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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover damages for personal injuries sustained by the plaintiff while riding on one of defendant’s street cars. The verdict of the jury in favor of the plaintiff was set aside by the court and a new trial granted, from which order the plaintiff appeals.
The accident occurred on Main street in Hutchinson, Kan., where the defendant maintains a double-track railway. On October 4, 1911, plaintiff was riding on a street car going north, which was about to stop at a crossing, and plaintiff’s arm protruding from a window was struck by a car going south on the other track. He. began an action on February 16, 1912, to recover for the injury, which was dismissed on January 15, 1915. The present action to recover damages was brought on October 25, 1915.
In the first action plaintiff alleged as grounds of negligence the nearness of the tracks; the insufficiency of the clearance between the cars on the tracks; that the windows were not screened, but only protected by bars five inches apart; and that a violent jerk of the car pushed his arm between the bars, and it was caught and crashed by the passing car. In the last petition the negligence alleged was the nearness of the tracks; the insufficiency of the clearance between the cars; the roughness of the tracks at the place of the accident; the violent checking of the speed of the car, which threw his arm out of the window; and that the bars across the window were not of sufficient height to keep the arms of passengers from projecting over them. Be also added that the motorman on the southbound car had time and opportunity to have seen the plaintiff’s arm and realized his peril before his car caught the plaintiff’s, arm.
On the trial the following special findings of fact were made:
“Q. 1. If you find that the defendant was negligent in this case, how and in what manner was defendant negligent? A. Cars too close together and bars on windows not high enough.
“Q. 2. If you find that the defendant was negligent then what acts of defendant constituted the negligence so found by you. A. By not properly maintaining their track and not properly barring their windows.
“Q. 3. Did the defendant have the windows of the car in which plaintiff was riding properly guarded by iron bars across said windows? A. No.
“Q. 4. If you answer the last question in the negative then in what respect were said windows not properly guarded? A. By bars not being high enough.”
On motion of the defendant the court set aside findings 1 and 2 because they were not sustained by the evidence, and then granted a new trial of the cause. In the ruling the court stated that the new trial was granted upon the ground that the jury had based its findings upon negligence which was not an issue in the case, and for which the defendant could not be held liable under the issues in the present action. '
The plaintiff appeals and insists that the ground upon which a new trial was granted was not tenable. He insists that the language of the court in the ruling indicated that the new trial was granted on the theory that the verdict was based on negligent acts not pleaded in the first action — that the new acts of negligence pleaded were barred by the statute of limitations. However that may be, the verdict of the jury could not be allowed to stand. The court decided that finding 2 was contrary to the evidence, and as findings 3 and 4 involved the same element it necessarily follows that these findings are also without sufficient support. If there was no evidence to support finding 2 — that the defendant did not properly bar its windows — there was not sufficient evidence-to support findings 3 and 4 — that the windows were not properly guarded by iron bars across them, and that the bars were not high enough to afford protection. These were important findings, and being contrary to the evidence, the court could do no other than- to set the verdict aside.
Under the pleadings it can hardly be said that a new. and distinct ground of recovery was stated in the last petition. It is true that a plaintiff whose action is disposed of otherwise than on the merits cannot in a new action brought within a year engraft causes that are barred upon those pleaded in the first action which are not barred. The causes of action pleaded in the second case must be substantially the same as those in the first.- Here the second was substantially the same as the first. In both there were averments of defects in the tracks, insufficiency of clearance, violent checking and jerking of the car by which the arm of plaintiff was thrust through a window that was insufficiently protected. In one case the lack of protection was spoken of as the absence of a screen, and in the other it was said that the windows were not properly guarded by bars. The protecting or screening, of the windows by iron bars may be said to be substantially the same as screening them with wire. The important element in this branch of the case is the protection of passengers sitting near windows as against injuries from the outside. According to the pleadings there were several negligent acts and omissions of the defendant which contributed to the' accident. The closeness of the cars, the tilting of them towards each other on account of the defects in the tracks, and the violent checking and jerking of the cars, which it is alleged pushed the plaintiff’s arm through a window, all together contributed to the result, ánd yet it may be inferred that the injury would not have been sustained if there had been proper protection at the windows. It a may be difficult for plaintiff -to recover if it is made to appear that he voluntarily put his arm through the unprotected window as defendant claims, but he is contending that his arm was thrust through the window by the negligence of the defendant. The trial court was not justified in treating the averments in the petition respecting the absence of pro-' tection in-the windows as, a different ground of liability from that alleged in the former petition, and therefore barred by the statute of limitations; but having found that the findings relating to the failure to protect the windows were not supported by the evidence, the court could not uphold the verdict.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
While plaintiffVas in the dry-goods store of defendants for the purpose of making some purchases, the defendants, without her knowledge, caused moving picture films to be taken of her face, form, and garments, and afterwards procured the films to be developed, enlarged, and used to advertise their business, by public exhibition in a moving-picture theater in the neighborhood where she lived, by reason of which, the petition alleged, she became the common talk of the people in the community; it being understood and believed among the people generally that she had for hire permitted her picture to be taken and used as a public advertisement. The answer was a general denial. The court sustained a demurrer to the plaintiff’s evidence, and she appeals.
The principal ground upon which it is claimed the demurrer was sustained, is that the plaintiff failed to prove any actual damages. This was not necessary. (Schaap v. Hayes, 99 Kan. 36, 160 Pac. 977; Pavesich v. New Eng. Life Ins. Co., 122 Ga. 190.) In the first case cited, the action was for damages on account of an assault and battery. It was held not necessary, in order to make a cause for the jury, that any witness should estimate in dollars and cents the extent of plaintiff’s suffering. The opinion quoted with approval the following extract from 8 R. C. L. 653:
“ ‘It is unnecessary to submit any evidence as to the value of mental and physical pain and suffering and humiliation, and the amount of damages to compensate therefor, since this is a question exclusively for the jury.’ ” (p. 37.)
Other authorities cited in the opinion are: 8 A. & E. Encycl. of L. 659; 1 Sedgwick on Damages, 9th ed., § 171a; 1 Bouvier’s Law Dictionary, 3d revision (8th ed.), page 751.
In the other case cited, the supreme court of Georgia ruled :
“The publication of a picture of a person, without his consent, as a part of an advertisement, for the purpose of exploiting the publisher’s business, is a violation of the right of privacy of the person whose'picture is reproduced, and entitles him to recover without proof of special damage.”' (syl. ¶ 11.)
■In the opinion it was said:
“The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness that can be called to establish its existence. . . . Each individual as instinctively resents any encroachment by the public upon his rights which are of a private nature as he does the withdrawal of those of his rights which are of a public nature. A right of privacy in matters purely private is therefore derived from natural law.” (p. 194.)
In another place in the opinion it was said:
“If one’s picture may be used by another for advertising purposes, it may be reproduced and exhibited anywhere. If it may be used in a newspaper, it may be used on a poster or placard. It may be posted upon the walls of private dwellings ,or upon the streets. It may ornament the bar of the saloon-keeper, or decorate the walls of a brothel. By becoming a member of society, neither man nor woman can be presumed to have consented to such uses of the impression of their faces and features upon paper or upon canvas.’.’ (p. 218.)
In Munden v. Harris, et al., 134 S. W. 1076, (153 Mo. App. 652) the Missouri court of appeals held:
“One has the exclusive right to his picture as a property right of material profit, and, unless he has expressly or impliedly consented to its use by others, he may sue at law for damages for the invasion of the right.” (syl. ¶ 3.)
“Where one’s .exclusive right to his picture is invaded, special damages, though recoverable, if demanded, are not necessary in an action at law for damages, and general damages are recoverable without a showing of specific loss.” '(syl. ¶ 4.)
Some of the witnesses for the plaintiff on cross-examination admitted that the publication of the plaintiff’s picture did not have the effect to lessen their esteem for her. It is seriously argued that this evidence conclusively established the fact that plaintiff had not sustained any damage. On the contrary it merely proved the sincerity of the friendship the witnesses entertained for plaintiff.
The court seems to have unduly limited the proof offered by the plaintiff for the purpose of showing that the publication of the picture caused her to be talked about commonly in the neighborhood, but this can be corrected on another trial.
The judgment is reversed, with directions to overrule the demurrer.
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The opinion of the court was delivered by
Porter, J.:
On the first day of May, 1914, H. D. Prose and his wife gave their promissory note to. Geo. A. Grisier for $1,685, secured by a chattel mortgage on a growing crop,of wheat in Stafford county. Geo. A. Grisier' is the brother of Mrs. Prose. He resided at the time in the state of Washington. Prose filed the chattel mortgage for record and sent the note'by mail to his brother-in-law.,
On May 23, 1914, the Farmers State Bank of Belpre, which had obtained a judgment against Prose in February, caused an execution to issue and it whs levied on the wheat. At the sale the bank purchased the wheat for $300.
This action is by Grisier against the bank and the sheriff to recover the value of the wheat.
The answer alleged that the chattel mortgage was fraudulent; that there was no valid indebtedness due the plaintiff from Prose; and that he executed the chattel mortgage and placed it on record without the knowledge of the plaintiff. The reply was a general denial.
The case was tried by the court and judgment was rendered in plaintiff’s favor for $925, which the parties stipulated was the value of the wheat. The bank and the sheriff appeal.
The principal contention is that the evidence was not sufficient to sustain the judgment. It is said in the brief “that the appellants believe the giving of the chattel mortgage was a fraudulent transaction, . . . merely a scheme to keep the bank from collecting its judgment,” and that Geo. A. Grisier “became a party to the fraudulent transaction.” Our attention is called to the circumstances in which the note and mortgage were given, and other circumstances and facts shown at the trial, which the defendants insist uphold their contention. In their brief appellants say, “The abstract is the strongest argument.”
There is no merit in the appeal. There was abundant evidence to show that Prose and his wife were justly indebted to the plaintiff to the amount of the note and mortgage. The fact that Prose was insolvent at the time, the fact that the plaintiff is his brother-in-law, and all the other circumstances connected with the execution of the note and mortgage were fully inquired into by the court, and the general judgment is a finding against appellant’s claim of fraud. The brief cites the case of Thomas v. Rauer, 62 Kan. 568, 64 Pac. 80, in support of the proposition that if the chattel mortgage was given by Prose in order to defraud the bank then it is void. In that case the court found that there was fraud. Here the court has found there was no fraud. It is contended that the court was in error in ruling that the defendants had the burden of proof. The theory seems to be that because of the relationship between the plaintiff and Prose the transaction is presumed to be fraudulent and that the burden rested upon the plaintiff to show that it was not. The court rightly held that the defendants who alleged fraud had the burden of proving it. (Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890.) As said in the opinion in Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634:
“We are asked to presume a failure of consideration and fraudulent purpose on the part of Latimer by reason of his relationship to the other parties, and his transfer of the-.property to his grandsons, who were insolvent. This we cannot do. Fr4ud is not presumed.” (p. 65.)
There was no error in. rejecting the testimony in rebuttal showing that the debt which had merged in its judgment against Prose was ah honest debt. The purpose of the testimony was to contradict a statement made by Prose, who was a witness for the plaintiff,'and who said on cross-examination that the bank obtained a judgment on him which was not an honest one. He was not a party to the action. The plaintiff does not base his right to recover on the contention' that the bank’s judgment was not valid and just. That it is valid is conceded.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
These cases involve substantially the same facts and have been submitted together. In the first, Dr. C. W. Winbigler seeks to enjoin as a private nuisance the maintenance of a horse and mule market across the street from his residence in the city of Harper. The court sustained a demurrer to his petition, and he appeals. The second suit was brought by the state, on the relation of the county attorney, to enjoin the defendant from maintaining the place, on the ground that it constitutes a public nuisance. The court found against the defendant and ordered the nuisance abated, from which judgment he appeals.
The petition of Dr. Winbigler, to which the court sustained a demurrer, alleges that he owns and resides in a dwelling house on three lots in the city of Harper, situated in one of the desirable residence districts; that the defendant is. the owner of a half block immediately east of the plaintiffs residence, separated by a street sixty feet wide, upon which the defendant maintains a horse and mule market; that for several months he has maintained a corral or pen extending to the street in the direction of the plaintiff’s residence, in which he keeps and feeds from 50 to 150 horses and mules, permitting them to remain there for such a length of time that manure and filth accumulate in great quantities, causing a noxious stench to permeate plaintiff’s dwelling, injuring the health of the plaintiff and his family and depriving them of the comforts of his home; that the filth attracts large swarms of flies, which infest plaintiff’s home; and that the horses and mules are visible from the living room of the plaintiff’s residence and are constantly indulging in unsightly practices, by reason of which plaintiff’s home is rendered almost uninhabitable.
The demurrer was sustained solely upon the ground that the petition shows a public nuisance, and that the plaintiff has no right to maintain a suit to abate it. The principal case relied upon in support of the ruling is Jones v. Chanute, 63 Kan. 243, 65 Pac. 243, which was an action to abate a nuisance caused by filth flowing from a hotel into an open sewer, and where it was held that owners of property along the sewer could not maintain an injunction. A more recent case relied upon by defendant is Dryden v. Purdy, 97 Kan. 59, 154 Pac. 221, where the plaintiff sought to enjoin the proprietor of a livery stable from placing buggies in the street in front of his house, his contention being that he suffered annoyance and inconvenience in a manner different from that of the general public, because the vehicles interfered with his view of the public street. It was held that he failed to show that he suffered inconvenience different in kind from that of the public, and that the action could not be maintained.
In Venard v. Cross, 8 Kan. 248, the opinion quotes from a note to Ashby v. White, 1 Smith’s Leading Cases, 364, where it was said:
“ ‘There are cases in which the act done is a grievance to the entire community, no one of whom is injured by it more than another in the kind of injury, though one may be much more injured than another in degree. In such a case, the mode of punishing the wrongdoer is by indictment, and by indictment only. Still, if any person has sustained a particular injury therefrom, beyond that of his fellow citizens (and differing in kind) he may maintain an action in respect of that particular damnification.’ ” (p. 255.)
Nuisances are sometimes private as well as public, and we think the nuisance complained of here was both.
“The number of the persons who are specially injured by a nuisance does not affect the right of action for such injury or make their injury identical with that of the public at large, but any of such persons may maintain an action for the nuisance; and the fact that several persons join in a suit to abate a public nuisance does not show that each of them may not have sustained such special injury as entitles him to relief.” (29 Cye. 1213.)
In Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788, the plaintiff sought to enj oin the maintenance of a cancer hospital on property adjacent to her residence, and because her family was frequently subjected to the annoyance of seeing patients afflicted with the disease walking about the premises, and because there was evidence that offensive odors resulting from the disease itself, and from disinfectants used on account of it, might reach the occupants of neighboring dwellings, it was held that the plaintiff had such a peculiar interest in the relief sought as to enable her to maintain the action. It was said in the opinion:
“The injury need not extend beyond annoyance, if in view of all the facts it is unreasonable. For instance, offensive odors, although not injurious to health, have often been held to constitute sufficient ground for injunction.” (p. 88.)
See, also, State v. Lindsay, 85 Kan. 79, 116 Pac. 207, where the court enjoined the maintenance of a private hospital for insane on the ground that the character of its inmates caused fear!, and disturbed the quiet and peace of the community.
There is some conflict in the decisions upon the question, but each case depends largely upon its own facts. Broadly speaking, in order to constitute a private nuisance the individual complaining must suffer annoyance or inconvenience different in kind from that sustained by the public generally, and not merely in a different degree. In this case the petition alleged facts which, in our opinion, showed, the existence of a private nuisance, as well as one that might upon the same facts constitute a public nuisance. By reason of the close proximity of plaintiff’s residence to' the place where the defendant carried on the business in the manner alleged in the petition, not only the health of plaintiff and his family was endangered, but unbearable conditions were shown, which must naturaljy have caused the plaintiff’s family to suffer annoyance differing not alone in degree, but in character, from that sustained by the public generally. The petition stated a cause of action, and it was error to sustain the demurrer.
In the case brought by the state on the relation of the county attorney, the court made findings of fact. No good purpose would be served by setting out the findings in full. The court finds the conditions to be practically the same as those alleged in the petition in the case brought by Doctor Winbigler, and finds that a large number of people residing in the vicinity are injuriously affected by the maintenance of the corral, and that the stench arising therefrom is distributed over the neighborhood. The findings show there are ho residences on the east half of the block in which defendant’s business is conducted; but that immediately west of his property there are four residences, including that of Doctor Winbigler; and in the block north of that there are four others. The findings show that the conditions resulting from the manner in which defendant’s business is carried on constitute a public nuisance. There was abundant evidence to sustain the findings. As already observed, notwithstanding the fact that a business may be conducted in a manner so that it constitutes a priyate nuisance to one or more individuals, it may at the same time constitute a public nuisance.
The defendant objected to the introduction of an affidavit made by Doctor Hays, county health officer, which was intended for use in the Winbigler case. Doctor Hays was confined to his house with sickness at the time the affidavit was made, and died before the case brought by the county attorney was tried. While not taken for use in this particular case, it related to the facts about which the court was investigating, and was used on the motion for a temporary injunction, where affidavits are competent. We do not regard the matter as of much importance, for the reason that the case was tried by the court, and there was sufficient evidence aside from the affidavit to support the findings and judgment. It is claimed the court erred in allowing the probate judge to testify in rebuttal and state the testimony given by the defendant on the hearing for a temporary restraining order in the other case. The testimony which the defendant gave in the other case was competent against him as showing declarations or admissions against interest; and besides, the testimony of the probate judge which related to the number of mules kept at the place was largely cumulative.
Before the court announced its decision, the defendant requested additional findings and submitted a number of special interrogatories, asking the court to answer them. Of course, the court was not required to answer special interrogatories. (Lumber Co. v. Russell, 93 Kan. 521, 144 Pac. 819.) The findings made were- very full and complete, and the refusal to state the additional findings could not have been prejudicial to defendant.
In the Winbigler case the judgment is reversed, and the cause is remanded with directions to overrule the demurrer. The judgment in the case brought by the state is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages by a tenant against her landlord and the agents of the landlord for injuries sustained through the breaking of the floor of the front porch of a one-story dwelling house. The petition alleges that about April 1, 1915, the plaintiff and her daughter, at the' request of the agent of the defendant, investigated the property for the purpose of renting it for a dwelling house, and thereafter called at the office of defendant’s agents—
“And stated to W. C. Stephenson [agent] that the property above described was badly in need of repair, but that they would rent the same from the said defendants, [landlbrd and her agents] if the defendants would immediately put the property in good repair. . . . That the said W. C. Stephenson acting as agent for the defendant Mary E. Crawford, on or about the third day of April, 1915, leased the house to the said plaintiff and her daughter for a dwelling house from month to month, and at the same time he covenanted and agreed with the plaintiff and her daughter that they would immediately repair the property so that it would be in good, safe and tenantable condition, and requested and induced the said plaintiff and her daughter to move into the said house above referred to on his promise and representations that Mary E. Crawford, his principal, would immediately repair the said house and put it in good, safe and tenantable condition. That at this time the plaintiff and her daughter advised W. C. Stephenson, agent of Mary E. Crawford, that the porches on the said house were in a bad and dangerous condition; . . . that the plaintiff and her daughter relying upon the promise and representations of the said W. C. Stephenson, agent of the defendant, Mary É. Crawford, the owner of the said property, that they would immediately repair the said porches and put them in good, safe and tenantable condition, moved into the said dwelling house and began to use the same as a dwelling house. . . .
“The plaintiff .further alleges that she and her daughter continued to occupy’ the said house as- a dwelling house continuously up to about the 29th day of October, 1915. . . .
“The plaintiff further alleges that the defendants neglected, failed and refused to repair the said porches until after the plaintiff’s injuries hereinafter complained of. That on or about the - day of September, 1915, while the plaintiff was still in the lawful possession of the said property as the tenant of the said defendants and in the peaceful enjoyment of the same, the plaintiff while walking on the front porch of the said dwelling house in a reasonable manner, fell through on account of its deteriorated,' rotten and worn out condition, and thereby received dangerous and painful injuries. . . .
“The plaintiff further alleges that the said deteriorated, rotten and defective condition of the porch on the said house above referred to was permitted to remain in such deteriorated, rotten and defective condition with the full knowledge and consent of the defendants herein over a long period of time and after repeated requests on the plaintiff’s part to have the said property repaired and repeated promises on the defendants’ part to repair the same.”
Proper answers were filed and the cause was tried to a jury.
The plaintiff testified that after she had examined the house with a view to renting it she told the agent that the porch needed repairing.
“Q. What did Mr. Stephenson say, if anything, about repairs? Just state what he said about repairs, if anything. A. Why, when we went to pay him the first month’s rent, I told him we would take the house if he would repair it. He said he would; move right in the next day and he would send a man right down to repair it. I told him- the porches were leaning and looked like they were about in need of repair.
“Q. You mean the porch posts, A. Yes; kind of slides to the front. It seemed like it would settle down and need to repair it underneath. It looks fairly stout on top. . . . And it was kind of rotted — punk and cracks where it came together on the top.’
“Q. You said Mr. Stephenson said— A. He said he would send a man down and repair the house right away — for me to move in.
“Q. Did you move in relying upon those promises? A. Yes, sir, the next day.
“Q. Did he repair the porch, to any extent, at all? A. No, sir.
“Q. Did he make any repairs on it? A. No, he did not repair it at all.
“Q. How long was it, after you moved in, before you had any of the boards there in the porch give away? A. Well, we moved the 3d of April and this was the 3d day of September that I fell through the porch.
“Q. You especially called his attention to the porches? A. Yes, sir.
“Q. How did you happen to do that? A. I seen it looked old and looked like it needed repairs.
“Q. Did you personally have any further conversation with Mr. Stephenson? A. Yes, I spoke to him once when he was down looking around the place. ...
“Q. That was before the accident? A. Yes, sir.
“Q. How long before? A. It was about a month, I think, before.”
The jury returned a verdict for plaintiff for $330 and answered certain special questions, finding that defendant’s agents had authority to make repairs, that before plaintiff moved into the house they promised to repair the porch, that the porch was in a dangerous condition on the day of the accident, and that the porch had not been repaired.
Other special questions were answered:
“1. Did the plaintiff, prior to the renting of the house in question, notify Stephenson & Webb, or either of the firm, that the porches were in a defective, bad or dangerous condition? Answer: Yes.
“12. Was not the porch, on which plaintiff claims to have been injured, used by herself and the other occupants of the house, regularly from about the third day of April, 1915, until the third day of September, 1916? Answer: Yes.
“13. Did not the plaintiff know, or have as good opportunity to know, the conditions of the porch, prior to the time she claims she was injured, as did the defendants? Answer: Yes.”
The principal errors assigned relate to the instructions given and refused. The trial court gave the following:
“6. ... if you further find that at the time in question the defendant Stephenson agreed to repair the porch but failed to do so and that plaintiff while in the exercise of reasonable.care for her own safety, suffered the injuries complained of by reason of such failure to have the porch repaired, then the defendant Mary E. Crawford would be liable for such injuries as the evidence shows that the plaintiff sustained. . . .”
Defendant contends that the instruction just quoted is not a correct statement of the law. Her counsel requested an instruction, refused by the court, which reads:
“10. You are instructed that, even though you do find from the evidence in this case that Stephenson & Webb had authority to, and did, agree to repair the premises in question, the plaintiff cannot recover for her injuries, if any, sustáined by the defective conditions of the premises, unless such repairs weré made, and the defendants were negligent in making such repairs.”
It has frequently been decided that where a landlord attempts to make repairs on property, but only does so in an imperfect or ineffectual manner, and where the tenant relying upon such attempts to repair continues his tenancy and is injured thereby, an action for such injuries will lie in his behalf against the landlord. It has also been held that where the landlord knowingly conceals or keeps secret, dangerous defects which are likely to injure a tenant or a. member of- his household, and an injury results, the landlord’s wrongdoing is tortious and he is liable in damages therefor. (Moore v. Parker, 63 Kan. 52, 64 Pac. 975, 53 L. R. A. 778 and note; Miller v. Sullivan, 77 Kan. 252, 94 Pac. 266; Wells v. Hansen, 97 Kan. 305, 154 Pac. 1033: Rull v. Rainey, 99 Kan. 57, 160 Pac. 1016.)
On the other hand, it is settled law that a landlord is not liable in damages as for a tort for a tenant’s injuries sustained through the landlord’s total failure to make promised repairs.
In such case the landlord’s liability is only for the breach of his covenant to repair, and this liability is measured by the difference in the rental value of the leased' property unrepaired from its agreed rental value if the promised repairs had been made. If the repairs would cost but little, the tenant may make them himself and offset the expense aganst the rent. In this instance it cost about $7 to make the repairs. The rent was $10 per month and ,it was then two months past due and unpaid at the time of\ the accident. The landlord’s failure to comply with his covenant to repair is likewise ground for rescission and termination of the tenancy. But personal injuries are almost uniformly considered by the courts to be too remote to be included in an action for breach of covenant to repair. Loss of life or limb is not a natural and probable consequence which ordinarily and reasonably could be anticipated from a breach of covenant to make repairs on a dwelling house. This is the doctrine of practically all the textbooks and it is supported by a plethora of decisions. (Miller v. Sullivan, 77 Kan. 252, 94 Pac. 266, 15 Ann. Cas. 561; Anderson v. Robinson, 182 Ala. 615, Ann. Cas. 1915D, 829; Dustin v. Curtis, 74 N. H. 266, 13 Ann. Cas. 169; Davis v. Smith, 26 R. I. 129, 3 Ann. Cas. 832; Thompson v. Clemens, 96 Md. 196, 60 L. R. A. 580; 18 A. & E. Encycl. of L. 234; 16 R. C. L. 1059; 3 Joyce on Damages, 1942; Jones on Landlord and Tenant, p. 675, § 592; 2 McAdam on Landlord and Tenant, 4th ed., p. 1316, § 386; 1 Tiffany, Landlord and Tenant, 574, 592, §§ 86, 87; 2 Underhill on Landlord and Tenant, 859.)
(See, also, Notes, 11 L. R. A., n. s., 504; 34 L. R. A., n. s., 798, 804; 48 L. R. A., n. s., 917.)
In Hamilton et al., Executors, v. Feary, 8 Ind. App. 615, affirmed in 140 Ind. 45, where a recovery for personal injuries sustained by a tenant was denied, the general rule touching a landlord’s liability for breach of covenant to repair was discussed :
“In this respect the rule is not different from what it would be if the contract to repair had been between the tenant and a mechanic or work man employed by her to do the work. The only damages recoverable in such case would be the difference between the price agreed upon and the actual cost of the work if the employer had hired another to do it, and possibly such other damages as were sustained by reason of the delay.” (p. 620.)
It seems therefore that the criticised instruction of the trial court was clearly erroneous, and some such instruction as- the one»requested or involving the principle discussed above should have been given. This conclusion will necessitate a reversal of the judgment; but it still remains to be determined whether a new trial may be awarded or whether judgment should be ordered.
The only notice of the defect in the porch which the landlord had was the information which the plaintiff tenant says she gave to the landlord’s agents when she inspected the dwelling house with a view of renting it. She could impart no knowledge of the defective porch to the landlord except such knowledge as she herself possessed. Nevertheless, knowing the defective condition of the porch, and notwithstanding the landlord’s continued failure to comply with her covenant to repair, the tenant occupied the premises and used the porch for several months.
“12. Was not the porch, on which plaintiff claims to have been injured, used by herself and the other occupants of the house, regularly from about the third day of April, 1915, until the third day of September, 1916? Answer: Yes.
“13. Did not the plaintiff know, or have as good opportunity to know, the condition of the porch, prior to the time she claims she was injured, as did the defendants? Answer: ,Yes.” (Jury’s special findings.) '
In view of these findings, under the most elementary notions of justice, it must be held that the continued use of the porch for these five months, knowing of its defective condition, was such contributory negligence on the part of plaintiff as* to bar any recovery whatever for her personal injuries. (Atkinson v. Kirkpatrick, 90 Kan. 515, 519, 135 Pac. 579; 16 R. C. L. 1057-1058.)
Plaintiff made some effort to avoid this logical consequence by some evidence tending to show that the upper sides of the porch boards were seemingly in such fair condition as might justify her in believing the floor was safe enough for use. That is inconsistent with plaintiff’s pleading; and, moreover, the landlord could not be held liable for latent defects in the porch floor — her information on the subject being limited to what the plaintiff had given to defendant’s agents. Thus plaintiff’s case entirely fails.
It follows that the judgment of the district court must be reversed with instructions to set aside its judgment and to enter judgment for defendant, and it is so ordered.
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The opinion of the court was delivered by
Burch, J.:
This appeal was taken by the administrator of an estate from an order of the district court dismissing his appeal from an order of the probate court, for failure to give an appeal bond.
The administrator presented to the probate court the final report and account of his administration./ After a hearing, the probate court charged the administrator with interest on funds which he had permitted to lie idle, and charged him with another item of interest accruing under circumstances not now material. The court ordered the sum of the two charges to be deducted from an allowance of compensation to the administrator for his services, fixed by previous order, and directed distribution to the heirs.
The statute reads as follows:
“Every appellant shall file in the probate court a bond in such sum and with such security as may be fixed and approved by the probate court, conditioned that he will prosecute the appeal and pay all sums, damages and costs that may be adjudged against him,: Provided, No executor or administrator shall be required to enter into bond to entitle him to appeal, except when he appeals from the order of removal or to pay over money to heirs, legatees, devisees, or in a suit growing out of an alleged maladministration of said executor or administrator, in which said cases he shall be required to give bond.” (Gen. Stat. 1915, § 4678.)
The appeal to the district court was essentially an appeal from the order to pay to the heirs a sum of money augmented by interest charges which the administrator claimed were unwarranted, and so was within the terms of the statute. Beyond this, however, the statute was designed to relieve an ad-ministrator from giving bond when appealing in his representative capacity for the benefit of the estate. In this instance the appeal was taken for the personal profit and advantage of the administrator, and in opposition to the interest of the estate.
In a discussion of the subject in the probate court, opinions were expressed by various persons, including a representative of the heirs, to the effect that no bond was necessary to perfect the appeal. The district court could acquire jurisdiction only by virtue,of a bond, and not by virtue of a supposed waiver or estoppel resulting from the conduct described.
The judgment of the district court is affirmed.
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Per Curiam:
It sufficiently appearing from the testimony that Frank Fargo, upon whom the notice in this case was served, was station and ticket agent of plaintiff in error (defendant below), and that being the only question presented by counsel, the judgment will be affirmed, on the authority of K. P. Rly. Co. v. Ball, 19 Kas. 535; C. B. Rld. Co. v. Ingram, 20 Kas. 66; Union Trust Co. v. Kendall, 20 Kas. 515; Laws 1874, ch. 94, §3, p. 144.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Addison A. Jackson against the Winfield town company, to set aside two certain deeds executed by Thomas B. Ross, probate judge of Cowley county, Kansas, to said Winfield town company, for certain lots in the town or city of Winfield. It appears from the petition of the plaintiff that, in 1871, he (the plaintiff) with others settled upon and occupied a certain piece of government land, upon which the city of Winfield is now situated; that they caused said land to be surveyed into blocks, lots, streets, alleys, etc., and to be converted into the town site of Winfield; that on July 10, 1871, the said.probate judge entered this town site at the United States land office, under the act of congress entitled “An act for the relief of the inhabitants of cities and towns upon the public lands,” approved March 2,1867; (14 U. S. Stat. at Large, p. 541;) “ that afterward, to wit, on the 20th day of September, 1871, and divers days thereafter, the said probate judge executed, acknowledged and.delivered to him (the plaintiff, Jackson) and each of his associate occupants upon said town site, deeds in fee simple for his and their several and respective interests in said town site;” that there was still other property left in said town site, consisting of about five hundred lots, which lots were vacant and unoccupied; that the said probate judge exe cuted the said two deeds to the Winfield town company, conveying to the company these five hundred lots. The plaintiff prays in his petition that these two deeds be set aside and canceled.
Just what the Winfield town company was, we are notinformed. Whether it was a copartnership, or a corporation, and whether it was composed of the plaintiff and his said .associate occupants, or a portion of them, or of other individuals, we cannot tell. The petition states that J. C. Fuller was the president of this company, and that E. C. Manning was the secretary, but who the other members of the company were, and whether Fuller and Manning and the other members were associate occupants of the town site with the plaintiff, the petition does not state, nor are we in any manner informed. And who the associate occupants of the town site were, is' nowhere disclosed. Whether they were the town company or not, is not shown. But passing over all this, and supposing that the plaintiff was not a member of the town company, and therefore that he did not get any interest in the said 500 lots by the said conveyance from the probate judge to the town company, still has he any cause of action against the town company? Did he have any interest in said 500 lots? To whom did they belong? To whom should they have been conveyed, or what should have been done with them? In other words: after the probate judge has executed deeds conveying to all the occupants of the town site, all “their .several and respective interests in said town site,” then what is. he to do with the remaining portion of the town site, which nobody occupies, and nobody can claim according to the strict letter of the act of Congress?
1. Must it revert to the United States?
2. Or, will the probate judge continue to hold it?
3. Or, will it become the property of the state, under the control of the legislature ? The act of congress provides for the probate judge “to enter at the proper land office, and at the minimum price, the land so settled and occupied in trust for the several use and benefit of the occupants thereof ac- ’ •cording to their respective interests, the execution of which trust as to the disposal of the lots in such town and the proceeds of the sales thereof to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.” (14 U. S. Stat. at Large, p. 541.)
4. Or, under the act of congress and our own statutes, will such unoccupied property become the property of the county for the use of the public ? In this state the fee of all streets, alleys and other public grounds in cities is in the county for the use and benefit of the public. (Comp. Laws of 1879, p. 589, §6; Smith v. Leavenworth, 15 Kan. 81, 85.)
5. Or, will such unoccupied property become the property of the city? This seems to have been the opinion of a majority of the supreme court of Colorado in 1871. (City of Denver v. Kent, 1 Col. 336.)
6. Or, will this unoccupied property remain open for the future settlement and occupancy of still other occupants, and become the property of the several settlers and occupants, aS they respectively settle upon it? This seems to be the view •of Mr. Justice Wells, of the supreme court of Colorado. (1 Col. 350.)
7. Or, under said act of congress and our own statutes, will said unoccupied property become the property of the town company? Section 12 of the act of the legislature relating to town sites reads as follows: ‘‘All persons who select and lay out a town site, and their assigns, shall be deemed occupants of said town site and the lots embraced therein, within the meaning of the above-recited acts of congress, and deeds shall be made accordingly.” (Comp. Laws of 1879, p. 973. See also Leech v. Ranch, 3 Minn. 448.)
8. Or, will this unoccupied property become the joint and private property of those persons who may be occupants of the town site at the time the same is entered at the United States land office ? There is no statute, state or federal, that we know of, that would authorize this; and there is no de cisión of any court, that' we are aware of, that sustains or promulgates any such doctrine; and yet we think that the plaintiff must show that this unoccupied property becomes the joint and private property of himself and his associate occupants, or he cannot maintain this action, or any other action with reference to the property. If the property goes to the public, to the state, the county, or the city, or back to the United States, then certainly he has no right to maintain the action. He has no especial authority to become the champion of the community, and in his own name to challenge the supposed wrong-doers to meet him in the courts of justice, there to answer for their supposed shortcomings, their moral delinquencies, their oblique transactions, or their positive wrong-doings affecting injuriously the best interests of the public. Public officers are elected and appointed to protect the interests of the public, and private individuals must confine themselves in their litigious controversies to the protection and maintenance of their own private affairs. This has been decided over and over again by the courts in Kansas; and if anything can be said to be settled, we think this is settled. Under no circumstances can the plaintiff maintain such an action as this, unless he can show that he has some private interest of his own in the subject-matter of the controversy. Has he any such interest? The plaintiff’s counsel almost admit that .he has not. They say: “It will be observed that we do not discuss the question what is to be the final disposition of the residuum of lots after all individual claims have been satisfied. Further legislation can alone solve that problem. (1 Col. 353; 11 Kas. 151.) We may remark, however, that if the legislature should direct that a certain portion of the lots should be set apart for public grounds and parks (11 Kas. 151), or that the ‘proceeds of the sale thereof’ should be appropriated for the benefit of public buildings and schools (1 Col. 345), either or all these objects would be a beneficent exercise of legislative discretion, clearly within the objects of the trust.”
We think that the plaintiff has no private interest of his own in this controversy, and therefore that he cannot maintain this action. The judgment of the court below mustjoe affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
There are several questions suggested by counsel in this case, but the only important ones to be determined are, whether the answer of Beckes & Son contained any defense to the petition of the plaintiff, and if it did, whether the trial court erred in its direction to the jury. As the answer charged that Riggs, the assignee of Beckes & Son, together with his partner, the plaintiff, with full knowledge of the trust, appropriated to their own use the trust property, it must be conceded, we think, that for such conversion the firm of Riggs, Dunlap & Co. (composed of S. B. Riggs and Howard Dunlap) were liable to some one for the actual value of the property thus converted. It is well settled that trustees cannot directly and openly, or secretly and covertly, sell themselves trust property; and even if the assignee intended to act in the utmost good faith in the disposition of the mill machinery, boiler and engine, belonging to the trust property, yet the sale was not valid, and the firm must account for the full value of the property so appropriated, regardless of the price agreed upon between the assignee and his firm, or rather between the assignee on behalf of the trust, of the one part, and the assignee, as the agent of Riggs, Dunlap & Co., of the other part. The assignment of Beckes & Son was in 1872. At the time of the conversion of the trust property, Riggs, Dunlap & Co. were the owners of the notes sued on. The suit on the notes was not commenced till 1876. A sufficient time had elapsed between the date of the assignment and the commencement of this action ordinarily to close out the trust under the assignment. The answer alleged that the debts of Beckes & Son did not exceed $3,000, and that the property assigned by said firm was largely in excess of that sum; and it further alleged that all the property was converted by Riggs, Dunlap & Co. If these allegations were proved true, a full defense would be established, as the plaintiff would have had no right to recover in his action. If the firm of Riggs, Dunlap & Co. have appropriated of the trust property, assigned for the benefit of all the creditors, sufficient to pay themselves and all other debts of the assignors, the mere transfer of the claim of Riggs, Dunlap & Co. to one of their members would not authorize such- member to again recover thereon, or, in brief, to get a second payment of the claim.
Notwithstanding these views in regard to the sufficiency of the answer, the direction to the jury cannot be sustained. Upon the trial, the testimony showed that Riggs, Dunlap & Co. only appropriated the grist-mill machinery, together with a boiler and engine. All the other property was fairly and properly sold by the assignee. From such other property there was realized $1,214.70. The evidence as to the value of the grist mill, engine, etc., was very conflicting — varying all the way from $1,500 to $4,000.
In the sixth instruction given to the jury, the court seemed to assume, that with the $1,500 which Riggs, Dunlap & Co. were to pay, or did pay to the assignee, said assignee had sufficient funds to satisfy all the debts of Beckes & Son, exclusive of the notes sued on, together with all the costs and expenses of carrying out the trust, for the direction was to deduct the value of the grist mill, engine, etc., over and above $1,500, from the amount of the notes in dispute, and give the plaintiff a judgment for the balance. If the value of this particular property in excess of $1,500, exceeded the amount of the notes, then -they were to find for the defendants. We say the trial court must have assumed the facts above stated, otherwise the $1,500 would have been as much an off-set as the value of the grist mill, etc., in excess of that sum. If the instruction was not based upon this view, then it must have been based upon a theory equally as erroneous, viz.: that as the assignee only accounted for the sum •of $1,500, for the value of the grist mill, etc., the creditors of Beckes & Son were only entitled to said sum as the value of the mill, and the true value, in excess of said sum, belonged to the latter firm. Whether given for the first or second reason, or any other, it misdirected the jury. The court had no right to assume as a fact, that the ‡1,500, added to the proceeds of the other property, were sufficient to pay the debts of Beckes & Son, exclusive of the notes sued on, as the testimony of the amount of the debts was conflicting; neither had the court the right to limit the interest of the creditors of Beckes & Son, in the mill, to $1,500, simply because the.assignee had reported that sum as the price received from his firm. The excess over $1,500 should be distributed pro rata .among all the creditors of Beckes & Son, in proportion to the original clainjs against them at the date of the assignment, first deducting from all the assets of Beckes & Son, the costs, expenses, and compensation of the execution of the trust, and only the pro rata share of such excess should be applied on the notes sued on, and deducted from the amount thereof. If the pro rata share of the excess was less than the notes, the plaintiff would be entitled to a verdict for the balance. If the pro rata share exceeded the notes, or if the actual value of the trust property converted by E., D. & Co., together with the proceeds of the other trust assets, exceeded all the debts of the defendants, including the notes, with the costs, expenses and commissions of the trust, the verdict ought to be for the defendants.
Under the circumstances, the assignors, Beckes & Son, in ■consequence of their continuing liability to the creditors, for whose benefit they executed the deed of assignment, and of their resulting trust, might have brought a suit to compel the assignee to account, but their interest in the property as signed being equitable merely, they had no right in this' action to off-set the trust property against the claim of the-plaintiff, except as a pro rata payment of the claim, in proportion to the original claims against them, or unless there' was an excess of trust property appropriated by Riggs, Dunlap & Co. over and above the amount of the debts of Beckes & Son, and costs and expenses of the trust, exclusive of the-notes. We have treated the plaintiff as though the action had been brought by Riggs, Dunlap & Co., as he, .in fact,, stands in their shoes.
' A few words will dispose of the case, so far as the defendant in error E. B. Peyton is concerned. No judgment was rendered in the district court, either for or against him. In the transcript before us, outside of the bill of exceptions,, ■which legitimately ought to contain only the decisions and proceedings of the trial court, not of record, it does not appear that Peyton was ever served with any summons in the-case, or that he had any connection therewith, other than being charged as an indorser in the petition. Of course, therefore, the' plaintiff in error has no right in this court to ask any order or judgment as against such defendant in error.
On account of the misdirection of the jury, the judgment of the district court will be. reversed, and case remanded for a new trial between plaintiff, and defendants, Caleb Beckes,, and Baxter Beckes, late copartners as C. Beckes & Son. The costs will be paid by C. & B. Beckes, except the costs arising from making E. B. Peyton a party in this court, and these costs will be taxed against the plaintiff Howard Dunlap.
All the Justiees concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by August Bondi against the county commissioners of Saline county, for probate judge’s fees and sheriff’s fees accruing in a certain proceeding had before the probate judge, to determine the sanity or insanity of a certain person supposed to be insane. Judgment was rendered in the court below in favor of the plaintiff, for $42.60, and the defendant brings the case here for review on petition in error. Two principal grounds for error ai’e urged in this court: First, it is claimed that the affidavit verifying the plaintiff’s claim as he presented it to the county commissioners was not sufficient; second, it is claimed that there were two different cases with reference to the insanity of said person, in the first of which he was discharged, and therefore that the court below erred in rendering judgment for fees accruing in the first case as well as for fees accruing in the second case.
I. We think said affidavit was defective, but it was not so defective as to be void, and as no objection was made to it while the claim was pending before the county commissioners, and as the county commissioners refused to allow the claim for other reasons, no objection can now be urged against the sufficiency of the affidavit. Nor could such an objection have been properly urged at any time after suit was brought on the claim in the district court.
II. A trial was had before the probate court and a j ury, with regard to the sanity of said 'person, and the jury found that he “ was not insane, and thereupon he was by the court allowed to go at at large.” Whether any judgment was rendered, or not, is not shown. On the next day, a motion was made by the party who instituted the proceeding for a rehearing, and the court granted it, (Comp. Laws 1879, p. 530, § 8,) and a second trial was duly had, which resulted in a verdict that said person was insane, and a fit person to be sent to the state insane asylum, and the court rendered judgment accordingly, and sent him to the state insane asylum. And it was further found that the estate of the insane person was entirely insufficient to pay the costs and expenses of the proceeding, and the court rendered judgment against the county of Saline for all the costs of the proceeding, including the first as well as the second trial. We do not think that the judgment of the probate court, taxing all the costs of the proceedings had before it against the county, was void, and therefore the district court did not err in following it. Indeed, we cannot say from the record brought to this court that said judgment of the probate court was even irregular or erroneous. It was probably right.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The two principal questions involved in this case are as follows:
1. Does the evidence sustain the report and findings of the referee who tried the case in the court below?
2. Upon the facts as alleged and found, can the present action be maintained?
Both of these questions must be answered in the affirmative. As to the first question, we would cite the following authorities: Walker v. Eagle Works Manuf. Co., 8 Kas. 397; Ruth v. Ford, 9 Kas. 17. This is sufficient for the first question; but probably we should give to the second question a more extended consideration. That question, stated briefly, is as follows :
Where two partners, C. and M., being equal partners, sharing in the profits and losses equally, have a final settlement of their partnership affairs, and through a mutual mistake as to the honesty and solvency of a certain firm having funds in its hands belonging to the partnership, which funds it was to use in paying a certain debt for which M. (and possibly the partnership) was liable, the partners settled upon the basis that said firm was honest and solvent, and that said debt had been paid, while in fact the debt had not been paid, and the firm was insolvent and had converted said funds to its own use, then can M., after the real facts are ascertained, and after C. refuses to make any change in said settlement, or to pay M. anything, and after M. has extinguished said debt by giving his own promissory note, with security therefor (which is received in full payment and satisfaction of said debt), maintain an action against C. to recover an amount equal to one-half the funds so converted? We think such action can be maintained. Upon this question, the plaintiff in error (defendant below) refers to the following authorities: Belt v. Mehen, 2 Cal. 159 ; 1 Story Eq. Jur., § 141, and §§ 148 to 151. The defendant in error (plaintiff below) does not refer to anything.
The facts of the case, so far as it is necessary to state them for a full consideration of this question, are as follows: Clouch and Moyer, who resided in Doniphan county, Kansas, were partners in the business of purchasing, transporting and selling neat cattle and hogs. Each purchased separately, and generally with his own money, but after purchasing they put their stock together, and shipped it to Chicago for sale. They always put their stock into the hands, of Denny & Redman, commission merchants of Chicago, for sale; and when the stock was sold, and the funds placed at the disposal of the partners, the partners would first reimburse themselves for the money they had each expended, (provided there was enough for that purpose,) and then divide equally the profits and losses. The particular transactions, out of which the present cause of action arose, were as follows: Clouch and Moyer both furnished hogs for the Chicago market. Moyer, however, furnished the most of them. ‘ Moyer, in order to enable himself to purchase and pay for these hogs which he furnished, borrowed $1,115 of J. P. Johnson, a banker of Doniphan county, Kansas, giving his own note therefor, to secure Johnson, and agreed to ship the hogs in Johnson’s name. Partnership property had previously been shipped in that manner. These hogs were shipped in the name of Johnson, to Denny & Redman, who were to sell them, and then send the funds arising therefrom to Donnell, Lawson & Co., bankers of New York city, to be there placed to the credit of Johnson; and when this was done, said note was to be considered as paid. Denny & Redman sold said stock, and then informed Johnson, and Johnson, Moyer, and Moyer, Clouch; and Clouch and Moyer then had a final settlement of their partnership affairs. Clouch and Moyer, supposing that Denny & Redman were honest and perfectly solvent, and that Denny & Redman had applied the funds arising from said sale as they had been directed to do, and therefore that said note from Moyer to Johnson had been paid, settled upon this basis. But Denny ,& Redman were in fact insolvent, and they had wickedly and unlawfully converted said funds to their own use, and had just previously to the settlement suspended business. 'After the parties had ascertained these facts, Moyer desired to change their settlement, but Clouch refused, and refused to pay Moyer anything. Moyer then gave a new note to Johnson, with a chattel mortgage as security, and Johnson accepted the same as full payment and satisfaction of the original debt, and delivered up to Moyer the original note. Under the findings of the referee we must consider that the whole venture, including the purchasing, shipping, selling, etc., was a partnership transaction, and that no part thereof was the individual venture or transaction of either partner alone. We think that the plaintiff is entitled to recover in this action. See Parsons on Partnership, 284, 310, (3d ed.,) and note m.
From the facts of the case, no one was bound to know or believe that Denny & Redman were insolvent, or that they would do as they did. The money that they received from the sale of said hogs did not belong to them; it belonged to Clouch & Moyer, and was pledged to Johnson. Denny & Redman simply held it in trust; and no one would be required to even suspect that they would use it. For a similar act, E. P. Bancroft was sent to the penitentiary. (State v. Bancroft, 22 Kas. 170.)
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
Horton, C. J.:
This was an action brought by defendant in error, to quiet title to certain real estate in Howard City. In his petition he alleged a purchase of the premises, in December, 1876, from Alexander Bruce, for the sum of $400; the payment of the purchase-money; the taking possession of the property at the date of purchase; the execution to him of a warranty deed on April 2, 1877, and the filing for record of the deed on April 3, at 1 o’clock p.m. of said day; peaceable possession since the date of purchase; and that Thomas Bruce claimed an adverse interest. The plaintiff in error (defendant below) answered, and set up title by virtue of a judgment obtained in the district court of Elk county on April 3, 1877, against Alexander Bruce, and a sale of said lands thereunder, and also, by virtue of two certain tax deeds — one for the taxes of 1873, and the other for the taxes of 1874. Defendant in error filed .his reply, denying generally the truth of the answer, and alleging that the tax deeds were void, for irregularities and informalities. Trial had at the October term, 1878. The court made special findings of fact, as follows:
1. That in the month of November, 1876, one Alexander Bruce was the owner in fee simple, by perfect chain of conveyance from the United States of America, (the original owner,) of the following-described lauds, to wit: Commencing at the northwest corner of block No. seventy-seven (77), in the town of Howard City, in the county of Elk, and state of Kansas, at the intersection of the south line of Washington street and east line of Perry street in said town; running thence north along the east line of said Perry street to the south line of section No. thirty-six (36), in township No. twenty-nine (29) south, range ten (10), east of the sixth principal meridian; thence west along said south line of said section to the southwest corner of the southwest quarter thereof; thence south until it intersects the aforesaid south line of said Washington street; thence east along said line to the place of beginning — excepting from the same, however, the north half of block No. thirty-eight (38), and the south half of block No. nineteen (19), and lots Nos. twenty-five (25), twenty-seven (27), twenty-nine (29), thirty-one (31), thirty-three (33), and thirty-five (35), in block No. twenty (20), in said town of Howard City, and all lying and being within the aforesaid county of Elk, and state of Kansas.
2. That long prior to said November, 1876, to wit, on the 15th day of February, 1876, the lands had been duly surveyed, and laid off into lots, blocks, streets and alleys, and a plat thereof duly filed for record in the office of the register of deeds of said county, as part of the town site of the aforesaid town of Howard City, now known as the city of Howard, and the portion thereof lying within the boundary lines aforesaid designated and described on the plat, as fractional blocks nine (9), ten (10) and eleven (11); and blocks nine (9), ten (10), eleven (11), eighteen (18), nineteen (19), twenty (20), thirty-seven (37), thirty-eight (38), thirty-nine (39), forty-six (46), forty-seven (47),-forty-eight (48), sixty- five (65), sixty-six (66), and sixty-seven (67), and portions of Massachusetts, Ohio, Iowa, Michigan, Illinois, Washington, Plumb,' Walnut and Perry streets, in said town!
3. That the portion of the town site included within the aforesaid boundary lines set forth in the first finding, is laid out upon lots Nos. four (4) and five (5), of section No. one (1), township thirty (30), south, range ten (10), east of the ■6th principal meridian, according to the United States government survey of said lands.
4. That all the land included within lots Nos. four (4) .and five (5), mentioned in the third finding, was at the date mentioned in the second finding, to wit, February 15, 1871, ■duly laid out and surveyed, platted and recorded, as lots, blocks, streets and alleys, composing portions of the town site of the aforesaid Howard City, and subject to taxation •only from that date to the present, as lots and blocks in said town.
5. That in the mouth of November, 1876, the aforesaid Alexander Bruce bargained and sold to John McBee, plaintiff in this suit, the lands bounded and described in the first finding, for the consideration of four hundred dollars.
6. That at the time of the bargain and sale, the plaintiff paid to Alexander Bruce the full sum of four hundred dollars, as the purchase price of the lands, and Alexander Bruce thereupon, then and there, in consideration thereof, promised and agreed to convey the lands to plaintiff.
7. That plaintiff thereupon immediately took possession of the lands, and has retained such possession, and exercised ■control over the same to the present time.
8. That afterward, to wit, April 2,1877, Alexander Bruce, by a good and sufficient deed of conveyance, in compliance with his agreement aforesaid, conveyed to plaintiff, John McBee, the lands mentioned and described in the first finding, and on the same day delivered the deed to the plaintiff, who afterward, to wit, April 3, 1877, at one o’clock p. m., ■caused the same to be duly filed for record in the office of the register of deeds of said county.
9. That the title conveyed as aforesaid to the plaintiff by Alexander Bruce, vests in the plaintiff complete legal and ■equitable right and title to the lands in the aforesaid deed •described, and is paramount to the title set up in the defendant’s answer in this cause, whether founded upon the sale ■upon execution in said answer, set forth, or upon the sale for taxes, or either of them, in said answer mentioned.
10. That the allegations of plaintiff’s petition herein are true, and he is entitled to judgment against defendant.
Upon the facts as found, judgment was duly rendered for defendant in error, and the defendant below brings the ease here.
The assignment of errors is, that the court erred in admitting testimony under the pleadings, and in not rendering judgment for the plaintiff in error. Neither of these alleged errors is tenable. At the time of the commencement of the session of the district court of Elk county for the April term, 1877, at which the plaintiff in error obtained judgment against Alexander Bruce, the defendant in error was the equitable owner of the premises in controversy; he had purchased the same, had paid therefor, and was in full possession thereof. The possession of defendant in error was equivalent to notice to the plaintiff in error of the title of defendant in error. (Johnson v. Clark, 18 Kas. 157; School District v. Taylor, 19 Kas. 287; Greer v. Higgins, 20 Kas. 420.) No judgment lien attached on the premises, because on April 2, 1877, and long prior, they were owned by and were in the possession of McBee. The judgment was against Alexander Bruce, and not McBee, and McBee’s property was not liable for the debts of Bruce. (Holden v. Garrett, ante, p. 98.)
The tax deeds were not executed until May 13, 1878, and September 7, 1878. The former was filed for record on May 20, 1878, and the latter on September 7, 1878; hence, as this action was commenced on September 11, 1878, no question concerning the limitation law arises. As the premises in dispute had been duly laid off into lots, blocks, streets, and alleys, and a plat thereof duly filed for record in the office of the register of deeds of Elk county, so that the same were a part of the town site of Howard City, as early as February, 1871, the listing and valuation of lots, and blocks, and premises of the town after said date, as the- northwest part of lot No. 4, in the northwest quarter of section one, township thirty, south, range ten, east, containing 45^j-acres, and also as the north half of lot No. 5, of northwest quarter of section one, in township thirty, south, range ten, were in disregard of the statute then in force, and the subsequent tax proceedings based upon the assessment were invalid, therefore the court rightfully set aside the tax deeds. (■§§32, 36, and 93, chap. 107, Gen. Stat. 1868.) These sections clearly contemplated that all the real estate divided and platted as lots and blocks, should be so described in all proceedings relative to assessing, advertising, and selling the same for taxes. (See also Challiss v. Hekelnkœmper, 14 Kas. 474.)
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
Horton, C. J.:
Replevin for 300 bushels of corn, of the value of $81, commenced by Piazzek against White, before a justice of the peace. The action was taken on appeal to the district court, where it was tried at the May term, 1879. Judgment was given for defendant White. The plaintiff brings the case here on error.
On the 30th day of January, 1877, plaintiff rented certain land to defendant for the term of three years from March 1, 1877, (except in case of a sale of the premises, when the lease was to terminate,) the defendant agreeing to cultivate all the plow-land on the premises, and to put the same into corn. Plaintiff was to have one-third of all the corn raised, to be delivered to him on the place in cribs to be furnished by him. For the season of 1877 the plaintiff’s share was about '2,500 bushels. During December, 1877, defendant filled plaintiff’s cribs with 2,200 bushels, which was all they would hold. The balance of plaintiff’s share, 300 bushels, is the subject of this controversy.
Counsel complain that the charge of the court was erroneous, and the verdict not supported by the testimony. The principal objections to the charge are, that it had no applicability to the facts proved or issues involved in the trial, .and that the direction, “that if the defendant had the option •to deliver on demand the same corn, or corn of like quality, .the plaintiff could not recover,” was erroneous. To a complete understanding. and elucidation of the case, we must \refer to the testimony. On the part of the plaintiff it was •shown that the crop was divided into loads; that defendant’s •share thus set apart was two-thirds and plaintiff’s one-third; .that plaintiff’s share was placed in his own cribs, except 300 bushels, which could not be put into them for lack of room; that this 300 bushels was placed in defendant’s cribs. The • defendant testified that 300 bushels of the corn belonging to plaintiff could not be stored in plaintiff’s cribs, for the reason that they were full; that he made an agreement with Ellinwood, the agent of plaintiff, that the 300 bushels should be ■stored in his crib, and that the same amount or quantity of ■ corn of like quality should be measured out by him, less shrinkage, whenever plaintiff'should desire him to deliver the corn; that under this agreement he stored in his crib as much as 300 bushels of corn belonging to plaintiff.
Upon this testimony, we are of the opinion that the portion of the charge of the court concerning the deposit or .storage of the corn with the defendant without any limitation or qualification was erroneous and misleading, and that the verdict of the jury cannot be sustained. The current authorities fully support the doctrine very clearly stated by Chief Justice Dixon in Young v. Miles, 20 Wis. 646. It is in substance, that as to articles like wheat and the cereal :grains, and the flour manufactured from them, wine, oil and fruits of the earth which are sold, not by a description which refers to and distinguishes the particular thing, but in quantities which are ascertained by weight, measure or count, and which are undistinguishable from each other by any physical difference in size, shape, texture or quality, that there may be different owners of a common mass, each having a separate property in his share, and each entitled to sever it from the share or shares of the others, and if necessary for the preservation’ of his rights, to maintain replevin for the same, subject to deductions for any loss or waste properly falling to his share while the property remained in mass. (Kimberly v. Patchin, 19 N. Y. 330; Kaufmann v. Schilling, 58 Mo. 218; Wells on Replevin, §§ 203, 209.) The agreement of the parties, as stated by defendant, was clearly, in the opinion of the writer, to the effect that the plaintiff continued to be the owner of the same number of bushels of corn, less shrinkage, stored with defendant’s corn, in the latter’s crib, to be taken from the mass after the mixture, or in the words of the defendant, “to be measured out” (of the mass in the crib) “by defendant, less shrinkage, when a demand was made by plaintiff;” that it was not the intention of the parties that defendant should use, sell or otherwise dispose of all of the corn in the crib, with the option on his part to return the same amount or quantity of corn of like quality from some purchase of corn, or from other corn than that in the crib; that the parties always expected enough •of the mass to be in the crib to satisfy plaintiff. An ample amount was on hand in ,the crib when this action was commenced. The court below, and the jury, following the instructions, treated the storing of the corn with defendant as though the absolute property passed to the defendant, and as if delivered to him for consumption or appropriation for his •own use. Taking all the circumstances together, and the statements of defendant, it seems to us that it was the intention of the parties that the property should remain in the plaintiff, and that the transaction was a bailment. That the defendant, now making an adverse claim, so regarded the transaction, is manifest from his statement to the witness Bullock, a few days before the commencement of this action, “that he had 300 bushels of corn belonging to plaintiff in his crib,, and that he would turn it over to Kellam, as agent of plaintiff, for transportation to Valley Falls;” and his other state'ment, made subsequently, “that he was going to sell plaintiff’scorn to get even with him.” The charge of the court should have directed the jury that, if the corn of plaintiff was stored along with the defendant’s corn, in the latter’s crib, under an agreement that the defendant should measure out of the mass in the crib the same amount or quantity of corn, of like quality as that deposited, less shrinkage, whenever plaintiff should desire the defendant to deliver plaintiff’s corn, then the jury should find for the plaintiff. Of course, we do not wish to be understood as saying, that if it was the intention of the parties that the 300 bushels of corn were turned over to the defendant as a loan for consumption, to be restored from other and different corn than that in the crib, that the property of the corn remained in the plaintiff, or that he should recover. It is simply because, as we construe the agreement, the defendant was to store the corn for plaintiff, and to measure back to him from the mass in the crib the amount to which.he was entitled, that we think the jury may have been misled.
The judgment of the district court will be reversed, and the case remanded for a new trial in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
It is not certain that the court below, in granting to the plaintiff a new trial upon any terms, did not extend to him a degree of indulgence far beyond anything that he had a right to claim as a matter of right. And for this reason we think the plaintiff should have complied strictly and promptly with the terms imposed by the court. But as he did not do so, had he afterward any remedy for his failure? We would hardly think that he had. As the court below granted the new trial solely upon the condition that the plaintiff should pay all costs within thirty days, the plaintiff was bound to fulfill that condition, by the payment of such costs within that time, or the order granting the new trial could never have any operative force or efficacy. A thing depending for its force and efficacy upon the happening of some future event, can never have any force or efficacy unless such future event is brought into existence. And an order granting a new trial, upon a certain condition, is substantially the same as no order, if the condition never happens, or is never fulfilled. After the time has elapsed for the condition to be fulfilled, without the same being fulfilled, it is just the same as though no such order had ever been granted. At least, this is usually the case, and we do not think that the present case presents any exception to the general rule. The plaintiff, in the present case, did not furnish any sufficient reason for his failure to pay said costs within the time prescribed by the court. The only reason given by him, or offered, was, that the plaintiff relied upon his counsel, and his counsel “was under the impression that sixty days were allowed plaintiff within which to pay said costs, instead of thirty.” This reason was not sufficient. We think the ruling of the judge of the court below at chambers, and also the subsequent rulings of the court at its next term, tending to make said former order, granting a new trial, efficacious, or granting a new trial, were erroneous.
The judgment of the court below, as it was originally rendered in favor of the defendant below, and against the plaintiff below for costs, must be enforced. And all rulings and orders of the court below, made subsequently to said conditional order granting a new trial, and tending to destroy the force or efficacy of said judgment, will be reversed.
All the J ustices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The facts of this case are as follows: Benjamin Reeder and James Pugh each had a claim against William Barker. Reeder’s claim was for $285, and Pugh’s for $27.50. Reeder commenced an action against Barker for his claim, and included in his action $15 of Pugh’s claim. Reeder alleged in his pleading, (which is a bill of particulars,) that this claim of Pugh’s for $15 had been duly assigned to him, Reeder. This, however, was not true. It had never been assigned to him, and he had no authority to sue for it. Reeder also procured an attachment in the action, and caused some personal property of Barker’s to be attached. Afterward, Reeder told Pugh what he had done, and that he (Pugh) should have his money. Pugh then said that if he got his money, it was all right, but if he did not get it, it was not all right. Pugh asked Reeder what he would give for the claim, and Reeder answered that he would not give a nickel. Afterward, Reeder obtained a judgment, by default, against Barker for $321.70, which included said $285, and said $15, and interest, and costs. The attached property was sold, and out of the proceeds thereof Reeder realized $14.10, besides costs. No other property belonging to Barker could be found, and he seems to be insolvent. Pugh then commenced this action against Reeder for his said claim against Barker, to wit, $27.50, and he recovered a judgment-thereon against Reeder for $15, and costs. ' Was this judgment erroneous? We should think it was. Pugh had no cause of action against Reeder. Pugh’s claim was against Barker, who was the only one to whom he gave credit. No contract existed between Pugh and Reeder, and the only transaction had between them was in parol. Besides, no consideration passed from Pugh to Reeder. Pugh did not assign his claim against Barker to Reeder.’ Nor did he authorize Reeder to sue on it. Nor did.he release Barker from liability thereon.Nor did he release anything. He had no interest in or lien upon the attached property, and did not pretend to release the same. Nor did he accept Reeder as his debtor in the place of Barker. Nor did Reeder recover said judgment for the $15, or for any portion thereof, or for any other amount, by reason of anything that Pugh did. Nor did Reeder realize $15 on,his judgment, but only $14.10. Nor did he realize any amount over and above his own claim. Nor did he realize even the one-nineteenth part of his own claim. We would therefore think that the plaintiff, Pugh, cannot recover in this action. See statute of frauds, § 6, Comp. Laws of 1879, p.464; 1 Pars. Cont., 219 and note e; 3 Pars. Cont., 19, et seq.; 13 Am. Law Reg. (N. S.) 593, et seq., and 721, et seq.; Browne on Frauds, §§ 158 to 161, 178, 189 to 191; Malony v. Gillett, 21 N. Y. 412.
The judgment of the court below 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
Brewer, J.:
This was an action of replevin, brought by defendant in error, claiming that certain property levied on by the plaintiff in error, defendant below, was exempt from execution. The action was commenced .before a justice of the peace, and thence appealed to the district court. Verdict and judgment were in favor of plaintiff, and defendant alleges error. The only pleading was the plaintiff’s bill of particulars. The testimony is not preserved, and we have only the pleading, the answers of the jury to‘special questions, the general verdict, and the judgment. Two distinct questions are presented by counsel for plaintiff in error. First, was notice that property was claimed as exempt, or a demand, necessary before suit? and second, as to the effect of a joint ownership of part of the property levied upon.
In reference to the first, it will be noticed that this is not a case in which the judgment debtor owns several articles of property of the same kind, of which he is only entitled to a certain number as exempt, as where he owns a dozen horses, only two of which can be claimed as exempt, and where it may be'that some selection or choice on the part of the debtor is necessary, for here the property was all exempt, and the debtor had no similar property. Hence there was no selection or choice to be made, no separating of a part from a whole. In such case it seems to us that no notice at the time of levy, no prior demand, is necessary. The law makes the property exempt, and the officer acts at his peril. He is a wrong-doer if he touches it, and is liable to an action of replevin the moment he takes it into his possession. (Shoemaker v. Simpson, 16 Kas. 43.) Hence it follows that the failure of the jury to answer questions as to notice and demand did not vitiate the verdict, or prevent the entry of judgment thereon. .
As to the other question, the claim in the bill of particulars and affidavit was among other things, “ for six tons, or thereabouts, of hay, of the value of $3 per ton, or $18.” The general verdict was, that the plaintiff was entitled to the possession of the hay claimed, and that its value was $19.50. It further appears from the answers to special questions submitted to the jury, that the hay levied on by the officer amounted to thirteen tons, that its value was $3 a ton, and that it was owned jointly by plaintiff and his son. It would seem from these facts that plaintiff, being a joint owner with his son, brought his separate action to recover a half of the joint property. Technically, this was wrong. Both joint owners should have been united as parties. “It is clearly 'the rule, established under the new system as well as under the old, that properly all the owners of a chattel, whether partners or not, must join in an action to recover damages for injuries done to it, or for a wrongful taking or conversion of it,-or to recover its possession.” (Pomeroy on Remedies and Remedial Rights, § 223.) Yet it is also true, that if this action had been commenced in the district court, and the defect of parties had not been taken advantage of by demurrer or answer, it would have been waived. (Parker v. Wiggins, 10 Kas. 420; Civil Code, § 91; Comp. Laws 1879, p. 614.) And we think it is further true, that when the action is commenced before a justice of the peace, although no bill of par ticulars is filed on behalf of the defendant, and every defense is therefore open to him (German v. Ritchie, 9 Kas. 107), yet, that unless the attention of the court is specifically called to the matter of the defect of parties, the question is waived. It is not such a defect as can first be raised in this court; for it is one which can almost invariably be easily corrected by amendment. Here the matter does not appear to have been directly noticed in the district court. Indeed, it is doubtful whether it can fairly be said to be presented to our attention. The brief alleges that judgment should have been entered for defendant upon the findings of the jury, and says that “the findings of fact show that defendant in error was joint owner of the hay in controversy '; i. e., he owned one-half of it. The general verdict finds that he is entitled to the possession of all of it.” Hence an inconsistency is claimed between the findings and verdict. This is all that notices the defect of parties.
We think under the circumstances no substantial wrong has been done to the plaintiff in error, and the judgment will be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting in the case, having been of counsel in the court below.
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The opinion of the court was delivered by
Horton, C. J.:
This is an action of mandamus, to compel a canvass of the votes cast in the county of Hodgeman at the election held on the first Tuesday of November, 1879, for a permanent county seat of the county, and for the,various county and township officers. At the time of the issuance of the alternative writ, no canvass whatever had been made by the county clerk and commissioners, but after the service of the writ, and on January 12, 1880, the county board convened, and partially canvassed the votes, and declared certain results. Exception is taken to this canvass and declaration, on the ground that the canvassers failed to discharge their duty as prescribed by the statute. The contention over the canvass is now confined to the offices of county clerk, treasurer, sheriff, register of deeds, surveyor, coroner, commissioner of the second district, and the determination in regard to the county seat. The returns of the election, on file in the office of the coiunty clerk, are apparently regular in form and genuine, and show upon their face that E. M. Prindle received the greatest number of votes for county clerk, W. A. Frush the greatest number for treasurer, G. M. Curtis the greatest number for sheriff, D. V. Morgan the greatest number for surveyor, J. A. Whiteside the greatest number for register of deeds, T. Jackson the greatest number for coroner, and C. E. Roughton the greatest number for commissioner of the second district. The majorities for the persons named range from 197 to 51 over all the other candidates. The canvassers declared elected for said offices, those having the fewest votes. Upon the face of the returns, most of said persons had only two votes. Instead of taking the returns as made to them from the different voting precincts, adding them, and declaring the results, they recounted the ballots. Upon this count, most of the persons declared elected by them for said offices had eleven votes out of the 350 cast at the election. The defense, or rather the apology made for this anomalous conduct, is, that as the votes were cast at the first election in the county of Hodgeman, two classes of officers were elected — one class to fill vacancies from the canvass of the vote to the second Monday of January next after the election, and the other class for the full term of the office, commencing on said second Monday of January; and as the commissioners had knowledge aliunde the returns, that certain tickets were voted at some of the election precincts on which candidates were designated for vacancies and others for the full term, they had the right to recount the ballots, and in all cases where the ballots failed to designate the candidates for the full term, to count such vote for a vacancy or the short term, and as the canvass was not made till Jan. 12, (at the expiration of the short term,) all votes could be rejected on which the term of office was not therein designated “for full term.” In this way, those candidates having the greatest number of votes were “ counted out,” and those having the fewest votes “counted in.” This ingenious theory, or rather this indefensible plan to defeat the expressed will of the electors, has not a shadow of support in the law; and the commissioners, by their action, have attempted seemingly to violate law and justice alike for the furtherance of personal or partisan ends. If they have acted upon alleged legal advice, they have been grossly misled, and the result of this proceeding will be the absolute discomfiture of those seeking to count out the elected candidates. Common honesty and common sense on their part ought to have suggested a full canvass of the returns; also, the declaration of election in favor of the persons having the highest number of votes and the relegation of the quirks and quibbles about vacancies and short terms to the rival parties.
The election occurred on Tuesday succeeding the first Monday in November, the time appointed for the general election. The special election was not completed until the general election was through with — both ended at the same time. All county officers elected at such an election hold their offices until the next general election after said day, and until their successors are elected and qualified. (Comp. Laws 1879, p. 267, §121.) Perhaps some of them may continue in office for two years, but we need not settle that matter now, as the question is not before us. Certainly, there were no such vacancies or short terms as wrongly assumed by the canvassers. Their action in the premises was therefore arbitrary and illegal. (Lewis v. Comm’rs of Marshall Co., 16 Kas. 102; Hagerty v. Arnold, 13 Kas. 367.)
But a word need be said of'the other point raised. It seems that Buckner was declared the permanent county seat. Most of the returns describe Buckner as the geographical center; and while we think the declaration sufficient, to prevent further trouble and litigation in the county, as a re-canvass is to be had and a new declaration made, it will perhaps be better, under the circumstances, for the commissioners to again declare Buckner (the geographical center) the permanent county seat of the county of Hodgeman.
In accordance with the views herein expressed, the peremptory writ of mandamus must be awarded as prayed for ; and the said defendants are commanded to meet and canvass the votes herein referred to, and upon the face of said returns to determine that E. M. Prindle has been elected county clerk, W. A. Frush county treasurer, G. M. Curtis sheriff, J. A. Whiteside register of deeds, D. V. Morgan surveyor, T. Jackson coroner, C. E. Roughton commissioner of the second district, and Buckner (the geographical center) the permanent county seat.
Valentine, J., concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The action below was one in the nature of' ejectment, brought by plaintiff in error against the defendant in error, to recover the possession of a quarter-section of land in Barton county. The petition was filed May 16th, 1877,. and was in the ordinary form, alleging title in plaintiff, and that the defendant unlawfully kept the plaintiff out of possession. The answer admitted that the legal title to the land' in controversy was in the plaintiff, but set up a homestead settlement and entry, under the laws of the United States, which it alleged were paramount to the title or estate of plaintiff, and that the plaintiff obtained a patent to the land by an erroneous construction of the statutes of the United States, in fraud of the rights of the defendant; in brief, that the defendant was the equitable owner under the homestead laws, and that the plaintiff held the legal title in trust for the-defendant. The case was tried at the March term of the-court for 1878, to the court, without a jury. The questions-of fact in controversy were as follows:
First, What was the date of the definite location of the line of the plaintiffs railroad in and through Barton county?'
Second, What was the date of entry of said homestead claim ?
Third, What was the date of the settlement of said homestead claimant?
The court made the following findings of fact in answer thereto: That the line of plaintiffs railroad was not definitely located through Barton county by the survey of 1870, but the definite location of said road in and through said county was in August, 1871; that the defendant entered the land at the land office January 11, 1871; that the defendant settled upon the land November 1, 1870, and that at the time of such settlement and entry the land was government land, and a part of the public domain. As conclusions of law, the court found that the defendant had the paramount title to the land in question, and that the plaintiff never acquired any right or interest in the land, and was not, at the ■ commencement of the action, nor at any other time, entitled to the possession of the same. Judgment was accordingly rendered in favor of the defendant, and the plaintiff brings the case here.
The contention of the parties is over the finding of the court of the time when the line or route of the railroad was definitely fixed in Barton county. On the part of the plaintiff it is contended that the evidence conclusively establishes-that the line of its railroad was definitely located by a survey made November 28, 1870. On the other hand, it is claimed by the defendant that the evidence shows that the line of the-railroad was not definitely fixed until August, 1871. The date of the location of the line of the road is very material; we may say decisive of the rights of the parties. The plaintiff claims the land, and is the grantee of the patent title from the United States under the provisions of the act of congress of March 3, 1863, granting lands to the state of Kansas, and that it completed its line of railroad to the west line of the state by December 8,1872. The act of 1863 contains-this provision:
“But in case it shall appear that the United States have, when the lines or routes of said road and branches are definitely fixed, sold any section or any part thereof granted as-aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the interior to caúselo be selected, for the purposes aforesaid, from the public-lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections or parts of sections designated by odd numbers, as shall be equal to such-lands as the United States have sold, reserved or otherwise appropriated, or to which the rights of preemption or homestead settlements have attached as aforesaid.”
If the route of plaintiff’s railroad was not definitely fixed till August, 1871, the plaintiff is not entitled to the land in dispute under the grant of congress, because the evidence clearly sustains the finding that the defendant made his homestead entry on January 11, 1871, and in construing the act of March 3,1863, the supreme court of the United States has held that “ the grant was a float until the line of the road .should be definitely fixed,” and “private entries, preemption .and homestead settlements, and reservations for special uses, continued within the supposed limits of the grant the same .as if it had not been made” until the route of the road is definitely fixed. (L. L. & G. Rld. Co. v. United States, 92 U. S. Rep., 2 Otto, 733.)
As the findings of fact of the trial court were based upon .an agreed statement of facts, maps, a deposition, and other •documentary evidence, the action comes before us in substantially the same manner as before that court. Perhaps we should add to this declaration, so as not to be misunderstood, the further statement that we do not consider the oral evidence of the witnesses, Dodge and Moses, important, at least sufficiently so to control the other testimony. In the agreed statement of facts, it is admitted “that the lands described in the petition lie within the ten-mile or granted limits of plaintiff’s grant; that on November 28, 1870, the plaintiff made a survey of the line of its railroad from Wichita on to Fort Dodge, running through all of Barton county, and that such survey was mapped, and a map thereof filed with the secretary of the interior, and also with the secretary of state of the state of Kansas, as the definite location of the line of the plaintiff’s railroad; that afterward, in August, 1871, another survey was made by plaintiff of the line of its railroad, commencing at Newton, in Harvey county, and running to Hutchinson, and that said survey w„as continued on through the county of Barton about August 31, 1871; that the character, deviation, and extent of said .survey so made in August, 1871, through the county of Barton, was, as is set forth in the deposition of J. R. Ellinwood, on file in the case, ex cept as otherwise admitted herein — the defendant in nowise admitting, however, that the line of the plaintiff’s railroad was definitely fixed and determined by said survey of 1870; that it is also admitted that the line of plaintiff’s railroad was actually built on the line as surveyed in August, 1871.” The testimony of J. R. Ellinwood, as appears from his deposition, is in substance that he was an assistant engineer under T. J. Peter, the chief engineer; that under Mr. Peter he had charge of the field work, running the lines and engineering, and also most of the office work connected with the engineering department; that in the fall of 1870 he made a survey from Wichita to Fort Dodge; that this survey was up the valley of the Arkansas river, on the north side of it from Wichita to Fort Dodge, in Kansas, and passing through ranges 14 and 15, west, in Barton county; that this survey was made for the location of the road; that a map of such location was made, and he made copies of the map — one for the secretary of the interior, and one to file in the office of the secretary of state of the state of Kansas, and one for the company; that the location of the plaintiff’s road from Wichita to Fort Dodge was fixed and determined by that survey; that in the summer of 1871, he made a new survey for the location of the road from Newton west, connecting with the survey of 1870 at Cow creek, in Reno couuty, near where the town of Hutchinson now stands; that the railroad was actually built from Hutchinson through the west part of Rice county, and on to Fort Dodge, on the line of the survey of 1870, as platted, with the exception of certain' slight changes; that the survey of 1870, all through Barton county, was the only survey ever made through said county for the purpose of general location and fixing of the line of the road; that while the road through ranges 14 and 15, west, in Barton county, was not finally built exactly on the route surveyed in 1870, the changes were slight — in some places ten feet or twenty-feet, and in some places perhaps a hundred feet; and that these changes were principally made in the actual construction of the road, for the purpose of getting crossings at streams at right angles with the course of streams. Upon this evidence and the facts agreed to, we can come on]y t0 the conclusion, that the line or route of the plaintiff’s railroad was definitely fixed in Barton county, in November, 1870. That the route or line of the road was changed in 1871, so as to run from Newton to Cow creek, (near Hutchinson,) and was also changed in the same year several miles, in the vicinity of Fort Dodge, does not necessarily imply a change of location in ranges 14 and 15, in Barton county. If the line of the road was definitely fixed in said ranges, on November 28,1870, the changes of the line in other counties do not set aside or undo the location in Barton county. Counsel for defendant severely criticise the testimony of Ellinwood, and charge that it is contradictory, and unsatisfactory, and that the written stipulations, and admissions, and the maps, must control as to the extent and deviation of the survey of 1871, from the one of 1870. The agreed statement is to the effect, “that the character, deviation and extent of said survey so made in August, 1871, through the county of Barton, was as is set forth in the deposition of said Ellinwood, except as is otherwise admitted herein.” Now, while Ellinwood testified that the survey of 1871 did not pass through ranges 14and 15, west, and theagreed stipulation of the parties is, that the said survey continued on through the county of Barton, which includes ranges 14 and 15, the contradiction between the testimony and stipulation is not very great, in view of the fact that according to the subsequent testimony of Ellinwood, some changes were made in the original location of the route in Barton county, but they were of an unimportant character. Therefore we may construe his testimony upon this point to mean that there was no independent line of survey through said ranges 14 and 15 in 1871, and that such new survey in 1871 made only slight changes in said ranges, and did not destroy the definite location of 1870. Virtually, the surveys in Barton county in 1870 and in 1871, if the two surveys were made, were the same. But if we take the maps as our guide in regard to the changes of the routes of the road through ranges 14 and 15, we cannot say that such changes as appear therefrom are anything more than such as might be required in the actual construction of the road to correct curves. If the argument of counsel for defendant is followed out to its logical results, wé must virtually decide that there could be no definite location of the railroad in question, except by the actual construction of its road bed, because it is rarely possible or customary to construct a railroad on the identical survey of its line without making a single change or deviation for any purpose, and such a construction would be unreasonable and also opposed to the meaning given to the terms “of definitely fixing the line or route of a railroad ” by the department of the interior. It is held by the ministerial officers of the United States in charge of the public domain, “that the line of route becomes definitely fixed when it is run upon the face of the earth and is adopted by the company.” (Kansas Pacific R. R. Co v. U. P. R. R. Co., Copp’s Land Laws, 372; St. Paul & Sioux City R. R. v. Holverson, id. 384.) This rule seems reasonable and correct. That the company adopted the route of survey of 1870, is proved from, the facts that a copy of the location of the route of 1870 was filed by it in the office of the secretary of the interior, January 10, 1871, containing therein the certificate of the president and chief engineer of the plaintiff, showing that said map set forth the actually surveyed route of the railroad of the plaintiff as definitely fixed, in pursuance of a resolution of the board of directors of the plaintiff, passed October 8, 1870; and that said map of location-of the line of the road was also filed by it with the governor of the state of Kansas, December 26, 1870, and that the road was afterward constructed through ranges 14 and 15, in Barton county, in substantial compliance with the route set forth on the said map of 1870. As already noted, the changes of route made in 1871, from Newton to Hutchinson, and in the vicinity of Fort Dodge, did not materially affect the route in said ranges, therefore the finding of the court below should have been, that the route of plaintiff’s railroad was definitely fixed in and through Barton county in November, 1870.
Counsel for defendant contend, however, that a finding that the line of the plaintiff’s railroad was definitely fixed, November 28, 1870, is not decisive against the claim of defendant. They claim that the defendant having taken possession of and settled upon the land in question before the 28th of November, that his prior possession and settlement was such a homestead settlement as contemplated by congress in the said act of March 3,1863, to be excepted from the operation of the grant to the railroad company, and therefore the land did not pass to plaintiff by its location of its road in November, 1870. The argument is, that as the defendant was first in time in possession and in commencement of proceedings for the acquisition of the title to the land, and as his said proceedings were regularly followed up, such defendant is deemed first in right. The argument is faulty in this, as the initiation of a homestead right is not possession, settlement or improvement, but an entry of the land at the local land office, and the payment of the fees as prescribed by the act of congress, and as the grant of land to the railroad company in Barton county was rendered certain and specific in November, 1870, by reason of the route of its road being then fixed, and as the defendant did not make any homestead entry of the land till January 11, 1871, it cannot be said that the defendant commenced proceedings for the acquisition of the land till January 11,1871. Therefore the defendant was not first in time, in a legal point of view, and as a sequence, is not first in right. The initial or inceptive rights of the defendant date from the entry of the land by him in the local land office at Junction City. At such time the rights of the plaintiff had already attached to the land, and it was not subject to homestead entry. The homestead settlement referred to in the act of 1863 as having attached when the lines or routes of the railroads are definitely fixed, is the settlement accompanying and following the homestead entry at the local land office, and not the possession or settlement of the applicant prior to-the entry. The entry was, therefore, properly canceled by the commissioner of the general land office, May 18, 1872, and thereafter the land duly patented to plaintiff. The homestead acts fully sustain this construction. The law provides that the homestead claimant shall, “upon application to the register of the land office in which he is about to make such, entry, make affidavit . . . that he is the head of a family, . . . and that such application is made for his exclusive use and benefit, and that-his entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person; and upon filing such affidavit with the register or receiver, on payment of five dollars, when the entry is of not more than eighty acres, and on payment of ten dollars when the entry is for more than eighty acres, he shall thereupon be permitted to enter the amount of land specified.” (U. S. Rev. Stat., p. 422, § 2290.)
Section 2291 further provides “that no certificate, however, shall be given or patent issued therefor, until the expiration of five years from the date of entry.”
Again, section 2293 provides that any person in the military service, whose family is residing on the land, may make-the affidavit required before his commanding officer, and the same may be filed by his wife, or other representative of the absentee, with the register, and that the same shall become effective from the date of such filing, provided the application and affidavit are accompanied by the fee and commissions as required by law;” and said section 2291 also requires and demands that the person making a homestead entry shall prove by two credible witnesses that he has resided upon or cultivated the same for the term of five years immediately succeeding the time of filing the affidavit.
The judgment of the district court will be reversed, and the cause remanded for a new trial in accordance with the views herein expressed.
All the Justices concurring.
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Per Curiam:
As the tax warrant in the hands of the defendant against the property of the plaintiff is not shown to be illegal, and as no personal property is exempt from levy and sale for taxes, the judgment will be affirmed. (Comp. Laws 1879, p.438, §5.)
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The opinion of the court was delivered by
Horton, C. J.:
This is an original action of mandamus, commenced in this court by Nathaniel B. Welsford, to compel Philip Weidlein, as mayor of the city of Peabody, to sign a license granted by the city council on the 23d day of August, 1879, and issued on the 29th day of November, 1879, by the clerk and treasurer of .Peabody, authorizing said Welsford to carry on a retail dramshop in said city from November 29, 1879, to the 30th day of April, 1880. The defendant refused to sign the license, both before and subsequent to the service of the alternative writ upon him, and in his return states that his reason for so doing is, that the city council had no power to grant the license, as less than a majority of the residents of the city of Peabody of twenty-one years of age and over signed the petition or recommendation for the license; that only 251 names were attached to it, thirty of whom were non-residents of Peabody; and that 280 resident adults of the city did not sign the petition.
Upon the trial of the case before us, it was agreed that the petition was presented to the city council on August 23,1879; that prior to January 1,1880, there had never been any ordinance of the city of Peabody providing for a census of the city; that Peabody is embraced within Peabody township; and that when the township trustee, as assessor thereof, made a list of all persons of both sexes twenty-one years of age and upward, he did not on such list separate those residing elsewhere in said township, nor did he indicate on the list whether they resided within or without the city, nor did he make any separate list of or for the city.
We have carefully considered all the evidence presented, and are fully satisfied that a majority of the residents of Peabody, of twenty-one years and over, did not sign the petition presented by Welsford to the city council. It purports to contain 251 names, but several of these are wrongfully there. It is conceded by plaintiff that 240 resident adults of the city did not sign his petition, and the testimony introduced by the defendant clearly establishes that others (ten at least) failed to sign. The majority was not obtained to the petition. The question is therefore presented, whether the action of the city council is conclusive as to the sufficiency of the petition? Peabody is a city of the third class, and the corporate authorities have no power to dispense with the petition required by § 1, ch. 35, of the dramshop act, and can only grant license to a person to keep a dramshop when there is properly presented to the city council a petition signed by a majority of the adult residents. Not only does the dram-shop act require a majority petition as a condition precedent to the action of the council, but the ordinance of the city of Peabody, under which the council pretended to act, has the like provision. Without such petition th'e city council had no power or jurisdiction in the premises. Not only is a petition requisite, but it must be signed by a majority of the adult residents. Unless a majority make the request that a license be granted to the applicant, the assent of the corporate authorities cannot be legally given; if improperly given, the license is null and void. The provision concerning the petition is a limitation of the power of the corporate authorities, and does not affect merely the proceedings of the authorities in granting licenses to sell intoxicating liquors, but the jurisdiction of the authorities to. act. In City of Eureka v. Davis, 21 Kas. 578, we held that the list prescribed by ch. 86, Comp. Laws of 1879, was conclusive of the number of adults, owing to the legislative provision to that effect. In this case, the list is absent, or at least was insufficient.
Under the statute and the ordinance, it therefore was the duty of the city council to have ascertained, by a census or otherwise, that the requisite number of adult residents had in fact signed the petition, before acting in the matter. As the power to license depended upon the petition of a majority, the want of such a majority makes the action of the council void. In fact, the council seems to have acted very hastily. The record shows that a call was signed by a majority of the council on August 23,1879, for a council meeting that evening; that a meeting was held in pursuance to the call, and on the presentation of the petition of Welsford, a dramshop license was ordered to issue at once. Under the.circumstances, we are of the opinion that the case stands before us as if no license had been granted. Therefore, the defendant very properly refused to sign the paper purporting to authorize the plaintiff to carry on a dramshop. (State v. Young, 17 Kas. 414; Insurance Co. v. State, 9 Kas. 210; City of Eureka v. Davis, 21 Kas. 560; Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kas. 129; Dillon on Mun. Corp., §639; Bouldin v. City of Baltimore, 15 Md. 13.)
Judgment will be entered for the defendant for all costs.
Valentine, J.: I concur in the result reached by the Chief Justice.
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The opinion of the court was delivered by
Horton, C. J.:
The briefs in this case are of little value, as they assume § 135, ch. 34, Laws 1876, to be-in force, whereas that section was repealed by Laws of 1879, ch. 43, §4, which took effect March 15,1879. Sec. 127 of ch. 34, Laws 1876, as amended by § 1, ch. 41, Laws 1879, however, provides that any owner may at any time before the execution of a tax deed redeem any land by paying to the treasurer of the county where such land is sold, for the use of the purchaser, the amount for which the land was sold, and all subsequent taxes and charges thereon, with interest at the rate of twenty-four per,cent, per annum, on the amount of the purchase-money from the date of sale, and the same rate on all subsequent taxes paid thereon. Under this provision of the statute, the ■court rendered the right judgment, but erroneously decided that plaintiff was compelled to pay fifty per cent, interest per annum, in order to redeem his land. At the time the tender was made, the rate of interest was only twenty-four per ■cent, per annum. Notwithstanding the sale of the premises for taxes occurred in 1876, prior to the amendment of 1879, the county can only collect the interest prescribed by the act of 1879, as the county has no such vested right by buying the land at tax sale, as denies to the legislature the power to change the rate of interest or costs of redemption. Counsel contend that §127 is only applicable to purchasers of tax titles, and that a county is not a purchaser within the law, and refers to Guittard Tp. v. Comm’rs Marshall Co., 4 Kas. 388, as decisive. While there is a marked distinction in the tax laws as to the rights and duties of individuals purchasing lands at tax sales, and those of counties, under the same circumstances, yet in a general sense the law recognizes ■a county as a purchaser at a tax sale.' Thus, § 117 provides: “When any land or town lots shall at any tax sale be bid off by the county treasurer for the county, it shall be the duty of the county treasurer to enter the same on the book of tax sales, in the same manner as though such land or town lots were sold to other purchasers.” The main difficulty in this case is, as to the date from which interest is to be calculated on the taxes subsequent to day pf sale. Sec. 127 prescribes that all subsequent taxes shall bear interest at the rate of -twenty-four per cent, per annum; on all taxes paid and indorsed on the certificate. As the county pays no taxes and •obtains no certificate, there can be no indorsement on the certificate, so long as the property remains unsold to other parties. In view of the reason and spirit of the law relating to the redemption of lands from taxes, we think that where the •county bids in the lands, and no sale has afterward been made, or the certificate assigned, the interest to be paid by the redemptioner on the taxes, subsequent to the sale, dates from the entry of such taxes and charges in the book of tax sales. Reasons of public policy seem to necessitate such construction. Such certainly must have been the intention of the law-makers, although inapt language has been used. If the counsel be right in the argument that § 127 only applies to speculators in tax titles, there is no section of the statute under which land-owners can redeem their property when it has been bid off by the county, and remains unsold, except §§1 and 2, ch. 43, Laws 1879, and these sections apply only to lands which are unredeemed for three or more years from •the date of the sale to the county.
The judgment of the district court will therefore be affirmed.
All the Justices concurring.
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The opinion of'the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by the heirs of Franklin Brady, deceased, to' recover certain lands which had formerly belonged to Brady, but which had subsequently been sold and conveyed by Brady’s administrator to the present defendants. The defendants have been in possession of a portion of the land since 1871, under an administrator’s deed, recorded August 24, 1871, and of the other portion thereof since 1872, under another administrator’s deed, recorded August 19,1872. The plaintiffs claim that said sale and conveyance are void for various reasons, which we shall now proceed to consider.
I. The plaintiffs claim that the appointment of said administrator was void, and they urge several reasons therefor, none of which, however, are sufficient, and none of which require any consideration in detail. That Brady was an inhabitant of Allen county, and died intestate, leaving an estate to be settled, are undisputed facts, and these facts are sufficient to give the probate court of Allen county jurisdiction to make the appointment. Whether the probate court adopted the right procedure or not in ascertaining these facts, or in making the appointment, or whether the court appointed the right person or not, are wholly immaterial questions in this controversy. These questions cannot be raised in the collateral manner in which the plaintiffs now seek to raise them. (Taylor v. Hosick, 13 Kas. 518.) The statute does not anywhere prescribe how the jurisdictional facts shall be ascertained; hence the probate court may ascertain them as best it can; and if it ascertain them correctly, that is all that is required. All that is really necessary is, that the jurisdictional facts shall exist as facts; and how the court ascertains them is wholly immaterial. And when the court ascertains these facts and makes the appointment, the letters of administration are themselves prima fade evidence of such facts. It has already been held by this court that the grant of the letters was prima fade evidence of the death of the person on whose estate they were granted. (Seibert v. True, 8 Kas. 52.) In fact, letters of administration, not void upon their face, .are always prima fade valid. They will prove prima fade all facts necessary to be proved in order to make them valid. Now there were no facts proved in this case (except the use of the words “in vacation” in one'place as hereinafter mentioned) having the slightest tendency to show that these letters were invalid. On the contrary, all the facts (with said one exception) tended to show that they were valid. It is said, however, that the probate court did not make the appointment, but that the appointment was made by the probate judge. The record, however, of the appointment shows beyond all doubt that the appointment was made_by the probate court. In every instance the record of such appointment uses the word “court,” and does not use the word “judge.” At the top of the record, however, the words “in vacation,” as well as the words “ probate court,” are used. This, however, merely shows that the appointment was not made at a “regular term ” of the probate court. Section 3 of the act respecting probate courts provides for holding four “regular terms” of the probate court each year, and also provides that “the probate court shall, at all times, be considered open for the granting of letters testamentary and of administration.” (Comp. Laws of 1879, p. 326.) The probate court in Kansas consists of one single judge, and of no other person. So when such judge is present, the whole court is present. This appointment was evidently made by the probate court, but not at a regular term. And here we would say, once for all, that everything that was required to be done in this case before or by the probate court, as a court, was so done and so shown to be done, although in some of the papers made out by the administrator, the administrator speaks of something being •done by the “probate judge,” instead of by the “probate court.” But when the administrator says that he filed a paper in “the office of probate judge,” or that a certain matter was to be heard at “the office of the probate judge,” it can hardly be said that he there used incorrect language, although the paper was in fact filed for the use of the probate court, and the matter was in fact to be heard by the probate court.
II. The notice given by the administrator of the sale of said land closes as follows: “ The said lands are offered for sale, in pursuance of an order of sale of the probate court of said county, the same being necessary to pay the debts of said estate. Terms made known on day of sale.” Whether the terms of sale were in fact made known on the day of sale or not, is not shown, but probably they were; and the property seems to have sold at a fair price, and for cash. At least, no one complained of the sale, and it was confirmed by the probate court. The only objection to the above notice is, that it does not state the terms of the sale. This was an irregularity, (Comp. Laws of 1879, p. 425, §129,) but we do not think that the sale should be held to be absolutely void on account thereof. If any harm resulted therefrom, the party injured should have resisted the confirmation of the sale, and should have moved to set aside the sale, or should have commenced some proceeding whereby equity could have been done to the purchaser, who paid his money in good faith, as well as to the other party. Probably, however, no harm was done by this irregularity, and no court of equity would have set the sale aside.
III. The plaintiffs claim that thé administrator’s deed was and is void, and this claim is made upon the ground that the administrator in drawing the deed used the words “ probate judge” in every instance, where he should have used the words “probate court.” Is this mistake of the administrator fatal? As before stated, the probate court in Kansas consists of one single judge alone, and this judge is the probate judge. The probate judge, whether acting as a judge or as a court, is his own clerk, and has no sheriff, bailiff or other officer connected with his court. (Const., art. 3, §8.) He holds four regular terms of the probate court each year, but his court is always open for the granting of letters testamentary and of administration, and it is always open for “the transaction of such other business as is not required by law to be transacted in term time,” and the probate judge has the “power to hold as many special or adjourned terms [of the court] as the business thereof may require,” (Comp. Laws of 1879, p.326, §3,) and these special or adjourned terms may be held without giving any previous notice to any person — that is, while special business may require a notice to be given to the parties interested, yet no notice is required to enable the court to hold a special or adjourned term of the court. Whenever the judge is present, the whole court is present, clerk and all, and he may hold a special term of the court if he sees proper. This has reference to the law as it existed prior to February 22, 1872. Since that time the court has always been open (except certain Sundays) for all business which could come before it. (Laws of 1872, p.266; Comp. Laws of 1879, p.326, §6.)
There were two administrator’s deeds in the present case, one of which was executed August 22, 1871, and the other was executed August 19, 1872. All the proceedings mentioned in the second deed were had after said law of 1872 took effect, and the proceedings mentioned in the other deed, before. With regard to the settlement of decedents’ estates, and in probate matters, the phrases “probate judge” and “probate court” are nearly synonymous; the probate judge is nearly always the probate court, and the probate court is always the probate judge. There are very few cases in the settlement of decedents’ estates where the probate judge can act merely as a probate judge. In nearly all cases he must act as a court. The plaintiffs have not pointed out a single instance where the probate judge can act in the settlement of decedents’ estates, or in probate matters as merely a probate judge. From the foregoing, it will be seen that it would be almost impossible that any person could be misled by the use of the words “probate judge,” instead of “ probate court,” in said administrator’s deeds. We think the deeds are valid. The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
In 1861, Thomas E. Tutt, Dent G. Tutt, and John F. Baker, had a claim against Wilkins T. Wheatly and Thomas F. Thatcher Tor money due, which claim they have ever since been trying to enforce. Portions of the litigation have been, to this court nine times, including the two cases which we now have under consideration. (See Tutt v. Ferguson, 13 Kas. 52; Scroggs v. Tutt, 20 Kas. 271.) The two cases which we now have under consideration are as follows:
First, A petition in error by Margaret E. Scroggs, plaintiff in error, as. administratrix of the estate of James A. ¡Cruise, deceased, and others, against said Tutts and Baker, defendants in error, to reverse an order of the district court reviving a certain judgment against Mrs. Scroggs, as such administratrix, which judgment had previously been rendered in favor of -said Tutts and Baker, and against Pembroke S. Ferguson, James S. Cruise, and others, in the lifetime of said 'Cruise, on the official bond of said Ferguson, as the sheriff of Wyandotte county.
Second, A petition in error by Tutts and Baker, making Mrs. Scroggs defendant in error, to reverse a judgment of the district court affirming an order of the probate court refusing to allow or classify said judgment (rendered against Ferguson, Cruise and others,) as a legal claim against the estate of said James A. Cruise, deceased.
We shall consider these two cases together. The facts, so far as it is necessary to state them, are as follows:
On June 19, 1869, a judgment was rendered in the district court of Wyandotte county, in favor of Tutts .and Baker, and against Ferguson, Cruise and others, on the said official bond of Ferguson, for the sum of. $2,350 and costs. In December, 1871, the collection and enforcement of this-judgment was restrained by injunction. On May 23,1873, Cruise died intestate. On May 26, 1873, his widow, Mrs. Cruise, (now Mrs. Scroggs,) was appointed administratrix of his estate. Mrs. Cruise immediately accepted the. trust, and qualified by giving bond and taking the required oath, and caused notice of her appointment to be duly published for three consecutive weeks in a weekly newspaper, published and of general cir culation in said county of Wyandotte, by having the notice-inserted- in said newspaper on May 29th, and June 5th and 12th, 1873. In July, 1873, she was made a party to said injunction proceeding. In April, 1875, said injunction was-dissolved. Very soon afterward an execution was issued on the judgment, and from that time up to October 19, 1875,. there was collected on said judgment, exclusive of costs,, about the sum of $2,277.45. On September 13, 1875, said judgment of Tutts and Baker against Ferguson, Cruise and-others, was filed in the office of the probate court of Wyandotte county for classification, and was put in the seventh' class by the probate court. This judgment was never paid. On May 12, 1876, suit was commenced on the bond of the administratrix against her and her sureties, which suit was based on her failure to pay said judgment in accordance with said classification. On October 20, 1876, final distribution of the-personal assets of the estate was ordered by the probate court, and made by the administratrix. On November 10, 1876,. said classification of said judgment was set aside by the probate court, and the Tutts and Baker appealed to the district court. In December, 1876, judgment was rendered by the district court on said administratrix’s bond in favor of Tutts and Baker and against Mrs. Scroggs (formerly Mrs. Cruise)' and her.sureties for the sum of $1,058 and costs, and said appeal from the probate court was determined favorably toTutts and Baker. Afterward the case was taken to the supreme court on petition in error, and the supreme court, at its January term, 1878, reversed said judgment of the district court. (Scroggs v. Tutt, 20 Kas. 271.) On June 19, 1878, Tutts and Baker made a motion in the district court of Wyandotte county to revive said judgment against Mrs. Scroggs as administratrix; and on July 12, 1878, the court-sustained the motion, finding that there was still due on the-judgment the sum of $1,144. Mrs. Scroggs excepted, and. also moved for a new trial, which motion was overruled,, and she again excepted, and then brought the case to the supreme court for review.
This is the first of said two cases which we now have under consideration. The additional facts necessary to be stated for the consideration of the other case are as follows:
On August 7, 1878, the Tutts and Baker served upon Mrs. Scroggs a notice in writing of their claim, and the time-for hearing the same in the probate court, etc., as required by §§ 84 and 91 of the executors’ and administrators’ act, (Comp. Laws of 1879, pp. 420, 421), for the purpose of duly exhibiting their claim as required by said § 84, and of enabling them to afterward establish their claim, as required by said § 91, and of having the same allowed and classified by the probate court. On August 10, 1878, the parties filed their pleadings, and the case was heard by the probate court; and on August 26, 1878, the court decided the same against the Tutts and Baker — refusing to allow or classify their claim, or any part thereof. ■ On August 28, 1878, the Tutts and Baker appealed their case to the district court. On December 16,. 1878, the case was heard in the district court, and the decision of the probate court was affirmed in every particular. The Tutts and Baker then moved for a new trial, which motion was overruled, and then they brought the case to this-court for review, and this is the second of said two cases now pending in this court.
Mrs. Scroggs, whom we shall hereafter call the defendant,, claims that the, court below erred in reviving said judgment-against her; while the plaintiffs, of course, claim the reverse. And the plaintiffs claim that the court below erred in affirming the decision of the probate court, refusing to allow or classify their said claim founded on said judgment; while the defendant, on the contrary, claims that the court below did nqt so err. The defendant, in support of her views, contends as follows: Up to July 12, 1878 (when said judgment was-revived against her), there was no judgment in favor of the plaintiffs and against her as administratrix or otherwise, or against the estate. She claims that up to that time said judgment against Ferguson, Cruise and others (which does not on its face purport to be a judgment against her or against the estate,) was no judgment at all as against her or the estate, but was merely a demand against her and the estate, which demand could be converted into a judgment against her or the estate only by a l’evivor of the judgment as against her and the estate, or by an action thereon against her, either in the probate court or in the district court. And according to the decision made in the case of Scroggs v. Tutt, 20 Kas. 271, she must be right; for, if said judgment were a judgment against her or against the estate, the mere filing of the same in the probate court (as the plaintiffs in this case did, on September 13, 1875,) would be sufficient under §§ 100 and 101 of the executors’ and administrators’ act, to authorize a classification and payment of such judgment. But this court held in that case that said filing was not sufficient to authorize .•any such thing; that in fact it did not amount to anything in law. 'There are many reasons why a judgment against a deceased person should not be considered a judgment against his estate, until it is revived against his administrator, but it is not necessary now to state them. It is sufficient now to rely entirely upon the authority of said case of Scroggs v. Tutt, ante. Of course, a judgment against a deceased person is a demand of a higher character than many other demands are, for it is a lien upon all his real estate that was subject to execution at the time of his death, but still it is only a demand, and must be established against his administrator like other demands, either by revivor or by a suit in some competent court, before it cau be enforced.
The defendant also claims that on June 19,1878, (the- time when said motion was made to revive said judgment,) all proceedings to enforce the payment of said claimwere barred by certain statutes of limitation; that the proceeding to revive .said judgment was barred by §433, in connection with §439, of the code of civil procedure; that §81 of the executors’ and administrators’ act barred all proceedings in the probate ■court for the enforcement of said claim, and that § 106 of said act barred all proceedings in all courts for its enforcement. The defendant makes some other claims, not necessary to be stated.
For the purposes of this case, we shall assume that-no statute of limitation commenced to run against the plaintiffs’ claim until after said injunction was dissolved, which was in April, 1875. The defendant claims that certain statutes commenced to run earlier, while the plaintiffs claim that no statute has ever so run as to bar their claim. Is said claim' barred? More than three years elapsed after said injunction was dissolved, and before the plaintiffs took any steps to revive their judgment or to exhibit it, or to establish it as a demand against the said estate; and, therefore, it would seem that said claim was barred, just as the defendant claims that it was. But the plaintiffs claim that the said statutes did not bar their claim for the following'reasons: 1. A certified transcript of said judgment was filed in the probate court, and classified by that court on September 13, 1875; 2. A suit was brought by the plaintiffs against Mrs. Seroggs- and her sureties on her administratrix’s bond, on May 12, 1876; 3. The plaintiffs failed in said suit, in January, 1878, “otherwise than upon the merits,” and they made said motion to revive said judgment on June 19, 1878, and they commenced their action in the probate court to establish their demand on said judgment on August 7, 1878 — both of which proceedings were commenced within less than one year after said failure in the suit on said administratrix’s bond — and therefore, under § 23 of the civil code, their claim is not barred; 4. Said §433 of the civil code, relating to revivor of actions, has no application to judgments.
We do not think that any of the foregoing reasons are sufficient. The filing of said transcript in the probate court was not the commencement of an action against the estate. (Scroggs v. Tutt, ante.) Nor was it even a legal exhibition of the plaintiffs’ claim against the estate. (See executors’ and ad ministers’ act, §§82 to 84.) Nor was it anything upon which the plaintiffs can found any right. Taking it and said classi fication together, and they both do not amount to anything in law, as we have already stated. Said suit against Mrs. Scroggs and her sureties, as individuals, and as the obligors of said administratrix’s bond, for an alleged breach of the bond, was not a suit against Mrs. Scroggs in her representative capacity as administratrix of her intestate’s estate; nor was it a suit against the estate in any form or manner; nor was it a suit on a demand against the estate; and the plaintiffs did not fail in said suit on the administratrix’s bond, “otherwise than upon the merits.” It was precisely “the merits” upon which they did fail. They failed because it was conclusively shown that no cause of action existed in favor of the plaintiffs, and against the defendants, Mrs. Scroggs and her sureties, on said administratrix’s bond. There had been no breach of the bond.
We think that said claim was barred by §81 of the executors’ and administrators’ act, which bars all demands against the estate which are not legally exhibited against the estate within three years after letters of administration are first granted. We also think that said claim was barred by § 106-of said last-mentioned act, which bars all claims against the estate which are not sued on within three years after the administrator’s bond is given; provided, however, that the administrator gives proper notice of his appointment, as was done in this case. (Hanson v. Towle, 19 Kas. 273; Clawson v. McCune, 20 Kas. 337; see also Collamore v. Wilder, 19 Kas. 67.) Said notice was duly given, in accordance with § 29 of the executors’ and administrators’ act.
Perhaps it is hardly necessary for us to consider the statutes relating to the revivor of judgments; for, as we have already seen, the plaintiffs’ claim was barred by other statutes, to wit, said §§ 81 and 106, before said motion to revive was made. We shall, however, offer a few suggestions relating to the revivor of judgments. Sec. 433 of the civil code reads as follows:
“An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.”
Section 439 of the civil code reads as follows:
“ If either or both parties die after judgment and before satisfaction thereof, their representatives,-real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered and execution awarded as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.”
According to the above statutes, where a year elapses within which an action might he revived against an administrator, and it is not revived, it then requires the consent of the administrator to authorize its revivor; and a judgment can be revived only “ in the same manner as is prescribed for reviving actions.” Therefore, where a year elapses within which a judgment might be revived, and it is not revived, it will then (the same as in cases of revivors of actions) require the consent of the administrator to authorize its revivor. The proceeding to revive an action and the proceeding to revive a judgment are substantially the same; each must correspond to the same formula. Hence, where an action ■cannot be revived without the consent of the administrator, neither can a judgment. It is seldom necessary, however, to revive a judgment. Where the judgment has been executed or satisfied in the lifetime of the deceased, it is certainly unnecessary; for the death of a party can never disturb rights already vested in others. And even where the judgment has not been executed or satisfied, if it is a money judgment, and the estate is solvent, there can be but little necessity for its revivor, for the judgment creditor has the power to enforce the payment of his money as well without as with revivor. He may present his claim and have it established at any time within three years, and .then enforce its payment, although he may never have his judgment revived. But it may be said that by failing to revive his judgment, he loses his judgment lien. This is true; but if the estate is solvent, it makes but little difference. But if, for any reason, he wishes to preserve his lien, he should be required to revive his judgment within one year. There can be no hardship in this; while if he is allowed to revive his judgment at any remote and indefinite period in the future, it might work immense hardship. All parties are interested in knowing at an early period the exact financial condition of the estate. And for this reason all parties are required to exhibit their claims to the administrator, and are encouraged to do so at an early period of time. Advantages are given to those who exhibit their claims within the first year. Claims exhibited within the first year are first paid, and are sometimes paid while those exhibited afterward may not be paid at all. (See executors’ and adminisistrators’ act, § 80, and §§ 102 to 104.) And the statutes in this regard do not seem to make any exception in favor of judgment-lien holders. Judgment-lien holders, like others, must exhibit their claims by revivor or otherwise within a year, or they lose their priority of lien in favor of others who have been more vigilant in exhibiting and establishing their claims; and the law nowhere encourages procrastination and delay. If a judgment creditor, while the judgment debtor is living, fails for one year to have an execution issued and levied, he loses his priority of lien as against all other judgment creditors of the same judgment debtor. (Civil Code, § 468.)
We think that a judgment cannot be revived against an administrator after a year has elapsed within which it could be revived, except with the consent of the administrator, and that the rule is a reasonable one. And as the court below in the present case permitted such a revivor after a year had elasped, without the consent and against the will of the administratrix, we think the court below erred.
The judgment of the court below in the case of Scroggs and others against Tutt and others will be reversed, and the judgment in the case of Tutt and others against Scroggs will be affirmed.
All the Justices concurring.
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The opinion of the court was 'delivered by
Valentine, J.:
This was an action brought by the National Land Company against the board of county commissioners of -Dickinson county to recover for money paid into the county treasury of that county on five separate tax-sale certificates, all of which tax-sale certificates were illegal and void, because the taxes upon which they were founded were-illegal and void. The case was tried in the court below by a. jury, and the court below, after all the evidence was introduced, gave a general instruction to the jury, charging them’ to find for the plaintiff in the sum of $1,232.09, the amount claimed by the plaintiff in its petition; and the jury SO' found — rendering a general verdict to that effect.
The defendant then moved the court for a new trial, upon the grounds that the verdict was not sustained by sufficient evidence, and was contrary to law, and for error of law occurring at the trial, and excepted to. The court overruled the motion, and the defendant, as plaintiff in error, now brings the case to this court for review.
The only questions necessary to be determined are as follows: 1. Did the court below err in giving said instruction ? 2. Is the verdict sustained by sufficient evidence? These two questions may be reduced to one, as follows: Is the verdict the only proper one that could have been rendered in the case upon the evidence introduced? And this question depends solely upon this other question: Was the plaintiff below (which held said tax-sale certificates, apparently as the assignee thereof,) in fact and in law the assignee thereof, or was the plaintiff only a tax-payer or a redemptioner ? For the plaintiff undoubtedly had the right to recover under § 120 of the tax law of 1868, (Gen. Stat., p. 1058: for the present law, see Comp. Laws of 1879, p. 968, § 145,) unless it was in law a mere tax-payer or redemptioner.
The facts of the case are substantially as follows: The lands for which said tax-sale certificates were issued belonged to the United States, but had previously been granted by an act of congress, upon certain conditions, to the Kansas Pacific railway company. These conditions had not yet been complied with or fulfilled when the lauds were taxed; and hence, as held by the supreme court of the United States, in the cases of Culp and Prescott, (K. P. Rly. Co. v. Culp and Prescott, 9 Kas. 38, et seq.; Railway Co. v. Prescott, 16 Wallace, 603,) the lands still remained the property of the United States, and were not taxable, and the taxes levied upon them were illegal and void. The railway company had contracted to sell a large portion of these lands to the National Land Company, the land company agreeing to pay all taxes that might be legally assessed or levied upon them. A large portion of these lands were situated in Dickinson county, and notwithstanding the fact that they were not taxable, (as held by the supreme court of the United States,) still the taxing officers of Dickinson county assessed and levied upon them all.the various taxes which were assessed or levied upon any •of the taxable lands situated within that county. No one paying these taxes, the lands were in due time offered for sale for the same, and no one bidding for the lands, they were ■struck off to Dickinson county for the taxes, and thereby Dickinson county became the purchaser of these lands for the taxes levied upon them. We must presume as against Dickinson county, the defendant in this action, that it was a bona fide purchaser. In fact, it does not deny this. As to a portion of these lands sold to Dickinson county for the taxes, Charles B. Lamborn, the agent of the land company, paid into the county treasury of Dickinson county the amount required to purchase the tax-sale certificate, (the money belonging to the land company,) and purchased of and from the •county the tax-sale certificates, and had them duly assigned to him. Afterward, when it was discovered by all parties (and the courts) that the taxes were illegal, and after Lam-born had made a proper demand (as prescribed by said § 120 •of the tax law) for a return of the money paid on said tax-.sale certificates, he commenced an action in the federal courts against the county commissioners to recover back said money. But the supreme court of the United States held that he •could not maintain the action. (Lamborn v. Co. Comm’rs, 97 U. S. 181.) As to another portion of said lands sold to Dickinson county for the taxes, (and the portion thereof now involved in this action,) C. J. Richards, on June 3, 1870, purchased the tax-sale certificates, and had them duly assigned to him. He was a bona fide purchaser of the tax-sale certificate, and a bona fide assignee of the county, having no connection whatever with either the railway company or the land company. This is admitted by all parties. Richards afterward paid the taxes levied on the lands for the year 1870, and afterward, on January 8, 1872, sold and assigned said tax-sale certificates to Lamborn, who purchased them for and in behalf of the National Land Company. Lamborn afterward paid the taxes levied on the lands for the years 1871 and 1872, and afterward, on December 18, 1874, assigned the tax-sale certificates to the National Land Company. All said taxes were illegal and void, for the reasons heretofore given. This present action is to recover back said money, paid by said Richards and said Lamborn into the county treasury, for and on account of said void tax-sale certificates. The action was commenced after discovery of the illegality of the taxes, and after due demand for a return of the money, the same as was done in the case of Lamborn v. The Commissioners, stated ante. If any portion of the money may be recovered back, it all may, for it was all paid by the parties in form as though they were procuring a valid-tax title, and if the statute covers any portion of it, it covers all — that is, if the plaintiff was a purchaser, or an assignee of a purchaser, of an incipient tax title, the statute covers all;. but if the plaintiff was merely a tax-payer or redemptioner, it does not cover any.
Can the plaintiff recover? That it cannot, at common law, is admitted; for it paid the money on said tax-sale certificates voluntarily, and with a full knowledge of all the facts. (Railroad Co. v. Commissioners, 98 U. S. 541, and cases there cited.) And it is also admitted that, if the plaintiff was a mere tax-payer or redemptioner, it cannot recover under the statute, for the statute does not apply to mere tax-payers or redemptioners. But it is claimed by the plaintiff that it is not a mere tax-payer or redemptioner, but that it is the assignee and holder of tax-sale certificates. Prima faeie, of course, it is the assignee and holder of tax-sale certificates, and prima faeie, it has the right to recover under the statutes. But the defendant (the county) claims that the plaintiff is not in law the assignee and holder of tax-sale certificates; that it is not what it appears to be, and that the county may show this by evidence aliunde-, that it may show, that although the plaintiff appears on the face of the papers to be a tax-title holder, yet that it is nothing more than a mere tax-payer or redemptioner. And the defendant claims that the decision of the supreme court of the United States in the case of Lamborn v. The County Comm’rs, (97 U. S. 181,) is decisive of this question and of this whole case. The plaintiff, however, claims that there is a broad distinction between the Lamborn case and this case, and its counsel make a very able and ingenious argument to show such distinction. The only difference, however, as pointed out to us, isas follows: In the Lamborn case, Lamborn purchased the tax-sale certificates directly from the county; while in this case he purchased them from Richards, who was a bona fide purchaser from the county. Is this difference material ? The material question in this case is whether the holder of the tax-sale certificate is a purchaser or the assignee of a purchaser within the meaning of said §120 of the tax law, or is he merely a tax-payer or a redemptioner of the lands ? The supreme court of the United States held in the case before them that Lamborn was not a purchaser within the meaning of said section, and also necessarily held, from the result of their decision, that he was not the assignee of such a purchaser. In its opinion the court uses the following language, to wit:
“ But we are of opinion that the plaintiff cannot be regarded as a purchaser of the lands. The moneys were paid by him on behalf of the National Land Company under the belief that the taxes were legal and valid, and it is not only apparent from the facts found that he made the payment in 1872 by way of redeeming the lands, but if it did not so expressly appear, it ought to be presumed, that he paid the money for that purpose. As between the land company and the Kansas Pacific railway company (which had not yet been paid for,the lands) it was the duty of the former to pay all legal taxes and assessments imposed thereon. The plaintiff, as the agent of the land company, could not acquire a tax title without being guilty of bad faith to the railway company. Taxes on lands in Kansas are assessed against the lands themselves, and a tax sale (when- valid) confers an absolute title. Such a sale, had it been valid in this case, would have given the land company a full and valid title, adverse to that of the railway company; and would have defeated their lien upon the same, for the purchase-money.” (97 U. S. 184.)
Of course, neither the National Land Company nor any of its agents could get a valid tax title as against the railway company, to whom it owed the legal and moral duty of paying all taxes that might be legally imposed upon the lands; and hence, as against the railway company, neither the land company nor any of its agents could become the bona fide purchaser or holder of a tax-sale certificate. And it would make no difference whether the purchase was made directly from the county, or was made from some assignee of the county. The disability would attach to the purchaser (the land company) or its agent, and not to the seller (the county or Richards), and it would attach to the purchaser as against the Kansas Pacific railway company, to whom the purchaser owed the duty, and not as against some, other person or corporation to whom the purchaser owed no duty. And in either case, whether the purchase was made directly from the county, or indirectly from some assignee of the county, the transaction would be held and conclusively presumed, as against the railway company, to be a redemption of the land from the taxes, or a payment of the taxes, and not a purchase of a tax-sale certificate, or of a tax title. But why should this beneficent and equitable presumption be extended farther than to benefit the person or corporation to whom the purchaser owed a duty? Why should it be extended for the mere purpose of benefiting a party who was at the same time wrongfully attempting to impose an illegal tax upon the purchaser? Is-it equitable to transform what is in form and upon its face a purchase, into a redemption, merely for the purpose of benefiting the party committing the wrong — the county? We know of but one principle, legal or moral, human or divine, upon which such a thing might be done, and that is the divine principle, not en-forcible by human courts, but only by divine tribunals, which principle has been expressed in the following language, to wit: “Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you,-and persecute you.” (Matthew, ch. 5, v. 44.) Here the county wrongfully taxed these lands — so the United States supreme court says. (See Culp and Prescott cases, ante.) The county wrongfully purchased them for the taxes. And the county then wrongfully assigned the tax-sale certificates, and got the money of the assignee for them. Upon the face of the papers, the assignee is the purchaser of incipient tax titles; and upon the face of the papers the assignee may, under said § 120, recover back all money paid into the county treasury on said tax titles, or upon the tax-sale certificates. But the supreme court of the United States holds that the county, the wrongdoer, may introduce evidence to show that the assignee was under obligation — not to the county, but to a railway company— to pay the taxes, and not to pay these taxes, or any illegal taxes, but to pay only legal taxes; and then, from this fact, and possibly from the other fact (which the court permits the county to prove), that the assignee had contracted to purchase the lands from the railway company, presumes that the transaction was a payment of the taxes, or a redemption of the lands from the taxes, and not a purchase of the tax-sale certificates. That is, the supreme court holds that the county, the wrong-doer, may have what appears upon the face of the papers to- be incipient tax titles, changed or transformed, or “reformed” into payments of the taxes, or redemptions from the taxes, without the county first “doing equity,” by paying back to the holder of such papers the money which it (the county) received by virtue of such papers — issued not as tax receipts, nor as redemption certificates, but in the form of tax-sale certificates, and as creating incipient tax titles.
After the county has introduced evidence to show that the plaintiff was under obligation to the railway company or to some other corporation or person to pay the taxes, may the plaintiff then introduce evidence to show that it was not under any such obligation? May it show that the railway company released it from such obligation? May it show that it purchased said tax-sale certificates with the knowledge and consent of the railway company? May it show that-it purchased said tax-sale certificates, not for the purpose of getting a tax title as against the railway company, but as against some person claiming adversely to the railway company — some preemptor, or “homesteader” for instance; or some other railroad company or corporation or person ? Or may it show that it had doubts concerning the legality of the taxes, and simply purchased the tax-sale certificates, instead of paying the taxes and taking tax receipts, or redemption certificates, fo'r the purpose of recovering the money back under the statute, provided the taxes should be subsequently held to be illegal? Of course, the plaintiff was under no obligation to the county or to any one else to pay these taxes, for they were illegal; but even if'they had been legal, it would not have been under any obligation to the county, or to any other person or corporation, except the Kansas Pacific railway company, to pay them or to redeem the lands from them, in preference to purchasing the tax-sale certificates; for the county would receive just as much money in the one case as in the other, and the longer the county might have to wait in either case, the more money it would receive, and would be amply and richly paid for waiting; and it would make no difference to the county, or to any other person or corporation not interested in the lands who might eventually own the same, whether it should be the land company, or Lamborn, or Kichards, or the railway company, or any other corporation or person; nor how the owner might procure the title, whether by patent from the United States, or by deed from the patentee, or by deed from some one else, or by tax deed or sheriff’s deed, or otherwise. The county is interested only in getting the taxes, and not in the purpose of the payor in paying them. The county has no right to say that any person shall not procure a tax title to lands in which the county has no interest. The county is not interested in the ownership of the lands, nor in what obligations the tax-title purchaser might be under to others.
The writer of this opinion is inclined to think that the judgment of the court below should be affirmed, but his brethren differ with him, and therefore he yields to their judgment, as their opinion is supported by the decision of the supreme court of the United States in the case of Lamborn v. The County Commissioners, ante. The writer of this opinion believes that that decision of the supreme court of the United States is erroneous, and is inclined to think that this •court should not follow it, but his brethren overrule him. He has said all that he wishes to say in the foregoing opinion, and the foregoing opinion expresses his view. His brethren, however, do not agree with him in all that he has said. We might, however, here say that we all agree in thinking that there is no material distinction between this and the Lamborn •case; so that if we follow that case, it will dispose of this. As the decision of this case depends upon the construction of our •own statutes, we may or may not follow the decision of the supreme court of the United States, just as we think proper. In cases of .this kind, the supreme court of the United States should follow our decision. The chief justice believes that the- decision in that case is right, and that we ought to follow it. He believes that from the facts of this case it ought to be presumed that the plaintiff paid its money and procured the tax-sale certificates by way of redeeming the lands from the taxes, and not by way of purchasing tax titles or tax-sale certificates as contemplated by the statute.
The j udgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced before a justice of the peace, appealed to the district court, brought on petition in error to the supreme court, (Briggs v. Eggan, 17 Kas. 589,) reversed, and remanded to the district court, again tried in the district court, and again brought to the supreme court on petition in error. The last trial of the case was by the court, without a jury, and special findings both of law and fact were made, and judgment was rendered in favor of the defendants, Briggs & Watson, and against the plaintiff, John G. Eggan, for costs. The only pleading filed in this case, and upon which the case was tried, was a bill of particulars filed by the plaintiff, Eggan, in the justice’s court. This bill of particulars set forth the plaintiff’s cause of action, which was upon a written guaranty indorsed upon a promissory note. The bill of particulars gave a copy of the note and guaranty, and alleged their due execution, which note and guaranty are in words and figures as follows:
[Note.]
“$127.— On or before the first day of October, I promise to pay Briggs & Watson, or order, the sum of one hundred and twenty-seven dollars, for value received.
“Farm, April 22, 1870. D. M. Chapin.”
[Indorsement.]
“July 26,1870. — We, the undersigned, guarantee the payment of the within note. Brig-g-s & Watson.”
No affidavit was filed “denying the execution of such instrument, or the making of such indorsement,” and hence they must be taken as true without any proof thereof. (Justice’s Code, §84, Comp. Laws of 1879, p. 716; Alvey v. Wilson, 9 Kas. 405; Pears v. Wilson, ante, p. 343.) And all that, they will reasonably prove by way of inference, presumption or implication must also be taken as true,- unless the contrary is shown. Thus far we think counsel agree, but beyond this they differ.
Plaintiff’s counsel seem to claim that the defendants by their failure to file any affidavit as aforesaid, or any bill of particulars, admitted conclusively the whole of the plaintiff’s case; while the defendants’ counsel claim that the defendants by such failure admitted nothing conclusively, except “the execution of such instrument,” and “ the making of such indorsement-,” and that they admitted nothing further, even prima facie, except what this instrument and this indorsement would reasonably prove. We agree with counsel for the defendants. The failure to file a bill of particulars in a justice’s court admits nothing. (Ziegler v. Osborn, ante, p. 464.) And the failure to file an affidavit as above mentioned admits nothing, except the execution of a written instrument, the making of an indorsement thereon, or the existence of a partnership, when these things are set forth and alleged in the plaintiff’s bill of particulars. (See also Stanley v. Farmers' Bank, 17 Kas. 592, 596.)
The facts of this case as shown by the findings of the court below, and the evidence, are substantially as follows: That on April 22, 1870, D. M. Chapin, of Nemaha county, Kansas, executed and delivered to Briggs & Watson, of Muscotah, Kansas, the said promissory note for the sum of $127, payable on the first day of October, 1870; that before the maturity of the note, Briggs & Watson transferred the same to the firm of Briggs & Enoch, of Rockford, Illinois, and as a part of the same transaction, indorsed said note as follows:
“July 26,1870. — We, the undersigned, guarantee the payment of the within note. Briggs & Watson.”
That after the maturity of the note, sometime in the year 1871, Briggs & Enoch sent the note by express to the agent at Centraba, Nemaha county, Kansas, with directions to collect the same of Chapin, or turn over the note to some responsible attorney at law for collection; that one Baldwin was the express agent at Centraba, and received the note for the purpose of collection; that the note was past due at the time, and said agent, in accordance with his instructions, delivered the note-to one A. M. Flint, who was then an attorney at law at said place; that' the note was delivered for the purpose only that said Flint as such attorney should collect the same; that said Flint was, at said time and place, an attorney at law, and received said note for the purpose of collecting the same; that when Flint received the note for collection it was long past due, and he never received any direction, power, or authority whatever to sell or transfer said'note, but was directed as an attorney at law to collect the same from the maker thereof; that Flint had no title to said note, but only authority as an attorney at law to collect the money due thereon, and transmit the proceeds thereof to said Briggs & Enoch, the own ers of said note; that Flint, after.receiving the note for the purpose of collection only, attempted to sell the same, and did deliver it to the plaintiff on or about the 11th day of April, 1871, and as a consideration for such pretended sale, Flint took Eggan’s negotiable note, payable to Flint for-$130; that Flint also received from Eggan a chattel mortgage on a lot of farming traps and machinery, to secure the payment of Eggan’s note to him; that the plaintiff John G. Eggan, before and at the time he claims to have purchased said note from Flint, well knew and had full knowledge that Flint was an attorney at law, and had said note in his possession for the purpose of collection only, and well knew that Flint had no title whatever to said note, or the guaranty thereon; that the farming traps mortgaged by plaintiff to Flint to secure his (plaintiff’s) note to Flint were afterward delivered to Flint and held by him; that the firm of Briggs & Enoch never knew of said pretended sale of said note by Flint to plaintiff, until after the commencement of this suit, and never at any time or in any manner ratified or adopted any act of Flint, connected with said pretended sale, and never received any proceeds or benefits therefrom, or by reason thereof; that the firm of Briggs- & Watson never made any contract of guaranty of payment, or any guaranty whatever to plaintiff* of said note,' and never executed or delivered any guaranty or indorsement to plaintiff, and never transferred or delivered said note to plaintiff; that the said firm of Briggs & Enoch claims the payment of said note by reason of the guaranty thereon from said' firm of Briggs & Watson; that the defendants never promised to become bound to plaintiff for the payment of said note, and never assumed the payment thereof to him; that no payments have been made on said note or on said contract of guaranty, and at the maturity of the note, the maker thereof, D. M. Chapin, was wholly insolvent
As conclusions of law upon the findings of fact and evidence on the trial of said case, the court found that the plaintiff was not the owner of said note, and had no right to reoover from the defendants by reason of the guaranty thereon; that the plaintiff never acquired any title to said note, or any guaranty thereon, and wholly failed to show any right to recover in said action; that the firm of Briggs & Enoch, ever since July 26, 1870, has been, and now is, the lawful owner and holder of said note, and the indorsements and guaranty thereon; that Flint had no right, power or authority to sell, transfer or deliver said note or indorsements thereon to plaintiff; and that the defendants were entitled to judgment against plaintiff’ for all costs in said action in their behalf paid out and expended; and judgment was given and entered for sucli costs. No exceptions were taken to any one of said findings of fact or conclusions of law; but a motion was made, however, for a new trial upon various grounds, including alleged errors in making said findings and conclusions.
We think, however, that the findings and conclusions were correct, and that they sustain the judgment rendered upon them. Indeed, we do not think that the court below erred in any particular. Under the pleadings, we think the defendants had the right to show that the plaintiff’did not own said promissory note, and that he did not have any right to collect the same; and we think they did show it. Said promissory note, and the indorsement thereon, did not show that the plaintiff owned the note, or that he had any interest therein, or that he had any right to collect the same. They did not show who did own the note; hence, proof that Briggs & Enoch owned the note was not a contradiction of the terms of said note, or of said indorsement, but was perfectly in acr cordance therewith; and Briggs & Enoch did own the note, and not the plaintiff. The purchase of the note by the plaintiff after it was due, from a person that the plaintiff knew had no authority to sell it, but who had it merely for collection, could certainly give no property in it, or right to it, to the plaintiff. An attorney at law receiving a promissory note for collection has no authority to sell it. (See authorities cited by counsel for defendants, and also Hannon v. Houston, 18 Kas. 561; Marbourg v. Smith, 11 Kas. 554, 562.) And if he does sell it under such circumstances as existed in this case, the purchaser gets no title to it, or interest in it. We agree with counsel for plaintiff, that possession of a note, where the note itself and the indorsements thereon do not show who the owner is, is prima facie evidence that the person in possession is the owner, and has a good title to it; but where the note does not in fact belong to such person, such possession does not prevent the owner of the note, or the payer thereof, or any other person having an interest therein, from showing that the person in possession is not the owner of the note, and that he has no right, title or interest in it, or to it. And we do not suppose that counsel will claim that a person who has no interest in a note, and no authority from the owner concerning it, can collect the amount thereof, although he may in fact be in the actual possession thereof.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Per Curiam:
On April 8, 1878, the defendant in error Moore (plaintiff below) filed his petition in the district court •of Pawnee county against Jerry Toles and Geo. A. Eddy, to recover $125 on a forthcoming bond executed by W. H. Mitchell, Jerry Toles, Geo. A. Eddy, T. H. Edwards, and Nelson A. Adams, on the 8th day of December, 1877, in •certain actions then pending before a justice of the peace of Pawnee county against W. H. Mitchell, and in which actions ¡attachments had been issued and levied upon the goods and ■chattels of said Mitchell. N. E. Weaver and D. 8. Bill were .also made defendants, and filed a cross-petition, claiming judgment upon the bond for the sum of $472.50 and interest. •Summons was duly issued to the sheriff of Pawnee county, ¡and personal service made upon Jerry Toles. Summons was also issued to the sheriff of Leavenworth county, the said county being the residence of said Eddy, and he was person.ally served in that county on April 10, 1878. Upon the trial, which was had in October, 1878, to the court, a jury being waived, John A. Moore and Messrs. Weaver & Bill •dismissed their actions against Jerry Toles. The court filed findings of fact and its conclusions of law thereon, and rendered judgment against Eddy in favor of said Moore for $111.78, and in favor of Weaver & Bill for $462.52 and ■costs. The fact is found that the property taken upon attachment was not restored to the owner, although such owner, W. H. Mitchell, the principal upon the bond, expressly de manded restitution. The case of McGonigle v. Gordon, 11 Kas. 167, is decisive of this. “The law makes a distinction between a release of the property from attachment and the return thereof to the owner.” That the property was sold upon a certain execution and the plaintiff in error was interested in such execution, does not change the rule. This action was upon the bond. It must stand upon the bond, or not at all. The sole object for giving the bond failed, as the property was not restored; therefore, no recovery can be had upon it. (McGonigle v. Gordon, supra; Comp. Laws 1879, pp. 707, 710, §§ 33 and 52; Civil Code, § 213, p. 629, id.)
The judgment of the district court will be reversed, and the case remanded with directions to the district court to render judgment upon the findings of fact for costs in behalf of the plaintiff in error.
Brewer, J., not sitting.
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Per Curiam:
The appellant was convicted of murder in the second degree, in the district court of Linn county, and brings the case to this court on appeal. Various errors are alleged, but the material and important questions presented have already been passed upon by this court, and we therefore content ourselves with references to previous adjudications.
The information was sufficient. (Smith v. The State, 1 Kas. 365; The State v. Brown, 21 Kas. 38; The State v. Petty, 21 Kas. 54.) The charge of the court was correctly given as the law of the case. (Roy v. State, 2 Kas. 405; State v. Horne, 9 Kas. 120; State v. Potter, 13 Kas. 414; State v. Howard, 14 Kas. 173.)
A general assertion is made that § 8, ch. 31, Comp. Laws 1879, is unconstitutional, and void. No reasons are given nor •any argument presented in support of this view. Said section fixes the minimum penalty for those convicted of murder in the second degree, and the maximum penalty is fixed by § 291 of the same chapter. Secs. 8 and 291 are to be construed together. These sections are valid, and constitutional.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This case hinges on the constitutionality of article 17 of the code of criminal procedure. That article treats solely of the “custody and management of the estates of convicts,” and its constitutionality is challenged under §16 of art. 2 of the constitution, which provides that “ no bill shall contain more than one subject, which shall be clearly expressed in its title.” The act is entitled “An act to establish a code of criminal procedure,” and is divided into seventeen articles, each treating of separate matters. This challenged article provides for the appointment, by the probate court, of a trustee of the estate of a convict imprisoned in the penitentiary for a term less than life. Its various sections prescribe the manner of application, the appointment, the bond, the powers and duties of such trustee, etc. Now the contention is, that all this is no part of criminal procedure. It has nothing to-do with the prevention of or the prosecution for crime. It becomes operative and has life only when everything in the nature of criminal proceeding has culminated into sentence, and is essentially a civil proceeding for the custody and care of property pending a personal disability of the owner. The proceedings are not only civil in their nature, but are also committed to a civil rather than a criminal court, for as counsel say, “the probate court is one of the most innocent courts in the world.”
On the other hand, the argument is, that the title is general and broad; that the expression “criminal procedure” is broad enough to include, not merely every proceeding in the prosecution of crime, but any proceeding which is connected with, or directly caused by the crime, and which aims at the adjustment of rights disarranged by it. It is broader than the phrase, “proceedings in criminal cases;” it includes such proceedings, and all other proceedings which spring out from them. In other words, it compasses the whole law of proceeding and remedy 'which the face of crime necessitates. As a fact, our code of criminal procedure includes provisions disposing of the person of the convict after conviction (§§256 to 272); why not, with equal propriety, others disposing of his property? It includes provisions for the disposition of property alleged to have been stolen (§§303 to 309); why not the disposition of that belonging to the thief? It includes the matter of local jurisdiction of public offenses (§§20 to 29); statutes of limitation (§§30 to 34); provisions for the prevention (§§7 to 19), as well as for the prosecution of crime; the disposition of fines and penalties (§ 332); and is the care of the convict’s property any more outside the scope of the phrase “criminal procedure?” So far as the tribunal to which this jurisdiction is committed is concerned, that is immaterial. The validity of these provisions cannot turn upon the question whether the jurisdiction is committed to one court, or another. The legislature could have vested the jurisdiction in the criminal court; could, indeed, have provided that in the sentence itself should be entered an order naming a trustee to take charge of the convict’s property, pending his term ■of imprisonment, and that intrusting this administration to another tribunal in no manner changes the character of the proceeding.
While conceding the force of the argument against, we yield our assent to that supporting this article. Legislation is not to be pronounced unconstitutional, unless clearly so. Here no single section which might surreptitiously be inserted in a bill is challenged, but an entire article. It is an .article of long standing and'repeated enactment by the legislature, and under the same and even a narrower title it appears as art. 10 in ch. 129 of the laws of 1855, entitled “An act to regulate proceedings in criminal cases.” It is a part of the-act of 1859, which has the same title as the present act. It was reprinted in the compilation of 1862. It was reenacted in 1868, and is in the compilation of 1879. In other words, this article has stood from the very first legislation of the territory as a part of the chapter concerning criminal procedure — repeatedly before the legislature, and repeatedly reenacted; and this is the first time its validity has been challenged. Now if the purpose of this constitutional provision is to guard against surreptitious legislation, and not to thwart the considerate and intelligent expression of the legislative wish and will, is such purpose carried into effect by denying the validity of an article thus repeatedly presented for legislative consideration and repeatedly reenacted? Is it not moré just and fair to say that the legislature has used the title in the broadest sense, a sense broad enough to include the subject-matter of this article, and that it meant by the expression “criminal procedure” every proceeding resulting from crime, and not simply those for the prevention and punishment of crime? Nor is ours the only state, nor this the first time,-in which such a location has been given to this article. In Missouri, in the general statutes of 1866, it appears in a chapter with the title of “Practice and proceedings in criminal cases.” The breadth and comprehensiveness of a title, is a matter of legislative discretion. (Bowman v. Cockrill, 6 Kas. 335; Division of Howard Co., 15 Kas. 195.) The courts cannot modify a title, any more than they can change the body of the law. The title has to be construed even as the language of the act, and the courts may neither narrow nor enlarge the meaning which the legislature intended the title should have. Here is a title intrinsically broad and comprehensive. That no section has been surreptitiously introduced into the bill, is evident from the fact that the law with the title has been repeatedly considered and reenacted. Such an arrangement was not accidental, not by trick of any designing person, but the deliberate selection of the legislature. Evidently the legislature intended by this title, one whose scope was broad enough to include the article, and while there is a sense in which the article does not treat of criminal procedure, yet we must impute to the legislature an intent to use the title in á broader sense. No one can have been misled by this title; no legislature, at least no recent legislature, imposed upon by the introduction of this article. It was never surreptitiously passed. And while the constitutional provision is mandatory, yet it is to be liberally construed, and so as not to prevent or embarrass ordinary legislation.
We think the constitutionality of the article must be sustained; and there being no other substantial objection to the petition, the judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring.
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The opinion of the court-was delivered by
Horton, C. J.:
On the 21st of June, 1877, the Eagle chair company, claiming to exist as a corporation under the laws of Indiana, filed -its petition in the district court of Atchison county, to recover of Kelsey & Simpson $402.10, with interest, for certain chairs alleged to have been sold and delivered to defendants. On July 21st, 1877, the defendants filed their answer, admitting their partnership; second, denying indebtedness; third, alleging a contract with plaintiff, in July, 1876, a breach of same, and damages for the alleged breach. On the 28th of July, 1877, the plaintiff filed its reply to the answer, first denying allegations of new matter in the answer, and further setting up the facts of the transaction as claimed by plaintiff. On the 15th day of -June, 1878, plaintiff filed its motion to substitute A. W. Hester as plaintiff, alleging that since the commencement of the action the account sued on had been transferred to him. On the 22d day of June, 1878, the motion came on for hearing, and the court adjudged that the action be continued in the name of the plaintiff, for the use and benefit of A. W. Hester. On the 22d day of November, 1878, the case was tried before the court with a jury. The jury returned a verdict for the Eagle chair company for $455. On the same day, the defendants filed a motion to set aside the verdict, and for a new trial, setting up all the statutory grounds. On November 30th, 1878, plaintiff filed a motion for judgment upon the verdict returned by the jury. On the same day, the motions came on for hearing. The court overruled the motion for judgment, and sustained the motion for a new trial, but imposed as terms of the new trial the payment by the defendants of all costs which had then accrued. Plaintiff excepted, and brings the case here.
On the trial, the plaintiff introduced in evidence the articles of its incorporation. The purpose of this is unexplainable, as no issue was raised in the pleadings of the existence of the corporation, and such evidence was wholly immaterial. This testimony, however, called the attention of the court and of the defendants to a fatal point in the plaintiff’s case, which was before probably unknown — at least, up to that time had not been mentioned. These articles of incorporation proved that the charter of the company expired in July, 1877, and prior to the day of trial. The articles are dated July 15, 1872, and the company was to exist for a term of only five years. As the plaintiff had ceased to exist as a corporation during the pendency of the action, the trial court committed no error in refusing to enter judgment on the verdict, or in granting a new trial. If we assume that the law in Indiana is the same as that of the state of Kansas, the plaintiff had no legal corporate existence at the date of the trial and verdict, and the only competent authority to be substituted as plaintiff, if the account had not been assigned before the dissolution, would have been the officers and managers of the corporation. If we assume that the common law is in force in Indiana, then upon the expiration of the charter of the plaintiff it ceased to exist for any purpose. Krutz v. Paola Town Co., 20 Kas. 397; Krutz v. Paola Town Co., 22 Kas. 725; Merrill v. Bank, 31 Me. 57; Bank v. Wrenn, 11 Miss. (3 S. & M.) 791. True, no issue was made in the case concerning the right of the plaintiff to maintain the action until the non-existence of the plaintiff was shown by the testimony, yet if the plaintiff had no existence, or had ceased to exist after the institution of the suit, no verdict or judgment in its favor would have been any bar to subsequent proceedings in the interest of rightful parties. Therefore, we think the court, in its discretion and in the furtherance of justice, had the right to interfere even after the verdict. Perhaps the defendants ought to have applied for leave to amend their answer upon the first disclosure of the dissolution of the plaintiff, but as they were required to pay all the costs, they have suffered somewhat for their ignorance of the status of plaintiff and for their neglect. (Field v. Kinnear, 5 Kas. 233, 238; Anthony v. Eddy, 5 Kas. 127; Atyeo v. Kelsey, 13 Kas. 216; Germond v. Littleton, 22 Kas. 730; Condell v. Savings Bank, ante, p. 596.)
The order obtained by. counsel to have the case continued for the use and benefit of A. W. Hester avails nothing, as the petition was not amended so as to show his connection with the suit in the pleadings. (City of Atchison v. Twine, 9 Kas. 350.) If it be contended that the non-existence of the corporation is immaterial, as the action was being prosecuted for the benefit of the assignee, then the question of the' date of the transfer or assignment of the account becomes important, and is a fact upon which the defendants are entitled to take issue. If the assignment was made after the dissolution of the company, it may be of no value, perhaps void. If the assignment was made prior to the dissolution of the corporation, then A. W. Hester’s interest in the account and the date of the transfer ought to have been alleged. It would seem desirable, in view of the condition of the case, that all the pleadings be amended before another trial, and the parties should set forth the facts as they claim them to exist.
The order and judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The single question in this case is, Was the payee entitled to recover protest fees and damages? The law does not require that a promissory note remaining in the hands of the original payee shall be protested for non-payment, and neither notarial fees for protest, nor statutory damages, are recoverable, except in cases where the protest is legally necessary to fix the liability of some party to the note or bill. (German v. Ritchie, 9 Kas. 106; Woolley v. Van Volkenburgh, 16 Kas. 20.)
In the case at bar, the action was brought by the original payee; no averment was made in the petition that the note had ever passed out of the payee, or that any indorsement had ever been made thereon; and no allegation of any kind is set forth in the pleadings that a protest was necessary to fix the liability of any party to the note. The indorsements that appear to have been erased before the commencement of the action, of course cannot be taken into consideration. They do not count. Hence, the petition did not state facts sufficient to constitute any claim for protest fees, or protest ■damages, and the court committed error in admitting, against the objections of the makers of the note, testimony of transfers and indorsements.
The judgment of the district court will be modified by striking out the sum of $24.07, the costs of protest and protest damages, and the defendant in error will be adjudged to pay all the costs in this court.
All the Justices concurring.
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Per Curiam:
The judgment of the court below will be-affirmed, upon the authority of the following cases, to wit: Anthony v. Eddy, 5 Kas. 127, 133, 134, and cases there cited; Field v. Kinnear, 5 Kas. 233, 238, and cases there cited; Owen v. Owen, 9 Kas. 91; Atyeo v. Kelsey, 13 Kas. 212, 216; McCrum v. Corby, 15 Kas. 112; Bedell v. National Bank, 16 Kas. 130; Barrett v. Barnes, 17 Kas. 266. All these cases require that the judgment of the court below be affirmed; and it is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This action was originally brought by Frank Osborn, in a justice’s court, to recover of J.B. Ziegler the sum of $154.85, for money alleged to have been advanced by Osborn to Ziegler on the 16th day of April, 1877. Upon trial before the justice, judgment was rendered against Osborn, from which he appealed. At the October term of the district court the following order was-, on motion of Osborn, made in said case:
“Now, on the 31st day of October, 1878, this cause came on to be heard, on the motion of plaintiff, for leave to file an .amended petition herein and a continuance of said cause; and it is ordered and adjudged that said plaintiff have leave to file an amended petition within thirty days from the rising of this court; that the defendant have thirty days thereafter to answer — the plaintiff ten days to reply.”
The court adjourned on the 4th day of November, 1878. On the 2d day of December, 1878, the plaintiff filed his .amended petition, which in substance alleges: That on the 3d day of March, 1875, Ziegler, being an attorney at law, .and an attorney for one I. N. Fletcher, was desirous of bringing an action of replevin in favor of Fletcher against Reid arid Wilson, and requested Osborn to become a surety on the undertaking necessary, to be given, in order to commence said action; that Osborn, at the request of said Ziegler, became surety; that judgment was rendered against said Fletcher in said action, execution duly issued and returned unsatisfied; that on November 9, 1875, after due notice, Osborn was adjudged to pay the costs, and on November 20, 1877, execution was issued upon said judgment against him, and on or about the 27th day of November, 1877, he paid the amount of said execution, to wit, the sum of $154.85.; that although requested, Ziegler has failed to pay him the amount, although he promised to save him harmless.
On the 20th day of March, 1879, Ziegler moved to strike the amended petition from the files for the reasons assigned in his motion as follows: First, that it was filed out of time; second, that it stated a new and independent cause of action. This motion was overruled, and the court adjudged Ziegler to be in default. Ziegler then asked leave to file an answer, and in support filed his own affidavit, and also the affidavit of John Oliphant, which application to answer was by the-court overruled. The answer which Ziegler desired to file was a general denial. The court then adjudged Ziegler to be in default, and without hearing any testimony rendered judgment against him for the full amount of Osborn’s claim, and refused to permit Ziegler to offer any testimony in his behalf. A motion for new trial was filed, heard and overruled. To all of the foregoing rulings of the court, exceptions were duly taken and preserved. From the judgment of the court below Ziegler appeals to this court, bringing the case here on petition in error.
All the foregoing rulings of the court below are assigned for error, and whether any of such assignments can be sustained or not, we shall now proceed to consider. Certainly the court below did not err in making the order permitting the parties to file new pleadings. (Justices’ Code, §122; Comp. Laws of 1879, p. 720.) But whether the plaintiff kept himself within permissible bounds when he drew up and filed his amended petition, is not so clear. His amended petition is certainly a very radical departure from his original bill of particulars filed by him in the justice’s court. It is hard to rectígnize it as setting forth the same cause of action as was originally set forth in such bill of particulars. Indeed, the two pleadings exhibit but very few signs of relationship, and yet we suppose they were intended to set forth the same identical cause of action. And, as there are indeed, a few slight resemblances between them, and as the defendant did not attack the amended petition within the time prescribed by the court for him to attack it, we must presume and hold that the amended petition set forth- the same cause of action as was intended to be set forth in the plaintiff’s original bill of particulars. It is fair to say that the defendant, by failing to. attack the amended petition at the time that he had a right to attack it, waived all the radical changes as well as the slighter ones made in the description of the plaintiff’s cause of action. It must be remembered that the amended petition was filed December 2, 1878.’ The defendant received a copy thereof about December. 4, 1878. He had until January 3, 1879, within which to answer to it; and yet he did not answer to it, or attack it in any manner, until March 20, 1879. On April 8,1879, he asked the court for leave to file his answer, and filed affidavits in support thereof, showing that he thought that the amended petition was not filed in time. We think'the court below might have permitted the answer to be filed upon some terms, but we cannot say that the court erred materially in refusing to do so.
We think, however, that the court below erred in holding that the defendant was absolutely and entirely in. default. There can be no such thing as a default in a justice’s court, where the action is not founded upon a written instrument; and when an action is appealed from a justice’s court to the district court, the parties may try the case upon the same pleadings, and the same evidence, and in the same manner, as they might have done on the trial in the justice’s court. (Stanley v. Farmers’ Bank, 17 Kas. 592.) The district court may, however, in furtherance of justice, “allow” new or amended pleadings to be filed. (Justices’ Code, §122.) But the filing of a new or amended pleading by the plaintiff will not place the defendant in absolute default. (Kuhuke v. Wright, 22 Kas. 464.) Every portion of the plaintiff’s cause of action which was previously in issue will remain in issue, although the defendant may not file any new or amended pleading. It is only the new matter set up in the new or amended pleading of the plaintiff that needs an answer; and it is only as to such new matter that the defendant could be in default by not filing an answer. If the new or amended pleading contains nothing more than the original pleading did, then no answer thereto is necessary. We have been liberal towards the plaintiff in this action in construing his amended petition as not setting forth any new cause of action, and we must still continue to so construe it. We must .construe it for both parties alike; and if we continue to so construe it, then the defendant was not wholly in default, for he was not in default at all as to the cause of action as it was originally stated in the plaintiff’s bill of particulars. The substantial elements of the plaintiff’s cause of action, as set forth in both pleadings, were as follows: The advancement of money by the plaintiff for the benefit of the defendant, at the defendant’s request, and which the defendant agreed to repay. And these elements were substantially stated, in both pleadings, although in different language; and as to these elements, the defendant was not in default. The defendant was not required to file an answer. As was decided in the case of Kuhulce v. Wright, supra, the permission to file an answer is not an order requiring that an answer shall be filed.
The judgment of the court below 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
Valentine, J.:
This was an action substantially for partition of real estate, and the principal question involved, therein is, whether a certain deed of conveyance executed by James W. Horder in his lifetime to his wife, Lucy Horder,. without further consideration than love and affection, is valid or not, as against an heir of Horder after his death, which* heir was of full age at the time of the execution of the deed,, and was in no manner dependent upon Horder for subsistence or support.
We have never had occasion to pass upon just such a case-as this, but from decisions already made by this court, we-think it must follow that the validity of the deed in this case-must be sustained. Men of sound minds and not under-guardianship should have the privilege of disposing of their property as they please, so long as they do not interfere with the rights of creditors, or of persons dependent upon them for support. We have frequently had occasion to examine into the validity of sales and conveyances from husbands to-wives, and we have invariably upheld the validity of such, sales and conveyances so far as it was equitable to uphold the same. As throwing light upon this subject, we would refer to the following authorities: Going v. Orns, 8 Kas. 85, 87, 88; Faddis v. Woollomes, 10 Kas. 56, 57; Ogden v. Walters, 12 Kas. 282, 290; Sanderson v. Streeter, 14 Kas. 458, 462; Sproul v. Atchison National Bank, 22 Kas. 336, 338. Also, see authorities cited in these eases. Also, see the following additional authorities: Burdeno v. Amperse, 14 Mich. 91; Hunt v. Johnson, 44 N. Y. 27; Wells v. Wells, 35 Miss. 664, 639; Jones v. Obencheim, 10 Gratt. (Va.) 259; Jones v. Clifton, 17 Am. Law Reg. (N. S.) 713, and cases there cited; Crooks v. Crooks, 34 Ohio St. 610.
The judgment of the court below will be reversed, and cause remanded with the order that judgment be rendered in favor of the defendants below for costs.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer., J.:
After a decree had been properly entered, foreclosing a mortgage, an order of sale was issued, the property advertised for sale, and sold to S. S. Cooper for $100. After the sale, both mortgagor and mortgagee file motions to set aside, while the purchaser files one to confirm the sale. The latter is sustained and the former overruled, and upon these rulings the plaintiffs in error come to this court.
The first question is as to the publication of the notice of sale. It is claimed that this was not continued for a sufficient length of time. The first publication was October 13th, and the sale November 12th. This, excluding the day of sale, would give thirty days’ publication; excluding both the day of sale and the first day of publication, would leave only twenty-nine days. The statute requires publication “for at least thirty days before the day of sale.” This, counsel contend, requires that thirty full days elapse between the day of the first publication and the day of sale; and they rely upon the case of Garvin v. Jennerson, 20 Kas. 371, in which this court decided that under a statute requiring a deposition to be “filed at least one day before the day of trial,” a full day must intervene between the day upon which the deposition- was filed, and that upon which the trial is commenced. The distinction is this: the filing of the deposition is a single and instantaneous, the publication a repeated and continuous, act-. So, when- the statute requires that a deposition be filed at least one day before the day of trial, it means that that single act shall be done and completed at least one day before, but the act of publication is not completed at least thirty days before, but only commenced then, and continues from its commencement up to the day of sale. We had occasion to notice this language in the case of McCurdy v. Baker, 11 Has. 111, and held that the word “for” required a continuous publication — the word “for” being used in the sense of “ during,” so that the publication must be during at least thirty days, and continued up to the day of sale. The first publication is no more than any other. The argument would be just as strong that thirty full days must intervene between the day of the last publication and the day of sale, as that it must intervene between the day of the first publication and that of the sale. Indeed, it would be stronger, for that would be treating the publication as a single act, and to be completed at least thirty days before, while the other treats it as a continuous act, part of which is to be performed and part not, at least thirty days before the day of sale. Here there were thirty days of publication before the day of sale. The notice was therefore published “for at least thirty days before the day of sale,” and the motion to set aside the sale upon this ground was properly overruled. See the case of Hagerman v. O. B. & S. Asso’n, 25 Ohio St. 186, in which a similar construction is put upon these words, and the day of the first publication held to be included within the required thirty days.
Secondly, it is contended that the notice was defective in not fixing the precise time of the sale. It read: “On Monday, the 12th day of November, 1877, between the hours of 10 o’clock a. M. and 4 o’clock p. m. of that day,” etc. We think such a notice sufficient. It is not essential that the precise hour be named. It may be that if it were shown that any person appeared at any time between the specified limits ready io bid, and that the property was struck off at less than its value, the court should in its discretion set aside the sale; but nothing of the kind appears here. The motion is rested upon the supposed defect iii the notice, and without a suggestion even that any one was misled, or desired to bid. Counsel cite the case of Trustees, etc., v. Snells, 19 Ill. 156, in which a sale -was set aside when it appeared that the property had been sold at an enormous sacrifice, and that the notice simply stated that on a given day the sale would be made; yet that very case-recognizes the propriety of a notice like the one before us. In the opinion the court says: “ The object of a public sale is,, by fairness and competition to evolve the full value of the property exposed, and produce that value in the form of money. This can, as a general rule, only be done by making the sale at a convenient or public place, accessible to bidders, and during the ordinary business hours of the day. The notice-should have stated the hour of sale, or that the sale would be made between certain named hours of the business portion of the day.” We think a better practice would be to have the-notice state the precise hour of sale, and if in any case injury is shown to have resulted to either judgment debtor or creditor from a failure to state such precise hour, the sale should be set aside; but where the notice states that the sale will be-made between certain named hours of the business portion of the day, the sale ought not to be set aside upon a mere possibility of injury from such notice.
A third objection is, that the order of sale was defective im not stating the rate of interest which the judgment bore. It in fact bore twelve per cent, interest. We do not think this vitiates the order or the proceedings under the order. The-amount for which the property was sold was far below that of the judgment, and a'mere irregularity which does no one-the slightest injury should not work an entire overthrow of' proceedings had under the order.
A fourth matter is, that the order of sale did not specifically direct that the sale be made without appraisement.. The-judgment and decree so directed, but the order directed that, the property be “advertised and sold according to law.”' This too, if ,a defect at all, is not one sufficient to justify a setting aside of the sale. The decree directed a sale without appraisement, the law authorized such a decree, and the sale was so made. It was therefore made according to law.
A final matter is, the inadequacy of the bid. The property was sold for $100. Several affidavits were read. The value of the land, according to the average judgment of plaintiff’s witnesses, was $933, and according to that of the purchaser’s witnesses was $565. Clearly, then, the property was struck off for a sum far below its actual value. Is this sufficient to justify the setting aside of the sale? No excuse is shown for the absence of plaintiff or defendant in the judgment at the time of sale. There is nothing to show that, they were ignorant of or misinformed as to the time, or that they were prevented from attending, or even that they purposed or desired to attend. So that as the case stands before us, the parties interested, knowing of the sale, intentionally stayed away and took the chances of other parties offering full value, and when disappointed in this expectation, and after the property had been struck off to a party bidding in good faith, come into court and ask that the sale be set. aside because the sale had not been for anything like the real value. In other words, at their instance the property is put. up to be sold to the highest bidder, and when it is so sold they complain because such bidder did not bid more. It was-the officer’s duty to strike it off to the highest bidder, a. duty they had called upon him to perform. He acted in good faith. The purchaser acted in the same good faith. He offered what he was willing to give. He was under neither legal nor moral obligation to offer more, and the property was struck off to him at his bid. There was nothing in the conduct of the officer or purchaser to justify a court of equity in depriving the latter of the benefits of his purchase. And when the parties interested, with full knowledge, deliberately let the matter go by default, what right have they to ask a court of equity to interfere ? The result has followed from their own laches and indifference. The case is very different from that of Dewey v. Linscott, 20 Kas. 684, which is referred to by counsel. There the creditor made reasonable efforts to be represented at the sale, but failed through no fault of his. His misfortune, after proper endeavor, was a basis for the interference of a court of equity. Here there was no effort, and the absence was voluntary. In that case we said: “Now if the plaintiff, being present at the sale, had made no bid, or, if aware of the sale, he had made no effort to attend or be represented, or had been culpably negligent in his efforts therefor, or if after sale he had unreasonably delayed in making his application to the court, so that there was in fact nothing but the mere inadequacy of the price as a ground for his application, the court might perhaps fairly say that there was no ground for interference.” The views thus expressed we reaffirm. Here there is mere inadequacy of price, and not such inadequacy as of itself is sufficient to justify a court in disturbing the sale. Indeed, it is doubtful whether mere inadequacy would ever be sufficient of itself to justify the setting aside of a sale. If the creditor was present and saw the property going at a sacrifice without bidding himself, he would not be permitted to complain of the inadequacy of the price, and avoid the sale. And if knowing of the sale he voluntarily stays away, and takes the chances of others bidding full value, he is in but little better position to complain. It is for the interest of debtors and creditors alike, that public .sales be upheld. They will be more attended, and better prices obtained. New will care to bid, if, after bidding in good faith, having the property struck off to them, and their money paid to the officer, they have to run the gauntlet of an inquiry into the sufficiency of their bid. Sales purporting to be to the highest bidder should be so made, and the highest bidder acting in good faith should have a guaranty that his bid will obtain the property, even though he may not have bid as much as some may think the property worth. Rut it is unnecessary to decide that no inadequacy is great enough to avoid the sale; it is sufficient to say that that appearing in this case is not.
We see no error in the ruling of the district court, and it will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by L. D. Honn against the board of county commissioners of Osborne county, upon the following facts: In an action by the state against three different parties, before a justice of the peace for a misdemeanor, the parties were convicted, and sentenced to pay a fine and costs, and stand committed to the county jail of Ellis county (there being no jail in Osborne county) until such fine and costs were paid. And such fine and costs not being paid, a warrant of commitment was issued on the judgment, and placed in the hands of said L. D. Honn, who was sheriff of Osborne county, for execution. Honn executed the writ, and then filed a claim with the county clerk of Osborne county, against the county, for his costs and expenses. The items of the costs and expenses were for mileage, for stage fare, for railroad fare, and for boarding, lodging and guarding the prisoners. It would seem that the county board allowed the items for boarding, lodging and guarding the prisoners, and refused to allow the items for mileage and stage fare and railroad fare. Honn then appealed to the district court, and in the district court he obtained a judgment for said last-mentioned items, to wit, for said mileage, stage fare and railroad fare. The only question then for this court to determine is, whether Honn is entitled to recover against the county for said last-mentioned items. It is the duty of the board of county commissioners to furnish a good and sufficient jail in their own county. (Gen. Stat., ch. 25, §4; ch. ■53, §1.) And it is their duty to allow the sheriff his reasonable charges for supplying prisoners confined in the county jail. (Gen. Stat., ch. 53, § 10.) But in counties where there is no county jail, as in this case, prisoners may be sent to the jail of the county nearest having a sufficient jail. (Gen. Stat. ch.53, §16.) And §27, ch. 83 of the General Statutes, provides that “No costs shall be paid by the county in any case of misdemeanor of which a justice of the peace has jurisdiction, under this act, when the complainant or defendant shall be adjudged to pay them.” And whatever said mileage and said railroad fare and stage fare may be called, whether “costs,” or “expenses,” or something else, there is no statute which specifically provides that the county may pay the same. The court below held that the county should pay the same, and held that they were “expenses,” and not “costs.” Indeed, we suppose that if they were costs, no one would claim that the county should pay them. Said §27, ch.83, would forbid it. But suppose they be held to be expenses, then where is the authority for requiring the county to pay them ? We know of no such authority, and none has been pointed out to us. The county was not a party to the suit in which said persons were ordered to be imprisoned, nor has it any interest therein. The state of Kansas was the only plaintiff, and the said convicted persons were the only defendants therein. And unless some specific authority can be shown for requiring the county (which was not a party to the suit) to pay said costs or expenses, the county cannot be required to pay them. We think that the said mileage and railroad fare and stage fare are costs, and that the defendants are bound to pay them ; but even if they are not costs, we know of no authority in law requiring the county to pay them.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the Atchison, Topeka & Santa Fé Railroad Company against Samuel Maher, for money had and received. The answer of the defendant contained: 1. A general denial; 2. A plea that the defendant received the money, and loaned it to other parties merely as the agent of the plaintiff; 3. A plea that the whole transaction was ultra vires, and void. On the trial it was shown that the defendant received the money ($15,203.83) from Edward Wilder, who was the treasurer of and acting for the plaintiff. Before any money passed from Wilder to Maher, however, the following letter was written and sent by Wilder to Maher, to wit:
“Topeka, Kansas, July 8, 1873.
“Sam. Maher, Esq., Great Bend, Kansas — Dear Sir: I have authority to use $15,000 in cattle advances, upon the conditions and terms spoken of by Mr. Mulvane, Mr. Nettle-ton and yourself, which I understand to be as follows: You to make loans or discounts according to your own best judgment, and entirely as though for yourself, at 1J per cent, per month, to the cattle trade, and to draw upon me as you need the funds for this purpose, becoming responsible to me for the funds lent you on your drafts, aijd sharing equally with me in the profits, earnings or discounts; also, as loans are made, to send the papers to me for deposit, subject to your telegraph or mail call for them, except in case of thirty-day loans — say ten days — when you will retain papers. Please say by telegraph if this is satisfactory, and commence operations as soon as necessary to secure the trade, bearing in mind always that the object of the arrangement is to retain as many of the cattle-men at Great Bend as possible; and that to do this your best judgment and tact will be called into play.
“Of course it is better for us alb that you alone should get the credit of this capital, and the railroad not be known in it.
“Very truly, E. Wilder.”
In answer to this letter, Maher sent a telegraphic dispatch to Wilder, which reads as follows:
“Great Bend, 7/9, ’73.
“E. Wilder: You have stated terms as I understand them, and I agree to them. S. Maher.”
Maher also at the same time sent a letter to Wilder, which he (Maher) testifies was in substance.as follows: “You to furnish the money, I to loan it at 1J per cent, per month; we to divide the interest between us, and I to guarantee the re payment of the loans to cattle-men.” Maher never received' any answer to this letter, and Wilder testified that he had no recollection of ever receiving any such letter. The letter was not introduced in evidence. There was more evidence introduced, but for the purposes of this case we do not think that it is necessary to state it. We might however say, that the evidence showed that the defendant had repaid $506.40 of the amount received by him.
The jury found a general verdict in favor of the defendant and against the plaintiff. They also made the following special findings in answer to the following special questions submitted to them, to wit:
“1. What was the total amount of money loaned by the plaintiff to the defendant? Answer: No loan.
“2. Was it not the agreement between plaintiff and defendant previous to defendant’s receiving any money from plaintiff, and under which all the money was received by defendant, that he was to become responsible to the plaintiff for the money sent him on his draft? Answer: Yes, as plaintiff’s agent.
“ 3. Did not defendant promise to give his notes for the full amount of money received by him by his letter of September 10, 1873? Answer: Yes.
“4. Was not the arrangement under which defendant obtained the money from the railroad company contained in letter of E. Wilder to S. Maher of date July 8, 1873, offered in evidence? Answer: Yes.
“ 5. Did the defendant ever turn over or pay to any officer of the railroad company any notes, bills or money in payment of the sums advanced by the plaintiff ? Answer: Yes.”
The plaintiff moved the court for judgment on the findings and for a new trial, both of which motions the court overruled, and then rendered judgment in favor of the defendant and against the plaintiff for costs.
Under the pleadings and the evidence, it is certain that Maher received from Wilder $15,203,83, of which only $506.40 has been repaid. It is also certain that Maher was to be responsible for the repayment of the whole amount of the money which he received, but whether he was to be re sponsible as a borrower, as the plaintiff claims, or merely as a guarantor, as the defendant claims, is the controverted question. It can scarcely be said the jury found either way by their special findings; and yet indirectly we think they found both ways. By the fourth special finding they found that the money was transferred from Wilder to Maher, in accordance with the terms of said letter of Wilder of July 8, 1873, and by these terms we think the transaction was a loan. But the jury also found by their second special finding that the defendant was to be responsible to the plaintiff only as its agent, and by their first special finding that the transaction was not a loan. The jury evidently made their first and second special findings upon a misconstruction of said letter of Wilder, but can there be any doubt as to what the true construction of that letter should be? Said letter says nothing about the defendant being responsible as a guarantor or as an agent. Indeed, how could he be responsible as a mere agent? But it does say something as to his being responsible as a borrower or as a person to whom money is lent. Wilder says in the letter to Maher: “You ... to draw upon me as you need the funds for this purpose, becoming responsible to me for the funds lent you on your drafts.” This shows that the defendant was to be responsible for “funds lent,” and not as agent or guarantor.
We think that the fourth finding of the jury was sustained by ample evidence, and that under it the plaintiff should recover for all the money which the defendant received and has failed to pay back. But as to how much he received or failed to pay back, the jury did not make any finding. We think the court below should have granted the plaintiff a new trial on its motion.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment, brought by the heirs of Adam Fudge against one holding under an administrator’s deed. The first question presented is, as to the power of the court to order the sale of the land because of its homestead character. It appears that on the purchase of the land, Adam Fudge and wife executed a note and mortgage for part of the purchase-money. He moved upon the place, and occupied it as a homestead until his death, and his widow and children continued to so occupy it until dispossessed under the administrator’s deed. The note and mortgage were transferred, and the holder filed a petition in the probate court for a foreclosure. This was refused, but the amount of the note was allowed as a claim against the estate, and thereafter the administrator filed his petition for the sale of this land. This petition showed an exhaustion of all the personal property of the estate, and that this land was all the real estate belonging to it. It did not disclose that it was the homestead of Adam Fudge in his lifetime, or of his family after his death. Upon this an order of sale was made, and the laud sold to defendant. Had the probate court jurisdiction? Upon the face of the papers, it clearly had. There was nothing to disclose that the property was a homestead, and it appeared as an ordinary proceeding to subject the real estate which had belonged to the decedent to the payment of his debts — a proceeding of which the probate court had unquestioned jurisdiction. Was the order of sale a conclusive adjudication that the land was not a homestead, and not exempt from sale, and so now cutting off all inquiry as to the fact? An argument of weight could be made in support'of this. The probate court has jurisdiction to order the sale of all real estate except the homestead. Whether a piece of land is or is not a homestead, is a question of fact. Proceedings for the sale of the real estate are advisory, so far at least as the heirs, the only parties who can claim the benefit of the homestead exemption, are concerned, and notice to them is jurisdictional. (Mickel v. Hicks, 19 Kas. 578.) By this notice they are notified of the application to sell certain land, and which can be sold only in case it is not a homestead. They enter no appearance, and make no contest. They being in court, and constructively present, the court decides that the land is subject to the debts of the decedent, and orders its sale. Can they, having been once brought into a court of competent jurisdiction to contest the question of the property’s being subject to sale for the ancestor’s debts, be permitted to contest the question elsewhere, and in a different proceeding? But we do not propose to decide that question now. The case of Howe v. McGivern, 25 Wis. 525, cited by counsel, makes against the suggestions above made, and that is as far as it does go. Here, the land was unquestionably subject to sale for at least the debt we have noticed. Without doubt the mortgage could have been foreclosed, and the homestead sold by proceedings in the district court. The assignment Of a mortgage upon the homestead in no manner destroys its lien thereon, and whether given for purchase-money or not, is immaterial, so long as it was properly executed by both husband and wife. Neither does the validity of the sale depend upon the disposition made of the proceeds thereof.
Whether any other claims were properly chargeable against this land, or properly allowed against the estate, and whether the probate court ordered an improper distribution of the proceeds, is entirely immaterial. If there was one claim for which the court had jurisdiction to sell, that would sustain the sale. We shall not, therefore, stop to notice the questions discussed by counsel as to the validity of the other claims and allowances. As we have said, this homestead was subject to this mortgage, and a foreclosure could have been had in the district court. Could not the probate court likewise order a sale for this debt? We think it could. The homestead was a part of the estate of the decedent. The probate court, by the constitution and statutes, is given jurisdiction over the settlement of the estates of deceased persons. (Const., art. 3, §8; Comp. Laws 1879, p. 325, § 1.) The homestead is not discharged from all debts of the decedent. There may be specific liens, as in this case, or general indebtedness for purchase-money, for which itmay be sold. (Comp. Laws 1879, p.378, §2.) And if abandoned as a homestead, it becomes subject to all the debts of the intestate. (Dayton v. Donart, 22 Kas. 256.) So that its disposition is a part of the settlement of the estate, and within the jurisdiction of the probate court. [Johnson v. Cain, 15 Kas. 532.)
In this case, upon the filing of the petition by the administrator, the court ordered notice to be given to the heirs and all others interested, by publication in the newspaper, and such notice was duly given. A second question presented is whether, when such heirs were all residents of the county -in which the proceedings are had and the land situate, personal notice is not essential; and also whether before any order of sale is made, a guardian ad litem must not be appointed for the minor heirs. The statute (Comp. Laws 1879, p.424, §118) provides that “the court shall require notice of the petition, and of the time and place of hearing the same, to be given for such length of time and in such manner as the court may see proper.” There is no question but that the statute was complied with. The contention is, that the legislature has no power to dispense with personal notice to heirs within the county. This it will be observed is no question of propriety or policy, but simply one of legislative power. We had occasion to examine this question of notice in the case of the Gulf R. R. Co. v. Shepard, 9 Kas. 647, and we see no reason to depart from the views therein expressed. In that case we held, that where the legislature has provided for a notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded to defend, the courts have not the power to pronounce the proceeding illegal. That case was a proceeding for the condemnation of the right of way for a railroad, but the subjection of the real estate of an estate to the payment of the debts of the decedent is no more sacred, and no more outside the scope of the legislative discretion as to the matter of notice, than a proceeding to appropriate a man’s land to railroad purposes. For a further consideration of this matter, see that case, and the authorities cited in the opinion; also, Gilchrist v. Schmidling, 12 Kas. 272.
So far as the matter of a guardian ad litem for the minor heirs is concerned, the statute requires none, and it would be legislation to hold that one was essential. There may be wisdom in legislation providing that one should be appointed, and we believe the statutes of New York and perhaps of other states require such appointment; but that is a matter for the legislature, to consider. It has doubtless thought that the administrator and the court would sufficiently watch over and protect the' minors’ interests. So far as the order of sale is concerned, its sufficiency is settled by the case of Fleming v. Bale, ante, p. 88.
A final objection to be considered is, that the sale was made for less than three-fourths or even two-thirds of the appraisement. We must overrule this objection also. True, the statute (Comp. Laws 1879, p.425, §125) requires that there be an appraisement before any sale, public or private, is made, and it provides that no private sale shall be made for less than three-fourths the appraisement, (Comp. Laws 1879, p.425, §130,) but it places no limitation as to public sales. Whether one ought to be imposed, is for the legislature to determine. If it sees fit to authorize a sale without limits, we cannot declare a sale void which has been approved by the probate court, although the sale was for a sum far below the appraisement. We cannot thus collaterally pass upon the sufficiency of the bid, or the propriety of confirming such a sale.
Neither does the provision in the code of civil procedure concerning sales upon execution have any application. That code (Comp. Laws 1879, p. 701, §728) specifically declares that it shall not affect “proceedings under the statutes for the settlement of estates of deceased persons.”
We see no other question in the case not already determined by decisions of this court, which requires notice.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a contested election case, and the substantial question involved therein was and is whether C. Goit or A. J. Buckland was elected one of the justices of the peace of Great Bend township, Barton county, Kansas, at the November election, held in 1877. The returns of' votes cast for each candidate were duly canvassed by the board of county canvassers, and by such canvass it was ascertained that said Goit received one more vote for said office-than his competitor, said A. J. Buckland. Goit was therefore duly declared elected, and the certificate of election was-duly issued to him. Buckland, however, contested Goit’s right to the office, claiming that several illegal votes were cast for Goit, and giving the names of ten of the alleged illegal voters. On the day set for the hearing of said contest, Goit made a special appearance in the contest court, and moved the court to dismiss the proceeding on the following grounds, among others, to wit: “First, because the statement filed by said contestor is not verified by affidavit as required by law; second, because no notice has been given to the contestee as required by law.” The contest court sustained said motion on said grounds, and dismissed the contestor’» cause of contest. The contestor then took the case to the district court on petition in error. In the district court the contestee demurred to the contestor’s petition in error, on the-following grounds: “First, that the court has no jurisdiction of the person of the defendant; second, that the court has no-jurisdiction of the subject of the action.” The district court sustained said demurrer, and dismissed the contestor’s petition in error. The contestor then brought the case to this court on petition in error.
We understand that the district court sustained said demurrer, upon the ground that “a county board of canvassers,”' as organized for the trial of a contested election for a township officer, is not in law a “tribunal, board, or officer exercising judicial functions” within the meaning of §540 of the civil'code, and therefore that a petition in error would not lie from the decision of such “county board of canvassers” to the district court, and therefore that the district court had no jurisdiction to review such decision. In this we think the district court erred. (See ch. 36, Gen. Stat. 1868; § 106 and §§ 85-105, Comp. Laws of 1879, p. 402-404; State v. Sheldon, 2 Kas. 322; Steele v. Martin, 6 Kas. 439; Norton v. Graham, 7 Kas. 166; Morris v. Vanlaningham, 11 Kas. 269; Wildman v. Anderson, 17 Kas. 345; Moonlight v. Bond, 17 Kas. 351.)
The board of canvassers, when organized merely to canvass the returns of an election, is of course merely a board of ministerial officers; but when it is organized to try a cause of contest, as in this case, it then unquestionably becomes a judicial tribunal, or board exercising judicial functions, and a petition in error will then undoubtedly lie from its decisions to the district court. We might perhaps properly stop here in this opinion, as the district court would probably decide the other questions correctly. There will be no impropriety, however, in suggesting that we think that the district court should reverse the decision and order of the contest court dismissing the contestor’s cause of contest. The reasons given for such dismissal, we think, are insufficient. The contestor’s statement was properly verified in every particular, except that the clerk administering the oath failed for a few days to attach his jurat to the affidavit. Everything, however, in this respect was made perfect and complete before said motion to dismiss the contestor’s cause of contest was sustained. ■ '
The most difficult question, however, in this case, is the one with reference to the notice of contest. It was imperfect in this: it did not give “ a brief statement of the causes of contest,” as required by § 92, of the election law. (Comp. Laws of 1879, p. 403.) It was sufficient in all other respects, and service thereof was acknowledged by the contestee, Goit. Now we do not think that this notice was void because of said defect. It was merely irregular, and considering all the circumstances, the irregularity was only a slight one. We think the notice was sufficient to bring the contestee into court, and when in court, he had ample opportunity to learn the “causes of contest,” from the statement filed by the contestor with the county clerk. It would have been proper for the contest court to have required that another and a better notice should be served upon the contestee, or that a copy of the contestor’s “causes of contest” should be given to the contestee, and to have continued the hearing of the contest until the contestee had had ample opportunity to be prepared for such hearing; but we think the contest court erred in dismissing the contestor’s whole case because of said defect in the notice, without first giving the contestor any opportunity to have such defect cured, or remedied. At the time that this contest was dismissed, it was too late for the contestor to commence a new contest, and hence, if this dismissal were to be sustained, it would- be a final determination of the case, and a final determination, upon a pure technicality. This the law never encourages, and especially not where cases are to be tried before inferior tribunals, not skilled in the law. It is a dangerous thing for an inferior tribunal, not skilled in the law, to attempt to decide cases upon pure legal technicalities. Superior courts seldom attempt any such thing. And the law always encourages trials upon the merits, and never encourages final determinations upon mere technicalities of any kind.
The judgment of the court- below will be reversed, and cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring.
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Per Curiam:
This case is reversed, because the defendant in error (plaintiff below) failed to prove any demand. (Ball v. K. P. Rly. Co., 19 Kas. 535.)
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The opinion of the court was delivered by
Horton, C. J.:
We perceive no error in the ruling of the court. Charles Germy is interested in having the note can celed, and Sarah is likewise interested in having the mortgage canceled. The mortgage is a security for the note, and is signed by both. The transfer and assignment of the note would carry with it all the rights of the mortgage. 'When the note is satisfied, the mortgage is gone. The interests of Charles and Sarah are so united and blended together, that they were properly joined as plaintiffs. (Sections 35, 37 and 89 of the code.) While at common law the misjoinder of any other party as plaintiff with the party or parties whose legal right only had been affected, would have been good cause for demurrer, it is not one of the enumerated causes for demurrer under the code, but perhaps a misjoinder of plaintiffs would, under the code, be within the six enumerated causes for demurrer. But here there was no defect or misjoinder of parties. (Swenson v. Moline Plow Co., 14 Kas. 387.) As the value of the premises purchased was of much less value than the actual money paid, the plaintiffs clearly had the right, under the allegations of the petition, to enjoin the transfer of the note and to a decree for the cancellation of the note and mortgage. If the note and mortgage were without consideration and obtained by fraud, plaintiff in error (defendant in the court below) has no right to their possession, or any valid title or claim to them. A party defrauded as herein alleged, may stand to the bargain and recover damages for the fraud, but if the plaintiff in error is insolvent, an action merely for damages would be a useless remedy — indeed, no remedy at all. The cancellation of the note and mortgage affords about all the practical relief-obtainable in the conditions of the parties. If, however, Sarah Germy has asked less relief than she is entitled to, she is not debarred thereby of all relief.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced before a justice of the peace, appealed' to the district court, and there referred to a referee for trial, before whom a trial was had, which resulted in a judgment in favor of the plaintiffs below, who are now defendants in error, and against J. S. Galbraith, who was one of the defendants below, and who is now- the plaintiff in error. The judgment was for $228.22, and costs. The plaintiff in error, J. S. Galbraith, now seeks to reverse that judgment by this petition in error.
I. The plaintiff in error claims that the court below erred in referring the case. The order of reference reads as follows:
“Now in this case come the parties} the plaintiffs,' by their attorney, B. E. Hudson, and defendant P. Galbraith, by W. S. Greenlee, his attorney, and defendant J. S. Galbraith, by his attorneys, Everest & Waggener, and upon examination of the pleadings herein, and under.the same, in connection with the statements and admissions of the respective attorneys for said parties, it appears, and is clearly made to appear, and is shown to the court, that this cause, under the issues therein, is properly the subject of reference, and that the trial of the issues therein will require the examination of mutual accounts between the parties respectively, and it will be necessary that the said respective parties, plaintiff and defendant, will be required as witnesses to prove and determine said accounts; it is therefore ordered that all the issues in this action, both of fact and of law, be referred to S. H. Glenn as referee, to which reference to said Glenn said plaintiffs, by their attorney, and said P. Galbraith, by his attorney, W. S. Greenlee, consent; said referee to report the facts found and conclusions of law separately on the first day of the June term of this court, A. D. 1879; to which order of reference defendant J. S. Galbraith duly excepts.”
We presume the foregoing order was correctly made. The record brought to this court does not contain all the pleadings nor any of “the statements and admissions of the respective attorneys for said parties;” and hence we cannot so well tell as the district court could, whether this case was properly referred or not. However, from the pleadings brought to this court, which consist of the plaintiff’s amended bill of particulars and the answer thereto of defendant J. S. Galbraith, we should think that the case was properly referred. It evidently appeared to the court below that the trial of the case would involve “ the examination of mutual accounts,” and therefore that the case might properly be referred under §292 of the civil code, and under the authority of the case of Williams v. Elliott, 17 Kas. 523. We decide this question upon this authority: that there were a great many items in the account sued on in this case, on both sides of such £tccount, can be known from the two pleadings above referred to, but just how many items and the separate amount of each, we cannot tell.
II. The plaintiff in error makes the point, that the report of the referee was not filed within the time prescribed by the court. If this were true in fact, we suppose the point would be a good one. The plaintiff in error, however, did not make this point in the court below, and for a most excellent reason, as we suppose, and he should not make it here. It indicates that he has but little faith in his case. The point is overruled. The report was filed “within the time allowed by the court.”
III. The bill of particulars of the plaintiffs below undoubtedly stated a good cause of action. Pleadings in actions commenced before a justice of the peace are generally not'required to be as formal as pleadings in actions commenced in the district court; and no objection was made to this pleading, except an objection to the introduction of any evidence under it, because it did not state a cause of action.
IY. It- was not substantial error, as against J. S. Galbraith, for the referee to permit the plaintiffs to dismiss their action as against P. Galbraith. Judgment could properly be rendered against any one or all of the defendants.
Y. Every substantial finding of fact made by the referee against J. S. Galbraith we think was amply sustained by the evidence. In some respects, the referee might have made the findings much stronger against Galbraith than he did.
YI. And we think the findings of fact support the •judgment.
It is idle to talk about J. S. Galbraith not having notice of the acceptance by the McCormicks of his letter of guaranty. Unless John M. Henry committed willful and corrupt peijury, J. S. Galbraith received actual notice of the same before the McCormicks delivered any goods to the firm of Trowbridge & Galbraith, and J. 8. Galbraith, at the time, said that it was all right. Henry’s testimony was probably true, but there was sufficient evidence without Henry’s; and from the evidence, J. S. Galbraith evidently had notice in fact substantially of the reception of all the goods that the McCormicks delivered to Trowbridge & Galbraith at the various times at which they were delivered, but even if he did not receive any such notice, still it can make no difference under his guaranty. It was admitted by the parties that if the plaintiffs below were entitled to recover, the amount that was found by the referee was a correct amount.
We do not think that the court below committed any substantial error in the case; but, before closing this opinion, we wish to say something further with regal’d to said letter of guaranty, and a contract founded thereon. Said letter of guaranty reads as follows: :
“Atchison, Kansas, February, 1875.
“McCormick & Bro., Chicago, Ill. — Gentlemen: I will indorse any contract made by Trowbridge & Galbraith, of Atchison city, Kansas, with you to sell your implements and articles strictly on commission, and will be responsible for the fulfillment of the said contract on their part; but it is provided that said Trowbridge & Galbraith shall not contract to indorse or guarantee any notes received by them for the sale of goods and articles on commission.
“J. S. Galbraith.”
It will be seen that said letter indorses “any contract,” etc., for the sale of McCormick’s “implements and articles,” or “goods and articles,” on commission, etc., provided that said Trowbridge & Galbraith should “not contract to indorse or guarantee any notes received by them for the sale of goods and articles on commission.” Now Trowbridge & Galbraith did not in fact make any “contract to indorse or guarantee any notes;” nor did they in fact “indorse or guarantee any notes;” nor did they assume or become responsible for any debt or .note due, or to become due, to the McCormicks. They did, however, make a contract that possibly went a little beyond what said guaranty contemplated.
The plaintiff in error says that said contract' referred to certain printed instructions which were made a part of the contract, and which printed instructions provided that: “If at any time sales have been made by you ” (meaning Trow- bridge & Galbraith) “to irresponsible parties without proper security, it is distinctly understood that you shall assume such notes, and personally become responsible to said C. H. & L. J. McCormick for the amount of such irresponsible sales, until they shall have been properly secured or paid.”
Now we do not think that said printed instructions rendered said guaranty nugatory, inoperative, or void. Said proviso in the guaranty did not prevent the parties from making the contract for Trowbridge & Galbraith to be responsible for any negligence which they might be guilty of in selling articles on credit to or in taking notes from “irreresponsible parties without proper security,” and to “assume” the debts and notes in such cases. For the law would make them liable in such cases, whether they expressly agreed to be liable, or not. There has never been any attempt, however, on the part of the plaintiffs to make Trowbridge & Galbraith or J. S. Galbraith liable for any debt or note due or to become due to the plaintiffs for any articles sold on commission by Trowbridge & Galbraith for the plaintiffs. The claim of the plaintiffs is for money actually received and collected by Trowbridge & Galbraith for the plaintiffs, and not paid over to them.
The judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting.
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The opinion of the court was delivered by
Brewer, J.:
On January 19, 1878, the plaintiff commenced its action agaiust the defendants in the district court of Marshall county, to enjoin the issue and service of a tax warrant against the railroad property of the plaintiff for a certain imposition specified on the tax-roll of said county for 1877 as “Blue Rapids township improvement bond tax,” and, amounting to $265.10. This cause came on for hearing at the December term, 1878, and the court made its findings of fact and conclusions of law thereon, and the plaintiff excepted to said conclusions of law, and each of them.
These findings show the following facts material for the consideration of the questions involved in this case:
On February 10, 1873, the charter of the' Irving Manufacturing Company was filed in the office of the secretary of state for the state of Kansas, and said company thereby became a corporation, with an authorized capital stock of $25,000, its declared purpose being “to purchase all needed lands and construct and maintain a dam. across the Big Blue river, within two miles of Irving, and build and maintain mills and their machinery for manufacturing purposes/'
The legislature of 1873 passed an act entitled “An act to provide for issuing bonds of Blue Rapids township, of Marshall county,” approved March 4, 1873, purporting to authorize the township officers of Blue Rapids township to subscribe to the capital stock of said Irving Manufacturing Company not to exceed the sum of $10,000, and to pay for the same by issuing the bonds of said township, payable in ten years from their date, with interest at ten per cent, per annum, payable annually, according to interest coupons to be attached. The act required the question of the issue of bonds to be submitted to a popular vote, and in ease of the authorization and issue of said bonds, the township officers, in connection with the board of county commissioners, were required to levy a tax annually for the payment of interest, and the creation of a sinking fund for the redemption of the bonds at maturity. It was made the duty of the trustee to attend the meetings of the stockholders of the company, and to act for the township and represent its stock, and he was made eligible as a director of the company. (Laws 1873, ch. 51, pp: 103, 104.)
On June 30, 1874, and after a favorable popular vote, the trustee and the «clerk of said township issued the bonds, ten in number, for one thousand dollars each, with interest coupons attached, all being of the same date and of like tenor and effect. The following is a copy of one of the bonds and the first coupon thereon, to wit:
No.... BOND OF BLUE RAPIDS TOWNSHIP, MARSHAIYL COUNTY, STATE OF KANSAS.
Be it known, that Blue Rapids township, in the county of Marshall, and state-of Kansas, is indebted to the Irving Manufacturing Company, or bearer, in the sum of one thousand dollars, bearing interest at the rate of ten per cent, per annum, payable annually, on the first day of July, at the office of the treasurer of the said Blue Rapids township, in said Marshall county, Kansas, and for which coupons are hereto attached.
This bond is issued in pursuance of an act of the legislature of the state of Kansas, approved March 4, A. D. 1873, entitled “An act to provide for issuing bonds of Blue Rapids township, of Marshall county,” the principal of which is payable'ten years from July 1st, A. D. 1874, and for the payment of whioh the faith of said Blue Rapids township is pledged.
In testimony whereof, this bond hath been issued and signed by the township trustee, and countersigned by the clerk of said township, this 30th day of June, A. D. 1874.
(Signed) Thaddeus Day, Trustee. .
(Countersigned) John Thompson, Clerk.
[Coupon.]
BOND OF BLUE RAPIDS TOWNSHIP, MARSHALL COUNTY, KANSAS.
$100. — On the first day of July, A. D. 1875, Blue Rapids township will pay one hundred dollars for interest on bond No...., agreeable to an act approved March 4, 1873.
(Signed) Thaddeus Day, Trustee.
(Countersigned) ■ John Thompson, Clerk.
On May 28,1874, the Irving Manufacturing Company en tered into a written contract with one Satterlee Warden, by which Warden agreed to build a dam across the Big Blue river, on section one, township five, range seven, in Marshall county, and also a mill building, fitted up. with grist-mill machinery, the work to be commenced as early as September 1, 1874, and completed on or before December 30,1875; and the manufacturing company agreed to convey to Warden a certain described tract of land owned by it in said section, to include said improvements, and also the water power, with the reservation and exceptions following: The,company to have the right to build mills and manufactories, to be.propelled by said water power, below Warden’s mill, and. also a flume for said mills and manufactories, but not to engage in the grinding of grain without the written consent of Warden, and in any event Warden should have sufficient power to propel six run of stones, and also a saw mill, if he should build one in two years; and whenever the company should build a mill or. manufactory, it was to pay to Warden one-fourth of the cost of the dam for each of said mills or manufactories, until the whole sum advanced by Warden in the building of the dam should be refunded to him; and the expense of maintaining a dam should be borne equally by the mills using the same. And it was further agreed that the company should pay and deliver to Warden $10,000 in Blue Rapids township bonds, if they should be voted, as soon as Warden should expend $5,000 in said improvements, and give security for the completion thereof; but after the completion of the dam and the basement of the mill, Warden might, if he chose, return the township bonds to the company and demand and receive from it $3,000 in money, in lieu thereof.
Warden completed said improvements in September, 1875, in accordance with said contract., and the bonds were transferred and assigned to him by the company before that time, in pursuance of the agreement. Ever since the completion of the mill it has been used as a custom grist mill chiefly, the proprietors purchasing some wheat, however, to complete car-loads of flour made principally from the grinding of tolls. On February 7, 1876, the company executed to Warden a deed in accordance with said contract and the reservations therein contained, but it was provided in the deed that the acceptance of it by Warden should not operate as a waiver of his right to return the $10,000 in township bonds to said company and to demand and receive $3,000 in money therefor. Warden has sold and transferred the bonds to persons unknown, who are innocent holders thereof. No manufacturing enterprise has ever been carried on or engaged in by the Irving Manufacturing Company, nor is the water power fro.m the dam used for any other purpose than the propelling of the machinery of said grist mill.
The question presented by these facts is, as to the validity of the bonds. The initial point of the inquiry is the law of 1873, and the> charter of the Irving Manufacturing Company. Bonds were issued under that law, and carry notice of that fact upon their face. Of course, a purchaser takes with notice of everything appearing upon the face of the paper. And when a bond purports upon its face to be issued under the authority of a given law, if that law be unconstitutional every purchaser takes with notice of the invalidity of the 'bond. Upon this proposition all the courts agree. Some, among them this court, go further; (Lewis v. Comm’rs of Bourbon Co., 12 Kas. 186.) There is therefore, in this case, no matter of estoppel arising in favor of bona fide holders, no question of the regularity of the proceedings under the law. The case hinges upon the constitutionality of the law. The law is a special one, and purports to authorize Blue Rapids township to take stock in and issue bonds to the Irving Manufacturing Company — nothing more and nothing less. The Irving Manufacturing Company was a private corporation then existing, with a charter duly filed in the office of the secretary of state, whose declared purpose was the securing of power and the building of manufactories. No special class of manufactories was named, nor was there any restriction as to the number, or number of classes. Under its charter, the company could put up mills for the manufac ture of woolen goods, or paper, or cotton cloth, or anything else. Building one mill in no manner exhausted its power, or restricted its line of labor. To a grist mill this year, it might add a paper mill next, and so each year add to the number, and the number of kinds of manufactories. Obviously, the design -was to utilize the water power in building up a manufacturing town, and no limitation was intended on the kind of manufactories. Is this a purpose which can be aided by taxation? We are clearly of opinion that it cannot. It is a private corporation which is sought to be aided; it is a private benefit which is sought to be secured. Obviously, the purpose was a private, and not a public one. Judge Cooley says, in his work on Taxation (p. 78): “The right to exercise the power of taxation in aid of manufacturing enterprises of private persons or corporations, has seldom been asserted, and whenever asserted, has been most emphatically denied.” In Allen v. Inhabitants of Jay, 60 Me. 124, (12 Am. Law Reg., N. S., 481, with note by Judge Redfield,) the inhabitants proposed under legislative authority to loan the credit of the town by issuing bonds to Hutchins & Lane, on condition that they should move their saw mill and box factory from Livermore Falls to Jay Bridge, and also put in operation one run of stones for grinding meal; but the .court decided that “such an object is entirely a private one, and in no sense entitled to be called a public use of such a character as to justify the imposition of taxes upon the inhabitants and property of a town by the vote of a majority of such town.” No distinction is made in the decision between the saw mill and box factory, and the mill for grinding meal. If the latter had stood alone, however, it may be that under the decision in Township of Burlington v. Beasley, 4 Otto, 312, aid might have been lawfully extended to it; but this would depend on the kind or character of the mill, and the statutes of Maine relating to the subject. In Commercial National Bank v. City of Iola, 2 Dillon’s Ct. Ct. Rep. 353, (9 Kas. 689,) bonds were issued by the city by authority of an ordinance afterward legalized by the legislature, so far as it could do so, as a donation “to aid in the erection or completion of buildings at or near the city of Iola, to be used for the purpose of manufacturing Z. King’s patent bridges, and as a foundry and iron works.” In an action to recover interest due on coupons attached to these bonds,-it was held that the purpose in aid of which the bonds were issued was private, and not public in its nature, and that they were void — “void from the beginning, and void into whosesoever hands they may have come.” In Loan Association v. City of Topeka, 3 Dillon’s Ct. Ct. Rep. 376, (20 Wall. 655,) bonds had been issued to the King Wrought-Iron Bridge Manufactory and Iron Works Company of Topeka, to aid and encourage it in establishing and operating its manufactory of iron bridges in said city, in pursuance of two general acts of the legislature, referred to by title on the face of the bonds. But the court adhered to the decision in the Iola case, and held the bonds void, and the judgment was affirmed by the supreme court of the United States, which decided-that a statute which authorized a town to issue its bonds in aid of the manufacturing enterprises of individuals is void. (Lowell v. City of Boston, 111 Mass. 454; The State v. Osawkee Township, 14 Kas. 418; McConnell v. Hamm, 16 Kas. 228.)
The general truth of these propositions is not seriously controverted by counsel for defendant in error, but they seek to take this case out of the scope of those rules. They contend that neither the act nor the bonds show that the purpose was a private one; that they only show that the purpose was to aid the Irving Manufacturing Company; that the bonds have passed into the hands of bona fide holders, and that such holders have a right to presume that the legislature has passed no unconstitutional law, and that therefore the purposes for which the Irving Manufacturing Company was .organized were public. They say: “All the cases cited by counsel show that, either by an act of a legislature, or an ordinance made by a city council, the cities or townships voted bonds for private purposes, and that the different private enterprises were so expressed in the statute or ordinance. In this case, you nowhere find in the statute of 1873, nor in said bonds, that said bonds were voted for private purposes; but the statute, bonds, pleadings and evidence show without a doubt that the bonds were voted for public purposes. This state of facts, therefore, brings us within the case of the Township of Burlington v. Beasley, 4 Otto, p. 312.” They also contend, that notwithstanding the generality of statement in the charter of the purposes for which the company was organized, by contract before the issue of the bonds, and before any subscription or vote, provision had been made for the building of a dam and grist mill; that these are all that in fact have as yet been built; that a grist mill is a public mill, and that therefore it was plainly the intention of Blue Rapids township and the company that public aid should be granted only for the building of a dam and mill for public purposes. They further claim, that even if the act of 1873 be unconstitutional, the validity of the bonds can be sustained under the general bond law of 1872.
We cannot concur with counsel in these views. We think that where a law purports to authorize the issue of bonds to any given party, a purchaser must take notice of any inherent incapacity of such party to receive public aid. Where the proposed recipient is a corporation, its charter powers are as much a matter of public record’as the law which is invoked to uphold the bonds, and a purchaser is as chargeable with notice of those powers as of the law. If the rule were otherwise, the bond question would be freighted with more of peril than even now it carries. If a law purporting to authorize the issue of municipal bonds to a private individual, or to a private corporation, must be adjudged constitutional, unless it affirmatively appears upon the face of the law that the bonds are to be issued to subserve some private purpose, there would be but slight protection against foisting the wildest schemes of private enterprise upon the shoulders of the public. Not so do we understand the rule. Upon the face of the law and the record must it appear that a public purpose is to be sub-served, or the law will not stand. If the law does not ex press the very purpose, then the proposed grant must be to a corporation whose sole capacity is to subserve some public purpose. The law, as a law, must be valid before any acts under it can be upheld. A corporation may sometimes be estopped from showing its own wrongful acts done under a valid law, but there is no such thing as a void enactment being made valid by estoppel. If the law simply purports to grant authority to issue bonds to a specific party, and such party has not capacity to receive public aid, then the law fails, and no purchaser can plead ignorance of such party’s incapacity. The law never had any validity, and no acts done under it can infuse life into it, or create any estoppel upon the municipality.
Now the Irving Manufacturing Company was chartered, as we have seen, for manufacturing purposes generally. The law authorizing a subscription to its stock contemplated aid to those general purposes. It placed no restriction on the use or disposition by it of the bonds. It might use them to build a grist mill, as it did, or a paper mill, as it may yet do. Doubtless a law may be valid in part and void in part, and a law authorizing the issue of bonds for two separate objects may be upheld as to one while it fails as to the other. Perhaps, also, a law authorizing the issue of bonds for general purposes, such as “internal improvements,” may sustain an issue in certain cases, and where the improvements are of a public character, when it would not in other cases, and where the improvements are simply of a private nature. And in such a case, if bonds are issued, simply reciting the law, and pass into the hands of bona fide holders, there may be a presumption that they were issued for a purpose which is legal, and an estoppel on the municipality to- deny the fact. To that extent, as we understand it, goes the case of the Township of Burlington v. Beasley, 4 Otto, 312. In that case, Mr. Justice Hunt, speaking for the court, says:
“The bonds which are the foundation of this action, purport upon their face to be issued by virtue of an act of the legislature of the state of Kansas, approved March 2, 1872, which title is given in the bonds. They contain no specific statement of the purpose for which they were issued. There is nothing upon their face to indicate fraud, unlawful authority, assumption of authority, or irregularity. If there was in law any authority in the town, under any circumstances, to issue its bonds, and if these bonds have the impress of such authority, there is nothing to vitiate them when taken by bona fide holders.”
But where the law names only one specific purpose, the aiding of a named corporation, the law is good or bad as a whole, according as such corporation may or may not receive public aid. The use which the corporation may make of the bonds neither upholds nor destroys the law. If bonds were issued to an insurance corporation under a law purporting to authorize such an issue, the law would not be made good and the bonds valid by the fact that the insurance company used them in building a railroad, or both be vitiated because the latter were used in the insurance business. The law is good or bad, constitutional or not, at the time it is signed and approved. Where the charter of a corporation is broad and general, enabling it to engage in several industries, the fact that one of those industries may be of such a public character as to justify public aid, will not uphold a law authorizing public aid generally to the corporation. Public aid to private purposes cannot be secured by yoking them to a public purpose. And where the public and private purposes are attempted to be aided by a single concession, the latter vitiate, rather than the former uphold the grant. “ The entire purpose, or if there are several, and no rule of apportionment as to the application of the proceeds, then all the purposes, must be public. In other words, the legislature cannot validate bonds for private purposes, by declaring that the authorities may apply an indefinite portion of the proceeds to some public purpose.” (The State, ex rel., v. Osawkee Township, 14 Kas. 418.) In Attorney General v. City of Eau Claire, 37 Wis. 400, 437, it is said: “ It seems too plain for discussion, that if the legislature grants an equivocal power, subject to the election of the grantee for either one or the other of two pur poses, the one lawful and the other unlawful, the power cannot be upheld upon the chance of its being lawfully applied. . . . When the purpose of such a statute is double, each purpose must be valid to sustain the power.”
Here, the law makes no provision for aid to any separate public purpose. Any appropriation would be at the election of the company — an election which it could change at pleasure. It seems to us, therefore, that the law was in its inception unconstitutional, and that no acts done under it are of any validity or create any estoppel. Every holder of the bonds is chargeable with notice of the law, and all matters affecting its constitutionality. So far as the general bond law of 1872 is concerned, the bonds do not purport to have been issued under that law. They specifically refer to the law of 1873 as the source of their authority. They do not comply in all respects with the law of 1872, and while, if they purported to be issued under that law, the departure-might not be sufficient to vitiate the bonds, they cannot rest upon any presumptions which might then exist in their favor in the hands of bona fide holders. ' The purchaser is referred to one statute. If he would support the bond by some other law, he must show as a fact compliance with that law, and may not rest upon presumptions ; and as a matter of fact, the bonds were voted and issued to a corporation whose charter contemplated such private purposes as to preclude its reception of public aid.
The judgment of the district court will be reversed, and the case remanded with instructions to render judgment on the findings in favor of plaintiff in error, plaintiff below.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on two notes, and for a foreclosure of the mortgage given as security for them. The plaintiff was a bona fide holder for value, before maturity. No* actual notice of any defenses was shown. The notes were negotiable, unless and save as affected by the following matters. The promise was to pay interest at twelve per cent., after maturity; and after this promise were these worlds: “If this note is not paid at maturity, the same shall bear twelve per cent, interest from date.” As a fact, there was usury in the inception of the notes. As a conclusion of law, the court held, that by reason of the words above quoted, the purchaser took the notes, charged with notice of the usury; and this presents the sole question for our consideration.
Clearly, these words do not destroy the negotiability of the paper. They do not leave uncertain either the fact, the time, or the amount of payment. Indeed, up to and including the maturity of the notes, they are entirely without force. They become operative only after the notes are dishonored and have ceased to be negotiable, and then there is no uncertainty in the manner or extent of their operation. They create, as it were, a penalty for non-payment at maturity, and a penalty the amount of which is definite, certain and fixed. In this respect, they are even less objectionable than the stipulation concerning attorney-fees, which was considered in the case of Seaton v. Scovill, 18 Kas. 433, for there the amount was not fixed and named, but the stipulation was for reasonable attorney-fees. See also 1 Daniel on Neg. Insts., §§53, 54, 61, 62; Tholen v. Duffy, 7 Kas. 410; Gould v. Bishop Hill Co., 35 Ill. 325.
Now if these words do not affect the negotiability of the paper, can they restrict the amount of recovery as against a bona fide holder for value before maturity? Is not that the very essence of negotiability, that such a holder may rely upon the face of the contract, and recover according to its terms, any transaction between the maker and payee to the contrary notwithstanding? The court held that these words imparted notice of usury. But how? The penalty is not recoverable as interest, and if it were in this case, it is not usurious. Grant that the courts will not tolerate a penalty which is a mere cover for usury, and still this penalty would have to be sustained, for it only calls for twelve per cent, interest. This stipulation provides for twelve per cent, interest before maturity, as another stipulation does for twelve per cent, interest after maturity. Nowhere in the note is more than twelve per cent, named. The effect of these stipulations is no more than that of a promise to pay twelve per cent, from date until paid, with a proviso that if promptly paid at maturity, no interest will be required. It may be said that where a note calls for no interest till after maturity, the presumption is that interest was taken out in advance. Whatever may be true of bank paper, we think no such presumption of law exists as to ordinary notes. Generally it may be true that such is the case, but it is not always so. The loan may be a friendly one, and only the certainty of prompt payment a matter desired by the lender, or there may be no loan at all, but a sale of property on time with security, and the only purpose of the penalty to secure promptness in payment. The note does not say that interest has been taken out in advance, nor is such fact necessarily to be presumed from its terms. The utmost that can be said is that the language suggests the probability of such a fact, but this is far from imparting notice to a bona fide purchaser, or operative to restrict his right of recovery.
The judgment will be reversed, and the case remanded with instructions to render judgment for the full amount of principal and interest due upon the face of the papers.
All the Justices concurring. _
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin, brought by plaintiff in error, plaintiff below, to recover possession of a span of mares. The case was tried by a jury. •’Verdict and judgment for defendant, and Bellew alleges error. He claims that the verdict was against the evidence, and that there'was error in, the instructions. It appears that defendant at one time owned the mares, and also that he traded them to plaintiff for a machine. There was some dispute between the parties as to the terms of this trade, defendant claiming that a rake — at first a table-rake, and afterward a sweep-rake^— was included in and a part of the trade, and plaintiff that the rake was not included in and had nothing to do with the trade. Defendant further claimed that there being some difficulty in obtaining the rake, the trade was rescinded. This plaintiff denied. Each party was a witness in his own behalf, and each had in some things the support of another witness, but after all the case really hinged upon the credibility of the two parties. Notwithstanding the full and able review of the testimony by plaintiff's counsel, we think the defendant squarely testified to a rescission of the trade, and if the jury believed his testimony, as they had a right to do, the verdict was properly returned in his favor. The jury were the triers of the fact, and their decision concludes this court upon the question. It is true, that after the rescission, as appears from the testimony of both parties, there was fur -fcher talk about a trade, but nothing admitted by defendant which concluded him or avoided the effect of the rescission.
As to the instructions, they were brief, and we see no material error in them. The court stated the substance of each party’s testimony, and then substantially charged the jury if they believed the plaintiff’s version of the case they must find for him, and if the defendant’s, then for him. Now while such an instruction might in some cases mislead a jury by ignoring the effect of testimony other than that given by ■the parties, we cannot think it inappropriate in the present case, or at least doing any wrong to the plaintiff, for as to the alleged rescission, he had no supporting testimony. While it may be true, as counsel point out, that the court in stating the testimony mistook a part of it, and spoke of an order when the witness only named a note, we cannot think that the ■difference affected the case in.the slightest. It is not every misrecollection of the court of a witness’s testimony, or every misstatement of his language, that works material error. It must be in a substantial part of the testimony, and such a misstatement as probably misleads the jury.
Upon the whole case, we see no error sufficient to justify a reversal of the judgment, and it will be affirmed.
All the Justices concurring. .
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The opinion of the court was delivered by
Hokton, C. J.:
On the 11th day of March, 1878, the People’s Saving Bank commenced an action in replevin against C. L. Dayton and others, to recover the possession of certain fruit trees or nursery stock, valued at $750. It was disclosed upon the trial that on the 23d day of November, 1875, one E. P. Diehl, being indebted to the bank, and desiring to secure the payment thereof, executed to it a chattel mortgage on the trees in controversy, then standing and growing on land belonging to a Mr. Reynolds, about three miles from Olathe, in Johnson county. The chattel mortgage was duly filed for record in the latter county, on November 25th, 1875. The mortgage was not renewed or continued as provided by §11, ch. 68, Comp. Laws 1879, p. 557, but in the fall of 1877, Diehl’s debt being unpaid, the bank claimed the trees, and took possession of them under the mortgage, by its president, S. A. Christy, with the consent of Diehl. It alleged that it furnished about $90 to pay for. having the trees taken up and removed to a point near the residence of Diehl, and thereafter employed Diehl, as agent of the bank, to look after, attend to, care for and protect the trees from the depredations of rabbits, etc. At'the June term of the district court of Johnson county for 1875, one E. C. Bott obtained a judgment for work and labor, against E. P. Diehl, and on the 5th day of February, 1878, Bott caused an execution to be issued against Diehl. The execution was levied upon the trees, and on the 25th day of February, 1878, the trees were bid in at sheriff’s sale, for $17, by J. L. Pettyjohn, as agent of E. C. Bott, who then sold them to C. L. Dayton. The jury returned a verdict for the bank, and judgment having been rendered accordingly, the defendants below bring the case here.
The contention is over the actual possession of the property. It is insisted on the part of the plaintiffs in error that, in the absence of an affidavit being filed under § 11, ch. 68, of Comp. Laws 1879, prior to the levy under the execution, the chattel mortgage was void as to E. C. Bott, a judgment creditor of Diehl, at the date of the levy, and that the claim of actual possession by the bank has no foundation in fact; that saying there was a change, when in fact there was none, made none in law, and that Diehl, the mortgagor, could not hold, as agent of the bank, the mortgagee, and hence there was no change of possession. We think it must be conceded, from an examination of the act relating to the mortgage of personal property, that the mortgage in question was just as effective and valid between the parties to it after the. expiration of one year from the filing without the affidavit of renewal, as with such an affidavit. Where the personal property mortgaged is accompanied by an immediate delivery, and is followed by an actual and continued change of possession, no deposit or filing of the chattel mortgage is necessary to protect it from seizure by creditors or others having claims against the mortgagor in disregard of the rights of the mortgagee. So, if.at any time prior to a levy of an execution of a judgment creditor, the property mortgaged is delivered to the mortgagee, and there is an actual and continued change of possession of the articles mortgaged in good faith, the mortgage will continue in effect as if filed, or as if an affidavit of renewal had been attached to the instrument in the register’s office, thirty days next preceding the expiration of one year from the filing.
Whether there was a delivery of the mortgaged property and an actual and continued change of possession to the mortgagee, prior to the levy of the execution of Bott, the judgment creditor, was a question of fact for the jury. In answer to a special question, they returned the finding that the bank was in the actual possession of the property at the time of the levy of the execution. This finding fully sustains the claim of the bank, and the judgment. Unless it ■can be impeached, the plaintiffs in error are in no condition to dispute it.
Counsel argue, however, that as one of the findings is to the effect that as Diehl was in possession of the property, as the agent of the bank, and as the court instructed the jury that possession by Diehl, as the agent of the bank, was the-possession of the bank, that in fact there was no actual possession by the bank, and that the direction of the court was erroneous. The evidence shows that the bank, through its president, had the trees taken up and removed, at a cost of $90, from the place where they were standing when the-mortgage was executed, and after such removal it employed Diehl, as agent, to look after and attend to them. The mere-fact that the mortgagor was employed to take charge of the trees, as the agent of the bank, after the bank had taken-actual possession, would not oust the bank of such possession. All the facts and circumstances of the transaction-were submitted to the jury. Of course they considered the-situation and nature of the property, and that the bank was-a corporation, and must have necessarily acted through its-officers and agents. Whether the claim of possession by the-bank was bona fide, and whether Diehl was merely employed as an agent, were passed upon by the jury, and being facts in issue, of which, under the testimony, they were the exclusive-judges, and being fully competent to decide, and having,, upon sufficient evidence before them, found in favor of thebona fides of the claim of possession on the part of the bank, and that Diehl was an agent of the bank, and as the findings of the jury have also received the approval of the trial court, we,cannot disturb the findings or the verdict. The case of Porter v. Parmly, 52 N. Y. 185, cited so confidently by counsel of plaintiff in error, fully supports the views announced.. In that case the referee did not find any delivery to the-mortgagee, nor any change of possession; but Mr. Justice Peckham, speaking for the court, says in the opinion: “If the possession [of the property] had been changed, if the mortgagee had taken actual and continued possession, then there would be no occasion for refiling [the mortgage] thereafter, as the purpose of the statute was already accomplished.”’
Again, in the case at bar, Bott, the judgment creditor, was-not induced to give any credit to the mortgagor by any pos session of the mortgaged property in the hands of Diehl, as his judgment was obtained in June, 1875, long prior to the-execution of the mortgage.
Some of the instructions of the court might perhaps becriticised, but upon the principal and important questions before the jury the directions were not sufficiently misleading to prejudice the rights of the plaintiffs in error, and therefore there was no material error.
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.:
In the case of Doolittle v. Ferry, 20 Kas. 230, Mr. Justice Brewer, in speaking for the court of the indorsement of negotiable paper, said: “Where the law furnishes such apt, brief, and well-known expressions for making the indorsement accomplish exactly what the parties may desire, wise policy demands that each form of indorsement should conclusively carry with it the liability which it implies.” Again, “that those implications should be as conclusive upon all the parties as though the full contract were reduced to writing.” While the general rule applicable in such cases has been stated so strongly and clearly, yet certain limitations and exceptions are noted in the opinion — as where the indorsement was without consideration, or upon trust for some special purpose, or where there was an equity arising from an antecedent transaction, including an agreement that the note should be taken in sole reliance on the responsibility of the maker, and that it was indorsed in ordet to transfer the title in pursuance of such agreement, and where the attempt to enforce it would be a fraud. We think these limitations and decisions are justly and wisely recognized in the authorities and decisions; and further, that the portion of the answer in the case at bar which was objected to was amply sufficient, and the allegations, if true, a valid defense. The answer brings the case within the limitations and exceptions of the general rule, and the court erred in sustaining the demurrer. (Doolittle v. Ferry, supra, Sharsw. Starkie, 671; Daniel on Negotiable Instruments, vol. 1, p. 720; Dale v. Gear, 38 Conn. 15.)
The judgment of the district court will be reversed, and the case remanded with direction to overrule the demurrer filed by the defendant in error.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J. :
This was an action brought in October, 1878, in the district court of Wyandotte county, by John. C. Murray against A. J. Kelley, to recover $720 for a balance alleged to be due plaintiff in carrying on the foundry business by the parties to the action, in Kansas City, Missouri, during 1877. J. B. Scroggs was appointed referee. His report was filed April 5, 1879. At the April term, 1879, the report was confirmed by the court, and judgment rendered for plaintiff for $38.50. Plaintiff excepted, and brings the case here. He alleges, that the referee in stating the accounts between the parties erred in favor of the defendant, and that upon the testimony his report should have stated $633.13 due to plaintiff, instead of $38.50. Counsel of the plaintiff assert in their brief that the question to be determined in this proceeding is the manner of stating the account between the parties. Unfortunately for him, the record is in no condition for us to decide whether the referee erred in his findings, or not. The bill of exceptions recites, that “The following among other testimony was given.” This clearly shows that all the testimony has not been preserved. Without examining all the testimony taken before the referee, we cannot say that the findings are against the evidence. The presumptions are in favor of the findings. All the evidence is not brought to us, and we must presume the findings are correctly given. (Walker v. Eagle Works Manfg. Co., 8 Kas. 397; Bayer v. Cockerill, 3 Kas. 282; Simpson v. Woodward, 5 Kas. 571; Porter v. Hall, 11 Kas. 514; Davis v. Wilson, 11 Kas. 74; Hale v. Bridge Co., 8 Kas. 466; Blair v. Fields, 5 Kas. 58.)
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
Brewer, J.:
This was an action of ejectment, brought by purchasers from the heirs of Peter Cadue to recover possession of certain lands held by defendants under a deed from the administrator de bonis non of the estate of said Peter Cadue. The case turns therefore upon the validity of such deed, and two questions are presented: first, as to the effect of such deed as evidence; and second, as to the jurisdiction of the court to appoint an administrator. If the court had no jurisdiction to appoint an administrator, then of course the deed fails, and if the deed is not of itself, with the other evidence, sufficient proof of the regularity of the proceedings, and the validity of the sale, then also the defendants must fail. The case was tried by the court without a jury, and a general finding for defendants, made.
And first, as to the effect of the deed as evidence. The sale and deed were in 1865 and under the laws of 1859, and the contention of plaintiffs is, that the deed is not in conformity with the requirements of that law, and therefore worthless as evidence, and there béing no other evidence of the regularity of the sale, that the finding for defendants is erroneous. The law of 1859 provided for a deed “reciting the order of sale,” etc. (Comp. Laws 1862, p.533, §141.) The deed simply states that on January 2, 1865, the probate court of Doniphan county ordered the administrator to sell. No copy of the order is given. Counsel argue' that the word “recite” means copy, and that no copy being given, the statute was not complied with, and therefore that the deed lacks force as evidence. We shall not stop to decide this question, for, conceding the claim of counsel to be correct, we think subsequent legislation obviates the objection. The law of 1868 provided that the deed should refer to the order of sale by its date, and the court by which it is made, and shall convey to the purchaser all the right, title and interest,” etc. (Comp. Laws 1879, p. 426, § 132.) This deed plainly meets all the requirements of this statute. Subsequently, and in 1872, (Comp. Laws 1879, p. 426, §133a,) the legislature enacted that—
“Deeds of real estate, made by executors or administrators, before the general statute of 1868 took effect, and which conform to said general statute, or which would be sufficient in form if the same had been executed in proceedings commenced after such statutes took effect, shall not be held irregular or invalid because of the omission of any recitals required by previous law; and notwithstanding such omissions, such deeds shall be held prima fade evidence of the regularity of the proceedings of such administrator or executor, and of- the probate court, and prima fade evidence that the right, title and interest of the deceased in and to such land has been vested in the purchaser, under such deeds, in the same manner as if no such omission had been made.”
This statute fits this case exactly. Conceding the defect in the deed under the statute of 1859, it is beyond doubt complete and sufficient under the law of 1868. The only question therefore is, as to the power of the legislature thus to modify a matter of evidence, and of the power of the legislature in this respect we have no doubt. Reason and authority both uphold it. It will be noticed that no attempt is made to declare an incomplete deed, or any deed, eonclusive evidence. Any such statute may be open to question. It might be argued that where certain things must be done before title can be divested, no legislature can, under pretense of a mere rule of evidence, prevent inquiry as to whether such things were in fact done. (County Seat of Linn Co., 15 Kas. 527.) All that is attempted is, to declare that certain instruments shall be prima fade evidence of prior proceedings and prior rights, and this is simply legislation affecting the remedy — merely changing rules of evidence. The effect of a complete and statutory deed under the laws of 1859 was determined by legislative enactment. Without the statute, such a deed would not be evidence, even prima facie, of prior proceedings. All such would require independent proof. (Gatton v. Tolley, 22 Kas. 678.) The legislature which gave to such deeds such effect as evidence, could withdraw what it had given, and no one could complain. Indeed, it should be noticed here that as the law of 1859 was repealed when the law of 1868 went into force, the effect of a complete and perfect deed made before 1868 as evidence is to be determined by the latter rather than the former law, and this effect is broader and more comprehensive. The law of 1859 made the deed simply evidence of the facts stated therein; the law of 1868, “presumptive evidence that the executor in all respects observed the directions and complied with the requisitions of the law.” (Comp. Laws of 1862, p.533, §142; Comp. Laws of 1879, p.426, §133.) Cooley says, in his work on Constitutional Limitations, p.367: “A right to have one’s controversies determined by existing rules of evidence, is not a vested right.” Any mere matter of evidence is subject to-legislative change. At least, this is true in civil cases, though in criminal cases a different rule seems to have received some-judicial sanction. (Calloway v. State, Tex. Court of App., 21 Albany L. J., p. 216.) It can give to an instrument a larger extent as evidence, or it can withdraw from it all that it had by previous enactment. Here it first gave new force to a perfect, and then equal force to an incomplete deed. It might have given the same force to a mere certificate of the probate court, and it can at the next session withdraw from all deeds even the character of prima facie evidence of any prior proceedings. In the case of Fales v. Wadsworth, 23 Me. 553, where the question was whether an act of the legislature providing that a notarial certificate should be evidence of things done by the notary could apply to certificates made before its passage, the court, holding that it could and did so apply, uses this language :
“But no man can have a vested right in-a mere mode of redress provided by statute. The legislature may at any time repeal or modify such laws. They may prescribe the number of witnesses which shall be necessary to establish a fact in court, and may again, at pleasure, modify or repeal such law; and so they may prescribe what shall and what shall not be evidence of a fact, whether it be in writing or oral; and it makes no difference whether it be in reference to contracts existing at the time, or prospectively.”
Cooley on Const. Lim., p. 368, also says :
‘‘A strong instance in illustration of legislative control over •evidence will be found in the laws of some of the states, in regard to conveyances of lands upon sales to satisfy delinquent taxes. Independent of special statutory rule on the subject, such conveyances would not be evidence of title. They are executed under a statutory power, and it devolves upon the claimant under them to show that the successive steps which, under the statute, led to such conveyance, have been taken; but it cannot be doubted that this rule may be so changed as to make a tax deed prima facie evidence that all the proceedings have been regular, and that the purchaser has acquired under them a complete title. The burden of proof is thereby changed from one party to the other; the legal presumption, which the statute creates in favor of the purchaser, being sufficient, in connection with the deed, to establish his case, unless it is overcome by countervailing testimony. Statutes making defective records evidence of valid conveyances are of a similar nature, and these usually, perhaps always, have reference to records before made, and provide for making them competent evidence where before they were merely void ; but they divest no title, and are not even retrospective in character. They merelj' establish what the legislature regards as a reasonable and just rule for the presentation by the parties of their rights before the courts in the future.”
It seems scarcely necessary to add anything to these authorities. It will be noticed that this legislation does not attempt to change titles, but only evidence. It does not purport to correct defective proceedings, or to supply omissions, as in some cases it has power to do. It is in no proper sense a curative act. And yet many such acts, which are a far higher exercise of power, are within the scope of legislative authority. (City of Emporia v. Norton, 13 Kas. 569.) This statute does not purport to say that an order of sale may be omitted, or that the want of an appraisement is not fatal, or that a report and confirmation of sale are unimportant. Everything that theretofore was essential to a valid sale, still remains equally essential. It has simply changed the kind of evidence which the purchaser must produce of these proceedings. Instead of proving the order of sale by a copy fro'm the records of the probate court, it is prima fade established by the administrator’s deed, which says that such an order was made. But the heirs are not precluded from producing the record, and showing by it the falsity of the statement in the deed. And so as to every other essential step in the proceedings. As was said in the case of the county seat of Linn county, supra: .“The question is not as to the effect of a fact, but the means of ascertaining it, the evidence to be received. Within certain limits the legislature has power to prescribe what shall be evidence, prima facie or conclusive, of any fact.” Without pursuing this line of argument further, we conclude that the deed was properly received as prima facie evidence; and the letters of the administrator de bonis non having been given in evidence, the only other question is as to the jurisdiction of the probate court over the estate of the deceased.
Administration was had under the laws of 1859. Section 2 provides that “letters testamentary and of administration shall be granted in the county in which the mansion-house or place of abode of the deceased is situated. If he had no mansion-house or place of abode at the time of his death, and be possessed of lands, letters shall be granted in the county in which the land or a part thereof lies.” (Comp. Laws 1862, p. 512, § 2.) As Cadue died seized of lands in Doniphan county, administration was proper in that county, unless it is shown that he had a mansion-house or place of abode in some other county. There is no pretense of any testimony that he had a mansion-house elsewhere, but the claim is that he had a place of abode in Atchison county at the time of his death, and that therefore the probate court of that county alone had jurisdiction of his estate. The only testimony bearing on this question is that of Joshua Sanders, one of the plaintiffs, who testified that he knew Peter Cadue in his lifetime, and knew all his heirs; that he “knew Cadue while he was living on these lands; he made some improvements. I saw him building a house. He left there in 1857 or 1858, and went to Kennekuk, Atchison county, Kansas, where he afterward died. He died, I think, in the fall of 1860.” And that of Joseph Randolph, who testified that “Peter Cadue left the land about the spring of 1857. I saw him moving away to Kennekuk, Atchison county, Kansas.” And that of A. Perry, who testified that “Peter Cadue did not live there after the summer of 1857.” As stated, there was a general finding for defendants. This of course implies a finding of jurisdiction in the probate court of Doniphan county, a finding that Peter Cadue had no place of abode in Atchison county at the time of his death. We cannot say that the testimony conclusively shows that this finding was incorrect. We understand the phrase “place of abode” as implying something more than a place of temporary sojourn; it contemplates residence, implies permanence. A mere temporary sojourn in a city, for pleasure or business, away from one’s established residence to which early return is contemplated, is not a “place of abode” within the purview of the statute. Here the purpose of deceased’s removal to Kennekuk is not shown, nor whether he intended taking up a permanent residence there, or still regarded this land as his permanent home, his legal residence. It appears from the testimony quoted, that he built a house on this land before leaving for Kennekuk, and it also appears from the patent that this land was patented to him in pursuance of a treaty with the Kickapoos, who desired that one section, “including his present residence and improvements,” be granted to him on account of his services as interpreter. It is almost as fair a deduction from the testimony that he had a mansion-house in Doniphan county, and on these lands, as that he had a place of abode in Atchison county. At any rate, after the probate court of Doniphan county took jurisdiction and administei’ed upon the estate, and such action remained unchal lenged for years, and then, upon inquiry in the district court, .a finding is made upon this testimony supporting the juris■diction, we do not feel warranted in disturbing the finding.
We have considered this testimony as though the question ■of jurisdiction was fully open to inquiry as an original question— but is this strictly so?
There being no other question in the case, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
As this court is inclined to agree with the plaintiff in error in this case, it will be proper for us to set forth and discuss the questions which the defendants in error claim are involved in the case. Such questions are as follows:
“First, Does a marriage remain valid, after decree rendered, leaving the party fully competent to marry, upon and after review of the decree of divorce and its annulment? Second, Is not the contract made between Ira Comstock and Avis F. Comstock a valid one, and does it not conclude the plaintiff in error in this action? Third, Had not Ira Comstock the right to exclude, by will, his first wife, Avis F. Comstock, from participation in his real estate, she having always been a non-resident of the state of Kansas? Fourth, What authority has the Michigan court to set aside the divorce?”
The answers to all the foregoing questions must, as we think, be against the plaintiff.
I. Upon principle and authority, the first question must be answered in the negative. (2 Bishop on Mar. and Div., §§753, 753a; Crouch v. Crouch, 30 Wis. 667.) When a decree of divorce is set aside and annulled, the marital relations of the parties are placed back in just the same condition as they were before the divorce was granted, and it can make no difference that the party to whom the divorce was granted has married in the meantime, or that a child has been born as the fruit of this second marriage; for the courts cannot be divested of their power to set aside decrees of divorce by the acts of the party procuring the divorce, or by the acts of third persons. All persons are bound to know the law,, and all persons are bound to know the power of courts to set aside and annul decrees of divorce; and knowing all this, if any man and woman (one of whom has been wrongfully divorced from a former husband or wife) choose to take the hazardous risk of being married to each other before the divorce has become final and conclusive by lapse of time, such man and woman must be prepared to endure all the consequences of a final revocation and annulment of the decree of divorce, provided such decree shall ever be annulled. A party to a decree of divorce obtained by fraud cannot defeat the power and jurisdiction of the court to set aside such decree by consummating a second marriage on the next day after the decree is granted, and the person to whom such party is married has no more power to defeat the exercise of the jurisdiction of the court in such cases by such a hasty marriage than the party has. There can be no innocent parties in such cases. In the present case, the second marriage was consummated in just six days after the decree was rendered. Where a decree of divorce is rightfully and properly obtained, there is no danger of its ever being set aside or vacated. It is only where the decree has been wrongfully or fraudulently obtained, that it may be set aside.
II. Said contract between Ira Comstock and Avis F. Comstock was against public policy, and therefore void. Even Ira Comstock himself seems to have thought so; for, after paying the $75 which he paid at the time of making the contract, he forever abandoned the contract, and never afterward fulfilled any of its terms. Said contract was against public policy, and void, because the principal consideration therefor was, that Avis F. Comstock should refrain from all disturbance or molestation of said decree of divorce, which decree of divorce (it must be presumed from the fact that it was afterward set aside) was obtained illegally and wrongfully. As society has an interest in marriages and divorces, the public will not allow individuals to make valid contracts to uphold and sustain illegal and fraudulent divorces. Probably no estoppel could be set up in any case, and certainly not in this case; for in this case the second marriage was had long before this contract was made, and not in pursuance thereof.
Now while we think that said contract was void, still would the defendants be in any better condition if it were valid? If it were valid, then Ira Comstock should have interposed it as a defense to the plaintiff’s proceeding to set aside said decree of divorce. Whether he did so interpose or not, we cannot tell from the record brought to this court; but, whether he did or not, we think the judgment setting aside said decree of divorce is equally conclusive against him, and that judgment virtually overturns and destroys the contract. Although Avis F. Comstock agreed that she would not disturb said decree of. divorce, yet she in fact did disturb it, and the decree was set aside; and that is the end of the matter. When the decree was set aside, she again became the wife of Ira Comstock, with all the rights, privileges and duties of other wives.
III. We do not think that Ira Comstock had the power to exclude by will, and against the consent of his wife, Avis F. Comstock, her right, after his death, to one-half of his property, real and personal, although she may never have been a resident of Kansas; and we think the statutes conclusively settle this question. (Secs. 8, 17, 31 and 32 of the act relating to descents and distributions, Comp. Laws of 1879, pp. 379, 380; §§1 and 35 of the act relating to wills, Comp. Laws of 1879, pp. 1001,1004.) The word “conveyance,” as used in the proviso of .said § 8, clearly does not include a will. A will is never a conveyance. A conveyance operates in the lifetime of the grantor, while a will does not operate until after the death of the maker. Of course, death transfers all property, and a will says where it shall go; but this does not render a will “a conveyance,” “which the husband has made.” It is the death that transfers the property. Besides, if we should hold that the will and death taken together constitute “ a conveyance,” “ which the husband has made,” under said § 8, we would overturn other provisions of the statutes contained in said §§17 and 35. This we cannot do.
IY. In the absence of-anything to the contrary, it must be presumed that the Michigan circuit court, which granted and set aside said divorce, had ample authority and jurisdiction to do the same. (Dodge v. Coffin, 15 Kas. 277, 280, 284-287.) It was a court of general jurisdiction; (Mich, const., article 6, §8;) and presumptively, it had sufficient jurisdiction to set aside one of its own decrees. Besides, the evidence introduced in the court below may have shown conclusively that it had such jurisdiction. None of the evidence has been brought to this court, and therefore we cannot say that it did not so show.
It follows from the foregoing, that the plaintiff, Avis F. Comstock, is entitled to one-half of all the property of Ira Comstock, deceased, not necessary for the payment of debts. The other half of said property should be disposed of in ac•cordance with the terms of the said will of Ira Comstock.
The judgment of the court below will be reversed, and •cause remanded for further proceedings in accordance with this opinion. ’ ■
All the Justices concurring.
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.The opinion of the court was delivered by
Brewer, J.:
Action for wages. Defense, breach of contract in leaving defendant’s employ before expiration of time of service. Verdict and judgment for plaintiff, and defendant brings error. The case was tried by a jury. No complaint is made of the instructions, and the sole errror alleged is that the verdict, and some of the answers to the special questions, are not supported by the evidence.
The defendant was a candy manufacturer, and employed plaintiff to work for him from July 8th, 1878, to January 1st, 1879, at $1.50 per day. The plaintiff worked till October 9th, and then left without notice, and without any fault on the part of the defendant. These facts the jury find; they then find that his services from July to October were worth $1.50 per day, and that it would have cost defendant only $1.50 per day to supply his place, or procure services of equal value, from October to January. Hence they find that the defendant suffered no damage by plaintiff’s breach of contract, and award to plaintiff the balance due him for services rendered, at $1.50 per day. The claim of the defendant is, that the services of plaintiff during the time he worked were not worth the stipulated price, but would have been worth much more during the time he failed to work, and this on the ground that the candy business is dull in the warm, and active in the cold months, especially during the Christmas holidays; that prices of such labor ruled higher during the latter, than the former time; and that defendant agreed to give the price for the first three, for the sake of securing the services during the last three months. Upon these matters the plaintiff testified that his services from July to October were worth $1.50 per day, but said nothing about the value of such services, from October to January- The defendant testified that plain-, tiff’s services to October were worth not to exceed $1 per day, and that it would cost $2.50 per day to fill his place from October to January. He also testified as heretofore stated, as to the reasons for this difference, and his need of the services. Another witness testified that the plaintiff’s services to October were not worth over $1 per day, and that his services thereafter would have been worth $2, or $2.50 per day.' Still another witness called by defendant, while fixing no specific amount, said that such services after October would be worth about double their value before. The plaintiff called a witness who stated that plaintiff’s services to October were worth $2 per day, and thereafter they would have been worth twice as much; also another witness, who-testified that his services up to October would have been worth three or four dollars per day, and after that considerably more; and this was all the testimony. Now in this we see nothing upon which the finding that plaintiff’s services would have been worth only $1.50 per day, after October, can rest. The plaintiff is silent; and every other witness that gives figures. (four in number — two of them his own) places a higher value thereon. All the witnesses who speak on the subject agree that such services were worth much more after, than before October. Now if any single witness had placed such value as low as $1.50, or if from any comparison of tes timony, or in other manner, we could find support for the verdict, we should not disturb it. And where the amount in controversy is so small, a very little matter would justify us in upholding the verdict. But the testimony tells only one story, and that is against the finding and verdict, and reluctantly we feel constrained to set them aside, and order a new trial.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff when she struck her leg on an awning hook on the sill of the front window of a business building in Salina.
Defendant Foran owned the building, and his codefendant, the Salina Firestone Service Stores Company, was the tenant.
The locus in quo was as follows: Fifth street in Salina runs north and south. On its east side is a cement sidewalk twelve feet four inches wide. Facing westward on that street is a two-story brick building fifty feet wide. It has two storerooms on the ground floor, and two apartments on the second floor. Access to the apartments is by a stairway from the street front and between the two storerooms.
Each storeroom has plate-glass windows, divided by a recessed entrance to its doorway. The building sets back from the sidewalk about six inches. This six-inch space is covered by cement, and makes a slight ledge about 1% inches above the level of the sidewalk. The sills of these plate-glass windows are about a foot above this slight ledge, and are made of wood. These sills project outward 3% inches from the plate glass, but are not flush with the sidewalk, there being a margin of 4% inches of clearance between them.
The windows are equipped with canvas awnings which are manipulated by ropes. Small metal plates having prongs or hooks are screwed on the wooden window sills and are used as fastenings for the awning ropes. One of these hooks was screwed on the bottom window sill of the south storeroom, about 13% inches above the level of the sidewalk.
Defendant Foran erected this building in 1916. The work was done by a competent contractor and the building was in good repair at the time of the occurrence which gave rise to this lawsuit. Foran’s codefendant has been the tenant of the south storeroom for some years, and has used it for storage and supplies, not for retail trade. Its front door was usually kept locked. Goods for storage and for retail supplies were carried in and out by an entrance at the rear of the building.
On March 1, 1934, plaintiff, who was then nine years old, resided with her parents in one of the upstairs apartments of the above-described building. About 5 o’clock in the afternoon plaintiff and three other children, accompanied by plaintiff’s mother, descended the stairway, all five of them joined hands, and with the mother in the center, they started southward on the sidewalk. Plaintiff was on the extreme left of the quintette, next to the east side of the sidewalk. In some way which she could not describe her leg caught on one of the prongs of the metal plate on the window sill and severely wounded her just below the knee. Her mother released her and she was given temporary treatment and hospital services and attention later. Infection caused complications which kept her out of school for a time and retarded her progress in school for a year.
This action was begun to recover damages. Plaintiff charged defendants as landlord and tenant with negligence in various particulars.
The defendant, Salina Firestone Service Stores Company, answered with a general denial, admitted its tenancy of the south room on the ground floor; alleged that its occupancy was for warehouse purposes exclusively, that it kept the front door locked and used a rear door for carrying merchandise into and out of the building, and that the front of the building was in the same condition on March 1, 1934, as it had been during all the time of the tenancy. It also alleged that it placed no awning hooks on the building, that any such hooks were not used by it, and it did not know of their existence, and that the building was not out of repair, and—
“Neither the front of said building, nor any attachments thereto, extended to or over the sidewalk in front of said building, and if the plaintiff, Mary Ellen Mitchell, sustained any injury at the time and place alleged in her petition, on account of coming in contact with any device attached to said building, such injury did not result while in the usual and ordinary use of said building, sidewalk or device; but such injury, if any was sustained, resulted from the negligence, carelessness and want of care on the part of the said Mary Ellen Mitchell.
“Wherefore, this answering defendant prays that the plaintiff take nothing in this action, and that it have its costs in this behalf expended; but if the plaintiff is awarded any damages against this answering defendant, this defendant prays that it may have judgment against the defendant, Owen Foran, for a sum equal to that awarded against it.”
Defendant Foran’s answer consisted of a general denial; admitted he was the owner of the building but was not in the occupation or control of it at the time of the accident; that neither the device claimed to have caused the injury, nor the building itself, extended to or over the sidewalk. He alleged that if plaintiff suffered any injury it did not result while she was in the usual and ordinary use of the sidewalk, but that such injury, if any, resulted from negligence, recklessness and want of care on the part of Mary Ellen Mitchell, and if she came in contact with the awning hook she did so while acting as a trespasser, and brought injury upon herself, and not by any reason, fault or want of care on the part of defendant; and that if she did not speedily and permanently recover from the injury it resulted from want of timely and adequate care.
The cause was tried before a jury, which returned a verdict for $900 against both defendants, and answered special questions thus:
“1. When the awning hooks were placed on defendant’s building were such devices commonly and generally used as a part of awning equipment? . A. Yes, but not in the position or location used in this case.
“2. How long had the awning hook, claimed to have caused the injury, been upon defendant’s building at the place it existed on March 1, 1934? A. According to evidence submitted, approximately 17 or 18 years.
"3. Prior to the date of this accident would an ordinarily prudent person in defendant’s position, as owner or occupant of the building, have had reason to apprehend that the presence of the awning hook on the building, of which plaintiff complains, would likely cause injury to a person coming upon the premises or using the sidewalk in the exercise of ordinary care for his or her safety? A. Yes.
“4. How wide was the sidewalk at the time and place of the accident? A. Approximately 12 feet 4 inches, according to evidence.
“5. Did the awning hook, claimed to have caused the injury, extend to or over the sidewalk? A. No.
“8. Was the front of the Foran building out of repair on March 1, 1934? A. According to evidence it was not.
“9. Did Mary Ellen Mitchell know where the awning hooks were located for a long time prior to March 1, 1934? A. Yes.
“10. Would Mary Ellen Mitchell by the use of such care as a child of her age ordinarily uses have passed in front of the Foran building on any part of the sidewalk without striking or injuring her leg upon the awning hooks on the front of the building? A. Ordinarily yes — except when crowded to east edge of walk.
“12. If you find the defendant, Owen Foran, was guilty of any negligence state specifically what acts constituted such negligence. A. By permitting the awning hook to be placed upon his building in the position and location it was placed and remaining there until the time of the accident on March 1, 1934.
“13. If you find the defendant, the Salina Firestone Stores Company, was guilty of any negligence, slate specifically what acts constituted such negligence. A. As a tenant of the building to permit the awning hooks to remain on the building in the position and location in which they were placed.”
Judgment was entered on the verdict. Both defendants appeal, making common cause against the judgment. They also present a legal question on which they differ and which will require our attention if none of the errors they both urge against the judgment is sustained.
Defendants first contend that no actionable negligence was established. There was, indeed, no testimony that the placing of the awning device on the window sill so close to the sidewalk was an improper place for it or a negligent placing and maintaining of the thing; but we cannot agree that the trial court and jury had no basis for their finding of negligence, No. 12. The basis of that finding inheres in the facts which it recites — facts which were never in dispute. True, the finding is a conclusion, but it is one the jury had a right to make. The jury had been taken to view the building and were shown the spot where the awning hook which wounded the plaintiff had been affixed. And while there was testimony that the awning hook had been fastened to the building in conformity with good building practice at the time it was erected, this court cannot say that the question whether the awning hook was in a proper location was one on which only experts were entitled to testify. The question was obviously so simple that any juror could perceive, without oral testimony, the mischievous possibilities likely to result from the placing of the awning hook so close to the ground and so close to the sidwalk where people might collide with it. In King v. King, 79 Kan. 584, 100 Pac. 503, this court said:
“A mechanical device may, of course, be so simple that any person of ordinary intelligence can judge of its effect in actual operation as well as a trained machinist.” (p. 586.)
The mere fact that the awning hook had not theretofore injured a pedestrian did not disprove negligence. In Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658, it was held that where a nine-year-old child carrying a sack of fuel was thrown and injured by a tumbling rod of a hay press which projected into an alley, the fact that the tumbling rod had been thus situated for years did not exempt the owner nor the city for the consequences of negligence inherent in the circumstances. In Fischer v. City of St. Louis, 189 Mo. 567, 576, 88 S. W. 82, 107 A. S. R. 380, the action was for damages for injuries sustained by plaintiff in falling over a millstone which had long been permitted to remain on a sidewalk. There was ample room for pedestrians on the sidewalk between the millstone and the street curb. Plaintiff, an elderly washerwoman, was familiar with the presence of the millstone and passed it a dozen times a day. In holding that the case was one for a jury to decide, the supreme court said:
“The long period of time that this condition of things was allowed to exist does not tend to render it sacred in the eyes of the law, for an original sin of negligence will not ride into the wilderness on a scapegoat of mere time, and it must not be lost sight of that to pedestrians the mere fact that a condition has existed for a long time is of no significance, except it speaks to the point of notice and knowledge which necessarily varies as to each one.”
While in the last two cases the thing which caused the injury projected into the traveled way, yet the same rule of law has been applied where the defects causing injuries to passers-by were out side but near the traveled way. Thus, in Bank v. Bennett, 100 Kan. 90, 163 Pac. 625, it was held:
“One who creates a pitfall or excavation so near a public highway as to endanger persons lawfully using the highway is liable for an injury sustained by one who without fault falls therein while attempting to follow the highway.” (Syl. IF 2.)
In Durst v. Wareham, 132 Kan. 785, 297 Pac. 675, a rickety shed was situated beside an alley, one corner post of the shed being thirty-six inches outside the alley line. The motorcycle on which plaintiff was riding in the alley skidded into the comer post and knocked it down. This accident caused the shed roof to fall and injure the plaintiff. In affirming a judgment against the owner of the shed, this court said:
“It is the duty of the owner of land adjacent to or abutting upon a highway to so construct and maintain the structures on his land as not to endanger the safety of travelers using the highway in a lawful manner.” (Syl. Ft 1.)
In Chickering v. Thompson, 76 N. H. 311, 82 Atl. 839, the owner of a vacant lot on which a stake protruded close to the sidewalk was held liable to plaintiff who tripped on the stake while using the walk.
In Athens Electric Light & Power Co. v. Tanner, (Tex. Civ. App.) 225 S. W. 421, an electric-power company maintained an unguarded guy wire close to a highway. A horse, on which plaintiff was riding, got astride of the guy wire and became frightened, and plaintiff was unseated and broke his arm. Judgment imposing liability on the power company was affirmed, and among pertinent paragraphs of the headnotes, one which accurately summarizes the text of the opinion reads:
“What distance in measurement from a public road a dangerous place must be in order not to be in close proximity with the road to free a person from responsibility for the place, and also from responsibility for injuries therein to a traveler, is a question for the jury to determine under the facts.” (Headnote 9.)
In the case under review the awning hook was 4% inches from the east edge of the sidewalk and 13% inches above the level of the i sidewalk, where the slightest deviation consciously or unconsciously taken by a pedestrian was likely to cause him to brush against it and snag himself exactly as happened to this plaintiff. And the fact that this nine-year-old plaintiff knew of the existence and situation of the awning hook did not deprive her of her right of re covery as a matter of law. In Chickering v. Thompson, supra, the New Hampshire supreme court said:
“If it is conceded that the plaintiff knew Wells [defendant’s tenant] was maintaining the stake, it cannot be said as matter of law that she is in fault merely because she forgot about it. Neither can it be said it conclusively appears that she is in fault because she failed to see the stake in time to avoid coming in contact with it; . . .” (p. 313.)
See, also, Devine v. Heckman, 121 Kan. 22, 245 Pac. 1037, and citations.
Defendants next complain of the jury’s findings. Touching No. 1, they contend there was no evidence to support the jury’s qualification of their affirmative response. Neither was there any evidence to show that the position and location of the awning hook which injured the plaintiff was a proper place to attach it to the building. But there was ample evidence that the jury had a clear understanding of the factual situation, and they were also given an ocular inspection of it (R. S. 60-2910), and thus the jury’s qualified response was justified. In Waterworks v. Brown, 6 Kan. App. 725, 50 Pac. 966, it was said:
“A jury may, in considering their verdict, take into consideration the view of the premises — when a view is permitted by the trial court — and the results of their observation, in connection with the evidence produced before them.” (Syl. IT 1.)
To like effect were City of Topeka v. Martineau, 42 Kan. 387, 22 Pac. 419; and Gartner v. Williams Oil & Gas Co., 125 Kan. 199, 263 Pac. 778.
Defendants moved to set aside the words which qualified the jury’s affirmative response to question No. 10. Their contention is that there was no evidence that plaintiff was crowded to the east edge of the sidewalk. „ There was evidence that plaintiff and three other children and plaintiff’s mother, with hands joined, were walking southward, and that these five persons made room for two persons to pass going northward. This happened on the sidewalk at the point where the awning hook projected from the window sill within 4% inches of the sidewalk. Obviously the jury’s reference to crowding related to this incident, and it was not a mere imaginative invention to the jury.
Finding No. 3 is also objected to, but we think it was fairly within the issues and supported by the evidential circumstances, so far as it concerns the owner of the building, at least.
Defendants also contend that the facts and circumstances showed so clearly that plaintiff was guilty of contributory negligence that the question was resolved into one of law and not a jury question. We think not. So common are the cases where persons are injured by objects on or near a public way, on account of their momentary inattention or because their attention has been diverted to other matters than the safety of the way and its immediate environs, that even adult persons are not ordinarily denied damages for such injuries as a matter of law. Ordinarily such cases are for the jury’s determination. Still more emphatic is the rule that such situations present jury questions of contributory negligence where the injured persons are children of tender years. (Bellamy v. Railways Co., 108 Kan. 708, 196 Pac. 1104, and citations; K. P. Rly. Co. v. Whipple, 39 Kan. 531, syl. ¶ 4, 18 Pac. 730.)
Some criticism is made of the instructions, but this court discerns nothing amiss in them to warrant special discussion. The eleventh instruction told the jury that if they found that plaintiff should recover it would be proper to allow her something substantial for her injuries, for her pain and suffering, and for the inconvenience and lessening of her capacity, if any, to earn a livelihood, on account of such injury, together with her expenses for medical services, medicine and dressings, which last three items were admitted to be $159.85. The jury allowed plaintiff $900 in toto, which would only amount to $740.15 net. If there was no evidence to justify the inclusion of some amount for plaintiff’s lessened capacity to earn a living (and the loss or hindrance of a year’s schooling might justify such an item of damages), the limited amount of the verdict leaves no room for an inference that any amount was allowed for “lessened capacity.” Moreover, if counsel for defendants thought such an instruction prejudiced them, they should have asked to have the aggregate amount of the general verdict itemized. Good practice justifies such procedure, and on appeal it gives this court a fair opportunity to judge how intelligently and impartially the jury has dealt with the question of damages. (Merrick v. Missouri-K.-T. Rld. Co., 141 Kan. 591, 597, 42 P. 2d 950.)
The foregoing disposes of the principal objections to the judgment raised by both defendants. Next, we will consider the special point urged by the Salina Firestone Service Stores Company that it should have judgment over against its codefendant for whatever liability it has to pay to satisfy plaintiff’s judgment. A majority of this court approach this question from a somewhat different viewpoint, which, however, leads to the result for which the Firestone company contends. While, ordinarily, a landlord is not responsible for defects of a building caused by wear and tear, or when the premises get out of repair (except by special contract with his tenant), yet he is liable for structural defects (Restatement, Torts, § 379), and this awning hook, situated where it was, according to the indisputable facts, and also according to findings Nos. 2, 3, 6, 7, and 12, was a structural defect and nothing else. On the other hand, a majority of this court hold that this tenant’s occupancy of a part of the Foran building as a warehouse, not as a retail establishment to which the public were invited, and where the commonly used way of ingress and egress was at the rear, did not impose on the tenant a duty to remove the awning fixture which had been attached to the front window sill for seventeen or eighteen years. Here there was no basis for the application of the rule touching the implied duty of a tenant not to permit the premises occupied by him to get out of repair, and the consequent liability imposed on him for injuries to third persons resulting from his negligence in permitting his premises to fall into disrepair. In this case that portion of defendant Foran’s building rented by him from month to month to his codefendant was not in a state of disrepair. (Findings Nos. 6 and 8.)
It follows that the judgment against the defendant Foran should be affirmed, and the judgment against his codefendant, the Salina Firestone Service Stores Company, should be reversed and set aside.
It is so ordered.
Hutchison, J., dissenting.
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The opinion of the court was delivered by
Burch, C. J.:
The action was one by landowners to cancel a mineral royalty conveyance. The district court canceled the conveyance, and quieted the landowners’ title. Defendant appeals.
The defendant, The Landowners Oil Association, is a Delaware corporation, engaged in operating a pool of oil and gas royalty interests, pursuant to a plan heretofore considered by this court. (Moos v. Landowners Oil Ass’n, 136 Kan. 424, 15 P. 2d 1073, November, 1932. See, also, Beltz v. Griggs, 137 Kan. 429, 20 P. 2d 510, April, 1933; Ward v. Home Royalty Ass’n, 142 Kan. 546, 50 P. 2d 992, November, 1935.)
J. A. Collins owned the land involved, and leased to Buford & Brimm for oil and gas purposes, reserving a share of mineral produced, known to the industry as royalty, and in case of delayed pro duction, certain payments known as rental. In January, 1929, Collins deeded one half his royalty and rental to the oil association, to be placed in the association’s “Pool A,” from operation of which Collins was to receive periodically distributive shares of income. On April 8, 1929, Collins conveyed the land to plaintiffs by warranty deed which excepted from the covenant relating to former grants, two mortgages, the oil and gas lease, and the royalty deed to the oil association. The deed also provided that all rentals and royalties were to follow the land, which was operatively interpreted as assigning to plaintiff Collins’ share of pool income, as well as his unsold rental and royalty.
On January 22, 1934, plaintiffs commenced their action. The sole ground for the relief prayed for was that the oil association had not, before taking the Collins royalty deed, obtained a permit to sell speculative securities, the distributive shares of income from operation of “Pool A,” which Collins obtained for his royalty deed, being confessedly speculative securities. The case was determined on an agreed statement of facts. The court found the conveyance was void, and rendered judgment as indicated.
The district court erred. The Collins conveyance was not void for failure of the oil association to procure a permit, but was voidable only, and was voidable only under certain conditions.
The purpose of the speculative securities act was to prevent accomplishment of fraud. The act in force when the royalty deed was made provided that it should be “unlawful” for any person to sell speculative securities without first obtaining a permit to do so fR. S. 17-1202), and a penalty was imposed for violation of the act. Before the statute was enacted, it was not unlawful to sell such securities. Such transactions were not malum in se, and the statute did not make them so. They were merely forbidden, except on condition a permit should first be obtained. A void transaction has no effect on legal relations, cannot be ratified, an.d estoppel may not be urged against one who seeks to avoid it.. This court has uniformly held that no such consequences attend a sale in disregard of the speculative securities act.
In the case of Merriam v. West, 114 Kan. 131, 216 Pac. 1102, the court allowed recovery by the endorsee for value without notice of infirmity, on a promissory note given for purchase of speculative securities. This would not have been permissible, with or without a negotiable instruments act, if the note had been void in the sense it was classifiable with forged instruments.
In the case of Wichita Duntile Co. v. Wright, 130 Kan. 139, 285 Pac. 635, real estate was conveyed to the company for shares of stock of the company, which were speculative securities. In an action by the company to quiet title against its grantors, it was contended the conveyance was void because the company had not obtained a permit to sell such securities. From a judgment quieting the title of the company, the grantors appealed. This court affirmed the judgment on the ground the grantors were estopped, for reasons stated in the opinion, to question effectiveness of their conveyance. Therefore a sale of speculative securities without a permit may not always be avoided, even as between the original parties.
In the royalty pooling cases of Moos v. Landowners Oil Ass’n, and Beltz v. Griggs, supra, this court distinctly held that failure to procure a permit to sell speculative securities did not render royalty conveyances absolutely void, but merely rendered them voidable as between the parties.
In the opinion in the case of Westerlund v. Black Bear Mining Co., 203 Fed. 599, 611 (C. C. A. 8th Cir.), Judge Sanborn, speaking for the court, called attention to the fact that the statute of 13 Eliz., c. 5, declared a conveyance in fraud of creditors to be “utterly void, frustrate, and of none effect.” But such conveyances were universally held to be voidable only, to be valid until avoided, to be voidable only by the persons to be protected, and to be capable of ratification by those persons. The same is true of numerous regulatory statutes besides the speculative securities act.
The speculative securities act now reads:
“Every sale ... in violation of any of the provisions of this act shall be voidable at the election of the purchaser.” (R.S. 1933 Supp. 17-1240.)
This provision appeared in the general revision in 1929 of the speculative securities act (Laws 1929, ch. 140, § 18). When enacted, the provision was in accord with settled existing law and was, in fact, merely declaratory of the existing law. The act was passed and approved in March, 1929, before Collins conveyed to plaintiffs in April, 1929, but the act did not take effect until July 1, 1929.
Plaintiffs contend the Collins royalty conveyance to the oil association was void as unconscionable. The question was not raised by the petition, which counted solely on failure to obtain a blue- sky permit. The question was not referred to in the agreed facts. The question was not referred to in the district court’s findings, and was not decided by the district court. If the question were before this court for consideration, the decision in the Moos case would be pertinent.
Plaintiffs refer to certain language used in the opinion in the case of Ward v. Home Royalty Ass’n, 142 Kan. 546, 50 P. 2d 992. The sole question in that case was whether the speculative securities act operated to burden interstate commerce. The opinion was devoted to showing the speculative securities act was a proper exercise of police power of the state to secure its citizens against accomplishment of fraud. The subject of intrinsic fraud as a ground of cancellation was not involved in the Ward case, and is not involved in this case. If it were, the decision in the Moos case and the decision in the Beltz case would be pertinent.
Collins conveyed to defendant only half of his royalty and rental under the mineral lease. Pursuant to the deed from Collins to plaintiffs, the other half went with the land to plaintiffs. Plaintiffs sued defendant for the share of rental which defendant had received after plaintiffs became owners of the land. Plaintiffs received from defendant dividends from operation of the pool. The amount received by defendant was greater than the amount defendant paid to plaintiffs, and the district court rendered a money judgment in favor -of plaintiffs and against defendant, for the difference.
Defendant raised two questions in its answer: First, privilege of' plaintiffs to avoid the Collins royalty conveyance; and second, if plaintiffs ever had such privilege, whether they could exercise it when they undertook to do so.
It will be recalled the Collins royalty conveyance to defendant was made in January, 1929, and'plaintiffs purchased the land of Collins in April, 1929. The Collins royalty conveyance to defendant was on record, and was referred to in the deed from Collins to plaintiffs.
The Collins royalty conveyance to defendant recited that the pool in which his royalty was placed consisted of more than 10,000 acres of oil and other mineral royalty rights assembled by defendant, and placed in “Pool A” within six months of the first conveyance. One stipulation of fact was that about the date of the Collins royalty deed defendant entered into a number of other similar transactions in Rooks county and in a number of other counties in the state of Kansas. Collins received one small dividend from operation of the pool. Thereafter plaintiffs received from defendant small dividends as follows: One in June, 1929; two in September, 1929; one in December, 1929; two in March, 1930; one in June, 1930; two in September, 1930; one in December, 1930; one in March, 1931; one in June, 1931; one in December, 1931; one in September, 1932; one in December, 1932; one in December, 1933.
Plaintiffs did not commence their action until January 22, 1934. Assuming plaintiffs were originally privileged to avoid the royalty conveyance, they were required to act with reasonable promptness and decisiveness. They could not affirm for a while and then dis-affirm. Operation of the pool affected property and financial interests of many persons, and plaintiffs could not experiment regarding the advantages to them of membership in the pool for more than four years, and then successfully apply to a court of equity to take them out.
The Collins royalty deed to defendant was voidable by Collins on the ground defendant had not procured a permit to sell speculative securities. The deed was not void and was valid until dis-affirmed. Collins affirmed it. He accepted a dividend, and when he sold to plaintiffs, he expressly excepted from his warranty against former grants the outstanding royalty deed to defendant, just as he excepted the mineral lease itself. The result is, plaintiffs have no privilege to avoid the royalty deed. The speculative securities act was not passed for their benefit. It was passed for the benefit of the class of persons to which Collins, as a buyer of speculative securities, belonged, and to which plaintiffs, as land buyers, did not belong. If Collins were satisfied, no one could complain for him, and he was satisfied.
A contention, based on the decision in the case of Flick v. Murdock, 115 Kan. 862, 225 Pac. 119, that plaintiffs purchased from Collins privilege to avoid the royalty deed, is without merit. Plaintiffs purchased with notice and with actual knowledge of the royalty deed. They got what their deed granted to them, which included the land, a share of rental and royalty, determinable by taking into account the royalty deed, and benefits under the royalty deed.
The judgment of the district court is reversed and the cause is remanded with direction to enter judgment for defendant.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal by defendant from a judgment and sentence as a persistent violator of the prohibitory law, following a verdict of guilty to that effect.
He contends that the evidence was insufficient to prove his illegal possession of intoxicating liquor or the maintenance of a liquor nuisance. The evidence in brief was as follows: Police officers called at defendant’s home in Wichita. One of them knocked at the front door; defendant’s wife opened it, and seeing a policeman, she slammed the door, locked it, and called her husband. The officer kicked the door open and went into the bathroom, where defendant’s wife was pouring a jug of whisky into the stool. He took the jug from her and she again called her husband, this defendant. He came and when he saw the officer in possession of the whisky jug he said, “Well, I guess I had better get ready.”
Other evidence tending to show that the defendant’s home had been turned into a liquor nuisance was some bottles of beer and empty beer bottles and'an empty flask on the back porch and three jugs in the bathroom, two of which were empty. Thfe liquor in one of the jugs tested 50 percent alcohol. This evidence was quite sufficient to take the case to the jury on a charge of violating the prohibitory law. (State v. Perry, 102 Kan. 896, 171 Pac. 1150; State v. Nossaman, 118 Kan. 157, 233 Pac. 1028; State v. Carl, 124 Kan. 277, 259 Pac. 680.).
The fact that defendant had been previously convicted of violations of the prohibitory law was not in dispute, so that the only issue in this case was the sufficiency of the evidence to prove a breach of the intoxicating-liquor act.
Defendant cites State v. Metz, 107 Kan. 593, 193 Pac. 177, which dealt with the requisite facts to constitute possession of liquors, and State v. Ciccel, 101 Kan. 787, 168 Pac. 867, which considered the sufficiency of the evidence to sustain a verdict of guilty. We discern nothing in either of these cases which could justify a reversal of the judgment in the case at bar.
In defendant’s behalf evidence was adduced to show that the presence of the intoxicating liquors in defendant’s home was altogether without his knowledge, that his stepdaughter’s brother-in-law had brought the whisky to defendant’s house and put it in the bathroom while defendant was away from home at manual labor, and that when he returned from his day’s work he did not go to the bathroom, but washed in the kitchen, and that he did not see any bottles, jugs or liquors about the house that evening. But it hardly needs to be said that the jury were not bound to believe that evidence; and the credence to be attached to it was their concern, not ours. Indeed, the circumstance that defendant’s kinsfolk or guests felt privileged to bring intoxicating liquors into his home was not without some- damaging significance to the defense of this case. (State v. Hancock, 127 Kan. 510, 274 Pac. 209; id., 128 Kan. 11, 275 Pac. 1089,)
Defendant complains because the trial court permitted the jury to smell the whisky in the jug which the police officer took from defendant’s wife. We think this was an impropriety, although we have heretofore held that such an incident was nonprejudicial. (State v. Watson, 92 Kan. 983, 142 Pac. 956; State v. Jackson, 121 Kan. 711, 249 Pac. 688.) In this case the record does not show that the intoxicating qualities of the liquor seized by the officer were in dispute, consequently we must say once more-that this “smelling” incident complained of did not constitute prejudicial error. But surely the manifest reluctance of this court to give countenance to such incidents, as repeatedly intimated in our opinions, should prompt prosecuting attorneys and trial courts to refrain from such practices.
Defendant also complains of the testimony given by a police officer touching complaints the police department had received concerning defendant’s premises. It does not appear that this trial error, if such it was, was pressed on the trial court’s attention on the hearing of the motion for a new trial, consequently no reversible error can now be predicated on it. (Crim. Code, §§ 210, 275, R. S. 62-1414, 62-1603; State v. Heustis, 118 Kan. 152, 233 Pac. 801. But see, further, State v. Brooks, 74 Kan. 175, 85 Pac. 1013; State v. Adler, 119 Kan. 757, 241 Pac. 119; State v. Gendusa, 122 Kan. 520, 253 Pac. 598.)
There is nothing further in this appeal of sufficient importance to justify discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover the price of a Chevrolet coupé. The defendant prevailed, and plaintiffs appeal.
The facts are substantially these. The plaintiffs, mother and son, were engaged in the automobile business in Superior, Neb. One A. R. Rodefer conducted a garage business in Republic City, Kan. The Citizens State Bank of Republic City was in need of a car and entered into negotiations to purchase a Chevrolet coupé from the plaintiffs through Rodefer. Rodefer was a customer of the defendant bank and had an overdraft. He brought a Chevrolet coupé from plaintiffs at Superior, Neb., to Republic City, to demonstrate to J. W. Werts, cashier of defendant bank. The latter purchased the car, but instead of paying plaintiffs therefor delivered a deposit slip to Rodefer, showing deposit by him with the defendant bank of a “Chevrolet coupé, $400.” Rodefer then wrote his check to plaintiff for the $400, payment of which was refused by the bank, it having charged Rodefer’s overdraft against his account. The plaintiffs sought to recover the automobile or its equivalent value. Rodefer having removed to California, his testimony was taken by deposition. On the trial of the case material parts of his testimony were stricken out. Other material testimony offered by plaintiffs was rejected, then a demurrer to plaintiffs’ evidence sustained and judgment directed for the defendant.
The bank contends that it was dealing with Rodefer; that he was engaged in the garage business; that it purchased the automobile from him and that when the purchase was made it gave him credit as evidenced by the deposit slip. That it was compelled to honor Rodefer’s checks; that it had the right to' apply any credit of Rodefer in his account to his other indebtedness to the bank. That Rodefer was the agent for the plaintiffs, was lawfully in possession ■of his principals’ (plaintiffs’) property and that the deposit was properly made. It also argues that the acceptance by the plaintiffs of Rodefer’s check was a ratification by the plaintiffs of the act of Rodefer in making the deposit in the bank.
The defendant’s presentation of the matter to the lower court, and here, is subtle and adroit, but cannot be sustained. The facts were, substantially, that Werts told Rodefer the bank was in need •of a good, secondhand automobile. Rodefer told Werts that plaintiffs had such a car, which he believed would be all right and suitable for the purpose. Werts stated he would like to see the car .and try it out; that if it was all right he would buy it for the bank. Rodefer then told Werts he would go to Superior and have Mrs. Berg bring the car down or bring it himself and give a demonstration. To this Werts assented. Accordingly Rodefer went to Superior, told Mrs. Berg that the bank desired a good, secondhand car; that he came to see about a demonstration of it. She advised him she was just leaving for Colorado, but after consideration agreed that he could take the car to Republic City, but stated that she wanted $400 in cash for the car, or the car returned that day or the next. Rodefer drove the car to Republic City, demonstrated it to Werts, had considerable negotiation about it, but told Werts that Mrs. Berg had to have $400 net for the car. Werts took the car and had it stored in the basement of the Ford agency at Republic City, where it remained several weeks. Upon Mrs. Berg’s return from Colorado ■she learned that the car had not been paid for. She made several .attempts to see Werts who was “out.” She got no satisfaction from •other officers of the bank and was compelled to bring this action to recover the car or its value.
What the bank actually attempted to do was to take plaintiffs’ car in payment of Rodefer’s overdraft. With full knowledge of all the facts it had no right to do this. Cases cited by the defendant as sustaining its right to convert this automobile to payment of Rodefer’s account (Martin v. Bank, 66 Kan. 655, 72 Pac. 218; Kimmel v. Bean, 68 Kan. 598, 75 Pac. 1118; Benjamin v. Bank, 98 Kan. 361, 158 Pac. 65; Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992) and other similar authorities, have no application. Plaintiffs concede that a bank has the authority to apply the checking account of a depositor on the past-due indebtedness of the depositor with the bank (Citizens Bank v. Bowen, 21 Kan. 354; Docking v. Commercial National Bank, 118 Kan. 566, 235 Pac. 1044) but, and we think rightfully, contend that those cases have no application to the facts here. “As a general rule the sale must be for cash only, and in the absence of special authority, mere authority to sell does not give the agent authority to sell on credit and such an agent cannot bind his principal by receiving payment in bonds, notes, or other paper.” (2 C. J. 599, § 234.) In Mechem on Agency it is said:
“In 'the absence of anything to the contrary, it will be presumed that the sale is to be for cash in hand. An agent authorized to sell chattels has, therefore, no implied power to give credit unless there is a valid usage to that effect at that time and place.” (§ 353.)
Section 344 of the same treatise states:
“For reasons similar to those preventing payment to an agent authorized merely to sell, the purchaser cannot set off against the principal a debt due him from the agent.”
Section 785 of the same work reads:
“It is a general principle that no man can be divested of his property, without his own consent or voluntary act. Hence whoever claims to have acquired the title to goods of the principal, through some dealing with his alleged agent, must be prepared to show, not only that the agency existed but that the agent had authority so to transfer the property. Without the coexistence of both of these elements, the title must fail. The question of authority here is the same as in other cases which have been considered. The act must be within the scope of the authority which the principal has held the agent out to the world as possessing.”
In the opinion in Grubel v. Busche, 75 Kan. 820, 822, 91 Pac. 73, the court said:
“Moreover an agent with authority to sell has only the implied power to sell for cash and it is undisputed that Busche paid no cash but merely surrendered to the agent, Dysert, a note which he held against Dysert. It is well settled that a sale under such circumstances passes no title as against the .owner.” (See, also, Henderson v. Gibbs, 39 Kan. 679, 18 Pac. 926; Schulein v. Hainer, 48 Kan. 249, 29 Pac. 171; Guernsey v. Davis, 67 Kan. 378, 73 Pac. 101.)
In Warner et al. v. Martin, 11 How. (U. S.) 209, 13 L. Ed. 667, it was held:
“When a merchant, in order to secure himself from loss, took merchandise from a factor, with a knowledge that the factor was about to fail, the principal who consigned that merchandise to the factor may avoid the sale, and reclaim his goods, or hold the merchant accountable for them.”
And the court also held:
“A factor or agent who has power to sell the produce of his principal has no power to affect the property by tortiously pledging it as a security or satisfaction for a debt of his own, and that it is of no consequence that the pledgee is ignorant of the factor’s not being the owner.
“Nor can a factor sell the merchandise of his principal to a creditor of the factor in payment of an antecedent debt. Such a transfer is not a sale in the legal acceptation of that term.” (See, also, Grocer Co. v. Alleman, 90 Kan. 363, 133 Pac. 575; Harnish v. Barzen, 103 Kan. 61, 173 Pac. 4; Tough v. Bank, 89 Kan. 583, 132 Pac. 174; Grooms v. Neff Harness Company, 79 Ark. 401, 96 S. W. 135; Crocker v. United States, 240 U. S. 74, 60 L. Ed. 533.)
The plaintiffs complain of the exclusion of evidence. Defend-, ants reply that the excluded evidence offered by the plaintiffs was not reproduced on the motion for a new trial, so that the alleged error is not available on review. (R. S. 60-3004, Robinson v. Sullivan, ante, p. 248.) The rule invoked by the defendant does not apply because the court sustained a demurrer to plaintiffs’ evidence and no verdict or decision was rendered. (Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299; City of McPherson v. Stucker, 122 Kan. 595, 256 Pac. 963.) Moreover, part of such evidence was stricken from the deposition of Rodefer, the formal presentation of which was not necessary on the hearing of the motion for a new trial because the rule does not apply to documentary evidence. (City of McPherson v. Stucker, supra.) The rejected oral evidence proffered by the plaintiffs was for the purpose of showing the value of the car and was rejected because it was immaterial. We think this ruling correct. It appears to be conceded by the defendant that it purchased the car for the agreed price of $400. The plaintiffs sued to recover $400, so there is no dispute between the parties as to the amount. If plaintiffs recover, the amount is fixed. Such evidence was therefore immaterial. Not so concerning the evidence stricken from the deposition. Some time after the sale of the car to the bank Rodefer removed to California. His deposition was taken there. He was asked in his direct examination relative to going to Superior, getting the car, bringing it back and talking with Werts with reference to selling it. Portions of his answers bearing upon his agency was stricken out. We think this was error. Other answers giving his conversation with Werts, defendant’s cashier, were excluded on the ground that they were not responsive to the question. The court offered to continue the case for the retaking of the deposition, but plaintiffs chose to proceed. We think the court was mistaken, also, in striking this testimony from the deposition. The whole subject matter was being testified to by Rodefer who, as agent for the plaintiffs, had the dealings with the defendant, and the sustaining of the objection and striking of testimony from the deposition was highly technical. Upon a new trial such testimony should be admitted.
The defendant in a cross appeal complains that it was not permitted to submit to the jury a defense pleaded in the answer to the effect that the plaintiffs had caused the arrest of Rodefer for giving •the check, knowing at the time “that he had no funds on deposit with the bank with which to pay the check.” It is contended that the plaintiff Zona Berg swore to the. complaint and caused the arrest, and that the allegation in the complaint is directly opposed to the allegations of the petition, and that estoppel should apply. We cannot sustain this contention. The swearing to the complaint against Rodefer under all the circumstances was not an election of remedies, was not inconsistent with the claim of plaintiffs against the defendant and did not preclude recovery of the price of the car from the defendant. The filing of complaint and causing the arrest of Rodefer by the plaintiffs was not a defense to the action for recovery of the price of the car. In this connection it may be observed that a motion by the plaintiffs to strike from Rodefer’s deposition certain questions asked by the defendant with relation to the criminal prosecution, should have been sustained.
The judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Bxjrch, J.:
The action was one to set aside a deed executed by Lydia J. Hopkins in her lifetime. Plaintiffs were heirs of the grantor. The deed named as grantees Lena M. Hotchkiss, daughter of the grantor, and Charles B. Hotchkiss, husband of Lena M. Hotchkiss. Plaintiffs prevailed, and Lena M. Hotchkiss appeals.
The deed was filed for record after the death of the grantor. Effectiveness of the deed as a conveyance was challenged on several grounds, which were sustained by the trial court. Elaborate findings of fact and conclusions of law were made. One of the findings was that the deed was not delivered. The finding was sustained by abundant evidence, which need not be recited here.
At the trial, testimony relating to execution of the deed and its nondelivery was given by Ray H. Woods, the notary who took the grantor’s acknowledgment. He testified the grantor was propped up in bed when she attached her signature to the instrument. At the hearing on the motion for new trial Lena M. Hotchkiss introduced in evidence her own affidavit stating she was greatly surprised at this testimony. To justify the granting of a new trial, she introduced in evidence the affidavit of one F. H. Niles, stating that after Woods had testified, Niles heard him say he was hazy in his mind concerning the transaction, and had forgotten that the grantor was sitting in a wheel chair instead of in bed. The affidavit of Mrs. Hotchkiss, not of Woods, states what his testimony would be if a new trial were granted. In her affidavit Mrs. Hotchkiss tells all the details of the transaction with her deceased mother by which she acquired the deed. The motion for new trial was denied.
Plaintiffs filed a motion to dismiss the appeal for lack of merit, which was submitted with the cause. The motion is allowed, and the appeal is dismissed.
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The opinion of the court was delivered by
Thiele, J.:
The defendant school district appeals from a judgment awarded plaintiff on her teacher’s contract.
Plaintiff filed her petition alleging her contract to teach, defendant’s school for the school year 1933-’34 and that she complied therewith until November 25,1933, at which time she was arbitrarily and without notice dismissed for alleged incompetency; that the dismissal was without reasonable, justifiable or substantial cause, was without proper or sufficient investigation on the part of the defendant, and that she was given no opportunty to defend herself, etc. She alleged she refused to recognize validity of her dismissal and reported at the school ready and willing to complete her contract, etc.; that she was unable to procure other employment and lost six months’ salary, for which she prayed.
Defendant’s demurrer to the petition was overruled and it answered, admitting the contract and denying that plaintiff was dismissed arbitrarily and without notice. It also alleged a series of events leading up to a resignation of her position by plaintiff, her attempted repudiation of the resignation, her dismissal, and reasons therefor. Plaintiff replied, denying generally and alleging her version of the resignation.
Ultimately the case came on for trial, and after plaintiff’s counsel made an opening statement defendant moved for judgment, the motion being denied. Plaintiff introduced her evidence, and defendant’s demurrer thereto being overruled, it offered its evidence; the court instructed the jury and thereafter it returned a verdict in favor of plaintiff. Answers to special questions were also returned. We need not notice post-trial motions and rulings thereon.
Defendant appeals, assigning as error the ruling on its demurrer to the petition, its motion for judgment on the opening statement, its demurrer to plaintiff’s evidence, and various other rulings of the trial court.
Without making a further detailed statement of the allegations of the petition, or any summary of the opening statement, we are of opinion the trial court did not err in overruling the demurrer to the petition or denying the motion for judgment on the opening statement.
The demurrer to plaintiff’s evidence requires that such evidence be examined. It may be noted that as abstracted few dates are shown. Plaintiff, as a witness in her own behalf, stated her educational preparation and that she started teaching the first and second grades at Fontana in September, 1933; that she had 25 pupils; that complaints were made to her by the school principal and one patron, at the end of the first month; that the principal of the school complained to her of noise; that he visited in her room at another time; that Mr. Allman, a member of the school board, visited the last day of the first month, staying about forty-five minutes; that Mr. Wilson, another board member, later visited, staying about an hour. Mr. Young, the other member , of the board, visited twice, a little over an hour one time, and about an hour the other time. Each of the board members spoke to her about the discipline. Miss Mat-tingly, the county superintendent, visited, staying about an hour and a half. She stated she had been hearing complaints and made suggestions as to discipline and methods of instruction. Miss Mat-tingly was also there a quarter of a day the last week plaintiff taught the school. On November 24, 1933, the principal advised plaintiff of a meeting of the board and county superintendent to be held that evening. The meeting was held, all members of the board, the county superintendent, the principal of the school and witness being present. The county superintendent was asked to preside. The question of compaints and plaintiff’s competency were discussed. Some complaints were read to plaintiff. Plaintiff was asked to resign or they would dismiss her. Plaintiff started to cry and said, “I have been worrying about this for a week,” and upon being asked to resign said, “Well, I don’t know. It seemed like it was either resign or be dismissed.” Later she started to write out her own resignation, but made some statement that it was against her wish. The county superintendent then told her if it was not her own free will not to go ahead. Notwithstanding, she finished writing out her resignation, signed it and gave it to the school board. During the day and that evening she took her things, went away, and thought she was through. The next day she talked to her parents, then consulted an attorney, who wrote the members of the school board a letter in which she claimed to have given the resignation under duress; that she declared the resignation void and that she intended to continue under her contract. Other details of that letter need not be noted. Upon its receipt the members of the board and the county superintendent met, framed and signed a document which was given plaintiff the following Monday morning, informing plaintiff she had been dismissed. Over defendant’s objection, eight patrons of the school, only one of whom had visited it, were permitted to testify as to the progress their children had made.
It is clear from plaintiff’s own version of what transpired that she had ample notice from the principal of the school, the county superintendent and the members of the board that her work was not satisfactory. She had notice of the meeting at which complaints against her were' considered. She did not ask for any time to produce evidence to contradict the truthfulness of the complaints. By her own action in resigning she put an end to any necessity for further proceedings by the school board and county superintendent. The fact that the next day she consulted a lawyer, who on her behalf wrote a letter saying her resignation was procured as a result of duress and attempting to avoid her resignation did not change the force and effect of what was done. In her testimony there is nothing which even hints at duress. When she said resigning was against her wishes she was told not to go ahead. Yet she did resign. Neither is there any evidence of arbitrary or capricious conduct. The principal of the school called her attention early in the school year to situations which needed to be remedied. The members of the school board and the county superintendent visited the school and advised her. For aught the record shows, they made a sincere effort to assist her. Eventually the meeting of November 24 was held, and plaintiff’s version of what transpired discloses there was no action taken which could fit any of the denunciatory adjectives applied to it in plaintiff’s petition.
The action of a school board and county superintendent in dismissing a teacher was under consideration in Morris v. School District, 139 Kan. 268, 30 P. 2d 1094, where it was said:
“It is perfectly idle to contend a subject demanding consideration and action by the board was not brought to the board’s attention. The body appointed by the law to consider and act on the subject dismissed her. That ended investigation of the merits of the dismissal and of the method by which the conclusion to dismiss was reached (Allen v. Burrow, 69 Kan. 812, 821, 77 Pac, 555; Allen v. Burrow, 69 Kan. 877, 77 Pac. 1133). The function of the district court was limited to investigation of whether the dismissing body was guilty of bad faith, fraud, corruption, or oppression. Those are terms of opprobrium. What they connote must be established by proof, and not by innuendo or exercise of the faculty of imagination, and plaintiff produced no evidence of bad faith.” (p. 275.)
Plaintiff’s evidence showed her contractual relation with the school district was fairly terminated, and defendant’s demurrer to her evidence should have been sustained.
The judgment of the trial court in favor of plaintiff is reversed. The cause is remanded with instructions to sustain the defendant’s demurrer to plaintiff’s evidence, and to render judgment for the defendant.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries sustained in a collision of a taxicab and an automobile at a street intersection. Plaintiff recovered a judgment for $2,000, and the principal defendants have appealed.
Plaintiff was a passenger for hire in a taxicab owned and operated by Bert J. Combs and Ben H. Millar, doing business as the B. & B. Taxicab Company at Wichita, and driven by their employee, a Mr. Thomas. The cab was proceeding westward on Third street and approached the intersection of Waco avenue, a north-and-south through street. There is a stop sign on Third street where it intersects Waco avenue, and a city ordinance requires all vehicles traveling on Third street to stop before entering the intersection of that street and Waco avenue. As the cab neared the intersection an automobile on Waco avenue was approaching the intersection from the south. There is evidence to the effect that the driver of the taxicab slowed down, but did not stop before entering the intersection, and drove into the intersection at a speed of not more than ten miles per hour, in front of the approaching automobile, which did not — perhaps could not — turn from its course in such a way as to prevent striking the taxicab. The automobile struck the taxicab on the left side near the rear fender. Plaintiff was injured. No question is raised as to the amount of the judgment if plaintiff is entitled to recover. The action was brought against the owners and operators of the taxicab and also against the operator of the automobile. The operators of the taxicab alone have appealed. They present here the single contention that the evidence shows no negligence on their part upon which liability could be based. The point is not well taken. The taxicab company, with respect to plaintiff, was a common carrier, and with respect to the duty it owes passengers is governed by the same rule as common carriers generally. (Cross v. Chicago, R. I. & P. Rly. Co., 120 Kan. 58, 242 Pac. 469.) That duty required the taxicab company to exercise the utmost prudence and foresight to avoid injury to plaintiff. (Railway Co. v. Brandon, 77 Kan. 612, 95 Pac. 573.) No special questions were asked the jury, hence the general verdict in plaintiff’s favor settled all controversies in the evidence against the taxicab company. There is a conflict in the evidence as to whether the driver of the taxicab stopped, or simply slowed down, before entering the intersection. Under the evidence the jury was entitled to believe, and perhaps did believe, that the driver of the taxicab did not stop. While the driver of the taxicab testified that he stopped before entering the intersection he also testified that he saw the automobile coming toward the intersection on Waco avenue and that he drove into the intersection in front of it and the collision occurred. This, in itself, was negligence. There was no failure of evidence of negligence of the taxicab company.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was a suit to cancel a deed, quiet title and for an accounting. Plaintiff prevailed, and defendants appeal.
Appellants’ contentions are, the trial court erred in overruling their demurrer to the amended petition, their motion for judgment on the opening statement and in rendering judgment for appellee.
The first two complaints are not available to appellants. The record before us discloses no opening statement, motion for judgment or ruling thereon. The same is true concerning the alleged demurrer to the amended petition. It may be further stated the motion for new trial does not specifically raise either of these questions, and the record before us discloses no ruling on the motion for new trial. The notice of appeal in no way refers to any of these alleged errors. It shows on its face the appeal was from only the judgment, order and decision rendered on the 12th day of April, 1935. The final journal entry of judgment of April 12, 1935, is completely silent as to any demurrer to the amended petition and the above motion. It therefore follows there was no appeal from either. (R. S. 60-3101, 60-3103 and 60-3306; Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 291 Pac. 935.)
True, where on the face of a pleading it appears the cause is barred by the statute of limitations, that question is properly raised by demurrer. (Norton v. Montgomery County, 109 Kan. 559, 199 Pac. 388; Kansas State Bank v. Shaible, 118 Kan. 73, 234 Pac. 40.) The final journal entry of judgment discloses the court considered the question of the statute of limitations after the introduction of evidence. Such consideration was proper as the answer pleaded the statute of limitations. It will therefore receive consideration here as a part of the answer to the amended petition. We therefore now have before us the question of the statute of limitations and the sufficiency of competent evidence to uphold the judgment.
Appellants’ contention is the suit is predicated on fraud and therefore barred by the two-year statute of limitations. (R. S. 60-306.) The deed was executed and acknowledged on the 23d day of May, 1929. Appellant, Nellie I. Franse, took it from the home of her mother against the mother’s wishes and request, about January 28, 1931. It was recorded January 30, 1931. The mother leased the land from 1929 to 1933, inclusive, and collected the landlord’s part of the crops and rents during those years. The mother learned about the recording of the deed about one month after it was recorded. As above stated, however, she continued to exercise rights of ownership and possession. Appellants took charge of the eighty in question and leased it for the farm year of 1934, and kept all of the rent and had the use of it for the year 1934. This suit was commenced September 26, 1934, to set aside the deed and recover the 1934 rents.
The original petition was predicated on the theory of no consideration, no delivery of deed, hence no transfer of title, and that appellee was entitled to have the cloud removed from her title. Appellee had the right to try the case on her own theory and stand or fall on that theory. The petition was sufficient on her theory. Ap pellants filed a motion to make the petition more definite and certain by stating the facts and circumstances under which the deed was placed in appellee’s possession in the bank. The motion was clearly calculated to get appellee to plead fraud and thereby make the two-year statute applicable on appellants’ theory of fraud. The motion was sustained and appellee was obliged to amend. Appellants say they then demurred to the petition. The alleged demurrer has received previous consideration, and reiteration of that subject is unnecessary. It is the contention of appellee the fifteen-year statute of limitation applies. (R. S. 60-304, subdiv. 4.)
The trial court made findings of fact and conclusions of law. The pertinent features thereof are, there was no intent to deliver disclosed by act or word, the intent on the contrary was not to deliver; there was no delivery, hence the deed did not operate as a transfer of title. The deed was declared null and void, was canceled and set aside. The judgment decreed appellee was still the owner of the fee title. She was granted exclusive possession and judgment was rendered in her favor for the 1934 rents, which were fixed at the fair and reasonable value of $80..
Appellants do not challenge the findings of fact as unsupported by any evidence. The contention is there was not sufficient competent evidence. There was sharp conflict of evidence. Where the evidence is conflicting and credibility of the witnesses is involved, the finding of the trial court must, of course, control. (Bruce v. Mathewson, 97 Kan. 466, 155 Pac. 787.) Appellants, however, contend the evidence was not of the clear, convincing, conclusive and satisfactory character required in cases of this nature. The trial court thought otherwise. The evidence before the trial court was not only sufficient but most convincing and compelling.
We are therefore confronted with the adjudicated facts there was no intent to deliver the deed, there was no delivery, and it did not operate as a transfer of title. In the case of Bruce v. Mathewson, 97 Kan. 466, 155 Pac. 787, this court said:
“A finding of the trial court that a certain deed purporting to have been executed by a grantor to his wife and which was placed on record by her was not intended to be delivered and become effective as an absolute conveyance of title to the land, is held to be sufficiently sustained by the testimony; . . .” (Syl.)
In the course of that opinion this court further said:
“Before it could operate as a transfer of title there must have been an intention of the grantor that it should become effective as a present convey anee. Such intention is to be derived from the testimony as to the acts and words of the grantor relating to the execution and delivery of the deed and may be shown by parol.” (p. 470.)
Appellants rely strongly on the decision of this court in Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332. In that case there was delivery of the deed. It is absent here. In the body of the opinion of that case, however, is found the precise distinction which is fundamental and important here. It reads:
“Very well, let us concede that he parted with it through fraud. Then he needed some relief; he needed the relief furnished by the statute, and the relief must be invoked according to the statute. The statute says two years is the limitation for an action for relief on the ground of fraud. Plaintiff has waited seven years — on the theory, perhaps, that he has fifteen years. He would have fifteen years if he had given no title; but having given title, he does not have fifteen years to get rid of his conveyance; he only has such time as the statute allows — two years.” (p. 118.)
In the instant case appellee gave no title.
Appellants also rely on the decisions in New v. Smith, 86 Kan. 1, 119 Pac. 380, and Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416. In both of those cases there was delivery of the deed. Much stress is laid on the Pinkerton case. The deed was voluntarily delivered. The fraudulent recording was the issue. The petition expressly pleaded the fraudulent recording and alleged it was recorded with intent to cheat and defraud the grantor. The gist of the present controversy goes deeper. Here, there was no delivery and consequently nothing passed. We cannot make something out of nothing. Appellants rely upon decisions in which there was delivery.
Here no intent to deliver is shown by act or word. The intent was positively not to deliver. The evidence of an imploring mother was: “No, Nellie, that is my deed and you are not to have it until my death.” Thereafter the mother made good her constant claim of ownership. She remained in possession, leased the land, paid the taxes and collected the rents for five years after the execution of the deed. The daughter and her husband took the 1934 crop. Promptly upon this assertion of right by the grantee under the deed, the mother commenced this suit on September 26, 1934, to set aside the deed. Clearly she brought her action in time. Being entitled to the exclusive possession, it follows appellee was entitled to the 1934 rents.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
The real point involved in this case is the right of a board of county commissioners to exact and require of a road-building contractor a bond signed by a surety company instead of a personal bond.
Two contracts for road building had been awarded by the board to the plaintiff construction company as the lowest bidder thereon at a public letting duly advertised, and ten days were given under the provisions of R. S. 68-521 .to sign contract and furnish statutory bond. Nothing had been said in the public notice of the letting, nor in the plans and specifications, as to the land of bond required; neither does the statute designate such. The plaintiff construction company endeavored to secure a surety company bond, and at the expiration of the ten days asked further time, and ten additional days were granted by the board. During this time the plaintiff indicated to the board its inability to procure a surety company bond and offered to get a personal bond, but the board insisted upon, a bond signed by a surety company. On the last day of the extension, when no bond of any kind was furnished, the board awarded the contracts to the next lowest bidder for nearly |20,000 more than the bid of the plaintiff. The plaintiff then brings this action against the board to recover the five per cent deposit with its bid in certified check, which the board had forfeited after plaintiff’s failure to sign contract and furnish bond. The case was tried to the court and the court made findings and conclusions, and rendered judgment-for the defendant board for its costs, from which judgment the plaintiff appeals.
The part of R. S. 68-521 which concerns us here is as follows:
“Each bidder shall be required to accompany his proposal with a certified check for five per cent of his bid, payable to the chairman of the board. If the bidder to whom the contract is awarded shall fail to. accept and execute the contract and file bond as provided by law, his check shall be forfeited and paid into the school fund, and the board may award the contract to the next lowest responsible bidder. ... No such contract shall be considered as awarded unless the contractor shall within ten days after the letting enter into contract and shall .give bond unto the county in a penal sum equal to the amount of the contract price, conditioned upon the faithful performance of the contract, payable to the county upon failure to comply with the terms of his or their contract: Provided, The contractor shall file with the county clerk said bonds, which shall be approved by the chairman of the board and the county attorney by their signatures indorsed thereon.”
The trial court made the following finding of fact:
“Directly after said contract was awarded to the plaintiff, application was made by the plaintiff to a local agent of a surety company for such bond. The surety company to which application for such bond was made refused to bond the plaintiff, and plaintiff was allowed an additional ten days within which to furnish the required bond. Within said ten-day period plaintiff proposed to defendant to furnish a personal bond signed by residents of Saline county, Kansas, and McPherson county, Kansas, who were worth in the aggregate $200,000 over and above all debts, liabilities and exemptions. The board of county commissioners, after having consulted with the state highway engineer, declined and refused to accept a personal bond, and insisted and demanded that plaintiff should furnish a surety company bond. No such personal bond was ever signed or presented to the board of county commissioners, but the plaintiff was able and willing to secure and furnish such personal bond. After the refusal of the board of county commissioners to accept a personal bond the plaintiff made a further effort to secure a surety company bond, but such effort was unavailing. The plaintiff was not able to furnish a surety company bond, as required by the board of county commissioners.”
The first conclusion of law made by the trial court is as follows:
“It was not an abuse of discretion for the board of county commissioners to require a surety company bond of the plaintiff and to refuse a personal bond.”
The appellant insists that it was arbitrary, unfair, unreasonable and a clear abuse of discretion on the part of the board to require a surety company bond instead of a personal bond; that it was without warrant or authority of law and contrary to public policy, especially when it was not so indicated in the advertisement for bids. The statute above quoted refers to the bond as being one “as provided by law,” and that it must be such as “shall -be approved by the chairman of the board and the county attorney.” The bids of the appellant which were accepted by the board and attached to the petition as exhibits C and D thereof, among other things, state:
“The undersigned further agrees that he will secure a bond in the form prescribed by- the board, in the penal sum of the amount of the contract, with a surety to be approved by the board.”
The court found that “directly after said contract was awarded to the plaintiff application was made by the plaintiff to a local agent of a surety company for such bond.” The appellant was not in any way misled by the failure of the public notice to specify the kind of bond required, but proceeded at once to endeavor to obtain a bond from a surety company, and the court finds it failed and was unable to furnish such a bond. In its bid it offered to “secure a bond in the form prescribed by the board” and “with a surety to be approved by the board.” From these facts we can readily answer in the negative most of the claims of the appellant as to such a requirement being unfair, unreasonable, arbitrary and capricious. Again, it is shown that the board consulted with the county attorney and the state highway engineer in reaching the conclusion as to the proper kind of a bond to be required, and acted on their judgment in prescribing a surety company bond. Since the statute is silent as to this distinction, the board is justified in making a decision as to what in its judgment will be practicable and will safeguard the public interests.
“In the absence of a statutory provision as to the method of letting contracts, a city of the second class may contract for the work through a public letting after an advertisement of the same. The authority to the city to have the work done carries with it the discretion to contract for the work in any practicable method that will safeguard the public interests.” (Middleton v. City of Emporia, 106 Kan. 107, syl. ¶ 1, 186 Pac. 981.)
The only difference between a surety company bond and a personal bond is one that concerns the sufficiency of the security; all other features of the bonds are alike. With each of them it is a question of the solvency of the sureties and their being able to respond in case of default. This includes not only financial worth above debts, exemptions and liabilities, as stated in the findings as to the persons offered for security, but it also has reference to the question of having property subject to execution. The officers charged with the duty of approving or disapproving a bond are performing a duty that is discretionary, and such a duty that the courts will not compel them to act either way as far as the question of sufficiency or insufficiency is concerned. (State, ex rel., v. Stockwell, 7 Kan. 103; Cox v. Rich, 24 Kan. 20; Anderson v. Haslett, 81 Kan. 532, 106 Pac. 296; State, ex rel., v. Matassarin, 114 Kan. 244, 254, 217 Pac. 930.) The question of sufficiency of sureties calls for judgment of the approving officers just as does the question of responsibility of the bidder where the board is directed to select the lowest responsible bidder, and the action of the board in this respect should not be questioned unless it is arbitrary, oppressive, or fraudulent, and we find nothing along those lines in this case, either in the findings of the trial court or in the record of the case.
“The governing body of the city must determine the fact whether one who presents a bid for a contract under the statute above referred to is the lowest responsible bidder, and such determination cannot be set aside by a court unless the action of such tribunal is arbitrary, oppressive or fraudulent.” (Williams v. City of Topeka, 85 Kan. 857, syl. ¶ 2, 118 Pac. 864.)
Appellant insists that the forfeit could not properly be made by the board nor the contract relet until the expiration of the extended time given to the appellant to procure a bond, and cites cases to show there are no fractions of days in law, and the extension given it included all of the last day of such extension. But wherein was the appellant injured by the reletting of the contract at 2 p. m. instead of the literal close of that day? If it had produced and offered a bond during the remaining hours of that day the case would have been different. Appellant says the board thereby .placed itself in a position where it could not any longer accept its bond. Such early action may have made it embarrassing and possibly expensive for the board to have extricated and relieved itself of the reletting contract, but that would not have concerned the appellant if it had furnished its bond within time.
Appellant invokes the doctrine that the courts abhor forfeitures and will not enforce them unless the right thereto clearly appears. The statute above quoted shows plainly and clearly the plan and purpose of the forfeiture, and both parties acted accordingly, the plaintiff in furnishing the certified check and the defendant in accepting it. In the case of Middleton v. City of Emporia, above cited, it was said with reference to such certified check in the letting of a waterworks extension contract by a city of the second class:
“After the bidder had notified the city that he was unable to give the bond provided for and carry out the contract, it was competent for the city authorities to declare the deposit forfeited to the city and apply the same to the actual damages sustained by the city through the failure of the bidder to perform his agreement.” (Syl. If 4.)
It is perfectly clear in this case, and there is no room for doubt that both parties fully intended the certified check to be used for a forfeiture, and there was nothing needed to effect an automatic forfeiture except the failure of the contractor to furnish a bond as required by statute.
We find no reversible error. The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The probate court made an order of distribution of funds of an estate which were insufficient to pay all demands against it. The order required payment of funeral expenses before payment of expenses of administration. The administrator appealed to the district court, which rendered judgment in accordance with the probate court order. The administrator appeals from the judgment.
The question involved is one of statutory interpretation, and the specific question is. whether funeral expenses are comprehended by the word “debts,” as that word is used in R. S. 22-916 and 22-917, which read as follows:
“At every settlement the court shall ascertain the amount of money of the estate which has come to the hands of such executor or administrator from all sources, and the amount of debts allowed against such estate; and if there be not sufficient to pay the whole of the debts and expenses of administration, the money remaining after paying the expenses of administration shall be apportioned among the creditors, . . .”
“The probate court, upon every settlement, shall proceed in like manner, till all the debts be paid or the assets exhausted; and if upon such settlement there shall be money enough to satisfy all demands of any one class legally exhibited against such estate, the court shall order the whole of that class to be paid; but if there is not money enough to pay all the debts of any one class, in the order aforesaid, all the creditors of that class shall be paid ratably, in proportion to their respective debts; and no payment shall be made to creditors of any one 'class until all those of the preceding class or classes shall be fully paid.”
These statutes are to be considered in connection with R. S. 22-701, which, as amended in 1925, reads as follows:
“That section 22-701 of the Revised Statutes of Kansas of 1923 be and the same is hereby amended to read as follows: Sec. 22-701. All demands against the estate of any deceased person shall be divided into the following classes: First, funeral expenses. Second, expenses of the last sickness, wages of servants, and demands for medicines and medical attendance during the last sickness of the deceased, and the expenses of administration. Third, debts due the state. Fourth, judgments rendered against the deceased in his lifetime; but if any such judgments shall be liens on the real estate of the deceased and the estate shall be insolvent, such judgments as are liens upon the real estate shall be paid without reference to classification, except the classes of demands mentioned in the first and second subdivisions of this section shall have precedence of such judgments. Fifth, all demands without regard to quality which shall be legally exhibited against the estate within one year after the granting of the first letters on the estate.” (Laws 1925, ch. 161, § 1.)
The proper method of determining the meaning of the word “debts” as used in the statute relating to decedents’ estates, was discussed in the opinion in the case of Farmers State Bank v. Callahan, 126 Kan. 729, 271 Pac. 299.
Common decency requires that, whatever else takes place, a deceased person must be buried. Therefore, funeral expenses by nature constitute a demand of the first order, and R. S. 22-701 so classifies them. At common law funeral expenses were to be paid before demands of any other class.
“But let us now see what are the power and duty of a rightful executor or administrator.
“1. He must bury the deceased in a manner suitable to the estate which he leaves behind him. Necessary funeral expenses are allowed, previous to all other debts and charges; . . .” (2 Blackstone’s Comm. 508.)
The court is of the opinion that R. S. 22-701, so far as it relates to funeral expenses, was framed in accordance with the common law, and the preferential nature of the demand was not affected by later sections of the statute. Dicta to this effect are found in previous decisions of this court:
“Now the estate may have been hopelessly insolvent, and may still be insolvent. It may require every article or piece of property, every available dollar, everything belonging to the estate, to pay the claims of the first class; . . .” (Stratton v. McCandless, 27 Kan. 296, 301.)
“The statute gives funeral expenses priority over all other demands against the estate of the decedent.” (Nelson v. Schoonover, 89 Kan. 388, 394, 131 Pac. 147.)
While funeral expenses and expenses of administration are demands against the estate of a decedent, they are not debts of the ■decedent, and for purpose of distribution the statute recognizes three classes of demands payable in the following order: First, funeral expenses; second, expenses of administration; third, debts proper, due to ordinary creditors.
A person having a demand for funeral expenses is, however, a creditor to the extent that he may be appointed administrator, should the widow, next of kin, and others having prior right to do so, fail to take out letters of administration. (R. S. 22-312.)
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This appeal is concerned with the validity of a provision of the emergency fee-and-salary act of 1933, which temporarily superseded the preexisting statute touching the sheriff’s per diem allowance for attending the county jail.
Plaintiff was elected sheriff of Harper county at the November election in 1932 and was inducted into office in January, 1933. At that time and for many years prior thereto the statute (Laws 1913, ch. 197, § 12, R. S. 28-110) contained a provision which read:
“The sheriffs of the several counties in the state shall charge for the services required by law to be performed by them the following fees :
“For attending jail when occupied by prisoner or prisoners, per day, to belong to the sheriff................................................. $1”
Plaintiff’s charges for jail attendance were regularly paid by the defendant board of county commissioners at the statutory rate until June 1, 1933.
On April 1, 1933, an emergency statute relating to fees and salaries of county officers enacted by the legislature took effect. (Laws 1933, ch. 186, R. S. 1933 Supp. 28-410.) It provided as follows:
“Section 1. In lieu of the fees and/or'salaries heretofore paid certain county officers and employees during the period commencing April first, 1933, and ending March thirty-first, 1935, there shall be paid to or collected by said officers and employees the fees and/or salaries set forth and provided for in this act.
“Section 10. . . .
“For attending the jail when occupied by prisoner or prisoners, per day, there may be allowed by the board of county commissioners, to belong to the sheriff, one dollar.”
After June 1, 1933, the sheriff’s bills for jail attendance were paid by the county board at the rate of fifty cents per day.
The sheriff brought this action, pleading the material facts and prayed judgment for $122.50, being the claimed balance due him for jail attendance until February 1, 1934, about which time this action was begun.
No issue of fact was raised by the defendant commissioners. Some matters went into the record by stipulation, which may be summarized thus:
No resolution was adopted by the county board reducing the accustomed allowance of $1 per day for jail attendance.
The sheriff’s bills for jail attendance itemized at $1 per day had been approved by the county attorney and audited by the county board, but only paid at half the amounts specified.
The sheriff's acceptance of those reduced allowances was not received by him in full satisfaction of his itemized charges.
The sheriff’s attendance at the county jail personally or by deputy was necessary to the proper discharge of the county’s business.
During the interval of present concern the county jail served also as a city jail for the city of Anthony by agreement between the city and county authorities.
Two further stipulations were added by counsel for the parties:
“1. Most of counties in the state of Kansas of size and location similar to Harper county allow SI per day for jail fees.
“2. The evidence now available will be to the effect that SI per day is a reasonable fee for services as jail attendant, and evidence considered introduced.”
The trial court gave judgment for defendant. Hence this appeal.
Defendant first propounds the question whether the county board can change the fees of the sheriff “arbitrarily without reason or a resolution of the board to that effect.” The adverb “arbitrarily” is gratuitous. The record does not justify its use. The same remark should dispose of the phrase “without reason.” There were reasons in plenty — low prices, crop failures, financial stringency and nonpayment of taxes. Of such calamitous facts the defendant board, being the responsible managers of the county’s fiscal affairs, were entitled to take official cognizance, as legislatures, the congress and the judicial tribunals of the states and of the nation have been repeatedly constrained to do in recent years. In the recent case of Cunningham v. Reno County Comm’rs, ante, p. 267, 53 P. 2d 870, where the constitutionality of this identical fee and salary act was challenged, this court said:
“At the time of the meeting of the legislature in 1933, because of a general financial depression, there was a decided disposition to limit governmental expenditures. One way to do that was to reduce salaries of public officials.” (p. 272.)
The plaintiff’s right to one dollar per day for jail attendance under the statute of 1913 had not been predicated on any resolution of the county board to that effect. Neither was the adoption of a formal resolution reducing the sheriff’s allowance- to fifty cents per day for jail attendance a prerequisite to the county board’s action to that effect. The legislative alteration in the text of the preexisting statute was plenary sanction to the county board to make an allowance for jail attendance according to the board’s discretion and according to the county’s financial ability to pay.
The next point discussed by appellant relates to the use' of the word “may” in the act of 1933, where it is said that there may be allowed by the board a dollar a day for jail attendance. We quite agree that in the interpretation of statutes the word “may” sometimes means “must” (National Bank v. City of St. John, 117 Kan. 339, 230 Pac. 1038), but that rule does not apply when the legislature deliberately changes the statutory text of “shall” to “may” as it did in the emergency fee-and-salary act of 1933. (Roth v. Ness County, 69 Kan. 667, 669, 77 Pac. 694; State v. School District, 80 Kan. 667, 103 Pac. 136; Gleason v. Sedgwick County, 92 Kan. 632, 141 Pac. 584.) In 59 C. J. 1079-1082 it is said:
“As a general rule, the word ‘may,’ when used in a statute, is permissive only and operates to confer discretion. . . . These words [‘may’ and ‘shall’], however, are constantly used interchangeably in statutes, and without regard to their literal meaning, . . . the court may consider the legislative history of the statute. ... So where a section of a statute is amended by striking out ‘may’ and inserting ‘shall’ in lieu thereof, an intent is shown to alter the directory nature of the law and render it mandatory; and, conversely, an amendment substituting ‘may’ for ‘shall’ manifests a clear intent to make the act referred to optional and permissive instead of mandatory.”
The next point urged by appellant is that the county board had no discretion to allow less than a dollar per day for jail attendance if any allowance were made at all. We cannot assent to this contention. It appears to us that the legislature intentionally left this matter to the discretion of the county board to pay what they thought the county could afford to pay within the statutory limit of one dollar per day. All the facts and circumstances of current Kansas history warranted such a legislative grant of discretionary authority to the hard-pressed financial managers of our Kansas counties during the emergency interval covered by the statute of 1933. (State v. Kelly, 71 Kan. 811, syl. ¶ 1, 81 Pac. 450. See, also, Annotation in 70 A. L. R. 5-46.)
Another important legal question is raised by appellant, which relates to the constitutional authority of the legislature to enact a statute like the one under consideration and which was only intended to supersede the regular fee-and-salary act for the estimated period of the emergency — from April 1, 1933, until March 31, 1935, at the conclusion of which period the regular statute should come once more into full operation. That interesting question was thoroughly considered and the constitutionality of this statute as against the objection that it temporarily suspended the older enactment was upheld in Cunningham v. Reno County Comm’rs, ante, p. 267, 53 P. 2d 870, decided January 25, 1936.
There is no error in the record, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action for damages for injuries received in getting off a fruit and produce truck where plaintiff had been invited by one of the defendant partners so as to confer about a business transaction between plaintiff and defendants. The little finger of the plaintiff’s left hand caught on a protruding n'ail, screw or bolt and was so injured that it had to be amputated. Negligence was alleged in allowing such nail, screw or bolt to so protrude and injure one invited on the truck by one of the defendants for business conference. The defendants filed a general demurrer to the petition, which was overruled, and defendants appeal.
The main questions involved are whether the nail, screw or bolt so protruding from the truck bed was the proximate cause of the injury, whether its protrusion was actionable negligence and, if so, whether the injury could have been reasonably anticipated as resulting therefrom. Appellee insists that these questions are readily resolved in favor of the plaintiff by the allegations in paragraphs 3 and 4 of the petition. Appellants cite pertinent allegations in paragraph 5 as strongly bearing on the question of negligence. The following is a quotation of these parts of plaintiff’s petition:
“3. That on or about August 5, 1934, the plaintiff was engaged as an independent operator of a truck engaged in buying, selling and hauling fruit and produce from the states of Missouri, Arkansas and Colorado into the state of Kansas, and selling the same for profit. That on August 5, 1934, said plaintiff entered into an oral agreement with the defendants relative to the purchase of certain peaches, and was requested by said defendants, through the defendant Laurent DeBauge, who was acting for himself and for and on behalf of said partnership, to endeavor to buy a certain lot of peaches then offered to said plaintiff for sale. That in pursuance of said contract to purchase said peaches, said plaintiff procured a price therefor and being orally requested to report the same to the said defendants through the said Laurent DeBauge, did on August 5, 1934, report the result^ of said purchase to said defendants through the said Laurent DeBauge at Joplin, Mo.
“4. That said plaintiff engaged said defendant, Laurent DeBauge, in conversation at the truck of said defendants while said defendant, Laurent De-Bauge, was engaged in loading said truck at Joplin, Mo., having been called to said truck by said defendant Laurent DeBauge; that it became necessary for said plaintiff in carrying out said conversation to get upon said truck which said plaintiff did and as he was leaving said truck, without any fault or negligence on his part, the small finger of his left hand became engaged in some projection of some kind or character on said truck which plaintiff believes was a- screw, nail or bolt, but the exact character of said projection being to said plaintiff unknown, with the result that said finger was torn, lacerated and bruised to such an extent that it became necessary to remove the same. That the weight of plaintiff’s body pulling against said projection caused plaintiff to become partly suspended in the air thereby pulling said finger against said' projection, the exact manner of which plaintiff does not know and cannot state; that as a result of such injury, it became necessary for said small finger of his left hand to be amputated. That plaintiff sustained and suffered excruciating pain and suffering, his hand became deformed and permanently injured to his damage in the sum of fifteen hundred dollars ($1,500). In that the bed of said truck had a nail, screw or bolt or other metal projection extending out of the body of said truck and over the top of said bed, that said injury was the direct result of the negligence of said defendants in asking said plaintiff to get upon said truck so that defendant could talk over with said plaintiff some business matters in which plaintiff and defendants were about to engage, said truck of said defendants at the time being in a dangerous condition and dangerous to life and limb because of the presence of said projection on the top of the bed of said truck and more particularly on the right side thereof, which same was well known to said defendants, or should have been known to said defendants; and that but for said unsafe condition of said truck and the presence of said projection on said bed, said injury would not have been sustained by said plaintiff.
“5. That said unsafe condition of said truck contributed to plaintiff’s injury in that it became necessary for plaintiff to take hold of the side or bed of said truck to get down from said truck to the ground, and as said plaintiff was taking his hand from said bed and body of said truck and just before loosening his hold, plaintiff stepped away from said truck by taking his feet off of the side of said truck preparing to alight and while' in the air and at a time when there was no footing, said hand became engaged in said projection, as aforesaid, with the resulting damages to said plaintiff.”
Our attention is called in a preliminary way by the appellee in support of the ruling on the demurrer to the allegation of the petition, in paragraph 4 thereof, that plaintiff was an invitee of the defendants “to get upon said truck so that defendant could talk oyer with said plaintiff some business matters,” and, also, to the text of 45 C. J. 826, where it is said:
“While the rule requiring reasonable care for the safety of invitees is usually announced with respect to land and buildings thereon or appurtenances thereto, it is not confined to property of this character, but applies to any property into or on which a person may be invited, as, for instance, an’ automobile or other vehicle, a boat, a locomotive, or circus seats.” (§ 236.)
We may very properly, under the allegations of the petition, regard plaintiff as an invitee upon the truck for the purpose of conversing with one of the defendants being thereon. We must further regard the plaintiff as one familiar with fruit and produce trucks and not a stranger to their usual parts and make up, for paragraph three of the petition states that he was an operator of a truck in buying, selling and hauling fruit and produce.
The section immediately following that above quoted from 45 C. J. 826 concerns the extent of the obligation of the invitor to the invitee as follows:
“The owner, occupant, or person in charge of premises owes the invitees thereon the duty of keeping the premises in a reasonably safe and suitable condition, so that those whom he has invited to enter upon or use his property shall not be unnecessarily or unreasonably exposed to danger, and is therefore liable for injuries received by invitees as a result of a dangerous condition of the premises. As, however, the owner or occupant is not an insurer of the safety of invitees he is not required, at his peril, to keep the premises absolutely safe, but the measure of his duty in this respect is reasonable or ordinary care, and in determining whether such care has been exercised it is proper to consider the uses and purposes for which the property in question is primarily intended.” (§ 237.)
See, also Zeigler v. Manufacturing Co., 108 Kan. 589, 196 Pac. 603.
The negligence of the defendants in this case is alleged to have been in the existence or presence of some projection on the truck which plaintiff believed was a screw, nail or bolt on the top of the bed of said truck, and more particularly on the right side thereof, such metal projection extending out of the body of the truck and over the top of the bed, on which the plaintiff’s small finger of the left hand caught or became engaged when he was leaving the truck, and that the existence of such projection was well known to the defendants or should have been known to them, and that it rendered the condition of the truck unsafe and without which the injury would not have been sustained.
On the theory of the leaving of this metal projection being negligence, as alleged, and its existing there with the knowledge of the defendants, or could have been known by them, which is the proper situation in the consideration of a demurrer to the petition, not every negligence or even known negligence will make the negligent party liable in damages.
In the case of Whitcomb v. Atchison, T. & S. F. Rly. Co., 128 Kan. 749, 280 Pac. 900, the defendant railway company disregarded in many ways the proper and required construction of a crossing, which could not help but be known to it, and was regularly and constantly being used in such condition, and it was held on review of a ruling on a demurrer to the petition that—
“Negligence of a party which does not cause injury to another forms no basis for an action for damages. Neither will it form the basis of an action unless it was a proximate cause of the injury.” (Syl. ¶ 2.)
In that case negligence of a third party was also alleged, but the situation would or could be the same if there had been other matters alleged which would have made the negligence of the defendant not the proximate cause of the injury.
The exhaustive discussion on this proposition in the opinion in Rodgers v. Railway Co., 75 Kan. 222, 88 Pac. 885, is cited, where the railway company negligently failed to move a car loaded with corn for the market at Kansas City, Mo., for six days after it was consigned, and when it reached Kansas City two days later it was entirely.destroyed in an unprecedented flood, and it was held:
“The negligent delay of a carrier in moving goods entrusted to it for transportation, not so unreasonable as to amount to a conversion, will not render it liable for the loss of such goods after they have been carried to their destination if they are there destroyed by an act of God before delivery.” (Syl.)
Of course neither the shipper nor the railway company could have foreseen or anticipated such a flood.
In the case at bar the leaving of a metal projection on the bed of the truck must have been known to the defendants or by the exercise of ordinary diligence could have been known, as is alleged in the petition, and at the same time it may not have been the proximate cause of the injury. That is, such injury might not have been reasonably foreseen or anticipated.
In Light Co. v. Koepp, 64 Kan. 735, 68 Pac. 608, it was said:
“The general test as to whether negligence is the proximate cause of an accident is said to be such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced.” (p. 737.)
In Railroad Co. v. Justice, 80 Kan. 10, 101 Pac. 469, it was held:
“ ‘If two distinct causes are successive and unrelated in their operation, one of them must be the proximate and the other the remote cause. In such case, the law regards the proximate as the efficient and responsible cause, and disregards the remote.’ ” (Syl. ¶ 3.)
See, also, Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416; and Hartman v. Railway Co., 94 Kan. 184, 146 Pac. 335.
Some other allegations of the petition may help to determine whether this injury was the direct result of the protruding metal. The part of paragraph 5 copied above from the petition shows the action and movement of the plaintiff in getting down from the truck to the ground. In this connection it says: “as said plaintiff was taking his hand from said bed and body of said truck and just before loosening his hold, plaintiff stepped away from said truck by taking his feet off of the side of said truck preparing to alight, and while in the air and at a time when, there was no footing, said hand became engaged in said projection, as aforesaid.” Could the injury have been caused by the suspended position of the body in the air and without a footing? Was that method of removing one’s self from the body of a truck the kind of action that the defendants should have foreseen, or did it constitute a cause of injury in itself? It may not have been a jumping off the truck, but it is certainly a peculiar and unusual method of climbing off a truck to be in the air and to have no footing. Could the defendants, even knowing of the metal projection, have reasonably anticipated such a result chargeable to the projecting metal.
Proximate and remote causes are carefully defined and distinguished in Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338, and successive, related and unrelated causes are defined in Smith v. Mead Construction Co., 129 Kan. 229, 282 Pac. 708, from which distinctions and others herein cited it would seem that the method of getting down from the truck, which put the plaintiff in the air without footing, was a separate and unrelated successive cause of the injury to the plaintiff and was not such a cause as the defendants with ordinary intelligence would have anticipated, foreseen and connected up with the projected metal in the body of the truck, so that the latter would become the remote instead of the proximate cause of the injury. Under circumstances somewhat similar as to successive events, it was held in Beldon v. Hooper, 115 Kan. 678, 224 Pac. 34, that—
“In an action for damages for negligence, the rule applied that a defendant’s liability therefor only extends to damages which are the natural and probable consequence of his negligence and which could reasonably have been anticipated to flow therefrom, and that his liability does not extend to extraordinary consequences which could not reasonably have been foreseen.” (Syl. ¶ 1.)
Under the distinctions made in the foregoing opinions applied to the allegations of the petition in the case at bar we are constrained to believe that the projecting metal on the bed of the truck was not the proximate cause of the injury suffered by the plaintiff, and therefore the demurrer to the petition should have been sustained.
The ruling is reversed, and the cause is remanded with directions to sustain the demurrer to the petition.
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The opinion of the court was delivered by
Bijrch, J.:
The action was one by a broker to recover the price of corn purchased for his principal, and expenses incurred for the account of the principal in connection with the purchase. The verdict and judgment were for plaintiff, and defendant appeals.
On December 31, 1925, plaintiff received an order from Carlson to purchase for Carlson 10,000 bushels of December corn. Plaintiff executed the order, and the corn was delivered in elevators in Chicago for Carlson. When the corn was purchased, plaintiff had in its hands money of Carlson’s in the sum of $1,000.53. The com was sold for less than the purchase price, and after Carlson was given credit for the money in plaintiff’s hands, there remained due plaintiff a balance of the purchase price and various items of expense.
The petition alleged that defendant refused to accept the corn, but this allegation, was stricken out. The petition also alleged that on or about January 20, 1926, Carlson failed, neglected and refused to pay for the corn. By amendment the date was changed to February 20.
Plaintiff’s testimony established execution in the customary man ner of the order to purchase, including usual confirmations to Carlson, and notification to Carlson on January 9, 1926, of the elevators in which the delivered corn was stored. Thomas J. Myers is manager of the plaintiff. Myers testified that in February Carlson directed sale of a quantity of com in a certain elevator at a price of 66 cents per bushel, and the sale was made at that price a few days later. Myers requested payment for the corn. Carlson said the corn was not any good. Myers said the corn was all right, and Carlson requested Myers to go to Chicago and look after his interests there. Myers went to Chicago and investigated the situation. The com w-as all right, but it was elevator corn, and because of loading-out charges and switching charges, elevator corn could not always be marketed on equal terms with other corn of the same grade. On his return from Chicago Myers reported the facts to Carlson. Carlson requested sale of the corn at prices which Myers could not obtain, and Myers asked Carlson to pay in full. Carlson said to sell out, and Myers sold the corn. The sales made pursuant to Carlson’s order to sell out were made on March 2 and March 4. Myers testified he did not request payment until February 20, and testified as follows:
“I did not say Carlson refused on the 20th day of February. He had not refused before that time.”
The defense stated in the answer follows:
“Defendant further admits that on December 31, 1925, he requested plaintiff to purchase 10,000 bushels of corn for him at the prevailing price of corn on that date, but said defendant saj^s that he instructed plaintiff to purchase No. 2 corn, which plaintiff failed and neglected to do, and when said plaintiff informed him, on or about the 4th day of January, 1926, that he had purchased 10,000 bushels of No. 3 and No. 4 com for him, which com was inferior to No. 2 and of a lower grade, defendant refused to accept said corn or pay for the same.”
At the trial Carlson admitted he might have received the usual confirmations which the testimony of plaintiff showed were sent to him. Carlson testified, however, that his order was to purchase No. 2 corn; the corn which plaintiff purchased was No. 3 and No. 4; on January 4 he came to Topeka and talked to Myers about it, and he told Myers he would not accept the com under any conditions.
On January 9 plaintiff wrote and mailed to Carlson the following letter:
“Mr. S. J. Carlson, Osage City, Kan.: January 9, 1926.
Dear Sir — Please note that your cash corn is in the following elevators in Chicago:
5,000 bu. Wabash Elevator......................No. 4 mixed
1,270-30 Bock Island A.........................No. 4 yellow
1,571-34 South Chicago C.......................No. 4 mixed
2,139-26 do ...............................No. 3 white
“Yours truly, Empire Commission Co.”
At first Carlson testified he did not know whether he received the letter. Afterward he said: “I did not answer the letter I got from Mr. Myers on January 9. I paid no attention to it.” The reason Carlson gave for not answering the letter was that he had no corn, and told Myers on January 4 he would not take the corn. Carlson testified further as follows:
“Myers called me over the telephone. I think it was February, near the last part. He asked me what I was going to do about that corn. I said I haven’t any corn, Mr. Myers. I told you on the 4th day of January that I wouldn’t accept it under any condition. He says, I am going to Chicago, come and go with me. I said I ain’t got no business in Chicago, and I haven’t got no time to go. Nothing further was said. ... I never in words and substance directed him or authorized him to go to Chicago in my behalf.”
The trouble with Carlson’s case was, the jury did not believe his testimony, and returned the following special findings of fact:
“Q. 1. What kind of corn did defendant instruct the plaintiff to buy? A. December corn.
“Q. 2. Did plaintiff buy that kind of corn? A. Yes.
“Q. 3. Did defendant on January 4, 1926, refuse to accept the corn plaintiff purchased December 31, 1925? A. No.
“Q. 6. Did plaintiff make a trip to Chicago in Februaiy, 1926, to see about the corn he had purchased December 31, 1925? A. Yes.
“Q. 7. Did defendant direct or request the plaintiff to make that trip? A. Yes.”
These findings of fact dispose of the only defense which Carlson made, and the only remaining question relates to the amount which plaintiff should recover. The court instructed the jury on all phases of this subject. Instruction No. 6 and portions of other instructions relate to what Myers should have done if Carlson refused to accept and pay for the corn.
The jury found Carlson did not refuse on January 4 to accept the corn. He received the letter of January 9 telling him of delivery of the corn in specified quantities at specified elevators. According to Carlson’s testimony, he made no response. He testified he knew the quality of the corn on January 4. According to his testimony, the next conversation he had with Myers concerning the com was a telephone conversation occurring the latter part of February. Therefore, as a matter of law, he accepted the corn. He was under obligation to reject promptly if he did not desire to accept, and if the elevators in which the corn was stored had burned after January 4, the loss would have been his loss. (Martin v. Scott Lumber Co., 127 Kan. 391, 273 Pac. 411.) Besides that, the findings of fact establish acceptance as a matter of fact, and the instructions to the jury making refusal to accept a factor are now immaterial.
Leaving out of account Carlson’s discredited testimony relating to refusal on January 4 to. accept the corn, and his discredited testimony relating to the conversation in which Myers was requested to go to Chicago, there was no evidence that Carlson refused to pay for the com at any time before the last sale was made. Carlson testified he did not ask Myers for the $1,000 he had on deposit, and said: “Mr. Myers never asked me for any money on this corn.” Myers’ testimony has been stated. Carlson directed sale of one lot of corn at 66 cents. He expressed dissatisfaction with the quality of the corn, and sent Myers to Chicago. Afterwards he directed Myers to sell the remainder of the corn. While the petition alleged that on or about February 20 Carlson failed, neglected and “refused” to pay for the corn, the variance between allegation and proof respecting “refused” is of no consequence. The result is, amount of recovery was governed by a portion of instruction No. 7, reading as follows:
“If you find in favor of the plaintiff, the amount which it is entitled to recover is the prevailing market price of the corn purchased at Chicago on December 31, 1925, from which should be deducted the following: ... If defendant accepted the corn and plaintiff sold the same on the order of defendant, then there should be deducted the amount plaintiff, by the exercise of reasonable diligence, could have obtained for the com at the date of such sale or sales by plaintiff, and less the sum of $1,000.53.
“In addition, plaintiff would be entitled to recover any reasonably necessary expense incurred by him in the purchase or sale of said com, and for holding the same to such time as he should have sold the same, as herein instructed, together with interest on the same from the 4th day of March, 1926.”
It is contended that sales made on March 2 and March 4 were .below the market quotations for those days. Myers’ explanation of the difficulty in disposing of elevator corn at the market price for the same grades has been given. The special findings and the verdict conclusively show the jury accepted Myers’ testimony and followed the quoted instruction.
It is contended the transaction was a gambling transaction. Carlson knew the character of the transaction when he framed his answer, and he did not plead the “welsher’s” defense. He testified he did not know whether there was any corn anywhere, he bought for speculation, he bought to hold the corn for awhile to make some money, and he had no intention to take delivery. Carlson’s order was in fact received by plaintiff’s telegraph operator, Arnold W. Claytor, who testified as follows:
“Q. Give the jury the date and time this order was received, and amount of corn purchased. A. At 1:03 p. m. December 31, 1925, I was called to the telephone.
“Q. Where were you called from? A. Evidently from Osage City, that is where the telegraph [telephone] operator said the call was from, and Mr. Carlson informed me to buy him 10,000 bushels of December Chicago com at the market.
“Q. Now, that purchase was then made on the last day of December, 1925? A. Yes.
“The Court: Tell what Mr. Carlson said. A. He said to purchase 10,000 bushels of Chicago December com at the market.
“Q. Did you tell him the market? A. Yes, and made it clear to him that December 31 was the last day of the December option, and wanted to be sure he wanted to take delivery on 10,000 bushels of December corn, and he said yes.
“Q. And that was a cash order? A. Yes, fifteen minutes later the market closed, at 1:15; we had twelve minutes to get his com for him.”
. In addition to the testimony given by Carlson relating to the bargain which has been noted above, he testified that if he had got the corn he ordered, he would have accepted the bargain; he was willing to take the corn; Myers was supposed to buy in Chicago, and if he had got what he ordered, it would have been left there. Carlson’s abstract contains instructions which he requested the court to give. They do not mention illegality of the transaction. On the face of this record, the court was not required to instruct the jury on that subject, and in view of the fact that the special findings and the general verdict rest on actual delivery and acceptance of the corn, the subject is of no importance now.
The foregoing disposes of the merits of the controversy. It is not practicable to discuss Carlson’s brief in detail. It presents nothing requiring a reversal. Plaintiff's cause of action was well established, the defense was disproved, the motion for new trial was properly-denied, and the judgment of the district court is affirmed.
Harvey, J., concurring in the judgment of affirmance.
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The opinion of the court was delivered by
Burch, J.:
The action was one for possession of land forcibly detained. Plaintiff’s demurrer to defendant’s evidence and motion for an instructed verdict were denied, and he appeals.
In the case of Black v. Black, 123 Kan. 608, 256 Pac. 995, the present defendant pleaded ownership of the land in controversy, and right of possession by virtue of ownership. Judgment was rendered for the present defendant, and the present plaintiff appealed. This court reversed the judgment of the district court, and ordered judgment in favor of the present plaintiff. After this determination of the controversy, defendant remained in possession. After serving a three-day notice to vacate, plaintiff sued for possession in the city court of Wichita. In the course of the trial in the district court, the court said:
“I will say that I think the question of ownership of this property has been determined in that case in the supreme court, both legal and equitable, and I do not think you are entitled to set up legal or equitable ownership in this case. The supreme court has decided that. I may not agree with the supreme court, but I think they decided it, that you did not have legal or equitable title to this land which entitled you to possession.”
The court, however, retried the issues in the former case, with the result that defendant is still in possession, by virtue of his original claim of ownership and right to' possession. Plaintiff’s demurrer to defendant’s evidence and plaintiff’s motion for an instructed verdict in plaintiff’s favor should have been sustained.
The cause is again remanded to the district court with direction to enter judgment for plaintiff.
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The opinion of the court was delivered by
Marshall, J.:
The action is one to recover damages for injuries sustained by plaintiff on coming in contact with a high-pow,er elec trie transmission line operated'by the defendant. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The evidence was submitted to a jury, which answered special questions and returned a verdict in favor of the plaintiff. The defendant, at the close of the plaintiff’s evidence, demurred thereto. That demurrer was overruled. When the evidence was concluded .the defendant asked that a peremptory instruction be given directing the jury to return a verdict in favor of the defendant. That was denied. The defendant argues that there was not evidence sufficient to warrant submitting the case to the jury, nor to uphold its verdict. The evidence established that on Tenth street, in Kansas City, Kan., there is a viaduct running across railroad tracks and yards; that the viaduct is a large steel structure, consisting of five spans, the bottom of which is thirty feet above the ground, and the top of which is fifty-five feet above the ground; that about six feet above the top of the viaduct, resting on poles supported by it, the defendant 'operates an uninsulated electric transmission line carrying 6,600 volts of electricity; that the viaduct is used for pedestrian, vehicular, and street-railway traffic; that the plaintiff, an average, intelligent boy, almost thirteen years of age, was crossing the viaduct with a companion; that the plaintiff climbed the steel structure of one of the spans of the viaduct, walked the full length on top of it and descended; that he climbed another span and walked about half way across it when he threw up one of his hands, which came in contact with the electric transmission line, and he fell to the floor of the viaduct, a distance of twenty-five feet; that he was burned by coming in contact with the wire; that the plaintiff’s companion warned him that it was dangerous to climb or to walk on the viaduct; and that the plaintiff was not aware that the transmission line carried a dangerous amount of electricity. There was evidence which tended to prove that other boys had climbed the viaduct for the purpose of securing birds’ nests built thereon, and for the purpose of securing pigeons.
The plaintiff seeks to recover on the theory that the viaduct, together with the transmission line, constituted an attractive nuisance. The plaintiff alleged that—
“His injuries were due to the carelessness and negligence of the defendant, its agents, servants and employees, in maintaining, controlling and operating uninsulated electric wires upon a place and in close proximity of said place, which defendant knew or could have known by the exercise of ordinary care that it was frequented by boys at play, and defendant knew or could have known by the exercise of ordinary care that the superstructure of said viaduct, because of its construction, was an inviting place to boys to climb and play, and that in climbing and playing about and upon said superstructure said children would come in contact with said wires so charged with electricity as aforesaid, and that by reason of the carelessness and negligence of defendant, as aforesaid, said plaintiff received the injuries herein set forth.”
The plaintiff cites and relies on Electric-light Co. v. Healy, 65 Kan. 798, 70 Pac. 884. There a judgment in favor of a boy who was injured by coming in contact with an electric transmission line was affirmed. The circumstances were detailed in the opinion as follows:
“The consolidated Electric-light and Power Company was given permission by the city of Kansas City to carry its electric wires on a viaduct constituting a part of one of the streets. This the company did by stringing them on timbers projecting out from the side of the viaduct or bridge. There were a number of wires placed at distances of about a foot to several feet from the ends of the boards constituting the floor of the bridge. The sides of the bridge were guarded by an iron railing or balustrade several feet high, running, substantially speaking, over the ends of the boards constituting the bridge floor. However, many of the boards projected beyond, that is, outside the bridge railing. The electric wires alongside the viaduct were very defectively insulated, their insulating covers having rotted away in many places. This fact the company knew. Small boys were in the habit of climbing over the viaduct railing immediately by the electric wires. This fact the company also knew. Holly Healy, a boy about ten years old, and of the average intelligence and characteristics of boys of that age, climbed over the railing and came in contact with one of the electrically charged wires, and was killed.” (p. 799.)
The circumstances there were different from what they are here. There, the electric wire was easy of access; here, it was difficult of access. It could hardly have been put in a place more difficult of access.
In Zagar v. Railroad Co., 113 Kan. 240, 214 Pac. 107, the court said:
“The owner of land on which a steep bluff is situated is not required to fence it, or otherwise insure the safety of strangers who may come upon his premises, not by invitation, but for the purpose of amusement or for motives of curiosity.
“And, where the owner, for his own uses, excavates at the base of a natural bluff, making it steeper, and where a boy thirteen and a half years old, while playing in a cave dug into the face of the bluff by other boys, is seriously injured by a large quantity of earth falling upon him, held, that the case does not come within the attractive-nuisance doctrine and the owner is not liable for the injury.” (Syl.)
In United Zinc Co. v. Britt, 258 U. S. 268, the first headnote reads as follows:
“A landowner owes no general duty to keep his land safe for children of tender years, or even free from hidden danger, if he has not directly or by implication invited them there.”
In N. Y., N. H. and H. R. R. Co. v. Fruchter, 260 U. S. 141, the headnote reads:
“A boy of eight years, by climbing to the topmost girder of a municipal bridge used for conveying a street across a railroad, and thence up a latticed tower, touched a live electric wire twenty-nine feet above the street, and was injured. Held, upon the circumstances stated in the opinion, that the railroad company (which maintained the wires and the bridge framework) could not be deemed liable upon the theory of license or invitation.”
If these rules, supported by both reason and authority, are to be followed the defendant under the evidence was not liable to the plaintiff for the injury sustained by him. The demurrer to the plaintiff’s evidence should have been sustained.
The judgment is reversed, and the trial court is directed to enter judgment for the defendant.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in the name of the state on the relation of the county attorney to enjoin defendants from maintaining a structure and business alleged to constitute a public nuisance on one of the strees of the city of Salina, and to require the removal and abatement thereof. Defendants’ demurrer to the petition was overruled, and they have appealed from that ruling. Later, defend ants having elected to stand on their demurrer and not to plead further, a default judgment was rendered for plaintiff as prayed. Defendants’ motion for a new trial was overruled, and they have appealed from the judgment and the order overruling the motion for a new trial. Both appeals present substantially the same questions and are presented together in this court.
The petition, after formal allegations, avers in substance that Elm street, in the city of Salina, a city of the first class, has been open and in constant use as a public street for its entire width for many years until obstructed by defendants, and that the street at the point in question is within the business section of the city and sustains a heavy vehicular traffic; that about 1926 defendants, owning lots on Elm street, erected on such lots a four-story business building which has since been used in carrying on their business of purchasing and selling poultry, eggs, and kindred products; that on the erection of the building defendants caused to be erected, and now maintain, what they call a loading and unloading dock along the south side of the building and immediately south of the line of their lots, which dock is 120 feet long, 10 feet wide and 5 feet high, and which extends to and encroaches upon Elm street its entire length and, width, and also constructed and maintain a canopy over the dock which extends into and over Elm street 11 feet or more the full length of the dock; that in the conduct of their business defendants’ automobile trucks and other conveyances, during all hours of the day, are backed up and driven alongside of the dock for the purpose of receiving and delivering merchandise, which trucks and conveyances appropriate and use the street to the extent of 10 feet or more and deprive the public from the use of that portion of the street; that defendants deposit and keep on the dock during all business hours a large number of chicken crates, egg cases, boxes and merchandise, and render travel upon the dock impractical and unsafe; that defendants, by the means aforesaid, have appropriated for their exclusive use practically the north half of Elm street for the distance of 120 feet in front of their building; that public school buildings are located near and children going to school, and other pedestrians, are unable to use the sidewalk in front of defendants’ building because of the obstructions and use made of it by defendants, and are compelled to walk out near the center of the street, which is dangerous because of the heavy vehicular traffic. The petition further avers “that said encroachments and said obstructions so created and main tained by defendants are unlawful and without right, and constitute a public nuisance and deprive the public of a large and material portion of said street dedicated and designed for public use, and have caused and are causing great and irreparable injury to persons having occasion to travel over and upon said street, and renders 'the use of said street by said persons unsafe and dangerous . . .”
Appellants argue that their demurrer to the petition should have been sustained for the reason that the plaintiff cannot maintain the action; that by statute the fee title to the streets of a city is in the county, but that the control of the streets is in the city, citing McGrew v. Stewart, 51 Kan. 185, 32 Pac. 896; State v. Franklin County, 84 Kan. 404, 114 Pac. 247; City of Topeka v. Shawnee County, 91 Kan. 275, 137 Pac. 951; Foster v. City of Topeka, 112 Kan. 253, 210 Pac. 341; City of Cottonwood Falls v. Chase County, 113 Kan. 164, 213 Pac. 648; Slocum v. City of Wichita, 114 Kan. 260, 217 Pac. 297, and allied cases.
While it is true that, generally speaking, the city has control of the streets, in exercising such control it acts only as the arm of the state, and such control is not exclusive to the extent that the state is deprived of power and authority to abate a public nuisance conducted or maintained in a city street. In Eble v. The State, 77 Kan. 179, 93 Pac. 803, where a similar question was raised as to the authority of the state to maintain an action to enjoin and abate the obstruction of a public highway, the control of which was under the board of county commissioners, by reason of which it was contended that the state could not maintain the action, it was said:
“The state at large has an interest in keeping the highways in every county free from obstruction to public travel, no matter what the attitude of the local authorities upon the question may be. The willful obstruction of a highway is a public offense which the state may prosecute, even though the township trustee be disinclined or refuse to do so. Such an obstruction may be enjoined and abated as a common nuisance by the state, even though the board of county commissioners should be opposed to the suit; and the legislature has made it the duty of the county attorney to prosecute, on behalf of the people, all suits, civil or criminal, arising under the laws of the state, in which the state is a party or is interested.” (p. 181.)
In State v. Rabinowitz, 85 Kan. 841, 118 Pac. 1040, the specific question of the authority of the state to maintain an action to enjoin a public nuisance in the streets and alleys of a city was before the court, and the right of the state to do so was upheld. It was said in the opinion:
“The code specifically provides that ‘an injunction may be granted in the name of the state to enjoin and suppress the keeping and maintaining of a common nuisance.’ (Civ. Code, § 265.) This provision gives direct authority to the state for the injunction sought if the acts and things charged against appellees in the petition constitute a common nuisance. At the common law, acts done in violation of the law, or which are against good morals or public decency, and which result in injury to the public, constitute a public nuisance. .(1 Wood on Nuisances, 3d ed., § 17; Joyce on Nuisances, § 5; 6 Cur. Law, 828.)
“A nuisance is public if it affects the community at large or if it affects a place where the public have a right to and do go, such as a park, street or alley, and which nuisance necessarily annoys, offends or injures those who come within the scope of its influence. That the illegal act is publicly, repeatedly and persistently committed in the streets of a city, thus offending and injuring all who use the streets and who necessarily come within the range of such an influence, is an important factor in determining whether it constitutes a common or public nuisance.” (p. 847.)
Many authorities are cited in support of the rule of law announced in the opinion. (See, also, Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348; State, ex rel., v. Harper, 114 Kan. 382, 219 Pac. 266; 20 R. C. L. 487; 29 C. J. 627.)
There is no lack of power of the state to maintain an action to enjoin and abate a public nuisance wherever the same may be located in the state.
Appellants contend that their demurrer to the petition should have been sustained for the reason the allegations of the petition that the obstructions were created and maintained by defendants “are unlawful and without right” is a conclusion of law as distinct from an allegation of fact. It is argued that the city, under its authority to control the streets of a city, may have granted permission to defendants to construct and use the dock in the manner it was constructed and was being used, and that the petition contains no allegation that the city had not granted such authority. We regard the point as not being well taken. About as distinct a way one can allege the nonexistence of a fact is to allege that it does not exist. The allegation that the defendants had constructed and maintained the obstruction “unlawfully and without right” negatives the existence of any lawful grant of authority by the state or any of its subdivisions for the construction and maintenance of the obstruction complained of. In that sense it is- an allegation of fact, it being alleged as a fact that no such authority exists. It was not error to overrule the demurrer to the petition.
Appellants make the further contention that this is not the charac ter of a case in which a default judgment could be entered without evidence. The general rule is that where plaintiff’s petition states a cause of action and defendant’s demurrer thereto has been overruled, and defendant fails or refuses to plead further, the court is authorized to render judgment by default. (34 C. J. 167.) Our statute (R. S. 60-748) provides that the material allegations of a petition, not controverted by answer, “shall for the purposes of the action be taken as true,” although the court may, with the assent of the party not in default, take evidence. (R. S. 60-3109.)
Any authority which defendants had for the construction and maintenance of the obstruction complained of was a proper matter of defense. That defense was waived by defendants declining to plead further. The record, therefore, stands as though no such defense exists, and it was proper for the court to so consider the matter at the time of rendering judgment.
The judgment of the court below is affirmed.
Bubch, J., not sitting.
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The opinion of the court was delivered by
Garver, J. :
The appellants, Kepple and Haines, at the October, 1894, term of the district court of Osborne county, were convicted of the offense of assault and battery committed upon one Robert Ohnsat. The only assignment of error which we are called upon to consider is based upon an instruction of the court to the jury with reference to the consideration which the jury should give to the evidence showing a prior conviction of the prosecuting witness, Ohnsat, of a similar offense. The instruction complained of reads as follows :
“The jury are instructed that the conviction of the prosecuting witness, Robert Ohnsat, of assault and battery should be considered by you only as bearing upon the question of the credibility of said Robert Ohnsat as a witness in this case. The question of whether or not he was rightfully convicted, or whether he or the defendant .Kepple were the more in fault in the fight referred to as the first fight, is not before you for your consideration in determining the question of guilt or innocence of these defendants, or either of them, except so far as such conviction may bear upon the credibility of Robert Ohnsat in this case as a witness, and you are the judges as to what weight should be given to such fact, as well as all other facts proven in the case.”
The record filed in this court does not contain any of the evidence given upon the trial. The bill of exceptions is limited to a statement of the fact that evidence was introduced upon the trial by both the state and the defendants, and the above instruction is all of the instructions that is preserved by the record. There is nothing to show at what time Ohnsat was convicted, nor in what manner that fact was proved upon the trial. We do not see how the fact of the
previous conviction- of Ohnsat was competent evidence for any purpose, nor how it could be admitted in evidence as pertinent to the guilt or innocence of the defendants on trial, unless we may infer that Ohnsat was examined and testified as a witness for the state, and on cross-examination, in answer to questions by counsel for defendants, admitted his previous conviction. Such inquiry would be proper on cross-examination for the purpose of reflecting upon his character and discrediting him as a witness. (The State v. Pfefferle, 36 Kan. 90.) It is unimportant for that purpose whether either of the defendants in this case was involved in the previous affair out of which grew the prosecution against Ohnsat. If it was so connected with the transaction for which the defendants in this case were on trial that it might properly be held to have some legitimate bearing upon their guilt or innocence, then it would be proper for the court to hear evidence with reference thereto, and for the jtiry to consider such facts in connection with the other evidence in the case bearing more directly upon the immediate subject of inquiry. Unless there was such connection and relation between the two transactions, it was entirely foreign to the issues in this case, and would only tend to confuse the jury to permit them to stop and consider whether the former conviction was rightly secured. If the fact of the previous conviction of Ohnsat was admitted in evidence only for the purpose of affecting his credit as a witness, there was no error in the instruction of the court. In the absence of an affirmative showing, we must assume that the court correctly applied the law, and that the evidence was only admitted for the one purpose.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Cole, J. :
The defendant, George Saxton, was arrested upon a complaint filed before a justice of the peace of Rice county, Kansas, charging him in five separate counts with unlawful sales of intoxicating liquors, and in the sixth count with maintaining a nuisance by being the keeper of a place where intoxicating liquors were kept for sale and barter in violation of law. Upon the trial the jury rendered a verdict of guilty upon each of the said counts excepting the fifth,- and thereupon said defendant filed his appeal in the district court of said county, and upon a trial in that court a verdict of guilty was rendered on the first, third and sixth counts ; and the court having sentenced the defendant to the county jail of said county for a term of 30 days and to pay a fine of $100 upon each of said counts upon which he was convicted in said court, the defendant has brought the case here for review.
Several reasons are alleged why a reversal of this case should be had, the principal one being that a justice of the peace has no jurisdiction to hear and determine an action brought under section 392 of the crimes act, being the section of the prohibitory act defining a nuisance and prescribing punishment therefor, and that, as the justice of the peace had no jurisdiction to hear and determine such a case in the first instance, the district court gained no jurisdiction on appeal and trial clenovo; and that, as the district court obtained no jurisdiction of that part of the action charging the defendant with maintaining a nuisance, the entire judgment must be reversed because of the admission of evidence which, while competent to sustain that charge, was incompetent as to the other counts of the complaint which charged specific sales. It is contended by the counsel for the state that this question of jurisdiction was not raised upon the motion to quash the complaint filed before the justice of the peace, and that the question of jurisdiction was not raised in the district court until an objection was made to the introduction of evidence. The record does not present the motion to quash in the form claimed by the counsel for the defendant, and it is difficult to determine whether the question now raised was urged under the motion as it appears in the record ; but we feel inclined to give the defendant the benefit of the doubt, and to proceed with the discussion of the questions presented. Section 392 of the crimes act declares all places where intoxicating liq uors are manufactured, sold, bartered or given away in violation of any of the provisions of said act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of said act, to. be common nuisances, and provides that, upon a judgment of a court having jurisdiction finding such places to be nuisances under said section, the sheriff, his deputy or under-sheriff, or any constable of the county, or marshal of any city, where the same are located, shall be directed to shut up and abate such places (prescribing the manner in which the same shall be done), and that the owner or keeper thereof, upon conviction, shall be adjudged guilty of maintaining a common nuisance, and bé punished1 by fine of not less than $100 nor moré than $500, and by imprisonment in the county jail not less than 30 days or more than 90 days. This same section also provides that the attorney general, county attorney or any citizen of the county may maintain an action to abate and enjoin such nuisance in the name of the state. It further provides a punishment for the violation of the terms of any injunction granted in such proceeding; and the same section further provides for the taxation of a reasonable amount as attorneys’ fees, as a part of the costs, in case the plaintiff shall recover judgment in such an action.
Counsel for defendant argue in their brief, that under this section the same court that can convict the owner or keeper of maintaining this uuisance can also make its order to the sheriff or other officer to abate the same in the manner provided by such section; and we agree that such is the fact. Our statute divides public offenses into two classes — felonies and misde meanors — and defines a felony as an offense punishable by death or confinement and hard labor in the penitentiary, and prescribes that all other offenses are misdemeanors. (Crim. Code, §§ 3, 4.) Paragraph 5433, General Statutes of 1889, gives justices of the peace concurrent original jurisdiction with the district court, coextensive with their respective counties, in all cases of misdemeanors in which the fine cannot exceed $500, and the imprisonment cannot exceed one year, except as otherwise provided by law. It is certainly true that any act for the commission of which the statute of this state provides a punishment becomes thereby a public offense, whether it be specially named as such in the statute or not. And if the punishment prescribed by the statute for the com mission of an act is less than confinement in the penitentiary, such act is a misdemeanor ; and if the punishment for such misdemeanor cannot exceed a fine of $500 or imprisonment for more than one year, a justice of the peace of the proper county has jurisdiction to hear and determine the guilt or innocence of a party charged with such misdemeanors, unless the statute expressly provides otherwise. But counsel for defendant urge that it is an elementary principle that the power to abate carries with it the power to restrain and enjoin, and that, because section 392 of the crimes act provides a remedy by injunction as well as by abatement, neither remedy may be invoked excepting in a court having jurisdiction of both of said remedies. We do not deem this reasoning correct. A police magistrate, in a city of the third class even, may, under a proper ordinance, punish a citizen for maintaining a nuisance within the limits of said city, and may, as a part of the judgment in said cause, order the marshal of said city to abate the nuisance com plained of, and yet it would not be contended that a police magistrate of a city of the third class, under our statutes, has the power to issue an injunction to restrain the maintenance or creation of the same nuisance.
It is clear that section 392 of the crimes act provides two distinct remedies for the offense therein named. The first is a criminal action, maintained in the name of the state, and carries with it a specific punishment, viz., fine and imprisonment, and also, as a part of the judgment, and in addition to the fine and imprisonment which are assessed against the owner-or keeper of the thing proscribed, the abatement of the nuisance is also ordered in the manner therein provided. The second is a civil remedy, which, while brought in the name of the state, may be upon the relation of any citizen of the county, and is for the purpose of enjoining the nuisance complained of. It is true the statute which gives this second remedy also provides a punishment, not for the maintaining of the nuisance, but only for contempt of the court issuing the injunction in case the same be violated. It does not follow that the same court has jurisdiction in the application of both of these remedies. It is a general truth that., where two remedies exist, the plaintiff in an action may elect which remedy he will pursue. He may choose for himself any mode of proceeding authorized by law.
‘ ‘ In neither civil nor criminal cases is the tribunal or form of action selected by the defendant; nor in case one tribunal has jurisdiction and one form of action is authorized, can the defendant object on the ground that another tribunal has also jurisdiction, and that in a different form of action the litigation may be determined with less expense and in a shorter time. This, which is a general truth applicable to all actions, ought to be especially enforced where the state is the plaintiff and the action a criminal one. The state ought not to be hampered; it should have the privilege of going before any tribunal which has jurisdiction, and resorting to any mode of procedure which is authorized by statute. ’ ’ (Dissenting opinion of Brewer, J., In re Donnelly, 30 Kan. 430.)
"VVe can see no good reason why either of the remedies prescribed by the statute under discussion may not be invoked, or why a justice of the peace may not hear and determine a case which is clearly within his jurisdiction under the statute, because another and separate remedy, the enforcement of which is beyond his jurisdiction, has also been, provided.
But counsel for defendant urge as another reason why a justice of the peace cannot acquire jurisdiction in a prosecution brought under section 392 of the crimes act that said section provides for the punishment of the “owner or keeper” of the nuisance, and that a plea of “not guilty” puts in issue the title to the particular real estate where it might be alleged the nuisance was maintained, and that as a justice of the peace is barred by statute from determining a case where it appears to his satisfaction that the title to real estate is in dispute, therefore it was not intended to confer jurisdiction upon justices of the peace to hear and determine cases arising under said section 392. Again, we think the reasoning is not good. The constitutional provision in our state with regard to justices of the peace is that they shall have such jurisdiction as may be given them by law. It is left, then, to the same power, viz., the legislature, to extend or limit the jurisdiction of a justice of the peace ; and where that power has expressly conferred jurisdiction upon justices of the peace to hear and determine all misdemeanor cases, where the punishment is ■within a certain fixed limit, there is implied in that jurisdiction the power to determine any and all questions necessary to adjudicate properly the rights of the parties to such an action. And where the main question to be determined is the guilt or innocence of the defendant, a justice of the peace may, to the extent necessary to a just determination of that question, permit the investigation on the trial of the title to the real, estate where it is alleged the nuisance is maintained. (Brown v. Burdick, 25 Ohio St. 260; Trustees v. Tuttle, 30 id. 62; Lyman v. Stanton, 39 Kan. 443, 40 id. 727.) However, in this case the objection urged by counsel did not arise, as the defendant was not charged as the owner but as the keeper of the place alleged to be a common nuisance.
It is further argued that the complaint in this case was defective in not stating a time when the alleged offense was committed The allegation referred to is as follows •
"was, and stiL continues to be, a place where spirituous, vinous, malt, fermented and other intoxicating liquors were, and have been, and are still continuing to be, sold and bartered in violation of an act of the legislature.”
And the complaint contained a further allegation : "George Saxton did then and there, at the above-stated time, unlawfully did keep and maintain,” etc. The rule is well settled that an indictment, or information is good if the day and year can be collected from the entire statement, though they be not expressly averred; and where, in an information, indictment, or complaint, it is charged that a-certain building therein described was, and is, and still con tinues to be, a place where intoxicating liquors were and have been and now are still continuing to be sold iii violation of law, and that the defendant then and there, at the time above stated, unlawfully did keep and maintain said place, and still continues to keep and maintain said place, it certainly charges the then present time, which would mean the date of filing the complaint, and is sufficiently specific so that the rights of the defendant are not prejudiced in any sense whatever.
The defendant further alleges, that the court committed error in overruling his motion to require the state to make its election more definite and certain. So far as the election made upon the second count is concerned, it is immaterial at this time, for the reason that defendant was acquitted upon that count; aUd no election is required so far as the offense charged in the sixth count is concerned. (The State v. Lund, 49 Kan. 218, 666.) The state relied for a conviction under the first count upon a sale of two glasses of whisky made by the defendant to the witness A. E. Wellman, and for which A. E. Wellman paid the defendant 20 cents. The testimony of Wellman discloses but one sale of the nature indicated in the election, and he fixes the time as the 1st day of November, 1894. Under the third count, the state relied for a conviction upon a sale of one glass of whisky and one bottle of beer made by the defendant to W. C. Crawford, for which said Crawford paid the defendant 25 cents. And this was the only sale of the description stated in the election which was testified to, and he fixes the date of the same in his testimony as November 2, 1894. These sales testified to by Wellman and Crawford were in each instance but a single sale, for, while more than one article was purchased, all were purchased together and but one payment made. The elections made by the state were sufficient under the rule laid down in The State v. Crimmins, 31 Kan. 380, and The State v. O’Connell, 31 id. 383; and when taken in connection with the evidence in this case they could in no way have confused the jury or prejudiced the rights of the defendant. In each instance a definite sale, which is specifically described both as to the person to whom the sale was made, the kind of liquor sold and the amount of money paid for the purchase is indicated. The only thing not indicated is the date of the sale, and, as we have before stated, there was but one date upon which such a sale was made under the testimony. In the cases referred to in the brief of counsel for defendant no such definite election was made as in this case. The views above expressed with regard to the last assignment of error also dispose of the objection raised to the seventh, eighth and ninth instructions of the court.
Counsel for the defendant allege that the court erred in giving the tenth instruction, for the reason, as they claim, first, that said instruction assumed that the mere keeping of a place where intoxicating liquors were sold in violation of law was a common nuisance, without any judicial determination of that fact; and, second, that the said court by said instruction attempted to establish the time when the nuisance was supposed to have been kept. This second objection we have answered in connection with other alleged errors. With regard to the first objection, we do not give the interpretation to the statute contended for by counsel. The statute plainly declares a place, such as is charged in the complaint in this case, tó be a common nuisance, and the manifest interpretation of that portion of the section which reads “upon the judgment of a court having jurisdiction finding said place to be a nuisance under this section” is, that when the court finds from the evidence in a case that a place charged in the complaint is one where the acts proscribed are committed, it shall then apply the remedy. The determination of the court that it is such a place is all that is necessary. The statute fixes its name. This we think disposes of all the alleged errors complained of.
The judgment of the district court will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
Plaintiff in error, as plaintiff below, obtained a judgment against the Florence Water Supply Company. Execution was issued on said judgment, and duly returned unsatisfied. Thereafter plaintiff filed its motion and served proper notice on the defendant in error for the purpose of obtaining execution against him as a stockholder in said corporation. The court, after hearing the testimony, overruled the motion. Of this the plaintiff in error complains, and we are called upon to review the action of the court.
The correctness of the judgment of the court below rests upon the question, whether or not B. M. Davies was a stockholder in the Florence Water Supply Company at the time the execution against the property or effects of the corporation was found to be ineffectual? If he was not, then the judgment is correct. It appears from the record that the defendant, B. M. Davies, with 12 others at some time signed the following agreement:
“We, whose names are subscribed hereto, agree to subscribe for and purchase from the Florence Water Supply Company the amount of stock and first-mortgage bonds in equal parts of said company; each share of stock is $100, and each mortgage bond of the nominal value of $100, and for each $100 cash paid in such instalments as the directors may from time to time call, said company agrees to deliver on payment of said subscription to the subscriber for each $100, one share of stock and dne mortgage bond of the denomination aforesaid. The rate of interest and date of said bond and the time they shall run shall be determined by the directors.
Names. No. of shares. Amount.
B. M. Davies, 10 $1,000.”
When this agreement was signed, whether before or after the organization of the company, the record does not show; but, from the circumstances surrounding it,, we are led to the conclusion that it was prior to the organization. It is also shown by the record that a charter was filed on the 12th day of February, 1887, with the secretary of state ; that in September, 1887, a stock ledger was opened, and stock charged to different parties thereon; that among those whose names appear on this ledger were some of those whose names were on said agreement, and others who did not sign it; that the name of B. M. Davies does not appear on the ledger; that he was never assessed for or on account of any stock, but that the identical stock for which he was supposed to subscribe was assessed the same as the other stock, but not to Mr. Davies ; that no stock was ever issued — simply charged on the stock ledger to the parties as assessments were made thereon, and as these assessments were paid.the parties were credited with the amounts paid. Under the facts as disclosed in the record, we perceive no error in the ruling of the court below. The only testimony which in any manner attempts to connect the defendant with this corporation is the agreement which he signed; and that, taken in its strongest sense, could not be considered as a subscription for stock, but an executory agreement for stock and to purchase first-mortgage bonds at some future time, when certain things were performed by the company. The subscription to stock and the purchase of the bonds formed an entire contract, each depending on the other, and the company could not enforce this contract against any of the signers as to the stock without tendering the bonds, or for the bonds without the stock; and the fact that it is not shown that any first-mortgage bonds were ever issued as provided for in the agreement, and that some only of those who signed this agreement were assessed, and that others, who were not parties to the agreement, became members of the corporation, and that no assessment on any stock was ever made against said Davies, point strongly to the conclusion that this agreement was made prior to the organization, and that it was afterward abandoned and a new subscription made.
The individual liability of stockholders for the corporate debts depends solely on provisions of positive law; or, as Chief Justice Horton has expressed it, “ Neither at law nor in equity are stockholders contributing to the capital of an incorporated company individually liable for the payment of the debts of the corporation. The liability arises solely by constitutional or statutory provision.” (Hentig v. James, 22 Kan. 326.) We think this is a much stronger case than McCormick v. Gas Co., 48 Kan. 614. In that case the court held, that as the written agreement signed by the parties before the organization of the company, as well as the parties who signed the same, was ,ac cepted and acted upon as the subscription paper or subscription book to the capital stock, the parties having paid assessments thereon, they were bound, clearly indicating that in the absence of the action of the parties and officers they would not have been so. But, in the case at bar, there are no such acts of the company or of Davies, but, on the contrary, the very opposite appears. It does not affirmatively appear that the agreement offered in testimony in this action was an agreement to subscribe for stock in any corporation then existing. It is not shown that it was ever finally presented to the directors of the company and accepted by any regular vote or order. It was a mere open proposition.
It is well settled that a subscription for shares in a corporation thereafter to be formed under a general law may be accepted by the board of directors of the company after organization. (Mor. Priv. Corp. §28; McCormick v. Gas Co., 48 Kan. 614.) We think that the converse of this rule is equally true, and, in order to create an individual liability on the part of a stockholder for the debts of the company upon a mere agreement to subscribe for stock, -it must appear that the corporation existed at the time the agreement was made, or that the agreement was presented to the directors of the corporation after its organization and accepted by a regular vote or order. This agreement is vague and indefinite. While it is true that it specifies the amount or proportion of the capital stock the parties agree to take, yet, it does not specify the amount of capital stock to be employed, or by whom the company is to be organized. Before the payment of subscription can be compelled, the capital to be employed must be fixed, and certain, and a bona fide subscription must be made, and a complete organiza tion. effected. (Coal Co. v. Settle, 54 Kan. 424; National Bank v. Votaw, 51 id. 366.)
The registration of stock required by the statute is in part for the benefit of the public, and to provide creditors with a record of those who are individually liable in case the corporation becomes unable to meet its obligations. Under our constitution and statutes, the individual liability stands as a sort of surety for the corporate liability, and creditors of the corporation are presumed to contract, with reference to the individual responsibility of the stockholders. The general rule is, that the books of the corporation furnish evidence as to what persons are entitled to the rights and privileges of stockholders, and as to whom creditors may look for payment in the event of the insolvency of the corporation. Creditors of a corporation are presumed to have relied upon the books. (Plumb v. Bank of Enterprise, 48 Kan. 484.) In this case the company had opened a stock ledger for the purpose of recording all transactions with its stockholders as to the shares of stock owned by them. Davies’s name never appeared thereon in any manner. No stock had been issued or charged to him, nor had any stock in his name ever been assessed. How, then, can it be said that Davies was a stockholder in the corporation at the time the execution against the property or effects of the corporation was found to be ineffectual.
Finding no error in the record, the judgment of the district court will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Johnson, P. J. :
Edward Rheiner commenced a suit in the district court of Rice county, Kansas, to enjoin the treasurer and county clerk of said county, and the city of Lyons and school district No. 69 of Rice county, Kansas, from collecting certain taxes assessed and levied on certain property of his. Part of the property charged with the taxes sought to be enjoined was situated in the original city of Lyons, part in Workman’s addition, part in White-’ addition, and a part in Purdy’s addition, commonly known as Purdyville. The separate lots or parcels of land are charged separately with the several different kinds of taxes thereon. The particular taxes sought to be enjoined consist of city of Lyons general and interest taxes, sidewalk assessments, and school-district taxes, and the penalties on all of these different taxes; Some of these taxes are alleged to be illegal for one reason, and others for different reasons.
On the filing of the petition, duly verified, the judge of the district court, at chambers, granted a temporary restraining order. The action was afterward tried before the court without a jury, John N. Ives presiding as judge pro tem., and the collection of taxes complained of enjoined. The court was requested in writing to made special findings of fact on the issuable facts involved in the case and its conclusions of law separately. The court made findings of fact on part of the questions submitted, and refused to find the facts on other propositions submitted. The defendants below duly excepted to the refusal of the court to find the facts on certain issuable questions. The court overruled the objections of the defendants below, and entered up a judgment on such of the findings as it made and its conclusions therefrom; and the defendants below filed their motion for a new trial, which was overruled, and defendants duly excepted thereto, and made a case for the supreme court, which was duly settled and signed, and plaintiffs in error filed their petition in error with the case-made attached in the supreme court, which was duly certified to this court for review. On the conclusion of the evidence, the defendants below submitted in writing 31 questions of fact to the court, and requested findings thereon. The court took the whole case under advisement for several weeks, and afterward made what are designated as findings of fact, by the court, to part of the questions submitted, and refused to find on any of the other questions requested, and assigned as a reason for not finding on the other propositions that the findings as already made, in the opinion of the court, contained all the facts involved in the issues. The court declined to make findings submitted by the defendants’ attorney, except as included in the find ings as made by the court. The refusal of the court to find the facts as submitted by the defendants below is the first error complained of in this court.
Section 290 of the code of civil procedure reads :
“Upon- the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law.”
It is a right that either party to a suit has, where the case is tried by the court without a jury, upon request, to have all or any of the issuable facts involved in the pleadings, and upon which there is any evidence, found separately from the conclusions of law based thereon, so that he may have his exceptions to the findings and conclusions; and a refusal of the court, upon a request made to find all facts submitted which are material, is error, and the facts should be found separately from the conclusions of law, so that the reviewing court may determine whether the judgment based on the facts as found is erroneous or not. It is shown in the evidence that Purdyville, which is now claimed to be a part of the city of Lyons, was originally surveyed, platted, and the plat thereof re-' corded in the office of the register of deeds of Rice county, as a town, with streets, alleys, public grounds, and divided into lots and blocks. It was claimed that the town was afterward vacated and all the property reverted to the original proprietors; and that the separate parcels or lots of land were thereby again united into one solid body of land and the title all reinvested in the owners of the lots and blocks; and that the attempt of the city of Lyons and the board of county commissioners of Rice county to extend the limits of said city so as to include this territory was unauthorized and void, for the reason that it included more land in the area belonging to one person than could be taken in by ordinance, without the consent of the owner. The Regularity of these proceedings and the legality of the action of the officers in their attempt to make Purdyville a part of the city of Lyons were facts ; and if the necessary facts existed, and the officers followed the law in their effort to extend the limits of the city, and they were authorized to extend the boundaries of the city and take in this territory, then it became a part of the city and was subject to taxation for city purposes. The findings made by the court in the fourth finding are mixed findings of fact and conclusions of law. The court does not find the fact upon which it bases the following conclusion :
“That blocks 4 and 5 constitute one body of land, and contain about six acres of land, with a vacated street between these two blocks ; that vacated street and other lands owned by the plaintiff contained lO-J-acres, and, for the purpose of this case, there are no streets, alleys or public grounds contained within or upon said 10-J- acres.”
This statement is a mere conclusion without the facts, and the whole finding is so indefinite that it is hard to understand from the so-called finding what the court really did find as a fact, and is not a compliance with the requirements of the law, and is prej^ udicial to the rights of the defendants below.
The defendants, in their written request, ask the court, in propositions Nos. 22 to 29, both inclusive, to find the facts in relation to the plaintiff’s residence on blocks 4 and 5 in Purdyville ; whether he voted in the city of Lyons after the passage of the ordinance by the city council attempting to take him into the corporate limits ; at what election he voted ; whether he voted at bond elections in the city; what petitions he signed to' the city council, representing that he was a citizen and resident of the city ; whether he objected to being taken into the city limits, and was taken in without his consent; what petition he signed representing that he was a citizen, resident and taxpayer of the city of Lyons; how much of plaintiff’s land was in blocks, when the same was originally platted, in blocks 4 and 5 ; how much land there was in the streets vacated, or attempted to be vacated, by the county commissioners ; how much land there was in the unplatted portion of plaintiff’s ground which the county commissioners ordered to be incorporated as a part of the city of Lyons ; whether plaintiff had notice by publication of the application to the county commissioners to take his unplatted lands and make the same a part of the corporate property of the city of Lyons, and whether he made any objection to being taken in by the order of the board of county commissioners ; to set forth fully all the steps taken before the county commissioners to take into the corporate limits the lands of the plaintiff; if it be found that the plaintiff’s land on which he resides, being blocks 4 and 5 of Purdyville, as originally platted, was vacated and ceased to be platted grounds, then to set forth fully when and how the same was vacated.
These facts were all material under the issues in the case, and the court should have found substantially these facts. It was not necessary that the court should have answered all of these questions in the form presented in the request, but it should have found the substance of the propositions submitted, as the plaintiff was seeking to avoid the payment of all taxes for city purposes on the property in the original town of Purdy ville, claiming that the order of the county commissioners and the ordinance extending the limits of the city of Lyons were unauthorized and void. All the facts in relation to the platting, recording, and attempts to vacate the streets, alleys, and public grounds, and the proceedings of the board of county commissioners in such attempt, and the order of the board of county commissioners extending the limits of the city to include the unplatted ground, the city ordinance extending the limits of the city so as to include the platted ground, the manner of its passage, its publication and all the facts in relation to the proceedings were in evidence before the court, and the court should have found the facts in relation to these matters, and then made the proper conclusions of law based upon the facts as it found them to be. The court nowhere finds any of these facts, and it was prejudicial error. (Briggs v. Eggan, 17 Kan. 589.)
There were various other questions submitted to the court with request to find upon them, and which were involved in the issues and were material facts, and the evidence and agreed statement of facts were directed to them, but the court refused to find upon them, all of which are unnecessary to be stated herein, as the judgment must be reversed. There are other errors complained of that are of more importance that require the consideration of this court, which are decisive of the whole case, and which we will consider in the order discussed in brief of counsel.
Upon the trial of the case, certain facts were agreed to between the parties, stated in writing, and constitute a part of the record before this court; but the court seems to have entirely ignored the facts as agreed to by the written stipulation of the parties, and to have found facts directly contrary to the agreed facts. The following facts were agreed to by the written stipulation between the parties in relation to the levy of the tax for school district No. 69 :
“18. At the annual meeting of school district No. 69, which was held on the 28th day of June, 1888, it was by the legal voters at said school-district meeting voted and ordered, ‘ that a tax of 10 mills for teachers’ wages and 10 mills for incidentals be levied for the ensuing year,’ which action of said school-district meeting was duly certified to the county clerk, to be placed upon the tax-rolls against the property of and in said school district. And afterward, and on August 6,1888, proceedings were had before and by the county commissioners of said. Rice county, as appears upon the journal of proceedings of the said board, at page 248 (_a true copy of which is marked ‘ Exhibit F ’ and attached to plaintiff’s petition), and as per said proceedings of said board of county commissioners, the tax levy against said school district was made as appears in said ‘Exhibit F,’ and it was carried upon the tax-rolls of said county, and against the property in said school district, according to the said action of said board of county commissioners, and in no other manner and by no other authority.
“19. That after the levy of said tax by said school meeting, there were oral complaints among many of the voters, citizens and taxpayers in the said city of Lyons and school district No. 69 as to said levy being excessive and higher than was needed to carry on the school in said district, which complaints were made to the said school board;, that after said complaints were made, and after the said taxes so levied at said school meeting and certified to the county clerk of said Rice county, one Abe Young, the president of said school board, with the consbnt of the other members of the school board, and in company with 10 or 12 of the electors of said district, went before the said board of county commissioners, and made complaint and showing that said levy was excessive and more than was needed to carry on the school in said dis trict, and asked that the same be reduced to the amount as shown in the action and resolution of the said commissioners attached to plaintiff’s petition as ‘ Exhibit F’; and that thereupon the said county commissioners made the said order as set forth in said exhibit; that there were in said school district at said time about 800 voters.
“20. That the amount of the taxable property of school district No. 69, as per its assessed valuation for the year 1888, amounted to $788,987.14, on which 2 per cent, was levied by the school meeting held June 28, 1888 ; that it cost to carry on and run the school in district No. 69, teachers’ wages and incidental expenses inclusive, for the school year beginning September, 1888, and ending 1889, the sum of $8,875.02, and no more.”
Notwithstanding these facts, the court says, in its finding No. 6 :
“6. The court finds further, that the item of school tax, to wit, 13-g- mills, extended against all the property described in plaintiff’s petition in school district No. 69, was not levied by any person, board or officers legally authorized to levy the same, and was extended upon the tax-roll of the county of Rice without any legal authority whatever, and is void in law.”
The agreed facts are, that at the annual meeting of the school district, held at the proper time and conducted as required by law, the school district voted a tax of 20 mills upon the taxable property of said district, and that the levy so made was properly certified to the county clerk to be extended upon the tax-roll for that year ; and that, upon the application of certain inhabitants of the school district and of the school board, this levy was reduced by the county commissioners to 32 mills, and the tax charged up in district No. 69 was 13i mills. It is claimed in the .petition of the plaintiff below that only 12 mills of this levy were illegal. It is conceded that lb mills were legal tax. We assume that the lb mills were for interest due-on district school bonds, and was levied by the board of county commissioners at their meeting as required by law.
Paragraph 5761 of General Statutes of 1889 reads :
“It shall be the duty of the board of county commissioners of each county to levy annually upon all the taxable property in each district in such county a tax sufficient to pay the interest accruing upon any bond issued by such district, and to provide a siuking fund for the final redemption of the bonds, such levy to be made -with the annual levy of the county. ) )
The so-called finding No. 6 is in direct conflict with this statute. As to the lb mills, finding No. 6 says : “ The court finds that the item of 13-J- mills for school tax was not levied by authority of law.” The petition contains no complaint except as to 12 mills of such tax. It did not ask to have the 13i mills enjoined, but only 12 mills of that sum, which was levied by the school district, and reduced by the order of the board of county commissioners. The finding of a fact by the court cannot overcome an agreed fact. Upon the trial of a case, the court, in its findings of fact, is bound by the facts as agreed on. But the court finds the whole school tax charged void, and renders a judgment and decree enjoining the officers from collecting any school tax whatever. It is admitted that all of the plaintiff’s property is situated in school district No. 69, and, by the findings of fact and the conclusions of the court, he is relieved from the payment of any school tax whatever, either to carry on the school or pay any expense of the school district. The agreed facts show that the annual district school meeting for 1888 legally voted and levied a tax of 20 mills on all the taxable property in the school district; that the levy was properly certified to the county clerk, to be extended upon the tax-rolls against the property of each taxpayer in the district; that, at the request of certain persons of the school board and taxpayers of the district, the board of county commissioners reduced this levy to 12 mills, by the following order :
“The matter of tax levy of school district No. 69 was presented by Abe Young, director, and several other resident taxpayers in said district, setting forth that the tax levy made at the annual meeting of said district held June 28, 1888, was too high, it being voted without reference to the valuation of said district— said meeting voted and levied 20 mills — and asking the board of county commissioners to reduce said levy to 12 mills, to be levied as follows: For building and fuel, 4 mills; teachers’ wages, 8 mills. After considering the matter, and being of the opinion that the reduction asked for would raise a sufficient fund to run said district school, the same was hereby granted, as above asked for.
John Howard, Chairman.”
The board of county commissioners did not make the levy for school-district purposes, but merely reduced the levy made by the district itself through the duly-qualified electors thereof. It is true the board of county commissioners has no authority to levy taxes for school-district purposes, and has no authority to reduce the amount levied by the qualified electors. This order of the board was void, and the county clerk was not authorized to reduce the levy certified to him by the district clerk ; but- the reducing of the per cent, of the levy for school purposes was not a matter of which the plaintiff below could complain. It was to his interest. It reduced his district-school taxes almost one-half. This would not relieve him, in equity, from the payment of all taxes for school purposes. It is well settled that equity will not interfere to prevent the collection, of taxes on the ground that the assessment levied thereon is irregular or invalid, unless they are clearly inequitable and the enforcement thereof would be against conscience (K. P. Rly. Co. v. Russell, 8 Kan. 558; Parker v. Challiss, 9 id. 155; Smith v. Comm’rs of Leavenworth Co., 9 id. 296; Adams v. Beman, 10 id. 37; Ryan v. Comm’rs of Leavenworth Co., 30 id. 185; Dutton v. National Bank, 53 id. 440; High, Inj. § 485; Railway Co. v. Fray, 22 Ill. 34.) In the case of Life Association v. Hill, 51 Kan. 644, the supreme court says :
“It is well settled in this state that injunction cannot be maintained to restrain the collection of taxes, which the plaintiff justly ought to pay, because of error or irregularity in the proceedings of the taxing officers.”
In the case of Munson v. Miller, 66 Ill. 383, the supreme court of Illinois says :
“ It is only in rare cases that the courts will enjoin a tax. This court has repeatedly said they will not, unless the property is exempt from taxation, or where a tax is levied which is not authorized by law and in the absence of all legal power, or where the persons imposing it have no power conferred upon them by law to levy such a tax. But where the property is liable to the burden under the law, and the law has authorized the tax to be imposed, and it is levied by persons or officers designated by the law to levy such tax, equity will not interfere, but will leave parties to their legal remedies.”
There can be no question but that all the property covered by the assessment and levy of taxes in this case was subject to taxation for school-district purposes in school district No. 69 for the year 1888. There is no question made on the assessment of this property for taxation for said year, and the agreed facts show that the levy was legally made in the first instance by the qualified voters of said district, as provided in section 28 of chapter 94, General Statutes of 1889. It is not claimed that the levy made by the voters of the school district at their annual meeting was not legal, nor that the qualified voters did not possess the authority to vote the tax they did, nor that such levy was void or invalid for any reason ; but the complaint is that the per cent, levied .by the school district was not charged up against the property, but ivas reduced by a power unauthorized, and hence the whole school tax became void, and that it would be inequitable to require the plaintiff below to pay 12 mills when he ought to pay 20 mills on the assessed value of his property as levied by the district. The plaintiff below, not having offered to pay any portion of school-district tax, was not entitled to relief as against the tax charged against his property, and his suit should have been dismissed for want of equity.
The plaintiff below complains of certain sidewalk taxes that had been assessed against his lots for the cost of building such walks. The sidewalks were all built along in front of lots owned by plaintiff below, and the cost of building the walks along such lots was paid by the city of Lyons and charged up as a tax against such lots. The lots of the plaintiff below Which are charged with the sidewalk tax are each situated within the corporate limits of the city of Lyons, and the lots are each located along a public street where walks are required for the safety and convenience of the travelers on the public streets of said city, and were all built under the provisions of city ordinances providing for the construction of sidewalks, and each of said ordinances was legally passed and published, as shown by the agreed statement of facts. The plaintiff below had knowledge of the building of each of said sidewalks at the time shey were severally commenced, and made no objection to the construction of the same; but the court made the following findings, and designated them as findings of fact:
“9. The court further finds, that ordinance No. 99, a copy of which is attached to plaintiff’s petition as 'Exhibit PI,’ is void: First, because it attempts to confer legislative power on the city marshal; and second, because of uncertainty in the description of the amount of sidewalk required to be built by its terms.
''10. The court further finds, that ordinance No. 102, a copy of which is attached to plaintiff’s petition, is void because it attempts to confer legislative power upon the city marshal.”
“8. The court further finds, that at the time of building the sidewalk in front of lots 6 and 7, in block 5, in the city of Lyons, there was in front of said lots a good and sufficient plank sidewalk, built in accordance with .ordinance No. 23 of said city of Lyons, which had never been condemned by the city authorities, and that the order requiring the building of said sidewalks was unnecessary, and without authority, and void.”
The court says that ordinances 99 and 102 are void because they attempt to confer legislative power on the city marshal. The ordinances provide for the construction of sidewalks along the side of certain streets, designating the streets, giving the point of beginning and the termination, the dimensions, the material to be used, and then provide that the building of the walks shall be under the supervision of the city marshal, and that he shall direct the grade upon which the walks shall be constructed. There is nothing in the ordinances that can be construed into legislative' power in the city marshal. He is simply to carry into effect the provisions of the city ordinances by superintending the construction of the walks, the leveling up of the grounds so that the top of the walks will be smooth and correspond to the street crossing, to make the walk conform to a uniform grade.
“The court further finds, that at the time of the building of said walk in front of lots 6 and 7, in block 5, in the city of Lyons, there was in front of said lots a good and sufficient plank sidewalk, built in accordance with ordinance No. 23 of said city of Lyons, which had never been condemned by the city authorities, and that the order requiring the building of said walk was unnecessary, and without authority, and void.”
The old walk was required to be removed, and a stone walk to be put in, by the provisions of ordinance No. 134, which provides for the removal of the old walk, and that there should be built a flagstone walk 12 feet in width, and not less than 3 inches in thickness, evenly and smoothly laid in sand, the inside of said walk to begin at lot line in each of the blocks, and provides for a suitable curbing to be placed at the outer edge of the walk, and describes particularly how the curbstone shall be set. Section 3 of the ordinance requires the removal of the old sidewalks, and the building of new ones, in accordance with the terms of the ordinance, before the first of January, 1888, or the same will be done by the city marshal of the city and the expense thereof be taxed against the lots and collected as other taxes.
As against the findings made by the court are the following facts that were agreed to in writing and signed by the attorneys for each of the parties, and were stipulated to be the facts on the trial of the case :
“24. That the ordinances mentioned in plaintiff’s petition were published at the time mentioned in said ordinances ; that said walks were built by the city of Lyons, after the time mentioned in said ordinances, and not before; that plaintiff knew of the construction and building of said walks at the time of the commencement of the building of said walks.
“25. That at the time of the passage of each of said ordinances mentioned in plaintiff’s petition, there was a quorum present at the said council, and that the vote on said ordinances was duly and properly and legally passed, provided said city council had power to pass said ordinances or any of them.”
“28. That the sidewalk taxes mentioned in plaintiff’s petition are taxed (sought to be levied) for the building of sidewalks built along a side and adjacent to property owned by plaintiff; that the defendant the city of Lyons has never attempted to levy any taxes as sidewalk taxes against the property of plaintiff, except the sidewalk along and abutting to lots owned by plaintiff.”
“32. That the city of Lyons actually constructed the sidewalks in question, to wit, those mentioned in ordinances Nos. 99, 102, 134; that said city has xoaid for the construction of the same ; and that the amount sought to be assesssed against each of said lots is the amount it was reasonably worth to build said sidewalk in front of each of said lots and the amount which the city has actually paid out for the same.
“33. That the cost of the substructures of the walks built under ordinances Nos. 99 and 102 is not sought to be taxed against the said lots.”
The agreed facts should be controlling as to the matters agreed to. They were established facts, and the court was bound by them. The agreed facts show beyond controversy that the ordinances mentioned in the petition of the plaintiff below were legally passed and published as required by law; that the walks were built by the city of Lyons after the passage and publication of the ordinances; that the plaintiff below knew of the construction and building of' the walks at the time of the commencement thereof; that said walks for which sidewalk taxes are charged were built along a side and adjacent to the lots owned by the plaintiff below; that the city of Lyons has never levied any tax as sidewalk tax, except for sidewalks built along the front of the lots owned by plaintiff below, and the taxes are charged up to the lots along which the said walks are built; that the city of Lyons actually constructed the sidewalks along the lots charged with the sidewalk taxes, and they were built under ordinances Nos. 99, 102, and 134 ; that the city has paid for the construction of the same. The validity of these sidewalk taxes depends upon the power of the city of Lyons as a city of the third class to build the sidewalks along its streets and charge the cost thereof to the owners of the abutting lots. By section 36, clause 2, of the act concerning cities of the third class, (Gen. Stat. 1889, ch. 19a,) cities of the third class are given power
‘Go open and improve streets, avenues, and alleys, make sidewalks and build bridges, culverts and sewers within the city ; and for the purpose of paying for the same, shall have power to make assessments in the following manner, to wit: First, For opening, widening and grading all sweets and avenues, and for all improvement of the squares and areas formed by the crossing of streets, and for building bridges, culverts, and sewers, and footwalks across streets, the assessments shall be made on all taxable real estate within the corporate limits of the city, not exceeding 10 mills on the dollar, for these purposes, in any one year. Second, For making and repairing sidewalks, macadamizing, curbing, paving and guttering, the assessments shall be made on all lots and pieces of ground abutting on the improvements, according to the front foot thereof.”
Cities of the third class are vested with absolute power to make sidewalks along the streets within the city limits, and are given full discretion to determine when and where they shall be built, and the kind of walks to be built, and, for the purpose of pa3Úng for the same, have power to make assessments on all lots and pieces of ground abutting on said improvements, according to the front foot thereof; and when the mayor and council have determined upon what street or streets sidewalks • are to be constructed, and the kind of walks that are necessary, their determination is final. The mayor and city council of the city of Lyons having determined upon the matter of building sidewalks on the streets of the city, and duly passed and published ordinances'for that purpose, by such ordinances gave the lotowners along said streets ample time to build a walk in front of their property ; but they failing to avail themselves of the opportunity of doing so, are not in a condition to complain of the assessment against the property to pay for the improvements made by the city.
The foregoing observations are perhaps sufficient for a final determination of this case, but as the plaintiff below commenced his suit in a court of equitable jurisdiction, asking for equitable relief, and alleging certain reasons why he should be relieved from the payment of certain .city taxes, it will be but proper for this court to determine the further questions as to the liability of the plaintiff below to pay said taxes on his property located in the old town of Purdy ville, which is claimed to have become a part of the incorporated city of Lyons by reason of the ordinances passed by the mayor and council of said city, extending the limits thereof so as to take in all the portions of the platted grounds in Purdy ville, and also by the proceedings had by the board of county commissioners of Rice county, extending 'the city limits of the city of Lyons so as to include the unplatted grounds in Purdyville.
- We do not think the order of the board of county commissioners of Rice county in vacating Rheiner and Reed streets in Purdyville was valid. The proceedings to vacate the streets and alleys were had under section 3 of chapter 115, General Statutes of 1889, which requires a notice to be given by the persons desiring such vacation and to be advertised for four consecutive weeks in a weekly newspaper of general circulation in said town; that, at the next regular session of the county commissioners of the county in which the town is located, a petition would be presented to the commissioners praying for the vacation of such part of the town as desired, describing the same properly. The record of this case shows that the notice upon which the county commissioners based their order attempting to vacate the streets of Purdyville was published for only three consecutive weeks in a newspaper of general circulation in said town. The giving of notice by publication in a newspaper of. general circulation in the town of Purdyville was essential to the jurisdiction of the board of county commissioners to vacate the streets of the town; ■ and notice not having been given as required by law, the order of the board of county commissioners was void, and the town of Purdyville remained platted grounds, and could be properly taken into the city limits by ordinance. (Gen. Stat. 1889, ch. 19a, § 94.)
The mayor and council passed and published an ordinance to extend the city limits so as to include all the territory in Purdyville that had been platted in said town. The territory sought to be annexed was subdivided into lots and blocks, and did not exceed five acres in area. The city council also presented a petition to the board of comity commissioners of Rice county to have the corporate limits extended over the same territory, and the board of county commissioners made an ord'er extending the corporate limits also. We think the action of the mayor and council was such that the limits of the city were properly and legally extended so as to take into the corporate limits all the platted portion of the town of Purdyville. Such seems to have been the understanding of the plaintiff below at the time and for several years thereafter, as he voted at the several city and general, elections held in the city for the election of city officers, for the election of state, county and township officers, and all officers voted for in said city, during the years 1887, 1888, and 1889. He voted at special elections in the city to vote bonds to aid railroads, to build water-works, to establish salt plants, and to develop the mineral resources of the city. He signed petitions to the city council asking that said council call an election to vote aid to the Kansas & Midland railroad, in which petition he represented and set forth that he was a citizen, resident and taxpayer of the city of Lyons ; that an election was called and held for the purposes stated in the petition; that he voted at said election, and bonds were voted on the property within the corporate limits to the amount of $35,000. He also signed a petition to the city council, in which he set forth that he was a resident, citizen and taxpayer within said city, praying for the calling of an election to vote the sum of $3,000 in bonds of the city to be subscribed and given'for stock for the purpose of natural gas, oils, and minerals, which was acted upon, and election was held. He voted at said election. Bonds were voted, issued, and sold. He also signed a petition which was presented to the council of said city, praying for the calling of an election to vote $5,000 of the bonds of the city to aid in the erection of a salt plant in said city. Said election was held, and he voted thereat, and the proposition carried. Street crossings have been put in and built by the city of Lyons leading up to the property of the plaintiff below — crossings along Purdy and Reed streets in Purdyville. Plaintiff has registered twice in his ward as a legal voter therein — received a certificate from the city clerk of the city of Lyons so certifying. His property was assessed for city purposes in 1887, and he paid the taxes that year without objection. It was also agreed in the stipulation signed in this case that Edward Rheiner signed the following petition, which was presented to the city council:
“It is agreed that the plaintiff, Edward Rheiner, signed the following petition, which was presented to the city council, the one marked ‘.Exhibit 4’ being in plaintiff's handwriting, and that the same was presented to the city council, which petition is as follows : ‘ To the city council of the city of Lyons, Rice county, Kansas: Your petitioners, being the immediate and adjoining property ‘owners, residents, and persons mostly interested, do petition your honorable body to pass and enact a law or ordinance providing for the building of a sidewalk along and over the following lands, to wit: Along the south side of Commercial street, commencing and running from the west side of Reed street due east along the south side of Commercial street to the east side of Purdy street; from thence, due south, 150 feet, along the east side of Purdy street, being in Purdyville, in Rice county, Kansas, and in the corporate limits of the city of Lyons.'
(Signed)
Edward Rheiner. ’ ’
On the 1st day of November, 1888, the city of Lyons became a city of the second class, and all of the original town of Purdyville was included in the city of Lyons as a city of the second class, as described by metes and bounds in the governor’s proclamation; and plaintiff below voted at the first election after said proclamation was issued, and lias ever since voted at the city elections for the election of city officers. The plaintiff’s own conduct in acceptance of the action of the city council and the board of county commissioners in extending the limits of said city, and in receiving all the benefits growing out of the improvements made at his request and with his acquiescence in making the improvements, estops him from denying his obligation to pay his part of the burden thus imposed.
The judgment is reversed, and the case remanded to the district court of Rice county, with direction to set aside the injunction and render judgment against the plaintiff below for costs of suit.
All the Judges concurring.
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The opinion of the court was delivered by
Gidkeson, P. J. :
In 1887, D. W. Foreman sold to Mrs. E. J. Ward a farm in Johnson county, Kansas, for $10,000. Mrs. Ward paid in cash the sum of $2,-500, and gave, with her husband, her notes for the balance, secured by a mortgage on the land. On June 15, 1890, Mrs. E. J. Ward commenced an action against Foreman for damages, in the district court of Johnson county, for false representations concerning the sale of said land, and recovered a judgment against Foreman for the sum of $2,000 as damages and the further sum of $360.75 as costs. During the same year Foreman commenced an action in said court against Mrs. Ward and her husband, D. M. Ward, to recover the balance of the purchase-price of the farm, and to foreclose the mortgage, and on September 30, 1889, he recovered a judgment against both defendants for the sum of $7,512.57, and a judgment for $1,455.77 against Mrs. Ward. In November, 1890, Foreman began his suit in the same court against the defendants, E. J. and D. M. Ward, for the purpose of having their judgment of $2,000-and costs therein of $360.75 against him set off on his judgment of $7,512.57, and upon the hearing of this case the court rendered judgment in favor of Foreman and offset such judgment and costs, and ordered the same to be paid by crediting those amounts on the judgment of Foreman. This was on April 3, 1891, at an adjourned session of the January term of said court. On May 20, 1891, and at.the May term of said court, M. F. Harp and other alleged witnesses in the case of E. J. Ward against D. W. Foreman'filed a motion in the case of Foreman against E. J. and D. M. Ward, being the case in which the set-off had been made, asking the court to modify the judgment rendered therein by deducting from the amount set off their fees in the case of Ward against Foreman, claiming that they were a part of the $360.75 which had been set off. The court sustained the motion, and ordered the judgment modified as asked. Foreman brings the case to this court for review.
The record in this case discloses the fact that the case presented to us for review is the case of D. W. Foreman, plaintiff in error, v. E. J. Ward and D. M. Ward, defendants in error, and that the errors complained of were committed by the' trial court upon a motion filed in that case by certain parties who were not original parties to the action in the court below, nor do we think they have been made parties in this court. . They are not made parties in the petition in error, either by name or otherwise, nor is there any appearance by any one for them in this court. The allegations in the petition in error are directed against the defendants in error, E. J. and D. M. Ward, complaining of a judgment against D. W. Foreman, plaintiff in error, and in favor of the defendants in error, or rather a modification thereof. It is true that the case-made was accepted by I. 0. Pickering as “attorney for the motion and of the parties asking for the said motion herein,” and that notice was given to some 18 different parties that the case would be presented for settlement and signing to the judge of the district court at a certain date, and that such notice was accepted by “I. 0. Pickering, attorney for the motion.” The record also discloses that in the case of Foreman against Wards there was a motion filed by one “M. F. Harp, John Ewing, T. R. Morrill, Thomas Rochester, on their own behalf, and on behalf of all the other witnesses of the plaintiff in the case of E. J. Ward v. Foreman,” and these parties are named among the 18 upon whom the case-made was served; but we do not think that the mere serving of a case upon a party is of itself sufficient to make him a party to the record. The plaintiff in error claims that they were strangers to the record in the court below, and contends for this reason that they were not entitled to any consideration. If this be true, then how can it be said that they are parties in this court without having been specially made so and brought in? The parties at whose instance and in whose favor an order is made in the district court are necessary parties to any precéeding in this court to reverse such order, and where a case is brought to this court without making or joining as defendants in error the parties whose rights are sought to be determined, such petition in error must be dismissed. (Ferguson v. Smith, 10 Kan. 394.)
The petition in error, therefore, must be dismissed?
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
The appellant, Ben. Marshall, was charged by information filed in the district court of Brown county with certain violations of the prohibitory liquor law. The information consisted of seven counts each charging an unlawful sale, and an eighth count charging the defendant with maintaining a nuisance by keeping a place where intoxicating liquors were sold and kept for sale in violation of law. Upon a trial had November 14, 1895, the jury found a verdict of guilty on the sixth and eighth counts, upon each of which the defendant was sentenced to pay a fine of $200 and be imprisoned in the Brown county jail 60 days. From this judgment the defendant has appealed to this court.
Several assignments of error are made upon the rulings of the court which directly affect the judgment on the sixth count. The first is as to the sufficiency of the evidence to show that the particular sale upon which the state elected to rely for a conviction was a sale of intoxicating liquor. It was made about the last of August, 1895. At the time of .the arrest of the defendant, on September 7, 1895, the sheriff found at his place of business a room fitted up with a bar, ice-chest, and other appliances common to a saloon ; and on the premises were three full kegs of beer, two jugs of whisky, partly full, one jug of “blackberry,” a lot of beer and other glasses, and one beer keg, partly full, on tap in the ice-chest. A large number of witnesses were examined who testified to buying drinks and drinking at this place during the summer of 1895, up to shortly prior to defendant's arrest. During this time, so far as shown by the testimony, the beverage was drawn from a beer-faucet which protruded from the ice-chest. The drink called for was, as a rule, beer; the defendant usually responding that he had no beer, but that he had ginger ale, and thereupon would proceed to supply the wants of his customers by resorting to the unfailing supply with which the beer-faucet seemed to be connected. No one pretended on the trial that what he drank was ginger ale. He either claimed that he did not know what it was, or admitted, with apparent reluctance, that it looked and tasted like beer. Ed. Anderson, who testified to the sale relied upon for conviction on this count, said that what he drank resembled beer, and that it tasted as near like beer as what he had drunk for'beer. Another witness, Cy. Daniels, testified that lie was with Ed. Anderson at the time the sale was made ; that he called for beer, and that the defendant said he had no beer, but had ginger ale. Daniels, however, did not recognize the liquid as beer. The defendant himself was a witness in the case, aiid denied that he had sold any intoxicating liquors to either of the witnesses who testified on behalf of the state ; but neither he nor any other witness undertook to state what the beverage was which he had on tap in the ice-chest and which he supplied to these witnesses. No one pretends that he kept ginger ale on tap, or that he had a supply of it in any form at his place of business. Other witnesses testified that about -this time the defendant furnished them with drinks from the same source, and that it was a “ sample of beer,” tasted like beer, and looked like beer. The keg of beer seized by the sheriff was apparently the only.thing on tap in the ice-chest. Taking into consideration all the facts and circumstances surrounding and corroborating the testimony of the witness Ed. Anderson, we think the jury was fully warranted in saying that it was beer which was sold to these witnesses.
A further objection is made because the court did not permit the defendant to inquire of the prosecuting attorney who his informants were as to the particular sales relied upon for a conviction. The assistant attorney general who prosecuted this case was called as a witness by defendant, and was asked concerning his knowledge, when the information was filed, of the particular sales he elected to rely upon for a conviction. The court refused to require him to name his informants. We do not think the court erred in limiting the inquiry to the mere facts of knowledge or information. If he had the particular sales in mind, at the time the information was filed, it was imma terial from what source that information was obtained. The further questions proposed were in the nature of a cross-examination by the defendant of his own witness, which, ordinarily, should not be allowed. We think also that communications of this character, made to a public officer whose duty it is to prosecute public offenses, should be regarded as confidential and privileged. The officer should not be required to disclose them except for reasons which are stronger than any that can be urged in this case.
It is also contended that the court erred in giving to the jury the following instruction :
“ In determining the guilt or innocence of the defendant on the first seven counts, you have a right.to consider all the evidence introduced in the case, and all unlawful sales made by the defendant, including those given in evidence in which the state has not relied for conviction, and from such evidence determine whether or not the defendant is guilty of making the sale on which the state has elected to rely. But you cannot convict the defendant on sales other than those on which the state has elected to rely.”
This objection we think must be sustained. The state has no right to introduce evidence of independent offenses, nor should the jury consider them, for the mere purpose of making •weight against a defendant in a criminal case. That a defendant may have committed an offense at another time should not be used as an argument to show that he had criminal propensities, and, therefore, was probably guilty of the offense charged. Under the facts of this case, it was proper for the jury to consider all of the evidence concerning the several sales made by the defendant, about the time of those upon which the state elected to rely for conviction, so far as it had a direct tendency to characterize or explain the transactions which were the immediate subjects of investigation. Thus, it would be proper to consider such testimony as tending to show whether that which the defendant had on tap in the ice-chest was beer or ginger ale. (The State v. Coulter, 40 Kan. 87; The State v. Elliott, 45 id. 525.) It might also have been properly considered for other special purposes not now necessary to mention. The instruction complained of did not limit the use, in argument and in the jury-room, which might be made of the various transactions on which evidence was introduced. The consideration of such evidence should have been confined to much narrower limits, and restricted to such controverted matters as they might fairly be held to explain.
It is further contended, that the eighth count of the information did not with certainty and directness charge the defendant with being the keeper of a nuisance. No objection was made to the sufficiency of the information, by motion to quash or otherwise, until after verdict; and while this count is open to the objection of not being as definite as it might have been, yet we think it is sufficiently certain to inform the defendant of the offense charged against him. After verdict, an information will not be held to be insufficient, upon objection then made for the first time, unless it is fatally defective in some essential averment. (The State v. Knowles, 34 Kan. 393.) From what has been heretofore said in this opinion, it is apparent there was sufficient evidence to sustain the verdict on this count.
For the reasons herein given, the judgment of the district court will be reversed as to the sixth count, and affirmed as to the eighth count of the information, and the case will be remanded for further proceedings in accordance with the views expressed in this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This is an action of replevin brought by Swift & Co. to recover from W. A. Wyatt the pos session of a span of mules, and damages for tlieir unlawful detention. The jury returned a verdict in favor of the defendant. A motion for a new trial, setting up the statutory grounds, was duly filed and overruled, to which the plaintiffs duly excepted. Judgment being rendered in favor of the defendant, the plaintiffs have brought the case to this court for review.
The error chiefly relied upon by the plaintiffs in error is the refusal of the court to direct the jury to find upon particular questions of fact, as requested by them. The plaintiffs requested the court to submit to the jury the following interrogatories, to be answered by them :
“1. Had the plaintiffs taken the mules from the possession of R. G. Dotey and transferred them to the possession of C. A. Stannard before Dotey sold the mules to the defendant?
“2. Had R. G. Dotey been discharged from the employ of the plaintiffs before he took the mules or sold them to the defendant?
“ 3. Did R. G. Dotey steal the mules in controversy in this case from the plaintiffs and sell them to the defendant?
“4. At the time of the commencement of this action, did the defendant have any right or title to the said mules, except as derived from his purchase from R. G. Dotey?”
The evidence disclosed by the record shows that on April 29, 1891, the defendant purchased the mules in controversy from one R. G. Dotey, who had, a short time prior thereto, been in the employ of plaintiffs, and authorized by them to sell certain personal property belonging to them, including this span of mules, and to deposit the proceeds thereof in the bank at Hope, in Dickinson county, to the credit of Mr. Higgins, a member of the firm of Swift & Co. ; that a no tice was published in a newspaper at Hope, only t\ miles distant from plaintiffs’ premises, in the issues of that paper of April 16 and 23, that Dotey had for sale, at the Hope sheep ranch, certain personal property, including a span of mules; that certain of the property of plaintiffs was sold by him and the proceeds thereof deposited in the bank as directed ; that Mr. Higgins informed his banker, Mr. Richardson, of his arrangements with Dotey as above stated ; that defendant saw the published notice referred to, and, on April 28, was informed by Mr. Richardson that the plaintiffs had a span of mules for sale at the ranch and that Mr. Dotey was authorized to sell them and deposit the proceeds of the sale in his bank ; that Dotey had been discharged by the plaintiffs four days prior to the sale to the defendant, but of this fact neither the defendant nor Mr. Richardson had any knowledge or information until after the defendant had purchased and paid for the mules; that Dotey was subsequently charged with the larceny of the mules, convicted, and sentenced to a term in the state penitentiary. Under this evidence, the court in effect instructed the jury that defendant’s title to the property in controversy rested solely upon his purchase from Dotey ; and that if the jury should find that Dotey’s employment as agent of the plaintiffs had in fact terminated prior to the sale to the defendant, and that he was no longer authorized to sell the property in controversy, the defendant acquired no title thereto, unless the jury should also find that the defendant purchased the property in good faith, believing that he was thereby obtaining a good title thereto, and that,he was justified in such belief from the acts and conduct of the plaintiffs and all the circumstances surrounding the transaction; and that it was therefore wholly immaterial as to whether or not the property had been taken from Dotey’s possession or he had been discharged by the plaintiffs prior to the sale, or as to whether or not he had stolen the mules. The record shows that the defendant claimed no right or title to the property except such as he acquired by his purchase from Dotey, and the court so instructed the jury, and it is not apparent as to how the rights of the plaintiffs could, under the evidence and the instructions of the court, have been prejudiced by the refusal to direct the jury to answer the interrogatories submitted by the plaintiffs. While under the statutes of this state it is the duty of the court, upon request of either party to an action, to submit to the jury particular questions of fact, yet a refusal so to do is not sufficient ground for the reversal of a judgment rendered therein, where it clearly appears that responsive answers to the particular questions thus sought to be submitted, no matter what such answers might have been, would be entirely consistent with the general verdict which was returned by the jury.
As this is the only assignment of error upon which any argument was made or authorities cited by counsel, no others will be considered.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
This was an action brought by C. PI. Kirshner and E. W. Blair, assignees of one J. A. Fisher, plaintiffs, against The Union Pacific Railway Company, William Walker, and Ann Walker, defendants, in the district court of Saline county, Kansas, upon alleged breach of covenants of warranty. Trial had before court and jury; general verdict and special findings returned by jury; judgment rendered thereon against the defendant William Walker for the sum of $399 and costs. William Walker brings the case here for review upon petition in error and case-made.
The petition in the court below sets forth : On December 17, 1881, the Union Pacific Railway Company, in consideration of the sum of $198.78, conveyed to William Walker by deed of general warranty the following tract of land : The southeast quarter of- the southwest quarter of section 9, township 14 south, of range 1 west, containing 40 acres; that on August 18, 1883, William Walker and wife, in consideration of the sum of $555, conveyed the same land by deed of general warranty to one J. A. Fisher; that on September 17, 1884, Jesse A. Fisher and wife, in consideration of the sum of $900, conveyed the same land by deed of general warranty to one William A. Martin; that on March 23, 1888, William A. Martin and wife, in consideration of the sum of $900, conveyed the same land by deed of general warranty to one J. A. Fisher; that on the 16th day of November, 1888, the said Jesse A. Fisher was ousted and dispossessed from all of said land and tenements by a paramount title in the government of the United States, and that by virtue of a certain assignment, to wit: “For value received, we hereby sell, assign and transfer unto C. H. Kirshner and E. W. Blair all my interest, right, title, demand, claim and cause of action against the Union Pacific Railway Company and William Walker and Ann Walker for breach of covenants of warranty in the sale and conveyance to me of the southeast quarter of the southwest quarter of section 9, township 14 south, of range 1 west, in Saline county, Kansas, (signed) J. A. Fisher,” the said Kirshner and Blair became entitled to all the rights of the said Jesse A.- Fisher, and pray judgment against the said defendants, the Union Pacific Railway Company and William Walker and Ann Walker, jointly, for the sum of $1,000. The record discloses that after the action was commenced a judgment was recovered against the Union Pacific Railway Company, on the 17th of June, 1890, in the sum of $236, in favor of Kirshner and Blair, which was paid by the company to Kirshner and Blair, and was received by them in full satisfaction of the claim against the company.
In an action by the grantee to recover damages for the breach of covenant contained in a deed, and the plaintiff claims to have yielded possession to a paramount title, it is incumbent upon him to show by sufficient evidence not only that he yielded the possession of the property to what he supposed to be a paramount title, but that such title was, in fact, paramount to the title of any one else to such propery. (Sheetz v. Longlois, 69 Ind. 491; Clark v. Mumford, 62 Tex. 531.)
In this case the petition alleged that the defendants covenanted in and by their deed that they were lawfully seized of the property ; that the same was free and clear of all incumbrances; that they guaranteed the quiet and peaceable possession thereof, and that they would warrant and defend the title thereto against all lawful -claims, etc.; that the defendants, at the time they executed their said deeds, did not have a good and sufficient title to said premises, but that the paramount title to said land was at that time in the United States government; that by virtue of said paramount title the said Fisher was evicted, on or about November 16, 1888. These are material allegations; yet there is no evidence-in the record that tended to sustain them. Fisher’s testimony was twice taken in this action, but if he had ever been ousted and evicted from the possession of this property, or if he yielded possession to what he supposed to be a paramount title, he failed to testify to any such fact. His testimony on this point is :
“ Ques. You say you took possession of the 40 acres after the purchase : how long did you continue in possession of the 40 acres above described? Ans.- I had possession or control of the 40 acres up to about the early part of 1888, when another party got control through filing a claim for the 40 acres in the land office. Since then I have had' no possession or control of the 40 acres.”
If we take the records of the United States land office (which were introduced over the objection of the defendant) to be competent as evidence of eviction, but not to establish that the recovery or eviction was under paramount title as against Walker, who was not a party or privy thereto (Clark v. Mumford, 62 Tex. 531; Rawle, Cov., p. 229), we find that at the time of the execution of the deeds there was no assertion of outstanding title, not even a claim of this kind, as all of the deeds were executed between December, 1881, and April, 1886, and the contest shown by the United States land office records was not instituted until some time in 1887, and not finally decided, nor did it go into effect, until October 20, 1888. Yet the testimony of Fisher shows that long prior to this decision he ceased to .have any possession or control of this land. How, then, can it be said 'that he yielded possession to a paramount title, or to what he supposed to be a paramount title, of which the evidence fails to show he had any knowledge ? Did he ever investigate the matter of title in any manner before he left the land? The record is silent as to this, and, from all that appears therein, Fisher'may have sold the land, parted with all his title, early in 1888, and to the party who he claims got control of it by filing on the same in the United States land office, though there is no competent evidence of any such filing having been made. Nor is it conceded or admitted in this case that the title was in the government. Now, if he surrendered possession to some party claiming to have the right of entry, but who had no such right “early in the year 1888,” then it cannot be said he yielded possession to the paramount • title. If the plaintiff yields possession without suit to a paramount title, in a suit against his warrantor on covenant he assumes the burden of showing that the title to which he yielded was the paramount title. (Clark v. Mumford, 62 Tex. 531; Woodford v. Leavenworth, 14 Ind. 311; Marvin v. Applegate, 18 id. 425; Crance v. Collenbaugh; 47 id. 256; Sheetz v. Longlois, 69 id. 499.)
The eviction or ouster was not pleaded in general terms, but a particular kind of eviction was alleged, and an issue was joined thereon. The evidence should have supported the allegation. It does not. A party cannot allege one thing, and, to support the same, prove a state of facts dissimilar thereto. (Garvey v. Fowler, 4 Sandf. 665; U. P. Rly. Co. v. Young, 8 Kan. 658; K. P. Rly. Co. v. Dunmeyer, 19 id. 539.)
In Dugger v. Oglesby, 3 Bradw. 94, it was held :
“In the case of covenants for quiet enjoyment and general warranty, the assignment of a breach must be special; otherwise the covenantee might recover for an eviction occasioned by his own acts. The special breach averred must be the breach proven ; otherwise there will be a variance.” See, also, Owen v. Thomas, 33 Ill. 320; Marston v. Hobbs, 2 Mass. 437; Fowler v. Payne, 6 Barb. 165.
We think the plaintiffs below have wholly failed to sustain their case by sufficient evidence, and that the variance between the breach averred and the one proven is fatal.
The judgment in this case will be reversed, and the case remanded for further proceedings therein, in accordance with this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
The defendant in error was a boy about five years of age, who brought this action by his next friend, A. Miller, to recover from Anna and Eli Potter, plaintiffs in error, damages alleged to have been sustained from the bite of a ferocious dog wrongfully kept by the plaintiffs in error. There was a verdict and judgment in favor of the plaintiff below for $400, actual damages, and $75, exemplary damages.
The first error claimed is as to the allowance of exemplary damages. The court instructed the jury, if they believed the wrongs were committed upon the plaintiff by the defendants deliberately or wilfully, or if, having knowledge of the vicious propensities of their dog, they, with a wanton and reckless disregard for the safety of others, permitted the dog to run at large, they would be liable for exemplary damages. It is contended by counsel for plaintiffs in error that such instruction was not justified either by the pleadings or by the evidence. The rule is well settled in this state that punitive or exemplary damages may be imposed in an action of this nature, but that before such damages are recoverable it must be shown that the negligence was wanton, wilful, or malicious. (L. L. & G. Rld. Co. v. Rice, 10 Kan. 426; K. P. Rly. Co. v. Kessler, 18 id. 523; K. C. Ft. S. & G. Rld. Co. v. Kier, 41 id. 671.)
A general rule of pleading is, that the plaintiff is bound by and must recover, if at all, upon the case made by his pleadings. (Stone v. Young, 4 Kan. 17.) That rule is applicable in this case. To authorize the recovery of exemplary damages, the plaintiff must, by the allegations of his petition, show that his action belongs to the class of cases in which such damages are recoverable. A mere averment of ordinary negligence will not permit the plaintiff to claim and prove, upon the trial, such wanton and reckless conduct as would make the wrong-doer liable for punitive in addition to compensatory damages. All damages which the law presumes as the natural and necessary consequences of .a wrongful injury, or other tortious act, are recoverable under a general allegation of the wrongful act and of the resulting damages. When the plaintiff would go beyond this, and recover damages which are the natural but not the necessary results of the wrongful act, recoverable because of the peculiar circumstances of the case, he must notify the defendant of such claim by proper allegations in his petition. This is so as to special damages ; and on principle the same rule should apply to all except general compensatory •damages. If the wrongful act is of such a character that the law will give to the injured party both compensatory and exemplary damages, the petition should so describe it that it may appear to be a case in which such damages may be recovered. (K. P. Rly. Co., v. Whipple, 39 Kan. 531, 539; Jacobs’s Adm’r v. Louisville &c. Rly. Co., 10 Bush, 264; Cameron v. Bryan, 89 Iowa, 214; Welsh v. Stewart, 31 Mo. App. 376; Railway Co. v. Holland, 82 Ga. 257; Sullivan v. Ore. Rly. & N. Co., 12 Ore. 392.)
Judged by these rules, the petition in this case was insufficient to authorize a recovery of more than the actual damages sustained. The most that can be claimed for it is, that it charges the defendants with ordinary negligence in the keeping and restraining of their dog. There is no allegation that the defendants were guilty of any wanton, reckless, wilful or malicious act. They are simply charged with knowingly, “ wrongfully and injuriously ” keeping a certain dog of a ferocious and mischievous disposition, which caused the injury to the plaintiff. It is even questionable whether the petition fully and properly, charges an act of ordinary negligence; it certainly does nothing more than that. No objection, however, has been made to the sufficiency of the allegations to justify the recovery.of actual damages. Even though the petition had contained proper allegations to justify the recovery of more than actual damages, it is very doubtful whether the evidence would have sustained them. We think the plaintiff had a good cause of action based upon the negligence of the defendants, and that he was entitled under the evidence to recover such sum as would fully compensate him for his actual damages. Any one who keeps a vicious dog that is known to liave a disposition to attack persons must use care, commensurate with the danger, to prevent injury. A failure to do so makes him liable for the damages sustained in consequence thereof.
A further objection is made to the ruling of the court permitting the wife of A. Miller, who appeared in the case as the next friend of the plaintiff, to testify as a witness. We see no error in this ruling. She was not the wife of a party to the suit within the meaning of the statute which makes husband and wife incompetent to testify for or against each other. The party in interest in this case was the boy, not the next friend, who appeared in the case simply in a representative capacity. It is true the next friend is liable for the costs of the action; but this, of itself, does not disqualify the wife as a witness for the real party to the action any more than she would be in a case wherein her husband might have signed, as surety, a bond for costs. (Van Fleet v. Stout, 44 Kan. 526; Railway Co. v. Rexroad, 59 Ark. 180; Bonett v. Stowell, 37 Vt. 258.)
On the whole, we think there was a full and fair trial of the issues in this case, without substantial error, beyond that herein mentioned, against the plaintiffs in error. As the respective amounts of compensatory and exemplary damages are separately stated by the jury, the error committed with reference to the latter does not require a reversal of the entire judgment. For the reasons given in this opinion, the judgment will be modified by striking out the item of $75 allowed for exemplary damages, and otherwise affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
Several questions are presented for our consideration. We will consider first the question raised by plaintiff in error, “Was the cause of action barred by the statute of ■ limitations at the time of the commencement thereof ? ’ ’ This we are constrained to answer in the affirmative. The wrongs charged in the petition and which are the foundation of the action are, that the county failed to pay certain taxes which it agreed to pay, and that the defendant having paid them, she is entitled to recover them from the'county. We think the cause of action arises out of an implied contract, and falls within the limitations of subdivision 2 of section 18 of the code of civil .procedure. The contract of lease gives no cause of action. It is a mere agreement to do a certain thing. It makes no promises as to what will be the effect if the agreement be not performed. There is no express stipulation therein that, if the county should not pay, the lease would be forfeited; nor can any such inference be drawn from its terms. Suppose these taxes had never been paid : what cause of action would Mrs.’ Streeter have against the county ? It is only by operation of law that Mrs. Streeter has any cause of action or' right of recovery — she being the party to whom the agreement ran, and having paid to protect herself, which it was her duty to do, so as to keep the damages within the lowest possible limit. The law creates an implied contract that the county will reimburse her, not, however, upon the written contract, but upon the fact of payment, and this implied contract creates the cause of action, and it accrues as soon as the payments are made. It is the wrongs done (the delicts) that create the cause of action, and these are not complete until the other party has suffered damage, and this could not occur in this case until she paid. When did the delicts occur? Take the earliest possible moment of time when the county could be said to be in default, or have committed a wrong : Certainly not until the taxes became due. But can she complain at this time? We think not, for she has not been harmed. But when she has made the payment she is damaged to the amount paid, and by reason of the implied contract has a cause of action against the county for the amount to which she has been damaged. We think this view of the case is sustained by not only the decisions of the supreme court of this state, but by the courts of last resort in many others. (Ryus v. Gruble, 31 Kan. 767; Comm’rs of Graham Co. v. Van Slyck, 52 id. 622.) In the last-cited case (which was an action against a county clerk for failure to account for fees), the court held that ‘‘ a cause of action for fees not accounted for and wrongfully retained by such officer accrues at the end of each quarter, when the allowance of salary is made,” and that, notwithstanding the officer A bond, his official bond,-upon which, under the fifth subdivision of section 18, code of civil procedure, an action could be commenced within five years, the limitation in subdivision 2 of said section controls. Mr. Justice Johnston, in delivering the opinion of the court, at page 628, uses this language :
“An action accrued against the' defendant for the fees collected and unaccounted for at the quarterly settlement following the receipt of such fees. The public records disclosed the performance of the official services by the clerk, and what fees should have been charged and collected. The statutory limitation could not be extended by the failure to demand the payment of the fees collected.”
We think this rule strictly applies to the case at bar, and not, as contended for by defendant in error, that the statutory limitations can be extended (at the pleasure of the party) by neglecting to bring suit. We do not think this view conflicts with the decision in Whitaker v. Hawley, 30 Kan. 317, relied upon by defendant in error, nor is it applicable to the facts in this case.
Could the defendant in the case at bar defeat all the other items of taxes paid by proof as to one? Would the bringing of suit upon the first item, before a default as to others and a prosecution thereof to a final determination, be a bar to an action upon any of the others? Are the facts constituting the cause of action upon any one of them necessarily involved in an action upon any or all the others? If so, they would constitute one cause of action, and the issues in one be res judicata as to the others, and the contention of defendant in error would be correct. But all of these questions must be answered in the negative. Each and every item charged stands alone, and might depend upon an entirely different state of facts, the proof of which, in one instance, or as to one item, would not be admissible in any of the others. For instance, the legality of the tax for each year would be necessary to be established. All of these taxes might be illegal, but from entirely different causes. Would proof of the fact that the taxes in 1877 were legal, or illegal, establish the legality or illegality of the taxes for any other year? We think not. If suit had been brought for the taxes of 1877, and judgment rendered, would that act as a bar to an action for the taxes of 1878, which had not been paid by Mrs. Streeter at the time she recovered for the taxes of 1877? Certainly not, nor are the facts constituting the cause of action upon any one of them necessarily involved in an action upon any of the others. The building leased by the county of Clay was located upon portions of two lots, 18 and 19, which were 46 feet wide and 130 feet long, and said building was so constructed and located that it stood one-half on the east 71 feet of the north half of lot 18, and one-half on the east 71 feet of the south one-half of lot 19. The court, in its eighth special finding of fact, found that
“ at no time was the building in controversy, with the portions of lots 18 and 19 upon which it was located, ever assessed together as one property, or separate from the remainder of lot 19, for the 12 years from 1876 to 1887, inclusive. In making the assessment, the value of the building was taken as if it was all located on the east 71 feet of the north half of lot 18 ; while, for the years 1888 and 1889, in making the assessment, the building was treated as if one-half of it was on the east 71 feet of the north half of lot 18, and one-half of it on. the south half of lot 19. In the 10 years, from 1876 to 1885, inclusive, the value of the whole building was taken into consideration in making the -assessment; while for the four years, from 1886 to 1889, inclusive, the value of the first story only of the building was taken into consideration, and the value of that portion of it occupied by the county of Clay ■was not included in the assessed value of the property. ’ ’
In the tenth finding of fact the court states :
“The proportionate share of the taxes levied upon said building for the years 1876 and 1877, which should have been paid by the county of Clay, cannot be ascertained from the evidence.”
The conclusions of law are as follows :
“1. That plaintiff is not entitled to recover from the defendant anything in this action on account of taxes paid by her for the years 1876, 1877, 1886, 1887, 1888 and 1889 on the building in controversy in this action. ’ ’
This conclusion, under the findings and the plead ings, is undoubtedly correct.
“2. The plaintiff is entitled to recover from defendant the share of taxes levied on the building in controversy in this action and paid by her which, under said lease, should have been paid by said county of Clay for the years 1878 to 1885, both inclusive, and are as follows: . . . with interest on said amounts at the rate of 6 per cent, per annum from the dates they were respectively paid.”
This is erroneous, as all of these payments were barred by subdivision 2 of section 18, code of civil procedure, General Statutes of 1889, paragraph 4095, more than three years having elapsed from the time the payments were made before the commencement of the action.
The judgment in this case will be reversed, and cause remanded, with instructions to render judgment for the county of Clay.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This action was brought by John Motzner against The Union Pacific Railway Company to recover damages alleged to have been sustained by him through the negligent operation of the defendant’s railroad. The particular negligence complained of is that the defendant, while running one of its trains on its road in Russell county, managed its train carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine that was used in running the train, and carelessly and negligently permitted dead and dry grass and other combustible material to accumulate and remain on its right of way and land near its railroad-track, and that by reason- of said carelessness and negligence fire escaped from the engine and ignited the said dry and dead grass and other combustible material, and that by reason of a continuous body of dry grass and other combustible material the fire was communicated to plaintiff’s premises, where it destroyed certain property belonging to him. Judgment was also asked for a reasonable attorney’s fee for jsrosecuting the action. The jury returned a general verdict in favor of the plaintiff for $603.25 dam ages, and for a $150 attorney fee. The jury also made certain special findings of fact, as requested by the parties to the action. The defendant in due time filed its motion for judgment in its favor upon the special findings, and for a new trial, both of which were overruled by the court, and judgment was entered in favor of the plaintiff for $753.25, and costs of suit. The defendant duly excepted to the rulings of the court on its motion for judgment in its favor upon the special findings, and on its motion for a new trial, and to the rendition of the judgment in favor of plaintiff, and has brought the case to this court for review.
Under the statutes of this state, when the plaintiff has established the fact that the fire complained of resulted from the operation of the railroad, a prima facie case of negligence on the part of the railway company is also established. The railroad company, however, insists that the plaintiff failed to establish the fact that the fire which destroyed his property was caused by the defendant in operating its railroad. The evidence on this point is not very satisfactory, yet as there was some legal evidence tending to establish that fact, and the trial court having approved a finding of the jury that the fire which burned plaintiff's property was set by a locomotive being operated and managed by the defendant, this court is bound by such finding.
The jury returned special findings of fact, in answer to questions submitted by the defendant, as follows :
“ 1. Was the fire which burned plaintiff's property communicated from one of defendant's engines? Ans. Yes.
“2. If so, what was the number of the engine? A. 742.
“3. Who was the engineer? A. Thomas Mills.
“4. Was such engineer a careful, competent and skilful engineer? A. Yes, but not careful.
“5. Was such engine, at the time the fire was alleged to have escaped, handled in a competent', careful and skilful manner? A. No.
“6. Was such engine of an approved pattern and approved construction? A. Yes.
“7. What appliances were used upon such engines to prevent the escape of sparks? A. An1» extension end.
“8. Was such engine supplied with approved appliances to prevent the escape of sparks? A. Not fully.
“9. Was such engine examined with reference to its appliances to prevent the escape of sparks immediately before it started out on the trip upon which the fire is alleged to have escaped? A. Yes.
“10. Was such engine examined in reference to its appliances to prevent the escape of sparks immediately after its return from the trip on which- the fire is alleged to have escaped? A. Yes.
“11. Upon the several examinations, in what condition was the engine found? A. Good.
“12. Was not the netting of this engine ash-pan carefully examined by a competent inspector and found to be in good condition immediately before it started out on said trip? A. Yes.
“13. Was not the netting in the extension front end of such engine examined and found to be in good condition by a competent inspector immediately before starting out on such trip? A. Yes.
“14. Was not the netting of said ash-pan of said engine carefully examined by a competent inspector and found to be in good condition immediately after such trip? A. Yes.
“15. Was not the netting on the extension front end and ash-pan of such engine carefully examined by a competent inspector and found to be in good condition immediately after returning from such trip? A. No.”
“ 23. Would a wire screen over the front damper of the ash-pan have interfered with the draft necessary to make steam? A. No.”
The evidence all tends to show that the engine was in good condition and supplied with approved appliances to prevent the escape of sparks, and that when an engine is so supplied it is impossible even by careful management absolutely to prevent their escape; yet the jury, by finding No. 8, say that the engine was defective in not being fully supplied with approved appliances, while in their answers to special interrogatories 9, 10 and 11 they clearly contradict that finding.
The assistant superintendent of motive power and machinery of the Union Pacific system, of many years’ experience in such matters, testified that a screen damper in the front end of the ash-pan of the engine would have been no protection against the escape of fire, as no fire could have escaped through that opening when the train was running with the wind; and the foreman of the roundhouse at Junction City, who had been a locomotive engineer for nine years, in answering the question as to what would be the effect upon the practical workings of an engine if it was supplied with a netting damper on the front end of its ash-pan, testified that the effect would be bad, assigning as a reason therefor, that "as a netting damper on the front end of the ash-pan would be almost under and a little back of the eccentric, more or less oil would drip from the eccentric, and this with the dust that would accumulate would clog the netting, making it impossible to get a draft sufficient to make steam.”
This testimony was uncontradicted; yet the jury specially found, in answer to questions submitted by the plaintiff, that a screen damper in the front end of the ash-pan would have afforded better protection against the escape of fire, and that such appliance would not liave interfered with the draft necessary to make steam. The inspector testified that, after the engine returned from the trip on which the fire was alleged to have escaped, he examined the netting in the extension front end of the engine, by inserting a light at the end of a long rod, through an opening eight inches in diameter in the side of the extension, and that by so doing he could and did see its exact condition; that it was in good order, and that it required about a half hour’s time to make such an examination. This evidence was undisputed; yet the jury, by special finding number 15, s.ay that no careful examination was made at the time.
The jury found in answer to questions submitted by the plaintiff below as follows :
“2. Was the right of way of the defendant, at the place where the fire started, clear of dry and dead leaves and grass liable to be ignited by sparks or cinders from its engine? A. Yes.
“3. Did the fire which injured the plaintiff originate on the defendant’s right of way? A. Yes.
“4. Did the defendant carelessly and negligently allow dead and dry and combustible grass and weeds to accumulate on its right of way liable to be ignited by sparks and cinders from defendant’s engines? A. Yes.
“5. Had the defendant kept its right of way clear of dead and dry and combustible material, grass, and weeds, would the fire that destroyed plaintiff’s property have been started? A. No.”
It will be observed that these findings are likewise conflicting. The jury also found that the engine was not handled in a competent, careful and skilful manner at the time the fire was alleged to have escaped. There is nothing, either in the findings or in the evidence, to indicate in what manner the employees of the road were negligent in the handling of the engine ; nor is there anything in the record, aside from the findings of the jury, tending in any manner to discredit the testimony of the engineer and fireman that the engine was properly managed; nor do counsel for the defendant in error offer any suggestion as to what was done or could have been done by those in charge of the train, or as to what they failed to do which they should have done, from which negligence might, under the evidence, reasonably be imputed to them, except that there was no showing as to the particular kind of fuel that was used, or that it was negligence to run the train at a speed of from 25 to 30 miles an hour. There is no evidence that any other fires were set by this engine, or that any other fire was ever caused by any engine when managed by those in charge of this train. No witness testified that he knew of any fire ever having escaped from this engine, either on this or any other occasion. While the evidence shows that the engine used on this occasion emitted a great volume of smoke, there was no direct evidence that any fire escaped, and the engineer testified that the unusual amount of smoke escaping from the engine was probably caused by the fireman throwing in coal or poking the fire. The uncontradicted evidence is that no more fire or sparks could be forced from the engine during that operation than would ordinarily have escaped when the fireman was not so engaged. In view of the fact that the jury made inconsistent findings as to the condition of the engine and its appliances, and also as to the condition of the right of way, we' think it is fair to presume that they did not duly consider the evidence submitted by the defendant tending to rebut the statutory presumption of negligence in the management of the train.
Among other instructions which the defendant requested the court to give to the'jury is the following :
“The jury are instructed that the defendant railway company is not liable for fire occasioned by sparks when the engine is of an improved construction, and in good condition, and handled by a competent, careful and skilful engineer, and at the time the alleged fire escaped the engine was handled in a competent, careful and skilful manner.”
The court refused to give this instruction, and an exception was drdy saved to the ruling of the court. We think the court erred in this ruling. It must be borne in mind that the petition in this'case does not allege generally that the injuries complained of were caused by the defendant ‘ ‘ in the operation of its railroad.” Under such a general allegation and proof in support thereof, it would probably be necessary, under the decisions of our supreme court, for the defendant to show that it was not negligent in permitting combustible material to accumulate on its right of way liable to be ignited by fire accidentally escaping from a passing engine. Under the petition in this case; the plaintiff could only recover for injuries resulting from a fire negligently caused by the defendant either in the management of the train or by failure to employ suitable means to prevent the escape of fire from the engine. (A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. Rep. 722.) The court virtually instructed the jury to find for the plaintiff, if they should find and believe from the evidence that fire escaped from the engine through no fault of the defendant or those in charge of the train, and ignited combustible material which the defendant had carelessly and negligently allowed to accumulate and remain on the right of way liable to be so ignited. This instruction is clearly erroneous. There is nothing in the findings or evidence to indicate whether the fire was purely accidental or whether it was caused by the negligence of the defendant, either in the use of a defective engine or its appliances, or in the management of the train, as alleged in the petition; and for aught that appears in the record, the jury may have based their general verdict solely upon the defendant's negligence in the care of its right-of-way, and under their finding that the defendant was negligent in this respect they would have been justified, under this instruction, in returning a general verdict in favor of the plaintiff for damages sustained by him as a result of fire escaping from the engine through no fault of the defendant.
The evidence in support of plaintiff ’s claim for damages is unsatisfactory, particularly so with reference to the value of the pasture, the straw, and some of the items of household furniture and wearing apparel. It also might be said that the court erred in some of its instructions to the jury other than the one pointed out, yet these errors are not sufficient in and .of themselves to require a reversal of the judgment. The jury have passed upon the weight of the evidence, and no proper exceptions have been saved to the general instructions of the court, still, we think it is proper to take these matters into consideration in passing upon the other assignments of error, even though the court might otherwise be in doubt as to whether or not the judgment should be disturbed.
After a fruitless attempt to harmonize the various conflicting findings of the jury, and to place such a construction thereon as would warrant us in saying that they are consistent with the general verdict, and in view of the errors of the court both in giving and refusing instructions as indicated herein, and its error in the admission and rejection of evidence offered not herein particularly pointed out, as they will probably not occur upon a retrial of the case, we can reach no other conclusion than that another jury should pass upon the matters of fact in controversy between the parties, and the judgment will therefore be reversed and a new trial awarded.
All the Judges concurring.
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The opinion of the court was delivered by
Garvkb,, J.:
L. H. and W. L. Wood, the defendants in error, sold to one Consaul certain real estate in AYyandotte county, agreeing to accept a note and mortgage on the premises sold for the sum of $1,940, the deferred payment of the purchase-money, subject to a first mortgage for the sum of $4,000, bearing interest at the rate of 8 per cent., that being the amount of a loan which Consaul intended to secure from the plaintiff in error for the purpose of effecting the purchase and making improvements. Thereafter, pursuant to this understanding and agreement, which was known to and acquiesced in by the loan company, Consaul contracted for a loan of $4,000, but agreed to pay interest at the rate of 8i per cent, per annum. At the same time the defendants in error conveyed the premises to Consaul and took from him two notes, and a mortgage securing the same, for the payment of the sum of $1,940 and interest. The loan company took from Consaul a note for $4,000, due in seven years from date, bearing interest at the rate of 6 per cent, per annum, payable semiannually on the 1st days of February and August of each year, and a mortgage securing the same, and also had him execute an additional note for $701.40 (the amount of the interest for seven years at the rate of 2i per cent, per annum), payable in 14 installments of $51.40 each, one installment to be paid on tlie 1st days of February and August of each year until all were paid, and for security took a second mortgage on the same real estate. Of this increased rate of interest and the second mortgage the defendants in error had no actual notice. The mortgages to the loan company were prior in point of time in being filed for record in the office of register of deeds of said county, the purchase-money mortgage being filed on the same day at nearly the same time. The notes and mortgages bore the date of July 27,1889. The payments not having been paid on the installment note as agreed, the plaintiff in error commenced this action, and obtained judgment for the amount of the note and for a foreclosure of the mortgage securing the same. The defendants in error, being made parties defendant, set up their notes and mortgage for the purchase-money and obtained judgment on them.
This controversy is over the conflicting liens of the second and third mortgages, which were foreclosed subject to the mortgage of $4,000. In the adjustment of the priorities of these liens, the court below gave the plaintiff in error the first lien, as against the defendants in error, for so much of its judgment as represented an amount equal to interest at the rate of 2 per cent, per annum on $4,000, from the date of the loan to the time the judgments were rendered, and gave the defendants priority of lien for their judgment as against the remaining portion of the judgment of the plaintiff in error. It is this decision of which complaint is now made — the plaintiff in error claiming that, even conceding that, as against the defendants in error, it can claim prior lien for no more than $4,000 with interest thereon at the rate of 8 per cent. per annum, yet, as the $4,000 note and mortgage only bear interest at the rate of 6 per cent., it is entitled to priority for so much of its judgment as would represent the additional 2 per cent, interest for the full period of seven years, the time the loan had to run. The ground of this contention is, that as it is permissible for the parties to stipulate for and to make payments of interest in advance, -the total unaccrued additional 2 per cent, interest which is included in the judgment should be allowed as a prior lien. To this we cannot agree. The defendants in error have a right to demand, in the foreclosure of these mortgages, that they be granted a lien on the mortgaged premises subject only to a prior lien for $4,000 and interest thereon not exceeding 8 per cent, per .annum. There is nothing in the record to indicate that the plaintiff in error is not still the owner of the $4,000 note and mortgage ; nor is there anything by which the court can determine how long such mortgage may run. If we may presume from the conditions of the mortgage sued upon that similar conditions exist in the first mortgage, the plaintiff in error would have a right to commence foreclosure proceedings thereon at any time after February 1, 1890, when there was default in payment of interest, and could have then forced the collection of the $4,000 note. It is not at all probable that, without any payments of interest being made, the plaintiff in error would delay the commencement of an action thereon until the expiration of the seven years. Should that note and mortgage go to judgment, and a sale ■ thereunder be had within that period, the plaintiff in error would certainly not be entitled to have included in such judgment the unearned interest for the period between the date of the judgment and the time when the note by its terms was to mature. Had the three mortgages been foreclosed in the same action, it is clear, under the facts found by the court, that there would have been allowed, as a lien prior to that of the defendants in error, only the $4,000, and such additional sum as would have represented the total accrued interest thereon, computed at the rate of 8 per cent, per annum, from July 27, 1889, the date of the note, to the time of actual payment. Any addition of unearned interest would, to that extent, lessen the security which it was agreed the subsequent mortgagees should have, and be in fact an increase of the rate of interest during the actual life of the loan. That the rights of the parties may not be adjusted with exact equity in this proceeding is no fault of the defendants in error. The plaintiff in error must be held responsible for the difficulties of a situation which it created.
We think the trial court adopted the proper rule for the adjustment of the liens of these parties, but it did not go far enough in its practical application. The judgments were rendered February 3, 1891, with a stay of six months, after which an order of sale might be issued and the mortgaged premises sold, without appraisement, subject to the prior mortgage of $4,000, bearing interest at the rate of 6 per cent, per annum. As the court allowed the plaintiff in error a prior lien for an amount which increased the interest of the first mortgage to 8 per cent, only up to the time when the judgment was rendered, the defendants in error, when the property is sold, would receive the benefit of a sale subject to the prior lien for $4,000 and interest at the rate of only 6 per cent, per annum.from the date of the judgment to the time of sale. That is an advantage the contract does not give them. The court di rectecl that the proceeds of the sale should be applied to the payment of the several judgments according to the priorities of their liens as determined by the court. We think the proceeds of the sale, after the payment of costs and taxes, as directed in the judgment, should be brought into court and paid on the several judgments in the order and manner as determined by the trial court in the judgment entered in the case, with this change and modification : In addition to the sum of $194.63 and interest thereon which the court directed should be first paid to the plaintiff in error, it should be paid such additional sum as will equal the interest on $4,000, at the rate of 2 per cent, per annum, from February 3, 1891, the date of the judgment, up to the time when distribution of the proceeds of the sale is made.
This case will be remanded, with directions to modify the judgment in accordance with this opinion. The costs in this court will be equally divided between the parties.
All the Judges concurring.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Gregory Freeman, was convicted of aggravated robbery in violation of K. S. A. 21-3427 (Weeks 1974). He was sentenced to a term of from eight years to life and has appealed.
At about 3:15 p. m., September 20, ,1973, two black men armed with pistols held up and robbed Shakey’s Pizza Parlor at 13th and Oliver in Wichita, Kansas. The robbers forced the two employees who were present to lie face down On the floor where they were bound with tape. Some $94 or $95 was removed from the cash register and a wrist watch and billfpld were taken from Donald Hartke, one of the employees.
After the robbers left on foot, the police were called and the alarm was spread. Mr. Freeman was apprehended about 4 p. m., walking east near Poplar and 13th, approximately 24 city blocks east of Oliver and 13th. Freeman lived in the 2700 block on East 13th Street.
At the time of his apprehension the defendant was carrying a long playing record album and a sack containing two cans of soup. He was taken to the police station where police found and removed from his clothing one ten-dollar bill, two five-dollar bills, ten one-dollar bills, plus some change, and a Timex watch which Hartke identified as his watch by the color, the brand and by the accumulation of flour and pizza sauce in the band.
That same afternoon Hartke identified the defendant as one of the robbers from some twenty or twenty-five pictures shown him by the police. Later that evening both Mr. Hartke and J. D. Fitch, the other employee, went to the police station where Hartke picked Freeman out of a line-up of five persons and Mr. Fitch, who was unable to identify the defendant from his face, recognized him from his voice; the way he talked, kind of soft; and the way he said “feet” when asked to say “tape their feet.”
Although six points are set out in the defendant’s specification of errors, only three were briefed and argued. We shall consider the remaining three as having been abandoned, as well they might have been.
In the first place the defendant contends his motion for mistrial should have been sustained at the close of the voir dire examination. The background of the claim is this: In the state’s examination of Mrs. Lister, a prospective juror, the following exchange occurred:
“Mr. Wall [Counsel for the prosecution]: And you understand that the defendant doesn’t have to take the stand?
“Mrs. Lister: Yes, sir.
“Mr. Wall: And if he doesn’t take the stand, you can’t draw a wrongful inference from that, you understand that?
“Mrs. Lister: Yes.
“Mr. Wall: He has the right to remain silent and you can’t penalize him for that. Right?
“Mrs. Lister: Yes.
“Mr.Wall: Now, if he chooses to take the stand, just because he relinquishes that right, you don’t give him a plus. Do you understand that?
“Mrs: Lister: Yes, sir, I do.
“Mr. Wall: You view the evidence based upon that experience you have in common with mankind. Do you understand that?
“Mrs. Lister: Yes.
“Mr. O’Hara [Defense counsel]: May it please the Court, I am going to object to any reference to whether the defendant gets on the witness stand or not.
“The Court: Sustained.”
So far as we can understand his argument, the defendant contends the questions asked of Mrs. Lister were somehow, in total effect, an impermissible comment on his constitutional right not to take the stand; and that the statements made by Mr. Wall in questioning Mrs. Lister would penalize him whether or not he exercised his privilege not to testify.
K. S. A. 60-423 provides in effect that every accused has the privilege not to be called as a witness and not to testify, while K. S. A. 1974 Supp. 60-439 provides substantially that if a privilege not to testify is exercised, neither the judge nor oounsel may comment thereon except at the request of the party exercising the privilege.
We are at a loss to understand how the questions propounded on voir- dire either violated the defendant’s privilege not to testify or constituted impermissible comment thereon. Mr. Freeman did not exercise his privilege; instead he took the stand and testified in support of his defense of alibi. Neither can we say that Mr. Wall’s questions embraced an incorrect statement as to the law even though it was the court’s function to instruct the jury on the law, not Mr. Wall’s.
The trial court summed up the matter rather neatly by saying, after hearing defendant’s motion for mis,trial:
“The Court: I think what he was doing was pre-empting the Court and trying to second guess the Court’s instructions. If the defendant does not take the stand I will instruct the jury to the effect that he did not have to take the stand and that essentially that is what Mr. Wall said.”
A situation which in many respects is comparable to the one at hand may be found in State v. Phippen, 208 Kan. 962, 494 P. 2d 1137, where the prosecuting attorney told members of the jury panel during the voir dire examination that the defendant “has the opportunity to testify” and they could expect, if she “does testify, she is going to deny everything that the State says, or she is .going to try to contradict it.” The defendant in that case claimed that the incident violated her constitutional right not to testify as well as her right to have no' allusion made by the prosecution as to the exercise of that right and, in fact, put her in a position where she was compelled to testify. In rejecting the defendant’s contentions, this court said:
“A prosecutor skates on thin ice when he ventures into the area of the exercise by an accused of his constitutional right against self-incrimination (see Griffin v. California, 380 U. S. 609, 14 L. ed 2d 106, 85 S. Ct. 1229). The subject is scarcely a proper one for voir dire inquiry and its exploration before a jury at any time might well lead to impermissible constitutional infringement. Here, however, the inquiry stopped before the mention had extended that far. Counsel’s statements did not amount to comment on appellant’s failure to testify because the trial had not yet reached a stage evincing her choice as to testifying. . . .” (pp. 965, 966.)
In the instant case, as in Phippen, the trial was in its beginning stages; it had not progressed to a point evidencing the defendant’s choice as to testifying. While we cannot say the defendant’s substantial rights were prejudicially affected by what happened, during the voir dire, we wish to reiterate the caveat found in the Phippen case, and to urge its observance in the future.
For his second ground of error the defendant points to an incident first made known to the court when his motion for new trial was. argued. After court had recessed for the second day, Mr. O’Hara, the defendant’s counsel, and one of the jurors, Mr. Richey by name (who later served as foreman), were riding in the courthouse elevator when a group of assistant district attorneys got on and Mr. Savin, one of their number, said in a frivolous way: “Mr. O’Hara, are you defending another guilty client?” O’Hara’s affidavit asserts the remark was made in a loud manner and the juror could not help hearing it.
There is nothing in the record to show that the jocular remark, while it may have been indiscreet, resulted in prejudice to the defendant. We find nothing to indicate that any attempt was made to subpoena or to procure an affidavit from the juror, and the record is entirely barren of any showing that the remark was even overheard by him despite O’Hara’s conclusion to the contrary. Furthermore, there is no indication of any kind that Mr. Richey knew that Mr. Savin was an assistant district attorney. The rule is well established that before the granting of a new trial is required, the error alleged must appear to have prejudiced the substantial rights of the accused. (State v. Miller, 204 Kan. 46, 48, 460 P. 2d 564; State v. Whiters, 206 Kan. 770, 773, 481 P. 2d 992.) It is the appellant’s burden on appeal not only to show error affirmatively, but further to establish that the error alleged resulted in substantial prejudice to his rights. (State v. Griffin, 210 Kan. 729, 731, 504 P. 2d 150.) This the defendant has not done in this case.
We think it important to note that no motion was made for a mistrial when the elevator incident occurred. That occurrence took place before trial proceedings were concluded and it should have been made known to the judge when court reconvened the following morning, in time for the judge to have inquired into the matter at that point for possible corrective action. Instead, counsel chose to withhold the information until, he presented a motion for new trial. We do not consider this a timely disclosure.
The third point raised by Mr. Freeman is the overruling of his motion for discharge entered at the close of the state’s case. In rejecting the defendant’s motion, the trial court observed: “Taken in its best light, the State has presented a prima facie case.” We agree with that appraisal.
Despite discrepancies as to the defendant’s dress at the time of the robbery, both Hartke and Fitch identified him as one of the robbers, one by his facial appearance, the other by voice. Both witnesses positively identified Freeman at the trial itself as well as having done so previously at a line-up concerning which no challenge is directed. Hartke’s identification of his wrist watch found on Freeman was also positive.
The defendant points out he was apprehended some 45 minutes after the robbery, at a point some twenty-four or twenty-five blocks removed from the scene of the crime, and he asserts it is difficult to understand how he could have gotten so far on foot. We think it not unusual for a grown man to travel two miles in three-quarters of an hour by “shanks’ mare.” At best the defendant’s argument on this point is one for presentation to a jury, not to an appellate court.
Mr. Freeman suggests other matters which he says tend to weaken or to contradict the state’s case, including evidence relating to his defense of alibi which was supported by his sister’s testimony as well as his own. Further discussion however would seem to be fruitless. The jury was the trier of facts, not this court. The jury heard 'the testimony on both sides of the case and the responsibility of weighing the evidence rested with it, not with this court. We are satisfied there was sufficient evidence to form the basis for a reasonable inference of guilt. (State v. Austin, 209 Kan. 4, 495 P. 2d 960; State v. Burgess, 205 Kan. 224, 468 P. 2d 229; State v. Phippen, supra.)
The judgment is affirmed.
Fromme, J., not participating
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The opinion of the court was delivered by
Fontron, J.:
This case is the outgrowth of a tragic head-on collision occurring on an east-west graveled highway in Rawlins County. Four young persons were killed in the accident. The date was June 28, 1971, the hour, approximately 7:45 p. m.
A unique set of coincidences attended the accident. The eastbound car, a 1964 Plymouth (or Dodge), was driven by Robert W. Haynes. He had two passengers in the back seat of the car, his 15 year-old cousin, Connie Coleen Kidder, and Gail Ferguson, her friend. They were going to a swimming party at the Reeves farm. On their way they stopped at the Higley farm to' pick up Lyn Higley. Lyn, who had been driving a tractor that day for Don Jumper, had to return a pickup to the Jumper farm which was about a mile east of Higley s. Lyn started out first, followed by Robert Haynes and his two passengers. Following Robert, came Mrs. Higley, on her way to attend a meeting in Atwood. At about the time the three-car carvan left the Higley farm, a 1970 Ford Thunderbird automobile driven by Doris Dianne Minney, familiarly known as DD, with Lisa Briney as a passenger, was heading west on the same road. DD had phoned Mrs. Higley that morning about taking vocal lessons. She said she was going to Colby and would stop and talk with her later that day. Sometime after 4 p. m. she called again and said it would be a little later than she had planned because her friend needed to pick up some groceries in Colby. Mrs. Higley did not tell DD about her evening meeting in Atwood but thought she could stop her on the road and talk to her. That talk, alas, was not to be.
It was a hot, dry, windless evening and the cars raised clouds of dust, interfering with vision. In the midst of the dense dust the Haynes and Minney cars met nearly head-on some distance west of the Jumper driveway. When the dust and the debris from the wreck had settled, Robert Haynes and his two passengers lay dead, as did Doris Dianne Minney. Lisa Briney, DD’s passenger, was the sole survivor. So far as the record before us reveals, Lisa did not testify at the trial.
The parents of Connie Coleen Kidder are plaintiffs in the present lawsuit brought against the estate of Doris Dianne Minney. They allege the deceased was negligent in two respects: (1) in driving at an excessive rate of speed and (2) in driving on the south or wrong side of the highway. The case was tried to a jury which returned a verdict in favor of the Minney estate, to which we shall refer as defendant. Plaintiffs have appealed, alleging various trial errors.
In general, the evidence tends to support the plaintiffs’ claim of excessive speed, it being estimated that the Thunderbird was traveling 64 miles per hour. There was disagreement, however, among the three expert witnesses who testified, as to whether the Minney vehicle was across the center line of the highway although all three agreed the Haynes’ oar was on the wrong or north side of the road at the time of collision.
As one means of establishing that DD Minney was driving on the south half of the highway, the plaintiffs relied on the location of an oil spill or streak which began seven inches north of the center line and trailed to where the Minney car came to rest on the north side of the road. The plaintiffs contend this oil came from the Minney car and that its location near the center of the highway indicates that a portion of the Minney car was across the center line and on the south half of the roadway at the time of impact. Since three of the points of error relate in one way or another to the oil streak, we quote the following pertinent passages taken from the record:
“Direct Examination of Plaintiff’s [expert] Witness, George Forman
“Q. All right. Now from your examination of this date [sic] involved in this case, do you have an opinion as to the position the oil came from the Dodge Car?
“A. Again, there is no way of precise determining where on the Thunderbird Automobile.
“Q. Excuse me, the Thunder Bird.
“A. Where the oil came from. I don’t know where it came from.
“Mr. Hensley: (interrupting) How would he know? There’s transmission fluid, brake fluid, there is oil pans, there is power steering reservoirs, the witness is—
“The Court (Interrupting) Are you objecting to it?
“Mr. Hensley: Yes
“The Court: Sustained
“Direct Examination on rebuttal of plaintiff’s witness, George Forman
• “Q. Now, you heard the testimony of Officer Smith with regard to oil spill from the Ford seven inches north of the center line of the road, you also heard the testimony of Mr. Razak, he did not consider this in his analysis, do you have an opinion, Mr. Forman, as to what part of the Ford this oil came from?
“Mr. Hensley: Absolutely no foundation for that opinion. The man never seen the car; he has never been to the scene, no way he can state that.
“The Court: Sustained. I think Mr. Smith testified to gouge marks seven inches north of center.
“Mr. Creighton: Put him on the stand and he will testify that oil was seven inches north of the center line. It was oil.
“Mr. Hensley: He also testified when two vehicles come, together in this fashion that oil splatters in every direction. There is no foundation, for this witness to now state an opinion as to what part of the Ford the oil came from.
“The Court: Objection will be sustained. I don’t think there is any foundation.
“Mr. Creighton: In light of what the Court said, would the Court reporter read back the answer of the officer so I will know exactly what his testimony was. With regard to the oil, this is a very important point.
“The Court: Let’s just ask him again. Mr. Smith, did you testify that the oil spill started seven inches north of the center line?
“Mr. Smith: Yes, I did.
“Mr. Hensley: I still object to foundation regarding witness’s ability to testify what part of the car that came from.
“The Court: Sustained.”
First of all, the plaintiffs contend the trial court erred by misstating the evidence when it sustained Mr. Hensley’s objection, and that this discredited their evidence relating to the oil stain. We agree that a presiding judge should maintain a neutral stance throughout the trial of a case and should refrain from expressing his views both as to the weight of testimony and the credibility of witnesses. He must be fair to all sides of a lawsuit and impartial in his rulings. (53 Am. Jur., Trial, §§76-79.) It would seem elementary that a trial court, in citing or attempting to quote the testimony of any witness, should take pains to be accurate.
In the present case, however, we believe no prejudice can be said to have resulted from the remarks made by the court. In the first place Officer Smith had testified that both the oil stain and gouge marks were found seven inches north of the center line of the highway. But of more importance, the court asked Officer Smith himself whether he had testified the oil spill was seven inches north of the center line, and this drew the response from Smith “Yes, I did.” The jury had the benefit of this revelation, and whatever prejudice might otherwise have resulted from the court’s comment would, in our opinion, have been dissipated entirely by the court’s follow-up.
For their second point the plaintiffs complain of an incident which occurred during final summation. Mr. Creighton, plaintiffs’ counsel, referred in his final argument to a diagram prepared by Patrolman Smith and said that it clearly showed the oil streak line going to the point of impact (POI) on the diagram. At this juncture Mr. Hensley, defense counsel, objected and called it a “misstatement of the diagram.” The plaintiffs contend that Mr. Hensley knowingly misstated the testimony of Officer Smith; that Hensley’s misstatement was gross; and that the trial court committed prejudicial error in not correcting him. We believe the claim has no merit. In the first place the trial court correctly stated in open court that it would be up to the jury to determine. Futhermore, Officer Smith had testified that although he had marked the point of impact on the diagram, the place where the cars had first come in contact was some four feet east of that. We believe that neither bad faith nor dishonesty can be imputed to Mr. Hensley, and that the trial court had no occasion to correct or admonish him.
The plaintiffs’ third point goes to the trial court’s action in sustaining a defense objection to a question put to Mr. Forman calling for his opinion as to what part of the Ford car the oil had come from. The applicable statute, K. S. A. 60-456 (b), provides:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” (Emphasis supplied.)
In Taylor v. Maxwell, 197 Kan. 509, 511, 419 P. 2d 822, we clearly stated the rule:
“. . . The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge. This principle of law has been previously determined and clearly stated. (Grohusky v. Atlas Assurance Co., 195 Kan. 626, 408 P. 2d 697.)”
See, also, Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 230, 491 P. 2d 917; Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 103, 490 P. 2d 619; Osborn v. Lesser, 201 Kan. 45, 47, 439 P. 2d 395.
We cannot say judicial discretion was exceeded or abused in this case. Mr. Forman testified there was no precise way to determine where the oil had come from and that he did not know whence it came. It is also to be noted that Mr. Forman did testify during his examination that the Thunderbird car was left of the center of the road at the point of impact.
One other point remains. It concerns the trial court’s overruling of a challenge for cause directed against Mr. Johnson. The voir dire examination of this potential juror by defense counsel is as follows:
“Mb. Cbeighton: I will begin with Mr. Johnson
“Mr. Johnson: DD was very close to our family all the way through school, and I feel—
“Mr. Creighton: (Interrupting) You couldn’t have an open mind?
“Mr. Johnson: I couldn’t have an open mind. It started in kindergarten clear through high school.
“Mr. Creighton: Your Honor, we ask that Mr. Johnson be excused for cause.
“The Court: Well, ladies and gentlemen, now, you are all familiar with the fact in counties the size of Norton and Rawlins and the rest of the counties out here probably most everybody knows everybody in the county, but if you are excused we can’t have enough jurors to try this case. Because everyone knows about everyone else, I don’t think it is a disqualification to permit them to be excused because we just can’t try this case if we are going to disqualify all the jurors that know Mr. and Mrs. Minney. Don’t you think, Mr. Johnson, — You understand that Doris Dianne: Minney is not a party to the action. She is deceased?
“Mr. Johnson: Yes, sir
“The Court: Don’t you think you can disregard under the circumstances and render a fair and impartial verdict under the law and evidence presented here?
“Mr. Johnson: Your Honor, I imagine I could if I had to.
“The Court: Well, it isn’t a question if you had to; we can’t force you to but as I say, you just can’t disqualify all of them that know Mr. and Mrs. Minney.
“Mr. Johnson: I understand what you are talking about.
“The Court: Doris Dianne Minney is not a party to this action. It is the administrator of her estate. Now, do you think you could sit on this case and disregard the fact that you have known this girl that was killed and render a fair verdict according to the law and the evidence?
“Mr. Johnson: Yes.
“The Court: Objection overruled.
“Mr. Creighton: Mr. Johnson, going further with the questioning in this case in the event you are asked to return a very large verdict against the estate of Doris Dianne Minney, would you follow the Court’s instructions and if you find that she is entitled to a large recovery that you will decide in favor of the Kidders and against the estate of Doris Dianne Minney?
“Mr. Johnson: Yes”
Subsequently, the plaintiffs challenged Mr. Johnson peremptorily, and he was removed from the jury panel which heard the case.
K. S. A. 1973 Supp. 60-247 (b) provides in pertinent part “All challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court.” We have con sistently held that under this and predecessor statutes the qualifications of a juror is a matter resting within the sound discretion of the trial court and its ruling with respect thereto will not be reversed absent a showing of an abuse of discretion. (Soden v. Gemberling, 188 Kan. 716, 720, 366 P. 2d 235; Rauscher v. St. Benedict’s College, 212 Kan. 20, 23, 509 P. 2d 1137.) Our decisions in this regard accord with the generally accepted view throughout this country. In 47 Am. Jur. 2d, Jury, § 221, p. 812, we find this statement:
“Generally speaking, rulings on challenges are not reversible error unless prejudicial. Since the trial court has the opportunity of seeing the juror, hearing the testimony, and noting the manner and demeanor of the juror while under examination, its decision as to the juror’s qualification will be reversed only when it appears that it has abused its discretion. . . .”
The rule is well exemplified in Critchfield v. Ernzen, 181 Kan. 284, 310 P. 2d 930, where citations from, a number of our decisions have been set forth:
“On voir dire examination two prospective jurors admitted one of appellant’s counsel was involved in litigation adverse to their respective interests. Each such juror was challenged for cause. These challenges were overruled on the ground neither juror had admitted prejudice against the appellant. Thereafter both such jurors were excused on peremptory challenges and subsequently no objection was made to the qualifications of any of the jurors who participated in the trial. In the face of what has just been related we are unable to agree with appellant’s contention the trial court abused its discretion or committed reversible error in refusing to disqualify the jurors in question.
“See Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288, where it is held:
“ ‘Whether a prospective juror is qualified is addressed to the sound discretion of the trial court on the juror’s voir dire, and the trial court’s determination will not be disturbed unless it appears it abused its discretion.’ (Syl. jf 1.)
“And Bailey v. McLeod, 143 Kan. 638, 56 P. 2d 460, which reads:
. . More than that, Olson did not sit as a juror in the trial of this case, defendants having excused him by a peremptory challenge; hence the error, if any, of the court’s ruling on the challenge for cause becomes of but little importance, since no complaint is made of the qualifications of any juror who participated in the trial. (State v. Hooper, 140 Kan. 481, 502, 37 P. 2d 52.)’ (p. 640.)
“See, also, State v. Springer, 172 Kan. 239, 239 P. 2d 944, where it is said:
“ ‘The constitutional guaranty is that an accused shall be tried by an impartial jury. The matter of peremptory challenges is merely statutory machinery for carrying out and securing the constitutional guaranty. Error in overruling a challenge to a juror is not ground for reversal unless the accused was prejudiced thereby. The real question is: Was the jury which tried defendant composed of impartial members? In the absence of any objection on the part of defendant to any member as it was finally drawn to try him we cannot say it was not impartial.’ (p.245.)” (pp. 289, 290.)
In view of the facts surrounding the challenge, we believe the court acted within the bounds of its discretion. Throughout his entire voir dire examination Mr. Johnson comes through as a frank, forthright and honest person. Although he was reluctant at first to serve as a juror, the record provides no basis for an assumption that he spoke untruthfully in saying he could render a fair verdict according to the law and the evidence; that he would follow the court’s instructions and would return a “very large verdict against the estate” should he find plaintiffs entitled to a large recovery.
The defendant insists the trial court did not act arbitrarily in rejecting the plaintiffs’ challenge for cause. To support this assertion the defendant directs our attention to the voir dire examination of another juror, Mr. Smith by name, who persistently adhered to his opinion that he could not be fair because of his relationship with the Minneys; that he was afraid he could not render a fair and impartial verdict; and that if he were Mr. and Mrs. Kidder, he would not want someone in his frame of mind sitting on the jury. In view of these emphatic responses questions asked of him, Mr. Smith was properly excused for cause.
Finally, the plaintiffs do not question the qualifications of any juror who participated in the trial of this case. As we have said, Mr. Johnson was excused on a peremptory challenge, and we are given no reason to believe that the jurors finally selected to try the case were not fair and impartial. The general rule is set forth in 47 Am. Jur. 2d, Jury, § 218, p. 807, in this language:
“The exercise of a peremptory challenge by means of which a juror is excluded is generally deemed to waive an error committed by the trial court in previously ruling on a challenge of such juror for cause. . . .”
Under all the attending circumstances we are unable to say the plaintiffs were denied a fair trial because their challenge for cause against Mr. Johnson was not sustained.
We are aware of Naylor v. Railway Co., 66 Kan. 407, 71 Pac. 835, which the plaintiffs have cited. That case is readily distinguished from the case at hand on the facts. There, the plaintiff was a nonresident. There, the challenged juror stated that he was prejudiced against a nonresident plaintiff who sued for personal damages in a court of this state when he might have brought the action in the courts of his own residence, and that he would require more evi dence of the plaintiff where that was the case. The situation depicted in Naylor is not comparable to the one before us now.
In our opinion no prejudicial error has been made to appear in this case and the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Defendants (Rick Steger and Lenny Clayborne) were each charged with two counts of having sold marijuana contrary to K. S. A. 65-2502. In a consolidated trial to a jury each defendant was found guilty on both counts and this appeal ensued.
The sales of marijuana in question were made by defendants to Rick Roan, a narcotic agent employed by the attorney general. Roan was the state’s only witness. He testified that he had become a close friend of both defendants and their families and on numerous occasions smoked marijuana and drank wine with them. He further testified that the sales from which the charges against defendants arose were made at his request. Roan’s credibility was put in issue on his cross-examination and by the testimony of numerous witnesses called by defendants. Defendants called seventeen witnesses, thirteen of whom testified as to matters concerning Roan’s character and conduct. The witnesses for the defense were college and high school students and military personnel stationed at Fort Riley. Their testimony was that they had seen Roan smoke and drink wine with defendants on many occasions; that Roan had injected himself with “junk”, presumably “heroin”; that he had been seen to inject “speed” into the arm of a friend of the witnesses; that he had been seen, in a public place, to make improper ad vanees to a waitress; and that he had corrupted a minor girl by giving her various drugs, keeping her possessions in his apartment where she stayed with him on several occasions.
The state was permitted, over objection, to bolster or attempt to rehabilitate Roan s credibility by introducing evidence through his re-direct testimony pertaining to many unrelated drug sale convictions which had been secured, according to Roan, by his efforts as an undercover agent working on the cases.
It appears, from the record, that defendants at trial relied on entrapment as a defense claiming that they had been entrapped by Roan into making the sales. The entrapment issue was submitted to the jury as a question of fact and determined adversely to defendants. However, defendants make no point on appeal in this regard.
Defendants brief and argue two points on appeal. They first claim reversible error concerning a statement made by the county attorney in his closing argument. The county attorney’s statement complained of was precipitated by a remark made by defendants’ counsel who, in his argument, stated to the jury:
“Where’s Rick Roan? He hasn’t been here following the first day. He testified and split. Why wasn’t he here to refute some of these things?”
In his argument the county attorney stated:
“Rick Roan left immediately after he testified Wednesday because his life had been threatened.”
Defendant’s counsel lodged an objection and asked for a mistrial. Defendant’s motion for a mistrial was overruled, but the jury was admonished to disregard the county attorney’s statement. Nevertheless, defendants claim reversible error since the county attorney’s statement was unsupported by any evidence and was a declaration implying that defendants were ready to commit murder to silence the witness. Defendants claim the comment was so inflammatory and prejudicial that it could not be cured by the court’s admonition to the jury. Similar questions have repeatedly been presented to this court in criminal appeals. In the recent case of State v. Murrell, 215 Kan. 10, 523 P. 2d 348, the principal witness for the prosecution was Glenn Edward Burnett, who had previously entered a plea of guilty as a participant in the crime for which Murrell was on trial. Concerning Burnett’s testimony, the county attorney in final argument commented that “Mr. Burnett’s life is in a great deal of jeopardy being in a penal [institution] — ” On objection the county attorney withdrew the remark and the jury was admonished by the court. We held the trial court did not err in refusing to grant a new trial on the basis of this misconduct and pointed out what has so often been said in such cases that the trial judge was in a far better position to assess the impact of the prosecuting attorney’s conduct on the jury than the members of this court.
The remark of defendants’ counsel concerning the absence of Roan, who had been seated at the counsel table with the county attorney during the course of the trial, prompted the response by the county attorney. The response of the county attorney must be considered improper since' there was no scintilla of evidence indicating a threat to Roan’s life during the course of the trial. Although the point raised by defendants, standing alone, would not justify the granting of a new trial, we deem it deserving of cumulative effort in our disposition of the appeal.
Before leaving this point, we further note that on the hearing of defendants’ motion for a new trial, the trial court called in a number of jurors for interrogation on the issue whether they were prejudiced by the county attorney’s statement. Such procedure is proscribed by K. S. A. 60-441 which reads:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent or to dissent from the verdict of indictment or concerning the mental processes by which it was determined.”
The statute is a restatement of the case law in this state to the effect that the mental process of a juror in reaching a verdict or factors which influence his mental process cannot be inquired into for the purpose of impeaching a verdict. (State v. Schroeder, 201 Kan. 811, 443 P. 2d 284; Kincaid v. Wade, 196 Kan. 174, 410 P. 2d 333; and Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438.) While the proceedings referred to are forbidden by statute and case law, the matter is of no significance herein since the verdict was not impeached.
In their second point on appeal defendants claim error in the trial court’s admission of Roan’s testimony concerning his success in securing convictions in unrelated drug cases. Defendants say such evidence was irrelevant and inflammatory. The record discloses that defendants’ counsel interposed numerous objections to this entire line of questioning contending that it was beyond the scope of cross-examination; that it was immaterial; and that it was highly inflammatory and prejudicial.
From the testimony of the numerous witnesses of defendants it may fairly be said that the moral character of Roan had been impeached. The question then posed is whether the admission, over objection, of his testimony of a favorable “batting average” with respect to arrests and convictions pertaining to previous unrelated buys amounted to reversible error. Defendants argue the admission of “batting average” testimony is proscribed by statute (K. S. A. 60-420 and 60-422 [ci]). For the purpose of impairing or supporting the credibility of a witness 60-420 gives broad authorization for the introduction of extrinsic evidence concerning any conduct by the witness and any other matter relevant upon the issues of credibility. However, the provisions of 60-420 are made subject to 60-422, which further limits the admissibility of evidence affecting credibility. Subsection (d) of 60-422 provides:
“. . . (d) evidence of specific instances of his conduct relevant only as tending to prove a trait of his character, shall be inadmissible.” (Emphasis supplied.)
In his challenged testimony, Road named the cities in which he had worked; the number of drug buys he had made; the number of warrants issued as a result of those buys; and finally the number of convictions resulting from the arrests. Such testimony must be considered evidence of specific instances of conduct and at most could only tend to prove a character trait of reliability, rather than tending to establish honesty and veracity. In Vol. 4 Vernons Kansas Statutes Annotated' Code of Civil Procedure [by Fowks-Harvey and Thomas], § 60-422 the authors’ note reads:
“Rule 422 (d) provides that specific instances of conduct may not be used to prove a trait of character for purposes of supporting or attacking credibility.” (p. 290.)
While not mentioning the statutes referred to, this court in two recent cases has expressed disapproval of the admission of past exploits in order to enhance the credibility of an undercover agent as a state witness. In State v. Davis, 213 Kan. 54, 515 P. 2d 802, the testimony of one Phillips, an informant or undercover agent for the state, was spoken of in this manner:
“Defendant’s conviction was based on the testimony of Phillips. He testified he purchased heroin from defendant on the dates charged in the information. Over objection, he also testified to the purchase of heroin on two prior occasions. The reliability of Phillips’ testimony cannot be predicated on how many pinchases he made. The credibility given his testimony as to purchases charged in the information cannot be enhanced by his testimony as to prior purchases. . . .” (p. 59.)
In. State v. Culbertson, 214 Kan. 884, 522 P. 2d 391, the states case against defendant for possession of marijuana with intent to sell was based upon the testimony of Payne, an undercover agent. Another state’s witness, undersheriff Heinrichs when asked about Payne’s work, testified:
“ ‘. . . Mr. Payne while working for this office was working on several cases, of which we have had conviction.’ . . .” (p. 885.)
On objection by defendant, the trial court immediately admonished the jury to disregard Heinrichs’s testimony. This court noted that Heinrichs’s testimony to the effect that others had believed Payne’s testimony at other trials was hearsay, which may have bolstered Payne’s credibility, but that the court’s prompt admonition to the jury cured any error.-
In the case at bar, defendants’ repeated objections to Roan’s testimony concerning his past successes as an undercover agent were overruled, thus, in the eyes of the jury Roan’s testimony was stamped with approval by the trial court. Road was the state’s sole witness. As we have indicated, the issue at trial was entrapment, the determination of which hinged on whether the jury believed Roan or defendants’ witnesses who testified pertaining to the question. Under these circumstances, we are unable to say the admission of the challenged testimony was harmless error.
This is not to say that a witness whose impeachment is sought by proof of general bad character cannot be supported by testimony otherwise admissible, tending to establish honesty and veracity. In Hodges v. State Highway Commission, 198 Kan. 80, 422 P. 2d 570, this court spoke of the subject in this fashion:
“. . . Generally speaking, testimony is admissible to sustain a witness whose credibility has been challenged (4 Jones on Evidence, 5th ed„, [1958], § 957). In section 962 of this treatise the rule is amplified to make permissible such rehabilitative testimony upon reexamination even though inadmissible upon direct examination, as follows:
“ ‘If cross-examination, has disclosed facts which tend to impeach the integrity or character of the witness, he may, on reexamination, make explanations showing that the facts are consistent with his credibility as a witness, although the testimony would otherwise be irrelevant.’ (p. 1810)” (p. 83.)
While Roan’s testimony might show his expertise as an undercover agent, it is totally irrelevant as tending to establish his veracity as a witness. The state argues that the challenged testimony was at most irrelevant and its admission could not have prejudiced defendants in any way. We cannot agree. Roan was the state’s only witness; it was solely his testimony that the state relied upon to rebut defendants’ claim of entrapment. Under such circumstances, we are unable to say that defendants were not prejudiced.
In view of the foregoing the judgment is reversed and the cause remanded with directions to grant a new trial.
Fatzer, C. J., and Schroeder and Fontron, JJ., dissenting.
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The opinion of the court was delivered by
Kaul, J.:
This appeal requires the determination of the proper measure of damages to be applied in an action for breach of warranty of title brought by the purchaser of a stolen automobile against the seller.
On March 26, 1971, defendant-appellee (Ronald D. Clemens) sold the automobile in question — a Chevrolet Corvette Stingray 2- door coupe titled as a 1969 model, to plaintiff-appellant (Warren Ricklefs) for $1,500.00 cash and a trade-in allowance of $2,400.00 for plaintiffs 1969 Pontiac. Clemens executed a certificate of title warranting the title to be free from all liens and encumbrances except as stated in the assignment. Ricklefs operated the automobile until December 1, 1971, when he was notified by an agent of the Federal Bureau of Investigation that the automobile was stolen. The agent also informed plaintiff that the automobile was a 1968, rather than a 1969 model. Plaintiff did not use the automobile after December 1, 1971, for the reason, plaintiff testified, that the agent had told him he might be arrested. Plaintiff claims that he made demand on Clemens for restitution but was refused.
On February 14, 1972, plaintiff filed this action against Clemens. In his petition plaintiff alleged that he was entitled to “complete restitution and has suffered damages in the sum of Three Thousand Nine Hundred Dollars ($3,900.00).” Plaintiff also prayed for such other and further relief as to the court might seem equitable.
On March 13, 1972, defendant Clemens filed his answer alleging that he had purchased the automobile from Motor City Motors, Inc., of Kansas City, Missouri for $2,325.00; that he was given a certificate of title and had no notice whatsoever, either express or implied, of any defect in the title or any encumbrance effecting the title to the automobile. Defendant prayed that plaintiff take naught by his suit.
After defendant’s answer was filed, plaintiff filed a motion for summary judgment.
In the meantime, an action was filed against plaintiff (Ricklefs) by Carol A. Romero, Kenneth J. Rhines and the United States Fidelity & Guaranty, a corporation, (hereafter referred to as USF&G). This petition alleged that the automobile was purchased by Romero and Rhines from Bill Allen Chevrolet in North Kansas City, Missouri on January 7, 1971, for $3,295.00; that while the automobile was on the Bill Allen lot awaiting repairs, it was stolen; that USF&G, insurance carrier for Bill Allen, paid Romero and Rhines $3,295.00 and took an assignment of all interest in the automobile; plaintiffs (Romero, Rhines and USF&G) prayed for delivery of the automobile from Ricklefs to USF&G, or in the alternative for judgment against Ricklefs in the amount of $3,295.00.
Ricklefs’s motion for summary judgment in his action against Clemens was argued on April 3, 1972. The court took the matter under advisement and filed its memorandum decision on May 3, 1972. Noting the entangled facts which had developed, the trial court observed that the F. B. I. agent might have been in error and that USF&G might have made the payment to Romero and Rhines as a volunteer. The court ruled that Ricklefs’s motion for summary judgment was premature and further found that the case could not be finally disposed of without USF&G being made an additional party and directed plaintiff (Ricklefs) to file an amended petition against Clemens and make USF&G an additional party defendant.
At a pretrial conference on October 16, 1972, the two actions (the instant action, district court No. 24008, and the replevin action, district court No. 24145) were consolidated. The trial court directed Clemens to make Motor City Motors, Inc. a third, party defendant to the instant action, and further found that it was necessary to appoint a special master to determine whether the automobile in question was the same as that stolen from Bill Allen Chevrolet.
On December 18, 1972, the special master filed his report disclosing that the 1968 model automobile sold by Bill Allen Chevrolet to Romero and Rhines, and then stolen, was the same automobile that was later sold to plaintiff (Ricklefs) and identified as a 1969 model.
On January 23, 1973, Ricklefs filed a second motion for summary judgment against Clemens. On June 25, 1973, plaintiff’s motion was sustained. The court entered judgment for Ricklefs against Clemens for breach of warranty of title, and further ruled that the amount of damages should be determined as a question of fact. On the same date the court entered judgment in case No. 24145 for USF&G granting recovery of the automobile from Ricklefs.
On November 15, 1973, Ricklefs amended his petition against Clemens and asked for full and complete restitution and consequential damages in the total 'amount of $5,000.00.
In pretrial proceedings on December 11, 1973, the trial court ruled that Ricklefs’s only measure of relief was damages limited to the value of the automobile on the date (June 25, 1973) of 'the entry of judgment of replevin in favor of USF&G.
The case came on for trial on December 13, 1973. At trial the court rejected plaintiff’s (Ricklefs) requested instructions on damages and restated its 'ruling as to plaintiff’s measure of recovery previously announced by the court on December 11. The court also rejected plaintiff’s proffer of evidence 'as to the purchase price and the value of the automobile on December 1, 1971; and also evidence as to value as of 'the date of purchase. The court also ruled evidence inadmissible as to the correct model year of the automobile, the cost of repairs and improvements, and evidence of plaintiff offered to show rescission.
On December 14, 1973, the jury returned a verdict for plaintiff in the amount of $2,800.00 and judgment was entered accordingly.
On appeal, the main points asserted by plaintiff are: (1) The trial court erred in ruling that the measure of damages was the value of the automobile at the tíme of dispossession on June 25, 1973, when the judgment in replevin was entered; and (2) that the trial court erred in ruling that plaintiff’s petition did not set forth rescission and in rejecting evidence which plaintiff claimed would have established his attempt to rescind.
Extensive arguments, which 'are reproduced in the record, were made 'to the court concerning the theories of the parties as to the proper measure of damages on the hearing for summary judgment, at pretrial on December 11, 1971, and in connection with requested instructions at trial. Understandably, the court encountered much difficulty in resolving the issue of damages in view o'f the complicated set of facts which had developed and the alternative, if not inconsistent, positions taken by plaintiff at the various hearings at which the question of damages was argued.
The trial court adhered to its original ruling and instructed the jury 'that Ricklefs was entitled to recover from Clemens the actual market value of the 1969 automobile as it existed on June 25, 1973, and that in turn Clemens was entitled to recover a like sum from the third party defendant, Motor City Motors, Inc. The 'court defined actual value and further instructed that in this case it meant retail market value.
Plaintiff submitted five requested instructions on damages, each of which was rejected by the court. Requested instruction No. 1 defined the measure of damages as the difference in value at the time of acceptance. The requested instruction further stated that plaintiff was entitled to incidental and consequential damages for the losses he suffered as a result o'f his purchase of the automobile from Clemens. In support of his position plaintiff cited K. S. A. 84-2-714 and 84-2-715 of the Uniform Commercial Code (hereafter referred to as U. C. C). In his other requested instructions plaintiff takes a position either in the 'alternative to or inconsistent with his position set out in requested instruction No. 1. In requested in struotíon No. 2 he asks for the purchase price together with direct and consequential damages. In No. 3 he asks that damages be assessed on the difference in value if the automobile had been as warranted not to exceed $5,000.00 without fixing a time. In instruction No. 4 plaintiff requested that the jury be instructed that plaintiff should recover such sum as would fully compensate him for damages sustained as a 'direct result of the occurrence complained of by plaintiff. In No. 5 the loss to plaintiff was said to be “the retail value of the automobile as it would cost Warren Ricklefs.”
Plaintiff argued to the trial court and now to this court on appeal that where a buyer has accepted goods and promptly given the seller notice of breach after 'discovery, under the provisions of K. S. A. 84-2-607, the applicable measure of 'the buyers damages is set forth in K. S. A. 84-2-714 (2) and (3) which read:
“(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
“(3) In a proper case any incidental and consequential damages under the next section may also be recovered.”
K. S. A. 84-2-715, pertaining to incidental and consequential damages referred to in (3) above, reads:
“(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
“(2) Consequential damages resulting from the seller’s breach include
“(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and
“(b) injury to person or property proximately resulting from any breach of warranty.”
The trial court apparently took the position that 84-2-714 was applicable, but that because of the special circumstances which the court found to exist in this case, the plaintiff’s damages were of an amount different from the difference between values at the time of acceptance, as set out in 84-2-714 (2), and that other damages claimed by plaintiff did not fall within the contemplation of incidental and consequential, as set forth in 84-2-715. The trial court agreed with defendant’s argument that damages for breach of war ranty of title consisted of value at the time of dispossession. In this connection the court commented:
“. . . I think he [plaintiff] is entitled to recover what he actually lost, and what he actually lost was a car that [was] almost three years after he got it, but that’s what he lost, nonetheless, because of this.”
We agree there were special circumstances existing in this case. No contention is alleged or made that defendant Clemens was guilty of fraud or bad faith. He did not know and had no reason to know the automobile was stolen when he sold it to plaintiff. In other words, Clemens was an innocent party. The number of transactions in which the automobile was involved in two different states and the fact that the model year had been changed in the title, making identification difficult and requiring the appointment of a special master to establish the true identity of the automobile, coupled with the use and possession by plaintiff from March until December without any notice of a defective title, we believe to be sufficient special circumstances to take the case out of the “time of acceptance” provision of 84-2-714 (2). We cannot agree, however, that the proper time for fixing difference in value was June 25, 1973, when judgment in replevin was entered. It is undisputed that plaintiff lost the use of the automobile on December 1, 1971, after notice by the F. B. I. agent.
K. S. A. 84-2-312, the code provision for warranty of title, does not mention, specifically, warranty of quiet possession; however, in this connection, we find the following in the official U. C. C. comment:
“The warranty of quiet possession is abolished. Disturbance of quiet possession, although not mentioned specifically, is one way, among many, in which the breach of the warranty of title may be established.”
See, also, Vol. 7 Vernon’s Kansas Statutes Annotated, Uniform Commercial Code, [Howe and Navin], § 84-2-312, p. 208. In Amer. Container Corp. v. Hanley Trucking Corp., 111 N. J. Super. 322, 268 A. 2d 313, an action involving the sale of a stolen semi-trailer wherein the court considered the language of section 84-2-312 of the U. C. C., the court had this to say:
“The purchaser of goods warranted as to title has a right to rely on the fact that he will not be required, at some later time, to enter into a contest over the validity' of his ownership. The mere casting of a substantial shadow over his title, regardless of the ultimate outcome, is sufficient to violate a warranty of good title. . . .” (p. 331.)
In this case the notice of the F. B. I. agent and the warning given to plaintiff that he might be arrested is sufficient to cast a shadow over plaintiff’s title and establishes a breach of warranty of title.
Although Clemens, under the circumstances, may be said to be innocent, he is, nevertheless, liable to Ricklefs for breach of warranty of title, both express by virtue of the certificate guaranty and implied by virtue of the U. C. C. (K. S. A. 84-2-312). The rule for measuring damages for breach of warranty regarding accepted goods is spelled out in 84-2-714 and 84-2-715 of the U. C. C. The language of 84-2-714 and 84-2-715 read in its entirety leads to the conclusion that generally the measure of damages for breach of warranty is the loss directly and naturally resulting from the breach of warranty. This has long been the rule adhered to in this jurisdiction. In Allen v. Brown, 181 Kan. 301, 310 P. 2d 923, a case involving breach of a new automobile warranty, we held:
“The measure of damages for breach of warranty is the loss directly and naturally resulting from the breach of warranty. In the absence of such circumstances showing proximate damage of a greater amount, this is the difference between the value of goods at the time of delivery and the value they would have had if they had conformed to the warranty.” (Syl. ¶ 6.)
See, also, Perry v. Schoonover Motors, 189 Kan. 608, 371 P. 2d 152; Fox v. McKay Motor Co., 188 Kan. 756, 366 P. 2d 297; and Author’s Comment on § 84-2-714, Vol. 7 Vernon’s Kansas Statutes Annotated, Uniform Commercial Code, [Howe and Navin], p. 568.
It is to be noted that in 84-2-714 the U. C. C. uses the term “value”, rather than contract or purchase price. This is in accord with the rule in Kansas. In dealing with a breach of a new automobile warranty in Berry this court cited numerous prior cases in which the court affirmed the rule that the plaintiff is entitled to the benefit of his bargain and in the opinion approved an instruction of the trial court which read:
“ ‘. . . you are instructed that the measure of damages is the difference in the value between the car represented to the plaintiff by the defendant and the value of the car actually received by the plaintiff. . . (p. 611.)
To the same effect see Allen v. Brown, supra; and Fox v. McKay Motor Co., supra. Although following the “value” rule in Perry the court noted that the price paid for an article is some evidence of its value for the purpose of assessing damages (citing Trapp v. Refining Co., 114 Kan. 618, 220 Pac. 249). In view of the foregoing, we cannot agree with the contention of plaintiff (Ricklefs) that his damage should be measured by purchase price, rather than value. However, we do agree that purchase price was admissible as some evidence of value for the purpose of assessing damages.
With regard to Ricklefs’s claim for incidental and consequential damages in support of which he proffered evidence of expenses for repairs and improvements, while not falling within the contemplation of damages under 84-2-715, such expenses, if relevant on the issue of value are admissible as evidence tending to show value of the automobile on December 1, 1971, the salient date. Any value of the use of the automobile between March and December flowing to plaintiff is counterbalanced by any depreciation in the value of the automobile between those dates.
Applying the law of our prior decisions dealing with breach of warranty in the light of pertinent sections of the U. C. C. referred to, we have concluded that, under the particular circumstances shown to exist in this case, the rule to be applied in ascertaining damages is the difference in value of the automobile in question on December 1, 1971, and its value if title had been as warranted. Since plaintiff’s possession was undisturbed until December 1, that date, in this case, is tire salient date rather than the date of acceptance. We believe the circumstances recited above justify exception to the time of acceptance rule as contemplated by the language of 84-2-714 (2).
Since the automobile was warranted to be a 1969 model, when sold by Clemens to Ricklefs, we agree with the trial court that the issue should be submitted to the jury on that basis.
New cases have come to our attention which, under the U. C. C., have dealt with the sale of a stolen automobile or other tangible property where the property has remained in the possession of the buyer for an extended period of time before the fact of theft was established. In Itoh v. Kimi Sales, 74 N. Y. Misc. 2d 402, 345 N. Y. S. 2d 416, the buyer had possession of a stolen automobile for more than two years, yet sued for the purchase price. In finding that this was a special circumstance which removed the case from application of the usual time of acceptance rule, set out in 84-2-714 (2), the court quoted with approval from the New York Official Comment as follows:
“As stated in the Official Comment (McKinney’s Cons. Laws of N. Y., Book 62K Uniform Commercial Code, §2-714), ‘Subsection (2) describes the usual, standard and reasonable method of ascertaining damages in the case of breach of warranty, but it is not intended as an exclusive measure.’ It recognizes the possibility of a different measure where ‘special circumstances show proximate damages of a different amount’ and subsection (3) allows ‘In a proper case any incidental and consequential damage.’ A case involving breach of warranty of title, where stolen tangible property is taken away from the buyer at sometime after the purchase, is one where there are special circumstances so that the measure of damages should be the value of such property when it is taken away. In this way, the buyer will recover what he has ‘actually lost’. He will get the benefit of any appreciation in value, as occured in Menzel v. List, (24 N. Y. 2d 91, supra), including items of value he may have added to the stolen property — as claimed by plaintiff; and, on the other hand, he will not be unduly enriched by depreciation in the value of the property, from the use of which he benefited until it was taken from him— as claimed by Kimi. . . .” (pp. 404, 405.) (Emphasis supplied.)
We are aware of cases that, under particular circumstances, hold otherwise. For example, John St. Auto Wrecking v. Motors Ins., 56 N. Y. Misc. 2d 232, 288 N. Y. S. 2d 281, wherein an insurance company sold a damaged automobile to plaintiff-buyer who repaired the automobile to put it in saleable condition and was found to be entitled to purchase price plus costs of repair. In the John St. Auto Wrecking case the court reiterated the New York rule:
“As to the time a warranty of title is breached, the New York courts have held that a cause of action arises when the buyer is disturbed in his possession. . . .” (p. 234.)
The disparity among the various jurisdictions in pre Uniform Commercial Code decisions concerning measure of damages in actions for breach of warranty title is shown in the cases collected in 13 A. L. R. 2d, Annotation, p. 1372. There appears to be a substantial number of jurisdictions which favor the rule of value at the time of dispossession and many of those decisions hold that price is evidence (in some cases strong evidence) of value.
While Kansas breach of warranty cases, heretofore discussed, do not specifically deal with breach of warranty of title, we believe that consistency compels adherence to the difference in value rule that has been firmly established in those cases.
Concerning plaintiffs claims of error in the trial courts refusal to permit him to proceed under the theory of rescission, plaintiff concedes it was not specifically pled. Even though plaintiff’s petition might be construed to encompass the theory, we find no mention of rescission shown in the record until the conference on December 11, 1973 — two days before trial. In the meantime, plaintiff had filed and argued two motions for summary judgment and had participated in numerous conferences in which issues and theories were discussed. Even if plaintiff may have made a case for rescission we find no abuse of discretion in the trial court’s ruling under the circumstances.
The judgment is reversed and the cause remanded with directions to retry the issue of damages in accordance with what has been said in this opinion.
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The opinion of the court was delivered by
Foth, C.:
The issue in 'this case is whether a judgment of divorce is valid as between the parties when it is rendered in open court, with both parties present with counsel, and is noted on the court’s trial docket, but no journal entry is filed and the clerk neglects to enter the judgment in the appearance docket. We hold that it is.
Forrest Penn, Jr., died intestate on August 20, 1973. Two days later the appellee, Marviss L. Penn, instituted this proceeding in the probate court of Butler county by filing her petition to be appointed administrator of 'his estate. She claimed to be his widow. In due course an answer was filed by 'the appellant, Clarence Allen Penn, and adult son of the deceased Forrest Penn by a previous marriage. Clarence denied that Marviss was his father’s widow, alleging that she had been divorced from him on November 8, 1972.
On that day Marviss and Forrest had appeared with their attorneys in the district court of Butler county, before Judge Page W. Benson, for the trial of their divorce action. At the conclusion of the trial the judge announced that he was granting Marviss the divorce she had prayed for, and custody of the parities’ minor child. The balance of the decree was taken under advisement. Judge Benson made the following handwritten entry in bis trial docket:
“Nov. 8, 1972, Plft. appears in person and by atty Davis Carson. Deft, appears in person and by atty Allyn M. McGinnis. Plft. introduces her evidence which is duly corroborated by Gladys Owen. Plft. rests. Deft, introduces evidence in his behalf. Recess for lunch. Arguments made following lunch hour. Divorce to Plft. Custody of minor child to Plft. Div. of prop., child support, alimony, atty fees, etc., taken under advisement. /s/ Page W. Benson, Judge.”
After the court’s decision had been announced there was a discussion concerning exemptions for income tax purposes for the year 1972. Forrest’s counsel (now Marviss’ counsel) observed:
“I am not at all certain that he can claim Mrs. Penn’s [exemption] at all because the Court has now granted a divorce, and the IRS is very clear — it’s very clear, if you are not married on December 31, you cannot claim the party regardless of the percent of support you provide; but as to the children, that is probably different.” (Emphasis added.)
From this we infer that there was no doubt in counsel’s mind at the time as to the legal effect of the judgment which had just been rendered.
Nothing further had been done in the divorce case at the time Forrest died some eight months later. Judge Benson testified in this proceeding 'that he had granted Marviss a divorce on November 8, 1972, and that he considered 'the 'divorce a final judgment, even though he did not 'direct the preparation of a journal entry and did not tell the clerk to enter the judgment in the appearance docket.
On this history the probate court in this ease found that there had been a divorce granted on November 8, 1972, and that Marviss was not Forrest’s widow. Accordingly it appointed Manual Penn, Forrest’s brother, as administrator. Marviss, while agreeing to the appointment of the disinterested administrator, appealed the finding that she was not Forrest’s widow.
The district court, hearing the case de novo, found that there had been no judgment of divorce. Although Judge Brazil gave no reason for this finding, it was presumably made because the judgment was not “entered” as required by K. S. A. 60-258. The trial court concluded that Marviss was still married to Forrest on the date of his death. Clarence Penn, the adult son, has appealed. He is joined in his brief by the guardian ad litem for Marcus F. Penn, the minor son of Forrest and Marviss.
We think the result reached below fails to give sufficient recognition to the distinction between the judicial act of rendering a judgment and the ministerial act of recording the judgment rendered. The distinction is universally recognized, and is discussed in 49 C. J. S., Judgments, §§ 100, 102, 106-9, 113, and in 46 Am. Jur. 2d, Judgments, §§ 52-57, 152-54, 158, 159.
In our cases we have many times observed the distinction, employing such language as, “A journal entry of judgment is not the judgment itself but merely purports to be a record of the judgment rendered.” Mathey v. Mathey, 175 Kan. 446, 264 P. 2d 1058, Syl. ¶ 3. In that case the journal entry omitted reference to the alimony which had been awarded in the actual judgment rendered. We held it was proper to supply the omission by an order nunc pro tunc. A similar result was reached in Tincknell v. Tincknell, 141 Kan. 873, 44 P. 2d 212, where we observed (p. 876-7):
“. . . A judgment is one thing. The record of a judgment is a different thing, and what purports to be the record of a judgment may or may not be correct. When the question of correctness of the record is raised, the court must determine the matter as any other question of fact, except that the court’s own knowledge of what the judgment was may be utilized and may be conclusive.”
A striking illustration of the use of the trial court’s own knowledge to override the written record, to determine when a judgment had been rendered and what it was, and to make the record speak the truth, is found in Gates v. Gates, 160 Kan. 428, 163 P. 2d 395. There the divorce action had been tried on June 4, 1943. The only record made at that time was the trial judge’s notation in his trial docket that the “case” was being taken under advisement. Five months later the husband sought to introduce additional evidence bearing on the issues of divorce and child custody. The trial judge refused to receive such evidence because, regardless of the state of the record, he said he had rendered a judgment on those issues on June 4, and had taken under advisement only the matter of property division. That issue was resolved in November, 1944, and a journal entry covering the property aspects of the case was filed November 23, 1944. A journal entry of the judgment of June 4, 1943, granting the divorce, was finally filed on November 30, 1944.
On appeal this court reviewed at length our many cases holding that a district court has not only the power but the duty to make its records conform to the truth, so that the record will accurately reflect the judgment actually rendered. Ry analogy, it was found that the erroneous entry in the judge’s trial docket was not controlling. He was entitled to rely on his personal recollection as to what judgment he had rendered and when he had rendered it. As to the delay in filing a journal entry, the court said:
“The fact a journal entry of judgment is not filed until long after a judgment is rendered does not abrogate the judgment nor does its validity or effect remain in abeyance until such journal entry is filed or placed upon the record.” (Syl. ¶ 2.)
The failure of the clerk to journalize the 1943 judgment was likewise found to be of no significance, the court quoting Kinkel v. Chase, 102 Kan. 275, 169 Pac. 1134, Syl. ¶ 1:
“The omission of the clerk to perform the ministerial duty of recording a judgment does not destroy the judgment, nor does its validity or effect remain in abeyance until it is formally entered on the journal.”
(Cf. also, Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P. 2d 555.)
The result in Gates was that the judgment of divorce was effective and binding on the parties as of the date it was rendered (June 4, 1943) despite the lack of a contemporaneous journal entry or clerk’s notation. Under the statutes then in effect a notice of appeal filed 17 months after that judgment was rendered was too late, even though it might have been' timely measured by the date the journal entry was filed, and was timely insofar as the judgment relating to property division was concerned.
Which brings us to the function of our present statute, K. S. A. 60-258, which now prescribes the manner in which a judgment shall be “entered.” Such “entry” is in the appearance docket, a chronological history of each case which the clerk is required to keep by K. S. A. 1974 Supp. 60-2601. Basically, 60-258 details three ways in which a judgment is “entered.” The first is by the clerk, without direction, on a jury verdict. The second is by the clerk, forthwith upon its rendition, by direction of the judge. In either of these instances the clerks notation “shall constitute the entry of judgment, and no journal entry or other document shall be required to render the judgment effective.” (K. S. A. 60-258 [&].) The third method, most commonly employed, is entry by a settled “journal entry or other document,” filed with the clerk. Under this method, filing constitutes the “entry” of the judgment, and “it shall not be effective before such filing.” (Ibid.) The clerk’s duty in this last type of case is to “note” in the appearance docket the fact of filing and a “brief abstract of the nature” of the judgment. In the first two the clerk actually “enters” the judgment by making the notation.
We have most recently examined this statute, in the context of a divorce case, in Mentzer v. Mentzer, 212 Kan. 539, 512 P. 2d 320. In that case the trial judge had made a trial docket minute much like the one here, granting a divorce and dividing the property, but reserving the allocation of debts to an agreed journal entry. No journal entry was filed but the clerk, unlike the clerk in this case, noted the judge’s minutes in the appearance judgment despite the absence of a specific direction to do so. It was contended that in doing so the clerk acted as a mere volunteer, that there was therefore no judgment of divorce, and that the parties were therefore still married.
This court first took note of and adhered to our cases holding that an entry made by the clerk without direction cannot constitute the entry of a judgment. (Guerrero v. Capitol Federal Savings & Loan Ass’n, 197 Kan. 18, 415 P. 2d 257; Corbin v. Moser, 195 Kan. 252, 403 P. 2d 800; Roe Village, Inc. v. Board of County Commissioners, 195 Kan. 247, 403 P. 2d 970; Urban Renewal Agency v. Reed, 211 Kan. 705, 508 P. 2d 1227.) The underlying rationale of such cases is that the rendition of judgments is a judicial function, to be performed by judges and not by clerks. In recording them a clerk is performing a ministerial function “under the direction of his court.” (K. S. A. 1974 Supp. 60-2601.)
But this general principle was held to be inapplicable under the circumstances in Mentzer. The entry in the trial docket by the district judge, we said, “was sufficient in and of itself to constitute a direction that judgment be entered on the appearance docket in conformance therewith.” (212 Kan. at 542. Emphasis added.) We also observed: “As we read the statute, there is no requirement that separate written directions be given the clerk, although such might be the better practice. In form and content, the minutes of the court were tantamount to a direction that judgment be entered forthwith.” (Id., pp. 542-3. Emphasis added.) The result was that there was a valid judgment of divorce, which was unaffected by the reservation of decision on one phase of the case.
Here, of course, the clerk did not note the judgment on the appearance docket. Should this make any difference? We think not. If, as we held in Mentzer, the judge’s minutes were “tantamount to a direction that judgment be entered forthwith” then the clerk was under a positive duty to make such an entry. The clerk’s failure to perform this ministerial duty “as between the parties to the judgment, cannot be said to bind either party to his prejudice.” (Phelps Dodge Copper Products Corp. v. Alpha Construction Co., supra, Syl. ¶ 6.)
In this case there is no doubt that a judgment of divorce was “rendered” on November 8, 1972. The judge testified to it; his minutes show it. As to the divorce and custody, the minutes are in the present tense, not in the future. Even counsel who is now asserting that there was no divorce, asserted at the time — in no uncertain terms — that the parties had been divorced. As we see it, counsel’s position then was correct; his position now is erroneous.
We do not, by our holding in this case, mean to detract from the importance of the “entry” of a judgment in the appearance docket. As to third parties what is reflected in that docket is of vast importance: It is the official record of the case, and when relied upon may well be controlling. As between the parties, “entry” of the judgment is significant in establishing the timeliness of post-judgment motions and notices. But the statute does not say and we are unwilling to hold that the clerk’s failure to perform his duties should have the effect of nullifying the trial court’s solemn judicial act of rendering judgment.
The stake in this case is a widow’s one-half of a sizeable estate. We can easily conceive of a divorce granted in the late forenoon, with a clear and specific direction to the clerk to enter the judgment forthwith. While the clerk is at lunch and before the judgment is “entered,” the husband is struck by a truck and killed. Surely the divorced wife cannot claim a widow’s share simply because the clerk lunched before writing.
We conclude that the divorce of November 8, 1972, was good as between the parties, and that appellee Marviss Penn was not the wife of Forrest Penn, Jr. at the time of his death.
The judgment is reversed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Prager, J.:
This case involves a claimed ademption or revocation of a specific devise of real estate where, during the lifetime of an incompetent testator, his attomey-in-fact acting on his behalf under a power of attorney, sold the real estate to provide funds to support the incompetent testator . The facts in the case are not in dispute and essentially are as follows;
(1) William E. Graham was the father of Ralph E. Graham, Vem K. Graham, Glen D. Graham, and Samuel A. Graham.
(2) On the first day of February 1962, William E. Graham executed his Will and Last Testament which was admitted to probate in the Russell County Probate Court on February 23, 1973. The testator provided in pertinent part in the third paragraph of his will as follows:
“Third: After my just debts and funeral expenses have been paid, I give, devise and bequeath all the rest, residue and remainder of my property, whether real, personal or mixed as follows:
“(a) The West Half (W/2) of the East Half (E/2) of Section Twenty-One (21), Township Fourteen (14), Range Thirteen (13), Russell County, Kansas, to Ralph Graham, also known as Ralph E. Graham, to be his absolute property, . . .
“(b) To Vem K. Graham, my home located at 316 Kansas, Russell, Kansas, which is primarily located in Lot 14, Block 113 and the furniture and furnishings if not needed to pay debts and bequests of the estate, . . .”
In the fourth paragraph of the will the testator bequeathed his residuary estate to his three sons, Ralph E. Graham, Vem K. Graham, and Glen D. Graham, share and share alike.
In the fifth paragraph of the will the testator provided in substance that if any of his sons should predecease him, the proportionate share which would have gone to the son had he been alive at the time of the testators death, should go to the heirs of the deceased son’s body.
(3) On May 8, 1961, William E. Graham by a power of attorney appointed his son, Ralph E. Graham, his attorney-in-fact. Ralph E. Graham served in that capacity from the date of his appointment on May 8, 1961, until August 12, 1965, the date of Ralph E. Graham’s death.
(4) Subsequent to Ralph E. Graham’s death, William E. Graham appointed, his son, Vem K. Graham, as his attorney-in-fact on August 20, 1965. The power of attorney authorized Vem K. Graham to manage all of William E. Graham’s property including the power to sell any real estate belonging to William E. Graham. This power of attorney to Vem K. Graham remained in full force and effect from August 20, 1965, until William E. Graham’s death on January 19, 1973.
(5) William E. Graham was a widower and since 1963 had resided at a rest home at Ellsworth, Kansas. He was approximately 90 years of age when he entered the rest home in 1963. From 1961 until the time of his death William E. Graham was deaf. At his death it was impossible to communicate with him as he could not hear and his eye-sight was extremely limited. After executing the power of attorney to Vem K. Graham on August 20, 1965, the decedent, William E. Graham, ceased to concern himself with business affairs. He was 92 at that time, had been deaf for four years and lacked any real understanding or capacity to take care of his business affairs.
(6) On February 9, 1972, Vem K. Graham, acting for his father under his power of attorney, sold the West % of the East % of Section 12, Township 14, Range 13, to Mr. and Mrs. Floyd W. Brandenburg for the purchase price of $32,000. The proceeds of the sale were deposited in a bank account maintained by Vem K. Graham for William E. Graham.
(7) The purpose of the sale of this real estate was to obtain sufficient money to provide for and pay the expenses of William E. Graham as a resident of the rest home. Vem K. Graham did not confer with William E. Graham regarding this sale of real estate either before or after the completion of the sale as Vem K. Graham deemed it necessary to sell the real estate to support and provide for William. E. Graham. After the sale a portion of the proceeds was used for the payment of bills and expenses incurred in the care of William E. Graham.
(8) William E. Graham died on January 19, 1973. At the date of his death the sum of $21,469.00 was remaining from the proceeds of the sale of the real estate. It was the only cash asset available to the decedent for his care and maintenance at the time of his death.
(9) On January 30, 1973, a petition was filed by Vem K. Graham for the probate of the will of William E. Graham. Vem K. Graham was appointed executor and the will admitted to probate on February 23, 1973.
(10) James E. Graham, the appellee, was the sole and only heir of Ralph E. Graham. By virtue of the fifth paragraph of the will James E. Graham inherited or acquired whatever rights his father, Ralph E. Graham, had under the third paragraph and the other provisions of the will.
(11) On August 8, 1973, James E. Graham, filed his petition for allowance of demand in his grandfather’s estate claiming that he was entitled to the balance of the proceeds from the sale of the real estate not expended in the amount of $21,469.00 in lieu of the real estate which had been specifically devised to his father, Ralph E. Graham, under the third paragraph of the will. This petition for allowance of demand was transferred to the district court of Russell county for determination. In the course of the proceedings the Home State Bank of Russell was appointed administrator de bonis non to represent the estate in this litigation. The controversy in this case is over the right of James E. Graham to the balance of the proceeds of the sale of the real estate which was the subject matter of the specific devise to his father Ralph.
The case was submitted to the court on a stipulation of fact incorporating the factual circumstances set forth above. The district court found in favor of the claimant, James E. Graham, and awarded him the unexpended proceeds from the sale of the real estate. The Home State Bank as administrator de bonis non has appealed to this court on behalf of the estate.
The basic issue presented on this appeal is whether or not the conveyance of the real estate, the subject of the specific devise to Ralph E. Graham, by the testators attomey-in-fact during the testator’s lifetime, resulted in an ademption so as to nullify and render inoperative the special devise to Ralph E. Graham. Ademption is a concept peculiar to the law of wills and was defined in In re Estate of Chevalier, 167 Kan. 67, 204 P. 2d 748, as follows:
"Ademption is the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the testator s estate in his lifetime.” (Syl. f 2.)
The nature of an ademption and its consequences are fully discussed in an excellent opinion by Mr. Justice Kaul in In re Estate of Snyder, 199 Kan. 487, 430 P. 2d 212. Snyder presents a fairly typical example of an ademption of a devise of real estate where the testator during his lifetime voluntarily sells the real estate. In Snyder the will contained a specific devise of a certain ranch to his nephews. Prior to his death the testator entered into a contract for the sale of the ranch. The contract provided for the appointment of an escrow agent and the payment of the purchase price over an extended period of time. The contract had not been fully executed at the time the testator died. The issue presented was whether the devisees named in the will were entitled to the proceeds of the sale in lieu of the land or whether there was an ademption resulting from the sale of the real estate by the testator which had the effect of making the specific devise inoperative. We held that there was an ademption of the specific devise and devisees named in the will were not entitled to the proceeds of the sale. The result reached in Sny der was consistent with Kansas cases under factual circumstances where the testator personally had disposed of specifically devised property during the testator’s lifetime. (In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515; Taylor v. Hull, 121 Kan. 102, 245 Pac. 1026, and other cases cited in the opinion.) As pointed out by the appellee in his brief in this case there is little dispute in this jurisdiction, or any other, regarding whether a specific devise or bequest is adeemed when the testator himself sells the property prior to his death. In the absence of some persuasive evidence of a contrary intention, it is adeemed. When the testator does not personally dispose of the specifically devised or bequeathed property before his death, problems sometimes arise.
In the case now before us if the testator, William E. Graham, while of sound mind and body had personally conveyed away the real estate described in the specific devise contained in the third paragraph of his will, our decision in Snyder would undoubtedly be controlling. Here, however, the factual circumstances are different because the real estate which was the subject matter of the specific devise was not conveyed with the full knowledge and consent of the testator during his lifetime. The conveyance here was made by the testator’s attomey-in-fact by authority of his power of attorney at a time when the testator had no capacity or understanding relative to the sale of his real estate. It is these circumstances which complicate the present case and which distinguish it from the factual circumstances in In re Estate of Snyder, supra.
Practically all of the cases in which ademption was claimed by reason of acts not personally committed by the testator deal with conveyances by guardians, conservators, lunacy committees, or other court appointed officers. It seems logical to us that the same legal principles should apply to a conveyance by an attomey-infact acting under a power of attorney as are applicable to acts of a guardian, conservator, or lunacy committee. An analysis of the cases throughout the United States and England shows that there are many shades of the law of ademption with many conflicting conclusions reached. In a general way it may be stated that there are two distinct schools of thought or lines of authority on the effect of the disposition of specifically devised or bequeathed property prior to the death of the testator by acts other than those of the testator himself. These cases are contained in an extensive annotation on the subject in 51 A. L. R. 2d 770 entitled “Ademption or revocation of specific devise or bequest by guardian, committee, or conservator of mentally or physically incompetent testator.” The original volume is supplemented by additional cases in the later case service and its 1974 supplement. One line of cases takes the position that the conveyance of specifically devised property by the guardian or conservator of an incompetent testator results in an ademption as a matter of law. Under this point of view the intention of the testator is immaterial. This point of view is sometimes denominated the identity theory. It is inflexible and rigidly applied. If the property which is the subject of the specific devise is not in specie a part of the testator s estate at the time of his death, an ademption of the specific devise occurs, period. This rule was followed in the early English cases and in several jurisdictions in the United States. Although there is some difficulty in sorting out the cases, it could reasonably be concluded that the identity theory has been applied in England, Pennsylvania, New York, Vermont, and Canada.
The contrary point of view which is followed in the majority of the jurisdictions in this country has been denominated the intention theory. The intention theory is predicated upon the philosophy that the intention of the testator should control. If property which is the subject of the specific bequest or devise is sold by another person without the knowledge and intention of the testator, an ademption of the specific bequest or devise does not take place as to the unexpended proceeds of the sale. The intention theory has become the modem rule in this country. The annotation in 51 A. L. R. 2d cites cases from the following jurisdictions which support the intention theory: New Jersey, New Hampshire, Missouri, Michigan, Illinois,, Virginia, Ohio, and in the volume of later cases California, Florida, Ohio, Idaho, Iowa, Massachusetts, North Carolina, and Oregon. In England the earlier rule was changed by statute in 1890 to adopt a position in fine with the intention theory. (Halsbury s Statutes of England, 3rd ed., Vol. 25, § 107, p. 136 [Mental Health Act 1959].) It. appears that Pennsylvania has also gone over to the intention theory. (Irwin Estate, 23 D. & C. 2d 33.) The intention theory is adopted in the Uniform Probate Code, Section 2-608.
It should be emphasized that where the property is conveyed by the guardian of an incompetent testator, an ademption does result to the extent of the proceeds of the sale which have already been expended. It is only the unexpended balance of the proceeds which may pass in lieu of the conveyed property under the specific bequest or devise. In 6 Page on Wills, 3rd ed., Ademption, § 54.18, the present status of the law in the United States is declared to be as follows:
“In the United States a sale, collection, and the like by the guardian of an insane testator works an ademption as far as the proceeds of such sale and the like have been expended for the benefit of testator. If the proceeds of such sale, collection, etc., have not been expended for the benefit of the testator and can be traced, it is generally held in the United States that the sale, collection, and the like by the guardian does not adeem a specific devise or legacy; and that the devisee or legatee takes the proceeds as far as they can be traced. The act of a guardian in withdrawing the interest on a fund from a bank, or in collecting testator’s share of the estate of another, or in selling realty for the purpose of reinvestment, does not adeem a specific bequest or devise of the property which the guardian has thus sold or collected.”
The pitfalls of the identity rule are pointed out in the same section as follows:
“The results of the rule that sale, collection, and the like by guardian of an incompetent person operates as an ademption have been very unsatisfactory. A guardian who is hostile to one of the beneficiaries may adeem the gift to him by a sale of the property, or by collection of a debt. If he is friendly to ,one to whom a general gift is made or to whom a general residuary gift is given, he may increase the amount of such gift by converting the property into the form which is given to such beneficiary. . . .”
In this case the appellant, administrator de bonis non, takes the position that this court has heretofore adopted the identity theory by virtue of the following language in In re Estate of Snyder, supra, which quotes Atkinson on Wills (2d Ed.), Ademption,, § 134, as follows:
“A testamentary gift of testator’s specific real or personal property is adeemed, or fails completely, when the thing given does not exist as part of his estate at the time of his death. The doctrine now generally applies regardless of the intention of the testator, . . .” (p. 492.)
We do not take such a narrow view of our decision in Snyder. Immediately after the above quotation the opinion on page 493 goes on to say that the question of whether or not a disposition by a testator of the subject matter of a specific bequest has worked an ademption of the bequest must be determined in the light of facts and circumstances existing at the time of testators death. As pointed out above Snyder involved a contract for the sale of the land described in the specific devise entered into by the testator himself during his lifetime. We do not have in Snyder the question of the conveyance of property by the guardian or an attomey-infact of an incompetent testator. We construe Snyder to hold that the question of whether or not a disposition by a testator of the subject matter of a specific bequest results in an ademption of the bequest must be determined in the light of the facts and circumstances existing at the time of the testators death. We do' not construe it as holding that in all cases the intention of the testator is completely immaterial and is not to be considered in individual cases as they arise. In our judgment the result reached in Snyder does not control the ultimate disposition in this case.
In arriving at a decision in this case we believe that it would be helpful to consider In re Estate of Elliott, 174 Kan. 252, 255 P. 2d 645. There the testator devised all of his real estate including a farmhouse and building to his children. The wife consented to the will and was herself the beneficiary of the residue of his property. Thereafter, the farmhouse and buildings were destroyed by a tornado which also resulted in the testators death some hours after the destruction. There resulted litigation between the wife and children over which was to receive the proceeds of the insurance policy upon the buildings. The wife contended that the destruction of the improvements in the testator’s lifetime resulted in a partial ademption of the devise to the children. She argued the identity theory contending that the insurance proceeds were personal property, not real property, and that she was entitled to them under the residuary clause. We held that there was no ademption and that the children were entitled to the insurance proceeds in lieu of the buildings which had been destroyed. The rationale of the decision was that an equitable conversion took place and the insurance proceeds stood in place of the buildings. We pointed out that the theory of equitable conversion is a fiction invented by courts of equity in carrying out the purposes of the testator, and it should be applied with that effect in view. We concluded in Elliott that the contention of the widow that an ademption should be found violated the obvious intent of the testator and general equitable principles. It is clear that the rationale of Elliott is consistent with the intention theory on ademptions.
We have concluded that the trial court was eminently correct in holding that the specific devise was not adeemed under the facts and circumstances of this case. We hold that where following execution of his will a testator becomes incompetent and his conserva tor or attorney-in-fact acting under a power of attorney sells the property which is the subject matter of a specific devise and a portion of the proceeds from the sale of the property remains in the hands of the conservator or attomey-in-fact at the time of the testator’s death, an ademption ordinarily does not take place. The unexpended proceeds of the sale are impressed with a trust in the hands of the executor and on distribution of the estate should be paid to the devisee in accordance with the specific devise contained in the will. We adopt this rule not only because of the fact that it represents the rule which is followed in the overwhelming majority of the jurisdictions in this country but also because we consider it the better reasoned rule and more in line with our prior decisions which give supreme importance to the intention of a testator in determining how his property should be distributed on his death.
The judgment is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an action for damages resulting from an automobile collision wherein Mrs. Lenora Stone (defendantappellee), while in the course of her employment with Stone Sand Company (defendant-appellee), collided with the rear of an automobile driven by and belonging to Mrs. Carol Hallett (plaintiff-appellant). The suit was tried in the Barton County District Court before a jury which returned a general verdict in favor of the defendants.
The points presented on appeal pertain to the giving of instructions, and the overruling of the plaintiffs motion for judgment notwithstanding the verdict.
The testimony of Mrs. Hallett and Mrs. Stone establish the material facts relevant to this appeal.
The accident occurred on June 8, 1971, in Great Bend, Kansas, in the 600 block of Washington Avenue approximately 123 feet south of Seventh Street. A railroad track apparently crosses Washington just north of the Seventh Street intersection. The plaintiff was driving south on Washington Street in her 1970 Chevrolet station wagon about 30 m. p. h. and followed approximately one and one-half car lengths behind a third vehicle. The defendant Stone, who was driving a 1966 Mercury station wagon, followed approximately one-half block behind the plantiff and was traveling 30 m. p. h.
The plaintiff testified the third vehicle (whose driver was not a party in the lawsuit) which preceded her made an abrupt left turn without using “blinker lights or anything” into an alley located between Seventh and Sixth Streets. On direct examination the plaintiff testified that when the third vehicle suddenly turned left, she applied her brakes in order to keep from hitting the third vehicle, but that her tires did not skid and she did not hear any screeching of tires before she was struck from the rear by the vehicle driven by the defendant Stone. The plaintiff also stated she had not been aware that the defendant Stone’s vehicle was behind her. According to the plaintiff and her husband, there was nothing wrong with their vehicle on the day of the collision and the brake lights were working.
On cross-examination portions of a prior deposition were brought out wherein the plaintiff stated that when the third vehicle turned left there was no room for her to pass on the right because of high curbing, so she had to put on her brakes to avoid hitting the third vehicle and in the process her car skidded.
The plaintiff further stated her car had come to a stop and was standing still when she was struck from the rear by the Stone vehicle, and also that she heard the tires squeal on the Stone vehicle before the collision. The plaintiff stated in her deposition her vehicle was still sliding when the third vehicle was turning left, and that she slid past the point where the third vehicle began its turn.
The defendant Stone testified that on the date of the accident she was employed as an office manager and bookkeeper for the Stone Sand Company, and at the time of the collision she was returning from the post office where she had picked up the company mail. The defendant Stone said that as she approached the scene of the accident she was traveling about 30 m. p. h. and trailed the appellant, who was moving about the same speed, about one-half of a block. The defendant Stone further stated that after she crossed the railroad tracks and while she was crossing Seventh Street she noticed the plaintiff’s automobile was stopped. The defendant Stone did not observe the plaintiff’s vehicle decelerate from 30 m. p. h. to a stopped position, and she did not see any tail lights or arm signal indicating the plaintiff’s vehicle was stopping. After realizing the plaintiff’s car was stopped, the defendent Stone hit the brakes but was unable to stop before striking the plantifFs vehicle. The defendant Stone could not avoid colliding with the plaintiff’s vehicle by turning to the right because of the curb along Washington Street. The defend ant Stone further testified there was no obstruction to visibility between her vehicle and the plaintifFs vehicle.
After due deliberation the jury returned a verdict in favor of the defendants. Post trial motions were overruled and appeal has been duly perfected by the plaintiff from a judgment entered on the verdict. We shall continue to refer to the parties to the accident as plaintiff and defendant Stone.
Over the plaintiff’s objection the trial court instructed the jury that:
“The driver of a vehicle has a duty to keep a lookout to the rear when the movement of his vehicle may affect the operation of a vehicle to the rear.”
The foregoing instruction is taken from P. I. K. [Civil] 8.03B. The appellant assigns the giving of the instruction to the jury as reversible error.
The trial court gave P. I. K. [Civil] 8.03A as instruction to the jury, which states:
“It is the duty of the driver of a motor vehicle on a public highway to keep a proper lookout for vehicles and objects in his line of vision which may affect his use of the highway.
“The law presumes that a driver will see those things which a person would and could see in the exercise of ordinary care under like or similar circumstances.”
The authors of P. I. K. state on page 156, Notes on Use, that P. I. K. 8.03A should be given in virtually all automobile negligence cases as part of the common law duty of a driver, and that it covers those situations requiring lookout ahead and laterally. The authors also state that P. I. K. 8.03B should be given, along with P. I. K. 8.03A, in those cases involving the duty of a driver to lookout to the rear.
Kansas does not have a specific “lookout to the rear statute,” and counsel for the respective parties have cited 'this court to no Kansas cases on the point.
The pattern instruction set forth in P. I. K. 8.03B relies upon 1 Blashfield Cyclopedia of Automobile Law and Practice, § 685 (1948), wherein it is stated:
“The duty of a driver to look ahead is paramount, though he must use reasonable care to ascertain whether oars are coming behind if intending to change his course. . . .” (Emphasis added.)
In the more recent edition, the counterpart of this section states at 2 Blashfield Automobile Law and Practice, § 104.7 (3rd Ed. 1965):
“A motorist does not have the duty, under all circumstances, to keep a lookout to the rear, since he is entitled to rely on the exercise of ordinary care by those approaching from the rear. He may be required to maintain a lookout for a vehicle approaching from the rear when the presence of such vehicle is known, or if he is intending to change his course. . . .” (Emphasis added.)
In Vanderheiden v. Clearfield Truck Rentals, Inc., 210 N. W. 2d 527 (Iowa, 1973), the Supreme Court of Iowa bad before it a factual situation in which the plaintiff pulled from the shoulder of the road into the lane of traffic and into the path of the defendant, who was driving a truck. The defendant’s attention was momentarily diverted while 'locating a cigarette and he did not observe the plaintiff drive into his lane of traffic. When he did notice the plaintiff it was too late to avoid the resulting rear-end collision. The court held the defendant’s requested instruction concerning the plaintiff’s duty to lookout to the rear, before pulling into the lane of traffic, should have been given to the jury and that its refusal to give the instruction was reversible error.
We hasten to add that reference to the Vanderheiden case should not be construed as an implied approval by this court of the cases cited by the Iowa Supreme Court therein.
The instruction in this case has no support in the evidence. The plaintiff 'did not execute the type of maneuver under which the duty arises. There is absolutely nothing in the evidence to indicate the plaintiff had any opportunity to look to the rear. Neither does the evidence suggest that the exercise of due care required such lookout. The plaintiff was forced to stop because of an illegal left turn by the driver in front of her. She could not turn aside to avoid the 'collision because of a high curb, and she had her vehicle under such control as to stop it within the range of her- vision to- avoid striking such vehicle. The defendant Stone following one-half block behind in her vehicle, with an unobstructed view, was in a position to observe the entire situation confronting the plaintiff.
As given in this case the instruction would place a burden on drivers to keep a lookout to the rear at all times, which clearly is not the law. On the facts in this case the instruction is not in accordance with the primary duty of a driver to maintain a lookout ahead, and the right of eveiy motorist to rely on the exercise of ordinary care by the driver behind him.
Even if it be assumed the plaintiff failed to keep a proper lookout to the rear, that fact played no part whatsoever in causing the accident. Had she been fully aware of defendant Stone’s presence, the plaintiff conld not have acted differently. Moreover, since the defendant Stone was a half block behind the plaintiff, the plaintiff could assume the defendant Stone would exercise ordinary care and come to a stop. If there was 'any negligence in this regard, it could not have been a proximate cause of the accident. It was not a proper issue in the case to be submitted to the jury by an instruction.
The prejudicial effect of the instruction is apparent. The impression given the jury by the instruction was that the plaintiff had the same duty to keep a lookout to the rear for the defendant Stone, •as the defendant Stone had to keep a lookout to the front for the plaintiff. This would lead to the conclusion that the plaintiff was equally responsible for the accident, and thus contributorily negligent. The instruction suggests to the jury that the plaintiff was negligent in not looking to the rear before stopping, even in these extreme circumstances. In our opinion the giving of the “lookout to the rear” instruction was prejudicial to the plaintiff.
The plaintiff next asserts as error the giving of instruction No. 3 which covers the method of giving signals. This instruction was taken verbatim from P. I. K. 8.26, which is simply a restatement of K. S. A. 1973 Supp. 8-549 (a) (b) (c). The substance of 'the instruction is that either hand signals or mechanical signals must be given when stopping or slowing suddenly.
Both the plaintiff and her husband testified that the brake lights on her vehicle were working and the car was only a year old. The only testimony given by the defendant Stone on the point was that she saw no signal. The defendant Stones testimony does not go to the issue as to whether or not the signal was given. On the basis of her testimony the defendant Stone admits she failed to keep a proper lookout and did not see the signal. Her testimony is:
“Q. As you were headed south and approaching where the accident occurred you were aware, were you not, of Mrs. Hallet’s car ahead of you proceeding in a southbound direction?
“A. Yes.
“Q. And she was going what, around 30 miles an hour?
“A. That is what she said.
“Q. Now, I think you indicated that when you first noticed her you were about a half a block behind her?
“A. When I first noted her you say?
“Q. Yes, noticed her car.
“A. Yes, somewhere in there, a half a block.
“Q. And you were proceeding about 30 miles an hour yourself at that time?
“A. Yes.
“Q. Now, as you approached the area where the accident occurred as I understand it she was proceeding at 30 miles an hour, the last you noticed her, and the next time you saw her she was stopped?
“A. That was the point that I originally said. I don’t know whether she was stopped or not.
“Q. Let’s go through what your testimony was about this point in your deposition, if we may. At page 11 I asked you this series of questions starting at line 18: ‘Q. —Well, she stopped you say? A. —Well, I seen the car had stopped, but there was no brake lights whatsoever. Q. —Her car had stopped? A. —That's right. Q. —How far — When you saw her car had stopped or was stopping, how far to the north of her car were you when you first noticed it? A. —This is the point I have argued with myself, how far I was from her when I actually decided she had stopped. Q. —Did you see her slowing down? A. —No. Q. —She had been going thirty? A. —This is true. Q. —The next thing you noticed she was stopped? A. —That’s right. Q. —You never saw anything in between? A. —No.’ That is the way your testimony was at that time, was it not?
“A. True, but at the time of the deposition I still didn’t know some of these answers.”
a #90»
“. . . ‘Q. —Well, what are you saying, you had seen her car before that because you had been following it? A. —That’s right. Q. —You don’t know what distracted your attention during the time that she decreased her speed from 30 miles per hour until the time she stopped, that interval except that you didn’t notice it? A. —Now, what was that again? Q. —You never saw her stop, you just saw her stopped? A. —This is true; I never saw her stop. . . .’”
s « * a #
“Q. Tell the Court and jury if you were driving and keeping a proper lookout can you see a car slowing down ahead of you ordinarily?
“A. Yes.”
The foregoing testimony was given by the defendant Stone in her direct testimony as a witness called by the plaintiff. On redirect examination the defendant Stone testified:
“Q. Mrs. Stone, first of all, the car that was ahead of her that made a left turn, Mrs. Hallett did not hit it, did she?
“A. No.
“Q. Apparently she saw and reacted and stopped without hitting it?
“A. The car turned left out of her way.
“Q.. You don’t know whether it turned out of her way or whether she stopped at that point because you didn’t see those events happen?
"A. I did not see them, she told me the car turned out of the way.
“Q. You told the Court and jury that as far as Mrs. Hallett is concerned you were half a block behind her and you were going 30 and she was going 30?
“A. Yes.
“Q. And then are you saying that the next time you noticed her that you can recall instead of being a half a block behind you were going 30 and she was going 30 and she was stopped or practically stopped, is that the sum and substance of it?
“A. Yes.
“Q. What I am getting to is this, you are telling the Court and jury that you were driving down Washington in broad daylight and you never saw her car as it slowed down or decelerated from a speed of 30 miles an hour down through 20, 15, 10, or 5 miles an hour to where it was practically stopped, did you?
“A. I guess not.
“Q. So what you are saying is back here you see it at 30 miles an hour, the next time you see it in your line of vision it is down here stopped, is that right?
“A. I guess.
“Q. Mrs. Stone, was there any obstruction to visibility between you and Mrs. Hallett’s car?
“A. No.”
The foregoing must be construed as an admission by the defendant Stone that she was not keeping a proper lookout where her vision to the front of her on the street she was traveling was unobstructed; that she was following the plaintiffs vehicle one-half block behind and never saw the plaintiff stop her vehicle, or the situation confronting the plaintiff on the street, and that when she first saw the plaintiff s vehicle stopped it was too late to avoid the accident.
This court has frequently recognized that admissions made by a party are the strongest kind of evidence. TTie proposition of law to be applied under these circumstances has been stated as follows: A verdict cannot be upset if there is any evidence in the record to support it, where such issue is clearly presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross-examination of the party. (Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305; Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 399 P. 2d 822; Bellport v. Harder, 196 Kan. 294, 411 P. 2d 725; and Schoof v. Byrd, 197 Kan. 38, 415 P. 2d 384.)
The only conclusion to be drawn from the defendant Stone’s admission is that no matter what kind of signal the plaintiff may or may not have given, the defendant Stone would not have seen it. The last time the defendant Stone looked the plaintiff was going 30 m. p. h. one-half block ahead of her, and when the defendant Stone looked again the plaintiff had already stopped. Even if it be assumed there was a failure to give a proper signal, such negligence on the plaintiff’s part could not have been a proximate cause of the accident. It was not a “substantial factor” in bringing about the harm. (Haggard v. Lowden, 156 Kan. 522, 134 P. 2d 676.) Neither was it an act without which the injury would not have occurred. (Gard v. Sherwood Construction Co., 194 Kan. 541, 400 P. 2d 955 and Stevenson v. City of Kansas City, 187 Kan. 705, 360 P. 2d 1.) This accident would have occurred regardless of the signal given by the plaintiff. In Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827 this court said:
“Where the sudden decrease in the speed of a vehicle is actually observed without a signal, the party observing the decrease in speed has the same notice a signal would have imported if given at that time, and the absence of a signal cannot be said to have been tire proximate cause of the collision.” (Syl. ¶2.)
In the case at bar the defendant Stone testified, when she first observed the plantiff’s vehicle it was already stopped, but with no brake light on. At the time the defendant Stone observed the plaintiff’s vehicle she was fully aware that the plaintiff s vehicle was stopped. She had the same notice a signal would have imported.
Cases holding that the failure to give the required signal of intention to stop cannot be the proximate cause of a rear-end collision, where for various reasons the signal would not have been seen or heeded by the following driver if given, are collected in an annotation in 29 A. L. R. 2d 5, 77.
Even assuming the plaintiff negligently failed to give a proper signal of her intention to stop in the instant case, such failure could not have been a proximate cause of the collision, and instruction No. 23 should not have been given.
The plaintiff next contends the trial court erred in giving the “sudden emergency” instruction (P. I. K. 8.81).
The trial court in its memorandum opinion expressed the belief that it was not shown conclusively the defendant Stone brought on the emergency, and if she did, the jury in the last sentence of the instruction was told such person cannot avail himself of the emergency doctrine.
The emergency instruction states that a person confronted with an “emergency” is not held to the same standard of care that he would be required to exercise had he tíme fox reflection. Under such 'circumstances he is required to exercise such care as an ordi nary person would exercise when confronted by a like emergency under circumstances then existing. The rule of sudden emergency cannot be invoked by a person who brought the emergency upon himself by his wrong or did not use ordinary care to avoid it. (Gardner v. Welk, 193 Kan. 445, 393 P. 2d 1019.)
If the defendant Stone was confronted with an emergency, it was of her own making. By her own admission she did not see the plaintiff’s vehicle until 'after the plaintiff had slowed and stopped, and although she had been following a half block behind, she was unable to stop before colliding with the plaintiff’s vehicle. The admitted negligence of the defendant Stone preceded and created the situation she faced.
This court has heretofore questioned the giving of the emergency instruction in Mesecher v. Cropp, 213 Kan. 695, 518 P. 2d 504. The recent decisions of this court were analyzed therein and the propriety of giving of the emergency instruction was fully discussed. For the reasons stated therein we conclude the giving of the emergency instruction on the facts presented by the record herein was erroneous. (See the comment in P. I. K. 8.81, 1975 Supplement.)
The final point asserted by the plaintiff is that the trial court erred in overruling her motion for judgment notwithstanding the verdict.
The propriety of granting or denying a motion for a judgment notwithstanding the verdict is tested by the same rule on appeal as in the trial court. The trial court is required to view the evidence and inferences therefrom most favorable to the party against whom the motion is made. The appellate court must do the same. (Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 498 P. 2d 1309, and cases cited therein.)
In Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783, the court stated:
“. . . [The driver of a motor vehicle] has a duty to look ahead and see what there may be within his view which may affect his use of such street or highway and to keep a lookout for other users of such street or highway, and he is in law presumed to have seen and heard that which he could have seen and heard had he kept a proper lookout and exercised ordinary oare and caution. His failure to use that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar circumstances is negligence as a matter of law. . . .” (pp. 50, 51.)
Under the foregoing rule and the evidence in this case the defendant Stone has admitted negligence by failing to maintain a proper lookout and no mitigating circumstances were disclosed for that failure. As a matter of law, this constitutes negligence which is a proximate cause of the collision.
The only remaining question to be determined is whether the plaintiff’s conduct as disclosed by the evidence would support a finding by the jury of contributory negligence.
According to the evidence in the case the plaintiff was following about one and one-half car lengths behind another vehicle which suddenly and without warning made a left turn into an alley. The plaintiff reacted quickly and came to a stop, avoiding a collision with that vehicle. She then heard the defendant Stone’s tires squealing and was struck from the rear. We have already discussed the subject of the failure of the plaintiff to give a proper signal and the failure to keep a lookout to the rear, and have concluded the plaintiff was not negligent in these respeots, but, even if she were, such negligence could not have been the proximate cause of the collision. It could not be successfully argued the plaintiff was negfi.gent merely in stopping to avoid an accident. The only possible theory upon which the plaintiff could be held to be negligent is in 'following the vehicle in front of her too closely.
K. S. A. 8-543 (a) provides that a driver “shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” It is a well established rule that a driver must operate his vehicle so that he can safely stop within the distance he can clearly see vehicular traffic ahead of him. (Hill v. Hill, 168 Kan. 639, 215 P. 2d 159; and see, Anno. 85 A. L. R. 2d 613, 621.) Here the plaintiff was clearly in full compliance with the rule.
In addition, a driver has the right to assume other drivers will exercise due care. (Carpenter v. Strimple, 190 Kan. 33, 39, 372 P. 2d 571.) Accordingly, a following driver has only to anticipate the normal exigencies of traffic and is not bound to anticipate unusual contingencies. (Anno. 85 A. L. R. 2d 613, 623.) Under normal conditions of 'city traffic moving at moderate speeds, the appellant was in control of her vehicle even in the unexpected situation which confronted her. She was able to safely stop without striking the vehicle in front of her. Upon this evidence we do not think reasonable minds could 'differ. They would have to find the plaintiff not guilty of contributory negligence.
Counsel for the appellees cite Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P. 2d 990, and quote from it extensively, to support their position that a jury question is presented by the evidence in the case at bar. From our analysis of the evidence these cases can readily be distinguished. In Ecord the court said the “mere presence of a dog upon a through highway is not sufficient as a matter of law to relieve a motorist of all liability for consequences of whatever evasive action he may take in behalf of the dog, but rather that presents a question of fact for the jury to determine.” (p. 528) There the deoedent stopped abruptly for a dog while proceeding with his vehicle in the inside, or passing, lane of traffic on a through highway. The defendant was only fifty feet behind the decedents vehicle changing over from the outside lane of traffic to the inside lane, looking in the rear view mirror for clearance of other traffic approaching from the rear, to avoid a stopped vehicle in the outside lane presumably attempting to turn off the highway at an exit ramp to the right. The situation created by the presence of the dog on the highway, which caused the decedent to stop his vehicle abruptly, was not ascertainable to the defendant who was proceeding in congested traffic. In the case at bar traffic conditions were not congested, the plaintiff was confronted with another vehicle making an illegal left turn in front of her, which created a situation readily ascertainable to the defendant Stone had she maintained a proper lookout while proceeding one-half block behind the plaintiff at the same speed as the plaintiff.
On the record presented in this case the only reasonable interpretation of the evidence is that the negligence of the defendant Stone was the sole and proximate cause of this collision. While the plaintiff acted with such care that she avoided colliding with the vehicle ahead of her, the appellee was so inattentive, she did not see the situation confronting the plaintiff and could not stop to avoid a collision with a vehicle that had been proceeding in the same direction one-half block ahead of her. Accordingly, the district court erred in overruling the plaintiff’s motion for judgment notwithstanding the verdict.
The judgment of the lower court is reversed with directions to enter judgment for the plaintiff on the issue of liability and to try the issue on damages.
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a conviction for aggravated robbery (K. S. A. 21-3427) and two counts of kidnapping (K. S. A. 21-3420). The charges arose out of a robbery of a grocery store in Wichita, Kansas. Defendant claims procedural errors in the trial court, stressing error in admitting a confession.
On November 29, 1973, the Wichita police were summoned to a Mr. D’s grocery store after receiving notification that the store’s silent alaran had been set off. Upon arriving at the store, the police officer observed that a robbery was in progress and he immediately called for assistance. In the meantime, defendant and his accomplice, Johnny Crouch, had forced the store owner at gunpoint to open the safe and turn over its contents. When the robbers realized the police had arrived they both fled to the back of the store. By this time four police officers were at the scene and were able to free the store owner and a customer who had been tied by the robbers. The police then worked their way toward the back of the store where defendant and Crouch were hiding. As the officers moved toward the back, Crouch voluntarily surrendered himself and was taken into custody. With the permission of the police Crouch tried to talk to defendant who was still hiding. Unable to get defendant to give himself up, the police threw a tear gas canister under the double doors of the back room area where it exploded. They attempted to shoot a second tear gas canister into the back room, but it hit the doors and fell to the floor. Approximately five minutes later the defendant succumbed to the effects of the tear gas and surrendered.
Within seconds, defendant was handcuffed and taken outside the store where he was advised of his constitutional rights. After acknowledging that he understood these rights and was willing to talk, the officers elicited statements from defendant relating to the vehicle used in the robbery. Further questioning of defendant took place at the police station shortly thereafter. After signing a written waiver of rights, defendant made a full confession of the crime.
Defendant was arraigned on November 29, 1973, the same day he was arrested. His preliminary hearing was set for docket call on December 5, 1973, and eventually for hearing on December 12,1973. On December 12, defendant requested a continuance which was granted. His case was reset for December 29, 1973, at which time he was bound over to district court.
Prior to his trial, defendant filed a motion to suppress all testimonial evidence that was the result of his in-custody interrogation. A Jackson v. Denno hearing was held and defendant’s motion was overruled.
As defendant’s first point on appeal he contends the trial court erred in admitting into evidence the confessions and statements challenged by his motion to suppress. In support of his claim defendant argues the confession was obtained while he was under the influence of tear gas, and therefore any statements made by him were not freely and voluntarily given. Although defendant does not provide a record of the preliminary proceedings, testimony of various witnesses at the trial is sufficient to dispose of this issue.
It is a general rule of appellate review that error is never presumed on appeal, and the appellant has the burden of establishing affirmatively that error has been committed. (State v. Darling, 208 Kan. 469, 493 P. 2d 216.) When the trial court determines the admissibility of a confession by a defendant, this determination will not be disturbed on appeal if it is supported by competent evidence. (State v. Kimmel, 202 Kan. 303, 448 P. 2d 19.)
To support his contention defendant cites testimony of various witnesses which established tear gas in the store was “fairly thick”; one police officer was taken to the hospital because of its effects, and defendant was affected by the tear gas. On direct examination defendant testified that during the period he was being questioned by the police he was suffering from a running nose, watering eyes, and a headache. The state admits defendant was affected by the tear gas, yet it points out there was no testimony by the defense as to his condition at either of the times defendant waived his constitutional rights.
Whether a confession is freely or voluntarily given depends upon a consideration of the totality of circumstances, and where there is a genuine conflict in the evidence, great reliance must be placed upon the finder of fact. (State v. Harden, 206 Kan. 365, 480 P. 2d 53.) Based on the evidence presented at trial, we cannot say the trial court erred in permitting defendant’s confession to be admitted into evidence.
Defendant objects to the admission of testimony as to a statement made by Crouch at the scene of the crime. On the direct examination of police officer Goens, the following conversation took place:
“Q. Now, after Mr. Crouch was arrested, was there any attempt made to communicate with any other person that might have been in the back of the store?
“A. Yes, sir, Mr. Crouch advised me that he felt—
“Mr. Moulos: I object. I believe that is hearsay, I don’t believe Mr. Crouch is present here.
“The Court: Well, it’s part of the res gestae. It is an exception. The objection is overruled.”
“Q. You may answer.
“A. He advised me that he could talk, or he felt that he could, to the other individual in the back room outside. So, I proceeded to take him to the rear of the store and let him talk to the individual in the back room.
“Q. Was there any answer to his inquiry?
“A. No, sir.”
As the record discloses, defendant objected to the introduction of this statement on the ground it would be hearsay and inadmissible in that Crouch was not present and available for cross-examination. The trial court overruled defendant’s objections for the reason the statement was part of the res gestae and therefore fell within one of the exceptions to the hearsay rule.
Hearsay evidence is defined in K. S. A. 60-460, as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated.” If the testimony is not offered to prove the truth of the matter asserted it is not objectionable as hearsay. (State v. Trotter, 203 Kan. 31, 453 P. 2d 93.) As this court pointed out in State v. Oliphant, 210 Kan. 451, 502 P. 2d 626, the rationale behind the hearsay rule is that when a statement is offered as proof of the fact asserted, we are necessarily interested in the credibility of the out-of-court declarant and should require the statement to be made on the stand subject to the test of cross-examination. When the extrajudicial statement is offered without reference to the truth of the matter asserted, we are no longer interested in the credibility of the declarant and the hearsay objection no- longer applies.
Viewing the challenged testimony in light of these principles we agree defendant’s objection was properly overruled. The testimony was not inadmissible as hearsay evidence for the reason it was not offered to prove the truth of the matter asserted. The only statement of Crouch offered into evidence was that he felt he could talk to the defendant in the back room. From the context in which the testimony was elicited, it is clear the utterances were nontestimonial in character, and offered simply as an explanation of the aotions taken by the police in permitting Crouch to go to the rear of the store and talk to defendant.
Defendant also contends the trial court erred in proceeding with the trial in the absénce of a material witness for the defendant. The record indicates that at the end of defendant’s evidence he requested a recess until afternoon in order to secure the presence of a witness subpoenaed earlier that morning. The trial court granted the recess and sent a deputy sheriff to serve the witness and bring her to court. When the court reconvened, counsel for defendant notified the court he was unable to locate the witness and the defense was ready to rest its case. No further request for a recess or continuance was made by defendant.
The granting of a continuance is within the sound discretion of the trial court. (State v. Williamson, 210 Kan. 501, 502 P. 2d 777; Oswald v. State, 214 Kan. 162, 519 P. 2d 624.) Since defendant did not request a continuance, but indicated to the contrary that he was resting his case, there was no abuse of discretion on the part of the trial court.
Defendant’s final point relates to the timeliness of the preliminary hearing. He states he was denied due process of law in that his preliminary hearing was not held within ten days after his arrest. In support of his argument defendant cites K. S. A. 22-2902, which requires a preliminary hearing be held within ten days of arrest or personal appearance. The state concedes defendant was arrested and arraigned on November 29, 1973, and the preliminary hearing was scheduled for December 12, 1973, at which time defendant requested a continuance. In a series of cases we have held that any claimed irregularities pertaining to the preliminary examination and/or preliminary hearing are waived when a defendant represented by counsel enters a plea of not guilty and goes to trial on the information. (State v. Freeman, 198 Kan. 301, 424 P. 2d 261; Portis v. State, 195 Kan. 313, 403 P. 2d 959; State v. Osburn, 171 Kan. 330, 232 P. 2d 451; State v. Wallgren, 144 Kan. 10, 58 P. 2d 74; and State v. Perry, 102 Kan. 896, 171 Pac. 1150.) We see no reason to depart from this rule. The purpose of a preliminary hearing is to determine whether there is probable cause to bind a defendant over for trial, and any claim of error based on a dilatory prehminary hearing cannot be raised after trial and conviction of the accused.
No error is shown and the judgment of the trial court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Schroeder, J.:
These are consolidated actions for wrongful death arising out of a collision between an automobile in which the plaintiffs’ .decedents were passengers and a freight train. The jury rendered a verdict in favor of the plaintiffs, and the railroad has duly perfected an appeal.
The principal points on appeal concern whether there was substantial competent evidence that the railroad crossing was unusually dangerous; whether the trial court erred in instructing that railroad crossbuck signs shall be erected on the right-hand side of each approach to the crossing; and whether the trial court erred in failing to rule as a matter of law on the issue of proximate cause.
The accident in question occurred on June 3, 1971, at the intersection of railroad tracks belonging to and maintained by St. Louis-San Francisco Railway Company (defendant-appellee, here inafter referred to as Frisco) and Greenwich Road, located northeast of Wichita, Kansas. The decedents, Debrah K. Waits and Franklin D. Bedigrew and three other persons were passengers in a 1967 Pontiac, owned and apparently driven by Randall L. Wells, and were proceeding north on Greenwich Road. At approximately 9:06 p. m. Central Daylight Savings Time, the Wells vehicle struck the side of an eastbound Frisco freight train (train No. 330) and all occupants of the automobile were killed. The point of impact was approximately 350 feet back of the lead engine at a coupling between the fourth and fifth freight cars. At the time of impact the emergency braking system of the train automatically became operative.
The evidence disclosed that Greenwich Road is a oounty road paved with blacktop which runs north and south and intersects Frisco’s tracks at right angles. An entrance to Beech Aircraft property is located near the intersection in question. The posted speed limit at the time of the accident was 55 m. p. h. Both the tracks and the road are straight and level in the area of the crossing. The crossing is located just outside the city limits of Wichita to the northeast. The only warning sign maintained by Frisco at the crossing in question was a crossbuck located on the northwest corner of the intersection. The location of the crossbuck was such that it could not be seen by persons approaching from the south when a train was occupying the crossing. A standard yellow and black highway railroad crossing sign was located 475 feet south of the crossing on the right side of the road for traffic approaching the crossing. This sign was erected and maintained by the county road authority.
The conditions of light which existed at the time of the collision were disputed. Sunset occurred at 8:47 p. m. on June 3, 1971. Climatological records showed that at the time of the accident there was 80% cloud cover.
The patrolman of the Sedgwick County Sheriff’s Department in charge of the investigation of the accident was J. B. Peters. Peters received a call concerning the accident at 9:12 p. m. when he was patrolling in a section of northeast Wichita. He immediately departed for the scene of the collision, and testified that he turned on his headlights because it was too dark to drive without them. Peters arrived at the scene at 9:19 p. m. and, according to him, visibility was such that lights were necessary. As to the visibility, Peters further testified that under the light conditions as he recalled them, he could not see the train on the tracks from a distance of 500 feet. From a distance of 200 feet he could see the illuminated caboose which was on the west edge of the crossing, however, he did not think he would have been able to see the fourth or fifth freight cars because they were not illuminated.
Peters further testified that as one proceeds north on Greenwich Road at a point 556 feet south of the crossing there is a line of shrubbery and small trees running along private property adjacent to the road which obstructs vision to the northwest, and that at approximately 475 feet south of the crossing there were more shrubs and small trees, etc. The witness identified several photographs showing intermittent obstruction of vision to the northwest when one approaches the crossing. Peters’ measurements indicated the Wells automobile laid down 110 feet of skid marks, and the remnants of the vehicle came to rest 130 feet off the edge of the roadway.
The Sedgwick County Sheriff, Johnnie Darr, arrived on the scene of the accident about 9:15 p. m. He testified the light conditions were bad that night and that it was a dark night. Darr further testified that a very short time after the June 3 accident under weather, shrubbery and lighting conditions the same as the night of the accident, he personally tested the visibility from a vehicle 470 feet south of the crossing when a Frisco train was passing on the crossing and that he could not see the train from that point, but that he could see the train from a distance of 200 feet with his bright headlights in use. According to the opinion of Darr with 110 feet of skid marks on the highway the driver of the vehicle started for the brakes 164 feet back of the crossing. He acknowledged that perception time precedes reaction time.
The Wichita City Traffic Engineer, Paul Graves, testified on behalf of the appellees. Graves stated that it is the responsibility of the railroads to place crossbuck signs, signals and gates at the crossings. The witness testified that in determining standards applicable to maintaining a crossing it is necessary to look to the Uniform Manual on Trafile Control Devices for Streets and Highways, which has been adopted in Kansas by the State Highway Commission. Graves read from a section of the manual which provides in substance that a crossbuck sign shall be erected on the right-hand side of the roadway on each approach to the crossing, and that the sign shall be placed within a specified distance from the road.
At the appellees’ request Mr. Graves investigated the Greenwich crossing. His observations were that there are no railroad crossing lights, flashing lights or street lights at the crossing and that as one travels north on Greenwich Road approaching the crossing there is a line of trees and shrubs which makes it impossible to see across the southwest quadrant of the crossing. He further stated that in determining the time and distance necessary for a person to stop one consideration is the perception time of the driver, that is, the time necessary to perceive danger before taking an action to begin braking. Furthermore, perception time is related to the placement of the warning or control device. The nature of the warning or control device and the amount of illumination of a crossing have a significant effect on a driver’s perception. Assuming the Wells vehicle was traveling 55 m. p. h., Graves testified that 207 feet would be required for the driver to perceive danger and that another 180 feet on dry pavement would be necessary in order to react to the danger and stop the vehicle, making a total stopping time of 387 feet. The witness stated that under average nighttime conditions an average driver did not have adequate safe stopping sight distance at the Greenwich crossing. It was his opinion that Frisco had not maintained the standards of traffic safety at the Greenwich crossing as he understood them because there was not a crossbuck provided on the approach to the crossing from the south, and the crossbuck on the approach from the north was not reflectorized. Graves also recommended that flashing lights or some type of illumination be used at the crossing.
On cross-examination, Graves stated that the highway railroad crossing sign (located 475 feet south of the crossing next to the northbound lane) warns a motorist of a nearby railroad crossing, but does not indicate that a train is coming.
Mr. David Razak, a professional consulting engineer, also testified on behalf of the appellees. Based on his investigation of the accident, Razak concluded the Wells vehicle was traveling between 52 m. p. h. and 58 m. p. h. The total expected stopping distance of the Wells vehicle under conditions of a locked wheel skid is 205 feet. This figure presumes a three-fourths second reaction time. The witness stated that perception time was a factor in determining the amount of time necessary to stop the automobile on the night in question.
Razak calculated that the Frisco train entered the west side of the Greenwich crossing 6.8£ seconds before the collision; and at the time the train entered the crossing the Wells vehicle was 518 feet south of the crossing.
The only other testimony introduced by the appellees was a deposition of George E. Warfel, the chief engineer for Frisco. Warfel was asked where he would place crossbucks at an intersection such as the one involved in the instant case, and he answered that one set of crossbucks would be required and the one for northbound traffic would be placed on the right side of the highway. Warfel subsequently stated:
“We try to put the crossbuck in such a position to conform with state laws and I am not familiar in detail with the state law of Kansas. Page M-l-2 of Standard Plans of Frisco Railroad Roadway Track and Structures, which is a manual published by the Frisco Railway Company, states that crossbucks should be placed at right angles to the highway.
“The railroad does not subscribe to the standards contained in the Uniform Traffic Control Devices for Streets and Highways, the reason for this being that we must place our crossbuck signs in accordance with state laws and these state laws vary from state to state.
“If the roadway we are talking about is for two lane traffic, I believe this requires only one crossbuck and in this case we might have it on the other side of the crossing, depending on which side of the crossing would give you the best view, which would be where we would get the best visibility.”
At the close of the appellees’ evidence, the appellant moved to dismiss the case and for summary judgment for the reason the appellees failed to prove by competent substantial evidence that the Greenwich crossing was unusually dangerous and obscure. The trial court’s ruling on this motion was reserved, and the appellant proceeded with its evidence.
It is unnecessary for us to recite the appellant’s evidence in any detail. Testimony was given on behalf of appellant by members of the crew working on the train involved in the accident to the effect that at the time of the collision it was still light and visibility was good. Various photographs purporting to depict the crossing under conditions as they existed on the night of the collision were also submitted into evidence.
Three engines were utilized to pull 46 cars. The engines were reddish-orange in color with white sides and yellow stripes in front. The headlights were burning, as they do day or night, and the engineer testified he sounded a whistle a quarter of a mile before reaching the crossing and continued to sound it until the front of the engine was through the crossing. A bell on the engine was also ringing during the same time. The speed of the train as it approached and passed through the crossing was approximately 35 miles per hour.
The crew riding in the engine did not see the Wells vehicle approach the crossing and were not aware of the collision until notified of it by the conductor, who was riding in the caboose and who radioed the engineer, after the emergency brakes were activated.
Two of the Frisco employees working on train No. 330 rated the Greenwich crossing as “poor”. Their reason for such a rating was because vision of the road from west of the crossing is obscured by shrubs, trees, buildings, etc.; however, they stated there was nothing to obstruct the view of a train in the crossing by a person approaching the intersection on Greenwich Road.
The Sedgwick County Engineer, Grover Cleveland McClure, testified on behalf of the appellant. He stated that at 10:00 p. m. on the evening following the collision between the Wells automobile and the train, he drove out to the Greenwich crossing when a train was crossing. He testified he was able to see the headlight of the engine when he was 1,000 feet south of the crossing. However, he knew the time the train was due to cross and was looking specifically for it.
Subsequently, in the course of his duties as county engineer, McClure had occasion to grade the Greenwich crossing. The criteria used for grading the crossing took into account the volume of highway traffic as compared to the number of trains and visual obstructions (which included shrubs in the northwest quadrant of this crossing as well as those in the southwest quadrant previously discussed). Considering these factors the witness rated the Greenwich crossing as “more dangerous than the normal crossing.” He further said: “And also because of its rating we have requested that flashing lights be installed.”
At the close of all the evidence the appellant moved for a directed verdict. The trial court overruled that motion, and the previous motion to dismiss, on the ground that there was substantial competent evidence from which the jury could base a finding that the Greenwich crossing was an unusually dangerous crossing.
Thereafter the jury returned a verdict in favor of the appellees. J. R. Waits and Joan Fay Waits were awarded damages in the amount of $12,500, and a similar award was made in favor of Mr. and Mrs. Floyd L. Bedigrew. The appellant’s motion for judgment notwithstanding the verdict was overruled and this appeal followed.
The appellant first contends the trial com! erred in failing to rule as a matter of law that there was no substantial competent evidence introduced by the appellees to disclose that the Greenwich Road crossing in question was unusually dangerous.
Throughout the trial the appellees sought to prove that the Greenwich Road crossing was unusually dangerous and that the appellant failed to take additional precautions for the protection of travelers on the road which was the cause of death of the appellees’ decedents.
Whether a railroad crossing is more than ordinarily dangerous is generally a question of fact, although the sufficiency of the evidence to establish that fact remains a question of law. (Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, 495 P. 2d 930; and Jennings v. Missouri Pacific Railroad Co., 211 Kan. 389, 506 P. 2d 1125.)
Where unusually dangerous conditions prevail at a railroad crossing the unusual hazard may make additional warnings and precautions by the railroad company necessary. (Sexsmith v. Union Pacific Railroad Co., supra; and Jennings v. Missouri Pacific Railroad Co., supra.)
No general rule of law is available from which the rights and liabilities growing out of all accidents occurring at railroad crossings may be determined. It necessarily results that each individual case must be determined on its particular conditions arid circumstances. (Drake v. Moore, 184 Kan. 309, 315, 336 P. 2d 807; and Grisamore, Administratix v. Atchison, T. & S. F. Rly. Co., 195 Kan. 16, 403 P. 2d 93.)
General rules for determining both the negligence of the railroad and the contributory negligence of the driver of the vehicle at a railroad crossing have been discussed in Grisamore, Administratrix v. Atchison, T. & S. F. Rly Co., supra. The duty of a railroad to a motorist approaching a crossing is directly affected by the care required of the motorist. If the motorist would have been able to see the hazard, had he looked and been able to avoid the collision had his automobile been in proper condition arid under proper control, the railroad has no obligation which could result in its negligence.
A railroad company need not anticipate that a motorist will be negligent. If the conditions and circumstances are such that a motorist exercising due care in the operation of a properly equipped motor vehicle will see the train occupying a crossing in time to avoid an accident, the railroad may assume that the operator will do so, and it is not required to take precautions to avoid such a collision. The railroad has a right to make a reasonable use of a crossing, and ordinarily the presence of a train on the crossing is of itself an adequate warning to a driver of a vehicle on a highway and special safeguards need not be employed in the absence of unusual surroundings, conditions and circumstances. (Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., supra.)
Although railroads are not insurers of the safety of persons approaching their tracks for the purpose of crossing, they must exercise due care for the safety of travelers at public crossings. Unusually dangerous conditions prevailing at the crossing may require the railroad to anticipate that the mere presence of the train occupying the crossing will not adequately warn users of the highway. Such special conditions may create an unusual hazard making additional warnings necessary. (Williams v. Union Pacific Railroad Co., 204 Kan. 772, 465 P. 2d 975; Sexsmith v. Union Pacific Railroad Co., supra; and Jennings v. Missouri Pacific Railroad Co., supra.)
Where a crossing is unusually dangerous such reasonable care must be exercised by the railroad as common prudence dictates. Under these circumstances where a train occupies a crossing the railroad is under a duty to use reasonable means to warn and avoid injury to the traveling public. The character of the means will depend on the particular conditions and circumstances surrounding the crossing. A railroad may be liable for injuries received by a motorist colliding with a railroad car on a crossing where normal headlights do not reveal the obstruction or where a trap is created by an illusion of safety revealed by the headlights. (Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., supra.)
The rule that motorist who drives into a railroad car standing or occupying a crossing, which is not unusually dangerous, is guilty of contributory negligence stems from an application of the rule that a driver of a motor vehicle must correlate his speed with his ability to stop within the range of his vision. (Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 P. 2d 593; and Sheets v. Baldwin, 146 Kan. 596, 73 P. 2d 37.)
The rule as applied to railroad crossing accidents is subject to qualifications and exceptions which are recognized in Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., supra, and cases cited therein.
Exceptions or qualifications to the rule, that a driver must correlate his speed with his ability to stop within the range of his vision, have been recognized by this court when the normal headlights of an automobile are absorbed by an unpainted, dark, drab color obstruction on the traveled portion of the roadway. In Sponable v. Thomas, 139 Kan. 710, 719, 33 P. 2d 721, there were no lights, either tail or other lights at the rear of a truck, nor any flares or other lights to warn of the truck’s location on a highway. The lower portion of the back end of the truck was 47 or 48 inches above the ground, when the normal headlights of the automobile were only 36 inches above the ground. Under these circumstances the driver of the automobile was not held to be guilty of contributory negligence in colliding with the truck. In Drake v. Moore, 184 Kan. 309, 336 P. 2d 807, a driver on a highway on a dark, rainy night collided with the rear end of a semi-trailer and truck that stood squarely in the middle of the traffic lane in which he was driving. No lights were burning on the truck or trailer to warn oncoming motorists, and the rear end of the trailer was dull, drab and dirty in color, making it difficult to see at night. The trailer was so high above the pavement level that it was above the range of the driver’s headlights. Under these circumstances the obstruction could not be seen until the driver was too close to avoid the collision. Under these conditions, and in view of the presumption that a decedent exercised due care for his own safety, it was held reasonable minds could differ on the question of whether the decedent was guilty of contributory negligence.
Courts have recognized that an illusion of safety is created where evidence presented shows that a dark railroad car on the crossing will absorb a considerable portion of the light rays of an automobile which strike it, and that a large portion of the rays which are actually reflected will travel in various directions, so that only a relatively small portion of the rays will register on the eyes of the motorist. (84 A. L. R. 2d 813, § 16, p. 840.)
The perceptibility of a train occupying a railroad crossing is an important element in the general rule which requires a motorist to observe the presence of a train occupying a railroad crossing as adequate notice or warning of its presence. In other words, the presence of a train on the crossing must in some measure be visible and perceptible to serve adequate notice or warning of its presence. (Petricek v. Elgin, J. & E. Ry Co., 21 Ill. App. 2d 60, 157 N. E. 2d 421 [1959].)
In Atlantic Coast Line Railroad Company v. Kammerer, 239 F. 2d 115 (5th Cir. 1956), the evidence showed that a train occupying an intersection could not be seen, and it was held the failure to erect a crossbuck sign was negligence which could be the proximate cause of an accident. (See also, Boyd v. Illinois Cent. R. R. Co., 211 Miss. 409, 52 So. 2d 21 [1951].)
Many prior Kansas cases have distinguished between the duty owed by the railroads to warn travelers on the highway of approaching trains rightfully occupying the crossing. It has been said the purpose of crossing signs or signals is to warn of approaching trains and not of trains already occupying the crossing. (Corkhill v. Thompson, 169 Kan. 38, 217 P. 2d 273; and cases cited therein.) But this rule does not obtain where the railroad crossing is unusually dangerous, and the motorists’ perceptibility of the train occupying the crossing is substantially impaired through no fault of their own. Under these circumstances the failure to erect a crossbuck sign, as here, on the right side of the motorists’ approach to the crossing is evidence from which a jury could find negligence on the part of the railroad and that the negligence of the railroad in failing to erect the crossbuck sign was a proximate cause of the accident.
The foregoing cases are illustrative of situations the railroad must recognize in fulfilling its obligation to the traveling public where unusually dangerous conditions prevail at railroad crossings on public roads. The railroad is under a duty to give additional warnings of the presence of a train occupying a crossing where unusually dangerous conditions prevail at the crossing, and it should anticipate that the mere presence of the train on the crossing may not adequately warn users of the highway of the danger in time to avoid a collision. (See, Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 162 N. E. 99, 59 A. L. R. 1253; and Steele v. Rapp, 183 Kan. 371, 327 P. 2d 1053, both court and dissenting opinions, for a discussion of negligence and the duty of care owed to others.)
Evidence before the trial court which tended to prove the unusually dangerous nature of the Greenwich Road crossing was substantial.
The collision occurred at 9:06 p. m. on the night of June 3, 1971, when the sun had set at 8:47 p. m. with an 80% overcast cloud cover in the sky. The night was described as a dark night and light ing conditions were bad. There were no railroad crossing lights, flashing lights or street lights at the crossing as one travels north on Greenwich Road approaching the crossing. Investigating officers who arrived within fifteen minutes after the accident had to drive to the scene of the accident with headlights on. Trees and shrubbery obscured vision to the northwest, the direction from which the train approached the crossing; and photographs taken when some light depicted the condition of the intersection with a train standing across Greenwich Road showed that trees in the northwest and northeast quadrants of the intersection silhouetted to blend in with and obscure the presence of the train across the intersection. When a train is occupying the crossing in question the single crossbuck sign maintained by the railroad at the northwest quadrant of the intersection as one approaches from the south cannot be seen. There was competent opinion testimony that a driver of an automobile approaching from the south on the night in question could not see a box car on the crossing from a distance of 200 feet, and giving due allowance for perception, reaction and braking time a driver traveling within the speed limit could not stop in time to avoid a collision with the train.
Upon reviewing the record we find there is substantial competent evidence to support the jury’s finding that unusually dangerous conditions prevailed at the railroad crossing in question at the time of the accident, and the unusual hazard made additional warnings and precautions by the railroad company necessary. The presence of the train on the crossing did not adequately warn users of the highway.
The appellant contends the trial court erred in failing to rule as a matter of law that the proximate cause of the collision was the driving of the automobile into the side of the train.
If the appellant is attempting to say the trial court should have found as a matter of law that the driver of the automobile in question was negligent in its operation, and for that reason the appellees are barred from any recovery, it completely overlooks the Kansas law to the effect that the negligence of the driver of an automobile is not imputed to the passengers. (Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049.)
Assuming the driver of the ill-fated car in question was negligent, the fact remains that the appellees are entitled to prove the concurrent negligence of the appellant. (McRae, Adm’r v. Railroad Co., 116 Kan. 99, 225 Pac. 1032.)
Instructions of the trial court left to the jury the question of whether or not the driver of the' car was negligent and, if he was, whether any negligence of the appellant which was a proximate cause of the collision concurred so as to cause the death of the appellees’ decedents.
The appellant in its brief on this point reasserts its contention that the crossing in question was not unusually dangerous. Among the instructions given the jury was No. 12, which reads:
“If you find that the defendant maintained an unusually dangerous crossing and that it was negligent, you still must decide whether or not a cause of the accident was negligence of the defendant. In this regard, you should consider whether or not the presence of the train itself constituted an adequate warning. If it did, the crossing was not unusually dangerous.”
The appellant’s proximate cause argument is answered by the fact that the issue concerning the unusually dangerous nature of the crossing was properly submitted to the jury by the court’s instructions. The jury determined this question adversely to the appellant.
The trial court refused to instruct the jury on contributory negligence on the ground there was no evidence whatever presented during the trial that the passengers were contributorily negligent. In doing so the trial court recognized a presumption favoring the deceased passengers. This court has long recognized that where a deceased person has lost his life in an accident it may be presumed, in the absence of evidence to the contrary, that he was at such time exercising due care for his own safety because of the love of life, which is normal to persons generally. (Akin v. Estate of Hill, 201 Kan. 306, 440 P. 2d 585; and Hagood v. Hall, 211 Kan. 46, 505 P. 2d 736). The record supports the trial court, and error asserted by the appellant on this point is without merit. Contributory negligence is never presumed, but must be established by proof. (Hampton v. State Highway Commission, 209 Kan. 565, 586, 498 P. 2d 236.)
The trial court by Instruction No. 11 instructed the jury that a violation of the law of Kansas constitutes negligence. In this connection the jury was instructed that Kansas law provides that railroad crossbuck signs “shall be erected on the right-hand side of the roadway on each approach to the crossing.”
The appellant contends this instruction is erroneous and in essence is a ruling by the trial court that the railroad was negligent.
On January 1, 1966, Kansas Administrative Regulation 36-10-1 went into effect. It remained effective until January 1, 1973, and was in force on June 3, 1971, the date of the accident. The regula tion, authorized by K. S. A. 8-510 (repealed L. 1974, ch. 33, § 8-2205) provided for the adoption by the State Highway Commission of the “Manual on Uniform Traffic Control Devices for Streets and Highways”. This manual is published by the U. S. Department of Commerce and the Bureau of Public Roads and is numbered D6.1-1961. (References to the manual herein will be to the subsequent publication, D6.1-1971.) Section 2B-42 of this manual is titled “Railroad Crossbuck Sign” and reads in part as follows:
“The crossbuck shall be white with the words Railroad Crossing in black lettering. If there are two or more tracks, including sidings, the number of tracks shall be indicated on an auxiliary sign of inverted T shape mounted below the crossbuck. The crossbuck shall be used at every railroad crossing, alone or in combination with other protective devices.
“The design of the commonly used Railroad Crossbuck (R15-1) with auxiliary sign showing the number of tracks (R15-2), has been standardized by the Association of American Railroads.
“The crossbuck sign is usually furnished and installed by the railroad company and is usually located on the railroad right-of-way. The distance that should be assumed to separate tracks before an additional crossing sign is considered necessary is 100 feet, unless local conditions require otherwise. The sign shall be erected on the right-hand side of the roadway on each approach to the crossing.” (Emphasis added.)
The legislature has recently recognized the authority of this manual. In the 1974 Session Laws, ch. 33, § 8-2003, which replaces K. S. A. 8-510, the legislature expressly provides:
“Sec. 8-2003. The commission shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this act for use upon highways within this state. Such uniform system shall correlate with and so far as possible conform to the system set forth in the most recent edition of the manual on uniform traffic control devices for streets and highways and other standards issued or endorsed by the federal highway administrator.” (Emphasis added.)
In 1968 this court was called upon to interpret the force and effect of the provisions contained in the Manual on Uniform Traffic Control Devices for Streets and Highways in the case of Brown v. State Highway Commission, 202 Kan. 1, 444 P. 2d 882. There the plaintiff sought damages for the negligence of the state in failing to maintain one of its stop signs in compliance with the provisions of the “Manual on Uniform Traffic Control Devices for Streets and Highways”. In affirming a judgment for the plaintiff the court there said:
“With the adoption of the Manual on Uniform Traffic Control Devices for Streets and Highways by the State Highway Commission pursuant to legislative authorization, these regulations have the force and effect of law. . . .” (p. 15.)
The appellant contends, that although the manual may have the force and effect of law, it is applicable only to actions of the State Highway Commission and has no effect on the duty of the railroads regarding the erection and maintenance of warning signs and devices at their crossings.
The section of the manual heretofore quoted (2B-42) mandatorily directs that the sign shall be erected on the right-hand side of the roadway on each approach to the crossing. The same section expressly recognizes that the erection and maintenance of the cross-buck sign is usually furnished and installed by the railroad company and is usually located on the railroad right-of-way.
For the reasons hereafter stated we think it was the intent of the authorities to impose upon the railroad in this state the duty to safeguard their railroad crossings in accordance with section 2B-42 of the Manual on Uniform Traffic Control Devices for Streets and Highways which has the full force and effect of law.
K. S. A. 66-2,121 reads as follows:
“Sign boards at crossings. Every railway corporation shall cause boards to be placed, well supported by posts or otherwise, and constantly maintained across each traveled public road or street, when the same is crossed by the railway on the same level. Said boards shall be elevated so as not to obstruct the travel, and to be easily seen by travelers; and on each side of such board shall be painted in capital letters, ‘Look out for the cars.’ But this section shall not apply to streets in cities or towns, unless the corporation shall be required to put up such boards by the city or town authorities, or the officer having charge of such streets. [G. S. 1868, ch. 23, § 61; Oct. 31; R. S. 1923, 66-2,121.]” (Emphasis added.)
The foregoing statute was enacted in 1868 and has never been changed. It remains in force and effect today. From, an analysis of the cases, this court has never been called upon to construe this statute on the point here in question.
When the legislature speaks of the railroads’ duty to give warning, and when it specifies when and where such warning is necessary, the statute refers to' the warning sign in the plural. However, when the statute sets out the words of warning required and the manner of their placement on the sign it reverts to use of the singular. Although the language employed in drafting the statute leaves much to be desired in the way of clarity, the logical conclusion to be drawn from the statute is that the legislature intended that two sign boards be placed at railroad crossings for the safety of travelers on the highways. In Heinen v. Atchison, T. & S. F. Rly. Co., 125 Kan. 612, 266 Pac. 35, it was held that the language of 66-2,121, supra, that required the maintenance of signs “across each traveled public road or street” did not mean that the signs had to be physically extended across the entire width of the road. In Bledsoe v. M.-K.-T. Rld. Co., 149 Kan. 741, 90 P. 2d 9, the court specifically referred to the statute when it said:
“. . . Defendant had the railroad crossing signs required by statute (G. S. 1935, 66-2,121) on each side of the crossing, and the state highway commission had erected the highway signs usual to indicate the approach to a railroad crossing.” (p.742.) (Emphasis added.)
The cases relied upon by the appellant (Corkhill v. Thompson, 169 Kan. 38, 217 P. 2d 273; and Coleman v. St. Louis-S. F. Rly. Co., 130 Kan. 325, 286 Pac. 254), for the proposition that only one cross-buck is required by the statute, did not confront the court with an issue as to whether one or two crossbucks were required by the statute. Statements in these opinions tending to support the appellant’s argument are at best dictum and we do not regard them as controlling.
Construing K. S. A. 66-2,121 and the Manual on Uniform Traffic Control Devices for Streets and Highways adopted by the State Highway Commission pursuant to K. S. A. 8-510 (first enacted by the legislature in 1937) together, the law of Kansas applicable at the time of this aocident on June 3, 1971, imposed upon the railroad the duty to erect crossbuck signs on the right-hand side of the roadway on each approach to the crossing of a railroad track.
While the accident in the instant case occurred on a county road in Sedgwick County, Kansas, and not on a designated state highway of Kansas, the adoption by the State Highway Commission of the “Manual on Uniform Traffic Control Devices for Streets and Highways” imposes the obligation of uniformity set forth therein throughout the State of Kansas on its roads and highways. This is clarified by K. S. A. 8-507 which provides:
“The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this act.”
The foregoing statute is a part of the same act which contains 8-510, supra, authorizing the State Highway Commission to adopt a manual and specifications for a uniform system of traffic control devices. The two sections of the act must be construed in pari materia.
The appellant relies upon K. S. A. 8-511 for the proposition that K. S. A. 8-510 was enacted by the legislature as a guide to the State Highway Commission in the placement of their own signs, and was never intended to grant the State Highway Commission authority to regulate railroads in placement of crossbucks. In 8-511, supra, the legislature gives general directions to the State Highway Commission to place and maintain traffic-control devices, conforming to its manual and specifications, upon all “State Highways”. In section (b) the legislature prohibits local authorities from placing or maintaining any traffic-control device upon any highway under the jurisdiction of the State Highway Commission except by the latter’s permission.
The general provisions of 8-511 do not control the specific provisions of K. S. A. 66-2,121 and K. S. A. 8-510, as heretofore construed. The legislature was concerned with the placement of general authority in the State Highway Commission for the placement and maintenance of traffic-control devices in 8-511.
At this point another statute deserves mention. K. S. A. 68-414 provides in part:
“When the state highway commission deems it advisable, said railroad company may be required by order of the state highway commission, to install and maintain suitable safety devices or warning signals at dangerous or obscure crossings to indicate the approach of trains.”
The foregoing portion of the statute quoted is ambiguous. This court has heretofore distinguished between warnings required to-indicate the approach of trains at railroad crossings with public highways, as distinguished from the presence of a train occupying a railroad crossing. This statute giving the highway commission authority to require suitable safety devices or warning signals at dangerous or obscure crossings seems to be limited to indicate only the approach of trains. Furthermore, this statute seems to be limited to action by the State Highway Commission regarding the “state highway system”.
In any event, whether the railroad crossing on Greenwich Road in the instant case was an unusually dangerous crossing is a question of fact to be determined from the evidence. The failure of the State Highway Commission or local authorities to declare a rail road intersection to be an unusually dangerous crossing does not control the determination of this fact question. Language used by the court in Corkill v. Thompson, supra, in discussing the evidence should not be construed to the contrary.
For the reasons heretofore stated Instruction No. 11 given by the court to the jury was a correct statement of the law.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Carl Dean Osbum, was convicted of one oount of possession of a narcotic drug, heroin, under K. S. A. 65-2502 (Corrick). This cáse was previously before this court on appeal in State v. Osburn, 211 Kan. 248, 505 P. 2d 742. The factual circumstances which brought about this criminal prosecution are set forth in full in that opinion. The defendant, Osbum, was originally convicted of one oount of selling a narcotic chug, heroin, and one count of conspiracy to sell cocaine, K. S. A. 1970 Supp. 21-3302. The defendant Osbum appealed that conviction. The case was reversed for the reason 'that the defendant had raised the theory that he was a procuring agent and it was error for the trial court not to instruct on the procuring agent defense when the defendant so requested and where the record disclosed evidence which reasonably supported that defense. In our former decision we remanded the case to the district court for a new trial on both of the original counts.
Following reversal on the first appeal the district attorney filed an amended information charging the appellant with possession of a narcotic drug, to-wit: heroin. The original information charged in count one that the defendant did “possess, have under his control and sell a narcotic drug, to-wit: heroin. . . .” In the amended information the state simply struck out the words “and sell” and designated the offense charged to be possession of a narcotic drug. With the exception of these changes the original information and the amended information were the same. In addition the district attorney dismissed count two charging conspiracy to sell cocaine. The defendant then moved the court for an order to quash the amended information. This motion was overruled. After the motion to quash had been overruled the defendant was arraigned on the amended information and entered his plea of not guilty to the charge of possession of a narcotic drug, heroin. Thereafter the parties waived a jury and the case proceeded to trial by the court. The case was submitted to the court on a written stipulation of facts which is as follows:
“Stipulation of facts
“(Filed April 20, 1973)
“It is hereby agreed by and between the parties hereto that the following set forth facts are agreed and stipulated to as being the evidence that would be produced by the State of Kansas, plaintiff at the time of the trial herein.
“The State’s evidence would show thát on the evening of December 24, 1970, Richard Jones, a reserve policeman for the Topeka Police Department, working part-time as an undercover agent for the Topeka Police Department Vice Squad, together with an informant, a Dan Biddle, were sent by the Topeka Police Department Vice Squad to 1526 Harrison, Topeka, Kansas, for the purpose of making a heroin buy. They were referred by a Mr. Frank Fitzgibbons to a place where they were advised they might be able to obtain some. They were directed to 1222 Long Street, Topeka, Shawnee County, Kansas, where upon arriving at that address, they were met by the defendant, Carl Dean Osburn, in his front yard. At that time there was some conversation between the defendant and the two police agents about obtaining some heroin, at which time they were advised by the defendant that he did not have any heroin available but that he would agree to purchase some for them. Mr. Osbum was then given $24.00, $20.00 of which to purchase heroin for Mr. Biddle and Mr. Jones, and $4.00 of which to be used for the purchase of heroin for the defendant. Mr. Osbum then left and returned approximately one-half hour later and gave Mr. Biddle and Mr. Jones a substance wrapped in a white package purported to be heroin, which the officers received from Mr. Osburn. State’s evidence would further show that Officer Jones and Mr. Biddle were sent and directed to make a purchase of heroin by Officers Collie and Ritchie of the Vice Squad of the Topeka Police Department. Mr. Robert Harvey and Loretta Shepekk, chemists for the Kansas Bureau of Investigation ran a chemical analysis of the white powder substance given to Mr. Biddle and Mr. Jones by the defendant, Carl Dean Osburn, and the substance contained the chemical compound known as heroin. Further, that the said location where Mr. Osburn was observed to have the substance in his possession was on or about the premises of 1222 Long Street, Topeka, Shawnee County, Kansas.
“Officers Collie and Ritchie received the package containing the white powder from Officer Jones and immediately transported the chemical to the Kansas Bureau of Investigation Lab where Robert Harvey and Loretta Shepekk, chemists, found the substance heroin.”
The trial court considered the stipulation of facts and found the defendant guilty of possession of a narcotic drug, to-wit: heroin. In imposing sentence on the conviction the district court gave the defendant credit for the time he had served under the previous sentence and plaoed the defendant on probation for a period of three years. The defendant has appealed to this court claiming trial errors.
The first point raised by the defendant Osburn on this appeal is that the trial court erred in failing to sustain the defendant’s motion to quash the amended information which charged the defendant with the possession of a narcotic drug, a different crime from selling a narcotic drug which was contained in count one of the original information. The defendant relies upon K. S. A. 22-3201 (4) which states as follows:
"(4) The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of tire defendant are not prejudiced.”
The defendant maintains that his substantial rights were violated because he was compelled to answer a new and additional crime when the district attorney was permitted to file the amended information. The defendant argues that the trial court erred because when the prosecutor found that the state could not convict the defendant of selling a narcotic drug because of the procuring agent defense, defendant was then charged with possession of a narcotic drug. We believe that the Kansas code of criminal procedure is not as restrictive on 'the right of the district attorney to amend an information as the defendant is contending. K. S. A. 22-3201 (4) is patterned closely after Rule 7 (e) of the Federal Rules of Criminal Procedure which provides:
“(e) Amendment of Information. The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”
In interpreting this rule the federal courts have held that since the prosecutor is free to make the charge, he should be equally free to change it, and the restrictive rules about amendment of an indictment have no application to an information and instead the information may be amended in either form or substance. Leave of court is required in order that the court may protect the defendant against any possibility of prejudice. (Wright, Federal Practice and Procedure, Vol. 1, § 128.)
The decisions of this court support the rule that prior to the commencement of the trial the prosecutor should be given a wide discretion in amending the original information. We have consistently held that a trial court may allow an amendment to an information in its discretion both as to form and substance after arraignment and plea before commencement of the trial. (State v. Morris, 131 Kan. 282, 291 Pac. 742; State v. Hobl, 108 Kan. 261, 194 Pac. 921.) Our cases distinguish between amendments before trial and those which are made during the course of the trial, (State v. Eye, 161 Kan. 69, 166 P. 2d 572.) In permitting the state to amend an information the courts have been careful to protect the rights of the defendant so that his defense will not be prejudiced by the amendment. Permission granted by a trial com! to amend an information after a plea of not guilty and before the jury has been sworn to try the case does not constitute reversible error in the absence of any reasonable contention or any showing that the interests of the defendant were thereby prejudiced. (State v. Eye, supra.) The fact that the defendant has been tried on the original information does not change the rule. We have held in a number of cases that after a new trial has been granted on the motion of a defendant in a criminal case, the attorney for the state, with the consent of the court, may enter a nolle prosequi without prejudice to a future prosecution, and thereafter the defendant may be put upon his trial and convicted upon a new information. The theory is that when a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had. (State v. Hart, 33 Kan. 218, 6 Pac. 288; State v. Spendlove, 47 Kan. 160, 28 Pac. 994; State v. Chance, 82 Kan. 388, 108 Pac. 789; and State v. Bloomer, 197 Kan. 668, 421 P. 2d 58.) Of course, where a defendant procures a new trial he can be tried at the new trial only on the count or counts for which he was found guilty at the former trial. He may not be retired on other counts where he was acquitted. (State v. McNaught, 36 Kan. 624, 14 Pac. 277.) Likewise, where the new trial is granted after conviction for an offense included in the crime originally charged, the subsequent prosecution is limited to the included crime for which the defendant was convicted. (K. S. A. 21-3108 [5].) With these two exceptions following the granting of a new trial, the state is in the same position with regard to amendment of the information as though no trial had ever been had in the case.
Under the facts and circumstances as disclosed in the record before us we cannot say that the trial court abused its discretion in allowing the filing of an amended information. In both the original and amended informations the statute under which the defendant was charged was K. S. A. 65-2502 (Corrick). It provided as follows:
“65-2502. Acts prohibited. It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this act.”
Heroin is a narcotic drug as defined under 65-2501. The original information alleged that the defendant did “possess, have under his control, and sell a narcotic drug, to-wit: heroin.” The amended information charged that the defendant did “possess” have under his control, a narcotic drug, to-wit: heroin.” We do not believe that under these circumstances the striking of the words “and sell” from the original information could have prejudiced the rights of the defendant. There is no contention that the defendant was denied a proper preliminary hearing following the amendment of the information. He did not request a new preliminary hearing. He entered into a plea of not guilty to the amended charge. At the time the amended information was filed, a complete trial had been had and the facts and circumstances surrounding the drug transaction had been fully revealed. Under the circumstances we cannot say that the trial court abused its discretion in permitting the state to file an amended information charging possession of a narcotic drug.
The defendant urges in his second point that the trial court erred in not sustaining the defendant’s contention that under the stipulated facts he was an agent of the city and that he should not be held criminally liable for the possession of a narcotic drug. Under the stipulation of facts it was undisputed that Osburn at the request of undercover agents for the Topeka Police Department obtained possession of heroin not only for the undercover agents but for himself as well. He did not know he was dealing with agents of the city. We fail to see how such a defense can be sustained under the facts and circumstances in this case.
The defendant’s final point is that the trial court erred in not ruling as a matter of law that the defendant was entrapped by the police agents in obtaining the possession of the drug. We cannot say that on the facts before us the defendant was entrapped as a matter of law. In the stipulation of facts the evidence showed that the undercover police officers were directed by a third party to 1222 Long Street as a place where they might be able to obtain heroin. Upon arriving at that address they were met by Osburn in the front yard. The reasonable inference is that he was there to make a drug sale. After a short conversation Osburn advised the officers that he would obtain some heroin for them. Osbum was given $24 of which $20 was to purchase heroin for the undercover agents and $4 was for the purpose of purchasing heroin for the defendant. There is no evidence of censurable or impermissible conduct on the part of the police officers. They merely solicited him for the purchase of heroin and he readily complied. The district court must have concluded that the defendant Osbum had a predisposition or intention to commit the criminal act. We cannot say that such a finding by the trial court is not supported by the evidence.
For the reasons set forth above the judgment of the district court is affirmed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note, executed by Adam Brenner and George Brenner to the plaintiff, Nicholas Egly. Both the Brenners resided in Doniphan county. Egly had previously obtained a judgment on the note against Adam Brenner in the state of Missouri, but had never before sued George Brenner. This action was commenced in Atchison county against both Adam and George Brenner. The plaintiff obtained service of summons on Adam Brenner in Atchison county, and afterward obtained service of summons on George Brenner in Doniphan county. Adam Brenner answered, setting up said former judgment rendered , against him in the state of Missouri, giving a copy of the record thereof. George Brenner answered, setting up that he signed said note as surety only, and asking that his rights be protected under §470 of the civil code (Comp. Laws of 1879, p. 664), and further asking that if the plaintiff should fail to recover a judgment against Adam Brenner, then that the action should be dismissed as against him, George Brenner. A trial was had before the court without a jury, and after all the evidence was introduced, and “after argument by counsel, the court at the time announced that its decision in the case would be that plaintiff was not entitled to recover against defendant Adam Brenner and was entitled to recover against defendant George Brenner, a several obligor on said note. Whereupon the plaintiff asked leave of the court to dismiss his said action as to the defendant Adam Brenner alone, without prejudice, to which each of the defendants at the time objected; but the court overruled such objec tions, and allowed the plaintiff to dimiss- his said action without prejudice as to said Adam Brenner alone, and which plaintiff accordingly did; and to which decision and action of the court, and such dismissal as to said Adam Brenner, each of the defendants at the time duly excepted.” George Brenner then moved the court to dismiss the action as against him, on the ground that as the court had obtained jurisdiction by virtue of the service of a summons first on Adam Brenner personally in Atchison county, and then on George Brenner personally in Doniphan county, where he resided, and the court then having dismissed the action as to Adam Brenner, had .thereby lost the right to exercise jurisdiction over George Brenner. On the hearing of this motion it was shown that both of the defendants resided in Doniphan county at the time this suit was commenced and prior thereto continuously down to the time of the hearing, and that neither of them had resided in Atchison county, and that the service of summons was made on the defendants as above stated and not otherwise. But the court overruled the motion, and the defendants duly excepted. The court then announced its findings, which were substantially as follows: First, that Adam Brenner signed the note as principal and George as surety; second, that Adam Brenner was insolvent; third, that there was then due on the note $1,009.87; fourth, that a judgment had previously been rendered on the note against Adam Brenner in the state of Missouri; fifth, that the judgment was still in full force, wholly unsatisfied; sixth, that George Brenner had received no benefit from the note. And the court then found, as a conclusion of law, that the plaintiff was entitled to recover a judgment against George Brenner for said amount and costs. The defendant George Brenner duly excepted, and then moved-for a new trial, and also moved for a judgment on the findings dismissing the plaintiff’s action as to him; but the court overruled the motions, to which rulings the defendant excepted. The court then rendered judgment against George Brenner in accord anee with said conclusion of law, to the rendering of which the defendant duly excepted.
We think the court below erred in not dismissing the action as to George Brenner, after it had dismissed the action as to Adam Brenner. The action was not rightly brought in Atchison county. Adam Brenner was no proper party to the action. The cause of action on the note against him had already and long prior to that time been merged in a judgment. And Adam Brenner being no proper party to the action, he could not be used for the purpose of acquiring jurisdiction over George Brenner. (Dunn v. Hazlett, 4 Ohio St. 435.)
Sec. 55 of art. 5 of the civil code, provides 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.” (Comp. Laws 1879, p. 608.) This section applies to this case. But under this section the plaintiff could not get service of summons on George Brenner, for he did not reside and was not to be found in Atchison county. Hence he resorted to the provisions of § 60 of the civil code for his remedy, which section provides that “ where the action is rightly brought in any county, according to the provisions of art. 5, a summons shall be issued to any other county against any one or more of the defendants, at the plaintiff’s request.” (Comp. Laws 1879, p. 608.) But this section is not applicable to this case. The action was not “rightly brought” in Atchison county; for, as we have already stated, Adam Brenner was no proper party to the action, and George Brenner did not reside nor could he be summoned in Atchison county. Besides, it was a great wrong against George Brenner to sue him outside of his own county, and then to take judgment against him alone, upon a debt for which he was only a surety. With §§55, 60 and 470 of the civil code, taken together, the rights of a surety in cases like the present are pretty well protected; for where a surety is sued outside of his own county, he must under §§ 55 and 60 be sued in connection with his principal, or with some co-surety. If sued with his principal, as in this case, he may under §470 have his principal’s property first exhausted in satisfying the debt before his can be seized. But even where he is sued with his co-surety only, the judgment must be rendered against both, and not merely against him alone; and this of course is of some value to him, provided the sureties ever have the debt to pay. But in no case can an action for money on a promissory note or other joint and several contract be brought outside of the county- where the delenaant resides or may be summoned by merely , uniting with him as a co-defendant some unreal or imaginary party, against whom no judgment could be properly rendered. In all such cases both the defendants-should be real parties and proper parties to the action, and should be shown to be such on the trial of the case, or no-judgment should be rendered against the defendant not served with summons in the county where the action was brought. If the defendant who was served with summons in the county where the action was brought obtains a judgment in his favor, or if the plaintiff voluntarily dismisses his action as to him (as-was done in this case), then it will be presumed that such defendant was not a real or proper party to the action, but that he was made a party merely for the purpose of suing the other and the real party in a county in whic.h. he did not reside nor could be summoned. And in such a case no judgment should be rendered against the real party’; for presumedly the service of summons upon him was procured wrongfully, and in violation of the spirit of said §§ 55 and 60. In such a case, the action should be dismissed as to said real party.
The judgment of the court below will be reversed, and cause remanded with the order that the plaintiff’s action against George Brenner be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action and judgment on a promissory note, dated March 24,1873, and due in eighteen months, executed by defendants to one George Lamberson, jr., and by him indorsed to Grail, the plaintiff. The note was in form an ordinary negotiable note.
On the 24th of April, 1873, Crall sold to said Lamberson, jr., a buggy and harness, for $290, which, by the terms of the contract (which was in writing), might be paid for in hay at a stipulated price, which hay was to be delivered by Lamberson, jr., from time to time, up to March 1st, 1874. As security to Crall that Lamberson, jr., should perform his part of the contract and deliver the hay, or otherwise pay for the buggy and harness as per their written contract, Lamberson, jr., agreed with Crall in their written agreement that Lamberson, jr., should deposit certain notes at the Exchange bank of Wm. Hetherington & Son, in the city of Atchison, as collateral security for the faithful performance of the contract. This part of the agreement reads as follows, viz.:
“It is agreed that the said George Lamberson, jr., shall deposit certain notes as collateral security for the faithful performance of his obligation in this contract, which notes are to be deposited at the Exchange bank of Wm. Hetherington & Son, and so to remain for the benefit and security of the said Crall until the fulfillment of this contract; and in the event of failure by said Lamberson, the said Crall may and shall have the right to collect the same to the amount that may be due him in the premises. In witness whereof, the said parties,” etc.
In pursuance of this agreement, as shown by Crall’s evidence, the notes with the written agreement were inclosed in an.envelope, sealed up, and deposited in Hetherington & Son’s bank, on the 24th day of April, 1873; and among other notes so deposited were two notes sued on in this action, upon one of which the defendant in error, Crall, obtained this judgment which the plaintiffs in error seek to reverse.
The statute of limitations defeated the claim in the other note. The defense interposed was payment to Lamberson, made before the maturity of this note, and without knowledge of any transfer. The court refused to permit evidence of such payment, and this presents the question for our consideration.
We think the ruling of the court correct. There is no question but that the note was indorsed at the time it was placed in the bank as collateral, and none that the payee failed to deliver the hay, except about three tons, or make other payment; so that Crall had a valid claim for much more than the amount of this note, and for which this note was indorsed and transferred as collateral security. The notes were afterward, by consent of Lamberson and Crall, taken from the bank, and left with Crall. There is some little uncertainty as to the time when this was done, but we think this immaterial, and that the ruling would have been correct even if the notes had remained in Hetherington’s bank up to the time of suit. By the indorsement, the legal title was transferred, and Crall was by the contract given the right to collect up to the amount due him for the buggy and harness. In 1 Daniel on Negotiable Instruments, § 824, the author says:
“ When the note or bill of a third party, payable to order, is indorsed as collateral security for a debt contracted at the time of such indorsement, the indorsee is a bona fide holder for value in the usual course of business, and is entitled to protection against equities, offsets, and other defenses available between antecedent parties, provided, of course, that the bill or note transferred as collateral security is itself, at the time, not overdue.”
There is no pretense that Lamberson had the note at the time of payment to him, or that he was authorized by Crall to receive the money. Crall had done nothing to mislead the makers, nothing upon which to base any estoppel against him. Now a maker of a negotiable note who before its maturity pays the payee' the amount thereof without a surrender of the note, does so at his peril. If the payee is no longer the holder, or entitled to receive the money, the payment in no manner discharges the paper, or prevents the real holder from recovering upon it. The case of Davis v. Miller, 14 Gratt. 13, is still stronger. In that case, the indorsement was after maturity and protest for non-payment. After transfer, payment was made to the indorser, and receipt taken. The maker had no notice of the transfer till after the payment.
It was held that the payment was no defense. In the opinion, Moncure, J., uses this language:
. “On the other hand, however, it may be answered that no •case can be found in which it has been'decided, or even said, that payment to an indorser after an indorsement is a good defense against the indorsee. That no decision can he found the other way, is well accounted.for by the fact that the payment of a negotiable note is very rarely made without taking in the note, or having the payment, if partial, indorsed thereon; and no occasion has therefore occurred for a decision of the question. That no such occasion has occurred, is in itself an argument in favor of the defendant in error. . . . There is at least as much reason in holding the maker of a note responsible for want of caution in making a payment, as for holding a purchaser responsible for want of caution in making a purchase. Indeed, there is more, for due caution will always protect the former against an improper payment, while the greatest caution may not protect the latter against an improper purchase. The former is always safe in making payment to the legal holder of the note, which he may thereupon require to be produced and surrendered to him, while the latter is often deceived by a false possession, and must at his peril look to the title, which may be separate from the possession.” (See also Coffman v. Bank, 41 Miss. 212.
The case of McCrum v. Corby, 11 Kas. 464, is notin point, for in that there was no indorsement. Here the paper was regularly indorsed. Nor is this indorsement one which simply constituted the holder, agent of the indorser, such an indorsement as is spoken of in 1 Daniel on Neg. Inst., §822, to which we are referred by counsel. For this transfer was irrevocable. The indorser had no control of the paper, could acquire none except by payment of the debt for which the paper was pledged. Whether the legal title passed directly to Crall, or to the bank as trustee for his benefit, is immaterial. It had passed away from Lamberson, and he held neither legal title nor equitable right to the proceeds. Therefore payment to him was to one without actual right to receive it, and without .possession of any evidence of title or right to receive payment. Conceding, as counsel contend, that the indorsement is to be construed along with the agreement as really one transaction and one instrument, yet such an indorsement passes title, and, except as limited by the restriction, cuts off all equities. The note was indorsed as security for Lamberson’s debt to Crall, a debt contracted at the time of the indorsement. That debt is unpaid, and Crall has a right to-recover.
The judgment will be affirmed.
All the Justices concurring.
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Per Curiam:
This proceeding in error seeks to reverse an order granting a new trial. The action was on an overdrawn account. The account stood in the name of T. E. Condell. The claim was that T. E. & Thomas Condell were partners under the name of T. E. Condell, and that the bank account was a partnership affair. That they were partners at one time, is clearly shown; that they were at the time of the overdraft, is doubtful; and that the account was a partnership one, still more doubtful. If the motion had been overruled, we should with little hesitation have sustained the ruling. As it is, with much doubt we uphold the decision. It is not certain that all the instructions are preserved, though probably they are. While there is a direct statement that all the evidence is in the record, there is none that all the instructions given are preserved, or that other instructions were not asked and refused. The certificate of the judge to the case-made, however, states that it shows ‘“all the proceedings had thus far upon the trial of said cause, and that it contains a.full, true, complete and correct record of the proceedings had in said cause.” There appears no misconduct on the part of the juror, though perhaps some bias. - The alleged misconduct of the plaintiff in error, if open to consideration, is far from evident. The testimony tends strongly in his favor, and the instructions, as they appear in the record, are not challenged. The newly-discovered testimony is largely cumulative, though squarely against some of the testimony of plaintiff in error. Still, as no rights have been finally adjudicated, we do not feel warranted in disturbing the decision of the trial judge to the effect that the verdict was a wrong upon the defendant in error. See Field v. Kinnear, 5 Kas. 233; City of Ottawa v. Washabaugh, 11 Kas. 124; Ryan v. Topeka Bridge Co., 7 Kas. 207; Bedell v. Burlington Nat. Bank, 16 Kas. 130.
The order granting a new trial will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
The petition filed in the lower court avers, that on the 16th day of January, 1877, the plaintiff was in the service of the defendants as a brakeman on a running train on defendants’ railroad track, at a certain division thereof, in the country south of the state of Kansas, and while so engaged he was injured at said time and place in his person and health, by and through the negligence of the defendants, their servants and agents, without any fault on his part, and so forth. Issues were joined on these averments. At the trial of said cause, an objection was made by the defendants to the giving of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. This objection the court below sustained, and gave-judgment to the defendants for costs. Of this ruling and decision the plaintiff in error complains, and brings the case on this point into this court for review.
While the petition does not distinctly name the Indian territory as the place of the injury, yet the fact so appeared, and the arguments of counsel are based upon that as a fact. We shall proceed upon that assumption. The petition charges negligence on the part of the defendants, negligence in the condition of the track, in the management of the train, and in the employment of an unfit and incompetent engineer, conductor, etc. It is very full and specific; indeed, the main criticism we should place upon it is, its unnecessary repetition and prolixity. Beyond question it would have been sufficient under repeated rulings, if it had charged the injury to have been done within the limits of this state. (Dow v. K. P. Rly. Co., 8 Kas. 642; U. P. Rly. Co. v. Milliken, 8 Kas. 647; K. P. Rly. Co. v. Little, 19 Kas. 267; U. P. Rly. Co. v. Young, 19 Kas. 488.) Doubtless, also, it would have been sufficient if it had alleged that the civil law prevailed at the place of the injury. Wharton, in .his work on Negligence, § 720, says:
“Hence we understand the rulings of the Roman jurists and their successors, that the employer, by the nature of his contract, (conductor omnia secundum, legem conductions facere debet,) is bound to the servant to supply the latter with proper materials for work, and to surround him with such guards as will enable the work to be safely performed by the servant. If, through the employer’s negligence, in this respect, the servant is injured, the master is liable to the servant to make good the damage.”
In this the civil and the common law accord. (Wharton on Negligence, §§208 and.209.) The specific objection is, that the place of the injury being the Indian territory, a body of land set apart for Indian occupation, there is no allegation that either plaintiff or defendants had license or legal authority to enter that territory, or engage in the running of railroad trains through it, or that there was any law in force within its limits either giving a cause of action for such a wrong, or furnishing a remedy therefor, or prescribing a rule of damage.
We do not think the objection well taken. We are not to presume that any party is a wrong-doer in going into or being within any state or territory of the United States. We know that the Indian territory is set apart for the occupation of Indians, because we take judicial knowledge of the laws and treaties of the United States, and in those treaties we find express reservation of a right to license the building and running of a railroad through that territory. (Treaty between the United States and the Creek Indians, of July 19, 1866, 14 U. S. Stat., p. 787, art. 5; treaty between the United States and the Choctaws and Chickasaws, 14 U. S. Stat., p.771, art. 6.)
Now the petition, by alleging that the defendant had had, .for a long time prior to this injury, knowledge of the defective condition of this track, and had failed to repair it, shows a long-continued occupation. Perhaps, also, we may take judicial knowledge that for years prior thereto the defendants had been running trains out of this state and into and through that territory. Indeed, the struggle between two railroad corporations to first complete a track to the south line of the state, for the sake of securing a right of way through the Indian country, is a part of the general history of the state. At any rate, we know that a railroad of many miles in length is not built in a day. Hence, from its very continuance, we may presume that such building and running of a line of railroad by the defendants was with the knowledge and assent of the general government, which by express treaty stipulation had power to license and permit it; so that whether we rest upon general presumptions, or upon any matters of which we may take judicial knowledge, we must hold that defendants were guilty of violating no law in building or running a railroad through the Indian country.
So far as regards the law in force in that country, we may also resort to presumptions. “ The general rule is, that in the absence of proof to the contrary, the court will presume that the laws of a foreign state are precisely like the laws of the state in which the court is held. That is to say, the laws of a country to whose courts a party appeals for redress, furnish in all cases, prima facie, the rule of decision; and if either party wishes the benefit of a different rule or law, 'as, for instance, lex domicilii, lex loci contractus, or lex loci rei sitas, he must aver and prove it.” (Tyler on Usury, p. 85; Monroe v. Douglas, 5 N. Y. 447.) Or, as said by Judge Valentine, in his opinion in the case of Dodge v. Coffin, 15 Kas. 285: “ In the absence of anything showing the contrary, we presume that the laws of other states are substantially the same as our own;” and in support of this, he cites a number of authorities. See also Hynes v. McDermott, N. Y. Common Pleas; 19 Am. Law Reg. (N. S.) 219; O’Rourk v. O’Rourk, Sup. Ct. Mich., reported in 9 Reporter, p. 471. Now if the cause of action is one which, if arising within this state, would spring solely from some special and local statute, and not independent of statute from general law, it may perhaps be that there would be no presumption of a similar statute in the foreign jurisdiction, and that a special averment of its existence would be essential. But that is not this case, and therefore calls for no determination at present. Here, the act complained of is one which, independent of any local statute, and by virtue of general law, both civil and common, gives-to the injured party a right of action. It is an act which, by the plainest principles of natural justice, entitles the sufferer to compensation; and that such an act, wherever done, creates a cause of action, we are to presume. Perhaps it may be better stated to say that we are to presume that no local enactment exists to deprive a party of a cause of action to which natural justice would otherwise entitle him. If the charge were that defendant had taken and appropriated to his own use the property of plaintiff, must the petition also allege that the law of the state where this wrong was done forbids such wrong ? We think not; the existence of a local law which countenances such a wrong, or denies relief therefor, is matter of defense. Nay, more: we think that if it were affirmatively shown that the act was done in a locality in which there was-and had been no organized government, and no body of law ever put in force, that a party coming into our courts would be entitled to relief in accordance with the law and policy of this state.
Without pursuing this line of thought further, we hold that, prima fade, a cause of action was stated, and that the district court erred in sustaining the objection.
The judgment of the district court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring.
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Per Curiam:
On the trial of this case, the defendants demurred to the plaintiff’s evidence on the ground that it did not prove a cause of action. The court sustained the demurrer, and then rendered judgment in favor of the defendants, and against the plaintiff for costs. On the fifth day thereafter, the plaintiff filed a motion for a new trial, which motion was overruled by the court. The plaintiff then brought the case to this court for review.
The judgment of the court below must be affirmed. This necessarily follows from numerous decisions already made by this court, among which see: Nesbit v. Hines, 17 Kas. 316; Fowler v. Young, 19 Kas. 150; Lucas v. Sturr, 21 Kas. 480; City of Atchison v. Byrnes, 22 Kas. 65, 67, 68.
The demurrer to evidence and the ruling thereon is merely one step in the progress of the trial. (Civil Code, §275.) Such ruling is a decision “occurring at the trial,” made during the progress of the trial, and while the jury are still in their box ; and where the decision sustains the demurrer: as in this case, it is equivalent to an instruction to the jury to find for the demurring party. And while such a decision is based primarily upon a want of evidence, yet this very want of evidence may have been caused by a prior ruling excluding evidence. We think it follows from the foregoing decisions, that in order to enable the supreme court to review a decision of the trial court sustaining a demurrer to evidence, it is necessary that a motion for a new trial should be made, and that it should be filed within three days after the decision of the trial court is rendered.
Judgment affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the nature of ejectment, tried before the district court of Chase county, with a jury. The action was commenced originally in. Green wood county. Certain facts were agreed to, and all the evidence produced is incorporated in the record. The facts agreed upon are substantially as follows: The land in controversy was owned by one William H. Hallett, who died Januaxy 17th, 1868, leaving a widow, Maria E. Hallett, and three children, named and born respectively as follows: Marietta Hallett, born April 3d, 1858; Chax'les H. Hallett, born April 20th, 1862; William W. Hallett, born April 8th, 1867. The latter, William W. Hallett, died Max’ch 6th, 1868, and the widow, Maria E. Hallett, married one R. A. Hitchcock, July 4th, 1868. In February, 1871, she and her two children, Marietta and Charles H. Hallett, died. The widow, Maria E. Hallett, and her children, continued to occupy the land from and after the death of William H. Hallett, as their residence and homestead,'until the marriage of the widow with Hitchcock, from which time they all so occupied it until the mother and children died, and then Hitchcock was left in possession. Hitchcock deeded the land to W. L. Russell, plaintiff in error, June 14th, 1871. The father of William H. Hallett died in April, 1862. The defendant in error (plaintiff below), Sarah C. Hallett, is the mother of William H. Hallett, and the grandmother, on the father’s side, of Marietta and Charles H. Hallett.
The jury, in answer to certain questions, returned the finding that Maria E. Hitchcock and her children, Marietta Hallett and Charles H. Hallett, died in the same calamity and all at the same time, in Fall river, Greenwood county, in this state, on the morning of February 24th, 1871. The defendant in error, Sarah C. Hallett, claims that she inherited the property from her grandchildren, Marietta and Charles' H. Hallett — both of the parents of the latter being dead. On the part of the plaintiffs in error, it is contended that R. A. Hitchcock inherited all the property, and that W. L.' Russell, at the commencement of the action, was the owner of it under the conveyance to him by the deed of Hitchcock of June 14th, 1871..
The first question presented is, whether Maria E. Hitchcock, the mother of Marietta and Charles H. Hallett, survived her children ? Counsel of plaintiffs in error claim the court erred in its direction to the. jury concerning survivor-ship, and that the jury arbitrarily disregarded evidence proving conclusively that the mother survived her children. It is contended by such counsel that the presumption of fact is-that the children being of tender years, perished first. Upon this point, the court instructed the jury:
“That when several persons lose their lives by the same event, there is no presumption of law as to survivorship based upon age or sex, nor is there any presumption that they all died at the same moment. The law makes no presumption on the subject, but leaves the survivorship, to be determined as a fact by evidence, and the burden of proof is on the party asserting the affirmative.”
This is correct, and the court committed no error in thus instructing. In Newell v. Nichols, 75 N. Y. 78, the law of survivorship has been examined very recently, and the doctrine above stated fully sustained. That was a case of a mother, her married son, and his two children, aged two and seven years, who perished by drowning on the steamer Schiller, when that vessel was wrecked in 1875. Church, C. J., says:
“It is not impossible for two persons to die at the same time, and when exposed to the same peril under like circumstances, it is not as a question of probability very unlikely to happen. At most, the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life-struggle one or the other may have first ceased to gasp.”
In the absence of other evidence, the fact as to who was the survivor, where several persons perish in the same catastrophe, is assumed to be unascertainable, and property rights are disposed of as if death occurred to all at the same time. "While therefore it is correct to say the law makes no presumption on the subject, the practical consequence is nearly the same as if the law presumed all to have perished at the same moment. In re Hall, 8 Ch. L. N. 68; (Cent. L. J., No. 20, vol. 9, 381, 382;) Newell v. Nichols, 19 N. Y. Sup. Ct. 604; Coye v. Leach, 8 Metc. (49 Mass.) 371.
The testimony of Jonathan Hodgson, which counsel claim was disregarded, was to the effect that on February 24th, he was sleeping in a cabin near Fall river, about nine rods from where Mrs. Hitchcock was found drowned; that he was acquainted with her voice, and that he was awakened on the morning of the 24th by hearing Mrs. Hitchcock calling out:. “Mr. Hodgson, save me! I am drowning!”; that his first impression was' that he was dreaming; that he dressed himself, told his son to get up and make a fire in the furnace; that he then went outside of the cabin, and immediately returned, exclaiming, “The Hitchcock family must be all drowned!” as he had discovered Hitchcock’s wagon on the opposite side of the river in the water, turned upside down, and no one in sight; that he heard no calls from any other than Mrs. Hitchcock, and that the sound of her voice proceeded from the direction in which the wagon was found in the river. It is attempted to be assumed from this, that as the children did'not call for help, or that as Mr.( Hodgson did not hear any calls from them, they were not alive when Mrs. H.’s cries were heard. The testimony does not conclusively establish what is claimed. Being younger and lighter, the children might have been swept by the current of the river further down (such was the fact as clearly disclosed by the evidence), and their calls, if any, might not have reached him by reason of distance. Again, the children may have called for help when their mother did, but her voice being stronger, was the only one heard. Many theories present themselves, but it is useless for us to speculate about ■the matter. The issue was fairly submitted to the jury, the instructions thereon were properly given, the jury were the judges of the facts and all the circumstances attending the drowning of the mother and the children, and we perceive no reason to overturn the finding on this point. It is however a waste of time to discuss further these findings, and we have only considered them to state the law applicable thereto, .as in our view of the law of descents and distributions, a new ■trial must be awarded, owing to the misdirection of the court in regard to the amount of land the defendant in error inherited, if all the family perished at the same moment. As to this, the court instructed: “If you find that all perished .at the same time, then the half-interest in the homestead passed or ascended to the grandmother, and the interest of the wife passed to her husband, and in this case plaintiff ■(defendant in error) is entitled to recover an undivided half-interest in the property in question.”
When William H. Hallett died, January 17th, 1868, one- half of his real estate went to his widow, and the other half to his children. When William W. Hallett, minor, died, March 6th, 1868, an undivided one-twelfth interest went to-his mother, Maria E. Hitchcock, and the balance to his-brother and sister. (Comp. Laws 1879; p. 380, § 21.) When the children and their mother perished, February 24th, 1871,, Mrs. Hitchcock’s undivided interest, being one-half (-|-) plus one-twelfth (^), went to her surviving husband, and the two-children’s interest, being two-sixths (•§) plus one-twelfth (-^)?- went to the heirs of both father and -mother equally. The statute provides: “If both parents be dead, it shall be disposed of in the same manner as if they, or either of them, had outlived the intestate, and died in the possession and ownership of the portion thus falling to their share, or to either of them, and so on through ascending ancestors and their issue.” (Secs. 20 and 21, supra.) The heir of the mother was her surviving husband. The heir of the father was his mother (Mrs. Sarah C. Hallett), the defendant in error. Thus, R.. A. Hitchcock inherited one-half of the children’s interest from his dead wife, and the grandmother, Sarah C. Hallett, also inherited one-half of the children’s interest. Hitchcock would be entitled to one-half, plus one-twelfth, plus one-sixth,, plus one twenty-fourth, aggregating nineteen twenty-fourths of the property; and Sarah C. Hallett would be entitled to only five twenty-fourths. The deed of Hitchcock to Russell, of June 14th, 1871, conveyed to the latter nineteen twenty-fourths (^) of the land. The instruction concerning the-law of descents and distributions was therefore erroneously given. If all the family perished at the same moment,, only five twenty-fourths (^) interest in the homestead passed or ascended to the grandmother.
As all the facts in the case were not agreed upon, and as the court erred in its direction concerning the descent and distribution of the property, we cannot direct the court below to enter judgment, but must award á new trial.
The judgment of the district court will be reversed, and) case remanded.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of quo warranto, brought by the attorney general, challenging the right of defendant to transact business. The claim is, that defendant is carrying on the business of life insurance without authority therefor, and in conflict with the provisions of the law of 1871 creating the insurance department, and its several amendments.
The first question arises upon these facts: Sec. 78 of the law of 1871 (Laws 1871, p.248) reads: “The provisions of this act shall not apply to life insurance companies organized on the cooperative plan.” Sec. 6 of chap. 112, Laws 1875, p. 172, purports to amend this, and reads: “Section seventy-eight is hereby amended so as to read as follows: Section 78. The provisions of this act shall not be construed so as to prevent any Masonic, Odd Fellow, religious or benevolent society of this state from issuing indemnity to any one against loss by death of any of its members.” The constitutionality of this latter section is denied, and the claim is that original section seventy-eight being still in force, by its terms excludes defendant from the operation of the insurance law. The ground of attack upon the amending section is a conflict with the first clause of section 16, of article 2 of the constitution, which provides that “ no bill shall contain more than one subject, which shall be clearly expressed in its title.” Chap. 112 of the Laws of 1875 is entitled “An act to amend sections two, four, seventeen, forty-one and fifty-nine of an act entitled,” etc., giving , the title of the act of 1871. Nothing is said in the title about section-78, no intimation of any intent to amend that, and its subject-matter is entirely distinct from that of the five sections which are named in the title. That is, while the title names five, the act touches six sections. A certain shbject is clearly expressed in the title, i. e., the amendment of five specific sections. So far as the act follows the title, it is without question; but it goes beyond, and after doing all that its title intimates that it will do, it reaches out for something entirely separate and independent. Surely, if the title is to be an expression or suggestion of what the act contains, this title fails. And the title, it will be noticed, is not general and comprehensive, but particular and limited. Instead of being to amend the insurance law, under which general title an amendment of any section would be in order, it selects and names five sections which it proposes to amend. Could any title be more plainly limited than that? Would it by the remotest possibility suggest inquiry as to anything beyond those sections ? It is true that the title is a matter of legislative selection, and that it could in this case have chosen one broad enough to include the challenged section, but it did not, and the courts have no more power to enlarge the title than to amend the law. As was said by the supreme court of Missouri in the case of The City of St. Louis v. Tiebel, 42 Mo. 592, “If the legislature has seen proper to make the title restrictive, the court has no authority, by mere construction, to enlarge it, or make it more comprehensive.” (Menwhertin v. Price, 11 Ind. 199.) The constitution has said that the title must be an index to the law, and the courts may not sanction as a valid enactment any part of a statute to which the finger of the title does not point. If we should attempt to enlarge the title, we should defeat the very purpose of the constitutional prohibition, which was to make the title to a bill notice of all contemplated legislation. It is said by Cooley, in his work on Constitutional Limitations, p. 149:
“As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded, because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title; they are vested with ho dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been more comprehensive, if in fact the legislature have not seen fit to make it so.”
Our own state furnishes illustrations of titles broad and comprehensive, as well as of those limited and restrictive, some of which have come before this court for consideration. In Bowman v. Cockrill, 6 Kas. 311, the title was broad — “To provide for the assessment and collection of taxes;” and a statute of limitations included in the act was sustained, because designed to aid in the collection of taxes. So in Prescott v. Beebe, 17 Kas. 320, the title was, “ To provide for the sale of school lands; ” and a section declaring the lands taxable after the contract of purchase, was sustained as showing one of the terms of the sale. On the other hand, in Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 600, the limitation in the title was “defining the boundaries of counties;” and in the act, provisions for apportionment of indebtedness and collection of taxes were held outside the scope of the statute. So in Swayze v. Britton, 17 Kas. 625, under a title, “ Concerning notaries public,” a majority of this court held that a section changing the manner of serving notices of protest was invalid. See also Division of Howard Co., 15 Kas. 195; Davis v. Turner, 21 Kas. 131; In re Holcomb, 21 Kas. 628 ; The State v. Ewing, 22 Kas. 708. We hold, therefore, that where' the title specifically names five sections which it proposes to amend, an attempted amendment in the body of the law of a sixth section, entirely independent in its subject-, matter, is outside the scope of the statute, and must fail. Original §78, of the law of 1871, having never been amended, is still in force, and is the law of the state.
We pass, therefore, to the second question, and that is, whether this is a “life insurance company organized on the cooperative plan.” There is little difficulty in answering this question. The defendant corporation has no stock; it proposes no accumulation of assets out of which to pay losses; it holds no reserve. It simply collects an assessment from its members on occasion of a death, and pays the amount to the beneficiary. The purpose of the incorporation is stated in the second article of its charter:
“The object or purpose of this association shall be the •creation of a fund, by making mutual pledges and giving valid obligations of its members to and with each other, for their own insurance from loss by death of its members; the preservation of the fund from mismanagement and loss, by the judicious investment of the same in registered bonds of the United States; and its equitable distribution among the families or designated beneficiaries of deceased members.”
The sixth article also provides:
“This association shall have no capital stock; it shall insure no life except that of its own members; it shall receive no premiums, nor make any dividend; and the private property of its members shall be exempt from corporate debts.”
That which distinguishes this from most cooperative insurance companies, is what is styled its guaranty fund. The corporation requires as a condition of membership, and at the time of joining, a deposit “of one dollar for each and every year of his age, counted at his nearest birthday, which deposit shall form a pledge or guaranty for the payment of assessments for death losses and annual dues.” (Art. 1, §4, of the Corp. Const.) But this fund is not a fund for the payment of losses, but a guaranty of the payment of assessments. Upon the death of a member, this guaranty deposit is paid to his beneficiary, and this in addition to and independent of the proceeds of the assessment. (Art. 3, §1.) Upon a failure to pay his assessments, the deposit is forfeited to the company, and the interest received upon the investment of the deposit belongs to the company, and from these accumula tions there may come a fund, out of which the amount which, would be due in case of a death can be paid without any assessment, and provision is made for such contingency. (Art. 2, §§ 3, 5; art. 3, §2.) But this provision against a large-accumulation of funds in no manner changes the character of the association. Its purpose and object is still the collection of assessments from living members, to pay the beneficiary of a deceased member. It is therefore an insurance company organized upon the cooperative plan, and exempt from the provisions of the law of 1871.
This disposes of this case, for chapter 115 of the Laws of 1879 purports to be simply supplemental to and amendatory of the original insurance law of 18/71, and its provisions obviously have no bearing upon cooperative insurance companies. With the wisdom of allowing such cooperative-insurance companies, and the policy of the legislature of the state concerning them, this court has nothing to do. That is a matter for legislative determination. It may allow any or forbid all. It has allowed cooperative insurance companies, of which the defendant is one, and until it orders-otherwise, the defendant may continue its business.
The demurrer will be sustained, and judgment ordered for defendant.
Valentine, J., concurring.
Horton, C. J., not sitting.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiifs, claiming to be the owners of an undivided half-interest in a tract of land in Wyandotte county, brought their action in the district court of that county to assert that right. The case was tried by the court, without a jury. A general finding and judgment were for defendants, and plaintiffs allege error.
The facts are these: The land was patented to Nancy Bluejacket, a Shawnee Indian, whose Indian name was Wahna-so, and patented under the treaty of May 10, 1854. She died unmarried, and both parties hereto claim to be the heirs, or to hold under heirs. The plaintiffs and Mary Rogers, under whom defendants claim, bore the same blood relationship to her, the plaintiffs being the children of a sister, and Mary Rogers the daughter of a brother. Under the Kansas law of descents, the plaintiffs would shore equally with Mary Rogers in the inheritance. But it also appears that the mother of plaintiffs was married to a Wyandotte, and lived with that tribe, and that her husband, the father of plaintiffs, received land and annuities as a member of that tribe, while the father and mother of Mary Rogers were both Shawnees. In other words, Mary Rogers was a full-blooded Shawnee, and plaintiffs were half-bloods only. It further appears that in 1868 the Shawnee council established a rule of descents, which would cast the entire inheritance upon* members of the tribe to the exclusion of all others, and that after the death of Nancy Bluejacket, they declared that Mary Rogers was her sole heir. In other words, the case stands thus: If this land descended in accordance with the Kansas law of inheritance, plaintiffs are entitled to recover; if by the law of the Shawnee nation, they have no interest in the property. Which law prevails? We think this question is fully answered by the decision of the supreme court of the United States, the court of last resort in such questions, in the case of The Kansas Indians, 5 Wall. 737, a case which went up on error from this court, and in which the treaty of 1854, under which this land was patented, was the very matter under consideration. In that case the court says:
“The treaty of 1854 left the Shawnee people a united 'tribe, with a declaration of their dependence on the national government for protection, and the vindication of their rights. Ever since this, their tribal organization has remained as it was before. They have elective chiefs, and an elective council, meeting at stated periods, keeping a record of their proceedings, with powers regulated by custom, by which they punish offenses, adjust differences, and exercise a general oversight over the affairs of the nation. This people have their own customs and laws, by which they are governed. Because some of those customs have been abandoned, owing to the proximity of their white neighbors, may be an evidence of the superior influence of our race, but. does not tend to prove that their tribal organization is not preserved. There is no evidence in the record to show that the Indians with separate estates have not the same rights in the tribe as those whose estates are held in common. Their machinery of government, though simple, is adapted to their intelligence and wants, and effective, with faithful agents to watch over them. If broken into, it is the natural result of Shawnees and whites owning adjoining plantations, and living and trafficking together as neighbors and friends. But the action of the political department of the government settles, beyond controversy, that the Shawnees are as yet a distinct people, with a perfect tribal organization. Within a very recent period, their head-men negotiated a treaty with the United States, which, for some reason not explained in the record, was either not sent to the senate, or, if sent, not ratified, and they are under the charge of an agent who constantly resides with them. While the general government has a superintending care over their interests, and continues to treat with them as a nation, the state of Kansas is estopped from denying their title to it. She accepted this status when she accepted the act admitting her into the Union. Conferring rights and privileges on these Indians cannot affect their situation, which can only be changed by treaty stipulation, or a voluntary abandonment of their tribal organization. As long as the United States recognizes their national character, they are under the protection of treaties and the laws of congress, and their property is withdrawn from the operation of state laws.”
This decision was in 1866. - Since then it is not pretended that there has been any treaty changing their relations to the government, or releasing tribal control of persons or property. Unless, then, within that decision, there has been a voluntary abandonment of tribal organization, (and that question is one to be conclusively settled by the political department of the government,) the Shawnee law of descents and the decision of the Shawnee council are final and conclusive against the plaintiffs’ rights. That the question of the continuance of the tribal organization is one for the 'decision of the political department of the government, is also affirmed in United States v. Holliday, 3 Wall. 419, where Mr. Justice Miller, speaking for the court, uses this language: “ The facts in the case . . . show distinctly that the Secretary of the. Interior and the commissioner of Indian affairs have decided that it is necessary, in order to carry into effect the provisions of said treaty, that the tribal organization should be preserved. In reference to all matters of this kind, it is the rule of this court to follow the action of the executive and other political departments of the government, whose more special duty it is to determine such affairs. If by them those Indians are recognized as a tribe, this court must do the same.” (See also Gulf Rld. Co. v. Morris, 13 Kas. 315.)
It appears that sometime in 1872 the bulk of the Shawnee tribe moved away from Kansas, to the Indian territory, and occupied a part of the Cherokee reservation that since then the government has had no separate agent for that tribe, and that they have not only been domiciled among the Cherokees, but to some extent under the control of the Cherokee council and united with the Cherokees. As one witness expressed it, “ The Cherokee laws govern us as to general police regulations and crime. The Shawnee council act as to ownership of property.” If the question were one of fact for original determination in the courts, it might be difficult to hold from the testimony, that a distinct, independent tribal organization remained. But, as we have seen, that question is for the political branch of the government, and the courts follow its ruling. Now it appears that the agent for the Cherokees acts as agent for the Shawnees; that he convenes their council; that that council acts upon questions of property and heirship, and that its acts thereon are received and recognized in the interior department at Washington; and that since the decease of Nancy Bluejacket and the decision of the council as to the inheritance of her property, and about the time of the trial of this case in the district court, the interior department promulgated rules and. regulations for the conveyance of Shawnee Indian lands in this state, in which the existence of the tribe and the power of its chiefs are distinctly recognized. Under those circumstances, it is not for the courts to say that the tribal organization has been abandoned. Though the tribe may have dwindled in numbers, though its chief domicile may have been changed, though for many purposes it may have been merged into some other tribe, yet so long as the government recognizes its tribal existence and a tribal control of persons and property, such recognition is conclusive upon the courts. This is the substantial question in the case, and the ruling of the district court was correct.
The judgment will be affirmed.
All the Justices concurring.
Valentine, J.:
I think the foregoing opinion follows the decision of the supreme court of the United States in the case of The Kansas Indians, 72 U. S. (5 Wall.) 737, and that the opinion is right if the decision which it follows is right; therefore I concur.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced before a justice of the peace of Lyon county, Kansas, by C. E. Geisendorff & Co., against William Powell, to recover damages for the wrongful obtaining of money belonging to the plaintiffs. The facts of the case, so far as it is necessary to state them, are substantially as follows: In 1877, and subsequently, Geisendorff & Co. resided at Indianapolis, Indiana, and Powell resided at Emporia, in Lyon county, Kansas. D. Thomas, who also resided at Emporia, owed Geisendorff & Co. about $152.24. Neither Geisendorff & Co. nor Powell owed the other anything, nor did either have any cause of action against the other; but Powell nevertheless sued Geisendorff & Co., before a justice of the peace of said Lyon county, for $73.15 and costs, for (as Powell alleged in his bill of particulars) “money paid, laid out and expended for the use and benefit of said defendants, and at their special instance and request.” Attachment and garnishment proceedings were also had in the case. Powell procured service of summons on Geisendorff & Co. by publication in a newspaper, and garnisheed 'said D. Thomas. Geisendorff & Co. made no appearance in the case, nor did they know anything about the case until long afterward. Thomas answered as garnishee. Powell obtained a judgment against Geisendorff & Co. for the amount he claimed, with costs, amounting to $84.15, and also obtained a judgment ordering Thomas to pay such amount into court, in satisfaction of such judgment, which Thomas did; and Powell received the same in satisfaction of such judgment. Geisendorff & Co. did not have any notice, in fact, of any of these proceedings until some time after they occurred; and when they did obtain actual notice thereof, they commenced this action. This action was commenced on February 13, 1878, before a justice of the peace of said Lyon county, by Geisendorff & Co., against Powell, to recover from Powell the sum of $84.85, with interest and costs, because and on.account of said wrongful suit and attachment proceedings brought by Powell against Geisendorff & Co., and because of the wrongful obtaining of said money. The'plaintiffs’ bill of particulars in this case set forth all the facts of their case, and in much greater detail than we have stated them, so that if the plaintiffs had a cause of action at all, upon all the facts of their case, or upon any portion of them, they certainly set it forth in their bill of particulars. Judgment was rendered in favor of the plaintiffs, in the justice’s court, and the defendant appealed to the district court, where the same judgment was again rendered, and the defendant then, as plaintiff in error, brought the case to this court.
We think that the only substantial question involved in this case is, whether the facts of the case authorize the judgment that was in fact rendered. It is immaterial whether the court below, considered the action as an action merely upon the attachment bond, or as an action upon all the facts, including such bond; as all the facts were set forth in the plaintiff’s bill of particulars, and proved on the trial. Powell’s suit against Geisendorff & Co., was certainly wrongful; the attachment was wrongfully obtained; the garnishment proceedings were also wrongful; the obtaining of said $84.85 from Thomas was undoubtedly wrongful; and indeed the whole proceeding from beginning to end was wrongful, and Powell gave an attachment bond signed by himself and one J. M. Hays, binding the obligors unto Geisendorff & Co., “in the sum of $200, conditioned that said plaintiff [Powell] will pay said defendants [Geisendorff & Co.] all damages which they may sustain by reason of the attachment in this cause, if the order therefor be wrongfully obtained.”
That all the proceedings in the case of Powell against Geisendorff & Co., including the obtaining of said $84.85 from Geisendorff & Co.’s debtor, we think must be admitted were wrongful. That is, they were wrongful in fact, however we may consider them in law; and being wrongful in fact, have Geisendorff & Co., any remedy? Powell, through his counsel, says not. And the principal if not the only reason for so saying is, that the whole subject-matter of the controversy has been settled, and adjudicated finally and conclusively, by said attachment suit of Powell against GeisendorfF & Co. Counsel claim that although in fact said $84.85 may have been obtained wrongfully from GeisendorfF & Co.’s debtor, yet that in law, the question of the rightfulness or; wrongfulness of the transaction was adjudicated and settled in said attachment suit; that the matter has thus become res adjudicata; and that as the judgment in that suit authorized the payment by Thomas, and the reception by Powell of said $84.85, the whole thing must now be considered as rightful.
Counsel are probably partially right, and partially wrong. The disposal of said $84.85 has probably been conclusively adjudicated, and therefore no question tending to disturb the title to this money can now be raised by any of the parties. The court had jurisdiction over the money, and therefore, for the purpose of its disposal, had the power to determine all questions necessary for its disposal; but with the determination of these questions for this purpose, the- power of the court terminated. It could not determine any question that would be binding upon Geisendorff & Co. personally, for it did not have jurisdiction over their persons. With regard to Geisendorff & Co. personally, the court could not say that the transfer of said money from Geisendorff & Co., or from Thomas to Powell, was right; and with regard to them personally, no judgment rendered in the case could be considered as res adjudicata. This we think has been settled in the case of Hoshaw v. Hoshaw, 8 Blackf. (Ind.) 258. See also Melhap v. Doane, 31 Iowa,, pp. 399-407, and authorities there cited. See also Alexander v. Hutchison, 9 Ala. 825, 826. See also 1 Greenleaf on Evidence, § 542, which reads as follows :
“Proceedings also by creditors against the personal property of their debtor, in the hands of third persons, or against debts due to him by such third persons (commonly called the process of foreign attachment, or garnishment, or trustee process), are treated as in some sense proceedings in rem, and are deemed entitled to the same consideration. But in this last class of cases we are especially to bear in mind, that, to make any judgment effectual, the court must possess and exercise a rightful jurisdiction oyer the res, and also over the person, at least so far as the res is concerned, otherwise it will be disregarded; and if jurisdiction over the res be well founded, but not over the person, except as to the res, the judgment will not be either conclusive or binding upon the party in personam, although it may be in rem.”
See also Story on Conflict of Laws, §§549, 592a.
Therefore, upon reason and authority, we are inclined to think that, as between Geisendorff & Co. on the one side and Powell on the other, and in a proceeding not intended to overturn or question the title to the property obtained by virtue of the attachment and garnishment proceedings, nothing is res adjudioata;, and therefore upon the facts pleaded and proved in this case, we think the judgment of the court below is correct, and must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for murder in the first degree. But the defendant was found guilty of an assault and battery only, and was sentenced to pay a fine of $200 and costs, and to be imprisoned in the county jail until such fine and costs were paid. He is now suffering such imprisonment under said sentence; and to release himself therefrom, he not only brings the case to this court on appeal, but also applies for a writ of habeas corpus. With the views that we entertain of the questions involved in these two cases, it is unnecessary to discuss the questions aris ing on the application for the writ of habeas corpus; for after we decide the case on the appeal, the imprisonment then ensuing will be legal, whether the imprisonment is now legal or not. The writ of habeas corpus will be denied. We shall now proceed to discuss the case on the appeal.
I. The defendant claims that the information upon which he was tried was insufficient, because it set forth that the assault, battery and killing, with which he was charged, were done in two' different ways: First, by means of blows from “some deadly weapon or instrument, the kind and description of which are unknown; ” and, second, by means of blows from his “hand and fist.” The information contained two ■counts, in the first of which it was charged that the assault, battery and killing were done by means of said unknown deadly weapon, and in the second of which it was charged that they were done by means of the defendant’s hand and fist. There can certainly be no objection to this mode of pleading or this mode of setting forth a crime. (1 Wharton Crim. Law, §§ 424, 425, 426.) We think the information was sufficient.
II. The defendant also claims that as he was charged with murder in the first degree, he could not legally be found guilty of, or sentenced for, a mere assault and battery. It is admitted that this could not be done at common law; but the reason for the rule at common law never had any existence in Kansas, and therefore, according to a well-recognized legal maxim, the rule itself never had any existence in Kansas. Besides, we have a statute that governs in just such cases. 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 degree charged in the indictment, and guilty of .any degree inferior thereto, or of an attempt to commit the •offense.
“Sec. 122. Upon the 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.” (Comp. Laws., of 1879, p. 747.)
Counsel for the defendant say in their brief: “Nor is therein this state any such crime as the attempt to commit murder, or the attempt to commit manslaughter.” Evidently, counsel have overlooked § 283 of the crimes act. (Comp. Laws of 1879, p. 370.)
At common law, a defendant charged with committing a. felony could not be convicted of committing a misdemeanor. This, however, as we have seen, has been changed in this-state by statute. (See said §§121 and 122, and Guy v. The State, 1 Kas. 448.) And so has the common law rule been changed in many of the other states. (See cases cited by counsel for the state, and 1 Wharton’s Crim. Law, § 400, and cases there cited.) The assault and battery of which the defendant was convicted, were clearly and necessarily included in the supposed murder with which he was charged. That-is, the assault and battery of which the defendant was found guilty were necessary constituents and ingredients of the-murder charged against him. Therefore, under said § 122, the defendant could properly be -found guilty of the assault, and battery only. The decision in the case of Wright v. The State, 5 Ind. 527, we suppose, is good law in Indiana, but it. is not good law in Kansas. The jury in this case evidently had doubts as to whether the death of the deceased was caused by the said assault and battery of the defendant, or by some-other cause or causes ; and therefore, upon that question, they gave the benefit of the doubt to the defendant, and found in-his favor, as to the cause of the death.
III. We think the court below erred in taxing costs. It. taxed $5 costs against the defendant for drawing the information, when it should have taxed only $2.50 therefor. (Counties and county officers’ act, § 139; Comp. Laws of 1879, p. 298.) The law allows $5 to be taxed for drawing an information for a felony, and only $2.50 for drawing an information for a misdemeanor; and while the county at torney drew an information in this case that included both a misdemeanor and a felony, yet the. jury found the defendant guilty of the misdemeanor only, and therefore we think he should be required to pay costs only as for a misdemeanor. The judgment of the court below will be modified as to costs, so as to require the defendant to pay costs only as for a misdemeanor. In this court the costs will be divided equally between the county and the defendant. In all other respects, 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
Horton, C. J.:
The main question in this case is, whether an account stated between the parties as alleged in the petition was conclusively established by the testimony. After the plaintiff rested, the defendant announced he would offer .no evidence. Thereupon the plaintiff requested the court to instruct the jury to find for the plaintiff the amount prayed for in the petition. The court refused to give the instruction, and counsel urge that such refusal was material error, and they also allege that the verdict was contrary to the evidence. Upon the trial, the plaintiff read in evidence a letter of the defendant, of date of February 12, 1874, to its auditor, one S. T. Smith, stating that the total amount of Belford’s defalcations, as figured by Mr. Fleming and himself, was $7,582.11; that in his January report, sent by Mr. F., he reported as short, $5,042.07; that the balance, $2,540.04, would have to be reported in his February account; that it was pretty rough on him, but he proposed paying every dollar, but that he must have time. The letter further contained a statement of his own pecuniary condition, and the efforts on his part to obtain something out of the property of Belford. Smith was then produced as a witness, and testified:
“I was auditor of the Kansas Pacific railway company in 1873, 1874 and 1875, and have been till now, and as such have had during that time charge of all the accounts of the company at stations, or wherever they may be. A part of my duties is to keep account of all moneys received and paid out by agents and officers. T. J. Anderson was agent of the company at Topeka, in 1874, till sometime in March. [A paper is here shown witness.] This is a copy of statement of freight account at that station on the last day of February, 1874. I met Mr. Anderson in regard to that account three or four times at least. A copy of it, except as to heading, was furnished him. I saw it in his possession afterward. It was a copy, all but the heading; the figures were the same, and the balance was the same. He made no objection to it. It was the same thing as the account attached to the petition, stated in a different way, but the passenger account was omitted. Both balances are the same. I had interviews with Anderson from the 14th of February to the middle of March. This was the adjusted balance as ascertained at that time. It has never been paid.”
Plaintiff then read the account in evidence, which purported to be the monthly freight account of the defendant for February, 1874, inclusive of February 27th. A summary of it is as follows:
Balance as reported...............................................$9,127 15
Amount added...................................................... 425 00
Total............................................................$9,552 15
Amount deducted.................................................. 45 20
Balance, as corrected................ $9,506 95
Less amount of unpaid bills.................................... 1,889 79
Short in cash.................................................$7,617 16
On cross-examination he testified:
“ This account was made up from my records by my letter clerk. Clerks made up the books. I know nothing except from the books. Sent statement to Anderson 21st of March, 1874. I saw it with him afterward, or rather the paper that this was copied from. Think I sent several after and before this ; not all like this one; subsequent ones were different. Anderson not agent 21st of March; went out of office 14th of February. He had no control after that time. I don’t know what he had to do with making these accounts; they were given to him as matter of information. Don’t know that letters were sent with subsequent accounts.”
Here the testimony closed. Upon this testimony we do not perceive any error in the action of the court in refusing-to instruct the jury to return a verdict peremptorily for plaintiff, and in directing them to decide from the evidence, whether previous to the commencement of the action the defendant was indebted to the plaintiff on an account stated between the plaintiff and the defendant, or between the defendant and an agent of the plaintiff, nor for informing them that they were the exclusive judges of the evidence, of its weight, and of the credibility of the witness. There was nothing in the letter of the defendant establishing a stated account. It was dated before the defendant ceased to be agent for the plaintiff, and did not agree in amount with the alleged stated account. The proposal to pay was coupled with the condition: “ But I must have time." Again, while the defendant therein proposed to pay Belford’s defalcation, such proposition is a mere volunteer offer, as it nowhere appears in the letter or by any other evidence that Anderson was legally bound for Belford’s conduct. The intimation in the letter that Belford was an employé of the plaintiff carries with it the presumption that Anderson was not liable for the defalcation, and that his promise to pay the same was nudum pactum. This view leaves the claim of the plaintiff to rest solely on the testimony of Smith. On- this point counsel argue that the jury were not justified in finding that he did not testify to the truth. They say: “ He was a witness whose character was not assailed, and of undoubted capacity to testify what the facts were, and that his testimony ought not to have been repudiated.” Conceding for the argument that a stated account between the parties was proved, within the rule of law laid down by the court, if the evidence of Smith was believed by the jury, the question at once arises, were the jury bound to accept the statements of this witness as absolute verity ?
In Callison v. Smith, 20 Kas. 36, Mr. Justice Brewer, speaking for this court, said; “We cannot agree with the learned counsel, that because a witness testifies to a matter, it must be believed unless there be testimony directly impeach ing the witness or contradicting the testimony. The very matter stated by the witness may be too improbable to be believed by any intelligent person, and its mere statement is its own refutation, without a word of impeaching or contradictory testimony.”
In the late case of Molitor v. Robinson, 40 Mich., 201, 202, Judge Cooley said that the plaintiff “testified to purchasing the property in controversy in good faith and paying the purchase price in money. There being no distinct evidence to the contrary, plaintiff claimed that there was nothing on this branch of the case to leave to the jury; in other words, that good faith was conclusively made out by this evidence, thus left to stand uncontradicted. The circuit judge, however, held that the question must be submitted to the jury, and in this he was correct. The jury were under no obligation to believe the plaintiff's statement, and unless it convinced their reason they were entirely at liberty to reject it altogether. They must take the evidence with all its surroundings; and often other things which go to characterize a transaction are more convincing than positive evidence of any single witness, especially if an interested witness.” This case is not perhaps as strong an illustration of the right of a jury to disregard the testimony of witnesses as Callison v. Smith and Molitor v. Robinson, supra, and yet the principle announced in these cases is, to some degree, applicable here. As a general rule it belongs to a jury, in considering the weight of evidence, to pass upon the credit due to a witness. In what cases, if any, the uncontradicted and unimpeached oral testimony of a witness cannot be discredited by a jury is a matter of great difficulty to determine. Nor need we determine the question in this case. There was certainly enough evidence presented to raise a serious doubt as to the action of the defendant in the premises. Unless the evidence showed clearly that he understood that the account presented was a final adjustment of the respective demands between him and the plaintiff, a jury would hardly be compelled, under the most rigorous rule of implicitly accepting testimony, to find an adjustment between the parties. “There is no arbitrary-rule of law which renders an omission to object in a given time equivalent to an actual agreement or consent to the correctness of the account rendered; but it is merely competent evidence, subject to be rebutted by circumstances from which counter inferences may be drawn.” (Lockwood v. Thorne, 18 N. Y. 285.) No attempt was made on the trial to show any indebtedness existing between plaintiff and defendant prior to the alleged account being stated, outside of the letter of the defendant. The account furnished to defendant contained charges against him for all the month of February, 1874, yet Smith testified, “he went out of office on February 14th.” Again, the testimony was to the effect that the account sued on was sent to Anderson March 21st, and that several other statements or accounts were sent him after and before this, and that the subsequent ones were different; further, that these statements or accounts were given him as matters of information. Under these circumstances, why the officers of the plaintiff selected the statement furnished on March 21st as the adjusted balance, it is quite difficult to tell. The natural inference would be, that the later statements would be the adjusted balance, rather than the earlier ones. No promise to pay was testified to by Smith, and to hold the testimony concerning the omission of defendant to object to one of many statements furnished him for information as a conclusive admission of the correctness of his account which the jury were bound to accept, is carrying out the doctrine of inferences from silence further than we are willing to approve. Counter inferences to the testimony of omission to object appeared in the testimony of the witness, and these were proper considerations for the jury. We think the district judge was correct in submitting the case to the jury, and as their verdict has received the sanction of the trial court, we do not feel justified in setting the judgment aside.
We have considered all the other questions presented in the argument of counsel, but do not think it necessary to comment further than to remark that we perceive no mate rial error in the rulings and instructions of the court, and therefore the judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The statute provides that the clerk of the district court shall keep a record of the attendance of jurors at each term of the court, and within ten days after the close of each term, the clerk shall return to the board of county commissioners a statement of the attendance of jurors at such' term and their mileage as taken by him. The statute further provides, that the fees of the jurors shall be paid out of the county treasury. (Sections 16, 20 and 21 of Comp. Laws, of 1879, pp.445, 446.) Counsel for plaintiffs in error (defendants below) contends that these provisions a're of no avail, because §4, ch. 36, Laws of 1876, renders the warrants void. This section is as follows:
“That no contract shall be made, or indebtedness incurred, or order, warrant, or evidence of indebtedness'of the county of Leavenworth be drawn or issued on the treasurer in payment of any indebtedness to exceed the amount of funds on hand in the treasury to the credit of the fund on which the order is drawn at the time, after reserving therefrom a sum sufficient to pay the fees and salaries of the county officers, clerks and employés: And, provided further, That every order or warrant drawn on the treasury shall express on its face to whom issued, and for what purpose allowed, and the same shall be payable only to such person or his order.”
On the other hand, the counsel of the opposing interest alleges that §4 is no impediment to the issuance or payment of these warrants, because the section is void by virtue of § 16 of article 2 of the state constitution. The contention over the validity of said section is really the important matter for consideration. Involved in this, is the question whether §4, or any part thereof, is expressed in the title of the act of ch. 36, Laws 1876. The title reads: “An act authorizing the board of county commissioners of Leavenworth county to' issue bonds for the purpose of funding the outstanding indebtedness of the county, and for other purposes.” The words “ for other purposes,” it is conceded, do not add anything to the expression of the title', and may be considered as surplus-age and as nugatory. The title is confined to the subject of issuing bonds for the purpose of funding the outstanding indebtedness of the county. The title and the main provisions of the act relate to past indebtedness — to an outstanding indebtedness existing prior to the taking effect of the act. Section 4 relates to filture — to new or other indebtedness. It concerns a subject different and separate from what is expressed in the title of the act. The act is in fact broader than the title, and while the part indicated by the title may stand, section 4, not being indicated by the title, must fall. We therefore hold this section to be unconstitutional, as the subject-matter therein contained is not expressed in the title. (Comm’rs of Sedgwick County v. Bailey, 13 Kas. 600; Swayze v. Britton, 17 Kas. 627.) The suggestion that said section ought to be held valid, because it tends, indirectly, to appreciate the bonds issued to take up certain county indebted ness, by restricting the issuance of orders, warrants, etc., and thereby facilitating in some degree the funding of the outstanding indebtedness, is without special merit, as such purpose is only the remote result of the provisions of the section, and not directly connected with the subject of the act as indicated by the title.
The additional point is made, that at the second time of the presentation of the warrants for payment, the county treasurer had no moneys properly applicable for that purpose, and we are referred to § 3, ch. 120, Laws 1879. We hardly think the latter statute applicable. All of the rights of the defendant in error (plaintiff below) accrued before this section became a law. The agreed facts show that the warrants were presented for payment in November, 1878, and the treasurer then duly certified the same not paid for want of funds, and properly registered them for payment according to their presentation or priority. (Comp. Laws 1879, ch. 25, § 69.) The facts further show that when again presented the treasurer had in his hands sufficient money to pay them (if they were entitled to priority of payment) out of the general funds. We think they were entitled to such priority, (§ 69, supra,) and should have been paid.
The judgment of the court below will be affirmed.
All the Justices concurring.
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