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The opinion of the court was delivered by
JOHNSTON, J.:
This was an appeal from the decision of the probate court rejecting a demand presented by Dr. A. V. Coffin against the estate of W. T. Hamilton, deceased. The demand was a long account for medicines and medical services running from 1868, and which Coffin claimed was open and unsettled at the time of Hamilton’s death, the occurrence of which is not definitely shown by the record, but must have been about the first of the year 1886. The claim was filed in the probate court on August 27, 1886, and tried in the district court on April 11,1888, without a jury. To establish his demand, Coffin introduced in evidence a book of accounts in which was entered in his own handwriting an account against Hamilton. The first item in the account was dated June 1, 1868, and the last item entered as a charge is dated September 6,1881. The last item of credit entered, other than the one in dispute, is in 1876; The last entry in the account is as follows: “ 1885, 8, 20, cash on above account, $2.” This entry is in the handwriting of Coffin, and which he testifies he made on August 20, 1885. No other testimony was offered to establish the account, and the administratrix demurred to the evidence, but the demurrer was overruled and judgment given in favor of Coffin.
The only question presented is, whether the entry of credit in the book of accounts, made by the creditor himself after the statute has barred the account, is such an evidence of partial payment as will revive the claim and start the statute of limitations to running again. Assuming that the account is correct, and that it was unsettled when the last charge was made, it appears that it had long been barred before the $2 credit was given in 1885. It was not then a subsisting debt; and will a mere entry of credit by the creditor revive a barred debt and take the entire account out of the statute? We think not. Entries in books of account are admissible in evidence under certain circumstances, (Civil Code, §387,) and an entry of charge or credit in a current mutual account that was within the period of limitation would be evidence tending to take the entire account out of the statute; but where the statute has run, it is no longer an open account or a present or subsisting debt, and the creditor cannot manufacture evidence for himself by making an entry of credit upon an account, on which the debtor was not liable when the entry was made. When a claim is barred, it is the act of the debtor, and not of the creditor, that will take it out of the statutory bar. An indorsement upon a note or other written obligation is the usual proof of a partial payment. Notwithstanding this, it is held that an indorsement of credit by a creditor upon a note after the statute has run affords no evidence of payment in favor of the payee, “for the reason that it is an ex parte declaration made by a party in his own favor; and no one is allowed to make evidence for himself.” (Easter v. Easter, 44 Kas. 151.) The supreme court of Ohio, in determining a similar question to the one presented here, held that “the items of credit in the account book of the deceased, given after the statute had barred the action, constitute no evidence that it was the intention of the parties that the articles thus credited should be applied on the barred account as payment.” (Kaufman v. Broughton, 31 Ohio St. 424. See also, Oberg v. Breen, 12 Atl. Rep. 203; Acklen’s Executor v. Hickman, 60 Ala. 568.) In the absence of other evidence than the mere entry of a. credit by Coffin in his book of accounts after that statutory bar against the account was complete, his claim was not established, and therefore the demurrer to the evidence should have been sustained.
The judgment of the district court will be reversed, and the cause remanded with the direction to sustain the demurrer to the evidence interposed by the plaintiff in error, and to give judgment in her favor.
All the justices concurring.
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Opinion by
GreeN, C.:
On the 29th day of December, 1886, G. W. Stockham commenced this action against Samuel Shepard, in the district court of McPherson county, alleging, in substance, that on the 9th day of June,, 1883, the defendant sold and delivered to him sixty-two and one-fourth shares of the capital stock of the Conway Town Company, but that no transfer had ever been made on the books of the company; that, owing to the fact that the stock stood in the name of Shepard, $26.18 of a dividend had been paid to him, and asked that upon the bringing of said stock into court, defendant be required and compelled to assign the same to the plaintiff, in proper form, and that he have judgment against the defendant for the dividend drawn. To this petition of the plaintiff the defendant answered, first, by a general denial; second, that the possession of the stock had been obtained by fraud and force; and afterward, by way of a supplemental answer, set up, first, the fact that in another action between the same parties and in the same court, all the matters of difference between them, as raised by the issues in this case, were tried, determined and adjudicated; and, for a second defense, set up the further fact that he had a judgment for $800 against the plaintiff, which he asked to have allowed as an offset to the plaintiff’s claim, to the extent of his judgment, interest and costs. To this supplemental answer, the plaintiff demurred as to the first and second causes of action, which demurrer was sustained as to the first and overruled as to the second. But previous to the court’s passing upon the demurrer, the plaintiff, with the consent of the court, dismissed his second cause of action, wherein he asked for a money judgment for the dividend received by Shepard. The cause was tried by the court, and Shepard was ordered to sign his name to the certificate of stock which Stockham claimed he had sold to him.
The facts in this case are peculiar and novel, and may be stated briefly as follows: Shepard owned one hundred and sixty acres of land in McPherson county, and in consideration of $6,125 par value of stock in the Arkansas Valley Town Company, deeded to the company forty acres for a town-site, as a part of Conway; on the 9th day of June, 1883, he sold the remaining one hundred and twenty acres of his farm to Stockham, giving him a warranty deed for the same. It was claimed by Stockham that this sale included the stock in the town company; that' he had neglected to have a written transfer made, but did obtain possession of the stock. Shep ard claimed, however, that the possession of this stock was obtained without his consent and by force and fraud. After the sale by Shepard to Stoekham, he moved to Kingman county and for some three years had no communication with the town company, or Stoekham, except to receive notices of the annual meetings of the town company, and seemed to have had no knowledge that any dividends had been declared on the stock; Stoekham, in the meantime had been receiving the dividends upon this stock, which had been sent to the local agent at Conway. Sometime in the month of July, 1886, Shepard returned to McPherson county on a visit, and received a letter from the post office at Conway, from the town company, enclosing a draft to his order for $26.18, being a dividend upon the stock in question for the year 1886; he used the proceeds of this draft, and, in a short time, received a letter from Stoekham notifying him that the dividend belonged to him; and, upon Shepard’s refusal to account to him for the same, filed a complaint against Shepard before a justice of the peace of McPherson county, charging him with stealing the money. He was subsequently arrested in King-man county and brought back to McPherson county, where the case was continued from time to time and finally dismissed by the county attorney. On the 29th day of December, 1886, this suit was commenced, and in a few days thereafter, an action was instituted by Shepard against Stock-ham for damages for malicious prosecution; this latter action was tried on the 19th day of October, 1887, in the district court of McPherson county before a jury, and special findings and a verdict were rendered in favor of Shepard for $1,500, which was, upon a motion for a new trial, reduced by the court to $800; ninety days were given to make a case for the supreme court, but, as a matter of fact, the case was never taken up.
In this case, the jury rendered a special verdict, and among other questions asked and answered, were the following:
“State at what time, if at all, the plaintiff, Samuel Shepard, sold his certificate of shares in the Conway Town Co. to the defendant, G. W. Stoekham? A. Never sold them.
“ Question 2. At what time was the certificate of shares of the plaintiff Shepard delivered to the defendant Stockham? A. Never delivered.”
Upon the. rendition of the judgment in the case for malicious prosecution, the plaintiff in error in this case obtained leave of the court to file a supplemental answer, setting up, first, that the issues involved in the case had all been settled, by the special findings, verdict and judgment in the action for malicious prosecution, and were, therefore, res ad/judicata; second, that if such was not the case, that Shepard had a judgment of $800, which he was entitled to set up as an offset in case the finding as to the ownership should be against him; the court sustained the demurrer as to the first cause of action, and overruled it as to the second, but upon the trial excluded all evidence tending to prove it. The trial of this case occurred on the 27th day of April, 1888.
The first ground of error relied upon is the ruling of the court in sustaining the demurrer to the defense of res adjudi-cata, set up in the supplemental answer. The real question for our determination is, whether or not the same subject-matter between these parties was drawn in question, or included in the issue, so that it could be, or was, as a matter of fact, tried and determined by the special findings, verdict and judgment in the former action, in the same court and where the same persons were parties. A solution of this question is a decision of this case. Three things, says Chief Justice Shaw, seem to be necessary to constitute an adjudication, so that a former judgment may be pleaded as a bar to another suit: First, whether the subject-matter of a legal controversy which is proposed to be brought before any court for adjudication, has been drawn in question, and whether the issues of the former judicial proceeding which has been determined is a legal judgment on the matters, so that the whole question may have been determined by that adjudication; second, whether the proceedings were between the same parties, in the same right or capacity, relating to the subsequent suit, or with their privies respectively, claiming through or under them, and bound and estopped by that which would bind and estop those parties; and third, whether the former adjudication was had before a court of competent jurisdiction. (Bigelow v. Winsor, 1 Gray, 302.) It has become a settled rule of action, firmly established in our jurisprudence, that no man shall be twice vexed over the same controversy, and, following this principle, this court has said:
' “ When the merits in an action have been passed upon, or from the issues made by the pleadings might have been passed upon, the judgment rendered in the case bars a subsequent suit for the same cause of action between the same parties. When the same cause of action has once been litigated and decided, that is an end of it, and the form of action is immaterial. If the cause is the same, the judgment is conclusive.” (Bank v. Rude, 23 Kas. 146.)
“There is a growing disposition to enlarge the scope of the doctrine of res adjudieata.” (Comm’rs of Wilson Co. v. McIntosh, 30 Kas. 238.)
“The rule of res adjudieata applies as well to facts settled and adjudicated as to causes of action.” (Whittaker v. Hawley, 30 Kas. 327.)
We find the same doctrine enunciated by text writers.
“There are but few older principles or rules of law that have been handed down from generation to generation, from the earliest days of the Roman law to the present time, than that of estoppel.” (1 Herman, Estop., §1.)
“There is no doubt that a judgment or decree necessarily affirming the existence of any act is conclusive upon the parties or their privies, whenever the existence of the fact is again put in issue between them, not only when the subject-matter is the same, but when the point comes incidentally in question in relation to a different matter. . . . To render a matter res adjudieata, it is not essential that it should be distinctly .and specifically put in issue by the pleadings. It is enough to have been shown and tried and settled in the former suit.” (Freeman, Judgm., §249.)
“To constitute a judgment in one case a bar to another action, it is not necessary that the object of the two suits be the same, nor that the parties should stand in the same relative position to each other.” (Barker v. Cleveland, 19 Mich. 230.)
“The judgment of a court of competent jurisdiction is conclusive on the parties as to all points directly involved in it, and necessarily determined.” (Shirland v. National Bank, 21 N. W. Rep. 200; Hahn v. Miller, 28 id. 51.)
“The judgment of a court of competent jurisdiction upon a particular matter, fact or point once litigated and determined is conclusive between the parties or their privies.” (Wales v. Lyon, 2 Mich. 282.)
“Such judgment is conclusive when given in evidence, though not pleaded by way of estoppel.” (Trayhern v. Colburn, 66 Md. 227.)
The estoppel of an issue on a particular point, or of the judgment itself as to the point which it decides, will be conclusive as to the points in any subsequent proceeding, whether founded on the same or a different cause of action. (1 Herman, Estop., § 111, and cases there cited; 3 Smith, Lead. Cas., 9th ed., 2095; Cromwell v. County of Sac, 94 U. S. 351; Wilson v. Deen, 121 id. 525; Gardner v. Buckbee, 3 Cowen, 120; Furneaux v. Bank, 39 Kas. 146.)
When a matter is once adjudicated, it is conclusively determined, as between the same parties and their privies'; and this determination is binding, as an estoppel, in all other actions, whether commenced before or after the action in which the adjudication was made. (Freeman, Judg., § 249; Poorman v. Mitchell, 48 Mo. 45; Allis v. Davidson, 23 Minn. 442; Casebeer v. Mowry, 55 Pa. St. 419.) In the latter case, the court said:
“The date is of no consequence; it is the fact of an adjudication on the subject-matter between the same parties, which gives effect to the former recovery. The operation is the same, whether the record be pleaded by the one or the other of the parties.”
It seems to us that, tested by the well-settled rule “that a man shall not be twice vexed for one and the same cause,” and the great weight of authorities, the judgment relied on and set up in the supplemental answer of the defendant is within the rule, and a bar to this action. Stockham charged Shepard with stealing this dividend of $26.18, and had him arrested, and be was subsequently discharged. Shepard then sued Stockham for malicious prosecution, and in that suit it was determined, by a finding of the jury, that this very stock had never been sold by Shepard to Stockham. This was an essential and important fact in that controversy, It was determined by a judicial examination and J ° verdict, and, in our judgment, was conclusive, and the demurrer was improperly sustained.
Something has been said about the sufficiency of the plea, but we think it good, upon demurrer. If it were not sufficiently full, definite and certain, the proper way to raise that question would have been by motion. The demurrer should have been overruled.
It is not necessary for us to notice the other errors complained of.
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
A reexamination of the record in this case satisfies us that the first alleged error was not sufficiently considered in the former hearing. The case was dismissed in this court upon the ground that the evidence was not all preserved in the record. It was stated in the opinion “ that the record should contain all of the evidence introduced during the trial of the case in the court below to intelligently con sider the questions raised by the plaintiff iu error.” The first alleged error was, “That the court erred in the admission of testimony tending to show that the justice of the peace, at the time of issuing the warrant, was just outside of the limits of his township, and that therefore he acted without jurisdiction, and his proceedings were void.” (Phillips v. Thralls, 26 Kas. 780; Wilcox v. Johnson, 34 id. 655; Railroad Co. v. Rice, 36 id. 493.) A mere general averment of fraud and illegality, without stating the facts on which the charge is based, presents no issue, and no proof is admissible thereunder. (The State v. Williams, 39 Kas. 517.)
The petition in the court below contained a copy of the complaint made and filed by James Moore, and also a copy of the warrant issued by E. R. Gammon, the justice of the peace, under which W. J. Quinn was arrested, but did not allege that the acts of the justice were void, because done outside of his township. The petition alleged that F. R. Gammon, the justice, was an agent of the railroad company, and that the arrest of Quinn was illegal and unlawful. If it were intended to prove that the warrant was illegal, because issued by the justice of the peace outside of his own township, allegations to that effect should have been inserted in the petition.
In the absence of any such allegations in the pleadings, it was error for the trial court to admit testimony that the warrant was issued, or other acts of the justice were done, in a township where the justice of the peace had no power to act. The admission of this incompetent and irrelevant evidence against objections ought not to have been allowed. Mr. Green-leaf says of the rules of evidence: “ The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issué.” (1 Greenl. Ev., §§ 50, 51; Brookover v. Esterly, 12 Kas. 152.) A court ought not, by the admission of incompetent testimony, to enlarge the issues, or permit a jury to pass upon a case not made by the pleadings. (McGonigle v. Atchison, 33 Kas. 726; Railroad Co. v. Irwin, 35 id. 286.)
The record in this case contains the pleadings, the special findings, and the judgment of the trial court. It also contains the objectionable testimony concerning the issuance of the warrant in a township where the justice of the peace had no power to act. It was never necessary, when a case was brought to "this court upon a bill of exceptions, to set forth any more than was necessary to show the errors complained of, if the record contained the pleadings and judgment. Section 547 of the code provides that a party desiring to have a judgment of the district court reversed by the supreme court, may make a case containing a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of to the supreme court.
“There are two methods of bringing a civil case up for review : One upon a case-made, and the other upon a transcript. In no other way can the appellate jurisdiction of the court to review such cases be invoked or exercised. The case-made may be very brief, much more so than a transcript, and the first named was devised mainly for the purpose of abridging the record and lessening the expense of review. We are not disposed to discourage brevity in the making of records for review, as it is a much-needed reform.” (Neiswender v. James, 41 Kas. 463.)
When it is sought to review the action of the court in admitting incompetent and irrelevant testimony, it is not necessary that the case-made should contain all of the evidence. If it contains the pleadings, the judgment, and sufficient of the evidence showing the errors complained of, this court has jurisdiction to consider the incompetent evidence objected to. In such a case, it is not necessary that the record should contain all of the evidence. (Railroad Co. v. Grimes, 38 Kas. 241.)
It is urged that this court cannot review the objectionable testimony, because the instructions are not given, and it is also urged that the objectionable testimony was not material or prejudicial. The trial court may instruct a jury to disregard incompetent evidence and such subsequent withdrawal may cure the error in its admission, but even this is not al ways the case. (Whittaker v. Voorhees, 38 Kas. 71.) But it is evident, from the special findings of the jury, that the jury did not disregard the incompetent evidence admitted, but upon the other hand, they must have fully considered the same. It evidently had weight with them from the special findings returned. One of the special findings 'of the jury stated that the warrant was illegal; other findings tend to show that the justice of the peace issuing the warrant acted outside of his township.
The motion for a new trial alleged errors committed upon the trial by the court. Sufficient evidence is preserved in the case-made showing the incompetent evidence admitted and objected to. If this evidence was not prejudicial, the plaintiff below might have suggested an amendment showing that the error was waived or cured, but in the absence of such showing, we cannot presume that the error was waived or cured. The findings of the jury tend to rebut any waiver or any curative instructions. The evidence was not only material, but prejudicial.
The decision in the former opinion, that a verdict of the jury cannot be challenged upon the ground that it is not supported by any evidence, if a statement is not contained in the case-made affirmatively showing that all of the evidence is preserved, is in accord with a long line of decisions of this court. Many of the decisions are there cited.
The rehearing will be granted; the judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
HORTON, C. J.:
Thomas W. Pelham brought this action against John H. Edwards, sheriff of Wichita county, in this state, to recover the possession of certain personal property of the value of $196.45, and also for $50 as damages for the wrongful detention of the property. An affidavit for an order for the delivery of the property to the plaintiff was also filed. On the 19th day of November, 1887, the clerk of the district court issued a summonsx directed “to the sheriff of Coroner county.” No return was made on this writ.. On the 25th day of November, 1887, the clerk of the court issued another summons directed “to the sheriff of Wichita county,” and delivered the same to the coroner, who executed the writ and made return thereof. On November 19, 1887, the clerk issued an order of delivery directed “to the coroner of Wichita county.” This was executed by him. The term of office of John H. Edwards, as sheriff, expired on the second Monday of January, 1888, and he was succeeded by M. P. Brown. On the 25th day of April, 1889, the clerk issued another summons directed “to the sheriff of Wichita county.” This was served and returned. On the 12th day of June, 1888, John H. Edwards, the defendant, filed a special motion to strike the summons and the writ of replevin from the files, upon the ground that they were not directed to or served by the proper officer, and for want of any legal service on the defendant. This motion was sustained by the court. Exceptions were taken, and the plaintiff brings the case here.
The summons of the 25th of November, 1887, was not directed to the coroner, and therefore was not issued in accordance with the provisions of thestatute. (Civil Code, §701; Gen.Stat. of 1889, ¶"¶1778,1779.) It beiDg irregularly issued, the court committed no error in setting the writ and the service thereon aside. The order of delivery of November 19, 1887, was directed to the coroner, but the service thereof was properly set aside, because it was issued before the commencement of the action, and such an order cannot rightfully issue before the action is commenced. (Dunlap v. McFarland, 25 Kas. 488; Thompson v. Wheeler, 29 id. 476.) There was no proper summons issued or service made until the 25th day of April, 1889. As no regular summons was issued or any valid service made upon the defendant within, sixty days after the filing of the petition, all of the proceedings before the issuance of the summons of the 25th of April, 1889, were irregular, and therefore the ruling of the court must be affirmed. It seems that the summons of April 25, 1889, was properly directed, served, and returned. The action is pending in the court below upon that service, as it does not appear from the record presented to us that this summons or the service thereof has been interfered' with by the court. If no new order of delivery is issued, the action can therefore proceed upon the service last made.
As before stated, the ruling of the district court will be affirmed, with costs.
All the justices concurring.
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The opinion of the court was delivered by
JohNSTON, J.:
Charles E. Mayer brought this action against Moses Waters to recover $1,770, alleged to be due for the use and occupation of certain buildings owned by the plaintiff, and situate on the Eort Riley military reservation,' consisting of a store-building, a club-house, and a residence. On November 25, 1879, Moses Waters, who was then, and since then has been, the duly-appointed post-trader at the Eort Riley military reservation, entered into a written lease with Charles E. Mayer, the owner of the buildings, for a term of one year from April 1, 1880, at a rental of $30 per month, payable in quarterly installments. Waters took possession under this agreement, and although no written lease was afterward executed, he continued to occupy and use the buildings as post-trader until the commencement of this action, and paid rent for the same until February 1, 1883. After that time, he declined to make any further payment, claiming that certain military orders and proceedings which had been had relieved him of liability to Mayer for the use of his buildings. In June, 1883, he applied to the post council of administration, at Fort Riley, for the appointment of a board of officers to appraise the value of the buildings occupied and used by him, stating that they were in need of repairs, and that, unless he could purchase them at a fair price, he must request that the owner be directed to remove them, so that he could erect in their places such buildings as his business required. The application was forwarded by the post commander to the headquarters of the department of the Missouri, and General Pope, who was in command, returned the same with an indorsement directing the commanding officer at Fort Riley to cause the owner of the buildings to remove them from the reservation within a reasonable time, and that he could not be allowed to rent them. Moses Waters was informed by the post commander of this decision, and that Mayer would have a reasonable time to remove the buildings, but that Waters would be allowed to occupy the same until further orders. Mayer had no notice of this application, or of the proceedings thereon, until after the same had been takeD, nor until September 20, 1883.
The case was submitted to the court, without a jury, on oral and documentary evidence, and the court found that Mayer was entitled to recover rent for the use of his premises from February 1, 1883, to September 20, 1883, when he received notice of the military proceedings aforesaid, at the rate of $30 per month, but that the plaintiff was not entitled to recover for the use of the premises after receiving notice of the proceedings had by the military authorities. Each of the parties excepted to the findings and judgment of the court, and both are here alleging error. It is insisted on behalf of Waters that under an act of Congress and certain military regulations, Mayer was without authority over the buildings, or to collect rent for the same, and as he could not lawfully collect rent, Waters was not legally liable for their use and occupation. Congress has enacted “That every military post may have one trader, to be appointed by the secretary of war, on the recommendation of the council of administration, approved by the commanding officer, who shall be subject in all respects to the rules and regulations for the government of the army.” (19 U. S. Stat. at Large, 100.) Among the rules and regulations for the government of the army are found the following:
“Post-traders will actually carry on the business themselves, and will habitually reside at the station to which they are appointed. They will not farm out, sub-let, transfer, sell or assign their business to others.
“Post-traders will' be permitted to er'ect buildings for the purpose of carrying on their business upon such part of the military reservation or post where they are assigned as the commanding officer may direct. Such buildings will be in convenient reach of the garrison.
“When a trader is removed from his post, he has a right to remove and dispose of the material of the buildings erected by him as his own property. He cannot lease or sell his buildings to another post-trader without the permission of the military authorities; but such permission would have the same force as a license to a new post-trader to erect such a building at that spot.”
It is urged that Mayer had leased the buildings when he was not a post-trader, and also without license from the military authorities; and this being in violation of the regulations, he had no right to collect rent from Waters or any one else. It is true that Mayer was not a post-trader when the original lease was executed, nor has he held that position since that time; and it is also true, that he never received from the military authorities express permission to rent.the buildings. It appears that the buildings were originally erected by Robert Wilson, a post-trader at Fort Riley, under due license from the war department. He sold them to Henry F. Mayer, ■who was also post-trader at the same place, and Henry F.. Mayer in turn sold them to his son, the plaintiff, in 1876; but the plaintiff was not then, and never has been, a post-trader at Fort Riley, although he was the partner of one Mc-Gonegal, who was the post-trader for the years 1871 and 1872.
We think that Waters was liable to the plaintiff for the use and occupation of the buildings, both before and after the military proceedings hereinbefore referred to. This is not a controversy between the United States and the plaintiff, and no step taken has divested the plaintiff of the ownership of the buildings occupied and used by Waters. The military authorities have full power to regulate the erection, maintenance and removal of buildings used for carrying on the business of a post-trader, and to prohibit the assignment and sub-letting of the business to another; but the strict observance of the rules may be waived by the government, and the failure of the owner of the buildings to conform to these rules and regulations does not change the ownership of the buildings or relieve a party who has taken possession of the same under a lease from the owner from paying for their use. It does not appear that direct permission was given for the lease or transfer of the buildings from the original owner to the several parties through whose hands they passed; but it does appear that the transfers were made with the knowledge and acquiescence of the military authorities, and it is conceded that the plaintiff never knew there was any objection to his renting these buildings until he received notice of the proceedings that were taken in reference to the removal of the same. These proceedings were had at the instance of Waters, and without any notice to the plaintiff. ■ The officers of the department are not vested with power to appropriate such property for the use of the government, and the proceedings taken did not change the relation existing between Mayer and Waters. The buildings were personal property when they were erected, and remained such until this action was begun. It has been held by the attorney general of the United States that—
“Buildings erected by post-traders on a military reserve, in conformity to this order, are erected for the mutual benefit of the government and the trader, and are not to be regarded as buildings would be if erected by trespassers, or even by tenants under leases in which no provision is made therefor. They are erected under a license from the government, and for the mutual benefit of both parties. Under these circum stances, I am of opinion that, by the proper construction of the license, these buildings were not intended to become a part of the realty after their erection, but were to continue the property of the traders, and, therefore, when a trader is removed from his post, I have no doubt that he has a right to remove the building from the place where it was erected, and, when removed, he can dispose of the materials as his own property.” (14 Op. Attys. Gen. 125.)
It was held in the same opinion that such license did not authorize a lease or conveyance of the buildings to others for their occupation and use, without the permission of the military authorities; that the right was confined solely to the removing of the buildings from the premises. The officers had full authority to order the removal of the buildings, and to enforce such order; but so long as they permitted the buildings to remain upon the reservation, they were without authority to relieve the trader from paying for their use and occupation. The order made was that Mayer should remove the buildings from the reservation within a reasonable time; but instead of enforcing the regulation, or the order, the officers permitted the buildings to remain until the commencement of this action. The buildings have been used continuously for the business of the post-trader, and it does not appear that there was any necessity for their vacation, or that the trader was using them for any improper purpose. This continued use, with full knowledge of the ownership and rights of the plaintiff, must be regarded as a waiver of the regulation, and a sufficient permission for the leasing of the buildings to Waters. This seems to have been the view of the war department, as the adjutant general, in response to a letter addressed to him with reference to the occupancy of these buildings, said: “If the trader occupies buildings belonging to you, without being willing to purchase them, or pay rent to you as you demand, you should seek a remedy in the civil courts.” As late as January 24, 1888, the commanding officer at Fort Eiley, in response to an application for a military order to compel the post-trader to pay for the use of the buildings, stated: “It is not understood why Mr. Mayer does not have recourse to process of civil law to adjust his rights in this case. He should be informed that there is a special reason for this, in view of the control of the civil authorities on the reservation at Fort Riley.” In this case, Waters first entered into a written lease for the property, and continued to pay rent thereon to plaintiff for about four years, thereby recognizing the title and ownership of plaintiff, and that the relationship of landlord and tenant existed between them. He has remained in undisturbed possession of the buildings ever since, with full knowledge that compensation for their use was demanded by plaintiff, and he cannot now be permitted to deny the title of the landlord, or repudiate his implied liability for the use and occupation of the buildings. The fact that he has latterly refused to pay rent for the use of Mayer’s property, will not terminate his relation as tenant, or relieve him from liability for the use and occupation of the property. (Thompson v. Sanborn, 52 Mich. 141; Tayl. Land, and Ten., ch. 13, § 3.)
We are asked to render such judgment in the case as the court below should have rendered in case of a reversal; but as the case was submitted upon testimony which is not harmonious, and as the condition of the buildings and the amount of the repairs that have been expended have, not been stated or agreed upon, we are unable to direct the judgment that should be entered. The judgment of the court below will, therefore, be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
HobtoN, C. J.:
This was an action commenced by Julia Champion against James Warrell, Mary A. Warrell, the Hartford Investment Company, and George C. Strong, upon a promissory note for $2,500, dated March 1, 1888, with ten interest coupons for $100 each attached thereto. The notes and coupons were executed by James and Mary Warrell, made payable to the order of George C. Strong, and were secured by a mortgage on certain real estate in Sedgwick county. At the time of the execution of the mortgage, the Warrells executed another promissory note to George C. Strong for the sum of $250, and also executed a second mortgage on the real estate to secure the second note, warranting the real estate free and clear of all incumbrances except the first mortgage of $2,500. The second mortgage stipulated that if any money was paid by the holder of the mortgage to protect himself on any prior lien, the mortgage to be due at once, and the money paid out to bear twelve per cent, interest per annum and to become a part of the debt. The second note and mortgage were transferred by George C. Strong to the Hartford Investment Company. The first coupon was due September 1, 1888, and was for $100. The second coupon was due March 1, 1889, and was for $100. The Hartford Investment Company answered, setting up two causes of action — one on the coupon for $100, due September 1, 1888, with interest thereon, and asking that the coupon be declared a concurrent lien with the first note and mortgage, and that it, the defendant company,- be allowed to pro-rate with the holder of the first note.
The second cause of action was upon the second note and mortgage above referred to.
The case was submitted to the court upon the following agreed statement of facts:
“The notes and mortgage involved in this action were executed to George. C. Strong, who was the agent of the Hartford Investment Company, and were by him indorsed and as signed to Edward G. Robertson, who was president and financial agent at Hartford, Conn., of the Hartford Investment Company. Robertson sold the notes and mortgage to the plaintiff. The copies of the notes and indorsements thereon, and the mortgages set out in the plaintiff’s petition and in the cross-petition of the Hartford Investment Company, are true copies of the originals. The principal note, and the interest notes, or coupons, were all payable at the Charter Oak National Bank, in Hartford, Conn. When the first coupon fell due, the plaintiff presented the same to Edward G. Robertson, at Hartford, and Robertson, acting for the company, paid the plaintiff the amount called for by the coupon, and plaintiff then and there delivered to Robertson the coupon nncanceled. The Hartford Investment Company was engaged in making loans in Kansas through George C. Strong, and selling them to parties in the eastern states, and it was the custom of the company to advance the interest on loans sold by it when such interest fell due, whether the same had been paid .by-the borrower or not; and this fact was known to the plaintiff at the time she purchased the notes and mortgage. Neither the principal note set out in the plaintiff’s petition, nor the coupon set out in the cross-petition of the Hartford Investment'Company, has ever been paid by the borrower to the company.”
The district court rendered judgment irf favor of Julia Champion for the amount of her claim, and for the Hartford Investment Company for the amount of its claim, and also decreed —
“That the mortgage set out in plaintiff’s petition is a first lien upon the lands and tenements described to secure the indebtedness of James Warrell and Mary A. Warrell in the petition set forth, and also to secure the payment of the indebtedness of Warrell and Warrell to the Hartford Investment Company upon the coupon set forth in the first cause of action in the cross-petition of the Hartford Investment Company for the amount of $117, and that the investment company is entitled to share pro rata in the security of the mortgage for the payment of the sum last mentioned.”
Plaintiff excepted to the ruling and judgment of the court, and contends that the Hartford Investment Company is not entitled to pro-rate with her in the security of the mortgage for the amount of the coupon,due September 1, 1888, which was presented by her to Edward G. Robertson, at Hartford, and on which Robertson, acting for the investment company, advanced to her $ 100, the amount thereof.
We think that the ruling of the district court was correct and, therefore, that the judgment must be affirmed. The couPon was indorsed by the original payee “ without recourse.” The mortgage was indorsed by both the original payee and Edward G. Robertson “without recourse.” The coupon, as well as the note and mortgage, was payable at the Charter Oak National Bank, Hartford, Conn. Neither the Hartford Investment Company nor Edward G. Robertson was legally liable upon the note, the mortgage, or the coupon. When the plaintiff presented the coupon to Edward G. Robertson, who was acting for the investment company, she knew “that it was the custom of the company to advance the interest on loans sold by it when the interest fell due, whether the same had been paid by the borrower or not.”
The- title to the coupon passed by mere delivery, and the transfer of the coupon from the plaintiff to the investment company was presumptively a transfer of title. 'j'he'transactiou concerning the coupon was therefore a transfer or assignment of it and not a payment. This is especially true, because the transfer was made by the plaintiff to one who was not her debtor, _ . _ - . and to one who was not under any ies:al obhga- . ^ o o tion to pay the coupon. It was not the intention of Robertson or the investment company to pay or extinguish the coupon when the money was advanced thereon, and as the plaintiff knew that the company would advance the money whether paid or not by the makers, it cannot reasonably be said that she supposed the maker had furnished the money to pay the coupon, or that the company intended to pay the coupon when the amount thereof was advanced to her. Neither do we think that the Hartford Investment Company is es-topped from claiming that the coupon is unpaid. The plaintiff was not misled by any statements or representations of the company or its agents. The company acted in all matters in good faith. There can be no estoppel in such a case.
If it be urged that the plaintiff believed, when she received the money upon the coupon, that it was a payment and an extinguishment thereof, the sufficient answer is, that she did not present the coupon or receive payment at the bank or place where the note and coupon were payable; that she knew that Robertson, acting for the company, would pay the interest on the presentation of the coupon “ whether the makers had paid it or not;” that on presenting it she did not inquire whether the makers had paid it or had furnished any money to pay it; and, finally, that she received the money from one who was not her debtor and from one who was under no legal obligation to pay the coupon. As the plaintiff did not receive the money at the bank where the coupon was payable, if it was of importance or interest for her to ascertain, she should have inquired when presenting her coupon to Robertson whether the makers had paid or had furnished any money to pay the same. If she had so inquired, she would- have undoubtedly been informed that no money had been furnished by the makers, but that the company would advance the money upon the coupon. It must also be remembered that the coupon over which this controversy arose is the first coupon falling due upon the note and mortgage, and that the plaintiff had never been paid previously anything upon the mortgage or coupon, through Robertson or the investment company, before her presentation of this coupon. If the plaintiff had received on prior occasions from the makers of the note and mortgage, through Robertson or the investment company, any money upon the note or interest coupons, there might then be some presumption that she believed, when she received the money upon the coupon presented to Robertson, that she was receiving the same from the makers in payment of the coupon; but she had never received any money from the makers of the note and mortgage, as it was the first coupon falling due upon which the money was advanced. The plaintiff cannot rely in this case upon any prior payment, or anything that had occurred before the presentation of her coupon to Robertson, to strengthen her case. Therefore, in our opinion, the plaintiff had no reasonable ground to believe that Robertson or the investment company intended to pay or extinguish the coupon when he handed over to her the gum called for by it and took the coupon into his possession.
It is difficult to find,- in the text-books or reports, any case precisely like this. (See, however, Ketchum v. Duncan, 96 U. S. 659, and Blair v. White, 17 Atl. Rep. 49.)
We do not think there is anything in the agreed statement of facts, or in the record presented, showing or tending to show that the Hartford Investment Company paid the coupon to protect the second mortgage.
The judgment of the district court will be affirmed.
JOHNSTON, J., concurring.
VALENTINE, J.:
I do not concur. The note, coupons and mortgage involved in this controversy were executed by James Warrell and wife to George C. Strong, agent of the Hartford Investment Company, and were by him assigned to Edward G. Robertson, the president and financial agent of such company, who resided and did business for the company at Hartford, Connecticut, and were by him sold and transferred to Julia Champion, the plaintiff in this action. At the time of the sale it was known and understood by the parties that Robertson, for the company, would advance the interest as it fell due, whether the same had been paid by the makers and mortgagors or not; and he did advance to Mrs. Champion the amount of the first coupon which represented interest, when it fell due, and Mrs. Champion delivered the coupon to him uncanceled. Under the provisions of the mortgage, if such coupon had not been paid at the time when it became due, the entire debt and the mortgage would have become due, and Mrs. Champion could at once have commenced her action for the debt and the accrued interest and to foreclose the mortgage. Afterward the second coupon became due and was not paid, and Mrs. Champion then commenced this action. In my opinion, as between Mrs. Champion and Robertson and the Hartford Investment Company, this advancement of the amount of the aforesaid coupon ought to be considered as a payment, and their lien upon the mortgaged property for the payment of this coupon should be considered as subsequent and inferior to the lien of Mrs. Champion ‘for the payment of her notes, coupons, and mortgage. Evidently Mrs. Champion did not consider that she was selling said coupon to Robertson and the investment company so as to permit it to remain a lien upon the mortgaged property to the injury of her own security, but evidently she considered that such coupon was paid, and as between her and the investment company, I think it ought to be so considered, although as, between the investment company and the parties executing the note, coupons and mortgage, it should be considered .as still unpaid and still a lien. It is admitted that the mortgaged property is not sufficient to pay the entire debt; and if this coupon is permitted to be a lien upon the mortgaged property as against Mrs. Champion, she must lose, although she purchased the mortgage with the note and coupons from a company whose business it was to procure and sell mortgages, and purchased the same with the aforesaid understanding, and although the company advanced the amount of the coupon without even an intimation that it was a purchase or a sale of the coupon. In support of the views herein expressed, see the following authorities: Trust Co. v. M. & P. J. Rld. Co., 63 N. Y. 311; Cameron v. Tome, 64 Md. 507; same case, 24 Am. & Eng. Rld. Cases, 203; Commonwealth v. Canal Co., 32 Md. 501; Haven v. Rld. & Depot Co., 109 Mass. 88; Jones, Rld. Secur., §§329, 330, 331.
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Opinion by
SiMPSON, C.:
The Standard Implement Company commenced an action in the district court of Saline county against the firm T. C. Ritter and Co., and attached their stock of hardware. Schultz & Hosea, who claimed to have a chat tel mortgage on the stock, interpleaded, and claimed that their chattel mortgage was a first lien. A trial was had on the in-terplea, and the court made the following findings of fact and of law:
“FINDINGS OF FACT.
“On January 3, 1887, and for several months prior thereto, the defendants, T. C. Ritter and his wife, P. J. Ritter, were engaged in the hardware business in the name of T. C. Ritter & Co., in the city of Salina, Kansas.
“2. On said January 3, 1887, T. C. Ritter & Co., being indebted to Schultz & Hosea in the sum of $683.37, executed to them three notes for $-each, due in 60, 90 and 120 days respectively, and to secure the same gave a chattel mortgage on their stock of hardware and the store fixtures. The mortgage provided for possession of the mortgaged property by the mortgagors until default in payment, or until the mortgagees deemed themselves insecure. There was no special agreement between the mortgagors and mortgagees as to selling the property. The. mortgagees, Schultz & Hosea, resided at St. Joseph, Mo., and were represented by Smith George, of Salina, Kansas, who had the claim against T. C. Ritter & Co. for collection, and who attended to the taking of said notes and mortgage. George retained the notes for collection, and continued to represent Schultz & Hosea in the matter of this claim continuously up to the time of plaintiffs’ attachment. The mortgage was filed in the office of the register of deeds of Saline county, Kansas, on January 4, 1887.
“3. In the month of February, 1887, T. C. Ritter & Co. removed from their then business location into a room in another block of the town, taking with them their goods and the store fixtures.
“4. The business, after the giving of the mortgage, was carried on the same as before, and goods were sold in the usual way, and other goods purchased from time to time and put into the stock; no separation was made of the new goods from those on hand when the mortgage was given, and no account kept showing the proceeds of sales of either class of goods. The proceeds of sales were used by Ritter & Co. as they saw fit — for the payment of general expenses and debts, and without special regard to this mortgage debt.
“5. Smith George was in the store of T. C. Ritter & Co. occasionally from and after January 3, 1887, knew the man ner in which the business was being conducted, and never made any objection thereto. Ritter & Co. were not asked to apply the proceeds of sales of the mortgaged goods on this debt, nor to keep any account thereof.
“ 6. Ritter & Co. paid to Smith George on said notes the following sums:. On March 5, 1887, $50; March 16, 1887, $120; May 12,1887, $60; May 25,1887, $113.90; June 25, 1887, $100 — leaving a balance of $66 and interest due on the last note.
“7. T. C. Ritter & Co. continued in business until August 30, 1887, when they made a general assignment for creditors. At that time there was a general stock of hardware on hand, valued at two or three thousand dollars, but the evidence does not show what articles were in stock that were on hand when the mortgage was given, except the following: Thirteen stoves, one show-case, two counters, one scale, lot of shelving, -, which were worth more than the sum yet due said mortgagees.
“8. In March, 1887, a half interest in the business of T. C. Ritter & Co. was sold to Henry Sturdevant, who continued in the firm to the end. Sturdevant paid in about $500 in money.
“ 9. The Standard Implement Company and other creditors began suits with attachments against Ritter & Co. on September, 1887, and levied on the stock of hardware. The legal and valid claims of such attaching creditors amounted to more than the total value of the stock. These goods were afterward sold by the receiver, and the proceeds are in his hands.
“10. The mortgagees, Schultz & Hosea, never had possession of any part of the mortgaged property.”
“CONCLÜSION OF LAW.
“The mortgage of Schultz & Hosea is a valid lien, and is entitled to preference over attachments of plaintiff.”
The implement company moved for judgment on the findings of fact, and also made a motion for a new trial. Both motions were overruled. The case is here for review, the sole question being as to whether or not the mortgage is fraudulent as to creditors. Both sides cite and rely on the cases of Frankhouser v. Ellett, 22 Kas. 127, and authorities cited in that case; Howard v. Rohlfing, 36 id. 357; Whitson v. Griffis, 39 id. 211. To these may be added the case of Leser v. Glaser, 32 Kas. 546. The true test of the validity of a chattel mortgage under such a similar circumstance is stated in the case last cited, and is as follows:
“All cases in which a power of sale of the goods by the mortgagor is provided for, are therefore to be tested by the questions, whether such sales are to be made in his own behalf and at his own discretion and with the control of the proceeds reserved to him; or whether they are to be made solely in pursuance of the trust as a real one, that is, for the benefit of the mortgagee, and with provision that the proceeds shall be applied on his debt.”
The only stipulation in this chattel mortgage is that “the mortgagors shall retain possession of all of said described property, all of which they agree, in consideration of such possession, shall be kept in as good condition as it now is and taken care of at their sole expense.” There is no stipulation about the manner of daily sale, or how the proceeds of daily sales shall be applied; in fact, the court states as a conclusion of fact in the second finding that there was no special agreement between the mortgagors and the mortgagees about selling the property. If the chattel mortgage gave no power to the mortgagors to sell, and if there was no express oral agreement between the mortgagors and the mortgagees about- daily sales and the application of the proceeds, it is probable that the mortgage would be held good, but the findings of fact recite that “the business after the giving of the mortgage was carried on the same as before . . . ; the proceeds of sales were used by Ritter & Co. as they saw fit — for the payment of general expenses and debts, and without special regard to this mortgage debt!” “The resident agent of the mortgagees knew the manner in which the business was being conducted and never made any objection thereto.” By these findings a case is presented in which the power of sale by the mortgagors is recognized and acquiesced in, and this power of sale and the application of the proceeds of such daily sales are made bjj the mortgagors on their own behalf, and at their own discretion, the proceeds being subject to their absolute control, and the sales are not made and the proceeds applied solely in pursuance of the object and purposes of the chattel mortgage for the benefit of the mortgagees. In other words, by the course of dealing pursued by the debtor, with the knowledge and acquiescence of the mortgagors, the debtor had the same control over the property, exercised the same right to sell .it, and to make an application of the proceeds of sale, as if the chattel mortgage had never been e'xecuted. The chattel mortgage could be used by the debtor as a shield against one class of creditors, while preferences could be given to others. While the mortgage may have been executed in good faith and with honest purposes, the subsequent action of both mortgagors and mortgagees renders it obnoxious to the test of validity as stated by this court in Leser v. Glaser, 32 Kas. 546. We think that as a matter of law the chattel mortgage was void as against creditors.
It is recommended that the judgment be reversed, and the case remanded, with instructions to enter judgment for the plaintiff in error upon the findings of fact.
By the Court: It is so ordered.
HortoN, C. J, and JOHNSTON, J., concurring.
ValENTINE, J.:
It is difficult to say that the judgment of the court below should be reversed in this case. The contest is between two creditors df T. C. Ritter & Co., who were a firm of hardware merchants at Salina, and who were the defendants in the court below but who are not parties in this court. The plaintiff in error, The Standard Implement Company, a corporation of Illinois, which was plaintiff in the court below, was an attaching creditor of the defendants below, while the defendants in error, Schultz & Hosea, a copartnership firm, of St. Joseph, Missouri, and who were interpleaders in the court below, were mortgage creditors of the defendants. ^Ihe grounds upon which the attachment was issued are not shown by the case as made and brought to this court by the plaintiff in error, but they were evidently merely allegations of fraud; for no other possible grounds for the attachment can be imagined under the facts of this case; but it does not appear that any-fraud existed in the case, certainly not any fraud in fact or any actual fraud. The mortgage executed by T. C. Ritter & Co. to Schultz & Hosea was executed and recorded long before any attachment suit was commenced. It was valid upon its face; it was executed iu good faith, and it does not appear that any fraud in fact or actual fraud ever existed in connection with the mortgage or in connection with any of the mortgaged property. The mortgagors were to have the possession of the mortgaged property until default or until the mortgagees deemed themselves insecure. By sufferance of an agent of the mortgagees, the mortgagors carried on their business after the execution of the mortgage the same as they had done before, and in doing so, sold some of the mortgaged property. The findings of fact of the court below show among other things that “The proceeds of sales were used by T. C. Ritter & Co. as they saw fit for the payment of general expenses and debts, and without special regard to this mortgage debt.” The mortgage debt, however, was nearly all paid. It was originally $683.37, but the mortgagors, Ritter & Co., paid portions of this debt from time to time from the proceeds of said sales until they paid all the debt except $66 and a small amount of interest. How much of the proceeds of the sales of the mortgaged property was used in keeping up the stock or for paying expenses and debts other than the mortgaged debt is not shown. From anything appearing in the case it might have been $1 or $10 or $100 or any other sum greater or less, but all was done in good faith. All the proceeds were used in replenishing the stock and in paying debts and expenses, including the mortgage debt. Ritter & Co. did not use the proceeds as they saw fit, but only “as they saw fit for the payment of general expenses and debts;” and this under the eye of an agent of the mortgagees. No fraud in fact of any kind or in any degree or manner at any time intervened. Some stoves and furniture and fixtures covered by the mortgage were worth more than enough to pay all the remainder of the mortgage debt, and none of these were sold by the mortgagors. All the property was afterward converted into money by a receiver. Upon the foregoing facts and others, the court below held that the mortgage was a valid lien upon the funds in the hands of the receiver for $66 and interest, and that the lien was prior to any supposed rights of the attaching creditor. The plaintiffs in error claim that this decision was erroneous, and ask for a reversal thereof by this court. It would seem that they rely largely upon the case of Leser v. Glaser, 32 Kas. 546, but that case is not in point, for in that case there was actual fraud, and the trial court upon that question found in favor of the attaching creditor and against the mortgagee, and this court simply affirmed the decision of the trial court. And in that case, in the opinion delivered by this court the following, among other language, was used:
“A chattel mortgage is not necessarily void because it contains a stipulation that the mortgagor may retain the possession of the mortgaged property, nor is it necessarily void because the parties have stipulated either in the mortgage or elsewhere that the mortgaged property may be sold by the mortgagor: provided, that all is done in good faith, and the proceeds of the sale or sales are to be used only for the purpose of paying the mortgagor’s debts and the necessary expenses for keeping the property and in converting the same into money. . . . A chattel mortgage executed in good faith is always valid, unless void for some technical reason, and whether void or valid it will probably never support an attachment; while, on the other hand, a mortgage executed in bad faith, or to hinder, delay or defraud the mortgagor’s creditors, is generally void, and will probably always sustain an attachment issued on the ground of such fraud. The fraud alone is sufficient to sustain the attachment without reference to the validity or invalidity of the mortgage.” Pages 553, 554.
In the case of Gay v. Bidwell, 7 Mich. 519, 525, the supreme court of Michigan says:
“To hold that a merchant cannot mortgage his goods without closing his doors, would be to hold that no mortgage of a merchant’s stock can be made at all.”
See also Jones on Chattel Mortgages, §§ 424, 425, and the authorities there cited. See also Frankhouser v. Ellett, 22 Kas. 127; Howard v. Rohlfing, 36 id. 357; Whitson v. Griffis, 39 id. 211; De Ford v. Nye, 40 id. 665; Hosea v. McClure, 42 id. 403; Arn v. Hoerseman, 26 id. 413; Randall v. Shaw, 28 id. 419; Tootle v. Coldwell, 30 id. 125. The presumption, prima facie, is that the judgment of the court below is right, and I cannot say that sufficient appears in this case to show affirmatively that it is erroneous, or that it should be reversed. All presumptions from silence or absence on the part of the record or case brought to this court should be construed in favor of the judgment of the court below, and not against it.
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Opinion by
GreeN, C.:
The appellant in this case was tried and found’ guilty of violating an ordinance of the city of Girard, which provided for a business license tax upon each and every business, occupation, calling, vocation and profession, operated, carried on, practiced or maintained, in said city. The case was first tried before the police judge of the city, and appealed' to the district court, where the defendant was again found guilty, and fined in the sum of five dollars. The case was tried by the court upon the following agreed statement of facts:
“ 1. The said city of Girard, Kansas, is a city of the second class, organized under the laws of the state of Kansas, and has been a city of the second class for more than three years last past.
“2. Said defendant, O. J. Bissell, was, on the 11th day of September, 1889, and prior thereto and upon divers other days between that date and the 1st day of December, 1889, a resident of said city of Girard, and therein engaged in the practice of medicine as a physician and doctor, without having paid the license tax and obtained a license from said city therefor.
“3. Said defendant was at the dates above specified registered as a physician and surgeon in the office of the clerk of Crawford county, Kansas, as follows: Date of registration, May 16, 1889; residence, Girard, Crawford county, Kansas; nativity, American; years’ practice, 43; in Kansas, 6 years; diploma conferred, March, 1847; college, medical department Willoughby University, Willoughby, Lake county, Ohio.”
The appellant challenges the power of the city council to pass such an ordinance as the one under which' he was convicted in the court below. Section 804 of the Gen. Stat. of 1889, being § 3 of chapter 40 of the Laws of 1881, confers express authority upon the city council, in cities of the second class, to levy and collect a license tax on doctors. The ordinance in question makes it unlawful for any person to practice medicine, or to follow the profession of physician, or doctor of any kind, without having first paid a license tax of ten dollars annually. The agreed statement of facts clearly indicates that the appellant comes within the operation of this ordinance. He was engaged in the practice of medicine, as a physician and doctor, and had not paid the license tax.
The question of the authority for such legislation, upon the part of city governments, has long since been settled by this court, and it will not be necessary for us to discuss the matter here. Judge Dillon, in his work on Municipal Corporations, (3d ed., §357, note,) has summed the law up in a single sentence :
“Unless specially restrained by the constitution, the legislature may provide for the taxing of any occupation or trade, and may confer this power upon municipal corporations.”
See Campbell v. City of Anthony, 40 Kas. 652; City of Newton v. Atchison, 31 id. 151, and authorities there cited, for a full and elaborate discussion of the question.
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
It appearing from the record that the trial court found that John Hannon was the owner of the real estate in controversy, and as the evidence upon this point is not all preserved, we cannot say that the decision is contrary to the evidence. If Hannon has the title, the question of possession seems to be immaterial. Unless the contrary affirmatively appears, it will be presumed that the proceedings in the trial court submitted for review are regular. (The State v. English, 34 Kas. 629; The State v. Herold, 9 id. 194.)
No attempt was made before the court below to have the taxes assessed as a lien upon the real estate described in the tax deed, and therefore this matter cannot be now considered. We do not pass upon the question as to the right of the plaintiff to obtain another tax deed, because this question is not properly in the case.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought in the district court of Brown county by Susan E. Smith, and her husband, Joseph Smith, against A. G. Davenport, for personal injuries sustained by Mrs. Smith in consequence of the acts of Albert Davenport, a minor son of the defendant, eleven years old, in riding over her with a horse. The case was tried before the court and a jury, and at the close of the plaintiffs’ evidence the defendant demurred thereto upon the ground that it did not prove any cause of action, and the court sustained the demurrer and rendered judgment for costs in favor of the defendant and against the plaintiffs; and the plaintiffs, as plaintiffs in error, bring the case to this court.
The facts of the case, stated briefly, are substantiálly as follows: On September 18, 1885, in the afternoon, the defendant directed his son, Albert, to hunt for a colt that had strayed away from their premises. The boy procured a pony mare belonging to Mr. Cochran that was kept on the premises, and proceeded to hunt for the colt, but not finding it, he returned that same afternoon about sundown. The mare was then fed by the hired man, and in about one half-hour afterward the boy went on foot to the house of Mr. E. D. Lacroix, about half a mile distant, to inquire concerning Lacroix’s health. About the same time, a little brother of Albert’s, about eight years old, named Byron, and another little boy named Johnny Nelson, who was about nine years old, rode Mr. Cochran’s pony mare to Mr. Lacroix’s house. Albert went to the house and made his inquiry. The other two boys with the mare remained at the gate. They then came inside of the inclosure between the house and the gate. They then got off the mare and Albert got on, and rode her upon a “lope” toward the gate, and arriving near the gate the pony changed her course and ran back, and in doing so ran against and over Mrs. Smith and injured her; and then the mare changed her course again and ran toward the gate, and getting near the gate she stopped suddenly and threw the boy off and over her head. Albert was not sent to Mr. Lacroix’s house by his father. These are substantially all the material facts in the case.
We shall assume for the purposes of this case that Albert Davenport committed an actionable tort, for which he himself was liable; for infants as well as others are liable for all the injuries to either person or to property which they themselves wrongfully commit. (10 Am. & Eng. Encyc. of Law, 668.) But the question arises, Was the father, A. G. Davenport, liable for the wrongful acts of his son? This question must be answered in the negative. (Edwards v. Crume, 13 Kas. 348, 350, and cases there cited; Baker v. Morris, 33 id. 580.) A father is never liable for the wrongful acts of his minor son, unless the acts are committed with the father’s consent or in connection with the father’s business. In the present case, the son was not performing any act for his father. He was not directed by his father to go to Lacroix’s house. It does not appear that he was even there with his father’s knowledge. And what he did had no connection with his father’s business.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by'
HobtoN, C. J.:
On the first day of September, 1886, J. O. Fife filed a petition in the district court of Wyandotte county, asking judgment against Mrs. M. A. Hays, for $100 for attorney’s fees. A summons was issued on the same day, and returned on the third day of September, 1886, “not found.” On the same day on which the petition was filed, an affidavit for publication was filed in the clerk’s office of the court, which, omitting caption, is in words and figures as follows:
“ J. O. Fife, Plaintiff, v. Mes. M. A. Hays, Defendant. — J. O. Fife, of lawful age, being by me first duly sworn according to law, upon his oath says, that he is the plaintiff in the above-entitled cause; that defendant is the owner of lot number 6, in block 79, and lot number 42, in block 49, in the old city of Wyandotte, now Kansas City, Wyandotte county, Kansas; that this suit is brought for the purpose of recovering the sum of $100 due affiant from defendant above named; that defendant is a non-resident of the state of Kansas, and that service of summons cannot be made on said defendant within the state of Kansas. J. O. Fife.
“Subscribed and sworn to before me this 1st day of September, 1886. L. C. Teickey, Clerk District Court.”
On the same day on which the petition was filed, an attachment affidavit was filed, and on the 3d day of September, 1886, the real estate mentioned was attached, pursuant to the affidavit and the order issued thereon. Proceeding upon the affidavit, publication was made and filed on January 8,1887. The publication notice, which was published for a sufficient time in the Wyandotte Gazette, a weekly newspaper of general circulation in Wyandotte county, Kansas, omitting caption, was as follows:
“M. A. Hays, defendant above named, will take notice that she has been sued in the district court of Wyandotte county, Kansas, by J. O. Fife, plaintiff above named, for the sum of $100, and interest thereon at the rate of 7 per cent, per annum from April 1, 1885, and that defendant must answer plaintiff’s petition on or before the 25th day of October, 1886, or said petition will be taken as true, and judgment rendered in favor of plaintiff against defendant for said sum and costs, and that lot 42, in block 49, and lot 6, in block 79, all in Wyandotte, now part of Kansas City, Wyandotte county, Kansas, the property of defendant, and heretofore by the sheriff of Wyandotte county attached, will be sold, and the proceeds thereof applied toward the payment of said judgment and costs. (Signed) J. O. Fife, Plaintiff,
By Jas. F. Getty, Att’yfor Plaintiff.”
On the 19th day of January, 1887, the defendant failing to appear, judgment was rendered for plaintiff in the usual form, and on the 31st day of May, 1887, the sheriff of the county sold the real .estate to James Birmingham. On the 6th day of June, 1887, the sheriff’s deed was executed, and the same was filed for record in the office of the register of deeds of the county of Wyandotte on the 13th of June, 1887. On the 28th day of December, 1886, the real .estate in question was sold by Mrs. M. A. Hays and husband to Wingate Jackson. The deed was recorded December 30, 1886. On the 6th day of June, 1887, Jackson sold lot 6, block 79, to H. M. Merriwether, which deed was recorded June 11, 1887, and on June 9, 1887, Merriwether sold lot 6, block 79, to Juliette U. Long. This deed was recorded June 11, 1887. On the 21st day of September, 1887, Wingate Jackson and Juliette U. Long filed their motion to vacate and set aside the judgment, on the ground that the affidavit for publication was essentially defective; that the publication of notice was therefore void; that no other service was had; that defendant did not appear or in any manner waive service, and that consequently the judgment was absolutely void for want of jurisdiction. The district court allowed Fife to file an amended affidavit for publication, on the ground that the affidavit for publication was not void, but voidable only. Thereupon, with leave of the court, an amended affidavit for publication, fully sufficient, was filed. Jackson and Long excepted, and bring the case here.
This court has already decided that if the jurisdictional facts necessary to warrant service upon a defendant by publication were in existence at the commencement of the action > and the affidavit for publication is defective only and not voidable, the court, after judgment, may permit an amended affidavit for publication to be filed, and such affidavit when filed gives jurisdiction to the court and relates back to the time of the commencement of the action. (Pierce v. Butters, 21 Kas. 124; Wilkins v. Tourtellott, 28 id. 833; Harrison v. Board, 30 id. 532.)
The affidavit for publication should have stated that the case commenced in the district court was one of those mentioned in § 72 of the civil code.
“The rule is, if there is a total want of evidence upon a vital point in the affidavit, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but it is inferentially or insufficiently set forth, the proceedings are merely voidable.” (Harris v. Claflin, 36 Kas. 543.)
The affidavit for publication stated that Mrs. M. A. Hays, the defendant, was a non-resident of the state of Kansas; that service of summons could not be made upon her within the state; that the action was brought for the purpose of recovering from her the sum of $100 due to the plaintiff, and also set forth a full description of the real estate owned by her in the the city of Wyandotte, now Kansas City. This was the property that was attached, and which was subsequently sold to pay the judgment. The fair inference from the affidavit is, that the real estate described was sought to be taken, or appropriated, for the debt owing from Mrs. Hays; at least, we do not think the omission in the affidavit so vital, in view of what the affidavit did contain, as to render the proceedings void. Therefore, our conclusion is, that the court did not err in permitting the amended affidavit to be made and filed.
This case differs from Harris v. Claflin, supra, in which case Mr. Justice JOHNSTON dissented. In that case, nothing was stated in the affidavit for publication about the action being one of those mentioned in § 72 of the civil code, no real estate was described or referred to, and no debt was alleged as being owed from the defendant to the plaintiff or to anyone else.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
IiORTON, C. J.:
On November 14, 1885, W. H. H. Freeman commenced his action against Samuel Hill before a justice of the peace of Marshall county to recover $75 upon an appeal bond executed by Ed. W. Waynant, as administrator of the e'st'ate of J. B. Waynant, deceased, as principal, and Samuel Plill as surety. On December 1, 1885, he filed an amended bill of particulars claiming $185, setting up three causes of action, the second and third causes being new. Hill, by his attorneys, made a motion to strike out causes two and three, because they were not stated in the first bill of particulars, or in the summons. The justice sustained the motion'. The case was then tried before the justice and decided in favor of Hill. Freeman appealed to the district court. On April 1, 1886, he filed in the district court a petition alleging three causes of action, one on the bond, one for attorney fees, and one for a pump, to be taken out if not satisfactory.
At the August term of the district court for 1886, no answer having been filed, Freeman moved for judgment upon the pleadings for $185. This was granted. Soon afterward and at the same term, the judgment was set aside on the application of Hill, and on the 7th day of September, 1886, Hill filed an answer, pleading, among other things, the statute of limitations. On the 2d day of September, 1887, Hill obtained leave to amend his answer. To this answer, Freeman filed his reply. Trial had before the court with a jury. On September 3, 1887, a verdict was returned in favor of Hill, and judgment was entered accordingly. Freeman excepted, and brings the case here.
It is claimed by him that the trial court erred in setting aside the judgment rendered upon default, and also erred in allowing Hill to file an answer pleading the statute of limitations. The application to set aside the judgment was made at the same term at which the judgment was rendered. The action of the court in that matter rested, to a very great extent, in its sound judicial discretion. Subsequently, an answer was filed and the parties had a trial before a jury. Under such circumstances, a reviewing court will not interfere with the vacation of a judgment by the trial court, unless it appears that the trial court has abused its power. This is not shown. (Spratley v. Insurance Co., 5 Kas. 155; Flint v. Noyes, 27 id. 351.)
There was no error in permitting Hill to plead the statute of limitations. In this state such statutes are favorably considered. (Taylor v. Miles, 5 Kas. 498.) In that case it was said that —
“When the statute has run its full time, the effect is to leave the parties in possession of just what they had before— nothing more and nothing less, and neither party has a right of action against the other; the injured party has lost his remedy.”
At one time, the decisions of the courts were largely in favor of regarding statutes of limitation as statutes of presumption, but now they are generally considered, as in this state, as statutes of repose. (Sibert v. Wilder, 16 Kas. 176.) Under some of the decisions, where statutes of limitation were regarded as statutes of presumption only, an answer pleading such statutes was not considered meritorious or treated with favorable consideration. In this state, however, as statutes of limitation are statutes of repose, such a ruling does not apply.
The court may allow a party to file his answer out of time, whether he pleads payment or the statute of limitations. It is a matter within the discretion of the trial court, and unless that discretion is abused, its ruling will not be reversed.
It is also urged that the instructions of the trial court were erroneous, and therefore that the plaintiff was denied a fair trial. The trial court instructed the jury to disregard the evidence introduced under the first cause of action, and also stated to the jury that the plaintiff had not shown any facts to entitle him to recover thereon. Section 577 of the civil code reads:
“Executors, administrators and guardians who have given bond in this state, with sureties, according to law, are not required to give an undertaking on appeal or proceedings in error.”
Section 185 of civil procedure before justices reads:
“The provisions of an act entitled ‘An act to establish a code of civil procedure/ which are, in their nature, applicable to the jurisdiction and proceeding before justices, and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace.”
The bond executed by Waynant, as administrator, and by Samuel Hill as surety, cannot be regarded as a statutory bond.' It cannot be considered good as a common-law bond, because Waynant as administrator had the right to appeal without giving any undertaking; therefore no benefit was obtained by the execution of the bond, and no injury or damage resulted from its execution to the plaintiff or to anyone else.
Again, the action in which the bond was given has never been disposed of and is still pending before the district court of Marshall county. At the December term of the district court of Marshall county for 1880, Waynant made a motion to dismiss the action brought against him by Freeman, upon the ground that the court had no jurisdiction. The court granted this motion, but its ruling was reversed by this court. (Freeman v. Waynant, 25 Kas. 279.) The mandate of this court was sent to the court below and filed May 14, 1881, but nothing seems to have been done with the case since that time. Upon the facts disclosed, plaintiff could not recover upon the bond — the first cause of action.
It is not shown by the record that all the evidence is preserved, and therefore we cannot say from the record as presented that the court committed any error in the other instructions referred to. If the plea of the statute of limitations was supported by sufficient evidence, the instructions given by the trial court stated correctly the law.
A claim is made, that as the affidavit to the answer alleged Hill was a non-resident of the state at the time the answer was filed, therefore that the causes of action of plaintiff were not barred. This, however, depends upon the evidence presented to the court, all of which is not shown to be in the record. If the claims of plaintiff were barred by the statute before Hill became a- non-resident, the point presented is without force.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
StjíANG-, C.:
A temporary order of injunction was allowed in this case by the district judge of Geary county, February 23d, 1888. On the 27th of the same month a motion to vacate said injunction was heard and sustained. The plaintiff complains of the order vacating said injunction, and asks this court to reverse it.
There is no pretense in this case that the defendants or either of them has or is about to appropriate any property belonging to the plaintiff. But the plaintiff alleges that the defendant city, and William Fisher, under direction of said city, are engaged in the improvement of one' of the streets of said city, and that the work is being defectively performed, because of which he will suffer damage. The city has authority to improve its streets; and, possessing the power to improve them, we do not think the plaintiff can enjoin the city upon the ground that the work is being defectively performed. Plaintiff also says that the work being done by the city is of that character that will necessitate the levying of a tax against the abutting property to pay for the same, and that the city has not taken the necessary steps required to be performed by the statutes, providing for such improvements, as conditions precedent to the making of said improvements, and the assessment of a tax to pay for them, and that therefore the injunction should have been continued. No assessment has been made to pay for the work being done, and no act done that indicates the making of an assessment therefor. But on the contrary, the ordinance which provides for the improvement, and which is made a part of the plaintiff’s petition, makes no provision for any assessment against the abutting property to pay the expense of such improvement. This fact should dis pel the fears of the plaintiff that any special tax is to be levied against the abutting property to pay for said improvements.
It is recommended that the action of the district judge in vacating the order of injunction be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an action of replevin, to recover the possession of a stock of implements, brought by defendants in error against James E. Smith, who, as sheriff, had seized the stock in attachment proceedings brought by the Buford & George Implement Company against Smith Brothers. The Smith Brothers, who were engaged in the implement business, procured the defendants in error to join with them in signing certain notes and obligations, as sureties. Afterward, when the Smith Brothers found themselves in failing circumstances, they transferred the stock of implements which they had on hand to the defendants in error at the stipulated price of $2,000. The consideration of the transfer was the liability of these sureties on the notes which they had signed for Smith Brothers, together with the promise that they would pay the same. Shortly after the sale and transfer, the stock of implements was attached by the Buford & George Implement Company, who alleged that the sale of the property was for the purpose of hindering and delaying the creditors of Smith Brothers in the collection of their debts; and this action to recover their possession immediately followed.
The verdict of the jury was in favor of the defendants in error, and there being sufficient evidence, it establishes the good faith and honesty of the transaction. The notes which they signed represented a bona fide indebtedness, and the stock ■of goods transferred was insufficient to pay the obligations for which they were liable, and which they agreed to pay.
It is contended by plaintiff in error that there was no consideration for the sale of the goods to the defendants in error; and this is the only material questiou which is discussed in his brief. The insolvency of the Smith Brothers practically settled the liability of the defendants in error on the notes which they had signed, and more than that, the testimony is that at the time of the sale the sureties agreed to pay these ■debts. Some of them were paid about the time of the transfer, and others of them have been paid since that time.
We think there can be no doubt that the liability of the defendants in error, as sureties, and their agreement to pay these debts, constitute a sufficient consideration for the sale of the property. The liability of a surety alone is held to be a good consideration for a conveyance of property; but no room is left for question where, as here, there is an express promise to the principal to pay the debt. The Smith Brothers had a right to prefer one creditor over another, and they owed no higher obligation to any creditor than to those sureties who had aided them by their credit in carrying on the business. The goods were in their possession and subject to their disposal at the time of the sale, and it is competent for them to secure the defendants in error by a mortgage on the goods, or to satisfy them by a sale and transfer of the same for the liability which they had assumed, and which by agreement they had obligated themselves to pay. The question is not, as plaintiff in error suggests, whether the surety has a right of action against the principal before the maturity and payment of the debt, but it is, rather, whether the principal may honestly indemnify and protect the surety who has become liable for and must pay the debt for which he is surety. It is well settled that this liability is ample consideration for either a mortgage or the sale of property to the surety, and, therefore, as the good faith of this transaction has been settled, we conclude that the sale in question must be upheld. (Miller v. Krueger, 36 Kas. 344; McWhorter v. Wright, 5 Ga. 555; Mandigo v. Mandigo, 26 Mich. 349; Gladwin v. Garrison, 13 Cal. 330; Stevens v. Bell, 6 Mass. 339; Cushing v. Gore, 15 id. 73; Swift v. Crocker, 21 Pick. 241; Kramer v. Farmers’ Bank, 15 Ohio, 253; Brandt, Sur., §§ 186, 213.)
This disposes of every substantial objection made' by plaintiff in error, and, as we find no error in the record, the judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action brought in the district court of Linn county, to perpetually enjoin and restrain the board of county commissioners of Linn county from levying a tax to pay the interest upon certain bonds, issued under chapter 236 of the Laws of 1887. It is disclosed in the record before us that, prior to the year 1885, Linn county was the owner of a tract of land in Mound City known as the “public square;” that during that year, upon the application of citizens of the township in which Mound City is situated, leave was granted by the board of county commissioners of the county to build a court-house on such public square; that certain citizens procured subscriptions from other citizens of the township, for the purpose of erecting a court-house; that a committee of citizens then proceeded to and did erect the walls of a suitable building for a court-house and put on a roof, but no floors were laid, and no doors or windows were put in; that after the erection of the walls of said building, and during the year 1886, the building in its unfinished condition was formally donated to the county, and accepted by the board of county commissioners, as a court-house, and taken possession of and completed at the expense of the county, and has since been used as a court-house and for no other purpose; and that the building and grounds belong to Linn county. The building cost, in the condition it was donated to the county by the citizens’ committee, $14,500, which had been contributed by various citizens of the township. In the year 1887, the legislature passed chapter 236, An act to authorize Mound City township, in Linn county, to vote bonds not to exceed $17,000, to reimburse citizens of said township for sums advanced by said citizens to aid in the construction of a court-house in Mound City. Subsequently an election was held in the township, and it was determined by a vote of two hundred and forty for to one hundred and forty-three against, that the bonds of the township should be issued for $14,500, and the vote was duly canvassed by the board of county commissioners and the bonds issued, showing upon their face that they were issued under the authority of chapter 236 of the Laws of 1887. This suit was commenced by a tax-payer of the township, and the court below granted a perpetual injunction against the defendants below, restraining them from levying a tax to pay any interest on the bonds issued under said chapter 236, holding that the same was unconstitutional. The plaintiffs in error bring the record here for review.
It is urged that the legislature had the right to authorize the township to issue its bonds for the purpose designated, notwithstanding the fact that there may have been no legal obligation resting upon the township to refund the different sums subscribed and paid by the various citizens, to be used in the construction of this court-house. The proposition involved is, whether or not this law, which recognizes the right and authorizes the municipality, upon a vote of the people, to assume and pay certain obligations of an equitable character, can be upheld. One of the canons of constitutional con struction in this state is, that no slight difference of opinion will authorize the judiciary to set aside the action of the lawmaking power, or to nullify an act of the legislature. The judicial department should not interfere with the legislative conscience, unless there be a clear violation of some provision of the constitution. (The State v. Barrett, 27 Kas. 213.) Text-writers'and courts of the highest legal learning and respectability have said that the fact that a claim against a municipal or public corporation is not such an one as the law recognizes as a legal obligation, forms no constitutional objection to the validity of a law imposing a tax and directing its payment. (1 Dill. Mun. Corp., 4th ed., § 75; United States v. B. & O. Rld. Co., 17 Wall. 322; New Orleans v. Clark, 85 U. S. 644; Shaw v. Dennis, 10 Ill. 405; Dennis v. Maynard, 15 id. 477; Layton v. New Orleans, 12 La. Ann. 515; Carter v. Bridge Prop’rs, 104 Mass. 236; Thomas v. Leland, 24 Wend. 65; Town of Guilford v. Supervisors, 13 N. Y. 143; Brewster v. City of Syracuse, 19 id. 116; Darlington v. Mayor, 31 id. 164; Brown v. Mayor, 63 id. 239; Mayor v. National Bank, 111 id. 446; Sinton v. Ashbury, 41 Cal. 525; Creighton v. San Francisco, 42 id. 446; Lycoming v. Union, 15 Pa. St. 166; Cooley, Const. Lim. 258.)
The reasoning in the adjudicated cases cited is, that the legislature may determine what moneys may be raised and expended, and what taxation for municipal purposes may be imposed; and it certainly does not exceed its constitutional authority when it compels a municipality to pay a claim which has some meritorious basis to rest upon. From the numerous authorities upon the question of legislative control over municipalities, Judge Cooley lays down the following proposition: “That the legislature has the undoubted power to compel the municipal bodies to perform their functions as local governments under their charters, and to recognize, meet, and discharge the duties and obligations properly resting upon them as such, whether they be legal, or merely equitable or moral; and for this purpose, it may require them to exercise the power of taxation whenever and wherever it may be deemed necessary or expedient.” (Cooley, Const. Lim. 238.)
The court of appeals of New York recognizes the doctrine of large legislative discretion upon the question of raising and appropriating public money, and of imposing a tax upon towns and other municipal or political divisions, whenever it will be promotive of the public welfare. The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice, in the largest sense of these terms, or in gratitude and charity. Independent of express constitutional restrictions, it can make appropriations of money whenever the public well-being requires or will be promoted by it, and it is the judge of what is for the public good. It can, moreover, under the power to levy taxes, apportion the public burdens among all the taxpaying citizens of the state, or among those of a particular section or political division. (Town of Guilford v. Supervisors, supra.)
In speaking upon this same subject, in the case of Booth v. Woodbury, 32 Conn. 118, Mr. Justice Butler said: “To make a tax law unconstitutional on this ground, it must be apparent at first blush that the community taxed can have no possible interest in the purpose to which their money is to be applied.” In the case of Sinton v. Ashbury, supra, Crocket, J., stated the rule:
“It is established by an overwhelming weight of authority, and I believe is conceded on all sides, that the legislature has the constitutional power to direct and control the affairs and property of a municipal corporation for municipal purposes, provided, it does not impair the obligation of a contract, and by appropriate legislation may so control its affairs as ultimately to compel it, out of the funds in its treasury, or by taxation to be imposed for that purpose, to pay a demand when properly established, which in good conscience it ought to pay, even though there be no legal liability to pay it.”
The law challenged in this case is not subject to the objec tions urged in the numerous cases cited. The act in question provided that the bonds of the municipality should not be issued for these assumed obligations, until the question had been submitted to the people of the township, at an election called for that purpose. The notice of such election had to contain a statement of the purpose for which, and the conditions under which bonds were to be issued. The legislature having said that these obligations might be paid, and a majority of the legal voters of the township having decided that it was just and equitable that such subscriptions to the courthouse fund should be assumed by the municipality, we cannot see that the law is subject to any constitutional objection.
Following the maxim which.we regard as the true and correct rule, that there should be great caution in arriving at a conclusion adverse to the validity of a legislative act, and, believing that the law in question is within the constitutional power of the legislature to pass, we recommend a reversal of the judgment of the trial court.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
West, J.:
The plaintiff, holding a second-grade certificate issued, by the board of examiners of Woodson county, taught a term of school, beginning in the fall of 1912, in district No. 35, Greenwood county, and thereafter entered into a contract for the term beginning in the fall of 1913, such contract being signed by two members of the board only. In April, 1913, she mailed her certificate with the required fee of $1 to the defendant, the county superintendent of Greenwood county, requesting his indorsement. The fee and the certificate unindorsed were returned to the plaintiff in September, 1913, and reached her after nine o’clock on the day she began her second term of school. She sued for a writ of mandamus requiring the defendant to indorse the certificate, setting up the facts already indicated and alleging that the defendant had led her to believe that her certificate would be indorsed, and that he had never at any time offered as an excuse or reason for not indorsing it that she was lacking in moral character or teaching ability, but on the contrary well knew that she possessed both and had taught and governed the school successfully during the previous term. The answer in substance alleged that the patrons of the district were displeased with the plaintiff as a teacher, and that the defendant held an investigation from which he learned of certain conduct on her part by him deemed indiscreet, and that she lacked the ability to govern and control the school successfully. In reply the plaintiff alleged that during her previous term the defendant had visited the school and reported favorably as to her ability and temperament to govern and conduct the school. This report was received in evidence without objection. An extended trial was had and numerous witnesses were examined, manifesting the usual interest and bitterness incident to school-district troubles, and after considering the entire matter the trial court expressly found, among other things, “that no good and sufficient reason existed why said defendant should not have endorsed the certificate of said plaintiff when the same was presented to him,” and the indorsement was ordered.
The defendant appeals and complains of the admission of certain evidence, but mainly-that the judgment was for the plaintiff instead of the defendant, and argues that the superintendent, having investigated the propriety of indorsing the certificate and having acted fairly and honestly in making such investigation, his conclusion was final and his action can not be controlled by mandamus. Numerous authorities are cited in support of this contention. He claims the right to’ decide the same as the examiners of Woodson county when .issuing the certificate. “That while the board of examiners of Woodson county had the authority to revoke the certificate, that he had the same authority to refuse to endorse the certificate and' could refuse to endorse the certificate for the reasons which might be determined sufficient to revoke the certificate.” In Johnson v. Connelly, 88 Kan. 861, 129 Pac. 1192, holding that the duty to indorse is imperative unless valid reasons exist for withholding the indorsement, it was said that valid grounds might exist which would j ustify a refusal to indorse; that the statute imposes a duty upon the superintendent and creates a corresponding right in the holder, and unless a valid reason exists for withholding indorsement the duty is imperative. This case appears to have been tried and treated as one involving the moral character of the plaintiff,' but it will be observed that the reasons set forth in the answer for withholding the indorsement were not immorality but mere indiscretion, and as to her qualifications the following is the precise allegation: “and that while teaching said school she lacked the ability to successfully govern and control her pupils and demand from them the respect that a teacher should.” In Johnson v. Con- nelly, supra, it was said that the statute imposes a mere ministerial duty, and if the legislature had intended to impose upon the superintendent the duty to inquire into the qualifications of the holder of the certificate to teach it doubtless would have used language indicating such a purpose; that the certificate was issued in the first place by a board with the discretion to pass upon the qualifications of the applicant, “and when issued is conclusive upon superintendents in other counties, until some valid reason is shown to exist which would make the holder disqualified to become a teacher.” (p. 862.) This construction of the statute is not in line with the defendant’s contention that his investigation and conclusion were binding and final. The plaintiff, having a certificate issued by the authorities of another county, was entitled to its indorsement by the defendant as a matter of ministerial duty unless valid reasons existed for withholding indorsement, and the trial court, having gone into the matter thoroughly, had concluded that such reasons -did not exist.
It should be said that this is not a case in which the statute expressly leaves to the judgment and discretion of a superintendent the matter of indorsing a certificate and thereby continuing in the line of duty a teacher already possessing the evidence of qualification, or by withholding such indorsement retiring such teacher as unqualified or disqualified. His duty is to indorse unless some valid reason exists for refusal. And the existence itself of such reason — not his opinion that it exists — is the test by which the teacher whose qualifications have already been declared by a competent board is to continue in the profession or be compelled to retire.
The trial court* therefore, properly tried the question of valid reason and found none, and with this conclusion we agree.
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Porter, J.:
The plaintiff is a judgment creditor of the defendant, Arthur B. Havens. The executors of the will of Paul E. Havens, brother of the defendant, are garnishees in a proceeding to reach, and apply in payment of plaintiff’s judgment, the income of a trust estate bequeathed by the will to the defendant.
Two questions are involved: First, does the will properly construed disclose an intention on the part of the testator to create a “spendthrift trust” in favor of his brother; in other words, to secure to his brother the life enjoyment of the income of the trust estate exempt from the creditors of his brother? Second, if a proper construction of the will discloses such intention, can it be made effectual?
It seems more appropriate to consider the second of these questions first, because, in determining what is essential to the creation of a spendthrift trust, it becomes necessary to refer to the history of the law in relation to such estates.
Paul E. Havens, the testator, was a brother of the defendant and died on the 6th day of May, 1913, leaving a last will dated February 18, 1908, which has been duly probated. The following is the clause of the will upon which the defendant and the garnishees base their contention that it was the testator’s intention to create a spendthrift trust:
“To my brother, Arthur B. Havens, should he survive me, an annuity of one thousand dollars, and I direct my said executor-trustees to pay him Two Hundred and Fifty Dollars quarterly in advance from my death until his; but should he pre-decease me, and in any event after his death, such annuity, fund to be added to the trust estate hereinafter created for my said daughter Elizabeth and her issue.”
Since the decision in Brandon v. Robinson, 18 Ves. 429, 433, the English courts have uniformly followed the rule of the common law, that a donor creating a life estate can not take away its incidents, among which are the powers of voluntary and involuntary alienation. In England, however, as well as in those states where the English rule has been adopted, it is held that if the gift or devise contains a condition of cessor upon the bankruptcy or insolvency of the beneficiary, or upon an attempted alienation, the restraint is valid. (Brandon v. Robinson, supra; McKinster v. Smith, 27 Conn. 628; Tillinghast v. Bradford, & another, 5. R. I. 205; 26 A. & E. Encycl. of L. 138.)
The grounds upon which the English decisions rest are two: First, that the right of alienation is a necessary incident to an equitable estate for life; and second, that, it is contrary to public policy that one should have the right to enjoy the income of property to the exclusion of his creditors.
In Sparhawk v. Cloon, 125 Mass. 263, the opinion contains an exhaustive discussion of the subject, and it is there stated that from the time of Lord Eldon, the rule has been in the English court of chancery that when the income of a trust estate is given to any person (other than a married woman) for life, the equitable estate for life is alienable by and liable in equity to the debts of the cestui que trust, (p. 266.)
The English rule has been rejected by most of the state courts in this country and by the supreme court of the United States. (Nichols, Assignee, v. Eaton et al., 91 U. S. 716, 23 L. Ed. 257; Shankland’s Appeal, 47 Pa. St. 113; Broadway National Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504; Lampert v. Haydel, 96 Mo. 439, 446, 9 S. W. 780; Smith & Son v. Towers, Garnishee, 69 Md. 77, 14 Atl. 497, 9 Am. St. Rep. 398.)
The rule adopted by the majority of the American courts is that “it is lawful for a testator or grantor to create a trust estate for 'the life of the cestui que trust, with the provision that the latter shall receive and enjoy the avails at times and in amounts either fixed by the instrument or left to the discretion of the trustee, and that such avails shall not be subject to alienation by the beneficiary nor liable for his debts. (26 A. & E. Encycl. of L. 139.)
The argument upon which the American authorities are based is that a creditor of the donee has no right to look to the property of another man for the payment of his debts.
“As to past debts, such creditors are no worse off after their debtor becomes the donee of a spendthrift trust than they were before, and as to future debts it is their own folly if they choose to rely upon a fund which by the very terms of its donation it is impossible for them to reach, of which fact they are advised actually or constructively by the registry laws of the United States. Moreover, it is not deemed against public policy for a testator to provide a support for a spendthrift child, since it is the interest of the public that such child shall not become a public burden. The rights of creditors are not deemed any more sacred than the right of property involved in the execution of the trust; or the right which a testator has that the will he made should be carried out, and not one that the court makeg for him.” (26 A. & E. Encycl. of L. 141.)
(See, also, Nichols, Assignee, v. Eaton et al., 91 U. S. 716, 23 L. Ed. 257; Steib v. Whitehead, 111 Ill. 247; Partridge v. Cavender, 96 Mo. 452, 9 S. W. 785; Moore’s Estate, 198 Pa. St. 611, 612, 48 Atl. 884.)
In Nichols, Assignee, v. Eaton et al., supra, Mr. Justice Miller said:
“Nor do we see any reason, in the recognized nature and tenure of property and its transfer by will, why a testator who gives, who gives without any pecuniary return, who gets nothing of property value from the donee, may not attach to that gift the incident of continued use, of uninterrupted benefit of the gift during the life of the donee. Why a parent, or one who loves another, and wishes to use his own property in securing the object of his affection, as far as property can do it, from the ills of life, the vicissitudes of fortune, and even his own improvidence, or incapacity for self-protection, should not be permitted to do so, is not readily perceived.” (p. 727.)
It can not be doubted that by the great weight of authority in this country it is settled that the founder of such a trust may secure the enjoyment of it to the objects of his bounty by providing that it shall not be alienable by them or become subject to be taken by their creditors, and that the testator’s intention in this respect when clearly expressed by him will be carried out. (Rife v. Geyer, 59 Pa. St. 393; Broadway National Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504; Sparhawk v. Cloon, 125 Mass. 263; Lampert v. Haydel, 96 Mo. 439, 9 Am. St. Rep. 358; Smith & Son v. Towers, Garnishee, 69 Md. 77, 14 Atl. 497, 9 Am. St. Rep. 398; Nichols, Assignee, v. Eaton et al., supra; Roberts v. Stevens, 84 Maine, 325, 24 Atl. 873, 17 L. R. A. 266; Jourolmon v. Massengill, 86 Tenn. 81, 5 S. W. 719; Garland v. Garland, 87 Va. 758, 13 S. E. 478; Wales’ Admr. v. Bowdish’s Exr., 61 Vt. 23, 27, 17 Atl. 1000, 4 L. R. A. 819; Seymour v. McAvoy, 121 Cal. 438, 53 Pac. 946, 41 L. R. A. 544.)
The supreme court of Iowa has approved the American rule, with the qualification that creditors can not deprive the beneficiary of the support provided for him out of such property, “so long as it is in accordance with his station in life.” (Bank v. Crist, 140 Iowa, 308, 313, 118 N. W. 394, 132 Am. St. Rep. 267.)
The question is a new one, in this state. There is no statute or decision upon the subject, but we see no reason why the rule adopted by the majority of the courts of this country should not apply here. As was said by the Massachusetts court in Broadway National Bank v. Adams, 133 Mass. 170, 43 Am. Rep. 504:
“We are not able to see that it would violate any principles of sound public policy to permit a testator to give to the object of his bounty such a qualified interest in the income of a trust fund, and thus provide against the improvidence or misfortune of the beneficiary.” (p. 173.)
It accords not only with the weight of authority in this country and with sound reasoning, but also with the general policy which the state has always maintained respecting the rights of creditors and debtors as shown in the liberal provisions of our exemption laws. It deprives the creditor of no security to which he had the right to look, and it recognizes the right which the owner of property has to dispose of it, either by an absolute gift or by a conditional one, and to provide for the object of his bounty, provided he gives the use only without the absolute title.
The first question is perhaps the more difficult one. Does the will properly construed disclose an intention on the part of the testator to secure to his brother the life enjoyment of the income of the trust estate exempt from the creditors of his brother? In Bennett v. Bennett, 66 Ill. App. 28, it was said of a spendthrift trust that the “ ‘provisions against alienation of the trust fund by the voluntary act of the beneficiary, or in invitum by his creditors, are the usual incidents of such trusts.’ ” (p. 37; see, also, 26 A. & E. Encycl. of L. 138.)
There is some conflict in the authorities as to what is essential to the creation of a spendthrift trust. It seems to be clearly established, however, that the intent need not be stated in express terms. (Baker v. Brown, 146 Mass. 369, 15 N. E. 783.) In that case the will gave to the daughters of the testator a devise or legacy on condition that they support their father, and it was held that he had no estate under the will which a creditor could reach.
In Wagner v. Wagner, 244 Ill. 101, 91 N. E. 66, it was held that it is not necessary to the. creation of a spendthrift trust that the cestui que trust shall be denominated as spendthrift, or that the testator shall give his reasons for creating a trust, or that the will shall contain all the restrictions and qualifications incident to such trust, but if it appears from the whole will that the testator intended to create a spendthrift trust, that is sufficient. .
In Roberts v. Stevens, 84 Maine, 325, 24 Atl. 873, the question was whether such a trust was created in favor of the testator’s son. The language of the will did not declare in so many words that the son’s interest in the trust estate should be beyond the reach of his creditors, but it was held that such express words were not essential to the creation of such a trust, and that the intention should be gathered from the whole instrument construed in the light of circumstances, and the intention to create a spendthrift trust was inferred in that case from the nature of the provisions annexed to the gift.
On the other hand, where a will created a trust for the benefit of a testator’s son, directing the trustee to pay over the income at stated intervals to the cestui que trust, or to whomsoever Re in writing might designate, it was held not to create a spendthrift trust, because the cestui que trust had the right of control of the income while in the hands of the trustee. (Decker v. Poor Directors, 120 Pa. St. 272, 13 Atl. 925.)
The trial court admitted in evidence a letter written by the testator to his brother, the defendant, under date of March 6,1911, the material part of which reads as follows:
“You have reached that age when men ought to evade the worry and labor of business, and my thought is that you should pass the remainder of your days in quiet, and far from business cares. I am glad that I am able to assist you in doing so, and I will freely extend such aid as you require to that end, and your requirements will be responded to as you make them known to me.
“I know that you would do the samé for me if conditions were reversed, and so there will be no obligation on your part for whatever you receive from me as long as I live, and provisions have been made in my will, in case you survive me.”
It is the contention of the defendant that the will should be construed in connection with this letter, and that the letter itself is proof of the intention of the testator to provide support and maintenance for him, and that it establishes an intention to create a spendthrift trust. The letter was written three years after the execution of the will. Conceding, for the purposes of the argument, that the letter is admissible to show the circumstances of the testator and his brother, there is no language in either the will or the letter showing that it was the testator’s intention to protect the income from waste or dissipation, or to prevent the legacy from being subject to the payment of the brother’s debts. In order for us to declare this to have been the intention of the testator, we must look beyond the language of both instruments. The case differs in only one respect from the case of Girard Life Insurance and Trust Co. v. Chambers, 46 Pa. St. 485, 86 Am. Dec. 513. There the direction was to pay over the net income “ ‘unto the cestui que trust for his own use and benefit, or to such person as by his order in writing he may authorize to receive the same’” (syl. ¶1), and upon his decease to convey the estate so held as he by his last will shall appoint. The question in that case was whether the income for life was subject to the claims . of creditors. In the opinion it was said:
“In the present case the income for life could have been secured to the son by provisions against alienation and liability for debts, but this has not been done, and we are reluctantly obliged to defeat the intention of the mother to provide a maintenance for her son, by giving the income during the life of the son to the attaching creditor, who can receive from the trustees only what the son would be entitled to.” (p. 492.)
In Underhill on the Law of Wills, it is said:
“The trust provision which is designed to secure the income of a fund against the creditors of the beneficiary, or to prevent him from assigning or pledging it, need not, in this country, be an express direction in terms prohibiting anticipation. The testator is never required to state expressly that income or principal is not to be assignable or transferable, or subject to mortgage or pledge by the legatee; and it would seem from many of the cases that he is not compelled to state that it shall not be liable for the debts of the beneficiary, or that it shall be free from the interference and control of his creditors, in order to create a valid spendthrift trust.” (Yol. 1, § 529.)
In the same section, however, the author says:
“Any expression clearly evincing an intention on the part of the testator to protect the income from waste and dissipation, and to secure its application to the support and maintenance of the beneficiary, is sufficient.”
It was, of course, within the power of the testator, had he seen fit, to provide that the payments to his brother should be exempt from all claims of creditors of the latter, or should be paid into his hands alone, and not upon any order or assignment of his. While the letter may be said to manifest a desire to provide for the support of the brother during the remaining years of his life, it does not manifest an intention that he should not have the full control and ownership of the payments to use as he might see fit. Neither the will nor the letter, nor both taken together, disclose an intention to prohibit Arthur B. Havens from anticipating the income by assignment or transfer to another, and while there are many authorities which hold that no one of these particular things is essential to the creation of a spendthrift trust, such a trust can be created only by the express language of the instrument itself, or by necessary implication from such language. The courts have no power to create such a trust or to make a will for the testator.
In Sears v. Choate, 146 Mass. 395, 15 N. E. 786, 4 Am. St. Rep. 320, it was declared that in order to give such a qualified estate “the language of the founder must be clear and unequivocal to that effect.” The court held that the will in that case did not create such a trust. It differed from the one in the case at bar in only one respect; it contained no limitation over of the estate in any contingency to any other person. In the opinion it was said:
“There is no discretion given to the trustees, and there is no provision that the income or the estate shall not be alienable by the plaintiff or attachable'by his creditors.” (p. 397.)
It is true in the present case there is a gift over of the estate to the daughter of the testator, but the trustees are given no discretion as to the amount they shall pay to the defendant, nor is there any provision that the income of the estate shall not be alienable by the brother, nor any provision that it shall not be liable for his debts. It will be found that in most of the instances where the rule has been declared that the intention to create such a trust need not be stated in express terms, there was language showing an intention that the fund, or the income from it, should be enjoyed for the support and maintenance of the beneficiary during his life or for a period of years. (Wagner v. Wagner, 244 Ill. 101, 91 N. E. 66; Stambaugh’s Estate, 135 Pa. St. 585, 19 Atl. 1058.) The Pennsylvania court held that the intention of the testator to create a spendthrift trust might be ascertained from the will in the light of proof that the cestui que trust became insolvént a few months before the writing of the will, and that this intent should not be set aside because not clearly expressed by the scrivener, at least as between the trustee and the cestui que trust. The rights of creditors of the cestui que trust were not involved.
The case of Pickens v. Dorris, 20 Mo. App. 1, is directly in point. There the court, after approving the rule adopted by the majority of the American courts, as well supported by reason and the weight of authority, held that the testator’s intention to withdraw his gift from the creditors of the devisee will not be presumed from surrounding circumstances of which the creditor has not record notice, where such intention is not expressed in or necessarily implied from the terms of the instrument creating the trust. In the opinion it was said:
“In this case, however, we are asked to go further, and are asked to declare that where the surrounding circumstances of a trust, of which circumstance no record notice is brought home to the creditor, are such as lead to the inference that it was the intention of the devisor to withdraw his gift from the claim of the de-visee’s creditors, we shall give effect to such intention, although not expressed in the instrument itself nor necessarily implied from anything expressed therein. This we must decline to do. The will of George P. Dorris does not expressly exempt the property devised for the benefit of his son, Thomas, from the claims of the latter’s creditors. There is nothing in the will itself which would indicate that the trust thus created was in the nature of a spendthrift trust; and to seek in the surrounding circumstances a reason for declaring it to be such, the authorities do not warrant and a sound policy forbids.” (p. 5.)
In the case at bar it seems certain from the language of the will that the income was and is assignable by the defendant, to whom it was made payable. There is no provision to the contrary, nor words which intimate an intention of the testator that the income should not be assignable. Of course, if it be assignable, it is because it belongs, when due, to the defendant; and if it belongs to him, it is liable for his debts. To construe the will otherwise would compel us to say that in all cases where the income of a fund is given to another for life, it is neither capable of assignment nor liable for the debts of the annuitant. The supreme court of Maryland had under consideration the same question in Baker v. Reiser, 75 Md. 332, 23 Atl. 735. In the opinion the court used this language:
“Without importing words into that will which are not there, and imputing an intention to the testator of which he has given no intimation by any verbal expression, we can not say that the income was not and is not assignable by the life tenant; and if it is, there was error in holding it to be beyond the reach of creditors. Any other construction of this will and ruling in this case would be in effect saying that all life estates of like character, given in trust, are incapable of being alienated. This court went as far as they could in the Towers’ Case, 69 Md. 77, 14 Atl. 497, to effect the intention of the testator which was so expressly declared ; but proper adherence to the policy of the law in the state will not allow the extension of the doctrine of the Towers’ Case beyond the limitations of that decision, nor to a case not falling clearly within its reasons and reasoning; and this case does not.” (p. 389.)
The action here was brought under section 228 of the code, which provides:
“Any creditor shall be entitled to proceed by garnishment in the district .court of the proper county against any person, excepting a municipal corporation, who shall be indebted to or have any property, real or personal, in his possession or under his control belonging to such creditor’s debtor, in the cases, upon the conditions, and in the manner hereinafter described.”
In Nelson v. Stull, 65 Kan. 585, 68 Pac. 617, 70 Pac. 590, it was held that an executor is not subject to gar-, nishment under this section of the code before a final order of distribution. The court declined at that time to decide whether he would be subject to garnishment after such final order. The defendant makes the broad contention that an executor or administrator can not be subject to garnishment in the absence of a special statute; and further, that under the decision just cited the executors are not liable to garnishment, because no order of distribution has been made. The code provision, supra, is broad enough in its terms to include executors and administrators after an order of distribution has been made. (Hardesty v. Campbell, Adm’r and Garn., 29 Md. 533; Baker v. Keiser, supra; Arbaugh v. Myers, 8 Ohio Dec. Repr. 617; 20 Cyc. 1028.)
The will expressly directs the executor-trustees to make the quarterly payments to Arthur B. Havens in advance; and it is conceded that they have recognized this provision and have made the payments accordingly. N'o order of distribution was necessary in order to authorize the executors to .make the payments. The rule exempting executors and administrators from garnishment process before the final order of distribution rests upon . the assumption that it can not be known until the estate is settled and the order made •whether there will be any assets sufficient to pay debts and expenses of administration. The reason for the rule in the Stull case, sufra, being absent, the rule fails. It is one of the agreed facts in the present case that the estate of Paul E. Havens is solvent and able to respond to these quarterly payments due to Arthur B. Havens, without jeopardizing the rights of any creditor of the testator. In Lorenz’s Administrator v. King, 38 Pa. St. 93, it was held that a legacy or distributive share is subject to attachment before final settlement where assets are admitted by the representative, and where there are ample funds in his hands to pay a legacy after the discharge of all debts against the estate. An income for life from a trust estate is the absolute property of the beneficiary, and is therefore subject to garnishment by his creditors. (Girard. Life Insurance and Trust Co. v. Chambers, 46 Pa. St. 485, 86 Am. Dec. 513; J. Knefler v. C. V. Shreve, 78 Ky. 297; Pickens v. Dorris, 20 Mo. App. 1; Baker v. Keiser, 75 Md. 332, 23 Atl. 735; 20 Cyc. 993, Note; 14 A. &. E. Encycl. of L. 763, Note.)
Section 247 of the code provides for the allowance of an attorney’s fee to the extent of $25 as costs of the plaintiff in garnishment proceedings, and the court properly allowed that sum as fees in the present case.
It follows that the judgment will be affirmed.
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The opinion of the court was delivered by
Dawson, J.:
F. L. Kirby shipped a carload of emigrant goods and live stock from Crescent, Okla., to Buffalo Park, Kan., over the Santa Fe and Union Pacific railroads. The original destination was Hill City, Kan., but at Salina, Kan., where the Union Pacific received the car from the Santa Fe, Kirby ordered the destination altered to Buffalo Park. At Salina a new shipper’s contract was signed by Kirby and the Union Pacific, and a new way bill was made out to cover the balance of the journey. One of the live stock was a mare worth $200, but listed in the contract of shipment at the value of $100. By the terms of his contract, Kirby was permitted to travel, without extra charge, in the trains of the carriers transporting the car, and cared for his stock personally en route. Between sundown and dark on October 30, 1912, Kirby fed and watered the mare in question while the car was in the switch-yards of the Union Pacific in Salina, and the animal was apparently all right and ate and drank at that time. Next morning when Kirby entered the car at Ellis on the way to Buffalo Park the mare was dead.
Kirby sued the company, charging negligence, and recovered the value of the mare, fixed by the jury at $200. The company appealed, and here contends:
“I. The evidence not only fails to establish any negligence on the part of the appellant, but shows positively that the shipment was handled with due and proper care, and that the loss of appellee’s mare was not caused by any negligence on the part of appellant.
“II. The shipment was made finder a limited liability contract, and if appellee is entitled to recover any amount in this action his recovery must be limited to $100.00, the value of the mare as fixed in the contract.”
No appearance is made in this court by appellee.
There is not much evidence to support the allegation of negligence, and yet we think it was sufficient to per mit its submission to a jury. The appellee testified that the mare was all right at nightfall in Salina; that the railway company used his car with a switch engine in making up the train, “putting it up against others and jamming it around”; and that he protested to the yardmaster.
“Q. What did you tell him? A. I told him they were using my car too rough, I had stock in there, they were using it too rough, they were liable to injure it, and he said to tend to my business, he was tending to his, and to go and get in the caboose.”
At Ellis the next morning when Kirby entered the car he found the mare dead, and a partition between the live stock and the other goods was torn down and some colts tied to the partition had it under their feet; that the colts had “got over among the chickens and killed part of them”; that “part of the chickens had got out and others were loose in the car.” These circumstances were some evidence of want of due care in handling appellee’s car. Kirby testified:
“I went over to that side of the car and found my mare was dead. . . . There was about a half-gallon clot of blood by her nose.”
A post-mortem examination disclosed no bruises or other internal injuries; there was some discoloration which might have been caused by a disease; and there is some reference in the testimony of the station agent at Ellis, who'was present at the post-mortem, of “a puncture in the bov/els large enough to put your thumb in”; but whether that was discovered by the examination or made by the veterinarian is not clear. The evidence for the defense controverted the appellee’s tes- ' timony, and avowed due care throughout the journey from Salina to Ellis, and squarely denied that Kirby’s car had been negligently used in switching in the Sa-lina yards; appellant denied that Kirby had spoken to the yardmaster or. any of the employees who were present in the yards while the train was being made up, and denied the colloquy with Kirby. In view of this, it seems that the court was justified in submitting these disputed matters of fact to the jury under proper instructions. Appellant does not complain of the instructions, and on this point they seem entirely fair to the appellant. In part they read:
“It was the duty of the company in this case to exercise all reasonable care in transporting this animal and in handling its train in such transportation. It did not insure the plaintiff against loss by injury to the animal in handling its train so long as it handled it with such carefulness as any other like company would have handled it while in the exercise of reasonable carefulness. It could not relieve itself from the results of negligence, and it did not seek to do so in the contract of shipment received in evidence. There must be some bumping of cars in the handling of freight in transportation, and this is likely to cause animals to slip or even fall at times unless so closely packed together as to cause each to hold the other up. So it is that the law requires that the company shall avoid this if it can be done in the exercise of reasonable diligence and carefulness in handling its train.”
We are not disposed to disturb a finding of negligence based on the evidence when safeguarded by such an instruction.
A more serious question arises under appellant’s second assignment of error. Was the transportation of Kirby’s car and contents from Salina to Buffalo Park an independent shipment originating and ending in Kansas and governed by local law, or was it a part of the service of interstate carriage from Oklahoma and governed by the laws and rules pertaining to interstate commerce?
As long ago as the case of The Daniel Ball, 77 U. S. 557, (1870), the supreme court of the United States held that a vessel operating wholly between points in Michigan was amenable to the regulations of interstate commerce when she was used as an instrumentality of that commerce. Mr. Justice Field said:
“So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State, and some acting through two or more States, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulations of Congress. . . . And we answer further, that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the States, when that agency extends through two or more States, and when it is confined in its action entirely within the limits of a single State. If its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a State, its entire authority over, interstate commerce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a State, and leaving it at the boundary line at the other end, the Federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter.” (pp. 565, 566.)
It is true in that case that the court disavowed any purpose to prescribe a rule relating to carriers on land; but that decision foreshadowed the later development of the law, both by judicial interpretation and federal legislation.
Indeed, so rapidly has the law relating to interstate commerce expanded in recent years that a new branch of the lawyer’s profession has arisen to deal with it, and the bibliography of the law of interstate commerce is growing rapidly by textbooks and judicial decisions.
As indicative of the development of the law on this general subject it may be noted that in 1892 the su preme court of the United States held that where goods are shipped from one point to another within the state of Pennsylvania, but en route were carried across part of the state of New Jersey, such carriage was not interstate commerce. (Lehigh Valley Railroad v. Pennsylvania, 145 U. S. 192.) Ten years later the case of Hanley v. Kansas City Southern R. Co., 187 U. S. 617, decided that the transportation of goods from Fort Smith, Ark., to Grannis, Ark., by way of the Indian Territory, on a through bill of lading, was interstate commerce, and the attempt to apply the state rates of Arkansas to that transportation was properly enjoined.
With the still greater expansion of the law. since 1902, there can be no doubt that the shipment of a car of emigrant goods from Crescent, Okla., to Hill City, Kan., although final destination was altered, en route, to Buffalo Park, Kan., was a shipment by interstate carriage; nor did the making of a new contract-of shipment and a new way bill at Salina change the interstate character of the shipment.
This case is not like that of Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U. S. 403, where two cars of grain were shipped from South Dakota to Texarkana, Tex., and, after arriving at destination, were again billed and shipped from Texarkana, Tex., to Gold-thwaite, Tex. There the railway company exacted a rate in excess of the local Texas rate on the theory that the cars were still moving on an uncompleted interstate journey. The railway company was prosecuted and convicted under Texas law for exacting the higher rate and the supreme court of the United States let the judgment stand. That decision was placed upon the ground that the original interstate transportation was completed at Texarkana. (Leisy v. Hardin, 135 U. S. 100; Oregon R. & Navigation Co. v. Campbell, 180 Fed. 253.) In the case at bar the interstate carriage was not completed; merely the final destination of that interstate shipment was changed. Can it be said that when goods are moving in interstate carriage, an alteration in transit of the final destination will change the interstate character of the shipment? If the railway company had granted a reduced, secret or preferential rate for the remainder of the interstate carriage to the altered destination, would it have been free from federal prosecution? On the other hand, would the company be liable under Kansas law for the exaction of a rate different from the Kansas rate from Salina to Buffalo Park? Both questions must be answered in the negative. (Southern Ry. Co. v. Reid, 222 U. S. 424; Adams Express Co. v. Croninger, 226 U. S. 491; C. B. & Q. Ry. v. Miller, 226 U. S. 513.)
This case is in line with a long series of supreme court decisions like Ohio R. R. Comm. v. Worthington, 225 U. S. 101, 56 L. Ed. 1004, where shipments of coal originating in Ohio coal fields to Cleveland, Ohio, intended for but not billed to points without that .state, and no final destination fixed, were held to be interstate commerce.
One of the latest of such cases is Baer Bros. v. Denver & R. G. R. R., 233 U. S. 479, 58 L. Ed. 1055. Beer was shipped from St. Louis to Pueblo, Colo., over the Missouri Pacific Railway for final destination at Leadville, Colo. At Pueblo the Denver & Rió Grande ra'lway received the shipments from the Missouri Pacific on new way bills charging local rates from Pueblo to Leadville. This particular traffic continued for some years, and the two railroads had no arrangements for through billing. The supreme court held that the traffic was essentially interstate commerce notwithstanding the independent contracts of shipment from Pueblo to Leadville on local way bills, and that reparation for excessive rates was proper under the order of the Interstate Commerce Commission.
When this case was before the interstate commerce commission (Baer Bros. Mercantile Co. v. Mo. Pac. Ry. Co. et al., 13 I. C. C. Rep. 329), it was said:
“A railroad company whose road lies entirely within the limits óf a single state becomes subject to the act to regulate commerce by participating in a through movement of traffic from a point in-another state to a point in the state within which it is located, although its own service is performed entirely within the latter state.” (Syl. ¶ 1.)
In the opinion Commissioner Prouty said:
“The first section of the act to regulate commerce gives this Commission jurisdiction of any ‘common carrier or carriers engaged in the transportation of passengers or property wholly by railroad (or partly by railroad and partly by water where both are used under a common control, management, or arrangement for a continuous carriage or shipment), from one state or territory of the United States or the District of Columbia to any other state or territory,’ etc. Since the transportation in question was entirely by railroads the words above inclosed in parentheses may be disregarded. So reading the first section the defendants would be subject to our jurisdiction provided this transportation was from one state or territory to another state or territory.
“This beer was carried from St. Louis, in the state of Missouri, to Leadville, in the state of Colorado. Every party to the transaction so understood it. It was delivered to the Missouri Pacific for the purpose of being transported to Leadville. It was received and carried by the Denver & Rio Grande with full knowledge of the fact that that company was participating in a transportation from St. Louis to Leadville. If this was not a transportation of property wholly by railroad from a point in one state to a point in another state, it would be difficult to state a case of such transportation. If it be the kind of transportation defined by the first section, then both the Missouri Pacific and the Denver & Rio Grande by participating in that movement become subject to the act with respect to the transportation itself. . . . The transportation in question, as we have already seen, was from the state of Missouri to the state of Colorado, and this was so understood and intended by the Denver & Rio Grande when it participated in the movement. This being so, it is entirely immaterial that the part of the movement performed by the Denver & Rio Grande is entirely within the' state of Colorado. The Daniel Ball, 10 Wall. [77 U. S.], 577.” (pp. 332, 333.)
See, also, subsequent proceedings in same case in Baer Brothers Mercantile Co. v. M. P. Ry. Co., 17 I. C. C. Rep. 225.
Coming now to the limitation of the carrier’s liability: The amendment of 1906 to the interstate commerce act (34 U. S. Stat. at Large, ch. 3591, p. 584) gave positive sanction to such limitation; and since we have seen that the appellee’s shipment was one of interstate carriage, the value of his mare, fixed by his own contract at $100, is all that he can recover. This is established by federal decisions, which are bound to control us on all questions of federal law. (Nursery Co. v. Nursery Co., 89 Kan. 522, 132 Pac. 149; Metz v. Railway Co., 90 Kan. 460, 135 Pac. 667; Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600; Adams Express Co. v. Croninger, 226 U. S. 491, 57 L. Ed. 314; Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657; Great Northern Ry. v. O’Connor, 232 U. S. 508, 58 L. Ed. 703; Boston & Maine Rd. v. Hooker, 233 U. S. 97, 58 L. Ed. 868; Atchison &c. Ry. Co. v. Robinson, 233 U. S. 173, 58 L. Ed. 901.)
In view of the foregoing it Is needless to determine whether, under the circumstances, a verdict for the value of the mare as found by the jury could be permitted to stand if the question was one of local law; nor is it necessary to inquire if carload rates for emigrant movables are prescribed by the Kansas maximum rate law. (Laws 1909, ch. 193, Gen. Stat. 1909, §§ 7153-7155.)
This cause is remanded with instructions to the trial court to reduce the judgment in favor of appellee from $200 to $100, and wrhen so modified it will be affirmed.
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The opinion of the court was delivered by
West, J.:
The defendant was charged in one count with having on the-day of October, 1913, unlawfully and feloniously sold one-half pint of whisky in violation of law, and with having on the 3d day of the previous June voluntarily pleaded guilty to keeping and maintaining a- common nuisance in violation of the prohibitory law, thereby becoming a persistent violator thereof. In the second count he was charged with having unlawfully and feloniously maintained a nuisance in violation of the prohibitory liquor law. A motion to quash the information was overruled. The jury were instructed that if they believed- beyond a reasonable doubt that the defendant was on June 3, 1913, duly convicted upon his voluntary plea of guilty of maintaining a nuisance and was guilty of making the alleged sale as charged in the information it would be their duty to return a verdict of guilty. That under the second count if they believed beyond a reasonable doubt that the defendant had maintained a nuisance as therein charged and had on the third day of June, 1913, been convicted upon his plea of guilty of keeping and maintaining a common nuisance he would be guilty of a felony under the second count and their verdict should be accordingly. The defendant was sentenced to the penitentiary for one year on each count in the information. Complaint is made that the former con viction was not pleaded in the second count, and that even if it had been so pleaded it would not have charged any additional offense for which sentence could be pronounced.
The statute in question provides that any one “having once been duly convicted of the violations of the prohibitory liquor law and who shall thereafter directly or indirectly violate the provisions of the prohibitory liquor law shall be considered a persistent violator of the prohibitory liquor law and shall be deemed guilty of a felony” (Laws 1911, ch. 165, § 1), and upon conviction shall be imprisoned in the penitentiary at hard labor for not more than one year. As quite plainly indicated by the language of this section, when one is found guilty of a violation of the prohibitory law and at the same time is found to have been previously convicted of a violation thereof the effect is to place the defendant in the status of a persistent violator, or in other words to classify him as one who has been judicially determined to possess a disposition to violate the prohibitory law persistently, for which persistent violation he is to be punished. The legislators evidently intended to make good the saying that “The law is a terror to evildoers.” The principle under consideration was decided in The State v. Shiffler, 93 Kan. 618, 144 Pac. 845. It follows, therefore, that repeated violations shown by the evidence, under one or many counts, when added to the previous conviction, do not constitute separate felonies, but one; and hence, if the penalty imposed under the second count was additional to that imposed under the first count such penalty would be erroneous. If, however, it simply runs concurrently with the other the punishment provided by statute would not thereby be exceeded. (In re Weisman, 93 Kan. 161, 143 Pac. 487.) The transcript discloses that the penalties imposed were cumulative and not concurrent, and hence the one based upon the second count is void.
While it is often sufficient to charge an offense in the words of the statute, still such words must be descriptive of such offense, and it is always the rule that the facts constituting the offense must be pleaded. (The State v. Foster, 30 Kan. 365, 2 Pac. 628; The State v. Bellamy, 63 Kan. 144, 65 Pac. 274; The State v. Seely, 65 Kan. 185, 69 Pac. 163; The State v. Buis, 83 Kan. 273, 111 Pac. 189.) Except for the use of the word “feloniously” in the second count, no fact is stated indicating persistency, and hence not even the language of the statute, nor that portion thereof that one doing certain things shall be considered a persistent violator, was followed. • Each count of an information requires the same completeness as an information containing but one count (The State v. Fields, 70 Kan. 391, 78 Pac. 833), and in this class of cases should set forth the facts of the prior conviction and the subsequent violation in such manner as to show that the defendant, if the charge be true, has become a persistent violator.
Earnest complaint is made of certain language used by the county attorney in addressing the jury, and it is argued that prejudice resulted therefrom to the defendant. We have carefully examined the statements indulged in, and while some of them would have been better left unuttered, we find nothing which would fairly lead to the conclusion that the jury were by reason of such statements swerved from the performance of their duty. The ingenuity of counsel has sug-. gested divers objections to various rulings upon the trial, but no prejudicial error appearing therefrom they need not be discussed. The validity of the statute is also assailed, but prior decisions set that matter at rest. (The State v. Adams, 89 Kan. 674, 132 Pac. 171; The State v. Schmidt, 92 Kan. 457, 140 Pac. 834; The State v. King, 92 Kan. 669, 141 Pac. 247; The State v. Watson, 92 Kan. 983, 142 Pac. 956.)
The judgment is affirmed except as to the second count, and the cause is remanded with directions to set aside the sentence thereunder.
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Opinion by
SimpsoN, C.:
Service sued the plaintiffs in error on the following contract in writing, to wit:
“State oe KANSAS, CouNty oe Scott, ss. : This contract witnesseth, that whereas, John C. Service, of said-county and state, has made a homestead entry upon the following tract on land lying in Wichita county, Kansas, to wit: The south half of the northwest quarter and the northwest quarter of the northwest quarter of section 24, and the southwest quarter of the southwest quarter of section 13, west of the 6th P. M., and has a protest against the final proof of William H. Montgomery on and to said land, under which a hearing is set for August 25, 1887, at the Wakeeney land office, Wakeeney, Kansas, to settle a question of conflict of right to same; it is agreed, to and in consideration of the said Service furnishing G. C. Hardesty, or delivering at Wichita County Bank, of Leoti, on or before August 25, 1887, a relinquishment of his homestead entry, and a written withdrawal and dismissal of said protest and hearing, then the subscribers hereto, as principal and security, agree to pay said' Service the sum of $5,000 on or before September 15, 1887.
“Dated this 4th day of August, 1887.
Gue C. Hardesty.
MiltoN BrowN.
D. F. Hall.
T. W. Pelham.
Kate Pelham.”
Service alleged performance on his part, and demanded judgment. The plaintiffs in error demurred to the petition for the reason that it did not constitute a cause of action, the pith of the demurrer being that there was no consideration for the agreement, the contract itself and the petition on its face showing the fact that Service had no possessory right in the land, had nothing to sell, and could transfer nothing to the plaintiffs in error. This demurrer was overruled, and this is the first error assigned. The plaintiffs in error then filed an answer, setting up as an affirmative defense that Service confederated with one Johnson and McConville to secure the contract, by falsely inaugurating a contest on the homestead entry of W. H. Montgomery to the land described in the entry, when they had no legal right to make such a contest ; that Service never had any valuable interest in the land; that at the time the contract was entered into the title to the land was in the United States, and that the contract was void for that reason. Service filed a reply, and the case went to trial to the court. The plaintiffs in error demurred to the evidence of Service, but the demurrer was overruled, and this is the second assignment of error. This raises the same ques tion as the demurrer to the petition. Before the trial, Mrs. McConville, to whom Service had assigned a one-half interest, less $500, in the contract, and who was joined as plaintiff, dismissed the action so far as her interest was involved, she having received payment or satisfaction of her claim. The plaintiffs in error produced their evidence, and a demurrer by Service was sustained to their evidence. This constitutes the third assignment of error.
During the trial the plaintiffs in error tried to prove that Service was never in the actual possession of the land, had never made or caused to be made any improvements on said land; this was overruled, and objected to. Witnesses on the stand were asked to state what settlement Service had made, if any. These questions were objected to and sustained. A witness was asked what Service had ever done on said land, or any part thereof, and the objection to the question was sustained. The plaintiffs in error stated that they expected to prove by witnesses on the stand that Service never made any settlement on said land, never improved the same, and never had any interest in the same, but the trial court would not permit them to examine the witnesses as to these facts. All these rulings are assigned as errors.
, The trial court found for the plaintiff below, and rendered a judgment in his favor for $2,750 and costs. The case is here for review.
All these rulings recited go to the same subject or general objection. The demurrer to the petition, the demurrer to the evidence, and their various offers to prove that Service was never in the actual possession of the land, had never made or caused to be made any improvement thereon, etc., all raise but one question, and that is the illegality of the contract. We think that the case of McCabe v. Caner, 68 Mich. 182, is on all fours with the case at bar, and is decisive of this question, and fully establishes that the relinquishment and withdrawal of the protest was and is a good consideration for the contract sued on. That case cites as supporting it, Olson v. Orton, (Minn.) 8 N. W. Rep. 878; Thompson v. Hanson, (Minn.) 11 id. 86; Lamb v. Davenport, 18 Wall. 307; Myers v. Croft, 13 id. 291; Kennedy v. Shaw, 43 Mich. 359, and other Michigan cases.
The case finds strong support in our own reports. The cases of Lapham v. Head, 21 Kas. 332; Moore v. McIntosh, 6 id. 39; Bell v. Parks, 18 id. 152; Fessler v. Haas, 19 id. 216, all affirm that contracts about the possession, improvements and relinquishment of rights of public land, when free from fraud, can be enforced, and constitute a good consideration. This disposes of the main question in the case, and the nature of the other questions urged by the plaintiffs in error makes a prolonged discussion unnecessary. A continuance rests largely in the discretion- of the trial court, and we think proper diligence was not shown. There was not sufficient proof of a conspiracy to defraud. Besides, plaintiffs in error received exactly what they contracted for, they having made the contract with open eyes, and with every opportunity to know the facts. So far as the record shows, we think substantial justice has been done.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action begun in the district court of Greenwood county, by Cowles & Eldridge against E. O. Walton, to foreclose a mortgage. The coupon notes and mortgage were executed on the 1st day of January, 1880, and matured in three years. This action was commenced on the 14th day of October, 1887; service was made upon Walton by publication; on the 5th day of January, 1888, George Ordway, the plaintiff in error, asked to be made a party to the suit, and leave was granted, and, on the 27th of the same month he filed his answer, setting forth — first, a general denial; second, his ownership and possession of the land described in the mortgage, and that such ownership was by virtue of tax deeds duly executed; and third, the statute of limitations; that more than five years had elapsed from the time the notes and mortgage became due to the beginning of the action, and asked that his title be quieted against the mortgage in suit. To this answer the plaintiffs below replied by a general denial, and' that the tax deeds were void, and asked to have title quieted against them. To this reply Ordway demurred; his demurrer was overruled. When the cause came on for trial the court held that the burden of proof was upon Ordway, to which he excepted. Upon the issues joined, a trial was had, and on May 31, 1888, a judgment and decree of foreclosure rendered in favor of Cowles & Eld ridge. The court found that the tax deeds of Ordway were invalid, and gave judgment for the amount of his taxes and costs, and that the same should be first paid out of the proceeds of the sale of the mortgaged premises, and, upon the payment of such sums, the title was to be quieted. To this judgment and decree Ordway excepted and brings the case here, assigning error.
I. The first claim made is, that the court committed error in overruling his demurrer to the reply of the plaintiffs below. This was not error. The reply contained a general denial, and alleged that the tax deeds were void, because no notice of the tax sale of 1881 was published by the county treasurer, as required by law. These allegations constituted proper defenses and the demurrer was properly overruled. (Flint v. Dulany, 37 Kas. 332.)
II. It is next claimed that the court erred in holding that the burden was upon plaintiff in error. A reference to the answer will show that he alleged that he was the legal and equitable owner of the land, and also in possession thereof) and that his ownership was by virtue of certain tax deeds duly executed by the county' clerk of Greenwood county. The deeds were not set out in full, or made a part of the answer. Under the state of the pleadings, there was no substantial error in the ruling of the trial court which cast the burden upon the plaintiff in error.
III. The plaintiff in error insists that the note and mortgage of the plaintiffs below were barred by the statute; that the notes became due January 1,1883, and'that the five years had completely run before he filed his answer. The suit was commenced on the 14th day of October, 1887, and the five years had not elapsed; besides, we do not think that Ordway can avail himself of the statute of limitations. He claims under a distinct and independent title, in no way derived from the mortgagor. Generally, the plea of the statute of limitations is a personal privilege, and a third party cannot interpose the defense. (Baldwin v. Boyd, 18 Neb. 444; Wood, Lim., 1st ed., § 41; 10 Am. & Eng. Encyc. of Law, p. 710; 7 Wait, Act. & Def., p. 236; Watson v. Kirkwood, 17 Kas. 9.)
Walton, the maker of the notes and mortgage, could not successfully plead the statute of limitations, and we do not see by what process of reasoning we could reach the conclusion that Ordway could, even if he had succeeded to the right to the land in question through Walton, which he did not; he certainly could obtain no greater right than Walton had. We think the statute can only be set up by Walton, or some one holding under him, and when it is not available for Walton, no other person can take advantage of it. It necessarily follows that because Walton never had the right, no other person could avail himself of such right.
IV. The final error assigned is, that no decree of foreclosure should have been entered until the plaintiffs below showed title in the mortgagor. It seems evidence was offered in regard to the title to the mortgaged premises, but did nbt extend beyond the title from the government to the patentees; no conveyances were admitted in evidence to prove title in Walton, the mortgagor. An examination of the record discloses the fact that the record of certain deeds was offered, but not admitted, for the reason that the proper foundation bad not been laid. The interplea of Ordway raised the question of title to the land described in the mortgage. The tax deeds of Ordway were attacked by the plaintiffs below, and they asked to have the title to the mortgaged premises quieted in them against Ordway; and we think from the nature of the issues made by the pleadings, that the plaintiffs below should have shown title in the mortgagor, before they were entitled to a decree. It is fundamental that a person attacking a tax deed must show some title to the land in question. (Picquet v. City of Augusta, 64 Ga. 254: 2 Desty, Tax. 904.)
Again, the title to the mortgaged premises being in controversy, and the plaintiffs asking that the cloud of the tax title might be removed, they should recover on the strength of their own title; and, under the circumstances of this case, we think the chain should have been complete in the mortgagor. A person should have a reasonably clear title, to maintain an action to have a cloud upon his title removed. He must proceed upon the strength of his own title, and not the weakness of his adversary. The real question is, who has the paramount right to the property. (Simpson v. Boring, 16 Kas. 248; Lawrence v. Zimpleman, 37 Ark. 643; Hurley v. Street, 29 Iowa, 429; Stephenson v. Wilson, 50 Wis. 95.)
For the failure of the plaintiffs below to show title in the mortgagor, we recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GreeN, C.:
The Arkansas Valley Agricultural Society was incorporated on the 5th day of June, 1880, with a capital stock of $5,000, divided into one thousand shares of $5 each, and had its place of business at Wichita, in Sedgwick county. The corporation had for its object the encouragement and advancement of agriculture and horticulture, and the mechanic arts. The full amount of the stock was not subscribed, and no notice was ever given of the opening of books to receive subscriptions, as required by §16 of the act concerning private corporations. It seems that up to March 19, 1887, five hundred and ninety shares of the stock of this society had actually been issued, and on and after that date the remaining four hundred and ten shares were issued by the authority of a majority of the directors, to the directors and officers of the association, without the knowledge or consent of the balance of the stockholders.
It is claimed that at the time of the issuance of the last stock, all the property of the corporation had been sold, which had consisted of thirty-six acres of land on the west side of Wichita, and known as the “Fair Grounds,” and the proceeds were then in the hands of the directois and officers of this association; that the shares were worth, about this time, including the entire issue of stock, $55 per share, and not including the four hundred and ten shares, about $93 a share; that the directors and officers knew, at the time they took and paid for said stock at the par value of $5 per share, the exact value of the stock of the society and the property it then held; that after all the shares had been issued, a dividend was declared on the one thousand shares of $25 per share; and that the total assets of the corporation were about $56,-900.
On the 26th day of April, 1887, the defendant in error, one of the stockholders of the society, commenced this action in the district court of Sedgwick county to enjoin the directors and officers from paying any dividend or dividends on the stock claimed to have been fraudulently issued, and that the same might be canceled, and for further equitable relief in the premises. Upon the filing of his petition, a temporary injunction was allowed, which was made perpetual upon a final hearing, by the court below. The plaintiffs in error bring this case here, and claim that the taking of the stock in a corporation stands upon a different footing than ordinary contracts of corporations, in prosecuting the business enterprises for which they are organized ; that any person has a right to subscribe for stock in any corporation, so long as there are shares to be taken; that the corporation has no power to prescribe the character or qualification of its stockholders; that the policy of the law, as declared by the express terms of the statute, is to make corporations open to all persons alike to become members and stockholders; that the only favor given by the law is the advantage resulting from diligence, the idea being the first to come is first to be served — that is, the first man who subscribes may subscribe for all he wants, and the last man to subscribe may subscribe for all he can get.
This rule, as applied to the directors or officers of a corporation, cannot be upheld. The principle of public policy forbids transactions of this kind. It appears from the evidence that the property owned by this corporation had been sold, and the proceeds sold held by its officers. The assets at the time of the sale belonged to the then stockholders, and the directors and officers had no right to subscribe for the remaining stock at par, and enrich themselves to the detriment and loss of the other shareholders. The directors cannot lawfully benefit or favor any particular shareholder or class of shareholders. Every authority possessed by them is a power and discretion in the directors, who are trustees for the benefit of all the shareholders alike, which is to be exercised for the benefit of all of them. (1 Waterman, Corp., p. 620; Harris v. N. D. Rld. Co., 20 Beav. 384.)
The effort on the part of the directors and officers of a society to obtain the unsubscribed stock at par, when they knew that each share of the stock already issued was worth eighteen times its face value, was clearly a fraud upon the rights of the other stockholders, and a flagrant violation of their duties as directors and officers of such association. The officers and directors of a corporation are trustees of the stockholders, and in securing to themselves an advantage not common to all the stockholders, they commit a plain breach of duty. (Koehler v. Iron Co., 67 U. S. 715; Shorb v. Beaudry, 56 Cal. 446; 1 Morawetz, Private Corp., § 518.) The law does not permit directors to manage'the affairs of a corporation for their personal and private advantage, and this rule, we think, applies to the disposition of unsubscribed stock, as well as to other contracts. The character and relation of directors and officers of a corporation require of them the highest and most scrupulous good faith, in their transactions for the corporation and the stockholders. (Hale v. Bridge Co., 8 Kas. 446, and authorities there cited; Ryan v. L. A. & N. W. Rly. Co., 21 id. 365; Hentig v. Sweet, 33 id. 244.)
The judgment of the court below should be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
This was an action brought by Voorhis, Miller & Rupel against G. J. Michaelis on a promissory note for $456, not due. An order of attachment was granted and issued by the probate judge of the county where the action was commenced, and thereon the property of G. J. Michaelis was taken possession of by the officer. A motion to dissolve the attachment was made by Michaelis. The testimony was partly oral and partly by affidavits — mostly oral. The motion to dissolve was sustained and the case dismissed. The plaintiffs excepted and bring the case here.
The evidence is conflicting, and against the finding of the district court. We do not think the evidence of such a character as to authorize us to interfere. An insolvent debtor, as long as he retains possession of his property, may appropriate it to the payment of debts, and may prefer creditors. (Dodd v. Hills, 21 Kas. 707; Randall v. Shaw, 28 id. 419; Bailey v. Mfg. Co., 32 id. 73.) A voluntary conveyance made to defraud creditors is void only as to prior and existing creditors, and to those designed to be defrauded by the conveyance.” (Sheppard v. Thomas, 24 Kas. 780.) As the order of attachment was set aside for the reason that the grounds therefor were not true, the action was properly dismissed. (Pierce v. Myers, 28 Kas. 364.)
The order and judgment of the district court will be affirmed.
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action by the Tripp & Moore Boot and Shoe Company against Joseph Martin upon an account for boots and shoes, amounting to $791.47 and interest. The answer of the defendant set up: First, a general denial; second, payment; third, payment by E. M. Sharp, deceased; fourth, a counterclaim for $400. A jury was waived, and trial had before the court, on October 20, 1887. A general finding was made for the defendant, and judgment rendered in his favor for costs. The plaintiff excepted, and brings the case here.
A preliminary question is presented upon the record. On the 26th of November, 1887, the motion for a new trial was overruled, and the plaintiff was given sixty days to make a case for this court. The defendant was given, twenty days thereafter to suggest amendments, and the case was ordered to be settled upon five days’ notice. The sixty days would have expired January 26, 1888. On the 21st of January, 1888, the plaintiff was given until the 10th of February, 1888, to make and serve its case. This was done on the 1st day of February, 1888. The attorney for the defendant ac cepted service of the case, expressly stating, however, “No, waiver.” The case was settled and signed on the 15th day of February, 1888. Under the order of the 26th of November, 1887, the defendant had twenty days after the service of the case on the 1st day of February, 1888, in which to suggest amendments. The case-made was signed and settled before that time had expired. Within the decisions of M. K. & T. Rly. Co. v. City of Fort Scott, 15 Kas. 435; Weeks v. Medler, 18 id. 425, and M. K. & T. Rly. Co. v. Roach, 18 id. 592, it is doubtful whether the case-made can be considered.
“It nowhere appears that the judge considered any amendments, or that any were suggested, or that counsel had none to suggest, or that they had waived in any manner their right to suggest them.” (Railway v. Roach, 18 Kas. 592.)
Even if we consider the case in this court upon its merits, we cannot reverse the judgment rendered. Where there is a general finding and judgment of the court, the judgment must stand if there is evidence to support it. (Major v. Major, 2 Kas. 337; Ulrich v. Ulrich, 8 id. 402; Railway Co. v. Kunkel, 17 id. 145; Bentley v. Brown, 37 id. 14; Peacock v. Boyle, 41 id. 492.)
It appears from the evidence presented in the trial court, that the Tripp & Moore Boot and Shoe Company sold boots and shoes at Kansas City, Mo., through one E. M. Sharp, who acted as its agent from the summer of 1884 and until his death, in 1885. The defendant testified that he bought the boots and shoes the 1st day of April, 1885, of E. M. Sharp, and denied that he ever received any bill or statement of the boots and shoes from the plaintiff until more than a year after he had bought and paid for them. He also testified, among other things, as follows:
“Q,. Did you know one E. M. Sharp during his life-time? A. Yes.
“ Q,. Where was he doing business ? A. In Kansas City, Mo., and in this city.
“Q,. What was his business? A. He was in the boot and shoe business, as commission broker-; an agent in various ways, handling boots and shoes.
“Q. Have you examined this statement here [handing witness paper] of the plaintiff in this case, and marked ‘ Exhibit A/ and dated October 1,1885? A. Yes, sir.
“Q,. Sfate to the court whether or not you ever purchased that bill of goods from the plaintiff in this case, the Tripp & Moore Boot and Shoe Company. A. I did not.
“ Q,. State whether or not at any time you received from the plaintiff in this action any statement of any kind for any bill of goods — that one or any other. A. I never did.
“Q. When was the first time that you had any knowledge that they made any claim against you; what time of year was it? A. I can’t give the exact date; it was in the fore part of the summer or spring of this year, 1887.
“Q,. Where have you been living during the time since April, 1885? A. In this consolidated city.
“Q. And in Armourdale? A. Yes, sir.
“Q,. State whether or not you ever purchased any goods directly or indirectly from the plaintiff in this case. A. I never did.
“Q,. You spoke a minute ago about Mr. Sharp doing a commission business over in Kansas City, Missouri, there; what do you know about it? A. Well, I was employed by him, and was in his room and business during the time — most of the time.
“ Q,. What sort of business did he carry on; tell the court what he did in regard to buying and selling — that is what I want to get at without leading you? A. Well, his plan, as near as I can state to the court, was to buy goods wherever he could find anything that he thought was a bargain, take the agency or buy the goods outright and sell on order the same as any other commission man — the wholesale boot and shoe houses.
“Q. He had a store in Kansas City? A. Yes, sir.
“Q. State how the goods were received there when he bought them in the east from parties — when they were received? A. The goods were billed to E. M. Sharp from Tripp & Moore, and Chicago houses, and two or three eastern houses. I can’t, without a little time, think of all the places that he got goods from. He bought goods sometimes in Kansas City from W. W. Kendall — it was then — and bought goods from Victor B. Buck.
“Q,. When he bought them, where were the goods put? A. They were put in this store-room, 405 Delaware street.
“ Q,. When the goods were there, what did he do in the way of selling them? ' A. Sold them the same as any other wholesale jobbing house did; billed the goods and collected the pay for them.
“Q,. State what the fact is in regard to that, whether E. M. Sharp, doing business there, became indebted to you in any way. A. Yes.
“Q. In what sum? A. Well, I can’t state exactly; between $800 and a $1,000. Mr. Sharp kept the books and had the books in his possession when he died, and I have never been able to get hold of them.
“Q. Did Mr. Sharp pay you then in any way? A. Mr. Sharp paid me by selling me a bill of goods.
“Q,. Now, then, what time of the year was that? A. In April — the 1st of April, 1885.
“Q. Now, then, tell the circumstances under which they were sold and delivered to you. A. Mr. Sharp’s health failed, and he was not able to run the business; the business was getting down. He called me to his bedside one day; he was able to write and keep his books, but not able to go down town. To balance accounts, he sold me about $800 worth of boots and shoes.
“Q. Well, what did he do with them? A. Delivered them to me.
“ Q. What did you do with them ? A. I took them to Ar-mourdale, and opened a retail boot and shoe shop down there.
“ Q. Were those the only goods you ever got from anybody in Kansas City that year; was it, or not? A. No, sir; I bought goods from Kendall, and I bought goods from Thomas.
“Q,. I will ask you, did you ever buy in that year any goods from the plaintiff in this action? A. No, sir.”
“If the purchaser of property does not know that he is dealing with an agent of the owner, and has not good reason to know it, he is justified in treating the agent as the owner, aQd payment of the purchase-price to him will be a defense to an action by the owner for the amount.” (Windmill Co. v. Thorson, 46 Iowa, 181; Peel v. Shepherd, 58 Ga. 365; Pratt v. Collins, 20 Hun, 126; Frame v. Coal Co., 97 Pa. St. 309.)
It is familiar law that if one deal bona fide with an agent as owner, without knowledge of his agency, he may set off any claim be may have against the agent in answer to the demand of the principal. (Story on Agency, §§420, 421; 2 Kent’s Comm. 632, where numerous authorities are collected. See, also, Benj. on Sales, §1103, p.959.)
It is claimed, however, that if the defendant did not know that the Tripp & Moore Boot and Shoe Company owned the boots and shoes which Sharp sold to the defendant, he had good reason to know it, and therefore that the defendant could not pay for the property by writing off a”debt due to him from Sharp. (Phillips v. Reitz, 16 Kas. 396; Kurtz v. Miller, 26 id. 314; Gollober v. Martin, 33 id. 252; Henderson v. Creamer, 39 id. 679.)
If the trial court had found that the purchase by Sharp from his principal was fraudulent, or if the court had found that the defendant had good reason to know that Sharp did not own the boots and shoes sold to him, then the plaintiff would have been entitled to recover; but the general finding is against the plaintiff", and we cannot say that it is wholly unsupported by the evidence. As there was evidence to sustain the finding and judgment of the trial court in every essential particular, we cannot now reverse the judgment simply because it does not seem to be sustained by a preponderance of the evidence. (Railway Co. v. Salmon, 14 Kas. 512.)
It is also claimed that the triall|court committed error in not striking the answer from the files and rendering judgment upon the petition or account sued on. It is said that the account was verified by affidavit, and, as the answer was not verified, there was no issue to try. (Civil Code, § 108.) An examination of the record shows that the petition wag n0j. ¿[uly verified within the provisions of the statute. It was not sworn to positively. (Atchison v. Bartholow, 4 Kas. 124.)
Finally, it is - claimed (that the plaintiff was surprised by the evidence offered by the defendant, tending to show that he did not know that in buying the boots and shoes he was dealing with an agent of the plaintiff, and had no good reason to know it. It is also said in this connection that there is a variance between the evidence and the answer. The plaintiff did not object or except to any of the evidence offered by the defendant. If it had done so, the court might have permitted the answer to be amended upon such terms as were just. If the plaintiff was surprised at the evidence offered, it could have asked for a continuance, or could have dismissed its action and commenced a new one to recover the amount It saw fit to take its chances with the court upon the evidence as it was presented. It must therefore be held to abide the result. (3 Grah. & W. New Tr. 364-368.) afterward claimed.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HoetoN, C. J.:
This action is brought under subdivisions 3 and 4 of ¶4767 of the General Statutes of 1889. It has for its object the forfeiture of the charter of the Kansas Mercantile Association, and the prevention of the individual defendants from acting as a corporation or exercising corporate rights. The charter states that the purpose for which the corporation was formed is to sell various articles of merchandise with premium numbers attached, the premium numbers entitling purchasers holding the same to a selection of other articles. The testimony of P. W. Kline, the general manager of the association, shows that the object in obtaining the charter was to enable the association to carry on the identical business which the evidence discloses is carried on by the association. The testimony of witnesses shows that the association has on hand a number of lead pencils, probably of the value of a small fraction of a cent; that a five cent investment or a dollar investment, in the purchase of one of the “ vendor’s certificates,” as the defendants are pleased to call their tickets, entitles the purchaser to one of these lead pencils; that the purchaser of a certificate or ticket selects certain numbers, say 3 — 9—13, and hands these numbers into the office of the association, and if all the same numbers come out in the next drawing, the purchaser gets a prize, ranging from forty-five cents to $2,500; if the numbers selected do not come out, the purchaser gets no prize; that twice a day seventy-eight numbers are placed into a wheel on the stage of Hanson’s opera house, at Kansas City, in this state; that the wheel is revolved for half an hour; that a blindfolded boy draws out twelve numbers at a noon drawing and thirteen numbers at an evening drawing; that such persons as choose to be present at these drawings attend and make up the audience; that the numbers drawn are posted on a blackboard, and are sent to the various agencies in Atchison, Wichita, Leavenworth, St. Joseph, Mo., and two or three points in Texas, where the as sociation has agencies established for the purpose of assisting in carrying on its business. The business of the association is called and generally known as “ playing policy.”
Section 3, article 15, of the constitution of the state, ordains that “lotteries and the sale of lottery tickets are forever prohibited.” Of course, there is no provision in the statute concerning private corporations authorizing the formation of any corporation or association in this state to carry on lotteries or to sell lottery tickets.
Paragraph 4767, General Statutes of 1889, reads:
“Such action [in the nature of quo warranto] may be brought in the supreme court or in the district court, in the following cases: . . .
“Third: When any association or number of persons shall act within the state as a corporation without being legally incorporated. ■
“Fourth: When any corporation does or admits acts which amount to a surrender or forfeiture of their rights and privileges as a corporation, or when any corporation abuses its ' power or exercises powers not conferred by law.”
Upon the pleadings and evidence, the sole question is, whether the business carried on by the Kansas Mercantile Association is a lottery. The word “lottery” must be construed in the popular sense, with a view of remedying the-mischief intended to be prevented, and to suppress all evasions for the continuance of the mischief.
A “gift sale” of books is a lottery. (The State v. Clarke, 33 N. H. 329.)
A “prize-candy” business is a lottery. (Hull v. Ruggles, 56 N. Y. 424; Holoman v. The State, 2 Tex. App. 610.)
“Prize concerts” are lotteries. (Commonwealth v. Thacher, 97 Mass. 583; The State v. Overton, 16 Nev. 136; Negley v. Devlin, 12 Abb. Pr. 210.)
“Prize tickets” to induce subscriptions to a newspaper, constitute a lottery. (The State v. Munford, 73 Mo. 647.)
“Raffles” at .fairs are lotteries. (Commonwealth v. Manderfield, 8 Phila. 459.)
“Drawing works of arts” constitutes a lottery. (Governors of Almshouse v. American Art Union, 7 N. Y. 228.)
“A public exhibition during which, and as a part of the advertised proceedings, presents were distributed among such of the audience as held tickets which answered to the numbers called at will by the exhibitor, held to be a lottery.” [The State v. Shorts, 32 N. J. L. 398.)
“When a city or a government, in order to make an inducement for people to buy their bonds, holds out large prizes to be drawn by chance, or determined by lot in the manner in which prizes are usually determined in honestly-conducted lotteries, the mailing of circulars concerning such drawings, past and future, is a mailing of lottery circulars.” (United States v. Zeisler, 30 Fed. Rep. 499.)
“A scheme for the disposal of town lots, by the terms of which a number of lots are sold, and others are reserved to be distributed by lot among the purchasers of the first portion, so that the chance of obtaining one of the reserved prize lots forms a part of the inducement or consideration for which each purchaser pays the price agreed on for the lot sold to him, is a lottery.” [United States v. Olney, 1 Abb. U.S. 275.)
“Playing policy” has also been decided in New York to be a “ lottery.” (Wilkinson v. Gill, 74 N. Y. 63. In that case, Church, C. J., said that—
“A ‘lottery’ is defined by Webster, ‘a scheme for the distribution of prizes by chance, or the distribution itself/ and he defines ‘lot’ as ‘that which causes, falls, or happens; that which in human speech is called chance, fortune, hazard; ’ •and ‘to draw lots’ is ‘to determine an event by drawing one thing from a number, whose marks are concealed^ from the drawer and thus determining an event.’ Worcester defines ‘lottery’ as ‘ahazardin which sums are ventured for a chance ■of obtaining a greater value.’ The language of Folger, J., in 56 N. Y. 424, may be adopted as a result of the accepted definitions: ‘Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to have for it, that is a lottery.’ ”
Clearly, the business is which the association is engaged is “a scheme for the distribution of prizes by chance.” It has all the essential features of a lottery, and should be so construed. A purchaser of a certificate or ticket from the association does so with the hope or expectation of drawing a prize. His purpose is to try his luck at “fortune’s wheel,” and not to get a lead pencil.
"Within the definition of Webster and the authorities cited, the purpose of the association and its officers and agents is to establish and carry on a lottery. The purpose expressed in the charter of the association shows that purchasers of merchandise from the association, with premium numbers, were to be entitled to the selection of other articles; that is, prizes. Therefore it is evident that the parties filing the charter and organizing the association intended to carry on “a scheme for the distribution of prizes by chance;” that is, to,establish “a lottery.” This is unlawful. Such a scheme or business has no warrant of authority from any statute, and is in direct violation of the constitution of the state.
Even if there is no statute prescribing fines or penalties to be inflicted upon persons engaged in carrying on lotteries in the state, yet the constitution is so far self-executing that no charter can be granted, or corporation organized in the state for lottery business, or the sale of lottery tickets. The alleged charter of the defendant will therefore be declared null and void, and all of the defendants are hereby prohibited from transacting or carrying on the business, or “lottery” described in the petition.
Judgment will be entered accordingly against the defendants, with costs.
All the Justices concurring.
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Opinion by
Gjrees, C.:
On the22d day of August, 1887, this action was commenced in the district court of Sedgwick county, by the Wichita Mercantile Company, against J. H. Mann, on an open account to recover the sum of $812.71; an order of attachment was issued and levied upon a stock of groceries, fixtures, delivery wagon, safe, pony, etc., belonging to Mann. A receiver was appointed to take charge of and dispose of the attached property. On the 19th of September, 1888, the plaintiff in error asked to be made a party to the suit and be permitted to file an interplea, claiming to have a valid and subsisting lien on the property attached, by virtue of a chattel mortgage executed by J. H. Mann to L. A. Anderson, and by him assigned to the plaintiff in error. Leave was granted to answer, and the bank set up its claim to the property attached, under this mortgage executed by Mann to Anderson on the 7th day of May, 1887, and filed the same day in the office of the register of deeds of Sedgwick county. The property was described in the mortgage as follows:
“All of the stock of groceries, queensware, flour, canned goods, meats, lard, syrup, vinegar, tobacco, cigars, etc., one Mosler, Bahman & Co. iron safe, one Ludlow delivery wagon, one Texas pony, buckskin color, four show-cases (one six-foot oval front, two three-foot oval front, one three-foot square front), one Enterprise coffee-mill, one platform scale (Fairbanks), three counter scales, all the fixtures belonging to the stock of groceries bought this day from L. A. Anderson; also all goods added to said stock from this date, situated in a frame building on East Oak street, number 728, owned by S. J. Custater.”
The consideration expressed in the mortgage was $407. Fifty dollars had been paid upon said debt, leaving a balance due of $373.28. The note was made payable at No. 728 Oak street, in Wichita. The Wichita Mercantile Company denied that the bank had any claims to the property; that the mortgage in question was void as against the mercantile company, and was made for the purpose of hindering, delaying and defrauding the creditors of Mann. At the May term, 1888, the case, under the issues joined, was submitted to the court, and a finding was made that the mortgage was void, and judgment was rendered for the mercantile company. The Sedgwick City Bank brings the ease here for review.
It seems from the evidence, that the mortgage was given for the balance due Anderson for the purchase-price of the stock of goods and fixtures, and was for a valid consideration. The only theory upon which it could be held void was based on the fact that Mann was permitted to go on and sell the stock of goods at retail. The mortgage did not contain any provision for an accounting for the proceeds of the sale, and the claim is made that there was no agreement outside of the mortgage permitting the mortgagor to sell in the ordinary course of business, and account for the proceeds of the sales from time to time. The evidence clearly indicates that the mortgage was given in good faith, and it appears from the evidence of the mortgagee that the mortgagor was to pay on the debt, out of the sale of the grocery stock, all the money he could spare out of the business, once a month or oftener. This, we think, brings the case within the rule laid down in the case of Frankhouser v. Ellett, 22 Kas. 128:
“Where a mortgage is given on a stock of goods, with a stipulation for possession thereof by the mortgagor, and by agreement outside the mortgage the mortgagor is permitted to continue disposing of the goods in the ordinary course of business, and to use a portion of the proceeds thereof in the support of his family, paying the remainder over in discharge of the mortgage debt, the whole transaction is not thereby, as matter of law, rendered fraudulent and void, as against creditors and subsequent purchasers, but will be upheld or condemned, according as the arrangement is entered into and carried out in good faith or not.”
See also Cameron v. Marvin, 26 Kas. 612; Muse v. Lehman, 30 id. 514; Howard v. Rohlfing, 36 id. 357; Whitson v. Griffis, 39 id. 211.
The mortgage described, certain property, outside of the stock of goods, consisting of a pony, wagon, scales, counters, etc., and we see no reason why the mortgage should not have been upheld, as to the specific personal property described.
We do not think the mortgage was void because it contained á clause which purported to extend the lien of the mortgage over subsequently-acquired property. Having been given in good faith, it would cover the property actually in existence at the time the mortgage was executed, and, as to such property, we think the mortgage should have been upheld. (Yates v. Olmstead, 56 N. Y. 362.)
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action of forcible detainer brought on March 12, 1888, before a justice of the peace of Atchison county by Rebecca Osborn against Charles Lyons, to recover certain real estate situated in said county. A trial was had before the justice and a jury, and judgment was rendered in favor of the defendant and against the plaintiff, and the plaintiff, as plaintiff in error, .took the case to the district court on petition in error, where the judgment of the justice of the peace was reversed; and afterward the defendant, as plaintiff in error, brought the case for review to this court on petition in error.
The facts of the case, briefly stated, are substantially as follows: On September 8,1886, Rebecca Osborn, who owned the property in controversy, leased the same by a written lease to Charles Lyons for a term commencing on March 1, 1887, for which Lyons was to pay the sum of $325 on November 1, 1887; and the lease also contained the following stipulation: “And the said party of the second part [Lyons] has the privilege of continuing this lease, provided he fulfills the contract, at the same rent.” Lyons took possession of the property under the lease about March 1,1887, and continued in the quiet and peaceable possession thereof until this suit was commenced. He paid the aforesaid rent in installments, paying the last thereof about December 19, 1887; and all was received without objection. It was always understood by the parties that Lyons was to have the possession of the property for at least one year under the lease commencing on March 1,1887, although the lease does not in terms state how long he should have it; and in the latter part of August, 1887, it was orally agreed and understood between the parties that Lyons should have the property for one more year, commencing on March 1, 1$88, and ending on March 1, 1889. The justice of the peace gave to the jury the following among other instructions:
“ 2. The defendant would be entitled to a continuance of said lease for another year, provided he has substantially filled all the terms thereof for the first year, provided no new contract has been made, verbally or otherwise, to the contrary.
“The burden of evidence is on the plaintiff to make out her ease, by a preponderance of the testimony.”
“ 5. The continuing claim in said lease would be void, and you will so consider it, unless there was an understanding between the parties that it was a definite term of one or two years or more.
“If from the evidence you find there was such an understanding between the parties, then it is not void.”
The plaintiff below, Mrs. Osborn, who is now the defendant in error, complained in the district court, and now complains in this court, of the foregoing instructions, and also of the judgment rendered by the justice of the peace; but we do not think that any substantial error was committed by the ' justice of the peace. It was originally understood between the parties that Lyons was to have the property for at least one year, with the right on his part to have if he chose a renewal of the lease for a second year. It was also agreed between the parties in August, 1887, that he was to have the property for auother year. But he had a right independent of this agreement, under the above-quoted stipulation in the written lease, to elect to retain the property for a second year if he chose; and by remaining upon the property and in the possession thereof after the first year had expired, he presumptively, as nothing was shown to the contrary, elected to retain the property for another year, as in fact-he did. In support of the views herein expressed, see 12 Am. & Eng. Encyc. of Law, 1006 to 1009, and cases there cited; Kolasky v. Michels, (decided by the New York court of appeals, April 15, 1890,) 24 N. E. Rep. 278.
It is further claimed by the present defendant in error, that as Lyons did not pay the whole of the rent at the time it became due, which was on November 1, 1887, but paid a portion thereof as late as December 19, 1887, he was not entitled to a renewal of the lease. But he paid the whole of the rent for the first year within less than two months, after it became due, and more than two months prior to the expiration of the first year of his lease, and it was all received by Mrs. Osborn as thus paid without the slightest objection. We do not think, under the circumstances, that this failure on the part of Lyons to pay the whole of the rent when it became due deprived- him of his right to elect to retain the property uuder the lease for another year.
It is also claimed by the present defendant in error that the present plaintiff in error, who was the defendant in error in the district court and the defendant in the justice’s court, is without remedy in this court, for the reason that he did not file a motion for a new trial in the district court after that court, on petition in error, reversed the decision of the justice of the peace. Such a motion was wholly unnecessary.
The judgment of the district court will be reversed, and the judgment of the justice of the peace will be affirmed. Judgment of the district court reversed.
All the Justices concurring.
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Opinion by
Strang, C.:
This was an action by the plaintiff below to recover as damages the value of a steer killed by the cars of plaintiff company. It is admitted that the steer was killed by the cars of the company under such circumstances as would.render it liable, if the demand for dam.ages is held sufficient. It is also admitted that the value of the steer was $25. The demand was in writing upon a form furnished by the railroad company, and denominated a “stock application.” It was filled up as follows, and presented to said company in due time under the law:
“St. Louis, Fort Scott & Wichita Eailroad Company, to E. T. Holman, of Bronson, Kansas, Dr.:
“For the following animals killed by the locomotives and cars of said company on its railroad track: Date of accident, Oct. 6th, 1887. Description, one red steer. Value, $25.”
To which was annexed a statement of the purpose of the company, and a series of questions, which were answered by the claimant, the whole of which was verified by him. Does such a statement of a claim amount to a demand ? We think it does. It is denominated a stock application, but is it not rather an application for payment for stock injured by the train of the company ? Its form shows it is. If it is an application for compensation, by the owner thereof, for stock injured by cars of the company, and it is filled up and delivered to the company by the applicant, is not that a sufficient demand of payment for his stock ? We do not see how a better demand could be made. It notifies the company of the injury to the owner’s steer, its value, the date of the accident, and says the company is indebted to him therefor. The form of claim furnished by the company and used in this case contains the following printed statement:
“ It is the desire of this company, after satisfactory investigation, to pay the reasonable value of all stock killed, where a meritorious claim is made out, and it is not deemed irn-. proper to ask a claimant to answer the following interrogatories on presenting a claim, and make oath thereto.”
We see no difference between a claim of payment for stock killed, and a demand for payment therefor. “It is not deemed improper to ask a claimant to answer the following interrogatories on presenting a claim.” On presenting a claim for what? For the value of stock killed. When are the interrogatories to be answered ? On presenting a claim, that is, on making a demand. Then follow the questions submitted by the company for the purpose of eliciting information relating to the accident and the claim founded thereon, which are to be answered by the owner in connection with the demand. The character of the form used, when fully analyzed and considered, satisfies us that it was prepared by the company with a view of being filled up and presented as a claim, or demand, by the owner thereof, for the value of the stock injured by the • company in the operation of its trains — the object of the company in furnishing the form being to secure, in connection with the demand, information that would assist it in looking up the claim to determine whether or not to pay it. At any rate, we think the claim as presented amounted to a demand.
Another claim made by the plaintiff in error is, that the court erred in fixing the amount of the attorney’s fee at $45. The defendant in error answers this claim by saying it may be disposed of by remitting $10 of the attorney’s fee as found by the court. This offer to remit a portion of the attorney’s fee in this court imposes the costs of this court upon the defendant in error.
It is therefore recommended that the judgment of the district court be affirmed, upon the condition that the defendant in error remits $10 of the attorney’s fee and pays the costs of this court.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an appeal by Samuel Donelson from an award made by commissioners appointed to condemn a right-of-way through an eighty-acre tract of land owned by .Donelson in Chautauqua county. The extent of land taken was five and forty-eight one-hundredths acres, and the amount awarded by the commissioners was $320. The trial of the appeal in the district court resulted in an award of $1,095.85, as the aggregate amount of damages sustained by Donelson. In answer to special questions, the jury found that the value of the land taken was $274; that the damages to the land north of the right-of-way were $100, and to the land south of the right-of-way $150. They further found that the land south of the right-of-way is damaged by the probable overflow of ditches, allowing the water to spread over about thirty acres of land, and damaging it to the amount of $425. They also allowed $26 as damages for the overflow of surface-water from other lands. An item of damages was allowed for failing to construct a farm-crossing. And these items, together with the interest, make up the aggregate of the award.
It was claimed that the construction of the road through Donelson’s land had interfered with the natural surface drainage of the land, and had diverted the course of the flowage of the water resulting from the rainfall on the hilly land near that of plaintiff in such a way as to cause damage to his land. A witness named Miller was interrogated by the plaintiff' in regard to the damages resulting from the overflow. Over the objection of the railroad company, he was asked, and allowed to answer, what proportion of the plaintiff’s land was subject to overflow from the ditches constructed by the railroad company. The objection urged was that the witness was incompetent to state the fact or give an opinion upon the subject. The witness was not shown to be competent, and his testimony should not have been received. He was a farmer who had lived in the vicinity of the land for seventeen years, and had examined the plaintiff’s land since the construction of the road. He had seen the ditches and embankments which he claimed would cause the overflow, but had not measured their depth, and did not know whether they extended through the plaintiff’s land. At no time since the construction of the road had he seen an overflow of the land, or any injury which had resulted to it by reason of a freshet or overflow. He was, therefore, incompetent to testify to any fact from observation or knowledge, and could only give an opinion as an expert of the probable overflow which might occur in the future. It was not shown that he had any special skill which would enable him to give an opinion that would be valuable or admissible. It did not appear that he was a surveyor or civil engineer, or that he had ever taken any levels or made any calculations as to the quantity of water which would accumulate and could be discharged through the ditches, or any measurements or calculations of the extent of land that would be affected if there was an overflow of the ditches. In fact, it appears that he only gave an estimate of the width and depth of the ditches, and was unable to testify whether they extended entirely through the plaintiff’s land. The question involved a calculation in engineering as to the extent of country drained into the ditches, the dimensions and capacity of the ditches to carry off the surface-water that might flow into them. The sloping character of the ground and the level of the ditches should be considered, to determine the rapidity of the flow and the capacity of the ditches to discharge the water. If the ditches were insufficient to carry off the water that would probably fall in that section of the country and upon the area that would run into the ditches, then the witness would have to determine the extent of the land that would be reached by an ordinary overflow; and the rapidity of such overflow would have much to do with the injury that would result therefrom. A surveyor or civil engineer who had made a survey of the ditches, and had taken levels at various points upon the land liable to be overflowed, would have been a competent witness. But the witness was not skilled, and presented no claims entitling him to give an opinion as a scientific expert. As a farmer, he might give his opinion on matters ordinarily connected with farming, and bis testimony was proper so far as it related to specific facts.
We find no testimony of an overflow from the ditches since the construction of the road, nor anything which satisfactorily shows the incapacity of the ditches to carry off the surface-water which would probably pass into the same. The jury made a liberal award for the anticipated damages from this cause, based largely upon incompetent testimony; and hence, the ground of error assigned must be sustained.
We find no objection to the instruction complained of; and there are no other matters upon which we deem it necessary to pass.
The judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution upon information in which the defendant, Ira M. Hodges, was charged in eight separate counts with the commission of eight separate and distinct embezzlements of property belonging to the State Bank of Irving, a banking corporation, as officer, cashier and secretary of such corporation. A trial was had before the court and a jury, and at the close of the evidence on the part of the state, the prosecution elected to dismiss the prosecution as to the eighth count and to proceed with the trial upon only the other seven counts, as follows: Upon the first six counts, upon the charges therein contained of actual embezzlement; and upon the seventh count, upon the charge of taking, making way with and secreting a certain diamond pin, with the intent to convert the same to the defendant’s own use. And the prosecution also elected to rely for a conviction upon a separate and single transaction, as shown by the evidence for each separate count of the information. At the close of the trial the jury found the defendant guilty upon the first six counts, and not guilty as to the seventh; and the court sentenced the defendant to imprisonment in the penitentiary for terms aggregating six years upon the first, third, fourth and fifth counts only, as follows: Upon the first count for three years, and upon each of the other three counts for one year; and the defendant was not sentenced at all upon the second or sixth count, nor upon any other count except the first, third, fourth and fifth. The defendant now brings the case to this court for review.
I. The first alleged ground of error is, that the court below erred in refusing to grant the defendant a continuance. The ground for the continuance was, that the defendant in order to prepare for his defense needed to make an inspection of certain books, records and papers belonging to the State Bank of Irving, which books, records and papers were, and had been for a long time, in the custody of W. W. Armstrong, who was the receiver of said bank; that the defendant had not been able to procure such books, records and papers. The offenses with which the defendant was charged and found guilty, were charged to have been committed, and were, in fact, committed, during the month of November, 1889. When this prosecution was commenced is not shown, but it was probably commenced soon after the time of the alleged commission of the offenses. The information, however, was not filed until May 3,1890, and this application for a continuance was made on May 8, 1890. Now if these books, records and papers should be considered as being in the custody of the prosecution, which they were not, then the defendant’s remedy to ob- ' tain an inspection or copies of them was under § 209 of the criminal code, and §§ 368 and 369 of the civil code. But if they should be considered as being in^he custody of W. W. Armstrong, the receiver, as in fact they were, then the defendant could have procured an inspection or copies of them by merely applying to the court or judge for an order to that effect upon the receiver. And of course the defendant had the power to obtain them as evidence at the trial by merely causing a subpcena duces tecum, to be issued for them. (Civil Code, § 325.) But he took no legal steps to compel the pro- dnction of the books, records and papers for bis inspection, or to procure copies of them prior to his application for a continuance, and, therefore, we would think that he did not exercise sufficient diligence. The whole matter, however, was largely within the discretion of the trial court, and we cannot say that such discretion was abused. Many of the books, records and papers of the bank, and possibly all, were present at the trial, and there is no pretense that any of them needed by the defendant were absent.
II. The next ground of alleged error has reference to a supposed error in the information, in charging in one and the same instrument, though in separate counts, several separate and distinct felonies, and in the court’s requiring the defendant to be tried for all of such felonies in one and the same trial. Now there can certainly be no such substantial error in this as will require a reversal of the judgment of the court below, provided, of course, that only one offense is charged in each of the several counts of the information. Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. (Whar. Cr. Pl. & Pr., § 285, et seq., and eases there cited; 1 Bish. Cr. Proc., 3d ed., §§ 424, 450, 451; 4 Am. & Eng. Encyc. of Law, 754-756; The State v. Bancroft, 22 Kas. 170; The State v. Chandler, 31 id. 201; The State v. Goodwin, 33 id. 538; The State v. Fisher, 37 id. 404.) The defendant may be tried upon all the several counts of the information at one and the same time, and in one trial; but all this rests in the souncf judicial discretion of the trial court. In some cases the trial court might, without committing material error, quash such an information; or it might require the state to elect upon which one or more of the several counts it would proceed to trial or rely for a verdict; but we cannot say that in this case the court abused its discretion or committed any material error.
III. The next alleged ground of error is that each count of the information charged two separate and distinct offenses. The first count of the information charges as follows: That the defendant as officer, cashier and secretary of the State Bank of Irving, a corporation, doing a general banking business at Irving, was entrusted by the corporation with the safe-keeping, custody, control and disbursement of the mon-' eys belonging to the bank; and that he, as such officer, cashier and secretary, on the 8th day of November, 1889, certain moneys belonging to the bank in his hands, of the value of $1,500, “did then and there fraudulently and feloni-ously convert to his own use and embezzle, with intent to feloniously embezzle the same, and then and there did feloni-ously make way with and secrete, with intent the said money and property fraudulently and feloniously to embezzle and convert to his own use, without the assent of the said corporation, his employer.” All the other counts are substantially in the same form. Now as a general rule, the charging of two or more distinct offenses in the same count of an information, which in criminal pleading is denominated “duplicity,” is not to be tolerated, but we do not think that the present information is subject to any such objection. It is often the case that one felony of considerable magnitude may include within itself other offenses of less magnitude, and then all may be charged in one count; as, for instance, the offense of murder in the first degree, the greater offense, may be charged in one count of an information, although by so doing several smaller offenses are also charged in the same count of the information. And in all cases an offense may be set forth in a single count of an information, although such offense may include the smaller offense, an attempt to commit the principal offense. Sections 121 and 122 of the criminal code read as follows:
“Sec. 121. Upon an indictment for an offense consisting of different degrees, the jury may find the defendant not guilty of the decree charged in the indictment, and guilty of any degree inferior thereto, or an attempt to commit the offense.
“Sec. 122. Upon thp trial of an indictment for a felony, the defendant may be found guilty of any other felony or misdemeanor necessarily included in that with which he is charged in the indictment or information.”
Section 283 of the act relating to crimes and punishments makes an attempt to commit an offense an offense of itself, and so far as it is necessary to quote such section, it reads as follows:
“Sec. 283. Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall, in cases where no provision is made by law for the punishment of such attempt, be punished as follows: ” etc.
And Mr. Wharton in his Precedents of Indictments gives the form of an indictment for embezzlement, which includes, among others, the following words: A. B., the defendant, “fraudulently and feloniously did take, make way with and secrete, and did embezzle and convert to his own use, without the assent of the said C. D., his master and employer, the said ” embezzled property, etc.
See also 1 Bish. Cr. Proc., 3d ed., §§ 436, 443; 4 Am. & Eng. Encyc. of Law, 756; The State v. Lillie, 21 Kas. 728; The State v. Blakesly, 43 id. 250.
As we understand, it is claimed that the present information is not good, for the reason that each count first charges the crime of actual embezzlement, and then charges a second offense by charging that the defendant made way with the same property and secreted it with the intent to embezzle and convert the same to his own use. This certainly does not render the information bad, for all these charges could have been shown under the single charge of actual embezzlement; for if a person commits the offense of actual embezzlement he must commit all the rest above specified. He cannot commit the offense of actual embezzlement without also attempting and intending to commit such offense; and he cannot commit the offense without also converting the property of his em ployer in his hands and which he embezzles to his own use, and without also attempting and intending to so convert it. All that was material in the aforesaid charge was included in the one charge of actual embezzlement. Besides, in the present case, before the defendant was called upon to introduce any evidence, the state elected to rely for a conviction upon the single charge of actual embezzlement and of the embezzlement of a particular thing; and this election was as to each count, and the defendant was convicted upon this election, and upon this election only. What we have said with reference to the first count may also be said with reference to all the other counts upon which the defendant was convicted.
IV. The next question presented is with regard to the introduction of evidence. It is claimed that the court below erred in permitting the prosecution to introduce incompetent and irrelevant evidence, to the prejudice of the substantial rights of the defendant; and again, the question is presented whether two or more criminal charges can be included in one and the same information, though in separate counts, and tried upon a single trial. It is claimed that they cannot, for the reason that evidence competent to prove one charge would necessarily be irrelevant and incompetent as to the other charges, and that the introduction of such evidence would be prejudicial to the substantial rights of the defendant. Of course the first part of this claim is generally true, and the last part of the same is sometimes true; but where the last part is true, the court in its discretion will require that a separate trial shall be had upon each separate charge. We do not think that the rights of the defendant were improperly prejudiced in the present case. Undoubtedly the court and the jury understood perfectly well for what purpose each item of the evidence was introduced; and the jury did not use the evidence, introduced to prove one charge, for the purpose of sustaining some other charge. This question, however, was sufficiently considered in the consideration of the question whether charges for separate and distinct felonies could be united in separate counts of one information. There was some other evidence introduced which was irrelevant and incompetent to prove any of the charges, the most of which, however, after being introduced, was expressly withdrawn bjt the court from the jury; and we cannot think that the defendant’s substantial rights were prejudicially affected by any of such evidence. All the evidence was intended to show the defendant’s transactions in connection with the bank. And nothing was introduced to show that he had acted in any respect in any worse manner as to the affairs of the bank than he had acted in doing the very things of which the jury found him to be guilty, and of which he was unquestionably guilty.
"V. The next complaint of the defendant is, that the jury were permitted to separate after the trial and before they had rendered their verdict. The facts were these: The trial was closed just before the adjournment for the day, on May 14, 1890, at eight o’clock in the evening. Before the adjournment, the court instructed the jury that if they should agree upon a verdict before the meeting of the court on the next morning, they might reduce their verdict to writing, inclose it in a sealed envelope and then separate until the meeting of the court the next morning, and then return the verdict into court; and the court also properly admonished the jury with regard to their conduct during the separation. The jury in fact agreed upon a verdict during the night, reduced it to writing, inclosed it in a sealed envelope, then separated, and on the next morning returned it into court, where the envelope was opened and the verdict'read to the jury, and they were asked if that was their verdict, and they answered in the affirmative. No objection to the above was interposed by the defendant or his counsel, although they, as well as the counsel for the state, were present in the court when it all occurred. Certainly no material error, if any error at all, was committed in this. (See Criminal Code, §235; The State v. Muir, 32 Kas. 481; Bishop v. Mugler, 33 id. 145.)
YI. Complaint is also made that the court below erred in rendering a cumulative sentence. The court below sentenced the defendant upon four different charges, set forth in four sep arate counts of the information, to imprisonment in the penitentiary for six years in the aggregate, which was one year more than the defendant could have been sentenced for upon any one of such charges. We think there was no error in this. (Criminal Code, § 250; The State v. Carlyle, 33 Kas. 716; The State v. Chandler, 31 id. 201.) If a defendant in a criminal prosecution can be tried upon an information charging in separate counts several separate and distinct felonies, he may certainly be convicted and sentenced upon each of such counts upon which he is convicted, and where the sentence upon each count is for imprisonment in the penitentiary, the imprisonment may, under § 250 of the criminal code, be cumulative, and the imprisonment under one count may commence at the expiration of the imprisonment under another count.
We think no material error has been committed in this case, and the judgment of the court below will be affirmed.
All the Justices concurring.
Per Curiam:
The facts of the case of The State of Kansas y. A. C. Emmons, from Marshall district court, and the questions of law involved therein, are substantially the same as those in the case of The State v. Hodges, just decided, and this case will be decided upon the authority of that case. Judgment affirmed.
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Opinion by
Steang, C.:
Action in ejectment for the possession of the east half of the southwest one-fourth of section 8, township 12, range 11, Wabaunsee county, Kansas. Defendants below claim the land under a tax title. The statute provides that “any owner, his agent or attorney, may, at any time within three years from the day of sale, and at any time before the execution of the deed, redeem any land or town lot, sold for taxes, or any part thereof, or interest therein, by paying to the treasurer of the county the amount for which said land was sold, and all subsequent taxes and charges thereon,” with interest as provided by the act. The statute also requires the county treasurer, at least four months before the expiration of the time limited for redeeming lands sold for taxes, to publish in some paper published in, or of general circulation in his county, once a week for four consecutive weeks, a list of all unredeemed lands and town lots, describing each tract or lot as the same was described on the tax roll, stating the name of the person to whom assessed, if any, and the amount of taxes charged, and interest, calculated to the last day of redemption, due on each parcel, and give notice that unless such lands or lots be redeemed on or before the day limited therefor, specifying the same, they will be conveyed to the purchaser.
The trial court made the following findings of fact, to‘wit:
“1. The plaintiff holds title to the real estate' in controversy, to wit: The east half of the southwest quarter of section 8, township 12, range 11 east, containing eighty acres of land in Wabaunsee county, state of Kansas, by a chain of valid conveyances duly executed and delivered, beginning with a patent from the United States, dated April 15, 1871, and ending with a deed to the plaintiff, dated August 18, 1880.
“ 2. Said real estate was sold on the 5th day of September, 1882, for the taxes of 1881, and under said sale a tax deed, valid on its face, was, on the 11th day of September, 1885, duly executed and delivered to C. S. Kinderdine, by the county clerk of Wabaunsee county, Kansas, and the defendant Lewis Nelson is in possession of said real estate under title derived from said tax deed, by conveyance duly executed and delivered to him by said Kinderdine on the 11th day of May, 1886.
“3. Prior to the execution of said tax deed, the county treasurer of Wabaunsee county, Kansas, published a redemption notice of lands sold for taxes in 1882, of which the following is a copy, to wit:
“ ‘ County Treasurer’s Office, Alma, Wabaunsee county, Kansas, Febru-ruary 13, 1885. Notice is hereby given that the lands described in the following list, situate in the county of Wabaunsee and state of Kansas, were sold on the 5th day September, 1882, for the unpaid taxes of 1881, and costs and charges thereon.
“ ‘The period of redemption under said sale will expire in three years from the day of said sale, or on the 6th day of September, 1885; the sum set opposite the several tracts includes the taxes, interest, and charges up to the last day of redemption.
“ ‘Now, therefore, unless the said lands shall be redeemed on or before the 6th day of September, 1885, they may be conveyed to the purchaser thereof, on and after the 6th day of September, 1885.
‘Joseph Fields, County Treasurer.’
“4. The 6th day of September, 1885, was Sunday.
“5. Before this suit was commenced, the plaintiff tendered to defendant the full amount of taxes and interest on said land.”
And the following conclusions of law:
“1. The defendant Lewis Nelson does not unlawfully detain said real estate from said plaintiff, and said plaintiff is not entitled to recover the possession thereof.
“2. The defendants are entitled to recover their costs.”
And thereupon said plaintiff to all the foregoing conclusions of law and each of them duly excepted.
The sole question involved in the case is the sufficiency of the redemption notice. There are two questions raised on the notice. It is first asserted by the plaintiff in error that the notice is not sufficient because, since the last day of the period for redemption, the 6th of September, is Sunday, the notice should have extended the period for redemption to and including the next day, the 7th. The land was sold on the 5th day of September, 1882. Under the rule of this court, (English v. Williamson, 34 Kas. 212, and Cable v. Coates, 36 id. 191,) the day of sale should have been excluded; the period of redemption, then, would have expired on September 5, 1885. September 5, 1885, was not Sunday, and as the period for redemption expired with that day, it mattered not that the next day was Sunday. The plaintiff had his full three years in which to redeem with the expiration of Saturday, the 5th.
It is argued that, because by the terms of the notice the plaintiff was given the right to redeem on the 6th, he should have had all of that day; and as the 6th was Sunday, he should have also have had the whole of the next day — the 7th. We do not think this argument is tenable. The statute gives three full years in which to redeem, and until the deed is executed, but the notice should give but three years. If, however, the treasurer, by a mistake in computation, gives in the notice one day more than three years for redemption, that will not render the notice invalid upon its face. Nor should the owner be permitted to take advantage of such mistake to set aside a deed following such notice, without showing that he was misled thereby, and that he offered to redeem on the last day named in the notice, or if the last day named was Sunday, on the next day. It is also said the notice was invalid by reason of its uncertainty, or want of definiteness, in fixing the final day for redemption. That part of the notice claimed to be obnoxious to this criticism reads as follows: “The period of redemption, under said sale, will expire in three years from the day of said sale, or on the 6th day of September, 1885.” It is argued that the date of expiration for the period of redemption is not definitely fixed. That the notice is, that the period for redemption will expire on one or the other of two periods, to wit: “In three years from the day of sale, or on the 6th day of September, 1885,” and that this feature of the notice is subject to the criticism of this court in the case of Blackistone v. Sherwood, 31 Kas. 36, and is therefore invalid. The notice in this case differs from the notice criticised in the case cited. In the notice in that case the date of sale was not given, and there was nothing from which to compute the three years for redemption. In this case the date of sale is given in the notice, and a computation will show when the three years will expire. We think the notice in this case must be held to be good — it is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Per Curiam:
It is insisted that the original opinion handed down in this case, ante, p. 349, is erroneous, because subdivision 2 of- §542 of the civil code authorizes the supreme court to reverse, vacate or modify an order that grants or refuses a new trial. It is further insisted, that a new trial has been granted in this case within the terms of § 542 of the civil code, and therefore that error to this court will lie therefrom.
Said §542 does not embrace orders of the district court vacating or suspending temporarily only a judgment, under the provisions of §§ 568,570,572 and 573 of the civil code. Unless the fraud alleged in the petition in this case shall be sustained upon the trial thereof, the original judgment will stand as if never suspended, and may be enforced as if this proceeding had never been instituted. Section 568 of the civil code is similar to § 534 of the civil code of Ohio, and the decisions of that state upon the construction of the provisions of that section and the following sections can be consulted with profit.
Subdivision 4 of § 568, authorizing a statutory petition to set aside a judgment “for fraud practiced by the successful party in obtaining the judgment,” does not impair the common-law right to make a motion, in proper time and form, to set aside judgments at law; nor does it deny the right to file a petition to impeach judgments, as in chancery, for fraud; but it is a cumulative, statutory substitute for such motion and petition.” (Wheeler v. White, 4 West. Law Mon. 110.) When the existence of a ground to vacate or modify a j udgment is decided in favor of the petitioner, under § 571 of the civil code, the case is not yet reached for a final judgment of vacation or modification. If the petition be filed by the defendant in the original action, it must be adjudged that there is a valid defense to the action. (Civil Code, § 572.)
“In order that the validity of the defense may be adjudged, an issue or issues should be made up by proper pleadings. If the proceeding to vacate or modify be by motion, the defendant should be required to file his answer to the original petition, with leave to the plaintiff to reply. If the proceeding be by petition, in which the matters of defense are set forth in issuable form, it would be sufficient, no doubt, to take issue thereon by reply or demurrer. When the issue is thus made up, it should be tried as in other cases. (Frazier v. Williams, 24 Ohio St. 625.) After such trial, and not before, the court is authorized to render a final judgment or order of vacation or modification of the original judgment.” (Fullenwider v. Ewing, 30 Kas. 15; Meixell v. Kirkpatrick, 25 id. 15; Taylor’s Annot. Civil Code of Pr. 238, 241, and cases there cited; Ames v. Brinsden, 25 Kas. 746; 1 Yaple’s Code Pr. & Prece. 608, 609; Watson v. Paine, 25 Ohio St. 340.)
If the alleged fraud of the plaintiff in the original action is clearly established, then the trial court will be authorized to make a final order of vacation of the original judgment, not otherwise. If the alleged defense of fraud fails, the petition or application to vacate the original judgment must be dismissed,and the original judgment will be enforced as rendered. As was said in Fullenwider v. Ewing, 30 Kas. 15:
“In one sense, this proceeding may be considered as a mere incident to the original action, or as a proceeding belonging to and growing out of the original action; but in another sense it must be considered as an action itself. . . . Such proceeding, upon such petition, partakes, to a very great extent, of the nature of a suit in equity to vacate or set aside a judgment for fraud or otherwise; and if the proceeding itself does not arise to the grade or dignity of an action, it partakes, to a very great extent of the nature of an action; In § 4 of the civil code, it is stated that ‘An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ Does not the present proceeding come within this definition? Fullenwider had a right in the original action to have the same tried fairly and without deceit, or fraud, or perjury. That right, he alleges, was violated, and by means of this proceeding he seeks redress. Does not this answer the description of an action? But whether this proceeding is an action, or a mere special proceeding in another action, we think it partakes of the nature of an action, and should be tried by legal evidence, just as real actions are tried, and not upon affidavits, as is usually the case with respect to mere motions.”
“A party may have a good defense to an action, but if he fail to make such defense when the case is called for trial, he will not be permitted to come in weeks afterward and say that the judgment was wrong and ought to be set aside, simply because he had a good defense. The same rule applies to an order. Code, §568.” (Iliff v. Arnott, 31 Kas. 672.)
But, of course, if a party is prevented by fraud from making his defense, the original judgment cannot stand.
In Soper v. Medberry, 24 Kas. 128, the question here discussed and decided was not presented. Indeed, it was not necessary to do so in that case, in view of the decision rendered.
The rehearing will be denied.
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The opinion of the court was delivered by
JOHNSTON, J.:
The principal controversy in the case arises upon that provision of the written contract in respect to obtaining the $1,250 loan, and the expense of securing it. Nesbit sold the farm of two hundred and forty acres to Cos-per for the stated consideration of $4,900, of which $200 was to be paid in cash, an existing mortgage on the land of $1,750 was to be assumed by Cosper, a payment of $1,700 was to be made on March 1, 1884, to be secured by a chattel mortgage on cattle of the value of $3,000; and for the remainder of the consideration Cosper was to give an additional mortgage of $1,250 on the farm, or if Nesbit secured a loan of $1,250, Cosper agreed to assume the loan and pay one-half of the expense of obtaining it. After the making of the contract, which was on November 2, 1882, Nesbit employed an agent to obtain a loan upon the land, and he succeeded in doing so about April 1,1883. Prior to that time Nesbit had executed a deed for the farm to Cosper, and this, with other papers, had been deposited in a bank to await the completion of the contract. As soon as the agent employed by Nesbit had procured the money, he made out a written application and mortgage, which were executed by Cosper, and the money was paid over to Nesbit, less the sum of $98.50, which was the expense incurred by the agent in obtaining the loan. The title papers were then delivered and the contract completed, but although Cosper had stated that he would pay one-half of the expense, he finally refused to do so, and this action was brought.
It is claimed by Cosper that the agreement was, that if Nes-bit secured the loan before the execution of the deed, and negotiated the mortgage in his own name, that then he was to assume the loan and pay one-half of the expense for securing it; but that as the loan was not secured by Nesbit in that way, and as Cosper executed the mortgage upon the land and turned the money over to the plaintiff as payment, that the loan was therefore not secured by Nesbit, and hence there was no liability under the contract.
Nesbit contends that he was the active agent or instrumentality in securing the loan, that he helped to negotiate it, and that the application and mortgage were executed by Cosper simply because he, Nesbit, had prior to that time executed a deed of the farm to Cosper and placed the same in a depository to await the completion of the contract.
After the evidence had been submitted, the court explained the contract to the jury, and then left it to them to determine the meaning of the words used in the contract “secure a loan,” stating to them that “ we must give that expression the same meaning that the parties to the agreement have,” and that they might take into account- the situation of the parties, their conversations and conduct at and during the making of the contract, as well as their conversations and conduct subsequent to that time, in determining the sense in which the parties used the expression. Two meanings were claimed for the expression, and the court advised the jury what interpretation should be placed upon the contract if it was used in one sense, and what if used in the other.
It is claimed that the court erred in submitting to the jury the question of what the parties understood and meant by the expression. In general, it is the province of the court to construe written contracts, but where peculiar expressions are used, it may be left to the jury to determine by the aid of extrinsic circumstances and facts what sense was intended by the parties. ■ Where the language of a contract contains an expression which is ambiguous, or one used in a peculiar sense, evidence may be properly received to show what the parties understood and intended by it. The practical interpretation of such an expression of the parties is entitled to great, if not controlling, influence. (3 Am. & Eng. Encyc. of Law, 869, and cases cited in note.) The evidence in the record shows that both parties had the same understanding of this expression, and used it in the sense claimed by Nesbit. On two different occasions Cosper admitted his indebtedness for one-half of the expense of obtaining the loan. He knew that Nesbit had employed an agent to secure the loan; knew that the money was secured by that agent, and at the request of Nesbit; he waited until the agent procured the money, and at the request of the agent executed the necessary papers to secure its payment. The mortgage was evidently executed by him, because of the fact that during the pendency of these negotiations a deed from Nesbit to Gosper had been executed and placed on deposit. Upon the testimony, which was ample, the jury found specially that the loan was obtained at the solicitation of Nesbit, and the money was in the possession of the agent before Cosper took any steps in the matter.
We think no mistake was made in the construction placed upon the contract; and even if it is such an one as should have been construed by the court alone, it is so clear that a correct construction has been given to it that the submission of the question to the jury is not a sufficient ground for a reversal. (Germania Ins. Co. v. Curran, 8 Kas. 10.)
It was also claimed that the contract was abandoned and a different one subsequently made. There was a modification of the provision concerning the $1,700 payment, due in March, 1884, but the finding of the jury settled that there was no change in the $1,250 provision in controversy.
The instruction requested, that Nesbit’s claim for $49.25 was barred by the three-years’ statute of limitation, was properly refused. The claim arose under the written contract, and was not barred until five years after a cause of action had accrued.
Complaint is made about the refusal of the court to permit plaintiff in error to show certain items of indebtedness from Nesbit to him; but these were not mentioned in the contract, were not in writing, and were barred by the statute of limitations.
We think substantial justice was done in the case, and that no material error was committed. Judgment affirmed.
All the Justices concurring.
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Per Curiam:
Upon a reexamination of the former opinion handed down in this case {ante, p. 699), and the various authorities presented upon the argument for a rehearing, the motion will be overruled.
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The opinion of the court was delivered by
Johnston, C. J.:
These are appeals taken in an action begun by The E. G. Rail Grain Company, doing business at Fort Worth, Tex., against The Missouri Pacific ■ Railway Company and The Kemper Grain Company, of Wichita, Kan., to recover $574.55 damages by reason of its reliance upon the recitals of a bill of lading which was alleged to have been carelessly and fraudulently issued by The Missouri Pacific Railway Company at the instance of The Kemper Grain Company.
There is no material dispute about the facts and, briefly stated, they appear to be that on November 20, 1912, the railway company issued, at La Crosse, Kan., its shipper’s order bill of lading for a car of wheat to H. S. Fish, showing weight 64,690 pounds, consignee H. S. Fish, Wichita, Kan., with provision to notify The Kemper Grain Company at that point; that the bill of lading was sent to a bank in Wichita with draft attached; that the Kemper company paid the draft and took up the bill of lading; that the Kemper company sold the car to L. H. Harrod, who was doing business as Harrod & Company and also as The Harrod Grain Company, so that he might apply it on a contract he had with the Rail company, and on November 23, 1912, before the arrival of the car in Wichita, the Kemper company procured the railway company to sign and issue a bill of lading showing the weight of the car as 110,000 pounds, notwithstanding that when signing this latter bill of lading the clerk of the railway company had before him the original bill of lading showing the weight to be 64,690 pounds; that the Kemper company, knowing the actual weight, collected from Harrod for the car on the basis of 110,000 pounds; that Harrod sold the car to the Rail company, f. o. b. Sherman, Tex., and sent the bill of lading with draft for $1425 attached, which was taken up by the Rail company on November 27, 1912; and that the Rail company sold the wheat to a mill company at Sherman, Tex., where the car arrived on December 2, 1912, which company surrendered the bill of lading on January 8, 1913, and paid the whole freight bill of $203.21 and demurrage charges of $28. It further appears that Harrod disappeared from Wichita about December 24, 1912, and on March 12, 1913, was adjudged an involuntary bankrupt; that on December 27, 1912, the Kemper coxppany requested destination weights of the car of the Rail company and was answered by the Rail company that it would unload the car to the account of the Kemper company;' and that the Kemper company disclaimed any relations with the Rail company. It also appears that the Rail company had notice of a shortage in the car after the draft was paid but before the wheat was unloaded. The Kemper company, in its answer, admitted that Harrod was entitled to a credit of $528.90 because of the overdraft on the car in question, and that it was then indebted to him for a balance of $474.96. Charles A. Baldwin, as trustee for the bankrupt Harrod estate, intervened by cross-petition and counterclaim and prayed judgment against the Kemper company for the $528.90 overdraft on the car and also for the $575.05, the amount of the claim against the estate presented by the Rail company. On the trial of the case it was in evidence that all the transactions in connection with the car were according to the usual custom of grain dealers, and also that the bill issued was. “ a clean bill of lading,” which was explained as differing from one bearing the notation “shipper’s load and count,” a phrase which meant that the shipper had weighed the car and the railroad company had not, and E. G. Rail, president of the Rail company, testified that it was because of this fact and that the bill of lading bore the indorsement of the Kemper company that he accepted it. The court found and adjudged that the Rail company should recover against The Missouri Pacific Railway Company the sum of $371.34 but refused any award for the freight paid on the car, amounting to $203.21, and also refused judgment against the Kemper company; that The Missouri Pacific Railway Company should recover against the Kemper company $371.34; that Charles A. Baldwin, trustee, should recover against the Kemper company $103.62 and interest; that the Rail company, The Missouri Pacific Railway Company and the Kemper company should each bear one-third of the costs of the action; and that the judgment rendered should be without prejudice to any right of the Rail company to proceed against Harrod’s estate for $203.21, the freight paid on the car. From this judgment all parties, save Charles A. Baldwin, trustee, appeal and allege error.
It is insisted by the Rail company that it should have recovered $203.21, the freight paid, against The Missouri Pacific Railway Company, and also that it should have recovered the full amount against the Kemper company. It is contended by the railway company that the judgment in favor of the Rail company against it was erroneous, and by the Kemper company that the court erred in giving judgment against it in favor of The Missouri Pacific Railway Company and Charles A. Baldwin, trustee. . Each company complains of the adverse judgment as to costs.
First, as to the complaint of the Rail company that the court erred in refusing it any allowance against the railway company for the freight which it paid upon the car. It was negligence in the railway company to issue a shipper’s order bill of lading representing that the car contained 110,000 pounds of wheat when' it only contained 64,690 pounds. Through the negligence in issuing the false bill of lading the Rail company was induced to pay the sight draft for $1425. Under the customs of trade and the rules of law such a bill of lading is negotiable and the Rail company had a right to rely on the bill as it was executed and negotiated. The railway company became liable to the party to whom the bill was negotiated in the regular course of business for all damages which are the natural and proximate result of the misrepresentation in the bill of lading. There is no occasion to reopen the discussion of a liability on such a bill of lading as it has received full consideration in a number of cases and there is nothing in the notations upon or in the terms of this bill to take it outside of the authorities. (Savings Bank v. A. T. & Santa Fe Rld. Co., 20 Kan. 519; Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230; Hutchings v. Railway Co., 84 Kan. 479, 114 Pac. 1077; Harold v. Railway Co., 93 Kan. 456, 144 Pac. 823.) The freight charge was an incident of the shipment and followed it to destination. The Rail company purchased the wheat f. o. b. Sherman, Tex., and was entitled to have it delivered there free of all charges, including freight. Before the Rail company could obtain the wheat it was compelled to pay the freight charge, and the fact that the demand was excessive was due to the fault of the railway company and the Kemper company. The representation made by them was that the car contained 110,000 pounds, and to get possession of the car and of the wheat contained in it the Rail company was obliged to pay $1425 to the bank and $203.21 to The Missouri, Kansas & Texas Railway Company. It is said that the Rail company had notice that there was less wheat in the car than was represented by the bill of lading before the freight was paid, and that therefore it was not warranted in paying or in asking a recovery of the freight. The draft had been paid to the bank long before notice of the shortage was received and the car was held by the carrier’s lien. To avail itself of so much wheat as had been shipped and thus reduce the loss as much as possible it was-necessary for the Rail company to pay the freight charge. If it had refused to accept the car it could, of course, have recovered the full amount paid, but the damage was greatly reduced through the action of the Rail company in accepting the wheat actually shipped and giving a proportionate credit to the parties guilty of the wrong. It is the duty of one inj ured by the fault of another to use reasonable efforts to lessen the resulting damages, and so the Rail company was justified in taking the wheat, which was worth $1053.66, thereby reducing the amount of damage to $574.55, which included the shortage in the wheat and the freight that the Rail company was required to pay in order to get the wheat. (Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444; Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360; Holly v. City of Neodesha, 88 Kan. 102, 127 Pac. 616; Maddux v. Telegraph Co., 92 Kan. 619, 141 Pac. 585; 37 Cyc. 1757.) The freight item was the proximate result of the negligence of the railway company and it should have been added to the award of $371.34 made against that company, increasing the- amount of recovery to $574.55.
There is complaint because judgment was not rendered in favor of the Rail company against the Kem-per company, and also, by the latter, that the railway company was allowed a recovery against it for $371.34; While the Kemper company had no direct relationship with the railway company it did contribute towards the issuance of the false bill of lading and became jointly liable for the resulting damages. It represented to the railway company that the car contained 110,000 pounds of wheat when it knew that it contained a less quantity. The Kemper company prepared the false bill of lading, signed its name thereto, and then presented it to the railway company for execution. It knew that a draft would be attached to the bill ánd that the purchaser would be compelled to pay the excessive amount. There is testimony, .too, that the Kemper company raised the amount in the bill of lading because it was suspicious of Harrod, to whom the grain was being shipped, and did not consider him to be strong and reliable. When the bill of lading was raised the Kemper company knew that a sight draft would be issued on the amount stated by it in the bill of lading and that the purchaser would be deceived and suffer loss through the misrepresentation. Even if no benefit had accrued to the Kemper company through the misrepresentation it would nevertheless be held liable for the loss. The president of the Rail company testified that he relied on the indorsement of The Kemper Grain Company, which he regarded to be a responsible dealer. One who makes a representation known to be untrue, and which he has reason to believe will be relied and acted upon by others to their loss, is liable for the loss sustained, although he has no direct interest in the transaction and receives no consideration or benefit from it. (Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798; Hewey v. Fouts, 92 Kan. 268, 140 Pac. 894.) This rule was applied in Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321, 69 N. W. 722, where it was said:
“Where one deliberately gives another a false statement in writing, knowing the purpose for which it is to be used, which that other uses to deceive a third party, he is a joint wrong-doer, and must be held responsible for the consequences which follow. Smalley can not defend upon the ground that he received no benefit from the fraud.” (p. 324.)
(See, also, Skeels v. Porter, [Iowa, 1914] 145 N. W. 832; Weber v. Weber, 47 Mich. 569, 11 N. W. 389; Bishop on Noncontract Law, § 315; 20 Cyc. 71.)
The Rail company was therefore entitled to a judgment against The Kemper Grain Company for the full amount of the loss sustained, namely, $574.55, and because of its action in inducing and causing the railway company to issue the false bill of lading and thus incur a liability the railway company is entitled to a judgment for the amount against the Kemper company. The fact that the Rail company, at a later time, presented a claim in the bankruptcy court and endeavored to recoup its loss to some extent from the Harrod estate does not prevent a recovery in this proceeding. As the Rail company is entitled to a full recovery in the action it was also entitled, to a judgment for its costs against the other parties, and the costs of the litigation should be equally divided beween the railway company and the Kemper company.
The judgment of the district court will be modified to the extent herein indicated, and to that end the case will be remanded to the district court.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover damages for the loss of property destroyed by fire communicated by an engine of the defendant. The plaintiff recovered and the defendant appeals.
The property destroyed was a chocolate factory and its contents located at West Line, Cass county, Missouri. The action was prosecuted under a statute of the state of Missouri which reads as follows:
“Each railroad corporation owning or operating a railroad in this state shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated directly or indirectly by locomotive engines in use upon the railroad owned or operated by such railroad corporation, and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it, and may procure insurance thereon in its own behalf for its protection against such damages.” (1 Rev. Stat. of Mo. 1909, § 3151.)
The defendant invokes the rule that the courts of one state do not enforce the penal laws of another state. This court concurs in the view that the statute is compensatory and remedial, expressed by the supreme court of Missouri in the case of Campbell v. The Mo. Pac. Ry. Co., 121 Mo. 340, 25 S. W. 936. The rule invoked applies only to statutes entirely penal. (Machinery Co. v. Smith, 87 Kan. 331, 124 Pac. 441.)
The fact that the fire was. communicated by the defendant’s engine was vigorously contested. The fire occurred a short time after a mixed train drawn by engine No. 156 passed the factory going east early in the morning. The same engine going west the evening before threw fire when working steam. The defendant argues that proof of this fact was inadmissible, citing the case of Sprague v. Railway Co., 70 Kan. 359, 78 Pac. 828. The Sprague case dealt with the admissibility of proof that engines other than the one identified emitted sparks. In the opinion it was said:
“It may always be shown that the identified engine set other fires immediately before or after the fire of which complaint is made.” (p. 368.)
The defendant argues further that before such evidence should be admitted there should be proof of substantial identity of conditions, such as grade, load, and the like. In the case of A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354, it was said:
“All that is necessary in such a case is, that one or more of the essential elements in each of the proving facts shall be like one or more of the essential elements in the final fact to be proved.” (p. 374.)
In this case the essential fact common to the two incidents was the working of the exhaust, which causes sparks and cinders to fly.
The defendant presented evidence showing that the movement of the train was generally down grade, that steam is not worked when going down grade, and that the construction of the engine was such that it was impossible for it to throw fire unless working steam. The plaintiff produced proof that the engine was working steam when it passed the factory shortly before the fire was discovered, and produced proof of conditions accounting for the use of steam at that time and place.
The condition of the engine causing the fire was disputed, the weather conditions were disputed, and the combustibility of the materials where the fire originated was disputed, but, all the circumstances considered, an inference that the fire was communicated by the engine was legitimate.
The plaintiff was induced, by a motion of the defendant asking that it be done, to itemize his loss. Schedules were attached to the petition showing the materials used in constructing the factory building, their cost including freight, and the labor cost of erecting the building; showing the machinery placed in the building, its cost including freight and the cost of installation; and showing stock supplies, household goods, stationery, clothing, and other articles contained in the building, all duly itemized and valued. The plaintiff was the only witness on the subject of damages, the defendant not seeing fit to controvert his testimony. While the plaintiff testified in terms as to the market value of the factory as it stood, erected and equipped for operation, at the time of the fire, it did not appear that there was a market for chocolate fac tories in West Line, or in western Missouri, or elsewhere. In the nature of things there could not be, and the plaintiff testified that in estimating value he took into consideration, with other things, the specifications of his schedules, and arrived at an aggregate value by footing his schedules. The defendant argues that the witness was incompetent, and that the cost of constructing and equipping the factory could not be considered in proving value.
The case is the common one in which the property destroyed was not bought and sold on the market, had no market value, and consequently could not be valued by that standard. In such cases the real value is to be ascertained from such data as may be available. Cost is an element of such value, and a person having knowledge of the elements involved may testify to them and give his estimate of value.
Authorities are numerous. A good discussion of the subject may be found in a note in 62 Am. St. Rep. 791. Recent cases are, Fire Ass’n of Philadelphia v. Farmers’ Gin Co., 39 Okla. 162, 134 Pac. 443, decided in 1913, involving the destruction of a cotton gin and the machinery which it contained, and Murray v. Postal Telegraph-Cable Co., 210 Mass. 188, 96 N. E. 316, decided in 1911, involving the loss of a woman’s made-to-order gowns. A leading case is that of J. T. & K. W. Ry. Co. v. P. L. T. & M. Co., 27 Fla. 1, 9 South. 666, 17 L. R. A. 33, involving the destruction of a hotel and other buildings by fire communicated by a railway engine. In the opinion it was said:
“Wherever there is a well known or fixed market price for any property, the value of which is in controversy, it is proper in establishing the value to prove such market value; but in order to say of a thing that it has a market value, it is necessary that there shall be a market for such commodity; that is, a demand therefor, an ability, from such demand, to sell the same when a sale thereof is desired. Where, therefore, there is no demand for a thing — no ability to sell the same — then it can not be said to have a market value ‘at a time when, and at a place where’ there is no market for the same. ... In actions of this kind where the value of the properties destroyed is the criterion of the amount of damage to be awarded, and the property destroyed has no market value at the place of its destruction,-then all such pertinent facts and circumstances are admissible in evidence that tend to establish its real and ordinary value at the time of its destruction; such facts as will furnish the jury, who alone determine the amount, with such pertinent data as will enable them reasonably and intelligently to arrive at a fair valuation; and to this end the original market cost of the property; the manner in which it has been used; its general condition and quality; the percentage of its depreciation since its purchase or erection, from use, damage, age, decay, or otherwise, are all elements of proof proper to be submitted to the jury to aid them in ascertaining its value. And to establish value in such cases the opinions of witnesses acquainted with the standard value of such properties, are properly admissible. . . . Judge Cooley, in Continental Ins. Co. v. Horton, 28 Mich. 175, in speaking of evidence based on a knowledge of the purchase price of property, says: ‘The objection that the daughter of the plaintiff was allowed to testify to the value of articles burned, without having been shown to possess the proper knowledge to qualify her to speak as an expert, was not well taken. She testified that she bought a good many of the articles, and was present when others were bought. On this evidence she had some knowledge of values which it was proper she should communicate to the jury. The extent of that knowledge, and its sufficiency as a basis for a verdict, were to be tested by her examination, and by the good sense and judgment of the jurors.’ ” (pp. 120-122.)
The whole subject is covered by the decision of the following very simple case:
“The hay-rack was new. The appellee bought the material and made it himself, and to suit himself. It is not probable that he could have sold it for a fraction of what it cost. There was no person engaged in the business of dealing in such things, and so he very properly added the cost of the material to the value of his labor in making it, and gave the sum total as the value of the hay-rack.” (U. P., Denver, etc., Ry. Co. v. Williams, 3 Colo. App. 526, 529, 34 Pac. 731.)
The same principles have been recognized by this court. In the case of A. T. & S. F. Rld. Co. v. Stanford, 12 Kan. 354, it was said that property may have a value for which the plaintiff may recover if it be destroyed, although it may have no actual market value. In the case of K. C. & S. F. W. Rld. Co. v. Ehret, 41 Kan. 22, 20 Pac. 538, the question related to the value of a farm, a portion of which was condemned for a railroad right of way. In the opinion it was said:
“It is claimed that only such witnesses as know the market value of the land in question should be permitted to give opinions concerning its value, and that such opinions should be confined exclusively to market value. Now, this claim is certainly untenable. It is not the market value merely that is in question, nor the usable or productive value, but it is the real value. And this real value involves everything that tends to make the land more valuable or less valuable.” (p. 23.)
In Insurance Co. v. Payne, 57 Kan. 291, 46 Pac. 315, it was said that it may be proper to inquire into the cost of a building as tending to show its value, from the necessities of a particular case, and it was held that if witnesses to the worth of a building are shown, on cross-examination, to have little knowledge of the subject, the fact affects the weight of the evidence only, which should not be excluded on that account. In Carey v. Concrete Co., 88 Kan. 515, 518, 129 Pac. 191, it was held that the price is some evidence of value. In this case, the plaintiff, having purchased the material, machinery, and other articles, and having constructed and equipped the building, was a competent witness.
The principles just discussed apply to the proof of the values of certain household goods, clothing, pictures, and personal articles for which the jury allowed the plaintiff $225. Such articles are practically worthless as marketable commodities, but have an intrinsic value to the owner, which should be made good to him when destroyed by one responsible for the damage. The owner should not recover more than they are worth because they belong to him, but market price is not a just criterion.
The plaintiff complains that some articles are duplicated in the plaintiff’s schedules. A careful scrutiny of the testimony leads to the conclusion that the complaint is not well founded. Complaint is made because certain if ems were included in the schedules. While the verdict of the jury corresponds closely to the totals of the schedules, the plaintiff was not permitted to prove his damages item by item, and the proof of loss in the form in which it was given was such as to authorize the verdict of the jury.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The question presented is whether or not certain household goods were exempt from attachment for the payment of a debt.
J. M. Foster and Irene Foster are husband and wife. They have one child, and Mrs. Foster has a child by a former husband, who lives with her. Mrs. Foster conducts and manages in her own name a hotel in Gypsum City, in which the family described resides. The household furniture in the hotel belongs to her, and does not exceed in value the sum of five hundred dollars.
The plaintiffs commenced an action for the recovery of money against both the Fosters, and caused the household furniture referred to to be attached. Both defendants moved to discharge the attachment on the ground the property was exempt. The court sustained the motion, and the plaintiffs appeal. The argument is that J. M. Foster was the head of the family, that the property claimed as exempt did not belong to him, and consequently that the attachment should have been sustained.
The exemption act was passed in 1868, and is printed in the General Statutes of 1909 in the following form:
“§ 3649. Property exempt owned by head of family. § 4. Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property:
“First. The family Bible, school books, and family library.
“Second. Family pictures, and musical instruments used by the family.
“Third, A seat or pew in any church or place of public worship, and a lot in any burial-ground.
“Fourth, All the wearing apparel of the debtor and his family; all beds, bedsteads and bedding used by the debtor and his family; one cooking-stove and appendages, and all other cooking utensils and all other stoves and appendages necessary for the use of the debtor and his family; one sewing-machine, all spinning-wheels and looms and all other implements of industry, and all other household furniture not herein enumerated, not exceeding in value five hundred dollars.
“Fifth, Two cows, ten hogs, one yoke of oxen, and one horse or mule, or, in lieu of one yoke of oxen and one horse or mule, a span of horses or mules; twenty sheep, and the wool from the same, either in the raw material or manufactured into yarn or cloth.
“Sixth, The necessary food for the support of the stock mentioned in this section for one year, either provided or growing, or both, as the debtor may choose; also, one wagon, cart or dray, two plows, one drag, and other farming utensils, including harness and tackle for teams, not exceeding in value three hundred dollars.
“Seventh, The grain, meat, vegetables, groceries, and other provisions on hand, necessary for the support of the debtor and his family for one year, and also all the fuel on hand necessary for their use for one year.
“Eighth, The necessary tools and implements of any' mechanic, minor or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.
“Ninth, The library, implements, and office furniture of any professional man.”
The heading given the section, “Property exempt owned by head of family,” is the work of the compiler of the 1909 edition of the General Statutes. It is not found in the original or enrolled bills or in the statutes' of 1868, and should be disregarded.
The most casual consideration of the statute discloses that it was intended first of all to supplement the homestead exemption. A home which creditors could strip of the things essential to home maintenance would be a poor privilege, and consequently a minimum amount of property essential to family existence was exempted from seizure and sale for the payment of debts. It is a matter of common knowledge that the family library will quite certainly be made up of books contributed' by both husband and wife. The same is true with respect to musical instruments and household furniture, implements, and utensils,' and is likely to be true with respect to all property specified in the fifth, sixth, and seventh subdivisions of the statute. If family property not belonging to the person occupying the position of head of the family could be seized and sold the means of keeping the family intact would be destroyed and the purpose of the legislature in creating the exemption would be defeated.
With a single exception words of proprietorship are not found in the statute until the eighth subdivision is reached, which is not material here. In the fourth subdivision the exemption is extended to wearing apparel “of the debtor.” But the words quoted are followed immediately by the words “and his family,” and the statute contains various expressions indicating that a group of things identifiable as family property is exempt, no matter where the title to individual articles may rest: “used by the family,” “used by the debtor and his family,” “for the use of the debtor and his family,” “for the support of the debtor and his family,” “for their use.” Besides this, the exemption granted is not limited to cases of seizure and sale upon process directed against the head of the family. The head of the family shall have the articles of personal property specified exempt from seizure and sale upon any attachment, and this not because he owns them and not for his benefit, but because the legislature deemed them to be essential to family existence and welfare.
Of course, there can not be two exemptions, one to the husband and one to the wife, and any articles not embraced in the exempt group are subject to attachment against the owner. But it is as much a matter of indiiference to creditors whether acticles belonging to the exempt group be held in the wife’s name or in the husband’s name as it is whether title to the homestead be held by the wife or by the husband.
As early as 1868 the statutes of this state had given married women a position in the family quite inconsistent with the common-law notion of dominating headship in the husband. This inconsistency has since been greatly intensified. There is no statute such as may be found in some other states defining the term, “head of a family.” It is declared, however, that the phrase shall include any person who has charge of children, relatives, or others living with such person. (Gen Stat. 1868, ch. 104, § 1, subdiv. 29, Gen. Stat. 1909, § 9037, subdiv. 29.) There can be no doubt that under certain circumstances a woman may be the head of a family within the meaning of the exemption statute although she has a husband upon whom rests the marital duty of supporting and maintaining her, and in some cases, perhaps in this case, it might not be unreasonable to say that either spouse was the head-of a family to an extent authorizing an assertion of the exemption right.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff, by the guardian of his estate, filed his petition in the district court of Clark county June 26, 1913, alleging that the defendants formerly resided in that county and knew the plaintiff to be a person of unsound mind and incapable of managing his affairs, but nevertheless, about January 25, 1913, made what purported to be a sale to him of certain lots in the city of Ashland and executed a deed therefor, which was afterwards filed for record, 'and which purported to convey the lots to the plaintiff, subject to a mortgage of $1500, which by the terms of the deed he agreed to pay; that on the same day they caused him to execute to them a mortgage oh the same property for $3000 to secure certain notes, which mortgage also purported to be a lien on a certain note for $1310 executed by Thomas Robinson to the plaintiff; that on the same date the defendants caused the plaintiff to execute to Maggie A. Ross a general warranty deed for a half section of land in Clark county, subject to a mortgage of $500 due the state of Kansas; that the aggregate consideration received by the defendants was$7200, while the property received by the plaintiff did not exceed in value $2500; that the defendants took advantage of his mental condition and falsely misrepresented the condition of the property received by him and its rental value and their title, which was falsely represented to be good when it was in fact to their knowledge imperfect and unmarketable. He prayed that the defendants be enjoined from transferring any of the property received by them and tendered back the property, deed and conveyances received by him, and prayed that all the notes and mortgages received by the defendants be canceled and set aside and the parties have restored to them the property which they had before such purported exchange, and that the plaintiff recover costs and other proper equitable relief.
Summons was issued to the defendants in Neosho county, where they resided, and made returnable July 7, notifying them that they must answer on or before July 26. The summons was personally served on June 28, after which the defendants filed what they termed a special appearance, and thereafter certain proceedings were had resulting in a decree that the sale or exchange of property be set aside. The deed from Ross and wife to Randall and the note to Randall from them and the deed from Randall to Maggie A. Ross were adjudged and decreed to be void, and it was decreed that they be canceled of record and that a copy of the decree be filed and recorded in the office of the register of deeds of Clark county, and further, that the plaintiff’s title in and to the half section of Clark county and that of the defendants’ title to the lots, city of Ashland, be quieted, the defendants being adjudged to pay the costs.
The sole question presented by the appeal is that of jurisdiction, the defendants contending that the court failed to acquire jurisdiction over them because the action was one in personam and not in rem; that the decree sought by the petition was operative on the person of the defendants and not on the real estate; and that the suit is governed by section 55 of the civil code and not by section 48. It is further contended that the summons was void and should have been quashed because made so returnable that only nineteen days were left for answer. The plaintiff insists that the defendants made a general appearance by virtue of having practically filed a prsecipe for a copy of the pleadings to be taxed as costs, and also by the motion filed by them, and argues that the suit was brought in the proper county.
. Section 107 of the civil code requires that the answer shall be filed within twenty days after the day on which the summons is returnable. (Neitzel v. Hunter, 19 Kan. 221.) Excluding the return day, which was July 7, and including the answer day, which was July 26, but nineteen days would be left, July 6, ten days from the date of the summons, being Sunday. Section 62 of the civil code provides that the summons shall be served within ten days from its date, except when issued to another county, when it shall be made returnable in not less than ten nor more than sixty days from its date. Assuming for the moment that the motion to set aside the summons and quash the return was made on special appearance, such motion was based, not on the ground of shortness of time, but on the proposition that the defendants could not be served in Neosho county in answer to a petition filed in Clark county. The matter of time now complained of does not appear to have been brought to the attention of the trial court, but after the motion was ruled on, again assuming to appear specially, the defendants demurred to the petition for lack of jurisdiction, hence no prejudicial error is apparent in respect to the date of the answer day.
Section 48 of the civil code provides in substance that an action 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” must be brought in the county where the subject of the action is situated. Section 55 requires that every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned. If the action is governed by this section, then it was improperly brought in Clark county. If it is an action for the recovery of any estate or interest or the determination of any right or interest in any real estate or to bar any defendant therefrom, then it could only be brought in Clark county.
■ The question is not very clear, but an examination of the authorities may clarify the situation. In Neal v. Reynolds, 38 Kan. 432, 10 Pac. 785, it was held that one who seeks to rescind a contract for the exchange of real estate by an action brought in the county where the land is situated against persons residing in another county can not, after they have been summoned and appear in the action, amend by adding another cause of action for damages “and thus blend a local with a transitory cause of action.” (Syl. ¶ 1.) The action was held to be local, and that only for that reason could the defendant be compelled to litigate in the county where the land was situated. It appeared that the contract was for the exchange of real estate in Allen county for land in Missouri, the plaintiff being a resident of Allen county and the defendants residents of Douglas county. Warranty deeds had been exchanged before the action was brought. In Dillon v. Heller, 39 Kan. 599, 18 Pac. 693, holding that in an action to quiet title brought by one in possession against one residing out of the state service by publication gives jurisdiction, it was said that the action was one only in rem; that land of nonresident owners is attached and sold to pay debts, .and the court had the power to render the judgment prayed for in this instance. The rule declared in Close v. Wheaton, 65 Kan. 830, 70 Pac. 891, is that an action to compel specific performance of a contract to convey land, the obligation being without any element of trust, is in personam and must be brought in the county where the defendants reside, “and not of necessity in the county where the land is situated.” (Syl.) The language of section 48, already quoted, was referred to as not comprehensive enough to include suits to compel the performance of mere contracts to convey, and it was said that such suits were not brought to determine titles, although “of course if the defendant obeys the decree the title will pass, and the court may in proper cases order the decree to stand as a conveyance, . . . but, nevertheless, the object of the suit is not to determine the title, but to compel the defaulting party to abide his agreement.” (p. 834.) Fuller v. Horner, 69 Kan. 467, 77 Pac. 88, was an action by a creditor for relief on the ground of fraud, in which it was sought to set aside a fraudulent conveyance of the debtor’s property, and it was decided that it could be maintained in any jurisdiction where the guilty parties might be found, and that in such a case the court does not act upon the land but upon the parties to the fraud, and has authority to declare the conveyance void and to compel the defendants to do all things necessary to give full effect to the decree. It was held in Railway Co. v. Wynkoop, 73 Kan. 590, 85 Pac. 595, that a suit to-enjoin the undergrade crossing of a railroad operates in personam and is not one which must be brought in the-county where the subject of the action is situated. In the opinion it was said that not every action growing-out of a transaction concerning real estate is local, but that “where the decree sought is to operate on the pér-son, and not upon the real property, the location of the property indirectly affected is not material” (p. 593), citing Chief Justice Marshall in Massie v. Watts, 10 U. S. 148, where it was said:
“ ‘In a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not. within the jurisdiction of that court may be affected by the decree.’ (p. 160.)” (p. 593.)
In Martin v. Battey, 87 Kan. 582, 125 Pac. 88, holding that partition must be brought in the county where-the land is located and that such action could not include the interests of those who owned the land in a remote county but had no interest in the land where the suit was brought, it was said, referring to the quoted portion of section 48 of the civil code:
“So strict is this requirement that if a party seeks-to recover the possession of land and it consists of separate tracts in two or more counties separate actions must be brought in the counties where they are-situated. ... A party seeking to recover land can not compel another claiming interest in or title to-it to litigate the title in any county except where the land is situated. ... If the court is asked to act upon the person of the defendant the action may be-tried in any county where the defendant may be served and a lack of jurisdiction over him may be waived, but when the court is called upon to act upon real estate it is essential that the action shall be brought within the prescribed territorial jurisdiction, and if not brought there the court is without power to adjudicate the issues either with or without the consent of the parties.” (pp. 588-590.)
• “The action must be brought where the land lies if these two things concur: (1) If the subject of inquiry is a right or interest in the land; a'nd (2) if the judgment in the case will operate directly upon this right or interest. But the action, under this doctrine, is not within the rule, although its subject of inquiry is such right or interest, if the judgment operates merely in personam. The result is to distinguish actions Tor the determination’, of an interest in land from actions which involve the determination of such an interest, but will take effect in an injunction commanding defendant to do an act. which can be done by him within the jurisdiction of the court, or in a judgment for pecuniary damages for breach of a contract.” (40 Cyc. 59.)
In Hayes v. O’Brien et al., 149 Ill. 403, 37 N. E. 73, 23 L. R. A. 555, it was held that a suit to compel execution or cancellation of a deed to land may be within the jurisdiction of a court outside the county in, which "the land lies if it has jurisdiction of the person of the defendant. The land lay in Lake county and the suit was brought in Cook county, and it was held that when the relief sought does not require the court to deal directly with the land itself the proceeding does not affect the real estate within the meaning of the chancery act applicable, “and the court having the parties in interest all before it, may proceed, although the land to which the controversy relates may lie without the jurisdiction of the court.” (p. 410.) In State ex rel. Barrett v. District Court of Pine Co., 94 Minn. 370, 120 N. W. 869, 3 Ann. Cas. 725, an action to cancel a ■contract for the sale of land on the ground of fraud, and for the recovery of the purchase price, in which it did not appear that the vendors had the title to land, and in which no relief as to any real estate was involved, was held to be transitory and not local. The ■plaintiff alleged that the defendants had fraudulently procured a conveyance from him of certain land in Pine county which he sought to have canceled, together with a return of the purchase price. A demand for change of venue to Ramsey county, where the land was located, was denied, and mandamus to compel the transmission by the court of Pine county of the files to Ramsey county was brought. Close v. Wheaton, 65 Kan. 830, 70 Pac. 891, was cited with approval (p. 373), and it was held that the principal thing sought was the recovery of a money judgment, and that it did not appear that the defendant owned the land, that the contract was recorded, or that the decree would necessarily affect the title, hence the mandamus was denied.
From allegations of the petition it is clear that the relief sought consisted in preventing the defendants from transferring the land or the notes and mortgage, that the deeds, notes and mortgage executed to the defendants be canceled and set aside “and each of the parties restored to the property that they had before said purported exchange of properties,” and that the' plaintiff recover costs. Nothing was alleged as to possession, and no decree was asked quieting title. It was not asked that the defendants be required to reconvey or to perform any act whatever. The court was asked to decree the plaintiff into the status occupied by him before the alleged swindle, which in reality would be to hold the conveyance and the notes and security void, and to destroy their effect, which would and must be to leave the plaintiff’s title and land unaffected and unclouded, and to relieve him from all liability on the notes and mortgage, all of which seem to bring the case fairly within the rule of Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785.
By section 398 of the civil code a judgment for a conveyance would have had the effect of a conveyance, but here no conveyance was asked for.
“With the enactment of statutes permitting an equitable decree to have a direct effect on the estate or interest involved in the controversy, and with the gen•eral amalgamation of law and equity under the codes, the present tendency is to give this class of local equitable actions a much wider extent than formerly. Within it have been placed such actions as the following : A suit in equity to set aside a deed; ... an. action to declare plaintiff the owner of an undivided third of mining property, and to direct defendants to-execute to him a conveyance thereof; an action to establish a trust in certain lands with an incidental accounting.” (40 Cyc. 64, 65.)
“The real question in all these cases is as to the true náture of the action: Does it turn on the personal' obligation or on the title? Does it take immediate effect in personam or upon the interest in the land?' And the test here is found, not in any formal characteristic, but in the substantial nature of the action as. shown in the pleading, and the kind of judgment which' may be rendered.” (40 Cyc. 63.)
Each case must be decided according to its own-, characteristics. This one is painfully and perplexingly near the border line between local and transitory actions. A few changes in the pleadings might put it on the other side from the one now properly occupied.. But from a fair consideration of the two code provisions which seem to compel a holding that the action-is either local or transitory, and not both, and a practical view of the remedy sought, we are led to the conclusion in view of the authorities that the plaintiff, finding himself deprived of the ostensible title to and ownership of his land, and also apparently liable for a. debt seemingly secured by mortgage, with the instinctive desire to save his land and avoid such seeming-liability, applied to the court to exercise its jurisdiction — not in restoring him to possession, or in compelling the defendants to do or undo anything, but in decreeing away all the effects of the alleged swindle by-destroying all legal effect of the instruments which he- had been induced to execute, thus leaving him and his land clear from all cloud and embarrassment, as if the ■exchange had never been made. Essentially, if not formally, this relief consisted in determining a very vital interest in real estate and in barring the defendants from claiming entire ownership thereof.
The result is that the action, local in character, was rightfully brought in the county where the land is situated. This eliminates the necessity of considering the very interesting question of appearance presented by the record.
The decree is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover on two school bonds of $400 each, with coupons attached, issued January 1, 1890, due January 1, 1910. The certificate, signed by the district officers, and accompanying the bonds, recites that as the board of directors 'Of the district, in compliance with a petition, dated the 8th day of November, 1889, and signed by at least one-third of the qualified voters of the district, they ordered an election to be held on the 25th day of November, A. D. 1889, at the school house, for the purpose of voting upon the question of issuing the bonds of the district, for the purpose of funding outstanding indebtedness; that notices of the election, signed by the district clerk, were posted in five public places in the district, ten days before the day appointed for the election; that the election was held at the time and place announced in the notices, the polls being kept open from eight o’clock a. m. until six o’clock p. m., presided over by the proper officers, conducted as provided by law, and the returns made to the district board. The bonds recite that they were issued to refund the outstanding indebtedness of the school district, and were issued in conformity to and in compliance with chapter 50 of the Laws of 1879; and that all acts, conditions and things required to be done precedent to and in the issuing of the bonds, have been properly done, happened and performed in regular and due form as required by law. The certificate also recites that there were 140 persons, between the ages of five and twenty-one years, residing in the district; that the district contained 181/2 sections of land, 8471 acres of which were subject to taxation; that the property in the district, subject to taxation amounted to $78,018; and that the bonded indebtedness of the district, including the bonds above described, was $5800.
From oral evidence introduced, it appears that the bond election was called and held for the purpose of raising funds to complete the schoolhouse and clean up the schoolhouse yard. The county clerk’s record indicates that two sets of bonds were issued. One set of two bonds for $400 each appears to have been issued January 1, 1890, payable January 1, 1905, and cancelled February 6,1890. The other set of two bonds for $400 each appears not to have been canceled. The evidence clearly discloses that the bonds and unpaid coupons attached thereto were purchased by the plaintiff, in good faith, before maturity, for value, and without any notice of any defect therein. The proceeds of the bonds were not paid over to the school-district treasurer.
The answer alleges that the bonds were issued without authority, and contrary to the provisions of chapter 50 of the Laws of 1879, and that such lack of authority appears on the face of the bonds, and that they were not issued in conformity to and in compliance with, this chapter.
Judgment was rendered in favpr of the plaintiif. The defendant appeals, and urges several assignments of error, but all are embraced in this one question: Is the district liable on the bonds in controversy ?
One of the principal contentions of the defendant is that the certificate accompanying the bonds shows on its face that the bonds have not been legally issued. We fail to find where this argument is substantiated by the certificate. It is contended that the certificate' shows that the law under which the bonds purport to have been issued (Laws 1879, ch. 50) has not been complied with. What statement in the certificate shows that this chapter has not been complied with? After reading the certificate and the law we are unable to find any such statement in the certificate.
It is argued that the certificate shows that the bonds were issued under chapter 49 of the Laws of 1879. This argument is based on a statement found in the county clerk’s certificate, bn the back of the certificate of the school board, as follows:
“I have this day forwarded to the State Superintendent of Public Instruction the statement required by Sec. 4, Chap. 49, Laws 1879.”
This does not say that these bonds were issued under that chapter. It does not contradict the certificate of the school board which says that the bonds were issued under chapter 50 of the Laws of 1879.
The recitals in the bonds estop the defendant from saying that the bonds were illegally issued. This is an oft-repeated rule in the law of municipal securities. In South Hutchinson v. Barnum, 63 Kan. 872, 66 Pac. 1035, this court said:
“The city council of a city of the third class is the authority designated by law to determine whether all acts precedent to its right to issue funding bonds have been performed, and a recital in a funding bond that all such precedent acts have been performed, certified to by the mayor and clerk, concludes the city in an action by an innocent purchaser of such bonds or the coupons detached therefrom.” (Syl.)
The school board is the body to determine whether all acts precedent to its right to issue funding bonds have been performed.
Another case, closely analogous to the one under consideration, is The State v. Wichita County, 62 Kan. 494, 64 Pac. 45. In that case the county was held liable against the defense that the debt refunded was not bonded indebtedness of the county, and the county was not allowed to escape liability on the ground that the bonds issued exceeded in amount the limit prescribed by the refunding act. See, also, West Plains Tp. v. Sage, 69 Fed. 943, a case originating in this state and decided by the circuit court of appeals, eighth circuit. Also, see Howard v. Kiowa County, 73 Fed. 406.
In The State, ex rel., v. Comm’rs of Kiowa Co., 39 Kan. 657, 19 Pac. 925, this court said:
“The payment of negotiable county bonds in the hands of an innocent purchaser for value can not be avoided on the ground that the elections authorizing their issue were irregularly called and held, although the irregularities were such that, had the question been raised in the proper manner and at the proper time, such bonds would have been held invalid.” (Syl.)
The law is too well settled in this country, against the claims of the defendant, to permit this court to grant it what it now seeks as against the alleged improper conduct of its officers twenty-five years ago.
The trial court decided all controverted questions of fact and contested inferences against the defendant.
The judgment is affirmed.
Mason, J., not sitting.
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The opinion of the court was delivered by
Mason, J.:
Two actions aye involved, but as they have been heard together both here and in the district court, and as they are in all respects similar, only one of them will be discussed.
Thomas Lynn sued in Haskell county to foreclose a reál-estate mortgage given by B. M. McCue. The plaintiff obtained a judgment, which is not challenged. The Commonwealth Trust Company, a Missouri corporation having offices in St. Louis, which will hereinafter be referred to as the trust company, asserted a claim under a second mortgage, and the vital controversy is between that corporation on the one hand, and McCue and the receiver of the Kansas Construction & Irrigation Company (which will be called the construction • company) on the other. John Rice and the New England National Bank are judgment creditors of McCue, subsequent in time to the mortgages. Their interest lies in the defeat of the trust company’s claim by McCue. McCue’s contention is that the mortgage to the trust company was given as security for an indebtedness of the construction company, and he and the receive^ of the construction company maintain that the indebtedness was subject to deduction on account of usury, and to a counterclaim of damages for the conversion of collateral held by the trust company as security. The trust company contends that the claims of usury and conversion have been adjudicated and denied in earlier litigation. The trial court held that there had been no former adjudication, that no usury had been exacted, and in one sense at least that the trust company had not been guilty of conversion. It decided, however, that the salé of securities, on which the charge of conversion was based, was so conducted as to- entitle the debtors to a credit of $595,000, instead of what the'trust company allowed — $195,000: The trust company appeals from the-judgment rendered/ by reason of the allowance of this $400,000 additional credit; McCue and the receiver of the construction company appeal by reason of the disallowance of the claims of usury and conversion. •• ......
Detailed findings were made, and the facts found will be spoken of as established. The Scott City Northern Railroad Company was incorporated August-3, 1910. It'made a: contract with the construction company to build a line of railroad from Scott City to Winona, for which the construction company was to receive all the aid notes and bonds of the railroad company, all its stock that was not issued to municipalities, and its first-mortgage bonds to the amount of $825,000, the mortgage running to the trust company as trustee.' Under this contract the construction company received 4993 shares of the stock of the railroad company, aid notes and bonds amounting to $167,160, and the trustee held for its benefit $825,000 of the railroad company’s mortgage bonds. The construction company applied to the trust company for a loan of $400,000. The trust company refused to make the loan itself, but for a commission of $60,000 procured it to be made by The National Bank of Commerce of St. Louis, agreeing with the bank to find a purchaser for the note on demand, at the amount of principal and accrued , interest. The stock, aid notes and bonds, and railroad mortgage bonds already mentioned, were pledged as security for this $400,000 note, which was dated September 1, 1910, due in one year, bore interest at six per cent, and was signed by the construction company and also by McCue and E. A. Tennis, who were respectively its president and secretary. On October 20, 1910, the. trust company bought the note from the bank. . Between October 20, 1910, and July 1, 1911, the construction company borrowed from the trust company $190,000 upon its four notes drawing eight per cent interest. The same collateral was pledged as security for these notes.
About July 13, 1911, the five, original notes were surrendered, and in lieu of them, and also to cover an additional loan of $10,000, new notes, made payable to the bank, dated June 1, 1911, and due September 1, 1911, were executed as follows:
One note for $400,000, bearing six per cent interest, signed by McCue and Tennis, secured by a note for a like amount executed by the construction company to McCue and Tennis, which in turn was secured by the same collateral securing the original $400,000 note. McCue and his wife also gave as additional security to the note to the bank several real-estate mortgages, including the one sought by the trust company to be foreclosed in this action, and another upon lands in Anderson county.
Two notes for $100,000 each, signed by the construction company, and secured by the same collateral already referred to — the 4993 shares of stock in the railroad company, the aid notes and bonds, and the $825,-000 railroad mortgage bonds, which also secured the $400,000 note from the construction company to McCue and Tennis, which secured the $400,000 note from Mc-Cue and Tennis to the bank.
The trust company, as before, agreed to find a buyer for these notes on demand of the bank, and took up two of them in July, 1911, and the third in February, 1912. In all of these transactions the construction company was the real principal, and McCue and Tennis the sureties. The railroad was built at an expense of something over $180,000 in addition to the loans, for $600,-000.' The contract by which the stock, notes and bonds were pledged as collateral provided that they might be sold at public or private sale upon such notice as the holder might deem proper, and that the holder might become the purchaser at the sale.
On January 8, 1913, the trust company published a notice in the Times, a daily St. Louis newspaper, that it would on the 13th of that month sell the stocks, aid notes and bonds already described, for the purpose of satisfying the two notes for $100,000 each. On that date the property was offered for sale and bid in by Charles Campbell, an employee of the trust company, acting in its behalf, for $195,000. No notice of the sale was given to McCue, Tennis, or the construction company, and none of them knew anything of it. Campbell at once assigned the securities to the Ger-mania Trust Company, a corporation which was practically out of business, and which was controlled by the (Commonwealth) trust company. On the same day two of the railroad bonds were assigned to each of two employees of the trust company, and they, with the Germania company, signed a writing requesting the trust company to foreclose the mortgage at once. All the securities were afterwards assigned to the trust company.
The president of the trust company testified, 'in substance, that he believed the buyer under such a notice would take title to the property subject to the trust company’s lien upon it as security for the $400,000 note. Doubtless by reason of this testimony, and of the facts already stated, the trial court held that the sale was made subject to that lien, and gave the transaction the effect of a sale for $595,000. The statement so far made shows the basis of the claims made as to usury and conversion. McCue and the receiver of the construction company contend that the commission charged by the trust company for negotiating the $400,000 loan was in reality interest, and that the sale of the collateral was not conducted in good faith, and amounted to a conversion. What follows relates chiefly to the issue of former adjudication, although perhaps throwing some light upon the other questions.
In an action brought by the trust company in Logan county on January 27, 1913, a judgment was rendered foreclosing the railroad mortgage, upon which the railroad property was sold for $175,000 to the Colorado, Kansas & Oklahoma Railroad Company, a corporation owned or controlled by the trust company. McCue was made a party to this action, but filed no pleading. The trust company was made a party individually as well as in its capacity as trustee. The construction company filed an answer, raising the questions of usury and conversion substantially as those matters are presented in this case. The construction company (with other defendants) demanded a jury trial. The court announced that on account of the absence of W. M. Kinnison, who had been appointed receiver of thé construction company, it would not determine anything as to the rights of that company, but would hear such issues as were not triable by jury. Evidence was then taken and the court made findings with regard to the deposit of collateral for the security of the loans and the sale of the stock, notes and bonds so pledged, substantially as the facts have already been stated. Inferentially at least the court found against the claim of usury, for specific findings were made as to the amounts due on each of the three notes, the one for $400,000 and the two for $100,000 each, and that the contracts of pledge were valid. The court also stated in writing a number of conclusions of law, among which were that the purported sale of collateral was a nullity, that no conversion resulted, and that the trust company was still the holder of the stocks, notes and bonds as security for the balance due on the notes held by it, the construction company being the owner subject to that lien. The judgment recited that an immediate sale of the property had been petitioned for in accordance with the statute by a majority in amount of the holders of the bonds — a step required by the statute if a .sale is to be made within three years. (Gen. Stat. 1909, §§ 7022, 7023.)
On January 17, 1913 (all the dates in this paragraph being in the same year), .a petition was filed in the district court of Logan county, in the name of the state, asking the dissolution of the construction company, and an order was made appointing W. H. Wagner its receiver, in accordance with the statute. (Gen. Stat. 1909, § 1728.) A summons for the company was issued, to the sheriff of Finney county, by whom it was served on McCue, its president. The company on February 19 filed a motion to quash the service on the ground that the action was transitory, and not local, which was sustained on May 27. No further proceedings were ever had in the case. W. M. Kinnison was appointed receiver of the construction company by the district court of Finney county, on March 29, in an action brought by a creditor. Neither McCue, the construction company, nor Wagner were originally made parties to the action brought to foreclose the railroad mortgage. On March 7 McCue filed a motion asking that they, and the trust company in its individual capacity, and others named, be made defendants. On March 18 the court ordered that Wagner, as receiver, enter an appearance immediately; that the trust company individually should do the same, or if it did not, that the plaintiff should make it a party; and that McCue and the construction company (with others) were granted leave to file such intervening petitions or interpleas as they might desire on or before April 1. Wagner, as receiver, filed a general denial on March 31, and an amended answer alleging usury and conversion on May 27. The construction company filed an answer alleging usury and conversion on April 2.
The trust company contends that the proceedings of the Logan county district court just narrated constitute an adjudication that no usury was exacted, and that there was no conversion of the securities. It makes another claim of former adjudication based upon a judgment of the district court of Anderson county. In September, 1912, an action was brought in that county by the holder of a first mortgage on lands on which McCue had given a second mortgage to secure the $400,000 note held by the trust company. The trust company was made a defendant, and filed an answer asserting a lien of $400,000 against the land and asking that the proceeds of the sale be applied to it. McCue was served with summons, but made no appearance except by a motion after j udgment to set it aside, which was overruled. The decree recited that McCue was indebted to the trust company for $400,000 and interest, but no personal judgment against him was rendered or asked.
The rule that a judgment settles not only the matters actually litigated, but also those that might have been litigated, applies only where the same cause of action is sued on. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825; 23 Cyc. 1295-1297.) The trust company did not — in the sense which is here important — sue McCue in Anderson county upon the $400,000 note. It sued him upon the mortgage. It merely sought to have the proceeds of the sale of the Allen county land — or any surplus after the payment of the first mortgage — paid to it to apply on that note. In the present action the trust company declared upon its mortgage on the Haskell county land. McCue and the receiver of the construction company raised the issue as to what was owing on the $400,000 note by pleading, in effect, that it had been fully paid. That issue was not in fact contested in the Anderson county suit. A finding is an adjudication only as it is given effect in a judgment. (23 Cyc. 1227.) The recital in the journal entry of the amount due hardly seems to have entered into the substance of the judgment, which was that the residue of the proceeds of the sale, after satisfying prior liens, should be applied to the trust company’s mortgage. Until there had been some kind of an accounting, that was a proper disposition of it. The matter is determined; however, by another consideration. Neither the bank nor the trust company were originally parties to the action. Three amended petitions were filed, in the last of- which, filed January 7, 1913, they were made parties. McCue was served with a copy of the first, but not of the other two. The rule that a defendant who is served with summons must take notice of all subsequent proceedings is not of universal application. (Beekman v. Trower, 82 Kan. 327, 108 Pac. 110.) The answer of the trust cpmpany was filed January 14, 1913 (the day after the purported sale of the collateral). It' would have taken a supplemental pleading on the part of McCue to raise the issue of conversion. As to that issue the judgment, on any theory, was a correct declaration of the facts as they stood when the action was begun, when McCue was served, and when the trust company was made a party. In the absence of •some special reason to the contrary, the pleadings are deemed to speak as of the time of the commencement of the action. (Brown v. Galena Mining and Smelting Co., 32 Kan. 528, 4 Pac. 1013.) The Anderson county judgment, therefore, was at the most an adjudication of matters as they existed when the trust company was made a party, January 7, 1913, and did not conclude McCue as to the conversion. .
The action brought by the trust company in Logan county was originally one merely for the foreclosure of the mortgage on the railroad property for the benefit of the owners of the bonds, whoever they might be. The plaintiff as trustee had authority to bring it, and the question of who owned the bonds was important only because a sale within three years could not be made without the consent of a majority of them. The construction compány was made a party on motion of McCue, and raised the question of usury and conver sion. The findings on these matters could not constitute an adjudication against the construction company except as they induced and entered into a judgment. The judgment of foreclosure and immediate sale did not give these findings the effect of an adjudication, because that judgment was not influenced by them. To render such judgment it was necessary for the court to find that the trust company in its individual capacity was the holder of a majority in amount of the bonds. The court held the trust company individually to be the holder of the bonds in virtue of their being put up as collateral security for the notes it owned. It would equally have been their owner if their sale had been valid, or if it had been guilty of their conversion, for in the latter case the title would be deemed to have passed to the trust company, leaving it liable in damages to their pledgor. But the judgment did not stop there. The court not only ordered the sale of the railroad property, it provided, as it obviously had jurisdiction to do, for the distribution of the proceeds of the sale. Instead of providing for their payment to the trust company as trustee, for the benefit of the owners of the bonds, the decree provided that (after some minor obligations were satisfied) they should be devoted first to paying the trust company the amount found due on its notes, and that the residue be paid into court for the benefit of the construction company, or Wagner, its receiver. Therefore the court not only found, but adjudged, that the construction company was the owner of the bonds, subject to a lien of the trust company (in its individual capacity) for the sum due on the three notes (for $400,000, $100,000 and $100,000), that no usury had been charged, and that no conversion had taken place: This judgment is conclusive upon Mc.Cue and the construction company.
A more difficult question is whether the judgment also concludes Kinnison, as receiver of the construction company. He was appointed March 29, 1913. The construction company did not become a party to the foreclosure action until it filed a pleading, or until April 2, 1913. After the appointment of Kinnison as receiver no act of the company could operate to the prej u-dice of the creditors whose interests he represents, and he would not be bound by a judgment rendered against the corporation in an action to which he was not a party, begun during his receivership. The doubt in the matter arises from the anomalous attitude of Wagner. An order of the court named him as receiver of the construction company on January 17, 1913, on the filing of a petition against the corporation, the statute authorizing an appointment at that time. A summons was issued which was afterwards quashed, and the proT ceedings were then abandoned. If a subsequent service had been made, no doubt the appointment would have been good from the first, but as nothing further was ever done in the case the receiver was left without any action having been begun, and the appointment must be regarded as a nullity from the beginning. It is argued that Wagner was at least a receiver de facto, and that as he actually engaged in the litigation in that capacity another receiver ought not to be permitted to relitigate the same issues. The presence, of Wagner, however, did not affect the conduct or result of the case. He merely made the same contentions as receiver which-the construction company made for itself. And before the trial was begun the court recognized the existence of the other receiver and announced, in substance, that the issues in which he had an interest would not be tried in his absence, showing a purpose that his rights should not be affected by what was done in a case to which he was not a party. We conclude that Kinni-son as receiver is not estopped by what was done in the Logan county district court.
The question of usury appears to be purely one of fact. In form the original transaction between the construction company, the bank and the trust com pany was this: The construction company applied to the trust company for a loan of $400,000. The trust company at first considered making it, but finally re-refused to do so on the ground that the highest lawful rate of interest was not sufficient compensation in view of the risk involved. Then the trust company offered to procure the loan from the bank for a commission of $60,000, and the offer was accepted and carried out. To induce the bank to make the loan the trust company agreed to take it up at any time on demand of the bank, and within a short time did so. If the deal was just what it purported to be it was legitimate, the $60,000 was paid as a commission and not as interest, and did not constitute usury. (39 Cyc. 978, 980.) But if the various steps taken were a mere cover — if the trust company was the agent of the bank, or if the trust company really loaned its own money to the construction company through the bank, or borrowed the money itself from the bank and loaned it to the construction company — then the transaction was usurious. (39 Cyc. 922, 971.) There was much in the circumstances attending the affair, and in the correspondence of the parties, tending strongly to show that the bank was a mere figurehead in the matter. But this can not be said to have been conclusively proved. There was some oral testimony to the contrary, and the decision of the trial court against the claim of usury must be regarded as settling the matter.
The finding made by the trial court that the sale was valid and that there was no conversion was essentially (in view of the more specific and detailed findings) a conclusion of law, and is subject to review. The court did not find that the sale was valid, regarded as one made for $195,000, the amount of the bid, but that it was to be deemed a sale for $595,000, a view sustained by this reasoning: The transaction was completely controlled by the trust company. It was both seller and buyer. In each capacity it understood that the sale was for $195,000, subject to a lien of $400,000. Therefore, the sale must be deemed to have been made for $595,000, that being the amount the company as both buyer and seller had determined on as the selling price. No doubt this theory reaches a close approximation to a just result, but we find ourseívés unable to accept it in the present situation, and must decide whether the receiver of the construction company has a claim against the trust company for conversion.
We think the sale was obviously made in violation of the trust company’s duty to McCue and the construction company, and therefore amounted to a conversion, not because the pledgee was the buyer, but because it was not made fairly and in good faith. The contract of pledge authorized the trust company to béeome a bidder, and such agreements are upheld. (Chouteau v. Allen, 70 Mo. 290; Jones on Collateral Securities, §635.) But the circumstance that the pledgee bought at its own sale doubtless justifies an especially close scrutiny of the transaction, and at all events the utmost good faith must be shown. (31 Cyc. 879.) The trial court found that the purpose of the trust company was not to sell the collateral to the highest bidder, or for the largest amount available, but that it had a secret intention to retain a.lien upon it for $400,000. The evidence sustains the finding, and justifies the inference of a purpose to gain title to the securities without making a fair and reasonable credit upon the principal debt. The trust company was under no positive obligation to notify McCue or the construction company of the sale, but its omission to do so is a circumstance to be weighed with others in determining whether concealment was intended. That the trust company, being itself the real buyer, saw fit to take the title in some one else, might not of itself have any special significance. Considerations of convenience might have suggested that method of doing the business. But elaborate steps were taken (the details of which need not be gone into) to give the affair the appearance of an actual deal with a stranger, and the president of the trust company, who was active in the management of the transaction, in a deposition taken afterwards, testified that he did not know for whom Campbell was acting in buying in the property. This deception and concealment is fairly to be regarded as a part of the original plan, and is sufficient in view of all the circumstances to characterize the whole transaction as conducted in bad faith, in fraud of the rights of the pledgors, and as constituting a conversion. (Boam v. Cohen, ante, pp. 42, 46, 145 Pac. 559; Note, 43 L. R. A. 737; Note, 53 L. R. A. 865.) It is sometimes said that conversion only results when the pledgee has lost control of the property pledged, so that he can not restore it to the pledgor. (See note last cited.) That is doubtless true in many situations. But although the trust company at all times had actual dominion over the collateral, it can not (after having professed the contrary and after conditions have perhaps changed) avail itself of that fact to relieve itself of any of the consequences of its breach of faith. Nor is it necessary, in such circumstances as are here presented, for a pledgor to tender the amount of his debt in order to assert a claim for conversion. (31 Cyc. 844, 845, 881; 22 A. & E. Encycl. of L. 874; Note, 43 L. R. A, 759.)
Various remedies might be open for the wrong done, but under the peculiar complications that have arisen in this case, the receiver being the only party who is in a position to complain, the only remedy available seems to be the recovery, for the benefit of the creditors of the construction company, of damages measured by the loss occasioned to that company by the conversion in excess of its indebtedness on the notes. Should such amount exceed the legitimate claims of creditors, the surplus would of course not go to the construction company or its stockholders, but back to the trust company.
The trust company contends, and has consistently contended at all times, that the district court had no jurisdiction to entertain the claim of the receiver of the construction company. The trust company came into court to assert its lien against McCue’s land under the mortgage given as additional security for the $400,000 note executed by McCue. What amount, if anything, was due on that note depended upon the validity of the sale of the collaterals pledged for its payment (or pledged for the payment of the note for $400,-000 signed by the construction company, which nominally was pledged to the payment of the McCue note, but which the court found to be in fact the principal obligation). The full determination of that question could not be had without the presence of the construction company and of its receiver. The issues were properly made up for the settlement of the entire controversy. The decision that McCue and the construction company are estopped by the Logan county judgment does not deprive the court of jurisdiction to try the issues between the receiver and the trust company.
The judgment creditors of McCue (Rice and the New England National Bank of Kansas City) have liens only on the interest of McCue, and their claims are subordinate to that of the trust company.
The findings of fact made by the trial court, except so far as they state the legal effect of the sale of the securities, are approved. The judgment is affirmed as to the plaintiff; otherwise it is set aside, with direction^ to grant to the trust company the relief asked against McCue and to award to the receiver (for the benefit of the creditors) damages against the trust company in such sum as that company shall be found to have suffered from the conversion referred to. The plaintiff and the receiver will have judgment against the trust company for their costs on the appeal. The trust company will have judgment against McCue for one-half its costs. Otherwise the parties will pay their own costs.
Dawson, J., not sitting.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for breach of a contract to exchange property. A demurrer was sustained to the petition and the plaintiff appeals.
The defendant, owning a stock of hardware at Larned, agreed to trade it to the plaintiff for land in Logan county. The stock of hardware was to be taken at the invoice price, plus freight. The land was valued at $18,100 above two mortgages aggregating $7500. The contract concluded as follows:
“Provided however, that the said party of the second part can make arrangements whereby he may be able to complete this deal according to the following terms: C. E. Thorson,
First Party.
W. E. Ramey,
Second Party.
“This reserves the right for each man to be the judge as to representations made as to other’s property to either reject or accept.”
■ The controversy relates to the binding quality of this instrument.
A copy of the contract was attached to the petition, which alleged that the plaintiff made the necessary arrangements to complete the deal and notified the defendant that he was ready, able and willing to perform, all without notice of dissatisfaction on the defendant’s part, but that afterwards the defendant, without having made investigation or inquiry of any kind, refused to inform himself respecting the truthfulness of the plaintiff’s representations concerning the land, refused to judge the character of such representations, and without cause or excuse refused to perform, although the plaintiff’s representations were ■ true.
The proviso preceding the signatures ceased to be of importance when the plaintiff made arrangements to complete the deal and notified the defendant of-his ability and readiness to perform. The defendant not having previously withdrawn, tender of performance by the plaintiff rendered the contract mutually binding.
“A mere offer or a promise to buy or to sell, if not repugnant to the statute of frauds, and if accepted before revocation, may become a binding contract.” (Quinton v. Mulvane, 71 Kan. 687, 691, 81 Pac. 486.)
The proviso following the signatures did not give the defendant the arbitrary right to reject the plaintiff’s land. Judgment upon the plaintiff’s representations was required as a basis for rejection, and this meant fair and candid judgment such as honest and reasonable men exercise. (Hollingsworth v. Colthurst, 78 Kan. 455, 96 Pac. 851; Hodges v. Ferry & Co., 92 Kan. 21, 140 Pac. 102.)
The petition was amended to explain the form and meaning of the contract. The amendment went considerably beyond the situation and circumstances of the parties, and error was not committed in striking it out. Without the amendment the plaintiff could, of course, show the facts indicated.
Since the petition discloses a valid contract, the judgment of the district court is reversed and the cause is remanded with direction to overrule the demurrer to the petition.
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The opinion of the court was delivered by
Marshall, J.:
This action was commenced July 12, 1912, by the children of George Jenkins, who died in August, 1911, to set aside a deed executed July SI, 1900, by him to his wife, Flora Jenkins, because of the mental incapacity of George Jenkins. Fraud was alleged in the petition, but was abandoned in the trial, except that it is fraudulent to knowingly procure a deed from a person so unsound of mind as to be incapable of making one. The defendant pleads a general denial; that the deed was executed in consideration of love and affection and other good and valuable consideration; and that the action is barred by the statute of limitations. Judgment was rendered setting aside the deed. A demurrer to the petition and a demurrer to the evidence were overruled.
The appellant contends first, that the demurrer to the petition and the demurrer to the evidence should have been sustained; second, that there was error in the admission of evidence; third, that there was error in refusing to give certain instructions; and that there was error in giving instructions.
The appellant contends that the court erred in overruling the demurrer to the petition because (1) it fails to allege that George Jenkins was mentally incapable of transacting business at the time he executed the deed in controversy; (2) it is not alleged that appellant knew of the mental incapacity of George Jenkins on the day the deed was executed; (3) the allegation of fraud is a mere legal conclusion and is not a statement of fact; (4) it fails to allege that on the day the deed was executed George Jenkins did not know of its being filed for record and did not have knowledge or notice thereof after such date; (5) it fails to allege that George Jenkins was ignorant of the alleged fraud until a time within the period of the statute of limitations.
On the trial, fraud, except as there is fraud in procuring a deed from a person mentally incapable of making one, was abandoned. If the petition does not properly charge fraud, that question has become immaterial because of its abandonment. Outside the matter of fraud, and in addition to other matters, the petition alleges:
“That said George Jenkins was a very old and decrepit man and for many years previous to his death was of a weak mind and habit and was mentally incapable of attending to or transacting business and for a long time had been incapable by reason of mental incapacity of applying himself to and intelligently conducting his affairs, and was easily misled and imposed upon by persons inclined so to do. That the defendant well knew of the condition of mind of said George Jenkins and of his incapacity to transact business previous to July, 1900; and . . . prevailed upon and induced the said George Jenkins to sign and execute the pretended deed to said land, pretending to convey said land to her the defendant which said deed was. void and was without any consideration whatever.”
While the petition may be somewhat vague and indefinite, and might have been made definite and certain upon a proper motion therefor, as against a demurrer, it does sufficiently allege mental disability, and knowledge thereof on the part of the defendant on the day the deed was made and continuously thereafter, until the death of the grantor.
The appellant’s principal contention is that this action was barred by the statute of limitations at the time it was commenced. The petition alleges facts .that show George Jenkins to have been under a legal disability continuously at and from the time of the execution of the deed until his death. Sections 16 and 18 of the civil code provide that any person who may be under a legal disability when the cause of action accrues may bring his action within a specified time after the disability is removed. Under the petition George Jenkins’ disability was never removed, and therefore the statute did not run as to him in his lifetime. This case is closely analogous to Howard v. Carter, 71 Kan. 85, 80 Pac. 61. Here the law was stated as follows:
“The statute of .limitations will not run in favor of a person claiming under a deed made by one mentally unsound, or by one mentally weak, and under the undue influence of the grantee, while such conditions exist.” (Syl. ¶ 4.)
• (See, also, Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745, and Bank v. Day, 90 Kan. 506, 135 Pac. 584.)
Being under such a disability, recording the deed could not impart notice to him, and the statute did not run so as to bar his right of action to have the deed set aside, even though he had actual notice of the execution of the deed, as he did have when he signed it and' turned it over to his wife.
The next contention is that the court erred in the admission of nonexpert opinion evidence. This kind of evidence as to the soundness of mind of George. Jenkins was admitted, the witnesses detailing their means of observation and the acts and conduct of George Jenkins. This has been held competent evidence in repeated decisions of this court. (See the following: Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; Zirkle v. Leonard, 61 Kan. 636, 60 Pac. 318; Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92; Howard v. Carter, 71 Kan. 85, 80 Pac. 61; Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293; Fish v. Poorman, 85 Kan. 237, 116 Pac. 898.)
Complaint is made that evidence was admitted tending to show mistreatment of George Jenkins by the appellant. We fail to see how this could have harmed the appellant even if it was inadmissible.
Next it is contended that the demurrer to the evidence was erroneously overruled. The evidence tended to establish all of the material allegations of the petition. The same objections are urged to the evidence as are urged against the petition. If the petition is good, the demurrer to the evidence was properly overruled.
The next proposition argued is that thé court erred in refusing to give certain instructions concerning notice to the plaintiffs by the record of the deed in controversy. The difficulty with these instructions is that the plaintiffs did not have and could not have any right whatever to have this deed set aside until after the death of George Jenkins, and no statute of limitations could run as to these plaintiffs until after the death of George Jenkins. The instructions of the court concerning the mental incapacity of George Jenkins to make a deed, the continuation of that mental incapacity, the recording of the deed and the running of the statute of limitations were correct and fully covered the issues as made by the pleadings and established by the evidence.
The appellant contends that the instructions totally ignore the question as to whether or not the deed was fraudulently obtained by the grantee. In order to set aside a deed executed by a person of unsound mind to one who receives the deed with knowledge of the mental condition of the grantor, it is not necessary to allege nor prove any act of fraud on the part of the grantee other than that of knowingly accepting a deed from a person who is incapable of making a deed. It was not necessary to instruct' on this question of fraud. That question was not in the case. It had been abandoned.
This answers all the claims of appellant, except that she contends that the court erred in overruling her motion for a new trial. Under this it is claimed that there was improper conduct on the part of appellees’ counsel in argument to the jury. We have examined this argument as set out in the abstract of the appellant and find nothing therein upon which to base a reversal of the judgment. The jury found a general verdict in favor of the plaintiffs, and judgment was rendered thereon.
No reversible error appearing, the judgment is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
We would infer from the brief of counsel for plaintiffs in error that they probably do not think that there is very much in this case. They refer us to the record three times, but in no case do they give us the page. (Rule 2, 13 Kas. 5.) They refer us to the United States Statutes at Large; but .they neither give us the volume nor the page. They also refer us to “Kansas Valley Bank v. Rowell, 2 Dil lon, page —.” This we have found, though the page is not given.
Their first claim is, that the court below erred in rendering a judgment against Lewis Ornn, because (as they claim) he was not served with summons, and made no appearance in the case. The record however shows otherwise. A part of one of the journal entries reads as follows: “Now at this day this cause coming on to be heard upon the amended petition and proofs of plaintiff, and it appearing that service of summons has been lawfully made upon each of the defendants herein, and the parties being represented by counsel,” etc. And a part of another journal entry reads as follows: “The defendant Lewis Ornn not appearing, but being in default,” etc. Now these are findings by the court below of service of summons, and will be considered as true unless contradicted by some other portion of the record. But no other portion of the record, as brought to this court, does contradict them. We do not know that we have the whole of the record. Indeed, the presumption is pretty strong from what we have, and from the certificates of the clerk, that we have not got the whole of it. The transcript filed with the petition in error contained only the pleadings and such of the proceedings as were had by and before the court below at its September term in 1874. Afterward, and at the instance of the plaintiff in error, a copy of a summons with the indorsements thereon, and a copy of the proof of a publication service were filed in this court. But there is still nothing to show that there was not some other summons in this case, some other publication service, or some appearance by the defendant Lewis Ornn at some previous term of the court. There is nothing in fact which shows how much of'the record has not been brought to this court. There is nothing which shows upon what evidence the court below made said findings. Indeed, none of the evidence upon any subject seems to have been preserved, and consequently none of it has been brought to this court. We must therefore take the findings of the court below that there was service, and sufficient service, as true. But even if the court below had made no findings upon the subject, still it would be presumed until the contrary were shown, that the judgment was rendered upon sufficient service. And the contrary could not well be shown by the record without the introduction of the whole of the record. A want of service on the defendant, or of appearance on his part, cannot be presumed merely because of the absence from the record of proof of the same, unless the whole of the record is introduced.
The plaintiffs in error also, claim that the mortgage now sued on is void. They claim that it is void for the reason that it is' a mortgage upon real estate given to secure a debt concurrently created. The facts affecting this question are substantially as follows u The bank is a National Bank. Lewis Ornn owed it a large sum of money. To partially secure the payment thereof he gave a mortgage to the bank on some property owned by him in Chicago, Illinois. There was a prior lien of $2,000 on said Chicago property which Lewis Ornn agreed to pay. Five hundred dollars of the same afterward became due, and the bank, in order to save and protect its own lien on said Chicago property, and at the request of said Lewis Ornn, paid said sum of $500, and then took the note and mortgage now sued on for that amount on property situated in Crawford county, Kansas. We think the mortgage is valid. The taking of the mortgage under such circumstances was not a violation of the National Banking Law. We think the bank had a right to get all the security it could for money which it necessarily had to pay out. And therefore we do not think that the mortgage is void.
The judgment of the court below is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error brought his action in the district court of Jefferson county for the purpose of quieting his title to certain premises. He filed a petition making plaintiff in error, Patrick M. Lyon and S. S. Cooper defendants, in which he alleged that he was the owner and held the legal title to the premises, that they were unimproved and unoccupied by any one, and that the defendants were “setting up and claiming some estate and interest in and to said real estate adverse to his estate and interest.” The prayer was, that the defendants might be compelled to show and disclose their title or interest, and that it be adjudged void, and his title declared to be full and perfect. The separate answer of defendant Douglass contained, first, a general denial, and then what is called a cause of action and counterclaim against the plaintiff and his co-defendants, in which he alleges that he is the owner in fee simple, and in peaceable possession of the premises, and that the plaintiff and the co-defendants claim some interest adverse to him, the nature of which he is ignorant of, but which he avers to be null and void. He then alleges the execution of three tax-deeds, two of which are set out in full, claims the benefit of the statute of limitations as to them, and closes with this prayer for relief:
“Wherefore, by reason of the foregoing and other muniments of title, defendant prays that his title in and to said land, and his possession of the same, and his right to said possession, may be quieted, and that all claim and interest, or pretended claim and interest of said plaintiff may be determined and adjudged to be void,” etc.
To this answer, or at least to all except the general denial, a reply was filed, containing a general denial, and then pointing out specific objections to the tax-deeds. When the case was called the defendant objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action, which objection the court overruled, and defendant excepted. Was there error in this ? This it must be borne in mind is not an action under the statute. By § 594 of the code, a party in possession may maintain an action against any person who claims an adverse interest. But .possession in that section means actual possession. Eaton v. Giles, 5 Kas. 24. It would seem that this language was broad enough to cover any adverse claim, whether based upon color of title or not, though as that question is not before us we pass it for further consideration. Shepardson v. Supervisors, &c., 28 Wis. 593; Holbrook v. Winsor, 23 Mich. 394. Whether also it is necessary in a petition under that section to set out the nature of the defendant’s claim, and the grounds of its invalidity, or allege ignorance of its nature and pray a discovery, or sufficient simply to allege that the defendant claims an adverse interest, does not now demand a decision. See upon the question, Wales v. Grosvenor, 31 Wis. 681, and Holbrook v. Winsor, supra. Nor is this action brought under §118 of the Tax Law of 1868, (Gen. Stat., p. 1057.) That section authorizes an action to recover possession against any one placing a tax-deed on record. It is immaterial in such an action whether the holder of the tax-deed be in possession or not. Probably the statutory petition for the recovery of real estate would be sufficient in such case, and proof of the record of the tax-deed would be conclusive upon the matter of possession. Under that section a man in actual possession may maintain an action to- recover possession from one who was never on the land. The plaintiff in this case is proceeding independently of these statutes. He is seeking a character of relief not given under the old practice in courts of law, but only in courts of chancery, and he must show such a state of facts as under the rules of equity-practice would entitle him to relief. Would equity interfere upon the mere allegation that defendant had an adverse claim, investigate its nature, and determine as to its sufficiency? Clearly not. Only when it appeared that there was a cloud upon the title, would the chancellor act. If the adverse claim was based upon proceedings of record, void upon the face, and such as by no lapse of time or change of condition could become otherwise than thus void, there was no case for equitable interference. There must be something to “ cast doubt or suspicion upon the title, or seriously embarrass the owner, either in maintaining his rights, or in disposing of his property.” A deed from one who has no shadow of title casts no cloud. Stark v. Chitwood, 5 Kas. 141. “The rule is well settled, that when a defect appears upon the face of the record through which the opposite party can alone claim title, there is not such a cloud upon the title as to call for the equitable powers of the court to remove it. But when such claim appears to be valid upon the face of the record, and the defect can only be made to appear by extrinsic evidence, particularly if that evidence depends upon oral testimony to establish it, it presents a case for invoking the aid of a court of equity to remove it as a cloud upon the title.” Ward v. Dewey, 16 N. Y. 519. So also, where the claim rests upon proceedings which, however irregular, may result through lapse of time in an instrument, evidence prima facie or conclusive of the regularity of those proceedings, such as a tax-deed under our statutes. Hibernia S. & L. Society v. Ordway, 38 Cal. 679. See further upon these points, Mayor, &c., v. Meserole, 26 Wend. 132; Van Doren v. The Mayor, &c., 9 Paige, 388; Scott v. Onderdonk, 14 N. Y. 9; Hatch v. City of Buffalo, 38 N. Y. 276; Allen v. City of Buffalo, 39 N. Y. 386; Crooke v. Andrettis, 40 N. Y. 547; Levy v. Hart, 54 Barb. 248; Barron v. Robbins, 22 Mich. 35; Shepardson v. Supervisors, &c., 28 Wis. 593; Dunklin County v. Clark, 51 Mo. 60; Springer v. Rosette, 47 Ill. 223. If equity will not interfere in all cases of adverse claim, it would seem to follow that the petition should show something more than the mere fact that defendant makes an adverse claim. It ought to disclose such a state of facts as calls for the exercise of equitable jurisdiction. It should allege the nature of defendant’s title or claim, and show how it operates as a cloud; or, if it is'unknown, this should be alleged, and a discovery prayed. See in addition to authorities heretofore cited, King v. Higgins, 3 Or. 406; Wales v. Grosvenor, 31 Wis. 681; Holbrook v. Winsor, 23 Mich. 394. It is impossible to anticipate and therefore to notice all the circumstances and cases in which an adverse claim calls for the exercise of the powers of a court of chancery. All that can be said is, that it must appear that the plaintiff’s rights may be endangered unless the defendant’s claim is judicially determined to be null and void. If this claim is known, it should be disclosed, that the court may see the danger. If unknown, it should be alleged to be unknown, and the defendant called upon to disclose it. It is unnecessary to inquire what would be the result if the claim was alleged to be unknown and proved to be known. It seems to us therefore, that this petition, inasmuch as it fails to show the nature of the defendant’s claim, or allege ignorance of its character, is insufficient, and does not state a cause of action.
Was the defect waived by a failure to demur, or cured by an answer setting up title in defendant? We think not. The objection to the petition is not, that it is not sufficiently definite and certain, in which case a failure to move that it be made definite and certain waives the defect, but'that it wholly omits certain essential elements of a cause of action. This a failure to demur does not waive. Nor does the answer help the plaintiff. True, if the parties had without objection gone to trial upon the pleadings, it might perhaps have been thereafter too late to object. It may be that they would have been held bound by the issues they had' once accepted and tried, and been estopped to say that neither in the petition nor answer was there a sufficient statement of a cause of action to call for judicial determination. Plainly, there was a claim of title on both sides, and an allegation of possession on the part of the defendant, with a denial thereof on the part of the plaintiff. This cannot be deemed a case where the defect of the petition is cured by the allegations of the answer, for the allegation of the answer is of full title in defendant, based partially it is true upon certain tax deeds which may or may not be valid, but only partially upon such deeds, and is therefore an allegation inconsistent with the averment and claims of the petition, and if true entirely overthrows such petition. It seems to us therefore, that the objection was in time, and should have been sustained. For these reasons the judgment of the district court will be reversed, and the case remanded for further proceedings. As we cannot anticipate in what shape the case may be again (if at all) presented for trial, we shall not stop to examine the numerous tax-deeds offered in evidence, and the many questions arising thereon discussed by counsel in their briefs.
W. W Guthrie, for defendant in error,
in support of his motion for a rehearing, submitted: This motion is made upon the belief that the question of practice, upon which alone this court ordered a reversal, was not the full consideration to which this case was entitled, even should the court feel compelled to change what has been considered its former holdings upon such question of practice. It should be the policy of a supreme court to decide all questions necessarily involved in determining the case, which are contained in the record, at least when ordering a reversal; and rather to aid the final determination of controversies than to pass upon questions outside the merits of the controversy, and leave litigants in doubt-as to when their “day in court” shall end. In this case, while but one state of facts existed, each party, by his pleading, made an independent action for affirmatiye relief, and only the determination of both cases thus made could be an examination of the decision of that case presented in the record. Nuzum sued quia timet, standing on a full legal title, and the land vacant. Douglass answered, denying Nuzum’s case, and then by counterclaim sued quia timet, standing on a full legal title, and actual possession, and, as his title set up, (with proper exhibits) three several recorded tax-deeds. Nuzum by reply joined issue on thecase made, by Douglass. On trial, Nuzum tendered his patent in evidence, and proof of land being vacant, Douglass objected that the petition did not state a case, and over his objection the evidence was received. Douglass then offered evidence in support of his case, and which covers 100 pages of record, and Nuzum in rebuttal offered evidence. The district court found for Nuzum, and decreed that his title be quieted.
All the Justices concurring.
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.The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the Atchison, Topeka & Santa Eé Railroad Company against Joseph Williams, county treasurer of Butler county,, to restrain the collection of certain taxes. It appears from the record that on June 14th 1872, School District _No. 58 of said county issued five bonds for $200 each, to become due in one, two, three, four, and five years, respectively, and to draw interest from date at the rate of ten per cent, per annum. On March 5th 1873, the county superintendent of public instruction detached a portion of the territory of said school district from the district and attached the same to another district. By so doing school district No. 58 was left with only $14,672 worth of taxable property within its boundaries; and a two-per-cent, tax levied thereon would raise only $293.44. In 1872 a tax of $67.39 (and only that amount) was levied with which to pay the amount of the bond and interest coming due on June 14th 1873. In 1873 a tax of 55 mills on the dollar was levied on the property of said school district for the purpose of raising funds with which to pay the balance of said amount coming due June 14th 1873, and also to pay the amount coming due June 14th 1874. This 55-mill tax is the tax of which the railroad company now complains. They claim that said tax is void for the following reasons: They claim that the county superintendent of. public instruction had no authority, under any circumstances whatever, to diminish the territorial area of said school district to such an extent that it would require a tax to be levied on the property of the district for any given year of more than two per cent, on the taxable property of such district to raise funds for the payment of all bonded indebtedness due and coming, due against such district for that and previous years. They claim that the county superintendent did so diminish or attempt to diminish said school district, and that said 55-mill tax was levied on only the property of such diminished district. And therefore, as the tax was not levied on all the property of the district, as the district existed before the change, they claim that the tax is void. They also claim that said 55-mill tax was excessive; that it was more than enough to pay all the bonded indebtedness of the district for the years 1873 and 1874; and therefore, that it was void. We think they are mistaken in their legal conclusions. If the superintendent when he diminished the district had looked to the year 1873, and that year only, he would have found that during that year the amount of the bond and interest coming due would have .been $300, and that $67.39 of that amount had been provided for by a tax of the previous year, leaving only $232.61 to be provided for by a tax for the year 1873. But if the superintendent had looked to the year 1874, and to that year only, then he would have found that the amount of the bond and interest coming due during that year would have been only $280. Now, a tax of two per cent, on the taxable property of the diminished district would have raised, as we have before stated, $293.44, more than enough to pay the amount to be provided for for either of said years. We think however that the superintendent should have looked to the year 1874, and to that year only. It was the duty of the board of county commissioners of Butler county to have levied on the first Monday of September 1872 a tax on the taxable property of said school district sufficient to pay the amount coming due in 1873, to-wit, the said sum of $300, which sum was to become due June 14th 1873. (Gen. Stat. 1044, §72; Laws of 1872, p. 172, §3.) They should not have waited until September 1873 to levy a tax to pay a bond and interest which were to become due on June 14th 1873. On the first Monday of September 1873 they should have levied a tax on the then taxable property of the district to pay the amount of the bond and interest coming due on June 14th 1874. And this is the tax and the taxable property that the superintendent should have looked to when he changed the boundaries of the district in March 1873. The amount coming due on June 14th 1874, was, as we have before stated, $280, and a two-per-cent, tax on the taxable property of the diminished district would have raised that amount. We therefore think that the action of the county superintendent in diminishing said district was not void, and therefore the said tax of 55 mills on the dollar is not void.
For the purposes of this case we shall assume that said 55-mill tax was levied by the board of county commissioners on the taxable property of said school district on the first Monday of September 1873, although the record does not show definitely when it was levied, nor by whom. Said tax may possibly be slightly excessive, but still it is certainly not so much so as to render the tax void. It would take about 20 mills on the dollar to raise an amount sufficient to pay the indebtedness becoming due in 1873, and about 20 mills more to raise an amount sufficient to pay the indebtedness becoming due in 1874; and it would probably take about 10 mills more to cover delinquencies. If an amount more than necessary to pay the amount of the bonds and interest coming due in 1873 and 1874 should be collected before such last-mentioned amounts became due, which is not probable, the excess could and would be applied in .payments of the other bonds and the interest as the same should afterward become due. Sec. 5 of “An act to enable school districts in the state of Kansas to issue bonds,” approved February 26th 1866, (Gen. Stat. 940,) is § 1 of “An act to amend an act to enable • school districts in the state of Kansas to issue bonds,” approved February 27th 1871, (Laws of 1871, page 80,) and is §101 of the School Laws of 1871 (Supt. McCarty’s Edition, p. 29;) and it was repealed February 29th — March 21st — 1872; (Laws of 1872, p. 173, §6.) Hence said §5, or §1, or §101, whichever it may be called, can have but little force or influence in the decision of this case. We suppose that §1, chapter 110, of the laws of 1872, (page 248,) amending §10 of article 2, ch. 92 of the Gen. Stat., (page 915,) was, on March 5th 1873, and still is, in force. Said section provides that the county superintendent shall not reduce the territory of any school district so that more than two per cent, “upon its property-valuation shall be required to meet accruing interest and maturing bonds.” This is a guide purely to the county superintendent. The § 101 mentioned in that section, which relates to the duties of certain other officers, was repealed March 21st 1872, as we have already stated, by the act of February 29th 1872. Since March 21st 1872, there has been no statute limiting the amount of the tax which the county commissioners might or could levy on the property of a school district to pay the maturing bonds and interest of the district. (Laws of 1872, ch. 94, pp. 172,173.)
There are several questions involved in this case which we have not discussed or decided, some of which might perhaps be equally fatal to the plaintiff’s cause of action.
The judgment of the court below is affirmed,
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
On the 10th of June 1872, Decker & Bro. obtained a judgment before a justice of the peace against Josiah Sykes. Sykes obtained a stay of execution, Madden, defendant in error, going upon the undertaking therefor as surety. "When the stay expired, the judgment still remaining unpaid, the justice issued execution against Sykes as principal, and Madden as surety, as authorized by § 12 of ch. 88 of the laws of 1870, and placed the same in the hands of plaintiff in error, as constable. The latter, finding no property of the principal, levied as directed by the writ on certain personal property of the surety. The surety brought his action of replevin, claiming that said § 12 was unconstitutional, and that therefore the writ was no protection to the officer. The writ was in the exact form prescribed by the statute; so that the only inquiries in the case are, whether the proceedings before the justice of the peace were such as to warrant him in issuing an execution against the surety, and if not, whether that can be determined in an action of replevin against the officer. The latter question seems to be settled by the case of Westenberger v. Wheaton, 8 Kas. 169. In that case the Chief Justice, giving the opinion of the court, uses this language in reference to one portion of the statute: “The object of the clause, as drawn from its language, and from other parts of the section, as well as from the history of the action known as replevin, is to compel a party who desires to contest the validity of any judgment or order of a court, or any tax, fine or amercement, or any other mesne or final process, so to do in some other' way than by seizing property already in the custody of the law.” That language is appropriate to the facts of this case. Here was process issued from a magistrate having unquestionably jurisdiction of the subject-matter. It was in the form of final process — a writ of execution. It recited the fact of a judgment against one party, and also subsequent proceedings by another, and commanded the officer to levy upon the goods of these two parties. It was really a notice to the officer, that the magistrate had adjudged a liability against both the parties. It was final process, which he had issued upon proceedings had before him in matters within his jurisdiction. Now, whether he had erred or not in those proceedings and his adjudications thereon, was a question which under the authority cited could not be raised by an action of replevin against the officer. It was not a case, it may be remarked, where the writ reciting a judgment against “A.,” without any semblance of excuse therefor commands a levy upon the property of “B.” It recites proceedings against both “A.” and “B.,” and gives the officer no alternative but to obey the process or review the rulings of the magistrate. We think therefore, under the authority of that decision this action cannot be maintained. As the writer of this opinion was the counsel for the unsuccessful party in the Westenberger ease, and strenuously and honestly contended for an opposite doctrine, he is unwilling to do more than rest the decision of this case upon the authority of that.
As to the other question, it may be remarked that it seems clear from the authorities that it is within the power of the legislature to provide that the execution of a bond to stay, a judgment shall be taken as the confession of a new judgment upon which final process may issue at the end of the stay without further inquiry. See among many authorities, the following: Ramsey v. Luck, 3 Munford, (Va.) 434; Bank v. Patton, 5 How. (Miss.) 200; Brown v. Clarke, 4 How. (U.S.) 4; Cavender v. Heirs of Smith, 5 Iowa, 157; Buckman v. Williams, 10 Iredell, 126; Murray v. Edmonston, 6 Jones Law, (N. C.) 515; Williams v. Hall, 2 Dana, 97; Roberts v. Cross, 1 Sneed, 235; Hemigar v. Mee, 4 Sneed, 33; Morgan v. Coleman, 3 Head, 352; Cheatham v. Brien, 3 Head, 53; Robinson v. Yon, 8 Florida, 350. In some cases it would seem that the. old judgment was extinguished, and a new judgment entered upon the bond against both principal and stayor. In other cases the stayor simply became a party defendant to the existing judgment. It is immaterial which practice may prevail. The principle which underlies both is the same, that of judgment by confession. And surely, there is no constitutional inhibition upon such judgménts. The real question then is, whether the provisions of the statute can fairly be construed as making the proceedings of stay tantamount to a confession of judgment. It is clear that there is no express direction or authority to enter a formal judgment, and it is a matter of grave doubt whether further legislation be not necessary to warrant such an execution against one who has simply signed as surety an undertaking for a stay. We forbear however deciding that question until it is strictly before us.
The judgment will be reversed, and the case remanded with instructions to overrule the demurrer to the answer, and for further proceedings in accordance with the views herein expressed.
Kingman, C. J., concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin brought by Shoemaker, Miller & Co. against Wm. A. Simpson and others, for the recovery of twenty-six bars of railroad iron. The facts, stated briefly, are substantially as follows: Originally Shoemaker, Miller & Co. owned a large lot of railroad iron (including said twenty-six bars) at the state line, near Wyandotte. They intended to use said iron in building a railroad, which they had previously agreed to build for the Kansas Pacific Railway Company, (then Union Pacific Railway Company, Eastern Division,) from Junction City, westwardly. They employed said Kansas Pacific Railway Company to transport said iron from the state line westwardly to the place where they expected to use it. At the same time William A. Simpson (one of the defendants) owned certain town lots in the city of Lawrence, on the north side of the Kansas river, and between the said river and the Kansas Pacific Railway. Previously a railroad track had been constructed across said lots from the Kansas Pacific Railway to said river. But at this time, the iron which had originally been put on said track had been removed therefrom, and only the road-bed and cross-ties then remained. About this time the Kansas Pacific Railway Company, or its agents, took said twenty-six bars of iron from the iron of Shoemaker, Miller & Co. at the state line, transported them to Lawrence, and then spiked them down on the said cross-ties on the lots of said William A. Simpson. This was done by the Kansas Pacific Railway Company, or its agents, for the temporary purpose of obtaining some ninety car-loads of sand from the Kansas river, and it was intended to remove said iron as soon as the sand was obtained. This, was all done without the knowledge or consent of either Shoemaker, Miller & Co., or said Simpson. The railway company had however taken other iron from Shoemaker, Miller & Co. for which they subsequently settled, but the parties never, settled for this particular iron, and Shoemaker, Miller <fc Co. objected to the railway company taking or using their iron in any such manner. Afterward, said Simpson through his agents removed said twenty-six bars of iron from his said lots, claiming the same to be his own. Shoemaker, Miller & Co. then commenced this action, and replevied said twenty-six bars of iron from said Simpson and his agents, the other defendants. The action was tried in the court below by the court without a jury. The court made separate and special findings of fact and of law. Upon these findings the court rendered judgment for the defendants and against the plaintiffs.
We’think the court below erred. We know of no way by which an innocent person can be permanently and legally deprived of his property against his will by the wrongs and trespasses of others, so long as it remains within the power of such innocent person to reclaim his property without committing any serious or subgtantial injury to the person or property of any other person. In the present case the plaintiffs committed no wrong; and they never consented that their property should be taken from them, or used in the manner that it was used. The railway company committed the first wrong ■by taking and using the property of the plaintiffs in the manner they did. They committed a wrong against the •plaintiffs by taking their iron without their leave, and also committed a wrong against the defendants by putting the iron on defendants’ land without the defendants’ leave. But the defendants committed the second wrong by attempting to profit from the wrongs of the railway company, and by attempting to make the iron of innocent parties their own. And the wrong of the defendants was even greater than that of the railway company. The railway company attempted to deprive the plaintiffs of their property temporarily only. But the defendants attempted to deprive the plaintiffs of their property forever. But the wrongs of the railway company and the defendants, combined, can hardly cause the property of the plaintiffs to become the property of the defendants. The theory upon which the defendants claim that the property of the plaintiffs became their property is as follows: The said iron was spiked down to said cross-ties. It then became a part of the realty; and as the defendants owned -the realty, they therefore owned the iron. And they further claim that the subsequent removal of the iron from said cross-ties did not have the effect to change the property back from themselves to the plaintiffs. The whole question in this case therefore depends upon whether said twenty-six bars of iron became a part of the defendants’ real estate as between the plaintiffs and the defendants. If it did not become real estate at all, or if it did not become real estate as between the plaintiffs and defendants, then the plaintiffs must recover. It being real estate as between the defendants and the railway company, or as between the defendants and every other person in the world except the plaintiffs, would not enable the defendants to recover. Now we suppose, that where one person or one corporation owns both the road-bed of a railroad and the iron attached to it, the iron is unquestionably a part of the realty. And where a trespasser, not owning the road-bed, attaches his own iron to the road-bed, the iron immediately becomes a part of the realty, and belongs to the owner of the road-bed. But neither of these cases is the present case. It is sometimes very difficult under the peculiar circumstances of a particular case to determine whether a particular thing is a part of the realty or not. It does not depend upon one fact alone, but generally upon several facts. And among these facts are those of attachment to the soil, the intention of the parties, and those facts which enter in to show where the equities and justice of the case are. Even the nature and extent of the attachment have much weight in determining whether a given thing is a part of the realty or not. Even a trespasser may place his personal property on the soil of another, where no connection exists, without it becoming real estate, or without it becoming the property of the owner of the soil. While on the other hand, the owner of the soil might even steal the personal property of another, and so incorporate it into his real estate that it would become a part thereof, and could never be reclaimed by the owner. And between these two extremes there are infinite degrees and modes of attachment and connection of various things with the soil. Where the connection is slight, property is often considered personal property: whereas, if the connection were close and intimate it .would be considered real estate. ' But the other facts have a con trolling influence in determining whether a given thing is a part of the realty or not. A key to the door of a house is a fixture, and a part of the realty, although at the time it may not be at or near the premises to which it belongs. While on the other hand, annual crops, and a nursery of young trees .raised for sale, may not be a part of the realty, but only chattels, although most firmly and intimately attached to the very soil itself. Even dwelling-houses, or indeed anything placed by men upon the soil, if they can be again removed, either in bulk or in pieces, may under some circumstances be only chattels, although they may-be ever so firmly attached to the soil. The intention of the parties is one of the strongest elements in determining questions of this kind. This is often exemplified as between landlord and tenant, but it is not confined to them. Haven v. Emery, 33 N. H. 66; Dame v. Dame, 38 N. H. 429; Hunt v. Bay State Iron Co., 97 Mass. 279; Wagner v. C. & T. Rld. Co., 22 Ohio St. 563; Hines v. Ament, 43 Mo. 298; Fuller v. Tabor, 39 Me. 519. And so have equitable considerations a strong influence in determining questions of this kind. In equity, money is often considered as land-, and land as money. In Wisconsin it has been held, “that where rails have been placed along the line of an intended fence for the purpose of being laid into the fence, though not actually applied to that use, they pass by a deed of the land, there having been a manifest appropriation to the use of the land.” (Conklin v. Parsons, 1 Chandler, 240, 244.) While in Missouri it has been held that where a fence was put on another’s land, through a mistake of the boundary lines, the fence remained the personal propertwof the person who put it there. (Hines v. Ament, 43 Mo. 298. See also, Fuller v. Tabor, 39 Me. 519.) The Wisconsin and Missouri decisions are probably both correct. In the present case the connection between the iron and the real estate to which it was attached is not very close or intimate. The iron may be removed without substantial injury to either the iron or the real estate. And railroad iron, fastened down to the road-bed, as this was, does not necessarily become a part of the real estate. It may remain personal property. (Hunt v. Bay State Iron Co., 97 Mass. 279; Haven v. Emery, 38 N. H. 66.) It was never the intention of the plaintiffs that this iron should become a part of the defendants’ real estate. Indeed, no person ever had any such intention except the defendants themselves. The plaintiffs never intended to give this iron to the defendants. They never intended to abandon it to any person who might take possession of it. They never committed any trespass or wrong toward the defendants. ' And it would be against justice and equity to deprive them of their property. The defendants seem to specially rely upon the case of Sparks v. Spicer, 1 Lord Raymond, 738. This case was decided one hundred and seventy-eight years ago. The entire report of the case reads as follows: “Sparks vers. Spicer; Mich.: 10 Will. HI.; Per Holt, Chief Justice. If a man be hung in chains upon my land; after the body is consumed, I shall have gibbet and chain. Said upon a motion for a new trial.” Now the gibbet and chains probably belonged originally to the county, or the public; and it is probable that when a man was hung, the public never intended to reclaim the gibbet and chains, but intended to wholly abandon them to the owner of the land. This may have been so by special statute, or by special custom; and in either case it would prove nothing for the defendants. The report of the case certainly does not pretend to promulgate the doctrine, or even intimate, that the gibbet and chains would become real estate. The report does not show whether the consent of the owner of the land that the.man might be hung on his land, should first be obtained, or not; but in any case, the putting of the gibbet and chains on the land would be the voluntary act of the owner of the gibbet and chains, through its agents, the public officers, and therefore such owner should abide the consequences of its own acts, whatever they might be. A wrongdoer may lose his personal property by voluntarily attaching it to the land of another. A person not a wrongdoer, may, by his own consent, lose his personal property by attaching it or allowing it to be attached to the land of another. A person may even lose his personal property by wholly abandoning it to any person who may pick it up, although it may never be attached to any person’s real estate. And -an innocent person may sometimes against his consent lose his personal property by the same being incorporated into the real estate of some other person, so that it cannot be separated without great inconvenience and loss. But we do not think that any innocent person can be deprived of the title to his personal property against "his consent by having it attached without his consent to the real estate of another by a third person, where such personal property can be removed without any great inconvenience, and without any substantial injury to the real estate.
There is one other question involved in this case, presented by the defendants for our consideration. The plaintiffs did not make any demand for the property in controversy before they commenced this action; and the defendants now claim that because of such want of demand the plaintiffs cannot maintain their action. Now, a demand of the property before commencing an action of replevin is necessary only where the possession of the property by the defendant is rightful, or at least not wrongful, and where a demand is required to terminate such rightful possession, or-to convert what was previously an innocent possession into a wrongful one. A demand never was necessary in a replevin action where the possession of the property by the defendant was already wrongful without a demand. And all that is necessary to make the possession of the property of another wrongful in law, is, that the possession be without the authority of the owner, and inconsistent with his rights. We think it may be laid down as a rule, that whenever one person obtains the possession of the personal property of another without the consent of the owner, and then without any right which the law will recognize, asserts a claim to the property inconsistent with the owner’s right of property and right of possession, the possession of such person will immediately become illegal and wrongful, and no demand for the property will be required to be made by the owner before he commences an action of replevin for the recovery of the same, although the possessor thereof may ever so honestly entertain the belief that his claim to the property is both legal and just. An innocent owner of property is not to be subject to additional inconveniences and burdens, merely because some other-person may be innocent and ignorant. The innocence and ignorance of the person in possession of another’s property cannot in any manner abridge the legal rights of the owner thereof. The owner of property who has the present and existing right of possession is not to be postponed on account of the ignorance or innocence of some other person who claims adversely to him. Nor is such owner, if he commences an action of replevin for his property,-bound to tender an issue, or to litigate a question, founded merely upon the ignorance and innocence of the party who claims adversely to him. These views we think are sustained by the great weight of authority: Trudo v. Anderson, 10 Mich. 357; Ballou v. O’Brien, 20 Mich. 304; Clark v. Lewis, 35 Ill. 417; McNeill v. Arnold, 17 Ark. 155; McDonald v. Smith, 21 Ark. 422; Galvin v. Bacon, 11 Me. 28; Newell v. Newell, 34 Miss. 386; Smith v. McLean, 24 Iowa, 322. The last two cases decide that a defendant, by pleading title in himself, waives any right that he might otherwise have to claim that a previous demand should have been made for the property. Of course, replevin could not be maintained against a person who came innocently into the possession of the property, who never claimed any interest in the same, and who never disputed the owner’s right thereto. But if sued he should disclaim, and not set up title and right of possession in himself, as the defendants did in this case. With respect to the question of a necessity for a demand, where the defendant has come into the possession of the property with the consent of the owner, and then wrongfully claims the property as his own, we have not expressed any opinion, and shall not do so in this case. In the present case the defendants did not come into the pos session of the property with the consent of the owners; and after they got possession of it they claimed it as their own; and after this suit was commenced they set up in their answer an affirmative claim of title and right of possession in themselves; and they obtained a judgment to that effect in the court below. We think no demand was necessary in this case. Or at least we think there was no necessity for the plaintiffs, on the trial, to show by evidence that a demand was made for the property by the plaintiffs before the suit was commenced.
‘The judgment of the couyt below will be reversed, and cause remanded with the order that judgment be rendered on the findings of the court below in favor of the plaintiffs, and against the defendants.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is, whether a steer belonging to the plaintiff was exempt from seizure upon execution. The plaintiff, who was the head of a family, and engaged in farming, owned but one horse and this steer. It was about twenty months old, and had never been worked. He had contracted for a pair of steers, and intended to work them together. This one he had paid for and taken home; the other he had not. When the animal was taken on execution he replevied it, and having obtained possession of his mate, commenced working them together. The first time they were so yoked and worked was on the day of the trial before the justice, some few days after the seizure. Was it exempt? The district court evidently thought it was not, and charged the jury, that if it was used in good faith as a work animal, it was exempt, but if it was not, and had not been so used, it was not exempt. Was this ruling correct? The statute reads, “Two cows, ten hogs, one yoke of oxen, and one horse or mule, or, in lieu of one yoke of oxen and one horse or mule, a span of horses or mules; twenty sheep,” etc. Gen. Stat., p. 474, §3, fifth clause. It is well settled that exemption laws are to be liberally construed, though not of course that they should be so construed as to exempt articles obviously outside of the legislative purpose. Now the fact that this animal was not actually used, and had never been used as a work animal, does not seem to us properly decisive of the question of exemption. The expression, “yoke of oxen,” as used in an exemption statute, does not necessarily imply cattle already broke to work. If they are cattle intended by the owner for nse as work cattle, and old enough to be so used, it seems to us that they are fairly within the purview of the statute. A “horse” is exempt; but at what particular age an animal ceases to be a colt and becomes a horse, is not specified in the statute. Is he considered to be a colt, whatever his age, until broke to saddle, or harness? Or. does he become a horse, as soon as broke, no matter how young? One fair test, it would seem, is, that he is old enough to be worked, and bought or raised by the owner therefor. We find several decisions in other states which throw light on this case. In Carruth v. Grassie, 11 Gray, 211, under a statute exempting a cow, a heifer only twenty months old, and not giving milk for more than a year thereafter, was held to be exempt, it appearing that the owner Was raising it for his family cow. Under a like statute in Dow v. Smith, 7 Vt. 465, a heifer, forward with .calf, was declared exempt; and later, by the same court, in Freeman v. Carpenter, 10 Vt. 433, a heifer not with calf was also adjudged exempt. In Mundell v. Hammond, 40 Vt. 641, two calves less than a year.old were held to be exempt under a statute exempting a yoke of oxen or steers. See also construing exemption statutes, Harthouse v. Rikers, 1 Duer, 606; Wolfenbarger v. Standifer, 3 Sneed, 659. Under the ruling of the district court, a poor man, unable to purchase a. yoke of oxen already broken and trained to work, who should purchase a couple of young, unbroken cattle, although old enough to be worked, intending to break them himself and thus save that expense, could not hold them exempt, while his more prosperous neighbor who can afford to pay the added cost of breaking buys a yoke of cattle already broken, and holds them against his creditors. This does not seem like carrying out the spirit of the exemption law, which was intended for the benefit of the poor man, and should be construed as to secure protection to those most in need of it.
The judgment will be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring.
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TÉe opinion of the court was delivered by
Valentine, J.:
The plaintiffs in error claim that the court below erred in giving the first and second instructiqns to the jury, and in refusing to give the third instruction asked to be given by the plaintiffs in error, defendants below. The defendant in error claims that no error is shown by the record. Indeed, the defendant in error claims that the greater part of what the plaintiffs in error file in this court as the record of the case, is no part of the record whatever. We think no error is shown, for various reasons. The supposed record does not purport to contain all the instructions given, and hence we cannot consider the one refused. (Ferguson v. Graves, 12 Kas. 39.) The first instruction given was not excepted to, and hence we cannot consider it. (Wyandotte v. Noble, 8 Kas. 444; Norton v. Foster, 12 Kas. 45.) But none of the instructions given or refused are made a part of the record of the case. “ Instructions copied into a transcript, without having been made part of the record in the court below, are not part of the record .in this court, and cannot be examined.” (McArthur v. Mitchell, 7 Kas. 173.) Even “entering instructions upon the journal, and noting the exceptions thereto, does not make them a part of the record.” (Same case.) “Instructions not embodied in a formal bill of exceptions, nor signed by the judge of the court below, as provided by statute,'” (code, §§ 276, 303,) nor embodied in a case made for the supreme court, as provided by statute, (code, §§546 to 549; Laws of 1871, p.274,) “form no part of the record, and will not be considered by the supreme court.” (Moore v. Wade, 8 Kas. 381.) And “a paper found in the record, purporting to be a bill of exceptions, if not signed by the judge, cannot be noticed by the supreme court.” Waysman v. Updegraph, McCahon, 89. See also Gen. Stat. 686, Code, § 303. It is also necessary that a case made for the supreme court should be signed by the judge of the court below. (Code, §548; Laws of 1871, p. 274.) In the present case the instructions, or a portion of them, are found in the transcript brought to this court, but they aré not signed by the judge of the court below, and they are not evén embodied in any paper or proceeding signed by the judge of the court below. At what time they were filed in the case, is not shown. A bill of exceptions must be filed during the term, to be of any force or value. Code, § 300; Gallaher v. Southwood, 1 Kas., 143.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This case is stated by counsel for plaintiff in error, to be in all respects save one, similar to the case of the same plaintiff in error against Norton and others, heretofore decided by this court and reported in 13 Kas. 569. An examination of the record seems to support this statement of counsel; and as no brief is filed for the defendants in error, and no question made as to the correctness of the statement, we shall assume it to be true. It will be needless therefore to consider any of the questions considered in that case, either upon the hearing, or the motion for a rehearing, (ante, p. 236.) The point of difference is this: It appears that subsequent to the first proceedings of the city to assess and collect the special assessments, an injunction suit was brought to restrain the city from collecting said assessments, in which suit a final judgment was rendered as prayed for, enjoining the city from collecting said assessments, which judgment was not appealed from, and remains in full force and effect. Thereafter, to subject the lots to the payment of the same improvements, and after the curative legislation of 1872 noticed in the opinion in 13 Kas. 569, the city proceeded to a reassessment and relevy; and it is claimed that the former judgment operates, on the principle of res judicata, to prevent such reassessment and relevy. The defect in the prior proceedings was in this, that no estimate of the cost of the improvements was ever made by the city engineer, or submitted to the city council. It was not pretended that the improvements were not among the ordinary objects of municipal government; or that there was any fraud in the contracts; or that it was inequitable that the adjoining lots should bear the burden thereof; or any excessive expenditures, or any inequality or injustice in the. apportionment. There was simply the omission of one of the statutory prerequisites to a valid assessment. Now the in- ■ junction restrained any further proceedings to collect the tax under that assessment; but it does not appear that it went beyond that. The city is not disobeying that injunction. It has abandoned that assessment, and does not seek to collect any tax under it. But it is attempting, by new proceedings, and under new authority from the legislature, to charge upon and collect from the lots the cost of the improvements made in front of them. That this may be done, is clean In State v. City of Newark, 34 N. J. 36, a similar question was presented, and in deciding it the court uses this language: “The contention is, that this court having in 1863 set aside the assessment made against the prosecutor for the improvement in question, the judgment then pronounced cannot be nullified or rendered inoperative by act of the legislature. The legal proposition is undoubtedly correct. The judgment of a court of competent jurisdiction cannot be reversed, avoided, or set aside by the legislative power. The question here is, whether the act of 1868 properly considered, has the effect • ascribed to it. It must be borne in mind that the act does not revive or attempt to render valid the assessment which this court has declared illegal and set aside. It simply orders a new and independent assessment to be made to collect moneys which the city had expended for the benefit of the prosecutor and others. It leaves the judgment of the court upon the first assessment untotfched. Its effect is not to nullify the judgment of this court, but to reimburse the city, by means of a subsequent assessment, for moneys expended in improving a street. I know of no provision of the constitution which restrains the legislature from passing an act authorizing such an assessment, and thus compensate a municipality for benefits conferred.” See also, Howell v. City of Buffalo, 37 N. Y. 267; Mills v. Charlton, 29 Wis. 400. In this last case the court says: “ The reassessment of a tax, the proceedings for the collection of which have once failed, is not a reopening of the judgment by which such former proceedings were declared invalid. Such judgment remains a perpetual stay of the proceedings to enforce the first assessment; but it only affects that assessment, and does not operate upon new proceedings subsequently taken to reassess. It is a judgment merely in abatement of the original proceedings, and by which they are annulled, and not one affecting the groundwork or basis of the tax itself, upon which the legislature may again proceed in the exercise of its unrestricted power over the subject. The original proceedings having failed for reasons which the legislature may lawfully obviate, and the basis for taxation still remaining, namely, the public benefit or improvement received, for which the legislature say the property of the citizen should pay, a reassessment may be authorized.”
The judgment of the district court will be reversed, and * the case remanded with instructions to enter judgment in favor of the plaintiffs in error, defendants below. It is understood that the next three cases on the docket—City of Emporia v. N. Whittlesey and others, City of Emporia v. I. D. Fox and others, and City of Emporia v. H. Conner—are similar, and the same judgment will be entered in them.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Since the filing of the opinion in this case the plaintiff has filed a motion for a rehearing, challenging the propositions laid down by this court in the third paragraph of the syllabus, (ante, p. 277,) and contending that in consequence of the errors therein the decision of the case was also erroneous. That paragraph is as follows:
“ Where the indorsement of the note is in blank, and without date, and the allegation of the petition that it was indorsed before due is denied in the answer, and there is no evidence as to the date of the indorsement, any defense against the payer must also be held good against the indorser and holder.”
Upon a reexamination of the question, and a review of the authorities, we are satisfied that we were in error, and that the proposition as stated is not the law. The rule is the reverse. Where there is no evidence as to the date of an indorsement, the presumption of law is, that it was made before maturity, and that the holder is a bona fide holder for value. We overlooked this proposition, and noticed simply the issues. That this presumption exists, is abundantly supported by the authorities. In 1 Daniels on Negotiable Instruments, p. 608, is is said, that, “The mere possession of a negotiable instrument, produced in evidence by the indorsee, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value in the usual course of business, before maturity, and without notice of any circumstances impeaching its validity, and that he is the owner thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instrument, and proof that it is genuine, (where in deed such proof is necessary,) prima fade establishes his case; and he may there rest it.” And again, on page 610: “Countervailing proof, that the instrument was executed without consideration as between the original parties — as, for instance, where it was executed for accommodation as between them, or that the consideration, originally valid, has subsequently failed — does not impair the holder’s superiority of position, and he may still rest his case upon the instrument itself, from which it will still be presumed that he acquired it in a manner entitling him to stand upon the vantage-ground of a bona fide holder for value.” Parsons, (2 Pars. Notes and Bills, 9,) is equally emphatic: “It is undoubtedly a general presumption of law, that indorsed paper was indorsed before maturity. And a party who denies this, and alleges it was indorsed when over-due, must prove it; nor without this proof can he avail himself of the equities of defense.” The authorities cited in note l, by the author, fully sustain him. Take for example, Pinkerton v. Bailey, 8 Wend. 600, which holds: “ When the time of indorsement becomes material to let in the defense of payment, etc., it is incumbent upon the defendant to show it, and rebut the legal presumption arising from the face of the transaction.” Edwards on Bills and Notes, marg. page 278, points out the same result in the following words: “ Nothing appearing to the contrary, the presumption of law is, that the indorsement is cotemporaneous with the making of the note, or, at all events, antecedent to its becoming due.” See also, Story on Prom. Notes, 4th ed., § 381; James v. Chalmers, 6 N. Y. 209; Sperry v. Spaulding, 45 Cal. 544; Walker v. Davis, 33 Me. 516; Hall v. Allen, 37 Ind. 541; Sloan v. Union Banking Co., 67 Penn. St. 470; Pettis v. Westlake, 3 Scam. 535; Mobley v. Ryan, 14 Ill. 51. In this last case it is said, “ Where an indorsement is without date the presumption of law is, that it was made before the note became due. If the time of the indorsement becomes material for the purposes of defense, it is incumbent on the maker to show that it was made after the maturity of the instrument, and thereby destroy the legal presumption.” In Byles on Bills, p. 131, the law is thus stated: “The law in the absence of any evidence on the subject presumes a transfer to have been made before the bill was due.”
But it is scarcely necessary to multiply citations. The authorities are uniform. It follows therefore in this case, the notes and indorsements having been received in evidence without any proof of the date of the indorsements, that prima faoie the plaintiff held them discharged of all equities between the original parties. To obviate this conclusion, counsel for defendant say, that when it appears that paper was fraudulently issued, this presumption is overthrown, and the burden cast on the holder to show that he is a bona fide holder. Smith v. Sac County, 11 Wall. 139, is cited in support thereof. While the law may be as claimed, we do not think this a case where the rule applies. It does not appear to us that it can fairly be said that these notes were fraudulently issued. Coleman, Rahm & Co. had a just claim against the Iola company. That company sold the major part of its assets to the defendant. This was known. The managing men of the two companies were the same. Coleman, Rahm & Co. gave up their claim against the Iola company, and received the paper of the defendant. Part of this paper was assumed by the defendant as a payment for the assets purchased. The balance, including the notes in suit, was not. It does not appear that Coleman, Rahm & Co. knew of any distinction, or that they acted otherwise than in the best of faith. The case then as it now seems to us, stands in this condition: The plaintiff holds notes of the defendant discharged of all equities against the original parties. They were issued by the managing officers of defendant, though in excess of their actual authority, and for a debt for which the defendant was not responsible. They were therefore without consideration. This defense, though good against the original parties, is not good against a bona fide holder for value receiving the paper before maturity. It seems to us therefore that the district court erred in finding against the plaintiff, and that the judgment, instead of being affirmed, as was first ordered, should be reversed, and the case remanded for a new trial. i
We are under obligations to the learned counsel for plaintiff for calling our attention to the error into which we had fallen, and enabling us to correct it before it had passed into the reports, and thus through its general circulation possibly resulted in serious wrong. We are of course liable to make mistakes, especially under the pressure of so much business, and so many cases; and it is a source of pleasure, a satisfaction, to know that our proceedings are closely watched by able counsel, for it leads us to indulge the hope that we shall make no serious blunders without having our attention called to them.
The judgment will be reversed, and cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Burch, J.:
The action was one by joint school district No. 8 in Montgomery county, maintaining the Cherryvale high school, against the community high-school district of Labette county, for tuition of pupils from the community district attending the Cherry-vale high school. The answer admitted plaintiff’s claim, but the answer set up a counterclaim for tuition wrongfully charged to and paid by the community district, on account of tuition of pupils attending the Cherryvale high school as from the community district, when in fact they were from the Dennis rural high-school district. The counterclaim was allowed, and judgment was rendered for plaintiff for the portion of its claim above the amount of the counterclaim. Plaintiff appeals.
The counterclaim was for items improperly included in tuition vouchers for the years 1926-’27-’28-’29-’30. The fact that the community district had been paying tuition of pupils from the rural district was not discovered until 1931. In September, 1931, the superintendent of the Cherryvale high school, who was also clerk of the board of education, wrote a letter to the principal of the community school, giving assurance that adjustments which would-be right would be made, but nothing was done. The community district then felt obliged to withhold payment of tuition of its own pupils attending Cherryvale high school until the amount due would offset the sum the Cherryvale. high school was wrongfully detaining. The cash-basis law of 1933 brought matters to a head.
Cherryvale pleaded the statute of limitations as a bar of the counterclaim. To avoid the bar, the community district relied on constructive fraud, which was not discovered until the summer of 1931. The court made the following finding of fact:
“The court having heard the evidence, and from the admitted facts, and being now fully advised in the premises, finds that the amount claimed by joint school district No. 8, of Montgomery county, Kansas, known as Cherry-vale high school, was in the sum of $1,307.28, and that respondent is entitled by reason of constructive fraud on the part of claimant to a credit thereon in the sum of $815.60, leaving a balance due claimant in the sum of $491.68.”
The superintendent of Cherryvale testified that when pupils from Labette county appeared he took their names and the numbers of the school districts of Labette county in which they lived. He made no investigation to ascertain the correct residence of any pupil, but he sent lists of nonresident pupils to the county superintendent of Labette county for approval. When approved the lists were returned to the superintendent of Cherryvale, and at the proper time he would forward to the principal of the community school vouchers for tuition, verified as follows:
“John P. Sheffield, of lawful age, being duly sworn, upon oath says that he is the clerk of school district No. 8 of Montgomery county, Kansas, that the within statement of attendance of high-school students is correct for the months indicated on this report, and the amount of tuition claimed is correct and remains unpaid.
“Subscribed and sworn to before me,” etc.
The foregoing should have been the normal course of procedure, but the superintendent of Cherryvale was not certain it was followed. He could not remember the letter assuring the principal of the community school the tuition matter would be made right, until he was shown the letter. When he was asked about payment of tuition for pupils residing outside the community district, he refused to answer. Only one list of pupils approved by the county superintendent of Labette county was introduced in evidence, and that was for a year previous to organization of the rural district. In other respects the testimony of the superintendent of Cherryvale was unsatisfactory.
Cherryvale sought to excuse its collection of tuition from rural-district pupils from the community district on the ground the county superintendent of Labette county verified, or assumed to verify, the residences of pupils attending Cherryvale from Labette county.
When county high schools were disestablished and community high schools were created, it was provided that a community-district board of trustees should consist of six members, and the county superintendent should be ex-officio chairman of the board, with power to cast the deciding vote in case of a tie. (R. S. 72-2503.) The county superintendent bore no other relation to the community district board.
The tuition statute reads as follows:
“If any pupil, living within the boundary of said community high-school district, shall, with the approval of the county superintendent, attend any other high school, either approved or accredited, outside the boundaries of said community high school, the board of trustees of said community high school shall pay or cause to be paid into the treasury of the said high school which such pupil attends a tuition fee of two dollars per week for the time such pupil is in actual attendance at said high school; . . . Provided further, That the tuition above provided for shall be paid on the itemized and verified vouchers of the clerks of such boards, ...” (R. S. 72-2505.)
In approving attendance of community-district pupils at other high schools, the county superintendent acts as a county officer, and not as chairman of the board of a community district. So far as the evidence disclosed, the county superintendent of Labette county acted in his capacity as county superintendent in approving attendance of community-district pupils at Cherryvale. He had no authority to approve attendance of rural-district pupils at Cherryvale as coming from the community district. If he did so, his action was nugatory. But beyond this, there is room for the inference that lists were sent to him by Cherryvale, not for the purpose of having him verify residence of pupils, but for his statutory approval of attendance at Cherryvale of pupils from districts of his county.
It was admitted at the trial that the community district had been paying tuition to Cherryvale of rural-district pupils. This had been done in reliance upon the sworn vouchers of Cherryvale. The community board had no information on the subject except these vouchers, until the facts were discovered in the summer of 1931. After it was informed of the facts, Cherryvale continued to keep money which it knew did not belong to it, and having no moral ground for refusing to reimburse the community district and pro eeeding to collect tuition from its debtor, the rural district, Cherry-vale interposed the defense of the statute of limitations.
The parties agree on what constitutes constructive fraud. Intent to deceive is not necessary. All that is necessary is an act or omission in breach of legal or equitable duty, or of trust or confidence justly reposed, which is contrary to good conscience and takes undue and unconscientious advantage of another, or otherwise operates to his injury. (City of Clay Center v. Myers, 52 Kan. 363, 35 Pac. 25.) In this instance, the community district was privileged to rely, and did rely, on the incorrect vouchers, rendered under oath, and paid money which it should not have paid to Cherryvale, which in equity and good conscience Cherryvale ought not to keep.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to enjoin defendants from operating an undertaking establishment in a residential district in the city of Pittsburg. Judgment was for plaintiffs, and defendants have appealed.
The trial court found plaintiffs owned residence property occupied by them, or their tenants, in the immediate vicinity of the location of defendants’ undertaking establishment; that the property in question was owned by the defendant Israel, who had contracted to sell it to defendant Smith, and that it had been used exclusively as a residence for many years, until about May 10, 1933; and further found:
“5. That on or about September 14, 1932, the defendant, E. K. Smith, applied to the board of commissioners of the city of Pittsburg for a building permit, at which time he presented a copy of the minutes of the Pittsburg zoning board commission, in which they approved the building of a funeral home at 207 West Euclid, at which time the plaintiffs, F. F. Fink and A. B. Se'eley, protested against the building of the same; that after the plaintiffs and each of them objected and protested against the issuing of a permit for such purpose, and after the meeting of said board of commissioners, or on the following day, the defendant, E. K. Smith, secured a permit from the city clerk of the' city of Pittsburg, Kan., to remodel said residence building or to make additions thereto to be used as a church, and the value of said improvement was fixed at $1,500; that thereafter the said defendant, E. K. Smith, remodeled and added to the building now located at 207 West Euclid avenue, which building, after being remodeled, is, to all outward appearances, a private residence of the better sort, but the interior of which is constructed so that the same may be and is used for a funeral home and undertaking establishment; that said defendant, E. K. Smith, erected in front of and to the north of said funeral home two posts upon which were installed electric flood lights, and that on or about the 10th day of May, 1933, the said E. K. Smith moved his undertaking apparatus and business from the location on Broadway in said city to 207 West Euclid avenue into the building so remodeled, and since said time has been engaged in conducting a funeral home and undertaking establishment at said place; that since defendant began conducting an undertaking business and operated his funeral home at 207 West Euclid avenue dead bodies have been taken into said home during the day and night and some have remained in the building for several days at a time, and funerals have been conducted in said building, and mourners have gone to and from said building, and funeral processions have formed and driven away from said building; funeral services have been held there and bereaved relatives of deceased persons have' gone into and come out of said building and some of whom have given way to grief and lamentations and some have had to be' assisted to and from automobiles as a result thereof, and that by reason of such conditions it has been a constant reminder of death to plaintiffs and their families and they have been discommoded and have been made unhappy and their feelings and spirits have been depressed by reason of the conducting of said funeral home in said district and by reason of the thoughts of the dead in said establishment and the thoughts of embalming and other matters commonly associated in the minds of the average person with an undertaking establishment, and the plaintiffs and their homes and families are deprived of comfort, repose and enjoyment by reason thereof; that since the establishment of said funeral home flood lights have been turned on at night from about 7:30 p. m. until about 9:30 p.m., lighting up said funeral home and at times reflecting on and into the homes of said plaintiffs, F. F. Fink and H. W. Nesch, and by reason of the glare therefrom said plaintiffs have been inconvenienced, discommoded and depressed.
“6. That the said funeral home and undertaking establishment situated at 207 West Euclid avenue, being at the intersection of Euclid avenue and Walnut street, is in a district which has been for many years and now is a residence district.
“7. That by reason of the conducting of the funeral home and undertaking establishment in said place the value of the property of the plaintiffs and each of them will be depreciated approximately fifty per cent.”
The court concluded, as a matter of law, that the maintenance of the funeral home and undertaking establishment at 207 West Euclid avenue in Pittsburg, Kan., constitutes a nuisance to plaintiffs, and that they are entitled to a permanent injunction against the defendants.
The law pertaining to the action is well settled in this state (Leland v. Turner, 117 Kan. 294, 230 Pac. 1061; Hatcher v. Hitchcock, 129 Kan. 88, 281 Pac. 869; Weinmann v. Miles, 134 Kan. 107, 4 P. 2d 437). These authorities accord with the weight of recent decisions in other jurisdictions. In the annotation’ 87 A. L. R. 1061, 1062, it is said:
“The greater weight of recent authority is to the effect that the establishment and operation of an undertaking business in a purely residential section, under circumstances which would cause a depressed feeling to the families in the immediate neighborhood, and a constant reminder of death, appreciably impairing their happiness, or weakening their power to resist disease, and depreciating the value of their property, constitutes a nuisance.” (Citing many authorities.)
Appellants do not seriously contend the law is not as above stated, but argue that the location of the undertaking establishment in question is not in a purely residential district. Ordinarily this is a question of fact to be determined by the trial court. (See our authorities, supra.) We examine the question only to see if there is substantial, competent evidence to support the court’s findings. We have no difficulty in this case in saying there is such evidence.
Appellants argue that plaintiffs were guilty of laches in that this action was not brought until after the building had been remodeled to be used for an undertaking establishment and was in fact being so used. This argument overlooks the fact that defendant Smith camouflaged the purpose for which he was remodeling this building. He procured a permit to remodel the building “to be used as a church,” and so designed the exterior of the remodeled building as to appear like a residence of the better sort, while the interior was fitted up as an undertaking establishment. It is difficult to tell from his testimony whether the plan of the interior was changed after he procured his permit or not, since he testified both ways on the question, but the fact remains that the outward appearance of the building as it was being remodeled would not necessarily suggest to nearby residents that the interior was being constructed for an undertaking establishment. We find no room to apply the doctrine of laches here.
Sam Israel was not made a party defendant when the action was filed. Appellants argue that it was essential that the owner of the fee be a party defendant. His deed to the property was not of record. The fact that he owned the fee developed at the trial. Plaintiffs then obtained permission of the court and filed an amendment to their petition, making him a party defendant and alleging that he was the owner of the fee. Israel filed .a demurrer to the petition. This was overruled, and it does not appear that he pleaded further. Appellants complain' that he was thus made a party defendant. There was no error in the ruling. Our statute (R. S. 60-416) provides that when the determination of a controversy cannot be had without the presence of other parties the court must order them to be brought in. Another section (R. S. 60-759) authorizes the court to permit appropriate amendments to pleadings. There is no contention here that Israel did not have an opportunity to make any defense he had to the action.
Appellants contend they had the right to establish and maintain the undertaking establishment at the location in question because Smith had obtained a building permit and the authorization of the zoning board and his plans and specifications were approved by the building inspector of the city. His permit, as we have seen, was to remodel the building to be used as a church, not to be used as an undertaking establishment. The so-called authorization of the zoning board was made upon the petition of a few of the many residents of the vicinity who were the owners of but a few of the many residential properties in the immediate vicinity. It was not acted upon favorably by the governing body of the city. The building inspector, of course, had no authority to authorize anyone to maintain a nuisance as against these plaintiffs. (Hatcher v. Hitchcock, supra; Donaldson v. Powell, 123 Kan. 232, 254 Pac. 1033.)
Appellants complain of the admission of certain evidence. We have examined these contentions and find no error in the court’s ruling.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Miller, J.:
Michael L. Nixon appeals from an order entered by a judge of the district court of Johnson County, increasing the amount of child support fixed by a judge of the district court of Wyandotte County. For several reasons set forth in this opinion, we reverse.
Michael Nixon filed suit for divorce against Helga Nixon in Wyandotte District Court in April, 1975. Michael was then living in Wyandotte County; Helga and the couple’s two minor children resided in Johnson County. Helga moved for a change of venue; the motion was overruled. The case was tried on August 25, 1975, before Judge Wayne H. Phillips, in division 7, Wyandotte District Court. The parties were granted a divorce on the grounds of incompatibility; Helga was awarded custody of their two sons and Michael was ordered to pay monthly child support of $250, payable through the office of the clerk of the district court of Wyandotte County. Michael was also ordered to pay various debts of the parties, monthly alimony to Helga, and $550 to her attorneys. No appeal was taken. Helga filed motions in Wyandotte District Court for an order increasing child support in November, 1975, February, 1976, and September, 1976; all were heard and overruled.
Proceedings in Johnson County District Court, out of which this appeal arises, were commenced when Helga filed a document entitled “Motion” on October 18,1977. She attached a copy of the Wyandotte divorce decree and asked the Johnson District Court “to render the requisite jurisdiction and venue . . . [and] to increase the child support amount.” The Johnson court held a hearing on November 21,1977, found that Helga and the children were residing in Johnson County, determined that it had venue and jurisdiction of the subject matter and of the parties, and entered its order increasing child support to $375 per month payable through the Johnson County District Court Trustee’s office. Michael appeals.
Since statehood, the district court has been the trial court of general jurisdiction in this state. The first session of the Kansas legislature enacted Chapter XXII, Laws of 1861, which provides:
“The District Courts shall be courts of record, and, within their respective districts, shall have original jurisdiction in all civil cases whatever . . . .” 51.
The General Statutes of Kansas, 1868, Chapter 28, provide:
“There shall be in each county ... a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law) . . . .” § 1.
Our current statute, K.S.A. 1978 Supp. 20-301, provides:
“There shall be in each county a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law . . . .”
K.S.A. 60-607 provides that:
“An action for divorce . . . may be brought in the county in which the plaintiff is an actual resident at the time of filing the petition . . .
Our statutes dealing with divorce, separate maintenance, annulment, alimony, and domestic relations actions generally, are included within Article 16 of Chapter 60 of the Kansas Statutes Annotated. K.S.A. 60-1601 authorizes district courts to grant divorces on various grounds, including that of incompatibility. K.S.A. 1978 Supp. 60-1607 provides:
“(a) After a petition for divorce, annulment, or separate maintenance has been filed, the judge assigned to hear such action may, without requiring bond, make and enforce by attachment, orders covering the following matters:
“(3) providing for the custody of the minor children, and the support, if necessary, of either party and of the minor children during the pendency of the action . . . .”
K.S.A. 1978 Supp. 60-1610 provides in applicable part:
“A decree in an action under this article may include orders on the following matters:
“(d) Care of minor children. The court shall make provisions for the support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (ii) domicile of the child is in the state, or (in) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state. The court shall make provision for the custody of the minor children only when the court has jurisdiction to make a child custody decree under the provisions of the uniform child custody jurisdiction act.” (Emphasis supplied.)
The Uniform Child Custody Jurisdiction Act, K.S.A. 1978 Supp. 38-1301 et seq., provides:
“(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(1) This state (A) is the home state of the child at the time of commencement of the proceeding . . . ." § 38-1303.
From the foregoing statutory authority and upon the undisputed facts before us it is clear that the Wyandotte District Court had jurisdiction to entertain the original action for divorce, to award custody of the minor children, and to make provision for their support. Its jurisdiction to modify its custody and support orders is a continuing one so long as the children are minors. Is this jurisdiction exclusive?
Justice Kaul summarized the applicable law clearly and succinctly in Wheeler v. Wheeler, 196 Kan. 697, Syl. ¶[ 2, 414 P.2d 1 (1966):
“A court, which, in an action for divorce, makes an order, under the provisions of K.S.A. 60-1610(o), providing for the support of a minor child, retains jurisdiction of the matter of support to the exclusion of the jurisdiction of other courts of coordinate jurisdiction of this state.”
Counsel for Helga seek to distinguish the Wheeler decision on the grounds that one of the district courts involved in that action was proceeding under the Uniform Reciprocal Enforcement of Support Act, and she contends that the courts involved in Wheeler did not both have jurisdiction. Neither argument is persuasive. In Wheeler, the Shawnee District Court granted a divorce, awarded custody of a minor child, and fixed child support payments. Later, the mother moved to California where she commenced an action under the Uniform Reciprocal Enforcement of Support Act. The California court found a duty of support and transmitted the matter to the Johnson District Court since the father was then living in Johnson County, Kansas. The Johnson District Court took jurisdiction and entered an order fixing support, thus superimposing its order on that of the Shawnee County District Court. This we held it could not do and we reversed the Johnson District Court and directed it to transmit the matter to the Shawnee District Court for further proceedings.
Thus in Wheeler as in this case we have an attempt by the Johnson District Court to take jurisdiction of matters which by statute are under the continuing jurisdiction of another district court of this state.
The district court which first obtains jurisdiction of a divorce proceeding, and which grants a divorce or separate maintenance, awards custody of the child, and enters an order for its support, has continuing and exclusive jurisdiction within this state over the matter of child support. Although jurisdictional facts might exist which would give other Kansas courts jurisdiction, such other courts should decline to exercise jurisdiction in the interest of comity.
Michael Nixon is presently under order by two Kansas district courts to make support payments of different amounts through different courts in accordance with the separate orders entered. This illustrates one good reason for the rule.
It has long been the rule in this state, and is the general rule elsewhere, that the court of competent jurisdiction which first acquires jurisdiction retains it to the exclusion of any other court of concurrent jurisdiction. Shields v. Fink, Executrix, 190 Kan. 17, 372 P.2d 252 (1962); Hoard v. The Home State Bank, 176 Kan. 624, 272 P.2d 1054 (1954); Schaeffer v. Schaeffer, 175 Kan. 629, 266 P.2d 282 (1954). Stated another way, a court of coordinate jurisdiction should not attempt to interfere with pending proceedings already underway in a sister court. We should point out further that the Johnson District Court has been granted no appellate jurisdiction to review and modify judgments of other district courts within this state.
Finally, we should point out that K.S.A. 60-203 provides that a civil action is commenced by filing a petition with the clerk of the court. No petition has ever been filed in this matter in the Johnson District Court; thus, no action has been properly commenced in that court, and the proceedings are a nullity.
The judgment of Johnson District Court is reversed and the matter is remanded with directions to dismiss the proceeding.
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Per Curiam:
This is an appeal from convictions of two counts of aggravated kidnapping, two counts of rape, two counts of aggravated robbery, two counts of attempted first degree murder, two counts of aggravated burglary and the sentences given thereon.
The facts involved in the convictions center around three separate attacks on three separate victims. They will necessarily be somewhat extended, although we do not propose to give all the gruesome details. In presenting the facts the accused will be designated as defendant.
On November 17,1977, the first victim went to her apartment at 431 Pennsylvania Avenue in Wichita for lunch. A black male, later identified as the defendant, knocked on her door and asked where another person lived. She told him she did not know the individual, and suggested he go next door and ask. The defendant then pushed his way inside, shoving the victim to the floor. As a result of the defendant’s forced entry, she sustained a split lip, shoulder sprain, and a head wound. The defendant then told her to lock the front door which she did. He pulled a knife with a six inch blade, forced the victim into the bedroom and told her to disrobe. She disrobed at knife point. The defendant demanded money. The victim dumped her purse on the floor and gave the defendant $3.00 in change. He then told her to lie down on the couch and with knife in hand, raped her. After completing the act the defendant directed the victim from room to room searching for more money. He then returned her to the couch where he again raped her at knife point. He directed her to dress and drive him somewhere. The defendant took his victim to her car and directed that she drive him around. She was admonished not to call the police. He eventually directed her to 24th and Lorraine in Wichita, where he got out of the car. She gave a description of her assailant to the Wichita Police Department.
The victim tentatively identified the defendant, who was lightly bearded when he attacked her but clean shaven at the lineup. She positively identified the defendant at trial.
The second victim was sleeping at her home at 446 Cleveland in Wichita at 11:00 a.m. on December 12, 1977, when a black male knocked on her door. The man, later identified as the defendant, asked if Pete was there, then asked to use her phone. When told that she did not have a phone, the defendant grabbed her wrist and forced his way into her apartment. He locked the door and forced the victim to the bedroom, striking her with his fist. He then produced a knife with a six inch blade and told her to lie on the bed so that he could rape her. The victim advised the defendant that it was “that time of the month.” He disrobed her to verify her statement, then bound her hands and searched her apartment for valuables.
The defendant then untied the victim, seated her on a chair, and forced her at knife point to take a white pill of some sort. He then took her back into the bedroom, forced her to the bed, and fondled her. The victim positively identified the defendant at trial and at a pretrial lineup.
On December 28, 1977, the third victim was getting ready to take her young daughter to the babysitter and go to work when a black male knocked on the door and asked to use the phone. He was let in the apartment for that purpose. He then lunged at the victim’s throat and began choking her. She struggled briefly but ceased in order to avoid further serious injury. The defendant went through her purse, took her money and rummaged through the house in search of more valuables. In response to the victim’s pleas to leave her and her daughter alone, the defendant struck her. She obeyed the defendant’s command to strip. He demanded her wedding ring, her engagement ring and her watch. Then, with a screwdriver in his hand, the defendant proceeded to rape the victim.
The defendant wanted the victim’s Lloyds AM-FM Stereo. He told her to take the stereo out to her car, and that if she did anything he would kill her daughter. The victim was forced to tie up her daughter with speaker wires. The defendant then tied up the victim and gagged both of them. After expressing displeasure because the victim could stand up, he told her and her daughter to lie on the bed and placed two chairs over them to prevent movement.
At the foot of the victim’s bed was a box of Christmas decorations. The defendant lit a number of matches and dropped them into the box, setting the contents on fire. He then set another box of papers on fire, pulled a desk across the bedroom door and left. When a relative of the victim called shortly thereafter, she managed to knock the receiver off the hook and ask for help. The police were notified and the fires set by the defendant were put out. The victim described her assailant and his apparel to the police. She also identified the defendant at trial as her assailant.
Other facts will be stated as we discuss the issues to which they apply.
The defendant has appealed from the convictions on numerous grounds.
1. The appellant first contends that the trial court erred in admitting evidence seized from 449 Indiana on December 28, 1977, under a search warrant which he claims relied in part on information gathered during an illegal entry and search of appellant’s apartment, and was therefore inadmissible under the “fruit of the poisonous tree” doctrine.
A determination of this issue requires facts not directly pertaining to the crimes previously presented.
At 8:47 a.m. on December 28, 1977, Wichita Police Officer Bolinger received a report of the third victim’s rape. He checked the neighborhood of 1414 East Third, and received a radio call from Officer Krist, who advised that a person fitting the suspect’s description lived at 449 Cleveland. The description, taken from the victim by Officer Merrell, included the fact that her Chrysler automobile and stereo were missing. About the time the defendant’s residence was located, the victim’s Chrysler automobile was found abandoned at Third and Ohio Streets with none of the missing property inside. Officer Krist subsequently contacted the officers who had assembled at 449 Cleveland and advised them that the correct address was actually 449 Indiana, one block west of Cleveland. The officers proceeded there and approached the front door. Officer Patrick knocked loudly on the door, commenting that he heard something inside. Minutes later Officer Bolinger went around to the rear door of the residence and opened the screen door.
As he attempted to look into the window in the door, he pushed his head against it and the door opened. At that time, believing someone to be inside, he went in. He was joined by Officer Patrick who went inside with him. The officers searched the inside for the appellant and after finding no one they left the dwelling. Before leaving, Officer Bolinger observed a key ring, some welding gloves, and a man’s billfold lying on top of the television in the living room. Bolinger felt the keys might be those still missing from the third victim’s apartment, and mentioned those keys to Detective Allen who arrived later at the scene.
Detective Allen was advised the victim had identified a mugshot of the appellant, Richard Williams, as her assailant. He was also advised by Detective King and Officer Bolinger of details of the crime and the officers’ earlier attempt to arrest the appellant at his house. Detective Allen and an assistant district attorney who accompanied him to the scene returned to the district attorney’s office where a search warrant was drawn for 449 Indiana. A search warrant was obtained based on Detective Allen’s affidavit.
Seized during execution of the search warrant at the defendant’s residence that afternoon were items introduced as exhibits.
The objection made by appellant’s counsel reads:
“Your Honor, my objection to these exhibits and the photographs that they depict is strictly on the ground that they’re inadmissible because there was no probable cause for Officer Bolinger to have not only gotten in the door but to have had an opportunity to observe the keys as depicted in State’s proposed Exhibit 73.”
Over the objection of the State as untimely the trial court entertained appellant’s motion but denied it for reasons stated:
“At that time the initial intrusion was not an intrusion, based on the evidence before the Court, for a search of items, but for a search of a person upon which there would have been probable cause for such an entry and search in view of the evidence on the record.
“Second, that the discovery of the evidence was inadvertent as indicated and testified to by Officer Bolinger who said he was looking for the person of Richard D. Williams.”
The trial court summarized the evidence pertinent to its ruling on the motion as follows:
“The evidence summarized, or a portion of the evidence summarized, dealing with matters that preceded the issuance of a search warrant for items of personal property were that officers of the Wichita Police Department, based on information given them by an alleged rape victim in a very short period of time, the rape victim having identified a photograph of Richard D. Williams, proceeded to the residence of Richard D. Williams, and in knocking at the front door one of the officers who is before the Court heard what he thought was a sound of someone inside. I think that the entry in the back door in the manner indicated, or probably in any manner, would have been proper at that point in a search'for the individual, Richard D. Williams.”
The trial court made the following comments concerning the search warrant affidavit of Detective Allen:
“I would call special attention to the testimony of Detective Allen, that in his determination about procuring or attempting to procure a search warrant for physical items after entry had been gained looking for the person of Richard D. Williams, that he, Detective Allen, said that what information he has about the keys from Officer Bolinger, or whatever source, was vague and that they had no significance at all in relating that information to the Court in the application for a search warrant.”
We are forced to agree with the conclusion of the trial court. The search warrant obtained on Detective Allen’s affidavit was not “tainted” by the officer’s initial entry.
Even though we assume the illegality of the search of defendant’s apartment we would be forced to recognize the limitation this court has placed on the “fruit of the poisonous tree” doctrine. In State v. Childers, 222 Kan. 32,563 P.2d 999 (1977), we stated at pages 40-41 of the opinion:
“Assuming the illegality of the search, the question narrows to one of determining whether defendant’s statements were brought about by that illegality rather than by means sufficiently distinguishable to be purged of the primary taint. . . . The doctrine is inapplicable, however, where the state learns of the evidence from an independent source or where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. . . . [T]he issue whether challenged evidence was so connected with an illegal search as to be tainted was presented on a motion to suppress. . . .
“ . . This was the issue of fact which had to be determined by the district court at the hearing on the motion to suppress.’ ”
2. The appellant further contends the affidavit on which the search warrant was obtained was insufficient to provide probable cause that the items listed could be found inside appellant’s residence.
The affidavit stated the following facts: The third victim identified the defendant by mug-shot as her assailant and her car was found abandoned a few blocks from the appellant’s house, minutes after it was stolen. The car did not contain the stereo or any other property taken from the victim’s apartment, although she herself placed the stereo in the car at the direction of defendant. The defendant’s car was parked at his residence at 449 Indiana.
In considering whether statements contained in an affidavit are sufficient to show probable cause for a search warrant, this court has stated in State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977):
“Sufficient facts must be placed before the issuing magistrate to enable him to make an intelligent and independent determination that probable cause exists. Bald conclusions, mere affirmations of belief, or suspicions are not enough and, while an affidavit may be based on hearsay, there must be sufficient affirmative allegations of fact as to affiant’s personal knowledge to provide a rational basis upon which a magistrate can make a judicious determination of probable cause. [Citations omitted.]
“ ‘Probable cause’ to issue a search warrant is like a jigsaw puzzle. Bits and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.”
We find no merit in appellant’s contention.
3. The appellant next contends that the trial court erred as a matter of law in failing to sustain his motion for discharge on count one, aggravated kidnapping, at the close of the State’s case.
Count one of the information charged the appellant as follows:
“[0]n or about the 28th day of December A.D., 1977, one RICHARD D. WILLIAMS did then and there unlawfully, willfully take and confine the persons of [the victims] by force with the intent to hold the said [the victims] to facilitate the commission of the crimes of Rape and Aggravated Robbery and did inflict bodily harm upon the person of [the victim];”
At the close of the State’s evidence, the information was amended to include in count one “to facilitate flight.” Shortly thereafter, defense counsel moved for discharge on count one, arguing that:
“I think the evidence could indicate the assailant, whoever he may be, did remove both the alleged victim and her child from at least the living room or dining area into a bedroom and that could be for nothing more than convenience or comfort and no other reason.”
The jury instruction was consistent with count one as finally amended.
The appellant contends that the taking and confinement of the third victim and her child fail the test stated in State v. Buggs, 219 Kan. 203, Syl. ¶ 10, 547 P.2d 720 (1976):
“If a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement;
“(a) Must not be slight, inconsequential and merely incidental to the other crime;
“(b) Must not be a kind inherent in the nature of the other crime; and
“(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detention,”
The third victim testified that the appellant struck and robbed her and then rummaged through her house for valuables. He raped her while armed with a screwdriver, stole her stereo, and threatened to kill her child. He forced the victim to tie up her child and then bound and gagged the mother. The defendant placed two chairs over them as they lay on the bed to prevent them from moving.
Appellant contends that his actions as recited above are akin to “[t]he removal of a rape victim from room to room within a dwelling solely for the convenience and the comfort” of the rapist, State v. Buggs, 219 Kan. at 216, and thus failed to constitute kidnapping as a matter of law.
Applying the test laid down in State v. Buggs, 219 Kan. 203, to appellant’s acts, the binding, gagging and securing of his victims by placing chairs over them, and placing a desk across the bedroom door, were not acts incidental to the crimes of rape or aggravated robbery, nor were those acts inherent in either crime. The appellant’s acts further substantially lessened the risk of detection of his crimes and facilitated flight. We find no merit in this contention.
4. The appellant next charges error in failing to sustain his motion, at the close of the State’s case, as to count one, aggravated kidnapping, as it was multiplicitous with the charges of attempted murder in counts four and five of the information.
Appellant further contends that for the two different crimes— aggravated kidnapping and attempted murder- — the State relied upon the facts concerning one event which took place in the third victim’s apartment, i.e., the removal to the bedroom, the tying up of the third victim and her daughter, and setting fire to two boxes of papers in the bedroom.
The State contends that the rape of the third victim aftd the confining of her and her child could provide bodily harm sufficient to constitute aggravated kidnapping. It further contends that proof of the overt act of setting fires was neither necessary nor relied upon in establishing bodily harm to support kidnapping.
We have stated that multiplicity in a criminal pleading is the charging of a single offense in several counts. The State may not split a single offense into separate parts. Where there is a single wrongful act it generally will not furnish the basis for more than one criminal prosecution. State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978).
The test to be applied in this case was stated in State v. Cory, 211 Kan. 528, Syl. ¶ 1, 506 P.2d 1115 (1973):
“Where the same conduct of a defendant constitutes a violation of two statutory proscriptions the test of duplicitous offenses is whether each requires proof of an element of the offense which the other does not and if so the offenses are not duplicitous.”
It was also stated in Cory at page 530:
“When two offenses are charged in separate counts of one information the test to be applied is not whether the facts actually proved at trial are used to support the conviction of two offenses, it is whether the necessary elements of proof of the one crime are included in the other.”
The necessary element of the proof of the offense of attempted murder of the third victim and her daughter was the setting of the fires in the bedroom. This was not a necessary element of the offense of aggravated kidnapping; the threats and use of force were quite sufficient without such element.
5. The appellant next contends the trial court erred as a matter of law in failing to sustain appellant’s motion for discharge on count nine — aggravated kidnapping — at the conclusion of all the evidence. Count nine charged the taking and confining of the first victim with intent to hold her to facilitate flight and to facilitate the crime of rape.
What was the appellant’s intention when he forced the victim to take him for a ride in her car after robbing and raping her twice? The jury was properly instructed on count nine. The jury no doubt thought the defendant wanted to get closer to his home and facilitate flight from the scene of his crimes as charged in the information.
We must not attempt to out-guess the jury. They heard the evidence and observed the demeanor of the witnesses.
6. The appellant suggests the trial court erred in instruction number two by failing to set out all the elements of the crime of aggravated kidnapping with regard to the third victim’s child.
Count one does not attempt to charge the appellant with aggravated kidnapping of the child, but only the third victim, the mother of the child. The trial court instructed that bodily harm was inflicted only upon the third victim. The jury found the appellant guilty only of bodily harm to the third victim in count one. The trial court sentenced only on one count of aggravated kidnapping of the third victim not her child.
If appellant had any complaint on this issue it was to the language of the information. No objection was made thereto before the trial court.
We find no merit in this alleged error.
7. The appellant last contends that the trial court in sentencing appellant acted arbitrarily and without justification.
Appellant suggests that on each of the counts of which he was convicted the court imposed the maximum sentence allowable under K.S.A. 21-4501. A portion of the sentences were to run concurrently but the sentences on five counts were to run consecutively.
The appellant concedes the veracity of the test laid down in State v. Coe, 223 Kan. 153, 167, 574 P.2d 929 (1977), as following:
“Provided it is within statutory limits, a sentence fixed by the trial court will not be set aside on appeal unless it is so arbitrary and unreasonable it constitutes an abuse of judicial discretion. [Citations omitted.]”
Appellant contends, however, the sentence imposed in this case was arbitrary and an unreasonable use of sentencing authority. He further argues that this is true in light of the fact that the trial court did not follow the “better practice” as enunciated in State v. Buckner, 223 Kan. 138, Syl. ¶ 9, 574 P.2d 918 (1977):
“When the sentence imposed by the trial court exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the sentencing court has abused its discretion.”
He contends the record is void of any such detailed statement of the facts and factors considered in imposing sentence in the instant case and in light of the excessive sentence imposed upon defendant, the case should be remanded for proper sentencing by the trial court.
The State challenges this last statement. It quotes in its brief from a lengthy colloquy the trial court engaged in with the appellant concerning its rationale for imposition of the sentence. We will not extend this opinion by quoting from the record. It will suffice to say that the trial court considered the factors set forth in K.S.A. 21-4606 in sentencing the defendant. The contention is without merit.
A careful examination of the record discloses no errors that would justify granting any relief to appellant.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
McFarland, J.:
This is a direct appeal by Rick F. Gregg from his convictions by jury trial of aggravated sodomy (K.S.A. 21-3506) and aggravated indecent solicitation of a child (K.S.A. 21-3511), as a lesser included offense of the charged crime, indecent liberties with a child (K.S.A. 1978 Supp. 21-3503).
The charges herein arise from two separate incidents involving defendant and an eight-year-old girl, Michelle. The household in question included two women and their five children. Various male acquaintances of the women visited or resided in the home on varying bases. Defendant was one of these individuals, al though he was married and had a residence of his own. Defendant assisted in caring for the children.
The aggravated sodomy charge arose from the December 13, 1977, occurrence, and may be designated as the “bathroom incident.” The victim stated that defendant forced her to commit fellatio with him. Defendant’s version was that he was high on drugs and liquor and that the little girl had, on her own initiative, committed the act before he was aware of what was occurring.
The indecent liberties with a child charge (conviction of aggravated indecent solicitation of a child as a lesser included offense) arose from the occurrence on December 9,1977, and may be designated as the “nosebleed incident.” The victim had received a nosebleed from a facial blow inflicted by one of the other children. Defendant then took the child upstairs to a bedroom.
The victim’s version of what occurred in the bedroom was that defendant shut the door, told her to pull down her pants, pulled down his pants, “got on top” of her, hurt her in the genital area, and told her not to tell anyone. Defendant denied that anything untoward had occurred in the bedroom.
Defendant claims error in the refusal of the trial court to instruct on lewd and lascivious behavior (K.S.A. 21-3508) and indecent solicitation of a child (K.S.A. 21-3510) as lesser included offenses on both counts.
A lesser offense is considered a lesser included offense under K.S.A. 21-3107(2)(d) when all elements necessary to prove the lesser offense are present to establish the elements of the greater offense. State v. Arnold, 223 Kan. 715, 576 P.2d 651 (1978).
The following chart shows the charges, the lesser included instructions given, and those denied:
Count I (“bathroom incident”)
Charged: Aggravated Sodomy K.S.A. 21-3506 (B felony)
Lesser Enticement of a Child K.S.A. 21-3509 (D felony)
Included Aggravated Indecent
Given: Solicitation of a Child K.S.A. 21-3509 (E felony)
Lesser Lewd and Lascivious
Included Behavior K.S.A. 21-3508 (B misdemeanor)
Denied: Indecent Solicitation of a Child K.S.A. 21-3510 (A misdemeanor)
Convicted: Aggravated Sodomy
Count II (“nosebleed incident”)
Charged: Indecent Liberties with a Child K.S.A. 1978 (C felony)
Supp. 21-3503
Lesser Enticement of a Child K.S.A. 21-3509 (D felony) Included
Given: Aggravated Indecent Solicitation of a Child K.S.A. 21-3511 (E felony)
Lesser Lewd and Lascivious
Included Behavior K.S.A. 21-3508 (B misdemeanor)
Denied: Indecent Solicitation of a Child K.S.A. 21-3510 (A misdemeanor)
Convicted: Aggravated Indecent Solicitation of a Child
The elements of the offenses concerned herein are as follows:
K.S.A. 1978 Supp. 21-3503. Indecent liberties with a child.
“(1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
“(a) The act of sexual intercourse;
“(b) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
K.S.A. 21-3508. Lewd and lascivious behavior.
“(1) Lewd and lascivious behavior is:
“(a) The commission of an act of sexual intercourse or sodomy with any person or animal with knowledge or reasonable anticipation that the participants are being viewed by others; or
“(b) The exposure of a sex organ in the presence of a person who is not the spouse of the offender or who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.”
K.S.A. 21-3510. Indecent solicitation of a child.
“Indecent solicitation of a child is the accosting, enticing or soliciting of a child under the age of sixteen (16) years to commit or to submit to an unlawful sexual act.”
K.S.A. 21-3511. Aggravated indecent solicitation of a child.
“Aggravated indecent solicitation of a child is the accosting, enticing or soliciting of a child under the age of twelve (12) years to commit or to submit to an unlawful sexual act.”
Indecent solicitation of a child makes certain acts with a child under sixteen years of age illegal. Aggravated indecent solicitation of a child makes the same acts with a child under twelve years of age illegal also, but with a greater penalty (class E felony as opposed to a class A misdemeanor).
Although defendant’s position is not too clear on this point, apparently he is contending that indecent solicitation of a child is an automatic lesser included offense of aggravated indecent solicitation of a child since a child under twelve years of age must of necessity be a child under sixteen years of age. Defendant cites no authority in support of this contention.
Clearly, the legislature has seen fit to affix a greater penalty to certain acts committed with a young child than with an older child. There was no dispute as to the child’s age. Under aggravated indecent solicitation of a child it was incumbent upon the State to prove the child was under twelve years of age. No error is shown in refusing to instruct on indecent solicitation of a child.
Defendant further complains that instructions on both counts should have been given on the lesser included offense of lewd and lascivious behavior (K.S.A. 21-3508). A reading of the statute shows the gist of the proscribed behavior is the exhibitionist aspect of the sexual behavior. This, accordingly, is not an offense necessarily proven on a prosecution of indecent liberties with a child or aggravated sodomy, nor is there an identity of elements. For illustration, both the latter offenses could transpire in total darkness; whereas, it would be virtually impossible to commit lewd and lascivious behavior under such circumstances.
This precise issue as to aggravated sodomy was decided in State v. Crawford, 223 Kan. 127, 573 P.2d 982 (1977), cert. denied 435 U.S. 930 (1978), wherein this court said at 128:
“Lewd and lascivious behavior, K.S.A. 21-3508(l)(h), is neither a lesser degree of aggravated sodomy, K.S.A. 21-3506, nor is it a crime necessarily proved if aggravated sodomy is proved. The elements of the former are separate and distinct. The state made no attempt to prove, nor did the evidence establish, that the defendant was merely a ‘flasher.’ . . . The trial court properly refused the requested instructions.”
Crawford is equally good authority for the proposition that lewd and lascivious behavior is not a lesser offense of indecent liberties with a child.
No error is shown by the trial court on either count in refusing to instruct on indecent solicitation of a child or lewd and lascivious behavior.
Defendant’s next point of claimed error is the trial court’s denial of defendant’s motion for a psychiatric examination of Michelle, the complaining witness.
The day before the trial commenced, court and counsel had a pretrial conference. At that time defense counsel stated:
“Your Honor, my last pretrial motion I feel is the most important one and it’s a motion for psychiatric examination of the alleged victim Michelle ....
“From examination of the preliminary hearing transcript it is my opinion, and it is fairly clear, that Michelle ... is going to be a most important witness, maybe the only witness that the state puts on concerning the alleged sexual abuse to her.
“I really believe I am hard put to understand the power a 8 or 9 year old girl has over Mr. Gregg in his trial, since she is the only complaining witness. There appears to be no other corroborating testimony of anyone that could of seen the alleged incident, and because of this power that one individual would have over a defendant, it scares me, specifically if she does not tell the Court or does not understand what the truth is.
“If she has any psychiatric problems I think the Court and Counsel should be aware of them ahead of time and before trial.”
Later, but prior to the testimony of Michelle, the trial court and the prosecutor questioned her as to her knowledge of the truth.
The matter of ordering a psychiatric examination of the complaining witness in a sex crime case is an issue of first impression in Kansas. The court may order a psychiatric examination of a defendant in a criminal case for the limited purposes set forth in K.S.A. 1978 Supp. 22-3302,. 22-3219, and 21-4604. A psychiatric examination of a party in a civil action may be ordered pursuant to K.S.A. 60-235 when the party’s mental condition is in issue.
Numerous other jurisdictions have determined the question of the right of an accused in a sex crime case to have a psychiatric examination of the complaining witness. The jurisdictions which have determined the issue fall into three general categories. No attempt will be made for an exhaustive analysis of each jurisdiction, but illustrative of the categories are the following:
1. The Court Has no Inherent Power to Compel Psychiatric Examination.
The District of Columbia, Oregon, Illinois, and New York are jurisdictions commonly cited as belonging in this category. See Annot., Sex Crimes-Psychiatric Examination, 18 A.L.R.3d 1433, § 3. However, even these jurisdictions have suffered erosion. An example is State v. Walgraeve, 243 Or. 328, 412 P.2d 23, rehearing denied 243 Or. 331, 413 P.2d 609 (1966), wherein the court found that a discretionary power to direct a psychiatric examination of a complaining witness would invade the jury’s province as to determining the credibility of a witness. The Oregon court reasoned any such fundamental change should come from the legislature. The Oregon courts continue to apply Walgraeve, but now make it clear that the intent of Walgraeve was to refuse a mandatory rule, not deprive a court of discretion to order such an examination. State v. Clasey, 252 Or. 22, 446 P.2d 116 (1968); State v. Forsyth, 20 Or. App. 624, 533 P.2d 176 (1975).
This category has always been a minority view and it appears to be declining even further.
2. The Defendant Has an Absolute Right to an Order Compelling a Psychiatric Examination of the Complaining Witness.
Indiana, in Burton v. State, 232 Ind. 246, 111 N.E.2d 892 (1953), required that the uncorroborated testimony of a complaining witness in a sex case be supported by psychiatric evidence supporting her credibility. Burton was overruled in Wedmore v. State, 237 Ind. 212, 223, 143 N.E.2d 649, 654 (1957), wherein the Indiana Supreme Court stated that it did not have the power or authority to require the state to support the testimony of a prosecuting witness in a sex case by requiring her to submit to a psychiatric examination, the report of which was to be used in evidence to support the conviction. However, no request had been made at trial in Wedmore for a psychiatric examination.
Defendant herein notes the dicta of the court in Wedmore, 237 Ind. at 223:
“In this case if timely objection to the competency of the prosecuting witness had been made, it would have been the duty of the court to make such an examination as would satisfy it as to her competency or incompetency.”
The above statement could be interpreted as referring to a direct inquiry of the witness under oath by the court. Regardless of the meaning attached to the statement in Wedmore, however, it is clear from subsequent cases that Indiana is a discretionary state. See, e.g., McNeely v. State,_Ind. App__, 349 N.E.2d 204, 206 (1976):
“We do not hold that a psychiatric examination of a witness must be automatically granted upon request. The decision to grant a psychiatric examination rests within the sound discretion of the trial court.”
3. The Trial Judge Has the Discretion to Order a Psychiatric Examination of the Complaining Witness Where a Compelling Reason is Shown.
This is the rule in the vast majority of jurisdictions which have considered the issue. The most widely cited case in support of this position is Ballard v. Superior Court, 64 Cal. 2d 159, 49 Cal. Rptr. 302, 410 P.2d 838 (1966). In Ballard, a physician charged with the rape of a patient sought, inter alia, to restrain the proceedings of the trial court pending relief. He contended the trial court should not have denied his request for an order requiring the complaining witness to undergo psychiatric examination for the purpose of determining whether her mental and emotional condition affected her veracity. The California Supreme Court extensively reviewed the various authorities and rejected “the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination”; it accepted the “middle ground,” placing the matter within the discretion of the trial judge. 64 Cal. 2d at 177.
Portions of the court’s reasoning in Ballard are set forth as follows:
“Petitioner contends that the trial court should not have denied his request for an order requiring the complaining witness to undergo a psychiatric examination for the purpose of determining whether her mental or emotional condition affected her veracity. The resolution of this issue raises the dual problems of the judicial treatment of psychiatric testimony for the limited purpose of impeachment of the complaining witness in a sex violation case as well as the propriety of a psychiatric examination of such a witness.
“A number of leading authorities have suggested that in a case in which a defendant faces a charge of a sex violation, the complaining witness, if her testimony is uncorroborated, should be required to submit to a psychiatric examination. (3 Wigmore, Evidence (1940) § 924a, and authorities collected therein; [other citations omitted].) In California conviction of a sex crime may be sustained upon the uncorroborated testimony of the prosecutrix. [Citations omitted.]
“In urging psychiatric interviews for complaining witnesses in sex cases, some prominent psychiatrists have explained that a woman or a girl may falsely accuse a person of a sex crime as a result of a mental condition that transforms into fantasy a wishful biological urge. Such a charge may likewise flow from an aggressive tendency directed to the person accused or from a childish desire for notoriety. [Citations omitted.] . . . Professor Wigmore, in a widely quoted passage, stated, ‘No judge should ever let a sex-offense charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician.’ (3 Wigmore, Evidence, supra, 460; italics omitted.)
“This concern is stimulated by the possibility that a believable complaining witness, who suffers from an emotional condition inducing her belief that she has been subjected to a sexual offense, may charge some male with that offense. Thus, the testimony of a sympathy-arousing child may lead to the conviction of an unattractive defendant, subjecting him to a lengthy prison term.
“The proposition that a prosecution witness may be impeached only in the manner and for purposes provided in the code [citation omitted] does not enjoy rigid application in sex violation cases. In that area the courts have established more liberal rules of impeachment than those otherwise applicable. Thus Justice Peters, cognizant of the danger of psychotically induced charges, held in People v. Hurlburt (1958) 166 Cal. App. 2d 334 [333 P.2d 82, 75 A.L.R.2d 500], that the trial court erred in a restrictive ruling on impeachment. He points out that although the general rule . . . forbids proof of specific acts of wrongdoing for purposes of impeachment, nevertheless in a prosecution for lewd conduct with a 9-year-old girl, defendant should have been permitted to cross-examine the girl, or to introduce evidence, to show that she had made similar, but false, charges against other men. [Citations omitted.]
“Following this trend the District Court of Appeal in People v. Neely (1964) 228 Cal. App. 2d 16 [39 Cal. Rptr. 251], recently held that the defendant could properly adduce medical testimony of the mental and emotional instability of the prosecutrix in a rape case. In that case ‘Delores, the prosecuting witness, was a patient at Napa State Hospital’ (p. 17); the sought testimony was that of a medical doctor at the hospital. The court said ‘While the jury had been told that Delores’ general reputation for truth, honesty and integrity was bad, the appellant was also entitled to have the jury informed of the mental and emotional instability of the prosecuting witness through the expert medical testimony of the doctor in charge of her case. The jury was entitled to hear such testimony and to have it before them as an aid in evaluating her testimony.’ (P. 20.) The principle of the decision would obviously extend to a case in which the prosecutrix was not a patient and the expert not a doctor at her hospital.
“We do not mean to suggest that psychiatric testimony of the mental and emotional condition of the prosecutrix must necessarily be admitted in every case. We recognize that psychiatric evaluation .is not absolute but only relatively illuminating; its utility in the ascertainment of the prosecutrix’ condition must depend upon its posture in the whole picture presented to the trial court. That court can properly determine in its discretion whether psychiatric testimony as to the mental and emotional condition of the complaining witness should be admitted. We would read the Neely case as one in which the compelling reasons for the introduction of the testimony demonstrated the court’s abuse of its discretion in rejecting it.
“We turn now to the matter of an examination of the prosecutrix by the psychiatrist. Even though a psychiatrist may testify about the credibility of a witness in the described type of case, ‘most psychiatrists would say that a satisfactory opinion can only be formed after the witness has been subjected to a clinical examination.’ [Citations omitted.] Thus, authorities have suggested, as does petitioner, that the prosecutrix in a sex case should always be compelled to submit to a psychiatric examination. (See, e.g., 3 Wigmore, Evidence, supra, § 924a.) We submit however, that a general rule requiring a psychiatric examination of complaining witnesses in every sex case or, as an alternative, in any such case that rests upon the uncorroborated testimony of the complaining witness would, in many instances, not be necessary or appropriate. Moreover, victims of sex crimes might be deterred by such an absolute requirement from disclosing such offenses.
“Rather than formulate a fixed rule in this matter we believe that discretion should repose in the trial judge to order a psychiatric examination of the complaining witness in a case involving a sex violation if the defendant presents a compelling reason for such an examination. The Supreme Court of South Dakota recently stated, ‘In an article entitled Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, in Vol. 48, Cal. L. Rev. 648, at page 663, this conclusion is reached: “Most of the courts which have dealt with this problem have recognized the authority of the trial judge to order a psychiatric examination of a witness on the question of credibility. The principle established by the majority of the cases is that the judge has the discretion to order such an examination, although the failure to do so has rarely been held an abuse of discretion.” We are not aware of any good reason why that should not be the rule concerning complaining witnesses in sex offenses.’ (State v. Klueber, supra, 81 S.D. 223, 229 [132 N.W.2d 847, 850]; [other citations omitted].)
“We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness’ mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.” 64 Cal. 2d at 171-177.
See also Annot., 18 A.L.R.3d 1433.
We, too, adopt the “middle ground” and hold a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination. Even if a trial court finds a compelling reason for ordering the psychiatric examination, the further safeguard as to its admissibility remains. This result is in harmony with the “Rape Shield Statute”, K.S.A. 60-447a.
In the case before us the judge did not deny the motion for lack of authority to grant it. Instead, in his discretion, he overruled the motion. The question then becomes whether the trial court abused its discretion in the denial of the motion.
The motion for the examination, made the day before trial, rested on such factors as the child’s age, the seriousness of the crime, and the lack of corroborating evidence (in fact, her testimony was not wholly uncorroborated). No facts were stated or evidence introduced as to the child’s mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination. The motion was clearly a fishing expedition embarked upon in the hope something damaging and admissible in the trial would be unearthed. The trial court and prosecutor subsequently questioned the child about her understanding of telling the truth and nothing unusual surfaced. Defense counsel was offered the opportunity to question the child, but declined. At trial the cross-examination of the child was brief.
In short, no compelling reason for ordering a psychiatric examination of the child was shown or even alluded to. No abuse of discretion by the trial court is shown in denying defendant’s motion for psychiatric examination of the complaining witness.
Defendant’s final point is that, based on the issues previously raised herein, the trial court erred in denying defendant’s motion for a new trial. The points urged in support of the motion for new trial have been determined adversely to defendant, which disposes of this point.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal in a criminal action from a lower court order dismissing the appeal of Harlyn Perry Knight II (defendant-appellant) from a conviction and fine in the Municipal Court of Neodesha, Kansas, for violation of Ordinance No. 15-204, careless driving.
The appellant contends the trial court erred in failing to transfer an affidavit of prejudice to another district judge.
On October 18, 1977, the appellant was ticketed by Harry Bisnet, a Neodesha, Kansas, police officer, for careless driving of a motorcycle in violation of Neodesha Ordinance No. 15-204. After a hearing in Neodesha Municipal Court on November 2,1977, the appellant was found guilty and fined $15.
The appellant appealed to the Wilson County District Court pursuant to K.S.A. 1978 Supp. 22-3609, requesting a trial by jury. On December 5,1977, the appellant filed an affidavit of prejudice (K.S.A. 1978 Supp. 20-311d) against the Honorable George W. Donaldson, judge of the Eleventh Judicial District, division 4. The sworn affidavit alleged generally that all judges of the Elev enth Judicial District, excepting Judge David Scott of Montgomery County, were prejudiced against the appellant. More specifically, the affidavit alleged that Judge Donaldson was prejudiced because of an alleged criminal conspiracy; prior judicial involvement with the appellant’s uncle, the Reverend Harold Knight; and because of senility and a hostile attitude toward members of the appellant’s family.
On December 6,1977, Judge Donaldson ruled that the affidavit of prejudice was legally insufficient, in that it failed to state facts constituting prejudice against the appellant; and further, that he as judge did not know the appellant. Judge Donaldson’s order required that the requested jury trial remain set for December 15, 1977.
The appellant, on December 13, 1977, filed a motion entitled “Motion For Delay of Trial By Jury Until Interlockatory [sic] Appeal of Judges Order, Dated December 6, 1977, Can Be Ruled Upon By The Kansas Supreme Court.” The appellant alleged in his motion that the trial court had abused its power in ruling on the affidavit of prejudice; that the appellant intended to file an interlocutory appeal with the Kansas Supreme Court within ten days; and further attacked the trial court’s ruling on the affidavit of prejudice. In addition, the appellant filed a second affidavit of prejudice on December 13, 1977. The second affidavit further elaborated on Judge Donaldson’s alleged prejudice, incorporating the December 6, 1977, ruling as additional grounds.
On December 15, 1977, the appellant failed to appear for his trial. The trial court dismissed the appeal, and ordered forfeiture of the appellant’s $50 appeal bond.
The appellant filed a notice of appeal to the Kansas Supreme Court on December 16, 1977. A second notice of appeal was filed January 12, 1978.
The Municipal Judge of the City of Neodesha issued a bench warrant for the appellant on January 4, 1978. The warrant required the appellant to pay the $15 fine plus $5 court costs, because the appellant’s appeal had been dismissed. The bench warrant instructed that the appellant’s failure to pay the fine and costs would result in his being taken to the Wilson County jail in Fredonia, Kansas. The record reflects the appellant paid the $20 the same day.
The appellant’s sole contention on appeal is that the trial court erred in failing to transfer the affidavit of prejudice to another judge to determine its legal sufficiency.
Kansas Statutes Annotated 1978 Supp. 20-311d provides in pertinent part:
“(d) If either party or either party’s attorney to any action in a district court flies an affidavit alleging any of the grounds specified in subsection (b), the administrative judge shall at once transfer the action to another judge of the district court in the judicial district. . . .
“(b) Grounds which may be alleged as provided in subsection (a) for change of judge are:
“(5) That the party filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice, or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.”
The procedure to be followed by the trial court upon receipt of an affidavit of prejudice was outlined in Hulme v. Woleslagel, 208 Kan. 385, 393, 493 P.2d 541 (1972), wherein we stated:
“Transfer to another judge is the statute’s first command and we believe the legislature intended by the use of such imperative that transfer is to be automatic upon filing of an affidavit.”
See Oswald v. State, 221 Kan. 625, 629, 561 P.2d 838 (1977).
The trial court erred in failing to transfer the affidavit of prejudice to another judge for a determination of its legal sufficiency.
Judge Donaldson retired from the bench while this appeal was pending, therefore the issue of his alleged bias and prejudice against the appellant is moot. However, we note that appellant’s affidavit of prejudice challenges all judges of the Eleventh Judicial District. On remand, the trial shall be conducted before a judge from another district, to be assigned by the Departmental Justice.
The judgment of the lower court dismissing the action is reversed and the case is remanded for a trial on the merits. The order of the trial court forfeiting the appellant’s appeal bond is vacated, and the trial court is directed to reinstate the appeal bond.
Fromme, J., not participating.
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The opinion of the court was delivered by
Herd, J.:
This is a mortgage foreclosure action brought by First National Bank of Olathe against Donald C. and Terry J. Clark of Bonner Springs. The trial court granted judgment to the bank and the Clarks appeal. We affirm.
Appellants, Donald C. and Terry J. Clark, own and operate Double D Meats, a packing plant, which is located on a five-acre tract with the family home in Bonner Springs. On May 16, 1973, appellants borrowed $52,000.00 from appellee First National Bank of Olathe. They executed a promissory note and security agreement giving the bank a security interest in the packing plant and the home as well as “all furniture, fixtures, machinery, tools and other equipment now owned or hereafter acquired by debtor.” The security agreement was duly filed of record in Wyandotte County and the loan proceeds disbursed.
The note provides for 120 monthly payments of $628.33 each. The total pay out is $75,400.00 on the $52,000.00 loan. The Clarks made 31 payments according to the tenor of the note then ran into financial problems because of Mr. Clark’s health and the closing of an access road to the packing plant. Appellants made their last payment January 9, 1976, and after a few months’ delinquency, the bank made demand on the Clarks. The bank received no response and thereafter, filed suit to foreclose the mortgage.
After the suit was filed, the Clarks answered admitting they borrowed the $52,000.00 and gave the mortgage to secure the debt but denied the debt was delinquent. They filed a counterclaim, alleging the suit was prematurely filed because by their computations the note was not yet due. They further alleged malicious abuse of process, requested damages in excess of $10,000.00, and demanded a jury trial. The trial court denied the demand for a jury and tried the case, rendering judgment for the bank in the amount prayed for. The Clarks appeal.
Appellants claim they are entitled to a trial by jury on the questions of fact surrounding the execution of the note. They allege although a mortgage foreclosure action is eqúitable in nature it is an equitable proceeding only where the court orders a certain piece of property sold to satisfy the debt. Appellants contend the actual determination of that indebtedness is an action in contract, which is considered a legal proceeding. Appellants argue they signed a note to borrow money at an interest rate of 4.5% and that additional writing, placed there at a later time, materially altered the note from the one they signed. They conclude they are entitled to a jury determination of the fact question of terms added to a contract after its execution.
Appellants also claim they are entitled to a jury trial to resolve the following questions: (a) whether there was an agreement to renew their working capital loan, which was subsequently breached by the bank; (b) whether there was an agreement for a moratorium of payments during the access road construction and whether that agreement was breached by the bank; (c) whether the bank’s actions with respect to these agreements constitute an abuse of process and intentional interference with the Clarks’ business.
Appellants maintain the three issues, raised in their counterclaim, are "strictly legal in nature,” because they demand money damages and are triable to a jury at common law. They contend the three issues are compulsory counterclaims pursuant to K.S.A. 60-213(a), and must be pled in response to a claim, or a party is later barred from bringing an independent action on the counterclaim. Stock v. Nordhus, 216 Kan. 779, 533 P.2d 1324 (1975).
Appellants contend they are entitled to a jury trial although the legal issues contained in the counterclaim are incidental to equitable issues. In support of this position, they rely upon the cases of Dairy Queen v. Wood, 369 U.S. 469, 8 L.Ed.2d 44, 82 S.Ct. 894 (1962), and Beacon Theatres v. Westover, 359 U.S. 500, 3 L.Ed.2d 988, 79 S.Ct. 948 (1959). Before proceeding with the specific points raised by appellant we must first consider the right to trial by jury.
The Seventh Amendment of the U.S. Constitution provides: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, . . . .” This amendment was implemented by Fed. R. Civ. P. 38(a), which states:
“The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.”
Beacon Theatres v. Westover marked a sharp departure from the rule that a court sitting in equity could retain jurisdiction and decide the entire case even though a legal remedy became avail able to decide the issue. Beacon Theatres held where both legal and equitable issues are present in a single case,
“only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” Beacon Theatres v. Westover, 359 U.S. at 510-11.
The case requires when a legal issue is raised in an action begun as an equitable proceeding, a jury trial must ensue on that issue. Dairy Queen v. Wood followed Beacon Theatres, and held although legal issues are incidental to equitable issues, the right to trial by jury is preserved on those legal claims. See also 9 Wright and Miller, Federal Practice and Procedure: Civil § 2302, pp. 17-22 (1971).
The Kansas constitutional provision states, “The right of trial by jury shall be inviolate.” Kan. Const. Bill of Rights, § 5. K.S.A. 60-238(a) provides:
“The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate.”
The Seventh Amendment has not yet been made applicable to the states through the Fourteenth Amendment. Colgrove v. Battin, 413 U.S. 149, 169, n. 4, 37 L.Ed.2d 522, 93 S.Ct. 2448 (1973); Walker v. Sauvinet, 92 U.S. 90, 23 L.Ed. 678 (1876). Each state is, therefore, left to apply its own constitutional provision regarding the right to trial by jury. This distinction has not received strong clarification in Kansas cases and we note some inconsistent statements in this regard. In Hindman v. Shepard, 205 Kan. 207, 468 P.2d 103 (1970), cert. denied 401 U.S. 928 (1971), we indicated the federal and state right to trial by jury might be viewed identically, but stated:
“A civil litigant’s constitutional right to trial by jury (Constitution of Kansas, Bill of Rights, § 5, and U.S. Constitution, Amendment 7) is predicated on whether the action at common law was one of law or in equity.” (pp. 215-16)
See also In re Rome, 218 Kan. 198, 542 P.2d 676 (1975); Hornback v. Missouri-Kansas-Texas Rld. Co., 193 Kan. 395, 395 P.2d 379 (1964) (dissenting opinion); Windholz v. Willis, 1 Kan. App. 2d 683, 573 P.2d 1100 (1977). Notwithstanding these cases, Kansas has never clearly adopted the line of federal cases construing the right to a jury trial under the U.S. Constitution.
We hold a determination of a party litigant’s right to jury trial, guaranteed by the Kansas Constitution, is not required on legal issues arising in a proceeding essentially equitable in nature, and decline to follow the holdings in Dairy Queen v. Wood and Beacon Theatres v. Westover.
Turning to the specific points on appeal, we recognize appellant’s counterclaims are legal in nature. The subject matter of issue (a) did not arise out of the transaction which is the subject of this suit. The issue involves actions of the bank with respect to a different note signed by the Clarks which is not the subject of this action. Issue (b) arises out of the note in question and issue (c) seeks damages because of the bank’s actions with respect to both notes. Whether a counterclaim containing legal issues is compulsory or permissive, however, does not per se entitle a party to a jury trial. We have stated, “In determining whether an action is one in equity the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought.” Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 600, 561 P.2d 825 (1977).
After considering the pleadings, including the issues raised in appellants’ counterclaims, we find the proceeding is a mortgage foreclosure action which is equitable in nature. Karnes Enterprises, Inc. v. Quan, 221 Kan. 596; Hill v. Hill, 185 Kan. 389, 345 P.2d 1015 (1959); Federal Land Bank v. Butz, 156 Kan. 662, 135 P.2d 883 (1943); Union State Bank v. Chapman, 124 Kan. 315, 259 Pac. 681 (1927). The existence of legal claims does not alter the essential nature of the action. The trial court did not err in denying appellants a jury trial on either the questions of fact surrounding the execution of the note or the legal issues raised in the counterclaim.
Appellants argue the note here in contention is ambiguous, and as it was prepared by the bank, it was error not to construe the ambiguities against the bank. We recognize this is a pertinent rule of construction of written contracts; however, it is to be applied only where “after the ordinary rules of construction have been applied, the agreement is still ambiguous. The rule does not justify the taking or adopting of an isolated clause in dispute without examining the entire contract, the relations of the parties, their intention, and the circumstances under which they executed the contract.” 17 Am. Jur. 2d, Contracts § 276, p. 691.
The rules of construction with respect to written contracts are well established in Kansas.
“In placing a construction on a written instrument reasonable rather than unreasonable interpretations are favored by the law. Results which vitiate the purpose or reduce the terms of the contract to an absurdity should be avoided. The meaning of a contract should always be ascertained by a consideration of all the pertinent provisions and never be determined by critical analysis of a single or isolated provision. (Tate v. Stanolind Oil & Gas Co., 172 Kan. 351, 240 P.2d 465; Brooks v. Mull, 147 Kan. 740, 78 P.2d 879; and Heckard v. Park, 164 Kan. 216, 188 P.2d 926.) It is not the province of the court to make contracts for the parties. Its function is confined to an interpretation of the contract which the parties have entered into. Every presumption is in favor of the legality of a contract rather than its illegality. (Mosher v. Kansas Coop. Wheat Mkt. Ass’n., 136 Kan. 269, 15 P.2d 421; and Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P.2d 731.)
“Prior to a resort to extrinsic evidence, the instrument is to be interpreted from its ‘four corners.’ That is to say, all the language used anywhere in the instrument should be taken into consideration and construed in harmony with other portions of the instrument. (Skelly Oil Co. v. Cities Service Oil Co., 160 Kan. 226, 231, 160 P.2d 246; Heckard v. Park, supra; and Smith v. Russ, 184 Kan. 773, 339 P.2d 286.)” Weiner v. Wilshire Oil Co., 192 Kan. 490, 496, 389 P.2d 803 (1964).
“The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings.” Wood v. Hatcher, 199 Kan. 238, 242, 428 P.2d 799 (1967); see Seute v. American Oil Co., 225 Kan. 640, 594 P.2d 156 (1979); Quenzer v. Quenzer, 225 Kan. 83, 587 P.2d 880 (1978). “If a written contract is actually ambiguous concerning a specific matter in the agreement, facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent and purpose of the contract in that regard, but not for the purpose of varying and nullifying its clear and positive provisions.” Weiner v. Wilshire Oil Co., 192 Kan. at 496. Robertson v. McCune, 205 Kan. 696, 699, 472 P.2d 215 (1970).
One final rule of construction must be noted here. In construing an ambiguous Or indefinite contract, the court “may also take into consideration the interpretation placed upon the contract by the parties themselves. [Citation omitted.] If the parties have by their conduct placed an interpretation on an ambiguous contract it will be followed by the court, if not inconsistent with the language of the contract. [Citations omitted.].” Mosher v. Kansas Coop. Wheat Mkt. Assn., 136 Kan. 269, 274, 15 P.2d 421 (1932).
Applying those rules of construction to the contract before us, we find, as did the trial court, that the contract is ambiguous. At the top of the note, the interest rate is marked 4.5%. At the bottom, it is 8.3%. The trial court properly permitted the introduction of parol evidence to explain the ambiguities. The appellee’s witness, Mr. Finney, the former vice-president and first vice-president of the bank, testified the rate at the top of the note is the “add on” rate. The 8.3% rate, at the bottom of the note, is an error and should have read 7.9%. Finney admitted the error. The statement of finance charges, however, written on the face of the note are correct and the monthly payment was correctly figured.
The trial court made the following findings regarding the ambiguity in the note:
“13. Defendants Clark admit that they signed the combination promissory note and security agreement described in plaintiff’s petition, on May 16, 1973, but allege that said note was not filled out. No complaint was made about any omissions in the note until after this suit was filed. Instead the defendants made payments on the note, after its execution.”
The trial court further concluded the Clarks were not prejudiced by the plaintiff bank’s computation of interest in the amount of $23,400.00.
The Clarks made 31 payments on the note over a period of almost three years. No error in the terms of the note was contested by the Clarks during that period of time. The actions of the Clarks evidence their understanding that the note was computed at the proper rate of 7.9%. They made their payments, and the payments were properly credited to their account. The intent and purpose of the terms of the contract are clear. It would be absurd to allow the Clarks to capitalize on the bank’s typographical error in this instance. They were not prejudiced in any way by the error. This issue is without merit.
Appellants’ final issue concerns the applicability of the interest computation formula known as the rule of 78’s. Appellants contend there is no statutory authority for the application of this rule. This is an erroneous argument. K.S.A. 1978 Supp. 16-205(h)(2)(i) provides:
“(2) Judgments upon precomputed interest-bearing contracts shall provide: (i) The unpaid principal balance shall be ascertained by deducting from the remaining total of payments owed on the contract that portion of the precomputed finance charges that are unearned as of the date of acceleration of the maturity of the contract, as provided in K.S.A. 16a-2-510 for computing the unearned portion of precomputed finance charges in the event of prepayment in full.”
K.S.A. 16a-2-510(3) and (4)(o) contains the formula for the rule of 78’s. There is ample statutory authority authorizing the use of the rule of 78’s to compute the amount of unearned finance charge on the note. The point is without merit.
The judgment of the trial court is affirmed.
Fromme, J., not participating.
Miller, J., concurring in result.
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WHEREAS, In a proceeding conducted by the Kansas Board for Discipline of Attorneys to inquire into a complaint alleging professional misconduct by WILLIAM E. GLENN, an attorney duly licensed to practice in the State of Kansas, and
WHEREAS, following a full hearing as to such complaint, the Board found that William E. Glenn in his representation of a client had (1) failed to act competently in violation of Rule 225 of this court, DR 6-101(A)(l) and (2); and (2) was guilty of misconduct in violation of Rule 225 of this court, DR 1-102(A)(6), and
WHEREAS, the Board has made a written recommendation to this court that said William E. Glenn be disciplined by “Public Censure” as provided by Rule 203(a)(3) of this court (224 Kan. lxxxi), and
WHEREAS, a copy of the report, findings and recommendation of the Board was mailed to the said William E. Glenn on April 14, 1979, along with a citation directing him to file with the court either a statement that he did not wish to file exceptions, or his exceptions to the report, and
WHEREAS, William E. Glenn has failed to file any such exceptions, and
WHEREAS, on the 8th day of June, 1979, after notice given, a hearing was held before the court wherein Arno Windscheffel, Disciplinary Administrator, appeared for the Board and the State of Kansas, and William E. Glenn failed to appear either in person or by an attorney, and
WHEREAS, upon consideration of the record and the statements of the Disciplinary Administrator, and being fully advised in the premises, the court accepts the report, findings and recommendations of the Kansas Board for Discipline of Attorneys;
Now, Therefore, it is by the Court, Considered, Ordered and Adjudged that the said William E. Glenn be and he is hereby disciplined by public censure and that he pay the costs of these proceedings.
It is Further Ordered that this Order of Public Censure be published in the official Kansas Reports.
By Order of the Court, dated this 14th day of July, 1979.
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The opinion of the court was delivered by
Miller, J.:
James Francis Levier appeals directly to this court following his conviction of murder in the second degree, a class B felony, in violation of K.S.A. 21-3402. Levier was sentenced to a term of not less than 30 years nor more than life under the provisions of K.S.A. 21-4501 and K.S.A. 21-4504. Many issues are raised; each will be stated and discussed separately.
The facts, stated briefly, are these. On the morning of April 30, 1977, defendant came to his brother David’s home at 723 Adams in Topeka. Betty Sue Germonprez was also living there. Defendant was in and out of the house that morning; meanwhile, he helped his mother move, and he drank some alcoholic liquor and smoked some marijuana. About 2 o’clock that afternoon he returned to his brother’s house. Defendant and Betty Sue were in the kitchen; a verbal argument ensued; defendant struck Betty Sue, kicked her repeatedly in the face, and beat her about the head with a metal grate from the stove. She bled profusely, and died at the scene.
Defendant left the house and secured a ride with some friends to the Pottawatomie Indian Reservation in Jackson County. He was arrested in Jackson County on the following day, May 1, and was taken to the Shawnee County courthouse where he was given the Miranda warnings; thereafter he made a statement admitting that he had beaten the decedent. First degree murder charges were filed on May 2. Upon trial, the jury returned a verdict finding the defendant guilty of murder in the second degree.
I. Admission of the defendant’s statement or confession into evidence.
Defendant contends that his constitutional rights, as embodied in the Miranda warnings, were violated in that, according to his testimony at the Jackson v. Denno hearing, he twice demanded an attorney before making any statement, and the officers denied his request. The trial court held a full evidentiary hearing on the matter. A deputy sheriff and a Topeka police detective both testified that defendant made no request for an attorney in their presence. The detective who took the statement was present at all times during the explanation of the Miranda rights and the giving of the statement. After considering the testimony, the trial court found that the defendant knowingly waived his rights and did not ask for an attorney before or during the time he gave his statement.
In State v. Higdon, 224 Kan. 720, 722, 585 P.2d 1048 (1978), we stated this general rule:
“When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by the accused, determines the statement was freely, voluntarily, and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.”
We cannot reweigh the testimony which the trial court carefully considered. Here there was substantial competent evidence to support the trial court’s determination, and we will not disturb that ruling.
II. Jurisdiction to make the arrest.
Defendant, an American Indian, contends that he was arrested by state officers on the Pottawatomie Indian Reservation, and that only federal officers have jurisdiction to make arrests there. He cites no legal authorities supporting this claim.
18 U.S.C.A. § 3243 confers jurisdiction on the State of Kansas over offenses (with certain exceptions) committed by or against Indians on Indian reservations. The trial judge reasoned that because of this grant of authority the State must also have jurisdiction to arrest Indians or others on Indian reservations pursuant to warrants issued on probable cause for crimes committed outside the reservation.
Case law from other jurisdictions supports this holding. Anderson v. Britton, 212 Or. 1, 20, 318 P.2d 291 (1957), cert. denied 356 U.S. 962 (1958), holds that the “inherent police power of the states applies both to Indians and to Indian country, except to the extent that the federal government has pre-empted the field.” In Tooisgah v. United States, 186 F.2d 93 (10th Cir. 1950), it is held that Indians outside Indian territory remain subject to the general criminal law. And in State ex rel. Old Elk v. District Court, 170 Mont. 208, 552 P.2d 1394 (1976), the court upheld the arrest of an Indian made on Indian territory by a county sheriff pursuant to a warrant issued upon probable cause to believe that the defendant had committed a homicide outside Indian territory. The court noted that there was no statute authorizing extradition to and from the Indian reservation. That is still true.
We conclude that Kansas peace officers have authority to make arrests in Indian country within the boundaries of this state, upon warrants regularly issued, for offenses committed off the reservation. Whether defendant was arrested on the Pottawatomie reservation or off the reservation in Jackson County (and the facts are disputed), we hold that the arrest was valid.
III. Psychological damage sustained because of prolonged usage of harmful drugs.
Defendant merely states in his brief that he “has a well documented history of alcohol and drug abuse,” and he asks that we “take judicial notice of the facts, contained in James Levier’s official records that are on file with the State Department of Corrections.” He contends that the trial court erred in not ordering an examination as to the “psychological damage he had sustained because of prolonged exposure to harmful drug usage.” Apparently the Department of Corrections records were not offered to the trial court or to those who examined or attempted to examine Levier pursuant to court order. No purpose would be served by examining them during the course of this appeal, and we decline to take judicial notice of them. The trial court ordered a psychiatric examination, and while it did not use the language now proposed by defendant, the trial court did not err.
IV. The requested bifurcated trial procedure.
Defendant claims that the trial court erred in failing to follow procedure statutorily required in Colorado whereby the issues raised by a plea of not guilty by reason of insanity are tried separately to different juries, with the sanity issues being tried first. See Colo. Rev. Stat. § 16-8-104. Defendant claims that a bifurcated trial, when an insanity defense is raised, “avoids prejudice to the Defendant, avoids jury confusion and . . . protects the Defendant’s privilege against self-incrimination.”
We have recently considered the matter, and have consistently held that failure to order a bifurcated trial is not reversible error. State v. Sanders, 223 Kan. 273, 574 P.2d 559 (1977); State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972). Our statutes, mentioned in Sanders, have not been changed, and we adhere to our earlier rulings. When, as here, the jury is properly instructed, no confusion should result. By trying all issues together, time and expense to both parties is conserved, and the single jury is given the entire picture; we discern no prejudice. Defendant indicates that he might wish to testify in one trial and not the other, if the issues were tried separately. A defendant has a similar decision to make where several charges are tried at one time. We can see no justifiable reason mandating separation.
K.S.A. 1978 Supp. 22-3302(3), providing for a determination of competency, states:
“No statement made by the defendant in the course of any examination provided for by this section, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against said defendant in any criminal proceeding.”
This section, which appears to be fashioned after 18 U.S.C.A. § 4244, protects the accused from statements made during the course of psychiatric examinations. We see no Fifth Amendment violations in the refusal of a bifurcated trial.
V. The M’Naghten or the A.L.I. rule.
Defendant urges error in the failure of the trial court to sustain his motion for adoption of the American Law Institute rule as the test of insanity, rather than the M’Naghten rule. The trial court instructed the jury on the M’Naghten rule in the language suggested by PIK Crim. 54.10.
Defendant urges us to adopt the A.L.I. rule. The issue has been discussed in many of our cases, and we have declined to make the change. See State v. Sandstrom, 225 Kan. 717, 595 P.2d 324 (1979); State v. Sanders, 225 Kan. 147, 587 P.2d 893 (1978); State v. Smith, 223 Kan. 203, 574 P.2d 548 (1977); State v. Lamb, 209 Kan. 453, 497 P.2d 275 (1972); State v. Andrews, 187 Kan. 458, 465-469, 357 P.2d 739 (1960), cert. denied 368 U.S. 868 (1961). The majority of this court is still of the opinion that the M’Naghten test should be retained. We find no error.
VI. Evidence at the preliminary hearing.
Defendant claims that his right to due process was impinged upon because the State did not present all of its evidence at the preliminary hearing. He cites no authority in support of this contention.
The State’s burden at the preliminary examination is only to show “that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant.” K.S.A. 1978 Supp. 22-2902(3). In State v. Holloway, 219 Kan. 245, 248, 547 P.2d 741 (1976), we said:
“The state need not present its entire case at a preliminary hearing; all that is required is a showing from the evidence that a felony has been committed and there is probable cause to believe the accused committed the crime.”
Levier does not challenge the sufficiency of the evidence at the preliminary hearing to support the finding made, nor does he claim that exculpatory evidence was withheld. We find no error.
VII. Competency to stand trial.
Defendant claims that the trial court erred in finding him competent to stand trial because the record does not disclose psychiatric evaluation of the defendant by a physician trained in psychiatry. He claims K.S.A. 1978 Supp. 22-3302(3) requires an examination by a psychiatrist. Defendant misinterprets the statute. It provides alternatives: examination by any appropriate state, county or private institution, psychiatric clinic, mental health center or other psychiatric facility; or examination by two qualified physicians. The word “qualified” does not limit those who may examine the defendant to board certified psychiatrists. Nowhere in the statute is there an implication of legislative intent to specify the professional qualifications urged by the defendant.
The trial court attempted to have the defendant evaluated on separate occasions by two Topeka psychiatrists; these attempts were frustrated by the defendant when he refused to cooperate. The court then sent Levier to the State Security Hospital at Larned, where he remained for approximately 60 days. When the trial court held its hearing to determine competency, it had before it a nine page report from the Forensic Review Board and the staff of the State Security Hospital (these include two physicians, one or more psychologists, and others on the hospital staff), plus the testimony of the defendant, one psychologist, one psychiatric social worker, a psychiatric nurse, and one psychiatrist with over 17 years’ experience in the field. The transcript of that hearing extends over almost 100 pages.
The issue before us is whether the trial court’s finding of competency amounts to an abuse of discretion. State v. Gilder, 223 Kan. 220, 224-5, 574 P.2d 196 (1977). The decision below was supported by an abundance of competent, relevant, substantial evidence. There was no abuse of discretion.
VIII. American Indians on the jury.
Defendant next claims that the trial court erred “in not assuring that there would be native American representation” on the jury array. He asks that we reconsider State v. Sanders, 223 Kan. 550, 575 P.2d 533 (1978), where we held that the striking of members of the Negro race from the jury panel by the prosecutor, by way of exercising peremptory challenges, did not deprive the defendant of a fair trial.
Here, there is no showing as to whether or not there were American Indians on the array or on the panel ultimately selected to try the case; and there is no indication that the State struck members of any particular race or class during the exercise of peremptory challenges. Reconsideration of Sanders is certainly not required in this case.
The jury trial provision of the Sixth Amendment to the Constitution of the United States, made applicable to the States by the Fourteenth Amendment, requires that the jury be drawn from a fair cross-section of the community; that it be truly representative of the community. Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444 (1968); Smith v. Texas, 311 U.S. 128, 85 L.Ed. 84, 61 S.Ct. 164 (1940). In Duren v. Missouri, 439 U.S. 357, 58 L.Ed.2d 579, 99 S.Ct. 664 (1979), the Supreme Court said:
“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (439 U.S. at 364.)
The defendant in this case has not met any of these three criteria. There is no evidence in the record even suggesting that any race or group was systematically excluded. The point is without merit.
IX. Refusing permission to the defendant to act as co-counsel.
Defendant sought permission to act as co-counsel during the jury selection process; the court denied his request. He cites this as error, claiming that this is an absolute right granted by K.S.A. 22-3408(3). That statute, however, is in the alternative; it reads:
“The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors.” (Emphasis supplied.)
The statute also grants broad discretion to the trial court to control the jury selection process. In State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977), Chief Justice Fatzer discussed Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975), and other federal cases involving the right to pro se representation and the right to be represented by counsel. He concluded:
“An indigent accused has a right to either appointed counsel or pro se representation, but both rights cannot simultaneously be asserted. ... A defendant who accepts counsel has no right to conduct his own trial or dictate the procedural course of his representation by counsel. . . .
“[Appellant’s] right to participate with counsel in the conduct of his defense was still within the sound discretion of the district court.” (pp. 100-101.)
The trial court did not abuse its discretion in this case, and no error was committed.
X. Constitutionality of the habitual criminal act.
Finally, defendant directs a barrage at the Kansas habitual criminal act, K.S.A. 21-4504. He contends that it is unconstitutional in that it contravenes the due process clause (5th and 14th Amendments), the double jeopardy clause (5th Amendment), the prohibition against cruel and unusual punishment (8th and 14th Amendments), and the equal protections clause (14th Amendment). We rejected the due process and equal protection challenges to the act in Churchill v. State, 216 Kan. 399, 532 P.2d 1070 (1975) and in State v. Troy, 215 Kan. 369, 524 P.2d 1121 (1974), relying on Gladen v. State, 196 Kan. 586, 413 P.2d 124 (1966). The cruel and unusual punishment challenge was rejected in Clinton v. State, 210 Kan. 327, 502 P.2d 852 (1972). And the double jeopardy claim was rejected in Fairbanks v. State, 196 Kan. 650, 413 P.2d 985 (1966).
The claims of error are without substance. The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought pursuant to K.S.A. 60-907 by a group of Thomas County taxpayers against their Board of County Commissioners to obtain an injunction against the issuance of general obligation bonds for the construction of a new hospital. The plaintiffs appeal from orders sustaining the defendants’ motion for summary judgment, overruling the plaintiffs’ motion for summary judgment, and granting an extension of a certificate of need. The controversy, which arose out of the proposed construction of a hospitál in Thomas County, was previously before the court in Thomas County Taxpayers Ass'n v. Finney, 223 Kan. 434, 573 P.2d 1073 (1978). This case arose as a result of events which occurred subsequent to that decision.
Certain facts in the case are not in dispute. They are as follows: In 1938 a county hospital was established in Thomas County by resolution of the board of county commissioners. That year, bonds were issued by the county for the construction of the new hospital in accordance with G.S. 1939 Supp. 19-1854 through 19-1859, which became effective on February 25, 1938. The hospital was completed using the funds obtained from the hospital bonds plus additional funds from the federal government and the Sisters of St. Agnes. The new hospital was leased on October 20, 1941, to the Northwest Kansas Hospital Association, which in turn subleased to the Sisters of St. Agnes on October 21, 1941. The Sisters of St. Agnes operated the hospital until October 10, 1973. At that time the lease was terminated and the hospital reverted to Thomas County. The board of county commissioners appointed a board of trustees, pursuant to K.S.A. 19-1803, to take over management and operations of the hospital.
Early in 1976, the hospital board of trustees decided that it would be for the best interests of the people of Thomas County for a new hospital to be constructed on a different site. The board of trustees entered into an agreement with Hospital Management Corporation, a Delaware corporation, for it to provide professional management of the hospital and also to assist the board of trustees in getting the new hospital constructed. In order for a hospital to be constructed, a certificate of need was required by the Regional Health Programs Act (then K.S.A. 65-2a01 et seq ). Pursuant to that act, a request for a certificate of need was presented on April 28, 1976, by Hospital Management Association and James D. Daher, as administrator of the hospital, to the Far Northwest Region Health Planning Council. The request for a certificate of need was approved the next day, April 29,1976. On May 3, 1976, the hospital trustees, acting under K.S.A. 19-1878, certified to the Thomas County Board of Commissioners that funds in the amount of $3,760,000 were needed to build, furnish, and equip a new hospital. That same day, the board of county commissioners passed a resolution authorizing and directing notice to be given to the electorate of Thomas County of the intention to issue bonds to provide the necessary funds to build and equip a hospital in accordance with K.S.A. 19-1878. Protests filed were sufficient to require the question of issuing bonds to be voted on by the electorate of Thomas County. The election was held on November 2, 1976. A majority of the voters voted in favor of the bonds.
On January 5, 1977, a number of Thomas County taxpayers filed an action for an injunction to enjoin the issuance and delivery of the bonds. The district court granted the defendants’ motion for summary judgment and the taxpayers appealed to the Supreme Court. That appeal was decided in Thomas County Taxpayers Ass'n v. Finney, 223 Kan. 434. This court determined that K.S.A. 19-1878 did not provide the statutory authority to authorize the board of commissioners to issue general obligation bonds for the construction of an entirely new hospital on a new site. The court concluded that the legislature, by the enactment of K.S.A. 19-1878, intended the statute to provide a method of supplementing an existing bond issue or tax levy which is found to be insufficient for its original purposes. The case was reversed with directions to the district court to enter judgment in favor of the plaintiff taxpayers.
The opinion in that case was filed on January 21,1978, at which time the 1978 legislature was in session. At the request of Thomas County officials, the Kansas legislature enacted section 1, of chapter 99, 1978 Session Laws, now found in K.S.A. 1978 Supp. 19-18,128. The new statute specifically authorizes the issuance of general obligation bonds for the purpose of constructing, equipping, and furnishing a new county hospital building or facility, separate and apart from an existing county hospital. The mandate in the first case was filed for record in the district court of Thomas County on March 27, 1978.
At this point, the board of trustees and the board of county commissioners, now having statutory authority for the issuance of bonds to construct a new hospital, determined to proceed with their plans to construct a new hospital in Thomas County. Their first concern was to be certain there was in existence a valid certificate of need, which was required by K.S.A. 1978 Supp. 19-18,128 before an election could be held for approval of the issuance of hospital bonds. It should be noted that the board relied upon the certificate of need for hospital construction which had previously been issued by the Far Northwest Regional Planning Council on April 27, 1976. In the course of the litigation in the first case, Dwight F. Metzler, Secretary of the Department of Health and Environment, on March 7, 1977, under the authority of K.S.A. 1978 Supp. 65-4815, extended the certificate of need issued for St. Thomas Hospital for a period of twelve months beyond its expiration date of April 28,1977. On October 12, 1977, the Department of Health and Environment advised the hospital trustees that the department considered that “the clock would stop for that period of time during which litigation is being resolved and that the department considered that the clock stopped on the certificate of need on January 4, 1977 (when Taxpayers v. Finney was filed) and would not be restarted until that suit was resolved.” The department then advised on March 22, 1978, that the certificate of need had been extendedlo February 3, 1979. On October 5, 1978, the Department of Health and Environment apparently had a change of mind in regard to its authority to extend a certificate of need beyond the one-year period authorized by K.S.A. 1978 Supp. 65-4815. On that date, the director of the department wrote a letter to the administrator of St. Thomas Hospital advising him that the department could not administratively stop the clock because of pending litigation and that authority for such an extension would have to be determined by the district court. The board of trustees and the board of county commissioners concluded that the original certificate of need continued to be a valid certificate of need sufficient to provide authority for the construction of a new hospital.
On July 3, 1978, pursuant to K.S.A. 1978 Supp. 19-18,128, the board of county commissioners, by resolution, authorized the submission to the electorate of the proposition to issue $3,925,000 in general obligation bonds for the purpose of constructing, equipping, and furnishing a new county hospital separate and apart from the existing facility. In calling this election, the board relied on the assurance of the Kansas Department of Health and Environment that the certificate of need, previously issued, was valid and subsisting. On August 1, 1978, the bond election was held with a vote of 1,787 in favor of the issuance of the bonds and 983 opposed. The board of county commissioners thereafter published notice of the proposed sale of general obligation bonds to be conducted on September 13, 1978. On September 12, 1978, the day before the scheduled bond sale, this action was filed in which the plaintiffs, as taxpayers, sought to enjoin the issuance and delivery of the general obligation bonds. The basis of the plaintiffs’ action was (1) that the defendants did not have a valid certificate of need as required by K.S.A. 1978 Supp. 19-18,128, and (2) that no license had been issued for the new county hospital as required by K.S.A. 1978 Supp. 65-4802. Both of the parties filed motions for summary judgment. The trial court sustained the defendants’ motion for summary judgment, overruled the plaintiffs’ motion, and dismissed the action on the basis that the defendants were entitled to judgment as a matter of law. In addition, as a part of its judgment, the district court found that the certificate of need should be extended by order of the court for a period of six months and fifteen days from the date the present litigation is finally resolved.
The plaintiffs raise several issues on the appeal. The primary issue is whether the defendants had a valid certificate of need at the time of the second bond election. In addition, the plaintiffs raise other issues, some of which were raised in the first case and not decided.
At the outset, the defendants challenge the right of the plaintiffs to maintain this action. Stated simply, the defendants contend that the plaintiffs lack standing to challenge the certificate of need granted by the regional health planning council on April 29, 1976. They maintain that, once a certificate of need is granted, rights of appeal are vested only in the applicant, in an appropriate health systems agency, or in another health facility as provided in K.S.A. 65-2a07 and 1978 Supp. 65-4809. If no appeal is taken by one of those parties within thirty days, the agency decision to issue the certificate of need is final. The defendants further contend that the present action constitutes a collateral attack on the issuance of a certificate of need which is outside the purview of the statutory appeal provisions. The trial court, in granting summary judgment to the defendants, agreed with defendants that the plaintiffs lacked standing to challenge the validity of the certificate of need. We have concluded that the district court was in error in so holding.
The plaintiff taxpayers challenged the issuance of the general obligation bonds under the authority of K.S.A. 60-907(a), which provides: “Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.” Section (c) of 60-907 provides that any number of persons whose property is or may be affected or whose taxes may be increased by the illegal acts may join in the petition for injunction. The plaintiffs correctly point out that they had no right to challenge the issuance of the certificate of need in the original hearing and that they did not have a right of appeal at the time the certificate of need was issued. As noted above, appeals from the issuance of a certificate of need are provided only to the applicant, to a health system agency, or to another health facility. It cannot be denied that the issuance of general obligation bonds to construct the hospital may result in an increase of taxes on the property of the plaintiffs. They had no other means of challenging the claimed illegality of defendants’ action other than through a proceeding brought pursuant to K.S.A. 60-907. As we pointed out in Seltmann v. Board of County Commissioners, 212 Kan. 805, 512 P.2d 334 (1973), when his pocketbook is affected, a taxpayer is guaranteed a statutory remedy under K.S.A. 60-907. It is clear from the record in this case that the relief sought by the plaintiffs is precisely that mentioned in the statute and, therefore, plaintiffs were entitled to bring this action.
We turn now to the primary issue presented on the appeal: Whether the defendants held a valid certificate of need, as required by K.S.A. 1978 Supp. 19-18,128, at the time of the second bond election on August 1, 1978. A determination of this issue requires a consideration of the history of health planning legislation and programs in this country during the past several years. Congressional interest in group health planning and resources development began with the enactment of the Hill-Burton program in 1946. That program provided for funds for the construction of needed new hospitals, but it contemplated that the states would receive those funds in accordance with a planning process in which the states would be surveyed as to their needs for additional medical facilities. In 1964, the Hill-Burton act was modified by legislation authorizing the funding of regional or area wide health facilities planning agencies. In 1966, the Comprehensive Health Planning and Public Health Services Amendments (P.L. 89-749) authorized a two-year program of federal support for comprehensive health planning and public health service. Statutory modifications occurred by amendments enacted in 1967 and 1970. The need for strengthened and coordinated planning for personal health services became more apparent every day. It was obvious that overbuilding of health facilities had occurred in many areas and that there was a maldistribution of health services.
In response to the various federal programs, legislation was enacted in Kansas to implement them on a statewide basis. In 1967, the legislature enacted K.S.A. 65-190 et seq., providing for comprehensive statewide health planning by the state board of health, which was authorized by K.S.A. 65-194 to adopt rules and regulations to establish standards and procedures for the preparation and administration of comprehensive statewide health planning. K.S.A. 65-192 authorized the establishment of a state health planning council to advise the state board of health in regard to comprehensive health planning as provided for by public law 89-749. In 1972, the legislature enacted K.S.A. 65-2a01 et seq., which provided for regional health programs and required that a certificate of need be obtained before additional health or medical facilities could be constructed in this state. Although this legislation has been criticized as being somewhat vague (Extendicare v. State Coordinating Council for Health Planning, 216 Kan. 527, 532 P.2d 1119 [1975]), a statutory scheme for health planning and certification was created with the following elements:
(1) A request to build a new hospital was to be sent to the state licensing agency (State Board of Health) and referred by it to a regional planning agency. K.S.A. 65-2a02.
(2) The application for a certificate of need was either approved or disapproved by the regional planning agency. K.S.A. 65-2a02 and 65-2a03.
(3) Certain specified information was required to be contained in the application for a certificate of need, including projected cost estimates of capital expenditures and operating expenses, and a schematic plan if construction was included in the application. K.S.A. 65-2a06.
It is important to note that K.S.A. 65-2a01 et seq. was passed to provide comprehensive health planning in compliance with public law 89-749 passed by the United States Congress.
In 1974, Congress took a different approach and enacted P.L. 93-641 (42 U.S.C.A. § 300k [West Supp. 1974-1978]). The new law was titled “National Health Planning and Development.” Under the new act, regional planning agencies were to be replaced by a state agency in each state whose function it was to approve certificates of need. In response to the new federal legislation, the 1976 Kansas legislature enacted K.S.A. 65-4801 et seq., pertaining to health facilities within the state. This legislation became effective July 1, 1976, and required that an application for a certificate of need be submitted to and approved by the state agency which, by definition in K.S.A. 1976 Supp. 65-4801, was to be the Secretary of Health and Environment. K.S.A. 1976 Supp. 65-4802 specifically provided that a certificate of need and license had to be obtained “under the provisions of this act” before a new health facility project could be undertaken. An application for a license had to “include a certificate of need issued by the state agency.” K.S.A. 1976 Supp. 65-4803. This legislation included K.S.A. 1976 Supp. 65-4818, which provided that the 1976 act did not apply “to any health facility project undertaken prior to the effective date of this act for which a certificate of need was not required at the time such project was undertaken or to a health facility project granted a certificate of need prior to the effective date of this act . . . .” The 1976 legislation provided for the continuing validity of certificates of need previously issued under the provisions of K.S.A. 65-2a01 et seq. which had been extended under the provisions of K.S.A. 65-2a08, where the period of extension was still in effect. It was this statutory exception to the application of the 1976 act that the defendants relied on in the litigation which was before the court in Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434.
As noted above, in Thomas County Taxpayers Ass’n v. Finney, 223 Kan. 434, this court held that there was no statutory authority as of the date of the opinion, January 21, 1978, to authorize the issuance of general obligation bonds to build an entirely new hospital on a new site. Such authority was then provided by K.S.A. 1978 Supp. 19-18,128 which states as follows:
“The board of county commissioners of any county is hereby authorized to issue general obligation bonds of such county, in such sum as may be authorized by an election called and held thereon, for the purpose of acquiring a site for and constructing, equipping and furnishing a new hospital building or facility, separate and apart from an existing county hospital or for the purpose of constructing enlargements and additions to and equipping and furnishing an existing county hospital and the acquisition of ground necessary therefor. No such bonds shall be issued until the question of their issuance shall have been submitted to and have been approved by a majority of the electors voting thereon at an election called and held for such purpose. If the proposed project is a project which requires the issuance of a certificate of need under the provisions of K.S.A. 1978 Supp. 65-4801 et seq. prior to being undertaken, no election shall be called and held on the question of issuing bonds to undertake the project until a certificate of need has been obtained under the provisions of K.S.A. 1978 Supp. 65-4801 et seq. The notice of such election and the proposition on the ballot therefor shall state the purpose for which bonds are to be issued and the amount of the bonds to be issued therefor. Such election shall be noticed, called and held and such bonds shall be issued, sold, delivered, registered and retired in the manner provided by the general bond law. Revenue derived from the operation of any such county hospital may be used for the purpose of paying the principal of, and the interest upon, bonds issued under the authority of this section.” (Emphasis supplied.)
It is important to note that the statute declares that no election shall be held presenting the question to the electors until a certificate of need has been obtained under the provisions of K.S.A. 1978 Supp. 65-4801 et seq. It is this language in K.S.A. 1978 Supp. 19-18,128 which has brought about the controversy in the case now before us.
K.S.A. 1978 Supp. 19-18,128 was originally contained in House Bill 3254, which did not contain the language italicized in the statute above. The additional language, requiring the issuing of a certificate of need before the holding of a bond election, was added to the statute by an amendment made in the Senate. The minutes of the Senate Committee on Ways and Means dated March 30, 1978, show the amendment in the following language:
“A substitute conceptual motion was made by Senator Berman and seconded by Senator Gaines to amend HB 3254 by incorporating the requirement of a prior issuance of a certificate of need from the Department of Health and Environment before elections are held. The substitute motion carried by voice vote.”
The Senate amendment to HB 3254 was accepted by the House and HB 3254 was enacted by the House in the form now found at K.S.A. 1978 Supp. 19-18,128. In addition to the enactment of K.S.A. 1978 Supp. 19-18,128, the 1978 legislature amended several sections of article 48 of chapter 65 but did not amend K.S.A. 1976 Supp. 65-4818 which is discussed above.
In support of their position, the plaintiffs contend that K.S.A. 1978 Supp. 19-18,128 clearly requires that a certificate of need be issued by the state agency as a prerequisite to the calling of a bond election for the construction of a new hospital. They argue that the certificate of need relied on by the defendants, which was issued by the regional planning agency on April 29, 1976, had long since expired and, furthermore, that it was void because of certain procedural defects existing at the time that certificate of need was issued. The plaintiffs maintain that the 1978 statute, K.S.A. 19-18,128, contemplates that a new certificate of need be issued by the state agency before a new bond election could be held.
The defendants contend that the certificate of need issued by the regional planning agency on April 29, 1976, was, at the time the second bond election was held and still is, a valid, subsisting certificate of need. The defendants rely upon K.S.A. 1976 Supp. 65-4818. They argue that the effect of K.S.A. 1976 Supp. 65-4818 is that neither the 1976 act nor the 1978 act is applicable to a project for which there had been previously granted a certificate of need by a regional planning agency under the 1972 act, K.S.A. 65-2a01 et seq. They conclude that the old certificate of need held by the defendants is valid and was sufficient to authorize the second bond election on August 1, 1978, and the issuance of the bonds.
The issue raised by the parties presents a difficult question of statutory interpretation. We have concluded from a careful study of the various statutes that the certificate of need issued by the regional planning council on April 29, 1976, was not a valid certificate of need sufficient to meet the requirements of K.S.A. 1978 Supp. 19-18,128. We have reached this conclusion for two reasons. In the first place, we are convinced from a reading of K.S.A. 1978 Supp. 19-18,128 that the legislature contemplated that a certificate of need from the state agency, as required by K.S.A. 1978 Supp. 65-4801 et seq., would be obtained prior to the issuance of bonds for the construction of a new hospital facility separate and apart from an existing county hospital. Such a requirement, in our judgment, is contained in the specific language of K.S.A. 1978 Supp. 19-18,128 that no election shall be called and held on the issuance of bonds to undertake the project until a certificate of need has been obtained under the provisions of K.S.A. 1978 Supp. 65-4801 et seq. The legislative history discussed above indicates that was the legislative intent. Furthermore, the obtaining of a certificate of need from a state agency would be in compliance with the federal legislation (P.L. 93-641, 42 U.S.C.A. § 300k) which brought about the enactment of K.S.A. 65-4801 et seq. in 1976.
In addition, we have concluded that at the time the bond election was held on August 1, 1978, the certificate of need previously issued by the regional planning council on April 29, 1976, had expired. Under the provisions of K.S.A. 65-2a08, the approval of a certificate of need terminated twelve months after the date of the approval unless the applicant had commenced construction and was diligently pursuing the same to completion, or unless the approval was extended voluntarily by the health planning agency for a period not exceeding twelve months upon good cause shown for the extension. A similar provision is contained in the 1976 act (K.S.A. 1976 Supp. 65-4815). There is no statutory authority for either the state agency or a district court to extend the life of a certificate of need more than twelve months beyond the initial one-year period of approval. There is nothing in the statute which authorizes extension of the life of a certificate of need pending the determination of litigation over the construction of a hospital facility. This is a subject which has been addressed and determined by the legislature. The legislature, by K.S.A. 1978 Supp. 65-4815, has limited to one year the period in which the approval of a certificate of need may be extended by the state planning agency. The clearly expressed legislative intent should be enforced. Neither the state agency nor a district court may extend the period for approval of a certificate of need beyond the statutory period of one year. In the case now before us, even assuming that the certificate of need was validly issued in the first place, the certificate, having been approved and granted on April 29, 1976, could not legally be extended beyond April 29, 1978.
Plaintiffs also contend that the defendants had no authority to issue general obligation bonds for the construction of a new hospital without first obtaining a license for the new hospital issued by the licensing agency as required by K.S.A. 1978 Supp. 65-427 and 65-428. Plaintiffs base their position on K.S.A. 1978 Supp. 65-4802 which provides as follows:
“No person shall undertake a project described in K.S.A. 1978 Supp. 65-4805 unless a certificate of need has been obtained under the provisions of this act; nor shall any person undertake a project prior to licensing which requires a certificate of need under the provisions of K.S.A. 1978 Supp. 65-4803.”
That statute requires licensing before a project for the construction of a new hospital is undertaken. At what point is a project for a new hospital undertaken? We have concluded that K.S.A. 1978 Supp. 65-4802 does not require the obtaining of a license for the new hospital prior to the time a bond election is held for public approval of the issuance of general obligation bonds. At that point, it would serve no useful purpose for the board of county commissioners to obtain a license for the operation of the proposed hospital. Until the people have approved the issuance of the bonds for the financing of the hospital, there would seem to be no sound reason for obtaining a license for its operation. However, we are convinced that K.S.A. 1978 Supp. 65-4802 does require the obtaining of a license for the operation of the hospital prior to the time general obligation bonds are issued and sold to the general public. The sale of such bonds would create contractual obligations on the part of the board of county commissioners. It is logical to conclude that a project for the construction of a new hospital has been undertaken at the time bonds are issued and sold. Thus, we agree with the plaintiffs that the defendants had no authority to issue and sell general obligation bonds until they had first obtained a license for the new hospital issued by the licensing agency, the Department of Health and Environment.
The other points raised on the appeal pertaining to the illegality of the procedures followed by defendants in obtaining the certificate of need in 1976, need not be considered in view of the fact we have held the certificate of need to be invalid and insufficient to support the second-bond election held on August 1, 1978.
The judgment of the district court is reversed with directions to enter judgment in favor of the plaintiffs.
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Per Curiam:
On July 24, 1979, Raymond S. Menendez, voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is BY ORDER OF THE COURT CONSIDERED AND ACCEPTED.
The Clerk of this Court is ORDERED AND DIRECTED to make the certificate VOID and to STRIKE Raymond S. Menendez’s name from the roll of attorneys.
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The opinion of the court was delivered by
JohNSTON, J.:
The defense made against a specific performance is, that the memorandum or evidence of the contract of sale is insufficient within the statute of frauds. Under the statute no action can be brought to charge a party upon a contract for the sale of land unless the agreement upon which the action is brought, or some note or memorandum thereof, shall be in writing and signed by the party sought to be charged, or by his or her agent lawfully authorized. (Gen. Stat. of 1889, ¶ 3166.) The only memorandum of agreement set up in the petition as a basis for plaintiff’s action is the following:
“Leavenworth, March 19,1887.
“Received one hundred dollars of Mrs. D. Byington, account of Chas. J. Ross, to apply on payment of eight thousand dollars for property number 617 and 619 Delaware street, block 74, city proper; two thousand to be paid when abstract and title is furnished; two thousand in ninety days, and balance two years, with interest at 8 per cent, abstract to be furnished within thirty days. J. M. AlleN, Agent.”
Ross contends that this receipt or memorandum is defective in many respects, and wholly insufficient as a basis for the action: (1) It is not signed by the party sought to be charged, nor by any other person lawfully authorized for him. (2) No vendor is named in the receipt relied on. While signed by J. M. Allen, agent, yet the identity of the person for whom Allen was acting cannot be ascertained from the memorandum. (3) The writing does not describe Ross as a vendee or purchaser. (4) The memorandum does not upon its face import an agreement or contract for the sale of any property. It is a mere receipt for money and a memoran dum of another payment to be made by installments, upon some property mentioned therein. (5) The writing does not describe lots 23 and 24, in block 74, in Leavenworth,«nor any other real estate, but only refers to street numbers in some city not named. (6) It does not definitely appear from the writing when, where or how the installments were to be paid, nor what installments should bear interest, nor what was the entire purchase-price, and there is no mention of any promissory note or mortgage, both of which the court required the defendant below to give.
Under the decisions of this court, we think the memorandum relied on is clearly insufficient. It does not contain the essential elements of a contract which can be specifically enforced. To be sufficient, the memorandum or writing should designate the parties to the contract, give a sufficiently clear description of the property so that it can be identified; the price to be paid or other consideration to be given, together with the terms and condition, should be stated; and the party to be charged, or his agent, must have signed the memorandum or writing. “While the form of the memorandum is not material, it must state the contract with reasonable certainly, so that the substance can be made to appear and be understood from the writing itself, or by direct reference to some extrinsic instrument or writing, without having recourse to parol proof.” (Reid v. Kenworthy, 25 Kas. 701.) The writing is obviously vague and indefinite, both with respect to the parties and the character and description of the property sold. Who wps the vendor? For whom was J. M. Allen acting? Was he the agent of Byington, Ross, or some unnamed person? Would not anyone infer, looking at the memorandum alone, that Byington and Ross were the parties to the transaction, and that Allen was the agent of the latter? It is conceded, however, that Allen was not the agent of Ross; and if the writing had been signed by Ross, probably the agency of Allen might have been shown by parol testimony, although the principal’s name was not disclosed by any writing. While both parties need not sign the writing or writings, they must in some way show who are the parties to the contract. “The contract necessarily embraces two parties, each contracting with reference to the real estate — either of whom may be charged upon the contract, if the contract or some note or memorandum thereof is reduced to writing and signed by such party; but neither of whom can be charged, unless the contract or some note or memorandum thereof is reduced to writing and signed by the party to be charged. The contract, note or memorandum must in all cases be in writing; it must in all cases be ’signed by one of the parties, and must in all cases be signed by the party who is eventually to be charged upon it.” (Becker v. Mason, 30 Kas. 701; Grafton v. Cummings, 99 U. S. 100.) The memorandum is not signed by Ross, nor by any one for him, and the omission of this essential is of itself sufficient to defeat the maintenance of the action.
Then, again, the property is not described with sufficient certainty. It is true that an absolutely accurate description of the property is not required, but the property should be so explicitly described that it will be susceptible of identification by reference to other writings and facts which may be shown to the court. If the designation is so definite that the description given in the memorandum can, with the aid of extrinsic evidence, be applied to the exact property intended to be sold, it is enough. (Hollis v. Burgess, 37 Kas. 494.) In this case, however, the memorandum does not show that the property is located in any state, county, or city. The memorandum itself is dated at Leavenworth, and the property is described as being on Delaware street of some “city proper.” If the name of the owner or vendor had been given, it would have aided in the identification of the property; but her name nowhere appears in the writing.
Then, again, there is no certainty upon the face of the writing whether the property sold was real or personal. Only street numbers are mentioned, and it now appears that those are not the ones by which the real estate in question is de-1 scribed. The property is not described as lands, lots, or real estate, and the street numbers may be attached to buildings which may or may not be a part of the real estate. The writing is vague and uncertain with respect to the terms and conditions of the contract, and nothing appears therein with reference to the promissory note and mortgage required, or to any other security for the deferred payments. Although no other writing than the one set out was .mentioned in the pleadings, the plaintiff below introduced in evidence and relies to some extent on certain correspondence between the parties. The writings relied on should have been set out in the pleadings, but we have overlooked that objection, and find that the correspondence does not recognize or supplement the memorandum pleaded, so as to make complete evidence of a contract within the statute. The evidence of a contract may be gathered from several writings or letters, but their relation to each other should appear upon their faces, and cannot' be established by parol evidence. While the memorandum may consist of several parts, all of them must be either physically connected or by direct reference made in one to the other make up the entire agreement of the parties. The letters relied on to supply the essential features omitted from the. memorandum should distinctly recognize and adopt the contract. Quite a number of letters were written to Ross, but only two were written by him. One was the letter of May 4, 1887, which we think contains no recognition or affirmance of the contract which supplements or aids the memorandum of March 19, 1887; and the letter written by him on July 16, 1887, is an explicit disavowal of any contract relation and that he has any claim or interest in the property in controversy. There was no part performance by Ross to take the case out of the statute of frauds, and taking the memorandum and writings together, they are insufficient to sat- . „ . . „ , _T lsv the requirements oí the statute. JNo application has been made to reform the contract so that it shall contain all the terms and conditions of sale, and as it now stands, the written evidence of the contract is indefinite, uncertain, and insufficient to sustain an action for specific performance. (Reid v. Kenworthy, 25 Kas. 701; Becker v. Mason, 30 id. 701; Fry v. Platt, 32 id. 62; Brundige v. Blair, 43 id. 364; Sherburne v. Shaw, 1 N. H. 157; Bailey v. Ogden, 3 Johns. 399; Shipman v. Campbell, 44 N. W. Rep. 171; Nichols v. Johnson, 10 Conn. 192; Fry, Spec. Per., 245.)
The judgment of the district court will be reversed, and the cause remanded with instructions to enter judgment upon the special findings in favor of the plaintiff in error.
All the Justices concurring.
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The opinion of the court was delivered by
JOHNSTON, J.:
The action of Woodrum is based on the contract made between Elwood and Clay, Robinson & Co., which has been set out at length in the statement of the case. It appears that in the spring of 1887, Elwood drove a herd of southern cattle into Washington county, which had been brought from the prohibited district south of Kansas, and were liable to, and did, impart to native cattle a disease known as Texas, splenic, or Spanish fever. At that time, Woodrum was the owner of a herd of native steers, and was keeping them in Washington county. About July 4, 1887, they became diseased, and it is stated that 167 of them sickened and died from the Texas fever. Clay, Robinson & Co. are livestock dealers, with headquarters in Chicago and Omaha, who furnished money to stock-growers and feeders in the west, taking security on their cattle, it being a part of the arrangement that when the cattle were ready for the market they should be shipped to and sold by Clay, Robinson & Co., whose compensation was the interest on the money furnished, and the commission obtained for selling the cattle. Prior to that time, they had furnished Woodrum quite a sum of money,' and in 1887 he was owing them about $8,000. They also had similar relations with Elwood, who was indebted to them in a large sum of money at the same time. The herd of cattle driven into the State by Elwood in 1887 seems to have communicated the Texas fever to several herds of cattle in that section of the State, and heavy claims for damages were made against Elwood for loss and damages resulting from that cause. It is alleged that he was financially embarrassed, and Clay, Robinson & Co., to protect themselves, as they aver, entered into the contract above mentioned. This contract, as will be seen, provides that land and personal property belonging to Elwood should be conveyed and sold to Clay, Robinson & Co., in consideration of which certain acts were to be done by them, certain payments made and notes surrendered, and certain obligations assumed. Among other things, and as a part of the consideration for the sale and conveyance of the property, they were to assume the payment of the claim and lien for damages to the Woodrum cattle by reason of the fever having been communicated to them by the Elwood cattle. Woodrum claimed that he sustained damages on account of the Texas fever to the extent of $4,958, and he brought this action on that provision of the contract wherein Clay, Robinson & Co. assumed the payment of such damages, and asked a personal judgment against them for that sum. He also asked that it might be declared a lien against the Elwood herd of> cattle, but this claim appears to have been abandoned on the trial, and only a personal judgment was sought for or obtained. In the course of the trial, Clay, Robinson & Co. offered testimony tending to establish the defense which they set forth, namely: That Elwood had failed to comply with the terms of the contract, in that he was required to deliver 1,320 head of cattle, but that he fell short of what was required of him, and delivered only 1,105 head. The court excluded this and all testimony tending to show a failure of consideration or a non-compliance by Elwood with the provisions of the contract on his part; and this is one of the principal objections urged by plaintiffs in error.
This ruling was prejudicially erroneous. The defense was proper, and properly pleaded. Woodrum relied on the contract alone, and whatever right he had to a personal judgment against Clay, Robinson & Co. was derived through this contract, to which he was not a party. Unless he has released Elwood, he has a right of action against him for the damages sustained, and it was competent for him to bring this action against Clay, Robinson & Co. It is well settled in this state, that where one person agrees with another to do some act for the benefit of a third person, such third person, though not a party to the promise, may maintain an action against the first party for a breach of the agreement. (Manufacturing Co. v. Burrows, 40 Kas. 361; Mumper v. Kelley, 43 id. 256.) The third party, however, who 'avails himself of such a contract, and claims under its provisions, is subject to the defenses arising: out of the conJ ° tract between the original parties. The contract in this case, as we construe it, is executory, and is entire and indivisible. Its provisions appear to have been dependent on each other, and mutually binding on each of the parties. Elwood agreed to convey numerous tracts of land, and to sell and turn over horses, cattle and sheep, and in consideration of which Clay, Robinson & Co. agreed to assume and pay certain liens and obligations against Elwood, furnish a certain sum of money for payment of other claims, deliver certain promissory notes of Elwood and others, release a lien which they had on a bunch of hogs, and were to allow Elwood to retain certain posts and wood on the land which he agreed to convey. There were incumbrances and liens on a great deal of the real and personal property mentioned, some of which were assumed by Clay, Robinson & Co., and others1 which they did not assume, but expressly stipulated that they should be satisfied and discharged by Elwood. It is true that certain acts were to be performed at certain times, when the other party was required to do certain things on his part, but no one of these provisions appears to be distinct and independent of the others. It appears to us to have been intended as a complete settlement between the parties, and we cannot say that Clay, Robinson & Co. would have purchased any part of the stock and assumed the obligations which they did unless all were delivered as promised, or that the parties understood that the delivery of certain notes or the doing of certain things was to be full compensation for any part of the cattle which w'ere the subject of contract. While certain notes were to be surrendered when certain property was to be delivered, it cannot be said that each constitutes a distinct and severable item which is independent of the other conditions of the contract. The liens or damages assumed by Clay, Robinson & Co. cannot be apportioned to any particular part of the cattle agreed to be delivered. Elwood agreed to sell and turn over 1,320 head of cattle, whereas it is claimed that 215 of that number were never delivered. Would Clay, Robinson & Co. have assumed an obligation to the extent of $4,958 upon a promise to deliver a part of the 1,320 head? Would they be liable on this provision of the contract if none of the property had been conveyed or delivered? Woodrum is claiming the benefit of a promise made to Elwood which was based on conditions to be performed by Elwood, and how can he recover unless those conditions have been performed? He isiu no'better position to enforce the contract derived through the promise to Elwood than Elwood himself would be.
In Benedict v. Hunt, 32 Iowa, 27, an action was brought by a mortgagee against a purchaser of mortgaged premises who had assumed the payment of the mortgage, and it was held that it was a good defense that the grantor of the defendant had no title to the property, and that the consideration wholly failed. And it is also stated that the party for whose benefit the promise is made cannot claim to occupy any better position than the party who made the contract. The New York court of appeals, in a case where a party for whose benefit a promise was made was seeking to enforce it against the promisor, held that a failure of consideration was a good defense, and stated that “there is no justice in holding that an action on such a promise is not subject to the equities between the original parties springing out of the transaction or contract between them. It may be true that the promise cannot be released or discharged by the promisee, after the rights of the party for whose benefit it is said to have been made have attached, but it would be contrary to justice and good sense to hold that one who comes in by what Judge Allen, in Vrooman v. Turner, [69 N. Y. 280,] calls ‘the privity of substitution/ should acquire a better right against the promisor than the promisee himself had.” (Dunning v. Leavitt, 85 N.Y. 30. See also, Flagg v. Munger, 9 N. Y. 483.)
We do not decide that the testimony which was rejected was sufficient to show a failure of consideration, but simply that such failure is a proper defense in the action, and that the testimony offered was competent and material to establish that defense, and should have been received.
Another point only of those presented requires attention. Clay, Robinson & Co. alleged that Woodrum was indebted to them in the sum of $8,000, upon a promissory note executed March 4, 1887, and which has been heretofore mentioned; and they ask that the same should be set off against any claim for a personal judgment that might be made against them under their contract. The court found that there was due to them from Woodrum upon this note, on September 10,1887, which was the date of the contract between Clay, Robinson & Co. and Elwood, the sum of $7,923.26, no part of which has been paid, and, with accrued interest thereon, there was due at the time of the trial the sum of $8,535, which draws interest at the rate of 10 per cent. We think the note and claim thereon was a. proper subject of set-off in this proceeding as it was tried. Only a personal judgment was rendered in the action. Woodrum sought a recovery under the contract of Clay, Robinson & Co. When the contract was made, he was indebted to them in a greater amount than was found to be due from them under their contract. They may have contracted with reference to this indebtedness, and assumed the obligation to Woodrum in the expectation that whatever their liability under the contract might be, it would be set off against his indebtedness to them. There were cross-demands between the parties which in equity and under the statute should be set off against each other, and neither party can deprive the other of the benefits thereof by assignment, “ but the two demands shall be deemed to be compensated so far*as they equal each other.” (Civil Code, §100. See, also, §§ 27, 94, 98. Sponenbarger v. Lemert, 23 Kas. 55; Gardner v. Risher, 35 id. 93; Story, Eq., ch. 38.)
We have treated the ease as the'parties thereto appear to have treated it, as an action upon contract for the recovery of money, in which only a personal judgment against Clay, Robinson & Co. was given. We determine nothing as to what the rights of the parties may be under the liens mentioned in the pleadings.
The plaintiffs in error insist that the Washington National Bank should have been dismissed from the case; but we think that under the pleadings it was entitled to be heard and have its rights determined. Its rights, however, depend on the course of the next trial, the relief sought, and the testimony then offered; and hence, we refrain from expressing any opinion as to its rights under the evidence given at the last trial.
The errors mentioned will require a reversal of the judgment and a new trial, and it is therefore unnecessary to notice the objections with reference to the jury and the findings which they returned. .
The judgment will be reversed and a new trial granted.
All the Justices concurring.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought in the district court of Finney county, by Henry C. Cunningham, Isaac N. McBeth and Edward H. McBeth, partners as The Western Lumber Company, against George W. Keeler and E. L. Hudson, partners as Keeler & Hudson, and Benjamin H. Barr, to obtain a personal judgment against Keeler & Hudson, for the sum of $412.91 and interest, and to foreclose a sub contractor’s lien as against the defendant Barr. The defendant Barr demurred to the plaintiffs’ petition upon the ground that it did not state facts sufficient to constitute a cause s of action, and the court sustained the demurrer; and*the plaintiffs, as plaintiffs in error, bring the case to this court for review.
It appears that the defendant Barr owned certain town lots in Stevens’ second addition to the city of Garden City, and desiring to build a house thereon, contracted with Keeler & Hudson to build the same, and they purchased the lumber and materials therefor from the plaintiffs, and failing to pay a portion of the purchase-price therefor, the plaintiffs filed a statement in the office of the clerk of the district court to obtain a sub-contractor’s lien upon the aforesaid property of the defendant Barr; and the only question now involved in the case is, whether such statement is valid or not. If such statement is valid, then the plaintiffs’ petition stated a good cause of action; but if such statement is not valid, then the petition did not state any cause of action as against Barr. The grounds upon which it is claimed by Barr that the statement is invalid are as follows: First, It is claimed that it was not filed in time. Second, It is claimed that it was not properly verified. Third, It is claimed that the facts stated therein are not sufficient to authorize a sub-contractor’s lien. We shall consider these objections to the statement in their order.
I. Was the statement filed in time? It shows upon its face and it is so alleged in the petition that the contract between the plaintiffs and Keeler & Hudson for the materials furnished by them was made prior to July 13, 1887; and that the contract was completed and the last portion of the materials was furnished on that day; and the petition álleges and shows that the house was completed on August 25, 1887, and the statement for the lien was filed on September 12, 1887. Under the statutes as they existed at the time these materials were furnished and at the time when the statement for the lien was filed, the statement for the lien should have been filed within sixty days after the completion of the building. The words of the statute are as follows:
“ Within sixty days after the completion of the building, improvements or repairs, or the furnishing or putting-up of fixtures or machinery, or the performing of such labor.” (Laws of 1872, ch. 141, §2; Comp. Laws of 1885, ¶4448.)
Now the statement in the present case was certainly filed within sixty days after the completion of the building, and this we think was sufficient. (Clough v. McDonald, 18 Kas. 114; Davis v. Bullard, 32 id. 234; Seaton v. Chamberlain, 32 id. 239; Seaton v. Hixon, 35 id. 663, 665; Shellabarger v. Thayer, 15 id. 619; Crawford v. Blackman, 30 id. 527.)
II. Was the statement for the lien properly verified. The statement for the lien, with the verification, reads as follows:
“ State op KANSAS, FiNNEY Cotxnty, ss. In the Fin-ney County District Court.— On the 12th day of September, 1887, before me, the undersigned clerk of the district court in and for Finney county, state of Kansas, personally appeared Isaac N. McBeth, a member of the firm of Western Lumber Co., composed of Henry C. Cunningham, Isaac N. McBeth and Edward H. McBeth, which said firm has been for more than one whole year last past, and is now, engaged in the lumber business at the city of Garden City, Kansas, and that Benjamin H. Barr then was and now is the owner of lots 23 and 24, in block 38, in Stevens’ second addition to Garden City, Kansas; that on, to wit, 1st day of May, 1887, Keeler & Hudson, contractors and builders, contracted with the said Benjamin H. Barr to furnish all labor and material and build a house for said Benjamin H. Barr on said lots 23 and 24, block 38, in Stevens’ second addition to Garden City, Kansas; that in compliance with said contract the said Keeler & Hudson contracted with the Western Lumber Company to furnish a-bill of lumber to the amount of $654.80; that said Western Lumber Company did, between the 20th day of May, 1887, and the 13th day of June, 1887, both days included, furnish a bill of lumber, an itemized bill of which is hereto attached and made a part hereof, which said lumber actually went into the building erected by said contractors on said lots 23 and 24, block 38, Stevens’ second addition to Garden City, Kansas, aforesaid. It was then agreed that said Western Lumber Company should receive for said bill of lumber the sum of $654.80; that there has been paid on said bill of lumber the sum of $241.89; that there is now due the Western Lumber Company the sum of $412.91; that said contract was duly completed on the 13th day of July, 1887; that said Benjamin H. Barr is justly indebted to the Western Lumber Company on said bill of lumber, in the sum of $412.91, with interest at 7 per cent, from July 13, 1887.
(Signed) I. N. McBeth.”
“Subscribed and sworn to before me, this September 12, 1887. (Signed) . O. A. HardiNG,
[Seal.] Clerk District Court.”
(Indorsed:) “ Mechanic’s lien.— Owner, Benjamin H. Barr. Contractors, Keeler & Hudson. Sub-contractors, Western Lumber Company. Amount due, $412.91. Filed Sept. 12, 1887. O. A. HardiNG, Clerk District Court.”
Here follows, as a part of the statement, a long itemized bill of materials furnished. We think the statement was properly verified.
III. Are the facts stated in the statement for the lien sufficient to authorize a valid lien? We think they are when taken in connection with the other facts stated in the petition. The only objection to the statement in this regard seems to be that it shows that the credit was originally given to the defendant Barr, but the petition and the statement, and the original itemized bill filed with the statement and made a part thereof, all show that the lumber was purchased by Keeler & Hudson of • the plaintiffs for Barr and for his house; and the petition shows that it was actually used in the house; and therefore we certainly think that the statement is sufficient in this particular.
The order and judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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Opinion by
StRANG, C.:
This was an appeal from the report of commissioners appointed to condemn the right-of-way for the railway of plaintiff in error. The plaintiffs below filed their amended petition in the district court of Atchison county, February 4,1888. To this petition the defendant below presented a motion to require the plaintiffs to separately state and number their alleged causes of action, which motion was overruled. A demurrer was then interposed to said petition on the ground, first, that the first count or cause of action in said petition did not state facts sufficient to constitute a cause of action; second, the defendant demurs to the second count or cause of action in said petition, because it did not state facts sufficient to constitute a cause of action; and third, defendant demurs to the petition, because several causes of action are improperly joined. The demurrer was overruled.' May 3, the defendant filed its amended answer and the case went to trial before the court and a jury. May 7, 1888, the jury returned a general verdict for the plaintiffs, and also a special verdict, consisting of answers to a large number of questions submitted to them by the defendant below. The general verdict was for $2,462.09, May 10, the defendant filed a motion to reduce the judgment, first, by $400, upon the ground that the special verdict showed the general verdict was that much too large; also by the sum of $170.59, for the reason that the plaintiffs were not entitled to interest. This motion was overruled. Defendant then filed a motion for a new trial, which was also overruled, and the defendant comes here asking a review of the case by this court.
Counsel for plaintiff in error in their brief first call our attention to their demurrer to the amended petition filed in the court below, and contend that the first count or cause of action therein set forth does not contain facts sufficient to constitute a cause of action. An examination of the petition satisfies us that the objection to this count of the petition is good. This cause of action fails to set up any claim for damages. Each cause of action in a petition containing more than one cause of action must “contain, in and of itself, a full and complete statement of all the facts constituting the cause of action therein sought to be stated. In other words, each count should be separate and distinct from every other count, and be complete within itself,” except that a count subsequent to the first may be made sufficient by a proper reference to the first, or some other preceding count. (Stewart v. Balderston, 10 Kas. 145; Krutz v. Fisher, 8 id. 96.) The first count was designed to set out a cause of action for damages to lands owned jointly by Michael and Sarah Wilkins, arising from the condemnation of the right-of-way of the plaintiff; but it is not complete “in and of itself.” It contains no claim for damages. If it contained the necessary allegations that are wanting, so that it could stand alone as a cause of action, there would be no difficulty in the way of the plaintiffs below recovering damages to at least a portion of the land therein described. They would then have a right to recover for any damage to the south half of the southeast quarter of section 10, because it is admitted that they are joint owners of that portion of section 10, and that it is the ground over which the right-of-way of the plaintiff in error was condemned, and its road-bed constructed. The demurrer to this cause of action must be sustained.
The second count, with its reference to the first, may state a cause of action in favor of Michael Wilkins; but, as there is a demurrer to the petition as a whole, upon the ground that distinct causes of action are joined therein, which cannot be united, and as the same question is raised by objections to evidence, we will examine this count in the light of these objections. This count alleges that the plaintiffs, Michael and Sarah Wilkins, are entitled to damages to the lands therein described, by reason of injuries sustained thereto, growing out of the condemnation of the right-of-way of plaintiff’s railroad. The petition here avers that the lands therein described belong to Michael Wilkins as sole owner thereof. It follows, then, that Sarah Wilkins, who is made a co-plaintiff with Michael Wilkins in this count, has no interest whatever in any damages which might be awarded for injury to the land therein described. The question, then, is, Can the second count, which, if it state a cause of action at all, states one in favor of Michael Wilkins alone, be united, in the same petition, with the first count, which attempts to set out a cause of action in favor of Michael Wilkins and Sarah Wilkins jointly? We think not. Paragraph 4166, General Statutes of 1889, is the provision in our code relating to joinder of actions, the last clause of which reads as follows: “ But the causes of action so united must all belong to one of these classes, and must affect all parties to the action, except to enforce mortgages or other liens.” In this case, the first of the two causes of action affects Michael and Sarah Wilkins jointly, while the second cause of action affects only Michael Wilkins. It cannot be said, then, that the second count affects all the parties to the action, and hence the code forbids their joinder in the same petition. In Palmer v. Waddell, 22 Kas. 352, the court held that—
“ Where two or more persons have separate causes of action against the same defendant, arising from the obstruction of a natural water-course, and the injury of their lands and crops thereby, they cannot unite in the same petition to recover damages for such injuries which are plainly distinct and unconnected.”
See, also, Hudson v. Atchison, 12 Kas. 140; Swenson v. Plow Co., 14 id. 387; Schultz v. Winter, 7 Nev. 808; The State ex rel. v. Comm’rs of Reno Co., 38 Kas. 318; Durein v. Pontious, 34 id. 353; Jeffers v. Forbes, 28 id. 178.
Counsel for defendants in error refer to the case of Comm’rs of Smith Co. v. Labore, 37 Kas. 480. In that case, a father and two sons each owned a quarter-section of land lying together in a body. They entered into a copartnership to breed and raise cattle, and by the terms of the copartnership agreement they were to use the three quarters of land together in the business as one tract. A highway was.constructed so as to affect these lauds. Damages were separately awarded to two of these parties, and none to the third. Each one for himself appealed. On the trial in the district court, by the consent.of parties, the three cases were consolidated and tried together. But several judgments were rendered in favor of two of the parties for damage to their several lands, and against the third party. The court also rendered j udgment for damages in favor of all the parties for injury to the use of their land under their copartnership contract. This court sustained the judgment. But it must be remembered that the several actions in the name of each of the individual owners of the three quarters of land, and the claim for damages to their joint use and occupancy of the same, were joined in the district court, and tried together by consent of the parties, and that the improper joinder of causes of action in the case was by consent, and there was at no time any' objection thereto. For the same reasons, the objections to the evidence concerning damages to lands in sections 15 and 9 should have been sustained. But, aside from this, we do not think the plaintiffs below, or either of them, can recover damages to lands in sections 15 and 9 by reason of the appropriation of the right-of-way for the rail road of the defendant below across and over the south half of the southeast quarter of section 10. We do not think these lands are in any appreciable way damaged thereby. The general rule, in relation to the assessment of damages to land for injuries thereto by reason of the appropriation of a right-of-way by a railroad company, is, that the damages shall be limited to the lot of land over and across which the right-of-way is condemned. Under our statutes this court has extended this rule, by giving a liberal construction to the phrase “lot of land,” so as to include any contiguous) compact body of land used as a single farm. The warrant for this seems to be found in the language of the constitution (section 4, article 12), which provides that the compensation for such right-of-way, appropriated to the use of the company, includes not only the value of the property taken, but also the loss the land-owner sustains in the value of his property by being deprived of a portion of it; and also warranted by the language of the statute (¶ 1395, Gen. Stat. 1889), a portion of which reads as follows: “And for all other damages sustained by such person or persons by reason of such right-of-way so appropriated.” This language not only includes damages for the right-of-way taken, but for all other actual damages sustained; that is, the result of injury by reason of the appropriation of the right-of-way. But we do not think this court has ever gone so far as to say that lands situated, with respect to the right-of-way appropriated, like the lands described in sections 9 and 15 are, should be considered in the assessment of damages because of the appropriation of the right-of-way. It is true that the evidence shows that the plaintiffs pastured these lands, and to that extent used them in connection with lands in section 10. But so they might pasture the land if it was in section 36 or section 6; but we do not think that would authorize the assessment of damage thereto by reason of a right-of-way condemned across the southeast quarter of section 10. These lands are not in a compact body. The land in section 9 is a mile away from the home farm, with a whole section of land belonging to a stranger intervening. But the defendants in error say this land corners with the northwest quarter of section 15, and that the northwest of 15 corners with the southeast of 10, the lot over which the right-of-way was condemned, and therefore all of these lands are contiguous, and as they are used as one farm, by reasou of these lands in sections 15 and 9 being pastured in connection with the home farm, it is proper, under the decisions of this court, to take them into consideration in assessing damages to the lands- of plaintiffs below, on account of the right-of-way over the land in section 10. If this were true, then, if the plaintiffs below owned the northwest quarter of 16, and it was used as a pasture by the plaintiffs in connection with the home lands, that would have to be considered in the assessment of damages, because it cornered with lands that by a succession of corners reached the home tract affected by the right-of-way. It is only when, other lands are so situated with respect to the tract affected by the right-of-way that their value consists largely in their use as a single farm in connection with the tract affected, and the appropriation of the right-of-way has destroyed or seriously injured that use, that they are considered in the assessment of damages. In this case, it is physically impossible for the plaintiffs below to go from their lands in section 10 to their lands either in sections 15 or 9 without going upon the lands of other owners. We think they can still reach these lands by crossing the lands of others by making a new lane at small expense. And if they cannot, they fail to show that they have any right-of-way over other lands to these lands that may not be shut off at any time. As this case goes back for a new trial, we are of the opinion that the lands in sections 9 and 15 should be dropped out of the case.
The motion to reduce the verdict in this case should have been sustained. The special verdict, which by its terms covers and specifies all damages that we think could possibly arise in this case, fixes the damages in the aggregate at a sum $400 less than the amount of the general verdict; and when there is a discrepancy between the general and the special verdicts, the latter controls. On the other hand, it is not error to al low interest on the sum found as damages, and the motion to strike out the item of interest was properly refused.
There are other questions raised in this case by reason of the court’s refusal to give certain instructions, and to submit certain questions to the jury. But as the case will be reversed without considering these complaints, we will not notice them.
It is recommended that the judgment of the district court-be reversed, and the case remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action in replevin, brought by the plaintiff in error against the defendants in error, in the district court of Butler county, for a stock of goods kept in a store in the town of Leon, in said county. The case was tried by the court, and a demurrer to the evidence was sustained, and the plaintiff in error brings the case here, assigning error. The material facts developed on the trial were: That on the 16th day of July, 1886, E. W. Beck-meyer executed a chattel mortgage to J. Benninghoff, the plaintiff in error, upon a stock of merchandise in Leon, Butler county, to secure the payment of $4,260.30. The mortgage was filed for record on the following day; and a renewal affidavit was made and filed on the 7th day of July, 1887. Sometime in the fall of 1886, the mortgagor made a partial transfer of the stock of goods to C. L. King. On the 11th day of December, 1886, King executed a mortgage upon this same stock of merchandise to the W. B. Grimes Dry Goods Company, to secure the payment of $800, due December 6th, 1887, subject to the mortgage given by Beekmeyer to Ben-ninghoff. This mortgage was filed for record on the same day, and a renewal affidavit was filed on the 23d day of December, 1887. F. W. Beekmeyer and C. L. King executed a chattel mortgage upon the same property on the 1st day of June, 1887, to T. K. Hanna, surviving partner of Tootle, Hanna & Co., for $875, payable on the 23d day of May, 1888. This last mortgage was subject to the mortgages given to Benninghoff and the W. B. Grimes Dry Goods Company, and was filed for record on the same day. The stock of goods was re-delivered by King to Beckmeyer, who continued in possession until the 6th day of January, 1888, when there was a conditional sale of the goods to Henry J. Dillon. The following is a copy of the contract for the sale of the stock of goods:
“LeoN, KANSAS, January 6, 1888.
“Agreement between E. W. Beckmeyer and Henry J. Dillon. The parties hereto agree as follows: The said Beckmeyer agrees to sell and has sold to said Dillon the stock,of general merchandise now in the building known as the Butler Co. Store, subject to an incumbrance of $1,800. And the said Dillon hereby agrees to give said Beckmeyer in exchange or payment for said stock of goods the following-described lands, and execute good and sufficient warranty deeds for the same to J. Benninghoff, the said lands to be free and clear of all incumbrance excepting mortgage of $450, and $150, due the Government, which Dillon agrees to pay when due, and one hundred and sixty acres of land. Description of land: Lots 3 and 4 of S. of N.W. j- section 4, township 32, range 22, 160 acres; also the N. of the S.W. £; N. J of the N.W. £ of section 29, township 31, range 23,160 acres; also the S.E. -i- of S.E. I section 15; W. of S.W. £ of S.W. £ of S.W. £ section 14, township 32, range 21, 160 acres — all in Clark county, Kansas; the last-named piece or tract being subject to mortgage of $450, and no more, and also execute to said Beck-meyer a second chattel mortgage on stock of goods for the'sum of $800 with 12 per cent, interest from date of mortgage, said note and chattel mortgage to run one year from its date; the said Dillon to furnish at his own cost abstract, showing said land clear of all incumbrance as above mentioned, and execute deed as above mentioned; these goods to be delivered into his possession. The said Dilion further agrees not to remove goods from Leon, Kansas, and to pay on said first mortgage to Ben-ninghoff at least $50 per week until the whole is paid, the said mortgage to be given to said Beckmeyer for the $800 to cover all goods which may be added to stock of goods, and also book account. The said Dillon hereby represents said land as being nearly all good smooth land, and tillable, with Kansas houses on each quarter; also good wells, and forty acres in cultivation. This trade being made upon the said Dillon’s representations of said land, the said Dillon to comply with the said conditions within six days from this date, or sale is null and void. The said F. W. Beckmeyer to pay all other incumbrance on stock of goods. The said Dillon further agrees to give another note for $130, with the above $800 mortgage which is to be paid February 5, 1888. (Signed) F. W. Beckmeyer.
HeNRY J. DilloN.”
Accompanying this contract, a bill of sale was executed by Beckmeyer, which recited the fact that the property was free from all incumbrance, except a mortgage of $1,800. This sale seemed to have been made with the knowledge and consent of the plaintiff in error. Under this agreement and bill of sale, Dillon took charge of the store on the 8th day of January, and continued in possession until the 18 th, when Ben-ninghoff went to Dillon and demanded possession of the stock of merchandise, who refused to deliver the key to him personally, or to turn over the stock, but consented that Beckmeyer might take charge of the store for him and dispose of the goods for Benninghoff’s benefit and apply the proceeds of sales in paying off Benninghoff’s debt. The key was handed by Dillon to Beckmeyer, in the presence of Benninghoff, who continued in charge of the store until nine or ten o’clock the next day, when the representatives of the defendants in error came in and demanded possession of the store, and, under threats that he would be arrested, Beckmeyer surrendered the key. Dillon was not present at the time, and Beckmeyer stated that he was holding the stock for Benninghoff. On the following day the plaintiff commenced this action. The deeds for the land mentioned in the contract were received by Benninghoff, but on accouut of some defect, they were returned by mail to the parties who had executed them.
The plaintiff in error insists that the mortgage from Beck-meyer to Benninghoff was valid and comes fairly within the rule heretofore laid down by this court, with reference to mort gages upon stocks of merchandise; that, upon the trial there was some evidence to support the claim of the plaintiff in. error to the title to the property in controversy; and therefore the demurrer to the evidence was improperly sustained. The contention of the defendants in error is, that the evidence offered by the plaintiff below conclusively showed that, at the commencement of this action, the mortgage of the plaintiff in error was without force, and hence the demurrer to the evidence was properly sustained.
We think the demurrer to the evidence should have been overruled. The mortgage under which the plaintiff in error claimed title seemed to have been given in good faith, for a sufficient consideration; and there was some evidence to indicate that there was an unpaid balance of about $1,800 still due the plaintiff in error. All of the mortgages under which title was claimed, by both plaintiff and defendants, were given upon the same stock of goods, and such mortgages have been upheld by this court. (Frankhouser v. Ellett, 22 Kas. 127; Howard v. Rohlfing, 36 id. 357.) There was an express recitation in the contract between Beckmeyer and Dillon that the sale was made subject to an incumbrance of $1,800, and in that agreement Dillon promised to pay at least $50 a week on the first mortgage to Benninghoff until the whole was paid. As we view the testimony, there. was evidence to show that when Dillon delivered the key of the store to Beckmeyer, it was for the benefit of Benninghoff. We are not satisfied that the attempted sale by Beckmeyer to Dillon operated as a release of the Benninghoff mortgage. The deeds for the land were executed, but afterward returned. If it did not, the question as to who was in possession of the store when the defendants below obtained possession through Beckmeyer, is not very material. If the first mortgage was not discharged by the making of the contract between Dillon and Beckmeyer, the plaintiff in error had the undoubted right to maintain his action.
We do not care to consider the evidence. That of the plaintiff alone is here, and all that we can now say is, that the facts adduced before the trial court seemed to show a cause of action in favor of the plaintiff in error. Under the well-settled rule of this court, unless there has been a total failure upon the part of the plaintiff to prove a cause of action, or some material fact in issue, the demurrer should have been overruled. (Wilson v. Beck, 44 Kas. 497; K. C. Ft. S. & G. Rld. Co. v. Cravens, 43 id. 650; Gardner v. King, 37 id. 671; Merket v. Smith, 33 id. 66; Wolf v. Washer, 32 id. 533; Brown v. Railroad Co., 31 id. 1.)
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
In the present controversy two petitions in error are presented to us for our consideration, one from Franklin county, in which “The Kansas Farmers’ Mutual Fire Insurance Company, of Abilene, Kansas,” is the plaintiff in error, and Lydia A. Amick is the defendant in error; and the other from Dickinson county, in which D. W. Naill and Lydia A. Amick are the plaintiffs in error, and “The Kansas Farmers’ Fire Insurance Company” is the defendant in error. The facts with respect to this controversy, stated briefly, are substantially as follows: On March 3, 1882, the above-mentioned insurance company was organized as a corporation, a mutual fire insurance company, under the name of “The Kansas Farmers’ Mutual Fire Insurance Company, of Abilene.” On November 7, 1883, this company issued a fire insurance policy to Lydia A. Amick on property situated in Franklin county, and belonging to the second class as defined by §1, chapter 111 of the Laws of 1875. On December 27, 1883, a fire occurred which destroyed the insured property. On January 25, 1884, the insurance company passed a resolution to reinsure all second-class business if satisfactory terms could be made, and to quit the second-class business. But of course the company never reinsured Mrs. Amick’s property, for it had already been destroyed by fire. On December 23,1884, Mrs. Amick commenced an action in the district court of Frauklin county on said insurance policy, against the insurance company, to recover for her loss occasioned by the aforesaid fire. Early in 1885 the insurance company, under chapter 130 of the Laws of 1885, created a guarantee fund of $50,000. On October 17, 1885, a general judgment was rendered in the aforesaid action in Franklin county in favor of Mrs. Amick and against the insurance company for $1,326 and costs, and no’reference was made in such judgment, or in any of the proceedings, either to a first-class or to a second-class business. On January 14,1886, the insurance company changed its name to “The Kansas .Farmers’ Fire Insurance Company.” On July 9, 1887, upon proper proceedings previously instituted by the insurance company in the supreme court, such court affirmed the aforesaid judgment of Mrs. Amick against the insurance company. (Fire Ins. Co. v. Amick, 37 Kas. 73.) On July 27,1887, an execution was issued from the Franklin county district court upon such judgment, and was returned not satisfied. On March 21, 1888, proceedings were instituted by Mrs. Amick in the district court of Franklin county on motion in aid of execution and for the appointment of a receiver. (See Civil Code, § 254, subdiv. 4.) On April 2, 1888, this motion was heard, and on the hearing thereof it was shown that the in surance company had no assets belonging to its second-class business; but what had become of such assets has not been shown. It seems to be admitted that it had assets belonging to its first-class business. On August 13, 1888, said motion was decided, and D. W. Naill, the sheriff of Dickinson county, was appointed receiver, and on September 20, 1888, the insurance company, for the purpose of having the aforesaid order of the district court of Franklin county appointing such receiver reversed, brought the case to this court on petition in error; and that is the first petition in error above mentioned. On November 20,1888, the company filed a supersedeas bond, but that bond provided merely that the obligors should pay all the damages that Mrs. Amick might sustain by reason of the proceedings in error from the order of the district court appointing the receiver, provided such order should be affirmed in whole or in part. Ou May 22, 1889, a general execution in favor of Mrs. Amick, and against the property generally of the insurance company, was issued from the Franklin county district court to D. W. Naill, the sheriff of Dickinson county. The insurance company was described in the execution as “The Kansas Farmers’ Mutual Fire Insurance Company, alias The Kansas Farmers’ Fire Insurance Company.” The sheriff was about to levy upon property of the company, when, on June 25,1889, proceedings were commenced by the insurance company in the Dickinson county district court against the sheriff and Mrs. Amick to perpetually enjoin them from levying that execution, or any other execution issued upon the aforesaid judgment, upon any property of the insurance company belonging to its first-class business, or upon its guarantee fund. A temporary injunction was granted at the time by the district j udge, and a proper undertaking was given by the insurance company. On July 24, 1889, Mrs. Amick filed an answer setting up the Franklin county judgment and her interests and rights thereunder. On July 27, 1889, the insurance company replied by filing a general denial. On April 4, 1890, Mrs. Amick filed a motion to vacate the aforesaid temporary injunction, and the motion was heard on the same day. On June 10, 1890, a trial was had upon the merits of the action before the court without a jury, and a perpetual injunction was granted restraining and enjoining the defendants in that action, Naill and Mrs. Amick, from interfering with any of the assets or property of the insurance company except such as pertained exclusively to its second-class business; and also from interfering with the insurance company’s guarantee fund. It was shown at the trial that the insurance company had no assets or property belonging to its second-class business, but what it had done with the same was not then or at any other time shown. The defendants in that action then filed a motion for a new trial upon various grounds, which motion was overruled; andón September 2, 1890, they brought the ease to this court for review on petition in error; and this is the second petition in error above mentioned.
We think the order of the district court of Franklin county appointing the receiver must be affirmed, and the judgment of the district court of Dickinson county granting the perpetual injunction must be reversed. The judgment sought to be enforced by Mrs. Amick was a general judgment in her favor and against the insurance company and its property generally, and the execution followed the judgment. The judgment reads as follows:
“It is therefore considered and adjudged by the court, that the said plaintiff, Lydia A. Amick, have and recover of and from the said The Kansas Farmers’ Mutual Fire Insurance Company, defendant, the sum of $1,326, so as aforesaid found to be due from the said defendant to the said plaintiff, together with the costs of this action, taxed at $104.39, and that execution issue.”
If this judgment should be applied only to the second-class assets or property of the insurance company, it should have been so rendered; but it was not so rendered, and it must now be held to be valid and binding, and conclusive, precisely as it was rendered. It is now nearly seven years since the fire occurred. It is nearly six years since the action to recover for the loss was commenced. The action was contested, but a general judgment was nevertheless rendered in favor of Mrs. Amick and against the insurance company, and it is now more than five years since such judgment was rendered, and certainly the validity or regularity of the judgment cannot now be questioned. Neither can the execution issued upon the judgment and following the judgment be questioned. A void execution, or an execution issued upon a void judgment, may be questioned in any court, or anywhere, but a valid execution, following a valid judgment, cannot be questioned anywhere, except as follows: If the execution were valid, but irregular, or issued upon an irregular judgment, it might be questioned in the court from which it issued, but it could not properly be questioned anywhere else.
The order of the district court of Franklin county will be affirmed, and the judgment of the district court of Dickinson county will be reversed.
All the Justices concurring.
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Opinion by
Green, C..:
The plaintiff in error instituted this suit in the district court of Shawnee county, to recover damages from the city of South Topeka for a failure to place danger signals at a point where a well-traveled way, which had been used, as he claimed, for more than fifteen years by the traveling public, although not a regularly laid-out road, intersected a street of such city which had been excavated a distance of some four or five feet below the surface across such traveled way.
At the April term, 1888, the case was tried by a jury, and resulted in favor of the city. The plaintiff below brings the case here, and assigns error in the giving of the sixth instruction, and the refusal of an instruction requested by him. These assignments we shall consider together, as they raise substantially the same question. In the sixth instruction the court said to the jury:
“ I further instruct you that before you can find for the plaintiff, you must find from the evidence that, at the time of the alleged accident and injuries complained of, plaintiff was in a public street or public highway in the city of South Topeka. If the plaintiff was not in a public street or public highway when he was precipitated over the bank into the exea- vation on Kansas avenue, then he cannot recover. Therefore, if you find that the defendant city excavated the avenue up to the west line of the avenue, that is, up to the private land belonging to Ritchie or other land owner, and that plaintiff approached Kansas- avenue across the open private land of Ritchie or other person, and was not in a public street or public highway when the plaintiff and his carriage were precipitated over the bank into the excavation, then the plaintiff cannot recover. The city was uot required to put up danger signals at any point along the excavation in the avenue except at the'crossing or intersection of the avenue by public streets or public highways; and unless plaintiff approached the avenue by a public street or public highway where it was the duty of the city to put up danger signals, then he cannot recover in this action.”
The evidence is not preserved in the record, and we shall assume that the facts authorized the giving of this instruction which we think is a correct statement of the law. It is stated in the petition that the plaintiff was passing on said by-road entering Kansas avenue, and was wholly ignorant of the excavation in said Kansas avenue, and was not aware of any danger, and while attempting to drive on to said avenue about nine o’clock at night, was accidentally precipitated in said excavation with his team and carriage, whereby he was injured; that the accident occurred by and through the negligence of the defendant city in leaving said excavation on Kansas avenue where the by-road entered the same wholly unguarded in the night-time by lights or otherwise. Was this such an omission, upon the part of the city, as made it chargeable with negligence, and was the law as laid down by the trial court correct? We must resolve these questions in favor of the city. There was no obligation resting upon the city to provide a way over private property to its public streets and avenues, and the fact that the ground over which the plaintiff passed had been used by the public for a number of years would not cast upon the city any duty to erect barriers or place danger signals upon such ground, unless the city had full and complete control over the same, as a part of the public streets of the city. There wasjnothing to indicate that this ground had ever been dedicated to the public, in such a way as to render the city liable, or give the plaintiff any right to use it as a traveled way. It is not the duty of a city to provide means of access from private property to its streets, nor is it liable for a failure to guard its streets from approach, at points where such approach is dangerous. (Goodin v. City of Des Moines, 55 Iowa, 67; Zettler v. City of Atlanta, 66 Ga. 195; Young v. District of Columbia, 3 MacArthur, 137.)
The judgment of the district court should be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GreeN, C.:
Prior to the 15th day of February, 1888, John Brill, one of the defendants in error, owned the north half, and the north half of the southwest quarter, and the southeast quarter of the southwest quarter, of section 8, township 12, range 7 east, in Davis (now Geary) county, containing four hundred and forty acres. The plaintiff in error desired to rent said land, and on February 8, 1888, wrote to Brill, who lived at Green Haven, New York, proposing to lease the land for the term of five years, and in payment, as rental, agreed to .construct a fence so as to inclose the whole tract, and pay the taxes assessed against it during the continuance of the lease, reserving the right to remove the fencing at the expiration of the lease, and that he would furnish security for the payment of the taxes which might be assessed against the land. In answer to said letter, Brill wrote the plaintiff, on the 15th day of February, 1888 : “You can have the land as written to me for three years. I wish to sell it, and shall try and sell it to you if I should see you.” Upon the receipt of this letter, Erickson had a lease prepared for the period of three years, which he signed and transmitted to Brill for his signature, but did not furnish any security for the payment of the taxes; this lease was never returned to the plaintiff in error. Upon the strength of Brill’s letter, Erickson inclosed the land, and on the 18th of April following, turned his stock upon it. John and William Wallace, the other defendants in error, resided on adjoining land,- and, it is claimed, knew that Erickson was fencing this land. On the 23d of April, after the plaintiff in error had completed his fence, and put his stock, consisting of one hundred and seventy-five head, in the inclosure, the Wallaces went upon the land and drove all the stock therefrom, and threatened to fight the plaintiff in error, and retained possession of the land, until restrained by the temporary order of the judge of the district court.
This action was commenced to enjoin the defendants from interfering with the plaintiff’s possession or control over the land claimed to have been leased, and for a mandatory order requiring the Wallaces to remove their stock and property from the land, and that John Brill be decreed, by the judgment of the court, to execute and deliver to the plaintiff a lease to the lands containing the terms and conditions upon which it is claimed he agreed to rent the same to the plaintiff. Brill answered by a general denial, and further alleged that he never received any acceptance of his offer to the plaintiff, and that the plaintiff had never given security for the payment of the taxes as proposed by him in his first letter. John Wallace answered that he was the owner of the land in question, and William Wallace set up the defense that what he did in the premises was done as the agent of John Wallace. Upon the final hearing of the case, the district court found against the plaintiff and refused to grant him any relief, and he brings the case to this court for review.
The facts are not disputed. There is but one question in the case: Was the plaintiff entitled to the relief asked? We must answer this in the negative. As we view the facts, the plaintiff made a proposition to lease the land for five years and to furnish security for the payment of the taxes; the defendant Brill proposed to rent it for three; this letter was dated on the 15th of February, and, judging from the date of Erickson’s letter, should have reached him by the 22d, and, according to the plaintiff’s own evidence, was not answered until the 1st of March, and the moving consideration, so far as Brill was concerned — the security that the taxes would be paid — was not furnished, a'nd it does not appear from the letter that the proposition was fully complied with. There was no completed contract between the parties. We do not think, upon this state of facts, the plaintiff was entitled to a judgment for the specific execution of the lease claimed. An offer of one party assented to by the other will constitute a contract, but the assent must comprehend the whole of the proposition. It must be exactly equal to its extent and terms, and must not qualify them with a new matter; therefore, a proposal to accept or an acceptance of an offer, on terms varying from those proposed, amounts to a rejection of the offer.
“ If in answer to a proposal to grant Black Acre a person replies that he is ready to close the matter and will take White Acre, there is no acceptance. Neither is there an acceptance where executory proceedings on each side are involved in the proposal, and the party professing to accept introduces a variance and formulates his adoption of the offer with conditions and qualifications which essentially alter some of the constituents or materially vary the effect.” (Eggleston v. Wagner, Mich., 10 N. W. Rep. 37; Burkhalter v. Jones, 32 Kas. 5; Baker v. Johnson, 37 Iowa, 188; Hamlin v. Wistar, Minn., 18 N. W. Rep. 145; Bentz v. Eubanks, 41 Kas. 28.)
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
GreeN, C.:
This was an action brought in a justice’s court in Labette county, by J. W. Pond, against Marion and Mary Holderman, on the 12th day of March, 1885, upon the following bill of particulars: *
“ The plaintiff for his cause of action against the defendants says: That the defendants are indebted to the plaintiff in the sum of $ 190, upon an account for seven hundred bushels of corn at twenty-five cents per bushel, $175; and for sixty acres of corn stalks at twenty-five cents per acre, $15. Said defendants took and converted the same to their own use, and said amount is still due. Wherefore, plaintiff prays judgment against the defendants for $190, with seven percent, interest from January 1, 1885, and costs of suit.”
The case was taken to the district court and there tried, and resulted in a verdict and judgment for the plaintiff and against Marion Holderman, for $209.88. No service seemed to have been made upon the other defendant. The plaintiff in error filed a motion for a new trial, which was overruled, and he brings the case here for review.
From the special findings of the jury, it appears that the laud upon which the corn in question grew was situated in the Cherokee nation, in the Indian Territory, and, at the time of the alleged conversion, was fully matured but ungathered; and that the defendant purposely caused his stock to be driven to the field where the said corn was standing, to have them feed upon it. It further appears, from the evidence, that this land had been leased by the defendant to a firm, of which the plaintiff was a member, and that he had succeeded to the interest of the firm in such lease; that at the time of the making of the lease and the alleged conversion of the crop, the plaintiff was a resident of Kansas and the defendant, who was a “squaw-man,” resided in the Indian Territory.
It is contended by the plaintiff in error that at the time of the alleged wrong no jurisdiction had been accorded to any court outside of the limits of that country, unless one of the parties be an inhabitant of that country and the other an inhabitant outside thereof, either as a plaintiff or defendant, and in that case exclusive original jurisdiction was then given to the nearest United States district court; that an action of such a character as this cannot be maintained in this state.
Laying aside the question of the right of the plaintiff below to waive the tort and recover as upon an implied contract, which seems to be well settled upon reason and authority, can the courts of this jurisdiction give the plaintiff below a remedy for a wrong committed in the Indian Territory, when there is a question as to whether there was a remedy there? The primary right of the plaintiff below to recover rested upon a tort committed where the remedy was confined to the nearest United States district court, which had exclusive original jurisdiction. Could the plaintiff below, “upon the theory of the implied promise and its infraction,” recover in this jurisdiction for a wrong committed where the jurisdiction is restricted to the federal court, if, indeed, any remedy existed at all?
We thimk the tort charged, and the right and remedy growing out of such tort, must be determined by the law of the territory where the wrong was committed. The rule is well settled, that if there is no right to recover for an alleged injury in the state or territory where it is said to have been committed, there can be none in any other state; and if the state in which the alleged injury is committed has declared the consequences and defined the liability therefor, that law must govern. (Campbell v. Rogers, 19 Law Rep. 329.)
By the seventh article of the treaty between the United States and the Cherokee nation, proclaimed August 11, 1866, (14 U. S. Stat. at Large, p. 800,) it is provided that the United States district court the nearest to the Cherokee nation shall have exclusive original jurisdiction of all civil and criminal cases. We think this provision of the treaty settles the jurisdiction of this case.
Section 2103 of the Revised Statutes of the United States makes void all contracts for the leasing of land in the Indian country, unless executed in the manner therein provided and approved by the secretary of the interior. The lease between Pond and Holderman was in violation of this law, and conferred no rights upon Pond to cultivate the land; he was there without authority. The question naturally suggests itself, whether or not, under such a state of facts, he could have maintained an action, in any form, against the defendant below in the Indian Territory. If he could not there, he should not be permitted to do so here. He can obtain no greater rights here than he had there. In order to maintain an action, founded upon an injury to person or property, the act which is the cause of the injury or damage and the foundation of the action must be actionable, or punishable at least, by the law of the place where the injury was done. (Cooley, Torts, 471; Wharton, Conflict of Laws, § 478; Holland v. Pack, Peck, [Tenn.,] 151; Le Forrest v. Tohman, 117 Mass. 109; Smith v. Condry, 1 How. 28; McLeod v. Railroad Co., 58 Vt. 727; Carter v. Goode, 50 Ark. 155.) In the latter case, Goode sued Carter in Arkansas, to recover damages for an injury to a mule. It was proved upon the trial that the injury was committed in the Cherokee nation, where Carter and Goode were at the time residing; that they were citizens of Arkansas and had no permit to reside in the Indian country; that at the time the injury was inflicted, the mule was trespassing in Carter’s inclosure, which Goode knew it was in the habit of doing; and that Goode had no redress whatever for the injury; and that the act was not punishable in the Indian Territory. The court held that the action could not be maintained, because the act which caused the injury was not punishable or actionable by the law of the place where it was committed.
As the plaintiff below had no permit or license to lease the land where the corn was raised, and there being grave doubts whether he had any right to recover for the alleged conversion of this property in the Indian Territory, where the tort was committed, and if such right did exist, the jurisdiction was vested in another court, we think it follows from such a state of facts that the trial court had no jurisdiction.
We recommend a reversal of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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Opinion by
Green, C.:
George Muller owns the northwest \ of section 28, township 29 south, of range 2, in Sedgwick county. The plaintiff in error condemned a right-of-way for a railroad over said land, and five and twelve-one-huudredths acres were taken, for which the commissioners allowed $439.40; The defendant in error appealed from this award to the district- court, and a jury assessed his damages at $800, and a. judgment was rendered accordingly. The railroad company excepted, and brings the case here.
I. The first error alleged is in the admission of evidence*
The plaintiff was asked how much less the land was worth immediately after the railroad went through, per acre, than it. was before. An objection to this question, on the ground that it called for a conclusion, was overruled, and the witness was permitted to answer: “ Five dollars less an acre.” This, with similar evidence, it is claimed, is clearly prejudicial, because it is a statement of the judgment and conclusion which the jury should reach and not the witness; that it was improper to permit the witness to usurp the province of the jury and give his own opinions and conclusions. In the case of W. & W. Rld. Co. v. Kuhn, 38 Kas. 675, the following question and answer were held to be erroneous:
“Q. How much less, in your opinion, is this farm worth after -the railroad company had established its track through it, irrespective of any benefits from any improvement proposed by the railroad company to be derived from said track, taking into consideration all incidental loss, inconveniences and damages, present and prospective, which may reasonably be expected or shown to exist from the maintaining of said railroad track, to be continued permanently? A. About $2,100.”
The court said, with reference to this evidence:
“The court below certainly should not have permitted this evidence to be introduced. It involved substantially everything that the jury were called upon to determine, and left nothing for the jury to decide. It invaded the province of the jury. It really amounted to letting the witness himself determine by his own opinion what the plaintiff’s damages were, and the amount which the plaintiff should recover in the action. It had no reference particularly to the market value of the land either before or after the right-of-way was taken; nor any reference to any specific fact which might tend to show what such market value was, or to increase or diminish the same; but it involved all these things and a great deal more. Upon the questions involved in this case we would refer generally to the following authorities: 3 Suth. Dam., ch. 16; Union Rld. Co. v. Moore, 5 Am. & Eng. Rld. Cases, 352, note, and cases there cited; McReynolds v. B. & O. Rly. Co., 14 id. 175, note, and cases there cited; Neilson v. Chicago &c. Rly. Co., 14 id. 244, note, and cases there cited; G. & G. Rld. Co. v. Foreman, 20 id. 225, note, and cases there cited.”
We can see no very great distinction between the two questions; each calls for the opinion and conclusion of the witness, and upon the authority of the cases, supra, it was error to permit the question and answer. (G. H. & W. R. Co. v. Hall, 2 Cent. L. J. 456; Elliott, Roads and S. 198; Mills, Em. Dom., § 165; Ohio &c. Rly. Co. v. Nickless, 71 Ind. 271; Dalzell v. Davenport, 12 Iowa, 437; Hosher v. Kansas City, 60 Mo. 320; Tingley v. Providence, 8 R. I. 493; Rockford v. McKinley, 64 Ill. 338; Alabama &c. Rld. Co. v. Burkett, 42 Ala. 83; Cleveland &c. Rld. Co. v. Ball, 5 Ohio St. 568; City of Omaha v. Kramer, 25 Neb. 489; 41 N. W. Rep. 295; 13 Am. St. Rep. 504.)
II. In the cross-examination of the plaintiff, the question was asked as to what sales had been made in the neighborhood, upon which he based his judgment as to' values, and, without being asked, he volunteered this statement: “A neighbor of mine, right north of me, has one hundred and twenty acres, and was offered six thousand dollars.” The defendant in error moved that this statement of the witness be stricken out. The request was denied, and a proper exception made. This, we think, was error, and the court should have withdrawn the statement from the jury.
The plaintiff in error complains of certain instructions given and refused, but we see nothing prejudicial in these. While the thirteenth instruction, in relation to damages for the accidental setting out of fires, or the accidental killing of stock, may not have been applicable and supported by evidence, the defendant below was not prejudiced thereby, as the jury allowed nothing for such injuries.
For the reason indicated in the admission of evidence, we recommend a reversal of the judgment.
By the Court: It is so ordered.
IIortoN, C. J., and Valentine, J., concurring.
JOHNSTOJN, J.:
I agree that there must be a reversal, but I base my conclusion solely on the second ground of error stated in the commissioner’s opinion.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought before a justice of the peace of Cowley county on January 31, 1887, by G. B. Shaw & Company againt Yates Smith and James W. McClellen, for the recovery of $12 and interest, upon the following instrument in writing, to wit:
“Cambridge, April 30, 1886.
“On or before the first day of October, 1886, we promise to pay to the order of G. B. Shaw & Co., at their office in Cambridge, twelve dollars, for value received, with interest after maturity, at the rate of 10 per cent, per annum, until paid.
- “This note is given in part consideration of the sale to Y. Smith of eight bushels flax seed, by said G. B. Shaw & Co., and as a further consideration therefor, we agree to plant fourteen acres with said seed, to cultivate, harvest and clean the same in proper and careful manner, and deliver to G. B. Shaw & Co., at Cambridge, Kansas, on or before the first day of December, 1886, the whole crop raised therefrom, at a price mentioned below per bushel of fifty-six lbs., for pure and prime flax seed. Flax seed not pure and prime to be inspected and graded subject to the rules of the St. Louis Merchants’ Exchange ; and should we sell or trade, or attempt to offer to sell or trade such crop to any other person or persons than said G. B. Shaw & Co., or order, then the note hereto attached shall immediately become due and payable; and the said G. B. Shaw & Co., or their assigns, are hereby authorized to enter any building or premises without any legal process whatever, and seize and remove such crop whatsoever (and in whosoever’s possession ) the same may be found; and to pay me the balance on demand, after the amount due upon said note has been deducted, together with all costs and expense incurred, ■where seizure is necessary.
“Price to be paid per bushel on basis of pure, to be 35 cents less than St. Louis market price on day of delivery.
Yates Smith.
James W. McClellen.”
Afterward the case was taken on appeal to the district court, where the case was tried before the court and a jury, with the result hereafter stated. The plaintiff’s bill of particulars simply set up the foregoing instrument, and asked judgment thereon for $12, and interest at the rate of 10 per cent, per annum from October 1, 1886. The defendants’ amended answer thereto and cross-petition alleged that the flax seed for which the instrument sued on was given was purchased by Smith for the purpose of sowing it and raising a crop; that it was warranted by the plaintiffs to be good, but that it was worthless; that he (Smith) sowed it, but that it did not germinate; and that he lost his time, labor, and use of his ground; and that he was damaged thereby in the sum of $150, and he asked judgment for that amount and costs of suit. The trial resulted in a verdict in favor of the defendants and against the plaintiffs for the sum of $90, and judgment was rendered accordingly, and the plaintiffs, as plaintiffs in error, bring the case to this court for review.
It appears from the evidence that the facts of the case are substantially as follows: The plaintiffs, G. B. Shaw & Co., were dealers in flax seed, at Cambridge, in said Cowley county. Smith went to their place of business about April 20, 1886, and found Joseph Fraley, their agent, in charge. Shaw & Co. did not have any flax seed on hand, but they were about to order some. Smith told Fraley to order eight bushels for him for the purpose of sowing it and raising a crop. Fraley told Smith that they would furnish the flax seed upon the conditions substantially as set forth in the foregoing instrument. Afterward the flax seed arrived and Fraley gave notice to Smith. Smith then, on April 30, 1886, went to Cambridge and received the seed, about eight bushels in amount, inclosed in a sack, from Fraley, and took it home and sowed it upon about twelve acres of ground. The seed appeared to be good, and Fraley and Smith believed it to be good; but in fact it was not good and it did not germinate, and Smith lost all his time and labor in procuring it, and in preparing the ground for sowing it and in sowing it, and he got no crop and lost the use of his ground; and upon these facts the jury found in favor of the defendants and against the plaintiffs, and assessed the defendants’ damages at $90, as aforesaid. The only questions now involved in the case are as follows: 1. Under the contract between the parties, and under the circumstances of the case, was there any such implied warranty on the part of Shaw & Co. respecting the sufficiency of the flax seed for the purposes of sowing it and raising a crop, that the plaintiffs may be defeated in their, action on the aforesaid written instrument? 2. If so, then under such contract and warranty, and circumstances, may the defendants Smith and McClellen, or rather Smith, recover damages for Smith’s losses necessarily occasioned by reason of the worthlessness of the flax seed? 3. And if so, then what is the measure of Smith’s damages?
The maxim of the common law, caveat emplor, is the general rule applicable to purchases and sales of personal property so far as the quality of the property is concerned; and under such maxim, the buyer, in the absence of fraud, purchases at his own risk, unless the seller gives him an express warranty, or unless, from the circumstances of the sale, a warranty may be implied. In the present case no express warranty was given, and the question then arises, Was there any implied warranty? At the time when the contract for the purchase and sale of the flax seed was entered into, such seed was not present so that it could be inspected by the purchaser, and when it arrived and was delivered to him the defect in the seed was not apparent, and was probably not discoverable by any ordinary means of inspection, and it was not discovered until after it was sowed and when it failed to germinate. When the original contract for the purchase and sale of the ‘flax seed was made, the flax seed was purchased and sold for. the particular purpose, known to both the buyer and the seller, of sowing it in a field and of raising a crop from it, and therefore this purpose was a part of the contract and demanded that the seed should be sufficient for such purpose. It in effect constituted a warranty on the part of the seller that the seed should be the kind of seed had in contemplation by both the parties when the contract was made. The purchaser had to rely upon the seller’s furnishing to him the kind of seed agreed upon, and the seller in effect agreed that the seed furnished should be the kind of seed agreed upon. The entire contract when made was executory, and it was to be executed and performed afterward, and to be performed in parts and at different times. The seller was first to furnish the seed, and he did so in about ten days after the contract was made, and of course the seed was to be a kind of seed that would grow. The purchaser was afterwards to sow it and to raise a crop. And afterward the purchaser was to sell, and the seller was to buy the crop upon certain terms and conditions expressed in the contract. We think there was an implied warranty on the part of the seller that the seed should be sufficient for the purpose for which it was bought and sold. (Wolcott v. Mount, 36 N. J. L., [7 Vroom,] 262 ; same case, 13 Am. Rep. 438; same case, 38 N. J. L. [9 Vroom] 496; same case, 20 Am. Rep. 425; Van Wyck v. Allen, 69 N. Y. 61; same case, 25 Am. Rep. 136; White v. Miller, 14 N. Y. S. P., [7 Hun,] 427; same case, 71 N. Y. 118; same case, 27 Am. Rep. 13; Whittaker v. McCormick, 6 Mo. App. 114.)
We also think that the purchaser may recover damages from the seller for all the losses necessarily sustained by the purchaser by reason of the worthlessness of the flax seed furnished by the seller. See the authorities above cited, and also the following: Passinger v. Thorburn, 34 N. Y. 634; same case, 90 Am. Dec. 753; Flick v. Wetherbee, 20 Wis. 392; Ferris v. Comstock, 33 Conn. 513; Randall v. Raper, El. B. & E. 84. And it is not claimed that the purchaser in the present ease recovered for more than the foregoing losses. The claim is that the purchaser had no right to recover at all, and that the seller had the right to recover on the instrument sued on.
No other questions are presented.
We think no material error was committed in the case, and the judgment of the court below will be affirmed.
All the Justices concurring.
Per Curiam:
It is understood that the same questions of law and fact are involved in the case of G. B. Shaw & Co. v. T. L. Jones, from Cowley district court, that are involved in the ease of Shaw v. Smith, just decided, and the judgment of the court below in this case will be affirmed upon the authority of that case.
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The opinion of the court was delivered by
Horton, C. J.:
The First National Bank of Leoti commenced this action to restrain the collection of certain taxes assessed against it. An order, temporarily restraining the treasurer and sheriff from levying and collecting the same from the property of the bank, was granted. The defendants demurred to the plaintiff’s petition, upon the ground that there was a defect of parties defendant; that the petition did not state facts sufficient to grant the relief prayed for, and that it did not state a cause of action against the defendants. Tbe court sustained the demurrer and dissolved the restraining order. The plaintiff excepted and brings the ease here.
The petition alleges that the plaintiff is and was at all times mentioned a national bank; that E. W. Fisher and John H. Edwards are treasurer and sheriff, respectively, of Wichita county; that on May 10, 1890, the treasurer issued a tax-warrant against the plaintiff for $1,569.14 to the sheriff, and that the whole amount thereof was erroneously, wrongfully and illegally assessed against plaintiff. The petition further states, that on the 22d of March, 1889, the township assessor took a statement of the amount of property held by the bank, and a statement of the amount of stock of the bank as the personal property of the bank, and so assessed it in solido, without notifying the stockholders, and without giving them opportunity to claim exemptions.' The petition further alleges, that in January, 1890, the board of county commissioners, having demanded and received from the president of the bank a list of stockholders with the amount of stock held by each on March 1, 1889, and of surplus, undivided profits and real estate, increased the bank assessment on the stock, which had once before been assessed, so that $700.84 were added to the amount of the tax, and that this was done without giving' any notice to the stockholders, and that the assessment against the property was made as before, in solido, and as the property of the bank. It is contended that the method of the officers in assessing and attempting to collect the taxes complained of is contrary to §5219 of the United States Revised Statutes, and also contrary to various sections of chapter 107, General Statutes of 1889, providing for the assessment and collection of taxes. Said §5219 reads:
“Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property of the owner or holder of such shares, in assessing taxes imposed by authority of the state within which the association is located, but the legislature of each state may determine and direct the manner and place of taxing all of the shares of the national-banking associations located within the state, subject only to two restrictions, that the taxation shall not be at a greater rate than is assessed upon any other moneyed capital in the hands of individual citizens of such state, and that the shares of any national-banking association owned by non-residents of any state shall be taxed in the city or town where the bank is located, and not elsewhere. Nothing herein shall be construed to exempt the real property of associations from either state, county or municipal taxes to the same extent according to its value as other real property is taxed.”
Paragraph 6868, General Statutes of 1889, being §22, article 6, of the act relating to the assessment and collection of taxes, provides that—
“ Stockholders in banks and banking associations organized under the laws of this state or the United States shall be assessed and taxed on the true value of their shares of stock in the city or township where such bank or banking association is located, and the president, cashier, or other managing officer thereof, shall under oath return to the assessor, on demand, a list of the names of the stockholders and the amount and value of stock held by each, together with the value of any undivided profits or surplus, and said bank or banking association shall pay the tax assessed upon said stock and undivided profits or surplus, and shall have lien thereon until the same is satisfied: Provided, That if from any cause the taxes levied upon the stock of any banking association shall not be paid by said association, the property of the individual stockholders shall be held liable therefor: Provided further, That if any portion of the capital stock of any bank or banking association shall be invested in real estate, and the bank shall hold a title in fee simple thereto, the assessed value of said real estate shall be deducted from the original assessment of the paid-up capital stock of said bank or banking association, and said real estate shall be assessed as other lands or lots: And provided further, That banking stock or capital shall not be assessed at any higher rate than other property.”
It has been many times held by the supreme court of the United States, that the authority of the states to tax the shares of national-bank stock is derived wholly from the act of congress, and that, without the consent of congress, these bank-stock shares could not be taxed by state authorities at all. (McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of U. S., 9 id. 738; Weston v. Charleston, 2 Pet. 449; People v. Weaver, 100 U. S. 539-543.)
The statute of the state may determine and direct the manner and place of taxing all shares of national-bank associations located within the state, subject, however, to the restrictions of §5219 of the U. S. Rev. Stat. Under the state statute, which is in accord with the United States statute, authority is given to tax the shares of national banks as part of the taxable estates of the owners of the shares, but in levying these taxes, the state is prohibited from assessing them at a greater rate than is assessed upon other moneyed capital in the hands of other individual tax-payers. The tax so authorized by congress “is a several tax upon the shares of each individual stockholder or shareholder, as distinguished from a lumping tax or a tax in solido, upon the bank itself.” (National Bank v. City of Richmond, 39 Fed. Rep. 309; National Bank v. City of Richmond, 42 id. 877.)
The shares of national banks must be assessed for taxation as the property of the individual stockholders or shareholders, respectively. (Hershire v. National Bank, 35 Iowa, 272.) Under the statute of our state, and according to general practice in other states, the national banks pay the taxes thus assessed for the individual stockholders, but the tax cannot be a lumping tax or a tax in solido upon the bank only. (Bradley v. The People, 4 Wall. 459; National Bank v. Commonwealth, 9 id. 353.)
It is conceded in this case that the assessment of the 22d of March, 1889, was and is void. The second assessment, according to the allegations of the petition, was a lumping tax, or a tax in solido upon the capital stock of the national bank and not upon the shares or upon the individual owners of the shares. The assessment of the entire stock of the bank in solido against the bank was invalid.
Drummond, J., said, in Collins v. Chicago, 4 Biss. 472, that—
“ The capital stock of the national bank, as such, cannot be assessed under state authority. The only way that such a stock can be reached is to assess the shares of the different stockholders in the same manner that assessments are made in other cases against property owned by the citizens and inhabitants of the state.” (National Bank v. Britton, 105 U. S. 322; Ball, Nat. Banks, 215-224.)
It was said in Van Allen v. Assessors, 70 U. S. 596, that—
“In most of the states, if not in all, the personal property of all individuals and corporations is listed, valued and assessed by public officers under legislative authority. ' The first proviso (of the U. S. Rev. Stat. §5219) simply requires that the shares of individuals in national-banking associations shall be included in this valuation and assessment; and, inasmuch as personal property of different descriptions is often valued and assessed by different rules, it further requires that it shall not be so included at a greater rate than is assessed upon other moneyed capital in the hands of citizens. . . . Now, by taxation in common, we understand taxation by a common rule and in equal degrees. To tax the shares of citizens in these associations by other rules, or in greater degrees than other like property, would as effectually retard, impede, burden and control the operation of the national currency act as to tax the associations themselves or their lawful operations, and would be clearly unwarranted by the constitution.”
The individual stockholders of a national bank are allowed the same deductions from the amount assessed against them upon their shares of stock as other tax-payers in the state, owning moneyed capital, are allowed. But of course no double deduction or exemption can be allowed to any stockholder. (Whitbeck v. National Bank, 8 Sup. Ct. Rep. 1121; Wasson v. National Bank, Ind., 8 N. E. Rep. 97.) Therefore, the second assessment against the bank was void, and as both assessments were void, the officers of Wichita county had no right to issue a warrant for their collection, or for the collection of any part of the same. It is urged, however, that the bank must pay, or offer to pay, any part of the tax lawfully or justly due, before it can obtain the relief prayed for. According to the allegations of the petition, however, there is no part of the tax lawfully or justly due.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring.
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Opinion by
SteaNG, 0.:
Action on contract for sale of land. The defendant pleaded fraudulent representations as inducement for making the contract, and rescission of the contract. Afterward, with leave of court, over the objection of the plaintiff, the defendant amended his answer, affirming the contract, and alleging that the fraudulent representations were made with intent to deceive him, and that he relied on them, and claiming damages in the sum of $1,850 as the difference between the real value of the land and what it would have been worth if .as represented. This amendment was made at the cost of the defendant in the sum of $75.60, and the case continued to the next term.
June 18, 1888, the cause was tried by a jury, resulting in a verdict for the sum of $496.40 in favor of the plaintiff. The jury also ma’de the following special findings:
“ Q. 1. Did the plaintiff himself, knowingly and with intent to deceive, make any false representations to the defendant concerning the land described, which were relied upon by him, and which induced the defendant to purchase said lands? A. Yes.
“Q,. 2. If you answer the last question in the affirmative, then what were such representations? Set forth the same fully. A. The plaintiff did misrepresent by saying the laud lies very nicely, or very well.
“ Q,. 3. Did Mr. Barrows, the agent of the plaintiff, with intent to deceive the defendant, make any false representations to him concerning the land described, which were relied upon by the defendant, and which operated to induce him to purchase said land ? A. He did.
“ Q,. 4. If the last question is auswered in the affirmative, then state what were said representations. Set them forth fully. A. He said the block laid very nicely and smoothly, with the exception of a small draw across the south end.
“Q,. 5. Were both plaintiff and defendant residents of the city of Parsons at the time of the making of the contract set forth in the petition ? A. Yes.
“Q,. 6. Were the means of ascertaining the lay of the land, the location of the draws or ravines, and other matters in re-' lution thereto, equally within the reach of both plaintiff and defendant? A. Yes.
“Q. 7. Could the defendant, by the exercise of reasonable diligence, have ascertained the facts concerning the lay and character of the land described before signing the contract? A. Yes; and we think he did.”
The plaintiff filed a motion for a new trial, which was overruled, arid he brings the case here for review. The first error assigned is based upon the action of the court in permitting the defendant to amend his answer over the objection of the plaintiff-. It is claimed that the amendment substantially changed the cause of defense, and is therefore erroneous, under §139 of the code of procedure. Amendments of pleadings are largely within the discretion of the trial court; and in this case the fact that the court allowed the amendment only at the cost of the party asking it, and continued the case to the next term of court, indicates a proper exercise of judicial fairness and discretion. If § 139 was the only section upon the subject of amendments in our code, the contention of the plaintiff would possess more force, but the following §140 cuts an important figure in this connection. “The court, in every stage of action, must disregard any error or defect in the pleadings, or proceedings, which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.” Were the substantial rights of the adverse party affected by the amendment allowed by the court ? We think not. The court required the party amending to pay all the costs, amounting to $75.60, as a condition upon which his amendment was allowed; and the case was continued until the next term of the court. The plaintiff was not taken by surprise and compelled to go to trial without an opportunity to secure evidence to meet the new condition of things in the answer. He had ample time to prepare his case for trial under the answer as amended. We do not see how the substantial rights of the plaintiff were affected by the amendment. Now, suppose the plaintiff had wanted to amend his pleading; if the court had refused, he could have dismissed his case, paid his costs, and commenced his action over again with his petition as he desired to make it. '
The plaintiff's rights in a case should be no greater than those of the defendant; and where a court permits a defendant to amend his answer upon condition that he pays the cost and submits to a continuance of the case, he is given no greater rights than the plaintiff may take. Every amendment of a pleading which substantially changes a cause of action or defense is not erroneous. It is only when such amendments are so made as to affect the substantial rights of the adverse party that they constitute error. (Civil Code, § 140.) In this case no substantial right of the plaintiff was affected by the amendment allowed in the manner and upon the conditions of its allowance.
The next contention of the plaintiff is, that under the issues as they were made up when the case was tried, the plaintiff was entitled to recover the contract price for the land, unless the defendant established by a preponderance of the evidence that by reason of false representations as to material matters of fact, made by the plaintiff or his agent, upon which the defendant relied, and had a right to rely, he was induced to agree to pay more for the land than he would otherwise have done; and the plaintiff asserts that the defendant failed to show this. The difficulty about the plaintiff’s position in this matter is that the jury found against him upon the evidence, both in their general verdict and special findings. The jury returned a general verdict for the plaintiff for only $496.40; so they in effect found the land to be worth in the neighborhood of $900, from which they deducted the $400 already paid by the defendant, giving the plaintiff a verdict for the difference between what they found the value of the land to be and the amount already paid thereon. In the special verdict the j ury found that the plaintiff and his agent both knowingly, and with intent to deceive, made false representations affecting the value of the land.
Plaintiff’s counsel seek to overcome all this by calling the court’s attention to and construing special answers of the jury numbered 6 and 7. No. 6 is as follows:
“Q,. Were the means of ascertaining the lay of the land, the location of the draws or ravines, and other matters in relation thereto, equally within reach of both plaintiff and defendant? A. Yes.”"
In the sense in which the jury seem to have answered this question, it does not affect the plaintiff’s right of recovery. They had just answered that the plaintiff and defendant were both residents of the city of Parsons; and being residents of such city, the means for going to and making an examination of the land were probably equally within the reach of each. But the other special answers of the jury, as well as the general verdict, show that the jury believed the allegations of the plaintiff, that he did not know the lay of the ground, so far as the particular block in controversy was con cerned, that the plaintiff and his agent did, and that the defendant told them he did not, and relied upon their statements in relation to the lay of the land. The plaintiff seems to think that because there was a greater number of witnesses on his side in relation to these facts, that the preponderance of the evidence was with him, or at least was not with the defendant. The preponderance of the evidence does not depend upon the greater number of witnesses, but upon the greater weight of evidence; and the jury are the exclusive judges of the weight to be given the testimony. The jury weighed the evidence in this case, and found in favor of the defendant, and we cannot say they did not properly adjust the scales. The seventh special finding reads as follows:
“Q. Could the defendant, by the exercise of reasonable diligence, have ascertained the facts concerning the lay and character of the land described before signing the contract? A. Yes; and we think he did.”
This question and answer, standing by themselves, are susceptible, perhaps, of both constructions contended for by the parties. But this question and answer must, if possible, be harmonized with the other special answers, and with the general verdict. In the first and third answers, the jury say that the plaintiff' and his agent made false representations with intent to deceive, and that the defendant relied on them, which he could not have done if he had ascertained the facts for himself before signing the contract; and this is so plain a proposition that it is difficult to believe that the same jury, at the same time that they answered the first and third questions, and in connection therewith, intended in answering the seventh question to say that the defendant had ascertained the facts about the lay of the land for himself before signing the contract. If we put such a construction upon this last question and answer, they are in direct conflict with the general verdict. Taking all the special answers together, and in connection with the general verdict, we cannot think the jury intended to say that the defendant ascertained the lay of the block of land in any way, except from the statements of the plaintiff and his agent, before he signed the contract therefor. We must conclude, therefore, that by this answer the jury meant to say that the defendant exercised reasonable diligence, by making inquiry of the plaintiff and his agent before signing the contract.
The plaintiff also complains of the instructions, or portions thereof. The instructions are very full and complete, covering all the questions that in any way arose in the case, and, taken all together, we think are not only not erroneous, but very fair to the plaintiff.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
An ordinance of the city of Atchison which took effect February 29,1888, attempted to extend the corporate limits of that city so as to include an eighty-acre tract adjoining the city, generally known as “Spring Garden Addition,” described as the north half of the northwest quarter of section number 7, township number 6, of range number 21, in Atchi-son county. On the 14th day of October, 1889, Luther 0. Challiss commenced his action to enjoin the official authorities of the city of Atchison from exercising jurisdiction, over the real estate. He alleged in his petition that the proceedings of the mayor and council of the city of Atchison, in attempting to extend the limits of Atchison city so as to include Spring Garden addition, were without jurisdiction, and void. The trial court, after hearing the evidence, ruled that the annexation proceedings of 1888, set forth in the petition, were immaterial and in no wise affected the status of the real estate. If this had been the only conclusion of law made by the court below, the plaintiff would have been entitled to judgment, because the answer of the defendants admitted the passage, approval and publication of the ordinance complained of, but denied generally all the other allegations of the petition. The district court, however, ruled that by a plat filed on February 20, 1860, the eighty-acre tract in controversy became a part of the city of Atchison as “Spring Garden Addition;” that from that date it had always been embraced within the corporate limits of the city of Atchison, and was a part of such city at the commencement of this action. Therefore the prayer of the petition was denied and judgment rendered in favor of the defendants and against the plaintiff for costs.
It is evident from the record, and especially from the findings of fact of the trial court, that much testimony was presented and considered by the court, not dearly embraced within the issues of the pleadings. The pleadings, however, might be considered as amended so as to embrace the findings found by the trial court. It appears from the findings of fact, that in July, 1867, the owners and occupants of the eighty-acre tract of land denied the jurisdiction of the officials of Atchison city over the real estate, and in 1874, Geo. T. Challiss, one of the owners of the tract of land, commenced his action in the district court of Atchison county against M. Quigg, the county treasurer of the county, and Charles Krebs, the county clerk of the county, and the mayor and council of the city of Atchison, to enjoin and set aside all taxes levied upon the property as lots and blocks since 1867, and also to enjoin the further levy of taxes by lots and blocks upon the real estate. On December 31, 1875, judgment was rendered in favor of the plaintiff and against the defendants, enjoining them from setting up or exercising any right to tax the real estate as lots or blocks. The officials of Atchison city subsequently caused the said real estate to be assessed by lot-and-block subdivisions as within the corporate limits of Atchison city. George T. Challiss commenced another action in 1876 against the county treasurer of Atchison county, and the mayor and council of the city of Atchison, to enjoin the sale of the real estate for such taxes, on the ground that the same was not subject to taxation by lots or blocks, but by acres only, and not subject to taxation within the city of Atchison, but in Shannon township only, and also to enjoin them from further assessing said property by lot-and-block subdivisions or as within the city. On July 25, 1877, judgment was rendered in that action for the plaintiff and against the defendants, and the court decided that the taxation by the officials of Atchison city for 1875 and 1876 was unauthorized, illegal, and void, and enjoined the county treasurer from taking any steps for the collection of the taxes. After that the mayor and council of the city of Atchison did not exercise any control or jurisdiction over the real estate in controversy, until after the adoption of the ordinance referred to in the petition. During all that time the real estate was taxed in Shannon township, and the voters residing thereon voted in Shannon township and not in Atchison city.
There is an inference from the findings of fact that Luther C. Challiss is in privity with George T. Challiss, who recovered the various judgments referred to, but this is not clearly found. It appears that on February 20,1860, George T. Chal-liss was the owner of the eighty-acre tract of land, and that subsequently he platted it as Spring Garden addition. One judgment was rendered on the 31st day of December, 1875, and the other on the 25th day of July, 1877. Luther C. Challiss has been the owner of a part of the eighty-acre tract about ten years. Both of the judgments were rendered more than ten years before the commencement of this action, one judgment being rendered fourteen years before the commencement of this action, and the other twelve years. If the annexation proceedings of 1888 in no wise affected the status of the eighty-acre tract, as ruled by the trial court, then the judgments rendered in favor of George T. Challiss and against the city of Atchison, not having been reversed or vacated, are binding and conclusive evidence against the defendants, not only in favor of George T. Challiss, but also in favor of all in privity with him. If the judgments in favor of George T. Challiss are conclusive and the annexation proceedings are without force, all of the property owned or claimed by George T. Challiss at the rendition of his judgments cannot be regarded as any part or portion of the city of Atchison, under the platting and records of 1860 or 1861.
In this case, this court acts only as a court of appellate jurisdiction, and not a court of original jurisdiction. The trial court, while deciding that the annexation proceedings of 1888 are immaterial, nevertheless decided against the plaintiff. We shall not pass upon the various questions raised and presented in the briefs which have not been ruled upon by the trial court. It will be time enough to consider these questions when the court below has rendered some decision thereon. Under the circumstances, in order that substantial justice may be done to all the parties, we have concluded it best that a new trial should be granted. If the plaintiff in this case is in privity with George T. Challiss, who obtained the judgments referred to, or if such judgments in any way protect this plaintiff against the exercise of authority by the officials of Atchison city, then, clearly, the relief prayed for by him must be granted if the annexation proceedings are immaterial or without any force. We more readily perceive the necessity of a new trial, because the evidence introduced by the parties is not embraced in the record, and we cannot very well review supposed rulings of the trial court which are not contained in the conclusions of law, nor apparently anywhere else in the record presented to us.
The case will be remanded with directions to grant a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action by H. P. Bishop against Hattie R. Douglass and John A. Bolz, to quiet his title to a quarter-section of land in Jackson county. The case turns on the question of the validity of the tax deed to Bishop. The certificate of acknowledgment to the tax deed is alleged to be fatally defective. The acknowledgment is as follows:
“The State of Kansas, Coukty of JacksoN, ss.: I hereby certify that before me, W. S. Hoaglin, justice of the peace, personally appeared the above-named E. D. Rose, clerk of said county, personally known to me to be the clerk of said county at the time of the execution of the above conveyance, and to be the identical person whose name is affixed to and who executed the above conveyance, as clerk of said county, and who acknowledged the execution of the same to be his voluntary act and deed, as clerk of said county, for the purposes therein expressed.
“Witness my hand this 6th day of May, A. D. 1872.
W. S. HoagliN, Justice of the Peace.'”
Paragraph 6991, Gen. Stat. of 1889, prescribes the general form of a tax deed, and to this form is annexed the form of a certificate of acknowledgment. That reads:
“ The State of KANSAS,-COUNTY, ss. : I hereby certify that before me,-a-in and for said county, personally appeared the above-named G. D., clerk of said county, personally known to me to be the clerk of said county at the date of the execution of the above conveyance, and to be the identical person whose name is affixed to and who executed the above conveyance, as clerk of said county, and who acknowledged the execution of the same to be his voluntary act and deed, as clerk of said county, for the purpose therein expressed.
“Witness my hand (and official seal), this-day of-A. D. — »
It has already been decided that —
“A tax deed that is substantially in the form prescribed by the statute is valid on its face, although immaterial words of the statutory form are omitted, if everything of substance required by the statute as to form is found in the deed, when all of the recitations of the deed are taken together and so considered.” (Mack v. Price, 35 Kas. 136.)
In the certificate of acknowledgment to the tax deed, under which H. P. Bishop claims, the words “in and for said county” were omitted. The question presented is, whether this omission renders the deed invalid. We think not. The caption shows that the acknowledgment was taken in Jackson county, and in this state, and the certificate also shows that the tax deed was signed by E. D. Eose, the county clerk of Jackson county, in this state, and that as such clerk he appeared before W. S. Hoaglin, a justice of the peace, in Jackson county and the state of Kansas, and acknowledged the execution of the tax deed, as clerk of Jackson county, in this state, for the purpose therein expressed. We think that, even in the absence of the words “ in and for said county,” the presumption is that W. S. Hoaglin exercised his functions as a justice of the peace within his jurisdiction, that is, within his township, in the county of Jackson and state of Kansas.
In Bradley v. West, 60 Mo. 33, Wagner, J., in delivering the opinion of the court, said:
“An objection was raised to the introduction of one of plaintiff’s deeds in evidence, on the ground that it was not acknowledged in conformity with the law of the state of New York, where the acknowledgment was taken, or in accordance with the provisions, of the statute of this state. The acknowledgment was taken before a justice of the peace in Delaware county, and is in all things in due form, except that the certificate does not state that he took it in the town for which he was officially acting, the law giving justices of the peace power to take acknowledgments in the town in which they resided. But we think the objection is- not tenable. Where a conveyance is acknowledged before an officer authorized to take such acknowledgment, within the limits of his jurisdiction, it will be presumed that such acknowledgment was actually taken within such limits.”
In Sidwell v. Birney, 69 Mo. 144, it is stated that—
“The objection to the acknowledgment is, that it does not appear to have been taken before an officer known to the laws of this state; and that it does not appear of what county the officer making the certificate was circuit clerk. ‘ Circuit clerk ’ is the title by which the clerk of the circuit court is ordinarily designated both by lawyers and laymen, and while, as an official designation, it is not rigorously exact, yet being in common use and reasonably certain, we are of opinion that it sufficiently identifies the officer taking the acknowledgment as the clerk of the circuit court. We aré also of opinion that it sufficiently appears from the face of the certificate that the person taking the certificate was circuit clerk of Schuyler county. The venue of the certificate is ‘State of Missouri, Schuyler county.’ This shows that the certificate was granted in Schuyler county, and the presumption is that the officer exercised his functions within fiis jurisdiction.”
In Carpenter v. Dexter, 8 Wall. 513, it is decided that—
“ It will be presumed that a commissioner of deeds in New York, whose authority to act is limited only to his county, exercised his office within the territorial limits for which he was appointed, although the only venue given to his certificate of acknowledgment be ‘state of New York.’”
Mr. Justice Field, in delivering the opinion in that case, among other things, said:
“Now, the certificate of proof produced in this case shows a substantial conformity with the law of New Yoi’k of 1813 on the subject, which was in force when the certificate was made. The venue to it is simply ‘state of New York,’ and it is objected that the certificate has no assignable locality, and is, therefore, fatally defective. In support of this position, the case of Vance v. Schuyler is cited. In that case, the supreme court of Illinois held a certificate insufficient to authorize the admission of a deed without proof of its execution, because the only means of determining where it was acknowledged was the venue ‘Lincoln v. Wiscassett.’ This is a different case from the one at bar. The words ‘state of New York’ present some definite locality, at least, while there can be none to the words ‘Lincoln v. Wiscasselt.’ The commissioner of deeds in New York had authority to act only in his county, and it will be presumed, although the state, be named, that the officer exercised his office within the territorial limits for which he was appointed. ... As already stated, courts will uphold a certificate if possible, and for that purpose will resort to the instrument to which it is attached. Thus, in Brooks v. Chaplin, the certificate of acknowledgment did not show in what state the acknowledgment was taken, and the omission was supplied by reference to the deed, in which the grantor described himself as a ‘resident of Suffield, in the county of Hartford, and state of Connecticut.’ The acknowledgment was taken two days after the date of the deed, having as its venue simply ‘Hartford county,’ and the court said that it was a fair presumption, in the absence of evidence to the contrary, that the deed was executed at the time it bore date, and at the place of the grantor’s residence, and that, finding the acknowledgment taken so soon afterward in the county of Hartford, it could intend no other than the same county of Hartford where the deed was supposed to have been executed.”
Against the certificate of acknowledgment, it is urged that no presumption can be indulged in. If this were true, then the certificate must not only embrace the omitted words, but must also recite in what particular township of Jackson county the acknowledgment was taken. (Phillips v. Thralls, 26 Kas. 780; Wilcox v. Johnson, 34 id. 655; Railroad Co. v. Rice, 36 id. 593.)
It is not the practice for an acknowledgment taken before a justice of the peace to state that it was taken in the township where the justice holds his office. If the statute had been literally followed in this case, it would be necessary to presume that the acknowledgment was actually taken within the limits of the jurisdiction of the justice of the peace — that is, within his own township. So it seems that some presumption must be allowed.
Among the many cases cited to sustain the views of the plaintiff in error are Willard v. Cramer, 36 Iowa, 22, and Smith v. Garden, 28 Wis. 685. These are the strongest cases referred to. In the Iowa case, it does not appear that the certificate of acknowledgment had any venue or caption. It wholly failed to show the county of the notary public making the certificate; therefore, that case is unlike this, because it did not show that it was taken within the jurisdiction of the officer, and, therefore, it could not be presumed that the officer took the acknowledgment in Marshall county, or in any other county for which he was a notary public. In the Wisconsin ease, the judge taking the acknowledgment failed to recite that the grantors of the deed “were known to him, or not being known to him, that their identity was satisfactorily proved.” In that case, the statute was not substantially complied with, and differs from this, because we cannot presume that the grantors in the deed were known to the officer taking the acknowledgment.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action commenced on December 13, 1886, before a justice of the peace of Topeka, by Lydia Nichols, then in life, against Joel Baughman, on an account for rent, etc., the correctness of which was verified by her affidavit. At her request the justice of the peace ordered the defendant to file his bill of particulars, which was done. Mrs. Nichols, on leave of the court, filed an amended bill of particulars on an account, the correctness of which she also verified by affidavit, wherein she claimed $204.70. These were the pleadings. The case was tried before the justice of the peace on January 4, 1887, and resulted in a judgment in favor of Mrs. Nichols. Baughman appealed to the district court. The case was tried in the district court with a jury on October 5, 1887, on the pleadings filed with the justice. When the case- was called for trial in the district court, Mrs. Nichols offered her bill of particulars in evidence, rested her case, and asked for judgment. Baughman then asked permission to file his affidavit denying the correctness of the plaintiff’s bill of particulars. The court refused, to which ruling he excepted. Baughman then asked permission to file an amended or additional bill of particulars. This was refused, and thereupon he withdrew his bill of particulars or set-off.
This proceeding was filed in this court on March 1st, 1888, and since that time Mrs. Nichols has died. The action has been revived in the name of George D. Hale, the administrator of her estate. Counsel for Baughman says:
“That the rulings of the district court deprived him of all hearing; that even admitting the truth of the account of Mrs. Nichols, would that prevent the account of the plaintiff in error also from being correct? They can both be true, which in part is true in this case. A portion of the accounts of each party is correct, due and owing by one party to the other, and it only awaits an adjudication and settlement of the disputed items of each side to settle the whole matter in dispute. But the action of the trial court in refusing the filing of the affidavit denying the validity of plaintiff’s claim, and in refusing the introduction of any evidence in the case, was a denial of what justice courts are established to maintain, and was an error that this court ought to correct.”
The petition in error contains the following specific allegations of error only:.
“1. The court erred in refusing to permit plaintiff in error to file his affidavit denying the correctness of the claim of the defendant in error.
“2. In refusing to permit the plaintiff in error to file his amended and additional set-off, when requested.
“3. In the exercise of its judicial discretion in the trial of said cause, whereby plaintiff in error was prevented from having a fair and impartial trial.
“4. In overruling the motion for a new trial.”
In S. K. Rly. Co. v. Gould, 44 Kas. 68, (24 Pac. Rep. 352,) this court decided that—
“ Where a claim or demand for money arises out of contract either express or implied, and is for something furnished or performed by one party for another, but is not founded upon a promissory note or other instrument in writing, and a statement of such claim or demand is made out in detail and in writing by the claimant or demandant and presented to the other party, such statement constitutes an account within the meaning of § 84 of the justices’ act, and §108 of the civil code.”
Under the provisions of said § 84 of the justices’ act, the correctness of an account duly verified by the affidavit of a party, his agent, or attorney, is taken as true, unless the denial of the same be verified by the affidavit of the opposite party, his agent or attorney. The opinion in Railway Co. v. Gould, supra, further stated that a defendant had the right under said § 84, in both the justice’s court and the district court, to introduce evidence to prove any set-off or counterclaim which he had, without any affidavit denying the correctness of a plaintiff’s account; therefore, if Baughman simply desired to prove his bill of particulars or set-off, which he had filed, it was not necessary for him to file any affidavit denying the correctness of Mrs. Nichols’s account. In this view, the court committed no error in refusing to permit him to file the affidavit which he requested. If Baughman desired to dispute the items in the bill of particulars of Mrs. Nichols, he ought not to have delayed his motion until after the jury had been impaneled and the plaintiff had submitted her case.
The statute provides that the case shall be tried de novo in the district court, upon the original papers on which the case was brought before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to be made, or new pleadings to be filed. (§ 122 of the Justices’ Act.) The matter of amending the pleadings after a trial is commenced is largely within the discretion of the trial court, with which we cannot interfere, unless that discretion has been abused. (Taylor v. Clendening, 4 Kas. 525; Robbins v. Sackett, 23 id. 301; Map Co. v. Jones, 27 id. 177-180.)
If the bill of particulars of plaintiff below was not correct, Baughman must have known it before the trial. The trial before the justice of the peace was several months prior to the trial in the district court, and nothing is shown by the record of any surprise. The pleadings in the district court were the same as the pleadings before the justice of the peace. Under the circumstances, we cannot say there was any abuse of judicial discretion upon the part of the trial court in refusing to permit the verified affidavit to be filed after the commencement of the trial. There is no showing or statement contained in the record that Baughman had any further offset, and as he made no motion to amend his bill of particulars or set-off, until after the commencement of the trial, the refusal to amend, without any other showing, was not an abuse of discretion on the part of the trial court.
We are referred to the case of Chinberg v. Mfg. Co., 38 Kas. 228, as decisive against the ruling of the trial court. In that case, Chinberg had paid, as he supposed, the note sued upon. Only a copy of the note was contained in the bill of particulars. He expected to prove payment, nothing else. He had in his possession the note, and, as he supposed, the original note, and therefore was surprised upon the trial when it was claimed that he had paid a forged note. Under such circumstances, we held that he should have been permitted to deny, under oath, the execution of the note sued on, so that the question, whether the note sued on was a forgery or the note paid was a forgery, could be submitted to the jury. In the Chin-berg case, there was surprise at the claim of the manufacturing company that a copy or forged note had been paid, but not the original note. All this came up on the trial, and therefore the application to deny the execution of the note could not have been intelligently made at any prior time.
If a party through his own laches fails to make a motion to amend or correct his pleadings until after the trial of the case has actually commenced before a jury, he cannot complain if the court, in its discretion, refuses to permit the issues to be changed.
The judgment of the district court will be affirmed.
All the Justices concurring.
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Opinion by
StraNG, C.:
This was an application to amerce C. D. Nelson, sheriff of Barber county, for failure to return an execution issued out of the district court of Harper county, in the case of Bittman, Taylor & Co. v. W. O. Mize, within the time prescribed by law. The application was heard by the court January 26, 1887. Plaintiffs introduced their evidence and rested their case. The defendant Nelson demurred to the evidence of the plaintiffs, which demurrer was sustained, and judgment was rendered against the plaintiffs for cost. A motion for a new trial was overruled. The plaintiffs bring the case here for review. Among other alleged errors, the plaintiffs assign for error the action of the court in. sustaining the demurrer of the defendant to their evidence.
Was the action of the court in this respect erroneous? We think not. The court based its action on the ground that the execution in the hands of the sheriff was not supported by any judgment, and was therefore void; and being void, the sheriff was under no legal obligation to execute and return it. The execution offered in evidence recites a judgment obtained in the district court of Harper county on the 14th day of October, 1886, while the judgment introduced to support said execution was obtained October 14, 1885. The question is, Was there such a variance between the execution and the judgment introduced to support it as will excuse the sheriff, or save him from amercement? We think there was. This is a statutory proceeding, and its character penal, and strict compliance with the law must be observed in its enforcement. The record in this case shows there was but one judgment in the Harper county court between Bittman, Taylor & Co., as plaintiffs, and W. O. Mize as defendant, and that was dated October 14, 1885. There being no judgment in said court between said parties bearing date October 14,1886, it follows that the clerk of the district court of said county had no authority to issue the execution in question in this case. If the clerk had no authority to issue said execution, it was void, and the sheriff was under no obligation to respect it in any way.
In Cutler v. Wadsworth, 7 Conn. 6, the execution recited a judgment rendered on the fourth Tuesday of February, and the record showed a judgment rendered on the second Tuesday of February. It was held that such execution was void, and that the officer to whom it was committed was not bound to execute it.
In Rider v. Alexander, 1 D. Chip. 267, it was held that where the execution recited a judgment entered at one term, and the record produced to support said execution showed a judgment entered up at another term, such execution was irregular, and all proceedings had under it were void. The law certainly will not require a sheriff, under penalty of amercement, to do a thing which when done would be void.
In Fuller v. Wells, Fargo & Co., 42 Kas. 551, it is held that where a plaintiff is seeking to amerce a sheriff for his neglect or failure in returning an execution, the execution, to sustain such a proceeding, must conform strictly to the judgment rendered.
(See also Fisher v. Franklin, 38 Kas. 251.)
A number of errors were assigned upon the rejection of testimony by the court below, but we think it unnecessary to review them.
None of the rejected evidence could in' any way have reconciled the variance between the judgment and the execution.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
YalentxNE, J.:
This was an action brought in the district court of Wilson county by J. R. Willits against The Chicago, Kansas & Western Railroad Company to recover damages for alleged injuries to real estate. The case was tried before the court and a jury, and the jury returned a verdict in favor of the plaintiff and against the defendant for $400 damages, and judgment was rendered accordingly; and to reverse this judgment the defendant, as plaintiff in error, brought the case to this court.
It appears that the plaintiff below, defendant in error, owned about nine acres of land adjoining the city of Fredonia; that he sold and conveyed between two and three acres of the same to the defendant for a right-of-way and for station purposes ; that the defendant, in constructing its railroad, entered upon the remainder of the plaintiff’s land without his consent, and made excavations thereon from seven to ten feet deep, and carried away the earth, to the great injury of the land; and for these injuries the plaintiff brought and prosecuted this action. The first claim of error is, that the case was tried by the plaintiff and the court below upon an erroneous theory as to damages. This theory will be apparent from the following instruction given by the court to the jury, to wit:
“The first question for you to consider will be the measure of plaintiff’s damages, and upon that point you are instructed that to ascertain the damages to which the plaintiff should be entitled, if any, you will ascertain, First, what was a fair, reasonable market value of the plaintiff’s land before the commission of these alleged injuries, and what was the fair market value of the plaintiff’s land after the commission of these alleged injuries, and the difference, if any, between these two sums, would be the measure of plaintiff’s recovery.”
It is claimed that this instruction is erroneous for the following reasons: First, because it permits the plaintiff to recover for all losses, past, present, and prospective, which he had suffered or might suffer by reason of the defendant’s wrongs, and not merely for such actual loss only,.-as had oc curred prior to the trial. Second, because it permits the plaintiff to recover for the diminished value of the entire tract of land, which consists of six or seven acres, although, as the defendant claims, the excavation covered only about one-fourth of an acre of the tract.
Involved in the first proposition is the claim that the diminished value of the real estate injured is no criterion at all for the recovery of damages. We think it is, however. It must be remembered that this is not an action merely for injuries to the plaintiff’s' possession, as the old common-law action of trespass quare clausum fregit was, but it is an action for injuries to the realty itself, to the inheritance, and damages for such injuries may generally, if not always, be estimated by considering the diminished market value of the land. They may, however, be estimated in various ways, generally at the election of the owner of the land. In cases of trespass upon real estate where no appreciable injury occurs, only nominal damages can be recovered; but where the injury is appreciable and computable, and is done willfully and maliciously, punitive or exemplary damages may be allowed. But neither of these cases is the present case, and these rules do not apply. But in all cases of injuries to real estate, including the present case, full compensatory damages may be recovered. In other words, the owner of land, for injuries to it by the wrongful acts of another, may recover exact compensation for his entire loss. In giving compensatory damages, various rules for computing the same are adopted to correspond with the different kinds of cases and the manner in which they are presented, but generally they are adopted at the election of the owner. Where something is wrongfully taken from the real estate, the owner may, if. he chooses, maintain an action of replevin to recover it back; or he may maintain an action for its value; or he may waive the tort and recover for the amount of the benefit actually received from the thing taken by the wrong-doer; or where the wrong-doer has occupied the land for some time, the owner may waive all other injuries or losses and recover merely for the rental value of the real estate while the wrongdoer so occupied it; or where the injury is of such a nature that the real estate can be restored to its former condition, the cost of restoring the same may.be the measure of the damages; but in such cases the restoring of the property to its former condition can generally only be done with the consent of the owner, for the wrong-doer without the consent of the owner cannot be allowed to reenter the premises and thereby commit another and a new trespass for the purpose of restoring the property. (K. P. Rly. Co. v. Mihlman, 17 Kas. 224.) In 'cases where the wrong-doer has the power withoutN committing any new wrong to restore the property to its former condition, it will generally be presumed that he will do so, and he will generally be given an opportunity to do so; and in such cases the owner will generally be permitted to recover only for his actual loss up to the time of the commencement of his action, or at most only up to the time of the trial; and in such cases, in order that full and complete justice may be awarded to the owner, he will be permitted to commence and prosecute a new action for each and every succeeding or recurring loss occasioned by the original injury until his property shall be finally restored to its former condition. This is particularly true where the wrongrdoer has the right and the owner of the land has not the right to restore the property to its former condition — as where the thing that causes the injury to the owner’s land is upon the land of another, and where it only indirectly affects his land. But in cases like the present the owner may recover for his\ entire loss in one action, and only in one action, and he may so recover the same, if he chooses, by recovering for the depreciation in the market value of his land caused by the injuries thereto committed by the wrong-doer. (3 Suth. Dam., 372-374, 392-394; 5 Am. & Eng. Encyc. of Law, 16, 20, 36.) This is in fact a recovery only for the loss occurring prior to the commencement of the action, although it may also to some extent have in contemplation the future. The loss as thus recovered for is precisely the loss which occurred at the very time at which the injury was consummated. In many cases the depreciation in the market value of the land and the cost of restoring it to its former condition would be precisely equal. In the first of the above authorities the following language is used:
“In general, this damage is the amount the estate is diminished thereby in value.” (Page 393.)
In the last authority cited, the following language is used:
“In cases of trespass, the cause of action is the wrongful act of the defendant, and the injury resulting is merely the measure of the damages. Therefore, applying the rule above, all damages for a trespass must be recovered in a single action.” (Page 16.)
“In actions for injury to real property, where the injury is done to the realty itself, the measure of damages is the difference in the value of the land before and after the trespass, or in some cases the amount necessary to restore the property to the condition in which it was before the trespass was committed.” (Page 36.)
Also in all cases where damages may be recovered for the depreciation in the market value of real estate caused by injuries thereto, the owner may recover for the depreciation in the market value of the entire tract, although the injury may in fact be directly only to a portion of the tract. See the above authorities and also the following: K. C. E. & S. Rld. Co. v. Merrill, 25 Kas. 421; Comm’rs of Smith Co. v. Labore, 37 id. 480; C. B. U. P. Rld. Co. v. Andrews, 41 id. 370, 379; St. L. Ft. S. & W. Rld. Co. v. McAuliff, 43 id. 185.
The plaintiff also in this case showed the exact location of his land — how it was situated with respect to the city of Fredonia and its streets and the railroad, etc., and for what purposes it might be used, and the jury were also permitted to see it. We do not think that there was any error in this; for when the question of the value of real estate is in issue the owner is entitled to show its market value for any purpose for which it might be the most advantageously used, and for which it would sell in the market for the highest price. (King v. M. U. Rly. Co., 17 Am. & Eng. Rld. Cases, 93; Comm’rs of Smith Co. v. Labore, 37 Kas. 480, 484, 485; Cohen v. St. L. Ft. S. & W. Rld. Co., 34 id. 164, and cases there cited; Comm’rs of Dickinson Co. v. Hogan, 39 id. 606; K. C. & S. W. Rld. Co. v. Ehret, 41 id. 24, 25.) The question to be considered is really, What was the property worth immediately before the injury if used for the purpose for which it could be the most advantageously used, and what was it worth in the same condition, except for the injury, immediately afterward, if it were used for the purpose for which it could be the most advantageously used?
It is also claimed that the court below erred in permitting oral testimony to be introduced tending to contradict the effect of the deed executed by the plaintiff to the defendant. The plaintiff’s counsel, however, stated at the time it was introduced that it was not introduced'for that purpose, and the court did not permit it to go to the jury for that purpose, and the court afterward instructed the jury that it could not be used for that purpose. The real object of the testimony seems to have been to show that the trespass was committed willfully and maliciously. But as no exemplary damages were allowed, it really answered no purpose.
It is also claimed that the court below erred in giving the following instruction:
“You have the right also to take into consideration in this case such knowledge and information as you may have acquired of the plaintiff’s land, as to the alleged injuries committed there, by the personal examination of the premises that you have been permitted to make under the directions of the court.”
Under the decision of this court in the case of City of Topeka v. Martineau, 42 Kas. 387, this instruction was not erroneous. We do not think that any material error was committed in this case, and therefore the judgment of the court below will be affirmed.
All the Justices concurring.
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Opinion by
Strang, C.:
Action on a promissory note, of which the following is a copy:
“$1,400. Topeka, Kansas, May 16, 1887.
“Ninety days after date, we promise to pay to the order of the First National Bank, Topeka, Kansas, fourteen hundred dollars, at the First National Bank of Topeka, Kansas. Value received, with ten per cent, interest after maturity.
L. J. Talley.
FbaNK S. Brown.
“Dae August 17, 1887.” •
(Indorsed on the back:) “Mary E. Burtis.”
The defendant Mary E. Burtis claims that L. J. Talley and Frank S. Brown were joint makers of the note sued on, and that she was indorsor and guarantor. When the note became due it was renewed by giving a new note exactly like the original, and executed by the several parties thereto in the same manner. When the second note bécame due, the said Talley and Brown failing to pay the same, it was paid by Mrs. Burtis and indorsed to her, and she brought suit on it against Talley and Brown as makers. Talley and Brown filed separate answers, Brown answering by general denial only, while Talley answered by general denial, and also pleaded that he signed the note as a surety with Mrs. Burtis for Brown. The plaintiff replied by a general denial. At the April term, 1888, the case was tried by the court without a jury, the court making the following findings of fact and of law:
“FINDINGS OF FACT.
“1. Ninety days preceding the making of the note sued on in this action, the defendant Brown presented to the plaintiff a promissory note of that date and of the same form for the sum of $1,400, payable 90 days after date, to the First National Bank, and signed by the defendant L. J. Talley, and the said Frank S. Brown requested the plaintiff to indorse the said note by writing her name across the back of said note, and thereupon the said note was then by the said Brown negotiated to the First National Bank of Topeka, Kansas, and he received the proceeds of said note.
“2. When the plaintiff indorsed the said note by writing her name across the back of said note, she did not know that Talley was or had executed said note as surety for Brown, and believed that both Talley and Brown were makers of said note, and believed that she was only assuming the liability of indorser for the principals Talley and Brown.
“3. Brown received the proceeds of said note from the bank, and appropriated the same to his own use and benefit, and Talley received no benefit from the said note or proceeds of the same.
“4. When the first note above described matured, the note described in plaintiffs petition was made by Talley and Brown as shown, and indorsed by the plaintiff as appears on said exhibit, as a renewal of said first note first above described.
“5. After the note described in plaintiff’s petition matured and was dishonored for non-payment, the plaintiff took such note up from the bank by paying the bank the full face value of the note, and became the owner and now is the owner and holder of said note.
“6. The plaintiff is aged 68 years and is a widow, her husband having died several years ago, and is quite hard of hearing, and her eyesight greatly impaired.”
“conclusions op law.
“1. When the defendant Brown presented the first note, indorsed with the name of Talley and his own name written on the face of the note, and asked plaintiff to indorse the note by writing her name across the back of the same, she had the right to assume that both Talley and Brown were makers of said note and that her liability was that of an accommodation indorser, and with the understanding that Talley was an accommodation maker of the note for Brown.
“ 2. As between Talley and Brown, Brown is principal and Talley is surety for Brown.”
Judgment was entered for the plaintiff for the amount of the note and costs. A motion for a new trial was overruled. An application was then made to the court to have the judgment reduced one-half, which was refused.
The first error complained of was the refusal of the court to strike out the statements of Sharitt and Brown made immediately prior to Mrs. Burtis’s indorsement of the first note. While the statements complained of could not bind the defendant, Talley, they were evidence for some purposes. The tend to show Mrs. Burtis’s understanding of the relation of Talley and Brown to the note at the time she indorsed it. The case was tried without a jury. If it had been tried by a jury it would have been proper for the court to have limited the application of this evidence. The evidence should not, however, have been stricken out. There is another view of this matter. Talley having signed his name to the note and intrusted it to Brown, he thereby gave Brown implied authority to represent him as a maker of the note, for the purpose of procuring other joint makers, sureties, or guarantors, suf ficient to discount it on the market. (Keith v. Goodwin, 31 Vt. 209.) In this view of the case the statements of Brown, at least, obtained an additional force. His statements at the time, and immediately before Mrs. Burtis indorsed the note, that she would have no trouble with the note, that Mr. Talley would pay it, was equivalent to saying that Mr. Talley was a principal, and she had a right to so understand it and rely upon it.
The second complaint is that there is no evidence to support the second finding of fact. It seems to us there is considerable evidence in the record that supports finding number 2. The position of Talley’s name on the note is some evidence that, at the time Mrs. Burtis indorsed the note, she believed he was the maker of the note. Mr. Brown’s statement that she would have no trouble with the note, that Talley would pay it, also, had a tendency to make her believe Talley a maker of the note; and she swears Brown did not tell her Talley had signed as surety. Again, she testified, “I merely indorsed these men; not to pay the money, but to pay it if they did not. They were responsible for the 'money, and I merely indorsed these men.” If she believed Talley was a maker, she could not believe he was only surety. She also says she relied on Mr. Talley’s responsibility to pay the note, and on him alone; that she knew Brown hadn’t a dollar. Certainly there is some evidence to support the finding. It is true there is some evidence in the record that tends to prove that she knew the money was for Brown, but that would not necessarily prove that Talley was only a surety. Talley had a right to become a joint maker of a note upon which to raise money for Brown, if he chose to do so.
It is claimed that Mrs. Burtis knew that Brown was the principal, and her only belief that Talley would pay and save her lay in the understanding that she had that Talley was to be secured. She did not know that Talley was to be secured until after she had indorsed the note. The talk she had with Brown in which he mentioned that he was going to secure Talley with a mortgage on furniture was after she had indorsed the first note, and before she indorsed the second.
It is asserted that Mrs. Burtis has no stronger equity to have the case determined for her on what occurred when she signed, than Talley has to have the case determined for him upon what occurred when he signed. We think she has a much stronger equity as against him than he has as against her. At the time he signed the note there was no name on it. He signed first.
There is nothing on the paper to show any liability on the part of any one when he signed it. On the other hand, both Talley and Brown had signed the note, when it was presented to her for her indorsement, and both had apparently signed it as principals. In the absence of any statement at all, she had a right to assume that the parties already on the note sustained the relation to the note and to each other that they appeared to, that is, joint makers. It seems to us that as between Mrs. Burtis and Talley and Brown, they are principals, joint makers of the note, while she by her indorsement assumed the liability of guarantor. (Firman v. Blood, 2 Kas. 496; Fuller v. Scott, 8 id. 25; Sarbach v. Jones, 20 id. 497; Withers v. Berry, 25 id. 259; Pahlman v. Taylor, 75 Ill. 629.)
It is therefore recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
ValentiNE, J.:
This was an action brought in the district court of Clay county by the Home Insurance Company of New York against D. C. Pierce, on two promissory notes, each for $49. The case was tried before the court without a jury, and the court found in favor of the plaintiff and against the defendant, and rendered judgment accordingly; and the defendant, as plaintiff in error, brings the case to this court for review.
The facts of the case appear to be substantially as follows: On July 1, 1886, the defendant Pierce agreed with an agent of the insurance company that various articles of personal property and real estate should be insured against loss by reason of cyclones, winds, and tornadoes, and that the same property, and also a wind-mill, pump, grinder, and fixtures thereto, should be insured against loss by reason of fire and lightning. They also agreed upon a rate as to the cost of the insurance, and that such costs should be included in two promissory notes. They attempted to draw up the papers in accordance with this agreement, but in some particulars they failed, as hereafter stated. Two applications for the insurance were drawn up by the agent of the company for the defendant to sign. One was for the said insurance against loss by reason of cyclones, winds, and tornadoes, and the other was for the insurance against loss by reason of fire and lightning.
The first one was drawn strictly in accordance with the agreement, but the other, through a mutual mistake of the parties, did not include the aforesaid wind-mill, pump, grinder, and fixtures. It was perfectly right in all other respects. The wind-mill, pump, grinder and fixtures were valued at $200. The notes sued on were given for the insurance of the aforesaid property. They were intended to be given for the insurance of all the property, but in fact they were given for an amount which the value of the property actually included in the foregoing applications would require, and not for what the whole of the property would require. They were therefore given for too small an amount. They were in fact given as though this omitted property had not been intended to be insured at all. This mistake arose from the former mistake of the parties in not including the wind-mill, pump, grinder and fixtures in the application for the insurance against fire and lightning. Both the applications were properly signed by the defendant and became in form his applications for insurance, and they were then sent to the insurance company, which issued to him insurance policies thereon precisely in accordance with the terms of the applications. These policies were then sent by the insurance company to their agent at Clay Center. Afterward such agent tendered these policies to the defendant, but he refused to accept them upon the ground of the aforesaid omission of the wind-mill, pump, grinder and fixtures from the fire and lightning insurance policy. The agent told him that another and a separate policy for this omitted property could be issued, or that the property could be inserted in the policy already issued; but the defendant still refused to accept either of the policies, or to adjust the difficulty in any other manner, and the agent retained the policies. This refusal on the part of the defendant to accept the policies or to adjust the difficulties, was several weeks after the applications and notes were signed and executed by the defendant. Afterward the notes became due, and the insurance company commenced this present action thereon with the result aforesaid. It is also admitted as facts in the case, that the defendant never demanded or asked for a return of his notes, or for a rescission of the contract.
Of course the parties might, when they discovered the irregularities in the aforesaid application for insurance, and in the insurance policy, and in the promissory notes, have waived such irregularities, and by such waiver have made all the instruments as executed valid and binding. Or they might have rectified the mistakes made in the instruments either by making new ones or correcting the old ones. The insurance company was willing to waive all irregularities or to correct the former mistakes by issuing a new policy or by correcting the old one; but the defendant objected, and nothing was done. Probably, also, either party had a right to have the notes, application and policy reformed in equity so as to make them correspond precisely with the original agreement. Certainly the defendant had such a right. In 11 American and English Eneyc. of Law, 346, the following language is used :
“A policy which does not conform to the agreement of the parties, whether by fraud or mistake, may be reformed in equity, and damages for a loss decreed in the same case. But such non-conformance must be conclusively proved, and the mistake must be either mutual or made by one by reason of the fraud of the other.”
In Wood on Fire Insurance, (§479,) the following language is used:
“ Where the terms of the. contract are plain and distinct, and the actual intention of the insurer and insured is not doubtful, a policy issued either by fraud or mistake, that does not comply with the terms of the order therefor or embody the real intention of the parties thereto, may be reformed in equity, or in those states where the court is permitted to exercise the functions of a court of law and equity, inslanter, upon trial.”
In the present case, the defendant had the benefit of the insurance of all his property which he desired to have insured, including the omitted property, for several weeks before the mistake was discovered; and therefore could have recovered for any loss from fire or lightning which might have occurred during those several weeks. And as he never asked to have the contract rescinded, and as it never was in fact rescinded, he really continued to have the benefit of such insurance, and could have recovered for any such loss which might have occurred at’any time either before or after the discovery of the mistake. Before any loss occurred he could, by a suit in equity, have had the policy reformed so as to make it include the. omitted property; and after loss, if any had occurred, he could, according to the authorities above cited, have had the policy reformed, if it needed any reformation, and have recovered for his loss in the same action. If these views are correct, and we think they are, then it follows that the notes were not given without consideration, that no failure of consideration existed in the case, and that the plaintiff had the right to recover on the notes as the court below found.
The judgment of the court below will therefore be affirmed.
All the Justices concurring.
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Opinion by
Green, C.:
This was an action of ejectment brought by Joseph W. Redden, in ¿he district court of Shawnee county, against Joseph P. Heil, to recover the northeast quarter of section 11, township 13 of range 16 east. The court gave judgment in favor of the plaintiff for the east half of the quarter-section, and awarded the west half to the defendant; and the case was brought to this court and decided, and the opinion is found in 38 Kas., at page 255. This court decided that the tax deed which Heil held, and under which title was claimed to the northeast forty acres of the quarter-section was voidable, for the reason that the whole quarter was assessed and taxed as an entirety, and taxes were paid upon one-half of the land and then upon one-half of the residue, and the northeast quarter of the northeast quarter was sold by the county treasurer for the balance of the taxes unpaid. When the ease was again tried in the district court, it was stipulated that the west half and the southeast forty of the quarter-section belonged to Heil, which left still in controversy the northeast quarter of the northeast quarter of section 11, township 13 of range 16. In the last trial in the court below, judgment was rendered awarding this land to Redden, upon the payment of certain taxes, and the plaintiff in error again brings the case here for review.
The record discloses the same state of facts as to the tax sale and deed for the land in question as at the former trial in the district court. The plaintiff in error’s claim of title is based upon a tax deed which has been held to be defective, and two years’ possession under such deed. The defendant in error claims to be the owner of the patent title, which consists of a patent from the United States to George H. Case, and a deed from Case to Benjamin Hoyt, and a quitclaim deed from Hoyt to him.
It seems to be conceded that the legal title to this land is in the defendant in error, if the deed from Case to Hoyt was properly received in evidence upon the last trial of this ease. This deed was not in the possession of the plaintiff below, and the record was introduced, which showed that it was made and executed by George H. Case; but from the record of the certificate of the notary public, it appeared that George H. Crane acknowledged the execution of the instrument. The deed was executed and acknowledged on the 24th day of December, 1857, and filed for record on the 9th day of January, 1858. It was in evidence that George H. Case, John Shannon, the notary public, and A. B. Batterson, the attesting witness, were dead. Benjamin Hoyt, the grantee in this deed, testified that he formerly owned this land; that he purchased it from George H. Case, who executed and acknowledged the deed in question; that he never bought but one tract of land from Case, and did not know George H. Crane, and never had any dealings with him; and that he was present when the deed was executed. The only question in this case was whether there was any evidence offered upon the part of the plaintiff below to prove that George H. Case executed a deed to Benjamin Hoyt. The deed not being in the possession of the plaintiff below, it was competent for the court to receive the record in evidence. This record showed that the deed was made and executed by George H. Case, but it appeared from the record of the certificate of acknowledgment that George H. Crane acknowledged its execution before the notary public. This apparent error in the record is explained by the testimony of the grantee, who was present at the time the deed was executed and acknowledged. It was doubtless a clerical error in transcribing the original deed. Now the evidence indicated quite conclusively that the deed was not in the possession of the plaintiff below, or under the control of the grantee, Hoyt, and it was perfectly competent to prove its execution by the best obtainable evidence, which was the testimony of the grantee named in the conveyance, and from his evidence it appears that this instrument was actually executed by George H. Case. This, in our opinion, settles the question of the execution of the deed, and makes the acknowledgment immaterial. (Mo. Pac. Rly. Co. v. Houseman, 41 Kas. 300.)
The position of counsel, that there was no evidence that the deed was ever delivered, is not well taken; it was recorded, and that fact carries with it the presumption that there was a delivery to the grantee. (1 Devlin on Deeds, §292.) The contention of counsel for plaintiff in error, that parol evidence cannot be admitted to contradict what a record imports, has no application in this case. We think it fair to assume, under the existing state of facts as shown in this ease, that there was simply an error upon the part of either the notary or the person recording the deed — nothing more; and the execution of the deed having been proven, it was immaterial what the record of the certificate of acknowledgment was. In any event, the grantee, or any person holding under him, would not be bound by the errors of a register of deeds in transcribing an instrument, and such errors might be explained. (1 Devlin on Deeds, §§ 686, 687; Poplin v. Mundell, 27 Kas. 138; Lee v. Bermingham, 30 id. 312.) Acknowledging officers and registers of deeds are ministerial officers; neither act in a judicial capacity; any and all mistakes made by them may be explained and corrected by proper proof, as readily as mistakes of any other ministerial officers. (Central Bank v. Copeland, 18 Md. 305; 1 Devlin on Deeds, § 498.)
We recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Mahan, P. J. :
The statement of the case in the plaintiff’s brief shows that the defendant in error sued the city upon a petition containing seven causes action for witness fees in the case of the city against Robinson, fifteen causes of action for witness fees in the case of the city against Dupree, and nine causes of action for witness fees in the case of the city against Lambkin ; that the city answered by general denial, and. alleging that these three cases were commenced before the police judge of that city for the violation of city ordinances ; that each of the defendants was convicted, and that each appealed to the district court, where they were again convicted and sentenced to pay a fine and costs, and that no part of the costs had been paid by these defendants to the city. This is followed by an agreed statement of facts, reduced to writing and signed by the parties, upon which facts the court rendered judgment for the amount claimed in the several causes of action. Counsel for the city makes the following assignments of error :
“1. That the district court committed errors of law in the trial of this cause.
“2. That the district court rendered judgment for the defendant in error when according to law judgment should have been rendered for the plaintiff in error.
“3. That the district court erred in overruling the motion filed by the plaintiff in error for a new trial.”
The judgment having been rendered exclusively upon an agreed statement of facts, reduced to writing and filed in the cause, a motion for a new trial was wholly unnecessary to preserve any question arising in the progress of the trial as, in fact, none was raised. Hence, it was right to overrule the motion, and no error can be predicated thereon. We might say that there is nothing presented for our consideration, there being, in fact, no assignments of error, within the meaning of rule 6 of this court. To say simply that the court committed errors is not an assignment of error. To say that the court rendered judgment for the wrong party is not an assignment of error.
However, upon looking further into the brief, under the subdivision entitled “Argument,” we are advised that the city claims that it is not liable to its own witnesses for fees. And it therefore contends that the court erred in holding that it was so liable. This is the real question, and the only question, involved in the case. The argument is to the effect that the city claims the same immunity from obligation to pay for services rendered it in such cases as is enjoyed by the state. Chapter 39 of the General Statutes of 1889 provides, in section 1, that “persons herein mentioned shall be entitled to receive for their services the fees and compensation herein allowed, and no other, except as may be provided by law.” By section 36 it is provided that witnesses ‘ ‘ shall receive the following fees : For attending before any court or grand jury, or before any judge, referee, or commissioners, per day, $1.50; for attending before any justice of the peace, per day, seventy-five cents; for each mile necessarily and actually traveled in going to and returning from the place of attendance, five cents.” This is as amended by chapter 131 of the Laws of 1897. Section 56 of the same statute provides that these fees shall not be due or demanded until the services for which they are chargeable shall have been performed. This is section 34 in the revision of 1897. By section 40 it is provided that these fees arising in criminal cases allowed to witnesses for the state, when not paid by the defendant or prosecuting witness, shall be paid by the county under certain circumstances. (Gen. Stat. 1899, § 2940.) Section 41a of the chapter, being an amendment passed by the legislature of 1889, puts upon the payment of costs in criminal’ cases arising before justices of the peace certain additional limitations. (Gen. Stat. 1899, § 2941.) These two sections last mentioned are grounded upon the theory that the state is not liable for the fees provided in this chapter without being granted express immunity therefrom, and that justice demanded that compensation should be given by the state to its own witnesses, and imposes the duty upon the integral part of the state called a county. Nówhere under this statute or any other are cities of the first class exempted from the obligations created thereby.
Counsel for the plaintiff in error, in his brief and in his argument, assumes that it was a question of taxation of costs inter partes, and cited numerous authorities to sustain his contention that costs, as such, were unknown to the common law, and were- only taxed in causes by virtue of statutory provision. All this is true, and yet it has no application to this case. At common law all parties were liable for expenses they incurred in the course of litigation, and the presumption was that they had paid these expenses as the litigation progressed ; and when they were allowed to be taxed as costs, it was upon the theory that they had been paid. Parties were liable and are liable for services performed in their behalf by witnesses attending court, for a reasonable compensation, without statutory law therefor. Our statute fixes the amounts of such compensation, and provides when it may be demanded. Proceeding upon the same theory, counsel argued that statutes allowing costs are to be strictly construed. This applies to taxable costs between the parties to the litigation.
It is contended, again, that these claims set out in the petition are costs. These witnesses were not parties to the causes wherein they attended at the request of the city, and costs relate to the parties and are taxed for and against parties, not strangers.
It is also contended that, inasmuch as the city was the successful party, and because the defendants in the cases wherein these witnesses attended procured no judgment against the city, therefore the city was not liable to its witnesses. It is immaterial to these witnesses whether the city recovered a judgment or not, or who recovered the judgment, the city or defendants. When they performed the services they were entitled to compensation from the party for whom they rendered the services, unless for some public reason such party was exempted therefrom.
Again, it is contended by the city that the legislature has the power to require the attendance of witnesses without any provision for their fees. It is unnecessary to determine this question, as the state has not authorized a city to require such attendance without payment, and has not exempted a city therefrom.
It is further contended, in the sixth place, that “the district court sits as the police judge.” It is argued from this that because there is no provision in the act incorporating cities of the first class for the taxation of costs in the police court, and no provision for rendering judgment against the city therefor in cases wherein the city is defeated, the city was not liable to the witnesses themselves for attendance in the district court. We are unable to comprehend the application of this contention to the question involved. The city is not such a part of the state government as to entitle it to the immunities of the state itself, in matters pertaining to its local affairs.
The judgment of the district court is affirmed.
McElroy, J., concurring.
Werls, J., dissenting.
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The opinion of the court was delivered by
Mahan, P. J.:
This was an action by Heth against the township to recover on four several township warrants, issued to the assignors of the plaintiff for labor performed on the highway's and for materials furnished in the construction of bridges. To the plaintiff’s bill of particulars before the justice of the peace the defendant demurred, upon the ground that it stated no cause of action because it failed to allege a demand. The warrants are each stamped "Presented, and not paid for want of funds,” over the signature of the township treasurer, as required by statute. Likewise, before the justice, the plaintiff demurred to the bill of particulars constituting the defendant’s defense, which was sustained. The case went to the district court upon appeal, where the plaintiff’s demurrer to the defendant’s bill of particulars of defense was sustained and judgment rendered for the plaintiff upon the warrants.
The first complaint is that the district court overruled the defendant’s demurrer. The contention is that the bill of particulars did not allege any demand before bringing suit. We know of no statute requiring such a demand as a necessary prerequisite to the maintenance of a suit upon township warrants.
The next assignment of error is that the court sustained the demurrer of the plaintiff to the defendant’s bill of particulars for the reason that it stated no defense. The indebtedness sought to be recovered of the township was attempted to be created under chapter 168 of the Laws of 1885, enacting that the township officers of each township of the state shall constitute a board of commissioners of highways, and conferring upon such board certain duties in relation thereto, and especially under the provisions of section 44 of chapter 42, General Statutes of 1897 (Gen. Stat. 1899, § 7472), being section 5 of the original act. The indebtedness was not attempted to be created under the first part of the section, but under that provision thereof which says : •“ Whenever the available means •at their disposal will permit, they shall constrüct permanent roads, beginning where most needed.” The bill of particulars filed as an answer alleged that the indebtedness was contracted and the warrants issued without authority of law, because at the time thereof there were no available funds of the township with which to meet this indebtedness, and the plaintiff and his several assignors had knowledge thereof. It further alleged that the trustee who prosecuted the work, being a candidate for- reelection to that office, employed the laborers and procured the material for the bridges with the fraudulent and corrupt intent thereby to secure the votes of the persons employed upon the work and from whom materials were purchased.
There are other allegations in the answer which we do not deem it necessary to notice. If' any defense is stated, it is contained in the recitals above mentioned. The solution of this question must turn upon the construction to be given to the language of the statute-. It is a condition precedent to the power to engage in the work of constructing new roads and employing labor thereon and buying material therefor that there shall be at the time available funds in the township treasury, or in the county treasury, for the use of the township, with which to meet the indebtedness created thereby. We might say that it is further alleged in this answer that an indebtedness of f3000 was created in this way, or attempted to be created, against the township. It surely could not have been intended by the legislature to empower the township board to incur indebtedness for highways without any limitation thereon, and, therefore, this provision as to available funds was intended as a limitation upon that power. If this view is correct, the’ bill of particulars of the defendant stated a good defense, and the court erred in sustaining the demurrer thereto. It is contended in opposition thereto, in the defendant’s brief, that unless the debt was contracted and the warrants issued in violation of law there can be no escape from payment, citing Ryan v. City of Coldwater, 46 Kan. 242, 26 Pac. 675, and Comm’rs of Hamilton Co. v. Webb, 47 id. 104, 27 Pac. 825.
In Ryan v. City of Coldwater, supra, the question of the power of the city to prosecute the work and to incur the indebtedness was not involved. The question was as to whether the city was liable for work done with its knowledge, consent and direction without a previous contract therefor. In Comm’rs of Hamilton Co. v. Webb, supra, it was decided that two members of the board of county commissioners, outside of their county, without any previous authority given by the board as a board, cannot make a valid contract. The justice who decided the case, in an obiter dictum, proceeded to say that the defendant in error was not without remedy; that he might be able to recover upon a quantum meruit, referring to City of Ellsworth v. Rossiter, 46 Kan. 237, 26 Pac, 674. The suit was upon a void contract. The question of the right to recover otherwise was not involved in the case. The contract attempted to be made was clearly such an one as the board of commissioners could make but did not. In City of Leavenworth v. Rankin, 2 Kan. 357, the court said: “Municipal corporations are creations of the law, and possess no powers except such as are con ferred by law. They act under prescribed rules and must act in accordance with them. . . . When they undertake to make contracts they must observe the regulations prescribed in that behalf, else there will be no contract, and no subsequent, act can cure the defect.” See, also, State v. County of Marion, 21 Kan. 437; Trustees of Paris Tp. v. Cherry et al., 8 Ohio St. 566; 15 A. & E. Encycl. of L., 1041-7 and 1086.
We are of the further opinion that the mere fact that the township trustee had a secret intent, in proceeding with this work and in employing laborers and buying materials, to further his interests as a candidate for the office of trustee at the coming election, as alleged in the bill of particulars, does not constitute a defense to plaintiff’s action.
It is contended further, in the brief of the defendant in error, that the district court might well have sustained the demurrer to the defendant’s bill of particulars, for the reason that it was not properly signed, or was not signed by the trustee of the township, who is given charge of the property interests of the township. Such defects are not reached by demurrer. The statute defines the grounds upon which a demurrer to a pleading may be filed, and this is not one of them. Such objections can be reached summarily by motion. No attention was given to it in the court below, and the objection cannot be made for the first time'in this court for the very apparent reason that justice requires that the defendant have an opportunity to correct any such defect before proceeding to the merits of the case.
The contention that the warrants prima facie constituted a cause of action and required no proof in support thereof is good. The burden of defeating them upon any ground not apparent upon the face of them was upon the defendant.
The judgment of the district court is x’e versed, and the case remanded with directions to overrule the demurrer to defendant’s bill of exceptions, and for further proceedings in the cause in accordance with the views herein expressed.
Wells, J., concurring.
McElroy, J., dissenting.
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The opinion of the court was delivered by
McElroy, J. :
This action was brought by Arethusa T. Crane against McIntosh & Peters, a copartnership, to recover $515.55, a balance due on an account for corn, feed and Kafir-corn sold by'her to defendants, and delivered to defendants’ cattle in the feed yard on her farm. The defendants’ answer contained (1) a general denial; (2) an admission that they purchased, at an agreed price, certain field and Kafircorn, and a denial of the purchase of any other commodity, averring that plaintiff was at the time indebted to defendants in excess of the purchase ; and (3) an allegation of a mutual settlement of accounts and an agreement that plaintiff was indebted to them in the sum of $95.95, for which they prayed judgment. The reply was a general denial. A trial was had, which resulted in a verdict and judgment for plaintiff in the sum of $389.05.
There are but two questions presented by the record : That the court erred in the admission of testimony, and in overruling the motion for a new trial.
The grain, feed and roughness purchased were for use in feeding defendants’ cattle upon the plaintiff’s farm, and were by plaintiff delivered in the feed yards. In the trial of the- action there was no controversy about the purchase, the amount, the price or delivery of the field corn. The defendants conceded also that they purchased such indefinite' quantity of Kafircorn as should become necessary to feed as roughness. The parties agree that defendants paid on account the sum of $540.70 before the action was commenced.
The court permitted the plaintiff to offer testimony tending to show the value of the Kafir-corn in the field; then to show how much by the load it was worth to haul and place the same in the feed yards. There was no contention but that the Kafir-corn was so delivered; its value as fixed by the plaintiff was disputed, and the defendants contend that there is no allegation in the petition to support a finding or judgment for work and labor performed. The petition specially alleges “ that defendants requested this plaintiff to feed a large portion of this corn to defendants’ cattle.”
In the itemized account attached to the petition are these statements:
“ To work and labor in hauling the seventeen loads with team and feeding same to cattle, at 75 cents......... $12 75
To work and labor, with man and team, in hauling out and feeding the eighty-five tons of Kafir-corn to the cattle, at 50 cents.................................. 42 50.”
The usual manner of proving the value of this property and services would be to show what the Kafir-corn was worth delivered in the feed lot. The allegations of the petition are sufficient to authorize the proof of the value of the feed delivered. We cannot conceive how defendants were prejudiced by the introduction of the testimony the other way; that is, by showing first the value of Kafir-corn in the field, and then by showing what the services were reasonably worth for hauling. It seems to be a difference without a distinction. The trial court committed no reversible error in this respect.
The plaintiffs in error, in their brief, say:
“ But on the questions as to how much of the Kafircorn was thus necessary to be used, how much was actually used, and what was the value thereof, as well as on the question whether defendants had ever agreed to purchase anything but the field corn and a portion of the Kafir-corn, not only was there a decided conflict of testimony, but a merely superficial survey of the record will show that the verdict of the jury was .'squarely against the clear preponderance of the evidence. The important issue, in fact, as we claim, the only issue raised by the pleadings in the case, was whether the defendants had purchased or agreed to purchase of the plaintiff all of the feed on her farm, or merely the field corn and such Kafir-corn as could be fed with it. Everything hinged on the determination of this question of fact.”
The record justifies this statement as to the contention of the parties. The only controversy in the trial court seems to have been as to whether McIntosh & Peters purchased of Crane all of the feed on her farm, or merely the field corn, with such Kafircorn and stalk field as could be used to advantage. The testimony was oral and conflicting. The record indicates that the weight of the testimony was with defendants, plaintiffs in error, but the jury found otherwise. The verdict of the jury was approved by the trial court; was based on some competent evidence — this is conceded. The findings of a jury upon oral conflicting testimony are conclusive upon a reviewing court. If a jury return a verdict against the clear weight of the testimony, it is the, duty-of the trial court to set it aside and allow a new trial, but a reviewing court has no such prerogative — the finding is conclusive. This proposition is so well settled in this state that a citation of authority is unnecessary.
The judgment must be affirmed.
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The opinion of the court was delivered by
McElroy, J. :
The assignments of error are not numerous, and will be examined in order. The first is that the trial court erred in excluding competent testimony offered by the defendant. Under this assignment of error it is contended, first, that the court erred in sustaining an objection to the following question asked witness Barkow:
' “Ques. From the prices at which you buy goods, and from the prices at which you sell them, I will ask you to state what would be a reasonable average profit upon sales of boots and shoes, and such stock as is kept in a boot and shoe store, upon the cost price ; I mean to fix the time on which or at which you make this estimate at the period between March 19, 1893, and December 1, 1895 ; what was a reasonable profit on boots and shoes sold during that period; I mean the gross profit? ”
The testimony of this witness shows that he conducts a shoe store in the city of Atchison. Defendant sought to show by this witness what was the reasonable profit on boots and shoes sold during a portion of the time that Walters operated the store for him. It is not shown that this witness knew anything about the store or goods in question, or that he had any other information than such as he gained by operating a boot and shoe store in the city of Atchison. We are inclined to think that the trial court properly refused to permit the party to inquire into the profits of witness’s boot and shoe store. The testimony was properly excluded.
It is next contended that the court erred in sustaining objections to the following questions propounded to Kaffer while upon the witness-stand :
“ 1. I will ask you to state if you did not prepare, or prior to the commencement of this suit this trial, go through his book account showing sales, and check out item after item of dry-goods and other goods which he had sold according to instructions which you had given him?
“2. Was not, taking from the estimate you have made, from an examination of the books of Mr. Walters and of yourself, the -great bulk of the goods sold there sold under your instructions, at an excess of twenty-five per cent, profit of the price of the goods sold?
“3. I will ask you to state what amount of loss was sustained by the business from April 1, 1894, to September 30, from September 25, 1893, to April 1, 1894, the actual loss, the loss without figuring the profit?
“4. Mr. Kaffer, referring to the period of time from September 25, 1893, to April 1, 1894, you may state what was the amount of goods sold during that period. I believe you stated that the amount of goods sold during that period was $2288.80, at a profit of twenty per cent, upon such amount of goods; state what would be the gross profit.
“ 5. I will ask you to state if, at that time, or about that time, you consulted any attorney as to any means to protect yourself ?
“6. You understood that with a non-negotiable note you could set up any defense you had against Mr. Walters as against any other owner of the note?”
The plaintiff in error fails to point out the competency of the testimony sought to be introduced. It is not apparent to the court what useful purpose an answer to the questions under consideration would have subserved. The fourth question called for a conclusion of the witness, a mere matter of computation. The first, second, third, fifth and sixth questions relate to matters which appear to have been immaterial. No possible answer could have materially affected the final result of the litigation. We fail to see that an answer to all or any of these questions could in any manner enlighten the court or jury upon the issues of the case. If there was any error committed in rejecting this evidence, it was without prejudice.
The second assignment is that the court erred in instructing the jury. Complaint is here made that the trial court erred in instructing the jury as to the burden of proof upon certain issues presented by the answer of the defendant, and as to certain elements of estoppel applicable to defendant’s conduct.
The court instructed the jury as to the burden of proof as follows :
“That the burden of proof was on the defendant to show, if such fact was true, that the plaintiff as manager of the store was not authorized to sell goods on credit prior to the 1st day of May, 1894, and that as to sales, if made on credit after that date, the burden of pi’oof was upon the plaintiff to show that the terms of the written contract were modified by the defendant so as to authorize him to sell goods on credit.”
As to the question of estoppel, the court instructed the jury that if they found from the evidence that the defendant frequently visited the store, carefully examined into its management, examined the books, and thereby knew that the plaintiff was selling goods on credit, and if the jury further found that the plaintiff made frequent reports to the defendant of all transactions at the store which showed that goods were being sold on credit, and if the plaintiff and defendant at periods of about six months had an accounting, and that defendant had full' knowledge of the facts concerning the management of the store as conducted, and with full knowledge of the facts approved the management of the store, and the selling of goods on predit was ratified and approved by the defendant with a full knowledge of all the facts, the defendant would be estopped from claiming in this action that the plaintiff was not authorized to sell goods on credit.
The plaintiff conducted the store under the written contract for the defendant nearly three years, rendering an accounting by daily, weekly and other reports, as requested by defendant. Settlements were had between the parties at about every six months, in which all accounts and property of the store were examined, checked and apparently approved by the defendant. No intimation was given or expressed by the defendant of dissatisfaction with the conduct of the store. Apparently he approved all that was done in and about the management of the business. The plaintiff was paid a salary of thirty dollars per month for attending to the business. In the written article of agreement under which plaintiff operated the store it was provided, “ that in case of misconduct or wilful neglect or such disability as may prevent him (plaintiff) from performing his duty as manager, the party of the first part (Kaffer) may annul this contract.” We think the trial court properly instructed the jury in this respect.
The third assignment of error is that the trial court erred in refusing to instruct the jury as requested. Complaint is here made that the trial court refused to give instructions 16' and 17 as requested. . These instructions were properly refused, if the instructions heretofore noted were properly given. There was no claim in the pleadings or in the evidence that the plaintiff was insolvent or unable to respond to any judgment rendered against him. A person of lawful age is presumed, in the absence of any showing to the contrary, to be solvent and able to respond to any judgment rendered against him. With this presumption before the trial court, there was no occasion for the court to instruct the jury as to the plaintiff’s maneuvers to prepare himself with set-offs and counterclaims.
There is nothing presented on the motion for a new trial except the errors already noted. From what we have said, it follows that 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.:
On the 16th day of March, 1895, W. P. Waggener, trustee, and others recovered money judgments against the defendants in error, Jacob Leu and others, and an order decreeing the same to be liens upon certain real estate in Atchison. The court also found that said premises were not occupied by the defendants, Jacob Leu and Minnie Leu, or either of them,, and said property was ordered sold. The judgment provided :
“And the said real estate being subject to redemption, it is further ordered, adjudged and decreed that on such sale being made as hereinbefore provided the sheriff shall execute to the purchaser a certificate containing a description of the property and the amount paid by such purchasers, together with the amount of said costs up to said date, stating that unless redemption is made within eighteen months thereafter, according to law, by the defendant owner, that the purchaser, his heirs or assigns, will be entitled to a deed to the same, unless some junior lien-holder shall within three months from the expiration of said time exercise, his right to redeem according to law. And it is further ordered, adjudged and decreed that at the expiration of said nine months, if no redemption shall have been made as hereinbefore provided, the sheriff of said county shall execute a deed for said described real estate.”
On the 17th day of March, 1896, a special execution was issued, and a sale of the property in controversy was had thereunder on the 19th day of May, 1896. On May 21, 1896, said sale was confirmed, and a'certificate ordered to be issued to the purchaser providing for deed if no redmption be made in nine months from that date. On September 10, 1896, Jacob Leu and wife filed a motion to correct said journal entry confirming said sale so as to provide for the issuance of deed in eighteen months instead of nine months. This motion was overruled on September 15, 1896. On March 15, 1897, a deed was made by the sheriff to the purchaser in conformity to'the order of confirmation. On April 8, 1897, this action was brought to set aside said certificate and deed as void, and for damages. On June 16, 1898, the cause was tried to the court without a jury, and the co,urt held said certificate and deed without authority of law and void in so far as the time was limited to nine months in which redemption could be made, and rendered judgment for the plaintiff. To reverse this the cause is brought here.
The main question in this case is, Did the court in the cause in which the order of sale in controversy was issued have jurisdiction to limit the time in which redemption could be made to nine months? If it had jurisdiction to make the order upon any state of facts, the order, however erroneous, would not be void but only voidable, and would be binding upon all parties to the action unless reversed in some proper proceeding in the same case. This question involves the construction of chapter 109 of the Session Laws of 1893. The only part of said chapter bearing on this question is sections 1, 2, and 26 (Gen. Stat. 1897, ch. 95, §§ 471, 472, 521; Gen. Stat. 1899, §§ 4742, 4743, 4767), which read as follows:
“ Section 1. After sale by the sheriff of any real estate on execution, special execution, or order of sale, he shall, if the real estate sold by him is not subject to redemption, at once execute a deed therefor to the purchaser; but if the same is subject to redemption, he shall execute to the purchaser a certificate containing a description of the property and the amount of money paid by such purchaser, together with the amount of the costs up to said date, stating that, unless redemption is made within eighteen months thereafter according to law, that the purchaser or his heirs or assigns will be entitled to a deed to the same : Provided, that any contract in any mortgage or deed of trust waiving the right of redemption shall be null and void.
“ Sec. 2. The defendant owner may redeem any real property sold under execution, special execution, or order of sale, at the amount sold for, together with interest, costs, and taxes, as provided for in this act, at any time within eighteen months from the day of sale, as herein provided, and shall in the meantime be entitled to the possession of the premises; but where the court or judge shall find that the lands and tenements have been abandoned, or are not occupied in good faith, the period of redemption for defendant owner shall be six months from the date of sale, and all junior lien-holders shall be entitled to three months to redeem after the expiration of said six months.”
“ Sec. 26. The sheriff shall at once make a return of all sales made under this act to the court; and the court, if it finds the proceedings regular and in conformity with law and equity, shall confirm the same and direct that the clerk make an entry upon the journal that the court finds that the sale has in all respects been made in conformity to law, and order that the sheriff make to the purchaser the certificate of sale or deed provided for in section 1 of this act.”
The views of counsel .for defendants in error on this question, and these seem to have been adopted by the trial court, are clearly put in the following extract from his brief:
“ Our contention is that under the provisions of this act the sheriff could nor issue any certificate of sale except the one particularly described in section 1, and that the court could not order the sheriff to issue any other certificate than the one provided for in section 1; that when the sheriff assumed to issue any other certificate, he acted entirely outside of his jurisdiction and the authority given him, and his act was a nullity ; that when the court attempted or assumed to order the sheriff to issue any other certificate the court acted extrajudicially, and beyond its power and authority, and its acts and orders in that respect were void.”
The fifteenth rule of construction given in Leiber’s Hermeneutics is : “A consideration of the entire text or discourse is necessary in order to construe fairly and faithfully.” Under this rule the following illus tration is used: “There exists a law that no citizen shall carry arms on festivals; another, to assemble with arms, as soon as the alarm-bell is sounded. A hostile fleet appears on Sunday off the harbor, the bells are rung, what was the citizen to do? He was to go armed, of course.” We think the object and purpose of the law in question in this case is to provide a period of eighteen months to redeem the lands occupied in good faith, and in case the land has been abandoned or is not occupied in good -faith.a period of nine months only should be given. The question of the extent of the period of redemption is a matter for the determination of the court at the time of the confirmation. The issuance of the certificate of sale is a secondary matter, and the title of the purchaser would probably be good when the deed was made in accordance with the order of the court, though no certificate had in fact been issued. Concede that the provision for nine months in section 2 was the result of an amendment, as suggested by the defendant in error, still it would be none the less a part of the law.
We conclude that upon the sale of real estate upon execution or order of sale under chapter 109, Laws of 1893 (Gen. Stat. 1899, §§4742-4769), the court at the time of confirming the sale should fix the time of redemption according to the facts as found by it, and that the findings thereon are an adjudication in the case required by law, and are binding upon the parties to said action until reversed in some proper proceedings therein, and that a deed made in accordance with the order of the court conveys the title of the judgment debtor to the property therein described.
The judgment of the district court will be reversed, and said court directed to render a judgment in favor of the plaintiffs in error herein.
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The opinion of the court was delivered by
Milton, J. :
This action was brought by the plaintiff in error against the defendant in error and W. T. McBride and J. W. Haughey to recover upon a promissory note executed by them and delivered to the plaintiff, on June 11, 1888, the note being due four months after its date. It contained the following provision:
“We, the makers, sureties, guarantors and indorsers hereon, agree to extensions of this note without, notice, hereby ratifying such extensions, and binding ourselves for payment hereof as if no exten sion of time for or forbearance of payment had been granted or made.”
The note bore several indorsements showing the payments of interest, the last of such indorsements being : “ Interest paid to June 1, 1890.” Another indorsement is as follows : “ March 6, 1894, paid $250 by sale of Santa Fe Town Company stock.”
The defendant Thomson alone filed an answer, in which the principal defense was that the plaintiff’s cause of action was barred by the statute of limitations. Judgment was entered in favor of the plaintiff as against Haughey & McBride, and in favor of the defendant Thomson.
The only defense in support of which evidence was introduced was that of the statute of limitations, and such evidence was the testimony of the defendant Thomson. He testified that he was a surety on the note ; that he neither made payments of principal or interest, nor furnished money to make such payments upon the note ; that he was not aware that such payments were made, and did not know that the note was still in existence and unpaid until about one year after the note was on its face barred by the statute. There was no direct evidence showing that the time of payment of the note had been extended or that an agreement not to sue was ever made. The petition did not allege that any extension had been granted, and counsel for the plaintiff in error in his statement of the case admitted that no extension had been made. It was not shown that the plaintiff had notice or knowledge that Thomson was in fact a surety.
It is claimed by counsel for plaintiff in error that by reason of the payments of interest upon the note the operation of the statute of limitations was suspended, and that under the terms of the note Un> fendant in error was bound by such payments. We do not so understand the language of the note. The word “extension” used therein must be understood -as meaning an actual extension of the time of payment, resting upon a definite basis — that is, upon a contract to that effect, supported -by a sufficient consideration. Without such a contract an extension of time of payment or a forbearance to sue would not bind the holder of the note. The construction contended for by the plaintiff in error would make the words of the note an agreement to waive the defense of the statute of limitations, and therefore void. It appears that there was delay in bringing suit, but there is nothing to prove that such delay was on account of an agreement for forbearance, and hence the delay does not amount to a legal forbearance. The liability of Thomson was a several liability under the law and no act of his had deprived him of the protection of the statute of limitations. He made no payments on the note, authorized none, knew of none. The act of the other signers of the note in paying interest already accrued or making part payment of the principal did not suspend the running of the statute so far as Thomson was concerned.
‘ ‘ Partial payments made by one debtor on a note will not suspend the running of the statute of limitations in favor of the other debtors thereon, although the party paying be the principal debtor, and the others only sureties.”
“We conclude then that payment suspends the running of the statute only as against the party making the payment.” (Steele v. Souder, 20 Kan. 39.)
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Milton, J.:
The defendants in error recovered judgment in the district court of Finney county against the plaintiff in error upon 101 county warrants, aggregating $1443.05, which had been duly issued by the county commissioners of Garfield county during the years 1890, 1891, and 1892. Practically all of the warrants were issued within five years before the commencement of the action, and all were within that period certified by the county treasurer as having been “presented and not paid for want of funds.”
The principal defense was that Garfield county,.so called, had never legally existed as a county. Affecting five of the. warrants was the defense that such were barred by the statute of limitations, the same having been issued more than five years before the' commencement of the action. As against certain warrants issued in 1891 and prior to July 1 of that year, the defense was that such warrants were issued in excess of the tax levy for the year 1890 for county expenses. It was admitted by the defendant below that the warrants sued on were executed by the proper officers of Garfield county at the dates named in the warrants.
The liability of Garfield township as the municipal successor of Garfield county for the debts of the latter has been determined and declared in the following cases : Riley v. Garfield Township, 54 Kan. 463, 38 Pac. 560; Riley v. Garfield Township, 58 id. 299, 49 Pac. 85
The record does not state the amount of the tax levy of Garfield county in the year 1891. We have held in the case of Garfield Township v. Dodsworth, ante, p. 752, 58 Pac. 565, that the word “year,” as used in section 1, article 16, chapter 25, and section 220, chapter 25, Compiled Laws of 1879, should, under rule 11 for the construction of statutes (Gen. Stat. 1897, ch. 1, §8; Gen. Stat. 1899, §7009), be construed to mean a calendar year. The objection that the warrants which were issued in the year 1891 are invalid must be overruled.
The statute of limitations did not bar the plaintiff’s right of action upon the warrants issued prior to December 30, 1890. (Stevens County v. Tandler, ante, p. 761, 56 Pac. 564.) In the case last cited, as in the present case, it was assumed by counsel for both sides that the statute of limitations could be properly set up as a defense to an action upon registered county warrants, the same as in an ordinary action upon a written promise for the payment of money; and counsel differed solely as to the time when the statute commenced to run, one side contending that it began to run at the date of the issuance of the warrants and the other that it did not start until the presentation of the warrants and the refusal to pay the same for want of funds. As between the two contentions just stated the court decided in favor of the latter. That was the only question intended to be decided, and no other could have been properly there determined. Nor do we here decide that registered warrants are barred after five years from the date of their registration. It is still an open question, and one that has not yet been directly and properly presented for decision in this court.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Mahan, P. J.:
In a suit by Tuthill against Moulton to recover money upon a promissory note and upon-an account, Mayer, Spirit Spring Lodge No. 159, I. O. O. F., and Cawker City Lodge No. 41, A. O. U. W., were garnishees, under the provisions of chapter 151, Laws of 1889 (Gen. Stat. 1899, §§ 4450-4473). By this proceeding Tuthill, the plaintiff below, seeks to have reversed a judgment discharging said garnishees from liability to him as such. They were not served with a copy of the case-made or with notice of its settlement, as required by the order of the court, nor are they parties to this proceeding. The defendant in error Flattie M. Moulton moves the court to dismiss the petition in error for these reasons.
In Mortgage Co. v. Lowe, 53 Kan. 39, 35 Pac. 829, the supreme court said: “ Where a judgment cannot be disturbed or reversed without affecting all of the defendants in the court below, all of such defendants must be made parties in the supreme court upon pro ceedings in error, to have the case disposed of upon its merits.” In Loan Co. v. Lumber Co., 53 Kan. 677, 37 Pac. 132, the court said : “Where a judgment against several defendants is brought up to the supreme court for review, and it appears that a modification or reversal will affect a defendant who has not been made a party, the proceedings in error will be dismissed.” In Investment Co. v. National Bank, 56 Kan. 49, 42 Pac. 321, the supreme court said : “ The absence of a party from a proceeding in error who may be prejudicially affected by a modification of reversal of a judgment defeats the jurisdiction of the supreme court and prevents a review of any of the rulings made in the cause.” To the same effect are Pierce v. Downey, 56 Kan. 250, 43 Pac. 223; Mathewson v. Senior, 3 Kan. App. 117, 42 Pac. 827; Lumber Co. v. Haines, 3 id. 316, 45 Pac. 97; Bain v. Conn. M. Life Lns. Co., 3 id. 346, 40 Pac. 817; Walker v. Blount, 5 id. 610, 49 Pac. 98.
It does not need elucidation by argument or illustration by authority to maintain that the reversal of a judgment discharging, garnishees from obligation as such, under the act of 1889, will prejudicially affect their interests. The purpose is to obtain a judgment against them under the provisions of that act. 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.
The petition in error is dismissed.
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The opinion of the court was delivered by
Schoonover, J.:
This was an action upon a policy of insurance which contained among others the following provisions :
“1. . . . If the property be sold or transferred in whole or in part, or upon the commencement of foreclosure proceedings against; or a sale under a deed of trust; or the existence of a mechanic’s or judgment lien upon; or the issue or levy of an execution against any of the property herein described ; . - . without written notice to and consent of the company indorsed hereon, this policy shall in each and every instance be void.”
”4. If the' interest of the assured in the property be other than unconditional, exclusive ownership; and, if it be real property, if it be other than an absolutely fee-simple title, or if any other person or persons have any interest whatever in the property described, whether it be real or personal property, or if the building insured or containing the property insured by this policy stands on leased ground, or if there be a mortgage or other encumbrance thereon, building or contents or any part thereof, whether inquired about or not, it must be so notified to the company and be so expressed in the written part of the policy, otherwise the policy shall be void. When the property insured (or if it be a building or machinery therein, the land upon which it stands) shall be sold or encumbered, or otherwise disposed of, written notice shall be given to the company of such sale or encumbrance or disposal, and its assent thereto indorsed thereon, otherwise this insurance on said property shall immediately terminate.”
The insurance company admitted the making of the policy and the destruction by fire of the insured property, but denied that the policy was in force at the time the property was destroyed. The record shows that prior to the fire a judgment had been rendered against the insured in the. United States circuit court for the district of Kansas, and it is contended by plaintiff in error that such judgment rendered the policy void, because of the provisions of the policy above set out. The provisions in question provide for a forfeiture, and must, therefore, be strictly construed, and in case of indefiniteness or ambiguity every doubt must be resolved in favor of the insured. (Dover Glass Wks. Co. v. Amer. Fire Ins. Co., 1 Marv. [Del.] 32, 29 Atl. 1039; 1 Wood, Fire Ins. § 60.)
The record shows, also, that the judgment was procured in invitum, and it is urged by counsel for defendant in error that the provisions in question relate only to voluntary acts of the insured. An insurance company has a right to impose terms and conditions under which it will issue its policies, and if such terms are not illegal or contrary to public policy, and are expressed clearly and definitely, so as to be easily comprehended by a person of ordinary understanding, there is, in principle, no reason why they should not be upheld; but such provisions'must be clothed in language so plain and clear that the insured cannot be mistaken or misled as to the burdens and duties thereby imposed upon him. The insurer, being the party who draws the contract, must see to it that all conditions are plain, easily understood, and free from ambiguity. We see no reason why a provision that a policy should be rendered void by a judgment recov ered in invitum should not be upheld, provided such provision was so clearly expressed that no other construction could be placed upon it.
Keeping in view the principles above set out, let us examine the provisions in question. The only part of paragraph 1 that has any bearing upon the case, is embraced in the following language : •
“ . . . or upon the commencement of foreclosure proceedings against; or the existence of a mechanic’s lien upon; . . . without written notice to and the consent of the company indorsed hereon, this policy shall in each and every instance be void.”
This language we take to be tantamount to a provision that before the commencement of the foreclosure proceedings, or before the attaching of a judgment lien, notice must be given to the company and its consen obtained ; otherwise the policy shall be void. Thus construed, the policy is brought within the rule as laid down in the cases of Dover Glass Wks. Co. v. Amer. Fire Ins. Co., supra, and Gerling v. Insurance Co., 39 W. Va. 689, 20 S. E. 691, in which it was held that similar provisions had reference only to judgments confessed and other voluntary encumbrances.
An examination of paragraph 4 shows that, with the exception of the last sentence, it has reference to the condition of the title of and encumbrances upon the property at the time the policy is issued. That part of the paragraph that has any application to this case is as follows : ■
“ When the property insured . . . shall be sold or'encumbered or otherwise disposed of, written notice shall be given to the company of such sale, encumbrance or disposal, and its assent thereto indorsed thereon, otherwise this insurance on said property shall immediately terminate.”
When we consider the relation in which the word “encumbered” is used, it seems reasonable to conclude that it has reference to voluntary encumbrances only. Certainly the insured would be warranted in placing such a construction upon the word.
We have examined many authorities, and find that the courts have almost uniformly held that the word “encumbered,” as used in provisions similar to those under consideration, meant voluntary encumbrances. See Hosford v. Hartford Fire Ins. Co., 127 U. S. 404, 8 Sup. Ct. 1202, 32 L. Ed. 198; The Phenix Insurance Company, of Brooklyn, v. Pickel, 119 Ind. 155, 21 N. E. 546, and cases there cited.
Under this construction, the policy would not be forfeited by the lien of a judgment procured in invitum, and the judgment of the distict court will therefore be affirmed.
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The opinion of the court was delivered by
Schoonover, J.:
The defendants in error executed and delivered to plaintiff in error three promissory notes for $700 each; to secure same, they executed a chattel mortgage upon one thrashing-machine, for the purchase-price of which the notes were given; they also gave a mortgage upon certain real estate. The thrashing-machine was sold under the mortgage. This action is to recover the balance due upon the notes and to foreclose the mortgage upon the real estate.
Several defenses are set forth in the answers, one of which is as follows :
“ This defendant says that for the purpose of paying off and discharging said indebtedness he paid and caused to be paid to plaintiff the sum of $866, as follows : On or about the months of September and October, 1892, the sum of $140 in cash; on the — day of June, 1893, thrashing accounts of divers parties in the sum of $111, and during the thrashing season of 1893, thereafter, thrashing accounts on divers parties in the sum of $615 ; that said sum of $866, so paid as aforesaid, fully discharged the debt upon said first note of $700 and interest that fell due November 1, 1892, and left a balance in the sum of about $140. Said balance this defendant was and now is entitled to have credit as of October —, 1893, upon the note described in the first count of plaintiff’s petition herein.”
Under the pleadings, the burden was upon the defendants below. The first witness called, George Hett, one of the defendants, testified fully as to the agreement; that the accounts turned over were accepted in payment of the notes ; that $615 in accounts were turned over and never tendered back. This testimony was admitted without objection. On cross-examination, witness tetified as follows :
“Ques. There was an agreement signed by you, wasn’t there, as to how these should be collected? Ans. There was an agreement.
“ Q. Entered into as to how you should do with the accounts — a written agreement, was n’t therd'? A. Yes, sir.
“Q,. Where is that agreement? A. I ain’t got any copy of it. They might have made any kind of agreement to themselves afterwards ; I do n’t know.” ‘
Upon the admission of this testimony, counsel for plaintiff moved to exclude same from the jury by the following motion:
“That agreement, whatever it was, was made in writing, and the plaintiff asks that the evidence in chief of the witness be stricken out, for the reason that any arrangement with reference to turning over these accounts and. the collection between the parties appears now to be in writing, and the written agreement is the best evidence.”
In passing upon this motion, the court said “ Overruled for the present.” It does not appear from the record that a proper foundation was laid for the introduction of secondary evidence, or that further action was taken by the court. It is contended by defendants in error that the motion is too broad; that it asks the court to strike out all the testimony in chief of the witness, a part of which was competent. (Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444; Hillis v. National Bank, 54 id. 421, 38 Pac. 565.)
The contents of this contract were material; the principal item of defense was based upon it; the admission of the incompetent testimony was called to the attention of the court during the'cross-examination of the first witness placed upon the stand. It is admitted that the contract is in writing. In our opinion, the oral testimony relating to the contents of this agreement should have been excluded, the written contract produced, or proper foundation laid for the introduction of secondary evidence.
The judgment of the district court is reversed and the case remanded for a new trial.
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The opinion of the court was delivered by
Wells, J.:
On June 6, 1895, the plaintiff in error D. A. Decker became a member of the Ottawa County Farmers' Mutual Insurance Company, of Minneapolis, Kan., a corporation organized under the laws of this state, and received a policy therefrom insuring certain property against loss by fire. On November 11, 1895, the insured property burned. On January 6, 1897, Decker recovered a judgment against the company in the district court of Cloud county for $946.59 for his loss. An execution was issued and returned “no property found."
On April 2, 1897, this action was begun to recover the amount of said judgment from the defendants as the directors of said company, under that part of section 159 of chapter 74, General Statutes of 1897 (Gen. Stat. 1899, § 3376) which reads as follows :
“The directors of any company so formed who shall wilfully refuse or neglect to perform the duties imposed upon them by the provisions of this act shall be liable in their individual capacity to the person sustaining such loss."
After the evidence was all in the court instructed the jury to return a verdict for the defendants, which was done and judgment rendered accordingly, and this is the substance of the errors complained of.
We do not think the question as to whether the law referred to is a remedial or a penal statute is the controlling question in this case. The delinquencies of the defendants alleged as the basis of their individual liability are in wilfully ’refusing and neglecting to perform the following duties : (1) To make an assessment on September 30, 1896, against the members of said company sufficient to liquidate the liabilities thereof ; (2) to maintain and repair the reserve fund as required by law; (3) to make and publish statement as required by law ; (4) to require the secretary and treasurer to give bonds; (5) to see that the cash payments and premium notes be kept to the relative proportion required by law; and (6) to disburse the funds collected according to law pro rata among the creditors.'
The plaintiff’s claim was not adjusted, but was contested, and did not become an adjudicated demand against the company until January 6, 1897, and until that time the company was not required to take any special steps looking to its payment. This being true, no assessment could have been properly made in September, 1896, to pay this claim, then disputed, and the proceeds of the assessment made in December appear to have been applied to the payment of the claims for which it was collected.
The next question is, For what are the directors liable in their individual capacity to the person sustaining such loss? Is it for the debt, or for the damages resulting from their neglect of duty? It seems to us clear that it is the latter. If the directors wilfully refuse or neglect to perform the required duties, they are responsible only for the damages caused by such failure. We find nothing in the evidence to indicate that the plaintiff would have recovered any greater sum than he has recovered, or will recover, had the defendants done .all that the law required them to do, and nothing from which the jury could have assessed the amount of the damages sustained by the plaintiff on account of the official delinquencies of the defendants.
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The opinion of the court was delivered by
McElroy, J. :
This was a criminal prosecution under the prohibitory liquor law. The defendant Charles Stockman was charged in the district court of Smith county, in an information containing five counts, with the violation of the prohibitory liquor law; the first four counts charged him with the unlawful selling of intoxicating liquors, and the fifth with keeping and maintaining a common nuisance. A trial was had before the court and a jury, and the defendant was found guilty as charged in the fourth and fifth counts of the information. A motion for a new trial was filed and overruled. The defendant was sentenced to pay a fine of $100, that he be confined in the county jail of Smith county for a period of thirty days upon each count of the information upon which he was convicted, and that he pay the costs and stand committed to the county jail until the expiration of the terms of inqorisonment and until the fines and costs should be paid. The defendant appeals.
First. It is contended that the court erred in not sustaining the defendant’s challenge to the juror Vansycle. . The voir dire examination of this juror disclosed the fact that he was unable to read and write, for which cause the defendant challenged the juror as incompetent to sit in the trial of the case. The challenge was overruled, and Vansycle was one of the jury finally impaneled and sworn to try the cause. The record fails to show that the defendant exhausted any of his peremptory challenges. It has been repeatedly held by the supreme court that a party waives his right to insist upon error in the refusal of the court to sustain a challenge to a juror for cause where such party fails to exhaust his peremptory challenges. (The State v. Vogan, 56 Kan. 62, 42 Pac. 352; Florence, E. D. & W. V. Rly. Co. v. Ward, 29 id. 354; The State v. Snodgrass, 52 id. 174, 34 Pac. 750; The State v. Furbeck, 29 id. 534.)
In the Encyclopedia of Pleading and Practice, volume 12, page 507, it is said :
“But, by the great weight of authority, no advantage can be taken of the improper overruling of a challenge for cause to an individual juror when the party ruled against has not previously exhausted his right'of peremptory challenge.”
From the fact that the defendant did not exhaust all his peremptory challenges, the question of the incompetency of the juror must be deemed to have been waived by the defendant. But if the question were not waived, the appellant would not be in any better condition. Educational qualifications of jurors in the various states are rare. The Texas code of criminal procedure provides, as one of the grounds for challenge for cause, that the juror cannot read or write. We believe that Utah has a similar provision. There are no educational tests, so far as jurors are concerned, in this state. It is suggested by the appellant that this juror was unable to read all the evidence offered by the state. How could this prejudice the defendant ? This evidence was against him. There is no contention made that the juror was unable to understand any of the evidence offered in the interest of the defendant.
Second. It is also contended that the court erred in admitting incompetent evidence. This contention is based upon the fact that one Madison was permitted to testify, and exhibit to the jury certain bottles, jugs and vessels said to contain liquors. It is not contended that these vessels were -not competent as evidence, but that the sheriff wrongfully came into possession of them. At the time the officer made the arrest he seems to have gathered in what jugs, bottles and vessels there were in defendant’s place of business which seemed to contain liquors. These were used in evidence and exhibited to the jury during the trial, together with the labels, etc. .The defendant at the trial took the witness-stand; he identified many of these bottles and vessels as his, and testified concerning the contents. We know of no reason why this testimony was not competent and properly admitted. It might be that the sheriff had no right to the possession of these vessels and receptacles, but that is not a material question in this case. It is apparent that the evidence was competent. The judgment will be affirmed.
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The opinion of the court was delivered by
Milton, J. :
This action was begun on November 24, 1894, in the district court of Reno county, by the plaintiff in error against the defendants in error, to recover, under chapter 47, Laws of 1879, a balance of $670.75 alleged to be due on account of certain depos its of money made by the plaintiff in the Hutchinson National Bank, of which the defendants were directors and other officers. The petition alleged that the deposits were made at various dates from March 31 to October 3, 1892, at which time a receiver for the bank was appointed by the comptroller of currency of the United States, and that at the times of receiving such deposits.'the bank was insolvent and in failing circumstances, of which fact each of the defendants at such times had knowledge. The case was tried by the court, and the defendants’ objection to the introduction of evidence was sustained, the grounds thereof being that the petition did not state facts sufficient to constitute a cause of action, and that the court had not jurisdiction of the subject-matter of the action. The title and section 1 of said chapter 47 read as follows :
“An act making officers of banking institutions responsible for the reception of deposits or the creation of debts, when such bank is insolvent or in a failing condition.
“ Section 1. It shall be unlawful for any president, director, manager, cashier, or other officer of any banking institution, to assent to the reception of deposits or the creation of debts by such banking institution, after he shall have had knowledge of the fact that it is insolvent or in failing circumstances; and it is hereby made the duty of every such officer, agent or manager of such banking institution to examine into the affairs of the same, and, if possible, know its condition. And upon failure of any such person to discharge such duty he shall, for the purpose of this act, be held to have had knowledge of the insolvency of such bank, or that it was in failing circumstances. Every person violating the provisions of this section shall be individually responsible for such deposits so received, and all such debts so contracted : provided, any director whp may have paid more than his share of the liabilities mentioned in this section may have the proper remedy at law against such other persons as shall not have paid their full share of such liabili ties.” (Gen. Stat. 1897, ch. 18, § 74; Gen. Stat. 1899, §471.)
The principal question presented in this case is whether the foregoing act is broad enough to- include national banks and their officers. The supreme court of this state has held that chapter 43, Laws of 1891, which is a comprehensive act providing for the organization and regulation of banks within this state, has no application to national banks and that the penalties therein prescribed are not operative as against national banks. Although the question before us is not free from difficulty, we have concluded that the decision of the trial court, holding the provisions of said chapter 47 not applicable to national banks and their officers, was correct. The national banking act is very broad in its scope and minute in its provisions. In its enactment congress evidently intended to cover all phases of the subject-matter in hand. It is obvious also that congress intended that the regulation and control of national banks should be by officers of the national government and free from interference by officers of the various states acting under state laws. This was the view taken by the supreme court of Pennsylvania in the Appeal of Allen, 119 Pa. St. 199, 13 Atl. 70, where it was said:
“The national banks, as was observed in Torrey’s case, are the creatures of another sovereignty. The national banking act and its supplements create a complete system for the government of those institutions. Conceding the power of congress to create this system, I am unable to see how it can be regulated or interfered with by state legislation.”
See, also, Farmers’ &c. Nat. Bank v. Dearing, 91 U. S. 29, 23 L. Ed. 196. The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Luckert, J.:
This case raises several issues related to the validity of a corporate bylaw provision that provided a corporation could redeem stock if a shareholder no longer met ownership eligibility requirements. The parties dispute whether the bylaw section is a restriction on stock and a redemption provision that must be in the articles of incorporation or a restriction on a shareholder s ownership of stock and a purchase provision that may be in the bylaws. We conclude the provision is a valid restriction on the transfer and ownership of stock and, under K.S.A. 17-6426, is a valid bylaw provision. We also conclude the provision was properly invoked, all the remaining parties to this litigation accepted the provision, and the provision was not an impermissible penalty.
Procedural Background
These issues arise from a dispute among shareholders of two Kansas corporations, Cardiac Health of Wichita, Inc. (CHW) and Cardiac Associates of Wichita, Inc. (CAW), which together own a controlling interest in Kansas Heart Hospital, L.L.C. (KHH). In 2005, CHW's board of directors learned that 14 physicians (Physicians), shareholders of both CHW and CAW, invested in the Kansas Medical Center, L.L.C. (KMC), a hospital that was to be con structed in Andover, Kansas. Based on these investments, the CHW board voted to redeem the Physicians’ CHW stock under a provision in the corporate bylaws, adopted in February 2000, which prohibited a shareholder from owning any shares in a “competing health care facility.” The investors were Badr Idbeis, M.D., Ravi Bajaj, M.D., Gary S. Benton, M.D., Michelle Brown, M.D., Assem Z. Farhat, M.D., Roger E. Evans, M.D., Hussam Farhoud, M.D., Robert H. Fleming, M.D., Randee E. Lipman, M.D., Prakash J. Raghavan, M.D., G. Whitney Reader, M.D., John D. Rumisek, M.D., Donald L. Vine, M.D., and Lyle F. Zepick, M.D.
Soon after the Physicians lost their CHW stock, CAW’s board of directors voted to redeem the Physicians’ shares in CAW becáuse CAW’s articles of incorporation and bylaws required that all of its shareholders also own shares in CHW.
Following the stock redemptions, multiple legal claims arose. Two separate actions were filed in which CHW and CAW sought declaratory judgments regarding the stock redemptions. Along with those actions, KHH alleged claims against Dr. Idbeis involving breach of fiduciary duty and interference with business opportunity. In addition, the parties filed cross-motions for partial summary judgment, and the Physicians filed third-party claims against the directors of CHW and two directors of CAW for breach of fiduciary duty for causing the stock redemption. The district court consolidated the cases, and one physician, Dr. Farhat, was dismissed from the suit with prejudice. For ease of reference, the plaintiffs (KHH, CHW, and CAW) may be referred to as “Corporations.”
On February 22, 2006, the district court granted CHW’s motion for partial summary judgment, ruling that the redemptions of all the Physicians’ stock in CHW, except Dr. Farhat’s, “were lawful, authorized and proper.” Influenced, in large part, by its February 2006 decision, the district court later granted CAW’s motion for partial summary judgment as well. Twelve of the remaining Physicians now appeal the district court’s partial summary judgment rulings in favor of CHW and CAW.
Uncontroverted Facts
Our review is based upon the district court’s findings that the facts material to summary judgment were uncontroverted. The parties do not dispute this conclusion, nor do they quibble with the district court’s recitation of those facts. They do, however, argue about each other’s statements of facts in their respective briefs. In fact, the Physicians filed a motion to strike portions of the appellees’ factual statement. We have considered the record, the district court’s findings, and the parties’ arguments. Although the Physicians disagree with the appellees’ interpretation of various aspects of the record, we do not find a basis to strike portions of the appellees’ brief. The motion is denied.
We conclude that the district court correctly determined that the material facts were not controverted. We will, therefore, set out those findings of the district court that are material to the issues on appeal. (Because the district court’s findings related to various motions, our recitation will not be in sequence numerically. We have continued with the district court’s numbering to assist the court and counsel, however.) The district court found:
“1. The Kansas Heart Hospital, L.L.C., d/b/a Kansas Heart Hospital, referred to as KHH, is a hospital that provides specialized comprehensive cardiovascular health care to the public.
“2. KHH is partially owned by Cardiac Health of Wichita, Inc., (CHW), and Cardiac Associates of Wichita, Inc., (CAW), both of which were formed under the laws of the State of Kansas.
“3. The defendants in this case were shareholders of CHW and CAW.
“4. In 1999, the KHH management committee became concerned that its shareholders may be contemplating the investment in a health care facility to be located on Wichita’s west side. The management committee saw this as presenting a potential conflict of interest for any CHW shareholder that chose to invest in that facility.
“5. The issue appeared as an agenda item for the management committee meeting of December 16, 1999, as ‘Conflict of interest issues.’
“6. The minutes of the meeting of KHH management committee in December 1999 reflect a discussion of the conflict of interest issue. The minutes also reflect that the following resolution was passed:
WHEREAS, equity ownership in the Company, either directly or through ownership of shares in Cardiac Health of Wichita, Inc. and Cardiac Associates of Wichita, Inc. is fundamental to the success of the Company; and
WHEREAS, simultaneous ownership in the Company and a competing health care facility will expose the Company’s methods, plans, or proprietary information to competitors which could be harmful to the Company.
‘BE IT RESOLVED that any Member of the Company or any shareholder of Cardiac Health of Wichita, Inc. and Cardiac Associates of Wichita, Inc. is prohibited from either directly or indirecdy from [sic] ownership in a competing health care facility engaged in cardiology, cardiothorasic [sic] surgery, or vascular surgery within One Hundred (100) miles from the city limits of the city of Wichita, Kansas.’
“Defendant Dr. Idbeis represented to the Board that this restriction be accomplished by amending the operating agreement of KHH, and by changing the corporate bylaws of CHW.
“7. On February 12, 2000, CHW held its Annual Shareholders Meeting. At that meeting, the shareholders discussed the adoption of the restriction on ownership of competing interests. The minutes of the meeting reflect that:
‘Dr. Idbeis explained [that] due to proprietary data, information, education, and entrepreneurial learning experience available to shareholders of the Kansas Heart Hospital, L.L.C., its individual investors and its corporate investors (including the shareholders of the corporate investors), that it was in the best interest of the corporation to promptly enact such a restrictive covenant.’
“8. The bylaws provision for CHW was adopted at CHW’s Annual Shareholders’ Meeting on February 12, 2000. That provision provided:
‘No shareholder of the corporation shall be permitted to own either directly or indirectly through any means of ownership, all or any portion of a competing health care facility located within one hundred (100) miles of the city limits of Wichita, Kansas. A “competing health care facility” is defined as any medical hospital or facility specializing in cardiac, cardiothoracic, or vascular care. Any shareholder agrees not to own or in any way, to operate, manage, or control any interest in any competing health care facility as defined above. For purposes of this restriction, any family member, is defined to include spouse, children, testamentary or inter vivos trust, or any entity controlled by the shareholder or spouse, children, or related entities, who shall hold any ownership, operate, manage, or control any competing health care facility. In the event a shareholder violates the terms of this restriction, the corporation may compel redemption of the shareholder’s stock pursuant to Section 1.5(b) of these bylaws, however, the maximum redemption price shall not exceed Five Hundred Twenty-Five Dollars ($525.00) per share, increased or decreased by any percentage change in the Consumer Price Index. The intent is to prohibit ownership of a competing health care facility, not a limitation of anyone’s group practice or facilities integrated within the practice. The Board of Directors shall issue such interpretations as are necessary to carry out the intent of this restriction.’
“The lead-in paragraph of Section 1.5 of the same CHW bylaw provides:
‘Section 1.5 — OWNERSHIP AND TRANSFER RESTRICTIONS. The corporation has been formed to organize, develop and own an interest in a limited liability company (“LLC”) which will own and operate a single specialty free-standing cardiac, cardiothoracic and vascular care hospital (“the Hospi tal”). Because of this purpose, certain restrictions upon the ownership and transfer of stock of the corporation shall be imposed as follows:’
“9. At CHW’s Annual Shareholders’ Meeting on February 12, 2000, the shareholders further adopted an additional resolution to implement the bylaws provision:
‘BE IT FURTHER RESOLVED, that notice be given to all shareholders of the [sic] Cardiac Health of Wichita, Inc. to provide that anyone who intends to hold an ownership interest in a Competing Healthcare Facility shall be given five (5) business days after notice to give notice of his or her intention to withdraw from the Corporation and ten (10) business days thereafter to tender his or her shares subject to the terms of the maximum redemption price stipulated in the Operating Agreement.’
“The resolution also included the following:
‘The ten (10) day period to tender the shares may, upon written request, be extended at the discretion of the Corporation ....’”
In addition to these findings, the district court made the following findings regarding the February 12, 2000, shareholders’ meeting:
“47. . . . Eleven shareholders were not present, including Drs. Zepick, Reader and Farhat, and did not vote personally or by proxy. The then existing bylaws of CHW allowed for a change in the bylaws upon a majority vote.
“48. At the February 12, 2000, meeting, the shareholders never mentioned, discussed, or voted on, any amendment to CHW’s articles of incorporation.”
Regarding events occurring after the February 12, 2000, meeting, the district court found:
“10. On February 16,2000, Dr. Idbeis sent to all shareholders of Cardiac Health and Cardiac Associates a certified letter explaining the new bylaw provision, and the application of the resolution to any shareholder that intended to invest in any competing healthcare facility. The letter concluded: ‘In the absence of receiving any notice from you, we presume that you do not wish to have the corporation(s) redeem your shares of stock under the offer presented and that you do not intend to hold an ownership interest in any Competing Healthcare Facility.’
“49. In November 2000, CHW’s Board of Directors determined that CHW’s articles of incorporation and bylaws needed to be modified to permit certain new shareholders.
“50. On November 12, 2000, CHW’s Board adopted the following resolution: ‘RESOLVED, that the second paragraph of Article Four of the Corporation’s Articles of Incorporation be revised as is set forth in Exhibit A, and the Bylaws be revised as is set forth in Exhibit B, and that the proposed revisions be presented to the Shareholders of the Corporation for their approval.’
“51. The proposed revision of the articles of incorporation contained in Exhibit A expanded the eligibility requirements of shareholders. This revision did not contain the restrictive covenant. However, in December 2000, all of the defendants who were then shareholders, except Dr. Farhat, completed a Voting Form wherein they affirmatively approved the Amended and Restated Bylaws. . . . The Bylaws did contain the restrictive covenant. Dr. Farhat was the only defendant-shareholder who indicated his disapproval on the Voting form. The Voting Form provided:
T,_, have read and understand the Proposed Revision to the Second Paragraph of Article Four of the Articles of Incorporation of Cardiac Health of Wichita, Inc. as attached in Exhibit A; and the Amended and Restated Bylaws for Cardiac Health of Wichita, Inc. as attached in Exhibit B.
1 hereby indicate my preference below and vote to:
_Approve
_Disapprove’
“52. CHW circulated the proposed revision to the articles of incorporation . . . and the amended and restated bylaws ... to the shareholders with the voting form. A majority (92%) of the shareholders approved the expansion of shareholder eligibility and the amended and restated bylaws. (By December 2000, all tire current defendants who were then shareholders (except Dr. Farhat) voted to approve the amended and restated bylaws.)
“53. On February 1, 2001, CHW filed an amended and restated articles of incorporation with the Kansas Secretary of State. The amended and restated articles contained Section 1.5(e) that prohibited shareholder ownership in a competing healthcare facility.
“54. CHW’s Board of Directors did not adopt a resolution setting forth an amendment to its articles that included a stock restriction prohibiting shareholder ownership in a competing healthcare facility.
“55. CHW’s Board of Directors did not adopt a resolution declaring advisability of adopting an amendment to its articles of incorporation to include a stock restriction that prohibited shareholder ownership in a competing healthcare facility.
“56. CHW’s Board of Directors did not adopt a resolution calling a special meeting of the stockholders entitled to vote for consideration of an amendment to its articles of incorporation to include a stock restriction prohibiting shareholder ownership in a competing healthcare facility or directing that amendment be considered at the next annual meeting of the stockholders.
“57. At no time did CHW’s Board of Directors send a shareholder meeting notice that contained either a stock restriction or a brief summary of one.
“58. At no time did CHW present to the shareholders for a vote, so the shareholders did not vote on, a proposed amendment to its articles of incorporation which contained a stock restriction that prohibited shareholder ownership in a competing healthcare facility. CHW’s shareholders never voted in favor of an amendment to the Articles of Incorporation that included the stock restriction.
“59. At no time did CHW file a certificate with the Kansas Secretary of State setting forth an amendment to the articles of incorporation with a stock restriction that prohibited shareholder ownership in a competing healthcare facility and certifying that such amendment had been duly adopted in accordance with the provisions of K.S.A. 17-6602.”
The district court also made several findings relating to the parties’ understanding of the bylaw provision and their conduct under the provision:
“11. Dr. Idbeis testified when the bylaw was intended to be enforced:
‘Q. All right. The restrictive covenant is supposed to be enforced in the first instance if a physician who owns stock invests in another competing entity in Wichita; correct?
‘A. Health care entity, that is correct.’
“12. A restrictive endorsement was placed on the final 2001 CHW distribution checks. That endorsement provided:
‘By endorsement and/or deposit of this check, I hereby acknowledge that I do not own either directly or indirectly through any means of ownership all or any portion of a competing health care facility as more fully set forth in Second Amended Operating Agreement or the Amended and Restated Bylaws.’
"All defendants, with the exception of Dr. Brown who did not own stock at that time, signed and/or deposited the distribution check without complaint. No formal resolution of the CHW Board of Directors or shareholders authorized the endorsement on the distribution check.”
At some point, Dr. Idbeis, a shareholder in CHW, CAW, and KHH, became involved in the development of the Kansas Medical Center. The district court found:
“18. The Kansas Medical Center (KMC), ‘has been formed to acquire land, plan, develop, license, permit, own and operate a full service general acute care hospital (providing among others, general surgery, cardiovascular treatment, gastroenterology . . .). The Hospital will be located in the State of Kansas in or around the City of Wichita.’
“22. Kansas Medical Center’s Offering Memorandum projected it would earn 66% of its revenue from heart and vascular procedures. KMC projected in its revenue model that approximately 400 heart procedures would be conducted at its facilify.
“25. After investing in KMC, two defendant doctors — at that time CHW shareholders — and Dr. Idbeis were elected as the board of KMC. One of the first actions taken by these directors at their inaugural meeting was to agree that KMC would defend and indemnify Dr. Idbeis in the lawsuit brought by KHH.
“26. Dr. [Gregory] Duick [a member of the management committee of KHH] learned of the possibility that Dr. Idbeis was forming a hospital to compete with KHH in the fall of 2004. On September 24, 2004, he wrote to Dr. Idbeis requesting a copy of your proposed Kansas Medical Center offering memorandum and any supplemental information which is intended for the evaluation of the merits and risks of your particular investment. I will need to share this information with the Management Committee of KHH in order to understand the nature and scope of your venture and whether or not it impacts KHH, investors in KHH, etc.’
“27. Dr. Idbeis did not respond to or provide the requested information.”
Despite this, the district court found that Dr. Duick was able to gather some information in the fall of 2004:
“60. In September 2004, Tom Ashcom, M.D., CEO of KHH, sought permission from Gregory F. Duick, cofounder of the KHH, chairman of KHH’s management committee, and chairman of the Board of CHW, to meet with Idbeis about investing in a hospital in Andover, Kansas.
“61. Ashcom attended the meeting on September 17, 2004, with Idbeis and was presented with a nondisclosure agreement. Ashcom read the agreement and understood that the agreement prohibited him from disclosing any information he received about the potential hospital in Andover.
“62. Ashcom signed the agreement and received information about the potential hospital in Andover, including an Offering Memorandum for the Kansas Medical Center.
“63. Several days to a week after the meeting, Ashcom told Duick about the Kansas Medical Center and gave him the Offering Memorandum.”
This information caused Dr. Duick to take action:
“28. Dr. Duick . . . prepared for the benefit of the Board of Cardiac Health an analysis of the similarities he observed between KHH and KMC. Dr. Duick’s Comparative Analysis was presented to the CHW Board. This Comparative Analysis was based on the KMC Offering Memorandum.
“29. On October 18, 2004, the Board of Directors of CHW met at a special meeting to consider whether Dr. Idbeis violated the CHW bylaws by pursuing KMC. Dr. Duick provided the Board with a report and the comparative analysis. [He reported:]
“The KMC Offering Memorandum states that:
‘The strategic plan of the Company is to employ a modified version of the hospital model fashioned and implemented by the founders of Cardiovascular Hospitals of America, LLC, a Delaware limited liability company, and used at the Kansas Heart Hospital in Wichita, Kansas.’
“The minutes reflect that a discussion was had by the directors as to whether the activities of Dr. Idbeis violated the restrictive covenant and what the intent of that covenant was. After the discussion, the Board unanimously approved a special resolution.
“30. The special resolution found that KMC was a hospital specializing in cardiac, cardiothoracic or vascular care, and so was a competing healthcare facility as included in the bylaws. The Board found that Dr. Idbeis’ participation in that hospital violated the bylaws. The Board redeemed the shares in CHW owned by Dr. Idbeis.
“31. None of the defendants whose stock was redeemed by CHW requested the Board of CHW (prior to their respective redemptions) to determine whether investing in KMC violated the restrictive investment covenant of CHW.
“32. As a result of discovery conducted in this case, a list of investors in KMC was obtained. After that, in January 2005, upon learning that the other defendants had invested in KMC, the Board redeemed their shares under the same provision that was used to redeem Dr. Idbeis’ shares.
“33. Since the date of redemption of all shares, those shares have been held and retained as treasury shares by CHW. No stockholder has been granted any right by CHW to acquire any interest in those shares.
“34. The redemption price for the shares redeemed was determined in the same manner. In all instances the price that the individual doctor paid for the shares of the stock was increased by the percentage change in the Consumer Price Index between the time that the doctor purchased the stock (typically $525 per share for the first issue of stock and $596 per share for the secondary offering), and the date of redemption. The Board considered that this approach was intended by the bylaws.
“66. As of January 2005, the [KMC] was not under construction and did not own any real estate.
“67. As of January 2005, the [KMC] did not have a medical staff, was not soliciting, accepting or treating patients, and was not open for business. The soonest this future hospital would have a building, have medical staff, and be soliciting, accepting and treating patients, if at all, would be July 2006.
“68. On February 20, 2005, CAW’s Board of Directors adopted a resolution redeeming Cardiac Physicians’ stock in CAW pursuant to Section 1.5(a) of CAW’s bylaws. Section 1.5(a) allows redemption of CAW stock if the stockholder no longer owns stock in CHW.
“79. Immediately following the redemptions of CHW stock in October 2004 and January 2005, there remained outstanding stock owned by non-defendant shareholders. There has been no evidence presented to the Court that this stock has been tire subject of redemption efforts by CHW.”
Although the Physicians are no longer shareholders, they still may maintain staff privileges at KHH. The district court found:
“16. Clinical practice at the KHH is not conditioned on owning any interest in the KHH. And, owning any interest in KHH does not limit the right of any shareholder to practice at any other facility.
“17. All of the defendant doctors have been granted associate status at KHH and may continue to practice medicine at that hospital if they choose.”
Analysis
This appeal is from an order granting partial summary judgment to the Corporations and Directors. When reviewing a motion for summary judgment, an appellate court applies the same standard as the district court:
“ ‘ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” ’ [Citations omitted.]” Robbins v. City of Wichita, 285 Kan. 455, 459-60, 172 P.3d 1187 (2007).
This standard applies to each of the issues considered on appeal.
Stock or Ownership Restrictions
Considering the first issue of law, the district court held it was legally permissible for CHW to enact a bylaw provision that imposed a limitation on certain shareholders’ investment activities. Pivotal to this resolution was the court’s determination that CHW’s bylaw section 1.5(e) created a “restriction on ownership,” which may be listed in the corporate bylaws. The Physicians argue the district court erred in this ruling because the provision is better characterized as a stock restriction, which under the Kansas General Corporation Code must be in the corporation’s articles of incorporation in order to be valid.
Standard of Review
To resolve this issue we will interpret statutory provisions in the Kansas General Corporation Code, K.S.A. 17-6000, et seq., and interpret and construe corporate bylaws.
As we recently stated:
“When we are called upon to interpret a statute, we first attempt to give effect to the intent of the legislature as expressed through its language. When a statute is plain and unambiguous, we do not attempt to determine what the law should or should not be; nor do we attempt to divine the legislative intent behind it. We will not read or rewrite such a statute to add something not readily found within it. If a statute is clear as written, there is no need to resort to statutory construction. [Citations omitted.] In short, statutory interpretation begins with the language selected by the legislature. If that language is clear, if it is unambiguous, then statutory interpretation ends there as well.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).
Similar rules apply when interpreting corporate bylaws. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005).
Code Provisions Regarding Restrictions
As the Physicians aptly assert, the Kansas General Corporation Code requires that some types of stock restrictions must be in the articles of incorporation in order to be valid. K.S A. 17-6002(a)(4) requires that a corporation’s articles of incorporation set forth basic information regarding a corporation’s stock, including certain rights, limitations, or restrictions:
“The articles of incorporation shall ... set forth a statement of the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof which are permitted by K.S.A. 17-6401, and amendments thereto, in respect to any class or classes of stock or any series of any class of stock of the corporation . . . .” (Emphasis added.)
Additionally, K.S.A. 17-6401(a), which empowers a corporation to issue stock, requires the stock’s “designations, preferences, rights and qualifications, limitations or restrictions” to be stated in the articles of incorporation or amendments thereto. Although the stock’s features may be made dependent on facts outside the ar tides of incorporation, the “restrictions of such class or series of stock [must be] clearly and expressly set forth in the articles of incorporation.” K.S.A. 17-6401(a). This section clarifies that the term “facts” includes, “but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation.” K.S.A. 17-6401(a).
Yet another provision, K.S.A. 17-6602, addresses the rules for amending articles of incorporation and mandates that any change to the stock or the rights of shareholders be set forth in the articles:
“(a) After a corporation has received payment for any of its capital stock, it may amend its articles of incorporation. ... If a change in stock or the rights of stockholders, or an exchange, reclassification or cancellation of stock or rights of stockholders is to be made, the amendment to the articles of incorporation shall contain such provisions as may be necessary to effect such change, exchange, reclassification or cancellation.”
While the above-quoted statutes address stock restrictions, the Corporations contend that the relevant provision in CHW’s bylaws is more akin to a stock “ownership restriction” under K.S.A. 17-6426(b). The district court agreed and adopted this reasoning, citing K.S.A. 17-6426 as the primary authority for permitting the enforcement of written ownership “restrictions” on corporate securities. That statute provides, in part:
“(b) A restriction on the transfer or registration of transfer of securities of a corporation, or on the amount of the corporation’s securities that may be owned by any securities holder or a group of securities holders, may be imposed, either by the articles of incorporation or by the bylaws or by an agreement among any number of security holders or among such holders and the corporation. No restriction so imposed shall be binding with respect to securities issued prior to the adoption of the restriction unless the holders of the securities are parties to an agreement or voted in favor of the restriction.” (Emphasis added.)
Another subsection, K.S.A. 17-6426(c), permits a restriction on the transfer of securities or on the amount of such securities that may be owned if the restriction
“(2) obligates the corporation or any holder of securities of the corporation or any other person or any combination of the foregoing, to purchase the securities which are the subject of an agreement respecting the purchase and sale of the restricted securities; [or]
“(4) obligates the holder of the restricted securities to sell or transfer an amount of restricted securities to the corporation ... , or causes or results in the automatic sale or transfer of an amount of restricted securities to the corporation or to any other holders of securities of the corporation or to any other person or to any combination of the foregoing; or
“(5) prohibits or restricts the transfer of the restricted securities to, or the ownership of restricted securities by, designated persons or classes of persons or groups of persons, and such designation is not manifestly unreasonable.”
Restriction on Class of Stock vs. Holder of Stock
The district court found several of these subparagraphs of K.S.A. 17-6426 applied to section 1.5(e) of CHW’s bylaws and, as a result, found the provision was valid. In doing so, the district court rejected the Physicians’ arguments that the restrictions must be in the articles of incorporation because of the requirements of K.S.A. 17-6002(a)(4) or K.S.A. 17-6401.
The focus of this duel, section 1.5, is titled: “Ownership and Transfer Restrictions.” The provision stated the coiporation’s purpose and then stated: “Because of this purpose, certain restrictions upon the ownership and transfer of stock of the corporation shall be imposed as follows.” (Emphasis added.) Included in the restrictions on ownership were requirements of shareholder eligibility, e.g., the shareholder had to be licensed, actively practicing, and board certified in one of several listed medical specialities and had to attest that he or she was complying with certain referral and practice conditions relating to patient care. Section 1.5(b) provided, in part:
“Any shares of stock held by a person who during any period of time fails to meet the Eligibility Requirements or fails to apply for, obtain and maintain medical staff privileges or who fails to abide by the terms of an attestation statement may be redeemed, at the option of the corporation by resolution of its Board of Directors, at a redemption price equal to the market value of such shares.”
Additionally, under the provision at issue in this case — section 1.5(e), quoted above in the district court’s finding of fact No. 8— the shareholder would not be permitted to own all or any portion of a competing health care facility. The provision regarding ownership in a competing health care facility allowed the board to exercise the redemption provision in section 1.5(b), although the calculation of the maximum redemption price differed.
In concluding these provisions were ownership restrictions rather than a stock restriction that must be authorized by and set out in the articles of incorporation, the district court looked to an unpublished Delaware case, Capano v. Wilmington Country Club, 2001 WL 1359254 (Del. Ch. 2001). Reliance on a Delaware decision is consistent with our long history of looking to Delaware for guidance when applying the Kansas General Corporation Code, which was modeled on the Delaware Code. See, e.g, Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 420, 77 P.3d 130 (2003) (adopting Delaware’s standard of enhanced judicial scrutiny when corporate directors take defensive measures in response to perceived threats to control); Achey v. Linn County Bank, 261 Kan. 669, 676, 931 P.2d 16 (1997) (decisions of the Delaware courts involving corporation law are persuasive); In re Hesston Corp., 254 Kan. 941, 980, 870 P.2d 17 (1994) (the Kansas provisions of the Corporation Code are “nearly identical” to the Delaware Code).
In Capano, the Delaware court examined the equivalents of K.S.A. 17-6426(b) and K.S.A. 17-6401. The private Wilmington Country Club (Club) had a bylaw (expulsion bylaw) authorizing its board of directors to expel a member for cause. The Club also had a separate bylaw that required a new member, as a condition of membership, to purchase shares of Club stock that were restricted in terms of their transferability. One such restriction, which was contained in a separate bylaw provision (compulsory stock transfer bylaw), required that if a member died or was expelled, his or her shares of stock were forfeited unless the shares were transferred to the member’s spouse.
Capano became a member of the Club and contracted to be bound by the bylaws. In 1999, the board of directors voted to expel Capano for cause. Although he took the opportunity to transfer his stock to his wife, Capano challenged his expulsion from the Club and argued the expulsion bylaw and the compulsory stock transfer bylaw were invalid under Delaware corporate statutory and case law.
In considering summary judgment, the Delaware court found the only genuine corporate law issue presented was whether the compulsory stock transfer bylaw provision was required, as a matter of Delaware statutory law, to be contained in the Club certificate of incorporation. The Delaware court pointed out that Capano’s bylaw challenge rested upon Del. Code Ann. tit. 8, § 102(a)(4) (2000) (contents of certificate of incorporation) and Del. Code Ann. tit. 8, § 151 (1998) (classes and series of stock; redemption; rights), which provided that any rights, preferences, restrictions, and limitations relating to any class or series of stock must be set forth in the certificate of incorporation. Implicit in Capano’s argument, therefore, was the premise that the compulsory stock transfer bylaw constituted a “limitation” with respect to the Club stock.
The Delaware court rejected that premise, however, because the compulsory transfer requirement was not a characteristic or attribute — such as a voting right, dividend right, or dividend or liquidation preference — that affected an entire class of stock. Instead, the compulsory transfer provision operated only against the holder of the stock (in the event of that member’s death or expulsion), not against the stock itself. The Delaware court explained: “Put in statutory terms, the compulsory stock transfer provision is not a limitation ‘with respect to’ the [Club] shares, and is therefore not statutorily required to be set forth in the Club’s charter.” 2001WL 1359254, at *3. See also Ward, Folk on Delaware General Corporation Law § 109 (2001) (hereinafter Folk) (“ ‘[T]he by-laws are generally regarded as the proper place for the self-imposed rules and regulations deemed expedient for [the corporation’s] convenient functioning to be laid down.’ ”) (quoting Gow v. Consolidated Coppermines Corp., 19 Del. Ch. 172, 180, 165 A. 136, 140 [1933]).
Similar to the situation in Capano, in the present case the challenged provision operated only against certain stockholders (in the event of a stockholder investing in a competing health care facility), not against an entire class of stock. Because of this, the district court correctly classified the provision as a restriction on the amount of stock that could be owned. In other words, under the express language of the bylaw provision, certain persons were not permitted to own shares of CHW stock; their ownership was restricted. Thus, the provision fell within K.S.A. 17-6426(b) as a restriction “on the amount of the corporation’s securities that may be owned by any securities holder.”
The district court highlighted the Delaware court’s reasoning that “[a] cardinal rule of construction requires the Court to adopt an interpretation that harmonizes all of the statutory provisions.” Capano, 2001 WL 1359254, at *9. See Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88-89, 106 P.3d 492 (2005) (applying this rule of harmony). As noted by the district court, it would be harmonious to construe K.S.A. 17-6426(b) in such a way that it does not conflict with K.S.A. 17-6401, since the former permits restrictions on ownership to be imposed by corporate bylaws and because the bylaw restriction in this case defines who may not own CHW shares, i.e., those persons who have invested in a competing health care facility. The district court further stated:
“Whatever interpretation one gives to K.S.A. 17-6401 and 17-6410, those statutes address redemption in a manner that is inapplicable to the factual situation before the Court since those statutes address restrictions on the stock itself. Those statutes do not in any way address the remedy for violations of restrictions on ownership which are validly contained in the bylaws as permitted by K.S.A. 17-6426(b), (c) and (e).”
The district court found that the bylaw provision in this case fell into several of the nonexhaustive but expressly approved restrictions listed in K.S.A. 17-6426(c).
As we examine this conclusion, K.S.A. 17-6426(c)(4) and (c)(5) are the provisions that most obviously fit the circumstances of this case. However, as the Physicians point out, these provisions were not adopted until 2004 — after CHW’s directors determined the Physicians were not eligible to own stock. Similarly, these provisions were adopted in Delaware after Capano’s expulsion from his club. On that basis, the Delaware court refused to rely on those statutory provisions. We agree with this analysis.
Nevertheless, the Capano court relied upon the statutory “catchall” provision. The Kansas counterpart states that “[a]ny other lawful restriction . . . on the amount of securities that may be owned by any person or group of persons is permitted by this section.” K.S.A. 17-6426(e). Regarding the Delaware statute, the Capano court stated:
“The issue thus presented is whether the WCC forfeiture provision is an ‘other lawful restriction’ on the transfer of securities under (former) 8 Del. C. § 202(e). Because the statute does not define ‘other lawful restrictions,’ the answer must be found in the Delaware case law.
“Before Section 202 was enacted, the Delaware cases held that restrictions imposed by a corporation upon the transfer of its stock would be upheld if those restrictions were reasonable. A restriction was valid if it was reasonably necessary to advance the corporation’s welfare or attain the objectives set forth in the corporate charter. A determination of the validity of those restrictions required balancing the policies served by the restrictions against the traditional judicial policy favoring the free transfer of securities.” 2001 WL 1359254, at *7.
The court felt it was reasonable to conclude the Club’s purposes would not be achieved if shares were freely transferable.
Similarly, CHW’s bylaws provide:
“SECTION 1.5 - OWNERSHIP AND TRANSFER RESTRICTIONS. The corporation has been formed to organize, develop and own an interest in a limited liability company (‘LLC’) which will own and operate a single specialty free-standing cardiac, cardiothoracic and vascular care hospital (the ‘Hospital’). Because of this purpose, certain restrictions upon the ownership and transfer of stock of the corporation shall be imposed.”
In adopting this provision, the shareholders recognized the reasonableness of imposing membership restrictions. Also, in 1999, before any Physicians began to invest in KMC, the KHH board of directors noted that “simultaneous ownership in the Company and a competing health care facility will expose the company’s methods, plans, or proprietary information to competitors which could be harmful to the Company.” Such concerns are generally recognized as reasonable justifications for restricting ownership. See 18A Am. Jur. 2d, Corporations §§ 573, 574, 576.
Therefore, CHW’s bylaw section 1.5(e) — as a restriction on a shareholder’s eligibility to own shares and as a requirement that those shares be transferred to the corporation when eligibility is lost — is a valid restriction on ownership under K.S.A. 17-6426.
We must also consider an additional argument raised by the Physicians in a Supreme Court Rule 6.09(b) (2007 Kan. Ct. R. Annot. 45) letter. The Physicians cite Kiekel v. Four Colonies Homes Assn. 38 Kan. App. 2d 102, 162 P.3d 57 (2007), a homeowner’s association case. In Kiekel, Four Colonies, a Kansas not-for-profit corporation, amended its bylaws to restrict the right of lot owners to rent their property. The Court of Appeals determined that the bylaw amendment conflicted with the Declaration. The panel first observed that the Declaration was intended to set forth the owners’ fundamental ownership rights, and the bylaws would set forth enforcement and govern its procedures. It noted that a strict construction of the Declaration showed no restrictions on the owners’ rights to rent their property. The Court of Appeals held that Four Colonies could not circumvent the intent of the Declaration, the enabling document, by subsequently amending the bylaws. The bylaw amendment imposing rental restrictions, therefore, was void and unenforceable. 38 Kan. App. 2d at 113.
Analogizing Kiekel to the present case, the Physicians argue that the stock redemption provision in the bylaw amendments was a restriction of a property right and, therefore, must have been imposed through an amendment to the articles of incorporation, the enabling document of CHW.
We conclude Kiekel does not apply for several reasons. First, in Kiekel, the bylaw change conflicted with the Declaration. Here, there is no conflict. Second, Kiekel is based upon principles applying to community homeowners’ associations and real property, not to ownership of stock. In contrast, when stock is at issue, K.S.A. 17-6426 allows the restriction on ownership in any written agreement among the shareholders.
Redemption or Purchase
Even if the restrictions can be imposed in the bylaws under the provisions of K.S.A. 17-6426, the Physicians contend that Capano is distinguishable because it dealt with a restriction on the transfer of stock or, alternatively, a forfeiture of the stock, not a redemption of stock. They assert that the legislature’s failure to use the term “redemption” in K.S.A. 17-6426 clearly means that the statute does not apply to redemption rights, and the district court’s application of the statute erroneously expanded the statute’s scope.
Again, this argument requires us to interpret several Kansas statutes and the bylaws. Our review is de novo.
Code Provisions Regarding Redemption and Purchase
As the Physicians argue, “redemption” and “purchase” are differentiated in several provisions of the Kansas General Corporation Code. K.S.A. 17-6401(b) speaks specifically about redemption: “The stock of any class or series may be made subject to redemption by the corporation at its option or at the option of the holders of such stock or upon the happening of a specified event.” The terms of the redemption, including the price, “shall be stated in the articles of incorporation.” K.S.A. 17-6401(b)(2).
K.S.A. 17-6410 uses both terms. K.S.A. 17-6410(a) provides that every corporation “may purchase, redeem, receive, take or otherwise acquire, own and hold, sell, lend, exchange, transfer or otherwise dispose of, pledge, use and otherwise deal in and with its own shares.” Subparagraphs of 17-6410 then differentiate between the two terms. K.S.A. 17-6410(a)(2) provides the power of a corporation to “purchase, for more than the price at which they may then be redeemed, any of its shares which are redeemable at the option of the corporation,” and subparagraph (3) refers to the power of a corporation to redeem any of its shares but does not mention a power to purchase shares.
Furthermore, there is a distinction in the statutes regarding whether the rights and powers to purchase and redeem stock must be stated in the articles of incorporation. No provision requires the articles to restate the corporation’s statutory power to purchase its own stock. In contrast, “every redemption must be authorized by K.S.A. 17-6401(b) and must be carried out in accordance with that statute and the articles of incorporation.” Kansas Corporation Law & Practice § 2.18 (4th ed. 1998); see also 11 Fletcher, Cyclopedia of the Law of Private Corporations § 5308, p. 533 (rev. ed. 2003) (“terms of any redemption right attaching to a class of shares must be set out in the provision of the articles of incorporation authorizing the shares, unless the articles empower the board to set such terms for authorized shares”); Folk § 151.2 (4th ed. 2005) (section 151[b] of the Delaware Code, which is equivalent to K.S.A. 17- 6401[b], allows stock to be redeemed upon the happening of any specified event listed in certificate of incorporation or resolution providing for the issuance of stock adopted by the board of directors).
Pointing to these statutory differentiations of the term, the Physicians cite the doctrine of independent legal significance. “Under the doctrine of independent legal significance, action taken under one article of the Kansas Corporation Code is legally independent and its validity not dependent upon nor to be tested by the requirements of other unrelated sections under which the same result may be attained by different means.” In re Hesston Corp., 254 Kan. 941, Syl. ¶ 7 (determining merger is legally distinct from redemption).
As a result of application of the doctrine, the Physicians argue a redemption is governed by K.S.A. 17-6401, and the validity of a redemption cannot be tested by the requirement of K.S.A. 17-6426, even though the final result may be the same under either provision, i.e., the reacquisition of the corporation’s stock.
“Purchase” vs. “Redemption”
We reject the Physicians’ argument for several reasons. First, the argument’s faulty premise is that a word in a corporation’s bylaws must have the meaning accorded to the word in a statute, even though it may be a word with multiple meanings. Additionally, the argument eliminates consideration of “purchase” as a form of “redemption,” and as a form of redemption for which a statutory exception to K.S.A. 17-6401(b) has been made. Finally, the argument does not recognize that, although using the words separately and distinctly, the Kansas General Corporation Code does not explicitly define when a corporation’s reacquisition of its own stock is a purchase and when it is a redemption.
What then is the distinction between “purchase” and “redemption”? One corporation law treatise states that “[a] redemption right held by the issuing corporation allows the corporation, at its option, to call in all or a pro rata portion of its redeemable shares, and buy them back at a specified price plus accrued dividends.” 11 Fletcher § 5308, p. 532.
Another treatise explains:
“A redemption of its own shares by a corporation differs from a purchase in that a corporation redeeming shares calls for redemption shares (usually preferred) issued subject to redemption. And while a purchase may be made from any one or more shareholders, a redemption usually must be made of all the shares of the class or series subject to redemption or, if of less than all, either pro rata or by lot.” 11 Cavitch, Business Organizations With Tax Planning § 147.01[2] (2001).
The use of the term “redemption” in CHW’s articles of incorporation or bylaws would not fit either of these definitions.
Additionally,
“[t]he distinction made here between the terms purchase’ and ‘redemption’ is not universally recognized. Modern state corporation statutes governing stock repurchases no longer distinguish between redeemable shares and other types of shares. The Internal Revenue Code refers to all corporate distributions to shareholders in return for their stock as ‘redemptions.’ The major stock exchanges have a tendency to do likewise. In addition, there are courts that use the term ‘redemption’ as the generic term for all corporate share reacquisitions. The imprecision of terminology is understandable, as the end result is similar whether there is a purchase or a redemption.” 11 Cavitch, at § 147.01[2],
As these authorities illustrate, the term “redemption” has more than one meaning and a purchase is a form of redemption. Further, under these various meanings, when K.S.A. 17-6426 authorized the corporate purchase of stock pursuant to a stock restriction on transfer or ownership, it authorized a form of redemption.
Given these alternative meanings, the critical question in this case is: What would a reasonable third party understand to be the meaning of the term “redemption” in the parties’ contract, the bylaws? We frame the issue in this way in light of the basic rules regarding the interpretation of corporate bylaws.
It is a well-settled rule that the bylaws of a corporation are self-imposed rules, resulting from an agreement or contract between the corporation and its members to conduct the corporate business in a particular way. Schraft v. Lets, 236 Kan. 28, 34-35, 686 P.2d 865 (1984). Consequently, corporate instruments such as charters and bylaws are interpreted in the same manner as other contracts. Dutta v. St. Francis Regional Med. Center, Inc., 254 Kan. 690, 696- 97, 867 P.2d 1057 (1994); see Harrah’s Entertainment, Inc. v. JCC Holding Co., 802 A.2d 294, 309 (Del. Ch. 2002).
Where the parties have created an unambiguous, integrated written statement of their contract, the language of that contract will control, not as subjectively understood by either party but as understood by a hypothetical reasonable third party. First Financial Ins. Co. v. Bugg, 265 Kan. 690, 694, 962 P.2d 515 (1998). Additionally, even if a word has two or more meanings, a document is ambiguous only if an examination of the entire document leaves a genuine uncertainty as to which of the two meanings was intended by the parties. See Narron v. Cincinnati Ins. Co., 278 Kan. 365, 369, 97 P.3d 1042 (2004).
Finally, “bylaws of a corporation are presumed to be valid, and the courts will construe the bylaws in a manner consistent with the law rather than strike down the bylaws.” Frantz Manufacturing Co. v. EAC Industries, 501 A.2d 401, 407 (Del. 1985). This rule suggests that we should read the bylaw to use the term “redemption” in a generic sense.
We reach this same conclusion when we examine the context of the use of the word “redeem” in CHW’s bylaw section 1.5 as compared to its use in the context of various provisions of the Kansas General Corporation Code. A Pennsylvania court undertook a similar analysis in a case discussed by the parties, Wyatt v. Phillips, 2004 WL 51693 (Pa. Commw. 2004), aff'd 880 A.2d 20 (Pa. Super. 2005). The court applied the Delaware General Corporation Code to its consideration of a shareholders’ agreement and a consent decree, considering both as contracts. The consent decree provided for the payment of a specified sum to “consummate” the acquisition of a shareholder’s interest in the corporation. The consent decree did not explicitly use the term “purchase” or “redeem,” and the parties disagreed as to how the transaction should be classified. The shareholders’ agreement did provide the corporation could “redeem” its stock if a third party made an offer to buy shares.
After examining the Delaware General Corporation Code requirements regarding redemption, the court determined the “shares, by their nature, were not issued with redemption rights.” 2004 WL 51693, at *11. In large part, this conclusion was based upon the lack of redemption rights in the articles of incorporation. In addition, the court cited a statutory requirement that provided:
“Any stock of any class or series may be made subject to redemption by the corporation . . . provided however, that immediately following any such redemption the corporation shall have outstanding 1 or more shares of 1 or more classes or series of stock, which share, or shares together, shall have full voting powers. Del. Code Ann. tit. 8, § 151(b).” 2004 WL 51693, at “11.
Just as in Wyatt, the stock in this case was not structured to meet the requirements of Del. Code Ann. tit. 8, § 151(b) or its Kansas counterpart. Although arguing another point, the Physicians note that Kansas had a provision identical to Del. Code Ann. tit. 8, § 151(b) at the time the articles of incorporation and original bylaws were adopted and when Dr. Idbeis’ stock was redeemed. K.S.A. 17-6401(b) (Furse). Yet, CHW had only one class of stock.
Consequently, by its nature, the stock at issue was not statutorily redeemable. Given that fact, CHW’s bylaw provision was ambiguous. Moreover, because the stock was not statutorily redeemable, a reasonably prudent third party would understand the word to be used in a nonstatutoiy manner.
This conclusion is reinforced when we examine the purpose of section 1.5(e) of the bylaws because we conclude that tire section does not meet the general purpose of a redemption provision. This same conclusion was reached under similar facts in In re West Waterway Lumber Co., 59 Wash. 2d 310, 367 P.2d 807 (1962). The corporate bylaw at issue in that case read:
“ ‘[I]n case of the death of any Stockholder or the dissolution of any corporate Stockholder or the insolvency or bankruptcy of any such Stockholder, or in case any such Stockholder voluntarily, for the period of one year, ceases to continue in the manufacture of lumber, then and in that event this corporation shall have the right to call in, retire and cancel the capital stock so held by such Stockholder, upon payment to the heirs, executors, trustees or successors in interest of such person or corporation, of an amount equal to the book value but not exceeding par value of such stock.’ ” 59 Wash. 2d at 315.
The petitioners contended that the bylaw’s purported right of redemption was unauthorized. The Washington Supreme Court disagreed:
“Respondents suggest that the quoted portion of the bylaw is in fact a provision for redemption of common stock and as such is valid. RCW 23.01.440 authorizes redemption of preferred shares, but no mention is made in the statute of redeeming shares of common stock. . . .
‘We do not believe the bylaw may properly be construed as an attempt to authorize redemption. The purpose of the provision, when taken with the rest of the bylaws and with the articles of incorporation, is clear enough. Only persons defined as ‘legitimate manufacturers of lumber on the Pacific Coast’ are entitled to own shares of the Export Company. A shareholder who dies or goes out of business no longer qualifies. In order to implement the reasonable restriction of eligibility, it is essential that the Export Company have available to it some means of enforcement. The power of the Export Company to reacquire its shares is not a continuing one; indeed, it arises only upon events not within its control.” 59 Wash. 2d at 319.
The court emphasized that the power of redemption usually enjoys a “significantly different characteristic — aside from the controls imposed by law, it may be exercised at the will of the corporation, subject only to such restrictions regarding current financial status, impersonal selection of the group to be redeemed if less than the whole class is called, and such other limitations as may have been expressly stated.” 59 Wash. 2d at 319. Considering the terms of the bylaw in context, the court concluded that it did not constitute a “redemption provision.” 59 Wash. 2d at 320; see also Glens Falls Ins. Co. v. National Bd. of Fire Underwriters Bldg. Corp., 63 Misc. 2d 989, 314 N.Y.S.2d 80 (1970) (reacquisition of shares, pursuant to certificate of incorporation providing that, if shareholder ceased membership in trade association or transferred shares to nonmember, shares could be redeemed at option of association at par value, was not “redemption” barred by statute which had been enacted after adoption of such certificate provision and which precluded redemption unless corporation had outstanding a class of common shares not subject to redemption).
In re West Waterway Lumber Co. is distinguishable in that the provisions at issue did not include the word “redemption” and the statutory schemes contained differences regarding the classes of stock that could be redeemed. Nevertheless, the rationale of the decision regarding the role of the bylaw provision as being akin to a shareholders buy-sell agreement is persuasive. Clearly, the pur pose of CHW’s bylaw section 1.5 was to function as an agreement among the stockholders in order to assure eligibility requirements are met. The reasons that would trigger the reacquisition of the stock are not within the control of the board of directors and would not be targeted at a class of stock. Rather, it would be targeted at the holder of the stock who no longer meets eligibility requirements as defined in the contract among the shareholders.
Other factors noted by the Washington court apply in this case as well. Corporate finance, control, preferred ownership, or other considerations such as creditors’ rights or equity protection were clearly not involved. Nor is there any indication that the provision affects the corporate structure (financial or otherwise), shareholders, or creditors. Its only purpose is to limit ownership eligibility, and this purpose does not parallel the usual features of a redemptive right.
We conclude the use of the word “redemption” in CHW’s bylaw section 1.5(e) is susceptible to more than one meaning and, when considered in the context of the bylaw and Kansas’ statutes, would be understood by a reasonably prudent person to mean CHW had the power to purchase the stock at the predetermined price. Therefore, section 1.5, as a restriction on transfer and ownership and allowing for CHW to reacquire the stock, was valid and enforceable and did not violate K.S.A. 17-6401(b) or K.S.A. 17-6410.
As a result of this conclusion, we do not reach die district court’s alternative conclusions regarding equitable considerations. Nor do we need to discuss Dr. Idbeis’ argument regarding the illegality of a redemption under K.S.A. 17-6401(b), as that provision does not apply given the context of the bylaw provision.
Competing Health Care Facility
The Physicians also take issue with the district court’s ruling that KMC was a competing health care facility as contemplated in the redemption provision of CHW’s bylaws. Section 1.5(e) defined a “competing health care facility” as “any medical hospital or facility specializing in cardiac, cardiothoracic, or vascular care.” The Physicians argue KMC did not meet the definition because KMC was not yet constructed or a functioning hospital at the time their stock was redeemed in October 2004 (Dr. Idbeis) and January 2005 (the remaining Physicians). They contend that KMC was incapable of competing with KHH and CHW at that time.
Further, they argue the district court erred in finding that the Directors’ actions “must be judged” under the business judgment rule. In making this argument, the Physicians assert: (a) there was no room for “judgment” in the Directors’ determination of whether the bylaw restriction was violated and (b) the business judgment rule does not apply to the Directors’ interpretation or application of the corporate bylaws.
The resolution of these arguments will involve the interpretation of CHW’s bylaws and the examination of legal issues that the district court addressed in its summary judgment ruling. Thus, as with the prior issues, we will examine these questions under the de novo standard of review. See McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005); State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
Business Tudgment Rule
This court has previously defined the business judgment rule as follows:
“ ‘The presumption that in making business decisions not involving direct self-interest or self-dealing, corporate directors act on an informed basis, in good faith, and in the honest belief that their actions are in the corporation’s best interest. The rule shields directors and officers from liability for unprofitable or harmful corporate transactions if the transactions were made in good faith, with due care, and within the directors’ or officers’ authority.’ Black’s Law Dictionary 192 (7th ed. 1999).” Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 417, 77 P.3d 130, 147 (2003) (quoting Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 759, 27 P.3d 1 [2001]).
Also, “[t]he burden is on the party challenging the decision to establish facts rebutting the presumption.” Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244, 253-54 (Del. 2000).
Obviously, a key to the application of the rule is that a business judgment must be at issue, and the Physicians argue that the decision whether KMC was a competing health care facility was not a “business judgment” decision. This argument ignores that the decision was tied directly to the board’s determination of whether to “redeem” the Physicians’ shares of CHW stock. In other words, the CHW’s board of directors was deciding whether there was a violation of the bylaws and whether to take action.
An argument similar to the Physicians’ was rejected by the Court of Appeals in Gray v. Manhattan Med. Center, Inc., 28 Kan. App. 2d 572, 18 P.3d 291 (2001). Gray, a shareholder, believed that certain conduct by two other shareholders violated their lease with the corporation and also violated the bylaws. Because the bylaws were violated, Gray argued the directors must act and enforce the provisions. Contrary to this view, the board determined there had not been a violation of the bylaws. The Court of Appeals held that “[t]he business judgment rule gives a corporation’s directors the authority to interpret and apply the bylaws and the lease in the corporation’s best interest.” 28 Kan. App. 2d at 579.
The Gray court further noted: “[Tjhere was a dispute regarding the interpretation of the lease and bylaws. . . . The fact that [the directors] chose a course of action Gray disagrees with does not affect the applicability or reduce the protection of the business judgment rule.” 28 Kan. App. 2d at 579.
Similarly, in this case, as highlighted by the Physicians’ own argument that KMC was not a competing health care facility, a judgment had to be made as to whether section 1.5(e) was violated. The bylaw vested the CHW’s board of directors with discretion to make the determination, stating: “The Board of Directors shall issue such interpretations as are necessary to carry out the intent of this restriction.”
Further, the decision related to business considerations. As the Corporations point out, the language of the redemption provision made it clear that the act of investment was intended to trigger the provision. In addition, the intent of the redemption provision was to “prohibit ownership of a competing health care facility, not a limitation of anyone’s group practice or facilities integrated within the practice.” The focus of the provision was a proactive one. In adopting the provision, the directors and the shareholders recognized that divulging business plans and proprietary information was damaging to the business interests of the corporation. Given that conflicts start before completion of the building that houses a hospital, it would be unreasonable to conclude that CHW’s bylaws did not operate until that point. Even during the planning stages, KMC was a competitor for shareholder investment, physician participation, and referral contacts and relations.
Moreover, CHW’s directors interpreted the redemption provision consistent with past interpretations. It is uncontroverted that the bylaw restriction had its genesis in response to a proposed hospital on Wichita’s west side, and the directors and shareholders viewed that proposal as presenting a competitor.
The decision made by CHW’s board of directors was a business judgment decision.
Are the Requirements of the Business judgment Rule Satisfied?
The Physicians argue that, even if the business judgment rule gave CHW’s board of directors the authority to interpret the bylaws, the directors cannot be protected by the business judgment rule defense because the requirements of the rule have not been met.
The business judgment rule presumes a corporate board’s decision was made by disinterested directors who acted on an informed basis, in good faith, and in the honest belief the decision was in the corporation’s best interest. Gray, 28 Kan. App. 2d at 577. The Physicians attack the application of the rule, pointing to each of these criteria.
First, they argue that CHW’s directors were not personally financially disinterested in their decision to “redeem” the Physicians’ shares of CHW stock. A director is interested “where the director has a financial or pecuniary interest in a transaction other than that which devolves to the corporation or to all of the shareholders generally.” 3A Fletcher § 1040 (rev. ed. 2002); see also McCall v. Scott, 239 F.3d 808, 817 (6th Cir. 2001) (“A director is considered interested when, for example, he will receive a personal financial benefit from a transaction that is not equally shared by the stockholders, or when a corporate decision will have a ‘materially detrimental impact’ on a director but not the corporation or its stock holders.”). The Delaware Chancery Court has described “interest” as “ ‘meanfing] that directors can neither appear on both sides of a transaction nor expect to derive any personal financial benefit from it in the sense of self-dealing, as opposed to a benefit which devolves upon the corporation or all stockholders generally.’ [Citation omitted.]” Orman v. Cullman, 794 A.2d 5, 23 (Del. Ch. 2002).
The Physicians argue the directors’ ownership interests increased because the Physicians owned 40.17 percent of the equity in CHW before tire redemption of their stock. As the district court pointed out, however, the directors did not stand to receive a personal financial benefit from the stock redemption that was not shared equally by all the remaining shareholders. If there is any benefit from the redemption, it is merely the result of the fact that fewer shares are outstanding. And this is a benefit that all remaining shareholders participate in equally in accordance with their respective ownership. As the district court found, there were no "interested” directors under these circumstances.
Next, the Physicians argue the directors did not act in good faith. Citing Delaware cash-out merger cases, the Physicians argue the standard should be whether they received fair value for their share of the corporation’s equity. See, e.g., Kahn v. Lynch Communication Systems, Inc., 638 A.2d 1110 (Del. 1984). What this ignores is that the Physicians, as well as the other shareholders, agreed upon a method for determining a fair valuation for the shares if the circumstance ever arose where a shareholder violated the restrictive provisions. There is no evidence the CHW directors manipulated the valuation method. Additionally, as already discussed, there was a good faith basis to conclude KMC was a competitor. As a result, we conclude the Physicians have not met the burden of coming forward with evidence in response to the motions for summary judgment to show a lack of good faith.
Finally, regarding the due care criteria of the business judgment rule, the Physicians malee an argument in their reply brief that the CHW directors failed to exercise due care in making the redemption valuation. They complain that Dr. Duick, the cofounder of KHH, called a meeting and prepared a report, but the board meet ing was held without “formal notice.” The bylaws of CHW, however, expressly provided that notice of a special meeting of the directors only needed to be given to directors and that the required notice could be waived. Each of the directors in this case “waived formal notice by unanimous consent.” See K.S.A. 17-6519 (waiver of notice).
The Physicians further argue that the lack of due care is illustrated by the fact the CHW directors were not given copies of KMC’s offering memorandum before the meeting so they could make their own judgments instead of relying on Dr. Duick’s. The sole case cited by the Physicians is Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985), superseded by statute as stated in Emerald Partners v. Berlin, 787 A.2d 85 (Del. Super. 2001). In Van Gorkom, the chairman of the board, unbeknownst to the other directors, devised a plan to sell the company and picked a sale price based on how long he felt it would take an acquirer to pay back borrowed funds. Neither the chairman nor the board obtained a valuation of the company. After he found a buyer, he called a board meeting to approve a merger, despite the fact that the board had never before considered a sale of the company. Van Gorkom, 488 A.2d at 866-67.
In contrast, in this case, Dr. Duick presented to the other CHW directors the offering memorandum of KMC and Dr. Duick’s comparative analysis of KMC and KHH. It was uncontroverted that Dr. Duick sought additional information from Dr. Idbeis (the “manager” of KMC) about KMC and that Dr. Idbeis refused to respond to that request. Also, by the time the directors considered the other Physicians’ interest in KMC, several months had elapsed. In addition, the Physicians fail to cite any authority requiring each director to conduct an independent investigation to separately uncover the facts that are reported to the directors. Nor do they identify any additional information that should have been reasonably gathered by the directors in advance of making its decision. The district court found it irrelevant that the other directors did not duplicate Dr. Duick’s effort. The Physicians offer no arguments or authority contrary to these findings, and we are not persuaded otherwise.
The district court correctly concluded that the Physicians failed to come forth with material evidence to rebut the presumptions that the CHW directors were not “interested” and that it acted with due care. Under the uncontroverted facts, the directors, in applying the bylaw provision restricting ownership, made a business judgment in good faith, with due care, and within the directors’ authority.
Approval of Bylaws
The Physicians jointly, and Dr. Zepick in a separate appellate brief, also contend that several of them — specifically, Drs. Rumisek, Bajaj, Reader, and Zepick — were not present at the February 2000 meeting of CHW shareholders and, therefore, did not vote in favor of the redemption provision. Further, they argue they did not agree to and, as a result, are not subject to the redemption provision. These arguments stem from the district court’s application of K.S.A. 17-6426(b), which provides that “[n]o restriction so imposed shall be binding with respect to the securities issued prior to the adoption of the restriction unless the holders of the securities are parties to an agreement or voted in favor of the restriction.”
The district court found it was uncontroverted that these Physicians later voted to approve CHW’s amended bylaws on the December 2000 voting form. Further, the district court concluded as a matter of law this subsequent vote was the equivalent of voting in February 2000 in favor of the restrictive bylaw provision.
The Physicians argue this ruling was erroneous because it did not consider the evidence in the light most favorable to them as the party opposing summary judgment.
It is well established that, in order to create a contract, an acceptance must be unconditional and unequivocal. Nungesser v. Bryant, 283 Kan. 550, 568, 153 P.3d 1277 (2007). Under the uncontroverted facts of this case, there is written evidence of an unconditional and unequivocal acceptance of a proposed corporate bylaw amendment and that acceptance created a contract binding upon the shareholders. That determination is based upon a written instrument that is unambiguous and cannot be modified by parole evidence.
The voting form stated:
“I,_, have read and understand the Proposed Revision to the Second Paragraph of Article Four of the Articles of Incorporation of Cardiac Health of Wichita, Inc., as attached in Exhibit A; and the Amended and Restated Bylaws for Cardiac Health of Wichita, Inc., as attached in Exhibit B. T hereby indicate my preference below and vote to:
_Approve
_Disapprove”
The Physicians’ argument is based upon the fact that the attachments — Exhibits A and B — were versions of the articles and bylaws showing additions and deletions that accommodated adding anesthesiologists as shareholders. The provisions that had been adopted in February 2000 — including section 1.5(e) — were not underlined or highlighted in any way.
If we were considering amendments to the articles of incorporation, the Physicians’ argument would have some validity; the voting form asked for approval or disapproval of the proposed revision to the second paragraph of Article Four. In contrast, the form did not ask for approval or disapproval of the revisions to the bylaws. Rather, it asked for approval or disapproval of the Amended and Restated Bylaws, an 11-page document that included the disputed text of section 1.5(e).
We agree with the district court’s conclusion. The undisputed facts establish that the Physicians approved the bylaws and, in doing so, agreed to be bound by section 1.5(e)’s limitations on ownership.
Penalty
Finally, Dr. Zepick argues in his appellate brief that the redemption price in the bylaws was a penalty and, therefore, unenforceable.
The resolution of this issue involves questions of law over which we have unlimited review. See State v. Hoeck, 284 Kan. 441, 447, 163 P.3d 252 (2007); Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).
Dr. Zepick first takes issue with the fact that “as a result of even a minor breach of a covenant [he] is required to part with his shares at a price that makes no effort at all to consider the growth in the value of his shares.”
The price was fixed by a formula adopted by the shareholders of CHW in the restrictive bylaw. That original formula provided that the price of redemption was to be computed as provided for other redemptions; “however, the maximum redemption price shall not exceed Five Hundred Twenty-Five Dollars ($525.00) per share, increased or decreased by any percentage change in the Consumer Price Index.” The price of $525 per share was the initial price paid by investors in CHW at the time the corporation was organized.
The district court found that the directors of CHW recognized the intent of the redemption provision. In other words, the shareholders would get back eveiy dollar they invested in the corporation, and those dollars would be protected from inflation by being increased by the Consumer Price Index. Thus, by choosing to violate the stock restriction, the Physicians chose not to receive any additional increase in the value of the stock.
The district court further found that, in applying the redemption formula, the CHW directors applied it “flexibly” to fulfill the intent of the redemption provision. Therefore, the directors chose to increase the redemption price for the secondary offering of stock to $596 per share due to an increase in value caused by inflation. The court stated: “Similarly, for the doctors that were redeemed that had purchased from the corporation at a different time, for different months, the redemption price was set to equal the amount that they had paid.” As a result, the district court rejected the Physicians’ claim that the redemption price was a penalty and, therefore, unenforceable.
We agree for several reasons. First, the bylaw setting forth tire redemption price provided for the maximum price to be paid to a shareholder whose stock is redeemed by the corporation in certain circumstances. The method set out in the bylaw was established in 2000 and approved by the shareholders.
Second, as the district court observed, under this bylaw, CHW made the Physicians whole by reimbursing them for their purchase price increased to present value based on the Consumer Price Index. In addition, the Physicians were permitted to retain all the dividends they received over the years. The Physicians did not controvert that since 1997 CHW and its shareholders received approximately $3.9 million of distributions every year. As the district court concluded: “This is not even remotely close to a penalty.”
Third, Dr. Zepick’s suggestion that the penalty should be the equivalent of the current high market value of the stock is contrary to Kansas law. The determination of whether there is a penalty does not depend on speculating on the performance of investments. See, e.g., TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 253, 898 P.2d 1145 (1995) (“The reasonableness of a liquidated damages clause should be determined as of the time the contract was executed, not with the benefit of hindsight.”).
Fourth, Dr. Zepick is incorrect in his contention that the redemption price is a penalty because it does not provide an exception for “minor” or “de minimus” violations. As the Physicians admitted below, such an exception would not have helped them because they all sought to own and/or manage KMC, and it was undisputed that the minimum investment of any of the Physicians in KMC was $140,000. Also, the cases cited by Dr. Zepick in his appellate brief address entirely different situations and provide no assistance. See Evans v. Moseley, 84 Kan. 322, 114 Pac. 374 (1911) (cattle contract penalty); Heatwole v. Gorrell, 35 Kan. 692, 12 Pac. 135 (1886) (penalty for breaching agreement not to engage in hardware business for 5 years); 884 West End Ave. Corp. v. Pearlman, 201 App. Div. 12, 193 N.Y.S. 670, aff'd 234 N.Y. 589, 138 N.E. 458 (1922) (rent penalty). Plus, the bylaw provision specifically permits the CHW directors to make such interpretations as are necessary to carry out the intent of the provision. Therefore, if anyone had actually only committed a “minor” violation or inadvertent error, the directors had the power to allow that shareholder to quickly remedy the situation to avoid redemption.
Finally, contrary to Dr. Zepick’s argument, CHW was not required to pay the larger amount stated in the articles of incorpo ration, rather than the amount stated in the bylaws. Dr. Zepick bases this argument on K.S.A. 17-6401(b), which provides that the manner and price formula for redemptions “shall be stated in the articles of incorporation.” Dr. Zepick argues that the only price formula in CHW’s articles of incorporation provided for three times the original subscription price per share, and therefore he contends CHW should have paid him three times the subscription price for his stock that was “redeemed.”
What Dr. Zepick ignores is that the price he received was part of the contract between CHW and the Physicians as shareholders. See 12B Fletcher, § 5906.120, p. 406 (rev. ed. 2000) (“Shareholders may agree in advance to fix the fair value of their shares.”). This was not a typical case of stock redemption, it was a limitation on stock ownership which the Physicians, Dr. Zepick included, approved.
The district court correctly rejected the notion that the redemption price was a penalty. A bylaw provision that establishes a formula for the calculation of the price to be paid when a corporation reacquires stock from a shareholder is not a penalty even if the formula varies depending upon the circumstances of the reacquisition and is not based upon market value.
Affirmed.
Davis, J., not participating.
McAnany, J., assigned.
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In a letter dated July 14, 2008, to the Clerk of the Appellate Courts, respondent Leroy C. Rose, of Garden City, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2007 Kan. Ct. R. Annot. 330).
At the time the respondent surrendered his license, there were six cases pending and being investigated by the Disciplinary Administrator’s office. In one of the six cases, probable cause was found and a hearing ordered. In the six cases, there were numerous allegations of failure to appear in court, which allowed default judgments to be taken against clients, failure to properly communicate with clients, lack of candor toward the tribunal, engaging in conflicts of interest, failure to return unearned retainers, and failure to timely file responses to requests for information from the office of the Disciplinary Administrator.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Leroy C. Rose be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It is Further Ordered that the Clerk of the Appellate Courts strike the name of Leroy C. Rose from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2007 Kan. Ct. R. Annot. 337).
Dated this 24th day of July, 2008.
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The opinion of the court was delivered by
Luckert, J.:
Ruben Y. Warledo appeals from his convictions of arson and premeditated first-degree murder and his hard 50 life sentence for the murder conviction. Warledo raises a number of issues, including whether: (1) the trial court erred by admitting into evidence statements he made to authorities before he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966); (2) the trial court erred by admitting into evidence a video of Warledo, by himself, in the interrogation room because (a) Warledo made an unequivocal request for counsel which should have been subsequently honored by the interrogating officers and (b) the jury was allowed to hear his request for counsel in the context of a murder investigation; (3) the trial court erred by admitting evidence of Warledo’s prior crimes and civil wrongs in violation of K.S.A. 60-455; (4) the trial court abused its discretion by admitting gruesome photographs of the victim when the cause and method of death were not in dispute; (5) the prosecutor committed misconduct and deprived Warledo of a fair trial by misstating the law regarding premeditation during closing argument; (6) the trial court erred by imposing a hard 50 sentence in that the identical offense sentencing doctrine mandated a lesser penalty equal to that of intentional second-degree murder; (7) the trial court abused its discretion in weighing the aggravating and mitigating circumstances and concluding that a hard 50 sentence was warranted; (8) the hard 50 sentencing scheme is unconstitutional; and (9) cumulative errors denied Warledo a fair trial.
We reject Warledo’s arguments and affirm his convictions and hard 50 life sentence.
Facts
It is undisputed that Warledo killed his mother, Marcia Squirrel, by repeatedly stomping on her as she was lying on the floor of her kitchen. He then set fire to her body. The primary issue for the jury to determine was whether Warledo premeditated the murder.
During the attack, Squirrel was apparently able to dial 911 on a cellular phone. Emergency dispatch received the call but never spoke directly with anyone. The emergency dispatch operator recorded the call, which captured the yelling of a man — later identified as Warledo — in the background. Also, for the first couple of minutes during the attack, Squirrel could be heard moaning. Stomping, pounding sounds emanated intermittently as Warledo yelled and ranted his hatred toward Squirrel, calling himself “Satan” and his mother “sick” and a “nasty whore.” Sometimes Warledo would pause and then start stomping again. At one point after a pause, he said something to the effect, “ ‘You want to live? You want to live? You’re not gonna live. Die. Die. Die.’ ” Then, he stomped some more.
Warledo noticed that Squirrel was still moving, and he feared she would call the police. He knew he needed to get away, so he began emptying his closet and packing his clothes in his vehicle. Warledo then returned to the residence to “bum up the evidence.” He poured lighter fluid over Squirrel’s face and set her on fire.
While Warledo was committing the crimes, the dispatch operator was able to contact the cell phone provider, obtain a billing address for the telephone, and dispatch law enforcement officers to the address. When officers arrived they found Warledo standing outside, but he quickly went inside and slammed an interior door when the officers called his name. They then spotted Warledo running out an opposite door. Officers stopped Warledo, and he repeatedly told them to “check my mom.” After he was handcuffed, the officers noticed smoke coming out of the house. When the fire was extinguished, officers found Squirrel dead on the kitchen floor.
Officers put Warledo, who had been drinking heavily throughout the day, inside the B.A.T. (breath alcohol testing) van while they searched the house. On the way to the van, Warledo stated, “ T killed my mom. I killed my mom because I’m evil.’ ” Then, Warledo lowered his voice, stepped toward one of the officers, and said he “had to do it” to protect his family from the Bloods gang. After being placed in the van, Warledo began banging his head on the divider and yelling about spiders and snakes. Officers shackled him to keep him from further injuring himself.
Warledo was transported to an interrogation room at the Wichita Police Department. His feet were shackled and his hands were cuffed to die table. Warledo was then left alone in the room for 30 to 40 minutes. A video camera recorded the events inside the interrogation room, but the camera was not monitored during the recording process. Subsequent viewing of the video showed that, while alone, Warledo cried and muttered to himself. Towards the end of his wait, while still alone, Warledo loudly stated, “ 1 need to call a lawyer. Where’s my lawyer?’ ”
Approximately 5 minutes later, Investigator David Higday from the Kansas State Fire Marshal’s office, Detective Robert Chisholm, and another detective entered the interrogation room for the purpose of gathering and processing physical evidence from Warledo. They were unaware of Warledo’s solitary statements regarding an attorney. Before Detective Chisholm could fully conduct introductions or could even explain to Warledo why they were there, Warldo started making statements like, “ 1 admitted what I did. I’ll sign anything you want. I did it. I did it. I did it.’ ” Chisholm testified he told Warledo he did not want to talk to him about that right now. At one point Warledo asked Chisholm if his mother was dead, and the detective said, “Yes.” Although Chisholm could not remember Warledo’s specific response, the detective indicated his response was “very unemotional.” The second detective, a female, left the room when it was time for Warledo to change his clothes.
Over the course of approximately 30 minutes, Investigator Higday took photographs of Warledo, gathered his clothing and shoes, and swabbed his extremities for samples. While the fire investigator was collecting evidence, Warledo repeated that he would “sign anything” because “he did it.” Warledo also made statements about stomping on his mother and physically demonstrated the stomping motion with his feet. About 7 or 8 minutes into their time with Warledo, Higday wanted to ask him about the use of accelerants on the fire, so Warledo was verbally Mirandized. When asked, Warledo said he had used Kingsford lighter fluid.
After collecting the physical evidence, Chisholm and Higday left the interrogation room. Detective Chisholm then returned shortly thereafter to question Warledo about the events. First, the detective filled out a personal history sheet with Warledo. According to the detective, Warledo understood the questions and gave appropriate responses.
Upon completing Warledo’s personal histoiy, Detective Chisholm then Mirandized Warledo a second time by providing him with a written waiver, which Warledo read to the detective and signed. Warledo explained the chronology of what happened. He indicated he came home intoxicated and went in search of something to eat. Squirrel confronted him about his drinking and slapped him in the face. In response, Warledo struck his mother with enough force to knock her down. Warledo admitted he “flipped out” and started lacking and stomping his mother. He said he could not remember everything, but he remembered going outside to get the tighter fluid and bringing it back in the duplex. Warledo told detectives he did not remember setting the fire. But at another point Warledo said he tit the fire because “[t]hat’s what you do . . . [to] bum up the evidence.”
At trial, evidence was admitted regarding the cause of death. Forensic testing indicated that Squirrel was alive well into the attack, but her body was set on fire postmortem. The cause of death was blunt force trauma to the head and neck. Squirrel suffered approximately 7 blows to the face, 10 to the head, 1 to the neck, and 1 to the chest.
Based upon this evidence, a jury convicted Warledo of arson and premeditated first-degree murder. Before sentencing, the State presented a notice of intent to seek a hard 50 life sentence on the murder conviction by offering aggravating factors pursuant to K.S.A. 21-4636. Warledo objected to the constitutionality of the hard 50 statute on the basis that the sentencing court could not make a finding of aggravating circumstances under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
In addition, at the sentencing hearing, Warledo presented evidence that his mother had abused him, emotionally and physically. In addition, evidence established that Warledo suffered from depression, alcoholism, and drug abuse and had attempted suicide on several occasions, the most recent attempt occurring approximately 2 months before he killed his mother. After that attempt, Warledo was hospitalized in a psychiatric unit and was placed in alcohol and drug treatment for 6 weeks. As part of Warledo’s treatment, he was to take medication for depression. Nevertheless, he stopped taking the medication, along with his diabetes medication, several days before the murder.
As a result of his mental illness, lack of medication, and alcohol use, Dr. William Albott, a psychologist, opined that Warledo suffered from a mental disease or defect on the night of the attack, as shown by his “psychotic behavior.” In Dr. Albott’s opinion, when Warledo attacked his mother he was acting in a psychotic rage in reaction to his mother, whom he perceived as a threat. It was also Dr. Albott’s opinion that Warledo generally suffers from “major depression without manifest psychotic features.”
After hearing this evidence, the sentencing court recognized that some level of mental or emotional “disturbance” existed and that Warledo’s capacity to appreciate “the criminality of his conduct at the moment in time was substantially impaired.” Recognizing the existence of this mitigating factor, the court also found that there was an aggravating factor. Specifically, the court found it significant that there were continuous acts of violence — continual stomping— which began before the ldlling and continued afterward. Moreover, the body was desecrated by fire, which the court found indicated a particular depravity of mind. The court also found the infliction of mental anguish or physical abuse before the victim’s death. These factors, according to the sentencing court, supported the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Finding that the aggravating circumstance outweighed any mitigating circumstances, the court imposed the hard 50 sentence.
Warledo now appeals, raising the nine issues listed above. This court has jurisdiction over the appeal under K.S.A. 22-3601(b)(l) (life sentence; off-grid crime).
1. Miranda
First, Warledo contends the trial court erred by admitting into evidence his incriminating statements made to authorities in the interrogation room before he was verbally Mirandized. Warledo argues that the puipose behind Detective Chisholm’s and Investigator Higday’s presence in the room — the collection of physical evidence such as photographs, clothing, and swabs — was equivalent to police interrogation in that the authorities should have known their actions were likely to elicit an incriminating response from him. The specific statements with which Warledo takes issue are: “ 1 admitted what I did. I’ll sign anything you want. I did it. I did it. I did it.’ ”
The issue of whether the statements were admissible was first raised when, prior to trial, the State filed a Jackson v. Denno motion to determine the voluntariness of Warledo’s statements. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). At the hearing, the trial court found that the statements were admissible because Warledo voluntarily waived his rights under the Fifth Amendment to the United States Constitution, stating that “the oral Miranda [was] given, and before that’s given, he’s volunteering statements as to what he’s done.”
This ruling, and the procedure leading to it, frame our standard of review: When a trial court conducts a Jackson v. Denno hearing, determines a defendant’s statements were freely, voluntarily, and knowingly given, and admits the statements into evidence at the trial, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard and reviews the ultimate legal conclusion drawn from those facts de novo. In doing so, an appellate court does not reweigh evidence or assess the credibility of the witnesses but will give deference to the trial court’s findings of fact. State v. Harris, 279 Kan. 163, 167, 105 P.3d 1258 (2005).
We apply this standard to well-established rules regarding custodial interrogations and an accused’s constitutional rights. The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. Miranda, 384 U.S. at 479. The United States Supreme Court and this court have recognized that these rights are “ ‘sufficiently important to suspects in criminal investigations’ ” to require that a defendant subject to custodial interrogation be fully advised of his or her rights through the giving of the Miranda warnings so that any waiver of such rights be knowing and intelligent. State v. Henry, 273 Kan. 608, 613, 44 P.3d 466 (2002) (quoting Davis v. United States, 512 U.S. 452, 458, 129 L. Ed. 2d 362, 114 S. Ct. 2350 [1994]); see Edwards v. Arizona, 451 U.S. 477, 489, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981) (Powell, J., concurring). If a suspect knowingly and intelligently waives these rights, law enforcement officers are free to ask questions. North Carolina v. Butler, 441 U.S. 369, 372-73, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979).
The questions of voluntariness and waiver do not arise, however, if the essential requirements for triggering the Miranda safeguards are not present. Those essential requirements are that an accused must be (1) in custody and (2) subjected to interrogation. Miranda, 384 U.S. at 479. In this case, there is no dispute that Warledo was in custody. The issue is whether Warledo was subjected to interrogation before he was given the Miranda warnings.
The term “interrogation” under Miranda refers not only to express questioning but also its functional equivalent, which has been defined as “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980); see State v. Woolverton, 284 Kan. 59, 70-71, 159 P.3d 985 (2007) (.Miranda warnings required for all custodial interrogations). The test of whether the officers should know their words or actions are reasonably likely to elicit an incriminating response, so as to amount to the functional equivalent of interrogation, is an objective one. Even so, the officers’ intent is not necessarily irrelevant. Innis, 446 U.S. at 301-02 n.7; see also United States v. Cooper, 19 F.3d 1154, 1162 (7th Cir. 1994) (“Where an objective observer would believe that the encounter was reasonably likely to elicit an incriminating response from the defendant, the court will find that the encounter constituted the ‘functional equivalent’ of interrogation.”).
It follows from these rules that if a statement by an accused is made without interrogation or its functional equivalent, the statement may be admissible under the Innis rule or its progeny even if the Miranda warnings were not given. As a result, spontaneous, volunteered statements are admissible even when “ ‘ “made after the accused is arrested and in custody.” ’ [Citations omitted.]” State v. Lackey, 280 Kan. 190, 225, 120 P.3d 332 (2005), cert. denied 547 U.S. 1056 (2006), overruled in part on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007).
In the present case, the trial court found Warledo’s statements were made without interrogation and were spontaneous and volunteered. The video of Warledo’s time in the interrogation room supports this conclusion by showing Warledo blurting out the statements he seeks to suppress as soon as the fire investigator and detectives entered the room. His statements were made before Detective Chisholm told Warledo that they would be performing some “processing” and before any evidence was collected. As a result, we need not discuss his contention that the authorities’ collection of physical evidence from his person was the functional equivalent of an interrogation. Warledo voluntarily spoke before any evidence collection took place.
The trial court did not err by admitting Warledo’s statements into evidence.
2. Video
Next, Warledo contends that he was prejudiced and denied his due process rights because (a) the law enforcement officers questioned him despite his “request for counsel” and (b) the jury was allowed to hear his “invocation of his Fifth Amendment rights” in the context of a murder investigation. This claim is based upon Warledo’s statement made toward the end of his 30- to 40-minute wait alone in the interrogation room, “I need to call a lawyer. Where’s my lawyer?”
The trial court determined this statement was an unequivocal request for counsel but that no officers were aware of the statement. The record provides substantial competent evidence to support this conclusion because, according to the uncontroverted testimony, officers neither accompanied Warledo at the time of the statement nor monitored the video camera as this “event” unfolded. As a result, the trial court determined the interrogating officers could not be faulted for failing to honor Warledo’s request, meaning there was no basis to apply the exclusionary rule.
Miranda. The trial court’s analysis is correct. Invoking the Miranda right to counsel, which may occur at any time, “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). This rule has two aspects. First, the suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459. Second, the request must be for assistance with the custodial interrogation, not for subsequent hearings or proceedings. McNeil, 501 U.S. at 178.
The rule that the request must be one that a reasonable officer would understand implies that a law enforcement officer must be aware of the request. Here, there were no officers present in the room, so Warledo was not making a request to anyone who could grant it. The admission of such statements did not violate Warledo’s Miranda rights, since such rights were not properly invoked.
Doyle. In addition, Warledo argues it was improper to allow the jury to hear his request for counsel when it viewed the video. He argues this portion of the video should have been muted. To support his argument, he cites Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), in which the United States Supreme Court held a defendant’s invocation of his or her right to silence should not be used against the defendant at trial. 426 U.S. at 618. "The Doyle rule also applies when the State attempts to impeach a defendant’s credibility by arguing that the invocation of his or her right to counsel evidences guilt.” State v. Cosby, 285 Kan. 230, 245, 169 P.3d 1128 (2007); see also Doyle, 426 U.S. at 618; State v. Edwards, 264 Kan. 177, Syl. ¶ 8, 955 P.2d 1276 (1998). Under Doyle and its progeny, it has been made clear that the prosecution may not penalize a defendant for invoking Miranda rights during interrogation by using the invocation against him or her at trial. See Cosby, 285 Kan. at 245; People v. Lucero, 23 Cal. 4th 692, 713, 97 Cal. Rptr. 2d 871, 3 P.3d 248 (2000); Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. 1991) (evidence of accused invoking right to counsel may improperly be considered as inference of guilt).
Warledo asserts that by allowing the jury to hear his statements regarding counsel, the State sought to infer guilt. In asserting this argument, Warledo presents an argument that he did not raise before the trial court. At trial, Warledo merely raised the question of whether officers had ignored his assertion of his right to counsel; he did not object based upon Doyle. Generally, issues not raised before the trial court cannot be raised on appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007); State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). A recognized exception to that general rule applies when consideration of the newly asserted claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Moody, 282 Kan. 181, 192, 144 P.3d 612 (2006); State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353 (2003).
The exception does not apply in this case, however. Rather, the circumstances required an objection. Specifically, the record establishes that both counsel had viewed the video and had agreed to redact certain portions. The edited video was presented for admission into evidence, and defense counsel requested the video be shown to the jury.
In editing the video, counsel left in Warledo’s statement, “ 1 need to call a lawyer. Where’s my lawyer?’ ” As a result, under the circumstances of this case, a question arises whether a strategic decision was made to let the jury hear the statement. Such a decision may have been made because the segment arguably supports the defense that Warledo was incapable of forming intent or premeditating the murder. Warledo’s statement was made relatively soon after the murder and demonstrated that the momentarily coherent thought process that led to the realization that Warledo should have an attorney was quickly countered by his blurting out incriminating statements as soon as someone entered the interrogation room. This rapid change in behavior and irreconcilable demonstration of intent — asserting the right and then almost immediately giving up the right — evidenced the disorder of Warledo’s thought processes and, consequently, may have been something defense counsel wanted the jury to hear.
Moreover, we note that the State did not exploit the assertion of the right to counsel. It made no mention of the situation during arguments and did not ask the jury to consider the assertion as evidence of guilt.
As a result, we cannot say that it serves the ends of justice to consider the issue. Consequently, under the circumstances of this case, the failure to object bars our consideration of the Doyle issue.
3. KS.A. 60-455
Warledo next contends the trial court erred by admitting evidence in violation of K.S.A. 60-455.
The State filed a pretrial notice of intent to introduce evidence regarding the prior relationship of the parties. More specifically, three categories of evidence are at issue. First, the State sought to admit evidence establishing that 2 days before Squirrel’s death, she and Warledo had an argument which resulted in Squirrel’s calling 911. Law enforcement officers responded, and Squirrel felt it necessary to leave her residence for the night. The State submitted evidence of the police report of the incident and of Squirrel’s statement to officers that “she had problems with the defendant in the past.” The second category related to evidence of a protection from abuse order issued in 2000. Squirrel had filed the action against Warledo. Related to this order, the State sought to present evidence regarding some “surrounding battery cases.” Finally, the third category involved a neighbor’s testimony testified regarding a few occasions on which he had called officers when Warledo had been drinking because Warledo had been “violent” with other individuals.
At trial, the above evidence was admitted over defense counsel’s continuing objection based upon K.S.A. 60-455. Warledo also argued the evidence relating to the 2000 protection from abuse order was too remote in time to be probative and that the prejudicial effect outweighed any probative value. The trial court ruled that all the evidence was admissible to show the “relationship of the parties” and was “very probative and very relevant to prove both intent and premeditation.”
Before the admission of evidence of prior conduct, the trial judge gave the following admonition to the jury:
“Let me just instruct you, ladies and gentlemen, ordinarily evidence of other acts or crimes or things, other incidents that occurred are not admissible, particularly if they are shown or offered just to show that the person has a propensity to do the act in question, but on the other hand, they are admissible to show such things as the relationship between the parties, and I think . . . this evidence is going to be offered just for that.” (Emphasis added.)
Warledo did not request, nor did the trial court give, a limiting instruction at the close of the trial.
Our standard of review was defined in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Several steps of analysis were outlined. First, we consider relevancy. 282 Kan. at 47. Warledo does not argue that the evidence was irrelevant, and this portion of the analysis is not disputed.
The next question is whether any rule of evidence required the trial court to exclude the evidence:
“Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question. State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.” Gunby, 282 Kan. at 47-48.
On this issue, the rule in question is K.S.A. 60-455, which provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Under the plain language of this statute, application of K.S.A. 60-455 requires determination of whether the evidence relates to a prior crime or civil wrong and, if so, whether it is admitted solely to prove propensity or whether it is relevant to prove some material fact other than propensity. See Gunby, 282 Kan. at 48.
Regarding the requirement that the evidence relates to a prior crime or civil wrong, the State contends that the evidence relating to the 911 incident, the previous battery cases, the protection from abuse order, and the neighbor’s observations did not qualify as K.S.A. 60-455 evidence. According to the State, the trial court was free, therefore, to admit the evidence without a limiting instruction. To support this argument, the State cites State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006), a premeditated first-degree murder case.
In Anthony, we held K.S.A. 60-455 did not apply where the trial court admitted evidence of an eviction notice and a restraining order to show the deterioration in the relationship between the defendant and the victim. We stated that we did not “believe either the eviction or the restraining order qualify as evidence of other crimes or civil wrongs committed by Anthony.” 282 Kan. at 214. And although they were effected through civil court procedures, the “wrongs” giving rise to them, if any, were not the types of behavior that would demonstrate propensity to commit the crime at issue. Thus, no Hmiting instruction was necessary because K.S.A. 60-455 was inapplicable. 282 Kan. at 214.
As in Anthony, the existence of a restraining order or a protection from abuse order may not of itself fit the statutory qualifications. Unlike Anthony, however, the acts giving rise to the order were criminal acts. Additionally, the behaviors could be viewed by a jury as evidence which demonstrated a propensity to commit crimes of violence. Some of the evidence would indicate a propensity to be violent with his mother, other evidence would show a propensity toward violence when he was drunk. In the present case, unlike Anthony, the conduct which led to prior law enforcement contacts and which was testified to by the neighbor constituted crimes or civil wrongs.
This leaves the question of whether the evidence was probative of a material fact other than propensity. At the time of Warledo’s trial, evidence was admissible independent of K.S.A. 60-455 for the purpose of showing the relationship of the parties and did not require a limiting instruction. See, e.g., State v. Deal, 271 Kan. 483, 502, 23 P.3d 840 (2001); State v. Carr, 265 Kan. 608, 624, 963 P.2d 421 (1998). In Gunby, 282 Kan. at 57, this court explicitly abolished this exception, holding that the admission of all evidence of other crimes and civil wrongs must be analyzed under K.S.A. 60-455. Hence, to the extent the trial court reasoned the evidence of the 911 incident, the previous battery cases, and the protection from abuse order were admissible to show the relationship between Warledo and his mother, such rationale was improper.
The trial court cited alternative bases for admission of the evidence, stating it was “very probative and very relevant to prove both intent and premeditation.” We need not analyze the appropriateness of these alternative bases, however, because the instruction to the jury was limited to the relationship of the parties. In Gunby, we reiterated that the hmiting instruction is given as a safeguard against the jury improperly considering the evidence for a reason not permitted, particularly to establish propensity. 282 Kan. at 48. Additionally, in Gunby, we determined that the failure to instruct on the basis of the evidence’s admission would be deemed error, although not necessarily reversible error. 282 Kan. at 57.
We must, therefore, consider whether the error was harmless. The harmless error rule is stated in K.S.A. 60-261:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
See State v. Wooherton, 284 Kan. 59, 65-66, 159 P.3d 985 (2007).
Applying this rule to the erroneous admission of K.S.A. 60-455 evidence in State v. Hebert, 277 Kan. 61, 94, 82 P.3d 470 (2004), this court addressed whether the admission of the evidence (1) was inconsistent with substantial justice; (2) affected the substantial rights of the defendant; and (3) had any likelihood of changing the results at trial. See State v. Gonzalez, 282 Kan. 73, 99-100, 145 P.3d 18 (2006).
In this case, none of these considerations applies. The jury heard the 911 recording on which Warledo was stomping his mother to death. It heard his confessions on the law enforcement interrogation video. Warledo’s version of events and eagerness to tell officers what he had done was corroborated by several witnesses. In other words, the weight of the evidence that Warledo committed the crimes is overwhelming. In addition, the argument that the jury might infer a propensity to commit criminal acts from the evidence of die other crimes and civil wrongs is particularly weak considering that Warledo at trial did not argue he had not committed the murder. See Gonzalez, 282 Kan. at 100.
The issue which was disputed was whether Warledo possessed the requisite intent to justify a conviction for first-degree murder. The impact of the prior crimes evidence on this issue was not such as would affect substantial rights. Keeping in mind that K.S.A. 60-455 is aimed at excluding evidence that is aimed only at propensity, any propensity which would be indicated from the prior crimes evidence would suggest that, consistent with Dr. Albott’s opinion, Warledo acted in response to the threat he perceived was posed by his mother.
Moreover, the evidence of intent and premeditation was strong. The audio recording of the 911 call revealed breaks in the stomping after which Warledo would resume his battering of his mother. He repeatedly indicated that she was not going to live. At one point, Warledo yelled, “ ‘Die, die, die,’ ” and then began stomping again.
We, therefore, conclude that because Warledo’s conviction did not turn on whether he committed the prior acts and because of the overwhelming evidence of his guilt, die admission of evidence regarding prior crimes or civil wrongs was not inconsistent with substantial justice, did not affect Warledo’s substantial rights, and had no likelihood of changing the results at trial. The erroneous admission of K.S.A. 60-455 evidence was harmless.
4. Photographs
Next, Warledo claims the trial court erred when it admitted certain photographs of the victim over defense counsel’s objection. Seven photographs depicted the victim at the scene of the murder, and one photograph was a closeup of the victim’s face during the autopsy.
The photographs at the scene showed the victim lying on the kitchen floor, beaten and bloody, with her face, chest, and left arm charred. They also depicted blood spatter in the surrounding area and on objects in the room. These seven photographs were admitted during the State’s direct examination of Officer Brandon Gourley and Investigator Higday and were used by those two witnesses to describe the scene as they found it on the night of the murder. The State’s questions focused on the scene surrounding the body, such as the blood spatter, the layout of the kitchen and the house, and the location of the BIC lighter found on the floor.
The one autopsy photograph was admitted during the State’s direct examination of the forensic pathologist. It depicted a closeup profile view of the victim’s face and showed the markings consistent with the sole of a shoe. These markings served as one basis for the expert’s opinion that the cause of death was blunt force trauma to the victim’s head and neck.
In reviewing Warledo’s arguments, we apply an abuse of discretion standard. State v. Bryant, 285 Kan. 970, Syl. ¶ 7, 179 P.3d 1122 (2008) (admission of photographs in homicide case is within trial court’s discretion); State v. Torres, 280 Kan. 309, 327, 121 P.3d 429 (2005) (same). To determine whether the trial court abused its discretion in admitting the photographs, two questions must be resolved: (1) Were the photographs relevant, and (2) if the photographs were relevant, did the prejudicial nature of the photographs substantially outweigh their probative value? State v. Miller, 284 Kan. 682, 696, 163 P.3d 267 (2007); see State v. Sappington, 285 Kan. 176, 194, 169 P.3d 1107 (2007); State v. Kirby, 272 Kan. 1170, 1186-88, 39 P.3d 1 (2002); State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842 (1987) (photographs and videotape of homicide victims had “reasonable tendency to prove or disprove a material fact in issue, or shed light upon a material fact”).
Regarding relevance, this court has reiterated that “ ‘ “[pjhotographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case.” ’ ” State v. Adams, 280 Kan. 494, 510, 124 P.3d 19 (2005) (quoting State v. Green, 274 Kan. 145, 147, 48 P.3d 1276 [2002]). In addition, despite their sometimes gruesome nature, “ "photographs which aid a pathologist in explaining the cause of death are admissible.’ [Citation omitted.]” State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 (2004). Nevertheless, this court has also held that the admission of such photographs is error when the photographs do not help explain or supplement testimony, but rather serve to “inflame the minds of the members of the jury.” State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975).
Here, Warledo contends the cause and means of death were not contested at trial and, therefore, the pictures were not necessary. While we recognize the cause and means of death were not at issue in this case, still, the photographs were relevant. The photographs gave the jury an understanding of the size of the living space in which the events transpired, gave context to the diagram and descriptions of the layout presented in court, and showed the position of the victim. See State v. Bell, 273 Kan. 49, 53, 41 P.3d 783 (2002) (Photographs used to prove manner of death and violent nature of crime are relevant and admissible.); Deal, 271 Kan. at 493 (Photographs which are relevant and material in assisting juiy’s understanding of medical testimony are admissible, including photographs which aid pathologist in explaining cause of death.). More importantly, the blood spatter helped illustrate the violence with which Warledo acted, a fact that weighed in the determination that he acted with an intent to kill. We siso note that the State has the burden to prove all the elements of the crime charged and “photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible” even if the cause of death is not contested. Sappington, 285 Kan. at 195 (citing State v. Gholston, 272 Kan. 601, 613, 35 P.3d 868 [2001], cert. denied 536 U.S. 963 [2002]).
After examining the photographs, we also see no abuse of discretion in the trial court’s weighing of the photographs’ probative value and potential for undue prejudice. It is true that “[g]ruesome crimes result in gruesome photographs.” Green, 274 Kan. at 148. But, there is no showing that the photographs distorted the reality. Nor is there any showing that the photographs were admitted for the sole purpose of inflaming the passion of the jurors. See State v. Carter, 284 Kan. 312, 329-30, 160 P.3d 457 (2007); State v. James, 279 Kan. 354, 357-58, 109 P.3d 1171 (2005). Finally, the photographs are not too. repetitious or cumulative because they show the victim and the scene at various angles and, while present in the photographs, the victim is not always the focus.
5. Closing Argument
Warledo also claims that the prosecutor committed reversible misconduct during closing argument by misstating the law regarding premeditation. He cites as improper the following comments by the prosecutor:
“Premeditation, ladies and gentlemen, is the opportunity to reflect on what he’s doing. It’s every opportunity that he had in this case to think about what he’s doing as he’s dropping his foot down on his mother’s head numerous times. Doesn’t mean to be present even before the fight started.
“Premeditation doesn’t need to be present before that flght started when he went over to make his sandwich. It doesn’t need to be planned beforehand, and you can look at his conduct, what is his conduct all the way up after, what he’s doing after the murder took place. Threats and statements before and during the occurrence can be considered and lethal blows after the victim is rendered helpless in this case.
“Premeditation can be formed between the first and second stomps, between the second and third stomps, at any point during the stomping (attorney stomping). Okay. The stomping, what is his desire? To kill his mother. Ultimately it boils down to what’s going on in the defendant’s brain when he’s stomping his mother to death. 15 stomps.”
And on rebuttal, the prosecutor stated:
“What we’re saying is as he stomped, as he knocked her down, he had time to think. As he lacked her in the head, he had time to think. As he stomped on her, he had time to think. Again, time to think and again, time to think and if that’s not enough, ladies and gentlemen, you hear him on the tape walk away and then come back (attorney stomping) in between saying things. Again he stomped. He came back and then stomped again. Do you think he had time enough to think?”
Warledo did not object at any time to the prosecutor’s statements during closing argument. But when a defendant’s claim for prosecutorial misconduct implicates his or her right to a fair trial, we review the alleged misconduct under the same analysis, regardless of whether an objection was made. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006).
When evaluating a prosecutorial misconduct claim, the appellate court first asks whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. State v. Cosby, 285 Kan. 230, 246, 169 P.3d 1128 (2007); State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). A prosecutor “is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. [Citation omitted.]” State v. Scott, 271 Kan. 103, 114, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. Swinney, 280 Kan. at 779. In its plain error analysis, the appellate court considers three factors:
“(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually control ling. Moreover, the third factor may not override the first two factors, unless the harmless error tests ofbothK.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman [v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial)], have been met. [Citations omitted.]” Swinney, 280 Kan. at 780.
When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole. Miller, 284 Kan. at 716.
Warledo contends that the prosecutor misstated the law when he told the jury that premeditation is an opportunity to reflect on one’s actions and that premeditation need not be present before the killing begins. Further, the prosecutor said that premeditation can occur during the murder, which Warledo argues is merely another way of inappropriately stating that premeditation can occur “instantaneously.”
We have on several occasions disapproved arguments that suggested that premeditation can be instantaneous. See State v. Morton, 277 Kan. 575, 583-85, 86 P.3d 535 (2004) (prosecutor gestured as though firing a gun, stating: “That can be premeditation under the laws of the State of Kansas. One squeeze of a trigger is all it takes”; reversible misconduct); State v. Doyle, 272 Kan. 1157, 1163, 38 P.3d 350 (2002) (error for prosecutor to say: “something can be premeditated as soon as it happens”). Rather than be instantaneous, there must be some thought beforehand. PIK Crim. 3d 56.04(b). There is, however, no specific length of time defined for premeditation. See Morton, 277 Kan. at 584.
The prosecutor’s comments in this case are somewhat reminiscent of those in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), a case involving the death of the victim by prolonged strangulation. In Gunby, several of the prosecutor’s statements were troubling:
“(1) ‘[P]remeditation can occur after the chain of events,’ (2) ‘[A]t some point after he started hitting and strangling her . . . [the defendant] made the conscious decision, “I want to kill you” . . . [and] that’s when he premeditate[d],’ (3) A defendant ‘cannot intentionally strangle somebody to death without there being premeditation,’ and (4) It is ‘impossible to intentionally strangle somebody to death without knowing, thinking and wanting that person to die [and] that is all that is required for premeditation . . . that is the premeditation.’ ” 282 Kan. at 64.
This court observed that the prosecutor’s comments defined premeditation somewhere “between the level of forethought outlined in the PIK instruction we have endorsed, [citation omitted], and the Instantaneous’ timing we have disapproved. [Citations omitted.]” 282 Kan. at 64. We discussed Scott, 271 Kan. at 108, where it was stated that premeditation is “the process of thinking about a proposed killing before engaging in the homicidal conduct,” but premeditation “does not have to be present before a fight, quarrel, or struggle begins.” Further, premeditation is “the time of reflection or deliberation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand.” Gunby, 282 Kan. at 64 (citing Scott, 271 Kan. at 108-09).
Also, the Gunby court noted that in State v. Jones, 279 Kan. 395, 404, 109 P.3d 1158 (2005), where the victim was manually strangled, this court reaffirmed Scott’s holding that a jury can find a defendant’s state of mind changed from mere intent to premeditation at any time during the violent episode that ultimately caused the victim’s death, including at any time during a strangulation. Gunby, 282 Kan. at 65; see State v. Moncla, 262 Kan. 58, 73, 936 P.2d 727 (1997) (18 hammer strikes to the head sufficient to show premeditation and deliberation); State v. Phillips, 252 Kan. 937, 939-40, 850 P.2d 877 (1993) (continual stomping and lacking resulting in death sufficient to support premeditation); State v. Brown, 234 Kan. 969, 972-73, 676 P.2d 757 (1984) (struggle, beating, and prolonged strangulation sufficient to show premeditation).
Reflecting on those cases, Gunby found the prosecutor’s statements were “barely outside” the broad latitude permitted in discussing the evidence, but this court found any error was harmless. Based on the facts in Gunby, the prosecution’s comments were not gross and flagrant, and the evidence against the defendant was direct and overwhelming. In addition, when the jury sought further guidance on premeditation from the judge during deliberations, he properly directed them back to the PIK instruction. Consequently, this court concluded both the harmlessness tests of K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967), were met. Gunby, 282 Kan. at 65; see Tosh, 278 Kan. at 97-98.
More recently, this court has stated a prosecutor may properly point out that the number and order of blows could have given the defendant “an opportunity to think about what he or she was doing” and that “infliction of additional blows after the first blows” which rendered the victim helpless could evidence premeditation. State v. Anthony, 282 Kan. 201, 209, 145 P.3d 1 (2006). Such comments are consistent with the PIK instruction and Kansas precedent. See, e.g., State v. Pabst, 273 Kan. 658, 661, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002) (No error for prosecutor to say premeditation “means to have thought the matter over beforehand. It’s the conscious act of a person.”).
The prosecutor’s statements in this case are more along the lines of arguments we approved in Anthony and other cases and, under the circumstances of this case, were consistent with the evidence. In context, the closing argument informed the jury that Warledo need not have developed a plan or scheme before the fight started. But, once the fight had started, he could have formed an intent and developed a plan to commit murder. The audio recording provides evidence that this is what occurred. There were 19 blows delivered as Warledo yelled his intent that his mother would die. In fact, the audio recording suggests breaks in the stomping, which were of sufficient duration to have allowed Warledo to think about his action before engaging in homicidal conduct.
Even if we view the prosecutor’s comments outside of this context and consider them, like the comments in Gunby, to fall just outside the broad latitude permitted in discussing the evidence, any error was harmless. Based on the facts, the comments were not gross and flagrant; there appears to be no ill will on the part of the prosecutor. Moreover, the evidence against Warledo was direct and overwhelming. As in Gunby, both the harmlessness tests of K.S.A. 60-261 and Chapman, 386 U.S. 18, are met, and no reversible prosecutorial misconduct occurred under the facts in this case.
6. Identical Offense Sentencing Doctrine
Warledo next argues that despite his conviction for premeditated first-degree murder, the identical offense sentencing doctrine mandates that he receive a lesser sentence commensurate to an intentional second-degree murder conviction. He contends that if the prosecutor s closing comments are held to be “correct statements of law,” then there is no “appreciable difference” between the two types of murder; therefore, only the lesser penalty should apply.
It is well established that offenses are identical when they have the same elements. State v. Cooper, 285 Kan. 964, 966, 179 P.3d 439 (2008); State v. Fanning, 281 Kan. 1176, 1180, 135 P.3d 1067 (2006). In order to determine whether the elements are identical for sentencing purposes, an appellate court must consider the statutory elements and that review is unlimited. Cooper, 285 Kan. at 966.
Comparing premeditated first-degree murder and intentional second-degree murder leads to the conclusion these crimes are clearly not identical. Premeditated first-degree murder is defined under K.S.A. 21-3401(a) as “the lulling of a human being committed . . . [ijntentionally and with premeditation.” The difference between premeditated first-degree murder and intentional second-degree murder is that premeditated first-degree murder includes the element of premeditation. K.S.A. 21-3401(a); K.S.A. 21-3402(a). We also note that second-degree intentional murder is a lesser included offense of premeditated first-degree murder because all the elements of second-degree murder are identical to some of the elements of first-degree murder. K.S.A. 21-3107(2)(b).
Warledo’s argument regarding the identical offense sentencing doctrine has no merit.
7. Weighing Factors for Hard SO Sentence
Warledo next challenges the trial court’s finding under K.S.A. 21-4636(f) that the murder was committed in an especially heinous, atrocious, or cruel manner. Although he presents this issue as a sufficiency of the evidence question, Warledo does not actually dispute the sentencing court’s findings regarding the aggravating circumstance. Instead, he argues that the sentencing court should have given more weight to the mitigating circumstances presented by the defense.
Our standard of review on the sentencing court’s weighing of aggravating and mitigating circumstances is abuse of discretion. State v. Lawrence, 281 Kan. 1081, Syl. ¶ 3, 135 P.3d 1211 (2006); State v. Robertson, 279 Kan. 291, 308, 109 P.3d 1174 (2005).
As in the present case, when a defendant is convicted of premeditated first-degree murder, Kansas law provides that the sentencing court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 50 years without eligibility for parole. K.S.A. 21-4635(b); K.S.A. 21-4638. The court is required to make the hard 50 determination after considering evidence of aggravating and mitigating circumstances. K.S.A. 21-4635(c). If the sentencing court finds that one or more of the aggravating circumstances enumerated in K.S.A. 21-4636 exist and that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances, the defendant shall receive the hard 50 sentence. K.S.A. 21-4635(d).
Here, the sentencing court found that one aggravating circumstance existed — the defendant committed the crime in an especially heinous, atrocious, or cruel manner. K.S.A. 21-4636(f). As a basis for the aggravating circumstance, the court found (1) there was infliction of mental anguish or physical abuse before the victim’s death, (2) there were continuous acts of violence before and continuing after the killing, and (3) there was the desecration of the victim’s body in a manner indicating a particular depravity of mind. K.S.A. 21-4636(f)(3), (5) and (6). Again, Warledo does not raise any arguments disputing these findings.
At sentencing, Warledo asserted two statutory mitigating circumstances. First, he argued that he was under the influence of extreme mental and emotional disturbances at the time of the incident. K.S.A. 21-4637(b). Second, Warledo contended his capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law was substantially impaired because of his mental condition at the time of the incident. K.S.A. 21-4637(f). Warledo essentially contends that his claimed mental defect outweighed any other factors.
The sentencing judge found that the mitigating circumstances alleged by Warledo existed, but he also found that the State proved the existence of the aggravating circumstance. The judge described his weighing of the aggravating and mitigating circumstances:
“[I]t is recognized . . . that one aggravating circumstance^ could be so compelling as to outweigh several mitigating circumstances and vice versa.
“In this case, I have no question that there [were] some mitigating circumstances. I think there was mental or emotional disturbance that existed. To say that they were extreme, I’m not certain I have the capacity to measure other than to recognize that they exist.
“It is a mitigating factor that the capacity of the defendant to appreciate the criminality of his conduct at the moment in time was substantially impaired. And then weighed against that are the actual facts of the crime. It admittedly, even [defense counsel] has acknowledged, it was a very brutal case. No question, the body was set on fire. There is no question about that.
“Based on my weighing of these facts and circumstances, and the criteria of the statute, I do find that the defendant committed the crime in an especially heinous, atrocious or cruel manner by the infliction of mental anguish or physical abuse before the victim’s death [and] by the continuous acts of violence begun before or continuing after the killing, that being the continual stomping.
“And certainly the desecration of the victim’s body in a manner indicating a particular depravity of mind, either during or following the killing.
“And I find that these aggravating circumstances are not outweighed by the mitigating circumstances, and accordingly the court will impose the fife sentence with the Hard 50 requirement.”
Warledo argues that the sentencing court failed to carefully consider the mitigating evidence and, instead, improperly chose only to focus on the evidence supporting the aggravating circumstance. But the sentencing court’s comments clearly show that the court did properly consider and weigh the defendant’s mitigators. The court simply found that the State’s aggravating circumstance outweighed the defendant’s mitigating circumstances.
It is well established that “ ‘[wjeighing aggravating and mitigating circumstances is not a numbers game. “One aggravating circumstance can be so compelling as to outweigh several mitigating circumstances” ’ and vice versa.” State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005). Warledo has failed to establish an abuse of discretion.
8. Constitutionality
Warledo contends that the hard 50 sentencing scheme is unconstitutional because it permits the sentencing court to find facts that enhance the available sentencing range, utilizing a preponderance of the evidence standard, in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999).
This court found the predecessor statute, the hard 40 sentencing scheme, constitutional in State v. Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). We have consistently rejected similar arguments regarding the hard 50 scheme and have declined to overrule Conley. See, e.g., Lawrence, 281 Kan. at 1096; State v. Buehler-May, 279 Kan. 371, 386, 110 P.3d 425, cert. denied 546 U.S. 980 (2005); State v. James, 279 Kan. 354, 358, 109 P.3d 1171 (2005); Robertson, 279 Kan. at 308; State v. Hurt, 278 Kan. 676, 686-88, 101 P.3d 1249 (2004).
We have not altered this view even as the United States Supreme Court has decided cases subsequent to Apprendi relating to the question of judicial fact finding during the sentencing phase. Regarding these cases, in State v. Johnson, 284 Kan. 18, 159 P.3d 161, cert. denied 552 U.S. 161 (2007), we observed that the Supreme Court continues to invalidate judicial preponderance of the evidence fact-finding that exposes a defendant to a sentence in excess of the statutory maximum as being a violation of a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the United States Constitution. 284 Kan. at 22-23 (citing Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 [2007]). Yet, the Court has not altered decisions in which it recognized that the prohibition does not apply when considering the minimum sentence to be imposed. See McMillan v. Pennsylvania, 477 U.S. 79, 83-86, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (court may find, by preponderance of evidence, a fact that increases minimum penalty for a crime); see also Harris v. United States, 536 U.S. 545, 558, 153 L. Ed. 2d 524, 122 S. Ct. 2406 (2002) (“Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.”).
In determining whether to impose a hard 50 sentence, the sentencing court is considering the minimum sentence, not the maximum. The maximum sentence for first-degree murder is Ufe in prison. See K.S.A. 21-4638; K.S.A. 21-4706(c). The hard 50 sentence enhances the minimum sentence which must be served and does not expose a defendant to a higher maximum sentence than provided by statute. Under current law, our hard 50 sentencing scheme is constitutional. Johnson, 284 Kan. at 23.
9. Cumulative Error
Finally, Warledo claims that even if the errors he alleges on appeal do not individually require this court to reverse his conviction, the cumulation of the alleged errors denied him a fair trial. “Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction.” State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006).
The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against the defendant. State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007); Ackward, 281 Kan. at 29.
We are satisfied that Warledo received a fundamentally fair trial.
Affirmed.
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The opinion of the court was delivered by
Nuss, J.:
Margaret R. Puls appeals the trial court denial of her pro se motion for participation in her will contest trial by telephone. The court then conducted the trial in her absence and admitted the will to probate. Puls seeks reversal, remand, and telephonic participation in the retrial. Our jurisdiction arises from K.S.A. 20-3018(c) (a transfer from the Court of Appeals on this court’s own motion).
The parties raise several issues on appeal, which we recast and answer as follows:
1. Did the trial court err in denying Puls’ participation in the trial by telephone under the authority of Supreme Court Rule 145 (2005 Kan. Ct. R. Annot. 214)? No.
2. Did the trial court abuse it discretion in denying Puls’ participation in the trial by telephone? Not necessary to address.
Accordingly, we affirm the trial court.
FACTS
On August 26, 1993, Esther R. Broderick executed her will, bequeathing her stocks and bonds to her three nephews, Geary E. Ludwig, Jr., Dale W. Ludwig, and Gene R. Ludwig. The residuary of her estate was bequeathed to those same three nephews and two nieces, one of whom is Margaret R. Puls of Denver, the appellant. Geary was designated as executor, Dale as the successor executor, and if necessary, then Gene.
Prior to Broderick’s death on June 27, 2004, Geary had died and Dale had become disabled. Gene Ludwig then filed a petition for the admission of Broderick’s will to probate and requested that he be named executor of her estate. Ludwig’s petition alleged Broderick was of sound mind and not under any restraint when she executed her will. A hearing on the petition was scheduled for August 4, 2004.
The day before the hearing, Puls filed a pro se motion requesting an additional 30 days to file written defenses. She opposed the probate of the will on grounds that it was not duly executed, that Broderick was mentally incompetent at the time she executed it, and that Broderick was under the undue influence of a beneficiary.
The trial court ruled that Puls’ pleading constituted a written defense contesting the admission of Broderick’s will to probate and continued the hearing to September 20, 2004. The court also appointed Ludwig as special administrator until the hearing.
On September 20, Puls appeared for the hearing by telephone. Ludwig’s counsel argued that Broderick’s will, which was filed with the petition, established a prima facie case to prove capacity and due execution because it met all of the statutory requirements of a self-proving will. The court so found and further found that the burden shifted to Puls to prove the will should not be admitted to probate.
Puls wanted to examine the attesting witnesses, stating that she had prepared a fist of questions for them. The court advised that the attesting witnesses were not present because a self-proving will could be admitted into evidence without them; upon the will’s admission, no further evidence was needed to prove capacity or the lack of undue influence.
Puls then presented her evidence and arguments to contest Broderick’s will. She stated the last time she saw Broderick was in June 1975, when Broderick visited her in Colorado. However, Puls stated she occasionally spoke with staff at Medicalodge, the nursing home in which Broderick resided, to check on Broderick’s condition.
The trial court held that the fact Broderick was in a nursing home, coupled with the statements Puls made in her motion, constituted insufficient evidence to overcome Broderick’s self-proving will. It admitted Broderick’s will to probate and appointed Ludwig as executor.
On Puls’ appeal, the Court of Appeals reversed. It ruled that because the trial court found that Puls filed a written defense to the admission of Broderick’s will, Ludwig had the burden of proof to make a prima facie case showing capacity and due execution of that will. It remanded with directions to allow the parties to proceed with the will contest following a reasonable period of time for discovery. In re Estate of Broderick, 34 Kan. App. 2d 695, 125 P.3d 564 (2005).
On remand, trial on the admission of the will to probate was set for 1:30 p.m. on July 5, 2006.
On June 23, 2006, 12 days before trial, Puls faxed to the clerk of the court her pro se “Motion for Order Allowing Appearance by Telephone” and a proposed order. In the motion, Puls alleged:
(1) she had chronic medical conditions preventing her from flying or driving and she has no driver’s license;
(2) a lower back disorder makes long trips difficult for her, and there was no commercial public bus or passenger train service to Leavenworth;
(3) because of her medical problems, she has not traveled outside the seven-county, Denver, Colorado, metropolitan area for many years;
(4) she had been allowed to appear by telephone at the hearing on September 20, 2004;
(5) she had prepared questions for any witnesses that the Special Administrator might call; and
(6) she had subpoenaed a witness whose testimony “will provide significant and relevant information regarding certain Medicalodge nursing home records of the Decedent.”
Puls sent the fax from Morrell Printing Solutions of Lafayette, Colorado. She mailed, instead of faxed, a copy of the motion to Ludwig’s counsel.
Later that same day, the trial court judge handwrote the date, his initials, and “denied” on the proposed order.
Ludwig’s counsel did not file his objection to Puls’ motion until June 27, probably because his copy had been mailed, and not faxed, to him. He argued that Kansas Supreme Court Rule 145 provided that a trial court may use a telephone conference call to conduct any hearing or conference except for a trial on the merits. He emphasized that the hearing would clearly be on the merits: to resolve the will contest and determine whether Broderick had capacity on the date she executed the will. Counsel also observed that for the September 20, 2004, hearing, unlike now, Ludwig’s then counsel had consented to her telephone participation. He mailed a copy of his objection to Puls that day.
On July 3, 2006, 2 days before the trial, Puls faxed to the office of the district court clerk her pro se “Verified Motion to Allow Appearance by Telephone.” The fax was sent from an Office Depot store in Boulder, Colorado. In her motion, Puls acknowledged that on June 30, she had received both Ludwig’s objection and the trial court’s denial of her first motion to appear by telephone.
In Puls’ six-page motion, she argued that the court’s denial of her motion to appear by telephone was disability-based discrimination prohibited by the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (2006) (ADA). She further argued the ADA “prevailed” over Supreme Court Rule 145. In support of her ADA argument, Puls also alleged:
“6. Claimant is a sixty-five-year-old disabled individual who qualifies for protection under ADA for the following reasons:
a. Claimant has been advised by her ear doctor since 1989 that she should not fly, as changes in air pressure may aggravate her chronic ear and related conditions.
b. Claimant has not driven a motor vehicle since 1976 because she has an irregular heartbeat which has caused her to faint without warning. Claimant does not have a pacemaker, nor does she have a driver’s license.
c. Claimant has suffered two dislocations of her lower back and is unable to sit comfortably for long periods of time. In addition, there is no commercial public bus or passenger train service to Leavenworth, Kansas, at this time.
d. Because of her medical problems, Claimant has not traveled outside the seven-county Denver, Colorado, metropolitan area since the early 1990’s.”
Puls further argued that she was previously allowed to appear by telephone at the September 20,2004, hearing (admittedly with the consent of Ludwig’s counsel), and that no new equipment or arrangements would be required. She also contended that “no difficulties associated with use of the speaker telephone were noted in the transcript of the [September 20] trial.” Puls finally alleged: “As demonstrated above, there is no other way Claimant, who is appearing pro se, will be able to appear.”
At the July 5 trial, the trial court first acknowledged that Puls’ previous counsel — who had been allowed to withdraw at Puls’ request 2 weeks earlier after winning the appeal — had verified to the court that Puls knew the hearing was a trial on the merits of the petition to admit the will to probate. It confirmed that it had denied her first motion to appear by telephone. The court noted that on July 3, when Puls fax-filed her second motion, the court clerk’s office had been closed by order of the Supreme Court, i.e., a holiday. Because July 4 was a national holiday, the court stated that it had not seen the motion until the morning of July 5, the day of trial.
The court then initiated a telephone call to Puls for possible argument on her motion. It reached an answering machine and left a message. It was successful in its second attempt a few minutes later. Puls argued she was disabled and the ADA applied. Ludwig restated his objection pursuant to Supreme Court Rule 145. The court held the ADA did not apply because Puls was requesting to be allowed to appear by telephone, contrary to Rule 145, rather than requesting assistance in appearing in court. The court sur mised the rule did not allow appearance by telephone for a trial on the merits because “there are difficulties in trying to examine witnesses and to judge certain aspects of their testimony when they’re appearing on telephones and also verifying who is on the other end.” The court ruled that Rule 145 was specific and controlling and therefore denied Puls’ request.
Puls requested that her witness, Caroline Mathia, be allowed to testify and present evidence in her absence. The court noted Mathia would have to be called as a witness for her testimony to be considered and informed Puls that it could not act as her attorney and call witnesses on her behalf. The transcript suggests that after the court thanked Puls, the telephone connection was then terminated.
Ludwig’s counsel presented his evidence through four witnesses and offered “the will formally to the probate.” The court responded, “in an abundance of caution” and as “somewhat of an accommodation to Ms. Puls and the Court,” asking Ludwig’s counsel to call and examine Puls’ witness, Mathia. Counsel obliged. Mathia testified she was the administrator for Medicalodge, and that she did not know Broderick but had reviewed Broderick’s medical records. Mathia stated she did not have an opinion regarding Broderick’s mental capacity.
After noting Ludwig had presented evidence regarding Broderick’s capacity, the court concluded he had sustained the burden of proof and admitted the will to probate. Other facts will be added as necessary to the analysis.
ANALYSIS
Standard of Review
The parties agree that the interpretation of a statute, the ADA, is a question of law over which this court has unlimited review. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
Issue 1: The trial court did not err in denying Puls’ participation in the trial by telephone under the authority of Supreme Court Rule 145.
Puls argues the trial court erred in denying her right, as a qualified individual with a disability under the ADA, to participate in the trial by telephone. Ludwig initially responds by arguing that numerous legitimate policy considerations underlie Supreme Court Rule 145, the trial court’s stated reason for the denial. He further argues that if, as Puls contends, the ADA nevertheless preempts the State rule, then she has failed to prove she meets the conditions warranting protection by the ADA. Each argument will be addressed in turn.
Rule 145
At the time the trial court denied Puls’ motion, Supreme Court Rule 145 stated: “In a civil case, the court, in its discretion, may use a telephone conference call to conduct any hearing or conference, other than a trial on the merits.” (Emphasis added.) 2005 Kan. Ct. R. Annot. 214. Our rule is consistent with K.S.A. 60-243(a), which requires trial testimony to be given orally in open court: “In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by this article. . . . The competency of a witness to testify shall be determined in like manner.”
As noted by the trial court, Rule 145 clearly prohibits participating in a trial on the merits by telephone. This rule has not been cited or interpreted by the Kansas appellate courts. However, it can be inferred the rule’s purpose is to protect the integrity of the judicial process. For example, the trial court found that “there are difficulties in tiying to examine witnesses and to judge certain aspects of their testimony when they’re appearing on telephones and also verifying who is on the other end.” Ludwig points out that one of the functions of the court as factfinder is to determine the weight and credibility of the witnesses. See In re Estate of Farr, 274 Kan. 51, 68, 49 P.3d 415 (2002). Since the demeanor of the witness is an important part of the credibility determination, Ludwig agrees the court would be limited in evaluating credibility over a telephone.
We observe that Puls apparently wished to testify, e.g., her pleadings alleged that she had been checking by telephone on Broderick at the nursing home. She also told the court in the September 20 hearing that “I have sworn and I know her [Broderick] far better, I knew her far better than any of the witnesses to her execution of the will, and I think some of the others of her family. I have sworn to what I was told by the nursing home about her condition . . . .” Ludwig also agrees with the trial court that verifying the identity of a witness would be more difficult by telephone; apparently no one associated with the July 5 trial had ever seen Puls.
We acknowledge a split of authority on the issue of telephonic testimony. See Barry v. Lindner, 119 Nev. 661, 668, 81 P.3d 537 (2003) (citing cases permitting telephonic testimony, particularly when special circumstances are met). And we acknowledge Federal Rule of Civil Procedure 43(a) (2007) now appears to permit it “[f]or good cause in compelling circumstances and with appropriate safeguards.” See, e.g., Beltran-Tirado v. I.N.S., 213 F.3d 1179, 1185-86 (9th Cir. 2000). But see Byrd v. Nix, 548 So. 2d 1317, 1320 (Miss. 1989) (trial court did not abuse its discretion in prohibiting plaintiff s expert medical witness from testifying on rebuttal by telephone, even though the witness had a severe heart condition which allegedly prohibited him from traveling); Gust v. Gust, 345 N.W.2d 42, 44-45 (N.D. 1984) (prohibiting telephonic testimony because of the importance of the jury’s ability to directly assess witnesses’ demeanors). In Byrd, the trial court expressed some of the same concerns as the trial court in the instant case:
“In this particular case, you are asking that a witness testify, but just not be present in the courtroom. As I have stated to you in camera, I still believe that the fact that the jury is not able to view the witness, not able to determine the demeanor and the physical appearance of the witness, I certainly don’t mean to indicate that there would be anything improper done in the event the Court should allow this, but in practicality the Court would have no way of really knowing the identity of the person on the other end of the telephone without being able to see them and hear them and swear them in. The court would have absolutely no control over the witness. Not only would they not be in the courtroom, but even outside the jurisdiction of the court; and the witness might take off on any course of conduct that he should see fit, and there would be absolutely no remedy this court would have should the witness do so. Documents in evidence which the defendant may wish to cross-examine the witness on would not be able to be presented to the witness. He could not see it or review those documents, and the process would be just much too cumbersome and to [sic] inexact for the court to permit this type of testimony to be brought before the juiy. So the motion would be overruled.” Byrd, 548 So. 2d at 1318.
We also acknowledge Puls’ observation at oral arguments. Specifically, while K.S.A. 60-243 requires that testimony be given orally in open court, it also states “unless otherwise provided by this article.” She points out that K.S.A. 60-232 allows deposition testimony to be read at trial.
Nevertheless, in the present case, the witness credibility, identity, and control problems would be compounded by Puls’ desire to act as her own counsel and to participate in the entire trial by telephone. A review of the transcripts reveals this task would have been problematic. During the hearing held on September 20, 2004, in which the court allowed Puls’ appearance by telephone, contrary to Puls’ argument on appeal the court clearly had trouble communicating with her. According to the 26-page transcript, the court twice warned Puls that it would terminate the call if she did not allow the court to ask, and if she did not respond to, questions. On another occasion the court had to warn Puls not to interrupt.
The transcript of the July 5, 2006, trial also reveals problems. At first, the court reached only Puls’ answering machine at the appointed time; however, the court was successful in reaching her a few minutes later. The 9 pages of the transcript during which Puls participated in the trial reveal that the judge had some difficulties in making himself heard by Puls, at one point directing her to “stop [talking] for a minute” and allow him to speak. The record also indicates a number of interruptions of the court by Puls.
The policy considerations underlying Rule 145 are valid and on display under the facts of this case. We conclude that the trial court did not err in following the clear language of the rule and in prohibiting Puls’ telephonic participation at the trial on the merits.
Purported preemption of Rule 145 by the ADA
As mentioned, Puls argues she is a qualified person with a disability under the ADA; that the federal law supersedes Kansas’ Rule 145; and that reasonable accommodation for her disability was required, i.e., allowing her to participate in the trial by telephone.
To establish a violation of Title II of the ADA, the United States District Court for the District of Kansas has held that a plaintiff must show
“(1) he [or she] is a qualified individual with a disability; (2) he [or she] was either excluded from participation in or denied benefits of some public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of [the plaintiff s] disability. Gohier v. Enright, 186 F.3d 1216, 1219 (10th Cir. 1999); Pahulu v. University of Kansas, 897 F. Supp. 1387, 1389 (D. Kan. 1995).” Sanders v. Kansas Dept. of Social and Rehabil., 317 F. Supp. 2d 1233, 1247 (D. Kan. 2004).
Ludwig disputes only the first requirement, arguing that Puls has failed to meet her burden to allege facts sufficient to show she is disabled. See Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1216 (10th Cir. 2007) (plaintiff must prove that he or she has a disability).
As a threshold matter, Puls argues in her reply brief that Ludwig never challenged at the trial court level her assertion that she was disabled. As a result, he should be precluded from raising this for the first time on appeal. See Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). The trial court acknowledged Puls’ argument that she was a disabled individual under the ADA. It determined, however, that the ADA did not apply because she was not asking for physical assistance in appearing in court and therefore it did not preempt Rule 145.
Accordingly, we must first address the timing issue. Ludwig points out that he had only a brief time to respond to her motion before trial. Puls fax-filed her motion on July 3, a day when the clerk’s office was closed for business. The next day, July 4, was a national holiday, and July 5 was the day of the trial. The judge stated that because he did not receive the motion until the morning of the trial, he was unable to review it until after his 10:30 docket. According to Puls’ certificate of service, she also faxed a copy on July 3 to Ludwig’s counsel. The record is silent, however, on when counsel actually received her newly asserted argument that she was disabled under the ADA. Her new argument stated in relevant part:
“4. It is claimant’s position that the Court’s denial of her first motion to appear by telephone is a form of disability-based discrimination prohibited by Title II of the Americans With Disabilities Act of 1990 (hereinafter ‘ADA’). 42 U.S.C.A. §§ 12131(1)(A)(B),(2), 12132. See also 28 C.F.R. § 35.130(a),(b)(l)(i)(ii)(vii). And further, ‘Protections afforded by Americans with Disabilities Act (ADA) ensure that with or without reasonable accommodation of programs and services, disabled individual who meets essential eligibility requirements to participate in program or receive benefit in question is not discriminated against by reason of disability.’ ” Maczaczyj v. State of N.Y., W.D.N.Y. 1997, 956 F. Supp. 403.
“5. The provisions of the Federally-enacted ADA cited above prevail over Kansas Supreme Court Rule 145, which was cited by counsel for S [pedal] A[dministrator Ludwig] in his response.”
Paragraph 6 sets forth Puls’ purported disabilities and limitations, as stated earlier in the opinion.
Ludwig argues that because of the brief time in which he had to respond to this new argument, various exceptions to our general rule should apply. We have acknowledged
“there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision.” State v. Kirtdoll, 281 Kan. 1138, 1149, 136 P.3d 417 (2006).
We agree that given the short notice provided Ludwig on Puls’ new legal theory over the Fourth of July holiday, the “ends of justice” exception should apply.
Turning now to the merits of Ludwig’s argument that Puls has not shown that she is disabled under the ADA, we observe that 42 U.S.C. § 12102(2)(A) (2006) provides in relevant part that a disability is a “physical or mental impairment that substantially limits one or more of the major life activities of [an] individual.” The 10th Circuit Court of Appeals has held that an analysis under this statutory subsection requires a three-step process: (1) determining whether the plaintiffs condition is an impairment, (2) identifying the life activity upon which she relies and determining whether it constitutes a major life activity under the ADA, and finally (3) determining whether the impairment substantially limited the major life activity. MacKenzie v. City and County of Denver, 414 F.3d 1266, 1275 (10th Cir. 2005) (citing Bragdon v. Abbott, 524 U.S. 624, 631, 141 L. Ed. 2d 540, 118 S. Ct. 2196 [1998]); see also Berry, 490 F.3d at 1216 (The burden of establishing the presence of all three elements, i.e., that claimant has a disability under the ADA, is upon the claimant.).
Ludwig attacks element 1 (whether the claimed condition constitutes an impairment) and element 2 (whether the identified endeavor constitutes a major life activity). Both determinations are questions of law for the court to decide. Berry, 490 F.3d at 1216. Moreover, for element 2, the claimant must precisely identify the major life activity affected by his or her impairment. MacKenzie, 414 F.3d at 1275. Here, Puls has identified travel. Accordingly, we will first examine whether travel is a major life activity.
The Supreme Court has held that “major” means important, and that “major life activities” thus refers to those activities that are of central importance to daily life. Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184, 197, 151 L. Ed. 2d 615, 122 S. Ct. 681 (2002). There, regarding the major life activity of performing manual tasks, the Court ruled: “We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.” (Emphasis added.) 534 U.S. at 198.
We continue our analysis of whether travel is a major life activity by observing that the clear weight of authority is against Puls.
In Coons v. Secretary of U.S. Dep't, 383 F.3d 879 (9th Cir. 2004), the claimant identified travel as the only major life activity that was limited by his impairments. The Ninth Circuit Court of Appeals held:
“There is no authority that describes air travel as a major life activity. There is, however, authority denying a plaintiff ADA relief on grounds that travel is not a major life activity. See Reeves v. Johnson Controls, World Servs., Inc., 140 F.3d 144, 152-53 (2d Cir. 1998) (holding that ‘everyday mobility,’ defined by plaintiff as, among other things, ‘going to unfamiliar places that would involve staying overnight,’ was not a major life activity.” Coons, 383 F.3d at 885.
Other courts have examined the narrower question of whether driving is a major life activity. Here as well, the weight of authority is against Puls. As the 11th Circuit Court of Appeals stated in Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329-30 (11th Cir. 2001):
“Major life activities are enumerated by EEOC regulation as ‘functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 29 C.F.R. § 1630.2(i). Although this enumeration is not exhaustive, driving is not only absent from the list but is conspicuously different in character from the activities that are listed. It would at the least be an oddity that a major life activity should require a license from the state, revocable for a variety of reasons including failure to insure. We are an automobile society and an automobile economy. So that it is not entirely farfetched to promote driving to a major life activity; but millions of Americans do not drive, millions are passengers to work, and deprivation of being self-driven to work cannot be sensibly compared to inability to see or to learn.” (Emphasis added.)
The Second Circuit is in agreement. In Colwell v. Suffolk County Police Dept., 158 F.3d 635, 643 (2d Cir. 1998), the court held that driving “cannot reasonably be deemed major league”, i.e., a major life activity. Similarly, in Yindee v. Commerce Clearing House, Inc., 2005 WL 1458210, at 3 (N.D. Ill. 2005), the court granted summary judgment to the employer, holding:
“Driving in and of itself is not of central importance to daily life, on par with activities such as seeing, hearing, or working in a broad class of jobs, so it is not a major life activity as that term is used in an ADA context. See Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197 (2002).”
On appeal, the plaintiff did not disagree with this assessment, and the Seventh Circuit affirmed on other grounds. Yindee v. CCH, Inc., 458 F.3d 599, 601-02 (7th Cir. 2006); see also Benko v. Portage Area School Dist., 241 Fed. Appx. 842, 846 (3d Cir. 2007) (in holding plaintiff failed to prove that his qualifying physical impairment — heart problems and degenerative lumbar disc disease— substantially limited a major life activity, court stated that “walking long distances” was not a major life activity because it was not of central importance to most people’s daily lives).
On the specific issue of travel or driving as a major life activity, Puls cites only Lemire v. Silva, 104 F. Supp. 2d 80 (D. Mass. 2000). Lemire is easily distinguishable and actually supportive of Ludwig. It states:
“The ability to travel is also a major life activity, if defined, as the Court of Appeals for the Second Circuit suggested in Johnson Controls, to include basic mobility, such as leaving one’s home. The ability to leave one’s home and travel short distances is necessary in most cases to form and maintain social ties, earn a living, and purchase food and clothing.” (Emphasis added.) 104 F. Supp. 2d at 87.
Puls’ pleadings suggest that she has traveled within the “seven-county Denver, Colorado, metropolitan area for many years,” just not outside of it. At the September 20,2004, hearing, she informed the court that she had performed legal research for her pleadings in this case in the University of Colorado Law School, which is in Boulder. She also stated that she had received notice of the Broderick death when at the Denver post office in 2004. This evidence, coupled with her June and July 2006 faxes from two different stores in two different towns outside the city of Denver, all indicate she is able to leave her home and to at least travel short distances.
Accordingly, we conclude that travel — here, from the Denver, Colorado, metropolitan area to Leavenworth, Kansas, the Kansas City metropolitan area — is not a major life activity. As a result, Puls has not met her burden to establish her disability under the ADA. Consequently, her argument that the trial court erred in holding the ADA did not supersede Rule 145 must fail. Because of this missing key ingredient, we need not address Ludwig’s other argument, i.e., that Puls has not submitted any medical evidence to the court supporting her claim of purported impairments.
Issue 2: The trial court’s discretion in denying the motion.
Puls additionally argues that the court abused its discretion in denying her motion to participate in the trial by telephone. This argument is also based upon die court’s alleged failure to appropriately apply the ADA. State v. Gary, 282 Kan. 232, Syl. ¶ 1, 144 P.3d 634 (2006) (a trial court by definition abuses its discretion when it makes an error of law). We need not address this argument, given our holding that Puls has failed to demonstrate she is protected by the ADA.
We have considered other arguments of Puls and find they have no merit.
Affirmed.
Davis and Johnson, JJ., not participating.
Larson, S.J., and Greene, J., assigned.
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