions is that mere violations of an ordinance or statute regulating traffic, such as excessive speed, defective equipment, driving down the center of the highway, or other matters of a similar- nature, are not sufficient to make the driver of an automobile guilty of actionable negligence in an action involving a collision unless it appears from the evidence that such violations contributed to the accident and were the proximate cause of the injuries therein received. For some of our important, and recent cases on the Subject, see: Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397; Barshfield v. Vucklich, 108 Kan. 761, 197 Pac. 205; Phillips v. Meyer Sanitary Milk Co., 129 Kan. 45, 281 Pac. 895; Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; Frakes v. Travelers Mutual Cas. Co., 148 Kan. 637, 84 P. 2d 871; Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870; Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P. 2d 665; Wright v. Nat’l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271, and Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827. See, also, West’s Kansas Digest, “Automobiles,” 201 (1, 2, 3, 4); Hatcher’s Kansas Digest, “Automobiles,” §§ 10 and 15.)
With fundamental and applicable rules thus established we turn to the record.
Plaintiff himself states that the negligence charged in his petition and on which he relies for recovery is that defendant (1) was driving on the wrong side of the street; (2) was driving too fast under the circumstances; (3) did not keep a proper lookout; (4) failed to sound his horn; (5) had no brakes on his truck; and (6) failed to exercise due care.
Ground 4 can be disposed of summarily. There is nothing in'the record which supports or sustains it.
Summary disposition can also be made of Grounds 2 and 5. Admitting the truck had no brakes and conceding without deciding that such vehicle was being driven at an excessive rate of speed, for plaintiff’s own evidence was to the contrary, neither excessive speed nor defective brakes contributed to plaintiff’s injuries or were the proximate cause thereof. The truck had passed plaintiff before the collision and under all the facts and circumstances disclosed by the evidence it is apparent the accident would have happened anyway.
The only evidence to sustain Ground 1 is that when the truck stopped its left hind wheel was within a short distance of the center line of Main street. That fact does not justify an inference it was ever on the west side of the center street line and, of a certainty, it does not sustain plaintiff’s claim it was being driven on the wrong side of the street.
The sole support for Ground 3, aside from the fact the accident occurred, is to be found in the witness Peak’s statement that the driver of the truck told him he saw the man and thought he was going to get right in the cab of the truck. That does not establish negligence on the part of a driver in failing to keep a lookout in a situation where, as here, under the statute, G. S. 1945 Supp. 8-557, he had a right to assume a pedestrian crossing a street between inter sections would yield the right of way. In the absence of evidence showing the driver of the truck had reasonable cause to believe the plaintiff was not going to yield the right of way he is not guilty of negligence-simply because the accident occurred.
So far as plaintiff’s claim with respect to Ground 6 is concerned, he fails to point out, and we are unable to discern any evidence disclosing a specific or definite act on the part of defendant’s driver showing lack of due care. In fact to reach that conclusion he founds one inference upon another. This court has repeatedly held that presumptions or inferences based upon presumptions or inferences are insufficient to establish negligence. (Schmidt v. Twin City State Bank, 151 Kan. 667, 100 P. 2d 652; McKenzie v. New York Life Ins. Co., 153 Kan. 439, 112 P. 2d 86.)
Apparently sensing the weakness of his direct proof plaintiff strenuously insists his cause of action must be regarded as having been established by circumstantial evidence. We do not agree. To reach that result the circumstances relied on must be more than merely consistent with the existence of negligence. They must be of such character and so closely related to each other that the only reasonable conclusion to be drawn from them is that the carelessness of the defendant’s truck driver was the proximate cause of the collision. That does hot appear from the record.
Indeed, from a careful examination of the evidence as a whole, we are forced to the conclusion that plaintiff’s claim of negligence on the part of defendant is based purely upon speculation and conjecture. It necessarily follows the trial court properly sustained the demurrer on the ground the evidence failed to show defendant’s negligence as a matter of law.
The conclusion just announced really ends this lawsuit and makes unnecessary consideration of plaintiff’s contention the trial court erred in sustaining defendant’s demurrer .on the ground his own evidence shows he was guilty of negligence which was the proximate cause of his injury. Be that as it may, we are constrained to decide that issue.
In this state pedestrians and drivers of motor vehicles have an equal right to use the streets and highways and upon each there devolves a corresponding duty to employ ordinary care for their personal safety (Stotts v. Taylor, 130 Kan. 158, 285 Pac. 571; Crowder v. Williams, 116 Kan. 241, 226 Pac. 774). The only exception to the rule, not here involved, is at street intersections where a higher degree of responsibility toward pedestrians rests on automobile drivers than elsewhere on the city streets. (Cusick v. Miller, 102 Kan. 663, 171 Pac. 599.)
That a plaintiff’s negligence, or his contributory negligence, will bar him from recovery in an action for damages sustained in an automobile casualty and that a demurrer to his evidence should be sustained where either negligence or contributory negligence clearly appears from his evidence cannot be questioned. (Dolloff v. City of Wichita, 147 Kan. 63, 75 P. 2d 221; Crowder v. Williams, supra; Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352; Houdashelt v. State Highway Comm., 137 Kan. 485, 21 P. 2d 343; Moler v. Cox, 158 Kan. 589, 149 P. 2d 611.)
No useful purpose will be served by repeating the evidence heretofore quoted. It will suffice to say that when the entire record is surveyed and critically analyzed we believe it requires the conclusion that reasonable minds could only conclude the real cause of the deplorable accident resulting in plaintiff’s serious injury was his own lack of care in not looking for, or if he was looking, in not seeing, the defendant’s truck in the street in time to stop before colliding with it.
We note a final contention that plaintiff, because of his inability to remember and testify as to his conduct and action immediately prior to the occurrence of the accident, is entitled to the presumption of due care. Assuming, without pausing to pass upon whether this contention is meritorious, it is of no help to plaintiff. Such a presumption is always rebuttable and can be overcome by evidence. Plaintiff’s evidence does just that. It reveals that on a bright, clear day, at a time when there was nothing to obstruct his vision, he attempted to cross a city street between two intersections under conditions requiring him to not only look but yield the right of way to vehicles upon the street. That he failed to stop and the collision resulted is conceded. If he looked he was bound to see what he could and should have seen (McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468; Lilly v. Wichita Railroad & Light Co., 127 Kan. 527, 530, 274 Pac. 205).
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, C. J.
This was an action for three times .the amount of an overcharge alleged to have been made by defendant in the sale of an automobile to plaintiff. The jury brought in a verdict for the amount of the overcharge. The court fixed the amount of an attorney’s fee for plaintiff, for which items judgment was rendered. Defendant has appealed.
Briefly stated, plaintiff in his petition alleged that he is a resident of Sedgwick county; that defendant was engaged in the business of buying and selling used automobiles in Wichita; that the action was brought pursuant to the terms and provisions of United States Emergency Price Control Act of 1942, Public Law No. 421, 77th Congress, 2d Session, 56 Statutes 23 (50 U. S. C. A. 901-946), Sec. 205 e or 50 U. S. C. A., 925 e; and the terms and provisions of Emergency Price Control Act of 1944 as amended by Public Law No. 383, 78th Congress, 2d Session, or 50 U. S. C. A. Appendix 925 e; that pursuant to the provisions of the statute the price administrator made and published a price schedule of used automobiles in the area of Wichita, under which the maximum sale price of.a described automobile at Wichita on February 25, 1946, was $1,227 plus $24.45 tax; that on February 25, 1946, defendants sold and delivered to plaintiff the described automobile, for which defendant charged and received from plaintiff $1,830.54, which price so charged and collected by defendant from plaintiff was $579 in excess of the scheduled maximum sale price for the automobile; that by reason thereof defendant became liable and indebted to plaintiff in the sum of $1,737, for which sum, plus an attorney’s fee, plaintiff prayed judgment.
The answer contained a general denial except it admitted that defendant operates a used-car lot in Wichita and • about February 25, 1946, did sell the described automobile to* plaintiff, and alleged that if the car was sold in excess of the ceiling price it was well known to plaintiff and that defendant did not willfully violate any ceiling prices or fail to take due precaution to prevent violation of the sáme.
Without further pleadings the case was called for trial, at which time defendant moved to dismiss the action upon the opening statement for plaintiff, which consisted of the reading of the petition, for the reason that the opening statement and the petition failed to state facts sufficient to constitute a cause of action. The court heard arguments upon the motion and withheld its ruling.
Evidence on behalf of plaintiff was introduced, which, without detailing it, may be said to have fairly supported the allegations of plaintiff’s petition. Defendant demurred to the evidence “for the reason that the same has not proven facts sufficient to constitute a cause of action. More particularly I direct the court’s attention to the fact that they have failed to prove that the car was purchased for use or consumption other than in the course of trade or business.” Counsel for plaintiff contended that was a matter of defense. The court overruled the demurrer. Defendant then moved for a directed verdict in his favor “for the reason that plaintiff has failed to allege and to prove that the car in question was purchased for use or consumption other than in the course of trade or business by said plaintiff.” This was overruled. Among other instructions given was the following:
“You are further instructed that plaintiff in order to recover must prove, that he purchased the automobile from defendant ‘for use or consumption other than in the course of trade or business’.”
The jury returned a verdict for plaintiff for $579 and the court awarded plaintiff an attorney’s fee of $250. Defendant moved for judgment notwithstanding the verdict “for the reason that the evidence and pleadings show that the defendant is entitled to judgment.” This was overruled and defendant, moved for a new trial upon the grounds (1) erroneous rulings of the court; (2) the verdict is contrary to the evidence. This was overruled.
Defendant, as appellant here, contends that neither plaintiff’s petition nor the evidence in his behalf discloses a cause of action in his favor under the Federal statute, the pertinent portion of which reads:
“If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence, of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. ... If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period.” (50 U. S. C. A., Appendix, Sec. 925 e.)
This statute has been construed as authorizing the purchaser of a commodity to sue only in the circumstances in which he buys the commodity “for use or consumption other than in the course of trade or business,” and in circumstances where that situation does not exist the administrator of the act alone has authority to sue, and the suit is on behalf of the United States.
In Bowles v. West, 63 F. Supp. 745, it was held:
“The Price Administrator alone has the right to sue on account of an overcharge where the purchase was for use or consumption in the course of trade or business.” (Syl. f 4.)
In Lightbody v. Russell, 293 N. Y. 492, 58 N. E. 2d 508, the syllabus reads:
“War — price control — (1) great weight must be given to Price Administrator’s construction of Emergency Price Control Act as excepting industrial and commercial consumers from class who have cause of action against one selling for excessive price — (2) Congressional Committee reports corroborative and relevant — :(3) plaintiffs’ allegation that they are ultimate consumers does not negative their being industrial or commercial consumers — (4) words ‘other than in the course of trade or business’ in statute constitute exception which must be negatived in pleading — (5) words ‘in the course of trade or business’ may not be transposed so as to refer to ‘buying’ rather than to ‘use.’
“1. Subdivision (e) of section 205 of the Emergency Price Control Act of 1942 (U. S. Code, tit. 50, Appendix, § 925, subd. [e] provides that if a seller violates a regulation prescribing maximum prices ‘the person who buys such commodity for use or consumption other than in the course of trade or business’ has a cause of action. The Price Administrator, charged with the duty of administration of the Act, has officially interpreted the phrase ‘in the course of trade or business’ as applying to purchases by industrial and commercial consumers as-well as to purchases for a resale. His interpretation is entitled to great weight.
“2. The House and Senate Committee Reports indicate that said construction conforms to the intent of Congress. Such reports are relevant and open for use in the aid of construction and a determination of Congressional intent.
“3. Plaintiffs allege that they are in the business of the moving and storage of personal property and that defendant sold them a tractor ‘for use by these plaintiffs as the ultimate consumer.’ This allegation does not negative the possibility that the tractor was purchased for use or consumption in business and that, therefore, plaintiffs are not entitled to maintain the action.
“4. The statute contains the exception ‘other than in the course of trade or business’ as the foundation of a cause of action and plaintiffs fail to state a case since they do not negative the exception.
“5. The complaint may not be sustained by transposing the words ‘in the course of trade or business’ as used in the statute so that they would qualify the word ‘buys’ rather than the words ‘use or consumption.’ ”
And in the opinion it was said:
“The statute gives plaintiffs a cause of action in the circumstances set forth in the complaint only where the commodity is sold at a price in excess of the prescribed ceiling or maximum price and purchased by them ‘for use or consumption other than in the course of trade or business.’ They cannot bring the suit or successfully maintain a cause of action unless they allege and prove that they purchased the tractor for use or consumption other than in the course of their trade or business. That allegation and proof of the fact is a statutory condition to the cause of action. The statute contains the exception as the foundation of a cause of action and plaintiffs fail to state a case since they do not negative the exception.” (p. 495.)
In Young v. Wierenga, 314 Mich. 287, 23 N. W. 2d 92, it was held:
“One who seeks treble damages for overcharge under the emergency price control act must allege and prove, that the goods purchased were for use or consumption other than in the course of trade or business (50 USCA, App. §925 [el.
“Where cause of action is based solely upon a fact that is stated as a statutory exception, a declaration which fails to negative the exception would not state a case.
“A buyer who buys a commodity above ceiling price as established under the emergency price control act ‘for use or consumption other than in the course of trade or business’ must negative the exception in his declaration in order to recover the overcharge as a buyer who buys ‘in the course of trade or business’ is in pari delicto (50 USCA, App. ¡§925 [e]).”
This ruling is restated and applied in the following cases: Bowles v. Rogers, 149 F. 2d 1010; Bowles v. Trullinger, 152 F. 2d 191; Bowles v. Whayne, 152 F. 2d 375; Bowles v. Madl, 153 F. 2d 21; Bowles v. Barker, 155 F. 2d 1022; Foley v. Day Brothers, (Mass.), 69 N. E. 451; Grindle v. Brown (Mass.), 72 N. E. 2d 431; Crowley v. Hughes, 74 Ga. App. 531, 40 S. E. 2d 570; Tyson v. Ross, (Ga. App.), 43 S. E. 2d 125; Lee v. Kimbro (Tex. Civ. App.), 202 S. W. 2d 263.
Counsel have cited no case and our own research discloses none to the contrary.
Counsel for appellee argues some other questions based upon general rules of pleading or equity. We think none of these is in point. This action is one controlled by the federal statute. The provision of the Emergency Price Control Act authorizing suits for damages establishes the solé means whereby individuals may assert their private right to damages and whereby the administrator on behalf of the United States may seek damages in the nature of penalty. (Porter v. Warner Co., 328 U. S. 395, 66 S. Ct. Rep. 1086, 90 L. Ed. 1332.)
The petition in this case contains no statement to the effect that the plaintiff bought the automobile in question “for use or consumption other than in the course of trade or business,” and there is nothing in the evidence tending to show the purpose for which the automobile was purchased. The result is that the petition did not state a cause of action; the demurrer to the evidence should have been sustained and defendant’s subsequent motions shown by the abstract were well taken.
The judgment of the court below is reversed with directions to enter judgment for defendants.
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The opinion of the court was delivered by
West. J.:
A rehearing was granted on the homestead question only, and for the third time this controversy has received somewhat unusual attention. (Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802; Id. 102 Kan. 104.)
The right to will away real estate is not inherent, but is purely a creature of legislation. The legislature may give, and the legislature may take away.
“The legislature has plenary power to withhold or grant the right, and, if it grants it, may make its exercise subject to such regulations and requirements as it pleases.” (40 Cyc. 997.) , '
When this matter was attended to in this state, it was enacted that one may give and devise property by will, “subject nevertheless to the rights of creditors and to the provisions of this act.” (Gen. Stat. 1915, § 11752.) This is all the power that has ever been given. The legislature has not added, and the courts cannot add, thereto.
Section 9 of article 15 of the constitution sets apart certain property as a homestead which “shall not be alienated without the joint consent of the husband and wife, when that relation exists. . . .” Section 8 of the descents and distributions act (Gen. Stat. 1915, § 3831) sets apart one-half in value of the husband’s estate of which the wife has made “no conveyance.” In Comstock v. Adams, 23 Kan. 513, the sole question for consideration, as expressly stated in the opinion, was whether a will is a conveyance under the section last referred to, and after painstaking consideration the court unanimously held that it is not.
In Vining v. Willis, 40 Kan. 609, 20 Pac. 232, the point was whether a will is an alienation under the section of the constitution referred to, and after a still more elaborate discussion it was unanimously held that it is not, and Comstock v. Adams was followed with approval. In Barbe v. Hyatt, 50 Kan. 86, 31 Pac. 694, these two decisions were referred to and reaffirmed. The first of these was rendered in 1880, the second in 1889, and the third in 1892, and in all these years neither the people, the legislature, nor the courts have sought to change the rule of property thus embedded in the judicial system of this state. While loose expressions touching wills may be found, in no instance has this court decided anything to impair the force of this rule.
In Martindale v. Smith, 31 Kan. 270, 1 Pac. 569, it was said (p. 273) that when death occurs the title to the property of the person dying must be transferred to some person, that it cannot remain in the deceased, and the will simply designates where the title shall go.
In Vining v. Willis, 40 Kan. 609, 20 Pac. 232, it was said that a will never divests the owner of his property; that when the testator dies the devisee mentioned in the will takes the property by virtue of the statutes.
“It would not be the will, however, but death that would take the property from the testator; and it would be death, the statutes, and the will, all operating together, that would confer the property upon the devisee.” (p. 611.)
Also,
“It is not the will alone, however, that determines where the title shall go, for the will operating- alone would be powerless. It is the will, and death, and the statutes, operating together, that determine where the property shall go. Indeed, it is the statutes which give force and efficacy to all.” (p; 612.)
After going over the matter again at length it was said:
“We think it appears from the statutes and from the decisions of the supreme court, that the legislature, the governor, and the supreme c&urt,' have always been of the opinion that the aforesaid constitutional provision has nothing to do with the question as to where the title to real estate, occupied as a homestead, shall go after the death of the owner of such real estate. It is evident that it has always been their opinion that the word ‘alienated’ as used in said provision means only a passing of some estate, title or interest in the homestead from the owner during Ms lifetime, and that it has no reference whatever to where his title or interest shall go after his death. These statutes and decisions have all the force and effect of a contemporaneous exposition of the true intent and meaning of this constitutional provision.” (p. 620.)
A homestead always contemplates a place for the residence of a family, and its character as exempt property is derived only from the fact of such occupancy. In Cross v. Benson, 68 Kan. 495, 75 Pac. 558, the doctrine of family was expanded and applied to the case of a widow occupying the,homestead after the death of her husband. This was carried still further in Weaver v. Bank, 76 Kan. 540, 94 Pac. 273, holding that the homestead right may persist in the survivor without regard to which held the legal title or the time when the indebtedness to pay which it was sought, to be sold was incurred. Another modification was made in Towle v. Towle, 81 Kan. 675, 107 Pac. 228, two members of the court dissenting, wherein it was decided that a sale in partition is not a forced sale, and that distribution of the homestead may be had by the adult children while it is still occupied by the widow.
It is now argued that another enlargement should be made, and that the property in this case, not claimed to have been occupied by the present owners as a homestead, should be deemed exempt from the debt sought to be enforced against it. Of course this means a reversal of the decisions referred to and the establishment of the contrary rule. It is argued that creditors should be construed to mean those holding claims which could in the lifetime of the testator be enforced against the property. In other words, that the power to devise given by the legislature does not mean subject to the rights of creditors generally, or general creditors, which would be its natural meaning, but subject only to the rights of what might be called actual or potential lien holders, such as materialmen or those holding claims for the purchase price. But the same legislature which thus restricted the making of wills enacted that the homestead should not be exempt from sale for taxes, improvements, purchase price, or liens given by consent of both husband and wife. Hence, creditors other than these must have been meant when using the phrase, “subject ... to the rights of the creditors.” Of course the phrase does not mean’ creditors whose eyes could not be turned toward the homestead, for all understand a homestead to be exempt from the claims of general creditors.
The phrase “subject ... to the rights of creditors” must, according to- the act on statutory construction, be construed according to the context “and the approved usage of the language.” (Gen. Stat. 1915, § 10973, subdiv. 2.) If only actual or potential lien holders were intended there was no occasion to use this language at all, because they were already protected by the constitution and the statute as above shown. Hence, the argument that only creditors who could have looked to the homestead in the life of the intestate were intended, falls to the ground. In Monroe v. May, Weil & Co., 9 Kan. 466, Mr. Justice Brewer, in speaking of the homestead right, said:
“A man may sell his homestead, and give good title, no matter how many judgments may be standing against him.” (p. 475.)
Again,
“Nor is there anything in the transaction of which creditors can complain, or upon which they can base any equity. ... If placing the title in the wife’s name had removed-so much property from the reach of their claims, it might have given them some pretense for insisting that no more property should be thus removed. But where the homestead is alike exempt, whether in the husband’s or wife’s name, we fail to see why placing it in the wife’s name gives the creditors a right to call that a gift which the parties made a payment.” (p. 476.)'
It is quite manifest that in this discussion general creditors were the ones referred to. In Colby v. Crocker, 17 Kan. 527, the plaintiff, who had loaned the owner $800 for which he had no security, sought to require a mortgagee to first exhaust the homestead property. It was said:
“The homestead-exemption laws provide in effect that the homestead shall be exempt from all debts except for purchase-money, taxes, improvements, and liens given by the consent of both husband and wife. Now the plaintiff’s claim does not fall within any of these exceptions.” (p. 531.) .
He, therefore, must have been a general creditor like the plaintiff in the case before us. In La Rue v. Gilbert, 18 Kan. 220, a judgment was obtained against a homestead owner whose family continued to occupy after his death. The holder sought to require the mortgagee of the homestead and other real estate to exhaust the homestead property first. This was refused. Mr. Justice Brewer said:
“In giving a mortgage on the homestead, the debtor waives this homestead right, but only to the mortgagee, and does not thereby open the door to Other creditors, or increase their equities.” (p. 222.)
In Hixon v. George, 18 Kan. 253, in discussing the claims of creditors who questioned the right of a husband to purchase land with his own money and put it in his wife’s,name and hold it as a homestead, it was declared that—
“It would have made no difference if the title to the property had been taken in George’s name, and not in his wife’s name. In either case, the property would have been exempt from the claims of any general creditor of either George or his wife.” (p. 258.)
In Sprout v. Atchison National Bank, 22 Kan. 336, the court held:
“It is not illegal or fraudulent to hold property in a homestead exempt from the claims of general creditors; and the right of the homestead occupants to so hold such property is paramount to any right of any general creditor.” (Syl. ¶2.)
In Long Brothers v. Murphy, 27 Kan. 375, it was held that an insolvent debtor having creditors pressing for the payment of their claims could not take goods purchased upon credit ahd exchange them, for real estate, and hold it as a homestead against such existing creditors.
Henderson v. Stetter, 31 Kan. 56, 2 Pac. 849; Stratton, Adm’r, v. McCandliss, 32 Kan. 512, 4 Pac. 1018; Frick Co. v. Ketels, 42 Kan. 527, 22 Pac. 580; Loan Association v. Watson, 45 Kan. 132, 25 Pac. 586; Wilson v. Taylor, 49 Kan. 774, 31 Pac. 697; Battey v. Barker, 62 Kan. 517, 64 Pac. 79; Cross v. Benson, 68 Kan. 495, 75 Pac. 558; Hopper v. Arnold, 74 Kan. 250, 86 Pac. 469; Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074; Rose v. Bank, 95 Kan. 331, 148 Pac. 745; King v. Wilson, 95 Kan. 390, 148 Pac. 752; Milberger v. Veselsky, 97 Kan. 433, 155 Pac. 957; Scott v. Rodgers, 97 Kan. 438, 155 Pac. 961; Fredenhagen v. Nichols & Shepard Co., 99 Kan. 113, 160 Pac. 997; and Walz v. Keller, 102 Kan. 124, 169 Pac. 196, all involved controversies between homestead claimants and general creditors, and no distinction can be found between those which did and those which did not involve wills.
In King v. Wilson, 95 Kan. 390, 148 Pac. 752, this is found:
“Was it necessary for the plaintiff to allege that the former judgment was not for an obligation contracted for the purchase of the premises, or for the erection of any improvements thereon? In suits 'for the protection of the homestead right it is not necessary to allege that the debt sought to be enforced against the property is not embraced within any of the exceptions.” (p. 393.)
In Cross v. Benson, 68 Kan. 495, the following is found:
“And since the lots in question were continually impressed with the homestead interest of Sue S. Cross in the lifetime of her husband, at the date of his 'death and during the following years until her own demise, creditors enjoyed no rights to which such lots were subject or to which the making of a will was subject.” (p. 506.)
There can be no question that in this expression general creditors were meant.
The trouble is that we have no homestead in this case— simply some real estate which ceased To be a homestead when it ceased to be occupied as such.
“The homestead interest is not an estate in land. . . . It is an exemption of land under stated conditions. If the conditions do not exist, or having once existed are at an end, the exemption ceases.” (Ellinger v. Thomas, 64 Kan. 180, 185, 67 Pac. 529.)
If the homestead had at any time been abandoned by the widow of the judgment debtor, while such judgment was kept alive, it would at once have become subject to proper process for its payment. Had the makers of the will died intestate leaving no family in possession, the property would likewise have become subject to the rights of The judgment holder. The fact that the will designated, to whom it should go is now sought to be exaggerated into a continued exemption in the hands of the devisees.
There is no potentiality in the oft used and frequently abused expression that the eye of the creditor need never be turned towards the homestead, to justify a holding that property continues to be a homestead after it ceases to be one.
But it is argued that the will and the death and the statute together vested the title in the defendants. It certainly cannot be said that the death conveyed any property to any one, it simply removed the present owner from this life. Indeed,, counsel himself says in his brief that “Death transfers nothing.” It was long since settled law that the will did not and could not convey or alienate the land. The statute directed that it should go according to the desire expressed in the will — but only after probate — (Gen. Stat. 1915, § 11784), and while these three insufficient causes may when combined produce the effect of a conveyance — which neither could do alone — there is nothing in the situation to give the will a potency not accorded to it by the statute.
While the eye of the creditor need never be turned toward the homestead of the debtor, this situation continues only so long as it is a homestead. The only reason possible to be advanced for having a homestead provision is the protection of the family, and when, under our recent decisions, no member of the family continues to occupy it the homestead character ipso facto ceases. When the survivor in this case departed this life, no one was left in possessipn claiming or who could claim any sort of homestead rights. The devisees took by force of the statute, which compelled them to take subject to the rights of creditors who, having kept their judgment alive, had a right to look at this property as soon as it ceased to be a homestead, which it did upon the death of the survivor.
While the testators might during their occupancy of the homestead have conveyed it away by deed, and while the creditors might not be able to show that they were in any wise defrauded thereby, this was not done. It could have been done regardless of this will or any other will that might have been drawn, but is was not done. Instead of conveying the property away, the owners and occupiers chose to exercise their rights to designate where and how it should go at their death — -only this and nothing more.
It is said that death is not an abandonment. Very well, but suppose the devisors had died simultaneously while in possession, whose homestead would it have been? It is not claimed'to be the homestead of any one now, and it is not. The theory is advanced that by somé sort of inherent efficacy the will carried over the exemption or the exempt quality of the land to the devisees. Why? Because a deed would haye done so, forsooth. But a deed would have evidenced a present and complete divestiture and investiture of title. A will is powerless to do this. Being a mere creature of statute, it can, at the utmost, result in designating the beneficiary, subject to the rights of the creditors of the devisor. Had this will expressly provided that it was made subject to the rights of the devisor’s creditors, it would simply have contained what the statute writes into every will as effectually as if inserted by the maker himself.
“Legatees succeed to the estate of the testator a,s beneficiaries and objects of his bounty, and have no rights or equities whatever as against creditors whose debts existed in the testator’s lifetime, and this applies even to a legacy based on a valuable consideration. It has even been considered that the creditors have a lien on property which the testator has specifically devised or bequeathed by his will.” (40 Cyc. 2060.)
The statute has not said that the owner of a homestead may not convey it away by deed. This he may do, and, unless he thereby works a fraud upon his creditors, this right is in no wise impaired, but the statute has, in effect, said that he may not will his homestead away without preserving the rights of his creditors.
There is no possible reason in justice or equity why one should prefer a relative or a stranger who already has a homestead, and who owes him nothing, to a creditor who may have furnished him the very' means of subsistence for years without return.
The answer to the contention that if a deed cannot defraud creditors a will cannot, is that the one is an inherently free act and the other a matter restricted and limited by law, whose limits cannot be passed without violating the law itself.
The point in Cross v. Benson, supra, was that, although the widow took under the will, subject to the rights of creditors, she could not be ousted of her occupancy, so long as it continued, because such occupancy was paramount to her rights as devisee. ,
When the constitution was framed and adopted the country was new and land was of small value, but 160 acres of land and the improvements thereon in many cases now amount to a fortune of many thousands of dollars. If one owning such a homestead now can, by being the beneficiary in the will of another homestead, hold such other property free from the debts of the testator, then it would seem, indeed, that the effect if not the object of the exemption law is not to protect the family, but to defeat debts.
The former decision and opinion are adhered to.
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The opinion of the court was delivered by
Mason, J.:
T. F. Garner brought an action against his tenant, the Dodge City Wholesale Grocery Company, for a balance due as rent, and for injuries done to the rented property. . The defendant denied liability and set up a counterclaim by reason of injuries to goods, caused by a defective roof. Judgment was rendered for the plaintiff and the defendant appeals.
1. When the case was reached for trial the defendant’s attorney asked a continuance on account of the absence of a witness — the president of the company. The request was denied, and complaint is made of that ruling. No such showing was made as to give the defendant a right to. a continuance under the'statute. The matter rested in the discretion of the trial court. It appears that the witness had been present a few days before and had known of the case being set for trial. In that situation there is no room for a contention that there was any abuse of discretion.
2. The lease was in writing and contained no provision for repairs by the landlord. On the contrary, by its express terms, the tenant agreed that during the life of the lease it would at its own expense “keep said premises and. every part thereof in good repair.” The defendant offered to show a subsequent oral’ promise of the plaintiff to make repairs to the roof, but admitted that it was not supported by any new consideration. The court properly rejected the offer. (24 Cyc. 1085.)
“It has frequently been held that the landlord is under no obligation to make repairs, unless such a stipulation is made a part of the original contract, and that any subsequent promise to make repairs, founded merely on the relation of the parties and not one of the considerations of the lease, is without consideration, and for that reason creates no liability.” (16 R. C. L. 1033.)
3. The final complaint is of the refusal of the court to allow proof of injuries to the plaintiff’s goods caused by the leaky roof. Whether or not this would have afforded a proper measure of damages if the landlord had agreed to make repairs (as to which see Murrel v. Crawford, post, p. 118), in the absence of such an agreement no liability on the part of the plaintiff was created by the facts offered to be shown, since he was under no implied duty in that respect. (16 R. C. L. 1030-1033.) The appellant cites many, cases in which the landlord was held liable for damages on account of losses occasioned by his failure to repair, but in each of them he had expressly assumed such an obligation or, as in Mann v. Fuller, 63 Kan. 664, 66 Pac. 627, had attempted to make repairs and injury resulted from the unski'llfulness of the work.
The judgment is affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover a real-estate agent’s commission. Plaintiff alleged that the defendant made a written contract authorizing the plaintiff to sell certain real estate owned by defendant, and the - following letter from the defendant to the plaintiff under date of October 6, 1916, was set forth as constituting that contract:
“In reply to yours of the 5th asking if I would sell the W % of see. 4 25 21 for $47.50 per acre, Y2 cash, balance five years at 7 per cent and allow you the regular commission. I cannot let this land go for less than $50.00 per acre and this price 'is subject to prior sale or change without notice. . . . P. S. This $50.00 price of course is subject to the regular commission of 5 per cent on the first $1,000.00 and 2% on the balance.”
Plaintiff alleged that by this contract defendant agreed that if plaintiff should be in any manner instrumental in selling the property or producing a buyer at the price named, defendant would pay plaintiff the commission mentioned. Plaintiff further alleged that he accepted the proposition of defendant, and that in pursuance of the contract so made he sold the land on October 27, 1916, to Jacob Konradi at $50 per acre, and immediately sent defendant the following telegram:
. “Have sold your west half section 4 25 21 Ford county, . . . You to furnish abstract showing good merchantable title and pay me regular commission as stated in your correspondence. Wire acceptance immediately.”
The defendant then sent the following telegram on October 27: “Your offer accepted send me contract for execution.” ,
A contract of sale was prepared by plaintiff, signed by Konradi and sent to defendant, who, together with his wife, signed it and returned it to the plaintiff for delivery to the purchaser, who is and always has been ready and willing to pay for the land according to the contract. Plaintiff asked a recovery of $425 claimed as commission, with interest.
In the answer of the defendant, as finally amended, he admitted the correspondence and the execution of the contract already mentioned, but he alleged that the land had been listed With plaintiff at $50 per acre sometime in 1915, and that before the correspondence was had and about July, 1916, the parties made án oral agreement that plaintiff was to receive no commission if the land was sold to Jacob Konradi, as the latter had been dealing directly with the defendant, and that the letters and telegrams mentioned “were only for the purpose of inducing the defendant to sell for a less price, of reiterating the terms of the original listing, and of clearing up any possible uncertainties and misunderstandings.”
The court, upon motion of the plaintiff, struck out the averments as to a prior oral agreement, and upon a stipulation between the parties to the effect that the written correspondence was correctly set out in the plaintiff’s petition, that the contract executed between defendant and Konradi attached to the petition had been procured through the efforts of plaintiff, and, further, that no commission had ever been paid, the court excluded testimony of prior negotiations and gave judgment for plaintiff, from which defendant appeals. ■
The contention of the defendant is that the writings constituted but a part of the contract between them, and were not conclusive upon him, and, therefore, he should have been allowed to show the earlier oral negotiations and agreements. A binding contract may be made by the interchange of letters and' telegrams, and the interpretation of such contract is a question of law for the court. (Shear Co. v. Thompson, 80 Kan. 467, 102 Pac. 848.) The contract involved here is complete and unambiguous, and there being no claim that it was induced by deceit, it is as conclusive upon the parties as if it had been reduced to a single writing in the most solemn form. It must be regarded as a complete expression of the entire agreement and as embodying all prior agreements and understandings. To allow it to be altered, added to, or modified, would be to substitute a new contract for the one deliberately made by the parties. (Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625; Shear Co. v. Thompson, 80 Kan. 467, 102 Pac. 848; Mill & Elevator Co. v. Saunders, 96 Kan. 459, 152 Pac, 622.) The subject of procuring a purchaser, and the commission to be paid if one was found, was included in and became a part of the written agreement, and all prior negotiations and understandings relating to the commission must be deemed to be merged in that agreement. According t6 the agreement, the .commission was to. be paid when a purchaser was procured, regardless of the person procured. By its terms the only limitation upon the plaintiff was to find a purchaser for the land at the price fixed, namely, $50 per acre; and when a purchaser was found ready to take the land at that price the commission was earned. No limitation was made as to the field or class from which a purchaser might be taken, and to add an exception that a commission should not be paid if the land was sold to a particular person would directly conflict with the written stipulation. The defendant insists that the written contract is evidently only a part of the agreement of the parties, and he complains that he was not permitted to show that the writing was only a partial statement of the prior parol agreements. The writings import, on their face to be a complete expression of the whole agreement. It has been said that—
“The writing cannot be proved to be incomplete by going outside and proving that there was an oral stipulation entered into and not contained in the written agreement, nor can parol evidence be admitted to-prove a contemporaneous agreement that a written instrument which appears upon its face to be duly executed, intelligible, unambiguous, reasonable, and complete, should be considered only as the basis or outline of a contract to be subsequently filled out with stipulations other than those contained in the writing.” (17 Cyc. 716.)
Defendant appears to have proceeded for a time upon the theory that he was bound by the written agreement. When defendant was informed that a purchaser had been found, and that he was to pay a stipulated commission, he signed a' contract in which Konradi was named as the purchaser. He closed the transaction knowing to '-whom the sale had been made, and knowing also that the regular commission was required of him. In a way, he recognized his liability to pay a commission by executing a contract of sale after he had discovered that Konradi was the purchaser and that a commission was demanded.
However, he was clearly bound by the terms of the written contract, and therefore the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
In an opinion rendered on January 12, 1918 (102 Kan. 307), the judgment of the district court was reversed, and a new trial was granted.
The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a rehearing is denied and the judgment stands reversed, the new trial be directed on the proposition on which the judgment was revérsed. The judgment. was reversed on the ground that an instruction was erroneous because it did not submit to the jury the question of the defendant’s knowledge of the dangerously playful habits of William Deeds, a fellow workman with whom the plaintiff was working at the time of his injury.
The judgment of reversal is adhered to, and a new trial is granted on the following questions: (1) Was the plaintiff injured by William Deeds, accidentally or in sport? (2) If the plaintiff was injured by William Deeds in sport, was William Deeds in the habit of indulging in dangerous play with his fellow workmen? (3) If William Deeds was in the habit of indulging in dangerous play with his fellow workmen, did the defendant have notice or knowledge of that habit?
After these facts have been ascertained, judgment will be rendered by the trial court in accordance with the facts so found and in obedience to the law declared in the former opinion.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit is to determine a liability on a sight draft which was not paid.
The Lyon County Farmers’ Produce Association is a voluntary organization designed to bring together the producers and consumers of agricultural products, for which service the association charges a small commission. Anton Ptacek is its manager. The defendant, George Schaefer, is a producer of hay. Through arrangements made by the association, Schaefer shipped a consignment of hay to a man in Iowa. He gave the bill of lading to Ptacek, who drew a sight draft on the consignee payable to the plaintiff bank, and the bank forwarded the bill of lading with the draft attached for collection. The bank placed the face amount of the draft (less the association’s commission) to the credit of Schaefer, and he checked it out. The draft was .dishonored, and Schaefer declined to reimburse the bank.
The trial court made findings of fact and rendered judgment for the bank. .The findings read:
“First: On or about 'April 4th, 1915, one Anton Ptacek left with the plaintiff for collection, four sight drafts with bill of lading attached, representing separate shipments of hay the proceeds to be credited to defendant by said Bank, except a small commission to be credited to Ptacek.
“Second: One of said drafts was for $139.57. This draft was sent to the Kansas City, Missouri, correspondent of plaintiff, and on April 7th it received notice from its correspondent that it had been credited with said amount; subject to collection, and said amount was credited by plaintiff, subject to collections as follows: $136.22 to defendant’s account, and $2.35 as commission to the account of Ptacek.
“Third: Said draft was drawn on one Huddleson, of Fontanelle, Iowa.
“Fourth: Before a report was had by plaintiff on the collection of said draft, defendant came to plaintiff bank and asked that he be permitted to check against the proceeds as he was in need of funds, and was given such permission on agreement between defendant and bank that in case' said draft was not honored, defendant’s account was to be charged with-the amount and that defendant would reimburse plaintiff. The exact date of this transaction is not ascertainable from the evidence.
“Fifth: At a later date and about April 20, 1915, defendant came to said Bank with a postal card advising defendant that said hay had been rejected, and asked Mr. Price, President of the plaintiff Bank, what he should do about the matter, and said Price informed defendant that plaintiff had not been advised whether said draft had been paid but if same were dishonored the amount would be charged to defendant’s account in case collection was not made and defendant agreed that this should be done.
“Sixth: All of said drafts were collected and passed to defendant’s account on the books of said bank, except the Huddleson draft, which was dishonored, and plaintiff was unable to make collection of any part thereof.
“Seventh: Defendant overdrew his account with said bank in the sum of $136.22, under the arrangement as hereinbefore, set out ini these findings. Afterward in another transaction said account of defendant was credited with $2.29, leaving a balance due and owing plaintiff from defendant $133.93.”
Defendant’s principal contention on appeal is that there was no competent evidence to support the sécond ;finding. The court discerns no difficulty on that point. Ptacek, the man who de livered the draft to- the bank, was defendant’s agent in so doing, and he told the bank what disposition to make of it. This evidence was competent. (McWhirt v. McKee, 6 Kan. 412, syl. ¶ 1; Lovejoy v. Citizens’ Bank, 23 Kan. 331, syl. ¶ 2; Ellicott, Assignee, v. Barnes, 31 Kan. 170, syl. ¶ 2, 1 Pac. 767; Talcott v. National Bank, 53 Kan. 480, 36 Pac. 1066; Hough v. First Nat. Bank, 173 Iowa, 48; Branch v. Dawson, 36 Minn. 193; 7 C. J. 639.)
Furthermore, there was competent evidence showing that Schaefer asked and received permission from the bank to check against the draft deposit before the bank had received the returns on it, and this was upon Schaefer’s agreement that if the draft was dishonored he would “make it all right.” While Schaefer denies this, this court cannot do otherwise than to accept as true the trial court’s determination of that disputed fact. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.) Even if there was no literal agreement between the bank and Schaefer to “make it all right,” the law would infer such an agreement and impose such a liability on Schaefer. The general rule appears to be that, where the interests of innocent third parties are not affected, a bank has the right to. charge back a dishonored draft which has been credited to a depositor’s account as cash. Credit extended to a depositor in anticipation of collection of a- draft is ordinarily deemed provisional, and the bank may cancel the credit or charge back the paper to the depositor’s account, if it is not paid. (Prescott v. Leonard, 32 Kan. 142, 4 Pac. 172; Noble v. Doughten, 72 Kan. 336, 345, 346, 83 Pac. 1048; City of Philadelphia v. Eckels, 98 Fed. 485; First National Bank v. McMillan, 15 Ga. App. 319; Ayres v. The Farmers & Merchants Bank, 79 Mo. 421; Hendley v. Globe Refinery Co., 106 Mo. App. 20; Jacob v. First National Bank, 5 Ohio Dec. 572; Rapp v. National Bank, 136 Pa. St. 426; 7 C. J. 633.)
Counsel presents - a line of argument based on the assumption that the obligation to reimburse the bank was on Ptacek, and not on Schaefer, and that Schaefer’s promise to “make it all right” was an unenforceable oral promise to answer for Ptacek’s debt. But between the original parties, Schaefpr, Ptacek, and the bank, there was no debt, no liability on the part of Ptacek. The mere form of the draft was not important. The true relationship of the parties was a proper subject of judicial inquiry. (3 R. C. L. 1122, 1123.) Ptacek, or Ptacek’s produce association, was only the nominal drawer of the draft; it was drawn in Schaefer’s behalf, and he received the benefits of it from the bank. (Gen. Stat. 1915, § 6588; 3 R. C. L. 1140.) It was to “make it all right” on a transaction of his own, not Ptacek’s, that Schaefer made the promise.
Aside from the brief of his counsel, the defehdant addresses a personal letter to the court, urging matters which a supreme court has no right to consider. Doubtless the defendant did not understand that the- case we have to review is the one which was tried by the district court, and that we have no authority to make an independent investigation of the matter. But we can only examine the record which the appellant has brought tq this court. It is only with alleged errors made in the trial court that the supreme court has to deal, and no error made by the trial court in this case is shown in the record. Consequently the judgment must be affirmed, and it is so ordered.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a conviction on a charge of robbery. To supply the place of a transcript, the trial court made such a record as is necessary to present the question argued by the defendant. The material parts of that record are as follows:
“In his opening argument to the jury, Mr. J. B. Wilson, county attorney, made, in substance, the following remarks to the jury:
“.‘He has taken the stand himself and he has brought here his father and mother to testify that he was at home that day. His wife, even, isn’t here to testify.’.
“The attention of the court was called to this remark a few moments after it was made, by one of counsel for defendant who approached the bench and stated in. a whisper that he desired the remark made a part of the record. The court stenographer was not in the room at the time the argument in question was made.
“The defense in this ease was an alibi. The father and mother of the defendant testified that he was at home for supper and the testimony of two or three other witnesses being that he was in their company or seen by them later in the evening.
“The crime was alleged to have taken place between eight and nine o’clock in the evening, and the defendant was alleged to have been at Linwood, Kan., on a freight train, and to have ridden the same to Lawrence where the alleged crime was testified to have been committed, i. e., that the theft was from the person of a brakeman on said train as it' stood on the track at the City. The circumstances of the case were such that the defendant could not have ¡been at home for supper, at the time he claimed to have eaten supper, and at Linwood.”
The defendant complains of the conduct of the county attorney, and asks that the judgment be reversed and that a new trial be granted. Section 215 of the code of criminal procedure, in part, reads:
“That no person on trial or examination, nor wife or husband of such person, shall be required to testify except as a witness on behalf of the person on trial or examination: And further provided, That the neglect or refusal of the person on trial to testify, or of a wife to testify in behalf of her husband, shall not raise any presumption of guilt, nor shall that circumstance 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.” (Gen. Stat. 1915, § 8130.)
It has been held error for the county attorney to refer to the fact that the defendant did not testify. (The State v. Balch, 31 Kan. 465, 2 Pac. 609; City of Topeka v. Myers, 34 Kan. 500, 8 Pac. 726; The State v. Tennison, 42 Kan. 330, 22 Pac. 429.)
By the same reasoning and under the same statute and decisions, it must be, and is, held error for the county attorney to refer to the fact that the defendant’s wife did not testify.
Section 293 of the code of criminal procedure must be read in connection with section 215. Section 293 reads:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Gen. Stat. 1915, § 8215.)
Under this statute it has been repeatedly held that to cause a reversal of a judgment in a criminal action, the-error committed must affect a substantial right of the defendant. In The State v. Brooks, 74 Kan. 175, 85 Pac. 1013, this court said:
“To justify a reviewing court in ordering a new trial in a criminal case because of the infraction of the statutory rule that the omission of the defendant to testify shall not be considered by the jury, it must conclusively appear that the jury or some one of them in arriving at a verdict gave weight to the fact that the defendant did not take the stand in his own behalf, as a circumstance tending to establish his guilt.” (syl. ¶ 2.)
This rule was followed in The State v. Dreiling, 95 Kan. 241, 147 Pac. 1108. In The State v. Fleeman, 102 Kan. 670, 171 Pac. 618, this court said:
“The code of criminal procedure was framed to> supersede the common law with a more rational system. While it is defective in many respects, and in many others exhibits a conservatism which contrasts strongly with its general liberality, it is distinctively modern. The tradition of the common law, however, was so strong that it) came near superseding the code. In time the code was rediscovered, and it is the purpose of the court to interpret and apply it according to its true intent and spirit.” (p. 677.)
Under all the circumstances, it is highly improbable that the verdict of the jury was influenced by the remark of the county attorney. It does not appear that the jury was so influenced and, therefore, the judgment will not be reversed.
The State v. Balch, 31 Kan. 465, 2 Pac. 609; City of Topeka v. Myers, 34 Kan. 500, 8 Pac. 726; The State v. Tennison, 42 Kan. 330, 22 Pac. 429, are overruled in so far as they hold that a judgment of conviction must be reversed — notwithstanding that the error does not prejudicially affect any substantial right of the defendant — for a mere reference by the county attorney to the fact that the defendant has not testified.
The judgment is affirmed.
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opinion denying a rehearing.
The opinion of the court was delivered by
Dawson, J.:
In a petition for a rehearing some minor matters are again urged upon our attention which were not discussed in the court’s opinion in this case. (101 Kan. 452.) We note them now. No legal significance is attached to the letter of the city clerk dated November 1,1910, addressed to pláintiff, giving notice that the city “will discontinue the use of street lights furnished by your company under contract, which expired on the 31st day of June, 1910,” etc. As we have seen, the contract did not expire in June, and if plaintiff had given countenance to this letter it would have but added another circumstance to the incidents discussed in our former opinion upon which the defendant relied to establish a waiver. The same observation may be made as to the telegram of January 4, 1911, sent to plaintiff by one of the city commissioners, threatening certain consequences if plaintiff did not remove its property within fifteen days. That telegram did not terminate the contract. These incidents merely tend to show that the city was seeking some strategic means of getting rid of its con tractual relations with plaintiff. It does not fall within a court’s province to teach parties how they may effectively breach and terminate their contracts, but some reference thereto will be found in Construction Co. v. Sedgwick County, 100 Kan. 394, 164 Pac. 281.
A suggestion is made that the.trial court will not know what judgment to enter, intimating that there is some dispute as to the proper computation of interest. This matter was not raised in the appeal, but it may be helpful to say that the defaulted payments for the lighting services performed should only draw simple interest at the 'legal rate from the dates when they were severally due under the contract. Of course, the damages for the breach of the contract do not begin to bear interest until the judgment is rendered.
Rehearing denied.
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The opinion of the court was delivered by
Mason, J.:
Alfred Zane brought an action in" Shawnee county against Mary Zane Vawter, who first filed.an answer, and afterwards moved to dismiss the case for the reason that the court had no jurisdiction of the subject matter. The motion was sustained, and the plaintiff appeals.
The petition alleges that the plaintiff is an heir pf Susan Zane, who in her lifetime was the owner of a quarter section of land in Kingman county; and that the defendant by fraud obtained from her a deed to the land. ' The prayer is that the deed be set aside and the defendant be directed to deliver it up for cancellation, and “also for such other and further relief as may be consistent with the premises and with the principles of equity.” The case was dismissed on the theory that the action was local and could only be maintained in Kingman county. The statute includes in the enumeration of actions which “must be brought in the county in which the subject of the action is situated” those “for the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest, or to bar any defendant therefrom.” (Gen. Stat. 1915, § 6938.) Jurisdiction of an action of the character described in the language quoted is exclusive in the district court of the county in which the real property is situated. (Randall v. Ross, 94 Kan. 708, 147 Pac. 72.) The present case in one aspect falls within the description. So far as the relief sought is the setting aside of the deed, and that is specifically asked, the action is local and cannot be maintained in Shawnee county. But the plaintiff also asks for any equitable relief to which he may be entitled, and the dismissal was erroneous if the facts stated are such as to authorize any relief which the court had jurisdiction to order and enforce, for a prayer for relief which the court has no power to grant does not vitiate the pleading, but may be rejected as surplus-age. The district court of Shawnee county could not render any effective decree operating directly upon the title to or possession of land in Kingman county. It could not cancel the deed executed by the plaintiff’s ancestor. If it could order the surrender of the deed, that would not be an effective remedy, for such surrender would not necessarily cause the title to revest in the grantor, or in the grantor’s heirs. But it could, upon a sufficient showing, order the defendant to execute a deed to the plaintiff. If the district court of Kingman county were to make such an order, and it should not be complied with, the judgment itself would operate as a conveyance. (Gen. Stat. 1915, § 7302.) No such effect could be given the decree of the Shawnee district court, for it has no jurisdiction over the land. But although that court has no control over the “rem,” it has over the person of the defendant, and it may, in the exercise of its equitáble jurisdiction, investigate the allegations of fraud, and, if it finds them well founded, direct the defendant to take such action as will rectify the wrong, and undertake to compel obedience thereto by process directed against her personally. True, the remedy thus afforded is not complete. If the court should order the defendant to execute a deed and she should be committed for contempt in refusing to do so, the title would remain unchanged until she should see fit to act, and the court would have no power to affect it directly in any wav. The remedy could not on that account, however, be regarded as necessarily ineffectual. The presumption should be that the order of the court would be obeyed, rather than that it would be disregarded. (Meador v. Manlove, 97 Kan. 706, 709, 156 Pac. 731.) Moreover, in a subsequent local action in King-man county the decision in Shawnee county might be invoked as a conclusive adjudication upon the issue whether or not fraud had been committed.
These conclusions follow from the application of principles upon which there is a substantial agreement of judicial opinion. Courts frequently render judgments against persons, the effect of which is to constrain action affecting the title even to lands in other states. (Notes, 69 L. R. A. 673; 23 L. R. A., n. s., 924.)
“It is well settled that actions involving title and possession of real property are local in character and can be tried only in the state wherein the land lies, but it is equally well settled that, jurisdiction having been acquired, equitable relief may be afforded without regard to the location of the subject matter where it is enforceable against the person of the defendant.” (Caldwell v. Newton, 99 Kan. 846, 848, 163 Pac. 163.)
An action brought by the plaintiff in Shawnee county, to compel the defendant to execute a deed, conveying to him land in Kingman county, is not (within the meaning of the statute) one “for the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest, or to bar any defendant therefrom,” because such statutory language is generally (and as we think, rightly) construed to refer only to proceedings for the direct accomplishment of the results indicated, by a judgment operating upon the property itself. That interpretation detracts nothing from the efficacy of the law with respect to its chief purpose — to require transactions affecting'the title to real estate to be of record where it is situated. It is based upon the well recognized distinction already referred to between decrees which in themselves determine or affect titles, and those which by operating upoh the defendant personally may indirectly bring about such a changed condition through action on his part. (40 Cyc. 57-60.)
The judgment is reversed, and the cause is remanded with directions to overrule the motion to dismiss.
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The opinion of the court was delivered by
Mason, J.:
On March 4, 1915, a written contract was entered into for the sale of land by M. S. Gillidett to James H. Hayden. It provided for the payment of $1,100 down and $5,000 on August 1,1915, and for the giving of a mortgage for the balance of $14,000, with interest at seven per cent from the date titles were approved. The deal was carried out, but in the settlement interest was computed only from August 1, 1915. Gillidett brought an action against Hayden alleging that the title had been approved on March 6, and asking for interest from that date to August 1, amounting to $392. The plaintiff recovered, and the defendant appeals.
At the conclusion of the plaintiff’s evidence the defendant demurred. The demurrer was overruled, but the plaintiff asked leave to introduce further evidence. The request was granted, and more, evidence was given. The demurrer was then renewed, and again overruled. The defendant assigns error upon each of these rulings. The reopening of the case was within the discretion of the trial court, and the only substantial questions involved are whether incompetent evidence was admitted, and whether the evidence was sufficient to support a finding that the title was approve^ on March 6.
On that date the attorney who made the examination for the defendant reported that the title was good and marketable, subject to a mortgage for $4,000. He added that if any improvements had been made within four months, proof should be furnished that the labor and material had been paid for, and that if the land was occupied by any one other than the plaintiff,^ inquiry should be made as to the claims of the occupant. In other words, the effect of the report was that the record title was clear (subject to the mortgage), but that grounds for mechanics’ liens might exist without a lien statement having been filed, if improvements had been made within four months, and that a claim under an unrecorded instrument might be good if made by some one in possession. There is no suggestion that any such improvements were made, or that any one else was in possession, and these matters did not involve any delay in passing on the title, and apparently are not relied upon as having had that effect. But the mortgage referred to was not released until the $5,000 was paid, in August, being satisfied out of that payment. The defendant maintains that the title' was not cleared and was not approved until the mortgage was discharged, and that he should not be required to pay interest until that time.
The plaintiff contends that within the meaning of the contract the title was to be regarded as approved when he had shown to the satisfaction of the defendant his ability to perform his contract; that the existence of a mortgage for a less amount than the payment to be made in August did not prevent the approval of the title; and that if there would otherwise have been any doubt about this proposition, it was put at rest by the fact (to which he testified) that there had been an understanding between the parties that the mortgage was to be paid out of the $5,000 installment due in August. The defendant insists that -the plaintiff’s testimony regarding this understanding was incompetent, because it was hearsay, being based on what others had told the witness. When the evidence was offered it was objected to only on the ground that it tended to vary the written agreement. On cross-examination it was developed that most of the plaintiff’s information on the subject was derived from what his own agents had told him, but it was not made clear that he was entirely without direct knowledge concerning it.
The written contract contained a paragraph reading as follows:
“Said first party [the plaintiff] is to furnish within a reasonable time an abstract of title certified to date by a bonded abstracter, showing a good and merchantable title to .the said premises, clear of all incumbrances or liens except. It is also agreed that said purchaser is to pay the interest on a certain $4,000 mortgage now on said land from date of contract to the -date the $5,000 paymént is made at 8 per cent.”
The provision that until the time arrived for the payment of the $5,000 installment the purchaser should pay interest on the $4,000 mortgage at 8 per cent — that being the rate borne by the mortgage debt — Seems.inconsistent with the idea that the existence of the mortgage could constitute an obstacle to the approval of the title. It plainly suggests an expectation of the parties that the mortgage should be satisfied out of the $5,000 payment. If it does not in itself amount to an agreement to that effect, it forms a basis for the admission of oral evidence to show that such was the understanding of the parties. We therefore think that there' was no error in the admission of the testimony referred to, and that the evidence is sufficient to support the decision.
The judgment is affirmed.
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The opinion of "the court was delivered by
West, J.:
The city appeals from a judgment recovered by the plaintiff for damages caused by being trampled while in the employ of the city caring for horses used in connection with its fire department. He alleged that he was 65 years old and was making $2 a day. The injury was on February 15, 1916, and on the 24th of March, thereafter, he drew $33.75 and signed a paper called a final receipt, for which he alleges there was no consideration, as the amount paid him was only a part of the compensation due. He also pleaded inadequacy, fraud, and mutual mistake. The jury were charged that the only ground upon which the release- could be set aside was that of mutual mistake as to the extent of his in juries,, and gross inadequacy. The verdict was for $590.25. The plaintiff is an unlettered man and spent 30 years of his life with Barnum’s circus. He testified to receiving injuries on the legs, and a rupture, and also injury in the back; that he wore a bandage on one leg for three or four weeks; that he was in bed off and on for ten or twelve days,- then got up on crutches and walked around; that he attempted to do work at other places and had been discharged for physical inability; that the city doctor came to see him, did nothing for one leg, and bandaged the other “and put a little splinter on it,” and said he would be up in two or three days. Eleven or twelve days thereafter he sent for another doctor, whom he saw several times. This doctor advised him not to do any work until he got better. He twice saw still another doctor who gave him some medicine and, like the one just mentioned, told him he was ruptured. He went to numerous other physicians, but appears, nevertheless, to have taken charge of his own case to quite an extent. He testified that he was told to go over and draw his wages, which he supposed he was doing when he signed the paper. At the time of trial he testified that he had not done anything for five or six months until the preceding week. He seems to have tried to work at numerous places, but failed on account of his inability to perform the required tasks. When he signed the paper he had not attempted to do any work, and did not know what effect his injury would have upon his ability to work. The superintendent of the waterworks testified that he went to see the plaintiff about ten days after the injury and later, when he came to the city hall, that he gave him the address of Mr. Barry, an attorney in Kansas City, Mo., who was representing the city; that the plaintiff thought he would be able to go back to work the following Monday morning. The paper recites the payment of $33.75—
“Said'amount being such part of my weekly wages for the period of four and one-half weeks from the 23d day of February, 1916, to the 25th day of March, 1916 (both dates.included) as I am entitled to, and making in all with the weekly payments already received by me, the total sum of Thirty-three and 75/100 Dollars ($33.75) such payment being the final payment of compensation under the Workmen’s Compensation Law op Kansas.”
It recites the release and discharge of all claims and demands, past, present, and future. Mr. Barry testified:
“'Q.' $15.00 a week and you allowed him seven dollars and a half a week? A. Yes, sir.
“Q. It had then been four and one-half weeks that he had been off? A. No; for four and one-half weeks which would have been up to the day he said he was going to return to' work.
“Q. Well, we will assume you figured it will be four and one-half weeks, then he would actually be entitled to $33.75 up to the daté he went to work? A. Well, you can figure it.
“Q. You gave him what he was entitled to? A. Under the law I gave just what that says.
“Q. You gave him just what he was entitled to up to the day he was going to work? A. Yes, sir.
“Q. Then you took the release from him for the rest of the eight years, didn’t you? A. No, sir; I didn’t.
“Q. In addition to what he was entitled to you took a release of this? A. I took that document, whatever you have in your hand, and it will speak for itself.”
Enough of the evidence has been recited to show that at the time the paper was signéd the plaintiff thought he would be able to go to work again for the city. It is apparent from Mr. Barry’s testimony that he thought likewise and intended by the use of the instrument in question to foreclose any further claim for the injury already sustained. Acting in good faith, as he seems to have done, it is but natural to assume that both he and the plaintiff believed that the material results of the injury had disappeared, and that no substantial difficulty on account thereof would thereafter arise in plaintiff’s doing his former work. It is not only fair, but reasonably clear, therefore, that both parties were acting under a misapprehension of a real condition — in other words, were mutually mistaken— and it must go without saying that in view of the real condition the amount paid was, beyond all question, inadequate. No > reason in equity or in law appears why the mistake should not be corrected and the real injury be compensated for. Of course, there is the usual dispute as to the extent of the injury, and the usual conflict in the medical evidence, but these things were for the jury, and there appears in the record sufficient basis for their conclusions.
The judgment is affirmed.
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The opinion of the court was delivered by
Milton, J.:
The note sued on herein by Martin Coryell was given to him by George W. Combs and U. B. Pearsall, two of the parties in this action, on August 16, 1889, for borrowed money in the sum of $1000. Judgment was entered against them as sureties and against the Bank of Fort Scott and the Hart Pioneer Nurseries as principals on the note. The makers of the note were then partners under the firm name of the Hart Pioneer Nurseries. Being heavily indebted, principally to the Bank of Fort Scott, they organized a corporation with a capital stock of $60,-000, divided into 600 shares, each of the partners receiving $15,000 thereof, and $30,000 (except three shares of $100 each'which were held by three other parties) being “treasury stock.” It was expected that the last-named stock could be sold at par and the entire indebtedness of the corporation, as successors to the partnership, thus discharged. The partnership presented to the corporation a statement of its liabilities, and the corporation expressly assumed such liabilities, in consideration of the transfer to it of all the assets of the partnership.
The note sued on herein.was not among such liabilities.
It appears that, as a result of various manipulations, at the time this action was commenced the Bank of Fort Scott held, by two separate transfers, all the capital stock, which had belonged to Combs and Pearsall, and had assumed all the liabilities of Combs and Pearsall growing out of their connection with the, corporation. There is nothing in the record tending to show that the plaintiff was led by any act or promise of the corporation to look to it for payment of his note. The record does show that while Pearsall was secretary of the nursery corporation and acting as its business manager he paid fifty-five dollars on the plaintiff’s note. At the time of such payment, Charles Nelson, an officer of the Bank of Fort Scott, was president of the nursery corporation, and the payment was made without Nelson’s previous knowledge. When the latter discovered it had been made he protested against it. The by-laws of the corporation gave the secretary no such power of payment as he thus assumed, and there is no evidence that the directors ever ratified or approved the payment. The liability of the nursery corporation and of the Bank of Fort Scott, as claimed by the plaintiff, grows out of the fact that, when Combs and Pearsall by separate written agreements transferred their interests in the nursery corporation to the bank, the latter assumed their liabilities as members of such corporation, and that the nursery corporation, through the action of Pearsall as manager, had, by payment on the note, assumed the liability therefor. Unless, therefore, the record clearly shows that the nursery corporation, as a corporation, authorized Pearsall to make payment on plaintiff’s note, or thereafter with knowledge of such payment ratified the same, there can be no liability on the part of the nursery corporation or of the bank, as principal or otherwise, on said note.
In our opinion, the record contains no substantial facts to indicate either previous authority for or subsequent ratification of the payment made by Pearsall on plaintiff’s note after the corporation assumed the liabilities of the partnership, 'as the same were set forth in writing at the time such assumption was formally made. The only evidence tending in this direction is the bare statement by Pearsall of his conclusion that the corporation assumed the payment of plaintiff’s note. The principle of law governing this case is well stated by Judge Thompson in his Commentaries on the Law of Corporations, volume 4, section 5324 :
“ Closely allied to the matters considered in the two preceding- sections is the case .where a corporation which has been organized out of a previous partnership is proceeded against for a debt of the partnership. The corporation is a distinct person in law from the partnership ; the promise of the partnership is not the promise of the corporation; an action upon such promise will not lie against the corporation, in the absence of a ratification or adoption ; but it is necessarily a new contract, which must proceed upon a new consideration good in law. Moreover, as it is a contract-by one person to pay the debt of 'another, it must be in writing, in order to be good under the statute of frauds. The mere fact that the promise was made by the same person, who was president of the association both before and after its incorporation, and that he-renewed the promise of the corporation by parol after its organization, and while acting as its president, did not create a liability on the part of the corporation.”' (Citing Georgia Co. v. Castleberry, 43 Ga. 187.)
As before stated, we find no evidence of a ratification by the corporation, with knowledge, of the act of its officer, Pearsall, in making the payment from», corporate funds on the plaintiff’s note. Pearsall acted, in his own interest and adversely to the interests of' the corporation. His knowledge was not, therefore» the knowledge of the corporation in respect to the payment so made.
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
Milton, J.:
This was an action by Richard Smith to foreclose a real-estate mortgage executed and delivered to the Howard State Bank by Annie De Pontia, and duly assigned by the bank to the plaintiff. The mortgage was executed by Mrs. De Pontia for herself and as guardian for her minor children, authority to-execute the same having been given by the probate court of Crawford county. The mortgage secured a note of $300. Mrs. De Pontia and her children, who-were all minors, were made parties to the action. The guardian ad litem for the minors answered by a general denial. It was conceded that the plaintiff was entitled to a personal judgment against Mrs. De Pontia. All the defendants made default except F. W. Henry and the minor defendants. Henry’s answer averred substantially the following facts : Prior to the institution of the action the defendant Annie De Pontia had made a contract with the Carey-Lombard Lumber Company, whereby it had delivered to her certain lumber and materials for. the construction of a dwelling-house upon the premises described in the mortgage, and had filed a mechanic’s lien for such lumber and materials in the office of the clerk of the district court of Crawford county. The lumber company brought an action to enforce its lien against Mrs. De Pontia and certain subcontractors, and joined the Howard State Bank also as a defendant. The bank filed an answer averring ownership of the note and mortgage sued on in the present action. The court found generally in favor of the plaintiffs and against the defendants, decreeing the plaintiff to have a first lien on the real property and ordering the same to be sold to satisfy the judgment in favor of the lumber company. An order of' sale was duly issued in that action and the real estate was sold by the sheriff. Henry purchased the same at the sheriff’s sale. He had no knowledge that the De Pontia note and mortgage had been sold and delivered by the Howard State Bank to the plaintiff, Richard Smith. The plaintiff’s demurrer to this answer having been overruled, he filed a reply averring that the Howard State Bank had no authority to appear for him in the action begun by the lumber company, and that if the bank had so appeared and pleaded, the same was done without the knowledge or authority of the plaintiff, the owner and holder of the note and mortgage. The reply also specifically denied the authority of Mrs. De Pontia to enter into the alleged contract with the lumber company by which the mechanic’s lien had been obtained.
Trial was had on an agreed statement of facts, which, besides admitting substantially all of the averments of Henry’s answer, set forth that the latter was in possession of the premises under the. sheriff’s deed when the present action was commenced; that he purchased the property relying on the record of the case in which the sale was made and on the records in the office of the register of deeds, and was a bona, fide purchaser for cash; that the contract for the building material under which the lien was obtained was made by Mrs. De Pontia without the approval or order of the probate court; that the improvements were placed upon the home of Mrs. De Pontia and her minor' children ; and that while the note sued on herein was assigned in writing to the plaintiff on June 30, 1890, by the Howard State Bank, which guaranteed the payment thereof, the mortgage was not assigned but was merely delivered to the plaintiff. The court entered judgment in favor of the plaintiff as against Mrs. De Pontia for the amount 'of the note, and in favor of the defendant Henry as to the real property, foreclosure of the mortgage being refused.
Counsel for plaintiff in error contend that the mechanic’s lien, the judgment enforcing the same and the sheriff’s deed to F. W. Henry were all invalid, for the reason that Mrs. De Pontia could not bind the estate' of her wards by a contract for the erection of permanent improvements upon the land in controversy. They also contend that the assignment of the promissory note' and the delivery of the mortgage to the plaintiff transferred to him all rights under, both instruments held by the Howard Investment Company prior to such assignment and delivery, and that the law as it then existed did not require the assignment of a real-estate mortgage to be recorded. As we view the case, the last contention alone requires consideration.
The note was assigned, not indorsed. The Howard Investment Company appeared from the record to be the owner of the mortgage. Any inquiry suggested by the record as to the ownership of the mortgage would have been made of that company. ' When the latter was made a defendant in the action brought by the lumber company, it answered all inquiries concerning such ownership by averring that it was in fact the owner of the note and mortgage. The defendant Henry was not a party to that action. In purchasing at the sheriff’s sale he relied on the records as they existed in the register’s office and in that of the clerk of the district court. He purchased in good faith for a valuable consideration. The plaintiff has nowhere alleged fraud on the part of the investment company, nor collusion between any of the parties in that action and the purchaser at the sheriff’s sale. The appearance by the investment company and its participation in the litigation in that action which terminated in a judgment declaring the mechanic’s lien superior to that of the mortgage had the same effect as if the investment company, asserting the ownership of the mortgage, had released the mortgage by an entry on the margin of the record thereof in the office of the register of deeds, thus bringing the transaction within the doctrine of the case of Lewis v. Kirk, 28 Kan. 497, in which the first paragraph of the syllabus reads :
“ Where real estate is mortgaged to secure the payment of a negotiable promissory note, a third jDerson may purchase the real estate in good faith, although he may not see the note and mortgage, although he may not pay the full value of the land, and although the mortgagee may not receive the full amount of the face of the note, provided that both mortgagor and mortgagee consent to the transaction, and the mortgagee, prior to the completion of the transaction, regularly releases the mortgage by an entry on the margin of the record of the mortgage in the office of' the register of deeds.”
In the action involving the mechanic’s lien, the- original mortgagor and mortgagee were parties defendant. No question was therein raised as' to the absence of necessary parties or as to the invalidity of the lien. All questions which might have been litigated in that action must be held to have been determined therein so far as the rights of the purchaser of the property involved are concerned, for he purchased in good faith, relying on the records of the county. Under the circumstances, the judgment of the court declaring the mechanic’s lien superior to the lien of the mortgage was equivalent to a discharge of the mortgage by the act of the mortgagee with the consent of the mortgagor, and no legal means appear by which the plaintiff can recover the rights which passed from him through that judgment.
It follows from the foregoing that the judgment in the present case was correct, and it will be affirmed.
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The opinion of the court was delivered by
Milton, J. :
On May 19, 1893, the defendant in error, a banking corporation doing business at Osage City, made a statement of its property subject to taxation for that year, as follows: “Shares in national bank, amount capital, $50,000.” The assessor thereupon assessed said stock at $16,291, from which he deducted the assessed valuation of the bank’s real estate, leaving the personal-property valuation at $13,085. The statement was thereafter duly filed in the county clerk’s office, together with the assessor’s verified report as required by law. On Monday, June 5, 1893, the county commissioners of Osage county met at the court-house. The minutes of the meeting, as entered of record by the county clerk, begin as follows :
“Lyndon, Kan., Monday, June 5, 1893. — The board of county commissioners of Osage county, Kansas, met in regular monthly session. Also, as a board of equalization, pursuant to law. Present: Commissioners Morgan, Sowell, and Crum, Geo. Rodgers, county clerk, and Ellis Lewis, county attorney.”
The first four items of business transacted related to assessment and taxation. Then followed the allow anee of a number of claims against the county. The last item of that day’s business related to a personal-property assessment. The minutes close in these words: “Adjourned by order of the board to meet June 6, 1893.” The minutes for June 6 begin as follows :•
“Lyndon, Kan., Tuesday, June 6,1893. — The board of county commissioners of Osage county, Kansas, met pursuant to adjournment. Present: Full board, county attorney, and county clerk.”
The first business transacted on that day was the allowance of a number of claims. Afterward two personal-property assessments were reduced “by order of the board.” All of the subsequent transactions appear to have been performed by the board of county commissioners, and the last statement in the minutes reads: “Adjourned by order of the board, to meet June 7, 1893.” The minutes for June 7 begin in the same words as do those for the two preceding days, and it appears that only two items of the very large volume of business transacted related to assessments. No mention is made of an adjournment, but the minutes of the next day begin in the same language as do-those of the preceding meetings. The first entry in the minutes for June 8 is like that in the minutes of June 6. The first business transacted was by the board of'commissioners, and several claims were allowed. Then follows this entry :
‘ In the matter of the several banks of Osage county, the county clerk was directed to equalize the assessment of said banks upon a basis of fifty per cent, of the actual value, including the capital stock and the surplus, allowing no credit for premiums. By order of the board.”
The minutes show that afterward other business was transacted by the board of county commissioners and. that “the board” adjourned. On June 9, all the proceedings were by the board of county commissioners, which adjourned to meet June 19. On June 20 the county clerk made certain entries on the personal-property statement of the defendant in error and on the assessor’s book in pencil, increasing the assessed valuation of the bank’s property to $21,442, accompanied by the statement that it was “assessed by order of board, June 8, 1893.”. The taxes for 1893 were computed and extended on the tax-roll in accordance with , such increased valuation, the bank’s personal tax being $1155.07. Of this it paid $677, the proper amount on the basis of the original assessment, leaving a balance unpaid of $478.07. The county treasurer was about to issue a warrant for the collection of this balance, when, on July 13, 1894, the present action was commenced, and on the same day a temporary injunction was granted restraining him from collecting such unpaid tax and from issuing any warrant for that purpose. The petition alleged that the assessment had been made and returned according to law by the city asssessor, and that such assessment had been illegally changed and raised by the county clerk of Osage county, under an order of the board of county commissioners of that county. The defendant’s demurrer to the petition was overruled, and he thereupon filed an answer containing a general denial only. On these pleadings a trial was had by the court, resulting in a perpetual injunction against the collection of the tax.
The bank having introduced the minutes already referred to, showing that the increase of its assessment was ordered to be made by the board of county commissioners as such, the defendant offered to prove by each of the commissioners that the- record of the proceedings of the board of equalization on the dates above named was kept on slips of paper, with the intention that the same should be transcribed and recorded ; that the county clerk failed to copy into the journal of proceedings of the commissioners the acts done by the board of equalization ; and that by a mistake the county clerk failed to make the minutes show that during the sessions of the board it would act sometimes as a board of county commissioners and sometimes as a board of equalization, and when acting as a board of equalization it was so declared by the chairman, and that it did not pretend to be acting as a board of county commissioners in the equalization of the taxation of any property whatever. Defendant offered to prove, also, that when the action was taken in respect to the assessment of the bank’s property the board was acting as a board of equalization, and that the slips on which the memoranda of such matters were entered had been lost. The court sustained the plaintiff’s objection to the introduction of such testimony,
The foregoing facts affirmatively show that the board of county commissioners of Osage county was in regular session on the 5th, 6th, 7th, 8th and 9th of June, 1893, and that on the latter day it adjourned to the 19th of the same month. It further appears that the county commissioners met on the first-named date as a board of equalization, and that certain acts which would properly have been done by the last-named board were done on each of the first four of said days. The whole number of such acts probably did not exceed twelve, whereas the items of business transacted during those days by the board of county commissioners numbered probably 300. The record does not show that the board of equalization, as such, adjourned on June 5 or that it was reconvened on any subsequent day. We think it must be held that the board of county commissioners, in addition to their usual functions, attended to the few items of equalization work which came before them, and that, as a matter of fact, the board of equalization was not in session on-any of said days, except, possibly, on June 5. The offer by the defendant below to prove that the minutes of the board of equalization were kept on slips of paper, which had been lost, was properly rejected, for the reason that the minutes of the board of county commissioners contained the entry under the authority of which the increased assessment of the bank’s property was made. The defendant did not offer to prove that the board of equalization adjourned on June 5, and was duly'reconvened on June 6, and so on, for each day, until June 8, as appears to have been true of the action of the board of equalization whose proceedings were called in question in the case of Fowler v. Russell, 45 Kan. 427, 25 Pac. 871. There the court said :
“In the record of the proceedings it appears that the commissioners convened as a board of equalization on June 7, as required by law, and that they adjourned from day to day until June 15, when they completed the work of equalization and adjourned sine die.”
The record of that board of equalization was entitled : “ Proceedings of the Board of Equalization of Wabaunsee County.’’ Irregularities consisted in the fact that the proceedings of the board were occasionally interrupted in order that the members thereof might perform some of the functions of the board of county commissioners, while here it appears that the board of county commissioners at rare intervals performed some of the functions of the board of equalization. An examination of the original record in the foregoing case has shown that the distinction we have' pointed out between the two cases is marked.
It is not necessary to determine any other questions presented to us, but it is not improper to observe that the action of the county clerk in changing the assessment was merely clerical and would be upheld if the proceedings of the board of equalization had been valid. For the reasons we have stated, the judgment of the district court will be affirmed.
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Per Curiam:
Plaintiff in error sued the defendants in error to foreclose a mortgage made by one John A. McDonald. McDonald was not made a party to the suit. The petition alleged the making of the nóte and mortgage by McDonald; that at that time McDonald was the owner and in possession of the mortgaged premises ; and that the defendants Reed and wife “claim some title or interest in said property under and through" the grantees of the said John A. McDonald.” The petition further alleged default in the payment of interest, taxes, and principal, and asked for a foreclosure of the mortgage. The note and mortgage were attached -to the petition as exhibits and made a part thereof. The note was dated October 15, 1886, and by its terms was due two years after date. The following indorsements appear upon the note :
“Received this Apr. 15th, ’87, on the within note, $55.00 (int.) Received on the within this 15th of October, 1887. Rec’d on within this Apr’l 15, 1888, fifty-five dollars interest. Received this 15th April, 1889, on the within, as six months’ interest, ($55) fifty-five dollars. Received on the within this 5 April, ’90, $55.00 forint., 6 mos., to Oct. 15, ’89. Rec’d on the within this 11th Feb’y, ’91, $55.00, six months’ interest to 15th April, 1890. Received on within Feb’y 4, 1891, $55.00, being six months’ int. to Oct. 15, 1890. Received on the within $55.00 Sept. 18, 1891, six months’ int. to Apr. 15, 1891. Rec’d on the within $55.00 May 12, 1892, 6 months’ interest to Oct. 15, 1891. Rec’d on the within note this 17, ’92, to April 15, 1892, O. H. Carpenter, Agt. Received July 11, 1893, six months’ interest on this note to Oct. Í5, 1892, of C. H. Carpenter, Agent.”
This action was begun July 10, 1895. The defendants answered, in substance : (1) A general denial; (2) that they are advised that the note and mortgage were executed as alleged, but decline to admit it specifically, and deny that such is the fact until the same are produced in court for their inspection; (3) they admit that they are the owners in fee simple and in possession of the property set forth and described in plaintiff’s petition, and deny that the note and mortgage are a lien in any manner on the property, or that they or their property are in any wise held therefor ; (4) a former recovery and sale of the property and an extinguishment of the mortgage thereby; (5) reiterating their plea of former recovery and merger of the cause of action in judgment, they allege that the action is barred on -the judgment by a one-year statute of limitations, being section 433 of the code (Gen. Stat. 1889, ¶ 4530, Gen. Stat. 1897, ch. 95, § 432) ; (6) that John A. McDonald or his heirs and legal representatives are necessary parties defendant; (7) that McDonald died in May, 1889, leaving a wife and four minor children ; that the note and mortgage were never presented to the administrator of the estate of John A. McDonald, and that the same are barred by the three-year statute of limitations, being section 81, chapter 37, of the General Statutes of 1868. (Gen. Stat. 1889, ¶ 2865 ; Gen. Stat. 1897, ch. 107, §81.)
To this the plaintiff replied, denying the matters alleged by way of defense, admitting that the defendants claimed title to the property described in the petition, and were in possession of the same ; but reiterating the averment that the defendants took said premises by deed of conveyance executed to Addie B. Need by the grantees of John A. McDonald, who made the mortgage described in the petition, and further alleging that such possession and title are junior and subject to the lien of said mortgage. After this reply was filed, the defendants filed their motion for judgment on the pleadings, which was allowed by the court, and the defendants had judgment for costs. It appears from the record that this motion was submitted without argument and was decided in the absence of the plaintiff and her counsel. Afterward a motion for a new trial was filed in due time and denied by the court.
The assignments of error are, that the court erred in sustaining the motion for judgment upon the pleadings, and erred in denying the plaintiff’s motion for a new trial. The questions presented are two : First, did the pleadings as a whole disclose a cause of action in favor of the plaintiff and against the defendants? And, second, does it appear from the petition that if ever a cause of action existed in favor of the plaintiff and against the defendants, as grantees of McDonald, it was barred by the five-year statute of limitations ?
It will be observed that at no time was this plea of the five-year statute of limitations urged by the defendants, either in their answer or by way of argument, prior to this proceeding in error. It is contended in behalf of the plaintiff in error that the petition, answer and reply disclose a good cause of action. "We are of the opinion that we need not resort either to the answer or to the reply to reach this conclusion. The petition alleges a subsisting cause of action on the plaintiff’s promissory note against McDonald. It alleges the making of the mortgage to secure the debt and that at the time McDonald made the mortgage he was the owner in fee simple and possessed of the estate. To make the Reeds necessary parties defendant, it is alleged that they claim an interest in the property, which they took by conveyance from the grantees of McDonald, the mortgagor. It is contended that it is nowhere alleged, either specifically or by implication, that this claim was junior and inferior to the claim of the plaintiff under her mortgage. We are unable to perceive how John A. McDonald, being the’ owner of the estate in fee and in possession, could part with his estate to his grantees, and his grantees thereafter part with the estate by conveyance to the Reeds, without creating a junior and inferior claim to the mortgage. Hence their presence as defendants, in order to enable the plaintiff to foreclose her mortgage, is a necessity. A cause of action for the purpose of foreclosure was alleged against them, and on this ground it was error for the court to sustain the motion for judgment on the pleadings.
On the other question the court was likewise in error. Section 123 of the code (Gen. Stat. 1889, ¶4206, Gen. Stat. 1897, ch. 95, § 119) adopts the Ohio short form of petition on a promissory note. This was an action on a promissory note. The foreclosure of the mortgage was an incident thereto. Section 123 of the code says :
“ It shall be sufficient for a party to give a copy of the account or instrument, with all credits, and the indorsements thereon, and to state that there is due to him, on such account or instrument, from the adverse party, a specified sum, which he claims, with interest.”
This was done. It was not necessary, in order to •charge the Needs — that is, to state a cause of action for foreclosure against them — that the allegations of the petition should also disclose a cause of action on the note against them. If a cause of action existed against John A. McDonald, their remote grantor, it was sufficient. In Pears v. Wilson, 23 Kan. 343, the facts of which are the same as in the present case, the court held that it appeared from the petition that the action was not barred by the statute of limitations. The court said :
“The court below held that the plaintiff’s note and mortgage were barred by the statute of limitations, •and, as between him and Leu, rendered judgment accordingly. In this we think the court below erred. •Section 108 of the civil code provides that, ‘in all actions, allegations of the execution of written instruments and indorsements thereon . . . shall be taken as true, unless the denial of the same shall be verified by an affidavit of the party, his agent or attorney.’ Now, no allegation of the petition concerning said indorsements on said promissory note was put in issue by any denial verified by an affidavit, and hence all said allegations and said indorsements must be taken as true. And everything that these indorsements will reasonably prove must also be taken as true, unless the contrary is shown to be true. Thus, it must be taken as true that on June 1, 1872, a payment of $100 was made on plaintiff’s said note and mortgage, and on April 2, 1874, another payment of fifty dollars was made on the note. See Greenleaf, Ev., §§ 121, 122. And, as men seldom pay debts unless they are liable to pay them, it must also be presumed that these payments were made by said John D. Wilson, who was liable on the note, or by himself and wife, who were jointly liable on the mortgage. Indeed, it will generally be presumed, where a payment is shown to have been made but where it is not shown who made it, that the party who is under legal obligation to make the same made it. (Scholey v. Walsby, Peake, 24.) It would be so much outside of the ordinary course of things — so unnatural — that any other person should make the payments, that no presumption or supposition of that kind could be indulged in for a moment; and presuming that Wilson, or Wilson and wife, made said payments, as the same are indorsed on said note, then neither said note nor mortgage was ever barred by any statute of limitations, not even as to the defendant Leu.”
The defendant Leu, in the case referred to, occupied the same relation to the property that the defendants Reed do in this case. There was no denial of the indorsements on the note, and the presumptions to be indulged in must be the same as those indulged in by the supreme court in the case cited.
The court erred in sustaining the motion for judgment upon the pleadings, and its judgment is reversed, and the case remanded with directions to overrule the motion and to proceed with the case in accordance with the views herein expressed.
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Per Curiam:
The defendant in error began this cause in the district court of Doniphan county to quiet her title to land situated therein, which the plaintiff in error claimed to have purchased at sheriff's sale. The only question involved in the case is, Was the land the homestead of the defendant in error, and therefore exempt at the time of the levy and sale ?
The first specification of error is that the court erroneously sustained the plaintiff’s demurrer to the second count of the defendant’s answer. This count of the answer was a plea of estoppel by judgment, and the question involved is whether an order confirming a sale, against the contention of the plaintiff that the sale ought not to be confirmed because the property was her homestead, is such an adjudication as concludes her. The court, in confirming the sale, found and adjudged that the proceedings of the sheriff in making the levy and sale were regular and for that reason ought to be confirmed, apparently ignoring the question of the homestead right of the defendant in error. In other words, her right to a homestead in the land was not adjudicated. Such an order has been held by our supreme court not to be res judicata. (Gapen v. Stephenson, 17 Kan. 613.) The facts alleged in the second .count in the answer constituted no defense to the plaintiff’s petition.
The second assignment of error is that the court erroneously admitted testimony in behalf of the defendant in error. Upon an examination of the record, it appears that the questions and answers copied in counsel’s brief were propounded by himself on behalf of his client, and not objected to by defendant in error. He has no cause to complain of the court’s admitting evidence at his own suggestion.
The third assignment is that the judgment is not sustained by the evidence and is contrary to law. There is sufficient evidence in the record, as we find upon examination, to sustain the finding and judgment of the court that the land was the homestead of the defendant in error. It is contended that because the plaintiff left the farm temporarily, with her twm infants, after the decease of her husband, and went to Atchison, where she endeavored for a time to earn a living for herself and children, and because she went to Falls City, Neb., temporarily, for a like purpose, that she had therefore abandoned her homestead in the land. But it appears from the evidence that her absence from the farm was merely temporary. The fact that her farming utensils remained on the farm all the time • supports her contention that it was her intention to return thereto and retain her homestead right therein. Preservation of the homestead for the family is considered of more importance than the payment of debts. (LaRue v. Gilbert, 18 Kan. 220.)
The seventh assignment of error is that the court denied the defendant’s motion for a new trial. There is nothing pointed out in the record by brief or argument of counsel which was a valid ground under the the statute on which to sustain said motion. The conclusion of the court is well sustained by the evidence, is eminently just, and is affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by Ro-ark against Greeno to recover $4000 damages alleged to have been sustained in the negligent, careless and unskilful extraction by Greeno of one of Roark’s teeth. The plaintiff alleged :
“That on the 14th day of March, 1896, defendant was engaged in the practice of dentistry in Junction City ; that plaintiff, desiring to have a tooth extracted, applied to defendant in his professional capacity to perform the operation in such manner as in defendant’s judgment was proper, which operation defendant engaged to perform with reasonable care and skill; that the defendant performed the operation for hire, but in so doing did not use reasonable care and skill; that on the contrary he negligently, carelessly and unskillfully used surgical or dental instruments which were then in an unclean, poisonous and septic condition, and did thereby injure, bruise, lacerate, puncture, poison and infect the flesh, tissues and membranes in plaintiff’s mouth, throat, and in, about and near the angle of the right lower jaw, and did thereby and by means of certain poisonous and dangerous drugs and medicines, whose names and properties are unknown to plaintiff, employed by defendant and injected into plaintiff’s flesh during said operation, in such quantities and in such strength as to be poisonous, injurious and dangerous to the life and health of plaintiff, and by the' means aforesaid, poison and infect plaintiff's blood ; that the plaintiff at the time of the operation was strong and robust, but immediately after the operation, by reason of the aforesaid careless, negligent and unskilful method and means by which defendant performed the operation the plaintiff became violently sick, suffering intense pain, which sickness and pain wholly prostrated plaintiff for many months; that the plaintiff’s mouth, throat, face, lower jaw, and right ear, by reason of the injuries, became immediately diseased and impaired in their functions and are at this time, and will remain permanently crippled and impaired in their natural use, and thereby, and by reason of the long and severe illness aforesaid,' plaintiff has become permanently impaired in general health and capacity for work.”
The defendant’s answer was a general denial, and an allegation that if plaintiff did sustain the injury of which he complains, the same arose from natural causes or pathological conditions, his own negligence, and causes other and different from those alleged in the petition. The reply was a general denial. A trial was had by the court and a jury, which resulted in a verdict and judgment for plaintiff for $2000. The defendant filed his motion for a new trial, which was overruled, and he presents the case to this court for x’eview. As plaintiff in error, he sets out nine assignments of error, but confines his ax’gument to foixr, .which we shall consider in their order.
The first assignxnent is that the court erx*ed in admitting ixicompetent, irrelevant and immaterial evidence, which was prejudicial to the rights of the plaintiff in error. Under this assignment of error, it is insisted that the hypothetical questions wex'e improperly allowed, for the reason that they assume that the hypodermic needle had been treated to an. aseptic process, axxd that they assxxme facts which are not supported by any evidence. Doctor King was asked:
“Q,ues. Now, if on the 14th day of March, 1896, the patient you have spoken of went to the defendant for the pui’pose of having a wisdoxn tooth on the right side of the lower jaw extracted, and if the defendant, setting about the extraction of the tooth, inserted a hypodermic needle which he had purchased, and which he did not treat to any aseptic process ; if he inserted that needle behind the wisdom tooth mentioned, penetrating the gum as far down as the root of the tooth ; and further proceeding to extract that tooth, he inserted in the gums of that patient around and about that tooth forceps which were contaminated with di’y blood, and that some three or four hours after that time the patient was seized with an attack of chills and fever, and shortly thereafter was seized with an attack of vomiting, and a severe headache ; and if on the next morning, on the 15th of March of that year, this patient so described was in the condition in which you found this plaintiff when you made the visit you have mentioned on that day, what would you say was the probable cause of his affliction or condition at that time?”
The objection to this question was that it was incompetent, irrelevant, and immaterial, and assumed a state of facts not proven. ■ •
Doctor Stone was asked :
“ Ques. If the plaintiff in this case, prior to the 10th day of March, 1896, was a healthy and vigorous man in every respect, and if he had not been subjected to any sort of a surgical operation and had not had his skin cut, incised or perforated for a long time prior to that time ; if on the 11th or 12th day of March, the same year of course, he was suddenly seized with nervous or jumping toothache, there being no swelling in the gums surrounding that tooth, the only visible defect about the tooth being a slight decay in the crown of the tooth, and if in fact there were no ulcerations or abscesses inflicting the tooth ; if that tooth after it first commenced to ache, ached at intervals for two or three days, it being alleviated at one time by oil of cloves, it coming on intensely whenever a drink of water was taken or the plaintiff attempted to masticate ; if on the 14th of this month (I began the story oh the 10th), if on the 14th of this month, the plaintiff, still in vigorous health in every respect, except for two or three preceding nights his sleep had been broken, he being riding on the cars two of those nights, he being kept awake a good deal of the night the other nights by reason of this toothache that has been mentioned; if in that state of sound health, with the exception of this toothache of the nature I have described, he went to the defendant in this case, who is a dentist, for the purpose of having that tooth operated upon ; if the dentist, in proceeding to operate on that tooth, inserted a hypodermic needle two or three times into the gums surrounding that tooth, and that needle was in an unclean or septic condition at the time it was used, then the dentist proceeded to extract the tooth, and the plaintiff then left the office; and if the plaintiff within a short time, some three or four hours after that operation, and on the same day, was seized with violent headache, chills, became sick at. the stomach to such an extent that he had to vomit, was so sick in this manner that he had to lie down after noon, that a fever speedily developed, that the next morning his pulse was 140, and his temperature was 106 ; and, further, the next morning the side of his jaw, commencing at or near the point where the hypodermic needle had been injected, was severely swollen, and remained severely swollen for a period of four or five or six months thereafter ; and if in six or eight days after that time, from the inside of the mouth, a half of an inch from the place where the tooth had been extracted, an opening was broken by the gathering of the pus at that place where the swelling existed, from which the pus proceeded to escape and did escape, and ran until the 10th day of April following, when an external incision was made which connected with the opening on the inside of the mouth and furnished further drainage for the pus ; and if in the extraction of that tooth only one root was removed and the other remained, and the place where the tooth was removed healed up in a short time, no escape of pus taking place from that place, no inflammation being excited there, except such as was made in all adjacent parts of the mouth by the escape of the pus into the mouth, I will ask you, doctor, what in your judgment was the cause of the trouble that I have mentioned? I should have said that, in addition to having fever and all that sort of thing, the patient was seized with an acute attack of septicemia. What in your judgment was the cause of this plaintiff’s sickness and affliction? ”
This was objected to as incompetent, irrelevant, and immaterial,, and because predicated on facts not proved. It will be unnecessary to examine the other hypothetical questions of which complaint is made, for the reason that the above questions contain all the objectionable features urged against such other questions. It is insisted that these hypothetical questions were predicated on many facts of which there was no evidence offered; that the questions assumed (1) that Greeno did not treat the hypodermic needle to any aseptic process and that it was in an unclean or septic condition when used ; (2) that he inserted the needle to the depth of the root of the tooth ; (3) that Roark was a healthy, vigorous man in every respect; (4) that he had not been subjected to any sort of surgical operation nor had his skin been cut, incised or perforated for a long time prior thereto; (5) that he was seized with a nervous, jumping toothache; (6) what then he took a drink of water or attempted to masticate the pain came on intensely; (7) that he was seized with a violent headache; and (8) that the question called for the expert’s opinion as to Roark’s condition.
The rules applicable to hypothetical questions are fully set out in the following authorities :
“An expert cannot give an opinion on a hypothetical statement which is not supported by the facts as brought out at the trial. There must; be evidence tending to prove the matters stated in a hypothetical case to render it proper. But some latitude must necessarily be given in the examination of medical experts, and in the propounding of hypothetical questions for their opinions, the better to enable the jury to pass upon the questions submitted to them. The opinion is the opinion of the expert, and if the facts are found by the jury as the counsel by his question assumes them to be, the opinion may have some weight; otherwise not. It is the privilege of the counsel in such cases to assume, within the limits of the evidence, any state of facts which he. claims the evi dence justifies, and have the opinion of experts'upon the facts thus assumed. The facts are assumed for the purpose of the question and for no other purpose. If the facts stated in hypothetical cases are not proved, the opinion, of course, goes for nothing.” Lawson, Exp. Test. p. 152.
“It is also claimed that in three of the hypothetical -questions put to this same witness by the prosecution, on his cross-examination, matters were contained, as facts upon which to base said questions, which the evidence did not warrant to be assumed. We are satisfied from a close examination of the record that there was evidence from which it might legitimately have been inferred that the deceased was, previous to her coming to Mrs. Sleight’s, strong, healthy, and robust, and that spots were discovered, upon the examination of the womb, that might have been made by a little instrument.” (People v. Aiken, 66 Mich. 476, 33 N. W. 821.)
“It may be true that the court ought not to allow hypothetical questions to be propounded to an expert witness which are plainly outside of the case and based upon a statement of facts as to which there is no pretense that they are proved by the evidence in the case. The rule in that respect must be that, in propounding a hypothetical question to the expert, the party may assume as proved all facts which the evidence in the case tends to prove, and the court ought not to reject the question on the ground that, in his opinion, such facts are not established by the preponderance of the evidence. What facts are proved in the case, when there is evidence tending to prove them, is a question for the jury and not for the court. The party has the right to the opinion of the expert witness on the facts which he claims to be the facts of the case, if there be evidence in the case tending to establish such claimed facts, and the trial judge ought not to reject the question because he may think such facts are not sufficiently established.” (Quinn v. Higgins, 63 Wis. 664, 670, 24 N. W. 482.)
The rule seems to be that the assumptions in a hypothetical question must either be supported by the evidence, or they must be legitimate deductions drawn from the evidence. In the hypothetical questions it was assumed, as we have said, that Greeno inserted the needle to the depth of the root of the tooth ; that Roark was a healthy, vigorous man in every respect at the time of the operation ; and that he had not been subjected to any sort of surgical operation, nor had his skin been cut, incised or perforated for a long ■time. There is no direct evidence to support either of these assumptions. They are not only not supported by the evidence, but there is no evidence tending to prove them. Nor are these assumptions legitimate deductions from the facts proved at the trial.
It is also contended that the testimony given by Doctor King on rebuttal was erroneously admitted. He was permitted to testify that he was present in Doctor Greeno’s office when he operated on patients occasionally within the last two years, saw Greeno use a hypodermic needle on patients, and observed that the doctor would pick up the" hypodermic syringe or needle, attach it,, fill it with anesthetic fluid or fluids such as he wished to inject into the tissues, and inject the fluids into them. He testified that he never saw Greeno insert the needle in any disinfecting fluid prior to operating. This testimony was too remote to establish the charge of negligence and it should not have been permitted to go to the jury.
We deem it unnecessary to comment on the other assignments of error, further than to say that the trial court committed no reversible error in refusing or giving instructions. From what we have said, it follows that a new trial should be awarded. The judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Milton, J. :
The order of arrest under which the defendant in error was arrested in a civil action was vacated by the district court of Harvey county on motion of the defendant. Oral testimony was introduced at the hearing upon the motion. It.appears from a careful examination of the record that the-order of vacation is supported by competent evidence. It has, therefore, the force of a general finding in favor of the defendant as to all matters set forth in the affidavit for the order of arrest, and, as such, must be held conclusive .in this court. (Bixby v. Bailey, 11 Kan. 359; Winstead v. Standeford, 21 id. 272.)
The order of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, C. J.
This case was before us upon appellee’s motion to dismiss the appeal because the garnishee had not been made a party in this court. An opinion written (163 Kan. 105, 179 P. 2d 945) held that the garnishee was a necessary party. Appellant had filed an application to amend the notice of appeal by bringing in the garnishee as-an additional party. This motion was granted. Thereafter appellant served notice of appeal upon garnishee and filed the same with the clerk of the district court and amended his notice of appeal by making him a party in this court.
In response to this amended notice of appeal the garnishee filed a motion in this court to dismiss the appeal. This motion has been briefed and argued and is now before us for decision. In the briefs there is some argument upon the question as to whether the garnishee was, a necessary party here. We have considered that argument and adhere to the views expressed in the former appeal. There is no need of a further discussion of it.
The movant contends that this court has no jurisdiction to permit or compel him to become the party-appellee herein for the reason that notice of appeal was not served upon him until more than two months after the date of the judgment appealed from, as provided by G. S. 1945 Supp. 60-8309. The point is not well taken. The procedure authorized by this court in its former decision, and followed by the appellant, is authorized by G. S. 1935, 60-3310, which so far as here pertinent, reads:
“Any notice of appeal may be amended at any time by bringing in additional parties or otherwise, before the hearing, as to the appellate court may seem fit. . . .”
There has been no hearing upon the merits of this case in this court, hence the action taken and the amendment to the notice of appeal was taken in time. To sustain the movant’s contention now before us it would be necessary'to delete from the statute last quoted the words “before the hearing” and substitute therefor “before the time provided for appeal.” We would not be justified in doing that.
The movant cites Norton v. Wood, 55 Kan. 559, 561, 40 Pac. 911, and several other cases decided by this court and by .the court of appeals, which held that the necessary party to the appeal had to be brought into court within the time for appeal — then one year. None of these cases is in point. They were decided under statutory provisions for appeal which were repealed in 1909, when the code of civil procedure was rewritten and a radically different method was provided for appeals from the district court to this court (Laws 1909, ch. 182).. More than that, the statutes under which those decisions were rendered contained no provision for amending as to parties' or other material matters after the time for appeal had passed. This change in the method of appeal and its effect upon prior decisions was quite fully discussed in Peoples State Bank v. Hoisington Mercantile Ass’n, 118 Kan. 61, at pages 66 and 67, 234 Pac. 71.
At the time of the framing of the code of civil procedure, adopted in 1909, it had been demonstrated by the decisions cited by movant and others that appellants were defeated in their right to be heard in this court by the lack of any provision for amendment after the time for appeal had expired. The purpose of G. S. 1935, 60-3310, was to avoid such results. •
Since its adoption this statute (G. S. 1935, 60-3310) has been used where the facts warranted it, as disclosed by such opinions as Boss v. Brown, 132 Kan. 86, 294 Pac. 878, and McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P. 2d 787, and cases cited therein. There are other cases in which such amendments have been allowed without question and for that reason not mentioned in the opinions.
The movant correctly points out that the opinions above cited did not involve amendments as to parties, but the statute is just as effective as to parties as it is to any other matter material to the appeal. The legislature did not distinguish .between amendments as to parties and amendments as to other necessary matters. We see no reason why we should do so.
The movant relies quite heavily upon Salt City B. L. & S. Ass’n v. Peterson, 145 Kan. 765, 67 P. 2d 564. This case recognized the other authorities above cited which at that time had been decided, but held the statute not applicable for the reason that there had been no attempt to appeal by any of the parties within the six months then allowed for an appeal. No such situation exists here.
The movant quotes from 3 Am.- Jur. 159 as follows:
“A defect of parties may generally be remedied by amendment on 'motion, but the appellate court will not usually permit an amendment to bring in omitted parties after the time for taking ah appeal or error proceeding has expired as. to such parties.”
And a number of cases are cited from other states which hold that the amendment bringing in new parties should not be allowed after the time fixed for an appeal has expired. We are not so much concerned with the general proposition of what'courts usually do, nor with what courts of other states do. We assume that the other states follow the statutory provisions of the respective states with respect to when an amendment may be made as to parties. That is what we did prior to 1909. It is what we have done since. . The difference in the statutory provisions pertaining to appellate procedure necessitates a different result. ■ Where the legislature has authority to prescribe the appellate procedure the courts should, and usually do, follow the procedure outlined by the legislature.
While more might be said upon the question we think that is unnecessary. Our problem is to interpret our own statute and to follow it, and where our statute says that the notice of an appeal may be amended as to parties at any time before the hearing we do not feel justified in saying that the amendment has to be made within some other period of time.
The motion to dismiss is denied.
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The opinion of the court was delivered by
Wedell, J.
This is an original action in quo warranto by the state of Kansas, on the relation of the attorney general, against defendant, the State Highway Commission, to require it to show by what authority it attempts to sell real estate acquired by eminent domain for highway purposes, when the commission determines part of the land so acquired is no longer needed or used for highway purposes.
The pleadings consist of a petition and verified answer. Plaintiff asks for judgment on the pleadings. A sketch of the land involved and the essential surrounding physical facts is included to help clarify the pleadings.
The material portions of the petition, in substance, are: Defendant is afithorized to exercise the right of eminent domain as provided in G. S. 1935, ch. 26, art. 1; defendant exercised such right in connection with the relocation of U. S. highway 50S in Johnson county and the construction of a four-lane highway; many parcels of land and lots were condemned in a proceeding in the district court of Johnson county including lots 20 and 21 in block 7, etc. (giving full legal description); the petition in the condemnation proceeding alleged defendant sought to acquire the two lots in question, and others, in the name of the state for the purpose of establishing, maintaining, improving and draining the state highway system; the district court found the allegations were true; the land was appraised as provided by law; only a small area of lots 20 and 21 was actually used for right of way purposes (the portion of those lots used is the triangular portion designated on the attached map); in condemning other lots in that proceeding for the same purpose defendant acquired $ house known as the Hammer House, which was located directly within the right of way for the relocation of .the highway; defendant is about to move the house onto lots 20 and 21 and sell the same as one piece of land for private use; defendant advertised the sale of the house stating in the notice of sale the purchaser thereof would be given an option to purchase lots 20 and 21 for the sum of $2,000 and that defendant would convey its title or interest by quitclaim deed; defendant will sell the land unless the court ousts it from usurping its power to do so; defendant’s offer and attempt to sell the lands constitute a finding, a determination by it, that said lots are not necessary for the public use for which they were acquired and that no use or need therefor exists at this time for highway purposes; defendant is without authority of law to sell the same or to give title thereto to a private person; the action of defendant constitutes an abandonment of that part of the right of way and under the provisions of G. S. 1945 Supp. 68-413 title to the land has reverted to the owners of the land of which it was a part; in the condemnation proceedings no compensation was made for minerals in place or other subsurface rights in the land and defendant cannot give a merchantable title thereto under the provisions of G. S. 1945 Supp. 68-413 and the provisions of article 11, section 9 of our state constitution.
■ In its answer defendant denies plaintiff’s conclusions of law but admits generally the allegations of fact set forth in the petition except as modified or explained in the answer.
The material portions of the answer, in substance, are: The description of the land set forth in the petition is the land defendant is attempting to sell; lot 20 was owned by Ellen Roe Bryant; Bryant owned other lots which it was necessary to acquire for highway purposes; the highway improvement actually utilized more than one-half of lot 20 and the remainder thereof was too small for a building site and of no substantial value to the landowner; under the plat dedication of Bryantwood subdivision and the township planning board no building permit could be granted on the small remnant of lot 20; under the rule for assessment of compensation and damages relating to eminent domain Bryant would be entitled to receive the full value of the lot; lot 21 was owned by Charles H. Greisa; the highway improvement actually occupies a large portion of that lot and the remaining portion was likewise too small for a building site and was not contiguous to any other land owned by Greisa; defendant attempted to trade to Greisa that part of lot 20 not needed for highway purposes for that part of lot 21 which was required for construction of the highway; Greisa refused to make such exchange and insisted that he be paid for all of lot 21; lots 20 and 21 were appraised in their entirety in the condemnation proceedings and Bryant accepted the appraisal value of lot 20 at $1,317.60 in full payment of that lot; Greisa accepted the appraisal value of lot 21 at $1,443.01 as full payment for that lot; the remnants of the two lots constitute a valuable building site for the location of a home; prior to the appraisal and in order to mitigate defendant’s damages it sought to acquire the land on which the Hammer House was located and to move the Hammer House onto lots 20 and 21; a tentative agreement with Hammer to that end failed and.Hammer insisted on full compensation for the land on which his house stands; defendant did offer the Hammer House and the lots mentioned for sale as stated by plaintiff but by reason of doubt as to the validity of the title defendant could convey no purchaser of the lots was obtained; defendant admits it has a plan whereby it proposes to move the Hammer House onto that portion of the lot not occupied by it and to offer the house and lots for sale to the highest bidder; that such project would be readily salable for the sum of $25,000, which would result in a saving to the state of approximately $15,000, but that doubt exists as to its authority to do so; an actual controversy exists and defendant seeks to have the question of its title determined under the declaratory judgment law; defendant has authority to make such sale under the provisions of G. S. 1945 Supp. 68-413; defendant in all probability could use the land for other purposes but to hold that the property reverted to the former owners would constitute an unjust enrichment of such owners since they have received and accepted full compensation for their lots; there exists an actual justiciable controversy between plaintiff and defendant and others which justifies defendant’s invoking the declaratory judgment law (G. S. 1935, 60-3127 et seq.) in order to obtain an authoritative and binding adjudication of the rights of defendant in the premises.
We shall refer to the parties as the state and the commission. Since the oral argument we have been frankly and commendably informed by stipulation of counsel for the parties that the house in question has been sold separately and will not be moved onto any portion of lots 20 and 21 and sold as a part thereof. That particular factual situation, therefore, passes out of the lawsuit. Manifestly, we shall not consider the matter of moving the house onto the lots and selling the entire property as a residence in connection with any constitutional question that such facts, if existing, might have raised. In order to obtain an adjudication-of any question of law under the declaratory judgment act an actual controversy must exist. (G. S. 1935, 60-3127; Kittredge v. Boyd, 137 Kan. 241, 242, 20 P. 2d 811; Klein v. Bredehoft, 147 Kan. 71, 73, 75 P. 2d 232; City of Cherryvale v. Wilson, 153 Kan. 505, 509, 112 P. 2d 111.) When any legal questions become moot, judicial action ceases. (State, ex rel., v. Insurance Co., 88 Kan. 9, 10, 127 Pac. 761; State v. Allen, 107 Kan. 407, 408, 191 Pac. 476.) A fortiori, courts manifestly will not determine an unnecessary ojr hypothetical constitutional question. (City of Cincinnati v. Vester, 33 F. 2d 242, 68 A. L. R. 831; affirmed in 281 U. S. 439, 74 L. Ed. 950.)
The first question remaining is whether the commission has a right to sell the so-called excess or surplus portion of the two lots under the provisions of the special state highway condemnation statute, G. S. 1945 Supp. 68-413, which was enacted in 1929. Except for slight amendments, not presently involved, the statute remains as originally enacted. It reads:
“That the state highway commission, in the name of the state, may acquire title by purchase or dedication or by the exercise) of the right of eminent domain, to any lands or interest or rights therein, to water, gravel, stone, sand or other material, or to spoil banks or to borrow pits necessary for the construction, improvement, reconstruction, maintenance or drainage of the state highway system, or to rights of way giving access to spoil banks or borrow pits or any bed, pit, quarry or other place where gravel, stone, water or other material required in the construction, improvement, reconstruction, maintenance or drainage of the state highways may be located. The right of eminent domain when exercised as herein provided shall be in accordance with the provisions of article 1, chapter 26 of the General Statutes of 1935 and any amendments thereto, and in addition to the notice required therein all lienholders of record of the condemned land must also be notified. The state highway commission may dispose of any real estate, or any right, title or degree or variety of interest therein as it may deem expedient or necessary whenever the commission determines that such real estate, or interest therein, is no longer needed or used for highway purposes, and may exchange the right of way to be abandoned for new and other right of way: Provided, That when any road on the state .highway system is vacated, the lands or interests or rights therein acquired by the state highway commission for right of way under the provisions of this section, unless disposed of as above provided, shall revert to the present owners of the land of which it was originally a part.”, (Emphasis supplied.)
The pertinent portion of G. S. 1935, 26-101, provides:
“Any corporation having the right of eminent domain, except railroad and interurban railway corporations, shall exercise such right in the following manner : Whenever such corporation desires to acquire land for a lawful purpose, it shall present to the district court of the county wherein the land is situated, or to the judge thereof, a petition setting forth the purpose for which the land is sought to be acquired, a description of each lot and parcel of ground and the name of the owner of each lot and parcel of ground as shown by the records of such county. The court or the judge thereof shall examine said petition and determine whether the petitioner has the power of eminent domain and whether said lands are necessary to its lawful corporate purposes, and if found in the affirmative, such findings shall be entered in the record and the court thereupon shall appoint three disinterested householders of said county to view and appraise such lots and parcels of ground.. Such appraisers shall take an oath to well and truthfully make such appraisal and shall report their appraisement of each tract in writing, under oath, to the said court or judge thereof, and the same shall be filed with the clerk of the district court.
“If the petitioner desires to acquire the land at the appraised price it shall within thirty days deposit with the clerk of the district court the total amount of such appraisement, shall pay the court's costs and the fees of the appraisers, to be fixed by the court or the judge thereof, and the title to all such lots and parcels of ground thereupon shall immediately vest in the said petitioner, and the said petitioner shall be entitled to the immediate possession thereof and all remedies provided by law for the security of such title and possession.” (Emphasis supplied.)
The state, in substance, contends: (1) The statute provides only for the.taking of land necessary for statutory designated purposes (the state concedes lots 20 and 21, as described for sale', were acquired for highway purposes); (2) condemnation statutes are strictly construed and no greater quantum or title is acquired than the statute provides, and in the absence of express terms or necessary implication only a fee simple determinable, or án easement for the intended use, is acquired and not a fee (18 Am. Jur., Eminent Domain, §§ 114, 115); (3) under the statute only an easement was acquired to land necessary for highway purposes; (4) no minerals in place, if any, were acquired or compensated for by the commission in the condemnation proceedings; (5) to interpret the statute as granting a fee title which the commission may convey to a private party would violate section 9, article 11, of our state constitution which denies the state the right to carry on any work of internal improvement except that it may adopt, construct, reconstruct and maintain a state system of highways; and (6) the provision giving the commission the right to dispose of any real estate, right, .title or interest therein as it may deem expedient or necessary, when the commission determines such real estate or interest therein is .no longer needed or used for highway purposes, was only intended to permit the commission to convey back to persons of record in the condemnation proceedings such title, rights or interest in the lands as were condemned for borrow pits or spoil banks, etc., after they had served their purpose. It is urged such provision was made in order to enable landowners to pass a merchantable title to their lands.
It should be stated the state concedes the right of the commission to exercise its discretion, in good faith, with respect to what amount of land 'is reasonably necessary for the purposes designated in the statute, including future needs and a reasonably sightly appearance of the highway. (State Highway Comm. v. Ford, 142 Kan. 383, 46 P. 2d 849.) At the outset it .should be clearly stated the district court was duty bound, in the condemnation proceedings, to determine whether all of lots 20 and 21 was necessary for the lawful purpose of the highway. Until it so determined it could not proceed to condemn them in their entirety. (G. S. 1935, 26-101.) The state concedes it was judicially adjudicated they were necessary for the public purpose intended.
The commission contends it was the legislative intent the state should acquire by condemnation proceedings only a fee simple determinable or an easement with respect to land actually needed for the right of way itself, but that it was intended a fee title should be acquired to additional land taken which the commission later determines is no longer needed or used for highway purposes.
Touching the first part of the commission’s contention it will be observed that immediately prior to the proviso the statute grants to the commission, among other things, the right to exchange a right of way which is to be abandoned for a new and other right of way. The commission, in substance, argues: The proviso refers only to the right of way for a road; it refers to the right to dispose of it as above mentioned; the legislature intended the state should obtain only a fee determinable or easement in the right of way proper for the use intended; such intention is disclosed by the terms in the proviso that where the right of way is not disposed of as above provided (that is by exchange of right of ways) and the road is vacated it shall revert to the present owner of the land of which it was originally a part.
It will be observed the right of the commission to exchange one right of way for another is not the only right granted by that portion of the statute immediately preceding the proviso. In the same preceding sentence provision is made for other disposition of land and rights to be mentioned presently. Such disposition may be made whenever the commission determines that such real estate, or interest therein, is no longer needed or used for highway purposes. Such disposition is being attempted now and before the .road has been vacated. It follows the possibility of a reverter mentioned in the proviso is inoperative in the instant case. Moreover, the proviso itself expressly authorizes such disposition prior to vacating the road. It also follows that, in this case, there could be no reverter to present owners of the land of which the lots were originally a part.
With respect to the commission’s claim that the state acquired a fee title to additional lands taken by the condemnation proceedings the commission relies upon the italicized provisions of G. S. 1945 Supp. 68-413 pertaining to the right to acquire title to lands or interest or'rights therein and to dispose of the same.
We are unable to find appropriate language in the statute to justify the commission’s contention a fee title was intended as to excess land taken and only an easement as to land actually needed for the right of way itself. Under this special highway statute provision is made only for the taking of land by eminent domain required for the purposes designated therein. In this action we cannot determine what quantum of land was necessary. The district court was obliged to determine that fact in the condemnation proceedings. (G. S. 1935, 26-101.) That fact has been adjudicated. No appeal was taken from that decision and it.is now a finality. The result is we will not, in this action, pass upon the question whether the commission may by eminent domain knowingly acquire more land than is needed and thereafter sell it for private use for the purpose of recouping the expense of acquiring a right of way.
The parties concede our constitution places no limitation or restriction on the nature of the title to property which may be acquired by eminent domain. (Challiss v. A. T. & Santa Fe Rld. Co., 16 Kan. 117.) The legislature, therefore, has power to determine the nature of the title to be so acquired. The general rule is that eminent domain statutes will be construed to authorize only the taking of an easement or title sufficient for the public use intended and that the fee will not be condemned unless the statute clearly so provides, either expressly or by necessary implication. (18 Am. Jur., Eminent Domain, §§ 114, 115; 30 C. J. S., Eminent Domain, § 450.) With these stated principles conceded we proceed. Counsel for both parties refer to statements made in the course of various opinions of this court with respect to the title acquired by the exercise of eminent domain and by deeds to land for public purposes. We think it would serve no useful purpose to extend this opinion over many pages by a review of those decisions. We shall, however, pause to comment briefly concerning the case of State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P. 2d 132, upon which the state so strongly relies. Notwithstanding what was said in the opinion in that case this court believes that it was unnecessary to determine in that case whether the commission actually owned a fee or merely an easement in order to decide the narrow question there presented.
The instant action is really the first time the proper interpretation of the statute, insofar as it bears on the question of title, has been directly presented to this court for decision. This statement is not disputed by the state and is conceded by the commission.
We shall, therefore, turn immediately to a further consideration of the statute for the purpose of determining the legislative intent. It is true the statute does not expressly define the nature of the interest in the land the condemnor acquires. Does the language of the statute necessarily imply it was intended the condemnor should acquire the fee in land necessary for the purposes designated in the statute? What is meant by the language employed in G. S. 1945 Supp. 68-413, to wit: “. . . the state highway commission . . . may acquire title ... to any lands or interest or rights therein . . . necessary for the construction, improvement, reconstruction, maintenance or drainage of the state highway system,” etc., and by the provision—
“The state highway commission may dispose of any real estate, or any light, title or degree or variety of interest therein as it may deem expedient or necessary whenever the commission determines that such real estate, or interest therein, is no longer needed or used for highway purposes, and may exchange the right of way to be abandoned for new and other right of way, . . .”
and by the proviso, to wit:
“That when any road on the state highway system is vacated, the lands or interest or rights therein acquired by the state highway commission for right of way under the provisions of this section, unless disposed of as above provided, shall revert to the present owners of the land of which it was originally a part.” (Our emphasis.)
No other condemnation statute in this state contains such broad and sweeping terms. It is observed the statute provides the commission may acquire title to any lands, or interest or rights therein, etc. It likewise provides the commission may dispose of any real estate, or any right, or any title, or any degree or any variety of interest therein. That means the commission may sell, assign or convey in any manner the whole interest in the land acquired or any portion thereof less than the whole title. How could it do so if it possessed only an easement? It seems to us wholly illogical to assume the legislature authorized the commission to sell something to whieh it never acquired title. Furthermore, the proviso, the concluding sentence of the statute, expressly negatives the ordinary theory of reverter of title to the landowner. It clearly provides that if the road is vacated the “lands or interests or rights therein acquired- . . . for right of way” revert “unless disposed of as above provided. . . .” (Emphasis supplied.)
It is, of course, true that where language of a statute will bear the construction that only an easement was intended courts as a general rule seem disposed to leave the fee in the landowner. (18 Am. Jur., Eminent Domain, § 114.) We think the instant statute does not permit the latter construction. Under a similar statute, it was held in Jones v. Oklahoma City, 192 Okla. 470, 137 P. 2d 233, a railroad had acquired a fee simple title in a right of way and could convey a fee title thereto. The court said:
“The power to sell when no longer required for railroad uses is wholly inconsistent with the idea that only an easement was intended. It is difficult to understand why the power should be granted to sell, unless the Legislature intended to give the power to acquire some right, title, or interest that could be sold.” (p. 473.)
The highway statute also provides the right of eminent domain, when exercised as therein provided, shall be in accordance with the provisions of article 1, chapter 26. (G. S. 1£)35, 26-101.) The latter statute provides that after the petitioner has complied with its requirements “the title to all such lots and parcels of ground thereupon shall immediately vest in the said petitioner. . . .” Just now we are concerned only with what that language was intended to mean when construed in conjunction with the provisions of G. S. 1945 Supp. 68-413. We are compelled to assume the legislature intended the two statutes should be in harmony insofar as title to land the commission acquired was concerned. We are not now dealing with the question of what title some other condemnor might acquire when proceeding solely under the provisions of the general condemnation statute, G. S. 1935, 26-101, and express no opinion thereon.
• We recognize that with respect to the title acquired for park purposes a somewhat different rule has been applied at times from that which obtains with respect to streets and highways. (18 Am. Jur., Eminent Domain, § 116.) The legislative will must, however, always be determined from the language employed in controlling statutes. In 1928 this court had occasion in Skelly Oil Co. v. Kelly, 134 Kan. 176, 5 P. 2d 823, to interpret a park condemnation statute which provided for the vesting of title. It was there said:
“What is meant by the expression, ‘The title . . . shall vest in such city’?
“The word title has a variety of meanings. It sometimes connotes the means by which property in land is established, as in the expression ‘chain of title.’ It sometimes means ‘property’ or ‘ownership’ in the sense of the interest one has in land. A common meaning is complete ownership, in the sense of all the rights, privileges, powers and immunities an owner may have with respect to land. (Am. Law Inst., Restatement of the Law of Property, draft No. 1; introduction.)
“Plainly the word title as used in R. S. 26-204 does not have the meaning first indicated. The record of the steps pursued in perfecting condemnation constitutes the means of establishing the city’s title, and it is the interest which the city acquired by the condemnation proceedings which vests. Therefore the word title indicates ownership, and unquestionably the usual and ordinary signification of the word when used alone in the sense of ownership is ownership in fee.
“It will be observed that R. S. 26-201 relates to condemnation for specified purposes, and then to condemnation ‘for any purpose whatsoever,’ but condemnation for parks, parkways and boulevards is not specified. There is no provision in the statute for vesting of title except in case of condemnation for parks, parkways and boulevards. All other condemnations are governed by the provision that on recording of the copy of the condemnation report in the office of the register of deeds, the right to possession shall vest, and the city may forthwith take possession and use, occupy and improve for the purpose specified in the resolution. The statute would have been effective to vest right to possess, occupy, use and improve without making special reference to parks, parkways and boulevards, and without making special reference to vesting of title. The legislature, however, deemed it important to insert a special provision relating to vesting of title in case of condemnation for parks, parkways and boulevards. This vesting of title is unqualified. The provision is not that on publication of the condemnation resolution title shall vest for park, parkway and boulevard purposes. The provision is that, when land is condemned for parks, parkways and boulevards, title shall vest on publication of the resolution. There is no connotation that title shall vest while, or so long as, the land is used for park purposes, and the court holds that in this instance the city acquired a fee simple, without so-called possibility of reverter to former owners.” (p. 179.)
Eor definition of “title” see, also, Webster’s International Dictionary, 2d ed; Century Dictionary; and Ballentine’s Law Dictionary.
The state directs attention to the fact the opinion in the Skelly Oil Company case also states that in highway, right of way, and some other cases the owner is not deprived of all interest but merely to the extent necessary for the particular use. The decision rendered in 1928 does so state. That, however, was prior to the 1929 enactment of the present highway statute now under, scrutiny. In view of the language employed in the special 1929 highway statute it would do violence to the legislature to assume it was not cognizant of what was said in the Skelly. Oil Co. case with respect to a fee title which might be acquired under suitable terms of an eminent domain statute.
In Kucera v. State Highway Comm., 145 Kan. 121, 64 P. 2d 66, involving this same statute, the court held:
“Where a petition alleges that the state highway commission contracted, in connection with the purchase of a new right of way over plaintiff’s land, to deed back ‘unconditionally’ the vacated highway, but later gave a quitclaim deed, failing and refusing to have the pipe lines and pole lines located thereon removed therefrom, it is held: (1) that the making of such a contract was within the power and authority of the highway commission; and (2) that the conveyance of the old right of way without such removal was not a deeding back unconditionally.” (Syl.)
In the course of the opinion it was said:
“Under these provisions there would seem to- be ample authority in the highway commission to dispose of the -old right of way and to arrange to do so by contract in connection with the acquiring from the owner of the same tract of land the right of way for the new road. In making the contract for this exchange of tracts of lands the appellant promised to deed back unconditionally the old right of way.
“Webster defines the word ‘unconditional’ as ‘not conditional, limited or conditioned; made without conditions; absolute, unreserved.’ Bouvier’s Law Dictionary defines ‘unconditional ownership’ as follows: ‘When the quality of the estate is not limited or1 affected by any condition.’
“65 C. J. 1200 defines it as synonymous with ‘absolute.’
“The giving of a quitclaim deed by the appellant to the appellee wholly ignores the meaning and use of this special word used in the contract. To give this specifically chosen word used in the contract any reasonable meaning or application whatever in construing the contract we cannot avoid holding that the land conveyed was not to be subject to any burden or encumbrance. These burdens would make the conveyance conditional and not absolute.
“We conclude that the appellant had statutory authority to make the contract it did make and under the allegations of the petition it failed to carry out or comply with the terms of such contract.” (p. 124.)
We are quite properly reminded the question whether the state acquired a fee title is burdened with far-reaching consequences. We agree. What the views of members of this court may be upon that subject is wholly immaterial. It is not the province or right of courts to determine the wisdom of legislation touching the public interest. That is solely a legislative prerogative with which courts cannot interfere. It is our duty to ascertain and, if possible, to make effective the legislative will. (Dunn v. Jones, 143 Kan. 771, 57 P. 2d 16; Hunt v. Eddy, 150 Kan. 1, 4, 90 P. 2d 747; State v. Momb, 154 Kan. 435, 119 P. 2d 544.)
Having determined the commission, in the name of the state, ac quired a fee title to all of lots 20 and 21 as described in the notice of sale, subject to its termination as provided by the statute, the fee including minerals in place, if any, could be conveyed prior to its statutory termination.
The state finally contends if the statute is interpreted to mean the state acquired a fee title to the land the statute violates section 9, article 11, of our state constitution, which denies the state the right to carry on any work of internal improvement, except to adopt, construct, reconstruct and maintain a state system of highways. We repeat it was judicially determined by the district court in the condemnation proceeding, instituted by the commission in the name of the state, that all of lots 20 and 21, here involved, was necessary for highway purposes. The adjudicated fact that all the land here involved was necessary for the public purpose intended is a finality and cannot now be challenged in this litigation. We are therefore obliged to determine the question of the constitutionality of the sale of the remnants, or surplus, on the basis the condemnation judgment was correct. It follows the question whether the commission by the process of eminent domain may knowingly acquire more land than is actually needed, under a statute which permits it to acquire only land necessary for its corporate purpose, and thereafter sell a portion of the acquired .land for the purpose of recouping, or reducing, the cost of acquiring the necessary land, is not now before us. The statute authorizes the sale of real estate whenever the commission determines it, or any interest therein, is no longer needed or used for highway purposes. The mere sale of ■ the remnants of these lots does not under the circumstances stated, in our opinion, constitute the carrying on of a work of internal improvement.'
The motion of the state for judgment on the pleadings, as modified by the stipulation of the parties, is denied. It follows the state’s application for the writ must likewise be and is denied.
Hoch, J., not participating.
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The opinion of the court was delivered by
Wedell, J.
This was an action by a tenant to recover damages resulting from the alleged deprivation of the use of leased land and other damages resulting from the pollution of water.
The defendant corporations were: Phillips Petroleum Company, Cities Service Oil Company, Gulf Oil Corporation and Phil-Han Oil Company. These defendants will be referred to as the parties have designated them, to wit: “Phillips,” “Gulf,” “Cities Service” and “Phil-Han.” We are advised the following individual defendants were owners of an interest in the Phil-Han lease: G. W. Hinkle, Walter Innes, Jr., C. H. Hoult, D. E. Dunne, Jr., and H. N. Carver. The Phil-Han and these individual defendant's have been grouped together in the abstracts as “Phil-Han.”
The jury failed to agree and was discharged. The defendant corporations appeal from the orders overruling their joint and several demurrers to plaintiff's evidence.
The action was filed February 1, 1944. The amended petition, in substance, alleged: Plaintiff had a written lease from August 1, 1941, to August 1, 1944, on two quarter sections of land in Russell county; he used the land for farming and stock-raising purposes; 107 acres were in pasture land and about 150 acres were under cultivation for wheat farming and row crops; the land was fenced; the pasture land in. particular was well supplied with water from numerous springs, ponds and creeks; there was an abundant supply of good, pure, wholesome water until approximately July 15, 1942; all of defendants’ leases were being operated; .the Gulf had an oil and gas lease on a quarter section of land adjacent to and immediately east of plaintiff’s land and another lease on a quarter section to the north of plaintiff’s west quarter; one quarter of land, however, lay between the plaintiff’s west quarter and the last mentioned lease of the Gulf; Phillips had the lease on the quarter lying between and immediately north of plaintiff’s west quarter; the Cities Service had a lease on the quarter lying immediately west of the Phillips quarter; the Phil-Han had a lease on the eighty acres immediately north of the Cities Service quarter; the result was leases of defendants were being operated to the east, north and northwest of land used by plaintiff; plaintiff’s land was located in the immediate drainage district of defendants’ oil leases; defendants produced large quantities of crude oil, base sediment, salt and salt water containing minerals which were placed in salt or slush ponds; defendants permitted the mineralized substances to escape and flow from their wells and slush ponds down and over plaintiff’s land and into the fresh water strata lying underneath plaintiff’s entire premises and into the springs, creeks and draws which ran from defendants’ leased lands into plaintiff’s land; the result was plaintiff’s ponds, creeks and springs became impregnated and saturated with such mineralized substances; the land was made unproductive; plaintiff was unable to use his leased land from approximately July 15, 1942, to the present time; plaintiff’s cattle drank the water before plaintiff knew it was polluted.
The amended petition, in substance, alleged the following damages :
(A) Loss of use of the water in his pasture for 2 years........... $1,600.00
(B) Shrinkage and loss of weight of 73 cattle from July 15, 1942, to November 1, 1942, at $25 per head....................... 1,825.00
(C) Work and labor in driving the cattle and hauling water..... 549.00
(D) Shrinkage in 80 head of cattle from June 1, 1943, to November 1, 1943, at $30 per head................................ 2,400.00
(E) Expenses incurred in drilling and equipping a water well..... 489.07
Total actual damages .................................. $6,863.07
The amended petition, in substance, further alleged: Defendants knew, or should have known, the damages which would result to plaintiff by reason of their acts; the damage resulted from defendants’ operation of their leases in violation of G. S. 1935, 55-121; defendants’ acts were in utter disregard of plaintiff’s rights and plaintiff is entitled to punitive damages in the sum of $5,000.
Separate answers of defendants, substantially the same, denied all charges of negligence and, insofar as now material, asserted their leases were operated in the usual and customary manner and in the exercise of reasonable care in an effort to avoid the escape of the mineralized substances complained of; reasonable and proper reservoirs and other instrumentalities were maintained to prevent the escape of injurious substances from their leaseholds.
Appellee’s reply is not set forth but we assume it was a general denial of new matter alleged in the answers.
When appellee rested appellants again moved that appellee be required to elect whether he would rely for recovery for damages to his leasehold estate, or for damages, if any, in an effort to provide water for his livestock. The motion was sustained and appellee elected to eliminate items (C) and (E) and proceeded to trial on the remaining items of damage.
Appellants also moved to have the court strike out all evidence of punitive damages and certain other testimony. It is not now seriously urged the testimony sought to be stricken was incompetent but rather that appellants’ several demurrers should have been sustained as tp both actual and punitive damages. We think the evidence involved was properly admitted.
■ In order to clarify certain factual matters it should be stated there was no evidence any of appellants’ salt' or slush ponds overflowed. There was evidence of seepage. There was no. evidence, however, that any mineralized substances from appellants’ oil wells or slush ponds flowed over the surface of appellants’ premises and onto appellee’s land. There were no creeks on appellee’s land but there were low .stretches of ground referred to as draws. Some of such draws ran from the north and some from the northwest of appellants’ leasehold premises and onto the west quarter of appellee’s land.
The pollution damages, if any, resulted from seepage from appellants’ ponds into the substrata of the soil and through such strata into the springs and natural ponds located on appellee’s land. There was evidence the soil on appellants’ premises was of a loamy and porous character. The general slope of the surface of the land was from the north to the south. There existed a ■ slight ridge running north and south between the draw containing most of appellee’s springs, ponds and water wells in the pasture and most of the appellants’ slush ponds. Ponds, springs and water wells of appellee, as well as some water wells on the Brandenburg farm, immediately north of appellee’s west quarter, were located along the draw previously mentioned. They, too, were polluted with the exception of one water well far to the north.
Most of the oil wells had been drilled in 1938. Tremendous quantities of mineral substances, usually termed salt or chlorides in the record, had been put into appellants’ slush ponds. There was . evidence the water in an abandoned water well on the Cities. Service lease showed 10,000 p. p. m. chlorides according to a test made in February, 1943, by John C. McFarland, geologist from the sanitation division of the state board of health. With respect to the manner in .which such tests were made .that witness stated:
' “We take the specified amount of water and parts per million chlorides, and evaporate them out, then you have so much residue left, and this is the residue that would be left if you would evaporate that specified amount of water containing so many parts per million.”
There was evidence by the same witness that: All of appellants’ wells produced from the Arbuckle formation; the approximate parts of solids or chlorides in the Arbuckle water were 38,000 p. p. m.; based on the volume of salt water from the Arbuckle formation appellants would have placed into their respective slush ponds the following amounts of salt daily from 1938 to February 1, 1944: Cities Service, 1,500 pounds; Phillips, 2,000 pounds; Gulf-Reinhardt, 300 pounds; Gulf-Rusch, 500 pounds.
The testimony of a veterinarian was that any quantity of chlorides in excess of 5,000 p. p. m. was injurious to stock and the injury would increase in proportion to the added salt content.
A party by the name of Aylward.was operating an oil and gas lease on the west quarter of the land leased by appellee. There was a producing well in the extreme southeast quarter of that quarter section. There had been a salt water pond in appellee’s pasture to the north of the oil well. It was not in use in February, 1943, when the witness'McFarland made his first examination of appellants’ leases. It appears Aylward had probably drilled a salt water disposal well on his lease' in 1942. Appellants, however, stress the fact that the Aylward slush pond had been located on the highest elevation; that the witness McFarland had not been requested to make and had made no examination of the content or volume of salt water produced from the Aylward lease. We are not unmindful of those facts and probably the jury was not.
In what has been said we have not’ attempted to narrate numerous details contained in the oral testimony and exhibits before us. The entire record has received many hours of our attention. From such study we are forced to conclude that whether it reasonably could be inferred appellants were responsible for the pollution of appellee’s springs, ponds and water wells and whether the extent, if any, to which appellants polluted the water was sufficient to cause injury to appellee’s stock, were jury questions. In Donley v. Amerada Petroleum Corp., 152 Kan. 518, 106 P. 2d 652, a pollution case, we cited earlier cases and said:
“It .may also be noted that appellees were not obliged to exclude every other possible source of pollution after establishing facts from which it reasonably could be inferred that appellants had polluted the stream. The fact that appellants polluted the stream could, of course, be shown by circumstantial evidence. Such evidence in a civil case in order to be sufficient to sustain a verdict need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the jury. (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 86, 98 P. 2d 162; Brown v. Clark, 152 Kan. 274, 277, 103 P. 2d 907.) In other words, appellees having established a cause of action against appellants, it was thereafter not a prerequisite to recoveiy that it be shown appellants were the sole cause of the pollution. (Sternbock v. Consolidated Gas Utilities Corp., supra, p. 87.)” (p. 523.)
Appellants contend there was no evidence of' a chemical examination of the water in 1942. That is true. It was not imperative there should be proof of pollution by chemical analysis. (Klassen v. Creamery Co., 160 Kan. 697, 706, 165 P. 2d 601.) There was evidence the water was tasted and found to be very salty in 1942 and that the stock would not drink it; that the stock drank some of the polluted water in 1943 and lost stated amounts in weight in both the years 1942 and 1943.
Appellants emphasize the fact appellee testified that in the year 1942 the cattle did not drink the water. They argue if the stock did not drink the water by reason of its polluted condition it was not injured by polluted water. True, the stock could not have been injured by polluted water it did not drink. It, however, does not follow its polluted condition was not the cause of injury. Stock needs water and plenty of it. It certainly would be injured if it failed to get the needed supply of fresh water. We think the evidence sufficiently established a causal connection between the salt water from appellants’ leases and the injury to appellee’s stock to withstand a general demurrer. Appellants lean heavily upon Williams v. Gulf Oil Corp., 152 Kan. 672, 107 P. 2d 680, and other similar cases. We adhere to what was there said. The Williams case was a jury case and the record failed utterly to support the finding of the jury. Even at this distance we can understand some of the reasons the jury may have failed to agree in the instant case. That, however, does not alter the fact it was its province to agree or disagree.
Appellants also contend (1) no proper measure of damages was established; and (2) a verdict cannot be based on pure speculation and conjecture. The principle stated in point (2) must, of course, be conceded. The question remaining is point (1). On it appellants direct our attention primarily to the alleged lack of evidence with respect to the proper measure of damages to the stock. Damage was also claimed to the leasehold estate by reason of the alleged loss of its use due to pollution of the water. The testimony was the damage for that item was $800 per year or $1,600 for both years, the rental value which appellee had been required to pay. Appellants point out appellee’s evidence disclosed the stock was kept on the land during the grazing season. The fact remains there was evidence the use of the leasehold had been impaired. The jury was not obliged to believe the damage to the leasehold amounted to the entire $1,600. On demurrer we do not consider or weigh inconsistencies in the evidence attacked. (Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550; Robinson v. Short, 148 Kan. 134, 79 P. 2d 903.) The demurrer went to appellee’s evidence generally. We need, therefore, not determine whether a proper measure of damages was established with respect to every other item of damage» claimed.
Appellants insist the evidence furnished no basis for punitive damages and their separate demurrers to the evidence on the issue of punitive damages should have been sustained.
It is true, as previously stated, there was no evidence the mineralized substance overflowed appellants’ slush ponds or that it flowed over the surface of their premises onto the land used by appellee. Appellants contend that, although the ground sloped generally from the north to the south there was no evidence the water in the subsurface strata flowed in the same direction or that subsurface waters flowed from the west to the east of the ridge where most of appellee’s springs, ponds and water wells were located. They further argue there was no evidence appellants had knowledge of such facts, if they existed. It is therefore contended the evidence failed to establish wanton or malicious conduct on their part.
We have previously indicated the amount of salt water and salt which was deposited daily in appellants’ slush ponds from 1938' to February 1, 1944. Manifestly appellants were presumed to have knowledge of their own acts. Likewise they must have known of the loamy and porous character of the soil upon which their salt ponds were built and consequently that they would be subject to seepage. Appellants remind us there was no evidence with respect to the amount of salt the Phil-Han had placed in its salt water pond. There was, however, evidence all of appellants’ wells produced from the Arbuckle formation and what the salt content of the Arbuckle water was. Appellants’ complaint on this point, in view of the entire record, goes to the extent of damage rather than to the fact of damage.
We do not deem it necessary to narrate all of the testimony of the witness, John C. McFarland, state geologist, relative to his general investigation of appellants’ salt water ponds in the early part of February, 1943, or concerning his conversations with various representatives of appellants between February and August, 1943, relative to the condition of their ponds. It is sufficient to make a brief general summary of some of his testimony which, in substance, was:
His preliminary investigation of the ponds in February, 1943, disclosed they were in poor condition; they were seeping; unless there had been seepage some of the slush ponds could not have handled the volume of salt water that was being put into them; he contacted responsible representatives of all appellants and informed them that, in his opinion, -it was necessary for them to drill water disposal wells in order to properly handle the volume of salt water being produced; that their slush ponds were inadequate and useless in view of the seepage; he directed them to notify the state board of health with respect to their intentions of handling the salt water; he made later contacts and found the men in charge of the salt water disposal on the leases had received no word from their superiors concerning any definite plan of action; he learned only that some of the appellants were said to be contacting the other operators in the local area and had hopes of putting in a combination disposal well with other operators; he received one letter from Phillips dated February 19, 1943, in which it was said:
“This is to advise that we will attempt to work out some means of disposal with the other operators in this area.” •
McFarland further, in substance, testified: Only the appellant, Gulf, drilled a salt water disposal well and it was drilled on only one of its leases which was immediately to the east of -appellee’s land; it was drilled in June, 1943.
G. S. 1935, 55-121, provides:
“It shall be unlawful for any person, having possession or control of any. well drilled, or being drilled for oil or gas, either as contractor, owner, lessee, agent or manager, or in any other capacity, to permit salt water, oil or refuse from any such well, to escape upon the ground and flow away from the immediate vicinity of such well, and it shall be the duty of any such person to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof: Provided, however, That this act shall not be construed to apply to the escape of salt water, oil or refuse because of circumstances beyond the control of the person in the possession or control of such well and under circumstances which could not have been reasonably anticipated and guarded against.”
G. S. 1935, 55-122, makes it a criminal offense to knowingly and willfully violate -any provisions of the preceding statute.
It will be observed the statute does not merely prohibit the overflow of slush ponds. It also makes it the duty of the persons mentioned therein . . to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof.” The proviso portion of the statute indicates the circumstances under which the provisions of the statute shall not apply. Whether seepage from the ponds into the substrata-of the soil reasonably could have been anticipated by appellants, in view of the character of the soil, and guarded against, presented a question for the jury under proper instructions. Only the demurrer to appellee's evidence, and not the instructions, is now before us.
In the Donley case, supra, we held:
“The fact an act is unlawful and subjects a person to criminal prosecution is not in itself sufficient to determine liability in exemplary damages, but generally the intentional doing of a wrongful act with full knowledge of its character, and without cause or excuse, is malicious and warrants an award of exemplary damages.” (Syl. 11 5.)
Able counsel for appellants direct our attention to certain 'portions of the record more favorable to their clients than those we have mentioned. There may be much merit in the evidence referred to but on demurrer we do not compare evidence. We examine the record only for the purpose of ascertaining whether there is substantial competent evidence to support the issue, or issues, involved. Upon studious consideration we think we would not be justified in taking the issue of punitive damages away from the jury.
This brings us to appellee’s cross-appeal from three rulings of which he complains. Those rulings were: (1) The order requiring him to elect whether he would rely upon recovering damages to his leasehold estate, that is, the $1,600 rental he had paid for the years 1942 and 1943, or upon the damages for money expended in an effort to provide water for that estate; (2) the exclusion of testimony of a witness relative to purported tests of salt water he made in March, 1944, after the alleged damage by salt water in 1942 and 1943 and subsequent to the filing of this action; and (3) the -refusal of a requested instruction to the jury.
Before considering the cross-appeal on its merits we are confronted with appellants’ motion to dismiss that appeal. Appellants point out the jury failed to agree and was discharged and hence no verdict or judgment was rendered. They further contend: The rulings complained of by appellee, if erroneous, were trial errors; that in order to be reviewable a motion for a new trial was necessary; no motion for a new trial was filed and appellee is not entitled to be heard on his cross-appeal. Touching their contentions appellants cite various cases involving direct appeals from similar rulings prior to judgment and, after judgment, where such rulings were not presented by a motion for a new trial. They also cite cases involving cross-appeals decided prior to the adoption of the new cross-appeal statute in 1937. That statute, G. S. 1945 Supp. 60-3314, reads:
“When notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall within twenty days after the notice of appeal is filed with the clerk of the trial court, give notice to the adverse party, or his attorney of record, of his cross-appeal and file the same with the clerk of the trial court, who shall forthwith forward a duly attested copy of it to the clerk of the supreme court.”
It is not contended appellee failed to comply with the statutory procedure provided by the cross-appeal statute. The identical question now raised was squarely presented, insofar as exclusion of a plaintiff’s evidence was concerned, in Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P. 2d 820, and we held:
“Where a jury is unable to agree and a mistrial is declared and a demurrer to plaintiff’s evidence has been overruled, from which ruling the defendants appeal, the plaintiff is not precluded from having a review on a cross-appeal, of orders excluding testimony simply because she filed no motion for a new trial, when she has otherwise complied with the requirements of the statute for a cross-appeal.” (Syl. ¶ 4.)
All contentions of appellants in the instant case in support of their motion to dismiss the cross-appeal were fully considered and treated in the course of the opinon in the Walker case and need not be repeated here. The principal appeal in the instant case is only from the order overruling appellants’ demurrer to appellee’s evidence. We think points (1) aryl (2) of the cross-appeal, involving rulings which preceded the order from which the principal appeal was taken and which might affect a ruling on the principal appeal, are reviewable provided they are properly in the record before us for. review.
No order, verdict or final judgment in which instructions to the jury were involved is here for review. The order refusing the instruction requested by appellee is not reviewable.
The order requiring appellee to elect was, in our opinion, properly sustained. Appellee, of course, had the right to try his case on his own theory. It is not our function to indicate or suggest a different theory. He decided to sue for the sum of $1,600 as the total damage to his leasehold estate caused by pollution of the water. Having so decided he cannot recover that damage and also the items of expense involved in supplying the water to the leasehold estate. Appellee cites no authorities to the contrary.
Touching the excluded testimony the record does not reflect what the testimony of the witness actually would have been had he testified. All the record discloses is merely what appellee’s counsel claimed the testimony of the witness would be. The witness might, or might not, have so testified. It often has been held such a proffer is insufficient to be reviewable. (State v. Ball, 110 Kan. 428, 432, 204 Pac. 701; State, ex rel., v. Wright, 140 Kan. 679, 683, 38 P. 2d 135; Walker v. S. H. Kress & Co., supra, p. 56.) In the Walker case we held:
“In order for rulings excluding testimony to be reviewable, where there was no opportunity to present such testimony in support of a motion for a new trial, the record must nevertheless sufficiently disclose the testimony of the witness and the rulings thereon to enable the trial court and this court to properly pass thereon, and a mere general proffer by counsel to the court of what he hopes to prove by the witness is not sufficient.” (Syl. If 5.)
No reversible error is disclosed by appellee’s cross-appeal and the order overruling appellants' joint and several demurrers to appellee’s evidence is affirmed.
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The opinion of the court was delivered by
Parker, J.
In an action for the recovery of money accompanied by a garnishment proceeding judgment was rendered against the defendant debtor; and the garnishee, who* had filed answer admitting he owed such defendant more than the amount of the judgment, was directed to pay the sum of $716.37 to the clerk of the court in satisfaction of the judgment and costs notwithstanding motions of the defendant and an intervening defendant to discharge the garnishment. The garnishee complied with the court’s order. Thereupon, without making the garnishee a party, the judgment debtor and the intervenor each appealed from the portion of the judgment overruling their respective motions. Thereafter the appellee moved to dismiss the appeal on the ground the garnishee is a necessary party to appellate review of the trial court’s action on such motions.
While the ultimate question for decision on this appeal will be whether the trial court erred in refusing to discharge the garnishment its determination is not now involved for the present issue is limited to the motion to dismiss the appeal. On that account the facts upon which the controversy depends are of no importance here and no attempt has been made to relate them in detail. What has heretofore been briefly stated is sufficient to present the general proposition of whether in this jurisdiction a garnishee, who has paid money into court pursuant to judicial mandate, is a necessary party to an appeal from a judgment refusing to release the funds so impounded.
.Our statute (G. S. 1935, 60-3306) authorizing the taking of appeals to the supreme court by notice filed with the clerk of the trial court provides that a copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal.
■ In defining the meaning of the phrase “all adverse parties whose rights are sought to be affected by the appeal,” we held in Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455, that:
“An adverse party in a civil action on whom notice of appeal to the supreme court must be served (under G. 8. 1935, 60-3306) is a party to the litigation, to whose interest it is that the judgment of .the trial court be upheld, and who is interested in opposing the relief sought by appellant.” (Syl. 111.)
We have often held that where a judgment against several defendants is brought to this court for appellate review and it appears that a modification or reversal of the judgment will affect a defendant who has not been made a party the appeal will be dismissed. A few of our many cases to that effect are, Protzman v. Palmer, supra; White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P. 2d 1041; Loan Co. v. Lumber Co., 53 Kan. 677, 37 Pac. 132; Tuthill v. Moulten, 9 Kan. App. 434, 58 Pac. 1031.
See, also, Investment Co. v. National Bank, 56 Kan. 49, 53, 42 Pac. 321, where we said:
“The rule is, that the absence of a party to a judgment who may be prejudicially affected by a modification or reversal is sufficient to defeat the jurisdiction of this court, and there can be no review of any part of the judgment. (Loan Co. v. Lumber Co., 53 Kan. 677, and cases cited..)”
At this point we deem it proper to note the wording of one of the sections of our statute authorizing the maintenance of garnishment proceedings. G. S. 1935, 60-951,'reads:
“The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant, as parties defendant, and all the pro- • visions for enforcing judgments shall be applicable thereto
That the language appearing in the foregoing quoted section means just what it imports, that a garnishment proceeding is separate. and distinct from the main action even when instituted in conjunction therewith, and that the garnishee is a party to the garnishment action, is well established by our decisions (Cole v. Thacker, 158 Kan. 242, 146 P. 2d 665; Stephens College v. Long, 156 Kan. 449, 451, 134 P. 2d 625).
Appellee in support of its motion to dismiss relies upon but two decisions. They are Yerkes v. McGuire, 54 Kan. 614, 38 Pac. 781 and Stephens College v. Long, supra. Those cases deal with situations where the garnishee had been discharged and the appeal was from the order of discharge. In each we held that where it is sought to reverse such an order the garnishee must be made a party and that in the event of failure to do so the appeal must be dismissed.
To the same effect, although not cited by appellee as authority, is Tuthill v. Moulten, 9 Kan. App. 434, 58 Pac. 1031. Such decision is particularly significant for the reason, that at page 435 in the opinion in commenting upon the legal status of garnishees in a garnishment proceeding, the court said: “They are parties to the Cause, under the provisions of the act, and necessary parties in this court to give it jurisdiction to review the judgment.”
Appellants concede all our decisions hold the garnishee must be made a party to an appeal from an order discharging him from liability, but insist they are not authority for holding he is a necessary party where it is sought to reverse a judgment upholding the garnishment under circumstances where a garnishee — as in the case at bar — has paid into court the money he admittedly owes the defendant.' They point out we have never squarely held that in such a situation the garnishee must be made a party and direct our attention to a statement to be found at page 451 of the opinion of Stephens College v. Long, supra, which reads:
“It might, perhaps, be contended that the garnishee would not be a necessary party to an appeal from an order directing him to pay over to the plaintiff funds in his hands belonging to the principal defendant. That would be on the theory that it is no real concern to him whether the plaintiff or defendant prevails and that pending the appeal the funds remain impounded. . . .”
We do not regard the language just quoted as authority for a Contention the garnishee is not a necessary party under the cir cumstances here involved. The most that can be said for it is that it merely recognizes an argument to be advanced in support of such a contention without any indication as to the weight to be given it if and when presented in a proceeding depending on the present factual situation.
Next appellants rely on Reighart v. Harris, 5 Kan. App. 461, 49 Pac. 336, where it was held:
“A garnishee who has, by stipulation in the case, been released from the liability of having a judgment rendered against him, and has been converted bjr such stipulation into a mere stakeholder or custodian of funds, holding them subject to the order of the court, is not a necessaiy party to a petition in error to review an order discharging such funds so held by such garnishee from the lien of said garnishment.” (Syl. IT 1.)
They insist the ■ foregoing decision is to be regarded as decisive of their position and claim the disinterestedness of the garnishee in the outcome of the present appeal is even greater than the disinterestedness of the garnishee there, in that there the garnishee had a stakeholder’s interest in the outcome of the appeal, while here the clerk is the stakeholder and the garnishee is out of the case. We do not agree. Their argument, among other things which we need not now relate, entirely overlooks the fact there was a stipulation between all the parties in Reighart v. Harris, supra, whereby it was agreed the garnishee was to hold the' money for whoever won the lawsuit and was to be entirely absolved of liability regardless of its outcome. We have no such situation here and that-case neither adds weight to their argument nor supports their position.
From a somewhat extended examination of our reports we are convinced, as appellants suggest, there are no decisions in this jurisdiction flatly holding a garnishee is a necessary party to appellate review of an order refusing to discharge a garnishment. Even so, that fact does not justify their inference such an individual need not therefore be joined as a party. It simply means that once the question is submitted for appellate review it will be decided in the light of the statute and any decisions having application to its determination. Now the question has been submitted, in line with the intimation to be gleaned from the language heretofore quoted from the opinion in the early case of Tuthill v. Moulten, supra, we are inclined to hold the provisions of G. S. 1935, 60-951, and our decisions construing their force and effect require the conclusion that a garnishee, being an essential party to a garnishment proceeding, is a necessary party to a review of that proceeding on appeal.
However, our decision need not be predicated upon that proposition alone. There is another reason, sound in principle, which compels a similar conclusion. This court has always held that even though a garnishee has paid money into court under judicial fiat he is nevertheless liable to the defendant in a suit to recover the money so paid by him to the depository designated in the event that thereafter such funds have been paid out to some person other than the defendant under a void and illegal garnishment judgment. See Mo. Pac. Rly. Co. v. Sharitt, 43 Kan. 375, 23 Pac. 430; Ludvickson v. Bank, 105 Kan. 225, 182 Pac. 396; Egnatik v. State Bank, 114 Kan. 105, 216 Pac. 1100. If a garnishee may become liable to the principal defendant by virtue of the conditions and circumstances just related it necessarily follows that under all our decisions construing the provisions of G. S.' 1935, 60-3306, to which we have heretofore referred, the garnishee under the facts of the instant case is one to whose interest it is that the judgment of the trial court be sustained and is therefore a necessary party to appellate review of the orders refusing to discharge the garnishment.
In reaching the conclusion just announced we have not been unaware of G. S. 1935, 60-960, which has been in our statute and a part of the law of this state since 1868 (G. S. 1868, ch. 80, sec. 216). In part that section reads:
“A garnishee may pay the money owing to the defendant by him to the sheriff having the order of attachment or into court. He shall be discharged from liability to the defendant for any money so paid not exceeding the plaintiff’s claim. . . .”
Notwithstanding, we point out that the three decisions to which we have last referred were all handed down with such section in full force and effect. The result is it must be regarded as applicable to judgments which are valid, not void, and in no sense detracts from our decision to the effect the instant garnishee has rights which may be prejudicially affected by a modification or reversal of the garnishment judgment.
Heretofore we have referred to our decisions holding that where a necessary party is not made a party to the appeal the appellate proceeding must be dismissed. However, incredible as it may seem, in the reported cases resulting in a dismissal on that account we find no instance where the losing party sought to avoid the consequences of a failure to make all parties necessary to the appeal by requesting permission to amend his notice of appeal by bringing in an additional party 'or parties prior to a hearing on the merits and only one (Ryan v. Cullen, 89 Kan. 879, 888, 133 Pac. 430) where it is suggested the appellant had that right under existing provisions of our code of civil procedure. Even there the question was not passed upon because of other reasons which made its decision unnecessary.
In the present action, yet to be heard on its merits, appellants have requested in writing that if their claim the garnishee is not a necessary, party is denied, then, and in that event, they be .permitted to amend their appeal notice and bring him into the appeal proceeding. Having rejected their claim we now give consideration to their request. As we do so the provisions of G. S. 1935, 60-3310, should first be noted. They read:
"Any notice of appeal may be amended at any time by bringing in additional parties or otherwise, before the hearing, as to the appellate court may seem fit, . . .”
No useful purpose will be served by indulging in a lengthy discussion regarding the force and effect to be given the section of the statute from which we have quoted. Its language is clear, distinct and unequivocal. We regard it as a positive legislative mandate directing us to permit the bringing in of additional parties in appellate proceedings by amendment of the appeal notice except in those cases where, in the exercise of the discretion vested in us by its terms, we would feel justified in holding that due to neglect, laches or some other action on the part of the appealing party it clearly appears the appellee’s rights with respect to the merits of the appeal have been materially affected or unduly prejudiced by failure to include all necessary parties. In the instant case our attention is not directed to anything and we observe nothing which permits such a conclusion. Appellants, by their motion, have brought themselves clearly within the statute and under all the circumstances it is apparent it expressly provides for the relief they seek. Of a certainty, in view of its unequivocal mandate, to refuse their request and dismiss the appeal would be extremely technical and in our opinion result in an abuse of the discretion vested in us by its provisions.
In conclusion it should be noted that although the statute has not been relied on for purposes here involved its beneficial provisions have been invoked and ’ relief granted in connection with other matters included within its terms under conditions indicating it is entitled to a liberal construction. .See McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 115, 122 P. 2d 787; Boss v. Brown, 132 Kan. 86, 88, 294 Pac. 878; Vincent v. Werner, 140 Kan. 599, 602, 38 P. 2d 687. See, also, Salt City B. L. & S. Ass’n v. Peterson, 145 Kan. 765, 767, 67 P. 2d 564, where the rule of the statute is recognized but permission to amend the appeal notice was denied because the original appeal as taken was a nullity.
The motion to dismiss the appeal is denied. Appellants’ application to amend the notice of appeal, by bringing in C. E. Edwards, garnishee, as an additional party, is granted and he will be recognized as such upon service of the amended notice in the manner provided by statute.
Hoch, J., not participating.
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The opinion of the court was delivered by
Hoch, J.
This was an action to recover damages for personal injuries alleged to have been caused by the negligent operation of an automobile. The jury brought in a general verdict for the plaintiff and answered special questions. A motion by defendant for judg ment on the special findings notwithstanding the general verdict was sustained and the plaintiff appeals. In view of our conclusion presently to be stated as to the manner in which this appeal should be disposed of, a brief summary of the situation presented will suffice.
The appellant, Ada Carmichael, while crossing Massachusetts avenue in the city of Lawrence at about 11:30 p>. m., was struck and severely injured by a taxicab operated by an employee of Glenn Bailey, since deceased. The acts of negligence alleged in the petition need not be recited. Jury trial was had and a general verdict returned for the plaintiff in the amount of 11,318.85. In response to special questions submitted, the jury also returned eleven findings of fact. The plaintiff, being dissatisfied with the amount of recovery, filed a motion for a new trial; first, on the one issue as to the amount óf damages; and second, if not granted on that one issue, then for a new trial generally. There was no ruling upon the motion. The defendant’s motion for judgment non obstante veredicto, which was sustained, was based upon question and answer number 11 which were as follows:
“Q. If the jury finds that the plaintiff, Ada Carmichael, is entitled to recover from the estate of Glenn Bailey, deceased, in this case, then state what was the proximate cause -of the accident. A. Negligence on the part of the defendant. Limited negligence on the part of the plaintiff.”
The plaintiff filed an appeal to this court both from the order süstaining the defendant’s motion for judgment non obstante and “from the judgment, decree and orders of the district court of Douglas county, Kansas, made on the 21st day of December, 1946, wherein the.court refused to pass upon plaintiff’s motion for a new trial although the same was presented and argued by both plaintiff and defendant.” (Italics supplied.)
In her specifications of error, the plaintiff stresses certain of the trial court’s instructions to the jury which she contends were erroneous and prejudicial. The issue covered by one or more of these instructions was argued by counsel on both sides, prior to the giving of the instructions. When the court adopted the defendant’s view 'and gave the instructions accordingly, the plaintiff objected to the instructions. The issue was again raised and argued upon the motion for a new trial. Regardless of all this, the trial court declined to rule upon the motion for a new trial, and sustained defendant’s motion for judgment on the ground that the jury’s answer to ques tion 11 convicted the plaintiff of contributory negligence which barred recovery. One paragraph of the journal entry of judgment reads:
"That the motion of the plaintiff for a new trial in this action be and the same is not determined although requested by plaintiff.” (Italics supplied.)
This can only be construed as a refusal, to rule upon the motion for a new trial.
It is urged by appellant that the instructions, alleged to be erroneous, required the jury to answer,, unfavorably to her, material questions submitted, and should be reviewed by this court.
An unusual situation is presented. We have repeatedly said that in order to secure review of trial errors — at least those from which no independent appeál will lie — a motion for a new trial is necessary. (Buettinger v. Hurley, 34 Kan. 585, syl. ¶ 2, 9 Pac. 197; Fairfield, Assignee v. Dawson, 39 Kan. 147, syl., 17 Pac. 804; Duigenan v. Claus, 46 Kan. 275, syl. ¶ 1, 26 Pac. 699; State, ex rel., v. Telephone Co., 115 Kan. 236, syl. ¶ 8, 223 Pac. 771.) Here we have such a motion, but it is said that since there was no ruling upon the motion, the matters raised by it are not here for review. In somewhat similar situations, some courts have treated a refusal to rule upon a motion for a new trial where the matters complained' of have been called to the trial court’s attention, as tantamount to an overruling of the motion. In some cases it has been said that the motion would be considered as overruled “as a matter of law.” (4 C. J. S. § 320, pp. 653, 654; § 321, p. 657 ¶ f; § 363, pp. 791, 792; Larson v. Long, 73 Colo. 241, 244, 214 Pac. 539, 540; Lichtenstein v. Fish Furniture Co., 272 Ill. 191, 194, 111 N. E. 729, 731; Georgia Casualty Co. v. Boyd, 34 F. 2d 116, headnote 1; Davis v. Union Meeting House Society, 92 Vt. 402, 405, 105 Atl. 29, 30; Brush v. Laurendine, 168 Miss. 7, syl. ¶¶ 5, 6, 150 So. 818; City of Brownsville v. Tumlinson [Tex. Civ. App.], 179 S. W. 1107, 1109.) Even if we were to adopt a similar view in this case, we would still be confronted with the difficulty that the movant herself did not in her appeal to this court specifically treat the trial court’s refusal to rule as an overruling, by implication, of the motion for a new trial. She simply appeals from an order “wherein the Court refused to pass upon plaintiff’s motion for a new trial.” Refusal to rule is not made appealable by any specific provision of the code.
We are led to a further inquiry. ■ Although the instructions were not brought here for review by appeal from an order overruling a motion for a new trial, can they be considered in determining the appeal from the order sustaining defendant’s motion for judgment on the special findings? We have held that in considering a motion for judgment on special findings, non obstante veredicto, we consider the pleadings, the special questions and answers thereto, the general verdict, the motion for judgment on the answers to the special questions and the court’s ruling upon the motion; that no abstract of the evidence is necessary, or even proper, since the motion admits that there was evidence to support the jury’s answers. (Dye v. Rule, 138 Kan. 808, 811, 28 P. 2d 758; Richards v. Kansas Electric Power Co., 126 Kan. 521, 526, 268 Pac. 847.) As far as our research discloses, we have never said specifically that in no case can instructions be considered when the only appeal before us is from a judgment on special findings, non obstante, although such a conclusion may be strongly implied in some of our decisions. In the present case, appellant contends that some of the jury’s answers to special questions, material to the issue, were required under the instructions alleged to be erroneous. Whatever force there may be to the argument that in such a situation the instructions should be considered, that question has not been briefed in this case and the appeal will be disposed of without going into it. However, the conclusion is inescapable that appellant’s rights would be overridden if we were to disregard entirely the instructions and the trial court’s refusal to rule upon the motion for a new trial and isolate, for sole review, the judgment on the special findings.
It is clear that the trial court should first have ruled upon plaintiff’s motion for a new trial. If sustained, the special findings would of course have been wiped out along with the general verdict. If overruled, the plaintiff would then have had a formal and appeal-able order 'making alleged trial errors reviewable. However unintentional the result, the trial court’s refusal to rule upon the motion constituted a denial of appellant’s rights. Whether in her present situation appellant might have sought other relief, by mandamus or otherwise, we are not here asked to determine.
The judgment and the order sustaining defendant’s motion for judgment on the answers to special questions notwithstanding the general verdict should be set aside, to be later ruled upon only if and when such ruling becomes appropriate. The trial court should thereupon rule upon plaintiff’s motion for a new trial. In so directing, we are in no way passing upon the merits of either plaintiff’s motion for a new trial or defendant’s motion for judgment, non obstante.
The case is remanded for further proceedings in harmony with this opinion.
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The opinion of the court was delivered by
Thiele, J.
Herman Greer was convicted of a violation of G. S. 1935, 21-435. His motion for a new trial was denied and he has appealed to this court.
Preliminary to a discussion of alleged errors occurring at the trial, the evidence will be reviewed briefly. . There was conflict in the testimony between witnesses for the state and for the defendant, and some discrepancy where the evidence of one witness is compared with that of another, but as has been held, the credibility of witnesses and the weight of their testimony are not subjects of appellate review, and in considering the sufficiency of evidence to sustain a conviction, this court looks only to evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, the conviction stands. See State v. Jeffers, 161 Kan. 769, 173 P. 2d 245; State v. Smith, 158 Kan. 645, 149 P. 2d 600; State v. Thomas, 155 Kan. 374, 125 P. 2d 375; State v. Wood, 145 Kan. 730, 67 P. 2d 544; and cases cited. Under the rules stated the following facts were shown.
T. J. Allen was a bus driver for the Kansas City Public Service Company and drove a bus from its downtown garage at 1:00 o’clock, a. m., on October 13, 1946. His route took him to Thirty-second street and Quindara boulevard in Kansas City, Kan. At that point Ima Gilkey, a colored girl, boarded the bus. At Thirteenth street and Quindara boulevard, Rose Lovitch, a white woman, became a passenger. At Seventh street and Quindara boulevard, Herman Greer and his friend, Kenneth Micks, both colored, staggered across the street and boarded the bus. Although there were plenty of empty seats, Greer seated himself with Ima Gilkey, with whom he was not acquainted, and Micks took the empty seat just ahead. After the bus moved on for some distance Allen, the driver, saw by a rear view mirror that there was a disturbance and turned around and asked Ima Gilkey if Greer was annoying or molesting her. She answered that he was and Allen stopped the bus, picked up a club or stick about two inches thick, two inches wide and two feet long, used in connection with testing or removing tires, and went back to where Greer was sitting. There was some talk, a threat to use the club, and Micks said he would look after Greer. At that time Ima Gilkey moved to the front of the bus. Later, when the bus reached Seventh and Minnesota streets, Greer moved to the front of the bus and made some remarks to Allen and to Rose Lovitch. When the bus reached Sixth and Minnesota streets and stopped, Greer took a razor out of his- pocket and cut Allen along the side of the head and across the fingers. Allen immediately defended himself with the aforementioned club and in the ensuing altercation Greer and Allen got out of the bus and into the street where the fight continued. Other persons came up and saw Greer attempting to slash Allen with the razor, and at that time Greer ran. Shortly thereafter Greer was apprehended in a nearby alley, where he was found lying down. Near the place where he was arrested a razor was found which was later offered in evidence, and it will be referred to later.
In a preliminary way it may be said that appellant’s abstract does not contain his motion for a new trial, but does contain an affidavit of his attorney, which is later mentioned. The specifications of error in the abstract note eleven instances wherein the'trial court is said to have erred. In his brief, appellant does not take up these specifications. His brief is divided into two main headings— “Preliminary Statement” and “Brief,” but under both headings may be found assertion of contention that the trial court erred. We shall review the matters as presented under both headings.
Appellant contends the trial court erred in refusing, to permit him to cross-examine the state’s witnesses to show the interest of the Kansas City Public Service Company in the outcome of the action. The abstract does not disclose any objection sustained to any such question. In appellant’s brief it is said, in part, “. . . strange to say counsel’for Greer searched the Transcript and he was unable to find this part of the proceedings — but counsel was there and cross-examined until the Court sustained an objection.” There is no showing whatever that appellant made any effort to have the transcript corrected, if it was not correct. In addition there is no showing the matter w>as included in his motion for a new trial, no showing what the so-called excluded evidence would have disclosed, and there is nothing before us for discussion.
Appellant also contends that he was prejudiced in that his case was tried before other cases which’ had been docketed ahead of his. We dispose of all argument under this contention by stating the record discloses that not only did appellant not ask for a continuance on the above or any other ground, but when the trial started and before a jury was impaneled, he announced he was ready for trial.
Appellant also contends that the trial court erred in admitting in evidence the razor found near the defendant when he was arrested, and' is based on the following: The razor introduced in evidence is said by appellant to have a cream colored handle. Rose Lovitch had testified that she saw the razor at the time Greer attacked Allen in the bus, and the razor had a white handle. The abstract does not show the direct examination of Ima Gilkey on the point, but does show-that on cross-examination she was asked whether she had not testified at Greer’s preliminary examination that the razor had a black handle, which she. denied. She stated she had said it had a white handle. In its comments on the motion for a new trial, the trial court stated some witness used the word “cream colored” but that the court did not know what the fine distinction between a white and cream color was, and that it was the function of the jury to determine the fact. We shall not labor the matter further. Enough has been stated to show that only a question of fact was presented.- There was no error in receiving the razor in evidence simply because some witness may not have described it as another did.
Complaint is made by the appellant that the state did not produce the club which has been mentioned. Appellant seems to have made no effort to procure it if needed for evidence. On the contrary it produced and used another piece of wood, said to have been like the one mentioned. According to appellant’s brief, at the preliminary hearing the state had not produced the original club, but had produced another said to have be,en similar. Appellant now contends the state suppressed evidence. We do not.think so— the whole matter seems to have been brought out. Appellant was not prejudiced under the circumstances.
Appellant contends that he was prejudiced by the closing argument of the state. There is no showing whatever in the abstract as to what was said, and the matter is not open to review.
Mention has been previously made of an affidavit by appellant’s counsel, used on the motion for a new trial. In part it states that affiant had a conversation with one of the jurors who told him appellant was convicted by reason of his previous criminal record. Passing any question of impropriety of counsel’s making such an affidavit, and of the insufficiency of such a showing- to present the question, we note that when appellant took the stand in his own behalf, his own counsel developed the fact appellant was an ex-convict. On cross-examination the state inquired as to the number of times appellant had been arrested, and there was no objection lodged to any question. If there was any error shown, appellant invited it and will not be heard to complain. Appellant says further, the trial court should have instructed on the purpose for which the evidence was admitted. No request for such an instruction was made nor was any objection made to the instructions given. Appellant has not abstracted the instructions, but the state, by counter-abstract, has shown them fully. Without analyzing them, we are of opinion the cause was submitted upon proper instructions.
Appellant also finds fault with remarks made by the trial court when ruling on the motion for a new trial. Appellant’s counsel had called attention to the. fact his client had been in the army, and had been taught how to kill, and stated that if the appellant had attempted to do what he was charged with, he would have been able to do it, and the fact he had not done so was proof he had not made such an attempt. In its remarks the trial court in effect stated it was fortunate appellant was not being tried for murder— that appellant had no excuse for “toting” a razor unless he was a bully or a coward, and it would have been better had he not mentioned he was an ex-soldier for the very good reason he would not want to reflect on the reputation of good soldiers. We cannot construe this into prejudice against the appellant,. or that he did not have a fair trial.
A patient consideration of the record as abstracted shows that the principal question in the case was whose version of the facts was to be believed. The jury resolved that issue against the appellant. His contentions that error was committed during his trial or subsequent thereto cannot be sustained.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Smith, J.
This is an original action in mandamus brought by the state on the relation of the county attorney of Pratt county to compel the auditor of state to register $800,000 of county hospital bonds which he had refused to register because he claimed this amount of bonds would be more than the county is authorized to issue under G. S. 1935, 10-301. The defendant filed a pleading denominated “Answer and Objections” to the issuance of a.writ. The parties stipulated as to the facts. The cause was finally submitted on the question of whether a peremptory writ should issue.
Because several counties in the state will be affected by our decision and on account of the public nature of the matters involved we advanced the cause and it was submitted at the June session.
Briefly the facts are as follows:
•The assessed tangible valuation of Pratt county is $31,453,878. One percent of that assessed valuation is $314,538.78. The issue of bonds offered amounts to $800,000.
G. S. 1935, 10-301, provides as follows:
“Except for the refunding of outstanding debt, including outstanding bonds and matured coupons thereof, or judgment thereon, no bonds of any class or description shall hereafter be issued by any county, township, city, board of education or school district where the ..total bonded indebtedness of such county or township would thereby exceed one percent of the assessment for taxation, as shown by the last finding and determination by the propér board of equalization or where the total bonded indebtedness of such city, school district or board of education would thereby exceed one and one-fifth percent of such assessment; but this restriction shall not apply to cities of the first class.”
This is what is commonly known as the general bond limitation statute. If it applies to the present situation, then the auditor is correct and he should not register the entire $800,000 of bonds because such amount would exceed one percent of the assessed valuation of Pratt county. If it does not apply, then he is wrong and the bonds should be registered.
The bonds were issued pursuant to G. S. 1945 Supp. 19-1801 and 19-1801a. Those two sections are chapter 168 'of the Laws of Kansas for 1945. They provide:
“Any county having less *than 40,000 inhabitants may establish a .county hospital in the following manner: Whenever the board of commissioners of any county shall be presented with a petition signed by 25 percent of the resident freeholders of such county, 101 percent of whom shall not be'residents.'of the city, town or village where it is proposed to locate such public hospital, ashing that a tax may be levied for the establishment and maintenance of a public hospital at a place in the county named therein, and shall spécify in the petition the maximum amount of mloney proposed to be expended in'purchasing or building said hospital, such board of commissioners shall submit the question to the qualified electors of the county at the next general election to be held in the county, or if no general election shall be held within six months from the date of the presentation of said petition, then at a special election called for that purpose, if requested in the petitions, which tax shall not exceed' two (2) mills on the dollar for any one year and be for the purchase of a site or sites and the erection thereon of a public hospital or hospital buildings, and for the support of the same; which tax shall be in addition to'all other levies authorized by law and shall not be subject-to the limita tions prescribed by section 79-1947 of the General Statutes Supplement of 1943 or acts amendatory thereof or supplemental thereto; which said election shall be held at the usual places in such county for electing county officers, the vote to be canvassed in the same mianner as that for county officers.
“The board of county commissioners of any county which has voted in favor of the establishment and maintenance of a county hospital under the provisions of section 19-1891 of the General Statutes of 1935 or any amendments thereto is hereby authorized and empowered to issue bonds of such county for the purpose of purchasing a site, constructing or purchasing a hospital building and equipping the same. Such bonds shall be issued, sold and retired under the provisions of article 1, chapter 19 of the General Statutes of 1935 and acts amendatory thereof and supplemental thereto. The amount of bonds which may be issued hereunder shall not exceed the maximum amiount stated in the original petition requesting the election for the establishment and maintenance of such hospital.”
It will be noted that G. S. 1945 Supp. 19-1801, being section 1 of chapter 168, of the Laws of 1945, provides for a two-mill levy after the filing of a petition for the purchase of a site or sites and the erection thereon of a public hospital and for the support of this hospital. G. S. 1945 Supp. 19-1801a., being section 2 of chapter 168, provides that in counties where the people have voted in favor of the establishment and, maintenance of a county hospital under the provisions of the foregoing section, the commissioners are authorized to issue bonds of the county for. the purpose of purchasing a site and constructing or purchasing a hospital building and equipping it. The section then provides that these bonds shall be issued, sold and retired under the provisions of article 1, chapter 10 of the General Statutes of 1935 and acts amendatory thereof and supplemental thereto. The last sentence provides that the amount of bonds which may be issued under the act shall not exceed the maximum amount stated in the original petition requesting the election for the establishment and maintenance of a hospital. This sentence above undoubtedly refers to the petition which G. S. 1945 Supp. 19-1801 provides must be signed by 25 percent of the resident freeholders of the county before the election can be called.' It should be noted in passing, however,- that the two percent- levy, as provided for in G. S. 1945 Supp. 19-1801 is for the purchase of a site or sites and the erection thereon of a hospital and the support of it, while the next section, that is, G. S. 1945 Supp. 19-1801a, provides for the issuance of bonds for the purchasing of a site or constructing or purchase of a hospital building and equipping it, and has no provision about supporting it. G. S. 1943 Supp. 79-1947, to which reference- is made in G. S. 1945 Supp. 19-1801 is the general tax limitation statute for counties. It need not concern us here.
The plaintiffs point out first that G. S. 1945 Supp. 19-1801a provides that the bonds isued thereunder shall be issued under the provisions of article 1 of section 10, G. S. 1935. They argue that since the statute provides that the hospital bonds should be issued under the provisions of the foregoing chapter and section and since the general limitation statute, that is, G. S. 1935, 10-301, is a part of article' 3, not article 1, the legislature did not intend for that statute to be a limitation upon the bonds issued pursuant to section 19-1801a.
This argument sends us to an examination of article 1 of chapter 10 of G. S. 1935.. This article, being G. S. 1935, 10-101 to 10-127 is a general bond statute for municipalities. It sets out generally the manner in which bonds sh^ll be issued. G. S. 1935, 10-103 provides that all municipal bonds shall run not longer than 20 years with interest at the rate of not to exceed five percent and other provisions of a like nature. G. S. 1935, 10-101 provides for a limitation on improvement bonds. G. S. 1935,10-105 provides how the bonds shall be signed by the officers. G. S. 1935,10-106 provides how they shall be sold. G. S. 1935,10-107 provides for their being registered. G. S. 1935, 10-108 provides that before they become valid, a transcript of the bonds shall be filed with the state auditor. G. S. 1935,10-109 provides for a statement for the benefit of the auditor. There are other provisions of a like nature in the article. Nowhere in the article is there a limitation as to the amount of bonds that may be issued by a county. These provisions would have applied to bonds issued pursuant to G. S. 1945 Supp. 19-1801 and 19-1801a, even had no reference to them been made when the statute was enacted. They simply provide the procedural steps for issuing bonds.
Article 2 of chapter 10 of the General Statutes of 1935 provides for the issuance of bridge and- poor bonds. Article 3 contains G. S. 1935,10-301, which we have already quoted in this opinion.
This section was enacted for the first time apparently as section 3 of chapter 50 of the Laws of 1879. It has appeared in almost the same form in every compilation of laws since that time. Other municipalities than counties have been taken out of it by subsequent enactments. (See Arkansas City v. Turner, 116 Kan. 407, 226 Pac. 1009.) It is still a familiar provision, however, to all county officers who are interested in issuing bonds and those who are interested in examining transcripts for the benefit of bond purchasers. In one way or another it has been before this court many times. It is a part of the policy of this state to safeguard-the taxpayers of the counties ' of the state by preventing as nearly as possible the issuance of an excéssive amount of bonds having regard to the assessed valuation of the counties. In very few instances have Kansas municipalities ever defaulted on their bonds. It is so well established as the legislative policy of this state that we would not strike it down by interpretation of a statute unless it clearly appeared that such was the intention of the legislature.
The plaintiffs argue that had the legislature intended that the limitation contained in G. S. 1935, 10-301, should be a limitation on the amount of bonds that might be issued' pursuant to section 2 of chapter 168 of the Laws of 1945 (G. S. 1945 Supp. 19-1801a), it woud have made some reference to the section in the enactment of chapter 168, whereas it only referred to article 1, which is a preceding article. The contrary is the correct rule, as stated by this court. In State, ex rel., v. Wyandotte County, 101 Kan. 430, 166 Pac. 520, we were considering the question of whether or not certain bridge and refunding bonds should be considered in calculating whether thé outstanding bonded indebtedness of Wyandotte county exceeded the one percent of its assessed valuation, as provided by the statute we are discussing. It was argued that for certain reasons the refunding bonds should not be included in this one percent. This court held that they should be included and said: '
“If the legislature had intended to exclude them from future estimate of the total bonded indebtedness of the county, doubtless it would have declared its intention in unmistakable.terms.” (p.433.)
Since this case was submitted we have been favored with an able brief as amici curiae, by counsel who represent Riley county, which is in much the same situation as Pratt county. Counsel in this brief point out that the general bond limitation statute, that is, G. S. 1935, 10-301; has been on the books since 1879. They point out that county hospitals were first authorized in 1913. They argue that the limitations enacted in 1879- was only intended to cover the type of bonds which were generally issued at the time that.statute was first enacted, and since there were no county hospital bonds at that time, that what this court said in State, ex rel., v. Robb, 143 Kan. 527, 55 P. 2d 815, is in point. There we were considering the question of whether counties, were limited -in their issuance of poor relief bonds by the terms of G. S. 1935, 10i301. We said there was room.for argument that the legislature in enacting that statute had in mind only ’the kinds and classes of bonds then.known.to our law and it could not be said that the legislature intended it to apply to the kind or classes of bonds then unknown. The court in that case was considering a statute which provided for the issuance of poor relief bonds under certain circumstances. The act itself contáined a limitation that in 1935 amount of bonds should not exceed one-third of one percent of the valuation, and in 1936 one-half of one percent and in 1937 one-tenth of one percent. While this court did use the language to which reference has been made, we in fact held that by the provisions just referred to as far as poor relief bonds were concerned the act really amended G. S. 1935, 10-301. The opinion also stated various other grounds than the ones to which reference has been made, upon-which the conclusion reached in it was based. We cannot give the opinion the weight urged upon us by counsel.
Counsel in their brief as amici curiae also point out one other provision, which they argue requires us to follow the rule announced in State, ex rel., v. Robb, supra. That is the last sentence in G. S. 1945 Supp. 19-1801a, which reads:
“The amount of bonds which may be issued hereunder shall not exceed the maximum amount stated in the original petition requesting the election for the establishment and maintenance of such hospital.”
This provision makes no reference whatever to the relationship, which the amount of the bonds to be issued bears to the assessed valuation of the county. That is the important criterion for the reason heretofore stated in this opinion. It is merely a safeguard so that the amount of the bonds which could be issued following the election will not exceed the amount provided in the petition signed by twenty-five percent of the resident freeholders of the county.
We conclude that the limitation provided for in G. S. 1935, 10-301, applies to bonds issued pursuant to G. S. 1945 Supp. 19-1801a. We are fortified in this conclusion somewhat by events that'transpired in the session of the legislature for 1947 and which now. require our consideration. At that session senate bill 222 was introduced. It provided that G. S. 1935, 10-301 should be amended so that the limitation provided therein would not apply to bonds issued pursuant to G. S. 1945. Supp. 19-1801a. At the same time house bill 131 was introduced. As introduced it provided that G. S. 1935, 10-301, be amended in certain particulars, with which we are not interested. It passed the house after some amendments with which we are not now concerned. It was sent to the senate in due course. There it was amended in the committee 'on federal and state affairs by insertion of the following language:
“But this restriction shall not apply to the issuance of bonds purusant to Article 3a of Chapter 39 of the General Statutes of 1935 or acts amendatory thereof or supplemental thereto; and this restriction shall not apply to the issuance of bonds pursuant to Article 18 of Chapter 19 of the General Statutes of 1935 or acts amendatory thereof or supplemental thereto.”
It was duly passed by the senate and as so amended was messaged to the house; the house concurred in the amendment. It seems the bill was duly engrossed, still containing the last amendment, and in due time was enrolled. It appears, however, that the copy of the bill as it went to the state printer had this particular amendment typed on a separate piece of paper and attached to the back of the bill. The copy of the amendment did not come to the attention of the employees at the state printing plant and on the return of the bill to the house and senate no one noticed that the amendment had not been printed as part of the bill, and it was signed by the officers of both houses without the amendment. In that form it was submitted to the governor and duly signed by him. The result is that the bill as passed by both houses of the legislature contained the senate amendment, which would have provided that the limitation provided for in G. S. 1935, 10-301 did not apply to bonds issued pursuant to G. S. 1945 Supp. 19-1801a. But as signed by the officers of both houses and .duly signed by the governor the bill did not contain such a provision.
The fact that senate bill 222 was introduced and that the proposed amendment to house bill 131 was adopted and passed fortifies us somewhat in the argument that the legislature thought the provisions of G. S. 1935, 10-301 applied to the bonds in question and that it would require an amendment of that section to prevent that result. Both parties agree the governor would have signed, house bill 131 with the amendment in it had it been so submitted to him.
Plaintiffs argue this court should take judicial notice of what the enrolled bill contained and what the legislative journal contained, and of every step that might affect the validity or meaning of this statute. They argue that enrolled bills may be impeached by an examination of the legislative records of the house and senate, and that when that is done, it becomes clear that it was the intention of the house and senate and governor, that the bill as passed by both houses with the amendment added in the senate should be construed to be the effective bill. They point out' that to hold otherwise would permit the enrolling clerk to impair or invalidate or change an act by dropping out a provision by inadvertence, carelessness or fraud, and that this would be obviously against public policy.
To sustain this position plaintiffs cite and rely on the following Kansas authorities: Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kan. 62 ; Division of Howard Co., 15 Kan. 194; Prohibitory-Amendment Cases, 24 Kan. 700; and Weyand v. Stover, Treas., 35 Kan. 545, 11 Pac. 355.
Those cases are authority for a holding that this court will look behind the language of the enrolled bill to the legislative journals and other records when the constitutionality or meaning of a bill is being considered. They are not authority for the conclusion which plaintiffs seek to draw therefrom, that is, that where the house and senate pass one bill and the governor signs another, we should hold the bill passed by the house and senate to be the law. On the question of the weight to be attached to the fapt that a bill was finally enrolled G. S. 1935, 45-113 should be considered. That section provides in part:
“All bills or joint resolutions which shall have passed both houses of the legislature shall be enrolled by printing at the state printing plant on parchment paper, and such printed bills or resolutions shall be taken and. held by the legislature and by each house thereof and by all courts to be the only proper enrolled bill or joint resolution.”
Plaintiffs cite and rely on some decisions from other states, however, which require rather careful study. The following eases are cited: Haney v. The State, 34 Ark. 263; Chicot County et al. v. Davies, and Burks v. Jefferson County, 40 Ark. 200; Athletic Min. & Smelt. Co. v. Sharp, 135 Ark. 330, 205 S. W. 695; Rice v. Road Imp. Dist., 142 Ark. 454, 221 S. W. 179; Ford v. Plum Bayou Road Imp. District, 162 Ark. 475, 258 S. W. 613; State, ex rel. Casper v. Moore, 37 Neb. 13, 55 N. W. 299; and State v. Wright, (Wyo.), 163 P. 2d 190.
We shall first discuss the Arkansas decisions.
Haney v. The State, supra, was a case where the legislature obviously intended to use the word “fourth” in an act providing when court should be held in various counties in a district.' The court held’ that the use of the word “fifth” was clearly, a typographical error; that the context showed the legislature intended the use of the word “fourth” and that the act should be so interpreted. The question with which we are confronted was not in the case.
Chicot County et al. v. Davies and Burks v. Jefferson County, supra, were heard and decided together. The bill in question conferred power on counties to subscribe to stock in railroads upon certain conditiqns. As originally introduced, it provided, that upon application of the company “and” a hundred voters of the county, a popular vote should be had to determine whether the county should buy stock in the company. In the house an attempt was made to amend the bill by substituting the word “or” for “and,” so that had the bill been passed and signed by the governor in that form the election .could have been called if either one of those contingencies occurred. The wording of the house amendment was such, however, that it was not intelligible. As the bill was finally enrolled and passed by both houses and signed by the governor the word “and” was used so that both contingencies must happen in order to have the election. The argument was made that the bill was invalid because as passed by the house with the amendment in,, it was not the bill that was signed by the governor. The constitution of Arkansas did not require amendments to bills to be entered upon the journals. The court to uphold the act held that it would presume that the house receded from its amendment and that the enrolled bill was finally passed by the house. Clearly this opinion is not authority for the position of plaintiffs here.
Athletic Min. & Smelt. Co. v. Sharp, supra, was an action for personal injuries. A statute on comparative negligence had been enacted in Arkansas, being Act 175 of the Laws of Arkansas for 1918. If this act covered the cause of action pleaded, then the defense of contributory negligence was not available to the defendant. ,
. As printed in the session laws for Arkansas, section 2 of chapter 175 provided as follows: '
“That in all actions hereafter brought against any such corporation under or by virtue of any of'the provisions of this Act to recover damages for personal injuries [to an employee, or where such injuries] have resulted in his death, the fact that the employee may have been guilty of contributory negligence sh$ll not.bar a recoyéry, but the damages shall be diminished by the jury (and not by ,tb.e court) in proportion to .the amount of negligence:attributable to such employee: Provided, that no such employee who may be injured or killed, shall be held 'to have been guilty of contributory 'negligence in' any case where the violation of-such corporation of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
The words in the third line “to an employee, or where such injuries” were inserted by the secretary of state of Arkansas. These words appear in a bracket in the session laws. The record showed that these words above quoted were not in the enrolled bill that passed the legislature and was signed by the governor but were inserted by the secretary of state after the bill was returned to him by the governor. The supreme court of Arkansas stated that examination of the original bill in the office of the secretary of state showed that the words were in the original bill and the omission from .the enrolled bill was an error or' misprision of the enrolling, clerk. The Supreme Court said:
“The secretary of state, therefore, properly inserted these in the printed act.”
It is clear that the supreme court of Arkansas dealt .with this as though it was a clerical error if nothing more. It is interesting to note that one justice dissented from this opinion but did not write a dissenting opinion.
The provision of the constitution of Arkansas with reference to the governor signing bills was very similar to ours at that time,, that is, it required the bill when it had passed both houses should be presented to the governor for signature. If he did not approve it, he • should return it with his objections to the house in which it'had originated. There was a provision for reconsideration by the legislature. There was also a provision that any bill that should not' be returned by the governor within five days (Sunday excepted) after it had been presented to him should become law without his signature unless the general asembly by adjournment prevented its return, in which case it should become a law unless the governor filed the bill with his objections thereto with the secretary-of state and gave notice thereof by public proclamation.
The next Arkansas case we shall, discuss is Rice v. Road Imp. Dist., supra. This is a case in which the bill in question had passed both houses in the form as originally- introduced without' any amendment whatever. The bill created a road benefit district and described certain sections of land which were to be included in the district. These various sections were set out in different paragráphs of the act. When'the bill Was'enrolled, that' is, when the enrolling' clerk copied it from the original" bill, the paragraph "that described the sections of land in question was not copied. The enrolled bill was presented to the governor and duly signed by him. An action was brought in due time to prevent the building of the road pursuant to the act. The argument was first made that the bill was not presented to the governor in time. The supreme court held against that argument and with that we are not here concerned. The court then said:
“The chief insistance for reversal is that the bill approved by the Governor was a different bill from the bill passed by the Legislature.” (p. 459.)
It is clearly apparent that the bill presented to the governor in this case was not the bill that had been passed by both houses. The Arkansas supreme court said, however:
“In approving an enrolled. bill, therefore, it may aptly be said that the Governor intends to, and does, approve the original or identical bill passed by the General Assembly. For this reason, additions, omissions or misprisions of the enrolling clerk in copying the bill to be signed by the Speaker of the House and President of the Senate and to be presented to the Governor, do not impair or invalidate the act. Otherwise, legislation would depend entirely upon the accuracy of the enrolling clerk and care of the enrolling comjmittee.” (p. 459.)
Then follows a discussion that the enrolled bill is not positive evidence of what was actually passed by the legislature but that it may be impeached by an investigation of the' records of both houses.
It seems on first blush that the holding in this case is authority for the argument being made by the plaintiffs and that if we cared to follow the rule in Rice v. Road Imp. Dist., supra, we should order judgment for the plaintiff. It is worth noting, however, that the Arkansas court treated the difference between the two bills as purely a clerical error, which no doubt it was.
. On the question of whether or not we care to follow this opinion it is worth noting first that the same justice who wrote the dissent in Athletic Min. & Smelt. Co. v. Sharp, supra, concurred specially in the conclusion reached in this case. He concurred rather than dissented because he considered the court bound by the holding in the case of Athletic Min. & Smelt. Co. v. Sharp, supra, but he stated that he still did not agree with that holding. He said:
“No doubt the Governor might approve the original bill, if it were presented to him for his approval; but here the original bill was not presented to him. Upon the contrary, a materially different bill was presented to him for his approval. Are we warranted in assuming that the Governor is a mere automaton, whose business it is to sign anything presented to him? Is it not the theory of the Constitution that the Governor shall exercise an independent and intelligent judgment in considering and approving bills which are to become laws, and is he not warranted in basing that consideration upon the bill presented to him, and does he not have the right to assume that the bill presented to him for his consideration and approval is the very bill which the Legislature has passed? Have we not here sustained the very act under review by indulging the presumption that officers do their duty, and if there is such a presumption may the Governor not rely upon it in determining .what action he will take upon a particular bill, or any bill, presented to him for his approval? And is it to be assumed that, because he is willing to give assent to the bill becoming a law which is presented to him, he would also assent that any other bill dealing with the same subject, although materially different, should likewise become a law?” (p. 463.)
It is also worthy of note that one other justice dissented from the conclusion reached in this case on the ground that the bill was not presented in time. Another justice-dissented because he thought that Athletic Min. & Smelt. Co. v. Sharp, supra, should be overruled. This justice stated:
“The conclusion announced in that case is directly opposed to the plain mandate of the Constitution, which makes the Governor an essential part of our scheme of legislation in that it provides that each bill must be presented to him for his approval. If a materially different bill is presented to the Governor, then he is given no opportunity to approve or disapprove the legislation sought to be enacted by the two houses of the General Assembly.” (p. 468.)
Ford v. Plum Bayou Imp. District, supra, was another case where the enrolled bill, which was signed by the governor, did not contain a description of certain land, which the engrossed bill had contained. The court upheld the act following Athletic Min. &, Smelt. Co. v. Sharp, supra, and Rice v. Road Imp. Dist., supra.
State, ex rel. Casper, v. Moore, supra, was a case where the original bill provided for an appropriation of $25,000 for the purpose of paying the expenses of impeachment proceedings. In a conference committee the bill was amended by reducing the amount of the appropriation from $25,000 to $15,000. In the committee on enrolled bills, however, the $15,000 item was changed to $25,000. In that condition it was signed by the officers of both houses and by the governor. When the bill was attacked the supreme court of Nebraska said that it was clear that both houses concurred in the appropriation of $15,000 and that the governor approved that. The court said:
“The governor, by signing the bill as enrolled, expressed his approval of an appropriation of $25,000. We think that, this sum being one greater than that provided by the legislature, his approval thereof included an approval of the lesser sum.” (p. 17.)
On account of the theory upon which this bill was approved by the supreme court of Nebraska, it is not authority for the positiqn of plaintiffs here.
State v. Wright, supra, is a case where the bill in question had tó do with the distribution of gasoline tax revenue. Everyone agreed that 75 percent of the revenue should go to the highway commission. As to the remaining 25 percent the counties maintained in the legislature that it should be divided amongst them, while the cities of Wyoming of over 1,500 population maintained some portion of it should be divided amongst them. As originally introduced, the bill provided that 23 percent of these revenues should go to the counties and two percent to cities of over 1,500 population. This provision was amended in the house to change the 23 percent to 25 percent but the two percent to cities was not changed. Then ensued a contest between the house and senate, with the result that a conference comittee report was finally adopted, which provided for a distribution of 23 percent to the counties and two percent to cities of over 1,500 population. There was no doubt that the bill as passed by both houses so provided. When the bill was enrolled; however, the figure “23” was changed to “25.” As so changed, it was signed by the officers of both houses and sent to the governor. The governor found the discrepancy and when he returned the signed bill to the secretary of state instead of the legislature — because in the meantime the legislature had adjourned— he pointed out that the bill as presented to him was not the bill actually passed. He pointed out, however, that as the provision for a distribution of two percent to the cities was unchanged, and since it seemed that part could be separated from the rest of the bill, he signed it.
' In an original proceeding in mandamus the state argued that only 23 percent should be distributed to the counties. Counsel for some of the counties pointed out the history of the bill as detailed here and argued that the entire bill' was void and the distribution should be made on the basis of the old statute.
The supreme court of Wyoming examined and commented on many authorities, some of which have been discussed here. The court first concluded that the court might look behind the en rolled bill to ascertain if it was constitutionally passed following State, ex rel., v. Swan, 7 Wyo. 166, 51 Pac. 209. The court finally discussed State, ex rel. Casper, v. Moore, supra, which has already been referred to, and chose to follow it. The court said:
“The legislation in the case at bar is in the nature of an appropriation bill, in which the rule that the greater includes the less may well be applied. And it may be that the rule of State, ex rel., v. Moore cannot be extended to any other class of cases. We do not know of any sound reason why we should dissent from the Nebraska court in this case. Mistakes do occur, and it might be found unfortunate in the future in connection with appropriation and similar bills if we should now take a position contrary to State, ex rel., v. Moore.” (State v. Wright, [Wyo.], 163 P. 2d 190, 197.)
The concluding paragraph in the opinion is interesting. It is as follows:
“It follows, accordingly, that the words ‘twenty-five’ in the first line of section 7 (1) of Chapter 72, Session Laws of 1935, as amended by Chapter 157 of the Session Laws of 1945, should be read ‘twenty-three,’ and as thus amended, the act should be upheld. The writ of mandamus asked for will be denied. No costs will be taxed in this case.” (p. 197.)
It will be seen the court actually amended this act by changing the figures “25” to “23.”
The foregoing are the authorities upon which plaintiffs rely. We shall consider whether they compel a judgment for plaintiffs. They seem to fall into two classifications, one where a .typographical or clerical error was corrected — -the other where by signing a bill with a large figure in it the governor was held to have in effect approved a bill with, a smaller figure. The fact is, these opinions, most of them seem to have been based on reasons of expediency rather than any well-reasoned philosophy of constitutional law. The Arkansas cases are a good illustration of what happens when the first step is taken in constitutional law for reasons of expediency. In Haney v. The State, supra, the change was small and was easily made. When it came to Rice v. Road Imp. Dist., supra, and Athletic Min. & Smelt. Co. v. Sharp, supra, many years later, using the early case as a precedent an act quite different from the one approved by the governor was declared to be the law. In all of them the difference between the bill that was enrolled and signed by the governor and the bill that passed both houses and was held to be the law was only incidental to the provisions of the bill itself.
In the making of laws under our constitution the governor and the legislature are coordinate branches. That is the way the writers of the constitution intended it should be. The one is about as important as the other. The court will not for reasons of expediency-reach a conclusion that will enable either one to bypass the other.
The constitution provides that each house shall keep a record of its yea and nay votes in a journal (art. 2, sec. 10). Any member may protest against any act or resolution (art. 2, sec. 11). A bill may originate in either house (art. 2, sec. 12). A majority of all the members elected to each house, voting in the affirmative, shall be necessary to pass any bill or joint resolution (art. 2, sec. 13). Every bill shall be read on three separate days in each house, unless in case of emergency. Two-thirds of the house in which such bill is pending may, if deemed expedient, suspend the rules; but the reading of the bill by sections on its final passage shall in no case be dispensed with (art. 2, sec. 15). No bill shall contain moré than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed (art. 2, sec. 16).
The provision for submitting a bill to the governor for his signature is article 2, section 14. It reads as follows:
“Every bill and joint resolution passed by the house of representatives and senate shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but if not, he . shall return it to the house of representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same. If, after such reconsideration, two thirds of the members elected shall agree to pass the bill or resolution, it shall be sent, with the objections, to the senate, by which it shall likewise be reconsidered, and if approved by two thirds of all the members elected, it shall become a law; but in all such cases the vote shall be taken by yeas and nays, and entered upon the journals of each house. If any bill shall not be returned within three days (Sundays excepted) after it shall have been presented to the governor, it shall become a law in like manner as if he had’ signed it, unless the legislature, by its adjournment, prevent its return, in which case it shall not become a law. If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, while approving the other portion of the bill; in §uch case he shall append to the bill at the time of signing it', a statement of the item or items to which he objects, and'the reasons therefor, and shall transmit such statement, or copy thereof, to the house of representatives, and any appropriations so objected to shall not take effect unless reconsidered and approved by two thirds of the members elected to each house, and, if so reconsidered and approved, shall take effect and become a part of the bill, in which case the presiding officers of each house shall certify on such bill such fact of reconsideration and approval.” (Const., art. 2, § 14.)
This section is clear. There can be no doubt but that each bill passed must be presented to the governor, and if he approves it he shall sign it, and if not he shall return it with his reasons. The rest of the section deals with the power of the legislature to override a veto by vote of two-thirds.
♦ The judiciary is merely one of the three branches of the state government. It should be slow to approve any action which even has the semblance of permitting one branch to act toward .another in a manner contrary to the terms and provisions of the constitution.
It is difficult to say that this amendment was merely incidental-• to the general purposes of house bill 131. The omission did not leave the original bill any less clear or effective for the purposes for which it was introduced. The first section does provide for an amendment of G. S. 1935,10-301, but not in respect to the one with which we are here concerned.
Section 2 amended G. S. 1935, 10-303, a provision as to bonds of second and third class cities.
The purpose to be accomplished by the amendment was deemed important enough to be the subject of a separate bill, senate bill 222.
. In Katerndahl v. Daugherty, 30 Ida. 356, 164 Pac. 1017, the question we have here was dealt with by merely stating it. On account of the public nature of this bill, and because it is so regrettable that such a mistake was made, we have examined the matter somewhat at length.
In Vaughn & Ragsdale Co. v. State Board, etc., 109 Mont. 52, 96 P. 2d 420, the subject received careful consideration. The court held:
“The legislature alone cannot enact a law; it has the power to pass bills which may become laws when signed by the presiding officers of both houses and' when approved and signed by the governor, these officers being an indispensable part of the machinery set up by the Constitution to make laws.” (p. 52.)
Perhaps a statement, as nearly as possible, as to how this mistake, came about is not untimely'. The bills in our legislature all have brown-colored wrappers, each resembling the other in appearance. One of these was put on this bill when it was introduced, a small amendment was made in the house, so the bill before being sent to the senate was engrossed with this amendment written in as part of the bill, this engrossed bill received another brown wrapper, with the notation on the outside of what had so far happened to it (that made two house bills No. 131), then in the senate the bill was amended, as we have noted. The amendment was attached to the engrossed bill from the house and the bill itself was reengrossed with the amendment written out as a part thereof. A brown wrapper wias put on this bill and it found its way to the proper clerk in the house. That made three house bills 131, each with a brown wrapper on. When the bill was to be sent to the state printer to be printed as an enrolled bill the clerk inadvertently picked up the copy that had the senate amendment attached to it rather than the bill that had been typed up with the amendment written in, hence the mistake. The fact remains, however, that the bill that passed the legislature never was submitted to the governor.
It follows that the amendment did not become effective and judgment in this action must be entered for the defendant.
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The opinion of the court was delivered by
Burch, J.:
The action was one to. recover the amount of undercharges for freight on two mixed carloads of commodities known as “digester tankage” and “meat scraps.” The defendant recovered, and the plaintiff appeals.
The following facts were agreed to:
“5. That the published tariffs and classifications of the plaintiff company, duly filed with the interstate commerce commission and in force and effect at the times of the aforesaid shipments, do not specifically list the commodity ‘meat scraps’ by such name under any item of any classification.
“6. That there was in force and effect at the.time the cars mentioned in plaintiff’s petition moved, western classification No. 52 and certain tariffs all of which had been filed with the interstate commerce commission and the provisions of these classifications and tariffs so far as they related to the shipments in question are as follows:
"The tariffs provided for a charge of forty cents per hundredweight on fourth-class matter, and for a charge of twelve cents per hundredweight on shipments in carload lots of matter rated as class E.
“Western classification No. 52 was in effect and provided on page 209, item 12, as follows:
“ ‘Packing House Products.
Digester Tankage, Blood Meal, Meat Meal, and Blood Flour.
In bags, barrels or boxes, L. C. L....................... 4
In packages named, straight or mixed C. L., Min. Wt.
30,000 lbs..........................................E’
“If this provision is applicable to the shipment in question, then the freight charges originally collected are correct, and the plaintiff cannot recover.
“7. Said classification No. 52, item 11, page 73, was as follows:
“ ‘Animal and Poultry Foods and Medicines.
Animal cmd Poultry Foods, not otherwise indexed by name. Tonics and Regulators, Dry, prepared:
Invoice value not exceeding 10 cents per pound and so receipted for, in bags, barrels, boxes of pails, min. C. L.
wt. 30,000 lbs...............1.........'........4.... B
Invoice value exceeding 10 cents per pound or value not stated, in bags, barrels, boxes or pails................ 1’
“Item No. 14 on the same page is' as follows:
“ ‘Poultry Food:
Ground Meat, dried, Ground Bone. Alfalfa Meal, Cut Clover, Gra/in, whole or cracked, Grain Screenings, Millet Screenings, Crushed Shells, Grit and Charcoal:
In bags, L. C. L.........■.............................. 4
In bags, C. L. Min. Wt. 30,000 lbs.......................B’
“If either of these items are applicable to the shipment in question, then the freight charges originally collected were insufficient, and the plaintiff is entitled to recover the difference between the two rates, being the amount prayed for in plaintiff’s petition.”
Proof was offered and received indicating that the common packing-house product known to the trade as “meat meal” is identical with the product manufactured and sold by Swift & Company under the name of “meat scraps.” Meat meal and meat scraps are used to feed hogs and poultry, and there are coarse and fine grades of each. There was no evidence to the contrary, and the court directed the verdict.
On one side it is said that bulk, weight, value, risk, and like factors, furnish the true basis for freight classifications; that a mere difference in trade name of the same commodity does not authorize a difference in freight rates; and that because the commodity known as meat scraps is in fact identical with the commodity known as meat meal, both are governed by the meat-meal item of the schedule. On the other side it is said that a tariff schedule, duly filed and published, has the force of a statute. If ambiguous, the court may interpret it, but when its meaning is ascertained it operates as law, which the court must apply as any other law. Meat meal is indexed by name. Animal and poultry foods not otherwise indexed by name are governed by a different rate. Meat scraps are nowhere mentioned, and consequently fall within the provision relating to animal and poultry foods not indexed by name.
The plaintiff is right in its contention that a tariff has the force of a statute, binding alike on shipper and carrier. (Penna. R. R. Co. v. International Coal Co., 230 U. S. 184, 197.) There is no ambiguity in the tariff under consideration. When the name, meat scraps, originated does not appear. It cannot be assumed that the commodity, meat scraps, was not listed by that name because it was already listed under a different name, meat meal. In the case of The Andrews Soap Co. v. P., C. & St. L. Ry. Co. et al., 4 I. C. C. 41, it was said:
“A manufacturer’s description of an article to induce its purchase by the public also describes it for transportation, and carriers may accept his description for purposes of classification and rates. Carriers are not required to analyze freight to ascertain whether it is in fact inferior to the description or public representations under which it is sold, in order to give it a lower rate corresponding to its actual value.” (syl. ¶ 1.)
Conceding that the defendants are right about what constitutes the proper basis for freight classifications, and that the identity of meat meal and meat scraps my afford good ground for modification of the tariff, the facts warranting modification must be ascertained and the modification made by the only tribunal having jurisdiction of the subject, the interstate commerce commission. Tariffs must be uniform, and cannot be enforced in terms, or not enforced in terms, according to the divergent views of different juries, based on testimony more or less illuminating, of witnesses more or less interested and informed. It is true that in this instance the testimony was all one way, but the court was not authorized to receive it. So long as the tariff stands, with the approval of the only body competent to change it, the courts can do nothing but enforce it.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the plaintiff.
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The opinion of the court was delivered by
Mason, J.:
Westye Monson recovered a lump sum jfidgment under the workmen’s compensation act against A. C. Battelle. An appeal was taken, pending which a revivor was ordered by this court in the name of Elizabeth Appleros, to whom an assignment of the judgment had been executed by the plaintiff, and who is the administratrix of his estate. The defendant moves to set aside the order of ,revivor, and also asks (in the event of his motion being overruled) that the judgment be reversed because the evidence did not bring the case within the operation of the compensation act.
1. The defendant maintains that the assignment of the judgment was a nullity because forbidden by'the statute. (Gen. Stat. 1915, § 5909; Laws 1917, cti. 226, § 5.) The act as it stood at the time the assignment was made read as follows:
“The payments due under this act, as well as any judgment obtained thereunder, shall not be assignable or subject to levy, execution or attachment, except for medicine, medical attention and nursing.” (Gen. Stat. 1915, § 5909.) '
Here the assignment was made to Elizabeth Appleros, in trust for the four children of the judgment plaintiff. The object of the statute was doubtless to prevent the fund being diverted from the purpose for which it was intended. An assignment to a trustee for the benefit of the children of an injured workman would not seem necessarily to conflict with the spirit of the law. We shall assume, however, without deciding, that the assignment is invalid.
2. The argument against a revivor being allowed in the name of the administratrix is based upon the contention that “under the compensation law, the right to compensation and any judgment for compensation abates upon the death of the employee, and does not survive to his heirs or representatives.” In support of this contention it is argued that compensation where death results from an injury to a workman is allowed only to his dependents, and therefore, his heirs as such, or his executor or administrator, have nothing to do with it. That situation, however, is obviously not fully analogous to the one here presented, where a judgment was rendered in favor of the workman. It has been held that a judgment under the compensation act, providing for periodical payments to an injured workman, although subject to commutation, does not survive the plaintiff’s death. (Wozneak v. Buffalo Gas Co., 161 N. Y. Sup. 675.) In the case cited the trial court had decided to the contrary, and two of the five appellate judges dissented from the reversal. That decision, however, if accepted as sound, would not control here. In the present case the plaintiff had obtained an absolute personal judgment requiring the immediate payment of a fixed amount. It was the legal duty of the defendant to pay it at once, unless a stay should be procured pending an appeal. If payment had been made the money would have been wholly at the disposal of the plaintiff. If the final result is an affirmance it will amount to an adjudication that the rights of the parties shall remain as fixed at the time the judgment was rendered. The defendant gains no immunity from the fact of his having taken an appeal which is ultimately determined not to have been well founded.
The final argument against the right of revivor, is that because the judgment is not assignable it does not survive the death of the plaintiff. It is true that as a rule causes of action which are not assignable do not survive. (1 C. J. 175, 176.) But a judgment based on a nonsurviving cause of action ordinarily does survive (1 C. J. 169), and does so in this state, notwithstanding the pendency of an appeal. (Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97.) Moreover, while as a rule causes of action which are not assignable do not survive, this is because of qualities that inhere in the nature of the right. Where the statute for some special • purpose, as the protection of a claimant against improvidence, forbids assignment, nonsurvivability does not necessarily result therefrom. The new government war savings certificates are expressly made not transferable, but it will hardly be doubted that the title would pass to the heirs or personal representatives of the owner upon his death. We hold that if the assignment was invalid the revivor was properly made in the name of the administratrix.
3. The plaintiff’s claim was that he had been injured by having to wade through foul and impure flood water which had overflowed the yards of the defendant’s car works, where he was employed; that at the time an old injury to his foot had not healed; and that infection followed, as a result of which amputation became necessary. The defendant insists that there was no evidence that the loss of the foot was caused by reason of contact with the water. The plaintiff testified that his foot was badly swollen on the morning after the exposure referred to; that the swelling increased for several days; that he received no subsequent injury; and that amputation followed shortly. At least one physician testified that from the history of the case, as embodied in a hypothetical ■question which fairly covered the ground indicated, he thought it probable that the amputation was made necessary by infection caused by wading through the water. This was sufficient to take that issue to the jury.
4. The statute relates only to injuries “by accident arising out of and in the course of employment.” (Gen. Stat. 1915, § 5896; Laws of 1917, ch. 226, § 27.) It is contended that the plaintiff’s injury was not the result of an accident. The infection of an existing wound by contact with foreign matter seems to be within the ordinary meaning of the term — “an unlookedfor and untoward event which is not expected or designed.” (Notes, L. R. A. 1916A, 227, 1917D, 103; Workmen’s Compensation Acts, a Corpus Juris Treatise by Donald J. Kiser, § 54, p. 64.) The contracting of typhoid fever through drinking polluted water furnished by the employer has been held to be attributable to “accident,” within the meaning of that term as employed in a compensation statute. (Vennen v. New Dells Lumber Co., 161 Wis. 370; see, also, cases cited there, and in the Corpus Juris Treatise referred to, p. 66.) “An injury may be by accident, although it would not have been sustained by a perfectly healthy individual.” (Corpus Juris Treatise, p. 69.) “The courts very generally hold that if an existing disease is aggravated by accident or injury, compensation 'must be paid for the resulting injury.” (Note, L. R. A. 1917D, 105; see, also, id. pp. 129, 130.)
5. The principal contention of the defendant is that, accepting the plaintiff’s own version of the affair, the injury did not arise out of or in the course of his employment. He testified that the water covered the railroad track running through the yard of the car works where he was employed; that when he checked in in the morning there was n’t much water; that he did n’t have to wade through it at noon when he quit work, or at one o’clock when he returned; but that when he checked out at six o’clock in the evening he had to go to the timekeeper’s office; that the water was then within five feet of the office and he had to wade over his shoes. The evidence is not very clear on the point, but is open to the construction that the water through which the plaintiff waded was upon the premises where he was employed. It is clear that the injury was received in the course of employment. His going to the timekeeper’s office to check out was a necessary incident to the performance of the duties for which he was paid. (Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9; Corpus Juris Treatise, § 74, p. 83.) The serious question is whether it arose out of it.
Irrespective of any question of negligence, the standing of the flood water on the ground which was a part of the defendant’s factory became for the time being one of the conditions under which the business was carried on. It was not a condition peculiar to the kind of buáiness done, but it was one which gave rise to a special risk incurred by the workmen there engaged. We think the injury (assuming the facts to bp as claimed by the plaintiff) is to be regarded as one arising out of the employment. Recoveries under th^ compensation act can only be had for injuries received in certain specified kinds of business, which are designated as “especially dangerous.” (Gen. Stat. 1915, § 5900; Laws 1917, ch. 226, §1.) But it does not follow that the only injuries for which compensation is provided are those which result from the use of devices or methods which are in themselves exceptionally hazardous. Thfe employer is protected as to this feature of the matter by the rule that he is not liable for any injury' which happens elsewhere than “on, in or about” his factory; that is to say, in the factory, or in such close proximity to it that the place “is within the danger zone necessarily created by those peculiar hazards to workmen which inhere in the business” of operating it. (Bevard v. Coal Co., 101 Kan. 207, 215, 165 Pac. 657.) But the hazards on account of which the employer may be held liable are not alone those which are the necessary accompaniment of operating any business of like character (Corpus Juris Treatise, § 64, p. 74) ; they include all that result from the carrying on of the business in the way in which it is actually carried on. The driver of a truck who was inj ured while handling meat in the course of its delivery to a customer, at some distance from the packing house, was held not to be within the protection of the statute. (Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905.) But the reason was that he was not hurt “in or about” the factory. His injury, however, arose out of his employment, and if it had happened in the same way while he was loading the truck at the packing house, or at a place immediately adjoining it, he would undoubtedly have been entitled to recover.
The case is not similar to those in which a workman while engaged in.his employment is injured by some unexpected extraneous agency, such, for instance, as a stroke of lightning, or the sportive act of a fellow employee, when there is no causal connection between the injury and the condition under which he was required to work. The water had been slowly rising all day prior to the plaintiff’s injury, and although its presence was the result of forces beyond the defendant’s control, it would have been quite possible for him to have made some arrangements to avoid the necessity for the plaintiff’s wading through it. That the making of such an arrangement might have been beyond the requirements of mere ordinary prudence does not affect the matter. An injury may be said to arise out of the employment when there is a causal connection between the conditions under which the work is required to be per; formed and the resulting injury. (Corpus Juris Treatise, § 64, p. 73.) In principle the situation is not. unlike that presented in Stuart v. Kansas City, post, p. 307, decided at this session, where it is held that an employee may recover com pensation for aii injury caused by the playful or wanton act of a fellow workman, whose earlier conduct of the same sort had made it possible to anticipate such a happening.
6. Complaint is made of the overruling of an objection to a hypothetical question, on the ground that it seemed that the plaintiff came in contact with the water on four or five different occasions, instead of but once, as he testified, and because the fact that the bones were necrosed was omitted. We do not find the objectionable matter in the question, and any omissions could have been corrected upon cross-examination. In any event, especially as no jury was present, we think no prejudice is shown.
7. We are asked to withhold the determination of the case to give the defendant an opportunity to be heard in the trial court on. a petition for a new trial on the ground of newly discovered evidence. That is a matter in which it is competent for the district court to give him protection, if the situation is found to warrant it.
Tbe judgment is affirmed.
Porter, J., dissents.
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The opinion of the court was delivered by
West, J.:
An agent of the defendant company took the application of Charles L. Taylor for a policy of insurance, the latter giving his note for the premium of the first year, payable to the order of the agent, in the sum of $163.28. The contract provided that failure to pay such note at maturity should avoid the policy and work a forfeiture of all previous payments, except as provided in the policy. The agent sent the application and note to the company and received acknowledgment of their receipt at the Salina office. Later he received a letter from the home office containing the following:
“We acknowledge receipt of note for $163.28 on this case. We will at once secure references on this note, and if good will forward you check for two-thirds of your commission as an advance on it, balance of commission to be paid upon payment of the note; if not good, we will advise you at once and await your instructions.”
Later he received a letter containing the following:
“With reference to the policy of Charles L. Taylor, whose application you secured some time ago, will advise that we have been unable to get satisfactory references .on this note. However, we are enclosing this policy herewith, although you understand of course that the collateral which we hold will not, in view of the references which we have, guarantee the payment of this premium, and the delivering of this policy under the circumstances to the) insured will be at your own risk.”
The agent, feeling that the applicant would meet the note, delivered the policy to him, and testified that he was willing to have the company charge up against him the net premium, which he was willing to pay whether the insured paid the note or not. The agent was charged with the net amount due the company. Shortly after the issuance of the policy the insured became insane, and later the company wrote the agent as follows:
“Pursuant to your request of the 24th inst., we enclose the C. L. Tay lor note ,for $163.28, endorsed with a credit of the unearned premium, $81.64. Policy No. 3234 lapsed, on September 4, 1913.”
The insured, shortly after receiving the policy, offered to turn over to the agent two horses in payment of the note, which he declined, and on another occasion offered to go to the bank and get the money and pay the note, but was told by the agent that it was unnecessary to do so. The agent testified that he understood the reference to delivering the policy at his own risk to mean that if he delivered the policy and the note was not paid he would have to pay the net to the company. Upon learning of the insanity of the insured the agent wrote to the company thereof, stating that the agent had'not realized, on the note and that it might be he could collect it now better than to let it go longer, or that he might get the policy returned, as the father-in-law had refused to pay for the reason that the beneficiary was not the wife of the insured. The company was requested to send the note so that the agent could push the collection or take up the policy. In reply the company forwarded the note, stating “upon collection of same we would request that you kindly forward remittance to cover to this office. I hope that you will either be able to collect it or take up the policy.”
When he received the note back from the company it had indorsed thereon “$81.64 unearned premium,” and a notation that the policy had lapsed. The agent testified that the Salina agent had asked permission of him to cancel the policy, stating that he would see that the nets charged against' the agent would be credited back. It seems that on final settlement the agent paid one-half of the net, which was $24.49. The agent testified that he owned the note at the time of trial. It was offered to show by the treasurer that when the policy was issued the company looked to the insured for payment of the note, and in event of its nonpayment by him when due it looked to the agent for the payment of the earned net. On objection this offer was refused. Plaintiff’s recovered and the defendant appeals.
In Marshall v. Insurance Co., 98 Kan. 502, 159 Pac. 17, in an action against the same company, it was held that when a premium note is taken by the agent as such and delivered to the company, and by an arrangement between them he is conditionally charged with the company’s share of the premium, the charge to remain if the note is not paid, such note belongs to the company, and when the policy provides that it¡ shall be void unless the note is paid at maturity the failure of the assured to pay the premium and note avoids the policy.
Certain admissions which characterized that case were held to show that credit was not independently extended to the applicant by the agent on his own responsibility.
The controlling question here is whether the company looked to the assured or to the agent for payment of the premium. Substantially all the facts covering this point have been already set forth. There are many others more or less dwelt upon in the briefs, which could be stated, but are not of enough materiality to warrant taking up space with them. It is plain that when the application and note had been received and the latter inquired about at the bank, the company returned both to the agent with directions that it was not satisfied with the note, and that if he desired to deliver the policy he could do so at his own risk. The only fair meaning to be placed on this direction is that if the premium were not paid the company would look to him for the portion thereof earned by it. Of course, it was natural and proper that upon learning that the policy had been delivered the company would hope and look for the payment of the note by the insured. But the real dependence of the company was upon the agent and not upon the applicant. Having seen fit to issue this policy and permit it to be delivered to the assured, looking to the agent for its, final source of remuneration, it was substantially in the attitude it would have been in had the agent or some friend purchased the policy for the insured and paid the year’s premium therefor.
There was some loose use of the word collateral, there was some peculiar bookkeeping, and there were other matters which give ground for arguments and suggestions, but they are not of enough import to require discussion.
Rulings concerning the omission of evidence are complained of, and while a few of them might well have been different, we find nothing therein amounting to substantially prejudicial error.
The same may be said concerning instructions given and refused, those which were given being found upon examination to have fairly covered the legal questions involved.
In answer to special questions 3, 4, and 5, the jury said that the defendant.never received any money from the first annual premium, except that paid by the agent Swenson, and that that amount was $24.49. Complaint is made that the trial court did not set aside these findings for lack of evidence to support them, but, as already indicated, final settlement was made between the company and the agent for $24.49, which seems to be the only money received by the company for the policy.
One matter, however, requires attention. It was alleged in the petition that while the policy covered two one-thousand-dollar gold bonds it was agreed “that at the option of the said beneficiaries it would, instead of issuing said two bonds for $1,000 each, pay in cash upon the death of assured the sum of $1,500 for each bond, or the total sum of $3,000.”
The answer contained a general denial. There was no such provision contained in the policy. The case seemed to have proceeded without the attention of the court being called to this matter until on the hearing of motion for new trial, or on motion for judgment on the verdict, although the court instructed the. jury if they found for the plaintiff to award $3,000 with interest, writing the amount in the verdict then submitted, with no exceptions taken to this instruction or this-form of verdict. It is contended that in a circular issued by the company there was a statement to the effect that the redemption value of the bond at death was $1,500, or at the end of the first year $1,480. But it is admitted that this statement in the circular was not introduced in evidence.
While the matter should have been called to the court’s attention earlier, failure to do so is not sufficient reason for requiring the company to go beyond' the terms of its policy, which undertook to pay on each bond “$1,000 in gold coin of United States of America, or its equivalent, and ... interest ... at the rate of seven per cent.” •
Therefore, instead of a judgment for' $3,000 and interest, there should be one for $2,000 and interest.
The cause is remanded with directions to enter judgment for $2,000 and interest, instead of $3,000 and interest, and as thus modified the judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The only question in this case arises over the character of the action; if it is a suit for the infringement of a patent it involves the laws of the United States, and the appeal will lie to correct the error of the lower court in assuming jurisdiction; if it is not a suit for infringement, this court has no jurisdiction because the amount involved is less than $100. ,(Civ.' Code, § 566.)
It is conceded that the United States courts have exclusive jurisdiction of suits for the infringement of a patent, whether at law or in equity, and without regard to the citizenship of the parties. (30 Cyc. 991, and cases cited.) The plaintiff’s contention is, that the action is not for an infringement of a patent, but, on the contrary, is upon an implied contract^ for the payment of a royalty for the right to manufacture under the patent; that the relationship between the plaintiff and defendant is that of licensor and licensee. The plaintiff seeks to bring himself within the principle of those cases where both parties have been estopped by their conduct from raising the question of the validity of a patent, or from disavowing that the plaintiff was a licensor and the defendant a licensee.
The petition alleged that the plaintiff and one Dickson were the “true original and first inventors of a certain new and useful apparatus, fully described in the letters patent hereinafter mentioned, as well as certain improvements thereon, therein named as bed springs and of a type and character which was not known or used in this country, and was not patented or described in any printed publication in this or any foreign country, before their invention thereof, and was not in public use or on sale more than two years prior to their said application for letters patent of the United States.” It further alleged that letters patent for this invention were duly issued, and that Dickson transferred and assigned to plaintiff all his right and interest therein; that on the 6th day of July, 1913, plaintiff duly filed in the office of the clerk of the district court of Sedgwick county copies of the letters patent in order to comply with the statute. It is then alleged that for some time prior thereto the defendant used the rights and privileges of the plaintiff conferred by virtue of the letters patent, and manufactured and sold thereunder at a profit numerous bed springs, and that afterward, on the 6th day of July, 1913, defendant took and detained, “with the knowledge and consent of this plaintiff the rights and property secured to him under and by virtue of said letters patent,” and between that date and the time of filing the petition manufactured and sold at a profit a large number of bed springs and impliedly agreed to pay plaintiff the fair and reasonable value of the use of the invention; that ten cents was the reasonable value of the use of the patent right for each bed spring so manufactured and sold by the defendant.
The answer denied that plaintiff and his assignor were the true and original inventors of the improvement referred to; denied that the invention was not known or used in this country prior to the issuance of the patent; denied that the alleged invention was not in public use or on sale more than two years prior to the issuance of the patent; denied generally the validity of the patent, and that plaintiff was the owner thereof. In addition to denying that defendant had ever used the rights and privileges conferred on the plaintiff by the patent, the answer denied any agreement to pay the plaintiff for such use; and further alleged that any cause of action the plaintiff had, arose under the patent laws of the United States, and that the district court had no jurisdiction'.
At first blush the petition and answer appear to present a case falling close to the border line between those cases where the federal courts have exclusive jurisdiction, and cases in which the validity of a patent is only collaterally involved. In one sense an issue involving the validity of the patent was squarely raised by the pleadings, because the plaintiff alleged the validity and novelty of the patent, all of which the answer expressly denied. But were these matters material issues? None of the evidence has been brought up by the appeal; and if the plaintiff might have recovered on one theory of the pleadings, regardless of these issues, we must assume that the trial court had jurisdiction. The petition is somewhat inartistically drawn; it contains a number of averments which would have been quite pertinent and material in a suit for the infringement of a patent, but which were not necessary in an action by the owner of a patent to recover upon a contract to pay for the use by a licensee of rights under a patent. The theory upon which plaintiff claims to have recovered might have been better set forth in his petition by simply alleging the issuance of the patent; that plaintiff by written assignment became the owner of whatever rights were conferred thereby; setting out the arrangement between himself and the defendant and the facts relied upon to show that, aside from any question as to the validity of the patent or its novelty or the extent or scope of the rights conferred by it, the defendant recognized him as the owner of it, and that the relation of licensor and licensee arose between them. The other averments of the petition were sufficient to show that defendant used the rights under the patent with plaintiff’s consent, and to show an implied' contract to pay a reasonable value for such use.
Giving a liberal construction to the petition, we are inclined to the opinion that the averments as to the novelty and validity of the patent must be regarded merely as matters of inducement, the denial of which in the answer raised only a collateral issue. A strong reason for giving this construction to the pleading is the absence of any definite averment indicating an intention to sue lor an infringement of the patent, while specific facts are alleged from which the law would declare that plaintiff was a licensor and the defendant a licensee of the right to use the patented article, and that a contract would be implied to pay the reasonable value of such use. The authorities are clear that the state courts have jurisdiction in a case involving compensation for the alleged use of a patent invention and what is covered by it, where the validity of the patent is involved only in a collateral way. (Deane v. Hodge, 35 Minn. 146.)
In Pratt v. Paris Gas Light & Coke Company, 168 U. S. 255, it was held that where the declaration shows that the state court has jurisdiction both of the parties and the subject matter, “it cannot be ousted of such jurisdiction by the fact that, incidentally to his defence, the defendant claims the invalidity of a certain patent.” (Syl. ¶ 2.) The case of Nash v. Lull, 102 Mass. 60, is cited in the opinion as the leading case where it was held that “apy degree of utility or practical value in a patent will support the consideration paid for it; but that if it be wholly void a note given for it is without consideration, and such issue may be tried in a state'court as well as.in a federal court.” In the opinion in the Pratt case, supra, it was said:
. “The patent may he void because the' invention was well known before ; or because it is useless or immoral; or because it is an infringement upon other prior patents, and it is no objection to the jurisdiction of the state court that the question of validity may involve the examination of conflicting patents, or the testimony of experts. It is the fact of its invalidity, and not the reasons for it, that is material.” (p. 261.)
It was further said in the opinion that:
“We have repeatedly held that the federal courts have no right, irrespective of citizenship, to entertain suits for the amount of an agreed license, or royalty, or for the specific execution of a contract for the use of a patent, or of other suits where a subsisting contract is shown governing the rights of the party in the use of an invention, and that such suits not only may, but must, be brought in the state courts. Hartell v. Tilghman, 99 U. S. 547; Wilson v. Sanford, 10 How. 99; Albright v. Teas, 106 U. S. 613; Goodyear v. Day, 1 Blatchford, 565; Blanchard v. Sprague, 1 Cliff. 288; Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46; Wade v. Lawder, 165 U. S. 624. Although in an action for royalties, if the validity and infringement of the patent are controverted, the case is considered as one ‘touching patent rights,’ for the purposes of an appeal to this court under Rev. Stat. § 699. St. Paul Plough Works v. Starling, 127 U. S. 376.” (p. 260.)
In Walker on Patents, 5th ed., section 388, it is said:
“Actions brought to enforce contracts between private parties relevant to patent rights, are not actions arising under -the patent laws of the United States; and therefore are not cognizable as such in the United States courts. And actions to set aside such contracts fail in the same category.”
An action in the state court to recover patent royalties, in which no question as to the validity or construction of the patent was involved, does not present any federal question which will give the supreme court of the United States jurisdiction to review the judgment of the state court. (Felix v. Scharnweber, 125 U. S. 54.) To the same effect is Marsh v. Nichols, Shepard & Co., 140 U. S. 344.
In support of his claim that the pleadings raised an issuer that cannot be litigated in a state court, the defendant in his brief says:
“The proverbial ‘Bay-horse case’ is elusive, often heard of but seldom cited, but appellant offers the following as that case: DeWitt v. Elmira Nobles Manufacturing Co., 66 N. Y. 459.”
In the opinion in that case it was said:
“The plaintiff does not claim to recover of the defendant for the use of the patent right and the patented invention referred to in the complaint, by virtue of any contract, expressed or implied, or any agreement by the defendant to pay the plaintiff any compensation or royalty for the right to use the same. In substance the allegations of the complaint are of a use of the patented invention by the defendant without the consent of, or any license or permission by, the plaintiff.” (p. 461.)
In that case it was held that a state court has no jurisdiction of an action by the owner of a patent to recover compensation for its use from one who has used it without his consent.
In the case at bar the petition alleged that defendant made use of the patent with the knowledge and consent of the plaintiff ; so that the case which defendant claims is a “Bay-horse” appears to be “a horse óf a different color.”
The district court had jurisdiction, and the amount involved being less than $100 the appeal is dismissed.
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The opinion of the court was delivered by
West, J.:
The plaintiffs sued the defendants to' recover a real-estate commission of $500 for finding a purchaser for the defendant Eden, of a farm at $9,000, such purchaser being the defendant Wyer. It was alleged that as a result of the plaintiffs’ efforts Eden contracted with Wyer for the purchase of the land at $9,000; that afterwards, Wyer, learning that the plaintiffs were to receive $500 commission, for the purpose of cheating them fraudulently stated to Eden that if he would accept $8,500, instead of $9,000, as provided by the contract, Wyer would stand good for any loss to Eden, Wyer claiming that he had been defrauded by the plaintiffs. The plaintiffs dismissed as to Wyer. Eden answered that the $500 would not be due until paid by Wyer, and denied any conspiracy. He also filed a cross-petition against Wyer for the $500.
Wyer complains that the court refused a separate trial of the issues between the plaintiffs and Eden and of those between Eden and himself, that the burden of proof was placed on him, and of certain instructions given and refused, and the denial of a new trial.
As to the matter of separate trials, the court exercised, and we cannot see that it abused, its discretion.
The question of mis joiner could, under the code, be raised only by demurrer or answer. (Civ. Code, § 95, Gen. Stat. 1915, § 6986.)
Wyer was the only party alleging fraud, and the court did not err in putting the burden on him to prove it. We have examined the instructions given and' refused and find no error in respect thereto.
The evidence justified the verdict, a new trial was properly refused, and the judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a widow to recover her statutory share of lands in which her deceased husband, William F. Osborn, had been interested in his lifetime. She was defeated, and appeals.
It is not necessary to recite, the proceedings. All the facts on which the plaintiff relied for recovery were stated in her third amended petition, and it will dispose of the appeal to determine whether or not those facts warranted judgment-in her favor.
The defendants, William F. Osborn, jr., John L. Osborn, and Carl H. Osborn, are sons of the deceased, but not of the plaintiff. The sons claim title under separate deeds to different tracts of land, made in 1906 and 1908, by Frank J. Bennett and wife, C. A. Hill and wife, and Charles S. Kidder and wife, to “William F. Osborn, and at his death to his sons.” The consideration for these deeds was paid by William F. Osborn from - his own funds, and the deeds were recorded soon after delivery. The statute under which the'plaintiff claims reads as follows:
“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executors as her property, in fee simple, upon the death of the husband, if she survives him: Provided, That the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage’, for the purpose of giving the right aforesaid.” (Gen. Stat. 1915, § 3831.)
The plaintiff advances the following propositions:
“1. These transactions amount in law to the acquisition by the husband of a legal or equitable interest in real property under the statute (Gen. Stat. 1915, §3831) and its conveyance to defendants without his wife’s signature, leaving her statutory interest therein unimpaired.
“2. The deeds conveyed to the husband the whole title to the land, and the defendants acquired no interest thereunder.
“3. If the transactions should be considered as a mere disposition by the husband of his personal property, under the rule announced in Small v. Small, 56 Kan. 1, 42 Pac. 323, it is, nevertheless, a colorable transaction, and fraudulent as to the widow, as her husband’s heir.
“4. Upon the facts set forth in the third amended petition the widow would have her interest in this property under the resulting trust doctrine, and other equitable principles.”
It will not be practicable to follow the elaborate arguments made in support of the foregoing propositions, and little more will be done than announce the conclusions of the court.
Propositions one and two have no foundation on which to rest. The deeds specify the nature and quantity of estate which William F. Osborn obtained, and there is nothing to qualify or contradict them. The transactions disclosed by the deeds were between grantors and grantees. The whole estate passed from the grantors. Instead of taking an equitable estate, William F. Osborn took a legal estate, and instead of taking the whole estate, he took a life estate. The remainders in fee vested in his sons. The character and extent of the estate which he took was not affected in the slightest degree by the fact that he had a wife who might outlive him. . No equities remained to him, because the transactions were fully executed and he received what he desired. The estate which he took did not survive him. He had no interest, legal or equitable, in the remainders. After his death the whole estate in fee simple vested in his sons, and there was nothing to set apart to his widow. The statute refers to legal or equitable estates of the husband which are capable of inheritance, and does not apply to interests in land which are extinguished by his death.
The third proposition has no foundation on which to rest. The rule announced in Small v. Small, 56 Kan. 1, 42 Pac. 323, is this: A married man may give to his children the bulk of his property when the known effect of the gift will be to deprive his widow of the fair share which otherwise would have fallen to her. If, however, the gift consist of real estate in this state, of which the wife has made no conveyance, she will be entitled to her statutory share if she were a resident of the state when the gift was made. Twenty years after the decision in Small v. Small was rendered, the rule was again stated in even stronger terms:
“The general rule is that the law has placed no restriction or limitation on the husband’s right to make such disposition of his personal property during his lifetime as he may elect.” (Poole v. Poole, 96 Kan. 84, syl. ¶ 1, 150 Pac. 592.)
What is a colorable transaction? It is one which presents an appearance which does not correspond with the reality, and in the sense contended for, an appearance intended to conceal or to deceive. If William F. Osborn had taken title in the name of his sons, but had in fact retained power to dispose of the land, he would have been the real owner, and not the sons. The outward appearance of the transactions would not have corresponded with their genuine character, and they would have been colorable. Nothing of the kind occurred. The deeds specify the actual interests of the grantees. The sons had no interest in the life estate, and the life tenant had no interest in the remainders. The gift to the sons was the consideration paid for the conveyances to them of the remainders in fee. Form and substance, appearance and reality, corresponded throughout, and the transactions were not colorable in any degree.
The fourth proposition advanced by the plaintiff is without merit. The money used for the purchase of the real estate in question was money derived from the sale of property situated in Burlington, Kan., which William F. Osborn owned. His wife joined in the conveyance of the lands sold. The contingent interest which a wife has in her husband’s land is property, and property subject to conveyance. She may join in his deed of such land, or may not, and may exact such consideration for j oining as she may desire, or may find satisfaction in enabling her husband to convey an estate free from con tingent reduction. Her property, however, is something entirely distinct from and wholly independent of his property, and should she stand on her property right, she must have a definite agreement that a specific portion of the consideration paid for the conveyance belongs to her, or she has no title to that specific mones'. It belongs to her husband, and he can do with it as he please. Ordinarily a husband having money of his wife in his possession is simply her debtor. Under some circumstances a trust in her favor may be imposed on property purchased by him into which her money may be traced. But unless there be in the husband’s hands a definite, provable sum of money which is the individual property of his wife, there is nothing on which to found a trust or other equitable claim.
In support of the third and fourth propositions, it is claimed the transactions culminating in the deeds were intrinsically fraudulent as to the plaintiff. The argument is, the deceased must have entertained an intention to defraud his wife, which he consummated by the deeds, because she was deprived of property she might have received except for the gifts. This contention is fully disposed of by the decisions in the cases of Small v. Small and Poole v. Poole. An intention to deprive the wife of her marital right by the' means adopted is a lawful, and not a fraudulent, intention.
Some extrinsic facts are relied on to show fraud — concealment of the gifts when made and by subsequent statements, the good financial circumstances of the recipients of the gifts, and some others. These subjects are all fully disposed of, either specifically or in principle, by the cases of Small v. Small and Poole v. Poole.
The action was commenced in December, 1915. After several futile attempts to state a cause of action, the plaintiff finally filed an amended petition in May, 1917, in which she alleged her husband “assured” her if she would join in the deed to the Burlington property he would reinvest the proceeds in real estate in Lawrence and Baldwin, the property thus acquired to “take the place” of the Burlington property, and to be “sole property” of the husband. The plaintiff joined in the deed to the Burlington property “with the said understanding and agreement.” The purpose of these vague allegations, charging neither fraudulent representations nor con tract, was of course to try to get by a demurrer. The purpose is all the more apparent because the allegations were of communications concerning which the plaintiff was not competent to testify. Motions were made to require the plaintiff to plead according to well understood rules, but the court denied the' motions, and disposed of the case on the assumption the plaintiff had cut her garment according to her cloth.
There is no allegation of a definite and enforceable contract, whereby,- in consideration of the surrender of the wife’s marital interest in the Burlington property, her husband agreed to invest her with a substituted marital interest in other specified land. Such a contract would need to be in writing to be actionable, and the plaintiff does not claim that any such document ever existed.
Giving the pleading its utmost force, it does not charge the husband with perpetrating a fraud on his wife. It indicates a purpose to dispose of real estate situated in a distant county and to'invest in other real estate nearer home, which was only partially carried out. The wife concurred, believing it would be fully carried out. Conceding that the effect was to devest the wife of her marital interest in the Burlington property, the obligation, if any, to reinvest in other land was moral, instead of legal. Unless there were actual fraud, giving the wife a clear right to impound the proceeds or to control their use, she cannot pursue them. The substantial claim made in the petition is for a widow’s statutory interest in specific tracts of land, a fee-simple title to one-half in value. In order to recover, the plaintiff must claim under the statute and through her husband, and her husband had no interest in the property to which her statutory right could attach.
Some make-weight allegations are inserted in the petition, to the effect that through the joint efforts of husband and wife, incumbrances on the land in controversy were paid off, and valuable, permanent improvements were placed on it. The plaintiff does not ask for compensation, or for a lien. What she wants is one-half the land, something she is not entitled to receive.
Thq plaintiff presents no tenable theory, legal or equitable, according to which the relief demanded could be awarded, and the court knows of none. Therefore, the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This is an action brought by Benjamin F. Hester to recover damages for' the loss of a mare that was drowned while he was driving on the highway which forms the line between Union and Mitchell townships. The jury gave plaintiff a verdict and the defendants below bring the case here for review.
It is first contended that the trial court should have sustained the demurrer to the petition of plaintiff for the reason that it did not state facts sufficient to constitute a cause of action, and for the further reason that the facts therein stated showed contributory negligence on the part of the plaintiff. We have examined the petition and cannot concur in the contention of the plaintiffs in error. The petition states a cause of action. The facts alleged raise no such presumption of negligence on the part of the injured person as would justify the trial court, as a matter of law, in sustaining the demurrer.
' The second contention of the plaintiffs in error is that the trial count erred in overruling the demurrer to the evidence. Testimony was introduced showing the circumstances of the drowning, and an attempt was made to show contributory negligence. The jury found, in answer to a special question, that there was no contributory negligence on the part of the plaintiff. The evidence is sufficient to sustain this finding.
It is further contended that the demurrer should have been sustained for the reason that the evidence failed to show that the place where the accident occurred was a public highway. The evidence was that the road on which the plaintiff was traveling had been used for twenty-one years by the traveling public and was on tlie line between the two townships, though the particular spot where the accident occurred had been opened to the public but a short time. The road ran north and south and the plaintiff was traveling north. There had been an old road, used for years, which turned off to the northeast and then came back to the section line. It deflected a short distance south of where the accident happened and converged a little north of the place. This had been fenced up shortly before the time in question. The township trustees of each of the townships in question had knowledge that it was to be fenced in, and one of them that it had been fenced, and they had made preparations for putting in a bridge where the accident occurred. It seems that the trustee of Mitchell township was looking after the matter more than the trustee of Unio'n township, and had dug out the hole in which the mare was drowned. This hole was in the line of the newly laid out portion of the road, but was outside the forty feet allowed for the highway and over in Union township. It was only a few feet outside of the limit, however, and was therefore none the less a highway. (Gen. Stat. 1897, ch. 157, § 12 ; Gen. Stat. 1889, ¶ 5508.)
It is further contended that the trustees of the respective townships did not have notice of the defect as required by law. The evidence showed that each had notice about three months before the accident that that portion of the road which diverged was to be closed up and fenced in, and that in accordance with this notice they had prepared to build a bridge over the place where the mare was drowned, and had purchased the material for that purpose. These facts, with others appearing in the record, were sufficient, in our opinion, to require the trial court to submit the case to the jury upon the evidence introduced by the plaintiff. The supreme court and this court have repeatedly held that, before a demurrer to the evidence can be sustained, “the court must be able to say that, admitting every fact that is proved which is favorable to plaintiff, and admitting every fact that the jury might fairly and legally infer from the evidence favorable to the plaintiff, still, the plaintiff has utterly failed to make out some one or more of the material facts of his case.” (Brown v. A. T. & S. F. Rld. Co., 31 Kan. 16.)
Plaintiffs in error complain that the court erred in giving instructions 7, 8, and 9, but there is nothing in the record, so far as we have been able to discover, showing that exceptions were taken to these instructions. We have examined them, however, and think they correctly state the law applicable to the facts in this case.
The special instructions asked by the defendants below were properly refused. They are, so far as applicable to the facts in this case, fully covered by the general instructions appearing in the record.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wells, J.:
The plaintiffs in error, plaintiffs below, began this action in the district court of Mitchell county by filing a petition alleging, substantially : (1) The partnership of the plaintiffs ; (2) that at and prior to January24, 1895, defendants W. T. Lutz and James Finnigan were engaged as partners in a mercantile business at Glen Elder and were indebted in large sums of money, and for the purpose of shifting their indebtedness and relieving themselves of personal liability they entered into an agreement with the other defendants under which a corporation was pretended to be formed and a charter prepared and filed; that on February 12, 1895, said defendants, as trustees of said corporation, elected W. T. Lutz president and secretary, J. A. Stinson vice-president, and E. D. Harn treasurer, and no other steps were taken to complete the organization or provide for its capital stock; that about September 11, 1895, to carry out said conspiracy, said W. T. Lutz, as president, for and on behalf of the other defendants, represented that said corporation had been legally organized, with a capital stock of $9000, all subscribed and paid, and had assets of over $17,000 above debts and liabilities ; that plaintiffs-, relying on said representation, sold them goods to the amount of $1887, and afterward, on further misrepresentation of solvency, the payment of this debt was extended to February 1, 1896, and notes accepted therefor ; that said company was never incorporated, had no capital stock, and was insolvent; and plaintiffs prayed judgment against defendants for the amount of said debt.
To this petition the defendant James Finnigan filed his separate answer, in substance as follows : (1) A general denial; (2) alleging that the defendant W. T. Lutz owed him $9000 and interest for money loaned him, and that the same had been assumed by the New York Store Company, the name of the pre tended corporation referred to in the petition; (3) alleging the formation of the corporation, the subscription of stock, the sale of the stock taken by him, and the publication of notice of the opening of books for subscription to the stock as required by law ; (4) that said corporation transacted business from the 1st day of February, 1895, until the 31st day of December, 1895, and as such purchased goods of the plaintiffs solely on the credit of said corporation, and that said plaintiffs knew this answering defendant was in no way interested therein ; (5) that said plaintiffs accepted notes of said corporation for their debts. This answer -was verified.
The other defendants answered under oath, in substance as follows : (1) A general denial; (2) alleging the formation of the corporation, the subscription in good faith of twenty-six shares of $100 each to its capital stock and that the same were paid for and issued; that officers were duly elected, and by-laws and rules adopted, the sale of the stock held by Finnigan, and publication made of a notice for subscription to the stock ; (3) alleging that said corporation transacted a large mercantile business from February 12 to December 31,1895, and as such bought of the plaintiffs goods as sued for; the acceptance by plaintiff of the corporation’s notes therefor ; and that said goods were sold and credit extended solely to said corporation, and that plaintiffs well knew defendants -were not partners but only stockholders in said store.
To these answers the plaintiffs filed a verified general denial of all new matter, and on these issues the case was called for trial to the court and jury. At the close of the plaintiffs’ evidence a demurrer was interposed by the defendants and sustained bv the court to the sufficiency of the evidence. A judgment was rendered for the defendants, and the case is brought here for review.
The first complaint is on the exclusion of certain evidence offered by the plaintiffs tending to show a partnership existing between W. T. Lutz and James Finnigan prior to January 19, 1895. This partnership was pleaded by the plaintiffs and denied by the defendants, and was a question at issue, and such question was a proper subject for proof, as it might-have a material bearing on the main issues in the case.
The next allegation of error is in the refusal to permit plaintiffs to introduce evidence offered, as follows :
By Mr. Ellis: ‘‘I now offer to show, that, while twenty-six shares of the stock of the New York Store Company were issued, none of such shares were ever paid for by the parties to whom such shares were. issued, and that there was never any intention or agreement that such shares should be paid for, and that no other shares were ever subscribed for or issued. In other words, I offer to show that there was no stock subscribed or issued in good faith.”
By Mr. Burnham : “We object to the evidence as incompetent, irrelevant, and immaterial.”
By the court: ‘‘It having been admitted that twenty-six shares of stock of the proposed corporation were actually issued to and accepted by a sufficient number of persons to supply a board of directors, I think there was an organization of the corporation sufficient to permit it to do business, and it becomes immaterial whether the parties who received such stock ever paid for same, or whether any other shares of stock were ever issued or subscribed. Having accepted the certificates of stock, it is immaterial whether they previously subscribed, and it is also immaterial whether they paid for same ; for if they have not paid for the stock, then in a proper action they would still be liable for the amount. Objection sustained.”
This is reversible error. If such be the law, cases can be easily imagined where the only person connected with a corporation from whom anything could be collected or on whose faith and credit any trust could be reposed either had no stock at all, or so small an amount as to be comparatively worthless, and the first principle of equity is that it will not suffer a wrong to be without a remedy. We think that the law which should govern this case is that where a party is induced to part with his property through the fraud and misrepresentation of others, all the parties who engaged in the perpetration of such fraud and misrepresentation are responsible for the .damages sustained thereby. We know no guise under which a party can, by the perpetration of a fraud, obtain others' property without any legal liability therefor.
The judgment of the court below will bé reversed, and a new trial directed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by the defendant in error W. R. Banks against the plaintiffs in error Allendorph & Buckingham for the recovery of f310, for the use of pasture lands, and for damages sustained by reason of defendants’ violating the terms of the lease. The defendants’ answer was a general denial, except that they admitted the execution of the lease and claimed damages by reason of the failure of the plaintiff to make improvements agreed on; and then claimed also a credit for money paid out for the use of the plaintiff in the sum of $45. The reply was a general denial.. A trial was had before the court and a jury’, which resulted in a verdict for plaintiff in the sum of $225.24. The defendants filed a motion for-a new trial, which was overruled, and present the case to this court for review.
The plaintiffs in error contend that the trial court erred in excluding certain evidence offered at the trial. We are referred in the brief to several pages of the record for such evidence ; there is no attempt to comply with the rules of the court by setting out such evidence and we decline to consider the matter.
The contention is also made that the court erred in charging the jury as to the measure of damages recoverable by the defendants. We concede that the instruction does not correctly state the law_ applicable to the measure of damages. The court thereby permitted the jury to make an allowance of damages to the defendants which was not properly recoverable. This error does no.t, however, prejudicially affect the substantial rights.of the defendants. By the terms of the lease, Banks agreed to put the fences on the premises in good condition, to provide two water-tanks of thirty barrels each, and connect the same with the spring; to construct a pond for watering purposes ; and agreed that if the water from the spring and pond be insufficient for 200 head of cattle he would put in a well and windmill. It is insisted that he failed to construct the pond in seasonable time ; that the spring practically failed; and that the well was not dug to a proper depth, nor at the proper time to furnish water ; that by reason thereof there was an insufficient supply of water in the pasture, in consequence of which the cattle were injured, and removed from the pasture long before the expiration of the lease; and that thereby the defendants were damaged in a much larger sum than the amount of rent due. -
The true measure of damages recoverable by the lessee for the lessor’s alleged breach of his covenant to make repairs is the difference between the agreed rent and the rental value of the premises without the repairs. There is no evidence in the record, nor was there any evidence offered, tending to show the rental value of the premises without the improvements. There is a total want of evidence on which to base an instruction for the actual damage recoverable. Can there be a recovery of damages in such case without evidence ?
These are the only errors argued. We think the trial court committed no error prejudicial to the rights of the plaintiffs in error. The verdict and judgment in this case are fully supported by the evidence, and are affirmed.
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The opinion of the court was delivered by
Milton, J.:
Clay Wood brought this action against John ,K. Cross, Edson Wiggins, Harriet Bohanna, Freddie Bohanna, Arthur F. Bohanna and Sidney W. Bohanna to recover the sum of $710.55, as damages for breach of a covenant of warranty in a deed executed by Jeremiah Bohanna, deceased, and the defendant Harriet Bohanna, his wife, conveying certain real estate in Sumner county. The defendants Freddie Bohanna, Arthur F. Bohanna, and Sidney W. Bohanna, the children and heirs of the decedent, demurred to the petition, and the ruling of the court sustaining the demurrer is assigned as the only ground of error in these proceedings.
While the petition is criticized as not containing a sufficient statement of plaintiff's cause of action, we think it either directly or by necessary inference sets forth a cause of action for breach of the covenant of warranty and contains sufficient facts to show the liability of the heirs of the deceased covenantor to respond in damages. The prayer of the petition is not in the proper form, but that does not furnish ground for a demurrer. (Hiatt v. Parker, 29 Kan. 765.) It was alleged that Jeremiah Bohanna died intestate and that his estate was administered, and property alleged to be worth $10,000 distributed and set apart by the probate court of Sumner county to the heirs, parties defendant herein, prior to the commencement of an action against the plaintiff, wherein a judgment of eviction was rendered, he then being in possession of the land ; and that after such judgment of eviction plaintiff purchased the paramount title. It was further alleged that before the commencement of that action the administrator of the estate of Jeremiah Bohanna made final settlement and distribution of such estate. We think it must be held that the plaintiff was entitled to recover as against the heirs of the deceased covenantor, provided the cause of action was not barred by the statute of limitations. In Rohrbaugh v. Hamblin (57 Kan. 393, 46 Pac. 705), the second paragraph of the syllabus reads :
“Although by the common law of England heirs are not bound by a covenant of warranty of their ancestors unless expressly named therein, and then only to the extent of the assets received by descent, yet in this state, when, after all the assets have been converted into money and distributed to the heirs, an obligation of the ancestor matures, such heirs may be compelled to refund to the claimant so much of what they have received as shall be sufficient to satisfy the obligation.”
To the same effect are the following cases: Harmon v. Dorman et al., 8 Ind. App. 461, 35 N. E. 1025; Colton v. Galbraith, 35 S. C. 531; Foote v. Clark, 102 Mo. 394, 14 S. W. 381.
The allegation that assets of the estate of the value of $10,000 had been distributed to the widow and three children of the decedent is sufficient to'show that each of the heirs received more than the amount of the plaintiff's claim, since the distribution was made according to law. The judgment of eviction was rendered February 11, 1887, and on the same day the plaintiff purchased the paramount title. This action was begun on October 3, 1890. Was the plaintiff's cause of action then barred ? Defendants in- error contend that this action is on an implied contract and that the three-year limitation applies, while the plaintiff in error insists that the action is on a contract in writing' and that the five-year limitation governs. Among other provisions of section 12, chapter 95, of the General Statutes of 1897 (Gen. Stat. 1889, ¶"4095), relat ing to the time of commencing civil actions other than those relating to real property, is the following : “Sixth, An action for relief not hereinbefore provided for can only be brought within five years after the cause of action shall have accrued.” This action is based on the covenant of warranty, a written contract. It was said in Rohrbaugh v. Hamblin, supra, that the beneficiaries of an estate are not personally liable in an action at law on a covenant of their ancestor, but can only be held to the extent of the assets received from the estate, and that the action should be equitable in form to subject the assets received by the beneficiaries to the payment of the debt.
As against the covenantor, this action might have been brought at any time within five years after the breach of the covenant, and his estate would have been diminished to the extent of the recovery in such action. Why should not his estate which has been distributed to his heirs under the law be chargeable for a like period with liability for damages arising from a breach of his covenant ? We think that, under the first paragraph of said section, the action could have been brought at any time within five years from the date of the judgment of eviction. It is possible that paragraph 6 also covers a case of this character.
It-follows that the order of the district court sustaining the demurrer to the plaintiff’s petition was erroneous. It will be reversed, and the case remanded for further proceedings.
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The opinion of the court was delivered by
Milton, J.:
In this action a permanent injunction' was granted restraining the plaintiffs in error Rufus Oone, as sheriff of Sedgwick county, and G. D. Os-burn, the execution creditor, from selling and causing to be sold a certain tract of land which had been levied on under an execution issued against the defendants in error, and which land the court found to be the homestead of the latter. On March 15, 1890, and while the defendants in error were residing on certain premises near the corporate limits of the city of Wichita, as tenants under a one-year lease commencing about March 1, 1890, Mrs. Magee, acting through her husband as her agent, purchased' eighty acres of land in Sedgwick county, and paid for the same out of funds then recently received from her deceased father’s estate. They had removed' from their former homestead, a quarter-section in Sedgwick county, which they had previously encumbered with two mortgages, the first to the Farmers’ Loan and Trust Company and the second to G. D. Osburn. At the dates named the mortgages were in process of foreclosure in a single foreclosure action, and on October 14,1890, judgment was entered in favor of the mortgagees. Afterward the mortgaged land was sold under an order of sale issued in said action, the proceeds of the sale being sufficient to satisfy the first mortgage only. The amount due Osburn at that time was $1050, no part of which was paid at the time of the commencement of the present action.
The testimony on behalf of the plaintiffs below tended to prove that at the time Mrs. Magee purchased the eighty-acre tract she and her husband intended to occupy the same as a homestead as soon as possession could be obtained from the tenant of their grantor, the tenancy being for one year from March 1, 1890. They were aware of the existence of the tenancy before making the purchase, and directly after the purchase Mr. Magee tried without success to obtain from the tenant a surrender of the possession. It was then agreed that the tenant should occupy the land until the end of his term, the rent to be paid to the defendants in error. In the fall of 1890 the tenant sowed wheat on the land with the consent of the defendants in error, who also consented that the tenant might remain on the farm until after the wheat harvest of 1891. Thereafter the defendants in error leased the premises they were themselves occupying for a further term, extending' until some time in the fall of 1891. In August, 1891, the tenant quit the premises, and the defendants in error caused part of the same to be plowed preparatory 'to sowing wheat thereon. They testified that they could not leave the premises they were occupying until after they had taken care of the apple crop grown there in the season of 1891. They actually removed to the premises claimed as a homestead on October 20, 1891, six days after the levy had been made under the execution in favor of Osburn. The removal was hastily made and without any preparation therefor. The house on the land contained only two rooms and in one of them wheat was stored. On the preceding day, Magee, learning of the levy, had consulted an attorney regarding the matter. Some time prior to the levy of the execution, Magee had gone to Oklahoma with the expectation of locating on public land, but he abandoned the idea and returned. This action was commenced by Mrs. Magee, and afterward she was permitted to amend her petition by joining her husband as coplaintiff. They had no other real property.
Do the foregoing facts sustain the finding of the trial court that the land in controversy was the homestead of the defendants in error at the date of the levy? In Monroe v. May, Weil & Co., 9 Kan. 466, one paragraph of the syllabus reads :
“A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, receives from the time of purchase a homestead exemption from seizure upon execution or judgment.”
In the case of Swenson v. Kiehl, 21 Kan. 533, it appears that the land was purchased by the execution debtor on November 13, 1876, the judgment on which the execution was based was rendered in 1873, and the property was levied on and sold under an execution on that judgment, issued in April, 1877. There was a house on the land, but the defendant had failed to occupy it as a residence up to the time of the trial. In the opinion the court said :
” ‘ Occupied as a residence by the family of the owner,’ is the language of the constitution defining the homestead exemption, We are aware that occupancy is not always possible at the instant of purchase, and that, as we have heretofore said, a reasonable time is allowed in which to prepare for and to complete the removal' and occupation of the intended homestead ; but the purchase must be for the purpose and with the intent of present, and not simply of future, use as a residence. A party may not have two homesteads. If he occupies one dwelling as a residence, and intends to continue such occupation for the present, a purchase of another residence does not invest that with the character of a homestead simply because of an intent, at some future and more convenient time to make it his home. And this is true whether the present residence is owned or leased.”
The syllabus of the case reads :
"(1) Occupation, actual or constructive, is essential to give the homestead character to premises. (2) While occupation need not always be instantaneously contemporaneous with purchase, to create a homestead, yet the purchase must always be with the intent of present, and not simply of future, occupancy.”
In the case of Ingels v. Ingels, 50 Kan. 755, 32 Pac. 387, the supreme court reviewed practically all of the decisions of that court in which the homestead provision of the constitution had been considered. In the opinion the court said :
" Whatever our views might be as to the propriety of allowing a debtor to hold a tract of land for a homestead, whether occupied or not, we are bound to declare the law as we find it; and while this court in the cases cited has given the constitutional provision a liberal construction, for the purpose of fully securing to needy debtors the beneficent extension secured to them by the constitution, yet we may not wholly dispense with the requirement of occupancy.”
The first paragraph of-the syllabus reads :
"Where city lots are purchased for a homestead, in order to preserve a debtor’s right to the homestead exemption, he must actually occupy the same as a residence within a reasonable time after the purchase ,- and where a debtor fails to so occupy, and fails to make any preparation for occupancy for a period of two years and five months after such purchase, he cannot defeat the judgment lien of a creditor merely by showing that he has always intended to occupy said lots as a homestead. The constitution and the statute require actual occupancy in order to preserve a homestead right.”
■ Referring now to the facts hereinbefore stated, it will be seen that at the time Mrs. Magee purchased the tract of land she and her husband intended to occupy the same as á homestead at some future time. They were aware of the existing tenancy and the purchase was completed before any effort was made to terminate such tenancy. It is possible that, within the principle of the decision by the supreme court of this state in the case of Upton v. Coxen, 60 Kan. 1, 55 Pac. 284, the tenancy existing at the date of the purchase of the land might be regarded as a temporary obstacle preventing immediate occupancy by the defendants in error, and that the latter might have acquired a homestead right in the land notwithstanding the fact of such tenancy, but it is doubtful if the decision goes to that extent. Assuming, however, that it does, there is not in the record anything to excuse the conduct of the defendants in error in extending the term of the tenancy from March 1 to some indefinite date “after harvest.” It is unreasonable to say that their voluntary extension of the terms of the tenancies as to the' premises they themselves were occupying and as to the land in controversy was consistent with an intent of present occupancy by themselves of the latter tract as a homestead. The defendants in error showed affirmatively by their own acts that whatever intention of present occupancy they entertained when the land was purchased had been abandoned. ■ • •
The execution to enforce the judgment having been levied after the abandonment of the intention of occupancy and before actual occupancy of the land by •the defendants in error, a homestead right therein did not exist at the date of the levy, and was not acquired by occupancy after the levy. (Bullene v. Hiatt, 12 Kan. 98; Ingels v. Ingels, 50 id. 755, 32 Pac. 387.) The trial court erred in declaring the tract in controversy to be a homestead and exempt from, levy and sale under the execution. The judgment will be reversed, and the cause remanded for a new trial.
Schoonover, J., concurring.
Dennison, P. J., dissenting.
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The opinion of the court was delivered by
Schoonover, J.:
This action was commenced in the district court of Gray county by the board of county commissioners of Finney county against the board of county commissioners of Gray county, on an alleged claim for the keeping of a prisoner committed to the jail of Finney county by a committing magistrate in Gray county, under paragraph 3549, General Statutes of 1889 (Gen. Stat. 1897, ch. 132, § 16). The allegation in the petition as to the presentation of the claim is as follows: “That said claim and amount is due and wholly unpaid ; that the same has been demanded and payment thereof refused.” A demurrer to the petition was sustained by the trial court. The allegation is sufficient as against a demurrer. In the case of Gillett v. Comm’rs of Lyon Co., 18 Kan. 410, the court said:
“ The defendant objected to the introduction of any evidence under the plaintiff’s bill,of particulars, on the ground that the said bill did not state facts sufficient to constitute a cause of action. ... It was not necessary that the bill of particulars should have stated that the several claims of the plaintiff had all been presented to the county board for allowance, and had been acted upon by them. Such a presentation of a claim constitutes no part of a plaintiff’s cause of action. It is merely a part of the mode of procedure to enforce the causes of action already existing. And if the plaintiff fails to resort to this mode of procedure, the failure is merely matter for defense — merely matter for plea in abatement, to be set up by the defendant itself.”
The next question presented is, Was Gray county, under the facts alleged, liable to Finney county? It appears that during a portion of the time the prisoner from Gray county was the sole occupant of the jail, and Gray county now refuses to pay the one dollar per day due the sheriff for attending the jail. The prisoner was lawfully committed to the jail of Finney county. Section 16, chapter 132, General Statutes of 1897 (Gen. Stat. 1889, ¶ 3549), provides:
“And the sheriff of such nearest county shall . . . receive and keep in custody in the jail of his county the prisoner ordered to be committed as aforesaid, at the expense of the county from which such person was sent.”
If the sheriff is entitled to the fee of one dollar per day for taking care of the jail, and this is incurred solely on account of the prisoner from the other county, it would follow that, since the sheriff is to keep the prisoner ‘ at the expense of the county from which such person was sent,” in this case the debt was incurred by Gray county, and Gray county is responsible to the sheriff of Finney county for these fees. There is no reason in holding that Finney county should pay this debt, which is brought about wholly by Gray •county. If the prisoner had been in jail in Gray •county, that county would have had to pay its sheriff this fee, and it is paying no more by reason of his confinement in Finney county than if Gray county had a jail of its own. Finney county paid this debt after judgment had been rendered against it in favor of the •sheriff. It would seem that under the circumstances it would be entitled to be subrogated to the rights of the sheriff.
In this case the sheriff has assigned his credit to the ■county commissioners of Finney county. Without going into the question whether the county commissioners can, as a general rule, receive and take advantage of an assignment of an obligation, we can see no ■chance for abuse or speculation if the principle is not extended beyond the facts of this case. The case of Shawnee Co. v. Wabaunsee Co., 4 Kan. 314, is applicable in principle to the one at bar.
The judgment of the district court is reversed.
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The opinion of the court was delivered by
Wells, J.:
The main facts in this case are about as follows : On June 7, 1887, G. C. Wattles and Nettie H. Wattles were husband and wife. The wife, owning some unimproved town lots in Atchison, desired to build a residence on said lots. The husband subscribed for ten shares, of $500 each, of stock in the Atchison Loan and Building Association, and procured a loan of said association under the provisions of its by-laws, and in connection with his wife executed to it tlieir notes and a mortgage on the lots referred to, in the sum of $5000, to secure the same, and the husband also transferred to the association the stock held by him. The money realized from this loan was used to build a house on the premises, and the house was occupied by Wattles and his wife as a residence until the beginning of 1893, when they moved to Kansas City. In April, 1893, the property was sold to J. W. Wággener for $4000. The mortgage debt thereon had then been reduced by monthly payments to $2361. This sum, with nine per cent interest per annum, Waggener agreed to pay within two years to the First National Bank of Atchison, with which a deed for the property was deposited, to be delivered to Waggener upon the payment of said money. The balance, $1639, he paid in cash, $1000 of which by agreement was deposited with the First National Bank of Atchison as security for the payment by Wattles of the monthly payments due the loan company not provided for by the Waggener contract, and thus prevent a default in the mortgage. This deposit was evidenced by a certificate of deposit made to the said G. C. Wattles and by him indorsed and delivered to the bank subject to said contract.
Wattles defaulted in the July, 1893, payment, and in August, 1893, the bank cashed the certificate of deposit and from the proceeds made the July payment, and also for each month thereafter as payments became due. On January 26, 1894, Waggener paid to the bank the balance due from him, amounting to $2433.30, and the deed-for the property was delivered to him. This left in the hands of the bank $867.30, out of the funds derived from the sale of the property of Wattles, not necessary for the payment of the liens thereon. This sum the bank sought to apply, without any permission from any one, toward the payment of an indebtedness owing it from the .Haskell Printing Company, an insolvent corporation in which G. W. Wattles was a stockholder. Whether or not it had the right to make such appropriation of said funds is the principal question in this case.
The property sold, from which this money was received, was the property of Mrs. Nettie H. Wattles. On May 16, 1893, the bank was notified that she was the owner of said funds, by her husband, in whose name the certificate of deposit stood, and authority was given to make the certificate so show. On July ■7, 1893, Nettie H. Wattles assigned it to G. W. Wattles, a distant relative of her husband, who was the plaintiff in this case in the court below and is the principal defendant in error here. On July 8, 1893, G. W. Wattles notified the bank that he was the owner of said certificate and made a demand therefor. After this, the bank cashed the certificate and appropriated the proceeds as hereinbefore stated. The court below substantially held that G. W. Wattles was entitled to the balance of said funds in the hands of the bank after the payment of all the debts for which it was security, and gave judgment accordingly. This we are asked to reverse.
There are thirteen assignments of error in the plaintiff in error’s brief. With regard to the first one, it is sufficient to say that the fund in controversy was deposited in the bank to secure the payment of certain obligations of G. C. Wattles, and the first part of the matter asked to be stricken out alleged the payment and discharge of said obligations and was proper matter to be pleaded. The latter part was probably surplusage and should have been stricken out, if requested, but it was not error to overrule the motion as made! The second and third assignments of error, concerning the admission and exclusion of evidence, do not comply with the requirements of rule 6 of this court. On the contrary, there are thirty-five pages of record referred to without any pretense of calliüg our attention to the particular portions that are supposed to be erroneous or the reasons why' they are so. If we are carefully to examine the question of competency or relevancy of testimony admitted or refused, our attention must be specifically called to the exact portion referred to, and the reason given why the rulings of the court are believed to be erroneous.
All the remaining assignments of error except the twelfth can properly be considered together under the question, Lid the pleadings and evidence justify the court in rendering a judgment for the plaintiff below ? There can be no serious question but that the money in controversy primarily belonged to Mrs. Wattles. It was the proceeds of the sale of her property, and although the business was transacted by her husband as her agent, the money belonged to her as against every person except such as may have acquired some legal right to it. The bank, through her acquiescence, had the right to hold it and apply as much as necessary thereof to a particular, cléarly specified purpose. When that purpose was accomplished, the money belonged to her or her assignees. That she had a right to' sell and transfer her equity therein there is no doubt, and that she did so the court was fully justified by the evidence in finding.
■ dt is argued by the plaintiff in error that the action was one at law for the tortious taking and converting of a specific chattel, and that in such case the right to the immediate possession of the chattel must be alleged and proved before a recovery can be had, cit ing many authorities in support thereof. We have no doubt but that under the former rules of practice this contention would be fully approved, and in many states it is the law to-day, but in Kansas the law says :
“ The distinctions between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished, and in their place thei’e shall be hereafter but one form of action, which shall be called a civil action.” (Gen. Stat. 1897, ch. 95, §6; Gen. Stat. 1889, ¶ 4087.) “The petition must contain, fix'st, the name of the court and the county in which the action is brought, and the naxnes of the parties, plaintiff and defendant, followed by the word ‘petition’ ; second, a statement of the facts constituting the cause of action, in ordinaxy and concise laxxguage, and without repetition ; third, a demand of the relief to which the party supposes himself entitled.” (Gen Stat. 1897, ch. 95, §87; Gen. Stat. 18S9, ¶4170.) “The plaintiff is entitled to whatever relief tlxe facts stated in his petition warraxxt, regardless of the prayer of the petition.” (Walker v. Fleming, 37 Kan. 172, 14 Pac. 470.)
It is claimed that the court was not jxxstified in finding that Mrs. Wattles was not a stockholder in the Haskell Printing Company; that a transfer of the stock can only be made on the books of the corporation ; and as no evidence of such a transfer was offered there was no evidence of a legal transfer. In reply to this we would say, that in order to hold a person as a stockholder by the books of a corporation, the books xnxxst show that such person is a stockholder. In this case there is no evidence that Mx’s. Wattles’s name appears on the books as a stockholder, but by the same evidence claimed by the plaintiff in error to establish the fact that she once was a stockholder it is proved that she long since ceased to be sixch.
The twelfth assignment of error is that the amount of the judgment was too large. In other words, the contention is that the $269.80 paid by Mr. Waggener as interest was a fund to which the plaintiff had no claim, but was added in to make the amount of his judgment, when it should not have been. The $1000 was deposited with the bank to pay all sums due the loan association not provided for in the contract with Waggener, and it was the duty of the bank to pay from said fund only what was not otherwise provided for, and as equity counts that done which ought to be done, it will apply all of the Waggener payment toward the liquidation of the debt, and the court was right in holding that the whole amount left in the hands of the bank was due the assignee of the claim.
There is no other question in this case of sufficient importance to demand extended notice. We have carefully read the record and considered the briefs of the respective parties and are convinced that the judgment is amply supported by the evidence and is eminently just and equitable. The judgment is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
The plaintiff in error commenced this action in the district court of Labette county on a note and mortgage, praying for judgment on the note and foreclosure of the mortgage. The defendants answered and the plaintiff replied. At the trial the defendants demanded a jury to answer such special questions of fact as the court might submit. The plaintiff in error submitted twenty-five special questions and the court submitted four, which were answered by the jury, accepted by the court and entered of record, and the jury discharged. The plaintiff filed her motion to set aside the special findings, and asked judgment on the special findings. The defendants filed their motion for judgment on the special findings. The record contains the following entry :
“Now, on this 26th day of February, a-, d. 1895, this cause came on for hearing upon the motion of the plaintiff, Helen M. Dickerman, to set aside the special findings of the jury heretofore made in this case. Plaintiff appeared by William H. Clark, her attorney, and defendants appeared by Leroy Neale & Son, their attorneys ; and the court having heard said motion, the argument of the respective counsel, and being fully advised in the premises, doth overrule and deny said motion, to which ruling and decision of the court plaintiff duly excepted and excepts ; and, thereupon, said plaintiff moved the court to dismiss said cause without prejudice, which motion was by the court overruled and denied, and to which ruling and decision of the court plaintiff duly excepted and excepts.
“Thereupon, said cause came on for hearing upon the motion of plaintiff for judgment upon the special findings of the jury ; and the court having heard the motion, the argument of the respective counsel, and being fully advised in the premises, doth overrule and deny said motion, to which ruling and decision of the court the plaintiff duly excepted and excepts.
“And thereupon, and on the same day, said cause came on for hearing upon the motion of defendants for judgment upon the special findings of the jury heretofore found and returned herein; and the court having heard said motion, the argument of the respective counsel, and being fully advised in the premises, doth sustain said motion ; and thereupon, the court doth order, adjudge and decree that plaintiff’s said mortgage be, and hereby is, canceled and held for naught, that said defendants have and recover of and from said plaintiff the costs herein, taxed at $109.75, for which execution is awarded; to which ruling, decision and judgment of the court plaintiff duly excepted and excepts.”
Plaintiff in error presents but one question, Did the court err in overruling plaintiff’s motion to dismiss? Section 4493, General Statutes of 1889 °(Gen. Stat. 1897, ch. 95, § 393), provides : “An action may be dismissed without prejudice to a future action : First, by the plaintiff, before the final submission of the case to the jury, or to the court, where the trial is by the court.” Upon the facts in this case, we conclude that there was such a submission of the issues as would prevent the plaintiff, as a matter of right, under the statute, from dismissing the case without prejudice. The evidence was closed ; the jury had returned their findings; the case was ready for judgment. This is a final submission, and the plaintiff’s right to dismiss at that time without prejudice rested in the discretionary power of the trial court. (St. Jos. & D. C. Rld. Co. v. Dryden, 17 Kan. 278; Schafer v. Weaver, 20 id. 294; Mason v. Ryus, 26 id. 464; Ashmead v. Ashmead, 23 id. 262.)
There was no abuse of discretion. 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 on a negotiable promissory note for $600- and a real-estate mortgage securing the same, dated December 1, 1885, both executed by J. C. Chandler and wife and delivered to Levi Billings, president,, payee and mortgagee. Billings was president of the Cottonwood Valley Bank, of Cottonwood Falls, Kan., and this bank, being indebted to the plaintiff in error for borrowed money, transferred to the latter said note- and mortgage, with other commercial paper, as collateral security for the payment of such indebtedness,, by a blank indorsement of the note, signed by Billings-as president, and by delivery ,of the note and mortgage. The mortgage had been duly recorded before the transfer, and no written assignment thereof was-made. F. W. Fox purchased the mortgaged land from the Chandlers subject to the mortgage, which he assumed and agreed to pay. Before the maturity of' that mortgage, and for the purpose of discharging the same and securing further funds, Fox and his wife gave to Levi Billings, president, their note and mortgage, dated February 1, 1888, and due three years thereafter, for the sum of $1000. This mortgage was- acknowledged, filed fpr record and recorded on February 3,1888, and was mailed by Billings to the agent of the defendant in error on that day. On the same-day Billings entered a release of the Chandler mortgage on the records in the office of the register of deeds. Before mailing the note and mortgage to the defendant in error, Billings wrote on the back of the note the following words of transfer :
“For value received,-hereby assign and transfer the within note and coupon, together with all-interest in and right under the-mortgage securing-the same, to- Levi Billings, Prest.” .
The mortgage was assigned in writing on the instrument by Billings to Mrs. Margaret Pease.
On the 14th day of January, 1890, plaintiff com-" menced this action to foreclose its mortgage, praying-for personal judgment against the mortgagors and F„ "W. Fox. Levi Billings, president, was joined as a. party defendant, but no relief was asked for as against him except the foreclosure of the mortgage. MargaretPease was permitted by the court to file an answer as a party defendant in the action. Several defenses were set up in her answer, but the essence thereof was. the proposition that the lien of her mortgage was superior to that of the plaintiff’s mortgage, and she asked the court so to declare. Foreclosure of her mortgage was not prayed for. Three judgments were-rendered in the case at three successive terms of the court, the first two’ awarding foreclosure of plaintiff’s-mortgage and personal judgments against the mortgagors and Fox. The judgment against Fox was reviewed in this’ court and affirmed. (Fox v. Bank, 6 Kan. App. 682, 50 Pac. 458.) Finally a decree foreclosing defendant in error’s mortgage and declaring; the same a first lien on the mortgaged premises and. a personal judgment against Fox and wife in favor of the defendant in error were entered.
The case as presented to us involves a contest for precedence between the two mortgage lien-holders. The defendant in error has moved to dismiss.these proceedings on' account of the’ absence of Fox and others who were parties in the trial court. As the present parties have obtained separate judgments against Fox personally, and for foreclosure of their several mortgages, we are unable to discover in what way Fox will be affected by a reversal or modification of the judgment of the trial court with respect to the priority of the mortgage liens. The other omitted parties are clearly not necessary. The motion to dismiss is therefore overruled.
Nothing in the record tends to impeach the good faith of either of the mortgagees. The defendant in error relied on an abstract of title and the representations of Billings, as showing the land to be free from mortgage liens prior to that of the mortgage assigned to her by him. Neither she nor her agent knew the condition of the public records in respect of the mortgaged land. The abstract was very incomplete and contained no entry whatever as to the plaintiff's mortgage. The plaintiff had no notice or knowledge of the purported release of its mortgage by Billings until a few weeks before the commencement of this action. Billings acted without right or authority in releasing plaintiff's mortgage. The record thus presents the case of two innocent parties, one of whom must suffer loss on account of the fraudulent conduct of a third party. The defendant in error insists that this case is ruled by the decision in Lewis v. Kirk, 28 Kan. 497, while the plaintiff in error contends that the decision in Insurance Co. v. Huntington, 57 Kan. 744, 48 Pac. 19, governs. There is an apparent conflict between those decisions, but it is not necessary for us to specify the points of difference, as we have reached the conclusion that the facts before us do not bring the case within the doctrine of Lewis v. Kirk, supra, and that the judgment of the trial court giving priority to the defendant in error’s mortgage is erroneous. The doctrine declared in the last-named case is very succinctly and clearly stated in a later case, Fisher v. Cowles, 41 Kan. 418, 21 Pac. 228, where the syllabus reads :
“Where a mortgage on real estate is executed to secure the payment of a negotiable note, and is duly recorded, and afterward released by the mortgagee in due form on the records, although when the release was executed the mortgagee had assigned and had no interest in either the note or mortgage, a bona fide purchaser of the land described in the mortgage will hold it freed from the mortgage lien, even though the note and mortgage are in the hands of an innocent holder, and wholly unpaid.”
The doctrine thus declared in respect to a bona fide purchaser of mortgaged land under the circumstances of that case applies also to a bona fide subsequent mortgagee under similar circumstances. (Fisher v. Cowles, supra; Jordan v. McNeil, 25 Kan. 459.) The governing principle in the cases of Lewis v. Kirk and Fisher v. Cowles, supra, is that the release of the mortgages by the mortgagees in whose names they stood of record preceded the completion of the transactions through which third -parties in good faith became purchasers of the lands. Applying that principle to the present case, it should affirmatively appear from the record before us that the release of the plaintiff’s mortgage by Billings preceded the filing of the mortgage which he assigned to Mrs. Pease. The record fails to show which was prior in point of time, the release of the one or the filing of the other. The defendant in error relied on a defective abstract of title to the mortgaged premises and did not know what the public records set forth in respect thereto. This is probably immaterial, as both the parties hereto are presumed to have known what the records contained so far as this land is concerned.
If it be true that the Fox mortgage was executed by the mortgagors and delivered to Billings before the latter had actually released the plaintiff’s mortgage, it follows that the defendant in error’s mortgage was a second lien at the time of its execution and delivery. This is especially true in view of the fact that her mortgage note was assigned, and not indorsed in the commercial sense. It was held, in Hatch v. Barrett, 34 Kan. 223, 8 Pac. 129, that the writing on the back of a promissory note similar to the words of transfer used in the present case was not an indorsement in the commercial sense, and did not cut off the defenses of the maker of the note. It was further held that the words there employed must be treated as only an assignment of the note, and that the assignee stood in the place of the assignor and took simply the assignor’s rights. We think it a reasonable and proper conclusion that Mrs. Pease so far stands in the place of her assignor that she must prove that the release-of plaintiff’s mortgage preceded the filing of her own. The record does not contain such proof, and for this-reason the judgment must be reversed. In another-trial the answer of defendant in error can be amended so that foreclosure of her mortgage will be prayed for.
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
Milton, J.:
A preliminary question arises on the motion-to dismiss, the ground thereof being that the case-made was not signed and settled according to law. The certificate of the trial judge recites that at the time the case-made was presented by the plaintiff in error for settlement the defendant in error appeared by its attorney, and' that no amendments were suggested. The certificate also contains the following statement:
“ Said case-made is submitted to me for settlement, and after careful examination thereof I hereby certify that the above and foregoing case-made is .' in all respects a correct and ' true made case in 'said case, and the clerk is hereby directed to attest and file the same in said case.”
Within the doctrine of the case of Mutual Ins. Co. v. Sackett, 5 Kan. App. 660, 48 Pac. 994, we think this certificate must be held sufficient, as it clearly appears therefrom that after a careful examination of the contents of the case-made the trial judge had determined that the statements contained therein were true.
This case was tried in the district court of Lyon county on an appeal of the plaintiff in error from an award of damages on account of the location and opening of a county road across its right of way. The company duly presented its claim for damages in the sum of $230.25 to the viewers, who allowed $100, but this was reduced by the board of county commissioners to $75. The only issue presented to the district court, where the case was tried without pleadings, was as to the amount of damages the railroad company was entitled to receive. The jury returned a verdict for $59.70 in favor of the railroad company, and judgment was rendered accordingly, except that the company was adjudged to pay the costs of the action.
The railroad ran north and south and the highway crossed it at right angles, and extended along the section line on the south. There the railroad entered an enclosed field lying north of the section line, and for a number of years prior to the laying out of the highway a cattle-guard had been maintained by the railroad company at the point of entrance. It appears that about eighteen months before the 'highway was located the plaintiff company removed the cattle-guard. At the time of such removal the right of way was fenced on both sides through and south of the said field, and gates and a private crossing for use by the owner of the land had been placed at a point about 200 yards north of the south line of the field. The claim for damages presented by the railroad company to the viewers contained an exhibit embracing the following items : For right of way, $100; for two cattle-guards with wing fences, at $55, $110; eight crossing planks, $4.35 ; four drain boxes at $3.50, $14 ; labor in placing drain boxes and crossing planks, $1.90. In the special findings the jury found the reasonable cost of each cattle-guard to be $48.71. Nothing was awarded for making the north cattle-guard. The jury also found that drain boxes were not necessary and that the reasonable cost of making the wing fences was $6.29 for each cattle-guard, but made no allowance for such fences for the north cattle-guard.
From the instructions given and refused, the principal question in this case arises as to the duty of the railroad company to maintain a cattle-guard at the point where it entered the field north of the section line and where the highway as laid out intersected the line of railroad. While the statute as construed by our courts clearly requires that a railroad company make and maintain cattle-guards where the line of railroad enters and where it leaves improved or fenced land, we think the present case furnishes an exception. When the highway was petitioned for and laid out, the right of way was fenced on both sides through and beyond the tract of land north of the section line. It thus appears that the railroad really passed between enclosed fields. Neither a public nor a private necessity existed for the making of a cattle-guard at the point named. The cattle-guard had been removed and gates and a private crossing for the convenience of .the owner of the land which lay north of the section line had been made prior to the location of the highway. The owner of the land could not have required the making of a cattle-guard at that point, nor could the public have compelled it to be placed there by an action in mandamus. It will be presumed that the railroad company had performed its duty by placing cattle-guards north and south of the section line at the points where the line of railroad emerged from the right-of-way fences. The highway passed through the enclosure made by the right-of-way fences, and thus created the necéssity for cattle-guards on each side of such highway. Such being the case, the cost of making the cattle-guards must be borne by Lyon county and not by the railroad company. The verdict and the judgment are therefore erroneous for failing to include in the damages awarded the cost of making the north cattle-guard and wing fences.
Complaint is made of the giving of the following-instruction :
“ Gentlemen of the jury, you will disregard the evidence that has been introduced relative to the life of these different parts of the crossing that has been testified to and not consider anything except the actual cost of putting in the crossing and putting it in shape. All evidence that goes to the damages for perpetually maintaining it is withdrawn from you also.”
We think the instruction was proper. The railroad company claimed for specific items of damage, as hereinbefore noted, and no claim was made for maintaining the crossing and the cattle-guard. No evidence was introduced to show the money value of the right of way for which $100 as damages was asked. The statute clearly imposes the duty on a railroad company properly to maintain crossings at public highways wherever such crossings have been established.
Other matters mentioned in the brief of counsel for plaintiff in error do not require specific mention. 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
Milton, J.:
This action was commenced on the 28th day of March, 1893, by the plaintiff in error, to foreclose a mortgage on land in Greenwood county, executed in 1881 by Frank Mauk and Kate Mauk, his wife, then residents of the state of Ohio, to secure the payment of $1200 in the form of an account for merchandise already sold and to be sold to Frank Mauk. On April 2, 1888, and before the defendants’ removal from Ohio to Greenwood county, Frank Mauk executed and delivered to the plaintiff the following instrument:
‘ ‘ Received of the Cleveland Paper Company the following receipts now held by said company for taxes paid by it on land described in a certain mortgage from me to said company on lands situated in township 23, Greenwood eounty, Kansas, dated September 14, 1881, to wit: (setting forth receipts). These' receipts are delivered to me in pursuance of a settlement this day made between myself and the Cleveland’ Paper Company, and the balance due said company after payment made to-day by order of James Congkton on said mortgage is the sum of nine hundred eighty and 3^5-dollars ($980.72).”
The petition alleged the foregoing facts, and prayecf for judgment against both defendants in the sum of' $1345.65, which, besides the “ balance due ” as above., specified and interest thereon, included two separate items for taxes paid by plaintiff. The principal ground of defense was the statute of limitations. The court concluded as a matter of law that the plaintiff’s cause of action on the mortgage and the indebtedness thereby secured was barred, but that the plaintiff was entitled to a judgment against the defendant Frank Mauk in the sum of $36.70 for taxes paid and interest thereon, and rendered judgment accordingly.
The question presented by counsel for our consideration is whether the action on the mortgage and the debt secured thereby was barred when this action was begun. Section 18 of chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4101) reads :
■ “In any case founded on contract, when any part of the principal or interest shall have been paid, .or an acknowledgment of an existing liability, debt or claim, or any promise to- pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same after such payment, acknowledgment or promise ; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. ’ ’
We think it must be held that, under the provisions of this section, the right of action on the debt secured by the mortgage was taken out of the operation of the statute of limitations, as to Frank Mauk, by reason of .the written acknowledgment of his existing liability contained in the instrument set out. Neither the mortgage nor the written instrument acknowledging a balance due on the debt secured by the mortgage contained a promise to pay that debt. The effect of the written acknowledgment was to revive the debt for a period of three years from the date of such acknowledgment, and to give to the plaintiff a right of action on the debt at any time during that period. In the case of Elder v. Dyer, 26 Kan. 604, section 24 (now section 18) of the code is construed with reference to -an acknowledgment of an existing liability on a debt. 'The cóurt said:
“Tn Kansas, all that is necessary to take a cause of Action founded upon contract out of the operation of the statute is, that there should be an acknowledgment of ‘ an existing liability ’ on the original debt or claim ; and' then when the action is brought, it is brought not upon the acknowledgment, nor upon any new promise, but it is-brought upon the original debt or claim.”
In the case of Devereaux v. Henry, 16 Neb. 65, 19 N. W. 697, the supreme court of Nebraska considered section 22 of the civil code of that state, which is practically the same as section 18 of the Kansas' code. The case presented a question as to the effect to ,be given to a written acknowledgment of an existing liability on an account. The court said :
“This provision is, in substance, that if the debtor has in writing acknowledged an existing liability, debt, or claim, an action may be brought in such case within the period prescribed for the same, after such acknowledgment-. The action is not to be brought upon the acknowledgment but upon the original debt; the time in which it may be brought being simply extended by the acknowledgment.,. (Elder v. Dyer, 26 Kan. 604.)”
As the mortgage in this case was a mere security for the payment of a debt in the form of an account, we hold, in view of all the foregoing, that ,as to the, defendant Frand Mauk the action might have been brought at any time within three years from the date of the written acknowledgment by him of the “balance" due” on the debt; and that the right of action was barred as to all the defendants, at the date the petition was filed herein.
The judgment of the district court is affirmed.
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Tbe opinion of the court was delivered by
Schoonover, J.:
Judgment was rendered against the defendants, including M. A. Mullen, and the land ordered sold without appraisement. An order of sale was issued and the land sold to J. B. Watkins for $500. A motion was made to confirm the sale. On the llth day of January, 1894, M. A. Mullen filed objections to the confirmation, and afterward was permitted to file an answer and cross-petition to the petition of plaintiff. She alleged, in substance : That the title of the plaintiff to the land conveyed in the mortgage sought to be foreclosed was void, because that title was derived through conveyances from a certain administrator’s deed made by one Thomas Kennedy, as administrator of the estate of Bridget O’Connor, deceased; that the conveyance made by said Thomas Kennedy as administrator was void, because the land so sold was the. homestead of Bridget O’Connor and was 'sold by said administrator to pay debts contracted prior to the issue of the patent, and that such sale for such purpose was void under the provision of section 2296 of the Revised Statutes of the United States (1878), which is as follows :
“No land required [acquired?] under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.”
She further alleged in her answer that M. A. Mullen had begun on June 9, 1887, an action in the district court of Rush county, Kansas, against J. S. Smith, S. J. Collins, W, F. Gilmore, A. H. Teeter and William Neild to set aside all of said conveyances, which action was numbered 447 of the records of the district court of Rush county. She did not allege that the defendant William Neild, who was the original payee of the mortgage sued on by the plaintiff in this action, was ever served personally with summons or that he ever answered in said action.
To this answer and cross-petition plaintiff filed a reply. The J. B. Watkins Land Mortgage Company was substituted as plaintiff instead of Henry Dickinson, the cause was tried to the court on the issue joined without a jury, and judgment rendered for the defendant M. A. Mullen. The findings and judgment are as follows :
“ That the J. B. Watkins Land Mortgage Company, a corporation under the laws of the state of Colorado, by stipulation, is substituted party plaintiff in place of Henry Dickinson, and is the real party plaintiff in ini terest in this case.”
“ That the said land described and set out in plaintiff’s petition, to wit: The northwest quarter of section number 80, in township number 19 south, of range number 19 west of the sixth principal meridian, in Rush county, Kansas, was patented by the United States of America to the said Bridget O’Connor, as a homestead, under the homestead laws of the United States, and was so owned and held by her at the time of her death ; that Mary Ann Mullen was the sole and surviving heir of the said Bridget O’Connor, deceased, and is the absolute owner of the said real estate ; that the said real, estate was sold for the payment of debts of the said Bridget O’Connor contracted and existing prior to the time that the said patent to said land was issued as aforesaid, by Thomas Kennedy, as adminis trator of the estate of the said Bridget O’Connor, deceased ; and that said probate court had no jurisdiction of the said estate, or to appoint an administrator for the said estate, and that the said administrator had ño right or power to sell the said land, and that the title obtained by S. J. Collins, W. F. Gilmore, A. H. Teeter, Mary L. Teeter, I. S. Smith and William Neild from said sale of the said.administrator is null and void ; and that the. said mortgage sought to be foreclosed in this action is void, and conveys no right, title or interest in or to the said land, and that the plaintiff, under the said mortgage, has no right, title ‘or interest in or to the said land ; and that the allegations of the answer in cross-petition of the said Mary Ann Mullen are true.
“ It is therefore adjudged, ordered and decreed that the said Mary Ann Mullen is the absolute owner of the said real estate, and that the said administrator’s sale of the said real estate by the said Thomas Kennedy is void, and the same is set aside and held for naught, and that the said mortgage sought to be foreclosed in this action is null and void, and passes no title, right or interest in or to the said real estate, and is hereby set aside, and decreed no lien on the said real estate.
“ It is further adjudged, ordered and decreed that the right and title of the said Mary Ann Mullen in and to tlie said real estate be quieted in her and declared absolute as against the said mortgage and Henry Dickinson, and his assigns, the J. B. Watkins Land Mortgage Company, a corporation.”
^ A motion for a new trial was filed and overruled, and the plaintiff in error brings the case here for review. The question presented is, Can the judgment of the probate court be attacked and set aside in this proceeding? •
It is the universal rule that a judgment rendered without jurisdiction of the person or of the subject-matter is void, and therefore can be attacked directly or collaterally and set aside. Jurisdiction of the per son can be waived, but that of the subject-matter cannot. Recently many courts have added another reason for which a judgment will be held void, and that is when the court rendering it did not have jurisdiction to enter a judgment in the particular case.
In this case no question is presented as to the jurisdiction of the person ; and while it is argued that the probate court which rendered the judgment in controversy did not have jurisdiction of the subject-matter, this seems to be incorrect, since the probate court has jurisdiction to administer on estates of der ceased persons and would have had jurisdiction to administer on this particular estate and to distribute it among the creditors for debts contracted after the patent to the land was issued. Since the debts for which this estate was sold were contracted prior to the issue of the patent, it is clear that the probate court had no jurisdiction and no authority to enter the particular judgment in question. The question in this case, then, is, Can the judgment be attacked in this collateral proceeding? In In re Dill, 32 Kan. 691, 5 Pac. 49, the supreme court said:
“Generally, however, it may be shown, even in a collateral proceeding, that the jurisdictional facts in the particular case were such that the court did not have jurisdiction to make the order or render the, judgment which it did in fact make or render.”
It will be noticed that in this case Dill, the petitioner, was released on a writ of habeas corpus, notwithr standing the court that committed him to jail had authority to enter the kind of judgment rendered ; but the supreme court held that it was improperly rendered because the facts of that case did not warrant it. So it is in the case át bar’. The probate court had authority to administer on estates, but not on this particular one, because the United States statute prohibited the land from being subjected to the payment of the debt for which it was sold. “There is a tendency in the latest decisions in the United States to hold that jurisdiction is not only the power to hear and determine, but also the power to render the particular judgment entered in the particular case.” (12 A. & E. Encycl. of L. 246, 247.) For authorities to the effect that a judgment o,f the court having jurisdiction of the case, but not jurisdiction to enter the particular judgment, may be collaterally impeached, see 12 American & English Encyclopedia of Law, 147, note 3; United States v. Walker, 109 U. S. 258, 3 Sup. Ct. 277; Hans Nielsen, Petitioner, 131 U. S. 176, 9 Sup. Ct. 672; Cuddy, Petitioner, 131 U. S. 280, 9 Sup. Ct. 703; Seamster v. Blackstock, 83 Va. 232, 2 S. E. 36.
There can be no hardship in this case in setting aside the sale of this property, since the whole chain of title is on record. The parties purchasing must take notice of the patent of record and of the law of congress relative to the land and of the probate procedure which attempted to bar the title. Since this property was subject to a law of congress, and the United States courts have held that the jurisdiction of a court to enter a particular judgment in a particular case may be attacked collaterally, we see no error in the proceedings of -the'trial court in this case.
Objection is made to the introduction in evidence of the pleadings and of depositions taken in the case of Mullen v. Collins et al., in which it is said that Neild, the assignor of the plaintiff in error, was not served. Assuming that the' ground of objection is well taken, the court has in this case found, as a matter of law, that the debts for which the land in question was sold were contracted prior to the issue of the patent, and the sale was therefore void. There is direct evidence in this case tending to prove this finding, and it should not, therefore, be disturbed.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Johnston, J.:
The facts found by the court are sufficient to sustain the judgment that was given. Nichols has acquired a title to the land by adverse possession, which is equal to a conveyance in fee. He purchased the land in 1862 at a judicial sale, and has been continuously in possession of it since November 19, 1862. It is true that the judicial proceeding and sale were invalid by reason of the fact that Martha M. Cody was deceased when the foreclosure proceedings were instituted against her, and therefore the sale and the deed made in pursuance of the sale were void and conferred no title on Nichols, who was the purchaser. The title of the defendant, however, rests upon his possession, and not upon the judicial sale or the deed. The proceeding and sale were conducted in good faith, upon the theory that Cody was then alive, and that due notice had been given to her of the foreclosure action. Nichols became a purchaser at the sale in good faith, supposing that he was acquiring a complete title. He entered into possession under a claim of ownership, and not as mortgagee or the trustee of anyone. He continued in the actual, visible and exclusive possession, under claim of title, from 1862 until the commencement of this action, in 1885 — a period of nearly 23 years — paying the taxes and making valuable improvements thereon as owner. A title by prescription arises in the adverse occupant at the end of 15 years, if the owner labors under no disability: and if he does, ' within two years after the disability is removed. (Civil Code, §§16, 17.) It is conceded that the youngest heir of Martha M. Cody attained majority in 1877; and there being but two years after the removal of the disability within which to bring action, the bar was complete and the title of Nichols had fully ripened in 1879. Although the deed under which he claimed was void, it afforded color of title. The claim of ownership under the deed being bona fide, it furnished a good basis for adverse possession, although wholly ineffectual to convey title. (3 Washburn on Real Property, 5th ed., 149.)
“ When the bar of the statute becomes complete, however destitute of the color of title such occupancy may have been under, to the extent that it was actual, visible and continuous, a title by prescription arises in the adverse occupant. This title is in all respects equal to a conveyance in fee. The only distinction which can be recognized between title acquired under a statute of limitations by adverse occupancy, under claim and color of title, and without such claim or color, is, that in the latter case title will only be coextensive with actual, visible and continued occupancy; while in the former, color of title may by construction embrace lauds only part of which was thus actually occupied.” (Roots v. Beck, 109 Ind. 472; Gildehaus v. Whiting, 39 Kas. 706.)
The deed under which a party claims title gives character to his possession, and gives rise to the presumption that he intends his entry shall be coextensive with the description in his deed. An adverse possession in real estate for the statutory period, held in good faith under a deed, will confer title, however defective the deed may be, and although the judicial proceedings and sale under which it is issued were void; and will do so. even if the deed is void on its face. (Walker v. Hill, 111 Ind. 223; same case, 12 N. E. Rep. 387; Hall v. Law, 102 U. S. 461; Tremaine v. Weatherby, 58 Iowa; 615; Sands v. Hughes, 53 N. Y. 287; Chandler v. Spear, 22 Vt. 388; Hoye v. Swan, 5 Md. 237; Humphries v. Huffman, 33 Ohio St. 395; Austin v. Rust, 73 Ill. 491; Ellicott v. Pearl, 10 Pet. 412; Logan v. Jelk, 34 Ark. 547; Murphy v. Doyle, 33 N. W. Rep. 222; Angell on Limitations, § 404.)
The plaintiff insists that Nichols was holding under the Cody mortgage, as.an equitable assignee, and must be treated as holding the possession in trust for the heirs of the mortgagor. She claims that as the issues were framed and found, the defendant is only entitled to the rights and is bound by the obligations of a mortgagee in possession, and that the decree rendered should have been for an equitable redemption. As we have seen, the entry of the defendant was not under the mortgage, but he took and held possession under a claim of absolute ownership. The defendant recognized no trust nor any ot^er that» his own, and at no time was he intending to hold in subserviency to another, p0ggessj0U was 0peu anf] hostile from the inception, and so continued until the commencement of this action.
Under the facts found there is no ground for the contention that the defendant was holding under the mortgage.
Plaintiff contends that by the pleadings the defendant limited himself to the defense of equitable relief under the mortgage, and was not entitled to avail himself, or to receive the advantage of the defense of the statute of limitations. We do not agree with this contention. The petition of the plaintiff was an ordinary one in ejectment, alleging ownership and the right of possession, and asking for rents and profits and the recovery of possession. The defendant answered by denying generally every fact alleged in the petition, except that he was in possession of the premises; and he averred that he had been in the open, notorious, continuous and adverse possession from November, 1862, as the owner thereof under the judicial sale and deed; and therefore that the plaintiff was barred under the laws of the state from prosecuting the action. In further answer, he sets up a detailed history of the title of the land from its sale by the United States down to the commencement of the action, reciting at length the giving of the mortgage, its foreclosure, the sale of the land and the execution of the deed to himself, his possession and payment of taxes, as well as making improvements thereon; and he refers to the alleged defect in his deed by reason of the death of Martha M. Cody prior to the commencement of the foreclosure proceedings. He then asks that if his title should fail upon the other defenses and by reason of the defects mentioned, he should be granted equitable relief and protection to the full amount of the note and interest, the taxes and interest, and the value of the improvements which he had placed on the premises. In connection with these allegations, it was stated, however, that by reason of the facts stated the plaintiff was the actual owner of the premises, and that the plaintiff was barred from the prosecution of the action or the setting-up of any claim or title to the land. There is no incon- . . , n , » sistency m the averments ot the answer, nor anything which precluded the court from awarding the judgment that was rendered. A defendant is entitled to set forth as many grounds of defense and for relief, either legal or equitable, as he may have. (Civil Code, §§ 94, 95.) In this case the defendant claimed ownership by adverse possession, and that the plaintiff was barred under the laws of the state from maintaining her action; but failing in these defenses, he asked for such relief as the facts alleged would warrant. We see no reason why this practice is not permissible. In actions for slander the defendant may include in his answer a denial that he used the language imputed to him, as well as an averment that the language so imputed is true. These defenses are held not to be inconsistent, and certainly there is no more ground for holding the defenses made in this action to be inconsistent with each other. (Cole v. Woodson, 32 Kas. 272.)
The legal defense of title arising from adverse occupancy and the statutes of limitations is fully sustained by the facts which have been found, and hence there was no occasion for the court to go further. The equitable relief was only asked in the event that the court should find from the facts that the legal defenses were not made out. It is immaterial that some of the conclusions of law stated by the court may be incorrect, so long as the facts sufficiently support the judgment; and this being true, the judgment that was rendered should be and will be affirmed.
All the Justices concurring.
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Opinion by
Simpson, C.:
This case was tried in the district court of Bourbon county on the following agreed statement of facts:
“1. From and since May 30,1888, the defendant, the city of Fort Scott, Kansas, has been and still is a city of the first class, duly organized and existing under the laws of this state.
“2. For several years prior to-May 30, 1888, the said city had been a city of the second class, duly organized and existing under the laws of this state.
“3. On April 6, 1888, said city duly enacted and published the ordinance creating sewer district No. 3, as alleged in the petition of plaintiffs herein, which sewer district comprised the territory as set forth in said petition.
“4. Thereafter, and prior to August 14, 1888, said city caused a discharging sewer to be built, commencing at a point 26 feet north of the center of the alley in block 16, in Wilson’s addition to said city, and running in a northeasterly direction about 2,591 feet to a point near the Marmaton river, into which it emptied, said sewer being wholly built of sewer pipe 18 inches in diameter.
“5. Said city during the same time caused to be built certain sewers within said sewer district No. 3, commonly known and called lateral sewers, built of sewer pipe of 6, 8 and 10 inches in diameter, each of which said lateral sewers connected with and emptied into the said discharging sewer mentioned in the preceding section.
“6. Attached hereto and made a part hereof is a plat of said city, showing, marked thereon in red-ink lines, the territory comprising said sewer district No. 3, and showing also in dotted lines of red ink the lines of sewer above mentioned, numbered from 1 to 5. Upon the north of the sewer district is Elm street, which is a street 45 feet wide. The other streets in the sewer district are 72 feet wide; the alleys are 18 feet wide, and the lots are 50 by 120 feet. None of the territory through which said discharging sewer passes is now or has' ever been comprised within any other sewer district. The greater part of said sewer district No. 3 is upon a rocky bluff, about 50 feet above the valley of the Marmaton river. Said' river runs through the city, and is the available place for discharge of sewers. At the point north of sewer district No. 3, the valley is much taken up with railroad buildings, tracks, switches, stock-yards, etc. It is a level, alluvial flat, and not used as sites for stores, or residences, or business property. The said discharging sewer runs throughout its whole distance either through Elm street, or through railroad ground and right-of-way, only about 391 feet being in Elm street. At no point does it run through any property owned by a private individual. Said discharging sewer is laid very shallow, averaging three feet underground. It is an 18-inch pipe, and it has no Ts or Ys or joints permitting connection from any source or direction except the laterals from said district. It is laid in the soft alluvial earth at little expense, and has a fall of one foot in two hundred feet, just enough to drain well; and at present it benefits no property outside of said sewer district No. 3, nor does any sewage pass into or through it from outside of said district; nor was it intended in the construction of said sewer that any property outside of said district should be benefited; nor was it built for any other purpose than to discharge the sewage of said district, except as said discharging sewer might be extended south to accommodate new sewer districts, which it is capable of doing; nor is it built or situated so that any property outside of said district can be benefited, or use said sewer, until extended as above stated. The laterals are laid deep, and are in part blasted out of hard rock, and have the following fall: No. 1, 44 feet; No; 2, 44J feet;.No. 3, 47-j- feet; No. 4, 40 feet. The said discharging sewer runs to the best point of discharge at the Marmaton river, considering engineering difficulties and sanitary considerations, and was built pursuant to a well-considered plan, and with the possibility of being extended as above stated.
“ 7. Said sewers above mentioned are built w'holly within the corporate limits of said city.
“8. On the 14th of August, 1888, said city, after due notice of such assessment, duly enacted and published the ordinance, a copy of which is attached to plaintiffs’ petition, levying assessments as therein set forth upon each and every of the lots and parcels of ground in said ordinance mentioned and described, and situated within said sewer district No. 3, to pay the cost of constructing said sewers; and in said assessment the said city counted and charged in as a part of the amounts so levied and assessed upon the said property in said sewer district No. 3 the cost of construction of all of the said sewers above mentioned —the discharging sewer, constructed as aforesaid outside of the limits of said sewer district No. 3, as well as the said lateral sewers within said district — and caused the same to be certified up to the proper taxing officers of the county of Bourbon, Kansas, in which said city is situated. The accounts of the cost of construction of all of said sewers were kept by said city as one charge, and the relative cost of constructing so much of said sewers as is situated outside of said sewer district as compared with the cost of constructing all of said sewers is not definitely known, but amounts to about one-third of such total cost; the precise relative cost of such sewers can only be determined by a special survey and estimate thereof.
“ 9. Said Z. A. Hornaday is county treasurer of said county, and J. E. Smith county clerk, as alleged in plaintiffs’ petition, who respectively, as therein alleged, placed said assessments upon the tax-rolls of said county, and are proceeding to enforce the collection of the same as in case of other taxes; and said assessments appear as a lien against said respective pieces of property, as alleged in said petition.
“10. The said plaintiffs are the owners and in the actual use and possession respectively of said lots and parcels of land as alleged in said petition.
“11. In this agreed statement the city raises no point upon the question of tender, prior to the bringing of this suit, and the case is submitted upon the question as to the legal right to charge upon the property-holders of said sewer district the cost of the construction of the discharging sewer situated outside of said district.”
It appears from this statement that the discharging sewer, the cause of this contention, was built wholly outside the limits of sewer district No. 3 for a distance of 2,591 feet, but was constructed for the sole purpose, at present, of receiving the discharges from the lateral sewers in district No. 3, and has no connection with the other sewers of said city, and accommodates the people of no other sewer district in the city except those residing in sewer district No. 3. Is the property of the inhabitants of sewer district No. 3 to be specially assessed to pay for its construction ? This is the question involved in the case. The trial court denied the right of the city to assess its costs upon the taxable property of the sewer district. The solution of this question depends solely on the proper construction of the act entitled “An act to authorize cities of the second class to construct and maintain a system of sewerage and drainage.” (Laws of 1887, ch.102, p. 151.) Section 2 of the act says:
“The mayor and council shall have power to provide for a system of sewerage and drainage for the city or any part thereof, and to build and construct sewers and drains, by districts or otherwise, as the mayor and council may designate. The cost and expenses of constructing the same shall be assessed against the lots or pieces of ground contained in the district in which the same is situate,” etc.
In this case the mayor and council determined to construct sewers by districts, and created sewer district No. 3, and provided for the construction of a certain number of lateral sewers therein, but further provided for the construction of a discharging sewer, with which these lateral sewers connected, but 2,591 feet of whose length was entirely outside the boundaries of sewer district No. 3 as they established that district, but its whole length was within the boundaries of the city. Whatever may be said of the inequitable operation of this statute, it seems that its meaning is so plain that serious doubts ought not to arise as to its application. In specific terms it pro vides that the costs and expenses of the construction of a sewer shall be assessed against the lots and pieces of ground contained in the district in which it is situated. The cost of that discharging sewer of 2,591 feet, that is expressly stated and agreed to be entirely and wholly outside of the limits of sewer district No. 3, and is not in the district, cannot be assessed against that class of property in sewer district No. 3 that is taxable for that purpose. The meaning of the statute is so apparent that we are at a loss to enlarge upon its construction. In fact there is no room for construction, and we do not think that its evident force and effect can either be lessened or enlarged by a citation of authorities.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Strang, C.:
On the 26th day of September, 1887, the plaintiff commenced two eases against the defendant, before a justice of the peace. Afterward the cases were by agreement taken to the district court, and there consolidated and tried together November 16, 1887, by a jury. At the trial the defendant gave evidence of a set-off greater in amount than the plaintiff’s claim, and the jury returned a verdict for the defendant for $405.70. This verdict received the approval of the court, and judgment was entered thereon.
The plaintiff in error relies on the following alleged errors for the reversal of the case:
“1. Misconduct and utter disregard of the law by the court in allowing, and directing the officer in charge to allow, the jury to separate without being admonished, as required by the statute.
“2. The plaintiff should have had a new trial on account of after-discovered evidence on the part of the plaintiff.
“3. The claim of the defendant is barred by the statute of limitations.” *
The record shows that the case was submitted to the jury, and they retired sometime during the afternoon session of the court; that they had not agreed when the court adjourned for the day, and after the court had adjourned, and the judge had left the court-house and was out on the walk, he directed the officer having the jury in charge to allow them to separate and go to supper, returning to the jury-room afterward; that at breakfast-time the next morning the officer again permitted the jury to separate and go to breakfast, and at the dinner hour, not having yet agreed, they were again permitted by the officer to separate and go to dinner. The record shows that at each of these separations the jurors mingled with other persons going to and returning from their meals. At none of these separations was the jury first admonished by the court as required by the statute. Was it error for the court to refuse to set aside the verdict of the jury under such circumstances and grant a new trial ? We think it was. Paragraph 4374, General Statutes of 1889, reads as follows:
“If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or suffer themselves to be addressed by any other person, on any subject of the trial, and that it is their duty not to form or to express an opinion thereon, until the case is finally submitted to them.”
The provision that the jury shall be admonished if they are permitted to separate is imperative. And it is required after the case is submitted to them the same as during the trial. We cannot say that this provision may be ignored by the courts. It was incorporated into the code to guard trials by jury from improper influences. We think it a wholesome provision. Persons who have had but little experience in courts and upon juries are not likely to be mindful, unless their attention is called thereto, of the necessity of refraining from talking, or listening to the conversation of others, upon the subject of the trial, if allowed to separate and commingle with the crowd. Some admonition is necessary to attract and fix their attention upon this matter. It frequently happens in trial courts that, with proper instruction by the court upon this subject, some one or more of the jurors heedlessly disregards the admonition. It was the necessity of something of this kind to protect jury trials that induced the legislature to enact this provision into law. In the criminal code, where in favor of life and liberty still greater importance is attached to guards thrown around trials by jury, to prevent any improper influences creeping into the jury-room to affect the deliberations of the jury, the legislature has still further enacted into formal law the idea that it is improper for juries to separate after a case is submitted to them, by including among the causes for which a new trial may be granted, the separation of the jury, after retiring to consider the cause, without leave of court.
This court said, in The State v. Snyder, 20 Kas. 306: “It is the duty of the court to enforce a rigid and vigilant observance of the provisions of the statute designed to preserve inviolate the right of trials by jury, and the purity of such trials.”
In Wright v. Burchfield, 3 Ohio, 55, in reviewing a case in which the jury had separated after finding a verdict, before returning into court with it, the court says: “It has never been thought safe that juries should be permitted to converse with strangers before the verdict was given, or that the jury should separate before they were agreed.”
In Sutliff v. Gilbert, 8 Ohio, 409, in discussing a case where the jury, after finding a verdict and sealing the same, separated before returning into court with their verdict, and such separation was alleged as ground for a new trial, the court uses the following language:
“As a general rule, the jury shall not be permitted to separate, after retiring from the bar of the court, until they have agreed upon their verdict. Still, there may be peculiar circumstances which would, to some extent, justify a separation. But should a jury, of their own pleasure, having been put .in charge of a case, leave the room, and mingle with the people of the town or vicinity, and afterward return to their room, and agree upon a verdict, it would be a good ground for a motion to set aside the verdict, and for a new trial.”
In the case of Perkins v. Ermel, 2 Kas. 326, the separation of one of the jurors from his fellows was explained by affidavit, showing that the separation was the result of misapprehension, and that nothing had occurred to prejudice his mind touching the case. In this case no showing is made. The jury separated three times without having been admonished by the court at either of said separations. They met and conversed with the people about the court-house and in town, and no showing was made, or attempted to be made, that during said separations nothing occurred to prejudice their minds in relation to the case. If nothing had occurred, it would have been an easy matter to have shown the fact. There is always more or less talk among the people who are attending the court, about the cases that are being tried, and juries are so liable to hear something that is likely to prejudice them if allowed to separate at all, that we think it the safer rule to hold that they may not be permitted to separate unless the statutory provision in relation to admonition be complied with by the court. And having done so, it is error for which a new trial should be granted, unless there is a showing made that satisfies the trial court that nothing occurred during the separation which could prejudice the substantial rights of the party against whom they find.
We have examined the second assignment, and are satisfied that the court committed no error in refusing a new trial on that ground. While there was evidence of surprise on the part of the plaintiff, there was also evidence in the affidavits produced by the defendant, on the hearing of the motion, which showed that the plaintiff was not surprised; that he knew of the defendant’s claim for the engine long before the commencement of the suit.
And so far as the newly-discovered evidence was concerned, it was cumulative, and tended to prove that plaintiff did not purchase the engine, while the defendant showed by affidavits of at least two new witnesses, that plaintiff had admitted that he had purchased the engine. It seems to us that upon the showing made in that regard, the best view that could be taken of the evidence so far as the interest of the plaintiff was concerned, it was a stand-off. The evidence being conflicting upon the subject, the conclusion of the trial court thereon is conclusive.
The third matter assigned for error on part of the trial court involves a question of the effect of the statute of limitations.
As the case is reversed on the first error assigned, we do not consider it necessary to discuss the question raised on the statute of limitations.
It is recommended that the case be reversed, and sent back for a new trial.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by Henry Cowgill against the Denver,-Memphis & Atlantic Railway Company, to recover damages alleged to have been caused by the failure of the railway company to construct and maintain proper cattle-guards at the points where its road enters and leaves his inclosure. The cause was instituted and tried before a justice of the peace; was removed from there to the district court upon petition in error, where it was finally tried on its merits, and a judgment given in favor of Cowgill for $30. No new pleadings, were filed in the district court, and the railway company alleges that Cowgill was permitted to prove and recover damages done to his grass and pasture, and that such damages were not named or claimed in his bill of particulars. The record contains two copies of the bill of particulars, in one of which damages are alleged and claimed for grass that was destroyed, and in the other it is not mentioned. The omission in the one may have been an error in transcribing, or possibly the bill of particulars may have been amended in the district court so as to include damages for the grass that was consumed. At any rate, proof of injury to the grass was admissible under one copy of the bill of particulars found in the record; and where the record admits of an interpretation which will sustain the ruling of the district court, that interpretation should be given to it.
Another and more serious objection to the judgment is a want of proof that the defendant company constructed, owned or operated the railroad which passed through Cowgill’s farm; and further, that the defendant company was not permitted to show that the road was constructed, owned, and operated by other companies during the time when the injury complained of occurred. The company offered to show that the road in question was constructed, owned, and operated by the Fitzgerald & Mallory Construction Company up to February 15, 1887, and that since that time it has been owned and operated by the Missouri Pacific Railway Company; and further, that the Fitzgerald & Mallory Construction Company, as well as the Missouri Pacific Railway Company, were each distinct and separate companies from the Denver, Memphis & Atlantic Railway Company. This testimony was excluded on the ground that it was incompetent and inadmissible under the pleadings. It should have been admitted. If the defendant company had not constructed, and did not own or operate the road when the injuries were inflicted, it cannot be held liable for them. It cannot be held responsible for damages occasioned by any other company upon a railroad with which it had no connection; and if there was any proof offered by plaintiff below which would make the company liable, then the offer of testimony by the company was both competent and material. No objection was made to the competency of the witness. The only objection was that the testimony was incompetent and inadmissible under the pleadings. There was but a single pleading in the case, and that was the bill of particulars of Cowgill. No pleading of any kind was filed by the company, either before the justice of the peace or in the district court, and there was no demand or order that one be filed. That being the case, it was proper for the company to introduce evidence in support of any defense which it might have. (German v. Ritchie, 9 Kas. 106.) The only allegation in the plaintiff’s bill of particulars which stood admitted for want of a verified denial, was the existence of the defendant as a railway corporation. All other allegations in regard to the relation of the defendant to the road in question, and as to whether it had in any manner occasioned the damages, were open to be established or controverted by the testimony of the parties. It may be, as claimed, that the witness offered would not have sustained this defense; but, there being no objection to his competency, the company was entitled to examine him upon the questions suggested and to an opportunity to establish this defense, which was the only one offered by it. The company, however, cannot escape liability for damages occasioned by the Fitzgerald & Mallory Construction Company if that company was a mere construction company, and was building and operating the road as the agent of the defendant railway company, nor will it avoid liability if, after constructing its road, it leased the same to the Missouri Pacific, or some other railway company. (Rly. Co. v. Curl, 28 Kas. 622; Rly. Co. v. Morrow, 32 id. 217.) Neither would the fact that the Missouri Pacific, or some other railway company, had purchased the stock, or a majority of the shares of stock of the Denver, Memphis & Atlantic Railway Company, relieve the latter from the duty of maintaining proper cattle-guards on the road, or prevent a recovery against the defendant for the damages sustained by reason of the omission of such duty. The company, however, was entitled to make its defense, although no pleading was filed by it; and the ruling of the court in excluding the evidence to sustain such defense was material error.
The judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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Opinion by
Simpson, C.:
This is an original action in this court to compel the board of county commissioners of Rawlins county to order an election for the re-location of the county seat of that county. On the 28th day of February, 1888, a petition was presented to the board requesting an election to be ordered upon the question of the removal of the county seat from Atwood to Blakeman. For more than five years before the presentation of such petition the county seat of Rawlins county had been located at Atwood by a vote of the people; and hence to authorize an election, the petition must contain the names of three-fifths of the electors of the county as they appear on the last assessment rolls. The petition presented by the Blakeman people to the board of county commissioners on the 28th day of February, 1888, contained the names of 1,010 electors of the county, whose names appeared on the last personal-property assessment roll. We place the number on that petition at 1,010 electors, not because the testimony clearly demonstrates that it contained that number, although it may be said that there is evidence tending to establish this as the number, but because we desire to give the relator the benefit of his strongest claims on all questions arising in this case. The personal-property lists required by § 65 of the tax law, (Gen. Stat. of 1889, ¶6911,) on file in the county clerk’s office of Rawlins county, at the date of the presentation of this petition, contained 1,817 names. Of these, it appears that 330 are the names of females, deceased persons, non-residents, corporations and partnerships; and this number is to be deducted, leaving 1,487 as the number of electors of said county as shown by this list. If the personal-property list is the only list or assessment roll contemplated by §4 of the chapter on county seats, (Gen. Stat. of 1889, ¶ 1889,) it is apparent that the petition of the Blakeman people contained the names of more than three-fifths of the electors of Rawlins county, and it was the duty of the county board to order the election as prayed for. But it is claimed that the board of county commissioners had a right to con ■sider and be governed by the real-estate assessment list, as required by §43 of the tax law, (the same being ¶6889, Gen. Stat. of 1889,) and by the real-estate assessment list returned in the odd years. This claim is urged for two reasons, the first being the plain reading of § 4 of the county-seat act, and the second being the injustice of excluding those real-estate owners who are electors of the county, but whose names do not appear on the personal-property lists, from any participation in such an election. On the other side, it is contended that the proper construction of § 4 of the county-seat act is settled by this court in County Seat of Linn Co., 15 Kas. 500, and the case of The State, ex rel., v. Comm’rs of Phillips Co., 26 id. 419. To commence with the earlier case, it may be said that the statute under consideration in that case is not the present § 4 of the county-seat act; it was a section in the General Statutes of 1868, which reads as follows: “For the purposes of this act the number of the legal electors of the county shall be ascertained from the last assessment rolls of the several township assessors in the county.” At the time of the passage of this act the only assessment roll prepared by township assessors was that of personal property. The real-estate assessment was made by the county assessor, and continued to be so made by the county assessor until March, 1869. The court construing this section in the light of the existing statutes providing for the assessment of property, held that it meant the personal-property lists only. Brewer, J., says: “ The only assessment roll prepared by township assessors required or authorized at the time of the passage of this county-seat act was that of personal property, on which the assessor was required to place a list of persons, companies or corporations in whose name the personal property was listed. (Gen. Stat. 1040, §61.)”
This construction was followed in the case of The State, ex rel., v. Comm’rs of Phillips Co., supra. But in neither of these cases was it urged or claimed that the section included the real-estate assessment lists. There is a single expression in the last case only, that warrants the claim that is made for that case being an authority to govern us in this case; but we reiterate the statement that neither in brief, argument or opinion in the latter case was the question of real-estate assessment lists thought of or mentioned. The only question decided in the Phillips county case was, that in considering the sufficiency of the petition, the board of county commissioners had a right to add to the personal-property list the names of such persons whose property statements were found on file in the county clerk’s office, that were omitted by the township assessors when they made out the personal-property list.
The present section was passed in March, 1883-, long after it was made the duty of the township assessors to list and value both real and personal property. It reads: “ For the purposes of this act the county commissioners shall be governed by the last assessment rolls of the several township and city assessors of the county, and no petitioner shall be deemed a legal elector, unless he be an elector and his name appears on said rolls.” At a time when only personal property was assessed by township assessors, the legal electors were to be ascertained from their assessment rolls. At a time when both real estate and personal property are assessed by city and township assessors, the county boards are to be governed by their last assessment rolls. Construing these two sections in the light of the duties imposed by other statutes upon township assessors, we have no doubt but that the legislature intended to include both the assessment rolls of real estate as well as that of personal property, as a basis to govern the county board in determining the sufficiency of such a petition. In §§ 76, 77 and 82 of the tax law, the words “assessment rolls” are used with reference to both real and personal property, but in one of the most important sections of the law; (§ 139,) it refers to the real-estate assessment roll exclusively; so that, gathering the intent of the legislature as expressed in section four, from the use of similar language in the other statutes that define what assessment rolls consist of, it must be apparent that the assessment rolls referred to mean the assessors’ returns of both real and personal property. We conclude, therefore, that by the amend ment of the original section four, as made by the legislature in 1883, under which this case originated, that in determining the sufficiency of the petition, the board of county commissioners of Rawlins county must be governed by the last assessment rolls of the real estate and personal property made in the county prior to the presentation of this petition; that while the true construction was given the original section in the Linn and Phillips county-seat cases, and these cases were properly decided, that they do not control the construction of the amended section, and that we cannot give this section the construction claimed by the relator without doing violence to its plain language, and antagonizing several sections and provisions of the tax law. Then there must be added to the fourteen hundred and eighty-seven names found on the personal-property assessment roll, the names of electors that appear on the real-estate assessment roll, and are not on the personal-property list. This petition was presented to the board of county commissioners in February, 1888; the last returns assessing the real property of Rawlins county were those of the even year 1886, and those of 1887, that included the title to such real estate as was acquired from the United States between March 1, 1886, and March 1, 1887. The real-estate assessment roll of 1886 contained 1,522 names, and that of 1887 contained .431 names, making a total of 1,953 names.
It is claimed on one side that after the real-estate assessment rolls have been purged, by excluding .therefrom all non-residents, females, corporations, partnerships, and the names of those who are also on the personal-property assessment rolls, that there remain the names of 502 electors. This is the number practically settled upon by the board of county commissioners, and probably the weight of the evidence is in its favor. On the other side, it is asserted that after the real-estate rolls are thus purged, there remain but 218 names. So far as the decision of this case is concerned, it does not practically make any difference which number we adopt, as the result of either is fatal to the relator. If 502 is added to 1,487, making 1,989, the three-fifths necessary would be 1,193, while if only 218 is added to the 1,487 on the personal-property list, the necessary three-fifths would be 1,023. In any event, the petition would lack from 13 to 183 electors. If we were disposed to be more critical, and weigh the evidence closely as to the number of the legal electors on the Blakemau petition, and as to the number of names that should be stricken from the personal-property list of 1887, these figures would be stronger against the relator. In this computation we take no account of the “Atwood strike-off,” because it seemed to be conceded on the argument that if the real-estate assessment rolls were to be considered, the Blakeman petition is insufficient.
It is recommended that a peremptory writ of mandamus be denied the relator.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action of replevin, commenced by the defendant in error, J. W. Griffis, sheriff of Chase county, against J. C. Lyeth, who was the agent of the Atchison, Topeka & Santa Fé Railroad Company at Strong City.
The plaintiff below held an attachment issued by a justice of the peace at Strong City, directed to him as sheriff of Chase county, in a suit commenced by George Smith against William McMurphy, upon a claim for $16.47. The writ of attachment was issued on the 12th day of November, 1885, and on the morning of the same day a deputy sheriff went with the writ to the depot of the Atchison, Topeka & Santa Fé rail road, in Strong City,' for the purpose of executing the same; Lyeth was not in the depot at the time, but the deputy sheriff left a copy of the order of attachment with an employé of the railroad company under Lyeth, and then went to the ware-room in the depot building, where the goods of McMurphy had been left for shipment some two days before, consigned to Samuel Cody, at Wilson, Kansas, and had the goods appraised, and left them .in the wareroom. The goods in question consisted of household and kitchen furniture, two boxes and a trunk. About four o’clock in the afternoon of the same day, the deputy sheriff returned to the depot for the purpose of removing the goods, and found that Lyeth was loading them in a car for the purpose of shipping them away; Lyeth did not have any personal knowledge of the attempted levy and appraisement in the forenoon, and refused to deliver the goods to the officer, claiming they were in the custody of the railroad company and could not be attached, and could only be reached by garnishment proceedings; an effort was made to take possession of the goods, but the officer only succeeded in securing a safe and roll of carpet; the rest of the goods was either loaded in the car or locked up in the depot-
This suit was instituted the next day, and the goods, in the meantime, had been shipped away from Strong City. In the attachment suit, the defendant, William McMurphy, was not served with summons, as he was not found in the county. Service by publication was made, and judgment rendered against him in justice’s court. After the introduction of all the evidence in the trial of this case, in the court below, certain instructions were asked by the defendant below, which were refused by the trial court. The court instructed the jury to return a verdict for the plaintiff. The plaintiff in error brings the case here for review.
The claim made by the plaintiff in error is, that the sheriff was not entitled to the immediate possession of the goods; that there was no legal levy of the attachment; that there was no wrongful detention by the defendant below; and that therefore replevin did not lie. It is provided by § 32 of the justices code that when the property can be come at, the same shall be taken into custody and held subject to the order of the justice of the peace. By this section of the code it is made the imperative duty of the officer serving- the writ to take the property into his custody; his possession should be open and exclusive, to enable him to hold it. Did the officer do this ? The evidence shows he went to the place where the property was found, and appraised it; but the possession was not changed. The rule that the first duty of an officer holding a writ of attachment is to obtain and retain the possession of the property, rests upon reason as well as authority. He must necessarily sustain such a relation to the property he seizes as will enable him to hold it, subject to the authority of the court issuing the order. If such were not the case, the remedy would be valueless. The supreme court of Iowa has held, under a statute similar to our own, that to constitute a valid levy of a writ of attachment, the officer having the writ must do that which amounts to a change of the possession of the property, or something which is equivalent to a claim of dominion, coupled with a power to exercise it. (Crawford v. Newell, 23 Iowa, 453; Bickler v. Kendall, 66 id. 703.)
Again, it was held by the same court that to make a legal and valid levy upon personal property, the officer must do such acts as that, but for the protection of the writ, he would be liable. A levy under which the officer does not have actual control of the personal property levied upon, with power of removal, is invalid. (Rix v. Silknitter, 57 Iowa, 262.) It could hardly be claimed that the officer would have been liable as a trespasser, upon the facts as developed in this case, if suit had been commenced by the owner of the goods, as his possession had not been interfered with in the least.
In executing a levy upon personal property of a tangible sort, the officer must take possession, and the possession, to render the attachment effectual, must be actual, in the sense that it takes the property from the immediate control of the defendant and gives the officer control over it. (1 Am. and Eng. Enc. of Law, p. 919; Wade on Attachment, §129.) The rule is well established, too, that if the provisions of the statute are not fully complied with by the officer in levying or executing the writ, no lien is obtained. (Greenvault v. Bank, 2 Doug. [Mich.] 502; Buckley v. Lowry, 2 Mich. 420; Millar v. Babcock, 29 id. 526; Adams v. Abram, 38 id. 302; Fairbanks v. Bennett, 52 id. 61.) This court has held, in the case of Crisfield v. Neal, 36 Kas. 282, that in levying an execution upon personal property, it is necessary for the officer to reduce the property to his possession, or bring it within his immediate control; that a mere pen-and-ink levy will not do. (Chittenden v. Rogers, 42 Ill. 100; Minor v. Herriford, 25 id. 344; Havely v. Lowry, 30 id. 446; Davidson v. Waldron, 31 id. 120; Beekman v. Lansing, 3 Wend. 446.)
Inasmuch as the officer did not have the actual control of the property in controversy, the levy was invalid, and he did not obtain such an interest as entitled him to bring a suit in replevin. It follows, from this view of the law, that the court was in error in instructing the jury to return a verdict for the plaintiff below. We therefore recommend that the judgment be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The defendant was convicted of a violation of the prohibitory law, and from that conviction he attempts to appeal to this court.
It is insisted on the part of the state that the record brought here is not in a condition to justify an examination and a review of the proceedings of the district court. No transcript of the record in the district court has been brought to' this court, and before the defendant is entitled to a consideration of his appeal he must bring to this court a transcript of all the pleadings, papers and proceedings which are of record in the district court, duly authenticated as such by the clerk of that court. There has been filed in this court what appears to be the original bill of exceptions, attested by the clerk of the district court; but this bill of exceptions has no place outside of the district court, and should not have been removed therefrom. While it appears to contain pleadings, orders and judgments, (which are not properly included in a bill of exceptions,) there is still no certificate by the clerk that they are correct copies of the pleadings, orders, and judgments filed and entered in the case. The certificate of the judge that the bill of exceptions contains copies of the pleadings, orders and proceedings, does not authenticate them, nor meet the requirements of the statute. Nothing short of a full and true transcript will suffice, and in the absence of this the appeal of the defendant must be dismissed. (The State v. Lund, 28 Kas. 280; The State v. Nickerson, 30 id. 545; The State v. Cash, 36 id. 623; The State v. McFarland, 38 id. 664; The State v. Prater, 40 id. 15; The State v. Ricker, 40 id. 14.)
And it is so ordered.
All the Justices concurring.
The State v. Mont Gatliff, No. 6824, also from Sumner district court, involves similar questions, and stands in the same condition as the case just decided. Nothing has been brought here except the original bill of exceptions, and even it has not been authenticated by a certificate of the clerk.
Following the decision of the Hastie case, the appeal will be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Milton, J.:
This action was begun in July, 1894, by R. P. Kelley, to quiet his title to certain real property in Greenwood county as against the plaintiff's in error,' who claimed by mesne conveyances under a tax deed regularly issued and duly recorded in the year 1882. The plaintiffs in error filed a cross-petition which stated a cause of action in ejectment against the plaintiff, who for three years prior to the filing thereof had been in the peaceable and uninterrupted possession of the land under a claim of title derived from the original patent. The plaintiff dismissed his action and filed an answer to the cross-petition, averring the invalidity of the tax deed, and setting up the two-year statute of limitation, and the case was thereupon tried as an ejectment action, plaintiffs in error assuming the affirmative of the issue joined. The plaintiffs in error and their grantors have always been nonresidents of the state and have never occupied the land, except that in 1883 and 1884 sheep belonging to the immediate grantors of the plaintiffs in error were pastured on the land, which was then, and until December, 1890, wild pasture land.
The court made the following conclusions of law :
“ 1. Plaintiff is not barred by section-141 of chapter 107, paragraph 6995, of the General Statutes of 1889, from showing, in defense of his possession, that defendant’s tax deed is invalid.
“2. The tax deed under which defendants Peter and Mary Haase claim is void.
“3. Defendants Peter and Mary Haase are barred by section 16 of the code of civil procedure from maintaining an action for the recovery of the property in controversy.
“ 4. Plaintiff is entitled to a judgment for his costs herein.”
Judgment was rendered in accordance with the foregoing conclusions.
Counsel for plaintiffs in error contend that, where land is vacant and unoccupied, the recording of a tax deed, regular on its face, conveying such land, starts the five-year statute of limitations to running in favor of the tax deed, although possession has not been taken thereunder; and that since the land in controversy remained vacant and unoccupied for more than eight years after the tax deed under which plaintiffs in error claim was recorded, the same was incontestable, under the provisions of section 141 of the act relating to taxation. The trial court entertained a contrary view and decided against the validity of the tax deed, for the reason that the tax-sale notice for the sale on which such deed was based omitted the words “at public auction.” We think the decision of the trial court is correct, and it is sustained by the following cases: Myers v. Coonradt, 28 Kan. 211; Walker v. Boh, 32 id. 354, 4 Pac. 272; Doyle v. Doyle, 33 id. 725, 7 Pac. 615.
The decision in Case v. Frazier, 31 Kan. 689, 3 Pac. 497, is also applicable to the facts of the present case. We quote from the opinion:
“ If plaintiffs could call to the protection of their tax deed the statute of limitations, the defendant had the right to insist that tlie facts in the case, under section 21 of the code, showed that the statute of limi tations had not run. The defendant was in possession of the real estate in controversy, and therefore, as against the plaintiffs, was the owner thereof, and entitled to the possession of the same. Occupying such relation, the statute of limitations did not bar him from showing that the tax deed had not sufficient support, if the plaintiffs and their grantors were absent from the state sufficient time to prevent the statute of limitations from having operation to protect the tax deed.”
We are unable to agree with the claim of counsel that the land in controversy was, in legal contemplation,, occupied in the years 1883 and 1884. “ Merely grazing cattle and horses on land will not show adverse possession.” (1 A. & E. Encycl. of L., 2d ed., 828, and cases cited in note.)
We think it was proper for the trial court to disregard the attack on the title of defendant in error by means of the affidavit filed in support of the motion for a new trial. It has often been declared by our supreme ■court that the plaintiff in ejectment must recover on the strength of his own title and not on the weakness of that asserted by the adverse party. Besides, the defendant in error was in possession of the land under a warranty deed regular on its face. The judgment of the district court will be 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 Pratt county by T. E.. Simpson as plaintiff to recover the possession of certain personal property from the plaintiffs in error. Judgment was rendered in favor of Simpson and the defendants below bring the case here for review. They contend that the court erred in giving its fourth instruction, and in refusing to render judgment in their favor on the special findings of the jury. The fourth instruction reads as follows:
“4th. The court further instructs you, that if you find from the preponderance of the evidence that the plaintiff was the owner of said property, and in actual possession of the same, and that the defendants, agents, or attorneys, for the purpose of obtaining possession of said property without resorting to an action of replevin to recover the same, acting for and on behalf of the defendants and ostensibly as the agents or attorneys for the plaintiff in an action in the district court of this county, wherein S. N. . Schuyler was plaintiff, and T. E. Simpson, the plaintiff herein, was defendant, and in which a judgment had been rendered against the said T. E. Simpson, caused and procured an execution to be issued on said judgment and levied upon the property in question in this action, with the intention and sole purpose of getting said property out of the possession of this plaintiff into the possession of these defendants, to be disposed of under said chattel mortgage, and, after having caused said execution to be levied upon said property and taken possession of by the officer, caused and procured said officer to turn said property over to the defendants herein or their agents, and returned said execution by order of the attorneys, so ostensibly representing the plaintiff in said action, with the indorsement thereon, showing that said property had been turned over to these defendants under their claim to the same under said chattel mortgage, and that the process of the court so issued upon said judgment was used by the defendants with the intention and sole purpose of deceiving the plaintiff herein and taking said property from his possession and turning it over to the defendants against his will and over his objections, and that said property was so taken and obtained by the defendants, their agents or attorneys, "then, and in that event, the taking of said property by the defendants was fraudulent, against public policy, and wrongful, and the subsequent withholding and the detention of the same from the plaintiff was unlawful and wrongful, although the defendants may have been entitled to the possession of said property under said chattel mortgage if they had rightfully obtained possession of the same.”
The issue in an action of replevin is the wrongful detention of the property at the time of the commencement of the action. The question to be determined is, Who was entitled to the possession of the property at the time of the commencement of the action? not, How did they come into the possession of it ? The instruction complained of is erroneous.
It is also contended that the plaintiffs in error were entitled to a judgment in their favor on the special findings of the jury, which were as follows :
“1. At the time this action was commenced were the defendants in possession of the engine in controversy and holding the same under the chattel mortgage introduced in evidence? Ans. Yes.
“2. Did Carskadon & Thompson indorse and transfer said note secured by said chattel mortgage to the defendant, the Wyandotte National Bank, before maturity? A. Yes.
“3. Was the said note secured by said mortgage due and unpaid at the time of the beginning of this action? A. Yes.
“4. What is the amount due and unpaid on said note? A. $500, and interest at eight per cent, from October 17, 1890.”
This contention is correct. The plaintiffs in error were entitled to a judgment that at the time of the commencement of the action they were entitled to the possession of the property, and that they had a special ownership therein of the value of $500 and interest at eight per cent, from October 17, 1890.
The judgment of the district court is reversed, and the case remanded for further proceedings in accordance with the views expressed in this opinion.
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The opinion of the court was delivered by
Milton, J.:
This action was brought against R. E, Fisher and'Jennie Fisher, his wife, to recover damages for a breach of a covenant against incumbrances in a deed executed by them and delivered to Amos B. Clark, grantee therein, April 1, 1887, conveying a farm in Johnson county. When the conveyance was made a tenancy existed, and Clark was obliged to pay the tenant $300 to obtain possesion of the land, possession being necessary to enable Clark to sell the land to North & Co. By the terms of the lease, one-third of the wheat then growing on the land was to be threshed and delivered to Fisher by the tenant. The trial court decided in favor of the defendants, on the theory that Clark succeeded to the rights of Fisher as to the lease and the crop, and became entitled only to the landlord’s share of the wheat.
The case was taken to the supreme court by Clark, and was there reversed at the July, 1894, term. The supreme court held that the lease was an incumbrance and that damages equal to the value of the tenant’s possession were recoverable by Clark. See Clark v. Fisher, 54 Kan. 403, 38 Pac. 493, where a very complete statement of the facts then in evidence is given. The case was remanded for a new trial, or for additional findings of fact. The reason for additional findings was that the supreme court was unable to determine from the findings before it the value of the possession of Fisher’s tenant; In concluding its opinion the court said : “ The judgment finally to be rendered of course must follow the views of the court as herein expressed.”
In April, 1895, the case was again tried, and the district court then made findings of fact in addition to those made in the former trial. From these findings, it appears that R. E. Fisher had died intestate while the case was pending in the supreme court; that Mrs. Fisher, as executrix, had made final settlement of his estate pi'ior to the second trial, and that the action had not been revived in the district court. The finding as to the value of the tenant’s possession is. as follows :
“ The value of the wheat raised upon said premises by said Dent, referred to in the fifth of said first findings, was sixty .cents per bushel, amounting to $510 after harvesting and marketing the same ; the reasonable cost of harvesting and delivering said wheat in market at Olathe was $168.50, leaving the value of the wheat as it stood on the ground at the date of the conveyance, $341.50. One-third of this sum, or $170, was what Mr. Clark could, have received in any event; deducting this $170 from said $341.50 leaves $171.50, the value of the tenant’s share, and therefore the extent of the actual injury to the plaintiff arising from the existence of the said lease, according to the rule of the supreme court in this case.”
The court rendered judgment against Mrs. Fisher for $171.50 and interest thereon from May 11, 1887.
In the second trial the district court seems to have followed the view of the supreme cohrt in Clark v. Fisher, supra. We think the judgment is correct. It is criticized by counsel for plaintiff in error, but such criticisms are equally applicable to the decision of the supreme court when the case was there reviewed. The principal contention of counsel for plaintiff in error is that Mrs. Fisher was not bound by the covenants to Clark. This contention cannot be sustained, in view of the decision of this court in the case of Bolinger v. Brake, 4 Kan. App. 180, 45 Pac. 950, wherein the fifth paragraph of the syllabus reads : ‘‘Where the husband and wife execute a joint deed with full covenants of seizin, both are liable for a breach of the covenant.” This decision of the court of appeals was affirmed by the supreme court in a per curiam opinion. (Bolinger v. Brake, 58 Kan. 818, 51 Pac. 290.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought in the district court of Shawnee county by the Hansfords against David N. Burdge, as sheriff,-to enjoin the defendant from levying an execution in his hands on the property of the plaintiffs. The plaintiffs in their petition alleged that Burdge, as sheriff, was about to sell the property described, on a pretended execution issued by the clerk of the district court on the 10th day of September, 1895, on a judgment of record in that court, rendered by the circuit court of Shawnee county on the 19th day of February, 1892, for the sum of $1600 and costs, in a certain action then pending in the circuit court wherein N. E. Garretson was plaintiff, and Eri Hansford, Celestia Hansford, Eva K. Pape and E. Pape were defendants, which judgment was immediately transcribed and certified to the clerk of the district court; and that the execution is void for the reason that it was issued by the clerk of the district court without lawful authority. The trial court sustained the demurrer of the defendant to plaintiff’s petition and refused to grant the injunction. This proceeding is prosecuted to reverse that decision.
The plaintiffs in error contend that the only lawful authority the clerk of the district court ever had to issue executions in such cases he derived from chapter 83, Laws of 1891, -which act was wholly repealed by chapter 104, Laws of 1895, without any saving clause in favor of judgments remaining of record or unpaid in the office of the clerk of the district court, and without any reservation maintaining or perpetuating the authority of the clerk of the district court in such cases to issue executions, and that from the date the repealing act took effect no lawful power or authority remained in the district court or its clerk to enforce or issue executions upon the judgments of the •circuit court transcribed and certified to the district court.
The execution in question was issued by the clerk of the district court on a judgment rendered in the circuit court transcribed and certified to the district, court. The authority for the issuance of process in such case is found in chapter 83, Laws of 1891:
“Sec. 17. No judgment or execution docket shall be kept by the clerk of the circuit court until otherwise provided by law. Immediately upon final judgment being rendered in any cause determined in the circuit court, execution whereof shall not be duly stayed by order of such court, the clerk of the circuit court shall transcribe such final judgment and duly certify the same to the clerk of the district court of said county, who shall immediately note or enter such judgment upon the appearance docket and judgment docket of his court, as if such judgment had been rendered in the district court; and such judgment shall be a lien upon the property of the judgment debtor from the same time and in like manner and effect as if the same had been rendered in the district court, and all process for the enforcement of any such’ judgment shall be issued and returnable, and subsequent proceedings thereon had, in like manner and effect as if such judgment had been rendered in and by the district court.”
The act creating the circuit court was repealed by section 1, chapter 104, Laws of 1895, which reads:
“An Act to repeal chapter 83 of the Laws of 1891, and to abolish the circuit court of Shawnee county, and to provide for the transfer of pending cases in the said court to the district court of said county.
“ Section 1. That chapter 83 of the Laws of 1891, being ‘An act to create' the circuit court of Shawnee county, and to define the powers and jurisdiction of such court, and for the transfer from the district court of certain actions, and relating to certain duties of the district court and circuit court, and the judges thereof, and for regulating the transaction of the business of such courts, and fixing the time for holding said circuit court/ be and the same is hereby repealed, and said circuit court is hereby abolished.
“ Sec. 2. All cases pending in said circuit court at the date of the taking effect of this act shall be immediately transferred by the clerk of said court to the district court of said county, where the said cases shall be entered upon the docket of said district court to be disposed of in the same manner as if said cases had been originally commenced in said district court.”
This act took effect April 12, 1895, and the execution was issued on the 10th day of September thereafter. The entire statute authorizing the existence of the circuit court was repealed by the act of 1895, except that there, were saved from the effects of the repealing act all cases pending in said circuit court at the date of the taking effect of the act, which'cases should be immediately transferred by the clerk of said court to the district court of said county, where said cases should be entered on the docket of the district court, to be disposed of in the same manner as if said cases had been originally commenced in the district court. Section 17 authorized the clerk of the district court to issue executions in like manner as if the judgment had been rendered in the district court and created a lien with same effect. “All process for thé enforcement of any such judgment shall be issued and returnable, and subsequent proceedings thereon had in like manner and effect as if such-judgment had been rendered in and by the district court.”
Thus in effect it became a judgment of the district court, which court, by virtue of the general laiv, had the power to issue executions and enforce payment as fully as if it had been rendered in that court. The right to an execution and the enforcement of the judgment accrued when the judgment was transcribed and certified to the district court, and was an existing .right thereafter. “The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceedings commenced, under or by virtue of the statute repealed.” (Gen Stat. 1897, ch. 1, § 8, Gen. Stat. 1889, ¶"6687.) The power of the district court to enforce the judgment of the circuit court, transcribed and certified, was expressly continued by this statute. There is nothing in the repealing statute inconsistent with this position.
The second section provides for the transfer of cases pending in the circuit court to the district court, to be disposed of in the same manner as if such case had been originally commenced in the district court. That construction should be given a statute which will carry into effect the true intent of the legislature, when such intent is apparent. If we deny the power of the district court to issue the execution — to enforce the judgment by process — we deny the judgment creditor a right accrued. We are also inclined to the opinion that the case which was thereby transferred to the district court for final disposition remained a “case pending” within the meaning of the act. action is pending from the filing of the petition and issuance and service of summons until the judgment is satisfied.
The demurrer was properly sustained. The judgment creditor possessed a right accrued for the enforcement of his judgment by the district court.
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The opinion of the court was delivered by
Schoonover, J.:
In 1895 M. A. Carter, defendant in error, was married to N. J. Shallenbarger. Before her marriage she deeded her homestead to her prospective husband. On the 19th day of December, 1896, on account of the cruelties of her husband, she was granted a divorce and alimony. The following appears in the journal entry ;
“And it is further considered, ordered and adjudged that said defendant do pay to said plaintiff as alimony in said cause the sum of $1000, out of the defendant’s property, for the support and maintenance of said plaintiff, and that the same be a lien on the following-described property, to wit; . . . within sixty days herefrom, and to the defendant’s attorneys the sum of $250, as attorneys’ fees for the prosecution of said cause, and do also, within said time, convey to plaintiff the property now occupied by her as a residence, to wit: . . .”
It is contended by plaintiffs in error that the words, “out of the defendant’s property, for the support and maintenance of said plaintiff, and that the same be a lien on the following-described property,” were inserted by counsel after the journal entry was approved and filed. We have examined the record and are satisfied that the correction was made in open court, that the attention of counsel for defendant was called to the matter, and that the amendment was’approved by court and counsel.
In the consideration of this case we shall presume that the journal entry contained in the record is correct. Before the divorce was granted, Kingman & Co., plaintiffs in error, obtained a judgment against the defendant in error and another for the sum of $1087.30. On the 18 th day of December, 1896, an affidavit in garnishment was filed by plaintiffs in error and summons issued and served on N. J. Shallenbarger, the object and purpose being to subject the $1000 awarded as alimony to the payment of the debt due from M. A. Shallenbarger, now M. A. Carter, defendant in error, to plaintiff in error.
The question presented is, When a divorce is granted on account of the cruelties of the husband, and alimony is awarded the wife for her support and maintenance, can the alimony, by garnishment, be subjected to the payment of the wife’s debts existing prior to the granting of a divorce? Section 61, chapter 96, General Statutes of 1897 (Gen. Stat. 1889; ¶4756), provides :
“ When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name, if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce ; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in instalments, as the court may deem just and equitable.”
There is a distinction between alimony and an “equitable division of the property,” as provided by other sections .of the statute. This is clearly stated in the case of Johnson v. Johnson, 57 Kan. 348, 46 Pac. 701. Mr. Justice Allen, in the opinion, says :
“‘Alimony is an allowance which by order of the court the husband, or former husband, is compelled to pay to his wife, or former wife, from whom he has been legally separated or divorced, for her support and maintenance.’ The foundation for its allowance is the duty of the husband to provide for the wife’s support; and where a divorce or separation occurs because of his fault, the duty of providing for her maintenance continues, and the court by an allowance of alimony compels its performance. A division of the property of the parties is an essentially different thing. No matter which party may be at fault, nor what the decision of the court on the merits of an application for a divorce, the court may for good cause make an equitable division and disposition of the property of the parties. In doing this, the power of the court extends only over the property of the parties owned by them at the time the order is made. It cannot reach into the future and bind subsequent earnings or accumulations of either party.”
Elaborate briefs have been filed by counsel, but we shall not attempt to review the authorities cited, for under the judgment and decree it is clear that the $1000 was to be paid out of the husband’s property for the support and maintenance of the wife. This is alimony, and under our law is given to the wife only, in lieu.of the support that the husband owes to her. It is a fund created by the court, taken from tbe husband’s resources for the support of the wife, and cannot be subjected to the payment of the wife’s debts existing prior to the decree of divorce.
The question here decided has never been passed on by our supreme court. For a general discussion of the proposition, attention is called to the case of Romaine v. Chauncey et al., 129 N. Y. 566, 29 N. E. 826.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Milton, J.:
The proceedings of the trial court were upon an agreed statement of facts, in substance as follows : On July 19, 1893, in a suit brought by the attorney-general, a receiver was appointed by the district court of Linn county to wind up the affairs of the Citizens’ Bank of Mound City, Kansas, the bank being insolvent. A. G. Seaman was appointed receiver, and immediately took charge of the affairs and assets of the bank. While the bank was a going •concern, Milton F. Mitchell had received from it collateral notes amounting to $1044.16 to secure his deposit of $1375.68. On February 6, 1894, Mitchell ■presented his claim on his certificate of deposit to the receiver for allowance, and the same was thereupon allowed in full. Three days later, Mitchell reported to the receiver that he had collected from the collateral notes held by him the sum of $1,089.16, and had applied it on his claim against the bank. In November, 1893, the receiver declared and paid a dividend of ten per cent., and in April, 1894, he declared and paid another dividend of five per cent., but paid n'o part of either of the dividends to Mitchell, and refused to pay any dividend to him. On June 14, 1894, Mitchell filed a motion asking the court to order the receiver to pay fifteen per cent, on his claim as allowed, and three days later the court heard the motion and granted the order as prayed for. The receiver, for himself and on behalf of the unsecured creditors, of the bank, brings these proceedings for a review of said order.
The question for decision is whether the defendant in error is entitled to dividends on the whole amount of his claim as proved and allowed, irrespective of the collateral security held by him. Upon this question the courts of the various states are somewhat unequally divided, a majority maintaining the affirmative position. An examination of the authorities indicates that the rules applicable to the distribution of an estate assigned for the benefit of the creditors of an insolvent govern in the distribution of the estate of an insolvent corporation in the hands of a receiver. Probably the most exhaustive consideration of the question herein involved to be found in any one case is given in the opinion of the United States circuit court of appeals in the case of Chemical Nat. Bank v. Armstrong, 16 U. S. App. 465, 59 Fed. 372, in which it was held that the claims of creditors of an insolvent national bank cannot be reduced by any credit by collections from collateral made after the declared insolvency of the bank, whether before or after proof of claim. An interesting case holding the opposite view is that of the State v. Nebraska Savings Bank, 40 Neb. 342, 58 N. W. 976, arising under the provisions of the banking law of that state.
The supreme court of this state seem to have adopted what might be denominated the minority view. In the case of National Bank v. Branch, 57 Kan. 27, 45 Pac. 88, the court said :
“The assets of the estate should be distributed upon equitable principles, and it is 'a recognized rule of equity that where there are two funds to which a creditor can resort, and other creditors are limited to one of them, the former will be compelled to exhaust the fund upon which he has an exclusive lien, and will be permitted to resort to the other for the deficiency only. (Burnham v. Citizens Bank, 55 Kan. 545, 40 Pac. 912; Gore v. Royse, 56 id. 771, 44 Pac. 1053; Wurtz, Austin & McVeigh v. Hart, 13 Iowa, 515; Knowles, Petitioner, 13 R. I. 90; Besley v. Lawrence, 11 Paige Ch. 581.) While the assignee allowed the claims of those who held the guaranteed mortgage bonds to the full amount, payment of a part of the debts will certainly be realized from the mortgage securities. It would be inequitable to allow these claimants a pro rata dividend on the whole amount of their claims when payment of a part, if not all, of it may be received from the mortgage securities to which they have exclusive right."
“A distribution may be made among those holding the mortgage securities when they have exhausted their liens, and then dividends should be declared upon the amount remaining unpaid, and not upon the full amount of the claims as allowed."
In a later case, Investment Co. v. National Bank, 58 Kan. 414, 49 Pac. 521, the doctrine declared in the preceding case was expressly adopted and approved.
In the light of these two cases, it appears that the decision of the trial court was erroneous. It will therefore be reversed, and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Mahan, P. J.:
This is an appeal from a judgment of conviction under the prohibitory law. The assignments of error are : (1) In overruling the defendant’s motion to quash the warrant; (2) in overruling his objection to being tried on the information, and to the-introduction of any evidence thereunder ; (3) in overruling his objections to the testimony of one Thomas Abel because his name was not indorsed on the information ; (4) in overruling the defendant’s motion to discharge him; (5) in denying his motion for a new trial; and (6) in denying his motion in arrest of judgment.
All of these assignments, save the third and fourth, present the same question, and that is, that the war rant was issued without authority of law because it was issued by the clerk in vacation without any order of the court therefor, and that the statute authorizing the clerk to do so is unconstitutional because it confers on the clerk,-a ministerial officer, judicial power. It is unnecessary to go outside of our own supreme court reports for a determination of this question. In the case of The State v. Brooks, 33 Kan. 708, 7 Pac. 591, in the third paragraph of the syllabus, the court says :
“And where such information states an offense, and is sworn to positively by some person, it is sufficient of itself to authorize the clerk to issue a warrant for the arrest of the defendant without any finding by the clerk or other person of probable cause to believe the defendant guilty of the offense, and is sufficient to authorize the district court to put the defendant upon his trial.”
See also The State v. Schweiter, 27 Kan. 505, where it is in effect held that the clerk exercises no judicial power in issuing the warrant, and consequently that the statute confers upon him no judicial power. While it is not so stated in express terms, there can be no other logical inference drawn therefrom.
Under the third .assignment of error, counsel contend that the court committed reversible error in allowing the state to examine a witness whose name was not put on the' information. It is not contended that the facts would not justify the court in allowing the state to indorse the name on the information, but that the name was not so indorsed. This contention is determined against the appellant by our supreme court in the case, of The State v. Medlicott, 9 Kan. 257.
The fourth contention is that the court should have discharged the defendant on the sixth count of the information because there was no evidence sufficient in law to justify a-conviction. We cannot agree with counsel in that regard. The contention seems to be based upon a typographical error apparent in the record. The evidence is abundant to warrant a conviction. There was nothing in the course of the trial occurring to the prejudice of the defendant that would have warranted the court in sustaining his motion for another trial.
The judgment is affirmed.
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The-opinion of the court was delivered by
McElroy, J.:
This action was commenced by Drummond, plaintiff in error, against L. K. Krebs, to recover judgment on two negotiable promissory notes for $232 and $216, respectively, and for the foreclosure of a mortgage. All other defendants were made parties because of their having signed the mortgage, or because of some interest they were supposed to have in the real estate described therein. The defendants L. K. Krebs, Charles H. Krebs, D. N. Wheeler, Drusilla G. Johnson and G. H. T. Johnson made no appearance in the trial court.
The defendant Lissa Martin, with her husband, David Martin, filed an answer and cross-petition, which were adopted by all other answering defendants as their separate answer and cross-petition. The answer (1) admits the execution and delivery of the notes and mortgage; (2) denies that C. W. Drummond obtained the notes in the regular course of business for value, before maturity, and denies that he is the owner of the notes, or that he is the real party in interest; (3) and by way of cross-petition alleges that the real estate’ in question "was, on March 8, 1887, the property of Jacob Emler; that on that date John M. Crowell and George Storch obtained an option for the purchase of the property within sixty days on speculation, and they then, with S. B. Glazier, who was associated with them, began the organization of a “Ladies’ Syndicate” for the purchase of the lots to this effect: that the property should be purchased in fifteen shares, by that many different ladies, at $600 for each share, of which $200 should be paid in cash, the remaining $400 for each share to be paid in two equal annual instalments, for which each lady was to give her own two individual promissory notes, one for $232 including interest, payable in one year, and the other for $216 including interest, payable in two years, said two promissory notes to be secured by mortgage of such share by the purchaser ; that in pursuance of such arrangement, at the request of John M. Crowell, George Storch, and Samuel B. Glazier, the following-named ladies became members of the purchasing syndicate: Mary Rutledge, L. K. Krebs, Ella Ballentine, Maddie Murphy, Elizabeth H. CLark, Drusilla G. Johnson, Caroline Prentis, Cora M. Playle, D. B. Wheeler, F. Cossette Fagan, Lissa Martin, Anna L. Kipp, Thekla Janssen, Helen G. Campbell, and Eva L. Martin; that each of said ladies paid for herself to S. B. Glazier the sum of $200, which was accepted as the cash payment, and each lady for herself, on April 11, 1887, gave her individual prom issory notes payable in one and two years ; that on April 27, 1887, John M. Crowell executed a deed for the premises, bearing date of April 11, 1887, which for convenience named all of the fifteen ladies as grantees, without stating the share of each, and at several different times and on divers days the fifteen ladies, with their husbands, signed and acknowledged the mortgage set out in plaintiff’s petition; that each of the fifteen ladies named, except Mrs. L. K. Krebs, paid the amount due on her two separate notes ; that all of the dealings of the grantors and the holders of the promissory notes with the members of the so-called “Ladies’ Syndicate” have been with them as individuals, as it has ever been agreed and understood such dealings should be, and on the assumption that each of the ladies for herself mortgaged her share of the real estate to secure her own individual promissory notes, and not the notes of any other person ; that the mortgage, by mutual mistake, does not truly express the contract in this, that it purports to secure the payment of thirty promissory notes executed by each of the fifteen ladies, whereas, in truth and in fact, no such promissory notes were executed, and no one of the ladies named was bound for the payment of the shares of any other member thereof; that the mortgage was executed only to secure the payment of each individual share according to the tenor and effect of the promissory notes in the same manner as if each lady had executed a separate mortgage on her interest in the real property; that the mortgage should be so construed, and if the same cannot be so construed, then the mortgage should be by the court reformed to express such intention ; and that it was the intention of the party drawing the mortgage so to express the contract that was made.
The plaintiff filed a reply consisting of a general denial. The case was tried before the court without a jury, and the court took the case under advisement, made special findings of fact and conclusions of law, and rendered judgment for plaintiff, against L. K. Krebs for $656.78, and costs of suit, and ordered a sale of an undivided three-fifteenths of the real estate described to pay the judgment, and ordered a reformation of the mortgage and the release of the twelve answering interests. The plaintiff filed a motion for a new trial, which was overruled, and presents the case to this court for review, alleging error in the proceedings of the trial court.
It is first contended that the court erred in not rendering judgment for plaintiff in error on the notes and mortgage according to the written terms thereof under the allegations of the petition and evidence. The plaintiff in error became the holder of the notes by assignment. His contention is that he is an innocent holder of the notes and mortgage, and is entitled to judgment thereon according to the terms expressed therein. On the other hand, it is the contention of the defendants that Drummond became the holder of the notes and mortgage by assignment after maturity. Samuel B. Glazier is the payee named in the notes and mortgage. The mortgage by an indorsement appears to have been assigned to plaintiff on the 15th day of August, 1891, long after maturity. There is some testimony tending to show that the notes were sold, assigned and transferred by Glazier to the United States Investment Company, in the regular course of business, for value, before maturity. The trial court found, however, that Glazier indorsed the notes as follows: “Without recourse, Samuel B. Glazier,” and afterward transferred the notes and mortgage to the plaintiff by written assignment in the following words :
“For value received, the mortgagee within named does hereby assign and transfer the notes by the foregoing mortgage secured, and does hereby assign and set over to C. W. Drummond, or his assigns, all right, title and interest to the lands and tenements in the mortgage dated April 11, 1887, on lots six (6) and seven (7), block twenty-two (22), L. C. Challis’s addition to the city of Atchison, Kansas, and recorded in book 73, page 555, in the register of deeds’ office in said county. In witness whereof, I have hereunto set my hand and seal, on this 15th day of August, a. d. 1891. S. B. Glazier.”
This finding of the trial court is supported by some testimony. The testimony was conflicting oh this question, and the findings of the court are conclusive thereon. This precludes the plaintiff in error from claiming any of the rights of a bona fide purchaser for value. There is, however, on the other hand, some evidence to support the contention that before maturity Glazier sold, assigned and transferred the notes to the United States Investment Company. As opposed to this contention there is an assignment of the notes and mortgage bearing date August 15, 1891, as above set out in the findings of the trial court.
If it be conceded, as claimed by the plaintiff in error, that the notes and mortgage were, before maturity, for value transferred to the United States Investment Company, would plaintiff in error be in any better condition? The record shows that John M. Crowell in 1887 purchased from Jacob Emler the two lots of land in controversy, and the title was taken in his name. Immediately thereafter Geo.rge Storch, Samuel B. Glazier andF. W. Huntonwere each given a one-fourth interest in the transaction and a one-fourth interest in the profits to accrue by reason of the purchase and intended sale thereof. Glazier was the president and Hunton the secretary and treasurer of the United States Investment Company. They had the control and management of the company, and were the officers through whom the company transacted its business — the persons through whom the notes could be purchased by the company. Through these officers the investment company had notice of the equities, if such existed, of the mortgagors. This notice being possessed by Glazier and Hunton, the representatives of the corporation, it was binding upon the corporate body. (Hyatt v. Clark, 118 N. Y. 563, 23 N. E. 891; Mann v. National Bank, 30 Kan. 412, 1 Pac. 579.)
It is next claimed that the court erred in admitting incompetent, irrelevant and immaterial testimony on behalf of the defendants. Complaint is made that there is no foundation in the record for an admission of any conversations and statements of Vandergrift. There was some evidence tending to show that Vandergrift was the agent of Crowell, Glazier, Storch and Hunton in negotiating the sale of the property to the Ladies’ Syndicate. Crowell testified that Vandergrift applied to him and told him he could sell the property for him, and Crowell answered, “All right, go ahead with the sale.” Crowell further testified :
“Q,. You authorized Mr. Vandergrift and Mr. Glazier to make a sale of it? A. Make a sale of it. I did not know they were going to do it, because I could get more for it. I consented to it ;-yes, sir.”
Storch testified :
“Q,. Mr. Storch, state what, if any, conversation you had with any one acting for or on behalf of these ladies of the syndicate in regard to how the notes and mortgage should be drawn. A. I do not think I ever discussed it with anybody.
“ Q,. Did you ever have any talk with either one of these ladies that formed this syndicate that purchased the property prior to the making out of this mortgage and notes? A. Not that I remember.
“ Q,. Then all the information that came to your knowledge about this property being sold to this syndicate for $9000 came through Mr. Vandergrift? A. Yes, sir.
“ Q. Then is it not a fact that so far as the terms of the sale and terms of security were concerned all of the negotiation was done by them (Hunton, Glazier, and Vandergrift), and that you had nothing to do with it except when it came to drawing up the papers? A. I did not make the bargain with them.
“ Q,. You had nothing to do with it? A. The sale was reported the same as many others are to me, and I make out the papers and send them out, and if they are signed that is a bargain.”
It appears that there was some foundation for the admission of the conversations and statements of Vandergrift, and there was some evidence of- his agency — sufficient, at least, to permit the admission of his acts and declarations.
It is claimed that witnesses were permitted to state their conclusions and understanding as to the conversations with Glazier, Hunton, and Vandergrift. It is true that the witnesses did not claim to give the exact language used by the parties in the conversation. That can rarely be done. They seem to have testified to the substance of the conversations, and this, we think, was permissible.
Complaint is made that there was no foundation for the admission of conversations and statements made by Mrs. Prentis to her codefendants. The contract for the sale and purchase of the real estate in question appears to have been stated first by Vandergrift, Glazier and Hunton to Mrs. Prentis. Mrs. Prentis testified “that she was one of the first members.of the so-called Ladies’ Syndicate ; that Glazier, Hunton and Vandergrift were the main promoters of the syndicate and sale.” She then testified to the contract of sale as stated by these parties to her; that at the solicitation of Glazier, Hunton and Vandergrift she called on the other ladies and told them the terms of the contract. It appears from this testimony that Mrs. Prentis was by these parties constituted their agent for the purpose of making known the terms of the contract of sale and purchase to her codefendants, and that she was their agent for that purpose and to that extent. The testimony was properly admitted.
It is contended that the testimony of the defendants in support of their cross-petition “ as to what they understood and believed when they signed the mortgage” is incompetent. This objection appears to be very technical. The witnesses evidently referred to the understanding and intent as expressed in the agreement made between the parties, as they understood it to be, that is, the agreement that was actually made in the sale and purchase of the property. The testimony appears to have been competent.
There is no merit in the contention that the court permitted leading questions to be asked and answered.
The rulings on questions as to the admission of evidence in a trial before a court are more liberal than where a trial is had by a jury. There are portions of the testimony of which complaint is made that appear to be irrelevant and immaterial, but from an examination of all of the evidence we are satisfied that no prejudicial error was committed by the trial court in the admission of evidence. The rule as stated in the American and English Encyclopedia of Pleading and Practice, volume 2, page 567, is,-we think, the correct rule in such cases :
“Where the record shows that sufficient evidence was introduced to sustain the findings of the trial judge in a case tried to the court alone, the judgment will not be reversed for the erroneous admission of evidence, as the judge will be presumed to have disregarded it in making the findings, unless it is clear that he was influenced thereby.”
It is further contended that the court erred in rejecting proper competent testimony offered by plaintiff in error. During the trial a letter written by George Storch to Mrs. JPrentis was introduced in evidence for the purpose of contradicting portions of his testimony. The witness Storch explained that the letter and the statements therein contained had no reference to anything connected with this case. The witness was allowed to make a full explanation of the letter and his Version of the same. The court excluded other independent testimony offered for the purpose of explaining his contention. The court committed no error in rejecting the offered testimony.
Again, it is claimed that the court erred in overruling the motion of the plaintiff for a new trial. The sole controversy in this case was whether the plaintiff Drummond was entitled to a lien for the money due him from Krebs on the whole of the mortgaged property, or whether the twelve answering interests, two of the same being owned by Mrs. Martin, should be released from the lien of the mortgage. Was there a mutual mistake, such a mistake as to require the reformation of the mortgage? This mortgage was written and prepared by Storch without any inquiry on his part as to what agreement and contract had been made between the parties. It was signed and acknowledged by the defendants without inquiry or investigation, relying with apparent confidence on the belief that the mortgage had been prepared according to the contract originally made. The evidence shows that Glazier, Hunton and Vandergrift made an agreement with Mrs. Prentis and Mrs. Wheeler, and through them with the rest of the defendants, as to the terms of the sale and purchase, to the effect that each purchaser should be liable only for the payment of her individual portion of the cash and notes, and that the mortgage to secure the deferred payments should be, in effect, a mortgage on the individual interest of each of the purchasers for the amount of her deferred payments. On these terms the bargain was closed, and there remained nothing but the execution of the written instrument to carry into effect this agreement. Storch prepared the papers for execution without inquiry as to what were the real terms of the contract of sale and purchase. Crowell, Storch, Glazier and Hunton were partners in the sale of the real estate in question, and any one of them had authority as such to negotiate a sale and to fix the terms of purchase. Vandergrift by direct permission had authority to sell the premises in question, without any limit as to his authority to fix the terms of sale and terms for the payment of the purchase-price. Where the terms of a bargain and sale have been agreed on and deeds and other written instruments are to be executed in performance of the previous agreement, but fail through mistake correctly to express the meaning of the parties as previously settled by the terms of the agreement, a court of equity should reform such deeds and instruments of writing so that they may truly express that which was in fact agreed on and which they should have expressed and were intended to express. The trial court found in effect mutual mistake. The findings are supported by the evidence. The record discloses a proper case for a reformation of the mortgage and for the relief prayed for.
There were no errors of law occurring at the trial which prejudicially affected the substantial rights of the plaintiff in error. Therefore, the motion for a new trial was properly overruled. The judgment will be affirmed.
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The opinion of the court was delivered by
Milton, J.:
After a full consideration of the record and briefs in this case, we are of the opinion that the only question requiring decision by us is whether the statute of limitations barred plaintiff’s right of recovery on the note executed and delivered to him by the defendant. The action was brought more than five years after the maturity of the note. To avoid the bar of the statute, the plaintiff pleaded that the defendant had made a written acknowledgment of the debt, and in support of such plea introduced a letter, which the defendant admitted he had written in response to a letter from the plaintiff demanding payment of the note in controversy. The letter is as follows:
“Fort Scott, June 4, 1890.
"J. H. Richards, Esq., General Attorney, Fort Scott, Kan.:
“DearFriend — Yours of 5-31 received, and in reply will say, I am very sorry I have not the money. I have a note due on my home since last October of $500, and I have been unable to pay the interest, let alone the principal; also mortgage due in El Dorado, July 1, of $435. Do not see how I am going to meet them, but will have to do the best I can.
“ Hoping you are improving fast and to see you out in a short time, I am, yours truly,
S. F. Hayden.
“P. S. — Will let you hear from me in a short time as to what I can do.”
Was the foregoing letter a sufficient “acknowledgment of an existing liability, debt or claim” to toll the statute of limitations? The question is not free from difficulty. In an effort to answer it properly we have examined many cases, and as a result it seems that the only precedents of any value are to be found in the decisions of our supreme court. In Hanson v. Towle, Adm’r, 19 Kan. 273, the court said:
“A mere reference to the indebtedness, although consistent with its existing validity, and. implying no disposition to question its binding obligation, or a suggestion of some action in reference to it, is not such an ‘ acknowledgment ’ as is contemplated by the statute. This müst be an unqualified and direct admission of a present subsisting debt on which the party is liable, and which he is willing to pay.”
The words, “ and which he is willing to pay,” were expressly repudiated in the case of Elder v. Dyer, 26 Kan. 604, 611; but in the latter case Justice Brewer, in his explanatory concurring opinion, refers to the foregoing case as follows: “All that was in the thought of the court at that time was to make emphatic the idea that an acknowledgment was an unequivocal admission of a present subsisting liability. ”
In Gragg v. Barnes, 32 Kan. 310, 4 Pac. 276, the court said :
“In the case of Hanson v. Towle, Adm’r, 19 Kan. 273, it was held that, to prevent the running of the statute of limitations upon an indebtedness, there must be an unqualified and direct admission of a present subsisting debt on which the party is liable. This part of the opinion has never been changed or modified and is the law of the state to-day.”
We have reached the conclusion that the letter written by the defendant does not contain an unqualified and direct admission of a present subsisting debt on which he is liable, and that we are not authorized to add anything to the language the defendant has employed. We hold that, to toll the statute, a written acknowledgment must itself be unqualified and direct, and not dependent for its meaning on some other writing or on a possible construction of its language.
As to the contention that plaintiff and defendant, .were partners or joint owners of the corporate stock, for which the note was given, it is sufficient to say that-the contention is not within the issues as pleaded,, and is not supported by the facts proved. It is also, inconsistent with another contention of the plaintiff,, namely, that it was agreed between the parties that, the stock should be held by the plaintiff as collateral, security for the payment of the note, and should be-delivered to the defendant only upon payment thereof. With reference to the last-named contention, it may be said, that if the stock 'was retained as collateral security for the payment of the note, it did not affect the running of the statute against the note, since the plaintiff could have sued thereon at any time during; the five years next after maturity thereof without first, tendering the collateral stock to the defendant. (James v. Hamilton, 2 Hun [N. Y.], 630; Jones v. Scott, 10 Kan. 33.)
The judgment of the district court will be affirmed..
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The opinion of the court was delivered by
Milton, J.:
In this action, the defendant in’error obtained a judgment and verdict against the plaintiff in error in the sum of $1133.83, the face value of an insurance policy, the interest thereon, and a further judgment for.ninety dollars, as an attorney’s fee. The-case was tried in Anderson county on a change of venue. It appears that in March, 1893, Johnson Brothers & Browning were engaged in a mortgage-loan business at Yates Center, where Browning was also the local agent for a number of insurance companies, including the plaintiff in error. The firm acted as soliciting agents to procure applications and contracts for mortgage loans for Angelí Mathewson & Co., of Parsons, who were the state agents of the Mutual Benefit Life Insurance Company. In March, 1893, Jefferson Shults, through the agency of Browning, made application to Mathewson & Co. for a loan of $4500, and executed a written contract, in part as follows :
“ To Angelí Mathewson & Co., Parsons, Kan.: I hereby appoint you my agent and my attorney to negotiate for me a loan of $4500 for five years, with $3300 insurance, and with interest at seven and one-half per cent, per annum, payable semi-annually, to be secured by mortgage or mortgages, of form required by you, upon the following real estate situate in Wood-son county, Kansas.”
The contract and application were forwarded by Browning to Mathewson & Co., who accepted the same and prepared a mortgage accordingly, which was, on the 18th day of April, thereafter, executed and acknowledged by Shults and wife before Browning, as a notary public. The mortgage was for $4500, and the Mutual Benefit Life Insurance Company was the grantee therein. The instrument was filed for record on the day of its execution, and on June 16 the grantee therein duly executed a release, which was filed for record on the 4th day of the following August.
The mortgage contained a clause whereby the mortgagors agreed to procure and maintain insurance on the buildings upon the mortgaged premises to the extent of $3300, with the loss, if any, payable to the mortgagee. On the day the contract for the loan was executed by Shults, he was informed by Browning that the latter could write the insurance referred to in the contract in the companies he represented.' Thereupon Shults paid Browning $49.50, that sum being the premium for insurance to the amount of $3300 for five years. The policy was afterward written by Browning in the American Insurance Company, and was forwarded by him to Mathewson & Co. Afterward the insurance company requested Browning to “ cancel off” $1000 of the $2000 insurance that had been placed on Shults’s barn, and this he accordingly did, on May 3, 1893, and on the same day wrote the policy on which this action is based. The next day he wrote to Shults informing him of the change in the policies, and Shults testified that he acquiesced in such change. On May 26 Browning received notice from the Merchants’ Insurance Company to cancel its policy, which notice was the same day communicated to Mathewson & Co. The policy contained a stipulation reserving the right of cancelation on five days’ notice. The mortgage clause attached to the policy required ten days’ notice to the mortgagee prior to cancelation. On June 3, Mathewson & Go. returned the policy.to Browning, as requested by him.
Early in the morning of Sunday, June 4, the barn was struck by lightning and totally destroyed. On the next day Browning purported to cancel the policy. On June 5, Shults learned that his barn had been burned, and the next day called on Browning to inquire regarding the insurance. Then, for the first time, he was informed as to the action of the company and of Browning in respect to the cancelation of the policy. The return premium was not paid over to Shults prior to the trial of the action. Johnson Broth ers & Browning received from Mathewson & Go. a commission on the loans made through their agency. The firm had no connection with Browning’s insurance business.
Counsel for plaintiff in error make the following claim in their brief :
• “ (1) The policy never became a binding obligation of the insurance company, for the reason that, when countersigned by Browning and delivered to Angelí Mathewson & Co., he was acting for and in the interest of Shults, and not as the agent of the insurance company; and, (2) if issued by Browning, as agent of the company, in the usual course of his employment, it became inoperative at the expiration of five days from the receipt of notice of cancelation by Angelí Mathewson & Co.”
In considering this claim, it is important to note that the insurance policy under which Shults recovered judgment was issued after the execution and delivery of the mortgage, and that the mortgage itsblf covered the whole matter of the insurance to be maintained. It thus appears that the clause in the loan contract concerning insurance had wholly lost its force, and that the agency on the part of Mathewson & Co. in respect to insurance, if such agency ever existed, was revoked and at an end. After the mortgage was executed and delivered, service of notice of the cancelation of the insurance policy on Mathewson & Co. did not bind Shults.
As the firm of Johnson Brothers & Browning were merely soliciting agents for Mathewson & Co. in respect to the Shults loan, their agency was wholly at an end with the completion of the loan transaction, and Browning was in nowise agent of Shults at the time the insurance policy in question was written. “ The appointment of one as agent to procure insur anee does not authorize him to accept notice of cancelation of the policy procured by him under such authority.” (Assurance Co. v. Cooper, 6 Colo. App. 25, 40 Pac. 147; Hermann v. Insurance Co., 100 N. Y. 411, 3 N. E. 341; Insurance Co. v. Forcheimer, 86 Ala. 541, 5 So. 870; Insurance Co. v. Turnbull, 86 Ky. 230, 5 S. W. 542; Mutual Assur. Soc. of Virginia v. Scottish Union & National Ins. Co., 84 Va. 116, 4 S. E. 178.) We think that the court’s instructions correctly and completely cover the issues presented by the pleadings and the evidence, and we perceive no error in refusing the instructions asked by the defendant.
The allowance of an attorney’s fee was proper. (Assurance Co. v. Bradford, 60 Kan. 82, 55 Pac. 335; Insurance Co. v. Bayha, ante, p. 165, 55 Pac. 474.) 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 police court in the city of Topeka against the appellant, where he was convicted of a violation of city ordinance No. 1909, by keeping a place where intoxicating liquors were sold. An appeal was taken to the district court, where he was again convicted, and he now brings the case to this court for review.
The record in this court is challenged by the city for the reason that it does not contain a copy of the warrant or transcript from the police judge, and for that reason it is claimed the appeal should be dismissed. The certificate of the clerk of the district court attached to the transcript recites that it is a full, true and complete transcript of the record. This is all that tbe law requires, and we are bound to consider that the certificate is true, nothing appearing in the transcript to the contrary. So far as the record in this case shows, we may presume that the complaint was filed in the police court, after which the defendant appeared therein, had a trial on the complaint, and was convicted,-after which he appealed to the district court.' In the district court the defendant made a motion to quash the complaint for the treasons : (1) That the complaint is not properly certified to this court; (2) that the premises are not properly described where 'the alleged offense was committed ; (3) that the complaint is not definite and certain ; (4) that the complaint does not state facts sufficient to charge an offense ; (5) that the ordinance of the city of Topeka under which this defendant is charged is unconstitutional. The overruling of this motion is the first assignment of error.
The questions raised by this motion to quash cover about all the other assignments of error herein. It is shown by the bill of exceptions that the complaint on which the defendant was tried in the district court was the identical complaint on which he was tried in the police court, but the fault found with it is that it has not on it or attached to it a formal certificate of such fact. In the case of The State v. English, 34 Kan. 631, 9 Pac. 761, it was held that this is not essential. The description is “a certain two-story brick and stone building at second floor, house No. 200 and 202 Kansas avenue, in the city of Topeka, Shawnee county, Kansas.” By reference to the ordinances of said city, of which the court must take judicial notice, it will be found that this description would locate the premises on the east side of Kansas avenue, and describes the north fifty feet of the second block south of First avenue. This is a sufficient description. As to whether the proof justified a conviction under this complaint is another question, and will be considered under another objection ; but the complaint was sufficiently definite and certain, states sufficient facts to put the defendant on his trial, and disposes of the second, third and fourth grounds of the motion.
. Counsel for appellant makes no argument and cites no authority in his brief as to the unconstitutionality of the ordinance, but in the oral argument we were referred to the briefs in another case now pending before us for a discussion of this question. We have carefully examined these briefs, and it is sufficient to say in this case that we are unable to find sufficient authority to justify us in holding the ordinance void.
The next matter for our consideration is the alleged variance between the description in the complaint of the place where the offense was claimed to have been committed and that in the evidence. We have herein-before shown that, according to the ordinances of the city, the place described in the complaint would be the north fifty feet of the lot or lots facing on Kansas avenue and immediately south of Second avenue. This is the exact location of the building testified to. The contention of the defendant is that, as the building does not extend to the west line of the lot, the numbering should be on Second avenue. We think it clear that either mode of numbering is correct. The claim is purely technical and is without substantial merit. There is no substantial variance between the allegation and proof.
The court in its instructions to the jury gave them the material provisions of the ordinance governing the case, including the punishment, but in regard to the latter used the word “or” instead of “ and,” connecting fine and imprisonment. As the jury had nothing to do with assessing the punishment, that part of the instruction was surplusage, and we are unable to see how it could prejudice the rights of the defendant.
These are all of the alleged errors that seem to us to require notice. We see no reversible error in the record.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
This is an action for malicious prosecution. Judgment was rendered against the plaintiff in error in the district court of Greenwood county, and he now brings the case here for review. The following instruction, given by the trial court, is assigned for error, and relied on by plaintiff in error for a reversal:
“Our supreme court has decided that the question as to what facts"amount to probable cause is a question of law to be decided by the court, and you are instructed that the facts testified to by defendant Turney as having been within his knowledge at the time he commenced the prosecution against the plaintiff are not sufficient in law to amount to or to show probable cause for the belief that Henry A. Taylor was guilty of the murder of William Coulte. Nor is there any group or combination of the facts offered in evidence in the case' sufficient in law to amount to or to show probable cause.”
In the case of A. T. & S. F. Rld. Co. v. Watson, 37 Kan. 773, 15 Pac. 877, the supreme court said:
“Out of considerations of this character has grown an unbroken line of authorities establishing one of the most important and beneficial rules that govern in actions for malicious prosecutions. The rule is, that in a case where there is a substantial dispute about facts constituting the existence or want of probable cause, it is for the jury to determine what facts are proved, and for the court to say whether or not they amount to probable cause. It is therefore generally the duty of the court in such a case, when evidence is given tending to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not. The court should group the facts in the instructions which the evidence tends to prove, and then instruct the jury that, if they find such facts have been established, they must find that there was or was not probable cause. This rule must not be made a pretext by which a question primarily for the court is transferred to the jury. There must be a substantial dispute about the existence of probable cause before it can properly go to the jury, and if about the facts that are claimed to prove or disprove probable cause there can fairly be said to be a dispute, a conflict of testimony, irreconcilable statements of witnesses, a strong flavor of improbability, then the jury are the sole judges of these, as of every other material fact in the case ; but if the evidence on this question, fairly considered and impartially weighed, produces in the mind of the court a reasonable conviction of the existence or want of probable cause, then it is. the clear duty of the court to instruct the jury accordingly. The dispute must be of such character as to compel the court to weigh evidence and determine the credibility of witnesses, before it ceases to be a question of law for the court and becomes an issue of fact for the jury. Whenever the evidence of the existence or want of probable cause produces in the mind of the court a reasonable doubt as to its proper determination, then it should be submitted to the jury.”
In the case of Drumm v. Cessnum, 58 Kan. 333, 49 Pac. 78, the court said:
“ Where there is no dispute as to the facts, it is well settled that it is for the court to determine, as a matter of law, whether probable cause is shown. Where the facts are disputed, it must be left to the jury to determine what the facts are, but the court should instruct what facts amount to probable cause for an arrest and what do not. The court should summarize the claims of the parties and state to the jury what basis of fact must exist to show probable cause and what will sustain the claim of a want of probable cause.” See also Markley v. Kirby, 6 Kan. App. 494, 50 Pac. 953.
In Johnson v. Miller, 63 Iowa, 529, 17 N. W. 35, the court held that what constitutes probable cause for instituting a criminal prosecution is a mixed question of law and fact, and in an action for malicious prosecution the court should group the facts together in the instructions which the evidence tends to prove, and then instruct the jury if they find such facts have been established they must find there was or was not px’obable cause. In this case there is no such substantial dispute as to the existence or want of probable cause as to form an issue of fact for the jury.
The instructions complained of admit the truthfulness of all the facts testified to by defendant below. There is no dispute as to the facts ; they are established. The trial court in giving this instruction admitted every fact favorable to defendant below, admitted evexy fact' that the jury might fairly and legally infer from the evidence favorable to the defendant below; but still the evidence is not sufficient in law to show probable cause. We concur in the conclusion of the trial court, and, applying ¿he well-established rule above cited relating to the duty of txúal courts ixi such cases, it was not error to give the instruction.
Two additional errors are assigned, but they are not sufficient to require a reversal. The judgment of the district court is affix-med.
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The opinion of. the court was delivered by
Milton, J.:
This action was brought by Mrs. Maggie Daugherty in the district court of Lyon county against the city of Hartford, a city of the third class, to recover damages for personal injuries resulting from a fall occasioned by a defective sidewalk on the principal street of said city. It was alleged and proved that after dark in the evening of November 27, 1894, the plaintiff and her daughter-in-law were passing along the sidewalk in front of a business block, on their way to church. It was a dark night and there were no street lamps. At two points new walks had been laid in front of two business houses, from six to eight inches lower than the original and remaining portions of the sidewalk, thus producing four inequalities in the grade. The plaintiff had passed over the walk but twice during the year that such inequalities had been permitted to exist. She had the fact in mind, and from the evidence it appears that she was exercising reasonable care and caution in respect thereto at the moment she suddenly stepped down from a higher to a lower part of the walk. In thus stepping down the plaintiff sprained her ankle and fell. The injury proved to be quite severe, causing pain and sickness, and requiring the use of crutches for some time. The defendant pleaded contributory negligence on the part of the plaintiff. The case was tried by a jury, resulting in a verdict and judgment for the plaintiff in the sum of $300.
Two of the special findings made by the jury are as follows :
“4. Could not the plaintiff, by the exercise of ordinary care, have known and avoided the defect (if you find a defect) at the time of the accident? Ans. No.”
”7. If you answer No. 4 in the negative, please state what the plaintiff must have done in order to have avoided the injury she received. A. She could have exercised extraordinary precautions.”
It is contended by counsel for plaintiff in error that the sidewalk was in a reasonably safe condition and that the city was not liable to respond in damages on account of an injury resulting from the existence of the inequalities in the height of the walk. Several cases are cited in support of this claim. An examination of these cases shows that they nearly all relate to the alleged liability of cities for defective cross-walks, and the liability of the municipalities was denied, for the reason that it is not generally practicable to make the grade of street crossings the same as that of the regular sidewalks. The cases are not therefore applicable here. On the other hand, the supreme court of this state, in the case of Osage City v. Brown, 27 Kan. 74, declined to hold as a matter of law that a side walk which contained an uncovered rise, or offset, of about four inches in height was not defective and unsafe. In the same case it was held that it was for the jury to determine from all the circumstances of the case whether the plaintiff was guilty of such ordinary negligence contributing to the injury as would defeat a recovery. That decision rules this case.
Complaint is made of the refusal of the court to give certain instructions asked for by defendant below. The instructions given presented the law applicable to the facts proved, and fairly submitted to the jury the question of the city’s negligence and the contributory negligence of the plaintiff. The instructions refused could not properly have been given, as the giving thereof would have invaded the province of the jury in respect to the question of negligence.
The special findings quoted above show that the jury believed the plaintiff exercised ordinary care, and that she could not have avoided the injury without the exercise of extraordinary care. Such findings are fairly supported by the evidence. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
Defendants in error obtained a judgment in the court of common pleas enjoining the city from enforcing the payment.of an assessment made on their property therein for the purpose of laying a brick pavement on James street, upon -which their property abutted, on the ground that the city council in making-the contract for that improvement had exceeded its. authority, in that it included therein a contract in advance for the repair of the street for the term of five-years after the completion of the work.
The defendants in error object to the consideration, of the case on its merits, claiming that the petition in ■ error was not filed in time. The contention is that a, motion for a new trial was not necessary to preserve-the questions arising in the case, and therefore the filing of such a motion could not extend the time beyond the year from the entry of the judgment in the first instance. Many authorities from our supreme court and this court are cited in support of this'contention. The case is not within the rule laid down in any of them. The case was tried to the court on evidence, and a general finding was made for the plaintiffs, on which the temporary injunction was made perpetual. The motion for a new trial properly raised the question, that the finding and judgment of the court were not. sustained by the evidence. The evidence is contained!, in the proceedings of the council, the specifications-provided-by the city, the contract entered into between* it and the contractor, and the bond by the contractor - given for the faithful performance of the work. So. that an exception could only be reserved by' a motiom for a new trial.
The next objection to the consideration of- the case' is that the city clerk, who was a defendant below, is-not a party to these proceedings, the petition in-error being prosecuted by the city alone. The clerk had no independent interest in the proceeding. His only interest was as an officer of the city, and the city’s presence fully protected such interest. It is also objected that the case-made is not properly and sufficiently settled and authenticated. We do not find any merit in this contention.
On the merits, the question involved has never been decided by this court or by the supreme court. The provision which it is claimed avoids the assessment is contained in the specifications. The advertisement for bidders referred to the specifications as embodying the requirements exacted of a contractor. Therein is the objectionable provision, as follows :
“The contractor expressly agrees to give a good and substantial bond to maintain in good order the aforesaid pavement for five years after the date of its acceptance, and binds himself, his heirs and assigns, to make all repairs which may, from imperfection in said work or material, or from any crumbling or disintegration of the material, become necessary within that time, and the contractor shall, whenever notified by the city engineer that repairs are necessary, at once make such repairs at his own expense, and if they are not made within fifteen days after the date of said notice, the city engineer shall cause such repairs to be made at the expense and cost of the said contractor.”
It will be observed that this requirement in the specifications imposes on the contractor two duties: (1) To give a bond to maintain the pavement in good order for five years after its completion and acceptance ; (2) to make the repairs which may become necessary in five years by reason of any imperfection in the work or material or which may become necessary by reason of any crumbling or disintegration of 'the material generally, without limiting it to any particular cause. It is contended by the plaintiff in error •that this entire clause in the specifications was intended, and so clearly-appears from -the whole proceeding and contract, as a guaranty that the work would be done in accordance with the terms o.f the: contract, and that the contract required a pavement, that would last five years without the necessity of re-' pairs. Many cases are cited which appear to support the contention and which do support the contention, if the provision can be held to be simply a guaranty,, as claimed. It is claimed by counsel for plaintiff in-error, and is doubtless the law, that the city council' could not anticipate repairs in the ordinary way and provide for their payment by making them a charge on the abutting property owners. When the street, is once paved the duty of repairing the same is thrown upon the city at large. It seems to be well settled as a proposition of law that any burden beyond the. original cost cannot lawfully be imposed upon the, abutting holders; and it would seem to be good law, that such lot owners cannot be made to pay for such, a guaranty which may becdme worthless before the time has elapsed, and that the duty of the officers of. the city to see that the work is properly done cannot be exchanged for a bond or contract on the part of the contractor for the performance of this duty, as was said by the supreme court of California in the case of Brown v. Jenks, 98 Cal. 10, 32 Pac. 701.
It seems to us clear that this provision contemplated, something more than a mere guaranty of the performance of the . contract which was secured by a bond with sureties approved by the cquncil. It is apparent that under the guise of this kind of a guaranty the limitations and restrictions imposed on city officials by law to prevent irregularities and frauds on the rights of the inhabitants might be much weakened. The supreme court of Oregon, in City of Portland v. Bituminous Paving & Imp. Co., 52 Pac. 32, said:
“It is essential to the welfare and protection of citi :zens and taxpayers who contribute to the revenues, and whose property is subject to the laws and ordinances of municipalities, that they should be held to the exercise of such powers only as have been •delegated to them through legislative enactment. 'They possess no powers but such as are delegated, •or may be necessary to their exercise, and thereby implied, and the courts have been solicitous that they •exercise none they do not possess.”
■ It is clear that imposing on the contractor the duty ■of giving the bond required by this provision would not be undertaken without compensation in addition to the reasonable cost of the work and material; nor would he be bound, .under the second division of the clause, to stand ready at all times for five years to make such repairs as are contemplated therein without enhancing the amount of his bid, and thus imposing an additional burden on the property owners not authorized by law. It is admitted, and it is doubtless the law, that the council cannot provide for repairs in anticipation of their necessity, but must only provide as the necessity arises. ’
Entertaining these views of the law applicable to the case, it follows necessarily that the court did not err in its general finding of fact or in its conclusions of law based thereon ; but on the contrary the evidence, which is undisputed, sustains the determination of the court, and its judgment is therefore affirmed.'
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The opinion of the court was delivered by
McElroy, J.:
This was an action on a policy of insurance issued by the defendant company on the 2d day .of December, 1893, insuring the plaintiff for a term of three years against loss by fire on a dwelling-house in Kansas City. The plaintiff alleged the issuance and delivery of the policy of insurance and the destruction of the property by fir.e ; that the plaintiff gave immediate notice of the loss to the defendant insurance company ; that the defendant, by its duly authorized general agent, M. E. Lease, denied its liability for the. loss for reasons other than a want of notice and proofs of loss ; and that the defendant waived the giving of written notice of the loss and proofs of loss as required by the terms of the policy; and the plaintiff prayed judgment for |1500, with interest and costs of suit:
The defendant insurance company filed an answer: (1) A general denial; (2) admitting the execution and delivery of the policy; (3) alleging that the policy provided that “if the building become vacant or unoccupied for more than ten days . . . before a loss, then and in every such case this entire policy shall . . . become absolutely void,” and alleging that more than ten days before the destruction of the property by fire the building became vacant and unoccupied and so remained until it was destroyed, without the knowledge or consent of the company, and that the policy thereby became void ; (4) alleging that by the provisions of the policy the plaintiff was required to deliver to the defendant company verified proofs of loss, duly certified by a magistrate, within thirty days after loss, and denying that such proofs so certified had been furnished. The- company therefore denied its liability. The plaintiff’s reply was a general denial. A trial was had before the court and a jury, which resulted in a verdict for defendant. The plaintiff filed .a motion for a new trial, which was overruled, and presents the case to this court for review.
The plaintiff in error sets out eighteen formal assignments of error. 'The issuance and delivery of the policy of insurance were admitted in the answer. The defendant admitted at the trial that the building was totally destroyed by fire on the 14th day of December, 1895 ; that defendant had notice of the loss, and that M. E. Lease was the adjuster for the defendant company. The only defense presented was that the building insured had become vacant and unoccupied and so remained for a period of more than ten days prior to its destruction, without the knowledge or consent of the insurance company.
The assignments of error, from 1 to 7, inclusive, are without merit. We will say, however, that the court erred in admitting in evidence a receipt offered by the defendant for the purpose of showing the date on which Richards, the last occupant of the premises destroyed, leased a residence property of Whipple & Co. The receipt was not competent for that purpose. The whole matter of the Richards-Whipple <fc Co. lease, including the date, were foreign to any issue presented in the case. This error could in no way affect the rights of the plaintiff.
The assignments of error, 8 to 13 inclusive, relate to the refusal of the trial court to give certain instrucr tions, six in number, requested by plaintiff. The first instruction requested, of which complaint is made, does not embody any principle of law applica^ ble to the case. The second, third and fourth relate wholly to the question of waiver of proofs of loss.. These instructions were entirely eliminated by the admissions of the defendant and by the instructions of the court. The court instructed the jury “that the defendant admits the execution and delivery of the policy of insurance as alleged by the plaintiff, that the building was totally destroyed by fire, and notice thereof to defendant as alleged by the plaintiff.” The fifth and sixth were given, so far as applicable, in the general charge of the court. The instructions requested were properly refused.
The eighteenth assignment of error is that the trial court erred in overruling the plaintiff’s motion for a new trial. The policy of insurance contained the following provision : “ If the building . . . become vacant or unoccupied for more than ten days, . . . then and in every such case this policy shall, without the written consent of this company'thereto indorsed thereon, become absolutely void.” The testimony was conflicting as to the exact date that the property became vacant and unoccupied, but the jury found that it was vacant on November 25, 1895, seventeen days before the loss occurred. This finding of the jury is supported by the evidence. There is no evidence tending to show that the vacancy was consented to by the insurance company. This condition of the policy is valid and binding on the plaintiff. The fact of the property remaining vacant and unoccupied for a period of more than ten days next prior to the loss, without the consent of the insurance company, exempts the defendant company from liability. (Beach, Ins., § 722; Insurance Co. v. Gibbons, 43 Kan. 15, 22 Pac. 1010.) There was no defense made or attempted to be made on the ground that “ notice in writing of said loss ” was not given. The defendant expressly admitted that it had notice that the loss occurred, and the court so instructed the jury. There were no errors of law committed at the trial prejudicial to the rights of the plaintiff in error. 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
Schoonover, J.;
This case was tried in the district court of McPherson county before a judge pro tem. on the 16th day of June, 1897, and a verdict rendered for the defendants in error. The motion for a new trial was overruled on the 24th day of June, 1897, and the following order was made by the trial judge : “And thereupon the plaintiff asked and was granted 150' days to make and serve a case-made, and the defendant given twenty days to suggest amendments thereto, and to be settled on ten days’ notice given by either party ; and a stay of execution for 150 days i's granted! the plaintiff.”
This order gives 180 days within which time the case-made must be allowed, settled, and signed. No order extending the time was made, and the case was not allowed, settled and signed until the 2d day of May, 1898, more than 120 days after the time given by the court had expired. The plaintiff in error contends that the judge pro tem. did not have the power to allow, settle and sign the case at this time.
In the opinion of the writer the objection is well taken, and is supported by the decisions of the supreme court and the former decisions of this court. (M. K. & T. Rly. Co. v. City of Fort Scott, 15 Kan. 478; Weeks v. Medler, 18 id. 425; St. L. & S. F. Rly. Co. v. Corser, 31 id. 706, 3 Pac. 569; K. & C. P. Rly. Co. v. Wright, 53 id. 272, 36 Pac. 331; A. T. & S. F. Rld. Co. v. Leeman, 5 Kan. App. 804, 48 Pac. 932; Waterfield v. Bank, 6 id. 743, 50 Pac. 971; Rhodes v. Rhodes, 6 id. 739, 50 Pac. 972; Insurance Co. v. Nichols, 6 id. 923, 50 Pac. 940.) The last case was certified to the supreme court and the order of this court dismissing the case was affirmed. (60 Kan. 856, 55 Pac. 1101.)
In the case of Debenture Co. v. St. John, ante, p. 554, 54 Pac. 798, the former decisions of this court are reviewed, and the conclusions of the majority stated by the presiding judge, as follows :
“In Waterfield v. Bank, 6 Kan. App. 743, 50 Pac. 971, and Insurance Co. v. Nichols, 6 Kan. App. 923, 50 Pac. 940, both of which are cases similar to this, we have held that the judge had no authority to settle the case made. A careful reexamination of the statute and the decisions of the supreme court upon that subject •satisfies us that the decisions in those cases are erroneous. Section 590 of chapter 95, General Statutes of 1897 (Gen. Stat. 1889, ¶ 4650), in part reads :
• “ ‘ When-the term of office of the trial judge shall have expired or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.’”
“We are now of the opinion that the proper construction of this statute is that when the term of the. trial judge expires before the time fixed for making and serving a case, he should settle the case the same as if his term had not expired; and if his term expires after the time fixed for making and serving a case, yet.if the time for settling a case had been fixed before •the expiration of his term, which time did not expire Vintil after the expiration of his term, he should also settle the case. In this case the time fixed for making and serving a case expired on August 25, but the term of the judge fro tern, expired before that time. If the term of the judge fro fern, had expired after August 25, and no time had been fixed for settling the casé while the judge was in office, he would have been without authority to settle the case. In the case of K. & C. P. Rly. Co. v. Wright, 53 Kan. 272, 36 Pac. 331; upon which this court relied in the case of Insurance Co. v. Nichols, supra, the term of office of the trial judge expired after the time fixed for making and serving the ease, and after the time fixed to suggest amendments had expired, and no notice of the time when the case would be settled had been served, nor had any time been fixed by the court or judge for settling the case. When no timéis fixed, either by the court or by notice, for the signing and settling of a case, it cannot be said that the term of office of the trial court expired before the time fixed for signing and settling the case, and we must be confined to the single inquiry, Did the term of office of the judge who tried the case expire before the expiration of the time fixed for making and serving the case? If so, he can settle the case the same as though his term of office had not expired. If his term of office expired after the expiration of the time fixed for making and serving the case, he is without authority to settle the case. We shall hereafter be governed by the conclusions reached in this case, instead of the decisions in Insurance Co. v. Nichols, supra, and Waterfield v. Bank, supra. The case, there-; fore, was properly settled by the judge fro tem. and the motion to dismiss is overruled.”
Upon this authority, the motion to dismiss is overruled.
Dennison, P. J., and Milton, J., concurring.
Schoonover, J., dissenting.
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The opinion of the court was delivered by
Milton, J.:
Appellant was convicted before a jury in the district court of Harvey county of a violation of the prohibitory law and was sentenced by the court to pay a fine of $100 and to be imprisoned thirty days in the county jail. The information charged that on the 26th day of August, 1897, the defendant “did then and there unlawfully, without taking out a permit from the probate judge of said county, bargain, sell and give away intoxicating liquor.” The defendant’s motion to quash the information was overruled, as was also his motion to require the state to file a bill of particulars.
The testimony on behalf of the state was that of two detectives, Pinneo and Dobson, who had been employed by the county attorney of Harvey county to procure and furnish evidence against persons engaged in the unlawful sale of intoxicating liquors in that county. They came to Newton from St. Joseph, Mo., early in the month of August, 1897, and Pinneo at once began to cultivate the acquaintance of appellant, who appears to have been a man of good reputation, and who had resided in Newton for twenty years, during the last thirteen of which he had acted as local agent of the Pacific Express Company. He received a stated salary, and no commissions on business done, for his services as agent. G. W. Hurst, a jeweler, occupied a portion of appellant’s office, and frequently delivered express matter for appellant, in the latter’s absence. On the 17th of August, Pinneo went into Shew’s office and made bitter complaint of the quality of whisky he was obliged to put up with in Newton, and asked Shew if he knew where any good whisky could be bought. Shew told him that some parties had recommended a certain brand of whisky sold by Dreyfus & Co., of Kansas City, Mo. After inquiring the price, Pinneo requested Shew to send there for a gallon of the whisky, and Shew thereupon wrote an order on an order-blank addressed to.Dreyfus & Co., for one gallon of the liquor, and also wrote an express money-order for $2.25, and enclosed both orders in an envelope addressed to the office of the Pacific Express Company in Kansas City, Mo. He did not deliver the .receipt for the money-order to Pinneo nor did the latter pay for the same. Shew claimed that Pinneo left the room before he had finished writing the money-order, and that, feeling confident payment would be made therefor, the transaction was completed without requiring such payment. The liquor was shipped promptly in a gallon jug and the jug in a box. Pinneo gave his name to the agent as being M. Pennington, and the receipt for the money-order and the stub, as well as the address marked on the box containing the liquor, were in that name.
Shortly after the liquor arrived in Newton, Pinneo and Dobson went to the express office and Pinneo there introduced Dobson to Shew, stating that he himself might not call for the liquor and that in that event it should be delivered to Dobson. The latter subsequently called for the package, and the same was delivered to him by Hurst, in the absence of Shew. Dobson claimed that he paid $3.40 to Hurst for the package, such payment including the price of the liquor and the express charge; while Hurst testified that the express charge was sixty-five cents and that Dobson paid in addition thereto $2.25, the amount of the money - order which had been issued and forwarded by Shew. The whisky, with the exception of a small portion which the detectives had removed from the jug, was delivered to the county attorney and was afterward exhibited on the trial. After Dobson had stated that he paid $3.40 when the package was delivered to him, he qualified his statement somewhat and mentioned that he had made a memorandum of the amount in a book which he then held in his hand. Upon examination he stated that he was mistaken, and that the memorandum was in another book. Counsel for defendant asked the witness to describe the book in which the memorandum was made, but upon objection being made by the state’s attorney to the question such objection was sustained. The court sustained the state’s objection to the following question asked by counsel for defendant of the witness Pinneo on cross-examination : “How much did he (meaning the county attorney) pay you?” The court also refused to give an instruction which was asked for by the defendant concerning the credibility of witnesses whose connection with the prosecution was that of spotters or detectives, and failed to cover that phase •of the case in any of the instructions given.
The court gave the following, among other instructions, the defendant excepting :
“8. If you believe from the evidence, beyond reasonable doubt, that the express company, of which the •defendant is admitted to be an agent, furnished or procured the said liquor itself and afterwards sold and delivered the same to the witness Pinneo, or to .another person authorized by Pinneo to receive it, and that the defendant knowingly aided and assisted the said express company in the transaction, you should find the defendant guilty as charged, notwithstanding the said express company may have purchased the said whisky solely for the purpose of reselling and delivering the same to the witness Pinneo.
“9. If you find from the evidence, beyond reasonable doubt, that the defendant in the transaction relied upon by the state for conviction acted as the agent of the firm of H. Dreyfus & Co., or that the express company of which defendant is agent acted as the agent of said firm of H. Dreyfus & Co. in said transaction, and the defendant knowingly aided and assisted said express company in the transaction, and that the said whisky was sold by the said firm of IT. Dreyfus & Co. through and by said express company ■or the defendant as agent of said H. Dreyfus & Co., you should find the defendant guilty as charged in the information.”
Counsel for appellant have made thirty-nine specifications of error and have discussed the major portion of them. We shall consider only four of the alleged errors.
One of the most important questions on the trial was that relating to the amount paid by Dobson for the express package which contained the liquor. He testified that he paid $3.40 to obtain the package, while Hurst stated that the amount paid was $2.90.. As the money-order was for $2.25 and the express charge sixty-five cents, Shew profited by the transaction to the extent of fifty cents, if the testimony of Dobson were accepted as true. On the other hand,. Shew claimed to have made no profit whatever and to-have acted in the premises merely to accommodate Pinneo. It thus became very important that the state-should clearly prove the amount paid by Dobson, and as he based his recollection in a large measure on a-memorandum, a very wide latitude should have been allowed to the defendant upon cross-examination in respect to the alleged memorandum. We think the-court erred in sustaining the objection to the question asked of the witness concerning the memorandum, book.
' The deception practiced by Pinneo toward Shew, as-a result of which this prosecution was brought, was of such character that it cannot meet with commendation on the part of this or any other court. In view of his peculiar relation to the case, Pinneo should have-been required to disclose fully the pecuniary interest-he had therein. He was employed to discover violations of the prohibitory law and to procure evidence of such violations. It is not to be presumed that he-was engaged by the county attorney to create a state-of facts which might indicate that the law had been violated. It was entirely proper to ask the witness how much the county attorney paid him for.his services. The jury should have been fully advised as to the motives and inducements which influenced his actions. In a similar case the supreme court of Iowa has said (State v. Carroll, 85 Iowa, 1, 51 N. W. 1159):
“The system of detection by means of false pretenses, lying and deceit on the part of the detective ■can only be justified, if justified at all, by the fullest and most searching examination of the motives and inducements under which he acts. No party acting in that capacity should be allowed to keep back or •conceal any fact which bears upon the motives by which he is controlled in the pursuit of his employment.”
In view of the fact that the state’s case rested entirely on the testimony of Pinneo, who suggested the transaction which he afterward denounced as a crime, .and of Dobson, who figured in the transaction, and in view of the further fact that they were both paid for their work as detectives in this case, we think the jury should have been properly warned and cautioned in respect to their credibility as witnesses. The decision in The State v. Keys, 4 Kan. App. 14, 45 Pac. 727, is not only not opposed to,this view, but sustains it. From the opinion, we learn that the trial'court had instructed the jury to scrutinize closely the testimony of any one who acted in the transaction as a •detective or spotter, and who may have had a motive for testifying to illegal sales when none was in fact made. The proposition now before us is very fully •discussed by the supreme court of Colorado in the •case of Conner v. The People, 4 Colo. 134, 33 Pac. 159. The views there expressed appear to be eminently proper. Evidently the trial court overlooked the importance of this phase of the case. Its refusal to give the instruction No. 2, asked for by the defendant, was error.
Instructions 8 and 9 given by the trial court cannot be upheld. As we view the record, there were no facts indicating that the express company of which defendant was an agent procured the liquor and afterward sold and delivered the same to Pinneo or to another person authorized by him to receive it. The defend ant was not charged with a violation of the provision of the prohibitory law relating to officers, agents or employees of a railroad company, express company, or other common carrier, but was charged generally with unlawfully bartering, selling and giving away intoxicating liquor. We are unable to say that the jury might not have been influenced by the said instructions.
In all respects except the foregoing the case appears to have been very carefully tried. For the reasons we have stated, 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
Milton, J.:
Appellant was convicted in the district court of Bourbon county on one count of an information containing three counts charging' unlawful sales of intoxicating liquors at the dates therein named. Fifty days after the information was filed the defendant filed a plea in abatement of the same on the ground that at the time the present action was begun she was under bond to appear before a justice of the peace of the city of Fort Scott, in Bourbon county, to abide the order of said court in a criminal action on the same charges as those set forth in said information. The state’s demurrer to this plea “ for the reason that said plea shows no sufficient grounds to abate said action ” was sustained by the court. JMo motion for a new trial appears in the record. Practically all of the alleged ex'rors relate to matters occurring on the trial and cannot be coxisidered.
The plea in abatement did not show that the action which was pending before the justice of the peace at the time the information was filed was pending and undetermined at the tixne the plea itself was filed. It was, therefore, clearly insufficient, and the case falls within the doctrine declax’ed in The State v. Curtis, 29 Kan. 384.
The verdict is sustained by competent evidence, and the judgment following the verdict must, in the absence of a motion for a new trial, be held proper, and it is accordingly affirmed.
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The opinion of the court was delivered by
McElroy, J.:
This action was brought by Fred. Keil and others, as plaintiffs, against Immanuel’s Gemeinde, a religious corporation, Fred Nuss, Jacob Strecker, and others. The plaintiffs brought the action for themselves and about 147 others, all of whom are, as are the defendants, members of Immanuel’s Gemeinde. The church, at the time of the commencement of the action, was divided into two factions, each of which claimed to act for the church organization within the constitution and purposes of the organization. A trial was had before the court, without a jury. The court made special findings of fact and conclusions of law, and rendered judgment that the property of the society be divided equally between the plaintiffs’ faction and the defendants’ faction. It also ordered" that, in case an equitable division of the property could not be made, it be sold as upon execution to the highest bidder for cash ; that the money realized from the sale be applied, first, to the payment of the costs, and that the surplus be divided equally between the two factions. It was adjudged that the plaintiffs and defendants each pay one-half of the costs. To all of this, defendants excepted,, and a motion for a new trial was filed, argued, and overruled, and the defendants present the case to this court for review.
The first assignment of error is that the court erred in overruling the defendants’ demurrer to the amended petition, and in support of this it is contended that the petition fails to state a cause of action, for the reason that the trustees of the defendant corporation, as such trustees, are not named as parties. This contention is not tenable. It is true that there is no allegation in the petition that any given number of the parties plaintiff or defendant are trustees, yet the trial court finds that the defendants, Fred Nuss, Jacob Strecker and John Fred. Steineret are, and were at the commencement of this action, acting trustees of the defendant corporation. The argument here made might have been very proper on a motion to make the petition more definite and certain. The action was brought to recover the possession of the church property, including the lands upon which the church buildings were located. The plaintiffs asked that in case they were not entitled to recover the actual possession of the property, they have other equitable relief. They claimed that they were deprived of the use and occupancy of the property by the defendants ; that the property was procured and dedicated for the use of the congregation to teach and practice the tenets and doctrines of the Evangelical Lutheran faith as taught by the synod of Iowa; that the defendants’ faction had excluded plaintiffs from the use of such property, by refusing to permit a preacher from the Iowa synod to occupy the pulpit of the church and by the employment of preachers who teach the faith and doctrines as taught by the synod of Missouri; that the teachings and the tenets of faith and doctrine as taught by the synod of Missouri are and were fundamentally different from those taught by the synod of Iowa; and that such occupancy and use of the property constituted a conversion of the property from its intended use. The petition states a cause of action and the court properly overruled the demurrer. For the same reasons the court properly overruled the objection to the introduction of testimony, which is set out as the second assignment of error.
The third, fourth, fifth and seventh assignments of error relate to the action of the trial court in overruling the objection of defendants to the introduction of alleged incompetent testimony concerning the religious beliefs of members of Immanuel’s Gemeinde, and to the action of the court in refusing to strike out certain testimony. The alleged incompetent testimony is not set out in the brief of the plaintiffs in error, as required by the rules of practice of this court; however, we have examined it. It was competent for some purposes. It tended to show that there was an irreconcilable difference in the views held by the two factions, and it also tended to show the purpose of the donors in conveying the property to the church. There was, however, some of the testimony which was incompe tent; for instance, the testimony tending to show that, under certain circumstances, Immanuel’s Gemeinde would belong to the Iowa synod. The findings of fact show that such testimony in no manner influenced the judgment of the court. The error in the admission of the evidence was therefore immaterial, as it did not affect the substantial rights of the defendants.
It is further contended that the court erred in overruling defendants’ demurrer to the evidence. The plaintiffs in error fail to point out, in their argument or brief, any averment of the petition which is not supported by some competent evidence. We have examined the record at length and are unable to find any substantial allegations or averments of the petition which are not supported by some testimony. Where there is some competent evidence tending to prove all of the material allegations and averments of a petition which states a cause of action, a demurrer to such evidence should be overruled. The court properly overruled the demurrer to the evidence.
It is next alleged that the court erred in its conclusion that Immanuel’s Gemeinde was of the Lutheran faith and doctrine as preached and taught by the synod of Iowa and other states. Immanuel’s Gemeinde is a corporation organized under the laws of the state of Kansas for religious worship according to the Evangelical Lutheran faith. The plaintiffs’ faction consists of about forty members who are heads of families, and defendants’ faction consists of about an equal number. Both of these factions and all the members thereof are members of the defendant church. It appears that the synod of Missouri and the synod of Iowa are somewhat antagonistic in faith and doctrine, and that each of these synods professes to be of the Evangelical Lutheran faith. Immanuel’s Gemeinde in 1885, at a public meeting held for that purpose, adopted a written constitution, but this constitution is silent as to which synod the church desired to become attached to, if to either. About October, 1889, the congregation held a meeting and discussed the question of ways and means to procure land upon which to erect a church building, but nothing was said at that meeting as to whether the property and influence of the congregation should be used to further the teachings and tenets of faith as taught by any particular synod. From some time in 1885 up to the year 1894,- the ministers located as pastors to such congregation were from the Iowa synod. The question of an alliance with some synod was presented to the congregation at different times prior to the commencement of this action, but no formal action in that respect was ever taken. A portion of the funds used in procuring the church property was subscribed on the representations of the parties soliciting the same that the church would be allied with the Iowa synod. The corner-stone of the church was laid and the church building dedicated with the services' prescribed by that synod. At a time when charges had been preferred against a minister and some one or more of the church members, a trial was had before a minister of the Iowa synod. Funds were at various times after 1885 collected by the congregation and forwarded to the Iowa synod for use in its charities. From the record, we are of the opinion that the court properly found that the congregation was of the Lutheran faith and doctrine as preached and taught by the synod of Iowa.
It is nest contended that the court erred in its conclusion that the property of Immanuel’s Gemeinde should be divided equally between the plaintiffs’ fac tion and the defendants’ faction of the church. The record discloses the fact that the Immanuel’s Gemeinde congregation was divided into two factions, about equal in number. The division was apparently permanent and irreconcilable. The plaintiffs’ faction, some time prior to the commencement of this action, at a time when there was no minister located with or preaching for the congregation, solicited the president of the Iowa synod to send a preacher. In pursuance of that request, Rev. Mueller was sent to the congregation from the Iowa synod. The defendants’ faction at this time was in control of the church buildings, and refused to permit plaintiffs’ faction, with Mueller, to use the same for religious services. About this time the congregation, by a majority vote, procured the services of Rev. Kleinhans, from the synod of Missouri, against the wishes of the minority, plaintiffs’ faction, and installed him as pastor of the church. There appear to be fundamental differences in the doctrine and tenets of faith between the synod of Missouri and the synod of Iowa. .These differences appear to be recognized by the respective synods as fundamental. The trial court concluded that the property in question belonged to the congregation ; that neither the plaintiffs’ faction nor the defendants’ faction had forfeited any rights to the property; that the defendants had a legal right to, and did, employ a minister from a synod of a different-faith from that which the congregation originally held ; that the plaintiffs’ faction of the congregation was a minority, but adhered to the original faith and doctrine taught by said congregation when the property was procured; that neither party thereby violated the trust or forfeited any rights to the common property ; and that, inasmuch as the two factions are nearly equal in number, the property should be divided between them. In adjudging a division of the property, the trial court committed no error of which the plaintiffs in error have a right to complain. The defendants in error are satisfied with the judgment of the court in this regard. There were no substantial errors committed prejudicial to the rights of the plaintiffs in error, and therefore 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
Wells, J.:
Without cumbering the record with a full review of all the questions argued in this case, it is sufficient to say that we deem it necessary to consider but two questions : (1) Did a tenancy from year to year exist between the parties prior and up to March 15, 1895? (2) Was the correct measure of damages applied by the court ?
The undisputed evidence shows that a tenancy for one year ending March 15, 1892, was created by the contract dated February 18, 1891, written and signed by the plaintiff below and accepted by the defendant below and his partner. Under the option contained in said contract this tenancy was continued another year. As this was nearing completion some correspondence between the parties was had, in which the’ tenant was given the alternative of vacating the premises at the end of that year or paying $1400 per year for the use of the same. This proposition was accepted by the tenant by remaining and paying the rent as demanded for the next two years, or until March 15, 1895. On March 12, 1895, the defendant in error wrote the plaintiff in error giving him notice of . a termination of the tenancy on April 15,1895, assuming that he occupied it as a tenant from month to month. This is the principal question in the case. The argument of the plaintiff in error, that the original contract was either for a less period than one year or void under the statute of frauds, is not tenable for the reason that if it was void under the statute of frauds, that would make no difference after its terms had been complied with. (Bard v. Elston, 31 Kan. 274, 1 Pac. 565.) Nor ■would the fact that it was not signed by the lessee. There was an express contract by the year, and paragraph 3612, General Statutes of 1889 (Gen. Stat. 1897, ch. 121, § 3), does not apply.
Under the facts, we are convinced that the plaintiff in error, prior to March 15, 1895; occupied the premises as a tenant from year to year, and when he held over his term he is presumed to have elected to remain for another year, and there is nothing in the negotiations referred to which negatives that presumption.
The remaining question is, Was the correct measure of damages applied? There was no substantial conflict of evidence, and we think that it was sufficiently shown that the plaintiff used reasonable efforts to make the damages as light as possible, and that he was actually damaged to the amount of the judgment.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
McElroy, J.:
The defendant in error, Robert Mc-Crie, on May 3, 1894, recovered a money judgment against R. D. Tucker. Afterward he caused execution to be levied on the south half of the northwest quarter of section 17, township 6, range 18, in Atchison county, as the property of Tucker, subject to a mortgage of $1500 held by R. A. Park. At the execution sale McCrie purchased the premises for the sum of $834, which he paid to the sheriff. After satisfying the execution, there remained in the hands of the sheriff $292.86. Motions for the confirmation of the sale were filed by McCrie, Sheriff Larkin, and Tucker. The sale was confirmed and the court ordered the surplus in the hands of the sheriff to be paid to McCrie. A motion for a new trial was overruled, and the case is brought to this court for review.
The only question presented is on the order of the trial court in directing the surplus in the hands of the sheriff to be paid to McCrie. The record discloses that Tucker, the defendant in the execution, was the owner of the legal title to the lands, and that on October 9, 1889, he executed to C. H. Ellsworth an instrument in writing, in effect an equitable mortgage. This instrument was filed for record, and McCrie had actual notice thereof at the time of his purchase at the execution sale. Prior to the confirmation of the sale McCrie procured from Ellsworth, in consideration of $1100, a quitclaim deed to the premises. The defendant in error contends that Ellsworth had a valid subsisting claim, secured by an equitable mortgage ; that he could abandon his lien and pursue his personal remedy; that McCrie, as assignee of Tucker, succeeded to all his rights ; and that therefore the only question in this case is one of practice. . Can this surplus be subjected to the payment of the Ellsworth claim in the hands of McCrie by motion in the original case?
It appears to us wholly unnecessary to theorize as to what were the legal rights and remedies of the mortgagee or his assignee. There was no sufficient proceeding had or pending in the trial court on which to base-a judgment on the Ellsworth claim against Tucker. All the parties to this action asked for a confirmation of the sale. The sheriff satisfied the writ, of execution, with interest and costs. What more could McCrie demand? It then became the duty of, the sheriff, on demand, to pay the surplus to the defendant in the execution. (Jenkins v. Green, 22 Kan. 562.)
“ If on any sale made as aforesaid there shall be in the hands of the sheriff or other officer more money than is sufficient to satisfy the writ or writs of execution, with interest and costs, the sheriff or other officer shall on demand pay the balance to the defendant in execution or his legal representatives.” (Gen. Stat. 1889, ¶ 4564; Gen. Stat. 1897, ch. 95, §469.)
The judgment must be reversed, and, as there is no controversy on the facts in the case, the trial court will be directed to order that the surplus in the hands of the sheriff be paid to the defendant Tucker.
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The-opinion of the court was delivered by
McElroy, J.:
The county attorney filed an information in the district court of Osborne county, charging the defendant Ed. Collins in eight counts with the unlawful sale of intoxicating liquors, and in the ninth count witli maintaining a common nuisance under the prohibitory law. The defendant was arrested on a warrant issued thereon, and thereafter, on the 27th day of September, 1897, entered into a .recognizance for his appearance at the next term of court. At the October, 1897, term the case was continued, and the defendant entered into a recognizance for his appearance at the February, 1898, term. At the February term the defendant filed his motion to quash the information and to compel the county attorney to attach thereto the testimony of witnesses examined before him, which motion was overruled, the defendant excepting. Thereafter the defendant waived arraignment and pleaded not guilty. He was convicted on the sixth count of the information, and was sentenced to pay a fine of $100 and to be confined in the county jail thirty days.
The motion to quash the information was based on the grounds that the information was not prope7']} verified ; that the county attorney had no personal knowledge of the facts alleged therein; that prior to the filing of the information the county attorney had examined witnesses touching their knowledge of the violations of the prohibitoi'y law by the defendant' and that such testimony should be attached to the information. The information was properly verified ; it was verified by the positive oath of the county attorney. This was sufficient to authorize the issuance of the wa7’rant. On the hearing of the motion, it was agreed "that no written statements of evidence were taken before the county attorney before the commencement of this action or the filing of the complaint.” The defendant offered to introduce evidence in support of his motion to the effect that the county attorney had no personal knowledge of the facts alleged in the informa tion. This evidence was properly rejected. Before the motion to quash was filed, the defendant had entered into a recognizance for his appearance at a subsequent date, whereby he waived all irregularity, if any, in the warrant and arrest. (The State v. Longton, 35 Kan. 375, 11 Pac. 163; Juncton City v. Keeffe, 40 id. 275, 19 Pac. 735; The State v. Dugan, 52 id. 23, 34 Pac. 409.)
The ruling of the trial court on the evidence could not prejudice the rights of the defendant if the motion to quash the information was properly overruled. Thére is no complaint made as to the ruling of the court on the motion to quash. The information was verified under the forms of law by the public prosecutor. Such a verification is sufficient as a basis for the issuance of a warrant.
Complaint is made that the court erred in overruling the defendant’s motion to strike out the following testimony of John Cole as incompetent:
“ Q,ues. When didyou next get anything there from Mr. Collins, if any? 'Ans. Well, I should judge it was June ; somewhere along there.
“ Q,. What did you buy that time? A. Bought some beer.
"Q. Did you get it in a bottle or glass. A. Got it in a glass.
“Q,. I now ask him to describe as I did in the question, what was in the room, who was in the room at the time you purchased this liquor referred to? A. The second time?
“ Q,. Yes, sir; the second purchase. A. Why, I think Mr. Kelly was in at that time.
“ Q,. Who did you purchase it from? A. I think I got it that time from Mr. Kelly.
“Q,. Was Collins present at that time? A. I can’t say; I do n’t recollect.”
There is nothing in the record to show what rela tion, if any, Kelly sustained to the defendant. To hold the defendant responsible for the sale made by Kelly, it would be necessary to show that the defendant was, in some manner, responsible for his acts. In the absence of any showing, it cannot be presumed that the defendant was in any manner responsible for the unlawful or wrongful acts of Kelly. This testimony was incompetent and should have been stricken out; it constitutes the only element of uncertainty entering into the trial of the case. The court erred in overruling the defendant’s motion to strike out this evidence.
Complaint is made also that the trial court erred in not requiring the state to make its election on the sixth count more definite and certain; that the election as made was too vague, indefinite and uncertain under the evidence. When the state had concluded its evidence, the defendant filed a motion that the prosecution elect on which sale it would rely for a conviction on the several counts of the information. The state elected as to the sixth count, as follows : “The state further relies on the sixth count, being the second sale made to and testified to by John Cole, during the early part of July, 1897, or last of June, 1897.
The testimony of John Cole as to the second sale is as follows :
“ Ans. The first I ever got there was two bottles of beer; about March or April, 1897, I bought one from Mr. Collins.
‘ ‘ Ques. When did you next get anything there from Mr. Collins, if any? A. Well, I should judge it was June ; somewh.eres along there.
“Q,. What did you buy that time? A. Bought some beer.
“ Q,. Did you get it in a bottle or glass? A. Got it in- a glass.
“ Q,. I now ask Mm to describe, as I did in the question what was in the room — who was in the room at the time you purchased this liquor referred to? A. The second time?
“ Q. Yes, sir; the second purchase. A. Why, I think Mr. Kelly was in at that time.
“ Q,. Who did you purchase it from? A. I think I got it that time from Mr. Kelly.
“Q,. Was Collins present at that time? A. I can’t say; I do n’t recollect.
“Q,. You may state when the third time was, to the best of your remembrance, you bought liquor from Collins? A. I can’t say when the third time was ; I didn’t keep 'any triick. It was as early as July — I think it was along in the forenoon ; Ed. Collins was there ; I stayed long enough to get a drink and went out.”
G ross-examinati.on.
“A. The second time I was ever in there, I should judge, was the 1st of March or April; it was in the evening, about eight o’clock. There were several persons in the room. Collins was helping dish out beer ; I know I got one bottle from him. The next time I was there in that place of business I think was in the fore part of June; it was along in the forenoon some time. I stayed in there that time five or ten minutes. I don’t know that Ed. Collins was there. I think Tom Kelly was there.
’ “ Q,. When was the next time you was in there ? A. Well, I think that was some time in June or July, fore pai’t, I think ; some time in June, I shoxxld say ; yes, some time in June.
“ Q,. What was it yoxx purchased the third time, if you remember; that is, what kind of liquor? A. I think it was a glass of whisky I got, to the best of xxxy knowledge. I got it from Mr. Collins.”
The first salé was made about Apx’il, 189.7, by Collins ; the second sale was made by Kelly in June ; the thix'd sale was made by Collins in June or Jxxly. There is nothing in the x-ecord to show what, if any, relation Kelly sustained to Collins. It appears to have been left as a mere surmise, or conjecture, as to whether the defendant was anywise responsible for the sale made by Kelly. The third sale was made by defendant, and appears to have been whisky. The county attorney in his brief says that the prosecution elected to rely for a conviction under the sixth count on the second sale by Ed. Collins to and testified to by John Cole during the early part of July or last of June, 1897, the same being whisky ; and that it was so understood by the jury, the court and all concerned. It may be that the county attorney so understood the election, but the sale of whisky was the third sale and not the second. This is stated by the witness, both in his direct and cross-examination ; so that if the state intended to rely on the sale of the glass of whisky, then it was the third sale on which the state relied.
If the incompetent testimony of Cole had been stricken out, as it should have, been, this element of uncertainty would have been eliminated. Who can say that all of the jurors understood the election to apply to the third sale, when it specifically states the second? The language of the election is : “The state further relies on the sixth count, being the second sale made to and testified to by John Cole, during the early part of July, 1897, or last of June, 1897.” Some of the jurors may have thought the election referred to the sale of beer made by Kelly, while others of the jurors may have thought it referred to the transaction which included the sale of the glass of' whisky. By this process a verdict might have been, reached without all of the jurors consenting and. agreeing on the same proposition. If five of the¡ jurors took the election literally to mean the second! sale, their judgment would certainly be based on the transaction between Kelly and the witness Cole, and if the other seven jurors took the election, as the county attorney insists, to refer to the sale of the glass of whisky by the defendant Collins, then we would have a verdict of guilty without the concurrence of all of the jurors.
In a criminal trial, where the state has offered evidence tending to prove several distinct and substantive offenses, it is the duty of the court, upon motion of the defendant, to require the prosecution to elect, before the defendant is put on his defense, with reasonable certainty, on which particular transaction the prosecution will rely for conviction. (The State v. Schweiter, 27 Kan. 500; The State v. Crimmins, 31 id. 376, 2 Pac. 574; The State v. Moulton, 52 id. 69, 34 Pac. 412; The State v. O’Connell, 31 id. 383, 2 Pac. 579; The State v. Guettler, 34 id. 582, 9 Pac. 200.)
From what we have said, it follows that the court erred in overruling the defendant’s motion for a new trial, for the reason that the court refused to strike out the incompetent testimony, and for the failure on the part of the court to require the state to make its election more definite and certain.
The judgment of the court below will be reversed and cause remanded for a new trial.
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The opinion of the court was delivered by
MASON, J.:
Grace Nixon was granted a divorce from Ira Nixon. He appeals from a judgment for alimony on the ground that, being in excess of the value of the property he then owned, it was necessarily based upon his earning capacity, and was therefore unauthorized.
The appellant contends that with the granting of the divorce the marital relation, with all obligation on the part of the husband to support the wife, is absolutely terminated, and she can have no claims upon his future accumulations; that the statute embodies this view in the provision that the allowance for alimony shall be made out of the husband’s property. While it is true that after the granting of a divorce the husband owes no duty to the wife except so far as it may be preserved or imposed by the decree itself, alimony is allowed, in a measure at least, in lieu of the support upon which she had a right to rely when she entered into the married state, or as compensation for its loss. (2 Bishop on Marriage, Divorce and Separation, §§ 1052-1054.) “The doctrine of alimony is based upon the common-law obligation of the husband to support his wife, which is not removed, by a divorce obtained by her for his misconduct.” (14 Cyc. 743.) Although what is received by the wife in a division of property is commonly spoken of as alimony, a distinction may obviously be made. Thus it has been said of alimony:
“The foundation for its allowance is the duty of the husband to provide for the wife’s support; and where a divorce or separation occurs because of 'his fault, the duty of providing for her maintenance continues, and the court by an allowance of alimony compels its performance. A division of the property of the parties is an essentially different thing.” (Johnson v. Johnson, 57 Kan. 343, 348, 46 Pac. 700.)
The great weight of authority supports the view that, in determining the amount of alimony, the court may take into account the earning capacity of the husband as well as the value of the property he has accumulated. (3 Enc. L. & P. 81, 84; 14 Cyc. 772, 773; 1 R. C. L. 930-934.) Only two of the decisions' collected in the notes to the texts cited are explicitly to the contrary. (Feigley v. Feigley, 7 Md. 537, 563; Jackson v. Burns, 116 La. 695.) A third case (Wilson v. Wilson, 67 Minn. 444, 448) which announced the same rule was controlled by a specific statutory provision to the effect that the> aggregate award to the wife should not exceed one third of the husband’s personal estate and the value of her dower; this was amended shortly after that decision (Gen. Laws Minnesota, 1901, ch. 144, §1), since which time the general rule has prevailed in Minnesota. (Haskell v. Haskell, 119 Minn. 484.)
The language 'of our own statute, if construed somewhat literally, might seem to lend color to the appellant’s contention. It reads:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden name if she so desires, and also to all the property, lands, tenements and hereditaments owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony out of the husband’s real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable.” (Civ. Code, § 673, Gen. Stat. 1915, § 7581.)
Inasmuch as the allowance to the wife, although called alimony, is spoken of as being made “out of the husband’s real and personal property,” there is room for the argument that his capacity for future accumulation — his present earning power — is not to be taken into account. The real reason for the use of the expression quoted, however, was doubtless to indicate clearly that the amount allowed as alimony should be taken from the husband’s own resources — that it should be deducted from his share of the property (real as well as personal) after it had been divided and not from the common fund before division. It has been said in a case arising under a statute essentially similar in the respect referred to:
“We should he very unwilling to adopt a construction of the statute which would exclude the wife, upon divorce, from all right to support from the income of the husband at the time of divorce or from his estate subsequently acquired. There may well be cases in which the actual estate of the husband, at the time of divorce, may be nominal only, and his income ample; cases in which the husband, without adequate estate or income, at the time of divorce, may afterwards acquire competent estate or income, or both. During coverture, the wife would be entitled to support out of these; and we do not understand that, upon divorce, she should lose her right. The statute clearly recognizes the continued claim of the wife to support from her husband, notwithstanding the divorce, except in case of her adultery. It is admitted that the statute provides for it, out of any estate possessed by the husband at the time of divorce; it is denied only as to his income: If the power to provide for the wife out of the husband’s income were wanting in the statute, when his estate is inadequate and his income adequate, it would evidently be a casus improvisus: an oversight in the letter of the law, against its spirit and intention.
“Our statute of divorce recognizes the natural tie and consequent obligation, and proceeds upon them, in providing for the claim of the wife, founded in marriage, to support from the husband, after divorce. We cannot regard it as a hard provision, but as a remedial and beneficent statute, for protection of natural claim founded on natural relation. And we shall not confine it to the narrow application contended for, against its spirit and intent, if the language used be fáirly susceptible of larger and more liberal construction.
“The estate intended in section 24 must be understood as an estate applicable to the payment of alimony. The words estate and alimony in the section are not only associated within the rule, noscitur a sociis, to be understood in a kindred sense; they are correlatives, dependent one on the other for effect, and should be understood in a corresponding sense. We are not considering division of estate, but alimony proper. The correlative estate must be intended as an estate available to the payment of the correlative alimony. This seems to disregard actual estate not yielding income, and implies income however accruing, whether from estate proper, or employment of both.
“We have therefore no difficulty in holding, on principle and authority, that alimony may always be based on the husband’s income, at the time of divorce and afterward.” (Campbell v. Campbell, 37 Wis. 206, 213, 214, 218, 219.)
The same interpretation of the phrase “the husband’s estate” has been thus indicated:
“But while alimony is commonly defined [as] ‘a proportion of the husband’s estate,’ yet the duty of a husband to maintain his wife does not depend alone upon his having visible tangible property. While the parties are living together they are bound to contribute by their several personal exertions to a common fund, which in law is the husband’s but from which the wife may claim support. If she is compelled to seek a divorce on account of his misconduct, she loses none of her rights in this respect, only she is to draw her maintenance in a different way; that is under a decree for alimony, based, if he has no property, upon his earnings or ability to earn money.” (Bailey v. Bailey, 21 Grat. 43, 57.)
A later case in the same jurisdiction is cited in support of the appellant’s theory, but it does not purport to modify the earlier declaration, 'and its circumstances were peculiar. (Cralle v. Cralle, 79 Va. 182.) There a divorce was granted at the suit of the husband, upon the charge of abandonment, the wife making no appearance, being served by publication. The decree reserved the question of alimony. Two years later the wife, upon a sufficient showing for a vacation of the earlier judgment, asked merely for an allowance for support out of the plaintiff’s estate. It was held that such an allowance should be based on the property he owned at the time the divorce was granted, disregarding such as he had since acquired. In the following cases, not referred to in the foregoing citations or notes thereto, the earning capacity of the husband is treated as a matter to be considered in fixing the amount to be allowed as permanent alimony: Cooper v. Cooper, 64 Wash. 219; Olmstead v. Olmstead, 85 Conn. 478; Blair v. Blair, 131 Mo. App. 571; McAndrews v. McAndrews, 31 Pa. Super. 252; Dietrick v. Dietrick, 88 N. J. Eq. 560.
We regard the prevailing practice by which the husband for-whose fault a divorce is granted is required to make provision for the future support of his wife out of the proceeds of his personal exertions, if he is unable to do so out of the property already accumulated, as in keeping with natural justice and with the spirit and purpose of the statute; and we hold that the language relied upon by the defendant may reasonably be interpreted, and therefore should be interpreted, as consistent therewith.
The appellee contends that the amount allowed her was too small, and- asks that it be increased. We find no basis for a claim that the trial court abused its discretion in that respect.
The judgment is affirmed.
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' The opinion of the court was delivered by
Dawson, J.:
The plaintiffs sold and shipped for delivery to the city of Syracuse two electrical transformers. The defendant, Roy W. Inglitt, who was then the superintendent of the city’s lighting system, had ordered the transformers without authority, and he received them from the railway carrier and unlawfully converted and sold them and pocketed the proceeds.
About the same time the city discovered that the defendant was short in his official accounts, and required him to make arrangements to settle. On November 5, 1918, he gave the city a warranty deed to a house and some lots, with the understanding that when he paid his defalcation to the city the property should be reconveyed to him. Inglitt’s deed to the city was recorded on December 5, 1918. Early in 1919, the defendant paid the city in full; and on January 17, 1919, the city executed a reconveyance of the property to Inglitt; but ere then he had left the state, and the deed from the city to him was not recorded until June 10, 1919.
On March 24, 1919, the plaintiff filed suit to recover the value of the transformers, and attached the house and lots as the property of Inglitt. However, ere then, a quitclaim deed from Inglitt to his attorney, H. P. Jones, dated November 4, 1918 — the day before Inglitt’s warranty deed to the city was executed — was filed for record, March 5, 1919.
In plaintiff’s reply to the answer of the interpleader it was alleged that on March 25, 1919, a warranty deed from H. P. Jones 'and wife, conveying the property to one William C. McNitt, was filed for record in the office of the register of deeds; but plaintiff also alleged in that connection that Jones could not rightfully convey the property to McNitt.
On March 24, 1919, the same day the property was attached by plaintiff, Jones was allowed to interplead, and he answered alleging that “on the seventh day of March [no year stated], and for many days prior thereto, he was the owner by title in fee simple” of the disputed property. He also alleged, rather loosely, that he was in lawful possession of the property, and that when the property was attached by plaintiff, it knew “full well that said interpleader was the owner of said property.” Jones also filed a motion to dissolve the attachment, alleging—
“That the property attached and held by the sheriff is the property of this affiant, bought for a valuable consideration, and that said property should be released.”
The parties submitted their evidence, and the attachment was dissolved. Plaintiff appeals.
The principal errors assigned will be noted. It does not appear that any prejudice to plaintiff occurred in the trial court’s disposition .of this case on the motion to dissolve the attachment rather than upon th'e issues made by the Jones’ interplea. The issues were substantially the same on the motion as they were on the interplea. The parties adduced all the material evidence available. There is no complaint that any evidence was excluded. It was not suggested in the trial court that a jury should be called to determine the issues of fact. While the affidavit of the mayor might not have been competent unless filed and served in compliance with the civil code if the cause was tried on the interplea (Business Blocks Co. v. Gregory, 102 Kan. 33, 169 Pac. 191), yet here the mayor was also called as a witness and testified personally for the plaintiff, and his affidavit was but a summary of his oral testimony.
It is true that the pleadings of Jones, the interpleader, were loosely drawn. But there was no motion to make them more specific, and the record does not show that they were subjected to any formal objection in the trial court. It is, therefore, too late to raise such objection now. (Moore v. Wade, 8 Kan. 380, syl. ¶ 4; Wilson v. Fuller, 9 Kan. 176, syl. ¶ 9; Nicklisson v. Holman, 17 Kan. 22; Byington v. Comm’rs of Saline Co., 37 Kan. 654, 16 Pac. 105; Board of Education v. Jacobus, 83 Kan. 778, syl. ¶ 2, 112 Pac. 612.)
Coming, then, to the appellant’s main contentions, that the demurrer to the interpleader’s evidence should have been sustained and that the evidence showed that the property belonged to Inglitt at the time it was attached, it would seem that the appellant is somewhat confused in its effort to apply the general rule that an after-acquired title by a grantor does not inure to the benefit of his former grantee under a quitclaim deed. That is a sound and rational rule, but it has no relation to the present case. The city could have invoked that rule. A later grantee of Inglitt, after the reconveyance by the city to Inglitt, could invoke that rule. Such a grantee could also invoke the rule which protects junior grantees against senior grantees who withhold their deeds from record and as to whom no notice of possession is disclosed. Inglitt’s deed to Jones dated November 4, 1918, was perfectly good as between themselves. It was not good as against the city’s deed of November 5, 1918, since the city had no notice. It would not be good as against a later grantee of Inglitt, who should take without notice, after the city reconveyed to Inglitt.
But attachments and garnishments proceed on a radically different theory. They only seize the property of the debtor, and never reach property which the debtor, in good faith, has transferred or pledged to another. (Eggers v. Ross, 103 Kan. 812, 176 Pac. 655, and citations.) To successfully maintain its attachment of March 24, 1919, it would have been necessary for appellant to show that the quitclaim deed of Inglitt to Jones, dated November 4, 1918, and recorded March 5, 1919, was fraudulent or otherwise a nullity. Appellant attempted to do this. Indeed, if the scant evidence to that effect had convinced the trial court, this court would have sustained its finding and judgment thereon. (Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 786.)
The deed to the city was in effect a mortgage (Moody v. Stubbs, 94 Kan. 250, 146 Pac. 346), and while the latter, during its existence, did displace Jones’ unrecorded, earlier, quitclaim deed, it did not wholly vitiate it; and. upon the satisfaction of' Inglitt’s obligation to the city and the city’s reconveyance to Inglitt, Jones’ deed became once more the paramount title to the property; and, as if to prevent its subsequent displacement again by any claim by anybody against Inglitt, he, on March 5, 1919, recorded his deed of November 4.
There was an allegation in plaintiff’s reply that Jones had conveyed his title to William McNitt. The abstract does not show how that matter was disposed of in the trial court. However, plaintiff’s right to attach the property was dependent upon the question whether Inglitt owned it on the date of the attachment, March 24, 1919. It is clear that Inglitt did not then own the. property. And since the appellant has not brought up such part of the record as would show how the deed to McNitt was disposed of, we must assume that that minor matter was either abandoned or correctly determined by the trial court.
The appellant has failed to establish some plain, palpable error which would permit this court to disturb the judgment, and we can discern none.
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Porter, J.:
The action was for damages resulting from a collision between Acker’s truck and a Union Pacific train. A demurrer to the plaintiff’s evidence was sustained, from which he appeals.
The accident occurred at a country highway crossing and in broad daylight. Acker was employed to transfer certain household goods from Junction City to Manhattan on January 30, 1918. He was riding on the truck, which was being driven by Ellis, who was in his employ. Acker testified that when they came in sight of the crossing, about a mile therefrom, they saw two trains standing on the first track headed as though eastbound. The engine of the first train was about half a block from the crossing and had three or four cars and a caboose attached to it. They saw the semaphore to the left standing up and decided correctly that this was because of the standing trains. At the culvert, 75 or 100 feet from the crossing, the driver disengaged the auto engine and nearly stopped — not to a “dead” stop, but just so the shift could be made to “low” going down a little incline from the culvert. Thence they proceeded on low, until struck, able and on the alert to stop on the instant. They looked for flagmen and trainmen, but none was in sight. They listened for signal of whistle or bell, but none was given. They saw, while approaching, dense smoke issuing from the engines and settling over the fields on the other side of the tracks. When on the track, in front of the first train, they perceived for the first time that this smoke settled down over the second track so as to screen it from their view. Acker thought of stopping and going up between the tracks past the smoke, but concluded it wouldn’t do, because he would have to pass the first train to the second engine. They concluded, also, it would be safe to cross. On cross-examination Acker testified:
“Q. You didn’t think there would be any smoke in your way from this engine until you had crossed over the first track and was onto the eastbound track? A. Until we were on the first track.
“Q. When you were getting up on the first track, then you made up your mind that there was enough smoke there so you knew you couldn’t see the other side of that smoke? A. Yes, sir.
“Q. Nevertheless, having your view cut off in that way, you decided to take your chances and drive on regardless of what was beyond that smoke? A. No, sir.
“Q. You did that? A. I was listening and looking.
“Q. But you knew you couldn’t see anything beyond that smoke? A. Yes, sir.
“Q. And so far as knowing anything further than what you might hear, knowing that the smoke cut off your view, you decided, nevertheless, to go on the track there and take the chances, did you? A. I decided it was safe, yes, sir.
“Q. By the time you actually got over that track (first track) then, if it hadn’t been for the smoke you had an absolutely clear view down the (second) track for just as far as the eye would reach? A. I would have if it hadn’t been for the smoke, yes, sir.
“Q. You could have stopped right then and there, after you got to the first track and saw the smoke was obstructing your view, you could have stopped there before getting onto the second track? A. I could have stopped any place.
“Q. Instantly? A. Yes, sir.
“Q. So, when you found smoke there that you hadn’t anticipated— You had thought as you drove up there: ‘Well, as soon as I get so I can see beyond that train I will know whether there is a train on the other track, didn’t you? A. I thought I would be able to, yes, sir.
“Q. When you got to that point you found smoke? A. Yes, sir.
“Q. Notwithstanding that smoke, you didn’t stop, as you might have done-, did you? A. The only way I could figure it out myself was to stop and walk up there; and I thought I would have to pass that engine and go by the second one, because the same smoke would be coming from it; because the steam was coming from the other side.”
In sustaining the demurrer the trial court commented upon the testimony showing that the truck was under complete control, not traveling faster than a man could walk, and that Acker and Ellis could have stopped it immediately; that the view of the track was obstructed by two other trains, and when they reached the rail of the first track they could have seen down the track, except for the fact that there was a thick, heavy smoke, through which they could not see. Because the automobile “never stopped, but kept going,” notwithstanding the evidence showed that both the plaintiff and his driver knew that the smoke prevented their view of the track, the court ruled that under the doctrine of Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, and Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397, holding that an automobile driver must stop and go to a point where he can see, if there is no other way of determining whether there is a train approaching on a track which he is about to cross, the plaintiff’s contributory negligence prevents his recovery.
The doctrine stated in the cases referred to by the trial court has been applied where weather conditions obstructed the view of an auto driver about to cross a railroad track; thus, where snow or rain obstructed the view of the driver. (Gage v. Railway Co., 91 Kan. 253, 137 Pac. 938; Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801. To the same general effect, see C. K. & W. Rld. v. Fisher, 49 Kan. 460, 30 Pac. 462; Morgan v. Railroad Co., 91 Kan. 496, 138 Pac. 575; Railway Co. v: Wheeler, 80 Kan. 187, 101 Pac. 1001; Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612.) In the case of Morgan v. Railroad Co., supra, the view of the driver of the vehicle was obscured by reason of smoke arising from cinders and ashes left on the track by a freight train. It was held that it was his duty to wait until he could discover the true situation.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In an action under the workmen’s compensation law the plaintiff recovered judgment for $480, which included $36 for six weeks of total incapacity, and the minimum amount of $3 per week for 148' weeks, the period during which the jury found he would be partially incapacitated. At the time he was injured plaintiff was employed as a car repairer working for the defendant in repairing and reconstructing refrigerator cars. His injury was to the left hand, the third finger being broken near the second joint. There was evidence tending to show that as result of the injury the joint became somewhat stiff, so that plaintiff was not able to hold nails in his left hand or to perform his usual and customary work as a carpenter or car repairer. At the time he was injured he was earning $16.50 per week.
With their verdict the jury returned -answers to a number of special questions. They found that plaintiff was injured on April 26, 1917, and that on June 20, following, he started to work for a railroad company in the capacity of a car repairer, and that since that time he had performed substantially the same kind of work for the railroad company that-he was performing for the defendant at the time of his injury, and that his average earnings since June 20, 1917, amount to $30 per week.
The defendant’s motion for judgment on the special findings, notwithstanding the general verdict, was overruled, and defendant brings the case -here for review.
The appeal raises but one question. It is said that the spirit of the workmen’s compensation act of 1911, as amended in 1913, compels a judgment in defendant’s favor. The contention is, that the compensation acts were passed for the sole purpose of making good the impaired earning power of an injured workman so long as the workman suffers under the disability; that the findings and evidence show a very ordinary and trivial injury, and show further that at the end of eight weeks after the injury plaintiff was a better workman than he had been theretofore, as indicated by his increased earnings. The fact that the plaintiff went to work for an employer with whom he was in no way involved, and against whom he had no claim, it is said, shows that he secured and retained employment on the basis of his own worth and capacity. It is insisted, too, that “the capacity to labor is to be determined by the earnings of the laborer,” and that the increased earnings of plaintiff in the identical kind of employment disproved the possibility that he suffered any incapacity. •
While our compensation law proceeds upon the theory that usually the capacity of a workman to perform labor bears a close relation to his earnings when employed, we do not think his capacity in this respect is to be determined solely by the amount of his earnings. The question is affected by the demand for and supply of the particular kind of labor, as well as by the cost of living and of commodities generally; these matters and the price commonly paid at a given time or place for skilled and unskilled labor are factors which enter into the question. Everyone knows that within the past four or five years, wages of all kinds have constantly advanced and in many kinds of employment have more than doubled. The defendant says:
“The employer is as well entitled to the benefactions of nature as the employee. If the injury was trivial and readily healed, and the earning capacity of the injured workman was in no way impaired, this is a circumstance, a benefaction of fortune which should redound to the benefit of the employer as well as the employee.”
Whether this be true or not, the injured workman is entitled to all the benefactions that come by reason of any advance in wages paid for the same kind of employment.
We regard the question, however, as controlled by the statute which provides that—
“In the case of partial incapacity the payments shall be computed to equal, as closely as possible, fifty per cent of the difference between the amount of the ‘average earnings’ of the workman before the accident, to be computed as herein provided, and the average amount which he is most probably able to earn in some suitable employment or business after the accident, subject however, to the limitations hereinbefore provided.” (Laws 1911, ch. 218, § 12.)
The limitation as applied to the present case is found in section 11 of the same chapter, which fixes the minimum compensation for partial incapacity as follows: “but in no case less than three dollars per week.”
In Dennis v. Cafferty, 99 Kan. 810, 163 Pac. 461, the court found that the injured workman’s average earnings at the time of the injury were $13.50; that his probable weekly earnings would be $12 a week, and allowed him the $3 minimum per week for the total period of his incapacity. Sixteen months after his injury, he had secured work in a rolling mill as an overseer, not doing manual labor, for which he was paid $6 per day, or $36 a week. It was contended by the" defendant that upon the undisputed facts the workman’s incapacity to earn wages had wholly and totally ceased, and that to allow him any compensation therefor was to place an unjustifiable burden upon the industry, contrary to the spirit and purpose of the compensation act.
It was held, however, that the minimum of $3 a week for partial disability was fixed by the legislature with a general view of compensation, and was not to be withheld merely because, in a given case, before the expiration of the period the workman had found other employment and was earning more wages than before the injury.
There is no way of distinguishing that case from this, except the fact that here the workman found the identical kind of employment, for which he received almost double the amount of wages he had been receiving at the time of his injury.. In the opinion in the case just cited, it was said that—
“A minimum of three dollars a week was prescribed, not because it would in each case be in accord with precise justice, but because as a general thing this was deemed a fair lower rung for the ladder of allowances.” (p. 813.)
Since there was evidence to sustain the finding of partial incapacity, the plaintiff cannot be deprived of his right to the minimum compensation fixed by the statute, merely because such incapacity is slight. The fact that he has, obtained employment from another employer in the same kind of work, and has been able to earn a great deal more than his average earnings at the time he received the injury, must be regarded as accounted for by unusual conditions, of which the courts will not decline to take notice, and which have resulted in a general increase in the wages paid to laborers.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a life insurance policy. Judgment was rendered for the defendant on the pleadings, which were purposely framed to present the facts necessary for a correct determination of the controversy. The plaintiff appeals.
L. J. Pickering, an agent of the defendant residing at Gar lena, took the application of Oliver S. Green, who resided at Riverton, a village some distance from Galena, for insurance, payable at the applicant’s death to his wife, the plaintiff. The application provided that it should become a part of the contract of insurance, and contained the following stipulation:
“It is further agreed that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health, habits and occupation are the same as described in this application.”
The first premium, amounted to thirty dollars, two dollars of which were paid and receipted for when the application was taken. The application was forwarded to the defendant’s home office in Newark, N. J., where a policy was written con forming to the application. The defendant maintained a district agency at Joplin, Mo., which had supervision over agents of the district, including Pickering. A. B. Sullens was superintendent of the district agency, and in his- absence an assistant, W. G. Cook, acted for him. The defendant sent the policy to the district agency for delivery and for collection of the first premium. Attached to the policy was a printed warning slip reading as follows:
“To the Company’s Representative:
“hold this policy
“Before.you deliver this policy please refer to a letter from the Ordinary Application Department and comply with any request contained therein.
“Remember that IT MUST NOT be delivered unless the applicant is in good health and the full initial premium is paid in cash.
“It Must Not be Left for Inspection. A specimen policy or illustration may be left in its stead.
“You Will be Held Responsible for a strict observance of the rules regarding the delivery of policies as stated in the Ordinary Rate Book.
“The Prudential Insurance Company of America.”
The policy with the attached slip was mailed to Pickering by the district agency, and was received by- him on October 8, 1918. On October 10 Pickering went to Riverton for the purpose of delivering the policy, but was unable to see Green, who was then in good health, because he was working in an establishment producing war material, from which visitors were excluded. On October 17 Pickering again went to Riverton to deliver the policy. Green was ill at his home with influenza, which he had contracted a few days before. Pickering was informed of the fact, and did not see Green or communicate with him, and did not deliver the policy or collect the premium. Pickering did see the plaintiff, however, and told her not to worry, that the policy was valid and in force. On October 24 Green’s illness resulted in death. When Pickering learned of Green’s death he notified the district agency. Cook, who was then in charge, believed the defendant was under no liability on the policy, but was of the opinion proof of death might be taken. Accordingly, Pickering went to the plaintiff’s residence on October 27, taking with him blank proofs which were there filled out, without expense to the plaintiff. She offered to pay any expense which might accrue, and offered to pay the re mainder of the first premium; but Pickering told her the policy was in force and would be paid, and the premium- would be deducted from the proceeds. Pickering wrote the plaintiff for the original receipt for two dollars, which she returned to him, and for which he gave her a duplicate. When informed of all the facts, the defendant, on December 26, advised the plaintiff’s attorney that it declined to assume liability under the policy. Pickering was a soliciting agent having authority to take applications, deliver policies, and accept payment of premiums; but by contract of employment, by rule of the company governing the conduct of agents, as well as by the special limitation contained in the warning slip attached to the policy, the district agency and Pickering were forbidden to deliver the policy without compliance with the conditions stated in the application.
Right to recover on the policy is predicated on waiver. This court has always been liberal in applying the doctrine of waiver in insurance cases, to avoid strict enforcement of conditions in completed contracts, to prevent forfeitures, and in all instances in which elements of estoppel were present. It has never before been called on to employ pure waiver,.that is, waiver not involving forfeiture, misleading, alteration of position, or prejudice of any kind, to make a contract of insurance with an applicant after his death.
The application constituted part of a negotiation having in view the formation of a contract of insurance. The application itself stated conditions which were prerequisite to consummation of the contract. They were, delivery of the policy, payment in full of the first premium, and unimpaired health at the time of delivery of the policy. It may be conceded that the company could waive any or all of these conditions. If, with full knowledge of all the facts, the officers of the company had paid the amount of the policy to the beneficiary, doubtless it would be held to have waived the conditions. If, however, any one of the conditions was not waived before the applicant’s death, there was no contract.
It is elementary that there could be no waiver without an intention, entertained in fact or implied from circumstances, to dispense with compliance with one or more of the conditions contained in the application, and manifested in some unequivo cal manner. If whatever was done was consistent with a purpose to withhold delivery of the policy, collect the premium before delivery, or insist on good health at time of delivery, there was no waiver.
The warning slip attached to the policy shows conclusively that the defendant did not waive anything by forwarding the policy to the district agency, and by placing it in Pickering’s hands for delivery. If waiver occurred, it was because of what he did after he received it.
The question whether or not, as between the company and the beneficiary, the law would regard Pickering as having authority to bind the company by waiver, may be passed by. As between the company and Pickering, he had no such authority in fact, and, under the circumstances, the limitations on his authority bear materially on the interpretation to be given his conduct. From his contract of employment, from the rules of the company governing the conduct of agents, and from the warning slip attached to the policy itself, Pickering knew that he must not deliver the policy unless the full initial premium were paid in cash and the applicant were in good health. A flagrant breach of the: trust and confidence reposed in him is not to be lightly imputed. A clear design to depart from the plain path of duty, and to commit the company to fbrmation of a contract in opposition to the provisions of the application, and in opposition to express and specific instructions regarding the very matter, should appear.
Pickering’s first trip to Riverton after the application was taken was made for the purpose of collecting the premium and delivering the policy, and his conduct was consistent with an intention to obey his instructions. Not being able to see Green, he kept the policy and carried it away with him.
Pickering’s second trip to Riverton was made for the purpose of delivering the policy. He found Green stricken with a fatal disease, and was not permitted to see him. Payment of premium was not discussed with any one, the policy was not left with Green’s wife or any one else for delivery to him, and Pickering again retained possession of it and carried it away with him. This conduct was not only consistent with an intention to obey instructions, but was fairly inconsistent with any other intention. He did see Green’s wife, and told her not to worry, that the policy was valid and in force. The statement does not indicate an intention on his part to assume the responsibility of bringing to a conclusion with her, negotiations pending with Green, by dispensing with compliance on Green’s part of vital conditions which he had engaged to meet. The statement merely indicates Pickering’s opinion of the legal effect of what had already occurred — a matter about which he was mistaken. Granting that Pickering believed the policy was valid and in force, and that Mrs. Green need not worry, the statement, taken in connection with his conduct, is nevertheless perfectly consistent with the belief that he must still see Green, collect the premium, and deliver the policy to him, and with an intention to withhold delivery until that might be done. The result is that waiver is not established. There is no claim that, because of Pickering’s misadvice, Green or Mrs. Green did or forbore to do anything relating to consummation of the contract, and Green died without life insurance.
The events occurring after Green’s death were of slight importance. The unwaived condition of the application, that the policy should take effect on delivery to the applicant while in good health, could not by any possibility be complied with, and the proposition to insure expired by virtue of its own terms. The company undertook to procure its own proof of death, and did so without any expense to the plaintiff. Whatever “trouble” she was put to in the matter, and in mailing the receipt, was too trivial to estop the company from denying liability. Her offer to pay the premium was not accepted, the policy was still retained by the company, and Pickering’s declaration that the policy was binding and would be paid was of no more consequence than his opinion, previously delivered, that the policy was valid and in force.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Fred C. William was convicted under section 35 of the .Crimes Act (Gen. Stat. 1915, § 3396) for taking away from her parents Mattie Buck, a female person under the age of eighteen years, without her parents’ consent, for the purpose of prostitution.
William appeals, and his principal contention is that there was no evidence to sustain the conviction.
The information against William was in two counts: the first was for taking the girl away for the purpose of prostitution, and the second was for taking her away for the purpose of concubinage. There was some evidence against William which might have justified a verdict and judgment on the second count, but the jury acquitted him on the latter charge.
Touching the charge upon which William was convicted, the evidence disclosed that William was a married man of about 44 years of age, and that he had a wife, and two sons, eighteen years and eleven years old respectively; that he lived on a farm; and that the girl, who was about sixteen years old, resided with her parents and an older sister on another farm a mile or two away. The girl was infatuated with William, and wrote him several love letters which were delivered to defendant by his younger son. One or more of these were answered by William. He appears to have been away from home at the time, and his letter indicates that he lustfully desired to possess the girl:
“i hate to leave you do you beleave me pettie dear well A H i am going to try to get you by 9 or 10 if we can get things through all right: S H i eather have got to have you or i got to come home and stay S H for this is gitting afful lonesome and tired of doing this way S H.”
The girl testified that she had talked with William about going away with him:
“He said if I would go with him he would get me a lot of nice clothes and things and I wouldn’t have to work so hard. About a week before he wanted me to go I said I was afraid the folks would catch me and he said there wasn’t any danger. He didn’t then say where he was going to take me. Had conversation about his feeling toward me — well, once a week, just a week before. He said he loved me and thought lots of me and wanted to marry me and thought of me when he went to bed. He said he couldn’t live without me. She had it wrong in there — he never said anything about me marrying him. He said he wanted to be near me. I talked with him several times prior to the 2d day of March. Fred William was affectionate with me — he hugged and kissed me.”
On the night of March 2, 1917, the girl left home in her school dress and without traveling clothing, and joined William. He provided her with a cloak and cap. He also provided her with a hand bag filled with the usual articles suitable for a girl on a sojourn from home. They drove in William’s automobile to Smith Center. The night train being late, and she fearing capture, they drove to Phillipsburg, where she purchased a ticket to Limón Junction, Colo., and he purchased a ticket to Goodland. She testified:
“On the way he said I would buy my ticket to Limón and he would get his to Goodland and he gave me money to buy it with. Just before we got to Phillipsburg he said he would buy his ticket from there on to Limón Junction from Goodland, so people wouldn’t think we were going together. At Phillipsburg I waited for the train in ticket agent’s office; bought ticket to Limón; went to the window and called for a ticket to Logan first; I told him I would buy my ticket to Goodland then. Mr. William said to the ticket agent that he heard me say over at the hotel that I was going to buy my ticket to Limón Junction. Had not been to the hotel prior to that time. He said after we got to Limón we would go to the hotel. Bought ticket, waited for the train and went to Norton. William went with me. He didn’t help me on the train at Phillipsburg that I remember of. He took the two grips and we were seated across the aisle from one another in the day coach. Were on the train at Norton. At Norton the sheriff arrested Mr. William.”
To sustain the conviction on the first count, the state submits the following summary of the evidence: •
“1. The Buck and William families were apparently very friendly until the abduction.
“2. William’s undue attention, to the older girl caused her expulsion from school.
“3. That about three years before the abduction, defendant and wife persuaded and coerced the older girl to write letters falsely charging her father with incest.
“4. That these letters were kept secret until the trial of this case defendant claiming he wanted them for his future defense.
“5. No attempt was ever made to stop the alleged incest.
“6. . . . Love letters passed between defendant and Mattie Buck just prior to the abduction.
“7. That defendant laid an almost perfect foundation for an alibi.
“8. While he was supposed to be away from home, he was seen in the neighborhood by the two Buck girls.
“9. On the very night of his return home arrangements for Mattie’s departure were completed.
“10. That Mrs. William’s participation in these arrangements were unknown to Mattie.
“11. That defendant accompanied Mattie Buck until the arrest was made.
“12. That Mattie Buck was sixteen years of age and was taken from the custody of her father and mother is not disputed.”
This court is constrained to hold that the foregoing evidence (all questions of its competency aside) does not prove the charge that the defendant took this girl away from her parents for the purpose of prostitution. The trial court instructed the jury—
“ ‘Prostitution’ as alleged in the information, means the practice of a female offering her body to use in indiscriminate intercourse with men, as distinguished from sexual intercourse confined to one man — the act of permitting a common and indiscriminate sexual intercourse for hire.”
Perhaps it was not necessary for the instruction to include the words “for hire.” In The State v. Goodwin, 33 Kan. 538, 541, 6 Pac. 899, it was said:
“If the appellant took away the female for the purpose of prostitution, under the circumstances alleged in the information, he would be guilty of one offense; but if he took her away for the purpose of concubinage, but not for prostitution, he would be guilty of another offense. If the appellant took the female away for the purpose of prostitution, he did so for the purpose of devoting her to infamous purposes, that is, of offering her body to indiscriminate intercourse with men. If he took her away for concubinage only, then his purpose was to cohabit with her in sexual commerce, without the authority of law or a legal marriage.”
Since the jury acquitted the defendant upon the only charge which the evidence tended to establish, and the evidence entirely fails to prove the charge upon which defendant was convicted, the judgment cannot stand. The judgment of the district court will be reversed and the cause remanded for a new trial.
Mr. Justice Burch and Mr. Justice West, and the writer, are of opinion that the court ought to order the discharge of the defendant; but a majority of the court hold that the matter should be left to the discretion of the county attorney with a suggestion to that officer that unless new and substantially additional evidence to support the charge is discovered and available, it will be useless to put the county to the expense of another trial.
Reversed.
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The opinion of the court was delivered by
Porter, J.:
In a workmen’s compensation case the plaintiffs recovered a judgment for $2,964 for the death of John Vassar. The defendant appeals.
The deceased, who was 53 years of age at the time of his death, had been in the employ of Swift & Company for eleven years; his work was loading refrigerator cars. It is claimed that his duties required him to lift heavy pieces of beef and that in doing so he strained his side, and because of the low temperature of the car, contracted pleurisy, which resulted in his death. The answer was a general denial.
The serious question of fact was, whether the deceased received any injury while in the employ of defendant that had anything to do with his death. The testimony of Etta Vassar, the widow, shows that on August 25, 1918, her husband came home at his usual time, about 3 o’clock in the afternoon; he was walking with his hand on his side and said he was awful sick and his left side was-hurting him; he went to bed and she put hot applications on his side, rubbed it with turpentine and lard, and kept up this treatment for three days, when a physician was called. For a period of two weeks prior to his death he recovered sufficiently to be up and around the house and at times out on the back porch, and walked with a cane. Later he took to his bed again and died on October 26, about two months after the alleged injury.
Two physicians testified that pleurisy might result from a blow or bruise on the side where it is claimed the deceased was injured and that pleurisy developed in that manner might have caused his death. One of these physicians, Dr. Nason, treated the deceased from September 20 until his death. Dr. Nason made out the death certificate, which contained the statement that the cause of death was—
“Pleurisy, duration ten days; contributory, secondary, typhoid fever, four months.”
He testified that the “four months” was a mistake and intended to be two months. He admitted that in certifying to the cause of death he had not stated anything about an injury, and that in a conversation in reference to the matter with a claim agent from Swift & Company in January or February he had made no mention of injuries.
Dr. Barker was called to treat Vassar on August 28 and continued in charge of the case until the family called Dr. Nason on September 20. He testified that he diagnosed the sickness as typhoid; he described the finding of a tenderness in the area where it is found in such cases, and the rash on the abdomen and legs; for three weeks the patient had the typhoid temperature, reaching its maximum toward midnight and- then graudally lowering until 7 or 8 o’clock in the morning, when it would gradually rise again.
He further testified:
“It ran a very typical typhoid fever course, and I treated him for typhoid condition and kept him on the liquid dipt and kept him quiet and had them give him the usual baths when his temperature would run the highest. And the temperature usually yielded to that treatment. . . . gradually went down, after a period of two or three weeks. . . . Each morning it was a lower temperature, and it would go up, typical of a typhoid condition, but each subsequent day it would become a little less. ... I examined practically all 'the functions of the body, and I could not find anything in that way that might cause this fever, except the typhoid condition. . . . found no symptom of any injury to the lung, or that of pleurisy at all. In fact, the respiration did not show any symptom of it.”
Testifying as to the condition of Vassar when he left him on the 20th of September, he said that he found no tenderness on the left side covéring the pleural cavity. The history of the case and the condition of the patient in his opinion showed that of one recovering from typhoid fever.
“He kept insisting on eating a whole lot of food. ... I told him that he must stay off the solid foods for at least eight or ten days yet. . . . Relapses often follow in cases of typhoid fever. That is the way a good many people die from typhoid. . . . When I left this man he was almost well, but he was weak, decidedly weak, from this condition, but he was gaining.”
The superintendent of the refrigeration department and the foreman in charge of the men with whom the deceased had been at work, and six of the workmen were witnesses. Several of these had known Vassar for many years. The six workmen were what is known as “luggers.” The testimony of the superintendent, the foreman and these workmen was to the effect that Vassar was what is known as a “hanger” of beef in refrigerator cars, and was engaged in “hanging” the fore quarters of beef which were carried into the car by luggers, and lifted up by the lugger and hung upon a hook fastened in the car. They testified that the only duty the deceased had to perform was to fasten this hook in the beef, and when he had done this to say, “Let go,” when the lugger dropped the beef so that it hung suspended on the hook. Each of these witnesses testified he had no knowledge of any accident ever having happened to Vassar. His fellow workmen knew that he was absent from work, but understood that he was sick.
Fred Widener, who had been employed at Swift’s for 22 years, and was well acquainted with the deceased, testified that about a month or six weeks before Vassar’s death he visited him at his house for 15 or 20 minutes.
“He was sitting in the chair. He said nothing to me about having received an injury by accident. He said nothing to me about the cause of his sickness. He didn’t say that he knew the cause.”
The superintendent testified that it was his duty to investigate the cause of every accident for the purpose of avoiding a repetition of it and to discover who was responsible, and whether it was due to carelessness, and also to keep track of the wages of the injured employee and see that he got his compensation. The testimony is that the company had no notice of any claim that the deceased had ever been injured at the plant' until January 17, 1919; that the witness inquired of every person about the plant who might know anything about such ah accident, and was unable to find one who had ever heard of it or knew anything about it.
Mr. Larson, the foreman of the deceased, testified that it was his duty in case of an accident to make a report of it; that he had never heard of an accident to Vassar. He had known John Vassar about nine years.
“Mr. Vassar didn’t have to lift beef; he didn’t have anything to do with the lifting. . . . Mr. Vassar was a beef hanger all the time I knew him. I saw him nearly every day in the month of August, 1918. . . . My duties there are looking after the beef loading. ... I have never known a beef to slip from the hook after it had been hooked. ... In hanging the fore quarter a hanger has to puncture a hole between the third and fourth ribs, with the hook. ... I never knew of a fore quarter tearing loose when hanging up. . . . There is a hook hanging from the ceiling, about eighteen inches long, and the hook is there in place already on the wall, and it is his duty to hook that into the quarter when it is carried in by the beef lugger.”
One defense urged is, that no notice of any kind in reference to the accident was given by the plaintiffs or by John Vassar. It appears there was no reason why a notice could not have been given. There was nothing in Vassar’s condition to have prevented it immediately after he .quit work, and the evidence is that he was up and around the house for two weeks before his death. The workmen’s compensation act (Gen. Stat. 1915, § 5916) requires that notice of the accident, stating time, place and particulars thereof, shall be given within ten days after the accident occurs, or the action cannot be maintained; but there is a further provision in the same section that “The want of, or any defect in such notice, or in its service, shall not be a bar unless the employer proves that he has, in fact, been thereby prejudiced.”
The plaintiffs’ contention that the defendant failed to show prejudice is, we think, untenable. The uncontradicted evidence is that it had no notice or knowledge of any claim of an accident until January 17,1919. This was nearly five months after its alleged occurence. If notice had been given within ten days, when matters were fresh in the minds of the other workmen, it is obvious that the defendant would have found it much easier to have produced evidence to show whether, in fact, the deceased sustained an accident. It was not necessary, of course, for the defendant to produce a witness to state that defendant sustained some prejudice. The facts about which there is no dispute speak for themselves. The difficulty, however, is that defendant never raised the question in the court below. The answer was a general denial. There is nothing in the record which indicates that the question of notice was called to the attention of the trial court; no instructions were asked with respect to the question of notice or plaintiffs’ right to recover by reason of a lack of notice, nor was the defense in any way suggested or referred to in any of the instructions. Neither the court nor the jury was called to pass upon the question. The failure to raise the question below renders unnecessary further comment upon the matter of notice.
The principal question of law involved is whether so-called dying declarations of the deceased were admissible in evidence. The foundation for the introduction of the declarations was the testimony of Mrs. Metheson, a neighbor, and Clyde Vassar, son of the deceased. Mrs. Metheson testified that Vassar’s death occurred on Saturday and that on the previous Sunday she was over at his house and he was lying in bed twisting, holding his side, and groaning. The witness was there about thirty minutes; she sat down beside his bed and asked him how he felt.
“And lie told me that he felt bad. He says, ‘I am not sick. It is the pain that is killing me.
“Q. What, if anything, did he say about whether he thought he could live? A. He told me that he didn’t expect to live. He said, ‘This pain is so great that I cannot live.’ ”
Again she was asked:
“What further, if anything, did he say about his expecting to die? A. He says, ‘The pain is so great,’ he says, ‘I cannot stand it.’ He says, ‘The doctors can do me no good.’
“Q. And did he make any statement as to whether he expected to die? A. He said that he didn’t think that he could live.
“Q. (Relative to his thinking he would die) Just bearing upon that line, if you can think of anything more in the conversation that you had, about what he said about expecting to die. A. He told me the pain was so great — that he was not sick, but the pain was so great that he couldn’t live; that he couldn’t stand it; the doctor didn’t seem to do him any good.
“Q. He said he couldn’t live? A. Couldn’t live.
“Q. Well, now, what further, then, did he say, if anything, as to how the accident occurred?”
The defendant objected on the ground that there was no proper foundation laid under any view of the case. The objection was overruled.
“Q. You may go ahead. A. He said that he didn’t think that anything could do him any good, because he thought there was something bursted or broken in his side.”
The witness was then permitted, over objections, to testify that the deceased said—
“He lifted a piece of meat and wrenched his side. He said something popped, like he was shot or something was broken, and he said he liked to never have gotten home.”
Clyde Vassar, a son of the deceased, testified to a conversation that occurred about a week before his father died, and he was asked to state what his father said “about getting well and whether he expected to get up." His answer was,
“Well, I went across the street to see him and I asked him how he felt. ... he said he was feeling pretty bad — the pain was awful, and he didn’t think he could ever stand it very long. And I asked him where he hurt; and he showed me down on his side — that is, just put his hand on his side.
“Q. Was anything stated about where he had gotten hurt or the manner in which he was injured?”
This was objected to for the reason that there was no foundation laid for the question. The court made no ruling, but counsel for defendant made further inquiry, as follows:
“Q. What, if anything, was said by your father, if anything more was said, covering whether or not he expected to live? (An objection was overruled.) A. He said he did not think that he would ever get well, and he said that he thought that the last day that he worked at Swift’s— (Objection.)
“Q. Giving his words, if you can, in substance, what did he say about his expecting to die? (No answer.)
“Q. Relative to his expecting to die, what did he say about that, if anything more? A. That is all he said.
“Q. Did he tell you how long he expected to live? A. No, sir; he didn’t.”
The witness was then permitted, over the defendant’s objection, to testify that his father said—
“The last day he worked at Swift’s, he was hanging beef in the car, and that some fellow come in with a quarter of beef and didn’t hang it just right, and it was his duty to place it where it should be placed; and in moving the beef the hook sliped out of it, and as he went to catch it he raised his knee up some way, and wrenched his side. He said that was what he thought hurt him in his side.”
On the next day, both witnesses who testified to the “dying declaration" were recalled. Mrs. Metheson, the neighbor, was asked if in the conversation she had testified to, the deceased made any reference to what the doctor had told him about his condition. The question was objected to, but the witness was permitted to testify that when he said that he was going to die, “I tried to cheer him up and tell him that he may not die, he said, yes, the doctor had told him that he could not live.” Clyde Vassar, the son, was recalled, and the following question was asked him—
“Q. I will ask you, Clyde, if in the conversation you had with your father there, any reference was made to a statement of the doctor? (An objection was overruled.) A. In connection with what I told yesterday, he said that the doctor had told him he could not get well.”
Mrs. Etta Vassar, the widow, was recalled, and testified as follows:
“Q. Mrs. Vassar, I want to ask you if at any time before your husband died, if you heard the doctor tell him he could not live? A. I did — ”
There was no testimony to show whether this statement was made to the deceased shortly before his death or whether it occurred before or after the time of the alleged conversations with Mrs. Metheson and Clyde Vassar.
The plaintiffs rely, of course, upon the doctrine first announced in Thurston v. Fritz, 91 Kan. 468, 138 Pac. 625, that dying declaratiofis are admissible in civil cases. The court felt that the time had arrived to declare that the rule limiting the admissibility of such declarations to criminal cases was one which had no reasonable basis to support it. The court is satisfied with the decision in that case, and the only question here is, whether sufficient foundation was shown for admitting the statement as a dying declaration. We think it must be held that the evidence was sufficient to show that the 'statement was made-by the deceased at a time when he was under a sense of impending death. It has been held that it is-not necessary that the declarant state that he is expecting immediate death, and that where there is evidence that he had abandoned all hope and regarded his death as impending and certain, sufficient is shown to take to the jury the question of the declarant’s fear of impending death and the question of the credibility of the declaration. (The State v. Smith, 103 Kan. 148, 174 Pac. 551, and cases cited in the opinion.)
It follows that the judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by the plaintiffs to recover from the defendant sums of money claimed to be due on account of a real-estate transaction in which the parties had been interested. Judgment was rendered for the defendant, and the plaintiffs appeal.
The plaintiffs were real-estate agents who had Ohmart’s land for sale for $17,600. The plaintiffs were able to obtain terms from Ohmart — $1,000 payable in cash, and the remainder payable on March 1, 1919. The plaintiffs proposed to the defendant that he join them in buying the land, and he assented, the expectation being that the land could be resold before pay day ■for $20,000. In case of resale, the profits were to be shared, one-third to each of the plaintiffs and one-third to the defendant. On February 25, 1918, a contract of sale on the terms stated was given the defendant by Ohmart, who supposed he was selling to the defendant. The plaintiffs were to make the cash payment. Without the defendant’s knowledge, they charged Ohmart a commission of $440, and paid the difference only, $560, in cash. Afterwards it became necessary to place a windmill on the land, for which the plaintiffs paid $100. Pay day came, and the land had not been resold. Under an arrangement with the plaintiffs, the defendant paid Ohmart the balance due him, and took the land as his own. Afterwards he sold it for $18,000.
The petition prayed for $1,000 advanced by the plaintiffs to Ohmart, for $100 paid for the windmill, and for a share of the $400 obtained by the defendant for the farm, above the Ohmart price of $17,600. The answer was that the defendant settled with the plaintiffs for their interest in the land for what they had actually expended, that is, $660, made up of the cash paid Ohmart and the cost of the windmill. The defendant gave the plaintiffs his check for the amount, which they first accepted, but afterwards returned. The defendant brought the sum of $660 into court and deposited it with the clerk, for the plaintiffs.
At the trial the plaintiffs admitted settlement with the defendant. It seems that the defendant, supposing that the plaintiffs had in fact paid Ohmart $1,000, was willing to reimburse them for their advancement, but when he learned the truth of the matter he properly declined to pay more than the amount of the actual advancement. The plaintiffs had no right to charge Ohmart a commission on the sale to themselves and had no right to make, by this means, a secret profit to themselves, not shared by their joint adventurer, the defendant. One of the plaintiffs testified as follows:
“Q. What did he [Murphy] say then about whether he was to have credit for that commission which was included in the thousand dollars cash or whether you were to get any part of it? A. Well, it seemed that that was to be left out altogether. All that he was to give us then was the $560 that we had actually put in in money.”
At the conclusion of the plaintiffs’ evidence, the court pointed out to them that their own testimony had destroyed the case made by the petition, and that their remedy lay in a suit on the contract of settlement. The court, however, offered to overlook the variance, and give the plaintiffs judgment for $660, with interest from date of the settlementf but they declined, and suffered a demurrer to their evidence to be sustained.
The plaintiffs have deprived this court of an opportunity to review, and affirm, the judgment of the district court, by taking down the money, pending the appeal. The attorney for the plaintiffs asked the attorney for the defendant if there were any reason why the plaintiffs should not take the fund on deposit with the clerk. The attorney for the defendant said he had no objection. The attorney for the plaintiffs then said he would not accept the money in full satisfaction of the plaintiffs’ claim, and if he took it he would do so without prejudice to further insistence on the claim. The defendant’s attorney declined to make any agreement on the subject. He said, however, he was willing the plaintiffs should take the money, and he telephoned the clerk that he might pay it to the plaintiffs’ attorney. The plaintiffs gave the clerk a receipt for the money on account of the debt sued on and without prejudice to further claim.
The petition was framed on one theory, and the answer on another and different theory. The deposit was made in accordance with the defendant’s theory. Whether or not the formalities of the statute were so far complied with as to afford him protection from interest and costs is not material. He deposited the money to pay what he claimed he owed, according to his theory of the case, and not as a credit on any other kind of obligation which might be established against him. He won, and the money remained with the clerk to accomplish the original purpose of the deposit. The attorney for the defendant distinctly declined to make an agreement which would change the terms of the deposit. The plaintiffs could not, by a proposal of terms not agreed to, or by their own self-serving declarations in their receipt to the clerk, change a deposit made to pay a balance due on a settlement to a credit on an unsettled account made up of diverse items. They could obtain the benefit of the money by taking it as it was offered, or not at all, and they elected to take the money.
The appeal is dismissed.
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The opinion of the court was delivered by
Porter, J.:
The petitioner operates a taxicab for hire upon the public streets of the city of Topeka, and seeks his release from imprisonment upon a conviction for the violation of a city ordinance, claiming that the ordinance is unconstitutional.
The ordinance, No. 4951, enacted by the Board of Commissioners of- the City of Topeka, was published on March 17, 1920. The question turns upon the validity of section 9, which reads:
“It shall be unlawful for the owners or driver of any hackney carriage, taxicab, auto bus, baggage wagon, truck, or any other passenger or baggage vehicle to stand any such vehicle or solicit business on any public street, alley or sidewalk in the City of Topeka, without the owner of such vehicle having first obtained and filed with the City Clerk of said city the written consent of the owner or of the person, corporation or company, having control of the abutting property, business house, hotel or railroad depot: Provided, however, that such consent may be revoked by such property owner or person, corporation or company having control thereof, giving at least ten days’ written notice to be served on the owner or driver of such vehicle and a copy thereof, with proof of such service, filed with the City Clerk: And provided further, that the City Commission shall have the power at any time to revoke such consent or permit: And provided further, that this section shall not be construed to prevent or interfere with the driver of any licensed vehicles hereinbefore mentioned from, temporarily stopping at any convenient place, not elsewheré prohibited by ordinance, for the purpose of discharging or receiving passengers.”
The petitioner contends that this section, if enforced against him, will destroy the profits of his business; that there is no express authority from the state justifying its enactment; that it does not protect or purport to protect the health, safety, morals or welfare of the public, and is not a proper exercise of police power. It is claimed that the section is unreasonable, oppressive, uncertain, not uniform in its operation, discriminatory, in restraint of trade, and that it deprives him of his property and earnings without due process of law. There is the further contention that the ordinance delegates to private persons and others the power to enforce its provisions and to determine who are entitled to its benefits, and to discriminate between persons engaged in the same line of business, and further, that it permits private individuals to confer a monopoly upon favored firms and individuals. We may pass by a great deal of surplusage in the petition, such as the averments that it is opposed and condemned by a large majority of the public, and that protests against it have been signed by many business men.
The various grounds urged against the validity of the ordinance have been pleaded and presented in the petitioner’s brief in the form of a general indictment. Before attempting to consider them it is proper to state some general rules that are applied in the construction of city ordinances.
Where the city has authority to act, it is governed by its own discretion, and not that of the courts. (Fisher v. Harrisburg, 2 Grant [Pa.], 291.) So, where an ordinance is within the express power granted, the court can only construe the extent of the grant, and has nothing to do with the reasonableness of an ordinance carrying it into effect. Our attention has not been directed to any statute conferring express power upon the city to enact the particular provisions of section 9, and the respondents rely upon the general grant to cities of the first class of power over streets'; the powers conferred upon such cities to issue licenses and to regulate the business of operating hackneys, taxicabs, and other vehicles transporting merchandise, baggage or passengers for hire (Gen. Stat, 1915, § 1221) ; and the grant of the police power, and the authority conferred by the general welfare clause. It has been said that—
“Where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid.” (2 Dillon on Municipal Corporations, 5th ed., § 600; City of Lake View v. Tate, 130 Ill. 247, 252.)
An ordinance may be adjudged reasonable as applied to one state of facts and unreasonable when applied to circumstances of a different character; and facts may be pleaded and proved tending to show it to be unreasonable as applied to a particular person. (City of Chicago v. Gunning System, 214 Ill. 628, 641; Penna. R. R. Co. v. Jersey City, 47 N. J. L. 286.) “But the courts will declare an ordinance to be void because unreasonable upon a state of facts being shown which makes it unreasonable.” (2 Dillon on Municipal Corporations, 5th ed., § 591. # See, also, City of Emporia v. Railway Co., 94 Kan. 718, 147 Pac. 1098; Smith v. Hosford, 106 Kan. 363, 187 Pac. 685.)
Upon the theory of the law just stated, it is averred in the petition that for years it has been the custom and habit of persons engaged in the taxicab business to stand and solicit business in front of the railway stations in the city, not only for the profit and benefit of themselves, but for that of the traveling public, and that section 9 in no Way benefits the pub- . lie or any person, except those using it to secure a monopoly of the taxicab business, and it is alleged that the Payne Taxicab and Baggage Company, or a business conducted in that name, has negotiated with certain railway companies for a monopoly of the business of operating taxicabs to and from their railway stations in the city. The same allegations are made with respect to the owner of a certain hotel in the city. And in this connection it is alleged that the railway companies are public common carriers of freight, passengers, baggage, and express, and have published and declared their rates and the character of their business, and that their stations in the city are for the benefit and use of the traveling public.
The answer of the respondents, after denying the contention that section 9 is discriminatory, and alleging that every taxidriver has equal opportunity to obtain the permit from the abutting property owners in order to use any portion of a street as a hack stand, alleges that section 9 goes no further than to recognize the rights of property owners to prevent the use of public streets abutting their property for private purposes without their consent; and that the rights of the public are protected by the provision that such consent may be revoked by the city commission if it finds that any hack stands are interfering with the use of the public street for the regular purposes of public traffic. It is admitted, however, in the answer that the Payne Taxicab Company is operating under an agreement with the Rock Island and Union Pacific railway companies by which it is given exclusive privilege to stand its taxicabs and solicit business upon the property of these railroads and to solicit business in their depots and on their station platforms. It is alleged that neither company has given consent, as provided under the ordinance, for any person to use the public streets abutting their depots for the purpose of hack stands, but on the contrary both have notified the city authorities that they desired all taxicabs kept away from the public streets adjacent to their property, and that such streets be left open for the convenience and use of ordinary traffic and such private vehicles as have occasion to stop from time to time at the stations. The answer also admits that under the provisions of section 9 the managers of the National Hotel have given their consent that the Payne Taxicab Company may stand taxicabs at the side entrance of the hotel, and have given no consent to any other party.
Before taking up the contention that the ordinance is void because it permits and authorizes the creation of a monopoly, we may first inquire whether in other respects section 9 is oppressive, partial or unfair, or authorizes unwarranted discriminations. If it is open to these objections it must be held unreasonable. The petitioner relies upon the Salvation Army case (Anderson v. City of Wellington, 40 Kan. 173, 19 Pac. 719), and kindred cases. In that case an ordinance declaring it unlawful for any person, society, association, or organization, under whatsoever name, to parade the public streets shouting, singing, or beating drums, etc., or playing upon musical instruments, or doing any other act designed to attract or call together an unusual crowd of people upon the streets without having first obtained in writing the consent of the mayor, or in his absence, the president of the council, city clerk or the city marshal, in the order named, authorizing such parade, was held to be of doubtful delegated power and unreasonable because it did not fix the conditions uniformly and impartially, and contravened common- right. The opinion, by Commissioner Simpson, has frequently been cited in textbooks and by other courts in support of the general proposition. It is insisted that the doctrine of that case and other decisions which have followed and approved it (Crawford v. City of Topeka, 51 Kan. 756, 33 Pac. 476; Paola v. Wentz, 79 Kan. 148, 98 Pac. 775, and similar cases) control the present case. We do not think so. The principles declared in those cases are only in the most general way applicable. It is well settled that it is within the general powers of cities to protect the traveling public from imposition and annoyance or improper conduct on the part of baggagemen and taxi drivers, and that ordinances enacted for the purpose of regulating such business are not unreasonable nor open to the objection that they unjustly discriminate where all are treated alike. This court has held that a regulation of a city requiring hackmen and others who solicit passengers at railway stations, to occupy certain places designated by the city marshal, is not invalid nor open to the claim of discrimination in the -regulation because it placed them all under the direction and control of the city marshal, which was held to be a reasonable and practical method of regulation. (Ottawa v. Bodley, 67 Kan. 178, 72 Pac. 545, cited in Note, L. R. A., 1915F, 726.) It has been held that it is no objection to the validity of such an ordinance that it requires the solicitors and vehicles to remain within the stands assigned, although some are much more advantageous than others, so that the hotels receiving the more favorable assignments have a. material advantage over others. (City Cab, Carriage & Transfer Co. v. Hayden, 73 Wash. 24.)
Is the ordinance invalid because it delegates power to abutting property owners to grant or withhold the consent? It will be observed that this consent is not required for the purpose of passing over the streets nor for stopping to discharge a passenger or to take on a passenger; it forbids the establishing of a hack stand by the proprietor of a taxicab or hack in any portion of a public street without first obtaining the written consent of the abutting owner. The petition relies upon the recent case of Smith v. Hosford, 106 Kan. 363, 187 Pac. 685. The ordinance involved there placed it in the power of the city officers to grant a permit to build a garage or to refuse such permit at will; the city clerk was prohibited from issuing the license or permit until the application was first approved by the board of commissioners. It was held that it left the granting of the permit to the arbitrary discretion of the municipal authorities without any limitations or restrictions, and for that reason was void. It is true, in the present case there is no limitation or restriction on the rights of the abutting property owners to grant or refuse the permit, but the ordinance recognizes the inherent right of the property owner to insist that the public streets shall be maintained for strictly public purposes; unless he sees fit to waive his rights by giving his consent to the standing of hacks or táxicabs on the street in front of his property. It cannot be doubted that the abutting owner possesses valuable property rights in a public street which are not enjoyed by the public. His right to ingress and egress to and from his property cannot be unduly restricted. (Longnecker v. Railroad Co., 80 Kan. 413, 102 Pac. 492.) He may enjoin an obstruction or nuisance in the street which occasions a special annoyance, inconvenience or damage to him. The interest of the abutting owner in a shade tree growing in the street is as sacred as any other property right. (Paola v. Wentz, supra.) The title to the land comprising the street is not in the city, but in the county, and upon a vacation of the street, the title reverts to the abutting owners. (Wallace v. Cable, 87 Kan. 835, 127 Pac. 5.) It has been held, as against the abutting owner and without his consent, even the legislature has not the power to confer upon any person the right to make use of the highway for any other purpose than to pass and repass. (McCaffrey v. Smith, 41 Hun. [N. Y.] 117.) An ordinance which permitted owners and drivers of hackney coaches to occupy and use the side of a public street on which plaintiff’s storerooms fronted, as a hackney coach stand, in such manner as to constitute an unlawful interference with the use of the plaintiff’s premises, Was held void. It was said:
“As well might the city authorize permanent booths or structures for the use of dealers in the various articles of trade. Having no rent to pay, the occupants could accommodate the public at better rates.” (Branahan v. Hotel Co , 39 Ohio St. 333, 334.)
The petitioner has no inherent right to make a public hack stand of any part of the street. Doubtless, in the absence of an ordinance attempting to regulate the use of the streets in this respect or to prohibit all taxicab drivers from so doing, they may be left free to use the streets in that way until prevented by a lawful ordinance. The provision requiring the property owner’s consent before the street may be occupied for the purposes of establishing hack stands is not unreasonable. It is not open to the objection that it permits unlawful discrimination, because it applies to all proprietors of hacks and taxicabs and to all abutting owners. It leaves no unregulated discretion in some officer of the corporation. It provides for all of the terms under which the permit is to be issued and prescribes a uniform rule applicable to all of the classes to which it applies. The argument that in order to avoid violation of the ordinance, taxi drivers in the city are compelled to procure the written consent of the property owners abutting upon miles of streets, is based upon the unwarranted assumption that the ordinance forbids the petitioner and others similarly situated from traveling upon the streets in the prosecution of their business. The consent of abutting property owners is required only where a taxicab driver seeks to establish a public stand for soliciting business.
A case in point is McFall v. City of St. Louis et al., 232 Mo. 716, in which substantially all the contentions raised here are determined adversely to the petitioner. It was there held that a municipal ordinance is not invalid as unconstitutionally granting special privileges, which allows the municipality to grant special permission to licensed taxi drivers who can procure the consent of the abutting property owners, to stand their vehicles in the street in front of such property, when the same privilege is not granted to those who do not obtain such consent. (See, also, Landberg v. Chicago, 237 Ill. 112, 21 L. R. A., n. s., 830; City of New York v. Reesing, 77 App. Div. [N. Y.] 417.)
The remaining question for consideration is the validity of the ordinance as affecting the rights of the abutting owner of railroad property. The conceded facts are that under the authority of the ordinance certain railroad companies have granted to a competitor of the petitioner the exclusive privilege of standing his taxicabs and to solicit business upon the railroad property and in the stations and on the station platforms. Exclusive franchises granted by a city are not always unlawful, although creating legal monopolies. (O’Neal v. Harrison, 96 Kan. 339, 150 Pac. 551; Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194.) In the O’Neal case it was held:
“Under a statute giving it power to make regulations to secure the general health, to prevent and remove nuisances, and to compel and regulate the removal of garbage and filth beyond the corporate limits, a city may grant an exclusive right to the highest bidder to remove all garbage, the term being defined, in the ordinance authorizing the action, to mean ‘all rejected food, offal’. In re Lowe, Petitioner, 54 Kan. 757, 39 Pac. 710, overruled.” (Syl.)
The opinion, however, quoted with approval from 2 Dillon on Municipal Corporations, 5th ed., § 678, in which the reasons for upholding the granting by a city of an exclusive right to remove garbage and refuse matter are expressly stated to be that—
“Garbage matter and refuse are regarded by the decisions as inherently of such a nature as to he either actual or potential nuisances. By reason of the inherent nature of the substance, it is therefore not a valid objection to an ordinance requiring disposal in a specified manner that garbage has some value for purposes of disposal, and that the effect of the ordinance is to deprive the owner or householder of such value,”
and that upon these considerations it is within the power of the city to grant an exclusive franchise.
So far as the question as to granting a monopoly affects the present case, it turns upon whether a distinction must be made between railroad property and the property of other abutting owners. And upon this question there is an irreconcilable conflict in the decisions. The averment in the petition that for years it has been the custom and habit of persons engaged in the taxicab business to stand and solicit business at these railroad stations, and upon portions of the railway ground used by the public for that purpose, can hardly be said to add anything to the petitioner’s rights, because assuming that he was one of those formerly favored in this respect, he was a mere licensee liable at any time to have his license revoked. He had no express authority to make use of the railroad stations or grounds for the purpose of soliciting passengers or establishing a hack stand. Referring to the same contention in a similar case, the New Hampshire supreme court, in Hedding v. Gallagher, 72 N. H. 377, said:
“But it is elementary that a mere license to enter upon land is not by lapse of time changed into an absolute right of entry. . . . But all such licenses are in their nature revocable, and if actually revoked, and due notice given to an individual or class of individuals, and they still persist in entering, it is without a license, and the owner has a right to exclude them.” (p. 383.)
The defendants in that case, who were insisting upon the right to enter upon the railroad property to solicit the business of carrying the baggage of passengers, were common carriers themselves. It was held, however, that the railroad company might give such right to one individual or common carrier and exclude others from its grounds, if the reasonable requirements of passengers were fully met, and in reference to the railroad’s duty to its passengers in this respect, it was said:
“Whether the soliciting agents are independent local - truckmen, or whether they are men specially permitted by the railroad to perform that service in its station, is an unimportant detail iii the reasonable performance of the public duty to passengers of providing adequate facilities for the transfer of baggage,” (p. 380.)
and that to hold the contrary
“is the assertion of a principle founded upon the radically erroneous assumption that the property of a railroad may be used by others, without compensation and against the -protest of the corporation, for the prosecution of their private business.” (p. 381.)
Among the cases cited by the petitioner in'his brief is New England Express Company v. Maine Central Railroad Company, 57 Me. 188, holding that one common carrier was legally required to carry another common carrier (an express company) although such other carrier desired to conduct an independent business on the property of the first. The decision was overruled by the supreme court of the United States in the Express Cases, 117 U. S. 1.
Not only in the earlier decisions, but in the more recent ones, the courts have divided upon the question whether a railroad company may lawfully permit a hack company to have the exclusive right to stand and solicit patronage upon the railroad company’s premises and exclude all other hackmen, provided adequate accommodations are furnished to passengers arriving at or departing from the station. One line of decisions asserts that the upholding of such an exclusive privilege prevents competition between rival carriers of passengers, creates a monopoly in the privileged hackmen likely to result in inconvenience and loss to persons traveling over the railroad or those having freight transported over it, and in effect confers upon the railroad company the control of the transportation of passengers beyond its own lines, a right not granted by its charter and against the interests of the public. These decisions take the ground that the question affects not only the excluded hackmen, but the interests of the public, and that the railroad company cannot arbitrarily, for its own pleasure or profit, admit to its platforms or depot grounds one carrier of passengers or merchandise and at the same time exclude all others. The leading cases supporting this doctrine are: Lucas et al. v. Herbert et al., 148 Ind. 64; Pennsylvania Co. v. Chicago, 181 Ill. 289; Hack & Bus Co. v. Sootsma, 84 Mich. 194; Montana Union Co. v. Langlois, 9 Mont. 419; Cravens v. Rodgers, 101 Mo. 247; Indianapolis Union R. Co. v. Dohn, 153 Ind. 10; State v. Reed, 76 Miss. 211; McConnell v. Pedigo & Hays, 92 Ky. 465; Palmer Transfer Co. v. Anderson, 131 Ky. 217.
The Kentucky court, in reaffirming its decision in the Pedigo & Hays case, supra, held that—
“A contract by which a railroad gave a transfer company the exclusive use of a part of its station grounds along which there was a gravel walk, and which was most convenient to the trains on which the greater number of passengers arrived and departed, so that such passengers were compelled to walk 150 feet past the transfer company’s cabs before reaching a place where the ' other cabs could stand, gave the transfer company a practical monopoly of the transfer business, and was void.” (Palmer Transfer Co. v. Anderson, supra.)
Among the English authorities supporting the same doctrine are Parkinson v. Great Western Ry. Co., 6 C. P. (L. R.) 554; In re Palmer and Brighton, etc., Ry. Co., 6 C. P. (L. R.) 194; In re Marriott, 1 C. B., n. s., 499.
In a note by Mr. Freeman to the Sootsma case, swpra, in 22 American State Reports 699, the author asserts that— ,
“Notwithstanding the serious conflict existing between the authorities upon this subject, we think the better reasoning sustains the doctrine approved in the principal case; namely, that a railway company or other common carrier may exclude all persons from its depot or grounds who are not using or seeking to use its means of carriage, hut it cannot grant an exclusive right or more favorable preference to one individual or company engaged in soliciting patronage from its passengers, than it gives to another individual or company engaged in the same line of business. It seems to us that an agreement to grant such exclusive privilege to any one person is contrary to public policy and the spirit of our laws, especially in the face of a statutory or constitutional provision existing in nearly all of the states prohibiting discrimination in charges or facilities for transportation between carriers or individuals, or in favor of either.” (p. 699.)
In reference to the conflict upon the subject in the decisions, the author says:
“Still, we apprehend that the majority of them, as well as the better reasoning, are in support of the English doctrine above announced.” (p. 699.)
All the cases holding this doctrine recognize that the railway companies which control depot grounds and buildings may make needful rules for their regulation, and protect passengers and others lawfully on their grounds from annoyance.
The following American cases sustain the doctrine that a common carrier may grant an exclusive privilege to one and exclude all others who desire to go upon his premises for the sole purpose of soliciting customers or business: Old Colony Railroad Co. v. Tripp, 147 Mass. 35 (The Chief Justice and two Associate Justices dissenting) ; Boston & Albany Railroad v. Brown, 177 Mass. 65; Kates v. Atlanta Baggage & Cab Co., 107 Ga. 636; N. Y., N. H. & H. R. R. Co. v. Bork, 23 R. I. 218; Hedding v. Gallagher, 72 N. H. 377; Norfolk & W. R. Co. v. Old Dom. Baggage Co., 99 Va. 111; State v. Depot Co., 71 Ohio St. 379; New York, N. E. & R. R. Co. v. Scovill, 71 Conn. 136; Fluker v. The Georgia Railroad and Banking Co., 81 Ga. 461; McFall v. City of St. Louis, 232 Mo. 716; Railroad v. Davidson, 33 Utah, 370; Union Depot & Ry. Co. v. Meeking, 42 Colo. 89; Depot Carriage & B. Co. v. Kansas City Terminal Ry. Co., 190 Fed. 212; Skaggs v. Kansas City Terminal Ry. Co., 233 Fed. 827.
In Donovan v. Pennsylvania Company, 199 U. S. 279, it was held that the arrangement with the Parmalee company gave it an opportunity to control to a great extent the business of carrying passengers from the depot to other railway stations and hotels, or private houses. It was said:
“But in a real, substantial, legal sense, that arrangement cannot be regarded as a monopoly in the odious sense of that word, nor does it involve an improper use by the railroad company of its property.” (p. 297.)
The reasoning of the cases upholding exclusive contracts of this character are well stated by the supreme court of Utah in the case of Railroad v. Davidson, supra. That was an action for injunction. The defendant had fenced off a portion of its depot grounds for the accommodation of passengers arriving or departing on the trains and for the convenience of cabs and other vehicles engaged in transporting passengers and baggage to and from its trains. It permitted all persons to enter the fenced-off portion to' have access to the trains if engaged to meet incoming passengers or to deliver baggage, but required them to leave the inclosure as soon as they had received such persons or baggage or after delivering the baggage or passengers at the trains. The company had entered into an arrangement with a reliable company owning suitable carriages and other vehicles for the transportation of passengers and had given it the exclusive privilege of entrance into the inclosure. In the opinon it was said:
“Appellants argue that they obtain the right from the fact that the respondent may not discriminate as between applicants in conferring the privilege, and that, if it grants it to one, then it has waived the right to exclude all others and must admit all.” (p. 377.)
It was said that the mere fact that the grantee is not excluded, would not give appellants the legal right to enter. In the opinion it was said:
“Assuming that the respondent may not create a monopoly in this regard, and for that reason the exclusive privilege granted to one is void as against public policy, how does this give the appellants the right to enter upon the respondent’s premises for the purpose of soliciting business? Does the" granting of an exclusive privilege to one, which, as is contended, is illegal and void, transform what are termed mere privileges into absolute rights?” (p. 378.)
It was further said:
“If appellants desire to be carried as passengers or intend to deliver or receive freight, they may enter upon respondent’s premises as a matter of right. All or any one of them may also do this in behalf of another who has business with respondent; but this gives them no legal right to require the respondent to devote any of its property to their use for the purpose of soliciting business for themselves,” (p. 378.)
In some of the decisions upholding similar exclusive contracts by railroad companies, it has been asserted that the numerical weight of authority in this country supports that doctrine; on the other hand, it has. been as often asserted in decisions denying the right of a railway company to make such a contract, that the numerical weight of authority upholds that contention. The conflict as to this matter is generally supported in each instance by drawing distinctions between the facts involved in some of the cases, and eliminating them from the count. Without attempting to -determine upon which side rests the numerical weight of authority, we approve the reasoning of the cases following the supreme court of the United States in the Donovan case, and hold that it is no objection to the validity of the ordinance that it permits abutting property owners, including railroad companies, to make such exclusive contracts.
In the Donovan case, supra, the Pennsylvania Company .owned a passenger station in Chicago and had made a contract with the Parmalee Transfer Company under which two of' its agents were permitted to stand within the depot building to solicit the custom of passengers. The appellants were hackmen and insisted on the right to have two of their number enter the building to solicit custom. The main question was the right of the hackmen to solicit business within the station over the appellee’s protest. The court held that, “Its property is to be deemed, in every legal sense,' private property as between it and those of the general public who have no occasion to use it for purposes of transportation.” (p. 294.) The circuit court enjoined the hackmen from congregating on the sidewalk in front of, adjacent to or about the entrances of the passenger station, and there soliciting custom. Both the court of appeals and the United States supreme court held that the injunction was too broad, and that only “such congregating” on the sidewalk could be restrained “as would interfere with the ingress and egress of passengers and employees.” (p. 801.) Justice Harlan, who wrote the opinion, held that—
“Licensed hackmen and cabmen, unless forbidden by valid local regulations, may, within reasonable limits, use a public sidewalk in prosecuting- their calling, provided such use is not materially obstructive in its nature; that is, of such exclusive character as, in a substantial sense, to prevent others from also using it upon equal terms, for legitimate purposes. Generally speaking, public sidewalks and streets are for use by all, upon equal terms, for any purpose consistent with the object for which such sidewalks and streets are established; subject, of course, to such valid regulations as may be prescribed by the constituted authorities for the public convenience; this, to the end that, as far as possible, the rights of all may be conserved without undue discrimination.” (p. 303.)
It was further said:
“The city has no power or authority to grant the exclusive use of its streets to any private person or for any private purposes; but must hold and control the possession exclusively for public use, for purposes of travel and the like.” (p. 302.)
In the present case the ordinance forbids the use of the streets in front of railway stations as cab stands, without the consent of the abutting owner, and permits the owner of the station to grant an exclusive permit to one individual to use the streets for that purpose. While it is conceded that the railroad companies concerned in the particular contracts in question have notified the city that they would grant no permit for the use of the street in front of their stations as a hack stand, the validity of the ordinance in this respect is involved in the case, but since, in our opinion, there is no ground for a distinction between the right of the owner of railroad property abutting upon a street and that of any other abutting property owner, it follows that the ordinance is not void in this respect.
The writ will, therefore, be denied.
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The opinion of the court was delivered by
Porter, J.:
The Ismert-Hincke Milling Company is a corporation operating a flour mill in the city of Topeka. It is under the provisions of the compensation law. On the 17th of October, 1918, Almon Slater, a boy 16 years of age, was in the employ of the milling company and was killed in an accident while in the course of his employment. His father and mother brought this action to recover under the workmen’s compensation act for his death.
The court made findings of fact which show that the boy had been in the employ of the Ismert-Hincke Milling Company less than two months at the time of his death. He was receiving wages at the rate of $17.45 per week, which was the average weekly wage paid to workmen in the same kind of employment. His father, Ira S. Slater, who for more than a year had been in the employ of the milling company, was receiving exactly the same wages. Each week during the time of his employment, the boy turned over all his wages to his father, which, together with the wages received by his father, was used for the support and maintenance of plaintiff’s family, which consists of the father, mother, and six children ranging in age from two to fourteen years. The deceased lived at home with his parents and received his board and keep the same as the other children, no charge being made therefor. His father gave him small amounts of spending money from time to time. The court finds that the fair value of his board and maintenance, including such spending money, amounted to about $5.00 a week, and that the plaintiffs were dependent upon the earnings of the son to the amount and extent of $17.45 per week and were dependent to the extent of all of his earnings. As a conclusion of law from the foregoing facts, the court held that plaintiffs were entitled to recover under the compensation law the sum of $2,722.20, and judgment was rendered for that amount.
The Ismert-Hincke Milling Company appeals from the decision, and the sole contention is that it should be given credit for the $780 which would be the amount of the cost of the board and keep of the plaintiff’s son had he lived for the period of the three years for which compensation is fixed. The plaintiffs insist that the son was under no obligation to pay and was not paying board at the time of his death, and therefore that the expenses should not be held as reducing the amount of his earnings, or as affecting the extent of plaintiffs’ dependency. Under the provisions of section 5905 of the General Statutes of 1915, as amended by Laws of 1917, chapter 226, section 3, where death results from injury and the workman leaves dependents wholly dependent upon his earnings, the amount of compensation is fixed at a sum equal to three times his average yearly earnings, but not to exceed $3,800 and pot less than $1,400. Where he leaves persons in part dependent upon his earnings, the compensation is fixed at “such proportion of the amount payable under the provisions” of the preceding clause “as may be agreed upon or determined to be proportionate to the degree of dependency.” The proportion of the dependency was not agreed upon in this case and was not expressly found by the trial court, further than the finding that the parents needed all of the son’s earnings.
The question is not free from difficulty. There is, however, no provision in the statute that in case of the death of a workman the cost and expense incurred in his board and support during his lifetime shall be taken into consideration for any purpose. It is conceded that the minor in this case was not paying board. His parents were obliged to support him, and were entitled to all his earnings. It is argued with much force, too, that there is no more reason for deducting the living expenses- of a minor than there would be to make such a deduction from the earnings of the father in case of his death. There being no express provision in the statute, it must be held that in ascertaining the average yearly earnings of the minor, and in fixing the degree of dependency of the parents, the employer is not entitled to a credit or deduction for the expense of the minor’s board and support.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
Cresencia Romerez brought this action to recover for the death of her son, Juan Romerez, at the defendant’s packing house, and recovered. The defendant appeals. Juan Romerez and Jose Lopez were meat truckers, as was also a fellow worker, Basil Sims. The duty of Juan and Jose was to truck beef livers and hang them on racks. A quarrel arose between Sims, a trucker of ox tails, and Juan, resulting in an injury to the latter and some loss of blood, which caused the foreman to send him to the doctor’s office. Jose did not wish to continue the work of trucking alone and was told to wait until his partner, Juan, returned. Sims got behind with his work, and another employee named Hall was sent to assist him. When Juan and Jose passed these two it is claimed that Hall made insulting remarks which caused a quarrel between him and Juan. Hall ran to another part of the building, secured a knife, returned and stabbed Juan, who died almost instantly. The claim of the defendant was and is that the death was not an injury by accident arising out of and in the course of his employment.
It is argued that in entering upon a quarrel with Hall, and stopping at the rack where Hall and Sims were working, Romerez departed from his employment and was not engaged in the duty he was employed to perform, but, on the contrary, was interfering with the employer’s business. One witness testified:
“When we came in Sims was up on this keg hanging tails and Hall was standing on one side. We were passing Sims and Hall to take our truck about ten or twelve feet beyond them, when Hall started calling us names. We stopped there because be began saying things. Juan and Sims began to argue and Hall went after the knife.”
Another witness testified:
“The Mexicans left the truck in the alley and come back to the negroes. The negroes started hollering. Told the Mexicans to ‘get out.’ I was about 30 feet away. The Mexicans and the negroes were jumping back and forth. I saw the negro hit the Mexican and he turned around and fell.”
Another workman:
“Sims was hanging tails; Mexican say to Sims, ‘I say I get you; you got me.’ Mexican stopped pushing truck and take knife and jump for Sims. Sims was on a tierce. Hollis Hall say ‘get out of the way Mexican —get out of the way Mexican,’ and Mexican jumps for Sims and Sims holler and was scared and this Mexican jumping all the time for Sims, and Hall holler ‘get out of the way, Mexicano; I hit you.’ ... I was within five feet of them when the Mexican was stabbed. . . . He (the Mexican) called Sims a-, and jumped for Sims with a knife.”
Quite an attempt was made to show that Hall was sent down as a peacemaker, but objections were sustained and the attempt failed. Offers were made to prove that the foreman in- , structed Hall to go down and work with Sims, and if there was any trouble between the Mexicans and Sims to stop it; also, to prove that Hall had stated that the foreman sent him down to work with Sims, and if there was any trouble down there he was instructed to stop it. Lopez testified that the foreman told Sims to go back to work, and Sims said he was afraid of the Mexicans; that the foreman told him not to wprry, he would get him another partner “so they won’t jump on you.” Sims himself testified that after the first fight when the Mexicans both jumped on him he went upstairs to the boss, and the Mexicans were there, and told the foreman that he had had a fight with them and did not care to go back there any more. Repeated efforts were made to get Sims to say that the foreman told Hall to go downstairs to work with him, and that if there was any further trouble to stop it. He was finally induced to say that he had made the statement to someone that the foreman told Hall to go down and help him catch up with his work, and “if the Mexicans started anything to get out of there and not have nothing to do with them.” This all indicates that if there was any direction by the foreman for Hall to quiet any disturbance it was on the theory that the Mexicans might start a disturbance, and not the colored boys, and the testimony already quoted indicates that, aside from the abusive language used, the assault started from the Mexican side. At least, there is nothing in the record to show, and had the offered evidence been received there would have been nothing to indicate, that the foreman had any reason to think there would be an assault by Sims and Hall on the Mexicans, or either of them.
It is quite clear that had the deceased been working elsewhere he would not have been in danger, and that the trouble with Sims arose out of a collision quite liable to occur at such work, and that the fatal fight was a result, direct or indirect, of the Sims altercation. Whether the injury arose out of the employment remains to be seen.
It is contended by the defendant that the court should not have held the employer liable unless the danger of being assaulted, either willfully or sportively, inhered in the nature of the employment, and it is said that in all of the cases found in the books where the employer has been held liable the injured man was hurt in the course of his employment and was not actuated by feelings of animosity towards his fellow1 workmen. It is also contended that Romerez and Lopez stopped their truck and came to the place where Hall and Sims were at work on account of the names the former had been called by the latter, and that Romerez turned aside and stopped his work for his employer and entered into an altercation whereby he lost his life, owing to his personal animosity'towards Hall.
While it might be plausibly argued that the foreman must have known after the encounter between the deceased and Sims that in the very course of nature another altercation might result from throwing them together, and that in permitting Lopez to wait until his partner returned from his interview with the doctor the foreman expected him to have the protection which a working partner might afford, and, hence, had a reasonable suspicion that such protection might be necessary, the serious block to this line of reasoning is that there was no assault except by words until the Mexicans left their truck and engaged in their quarrel with the negroes ten or twelve feet away, and it is impossible to say that this situation was one reasonably to be expected by the employer. However much provocation or justification may have existed for the resentment felt by Romerez on account of the abusive language used by the negroes, the fact remains that he stepped aside from his work and left his task to settle this matter of personal spleen. It cannot be held that in so doing he was in the line of his employment, or that the regrettable result arose out of such employment. (Kiser, Workmen’s Compensation Acts, p. 80, § 72; Jacquemin v. Turner & Seymour Mfg. Co., 92 Conn. 382; Griffin v. Robertson & Son, 176 App. Div. [N. Y.] 6; Stuart v. Kansas City, 102 Kan. 307, 171 Pac. 913; White v. Stock Yards Co., 104 Kan. 90, 177 Pac. 522; Benson v. Railway Co., 104 Kan. 198, 178 Pac. 747; Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372.)
“ ‘The injury by accident must have occurred as something which would not have occurred but for the circumstance of the employment and as having been something due to it — the employment — and it must further have occurred during its currency.’ ” [Lord Haldane in Lancashire & Yorkshire Ry. v. Highley, 15 N. C. C. A. 210, 244.] (Benson v. Railway Co. 104 Kan. 198, 203, 178 Pac. 747.)
The judgment is reversed with directions to enter judgment in favor of the defendant.
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The opinion of the court was delivered by
West, J.:
The city of Wichita appeals from a judgment in favor of the plaintiff on account of damages inflicted by an alleged mob.
The amended petition alleged in substance that four men assembled themselves together for the purpose of defying the law and committing violence against the plaintiff and his family, and did, at or about the hour of eleven o’clock, p. m., surround his home and with force and violence break down the rear doors, .the locks, hinges and fastenings thereon, and enter the home and assault the plaintiff; that his wife and daughter were in bed at the time; that these four men went into their rooms and by force and violence compelled them to get out of bed, and with force and violence went through the house, ransacked closets, drawers and cabinets and continued in such unlawful conduct until assistance was called for; that in assaulting the plaintiff they wrenched and bruised both his arms, his legs and his chest, and that he suffered great pain as a result thereof; that his wife received a severe nervous shock, and being ill at the time, suffered a nervous breakdown rendering her unable to attend to her household duties, and causing a doctor’s bill of two hundred fifty dollars; and that the damages to the house amounted to six dollars.
The defendant answered denying any unlawful assembly, and pleaded that these men were officers and acted as such pursuant to a search warrant in their possession duly issued by the police judge.
The plaintiff testified in substance that he owned his home where he had lived for nine years; that he was working as a blacksmith for the Ford Motor Company; that on the day of the injury complained of he reached home about six o’clock, and about eleven o’clock at night, hearing a noise at the door, he asked what was wanted, and some one answered, “This is Stuckey,” and said he wanted some whisky, to which the plaintiff replied, “This is no joint.” This person then went away a short distance when some one came out of the weeds and the two started back towards the house. The plaintiff got a shotgun, and went to the door to see what was wanted and, upon inquiring, was told, “We want whisky.”
-1
“I says, ‘There is no whisky here,’ and I stepped outside, and the four of them jumped and grabbed me, one of them kicking me, and the other hit me on the head with his gun, and another says, ‘Shoot him.’ I broke loose from them, and rushed back into the house and locked the door, and told my daughter. . . . They kicked me on the leg, and one of them hit me on the head with his gun.”
His daughter started to call the police, when all four of them broke the door down and came in.
“When they broke the door down, then they says, ‘You don’t need to telephone the police officers; we are the police.’ I says, ‘Show me your warrant.’ ‘We haven’t any.’ I says, ‘Show me your authority.’ T will not do it. I don’t have to.’ I says, ‘This is my house; you do have to. I have a right to protect my wife and daughter.’ ”
Showing no authority, they said:
“ ‘We want to search the house,’ and one of them went into the pantry and searched around; one searched my wife’s cupboard, and bursted my daughter’s trunk and searched around there. . . . My wife and daughter were in their night clothes. . . . My wife tried to keep them — and she said, ‘Wait a minute.’ They were tearing the stuff out, and they said, ‘Get away from here and attend to your own damned business.’ ”
They all went out by the side of the house, and one of them said:
“You fellows have made a serious mistake.”
Mrs. Moore testified, among other things, that when the men had finally broken in, her daughter, who was a telephone girl, called the police—
“Well, she was telephoning and told them to hurry quick; she says, they are breaking in right now. Just then our door fell and four men flew into the room, and the bunch of them almost fell to the floor, they came in so quick.”
After describing how they searched through her things, she said her.daughter had a trunk of freshly laundered clothes, and when the witness offered to take these things out one of the men shoved her away and said: “ ‘Go on out and attend to your own business.’ And cursed besides.”
The daughter, after telling of the assault upon her father and the taking of the gun from him, and how she telephoned for the police, was asked how they broke in—
“They kept hammering on the door and hollering to let them in, and they broke the door in .
“Q. When they were breaking the door in what were you doing?
A. Calling- the police station. ... I just told them, there were burglars, they were breaking in now, come quick.
“Q. Did you know at the time that you were talking to them, that they claimed to be officers? A. No, sir.
“Q. Had they said anything about being officers? A. No, sir.
“Q. Well, what happened after you said they were breaking in right now, come quick. A. When they got in, they screeched at me and said, ‘You don’t need to call the police station; we are officers.’”
The defendant requested the court to instruct, among other things, that the term “mob,” as used in the statute under which this action was brought, means a collection of three or more persons assembled together for an unlawful purpose and intent, to do any unlawful act with force and violence against the person or property of another, and that before the plaintiff could recover he must prove that his injury, if any, resulted from the action of a mob thus defined. This was refused, but the statutory definition of a mob was given and a charge to the effect that if the persons charged with injuring the plaintiff were police officers of the city and acting under a warrant issued by the police judge, which warrant at the time described the property, the- jury must find for the defendant, but if the jury should find that the persons constituted a mob and were not acting under a warrant, or that such warrant did not describe the premises, the plaintiff was entitled to recovery if injured in person or property; that if the officers of the city were acting under a warrant they had a right to enter the premises and search them; also, that the law imposes a privilege and duty upon a person to protect his own home, and, if the police officers of the city were not acting under authority of a warrant, the plaintiff was justified in protecting his home, even in taking the life of persons who might unlawfully endeavor to break into it. One instruction declared:
“The law holds that a man’s home is inviolate; that a man may protect his family and his home even to the extent of taking life, if such becomes necessary.”
The jury returned a verdict for the plaintiff for two thousand dollars, but the court gave him the option of remitting all but five hundred dollars or submitting to a new trial. Such remittitur was accepted and judgment rendered for five hundred dollars.
Error is assigned on overruling the defendant’s challenge to a juror, in restricting counsel in his questions on the voir dire examination, on giving and refusing instructions, and on denying a new trial.
One juror said that he had an opinion on the case founded on newspaper articles which he had read; that he had not talked with any one who knew anything about the facts; and that he would be governed by the evidence. He was asked if he put enough confidence in market reports and current events to conduct his business upon that as a basis, to which question an objection was sustained. He was asked if in daily activities he took the things he saw as facts, more or less. He said: More or less, but did not always rely on newspaper reports as being true; that he had an opinion, unless changed by evidence; and that it would take some evidence to change it, but that as soon as evidence should be introduced this newspaper opinion would disappear; and that he felt he could freely render a verdict upon the evidence as submitted.
The old theory that a juror’s mind must be like a piece of blank paper has happily gone into ancient history. It is clear that what this juror had was a mere newspaper impression, and not a fixed opinion, and he could not have helped the situation by telling the extent to which he relied in everyday business upon newspaper reports.
Fault is found with an instruction that if there was a mob as defined by the statute it was no defense, that a part of it was composed of police officers acting unlawfully or in conjunction with a mob, as unduly emphasizing the plaintiff’s contention that the officers became a mob because they failed to disclose that they were officers or to produce a warrant. As no excuse appears for their failure and repeated refusal to show any authority for their invasion of the plaintiff’s home, this instruction was entirely proper.
The same fault is found and the same conclusion reached touching another instruction, to the effect that when an arrest is made by any other than a known peace officer he must disclose his authority when requested so to do.
It is said that, assuming the court’s instruction regarding a man’s right to protect his home and family and the plaintiff’s right to resist police officers if not acting under the authority of a warrant to be a correct statement of the law, it was not ap plicable, the vital question being whether or not there was a mob in fact. So long as it is not asserted that this instruction was inherently incorrect or that it worked any harm, it cannot be deemed to have been erroneously given.
Much fault is found that the court did not give the dictionary definition of “mob,” which Bouvier says is—
“A tumultuous rout or rabble; a crowd excited to some violent or unlawful act.”
and Webster — ■
“The, or a, disorderly element of the populace; the rabble; a riotous assembly; a disorderly crowd; ...”
But the statutory definition which was given is—
“That any collection of individuals assembled for an unlawful purpose, intending- to injure any person by violence, and without authority of law shall for the purpose of this act be regarded as a ‘mob.’ . . .” (Gen. Stat. 1915, § 3727.)
The act also provides, and the jury were instructed, that—
“If three or more persons shall assemble together with intent to do any unlawful act with force and violence against the person or property of another, or to do any unlawful act against the peace, or being lawfully assembled, shall agree with each other to do any unlawful act aforesaid, shall make any movement or preparation therefor, the person so offending on conviction thereof shall be fined in the sum not exceeding two hundred dollars.” (Id., § 3674.)
These were sufficient.
Counsel say that if the police officers failed to disclose their official capacity or produce a warrant it did not make them any less officers or render the city liable for their nonfeasance. Naturally, it was essential for the city to demonstrate that these officers did not constitute a mob, for if they did, the city is liable under the statute for their unlawful conduct. While it is forcibly argued that the plaintiff seeks to construe them into a mob for damage-suit purposes, the difficulty is that some plain-clothes men who may have had authority to act in an orderly way saw fit to act exactly like a mob, even when requested to exhibit their authority.
One of the maxims most deeply embedded in the hearts of English-speaking people is 'the one quoted by all, and familiar even to school children, that, “A man’s house is his castle.” The Roman definition of a home was a place—
“Where a man hath his hearth, his household gods and the sum of his possessions. . . . whither having wandered, he longs to return, and whence having returned he ceases to wander.”
It was comparatively but a short time after the passing of the dark ages and the dawning of the Renaissance that Coke coined this apt phrase as a statement of a primary principle of the common law. He said:
“For a man’s house is his castle, for where shall a man he safe if it be not in his house.” (Coke upon Littleton, 3d Inst., 4th ed., 162.)
This was published in 1669.
In Semayne’s case, 3 Coke’s Reports, 188, it was resolved that—
“The house of every one is his castle, and if thieves come to a man’s house to rob or murder, and the owner or his servants kill any of the thieves in defense of himself and his house, it is no felony and he shall lose nothing.” (Syl. ¶ 1.)
It was resolved that—
“In all cases where the King is party, the sheriff may break the house, either to arrest or to do other execution of the King’s process, if he cannot otherwise enter. But he ought first to signify the cause of his coming, and make request to open the doors.” (Syl. ¶ 3.)
In Bettisworth’s Case, 1 Cope’s Reports, 516, it was said:
“Thirdly, peradventure the lessee durst not for fear of force, etc., be upon the land to preserve his possession, but his house is his castle, which he may by law safely keep, and therefore the case of the house is the stronger.” (p. 517.)
In Bowles’s Case, 6 Coke’s Reports, 149, it was said:
“The house of a man has privilege to protect him against arrest by virtue of process of law at the suit of a subject, ... It has privilege against the King’s prerogative, for it was resolved by all the Judges, . . . that those who dig for saltpetre shall not dig in the mansion-house of any subject without his assent; for then he, or his wife or children, cannot be in safety in the night, nor his goods in his house preserved from thieves and other misdoers. ... If a man is in his house, and hears that, others will come to his house to beat him, he may call together his friends, etc., into the house to aid him in safety of his person for, as it has been said, a man’s house is his castle and his defense, and where he properly ought to remain.” (p. 155.)
One writer clothes the maxim in these words:
“To every one, his house is his surest refuge; . . .” . (Wharton’s legal Maxims, p. 77. Maxim XXI.)
Blackstone, in his delightful style, says:
“Burglary, or nocturnal housebreaking, . . . which, by our ancient law, was called hamesecken, as it is in Scotland to this day, has always been looked upon as a very heinous offense; not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation which every individual might acquire even in a state of nature; an invasion, which, in such a state, would be sure to be punished with death, unless the assailant were the stronger.' But in civil society the laws also come in to the assistance of the weaker party; and, besides that they leave him this natural right of killing the aggressor, if he can (as was shown in a former chapter), they also protect and avenge him, in case the might of the assailant is too powerful. And the law of England has so particular and tender a regard to the immunity of a man’s house, that it styles it his castle, and will never suffer it to be violated with impunity.” (4 Wendell’s Blackstone’s Commentaries, 222.)
The fame of the elder Pitt as an orator rests to quite an extent upon his eloquent parliamentary attack in 1764 on the question of general warrants. He said that a search and seizure of papers without a specific charge alleged would be-repugnant to every principle of. liberty. The most innocent man could not be secured.
“But by the British constitution, . . . every man’s house is his castle. Not that it is surrounded with walls and battlements. It may be a straw-built shed. Every wind of heaven may whistle round it. All the elements of nature may enter in. But the king cannot; the king dare not.” (12 Biographical Dictionary 257.)
The court in its instructions did not- invest the plaintiff’s house and home with more sacredness from unlawful entry than the law accords to it.
We must not remove the ancient landmarks of common-law liberty, or weary of the presumptions accorded those suspected or accused of crime, or become impatient with the muniments of title which have for centuries made us feel secure in the possession of our Anglo-Saxon freedom. The human tendency to exalt and expand a little brief authority may sometimes be excusable, but it can never form a justification for refusal at the expense of settled principles of liberty to make its possession known when properly called upon to do so.
The undisputed testimony is to the effect that the plaintiff is a law-abiding citizen, and to invade his house and treat him and his wife and daughter the way they did, the men com posing this mob in fact and in law brought the defendant city within the plain operation of the statute invoked. On what principle the defendant was relieved of three-fourths of the liability found by the jury we do not know, but gauging the size of the verdict by the evidence we have no hesitancy in saying that there was no symptom of passion or prejudice.
The city argues that it should not be taxed with the costs for the reason that no claim was filed within the time and manner required by the statute, but before the time fixed by the statute had expired a claim was filed and presented, although this had not been done when the action was begun. The only trouble with it is the lack of verification. The statute prohibits the audit or allowance of such a claim unless verified, but only prohibits recovery of costs when the “cjaim . . . has not been presented to the city council to be audited, . . .” (Gen. Stat. 1915, § 1406.) It can hardly be said that this claim was not presented for audit and allowance, notwithstanding the failure of the claimant to add a verification. As to recovery of costs, the presentation rather than the verification is the essential prerequisite.
No error, therefore, arose in adjudging the city liable for costs.
The judgment is affirmed.
Johnston, C. J., dissents.
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The opinion of the court was delivered by
Marshall, J.:
Drainage district No. 1 of Chase county appeals from a judgment of the district court rendered on an appeal by the board of county commissioners from an order of the board of supervisors of the drainage district overruling the objections filed by the board of county commissioners to the engineer’s report. The district also appeals from the judgment of the district court reducing the assessment of benefits to the county and costs to be paid by it.
In 1916 a drainage district was organized in Chase county under sections 3992-4031 of the General Statutes of 1915. That district published a notice in Chase county notifying all parties interested in the lands embraced within the district that they might file their objections to the report of the engineer within the time fixed by law, and that such objections would be heard on Monday, November 20,1916. The attorneys for the board of county commissioners negotiated with the attorney for the drainage district for additional time in which to file their objections. The time therefore was extended, and objections were not filed until November 28, 1916. Thereafter, the board of county commissioners and the supervisors of the drainage district, through their attorneys, negotiated for a settlement of the differences that existed between the two boards. These negotiations continued until January 1, 1917. On December 9, 1916, the supervisors of the drainage district overruled the objections of the board of county commissioners, and adopted and confirmed the report of the engineer, and fixed the assessment of benefits and costs to Chase county, as follows: Total benefits, $5,370; assessment of costs, $2,685. On January 1, 1917, the board of county commissioners and the supervisors of the drainage district were each in session, and an agreement concerning the assessments and benefits was thought to have been reached, but when the attorneys undertook to reduce the agreement to writing, a dispute arose and no agreement was finally made. The attorneys for the board of county commissioners then suggested to the supervisors of the drainage district that the objections of the county commissioners be overruled; that the county commissioners would then appeal to the district court; and that the matter could there be settled. One of the supervisors then informed the attorneys for the county commissioners that the objections had been overruled on December 9, and that it was too late to take an appeal. The county commissioners had no notice or knowledge of any meeting on December 9. On January 9, they filed their notice of appeal to the district court. In that court the supervisors of the drainage district filed.a motion to dismiss the appeal on the ground that it was not taken according to the provisions of the statutes governing the same. The matter urged was that the appeal was not taken in time. The commissioners then filed a pleading which they denominated an answer and cross petition, in which they recited the facts set out, and asked that the board of supervisors of the drainage district be directed to correct their records so as to recite the facts set out in the answer and cross petition. The motion to dismiss the appeal was denied, and the board of supervisors was directed to correct its records. On the trial the district court reduced the assessment of benefits from $5,370 to $1,800, and directed that the costs levied against' the county should be decreased in the proportion in which the benefits had been decreased. From these orders the drainage district appeals.
1. One proposition urged by the drainage district is that the district court did not have jurisdiction to hear the appeal because it was not taken in time. Section 4008 of the General Statutes of 1915 provides that an appeal may be taken from the decision of the board of supervisors within ten days after the rendition of the decision. The supervisors contend that the decision overruling the objections of the county commissioners was made on December 9, while the county commissioners argue that because of the conduct of the supervisors no proper decision was rendered until January 1, 1917. This necessitates an examination of the conduct of the board of supervisors through their attorney in extending the time in which to file objections and in negotiating for the adjustment of differences after the obj ections of the county commissioners had been overruled. Good faith demanded that the board of supervisors should cease their negotiations with the county commissioners after the objections had been overruled, as the county commissioners knew nothing of the order of the supervisors. Good faith further demanded that the supervisors notify the county commissioners of the order that had been made. Neither of these things was done until January 1, 1917, on which date the supervisors notified the county commissioners that their objections had been overruled. If the county commissioners were deprived of their right to appeal from the order of the supervisors, a premium would be placed on trickery between different departments of public .service where nothing but the utmost good faith should prevail.
The county commissioners had a right to file their objections, a right to be heard thereon, and a right to appeal from the order overruling their objections. They cannot be deprived of that right by being misled by the conduct of the supervisors. The appeal was taken within ten days after the county commissioners were notified of the order overruling their objections. It must be held that the appeal was taken in time and that the district court-had jurisdiction to hear the same.
2. It is urged that the application for the correction of the record of. the action of the- supervisors of the drainage district was a collateral attack on the record, and that the record was conclusive. The attack on the record was made in the proceeding of which the record purports to be an official account. When the appeal was taken, the record of the proceedings, so far as the county commissioners were concerned, was transferred to the district court, and that court had jurisdiction of the entire matter the same as the supervisors had before the appeal was taken. The supervisors could have corrected their record and made it tell the whole story. The district court, when it acquired jurisdiction of the matter, had authority to do the same things that the supervisors could have done. The attack was not collateral; it was direct, just as direct as an appeal from a judgment of the district court to the supreme court in an ordinary action. In Shuster v. Overturf, 42 Kan. 668, 671, 22 Pac. 718, this language is found:
“If the transcript was incorrect as to the date of the rendition of the judgment, or if it improperly omitted the presentation or approval of the appeal bond, the defendant had an ample remedy. When the motion to dismiss was made, he might have suggested a diminution of the record. The justice could then have been compelled to correct his transcript according to the facts of the case. This was not done.” (p. 671.)
In the present case the district court ordered the supervisors of the drainage district to correct their record. This they failed to do. The district court acting within its power, then corrected the record.
3. The drainage district contends that the court erroneously placed the burden of proof on the district. It is argued that this was prejudicial error. It does not appear that the drainage district failed to introduce all its evidence. This court, in Gemienhardt v. Ward, 101 Kan. 250, 167 Pac. 1141, said:
“In a proceeding to review an official survey the burden of proof should be imposed on the party who assails the survey; but when the rival parties have had ample opportunity to present all their evidence, the fact that the trial court imposed that burden on the party seeking to uphold the survey is not prejudicial error.” (Syl. ¶ 1.)
“It does not appear that any prejudice resulted in requiring the de■fendant to take the initiative. Both parties produced all the available ■evidence; there was no jury; and the trained mind of a trial judge would hardly be led astray by the mere fact that the evidence supporting the survey was presented to him before he heard the evidence assailing it.” (p. 251.) .
(See, also, Bank v. Brecheisen, 98 Kan. 193, 196, 157 Pac. 259; In re Osborn’s Estate, 99 Kan. 227, 233, 161 Pac. 601; Hennig v. Gas Co., 100 Kan. 255, 164 Pac. 297; In re Holloway’s Estate, 100 Kan. 368, 164 Pac. 298; Boutross v. Insurance Co., 100 Kan. 574, 578, 164 Pac. 1069; Rains v. Weiler, 101 Kan. 294, 300, 166 Pac. 235.)
4. Another proposition urged is that the court erred in reducing the assessment of benefits to the county and the costs to be paid by it. The court had jurisdiction of the appeal. The appeal was taken for the purpose of determining the benefits received by the county and of apportioning to the county its share of the costs of the construction of the improvements. It was the duty of the court to adjudicate both matters on the evidence produced. This the court did. Other than the argument against the jurisdiction of the court, nothing is advanced to show error in rendering the judgment; it is not contended that the judgment was not supported by evidence.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The appeal is from an order overruling plaintiff’s motion for judgment on the pleadings.
The action was brought to recover the sum of $155 alleged to be due plaintiff as the premium on a guardian’s surety bond. The petition alleged that Bertha W. Cole was appointed by the probate court of Mitchell county guardian for four minor children of Frank A. Cole, deceased, and was required by the court to furnish a surety bond in the sum of $34,400 for the faithful performance of her duties as such guardian, and that the plaintiff as surety executed the bond to run three years, the defendant agreeing in her written application therefor to pay plaintiff as premium for the first year $113 and at the rate of $75.46 for any period in excess of the first year. It alleged that the excuse defendant presented for refusing to pay the premium for the second and third years was that on 11th day of June, 1918, the probate court of Mitchell county had entered an order at her request releasing the plaintiff from further liability upon the bond, and that the order of the probate court was void and of no effect.
The answer set up as a defense that J. J. Kindscher, who was the local agent of the plaintiff for executing the bond, was informed that the defendant desired a bond for one year only, when she expected to furnish a personal bond; that the agent orally agreed with her and on behalf of plaintiff that the obligation to retain plaintiff as her surety and to pay the premiums stipulated in the application should be binding upon her only for the period of one year, and that by reason thereof it was the understanding and agreement between plaintiff and herself that the application was for one year, with the privilege of a longer suretyship if defendant desired, and that it was upon the representations of the local agent of plaintiff and upon this understanding that she signed the application. The ánswer further alleged that prior to the 15th day of March, 1918, the plaintiff by its local agent requested payment of one year’s premium on the bond and stated that payment was required to extend the bond for another year; that through her attorney the defendant replied that a personal bond had been arranged for and that the bond here involved was no longer needed; that thereupon the local agent of the plaintiff stated that his company wanted a record to place in its files showing that it had been released from liability by the probate court, and asked the attorney to prepare a petition for its discharge and file it in the court; and that all of these matters were within the scope of the agent’s employment and authority and in accordance with the provisions of the application for the bond. Attached to the answer was a copy of the petition for the discharge of the surety company, which contains no mention whatever of any request that the application be made on behalf of the plaintiff. It recites that the guardian had been discharged as to one of the minors and still had in her possession $20,000 belonging to three minors, and “now tenders her personal bond in the sum of $41,000 and asks the court for an order releasing said Southern Surety Company of St. Louis, Mo., from further liability on its bond.” It was alleged that in pursuance of this application the probate court-made the order of record discharging plaintiff from any further liability.
The plaintiff filed a demurrer to the answer and a reply denying that J. J. Kindscher had or possessed any authority as the agent of the plaintiff to make any oral agreement with the defendant contravening the terms of the written contract, or that he had any authority as its agent to make application for the discharge of plaintiff or the release of the bond. Plaintiff then filed its motion for judgment on the pleadings, which was overruled.
The provisions of the statute for the discharge of a guardian’s sureties are sections 4673 and 5071 of the General Statutes of 1915. The last mentioned section provides that sureties upon the bond of a guardian may be released in the same manner as sureties of executors and administrators under section 4673, which provides that it shall be lawful for the surety at any time to make application to the probate court to be released from the bond by filing his request therefor with the court and giving at least five days’ notice in writing to the principal, and “when such court is of opinion that there is good reason therefor, shall release such surety; . . . The costs of such release shall be paid by the surety applying to be released, unless it shall appear to the court that the adminis trator or executor [or guardian] is insolvent, incompetent, or is wasting the assets of the estate.” This is the procedure and the only one provided by the statutes for the release of a surety upon a guardian’s bond.
Jt is suggested in the defendant’s brief that section 5062 of the General Statutes of 1915 has some application. The section reads:
“Guardians of the property of minors must account on oath annually, or oftener if required by the court. It may also direct them to give new or additional security, or may remove them for good cause shown, which cause must be entered on the records.”
Obviously, it has no application to the situation presented in this case. The purpose of the section, so far as it refers to a guardian’s sureties, is merely to give to the probate court' authority to require a guardian to give new or additional security. The expression “or remove them for good cause shown, which cause must be entered on the records” refers to guardians and not to sureties. It is the guardian who may be removed by the order of the probate court “for good cause shown.”
There is no provision in the statute authorizing the probate court to discharge a guardian’s surety from liability by the acceptance of another bond. Where another bond is accepted, it is merely cumulative. (Richter v. Estate of Leiby, 101 Wis. 484; Ward et al. v. The State of Mississippi, 40 Miss. 108; Sebastian v. John Bryan, 21 Ark. 447.)
In Rush v. The State, ex rel. Bixler, Guardian, 19 Ind. App. 523, it was said:
“The only way a surety can be released from liability on an administrator’s or guardian’s bond is to comply with the letter of the statute, and make his application thereunder for release.” (p. 534.)
In Clark v. American Surety Co., 171 Ill. 235, the probate court on the application of the administrator entered an order discharging the surety and directed a new bond to be filed. It was held that the order was void because there was no statutory authority for the release of the surety on the petition of the administrator alone.
The duties of the probate court with respect to guardian’s bonds are purely statutory. As said by the court in Ætna Accident & Liability Co. v. Langley (Okla.), 174 Pac. 1046:
“The county court is merely the instrument by which the bond is obtained. When that is done and the bond is approved, the power of the court over it ceases except such as may be expressly conferred by statute. . . . It is generally held that the court having jurisdiction of the appointment of guardians, executors, and administrators and settlement of their accounts has not the inherent power to discharge such bonds or release the sureties from liability thereon (Richter v. Leiby’s Estate, supra; Shaffner v. Rogers, 53 Pa. 470; Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714, 40 Pac. 229) ; but such power must be conferred by statute, and where there is such a statute, its provisions are mandatory and a strict compliance therewith is essential to work a release of the surety. Overfield v. Overfield, 30 S. W. 994, 17 Ky. Law Rep. 313; Barker v. Boyd, 71 S. W. 528, 24 Ky. Law Rep. 1389; Riee v. Wilson, 129 Mich. 520, 89 N. W. 336; Brehm v. United States Fidelity & Guaranty Co., 124 Wis. 339, 102 N. W. 36; Kaspar v. People, 230 Ill. 342, 82 N. E. 816.” (p. 1048.)
There can be no doubt that if the guardian in the present case had wasted the estate the surety company would have been liable on its bond and could not have set up as a defense the fact that the guardian had procured an order from the probate court discharging the surety. No authorities are needed to show that the averments in the answer of the oral understanding with the local agent as to the effect of the written application for the bond established no defense, and the mere averment that the local agent of a surety company for the execution of the bond had authority to bind the surety company by an agreement to have an application made to discharge the surety is likewise untenable.
The judgment will be reversed and the cause remanded with directions to render judgment on the pleadings in favor of the plaintiff.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action to cancel an oil and gas lease on his property. He charged the defendants with failure to pay rent, with nonproduction, abandonment of producing operations, and failure of defendants to drill “offset wells” as provided in the lease. Plaintiff prayed also for an attorney’s fee and $100 as statutory damages.
Issues were j oined, and the cause came on for trial, but after hearing the opening statements of counsel for plaintiff and defendants and the evidence of one witness for defendant who explained why the gas contained in one well on the property was not marketed, the court gave judgment for plaintiff cancelling the lease; but denied to plaintiff the statutory damages and attorney’s fee because of his noncompliance with the provisions of section 4992 of the General Statutes of 1915.
Both parties appeal. Plaintiff’s grievance is the nonallowance of his fees and damages. Defendants’ grievance is the cancellation of their lease.
First, as to plaintiff’s appeal: The first statute relating to the release of oil and gas leases was enacted in 1905. (ch. 314.) It merely made it the duty of a lessee of a forfeited lease to cause it to be released of record, and gave the lessor a right of action (which he already possessed in law or equity) to obtain such a release, if the lessee failed to comply with that statute.
In 1909, a new statute was enacted (ch. 179) which repealed the act of 1905, and provided (§1) that it should be the duty of the lessee of a forfeited lease to discharge it of record without cost to the lessor. The act also provided (§2) that if the lessee failed to execute a release, the lessor might sue to obtain such release, and in such action he would be entitled also to attorney’s fees and damages in the sum of $100. This section also provided for additional damages, (but see Grain Co. v. Railway Co., 105 Kan. 272, 275, 276, 182 Pac. 405.) Section 3 provided that at least twenty days before this statutory action to obtain a release should be instituted, the lessor should-make a demand upon the lessee to discharge the lease of record.
Section 2 and section 3 of the act of 1909 are still in force and appear in the General Statutes of 1915 as sections 4994 and 4995.
Section 1 of the act of 1909 (Gen. Stat. 1909, § 3921) was amended and elaborated in 1915 (ch. 228) by an act of two sections which cover the subject of forfeitures of leases, notice of forfeitures, duties of the register of deeds in relation to the record, and the legal effect of affidavits, etc., filed in his office. These two sections of the act of 1915 appear in the General Statutes of 1915 as sections 4992 and 4993. Neither of them confers a cause of action to have a lease discharged of record. That cause of action is conferred by the still existent section 2 of the act of 1909 (Gen. Stat. 1915, § 4994), and as a condition precedent to the statutory right to attorney’s fees and $100 damages in such action a demand upon the holder of the lease for its discharge of record must be made twenty days before the action is begun.
It is conceded that this demand was made upon the defendants before the action was begun, but the trial court ruled that the act of 1915 imposed an additional prerequisite to the granting of attorney’s fees and damages.
Counsel for plaintiff: “We now offer to prove our right to attorney • fees.”
By the Court: “I think prior to the 1915 statute you would have been entitled to attorney fees, but after the 1915 statute Mr. Elliott has to follow that statute in order to be allowed such fees. I think it is immaterial. Of course, if yo.u want to make your offer go ahead, but I think the whole thing is immaterial.”
Counsel for Plaintiff: “The plaintiff offers to prove . . . the
value of the legal services rendered plaintiff in this case to be worth $1500.00.” . . . [Objection.]
By the Court: “The objection is sustained for the reason that it is immaterial under the issues.”
Counsel for Plaintiff: “The plaintiff now asks for $100.00 statutory damages.” . . . [Objection.]
By the Court: “It is clear enough to me that the 1915 statute is supplemental to the 1909 statute, and in order to get within the 1909 statute you must comply with the 1915 statute, I will render judgment for plaintiff on the statements and pleadings cancelling the lease, and refuse damages and attorney fees.”
We are constrained to differ with the learned trial court on this proposition. The first section of the act of 1915 (Gen. Stat. 1915, § 4992), like the act of 1905, and the first section of the act of 1909, made it the duty of the holder of a forfeited lease to release it of record. But as to all else in the act of 1915 (Gen. Stat. 1915, §§ 4992, 4993) the subject covered has to do with a permissive procedure to show the status of the lease on the records of the register of deeds, and for clearing the lessor’s title of the apparent cloud or encumbrance of such lease. The act of 1915 does not confer the cause of action, nor does it affect the cause of action. The statutory cause of action remains as it was enacted in 1909. (Gen. Stat. 1915, §§ 4994, 4995.)
It thus appears that the plaintiff is entitled to the statutory damages of $100 allowed by section 4994. And this conclusion will necessitate a partial reversal of the judgment.
Is there any difficulty about ordering an allowance for attorney’s fees? The plaintiff offered to prove the value of the attorney’s services, but he did not prove that value. The evidence was excluded — erroneously, no doubt, but yet excluded. What was the proper course to pursue ? It was to produce such proof orally or by affidavits in support of his motion for a new trial. (Civ. Code, § 307; Scott v. King, 96 Kan. 561, Syl. ¶ 4 and citations, 152 Pac. 653; Smith v. Smith, 104 Kan. 629, 631, 180 Pac. 231.)
But a failure to make proof of the value of an attorney’s services stands on a different footing from an ordinary issue of fact, about which the court knows nothing until the evidence is submitted. Judges are none the less lawyers because they happen to be on the bench and temporarily out of the practice of their profession. They usually know what a lawyer’s services are worth, and the opinion evidence of witnesses touching the value of such services is often not very helpful and seldom controlling. The trial judge knew without formal evidence that the plaintiff’s counsel had earned something, that some allowance should be made to pay them; and he refrained from making some reasonable allowance, not for want of evidence, but because of what he understood to be the effect of the act of 1915.
In this jurisdiction it is not unusual for our courts, where attorney’s fees are a lawful charge, to allow reasonable attorney’s fees without formal proof or in disregard of proof of the value of the attorney’s services. In such cases the allowance is based upon the court’s own information of what service the attorney has performed, and upon the court’s discretionary judgment of what such services are worth. (Bentley v. Brown, 37 Kan. 14, 14 Pac. 434; Noftzger v. Moffett, 63 Kan. 354, 65 Pac. 670, The State v. Porter, 76 Kan. 411, 91 Pac. 1073; The State v. Glass, 99 Kan. 159, 162, Syl. ¶ 7, 160 Pac. 1145.)
In this case the court should have made some allowance for attorney’s fees.. It should still do so. Such allowance should be based upon the trial court’s judicial notice of the attorney’s services performed in that court, but should not include any allowance for services rendered in this appeal. (Mortgage Co. v. Insurance Co., 97 Kan. 190, 155 Pac. 17.)
Second, as to defendant’s grievance: Trial court cancelled the lease. This was a hardship on appellants. They had spent large sums of money in prospecting, and had drilled three or four wells, one of which would produce a large volume of gas, if a market could be obtained for it. Unfortunately, however, aside from some small sales to drilling outfits, the lessees have been unable to sell the gas. A large pipe line crosses the country near by, but it is a high-pressure line, and it is impossible to force the gas from the lessees’ wells into that trunk line without a pressure pump which could be constructed only at ruinous expense. And so all development and production ceased upon this leased property several months before this action was begun.
It was not suggested either in the' trial court nor here that further forbearance on the part of the lessor would give the lessees any hopeful chance of finding a market for the gas. The lessees have simply quit, and while the courts always give a willing ear to any rational theory for avoiding a forfeiture, we can discern no way the trial court could have avoided a declaration of forfeiture in this case. The contract of lease provided:
“It is agreed that this lease shall remain in force for a term of five years from this date and as long thereafter as oil or gas, or either of them is produced from said land by the party of the second part, . . .
“Sixty days after both producing and drilling operations cease this lease to be void and surrendered for cancellation.”
The contract did not provide for the contingency that gas wells might be developed which would be unproductive for want of a market. As the matter stands, the lessor’s property is no more productive to him than if the lessee had found no gas. And while the. lessees have expended much money to drill these gas wells, the wells are of no present or prospective value to them. In such a situation the lessor seems to be entitled to a termination of the lease under the plain text of the contract. Cleared of this lease, it may be possible for the lessor to make other arrangements to secure production.
The judgment on the plaintiff’s appeal is reversed, and the trial court is instructed to allow to plaintiff the statutory damages of $100 and a reasonable attorney’s fee. The judgment of the trial court on defendants’ cross appeal is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In a taxpayers’ suit to enjoin proceedings for the establishment of a road benefit district and for the improvement of a road, the trial court sustained a demurrer to the petition, and the plaintiffs appeal.
The Atchison, Topeka & Santa Fe Railway runs from the east line of Barton county to the east line of the city of Great Bend through the entire length of the proposed benefit district and is the largest taxpayer in Barton county and in the townships through which it is proposed to construct the road. It is shown in the petition that on the first day of April, 1919, there was filed with the county clerk a petition for the proposed improvement and for the creation of the road benefit district. One the same day the board of county commissioners met and adopted an order and resolution allowing the petition and found that it was signed by the requisite number of resident landowners and that the improvements prayed for were of public utility. Proceedings were under way for the construction of the road at the time this action was commenced. The plaintiffs’ petition set out a copy of the petition for the im provement, which stated that the improvements prayed for “shall consist of grading, draining and the surfacing of the said road for a width of sixteen to eighteen feet, as your honorable body may determine, with material to be selected by your honorable body . . . from any of the following, to wit: first, concrete; second, macadam; third, tarvia; fourth, monolithic brick pavement; or fifth, a brick pavement on concrete base; and also the building of all necessary bridges and culverts; all in accordance with plans, specifications and estimates to be approved by the state highway engineer, and by the United States Secretary of Agriculture, or such Federal official as may have jurisdiction where Federal aid is granted and accepted,” (with this further limitation) :
“and all on condition that no award for improvements herein prayed for shall be made upon any bid which will make the average cost of the same per mile more than Thirty Thousand Dollars and then only in case Federal aid is secured for at least fifty per cent of the cost thereof.”
The principal question for determination is the effect of the condition providing that the improvements prayed for should not be made if the average cost of the same per mile should be more than $30,000. The plaintiffs’ petition alleges that the proposed highway cannot be constructed for less than $40,000 per mile, and probably much more, and that this fact was well known to the board of commissioners; and it is suggested that the great advance in the cost of material of all kinds since the suit was commenced shows that the cost per mile would more likely approximate $60,000.
The defendant contends that the condition attempting to limit the cost of the improvement must be considered as mere surplusage. No authorities have been cited (and we have been unable to find any) which sustain the contention. There can be no doubt of the purpose and intent of the signers to the petition. They were willing to have the improvement made and the portion of the cost provided by the statute assessed against their lands upon condition that the cost of the improvement should not exceed a certain sum per mile. They were not willing to have the petition construed as authorizing the board to make the improvements if it were found that the cost per mile would exceed $30,000. It is true, there is no provision in the statute áuthorizing the landowners re siding in a proposed benefit district to limit or control the cost per mile of the improvement. But the landowners have a vital interest in the question of cost, and presumably the requisite number of signers could not have been secured unless the petition contained the limitation upon the cost of the improvement. It may be that the board could have refused to consider the petition on the ground that the statute contains no provision for conditional petitions for road improvements, and that mandamus would, not lie to compel the board to act upon a conditional petition.
We shall briefly refer to the few authorities which the plaintiffs concede are all they have been able to find bearing upon the question. In the case of Newton v. Emporium Boro., 225 Pa. St. 17, where the property owner wrote the word “conditionally” after his signature to a paving petition without specifying what the condition was, although the evidence showed that when he signed the petition he stated it was on condition that the sewers should first be improved, it was held that in order to confer jurisdiction on the council to pave a street, the petition must be signed unconditionally by the owners of the necessary two-thirds feet frontage thereon, “in order, to fully and legally bind the petitioners,” and that the addition of the word “conditionally” after a signature, and without specifying what the condition is renders the signature invalid, inasmuch as it puts the council upon notice that there is some condition attached to the signing, and any condition whatever will render the signature void. The supreme court in that case adopted the opinion of the presiding judge of the court of common pleas. In the opinion the case of Von Steen v. City of Beatrice, 36 Neb. 421, was cited, the condition there being that the grade should be satisfactory and that the trees should not be molested. The Pennsylvania court approved the following statement of the Nebraska court:
“We agree with the district court that the petition to confer upon the council jurisdiction must he unconditional, and that no argument is required to prove that the signatures . . . should have been rejected ” (p. 429.)
It also cited Batty v. City of Hastings, 63 Neb. 26, in which the Nebraska court reexamined the question and adhered to the decision in Von Steen v. City of Beatrice.
In Norwood v. Mills Estate, 8 Ohio Dec. S. & C. P. 669 (also cited in the Pennsylvania case) a landowner signed a petition for improvements conditioned on his tenant agreeing to pay the costs, and it was held that the consent of the owner of the fee was not such a one as to bind him for the assessment.
The only case cited where the condition related to the amount of the cost of the improvement is Watkins v. Griffith, 59 Ark. 344, and in that case the facts were not analogous to those in the case at bar. The majority of the property owners in the proposed district asked that the street to be improved should be “graded, rolled, shaped and graveled.” It was held that the board was not authorized to substitute for the improvement asked an entirely different and more expensive one consisting of macadamizing the street and building stone curbs and gutters, and the collection of all assessments to pay for the latter improvements was enjoined.
From the few cases cited the weight of authority appears to uphold one of plaintiffs’ contentions, which is, that a conditional signature is to be entirely disregarded in determining the number of valid signatures. However, the petition in this case is conditional as to all the signatures and it is only necessary to determine whether the board could accept it as a petition and ignore the condition. In our opinion, they could not act upon it as a petition without giving to the condition the force and effect intended by the signers, and the petition conferred no authority upon the board to construct a road the cost of which would exceed the amount stated in the petition.
We think it is quite clear that the signers of the petition intended by the condition that the improvement should not be made and their property taxed for the improvement if the average cost per mile was to be more than $30,000. There is, therefore, no force in defendant’s contention that the petition fails' to state a cause of action.because it shows that the board declined to accept any of the bids for the work and was proceeding to take charge of the improvements and to have the work done in conformity with the plans and specifications under the provisions of section 4 of chapter 246 of the Laws of 1919, which authorizes the board to “let contracts for the labor only or the labor and a portion of the material,” and to “purchase any or all of the materials that enter into the improve ments of said highway and may supply same to the contractor or contractors.” The defendant’s contention in this respect is predicated on the technical definition of the words “award” and “bid” as used in the language employed by the subscribers to the petition in stating the condition.
(Filed April 17, 1920.)
SYLLABUS BY THE COURT.
Road Benefit District — Petition Signed Conditionally — Petition Not Necessarily a Nullity. A petition for the creation of a road benefit district and for the improvement of the road is not rendered a nullity by reason of a condition therein limiting the cost of the improvement. But if the board of county commissioners see fit to accept and act upon such a conditional petition, it must accept it as a whole and cannot ignore the condition and order the improvement made.
Finally, it is urged that the railway company cannot maintain the action because it did not sign the petition and none of those who did is complaining of the action of the board in attempting to proceed with the improvements. Any property owner whose lands will be charged with a part of the cost of the improvement is entitled to insist that the improvement shall not be made if the cost is to exceed the limitation contained in the petition. The law contemplates that the minority who do not sign the petition and who are bound by the proceedings instituted by the majority, have the same right to insist that proceedings shall be in accordance with the petition as has any of the signers thereof.
The judgment will be reversed and the cause remanded with directions to overrule the demurrer and to enter judgment for the plaintiffs.
Johnston, C. J., dissents.
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The opinion of the court was delivered by
West, J.:
The plaintiff recovered a judgment for $1,336.09, with interest, for cattle purchased by one Corder, who was by the plaintiff claimed to be the agent of Paugh and Company, a partnership composed of the defendants and engaged in buying live stock at Wichita. The defendants appeal, and assign as error the refusal of the court to sustain their demurrer to the plaintiff’s evidence, the refusal to sustain the motion for judgment on the special findings and the motion for á new trial, the admission and rejection of certain testimony, the giving and refusing of certain instructions, and the allowing of prejudicial statements by the plaintiff’s attorney.
The whole contention hinges on the alleged agency of Corder, which was denied by the defendants, who claim there was no proof to justify the verdict, and that one of the answers by the jury to a special question showed that the proof had failed. They were asked if Paugh and Company was to receive any remuneration from the sale of the live stock shipped by Corder, other than as commission merchant, and answered, “We don’t know.” This was equivalent to “No.” (Bank v. Claypool, 91 Kan. 248, 137 Pac. 949.) Hence, the case must be treated as one in which the company was to receive no remuneration aside from its commission. While it would seem unreasonable that the commission company could have employed Corder when it was to receive nothing on account of the cattle shipped by him except a commission, and that the answer practically settled the case in favor of the defendants, still we have carefully gone over the evidence to see what effect should be given to it aside from this point. Corder resided and did business near Gage, Okla. In the fall of 1913, and for some time before, he was buying cattle, and had chosen Paugh and Company as his commission merchants. In April, 1913, Paugh and Company wired the bank at Gage that at any time Corder had a shipment ready, and wanted to make a draft for cost they would pay the drafts. Corder showed this telegram to the bank, to the clerk of the bank at Wilcox, Ariz., and claimed that it indicated that Paugh and Company were to pay for them. A witness was permitted to testify that Corder told him that he was buying for the commission company. A bookkeeper for Paugh and Company, who drew all the checks for the company, testified that a commission of $96 was charged Corder, making a total of $599.10 for expenses, but that no commission was charged for the cattle sold at Gage, Okla., by Corder. He also testified that there was nothing on the books to show any account of the plaintiff, and nothing on the account sales with Corder, or any Corder account to show that any cattle were procured from the plaintiff.
Mr. Lehrling, one of the 'defendants, testified that they never employed Corder to buy cattle for the company; that he and Mr. Paugh were active members of the firm, and Mr. Kanavel was the silent member.
We fail to find any evidence to show that Corder was the defendants’ agent. The company seems to have staked him in buying cattle, and to have collected the ordinary commission for those sold for him. Only this, and nothing more. The defendants seem to rely largely on certain telegrams. One was from Corder to the company, to the effect that he had bought 355 cows and 10 calves, and wired the bank at Gage. One was from the company in answer to the Gage bank:
“We will pay Corder’s draft drawn on us when the drafts are received by you.”
One was to Corder asking him how many cattle he had bought and what he had paid for them. Also one to him—
“Notify Ray when you will get there can sell some cows there.”
It is argued that because Corder showed some of this telegraphic correspondence to the plaintiff and talked with him to the effect that Paugh and Company intended to furnish the money, the plaintiff had a right to so conclude, and it is said:
“If appellants are not liable for appellee’s cattle then appellants will be relieved of a liability which they had intended to incur, and release from which is not due to any change of conditions or circumstances which should affect their obligation in this case.”
It is quite common for a commission firm to furnish a cattle buyer money with which to operate, and not be liable for his debts to the person from whom he buys, and we find no evidence here to indicate any difference with reference to this case.
The judgment is reversed, and the cause is remanded with directions to enter judgment for the defendants.
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The opinion of the court was delivered by
Burch, J.:
The action was one against an agent to recover a portion of the proceeds of a loan procured for the plaintiff. A mortgage company from which a portion of the loan was obtained was joined as defendant. The verdict and judgment were against the agent, who appeals, and who will be referred to hereafter as the defendant.
The plaintiff sued for $868.43 and damages. The defendant pleaded payment of various sums by authority of the plaintiff, and admitted he had in his hands an unexpended balance of the proceeds of the loan, amounting to $251.73, which he brought into court for the plaintiff. The petition admitted that certain sums had been properly expended at his direction and for his benefit. At the trial he repudiated some of the items. A much disputed matter was whether or not the plaintiff was to pay the defendant a commission of $250 for procuring the loan. The verdict was for $501.73, which is the amount admitted by the defendant to be due, plus the amount of the disputed commission; therefore, it may be assumed all issues were determined in favor of the defendant, except that relating to payment of a commission.
The plaintiff gave the defendant a written application to the mortgage company for a loan of $5,000 at five and one-half per cent, and a commission of $250, payable concurrently with the loan. By agreement between the defendant and the mortgage company, they were to divide the commission equally. A principal coupon note and mortgage for $5,000, commission notes amounting to $250, and a commission mortgage, were prepared by the mortgage company, and were sent to the defendant for execution by the plaintiff. The plaintiff needed an additional $500, and the defendant arranged with a bank to furnish the money. The $5,000 note and mortgage to the mortgage company were duly executed. The commission notes and commission mortgage were not used, and the plaintiff signed a note for $750, which included $500 additional funds and the commission of $250. This note was secured by a second mortgage, and was discounted at the bank, the defendant himself paying the discount; The original commission notes and commission mortgage were not used, to avoid giving and recording a third mortgage. When the funds had been applied to payment of designated bills, the plaintiff was astonished at the smallness of the balance due him, disputed statements of account rendered by the mortgage company and by the defendant, and finally sued them both.
While the plaintiff testified, sometimes after being coached, that the defendant said the loan was to be at five and one-half per cent, without a commission, there was strong evidence to the contrary. The evidence properly admitted will not be discussed further than to note that the written application providing for payment of a commission was not impeached. True, the plaintiff testified he did not have his spectacles, and did not read the application when he signed it, but those facts constituted no excuse for not knowing the contents of the instrument.
Another loan agent was permitted to testify, over objection, that he took the plaintiff’s application for a loan of $5,500, at five and one-half per cent, and one per cent commission, and was on the point of closing the loan, when the plaintiff refused to take it, because, as he said, he was getting the money at five and one-half per cent. This testimony was clearly improper, and was likely to be damaging to the defendant, because it would appear, to the untrained mind of the jury, to furnish substantial corroboration of the plaintiff’s testimony. The ■ plaintiff’s evidence stood in need of corroboration, and consequently the court is unable to say the error in admitting the evidence was not prejudicial.
The jury relieved the mortgage company from liability to the plaintiff.' Judgment was rendered in its favor, and the plaintiff did not appeal. The defendant joined the mortgage company in this appeal, and it moves to dismiss. Since the mortgage company is no longer involved in the controversy, the motion to dismiss is allowed.
The judgment of the district court is reversed, and the cause is remanded with direction to grant a new trial respecting the single issue relating to payment of a commission for procuring the loan.
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The opinion of the court was delivered by
Mason, J.:
On January 8, 1913, John W. West died testate, survived by his wife (then 74 years of age) and four sons. The will gave to three of the sons one dollar each, to the widow the income of the real estate and an interest in the personalty the extent of which is in dispute, and to the remaining son, Emil C. West, all the property not otherwise disposed of. Emil C. West was appointed administrator with the will annexed. On October 12, 1916, the widow, Sarah Jane West, made application to the probate court for an order requiring the administrator to make a payment to her for her support. The application was heard together with that of the administrator for certain allowances to him embodied in a statement of his account. The application of the widow was allowed and that of the administrator in part denied. He appealed to the district court, where a similar result was reached, and from the judgment there rendered he now appeals.
1. The principal controversy is over the interpretation of the portion of the will relating to the personal property. The widow claims that it is given to her outright. The administrator (who is also the residuary legatee) claims that she has only a life interest in it. The question turns upon the construction of two paragraphs reading as follows:
“I devis'e and bequeath to my beloved wife, Sarah Jane West, all my personal property and the income of my real estate during her lifetime in the event that she survives me.
“I devise and bequeath to my son, Emil C. West, all the real estate of which I die possessed together with all my personal property, subject to the prior claims of my wife during her lifetime as above provided.”
The widow invokes the rule that clear grant of full title is not to be impaired by doubtful language in a subsequent clause. The primary rule of interpretation, however, is to ascertain and give effect to the actual intention of the testator, as derived from a consideration of all parts of the instrument. (Markham v. Waterman, 105 Kan. 93, 181 Pac. 621.) The first of the paragraphs quoted standing alone would indicate a purpose to give the personal property to the widow outright, although a permissible reading would be to treat the phrase “during her lifetime” as qualifying the bequest of the personal property as well as the devise of the income of the real estate, as the phrase “in the event that she survives me” undoubtedly does. The second paragraph standing alone would clearly indicate a purpose to give to the widow a life interest only. In. her behalf it is contended that the clause “subject to the prior claims of my wife during her lifetime as above provided” refers to the provision in the first paragraph “in the event that she survives me,” the meaning being that if the wife did not survive her husband the personal property should go to Emil. The use of the words “during her lifetime” seems fatal to that contention, for she could have no claim to the personal property “during her lifetime” unless she did survive him. We regard it as evident from the language of the second para graph that the testator did not intend his wife to take the full and unrestricted title to the personalty; and on the other hand as equally clear that he did intend her to have more than the mere income derived from it; otherwise, having employed that term with respect to the real estate, he would naturally have used it as well in connection with the personalty. Our conclusion is that his intention was that she should have a life estate in the personal property coupled with a qualified power of disposition; and, as the obvious purpose was to provide for her support, that the qualification intended was that she might draw upon the principal — diminish the body of the personal estate — so far as might be necessary to that end.
2. The order of the district court (made November 2, 1918) was that the administrator should pay to the widow $730 at once, and $30 a month thereafter. The amount is not excessive as an allowance for her support for the period covered or for the future, and no reason is apparent for disturbing it.
3. The administrator asked an allowance to himself of $549 for board and lodging furnished to the widow from February 20, 1913, to June 25, 1915, and complains of its refusal. It being no part of the duty of the administrator, as such, to make these provisions, he obviously has no claim against the estate on account thereof. The fact that by this means and at his cost the widow was saved expense to which she would otherwise have been put, was a matter which it was proper to take into account, and which presumably was taken into account, in arriving at an estimate of a reasonable allowance for her maintenance. The administrator, as the residuary legatee, of course profits personally by any expenditure saved to his mother, in case she dies before the entire fund is exhausted.
4. The administrator asked reimbursement for the expenses of several trips to the county seat, some of his claims on this account being allowed and some rejected. A claim for the charges of an attorney for taking depositions in this case was disallowed. The case was tried somewhat informally, and the specific reason for the rejections is not apparent. It may have been connected with the fact that the claimant was interested as legatee as well as administrator. At all events, he failed to produce evidence that proved the validity of his demands.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
The plaintiff brought an action against the Farmers State Bank of Zenda to recover upon a check for $2,000 drawn upon the bank by F. M. Smith in favor of C. H. Cowles, plaintiff’s station agent at Zenda, and duly certified by the bank. In its answer,, the bank attempted to justify its refusal to pay by alleging that Smith directed it not to pay the check for certain reasons stated in the answer, and the bank asked that Smith be made a party defendant. The plaintiff’s demurrer to the answer and motion for judgment on the pleadings were both overruled. Smith was made a defendant and filed an answer setting up the same facts upon which the bank relies. A demurrer to his answer was overruled, and the plaintiff appeals.
In Smith’s answer, he alleged that the certified check was required by the plaintiff’s station agent as a condition precedent to permitting him to examine a carload of corn consigned to him, without first surrendering the bill of lading, and that the agent at the same time agreed that if he would deliver the check duly certified by the bank he would be permitted to inspect and examine the contents of the car, and if the corn was found satisfactory and of the grade and kind he had purchased, he would be permitted to accept it and remove it from the car, but if for any reason he desired not to accept the corn, he would not be required to do so, and the check would be returned to him. The answer shows that upon the delivery of the certified check, the agent broke the seals of the car, the doors were opened and Smith inspected and examined the corn; that it was unsatisfactory, and he refused to accept it. His answer alleged, further, that he never paid the bank any money or consideration for certifying the check, and that the plaintiff had paid no consideration for the check or its certification. These were substantially the facts relied upon by the bank as its defense.
Our Negotiable-instruments Law (§ 194, Gen. Stat. 1915, § 6715) provides—
“Where a check is certified by the bank on which it is drawn, the certification is equivalent to an acceptance,”
and section 196 (Gen. Stat. 1915, § 6717) provides—
“A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.”
The purpose of a certified check is that it may circulate as money, and it has been said that “If certified checks are to circulate as money and to perform the useful purpose in trade they have heretofore, the deposit of them in bank to the credit of the holder must be, so far as the rights of the endorser are concerned, treated as a deposit of money.” (Blake v. Savings Bank Co., 79 Ohio St. 189, 201.)
In 7 C. J. 707, it is said:
“By the certification the bank enters into an absolute undertaking to pay the check when it is presented, at any time before it becomes barred by the statutes of limitations, and the bank is estopped to deny that it possessed sufficient funds of the drawer to pay the check.”
In 5 Cyc. 538, it is said:
“Where a check is accepted by the bank this operates to transfer the amount to the holder, and the latter has a right to sue the bank if it afterward refuses to pay.”
The certification of a check amounts to an appropriation of the money of the drawer in the hands of the drawee to the payment of an admitted liability of the drawer, whether or not there be funds there.
In Bank v. Bank, 74 Kan. 606, 609, 87 Pac. 746, it was said:
“A request upon a bank that it accept a check is a request for the creation of a legal relation between the holder and the bank wholly without and beyond the purview of the paper. If such relation be established it imposes upon the bank a liability to a party to whom it was not before bound at all, and it converts the privilege of the bank to pay if in funds into an absolute and unconditional duty to pay, no matter what may be the state of the depositor’s account.”
The opinion quoted with approval the following language from Kahn, Jr., v. Walton et at., 46 Ohio St. 195, 206:
“But after the bank has paid the check, or placed itself under an obligation to pay it, the drawer’s power of revocation is ended. This obligation may be incurred by acceptance. . . . By the acceptance a new and specific engagement is entered into by the bank, which is, to unconditionally pay the sum named to the legal holder of the check.”
In Blake v. Savings Bank Co., supra, it was ruled—
“The object of certifying a check is to enable a holder to use it as money. The drawer or endorser of a certified check cannot, after its delivery, revoke it or stop payment upon it by notice to the drawee not to pay, and a bank that has received a certified check for deposit and has credited the depositor with the amount of it, is a bona fide holder and may enforce payment of it notwithstanding it may, before payment to the depositor, ,have received notice that the check was fraudulently obtained by the depositor.” (Syl. ¶ 3.)
In Merchants’ Bank v. State Bank, 10 Wall. 604, which is a leading case, it was said:
“By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. . . . The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Thus it continues to perform its important functions until in the course of business it goes back to the bank for redemption and is extinguished by payment.
“It cannot be doubted that the certifying bank intended these consequences, and it is liable accordingly. To hold otherwise would render these important securities only a snare and delusion.”' (pp. 647, 648.)
It is unnecessary to inquire whether there was a consideration passing from the railroad company to the drawer. If it were, the facts he attempted to plead show what amounted to a delivery of the car and its contents into his possession, which would constitute a consideration. The facts pleaded in the answer of the bank establish no defense on its part. When it certified the check, the latter ceased to possess the character of a check and represented so much money on deposit payable on demand to the holder. In effect, the certification operated the same as though the bank had actually paid the money to the railroad company, and the latter had immediately deposited it to its own credit. If the check is certified to be good, “in contemplation and by operation of law, it is the same as if the funds had been actually paid out by the bank to the holder, by him redeposited to his own credit, and a certificate of deposit issued to him therefor.” (2 Daniel on Negotiable Instruments, 6th ed., § 1603.) (See, also, Morse on Banks and Banking, 2d ed., 307-315; First Nat. Bank of Jersey City v. Leach, 52 N. Y. 350.)
In Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301, it was said:
“We find no authority for the proposition that a bank may resist the enforcement of its contract of certification in order to make a set-off available to its depositor. . . . By common use such checks are treated for most purposes as the equivalent of cash (White v. Eiseman, 134 N. Y. 101, 107.) It would be an unfortunate rule that would impair their ready acceptance in the transactions of commerce. If the holder of a check, after procuring it to be certified by a bank, may be required to litigate the question whether the maker of the check had a right of counterclaim or set-off, the transaction has not been safely closed until the cash has been collected. That has not heretofore been supposed to be true. In the words of Peckham, J., in First Nat. Bank of Jersey City v. Leach (52 N. Y. 350, 353): ‘The bank virtually says that cheek is good; we have the money of the drawer here ready to pay it. We will pay it now, if you will receive it. The holder says, no, I will not take the money; you may-certify the check and retain the money for me until this check is presented.’ If the bank may resist payment whenever the drawer has omitted to take advantage of a right of set-off, the holder’s safety is illusory.” (pp. 306, 307.)
It was error to permit the drawer to be made a party to the action. The demurrer to the bank’s answer should have been sustained.
The judgment is reversed, and the cause is remanded with directions to enter judgment for the plaintiff.
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The opinion of the court was delivered by
Porter, J.:
These appeals raise different questions of law, but involve the same facts and were submitted together.
The appellant kept a restaurant at Salina. On the night of November 11, 1918, after the day’s business was ended, the appellant and three friends retired to a rear room of the restaurant, turned out the lights, seated themsel.ves about a table and remained until about midnight, when police officers demanded admission to the room. On this being refused, the officers broke down the door and entered. One of ap pellant’s friends who attempted to escape was arrested, and a bottle of whisky was found in his possession. There was an odor of whisky in the room; there were four glasses on the table, and an empty whisky bottle near by. The appellant claimed that he and his friends were merely discussing a business proposition, but the circumstances disclosed by the evidence showed that they had been celebrating the news of the Armistice. In the police court the appellant was convicted on the charge of having liquor in his possession; he appealed to the district court where there was a judgment finding him guilty, and he was sentenced to pay a fine of $200 and to serve 30 days in the county jail.
The main point upon which appellant relies for reversal of that judgment is, that the complaint upon which he was tried in the district court was not certified up by the judge of the police court. In The State v. Anderson, 34 Kan. 116, 8 Pac. 275, it was held error to compel defendant to go to trial against his objection upon a complaint found among the papers of the case in the district court, which had not been certified to nor authenticated in any manner.
In The State v. English, 34 Kan. 629, 9 Pac. 761, it was held that where the defendant submits to trial without objection upon a complaint not certified to by the justice of the peace, but which was sufficient in other respects, he will be held to have waived the want of certification. We think the appellant waived it in this case. His objection to the introduction of evidence related solely to alleged defects in the transcript, which were that the transcript was not “full and complete”; that it did not “contain all the matter which would warrant a conviction”; that it did not “contain a copy of the complaint, if one was issued”; and that it failed to state whether a complaint in writing had been filed. Had the attention of the court been challenged to the matter now complained of it would have been the duty of the court to postpone the proceedings and order the complaint and warrant properly certified. (The State v. Plomondon, 75 Kan. 853, 90 Pac. 254.) There was no merit in the objections to the transcript itself. It was not necessary that the transcript set out a copy of the complaint. On the motion for a new trial it was disclosed for the first time that the complaint had not been properly certified and that it had not been filed in the district court. It was then too late for the appellant to take advantage of the defects, because he had waived the matter by proceeding to trial without objection upon these specific grounds. There is another objection to the transcript because it failed to set out the names of the witnesses. But there is nothing to indicate that appellant suffered any prejudice by the omission of the names of the witnesses, and, besides, the trial court’s attention was riot challenged to this matter.
On November 14, 1918, the state, on the relation of the mayor of the city of Salina, brought an injunction suit in the district court against the appellant and charged him with maintaining a nuisance under the prohibitory law. There was a judgment finding the appellant guilty of maintaining a nuisance as charged, and a perpetual injunction was granted. The costs were taxed against appellant, including an attorney’s fee of $100. The only evidence upon the issue as to whether the appellant was maintaining a nuisance at the place in question consisted of the same facts disclosed in the trial of the other case. The appellant contends that the state failed to establish the maintenance of a nuisance by a mere proof of what occurred in the back room of his restaurant on the night of November 11, 1918, and we think in this contention he is right. As the record stands, the evidence merely showed an isolated instance of a violation of the law. In the absence of testimony of other instances occurring before or after that occasion, there was nothing to justify the judgment. As long ago as 1546 John Heywood published the earliest collection of English colloquial sayings. Among those that he termed “effectuall proverbes in the English tounge” is one which reads, “One swallow maketh not a summer.”
The conclusions we have reached are, that in the case appealed from the police court the judgment should be affirméd, and that the judgment in the injunction case should be reversed and the cause remanded with directions to enter judgment in favor of the appellant.
It is so ordered.
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