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The opinion of the court was delivered by
Valentine, J.:
The main question involved in this case is, whether a, certain piece of land, owned by A. D. Ross, was exempt from a certain execution held by S. D. Leonard, sheriff of Harvey county, Kansas. Ross, who was plaintiff below, claims that it is so exempt under section 4 of the act of congress which enables actual settlers to secure homesteads on the public domain. (12 U. S. Stat. at Large, p. 393; U. S. Rev. Stat., p. 423, § 2296.) Said section reads as follows:
“ No lands acquired under the provisions of this act shall in any event become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.”
The facts necessary for a correct understanding of said question as presented in this case are as follows:
1. On May 3, 1873, Ross entered said.land under said homestead act of congress.
2. On October 25, 1873, Ross became surety on the official bond of G. D. Monger as treasurer of said Harvey county.
•3. On May 19, 1874, he made his final proof, and paid his money for his land under the 8th section of said homestead act, thus commuting residence by the payment of money.
4. At some time or times “between November 5, 1872, and October 12, 1874,” Monger and his sureties became liable on said official bond for breaches thereof designated as “defaults, deficits and conversions of money.”
5. On December 15, 1874, Ross’s patent for his land was issued to him.
6. On April 24, 1875, an action was brought by the commissioners of Harvey county against Monger and his sureties for said breaches of said official bond.
7. On December 27, 1876, a judgment was rendered against Monger and his sureties (including Ross) for said breaches of said bond, in the sum of $1,054.83.
8. Whereupon an execution was issued and levied upon said land by said sheriff to satisfy said judgment.
The principal questions involved in the main question are as follows:
1. Was the claim of Harvey county against Monger and his sureties at any time a “ debt” within the meaning of said homestead act, and if so, when did it become such debt?
2. When did said land become subject to executions for debts ?
The defendant in error Ross claims that the claim of the county commissioners of Harvey county against Monger and his sureties was a debt, and that it accrued when he (Ross) signed said official bond. Now, for the purposes of this case, we shall assume that said claim of the county commissioners of Harvey county was a debt, (though with our view of the other questions involved in the case, it makes no difference whether it was a debt, or some legal claim for damages.) But we cannot give our assent to the doctrine, that such debt accrued when said bond was executed. The claim evidently did not have any existence at that time, and probably did not have any existence for several months afterward. A penal bond (such as a county treasurer’s official bond is) does not of itself create a debt. It is not the “acknowledgment of an existing indebtedness,” (as was a recognizance in its original form,) as is claimed by the defendant in error; but it is simply a penal bond, to be void if no breach of the condition occurs, and, in effect, to cover only actual damages where some breach of the condition does occur. In our opinion, then, no debt accrued against Monger or his sureties, until some breach of the official bond occurred. And an argument might even be made that no debt accrued against the surety Ross, until judgment was rendered against him, for the breach of the bond; but we have assumed otherwise, and probably correctly, that for the purposes of this case, and of this class of cases, the debt accrued when the breach of the bond occurred. Then when did the breach of the bond occur? The record does not show, except that it shows that it occurred between two certain dates. Now as Ross was the plaintiff below, and upon him devolved the burden of proof; and as it will be presumed, in the absence of anything to the contrary, that Leonard, the officer, did his duty, and as all property is prima facie subject to execution,' it must be presumed that said breach occurred at the latest date fixed by the plaintiff, Ross. The parties agree that the breach occurred between Nov. 5,1872, and Oct. 12, and 1874; and this is as definite as they fix the time; hence, we must assume that the breach occurred just before Oct. 12,1874. But in our opinion, if it occurred at any time between May 19,1874, (the time when Ross made his final proof and payment,) and October 12, 1874, the land was subject to said execution. Ross was entitled to his patent on May 19, 1874, and therefore his rights must be determined as though the'patent had in fact been issued on that day. (Stark v. Starrs, 6 Wall. 402, 418; Levi v. Thompson, 4 How. 17; 3 How. 441; 4 Wall. 210; Myers v. Croft, 13 Wall. 291; Ogden v. Walters, 12 Kas. 284, 296; Stone v. Young, 5 Kas. 229, 231, 232; McMahon v. Welsh, 11 Kas. 292; Gulf Rld. Co. v. Morris, 13 Kas. 302, 318; Commissioners of Saline Co. v. Young, 18 Kas. 443; Bellinger v. White, 5 Neb. 399.)
The failure of the officers to issue the patent at the time that it ought to be issued, does not affect the rights of any person. The property becomes the purchaser’s at the time he pays for it, with the bare, naked legal title only remaining in the government. After Ross paid his money, he did not :any longer hold his land under the provisions of the congressional homestead act. When he paid for his land, he thereby took it out of the further operation of said homestead act; and after paying for it, he in fact abandoned it as a residence, which he could not properly have done, if he had still been holding it under the provisions of said homestead act. That provision of said homestead act which refers “to the issuing of the patent” has reference to that period of time when the patent ought to be issued, and not to the mere clerical work ■of issuing it.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring.
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Per Curiam:
The judgment in this case will be reversed, and the case remanded with instructions to grant a new trial.
This decision is made on the authority of Sumner v. McFarlan, 15 Kas. 600; Hallowed v. Milne, 16 Kas. 65; Hall v. Draper, 20 Kas. 137.
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The opinion of the court was delivered by
Horton, C. J.:
It appears from the agreed statement of facts, that Bucldand and Goit were each candidates at the general election in November, 1877, for the office of justice of the peace of Great Bend township; that the proper board of canvassers duly declared Goit elected to the office, and issued to him a certificate of election; that he filed his official bond and oath of office at the time and in the manner prescribed by law. This certificate of election, being regular in form, and signed by proper authority, and being issued upon a legal canvass of the votes of the election, constitutes prima faoie evidence of title to the office in Goit, which can only be set aside by such proceedings for contesting the election as the law provides; ' and as he qualified as required by law, he is entitled to the office as against every other person laying claim thereto, until the result so declared is legally set aside. Bucldand “cannot avoid the effect of the decision of the canvassers by simply holding on to the office, and claiming that the decision of the canvassers was erroneous, or that the electors who cast the votes were not legal electors, or that fraud was practiced which, when investigated, would show a different result. The law will not permit him, on the pretense of championing the losing party, to hold on to the office for his own benefit.” (The Supervisors v. O’Malley, 46 Wis. 35; McCrary on Elections, § 204.)
Any other doctrine would be most pernicious in its results. Any evil-disposed person in office at an election might contest the right of his successful rival, without any reason therefor, other than to protract the contest as long as possible, in order to deprive the holder of the certificate of a part of his term. The particular facts of the case of The State v. Durkee, 12 Kas. 308, to which we are referred, are not like the facts here; and hence that case is not applicable.
The mere pendency of the contest over the election brought by Bucldand, as a contestor against Goit, as contestee, is no valid defense in this action; and as Bucldand, under the agreed statement of facts, does not show himself entitled to the office in contention, it follows that he is wrongfully holding the office of justice of the peace, and therefore judgment will be rendered in favor of the state and against the defendant, as prayed for in plaintiff's petition. We deem it unnecessary to consider the motion filed for judgment on the pleadings, as the parties have agreed upon the facts, and hence no additional pleadings are requisite, or if needed they will be considered as made.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
At the October term of the district court of Chautauqua county for 1879, the defendant was convicted of obstructing a road or highway under § 17, of chapter 89, Comp. Laws 1879, p. 812, and adjudged to pay a fine of one-hundred dollars. From this judgment he appeals.
The principal question in the case is, .whether the failure to give the notice to the land-owner and file in the county clerk’s office the papers and affidavits required.by § 4, of chapter 89, Comp. Laws 1879, (§4, ch. 108, Laws 1874,) invalidates the proceedings for laying out the road which the defendant is charged with obstructing. At the January term of the court for 1874, it was decided in Commissioners of Leavenworth Co. v. Espen, 12 Kas. 531, that the notice under § 4, ch. 89, Gen. Stat. of 1868, was not jurisdictional; that it had respect not so much to the laying-out of the road, as to the compensation of the owner of the property to be taken. The legislature, in an act relating to roads and highways, approved March 7th, 1874, added these words to section 4: “Copies of said notice to owners of lands, with affidavits of service attached, shall be filed in the county clerk’s office before said road shall be established.” It is a canon of construction, to give effect to the intent of the law-giver. When, therefore, the legislature assumed to change §4, of ch. 89, Gen. Stat. 1868, by the adoption of §4, ch. 108, Laws 1874, it is fair to suppose, in view of the interpretation then given to this section by this court, that the additional words were added for some purpose, and that purpose the correction by legislation of what was supposed to be a defect in the original law. In brief, that the legislature intended to make the notice required by §4, jurisdictional, and to accomplish this, expressly provided in the new act that before a road should be established, copies of the notice with affidavits of service must be filed in the county clerk’s office. We are bound to enforce' the legislative intent, and conclude that as the law now stands, a county boat'd has no power to establish a road without first compelling a compliance with the provisions of §4.
The establishment of a road within the language of chapters 89 and 108 seems to refer to the official order of a county board for the'recording of the survey and plat of the road for a public highway. Hence, before this order is made, the county board must see that tiie papers and affidavits mentioned in §4 are on file as required by law. As to the wisdom or policy of the change of the law of 1868 by the provisions of the act of 1874, we have nothing whatever to do. The legislature has seen fit to amend the law of 1868, and we ought not construe away the added words. “ It is the function of a judge,” says Coke, “not to make, but to declare the law according to the golden metewand of the law, and not by the crooked cord of discretion.”
The other questions are unimportant, in view of the fact that the defendant was in the occupation of the land, and claimed to be entitled to it under the right of preemption. As the road in question was never legally established, the conviction of the defendant was improper.
The judgment of the district court will be reversed, and cause remanded.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Julia A. Reeve, the defendant in error, brought suit before a justice of the peace of Chase county, against John T. and William E. Prather, to recover damages committed by their stock trespassing upon her lands in the fall of 1877, and also in the fall of 1878. The justice gave judgment in favor of the plaintiff, and the Prathers appealed to the district court. Trial was had at the May term, 1879, before a court and a jury. Judgment for the plaintiff for $67.50, and costs. The Prathers excepted, and bring the case here.
It is claimed on the part of [the plaintiffs in error (defendants below), that as no evidence was introduced upon the trial tending to prove that fence viewers ever viewed the fence of defendant in error (the plaintiff below), or assessed her damages, or were ever applied to in the matter, no cause of action was made out. In the same line it is further claimed by counsel, that the duties of fence viewers are judicial; that their jurisdiction is exclusive; that their decision is conclusive; and finally, that no other court or tribunal can take jurisdiction of the sufficiency of fences, or of damages caused by domestic animals breaking into inclosures, until the viewers have exercised their jurisdiction. Counsel go too far in their assumptions. When a statute creates a liability, and gives a right not known to the common law, such statute at the same time giving a specific mode for the assertion of the right, as a rule that mode and that alone must be pursued. This is not such a case. The statute relating to fences (ch. 40, Comp. Laws 1879) modifies the common law so far that no action will lie for injuries done on real estate by trespassing cattle, unless the real estate is inclosed with a sufficient fence; and § 33 of the act gives the owner of the inclosure authority to take into possession the animals trespassing, and keep them until all damages, charges and costs are paid; but §§ 27 and 28 of the act create no new liability, unknown to the common law. They simply afford an additional method of settling damages for the trespassing of animals, and of furnishing proof in actions brought to recover such damages. The proceedings under article 4 are not exclusive, but only cumulative, or additional to the remedy of. the common law. Parties claiming damages for such injuries may take the trespassing animals into possession, and accept the provisions of those sections; and in such case, the assessment of the viewers must be received as prima faeie evidence of the amount of the damages actually sustained; but on the other hand, if they choose, they may dispense with the claim for a lien on the animals, and sue directly, without applying to the viewers at all.
Ch. 5a, Comp. Laws 1879, provides that all persons who shall have any controversy may submit such controversy to the arbitration of any person to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in this state; yet no one would claim that this statute is compulsory, or that a person having a cause of action against another shall not recover until he submits his demand to arbitration. Again, the mechanic’s-lien law gives parties liens on real estate for the amounts due for labor, materials, etc., if certain proceedings are taken; but the advantage of these proceedings is at the option of the persons performing the labor, or furnishing the materials. If they do not choose to file liens, they are not thereby debarred from recovering for the labor or materials, in an ordinary action.
Objections are also taken to the charge of the court in reference to a legal fence. The fence through which the stock was alleged to have broken into the inclosure, was a post-and-board or plank fenóe. The direction concerning the height was:
“While the law specifies that the fence shall not be less than four feet high, yet all these sections are required to be considered liberally. If a fence should be three feet ten inches or eleven inches at one particular place, but would average four feet, or about four feet high [it would be sufficient]. The law don’t deal with trifles. The object of the law is to have a fence that will be sufficient in height to turn the average kind of stock, and the law would not recognize a trifle or trifling testimony that would show that in one particular place the fence was a little low, three feet and ten or eleven inches. You know this in doing business for yourselves. You scarcely notice trifles of that kind.”
This language might answer in ordinary business transactions, but was out of place in the charge to the jury in this action. It tends to excuse a non-compliance with the statute, and gives the jury a leverage to find damages even if the stock broke through a fence at a place less than four feet high. Sec. 2, ch. 40, provides that all fences composed of posts and rails, posts and palings, posts and planks, or palisades, or of stone, or composed of posts .and wires, or those composed of turf, shall be at least four feet high. Under the direction given, a fence of posts and planks three feet ten inches high would be a lawful fence. Such is not the reading of the statute. The height of the fence is particularly mentioned, and it is plain that a fence of the character of the one in dispute, to be lawful, must be at least four feet high. The maxim, De minimis non curat lex, has no room for operation in this case. To be on the safe side, persons intending to have their lands inclosed by a lawful fence ought to construct the fence in excess of four feet, rather than below that height. With the exception noted, the charge of the court seems a correct exposition of the law.
The judgment of the court below will be reversed, solely on account of the misdirection of the jury, 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.:
This was an action brought by Sarah Jane Sackett against E. Eobbins and Harriet Eobbins, for the value of a small frame box house or shanty, alleged to have been wrongfully removed by the said defendants, and converted to their use. In 1873, this house was situated on a forty-acre piece of land, near the village of Godfrey, in Bourbon county, Kansas. The land was owned by E. C. H. Myers, the then husband of the plaintiff, and the house was occupied as a residence by Myers and the plaintiff, and their ■children. Mrs. Robbins procured a tax title to the property; and Myers at the same time was indebted to Robbins. On July 13, 1874, Robbins and wife executed a quitclaim deed for the property to said E. C. H. Myers, and on July 31, 1874, Myers and wife executed a mortgage on the property to Mrs. Robbins to secure the payment of the consideration for said quitclaim deed and said indebtedness of Myers to Robbins. On December 13, 1874, Myers sold said house to his wife, and she immediately thereafter removed it from said forty-acre piece of land into the village of Godfrey. The defendants claim that this sale was fraudulent, and therefore void. Mrs. Myers, immediately after the removal of said house, moved into it, in Godfrey, and continued to reside therein, claiming the same as' her own until October, 1878. On February 26, 1875, Myers and wife, in payment of said mortgage, executed a deed for said piece of land to Mrs. Robbins, and the mortgage was canceled. The house was not on the land at that time, as we have already stated, Myers lived with his wife in said house in Godfrey until March, 1876, when he abandoned her, and left for parts unknown. Before he left the county, however, he agreed with Mrs. Robbins that said house should be considered as hers, and that he would pay rent to her for it at the rate of $1.50 per month; and he actually paid her $1.65 as rent on September' 12, 1875. But Mrs. Myers had no knowledge of this, and did not know that Mrs. Robbins ever claimed any interest in the house. No claim for rent was ever made by Mrs. Robbins, or by any one else, to Mrs. Myers. Mrs. Myers, having procured a divorce from Myers, and having married a Mr. Sackett, left the house in October, 1878; and on October 28, 1878, the defendants, Mr. and Mrs. Robbins, forcibly and without the consent of Mrs. Myers-Sackett, removed said house, and converted the same to their own use. On November 6, 1878, Mrs. Sackett commenced this action for the value of the house, which value was $75. She re •covered a judgment for that amount, and the defendants, now as plaintiffs in error, bring the case to this court.
The plaintiffs in error assign various supposed errors, but we do not think that any of them are tenable.
I. They claim that the court below erred in refusing to permit them to file an an answer, setting up a counter claim for rent for said house. Such refusal, however, we think was not erroneous; nor was it material, if erroneous. It is for the court to determine whether new pleadings should be filed on an appeal. (Justices’ Code, §122; Comp. Laws of 1879, p. 720.) And the defendants in this case were not prevented from proving any counter claim which they may have had, by reason merely of said refusal to permit them to file said answer. (Stanley v. Farmers’ Bank, 17 Kas. 592, 596; Sanford v. Shepard, 14 Kas. 228, 231.) But they had no valid counterclaim. Mrs. Sackett owned said house, and the defendants were not entitled to receive rent from her for it.
II. The plaintiffs in error, defendants below, also claim that the court below erred in refusing to permit them to read in evidence said mortgage from Myers and wife to themselves. Of course, they do not claim that they owned said house, or that they had any title thereto, by virtue of said mortgage; for a mortgage does not confer title in this state. (Vanderslice v. Knapp, 20 Kas. 647; Alexander v. Shonyo, 20 Kas. 705; Buckout v. Swift, 27 Cal. 433.) Besides, this mortgage had been satisfied and canceled several years prior to the commencement of this suit, but it is claimed that it tended to show fraud in the sale of said house by Myers to his wife. Now, for the purposes of this case, suppose that it did tend to show such fraud: how will that help the defendants? The only debt which the defendants ever held against Myers or wife, which could possibly have been affected by this sale, had long prior to the removal of said house, and long prior to the commencement of this suit, been extinguished and satisfied, and therefore the defendants cannot now raise any question as to fraud in said sale; for only the actual and existing creditors of Myers can raise any such question. Of course, •we do not take into consideration said supposed debt of Myers for rent, for that debt, if valid, could not be affected by said sale in the least. Mrs. Myers knew nothing of that debt, and the sale was evidently not made in contemplation thereof, or in fraud thereof. But suppose, for the purposes of this case, that the sale was in fact made for the sole purpose of defrauding these defendants, with reference to some debt or •claim, and suppose that such debt or claim has not yet been extinguished or satisfied, and suppose that the defendants have properly raised the question of fraud: then can such fraud '.avail the defendants anything in this ease? We think not. The parties admit that this house was personal property, and the court below found it to be such; and Mrs. Myers-Sackett was in the open, notorious and undisturbed possession thereof, continuously from December, 1874, up to October 28, 1878, when the defendants took it from her; and during all this' time she claimed to own the property, and believed it to be hers. Under such circumstances, we think the two-years statute of limitations has made the property hers, notwithstanding any supposed fraud in procuring it, and without reference to the manner of her procuring it. (Civil Code, §18, ■subdivision 3.) The defendants well knew of her possession; and for more than two years of such possession she was the sole possessor, or at least the head of the family in possession; and her possession was adverse to the defendants. And yet the defendants did not disturb her possession, or intimate that they had any supposed claim to the house. Said statute of limitations makes the property hers in any action, whether ■she should be plaintiff or defendant. (Civil Code, §25.) Her bill of particulars sufficiently alleged ownership. It was not necessary for her to allege how she procured the ownership. ■Such is seldom necessary, even in the district court. And it is seldom, if ever, necessary to plead the statute of limitations in a justice’s court, (and this action was commenced in such a court,) even though the claim be for money. (Sanford v. Shepard, 14 Kas. 228, 231.)
If said house was real estate at the time that the defendants removed it and converted‘it, they certainly had no claim to it. Of course the defendants cannot claim said house by virtue of their deed from Myers and wife, for at the time that said deed was executed the house was not on the land conveyed, and the deed did not purport to convey or transfer the house.
III. The plaintiffs in error also claim that the court below erred in overruling a motion to strike out certain evidence. This motion was made after all the evidence was introduced, and after the first argument of counsel was made in the case. The motion was to strike out all the testimony of Mrs. MyersSackett concerning conversations had between herself and husband, without designating in the motion any particular' portions of such testimony. This testimony was all introduced without- objection; a portion thereof was introduced by the plaintiff, and a portion by the defendants, on cross-examination; some of it was probably competent; and if all of it had been stricken out, still the same findings and the same judgment must necessarily have been made and rendered that were made and rendered. We think that no material error was committed in overruling said motion. But we have already given this case more consideration than it is entitled to. No substantial error was committed by the court below, and hence its judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The demurrer was improperly sustained. By the execution of the undertaking and receiving back the wheat, Dively & Co. admitted that the property was attached as the property of E. W. Sizer, and promised it would be forthcoming to answer the judgment of the court in the action of Haxtun and Ogden against Sizer. By such admission, promise and conduct, they are precluded from alleging property in themselves; therefore the answer of Haxtun and Ogden sets forth a valid defense to the interplea. The principle thus stated was decided in Sponenbarger v. Lemert, ante, p. 62. In that case one Lemert obtained a judgment before a justice of the peace against George French. The justice issued an execution on the judgment, and placed it in the hands of a constable for collection. The constable levied the execution upon certain personal property as the property of French. The property was left in the possession of French,, the constable taking a redelivery bond executed by French and one Samuel Biard. Afterward, Biard claimed the property belonged to him, and not to French. Mr. Justice Valentine, in speaking for the court, said: “ The giving of the redelivery bond by Biard and French, in which they substantially admitted that the property belonged to French,, estopped Biard from denying that the property belonged to French. . . . Parties cannot be allowed to gain advantages (the possession of the property levied on) by making admissions, and then, to deny the truth of such admissions to the injury of others, who relied upon their truth, and who had a right to rely thereon.” Bursley v. Hamilton, 15 Pick. 40; Jones v. Peasley, 3 G. Greene (Iowa), 52; Staples v. Fillmore, 43 Conn. 510. See also Rutledge v. Corbin, 10 Ohio St. 478.
The order and judgment of the district court will be reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was a proceeding commenced by James E. Dryden, against the St. Joseph & Denver City Railroad Company, for the assessment of damages for a right of way over Dryden's land, which right of way had previously been taken and occupied by the railroad company. The right of way had been taken as early as 1860, but this proceeding was not commenced until July, 1875. It was commenced under section 87 (as amended in 1870) of chapter 23, of the General Statutes. (Comp. Laws of 1879, p. 231.) After an assessment of damages was made by the commissioners, and an appeal to the district court by the railroad company, the case was tried in the district court before a jury, and the verdict of the jury, and the judgment of the court, were rendered in favor of the railroad company, and against the plaintiff, Dryden. Dryden then brought the case to this court for review. In this court, his counsel say :
“There are only two questions which we desire to present: First, error in the court in confining the testimony as to damages to the time when the land was appropriated; second, in refusing to permit Dryden to show a former adjudication in his favor, of the questions set up in defense.”
I. With reference to the first question, we would say that we think it makes but very little difference whether the court erred or not with regard to damages. The plaintiff was clearly not entitled to damages upon any theory of computing ór meas uring them, for the railroad company had purchased its right of way, and had procured a deed of conveyance therefor from the plaintiff’s grantor, and had taken possession of the property long before the plaintiff obtained any interest in the land. If the plaintiff had been entitled to any damages, he should have recovered $2,500 in this case, for the court permitted him to prove damages, and he himself testified that he had been damaged $2,500; and there was no evidence contradicting this testimony, except that evidence which showed that the right of way over the plaintiff’s land had been conveyed to the railroad company by the plaintiff’s grantor long before the plaintiff himself purchased the land. If the plaintiff was entitled to recover any damages under his own theory, then he was entitled to recover $2,500 damages under the evidence which he introduced by the permission of the court. But the jury found against him; and they evidently found against him, not on account of any error in computing damages, or measuring them, but because the railroad company had procured the right of way from the plaintiff’s grantor, before the plaintiff purchased the land; and there was no room for the jury to find otherwise. The evidence clearly showed that there was a conveyance of the right of way by the plaintiff’s grantor to the railroad company,, before the plaintiff purchased the land, and there was no evidence .to the contrary. The verdict of the jury was right, and any other verdict would have been erroneous. There is no complaint concerning the instructions of the court to the jury. They are not contained in the record, but it must be presumed that they were at least fair toward the plaintiff.
II. As to the second question, we would say that the plaintiff desired to prove said supposed “former adjudication” by introducing in evidence the record of a former case between these same parties. That case was also brought to this court, and it will be found reported in 17 Kas. 278. It is entitled “St. Jos. & D. C. Rld. Co. v. Dryden.” Now the decision of that case was not an adjudication of any .of the questions involved in this case. The decision in that case was an ad judication that Dryden was not about to disturb the railroad company in its use of said right of way. But it was not an adjudication concerning the ownership of such right of way. The decision assumed that the right of way belonged-to the railroad company, but also held that Dryden was not about to interfere with the railroad company’s use of the same. And for this reason the court refused to grant an injunction in favor of the railroad company to restrain Dryden from molesting the railroad company in its use of the right of way. It was said at the time, that the decision was no adjudication of the railroad company’s right to use the right of way. Mr. Justice Brewer, in delivering the opinion of the court, used this language: “More than this, plaintiff [the railroad company] is" in possession, and having the use of the right of way. This decision is no adjudication; or at least it can be shown from the whole record to be no adjudication against its right to the possession and use. If Dryden wishes to recover possession, he will have to establish his right by other evidence than this judgment. He may be relieved from liability for any prior trespass, but he is not thereby given license for future wrong.” (17 Kas. 282, 283.)
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 findings of the trial court show that the defendant in error, the plaintiff below, obtained actual possession of the personal property in controversy prior to-May 1, 1875, and continued in such possession until February 28, 1878, more than two years. This possession, by the testimony, was under claim of ownership, without the authority of the owner, and inconsistent with his rights. If the sale of the property on January 6, 1875, to defendant in error by the sheriff, was valid, which can scarcely be claimed,, he then became the lawful owner of it; but if, as contended by counsel for plaintiff, the sale was void on the ground that the judgment was a nullity for want of service, the taking of the possession under the void sale caused the statute to commence to run at once.
The defendant in error therefore having had undisputed. possession of the property for more than two years prior to February 28, 1878, is clearly protected by the statute of limitationsv (Civil Code, §18.)
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 was an action brought by H. H. Patten, against J. W. Gossett, for attorney’s fees for defending an action brought by Gossett, against his wife, Bridget C. Gossett, for a divorce. The only question in the case is, whether the plaintiff’s pleading (a bill of particulars filed with the justice of the peace'before whom this action was commenced) is fatally defective, or not. The plaintiff in error (Gossett) attempts to raise other questions, but as the case was submitted to the court below, without a jury, and as the court below made only a general finding in the case, and no motion, for a new trial was made, and the evidence has not all been brought to this court, we cannot consider such other questions. As to the necessity for a motion for a new trial, see Gruble v. Ryus, ante, p. 195, and cases there cited.
We think the bill of particulars is sufficient in every respect, except that it does not specifically state to whom the plaintiff, Patten, first gave the credit for his services, and i't does not state why Mrs. Gossett did not get an allowance of alimony pendente lite, including suit-money sufficient to pay his attorney-fees. "We do not think, however, that the bill of particulars is fatally defective in these respects, and especially not after verdict and judgment in favor of the plaintiff; and when the question is raised for the first time in the supreme court, it will be presumed that what was defectively stated in the bill of particulars was sufficiently proved on the trial. And, as all lawyers know, strictly formal pleadings are not required in a justice’s court, but the pleading in this case stated that Mrs. Gossett had no estate, and hence it may be inferred, and especially after verdict and judgment, that the credit was given to Gossett. And various reasons might be given why suit-money was not allowed in the divorce case, as, for- instance, that Gossett dismissed his divorce case (as was the fact) when suit-money was asked. We think the real question involved in this case may be stated as follows: Where a husband sues his wife for a divorce, charging her with committing acts derogatory to her character, and it is necessary for her, in order to protect her character and good name, to employ counsel to defend her, and she employs such counsel, who performs services for her, giving the credit however for his services to the husband, and she has no estate or means to pay for such services, and when she applies to the court in the divorce case for an allowance of alimony pendente lite, including suit-money, and before the court renders its decision on such application, her husband dismisses his action for divorce, and thus ends the suit, then may such counsel afterward maintain an action against the husband, before a justice of the peace, for-the value of his (the counsel’s) services, necessarily rendered in such divorce case? We think he may. (Porter v. Briggs, 38 Iowa, 166; Warner v. Heiden, 28 Wis. 517; Shepherd v. Mackoul, 5 Camp. N. P. 326; Morris v. Palmer, 39 N. H. 123; Ray v. Adden, 50 N. H. 82.) Of course, where the services are unnecessary, or where the wife is able to pay for them, or where an allowance has been made for them, and probably where the wife is in the wrong, such an action could not be maintained. But this is not one of such cases. This case comes under the rule of requiring the husband to pay for necessaries furnished the wife where the husband without good cause has failed or refused to furnish them himself.
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 plaintiff in error (plaintiff below), as appears by the testimony, is a native of Kentucky, and a citizen of the United States. He emigrated to the territory of Kansas in 1853, and soon married a Delaware-woman, a member of the Delaware tribe of Indians, but was not adopted into the tribe. In 1854, he established his residence on the Delaware reservation in this state, and has since lived there with his wife. To them have been born ten children. On the 15th day of July, 1872, he brought this action in the district court of Wyandotte county, against the Kansas Pacific railway company, to recover damages in the sum of $5,675, for an alleged trespass upon certain lands claimed to be in his possession and occupation, but which, theretofore, had been selected and set apart as the property of the wife and children of the plaintiff, in severalty, under the provisions of the treaty with the Delawares, ratified and proclaimed August 22,1860, generally known as the treaty of May 30, 1860. Art. 1 of the treaty stipulates that —
“. . . The Delawares having represented to the government that it is their wish that a portion of the lands reserved for their home may be divided among them, in the manner contemplated by the eleventh article of the treaty aforesaid, it is hereby agreed by the parties hereto, that the said reservation shall be surveyed as early as practicable after the ratification of these articles of agreement and convention, in the same manner that the public lands are surveyed, and to each member of the Delaware tribe there shall be assigned a tract of land containing eighty acres, to include in every case, as far as practicable, a reasonable portion of timber, to be selected according to the legal subdivisions of survey.”
Art. 2 further stipulates: “. . . Certificates shall be issued by the commissioner of Indian affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned respectively, and that the said tracts are set apart for the exclusive use and benefit of the assignees and their heirs, and said tracts shall not be alienable in fee, leased, or otherwise disposed of, except to the United States or to members of the Delaware tribe, and under such rules and regulations as may be prescribed by the secretary of the interior; and said tracts shall be exempt from levy, taxation, sale or forfeiture, until otherwise provided by congress. . . . And should any of the Indians to whom tracts shall be assigned, abandon them, the said secretary may take such action in relation to the proper disposition thereof as in his judgment may be necessary and proper.”
The breaking and entering of the alleged close of plaintiff occurred in November, 1863. About that time the railway company, for the purpose of constructing its road, under the act of congress approved July 1st, 1862, entered upon and took possession of certain portions of the land described in the petition as a right of way; used timber and stone adjacent to its track, and made cuts and tills, and completed its line of railway over the land, without compensating the plaintiff, or his wife or children. After the first entry, in 1863, the possession of, the right of way has been continuous,, during which time certain stock has been killed by the railway company in the operation of its road.
The defendant answered the petition, first, by a general denial; second, by setting up the two-years statute of limitations; third, that the defendant entered, if at all, into said premises by and under a license of and from the plaintiff so-to do; fourth, that the defendant entered, if at all, into and upon the lands by and under the authority of the United States, as authorized by the treaty of May 30,1860, between the United States, and the Delaware Indians; and in pursuance of the act of congress of July 1, 1862, granting to-the defendant a right of way over and across the land. The-plaintiff in his reply, denied each and every allegation contained in the second, third and fourth grounds of defense.
The case was tried at the October term of the court for 1873. On the trial, plaintiff produced testimony tending to prove his possession since and prior to November 1, 1863;. that a portion of the land had been by him fenced before that time, and that he was then cultivating it; that it had all been fenced and put in cultivation by the plaintiff since that time, and before the commencement of this action; that the defendant entered into and upon said land with force,, and without the consent of the plaintiff, and has from that time up to and until the commencement of this suit, continued to break into and upon said land; that while he. was upon the same, the defendant threw up, over and across the-land a railroad track, and put down wooden ties and iron-rails thereon, kept the same permanently there, and continued to run large numbers of heavily-loaded cars, drawn by heavy steam locomotive engines, over and across the land at divers days and times up to and until the commencement of the action. The other facts have already been stated. The •defendant demurred to the evidence for the reason that it was insufficient to authorize any recovery. The court sustained the demurrer, and rendered judgment against the plaintiff for costs. He excepted, and brings the case here.
We need really consider only the fourth defense, and the. matters therewith connected, as the final disposition of this case and the merits, particularly of other cases pending, largely turn upon the construction and effect of the provisions of the treaty of 1860, and the act of congress of July 1,1862. No negligence was shown on the part of the defendant in the injuries to the cattle and hogs, and those injuries having been committed prior to the stock law of 1874, may be regarded, like the allegations and proof of the cutting of timber on the land, as mere matters of aggravation to enhance the damages. Art. 3 of the treaty of 1860 stipulates:
“It is also agreed that the said railroad company [the Leavenworth, Pawnee & Western railroad company] shall have the perpetual right of way over any portion of the lands allotted to the Delawares in severalty, on the payment of a just compensation therefor, in money, to the respective parties whose lands are crossed by the line of railroad.”
Sec. 2 of the act of congress of July 1, 1862, provides:
“That the right of way through the public lands be, and the same is hereby granted to said company for the construction of said railroad and telegraph line [the Union Pacific railroad company]; and the right, power and authority is hereby given to said company to take from the public lands adjacent to the line of said road, earth, stone, timber and other materials for the construction thereof. Said right of way is granted to said railroad to the extent of two hundred feet wide on each side of said railroad where it may pass over the public lands, including all necessary grounds for stations, buildings, workshops and depots, machine shops, switches, side-tracks turn-tables, and water stations. The United States shall extinguish, as rapidly as may be, the Indian titles to all lands falling under the operation of this act, and required for the said right of way and grants hereinafter made.”
Sec. 9 further provides that—
“The Leavenworth, Pawnee & Western railroad company of Kansas, is hereby authorized to construct a railroad and telegraph line, from the Missouri river at the mouth of the Kansas river, on the south side thereof, so as to connect with the Pacific railroad of Missouri, to the aforesaid point, on the one-hundredth meridian of longitude west from Greenwich, as herein provided, upon the same terms and conditions in ali respects as are provided in this act for the construction of the railroad and telegraph line first mentioned, and to meet and connect with the same at the meridian of longitude aforesaid,” etc.
The defendant is admitted to be the successor of the Leavenworth, Pawnee & Western railroad company, and entitled to all the rights, franchises and powers of the latter company. The Kansas Pacific railway company was originally chartered in 1855, by the territory of Kansas, under the name of the Leavenworth, Pawnee & Western railroad company, mentioned in the said ninth section of the act of 1862, and afterward, in 1863, received the name of the Union Pacific railway company, eastern division, and finally, in 1869, the name by which it is sued herein.
On the part of the plaintiff, it is claimed that the government cannot extinguish the general Indian title by mere congressional grant; that the provision of the act of July 1, 1862, for the extinguishment of the Indian titles to all the lands required for the right of way of the various railroad companies therein named, had reference solely to the territory occupied by wild or blanket Indians, and not to reservations secured by treaty, and occupied by Indians partially or wholly civilized; and, finally, that a grant of a right of way for the road of the defendant over any portion of the lands allotted to the Delawares in severalty without the payment of just compensation therefor, would involve such a gross breach of the public faith, that the presumption is conclusive that congress never meant to grant it.
On the' other hand, the defendant contends that congress had the exclusive right and dominion over the entire Delaware reserve, and that by virtue of such right, it had the authority to permit the entry and the construction of the defendant’s road, either with or without compensation to be paid by the company; that as the road, in the way prescribed by congress, was to be constructed necessarily through the Delaware and Pottawatomie reservations, and as these were the only Indian lands between the mouth of the Kansas river on the east side to its junction with the Union Pacific road, reservations secured by treaty were as much included in the grant as the territory of the wild tribes, for if the grant was not through the Delaware and Pottawatomie reservations, there was no grant of right of way whatever to defendant through these reservations; that in brief, the grant of 1862 overrides all treaties prior and subsequent, even to the extent, if necessary, of violating treaty stipulations.
We have had occasion very recently to examine quite fully the question of Indian titles in the case of Veale v. Maynes, ante, p. 1. In accordance with the uniform decisions of the supreme court of the United States, we there decided that allotments to Indians upon Indian reservations must be construed in the light of the recognized relations between the government and the Indians, and the established policy of the former toward the latter; that title does not necessarily mean title in fee simple; that it may mean any kind of title, even the mere title by occupancy; that the Indian title has been constantly recognized as simply this inferior title; that the government has uniformly asserted its holding of the fee, and has recognized the Indian right as only one of possession. In that case, the Pottawatomie treaties of 1846, 1861 and 1867 were before us for interpretation, and the words “possession and title,” and “to guarantee the full and complete possession ... as their land and home forever,” employed in the treaty of 1846, to characterize the estate granted to the Pottawatomies, were certainly as strong,if not stronger, than any of like import used in the Delaware treaty of 1860. We conclude therefore that there is nothing in or about the treaty of 1860 to indicate that any other right or title was granted to the allottees or assignees, or their heirs, by the stipulations of articles 1 and 2, than the right of occupancy with the ultimate fee of the land vested in the United States. With this result obtained, it logically follows that congress had the power to make the grant contained in section 2 of the act of July 1, 1862, if it really meant that the grant should include rights of way through reservations secured by treaty. (Rld. Co. v. United States, 92 U. S. 733, 744.) The act of congress of March 3, 1863, donating lands to aid in the construction of certain railroads in Kansas, granted the right of way through reserved lands for these roads, and while the supreme court of the United States has held that the act did not dispose of the Osage lands to the railroad companies, no oue has as yet, as we are aware, questioned the grant for the right of way through the ceded or reserved lands.
By the last clause of section 2, the United States agreed to extinguish as rapidly as might be the Indian titles falling under the operation of the act, and required for the right of way. The language is broad and comprehensive, and not restricted to the territory of wild tribes. The only Indian lands upon the line of defendant’s road were reservations secured by treaty. It was either a grant to the defendant through these Indian lands, as well said by counsel, or it was no grant to it through any Indian lands. By the act of 1862, the companjq which the defendant succeeded, was required to file an acceptance of its provisions within six months after its passage, and to complete one hundred miles of its road, commencing at the mouth of the Kansas river, within two years thereafter; so, immediate and urgent action was demanded. If the grant did not include the Delaware reservation, all attempts to construct a road west from the mouth of the Kansas river over the reservation must have been suspended until arrangements were completed with the allottees on the lands. This would have been an insuperable obstacle to laying out a right of way, and constructing the road. The lands were withdrawn from the operation of state laws, and neither the charter of the company nor the general laws of the state could be resorted to for power to condemn them.
The company had no authority to exercise the right of eminent domain within the reserve; and without the power and obligation of the United States to extinguish for its benefit and use the Indian title for a right of way, it can hardly be supposed that the company would have assented to the conditions of the act of 1862, or attempted afterward the construction of its road over and across these Indian lauds. Under all the circumstances, we think that within the meaning and scope of the act of 1862, the purpose of congress was to permit the entry and the construction of the, road of the Leavenworth, Pawnee & Western railroad company through the reservation without compensation on the part of the company. This view seemingly requires us to coifsider the objection, whether such a grant would not involve a breach of public faith with the Delaware allottees, over whose lands the right of way of the road was located. While this question may not absolutely affect the power of congress in the premises, yet we cannot well assume that there was any intention by the adoption of the act of 1862 to violate treaty obligations. Previous to the passage of the act, the treaty of 1860 had been duly concluded and proclaimed. Special provision had been made in article 3 for a perpetual right of way over the lands allotted to the Delawares in severalty for the Leavenworth, Pawnee & Western railroad company on the payment of a just compensation in money to the respective parties whose lands were to be crossed by the line of railroad. This was an agreement between the United States and the Delawares, to which the latter company was not a party, and it could not obtain the benefit of the contract except by permission of congress. By the act of 1862 the Leavenworth, Pawnee & Western railroad company became an associated enterprise of the Union Pacific railroad company. The general history of the legislation of congress in reference to this national undertaking for national purposes, and the policy of the government respecting the same, need not be stated here at length, as they are forcibly set forth by Mr. Justice Davis, speaking for the court, in the case of The United States v. The Union Pacific Rld. Co., 91 U. S. 72. Therefore it is sufficient to say that congress undertook to enlist private capital and enterprise in the construction of the system of the Pacific railroads when a war of rebellion was in progress and the life of the nation in imminent peril, and agreed to aid the companies having charge of the construction of the roads on account of the supposed advantages — military, postal and otherwise — which the public would derive from the completion of the projected railways. The Delawares had stipulated that the Leavenworth, Pawnee & Western railroad might have a right of way through their reservation upon compensation being paid. The United States agreed to extinguish the Indian titles for the right of way of the Pacific roads as an additional aid to the enterprises, and to induce their early construction. The Leavenworth, Pawnee & Western railroad was incorporated into the system, and the United States assumed the obligation to give it the right of way through the Delaware reservation. This it could do within the exact terms of the treaty of 1860, by paying the Delaware allottees just compensation therefor. Whether such allottees have made a demand of the government for this compensation, we are not advised; clearly, the government, and not the defendant, if anyone, owes the compensation. With this construction and interpretation of the treaty of 1860 and the act of congress of 1862, all is harmony. The Indians are fully protected in their treaty guaranties, and the railway company is protected and secured in its right of way over the Indian lands.
Thus far in our consideration, we have treated the case as if the plaintiff was a member of the Delaware tribe of Indians, and entitled to the rights of an allottee under arts. 1 and 2 of the treaty of 1860. Such, however, is not the fact. He is an intruder on the lands of the tribe. He has no right to plead the treaty of 1860 in his behalf, nor is he authorized to claim any of its guaranties.
The court properly sustained the demurrer, and therefore the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On February 19, 1878, C. H. Fitch & Co. commenced an action in Atchison county, on a promissory note, before a justice of the peace, against George R. Hall, and in such action garnisheed the Manhattan Fire Insurance Company, of New York city. The affidavit for the notice of garnishment states “that the Manhattan Fire Insurance Company, of New York city, a corporation doing business within Atchison county, has.property, money, goods, chattels, credits and effects in its hands and under its control, belonging to the defendant; and the said corporation aforesaid is indebted to principal defendant, and that defendant George R. Hall is justly indebted to the plaintiff in the sum of ninety-two and 98-100 dollars and interest over and above all legal set-offj and that affiant has a right to, and does believe, that plaintiffs will lose the same unless a garnishee summons issue to aforesaid corporation.” The insurance company answered as garnishee, and in its answer states:
“That the said Manhattan Fire Insurance Company is not at this time and was not at the time of the pretended service herein, and has not since said time, been indebted to defendant, George R. Hall, in any sum whatever; and that said Manhattan Fire Insurance Company had not at the time of the pretended service had, and has not at this time in its possession nor under its control any property, money, goods, chattels, credits or effects belonging to said defendant, George R.
Fitch & Co. then gave notice that the answer of the garnishee was unsatisfactory, and demanded a trial of the truth of the same, but they did not state in what particulars the answer was unsatisfactory. On the day set for trial the insurance company moved to dismiss the proceeding, because no bill of particulars or other pleading had been filed; and also moved to require the plaintiffs to file some suggestion in writing, set ting forth definitely the matters claimed as creating some liability on the part of the insurance company to Hall, and showing in what respect the answer of the company was not true; but the court overruled both motions, and the parties then proceeded to trial without any pleadings being filed. The trial was had before the court (said justice of the peace), without a jury. The plaintiffs introduced their evidence, and rested. The insurance company then demurred to the evidence, on the ground that it was insufficient to' prove that the company’s answer as garnishee was untrue. The court sustained the demurrer, and rendered judgment in favor of the garnishee, and against the plaintiffs for costs. The plaintiffs then took the case to the district court on petition in ■error, where the judgment of the justice of the peace was affirmed, and then the plaintiffs brought the case to this court on petition in error.
We cannot say that any material error was committed by either the district court or the justice’of the peace. The trial was had under §44 of the justices’ code. (Comp. Laws of 1879, p.709.) In such a trial, no pleadings are required. The trial, .affidavit for garnishment, the answer of the garnishee, and the notice that the answer is unsatisfactory, take the place of pleadings, and all matters are heard thereon. If, upon the hearing, it is found that at or after the service of the notice of garnishment upon the garnishee, he was possessed of any property of the defendant, or was indebted to him, the justice may, in accordance with §42 of the justices’ code, order the delivery of such property, and the payment of the amount owing by the garnishee into court, or may permit the garnishee to retain the property or the amount owing, upon the execution of an undertaking to the plaintiff, by one or more sufficient sureties, to the effect that the amount shall be paid or the property forthcoming, as the court may direct. (Comp. Laws of 1879, p.709, § 42.) And in such a trial, it does not make any difference as to what the amount of the indebtedness or the value of the property may be; for whatever it may be, the justice has jurisdiction to hear and determine the mat ter, and to make the proper order therein. And such hearing and determination and order, when made, do not amount to a final adjudication as to the existence of such indebtedness, or as to the ownership of the property. (Board of Education v. Scoville, 13 Kas. 18.) If, however, upon the trial, under §44 of the justices’ code, it be found that the garnishee did not have any property of the defendant in his possession, and did not owe the defendant anything, then the order and judgment will be made and rendered in favor of the garnishee, and just such an order and judgment will be made and rendered as was made and rendered in this case; but such order and judgment will not be a final adjudication -as to the rights of the parties. Where the plaintiff desires that the determination of the court, as to the liability or non-liability of the garnishee, shall be final, he must commence bis action in the proper court, under §43 of the justices’ code. (Comp. Laws of 1879, p. 709.) In the present case, the amount of the supposed liability of the garnishee to the defendant was $1,000, an amount vastly beyond the jurisdiction of a justice to determine finally. Sec. 44 did not originally belong to the justices’ code, and indeed was no part of the statutes of Kansas. It was first adopted in 1868, and was evidently adopted for the mere purpose of enabling the plaintiff to dispute the garnishee’s answer in a summary manner, and without resorting to a formal action. By this proceeding under § 44, he might get the order provided for by §42, while without this proceeding under §44, and merely upon the garnishee’s answer, he could not get the order at-all; and he could get the order immediately, and without waiting for the final judgment to be rendered in the case between himself and the alleged debtor, the defendant in the main action, as he would have to do if he commenced a regular and formal action against the garnishee, under said § 43.
It can make no difference in the present case, whether a demurrer to the evidence is permissible, or not, in a justice’s ■court; for the justice in this case could not, either by sustaining the demurrer or by overruling it, take the decision of the case away from himself. In the present case, the justice was the trier of the facts of the case, and he tried the case upon the facts, and held that the evidence did not show that the-answer of the garnishee was not true. This was the finding-of the justice upon all the evidence introduced in the case.. If all the evidence introduced by the plaintiffs was true, (and there was no evidence introduced by the other side,) it would even then be hard to say that the answer of the garnishee was not true. But the justice probably (and we would think rightly) did not give full credit to all the plaintiffs’ evidence.. Some of-it was at least suspicious. But it is not necessary to-comment upon the evidence, or the facts of the case, for, as-we have before said, the decision in this case is not final as to-the garnishee’s liability to Hall. And if the question of such liability shall ever again be brought into litigation, the evidence may be much stronger or much weaker as to such liability than it was in this case, or it may be very different.
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.:
After the jury had retired to consider their verdict, the bailiff went to the jury room in response to a knock upon the door, and by the request of a juror passed •into the jury room a Miami county atlas. During the deliberations of the jury, the atlas or map was spread out before the jurors and examined by them. The officer had no right to furnish the atlas to the jurors, and the jurors had no-right to examine it while deliberating upon their verdict. It was evidence, or at least a document or papers, not authorized by the court. The act of the officer was irregular, and the reception of the map by the jurors illegal.
Counsel for the state insists that there is no showing made that the atlas produced any improper influence on the jury. The burden of proving that the rights of the defendant were not prejudiced rests in a case like this upon the prosecution. Here the state failed. Several affidavits were presented to establish the fact that the bailiff was not present with the jurors during their deliberations, but no denial was made, or any explanation given of the examination of the atlas in the jury room. In the case of The State v. Taylor, 20 Kas. 643, we held the paper taken to the jury room by mistake, not detrimental to the rights of appellant. The paper was preserved in the record, and it affirmatively appeared from an examination, that no injury resulted to the defendant. We cannot say this of the atlas. It may have been examined to determine the situation of the dwelling-house charged to have been burglariously entered, or it may have been consulted as testimony on other matters. Clearly, we cannot affirm that the defendant was not prejudiced. (Sec. 275 Criminal Code, Comp. Laws 1879, p. 763; The State v. Mulkins, 18 Kas. 16; The State v. Snyder, 20 Kas. 306.) In this connection, we deem it necessary to correct the opinion as reported in The State v. Taylor, supra. “Liberally,” on page 646, is an interpolation of the printer. “ Reasonably ” is the word in the opinion.
The refusal to grant a new trial was error. It is therefore ■ ordered, that the verdict of the jury and the judgment of the court be set aside, and the case remanded for a new trial.
It is further directed, that the defendant be returned from the state penitentiary and delivered over to the jailer of-Miami county, there to abide the order of the district court of said county.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On September 18, 1878, the defendants in error (plaintiffs below) brought their action against the plaintiffs in error, (defendants below,) alleging that Allison B. Bartlett, as a notary public, made a fraudulent and false •certificate of acknowledgment to a mortgage described in the petition; that Welsh, one of the plaintiffs in error, was surety on his notarial bond, and judgment was asked against both Bartlett and Welsh. The bond, which' was made a part of the petition, was dated May 20, 1871, and was conditioned that: “If said A. B. Bartlett shall well and faithfully perform and discharge the duties of his said office [notaiy public in and for the county of Wyandotte] according to law, then this obligation shall be void and of no effect; otherwise, to remain in full force.” The false and fraudulent certificate of acknowledgment was executed September 21, 1874. The petition also contains these allegations:
“ Plaintiffs say that said pretended mortgage purported to convey the homestead of Rose Teis and her husband, Peter G. Teis, and was absolutely void without the signature and acknowledgment of said Rose Teis. Plaintiffs further say that at the April term of this court, 1875, they brought suit upon the said note and mortgage in the name of T. B. Bullene, one of the plaintiffs herein, against the said Peter G. Teis and Rose Teis, his wife, and that at the December term of said court, 1875, trial was had in said cause before a jury, and that the jury found that the said Rose Teis did not sign or acknowledge the said mortgage; whereupon judgment was rendered for said plaintiff, T. B. Bullene, and against said said Peter G. Teis and Rose Teis upon said promissory note, but that said plaintiff, T. B. Bullene, was denied a decree foreclosing the said mortgage and an order for the sale of said property to satisfy said judgment. Plaintiffs further say that prior to the verdict of the jury above stated, at the December term of said court, that they, nor either of them, had any knowledge of the falsity and fraudulency of the said notarial certificate to said mortgage, so made by the said A. B. Bartlett as said notary public as aforesaid; that prior to the rendition of said verdict by said jury in said last-mentioned action, they did not know, or have means of knowing, that said A. B. Bartlett, as said notary public as aforesaid, did not take the acknowledgment of said Rose Teis to the said mortgage, as he in his certificate certified that he did. And plaintiffs further allege that three years have not elapsed since the discovery of the falsity of said A. B. Bartlett’s said certificate and the commencement of this suit.
“Plaintiffs further say, that thereupon they caused a general execution to issue upon said judgment, which execution was duly returned, indorsed, cNo goods or chattels, lands or tenements found whereupon to levy/ by means whereof said judgment has become wholly valueless to said plaintiffs. Wherefore, plaintiffs aver that by reason of said wrongful acts and omissions of the said defendant, A. B. Bartlett, as aforesaid, the debt of plaintiffs intended to be secured by said mortgage has become entirely worthless to said plaintiffs, and that they have been damaged in the sum of $700, and that according to the statutes in such cases made and provided, an action has accrued to them.”
The defendants, Bartlett and Welsh, filed their answer April 8, 1879, setting up a general denial and the statute of limitations of three years. Trial had at the April term, 1879, of the district court by the court, a jury being waived. The defendants objected to the introduction of any evidence at the trial, on the ground that it appeared from the petition that the cause of action was barred by the statute of limitations, and that a cause of action was not stated. The objection was overruled by the court, and final judgment was given for $472.45 and costs against defendants and in favor of plaintiffs below.
The vital question is, when did the cause of action alleged in the petition accrue? Plaintiffs in error contend that the statute of limitations commenced to run from the date of the malfeasance, to wit, September 21,1874, and that there is no exception to its running. Defendants in error claim that the cause of action accrued at the time of the discovery of the falsity of the certificate by the mortgagee, to wit, in December, 187 5. While there is some little conflict in the decisions, the highest and most decisive authority favors the view that the malfeasance of a person, or the negligence or breach of duty of an officer, is the gist of the action, and not the injury consequent thereon, and that the statute therefore begins to run from the malfeasance, negligence or breach. “In actions for official or professional negligence, the cause of action is founded on the breach of duty which actually injured the plaintiff, and not on the consequential damage. . . . So, in an action against the sheriff for an insufficient return upon a writ by reason whereof the judgment was reversed, the statute begins to run from the time of the return, and not from the reversal of the judgment.” (2 Greenl. Ev., §433.)
In Betts v. Norris, 21 Me. 315, it was decided, in an action against an officer for neglect of duty in not attaching sufficient real estate, as it was his duty to have done, whereby the creditor who recovered judgment lost a part of his debt, that the statute commenced running from the time of the return of the officer upon the writ, and not from the time it was ascertained by the levy upon the property attached that it was not sufficient to satisfy the whole judgment. In Cæsar v. Bradford, 13 Mass. 169, the officer who served the original 'writ falsely returned that he had taken bail, when in fact he had not. The court held that the action accrued against-him immediately. In Kerns v. Schoonmaker, 4 Ohio, 331, it appears that a judgment was obtained on April 25, 1825, before a justice of the peace, in favor of Jacob Kerns, against John Stewart, for $172.69. On the 28th of April, 1825, Stewart offered one Simon Elliot as surety for the stay of execution upon this judgment, who was accepted by the justice; but the entry upon his docket was so carelessly, negligently and informally made that Elliot was not legally bound.- Stewart died insolvent, before the supposed stay of execution expired. In May, 1829, the recognizance was discovered altogether void, by the judgment of the supreme court. Within one year after said May term, 1829, Kerns brought his action against Schoonmaker, the justice, to recover damages for negligence and omission of duty. The court held that the action was barred by the statute of one year, on the ground that the action accrued before the termination of the suit in 1829. See also Wilcox v. Plummer, 4 Pet. 172; Argall v. Bryant, 1 Sandf. 98; Fee v. Fee, 10 Ohio, 469; Lathrop v. Snellbaker, 6 Ohio. St. 276; Ellis v. Kelso, 18 B. Mon. 296; Howell v. Young, 5 B. & C. 259.
Applying the principle deducible from these decisions to the case at bar, we are of the opinion that the alleged cause of action accrued at the date of the making of the false certificate by the. notary; and that, as the statute of limitations, which controls, provides that “no suit shall be instituted against any such notary or his securities more than three years after the cause of action accrues,” (Comp. Laws 1879, ch. 71, §9,) the cause of-action was barred by the, statute, when brought on September 18th, 1878, more than three years having elapsed after, the action accrued before the commencement thereof.
It is -unnecessary to discuss the exception to the running of the statute prescribed in subdivision 3d, § 18, ch. 80 of the code, because, whether applicable or not in cases where a special statute-of limitation is provided, more than two years expired after the discovery of the malfeasance of the notary before suit was brought. As the petition showed upon its face that the cause of action was barred by the statute of limitation, it did not state facts sufficient to constitute a cause of action,- and the trial court erred in receiving evidence and rendering judgment over the objections of the defendants. (Zane v. Zane, 5 Kas. 134.)
The judgment of the district court will be reversed, and the 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, by plaintiff in error against the defendant in error, sheriff of Ottawa county, to recover 5 horses, 2 colts, 2 cows, 3 calves, 100 hogs, and 250 bushels of wheat, of which plaintiff claimed ownership, by purchase with her own- money, and which were held by the defendant by virtue of a levy under an execution issued against H. M. Dresher, the husband of the plaintiff, in favor of one H. H. Dalrymple. No redelivery bond was given. A general denial was filed by defendant. Trial was had at the May term of the district court, before the court, without a jury. The court found that plaintiff was the owner of the horses and colts, but that the defendant was entitled to. the cows, calves, hogs and wheat, and to a return thereof, or their value, to wit, $373, and that each party pay its own costs; to which decision, findings and judgment said plaintiff at the time excepted, and filed her motion for a new trial, which was overruled, to which ruling the plaintiff at the time excepted.
The first and principal question is, whether the findings of the court are sustained by the testimony. The testimony of plaintiff was direct and positive that the property was all hers; that she inherited some $2,200 from her father’s estate, with which she purchased some real estate and some personal property (much of the latter from her husband), and that the property in controversy was either the property so purchased, or the increase and product thereof. Evidently the district court did not credit her entire testimony, for there was ijo testimony directly contradicting her inheritance or purchase. Yet we cannot say that the court erred, for there was much that cast discredit on her. statements. For instance, her purchases seem to have been largely in excess of the amount inherited. Many of those from her husband were made during the pendency of the suit against him, which passed into judgment, and under which the sheriff took this property, and of his liability she had knowledge. She seemed to have bought from him until she had left him “execution-proof.” Again, she claimed to have made a purchase from him in the fall of 1874, to enable him to pay a debt which other testimony shows was paid in August or September, 1873. In reference to this, she testified that she paid for the property in about three weeks after the purchase. Another witness testified that he was called in to draw a bill of sale of the property, and the money was paid at the time. Again, she testified that after she had made these various purchases' her husband still owned a team of horses, a wagon and one cow, property that as head of a family he could claim as exempt, and that she had him to work for her for his “ board, cloth-, ing and lodging.” The assessment rolls, even for the years after these alleged purchases, show that the personal property was assessed to him, and his own affidavit, made about the time of the purchases, was, that he was worth $2,000 above' all exemptions. Now under these circumstances, this court cannot hold as matter of law that the district court erred in-not giving entire credence to the statements of plaintiff. ' We have repeatedly affirmed the right of the wife to purchase and hold separate property real and personal, and whenever such right is exercised in good faith it is entitled to protection. But when property which is in the possession and apparently belongs to the husband/and upon the faith of which he may properly have received credit, is at the time of his financial embarrassment claimed to have been purchased by and to belong to the wife, courts may well require clear and convincing proof, not merely of the fact, but also of the good, faith of the purchase. Communications between husband and wife being privileged, the opportunity for fraud,, if fraud is desired, is great, and searching inquiry is proper. When, pending a suit against him, ft man of means transfers all his property save that which is exempt, to his wife, and hires out to her for his “board, clothing and lodging,” the transaction, to say the least, affords grounds for suspicion, and calls for satisfactory proof of good faith and fair consideration. Unless care is taken and courts are watchful, those laws which were designed for the protection of married women will become repulsive to the moral sense' as mere covers for fraud. The district court evidently regarded this as such a case, and we are not prepared to hold that its judg ment was wrong. At any rate, there was testimony which would justify it as a trier of fact in coming to that conclusion, and of course that ends inquiry in this tribunal.
Counsel says there was as much testimony of plaintiff’s ownership of the hogs and wheat as there was of the horses, and that if the court found that the horses belong to her, it ought to have found that the hogs and wheat did also. Concede this to be true, and the converse is also true — that if the testimony vyas identical, and the court found' that the hogs and the wheat were not hers, it ought to have found that the horses were also not hers. Hence, it erred, but the error, being in her favor, is not ground for reversal. Again, it is urged that the district court erred in admitting the assessment rolls showing the assessment of the personal property for several years to the plaintiff’s husband, and also in admitting two affidavits of his as to his pecuniary responsibility. These were admitted, not as impeaching, but as direct testimony on the part of the defendant. This was probably error, and yet we do not think the error such as compels a reversal. The case was tried by the court, without a jury. The testimony could have been made competent by proper previous inquiries of the witness. He went upon the stand after the defendant rested, and gave testimony in explanation of the assessments, stating that the assessor told him that it made no difference in whose name, it was listed', and that he gave it in as the agent of his wife. He could have made any explanation he desired in reference to the affidavits, but did in fact say nothing. Under the circumstances, we do not think any material injury was .done to plaintiff’s rights.
The only remaining question is, that of costs. The court required each party to pay its own costs. This may not be technically in conformity to the statute, for that provides that costs shall follow the judgment in favor of either plaintiff or defendant. (Comp. Laws of 1879, p.682, §§589, 590.) Here a judgment was entered in favor of each, and perhaps strictly a judgment should have been entered in favor of each that he recover costs of the opposite party, or that the one who had expended the most should recover a judgment for the excess. But in the absence of any showing as to the amount of costs on either side, we do not feel warranted in disturbing the form of the judgment. We doubt not it is substantially correct.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff in the court below, plaintiff in error in this court, brought an action against the defendant in error in the district court of Shawnee county, for services rendered by him as clerk of the district court of said county. The defendant demurred to the petition of the plaintiff, and the demurrer being sustained by the court below, the plaintiff excepted, and brings the case here.
The question submitted for our determination is, whether the county of Shawnee is liable for the services rendered. The services alleged are, for the entries on the journal of the court of orders opening and adjourning court, excusing', discharging and swearing jurors, electing a judge pro tern., and ■furnishing to the board of county commissioners a certified statement of the attendance and mileage of jurors at the August term of court for 1878. With the exception of the last item, the district court rightfully held the county not liable for the services. Certainly, there is no specific provision in the statute fixing the liability for any fees for entering the •orders of opening and closing court, and the other like services described in the petition. These services cannot be paid •out of the county treasury, unless statutory warrant can be found for so doing. As this warrant is wanting, the county cannot be held. As to the plaintiff and others in his position, such services may perhaps be regarded as incident to their official position. They took and held office eim onere. One of these burdens is the performance of certain services gratuitously, where the statute fails to make any provision for payment. We are inclined to think that the item' of $1.10 charged for the certified statement of the attendance and mileage of jurors a valid claim.
Sec. 21, ch. 39, p. 446, Comp. Laws 1879, provides that ■“ within ten days after the close of each term of a court of record, the clerk thereof shall return to the board of county commissioners á statement of the attendance of jurors at such term and their mileage as taken by him, together with a statement of the attendance and mileage of witnesses in all criminal cases claimed and for which the county is liable.” Sec. 2 •of said chapter makes provision for the payment of such service, in the following words: “Certifying fees of jurors and witnesses to county board,, each name, five cents.”
Sec. 21 requires the statement to be furnished to the county board. Sec. 2 provides the fee therefor, and the fair intendment from these provisions of the statute is, that the fees are to be paid by the party to whom the statement is furnished. This being the county, therefore the county is liable for the service.
The judgment of the district court will be reversed, and the case remanded with direction to overrule the demurrer and enter judgment for the plaintiff for $1.10.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On the trial, the plaintiff produced testimony fully sustaining his cause of action. The defendants’ evidence proved that the county board conveyed the plaintiff from Eureka, in Greenwood county, to Emporia, in Lyon county, twice, in very cold weather, to assist in the case of The State v. Nicholas; that he rendered service in the case in Lyon county, and that he paid his own bills there. It was also shown by the defendants, that he was not taken to Emporia as a witness, as they testified the board had no thought of the plaintiff bein.g a witness, until he claimed his fees. The county board seemed to labor under the impression that the services sued for were rendered as county attorney, and the trial court apparently held, that as the evidence of the defendants contradicted the testimony of the plaintiff concerning an express •contract between plaintiff and the county board for the services, no contract was proved, and therefore the county was not liable. Here was error. As the services charged for were rendered in the prosecution of a case beyond the limits of ■Greenwood county, and as plaintiff attended personally the court outside of said county, the services for the county performed in Lyon county were beyond and outside of his duties as county attorney. Nor was it necessary, in order that the plaintiff might recover compensation for the services, that an •express contract or employment be proved. It is well settled, that a corporation can be bound by an implied conti’act. The commissioners have general charge of the county business, and the plaintiff attended the court in Lyon county personally .at their instance, and with their consent. While there, he performed. certain services as an attorney, of some value to the county of Greenwood. These services were so performed at the instance, and with the consent, off the county board. The law implies a contract between the plaintiff” and the board. Where a county attorney performs services- for a county, under such circumstances as were shown upon the trial, the plaintiff ought to have recovered the value of his services performed in the case in Lyon county." “Where there is an express contract, that, will control, and the rights of the parties must be settled by it; but when there is no express contract, the law may imply one, when a party knowingly receives and appropriates to his own use the property of another.” So likewise, if a party asks and receives services of another which are of value. (Butler v. Commissioners of Neosho County, 15 Kas. 178; Commissioners of Leavenworth County v. Brewer, 9 Kas. 307.)
' The judgment of the district court will be reversed, and the case remanded for a new trial, in accordance with the views expressed in this opinion.
All-the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced on June 6, 1878,by Augusta Klempagainst Charles F.Winter, her former guardian, and Fred. Wulfekuhler, surety on the guardian’s bond, for money wrongfully detained from her under circumstances hereinafter stated. The facts of the case, as set forth in the plaintiff’s amended petition, are substantially as follows:
The plaintiff, whose maiden name was Augusta Schilling, was born July 4, 1859. In 1861, her father died, and in 1862, her mother died, leaving her a fatherless and motherless orphan. On February 3, 1864, Henry Winkler, who had previously been appointed her guardian, apprenticed her, with the approval of the probate court, to Charles F. Winter and Mary Ann Winter, who were husband and wife. These things were all done and all transpired in Lafayette county, Missouri, where all the parties resided. By the terms of the indenture of apprenticeship, the plaintiff was to reside, with Winter and wife until July; 5, 1875, as their apprentice and servant, learningifrom .theni “the art of domestic housekeeping in all its various branches,” which art they were to teach her, and they were also to give her other proper instruction in reading, writing, arithmetic, etc., and to furnish her with boarding, lodging, clothing, washing, etc., suitable to her wants and necessities. The plaintiff performed all the things which she was to perform by the terms of said indenture. In 1871, Winter and wife removed from said Lafayette county, Missouri, and settled in Leavenworth county, Kansas, taking with them the plaintiff, said Augusta Schilling. On October 1,1872, Winter was appointed guardian for the estate of the plaintiff, on his own application, by the probate court of said Leavenworth county. Fred. Wulfekuhler and Christian Hoffman became the sureties for Winter on his guardian’s bond. Afterward, Winter, as guardian for the plaintiff, obtained a large amount of money (about •$1,600) belonging to her. He afterward made three settlements with the probate court, the first two of which he called annual settlements, and the third he called a final settlement. These settlements were made on December 26, 1873, April 29,1874, and July 16,1875, respectively. In these settlements he wrongfully and fraudulently charged and obtained credit for the same boarding, lodging, clothing, washing and schooling for which he' had contracted in' said indenture to furnish to the plaintiff for her services, without extra cost; and by these settlements Winter was allowed, by the probate court, to retain all of said money as his own, which in fact belonged to his ward, said Augusta Schilling. The probate court had no knowledge of said indenture, nor any knowledge of the services performed by the plaintiff for Winter and wife, but was wholly ignorant thereof, and was déceived by Winter in these respects. These settlements were also made without any notice to the plaintiff, and she had no knowledge of the same until long after they were made. In July, 1876, Henry W. Wulfekuhler, a brother to said Fred. Wulfekuhler, was appointed guardian for the plaintiff] by the probate court, without any removal of Winter, and Fred. Wulfekuhler became Henry’s surety on his guardian’s bond. On July 19, 1877, said Winter arid said Fred. Wulfekuhler and Henry W. Wulfekuhler, by a conspiracy and by fraud and misrepresentations, induced the plaintiff to enter into an agreement releasing Winter from all liability to her whatever. Upon entering into this agreement, Winter paid her $600; and this is all the money she has ever received from any of them. She did not, at the time of making this agreement, nor at any previous- time, have any knowledge of said indenture; and its terms were carefully and fraudulently kept concealed from her; nor did she know her rights, but was deceived and defrauded by said parties. Her services to Winter and wife were amply worth all the boarding, lodging, clothing, washing and schooling which she ever received from them, or which were furnished to her by them. On September 9, 1877, the plaintiff was married to Henry W. Klemp. The prayer of her petition was for $1,100 and interest and costs, and that said settlements with the probate-judge, and her agreement of July 19, 1877, be set aside, and for general relief.
The plaintiff commenced this action on June 6, 1878, and afterward, on April 10,1879, filed an amended petition. The defendants afterward filed a joint demurrer to this amended petition on the grounds — first, that the amended petition did not state facts sufficient to constitute a cause of action; and second, that the court did not have jurisdiction to hear or determine the case. The court sustained the demurrer, and the plaintiff excepted, and now brings the case to this court for review.
The plaintiff’s counsel say that the demurrer was sustained by the court below upon the second ground of demurrer, to wit, that the court did not have jurisdiction to hear and de termine the case; and we should think from the briefs of counsel 'on both sides that such was the'fact. But was the demurrer properly sustained upon either ground ?
That fraud vitiates everything i.t touches — :final judgment's, final orders, final settlements ami. contracts, as well as things of less consequence, we suppose all persons will admit. And that courts, possessing general equity or chancery jurisdiction, have the power to grant proper relief in all cases of fraud, we suppose will also be admitted. But we will refer to a few cases, however, which we think have some application to the particular case now under consideration. These cases to which we refer have reference to settlements made by administrators and guardians, and hold that such settlements, where fraudulently made, are not conclusive, but that proper relief may be granted to the party defrauded by other courts than the courts in which the settlements were originally made. Payne v. Hook, 74 U. S. (7 Wall.) 425; Van Bokenen v. Cook (decided by the U. S. circuit court of Nevada, September, 1879,); Strong v. Wilkson, 14 Mo. 116; Jones v. Brinker, 20 Mo. 87; Clyce v. Anderson, 49 Mo. 37, 43; Folger v. Heidel, 60 Mo. 284; Sheetz v. Kirtly, 62 Mo. 417; Speed v. Nelson, 8 B. Mon. 499, 507; Green v. Creighton, 18 Miss. (10 S. & M.) 159; Dooley v. Dooley, 14 Ark. 122.
Under the laws of this state, the district courts of Kansas possess general equity and chancery jurisdiction, as well as general common-law jurisdiction; and unless something can be found to take away a portion of this jurisdiction, or to limit the exercise thereof, the district courts undoubtedly have the power to hear and determine all such cases as the present case. Now there is no law in this state expressly taking away or limiting the jurisdiction of the district court with reference to this particular case or class of cases, and there is no law impliedly doing so, as we think. Hence we think the court below' had ample power and authority to hear and determine the present case. It is true that the probate courts of this state have a general jurisdiction over the estates of minors, but there is nothing in the statutes or else where showing that this jurisdiction is in all cases absolutely exclusive; and the bench and bar of the state have never considered it to be thus exclusive. Suits are frequently brought in the district courts by and against minors, and sustained by the courts, which suits nearly always more or less affect the estates of such minors. But the plaintiff in this case was not a minor when this suit was commenced; and her estate did not belong to a minor; and hence the law relating to guardians and wards, and to the settlement of estates of minors, can have but little application in determining the question whether the district court or some other court should take or have jurisdiction of the subject-matter of this particular action.
We think'it is possible that under §§ 568, 575 and 576 of the code of civil procedure, the plaintiff might have had Winter’s said settlements in the probate court set aside by the probate court. But this would have been a very inadequate remedy in this case; Winter was no longer her guardian; nor was Wulfekuhler any longer her guardian; nor had she any guardian; nor was she still a minor. The whole status of things had changed since said settlements were made, and the probate court had lost its jurisdiction over the parties and over the estate, except perhaps to merely set aside said fraudulent settlements. But when they were set aside (if set aside), the plaintiff would be but little nearer to a complete remedy for the wrongs she had suffered than she was before. She would still have to sue in the district court to recover her money which Winter wrongfully detained from her. Besides, said contract releasing the defendants from all liability, was procured from the plaintiff after she had attained her majority; and the probate court never had, or ■could have, obtained any jurisdiction over it. The probate court had no power to set that contract aside. The district court alone was the only court that could have obtained the requisite jurisdiction over it, so as to set it aside. And so long as this contract remained in force, the setting aside of said fraudulent settlements would have been of no benefit to the plaintiff. Hence it was necessary for the plaintiff, in order to obtain a complete remedy for all the wrongs which she had suffered, to commence her action in some court that could have or take complete jurisdiction ^ver all the subject-matter of such wrongs.
It will be seen that this controversy is composed of two or more branches, one at least of which must necessarily be prosecuted (if prosecuted at all) in the district court, and one which might possibly be prosecuted in the probate court; and therefore, to avoid a division of the subject-matter of the controversy and to avoid a multiplicity of suits, the district court should and ought to take jurisdiction of the whole subject-matter of the controversy, and dispose of the same as justice and equity would require. We would think, however, that the district court would have jurisdiction of each branch of the controversy, even if each branch should be considered separately; but we do not think that the case should be so considered. The case consists of a succession of wrongs, all having in view the common purpose of detaining from the plaintiff certain money belonging to her. The district court should take jurisdiction of all these matters, as constituting-one single cause of action. With reference to jurisdiction as between the probate court and district court, and settlements made in the probate court, we would refer to the following cases decided by this court: Shoemaker v. Brown, 10 Kas. 383, 390, et seq.; Johnson v. Cain, 15 Kas. 536, 537; Rizer v. Gilpatrick, 16 Kas. 567; Musick v. Beebe, 17 Kas. 47; Collamore v. Wilder, 19 Kas. 80.
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 of replevin, brought by J. W. Cottingham and W. V. Cottingham against J. T. Brock and Uri Coy. The defendants answered jointly, filing a general denial. Their defense was conducted jointly, and by the same counsel, and judgment was rendered against them jointly, although it is clear from the proceedings and the evidence that all of Coy’s sympathies were with the plaintiffs. Brock alone brings the case to this court; and this is right, for Coy is undoubtedly perfectly satisfied with the judgment of the court below. But Brock should have made Coy a party defendant, so that Coy could present his views and desires to this court. We can hardly reverse the judgment as to Coy, when he is not a party in this court and we have no jurisdiction over him. But for the purposes of this case we shall consider the case as rightly brought to this court, and shall proceed to consider the other questions involved in the case as though we had entire jurisdiction over all the parties. Numerous questions are raised; but only one, as we think, demands our special attention, and that one is, whether certain evidence offered by-the defendant Brock to prove the contents of the execution under which he claims the property, was admissible on the trial. That Brock was-sheriff of Montgomery county, where this action was brought and tried; that Coy owned the property; and that Brock claimed to hold it under a valid execution against Coy, are admitted facts in the case. And it was sufficiently shown that Brock held an execution of some kind; that it was issued to Brock by the clerk of the district court of Wilson county; that it was properly registered in the clerk’s office of the district court of Montgomery county; that Brock seized the property in controversy under such execution, and held the property by virtue thereof; and then, that he returned the execution to the clerk of the district court of Wilson county,, where the return indorsed on the same was duly recorded. But what afterward became of'the execution, is not shown.
The plaintiffs below claimed to hold the property under a chattel mortgage and a bill of sale, and they made out such a clear, prima facie case of right, that we do not think that it js necessary to -discuss their side of the question. Even if their claim might be slightly irregular or fraudulent, still Brock cannot complain unless. he can show that he himself has some interest in the property. If he did not have any valid or sufficient execution, or in other words, if he was a mere wrong-doer in seizing said property, then he cannot complain of the infirmities of the plaintiffs’ claim, unless such claim was so infirm as to be absolutely void as against all persons, which was not the case. And this is especially true, as the court below evidently adjudged the property to go just where the owner of the property, Coy, wanted it to go. Then did Brock have any valid or sufficient execution ? He did not introduce or offer to introduce any execution in evidence; nor did he offer to introduce any copy of any execution in evidence; he did not even offer to prove the verbatim contents of any execution. He however offered to prove by parol evidence the substance of the contents of the execution, under which he made his claim to the property. This, of course, would have been sufficient if he could not have obtained any better evidence. The court however excluded this proffered evidence, on the ground that Brock had not shown and did not show that he could not procure any better evidence. Did the court err in this? This is the principal question involved in this case. In order to lay the foundation for the introduction of secondary evidence as to the contents of said execution, Brock introduced the witness T. J. Hudson, who testified as follows:
“I saw the execution. I can’t say just when I first saw it. I brought the execution down and gave it to Brock in April last. I went with Brock to make the levy. I am one of the attorneys for defendant Brock in this case. As such attorney, I called upon A. E. Smith, clerk of the district court for Wilson county, Kansas, for the execution direct from said court to the .defendant Brock in the case of Wilson County Bank v. L. A. Davis, Uri Coy and J. W. Craig. The said execution could not be found by Smith among the files of papers kept by said clerk in his said office of district clerk. That he (Hudson) had himself several times searched said office thoroughly in company with the clerk for said execution. That he (witness) looked in every place that said paper was likely to be kept or found, and had repeatedly called upon the clerk for the same or a copy thereof, but could not obtain either, because he couldn’t find it; that in company with the clerk of said court he (witness) hád examined the safe and searched the papers kept therein, and had looked among the papers in the case of the Wilson County Bank v. L. A. Davis, Uri Coy and J. W. Craig, on file in said court, and had thoroughly examined the papers required to be kept by said clerk in his said office of said Wilson county district court; that he (witness) was well acquainted with said office and the places in which papers required to be kept in said office were by said clerk kept, being a resident practicing attorney at Fredonia, the county seat of said Wilson county; that said clerk had no copy of said execution in his said office, but did have the return thereon recorded, a copy of which was in court here, properly certified to by the clerk. I have no copy of the execution. I cannot state the exact language of the execution.
“Q. You may state the substance of it.
“(Question objected to, as calling for secondary evidence, without the proper grounds being laid therefor; that the execution itself was the best evidence; that the evidence called for was incompetent, irrelevant, and immaterial, which objections were by the court sustained, to which ruling the defendant excepted.)”
Did the court err in excluding this secondary evidence of the contents of said execution? We think not. It must be remembered that this execution was an important paper in this case. Brock’s entire case depended upon it. Without it, Brock had no rights, and therefore the most diligent search should have been made for it, and by all means Brock should have procured the original paper itself, or a duly-certified copy thereof. No one knew that the paper was lost. No one knew that it had been destroyed. There was no evidence showing that any paper in said clerk’s office had ever been destroyed, or lost, or carelessly kept. No fire had ever occurred among the papers, and nothing else, except the search of T. J. H., was shown from which it might be presumed, or even supposed, that the paper might have been lost or destroyed, and it was a paper that was not likely to be lost or destroyed; besides, the proper custodian of the paper was not called as a witness. His evidence, we think, was indispensable under the circumstances of this case. Of course, we think that the evidence of T. J. II. regarding his search for the paper was competent, but we do not think it was sufficient. Before secondary evidence of the contents of any instrument can be introduced, the party seeking to introduce the same must “show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest and which are accessible to him.” (1 Greenl. Ev., §558.) Mr. Greenleaf further says: “If it [the paper supposed to be lost] belonged to the custody of certain persons, or is proved or may be presumed to have been in their possession, they must in general be called and sworn to account for it if they are within reach of the pro cess of the court; and so, if it might or ought to have been deposited in a public office or other particular place, that place must be searched. If the search was made by a third person, he must be called to testify respecting it, and if the paper belongs to his custody, he must be served with a subpoena duces tecum, to produce it.” (Id.) Mr. Wharton says that “to satisfy the court which has the determination of the question of admissibility,'search in probable places of deposit must be proved, and the parties last in possession of the paper, if possible, be examined.” (1 Wharton Ev., § 147.) In the case of Anderson v. Maberry, 2 Heisk. (Tenn.) 655, Chief Justice Nicholson, for the court, says: “Before secondary evidence can be admitted as to the contents of a lost paper, the evidence of the person who was the proper custodian of it as to its loss must be adduced.”’ Also upon this question, see the following cases: Apperson v. Ingham, 12 Mo. 59; Bogan v. McCutchen, 48 Ala. 493; Hanson v. Kelly, 38 Me. 456; Dunn v. Choate, 4 Tex. 14; Brown v. Tucker, 47 Ga. 485; Harper v. Hancock, 6 Ired. (N. C.) L. 124; Tyre v. Magness, 1 Sneed (Tenn.), 276; Simpson v. Dall, 70 U. S. (3 Wall.) 460; contra, Hill v. Fitzpatrick, 6 Ala. 314.
In the consideration of this question, we must exclude everything that the clerk may have said to the witness T. J. H., and all inferences drawn therefrom by the witness. All that the witness could know with reference to the matter was, that he made a search for the paper, along with the clerk, and did not find it. He could not know that the clerk did not know where the paper was. The clerk may have placed it in some unusual place, or may have lent it, or may have sent it out of the office to be copied. Nor could the witness know that the clerk could not have furnished him with a duly-certified copy of the paper. And such a copy would have been amply sufficient. (Civil Code, §§372, 387a, 328; Comp. Laws of 1879, pp. 650, 652, 645; Laws of 1870, p. 174, ch. 87, § 12.) Besides, it was not shown when this search was made: neither the hour, nor the day, nor the week, nor the month, nor the year was given. And Mr. Wharton says the search “must be recent.” (Wharton Ev. § 147.)
In this case, as the paper was last known to have been in the custody of the clerk of the district court of Wilson county, and as'the suit was pending in the district court of Montgomery county, the defendant Brock should have demanded of the clerk of the district court of Wilson county, after first tendering the proper fees, a duly-certified copy of said paper; and if the clerk had then failed for any reason to furnish such copy Brock should then have taken his deposition in Wilson county. And the subpena to him should have been a subpoena duces tecum, requiring him to appear and bring the paper. Or if the paper had still been in the hands of the clerk, probabl}’’ a still better remedy would have been mandamus to compel him to give such copy.
We do not think that the evidence of T. J. H. was sufficient to authorize the introduction of parol secondary evidence of said execution. We do not however wish to say that it is always necessary to introduce the evidence of the person who was last known to have been the custodian of such paper. But we think this is the general rule; and, in cases like the present, it should always be the rule. There might be cases where some other person than the legal custodian or the actual custodian would know more about the papers than the custodian himself. And the paper in question might be of but little importance, and the necessity for its use might arise incidentally only during the trial, and it might then be shown that the place where the paper had been kept was destroyed by fire, or that thieves or burglars had abstracted everything from such place, and various other things might be shown that would render it highly probable that the paper had been destroyed or lost. In all such cases, the rule of strict proof of loss or destruction might to some extent be relaxed. Of course, where the last known or presumed custodian is dead, or beyond the reach of process, his evidence must be dispensed with. After examining the question carefully, we think we may state it as a general rule, that before parol secondary evidence of the contents of any paper can be used, the testimony of the person who is shown to have been the last custodian of such paper, or who is presumed in law or from the circumstances of the case to be such custodian, must be introduced to show the loss or destruction of such paper, if such testimony can be procured. And if we are correct in this, then the court below did not err in-excluding said secondary evidence. And without such secondary evidence the defendant Brock could have no right, to recover in this action, upon the evidence actually introduced.
The point made with reference to the want of possession by Brock, is not tenable.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment, brought in the district court for Wabaunsee county, by Isaiah Harris against James L. Thompson, to recover about 12f- acres of land, claimed to be a part of the northwest quarter of section 30, in township .14, of range 13, and damages for withholding the same. The defendant answered, first, by a denial of Withholding from plaintiff the possession of the lands described in his petition; and second, that the land in dispute is a part of the northeast quarter of section 25, in township 14, of range 12, and that said last-described tract, of which the disputed strip is a part, is owned by him in fee, and that he had been in the quiet and peaceable possession of it for more than twenty years prior to the commencement of this action. The real point in dispute was, whether the land described in the plaintiff's petition is a part of the northwest quarter of section 30, in township 14, of range 13, or a part of the northeast quarter of section 25, in township 14, of range 12. To this answer, the plaintiff replied by a general denial. The second and final trial of the case was had at the September term, 1876, of the district court for Wabaunsee county, before the court, and without a jury, and the court took the case under advisement until the March term, 1877, at which term a general judgment, without any special findings of fact or conclusions of law, was rendered for the defendant. Thereupon, the plaintiff made a motion for a new trial, which was duly considered, and at the September term, 1877, was overruled by the court.
There are really but two questions: the first, whether the finding is contrary to the evidence; and second, whether, in the newly-discovered evidence, there was such a showing as entitled the party to a new trial. Two defenses, it has been stated, were pleaded — first, that the disputed tract, in fact and according to the true line, belonged to the defendant’s quarter; and second, that it had been in the open and notorious occupancy of defendant for twenty years, under a claim of title. We are not advised upon which ground the district court rested its conclusion. We think there was sufficient testimony to support the judgment upon either ground. Fifteen years’ occupancy is sufficient. So far as the record before us shows, March, 1876, is the first appearance of this case in court. Defendant testified, that in 1857 he first claimed the tract; that he cut a tree down in that year, thereon, and made it into shingles for one McCoy; that he cut rails thereon, and that thereafter, as he wanted rails, he cut them from this tract; that in 186Í he fenced the tract, or nearly all of it, and had ever since used it for pasture or cultivation. Again, the plaintiff’s title to his land dated from 1866, and his occupancy commenced in 1870. He had resided on the same section ever since 1856, so that he must have known of defendant’s occupancy and claim for years before he commenced -this action. It would be difficult to say that there was not enough in this to sustain the finding of the court upon the mere question of occupancy. But passing that, upon the question- as to the location of the true line -between the two quarter-sections, there was abundance of testimony to sustain the conclusion of the court. The record is lengthy, and there is quite a volume of testimony. Surveyors were introduced, on both sides, who had run the lines, and whose results were as different as the interests of the parties for whom they testified. It would be impossible, upon such testimony, to say that a finding either way was not supported by an abundance of testimony. On the motion for a new trial, several affidavits were read by plaintiff. It appeared on the trial that the stone on the southwest corner of the township was a starting-point for some of the surveys, and that its true location had been represented by defendant to be some twelve rods east of its present site, and •at a mound which he pointed out. These affidavits seem to do away with the existence of any such mound, and tend strongly to show that the stone is in fact where it was originally placed, and at its true location. Of course, to this extent it discredits defendant’s testimony, and weakens his case. To this, defendant’s counsel reply, that this testimony, being cumulative, is not of such a character as necessarily or reasonably requires a different finding and judgment. We think this point well taken.
Conceding, though we do not so assert, that it does away with all of the testimony of defendant based upon the site of •that corner-stone, still it does not destroy all of defendant’s testimony as to the true line between him and plaintiff. Furthermore, it does not make in the slightest against any •of the evidence concerning occupation for these many years. All that testimony remains unchallenged, and for aught the •record discloses, that may have been the ground upon which •the district court decided this case. Be that as it may, we have the undisputed fact before us that the judge, who, as a frier of questions of fact, decided these questions against the plaintiff, decided also that this additional testimony was no ground for a rehearing. In other words, he thereby affirms that upon-this testimony, together with that offered on the trial, he would have found the same w.ay.
We think he was right; but whether right or not, we think ■his conclusion upon this question of fact a final disposition •of the case, and that no legal error is shown of which we «can take cognizance, and therefore the judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
In our view of this case, owing to the conduct of the defendant in error, it -is unnecessary to decidé what rights the original proprietors of the flouring mill obtained under the condemnation proceedings, instituted by them in 1874, for the purpose of diverting water from the Little Arkansas river into Chisholm creek, or to construe § 1, ch. 66, Comp. Laws 1879, relating to the turning of an adjacent stream, or spring into another stream. This leaves only one question for our determination: Whether the defendant in error is estopped by his silence and acquiescence in the construction and continuance of the dam and race-course in controversy, from obtaining the interference of a court, sitting as a court of equity, in his behalf as prayed for by him in his petition? In brief, whether said defendant in error has by laohes, or his own acts, deprived himself of the right to ask equitable relief? The trial court in its conclusions of law fully recognizes-the doctrine that the owner of land may lose his right to the flow of water in its natural channel upon his premises,, by permitting others to expend large sums of money in diverting the water for manufacturing purposes, and failing to commence his opposition when ,he could have done so with justice. An attempt is made, however, to except this case from the general rule, on the theory that where the results of the diversion are unforeseen, and cannot be calculated with reasonable certainty, the rule is not applicable. It may be true, that where a person has acquiesced in the erection of certain works diverting water from its natural flow upon his premises under an erroneous opinion, and in ignorance of the consequences to him, that he is not afterward estopped from all remedy, if at a subsequent period he sustains serious injury, unforeseen when the works were commenced. Generally, a mistake of fact is not binding upon one who acts in ignorance of the real condition of affairs; but if all the parties are equally mistaken in the resultant consequences, another important principle at once enters into the consideration of such cases in the courts, which is: Can the parties be placed in exactly the same situation as they were in when the first act was done by one side and acquiesced in by the other? ■ If that cannot be done, a court of equity will weigh the hardships of the case, the justice or the injustice of stopping such diversion, and will grant or refuse orders of injunction or for abatement, as shall be most in consonance with the equities of all the parties. If possible, the inconveniences of the parties will be regarded; and to balance these inconveniences and the injuries of parties thus acting toward each other, when inconveniences and injuries unexpectedly ensue, equity will generally decline to interfere on either side, but leave the parties to their legal rights and their legal liabilities. In a legal action, damages may be recoverable, in many cases, when the laehes of a party deprives him of the right to the interposition of equity in his behalf. If we assume that the defendant in error acquiesced in the construction of the dam, race-course and mill, in ignorance of the ultimate consequences, we must also assume that the original proprietors of the mill were equally ignorant; in other words, that neither knew the injurious consequences of the diversion of the water into Chisholm creek, and therefore, as both parties were equally mistaken, and cannot be placed in exactly the same situation as they were originally in, equity ought not to interfere on either side, but leave the parties to their legal rights and liabilities. The conclusion, therefore, of the trial court, was erroneous, in holding that the plaintiffs in error should be restrained from maintaining their dam upon the Little Arkansas, and from diverting the water therefrom, notwithstanding the acquiescence and delay of the defendant in error, on the ground that such acquiescence and delay were no bar to the' interposition by injunction and like orders, in view of the unforeseen consequences arising from the grass growing and decaying in the river. The findings of fact show that if the orders of the trial court are executed, the waters of Chisholm creek will be valueless as a waterpower, the dam and race-course will become useless, and that the mill must be run by steam, if run at all, which will cause loss and expense. Under these orders, all the loss would be thrown upon the plaintiffs in error. This would be greatly inequitable, considering the action of the defendant in error.
Further, the conclusion of the court, set forth in the findings of law, to the effect that the defendant in error was not guilty of unreasonable delay in bringing his suit, is not sustained by the findings of fact. By these findings, it appears that in the summer of 1876, he knew the full consequences to his premises of the diversion of the water from the Little Arkansas river, and in the fall of that year visited and walked across the dam. Thereafter he could not plead ignorance of the real facts in the case. Yet he permitted the dam in the river to be twice rebuilt to the same height, after the fall of 1876, and made no serious objection. He waited till March, 1878, to commence any legal opposition, and, therefore, in our opinion, has been guilty of improper delay in applying to the court for equitable interference in his behalf. He has acted in such a manner as estops him from the assertion of any right to the interposition of a court of equity. Whether he has also deprived himself by his conduct of all legal remedies, we need not now decide.- The conclusions we have reached dispose finally of this case. (Bankart v. Houghton, 27 Beav. 245; Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Sheldon v. Rockwell, 9 Wis. 166; Tichenor v. Wilson, 8 N. J. Eq. 197; Burden v. Stein, 27 Ala. 104; Water Lot Co. v. Bucks, 5 Ga. 315; Jacox v. Clark, Walker’s Ch. 249; Sprague v. Steere, 1 R. I. 247; Gray v. O. & Pa. Rld. Co., 1 Grant’s Cases, 412.)
The judgment of the district court will be reversed, and the case remanded with direction to the court to deny the relief demanded by the defendant in error, and to render judgment in favor of the plaintiffs in error for all costs.
All the Justices concurring.
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The opinion of the court -was delivered by
Valentine, J.:
The material question involved in this case is, whether the sureties on a second bond given by an administrator are liable for moneys belonging to the estate collected ' by the administrator and appropriated by him to his own use before said second bond was executed, where the records of the probate court show that just three days before said second bond was given a final settlement was made by the administrator with the probate court, and that said moneys were then in the hands of the administrator, and that said administrator was then ordered to give said second bond.
We think the sureties are liable. It appears from the records of the probate court that on March 14, 1874, the administrator had a final settlement with the probate court, and that on that day he had in his possession $394.60 belonging to the estate. It also appears that' on that day the probate court ordered that the administrator should give a new bond with approved security. This new bond was evidently intended as an additional security for said $394.60. On March 17,1874, said new bond was given by said administrator and sureties, and was approved by the probate court. The said sureties are the present plaintiffs in error, and were defendants below. Said new bond was evidently given as a security for said $394.60, and the sureties must have understood it to be such. If it was not given for this purpose, then for what purpose was it given? The estate had already been settled, and this sum was all there was left of the estate to be administered. And it must be presumed that the sureties giving this second bond knew the condition of the estate, and for what purpose they were giving the bond. It must not.be presumed, however, that they knew that the administrator had already appropriated said funds to his own use. But whether they did know it or not, can make but little difference; for, as before said, the bond was evidently given to secure that amount. We think the terms of the bond are broad enough to cover it. The administrator was required by its terms to make an inventory of everything belonging to the estate which had or might come into his hands, and to administer the same according to law. If he had previously appropriated said money to his own use, then he was liable to the estate for that amount; and that liability was assets in his hands belonging to the estate, and it was his duty as administrator to make such assets available to the estate, as required by law. It was his duty as administrator to collect it, procure it, and produce it, for the estate, or to be used as might be provided by law. It is the duty of an administrator to collect for the estate everything due to the estate, or to which the estate has a legal claim, whoever may be the party liable. If he is the party liable, then he should pay or deliver the amount or thing for which he is liable, as ordered by the probate court; and if he fails to do so, being able to do so, there could be no hardship in holding himself and his sureties liable on his bond. We would refer to the following authorities: Pinkstaff v. The People, 59 Ill. 148; Morley v. Town of Metamora, 78 Ill. 394; Roper v. Trustees of Sangamon Lodge, (decided by the supreme court of Illinois, in June, 1879,) 9 Cent. L. J. 266; State, ex rel., v. Grammer, 29 Ind. 530; McCabe v. Raney, 32 Ind. 309; Boone County v. Jones, (decided by the supreme court of Iowa, in November, 1879,) 9 Cent. L. J. 441; same case in Western Jurist, 546; Baker v. Preston, Gilmer (Va.), 235. The first case above cited is almost directly in point; and nearly all the others hold that 'the sureties, as well as the principal, are estopped from denying the truth of what the principal’s settlement shows.
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 purpose of this suit was to restrain the defendant in error from interfering with the flocks of the plaintiff in error in grazing on the wild grass growing on certain land in Lyon county. The petition alleges that the plaintiff is now, and for a long time past has been, engaged in sheep raising on his farm and sheep-ranch, very near the real estate herein described; that for the purpose of his business it is necessary to have the use and occupation, for grazing purposes, of a large tract of land adjoining and in the immediate vicinity of his said ranch; that among his flocks of sheep he has about eight hundred ewes with lambs at their sides, or such as will bring forth young ones within the present and next two months; that it is of the very highest necessity and importance, in order to succeed in raising the lambs that this plaintiff have range and grazing lands in the immediate vicinity of his ranch, so that the lambs can follow their dams while grazing, and that those which are now continually being brought forth may be nursed and taken care of, which cannot be done without irreparable loss and damage, if said ewes and lambs are driven to a great distance from the ranch; that in order to provide against such contingencies, this plaintiff leased of parties, and procured the permission of others in the immediate neighborhood of his ranch, the use of certain lands adjoining and near his said ranch for the purpose aforesaid, and among the lands the right to the possession and use of which this plaintiff has secured from the parties entitled thereto by law, is the southwest quarter of section six (6), township seventeen (17), and range ten (10), in said Lyon county, state of Kansas, from George Webster, the son of this plaintiff, for the period of one or more years — the said quarter-section being a part of what is known as the “Kaw reserved lands,” which, pursuant to a treaty of the United States with the Kaw Indians, and an act of congress of the United States, were opened to settlement and improvement by settlers thereon, and have been appraised in the name of such settlers and awarded thereto, each of whom has the right of purchasing the lands occupied and improved by him or her; that said quarter-section of land has been duly entered under the provisions of said treaty and act of congress, and has been occupied and improved by said George Webster, in all respects in accordance with said act of congress; that the same has been appraised in the name of George Webster, and the right to purchase the same under the law and treaty duly awarded to him; that the said George Webster has made large and valuable improvements on the land, having built thereon a dwelling house, and broken a large amount of land, to wit, about twelve acres; that said defendant, without leave or license from anyone whomsoever, unlawfully and forcibly entered upon said quarter-section of land, and took possession of said house and improvements, and with deadly weapons and pistols refuses to allow said George Webster to enter upon said quarter-section in person or to drive this plaintiff’s flocks thereon or across, or plow or work on said quarter-section or any part thereof, and that the consequence is that the plaintiff is compelled, in order to avoid great bodily harm to himself, his servants, and his said sheep, to drive them in a roundabout way a distance of two miles to find grazing privileges, the other lands in the neighborhood being in the use and occupation of actual bona fide settlers, and from whom said plaintiff cannot lease the same except at very great sacrifice; that although said quarter-section is unfenced, said defendant sets his dogs on said plaintiff’s sheep whenever they come near said quarter-section; that this plaintiff has no remedy at law against said defendant which will be speedy enough to prevent an irreparable loss to his business; that at this season of the year, when his flocks are weak and the ewes are dropping their lambs on the prairie, to be deprived of the use of said quarter-section for grazing his sheep cannot be fairly estimated in damages; that said defendant is insolvent, and while this plaintiff is willing to submit his case to the proper tribunal to adjudicate upon the rights of this plaintiff and said defendant, and is willing to allow said defendant to quietly and peaceably occupy said house and lands until their rights may be determined, he claims the same privilege from the defendant; and in order to compel the defendant to keep the peace and allow the plaintiff the right of grazing on said premises, and inasmuch as said defendant has nothing on said premises that this plaintiff can injure by grazing on the prairie grass thereon, he asks for an injunction. The petition closes with the usual prayer for relief.
On the 5th day of May, 1879, upon due notice and a full hearing, an injunction was temporarily granted by the probate judge, the judge of the district court being absent from the county. The defendant, without controverting the statements of the petition, on July 24th, 1879, appeared and moved the judge of the district court at chambers to dissolve the injunction. The motion was sustained, on the ground that the petition did not state facts sufficient to warrant the granting of a temporary injunction. The plaintiff excepted, and brings the case here.
The general rule is, that where the injury complained of is in its nature a continuing one, if the defendant persists in inflicting the injury, and an action for damages would be wholly inadequate for the protection of the plaintiff’s rights, equity will interfere and afford relief by injunction. “The jurisdiction rests on the firm and satisfactory ground of its necessity to avoid a ruinous multiplicity of suits, and to give adequate protection to the plaintiff’s property. (Walker v. Armstrong, 2 Kas. 198; High on Inj. 263, §§474, 475.)
As the petition alleges the insolvency of the defendant, and thereby his inability to respond in damages, additional ground for equitable interference is shown. Upon the face of the petition, therefore, there can be no doubt of the power of a court of equity to interpose in behalf of the plaintiff) provided the court has jurisdiction of the subject-matter. No brief or argument has been presented us by the defendant, and we are in the dark for the specific reason of the dissolution of the preliminary injunction. Counsel for plaintiff assert the district judge held that the state courts did not have jurisdiction. If such was the ruling, we think it was erroneous. The land upon which plaintiff claims the right to feed his flocks is a portion of the lands heretofore owned by the Kansas tribe of Indians, and which were ceded to the United States in trust by the treaty of November 17th, 1860. Under the provisions of the acts of congress of May 8th, 1872, and July 5th, 1876, (17 U. S. Stat. at Large, p. 85,) and first session laws of 44th congress, 1875-6, p. 75, these lands were open to occupation, settlement and purchase, the bona fide settlers, duly reported by the commissioners appointed to make the appraisement, having the precedence of purchase. The allegations in the petition show that the plaintiff claims a license and permission from George Webster; that the latter has duly entered the land under the said treaty and acts of congress; that he has occupied and improved it; that it has been appraised in his name, and the right to purchase duly awarded to him. Clearly, George Webster has the right of possession to the land and the right to the protection of such possession by the law of the land. There is no showing in the record that the defendant is contesting in the local land office or elsewhere the claim of George Webster, or that such defendant has made any application to enter or purchase the land, or that there is any dispute about title. On the other hand, the broad statement is made that the defendant unlawfully and forcibly entered upon the land and with deadly weapons prevents George Webster from going upon the land and from driving plaintiff’s sheep thereon. In brief, the defendant is a naked trespasser. Under this showing, defendant has no claim, and makes no claim to either title or possession. As(there is nothing within the treaty with the Kansas Indians, or the acts of congress, which forbids the courts of the state from protecting parties in possession of these trust lands under the provisions of congress, or withdraws these lands from the jurisdiction of the state courts, our courts have the power by injunction and other orders to protect bona fide settlers in their possession of them, so far as such possession is authorized and recognized by the acts' of congress. If persons have even a mere license from the government to go upon public lands, their right is paramount to that of a mere trespasser, and such right is entitled to be upheld. George Webster has not only the license of the government to enter upon the land, but he has its permission to occupy and improve it, and the further right to become the owner in fee simple, upon the payment of certain sums of money. The lawful possession of George Webster gave to the plaintiff, under the arrangement pleaded, the right to graze his flocks on the land, and defendant had no authority to interfere.
The preliminary injunction was rightfully granted, and its dissolution, an error.
The order of the district court will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
C. H. & L. J. McCormick commenced an action against W. W. Marbourg and James H. Lea, late partners as Marbourg & Lea, alleging that on April 14, 1874, the plaintiffs made, constituted and appointed said Marbourg and Lea their agents to sell and dispose of for cash, or notes payable to the order of the said plaintiffs, upon only good and responsible parties, McCormick reapers and mowers, on commission, as per written contract therefor, a copy of which was attached to and made a part of the pleading; that “ between the 14th day of April and July, 1874, the said Marbourg & Lea did sell and dispose of a certain mower known as the ‘Advance,’ of the value of $195, of the said goods and merchandise, for the sum of $180, otherwise than for cash or notes upon only good and responsible parties at short date, but did sell and dispose of the same for an insufficient promissory note for said sum of $180, etc., purporting to be signed by one Patrick Flynn, which note, it is alleged, plaintiffs, in consequence of representations made by defendants, etc., received in payment of said sum of ‡180,” and which “note, when executed, was, and ever since has been, and now is, worthless, and of no value to said plaintiffs, the purported maker thereof having never had any legal existence, which facts were well known to the defendants at the time,” etc. To this petition, on the 5th day of November, 1878, the defendant Marbourg filed an answer containing, first, a general denial; also, alleging that defendants sold a machine to Patrick Flynn, and setting up a copy of the note taken therefor, and that said note was delivered to plaintiffs’ agent December 7, 1874, in full settlement, etc.; that plaintiffs, through their agents, retained said note for over three years, and made no effort to collect the same; also, pleading the statute of limitations. To this answer plaintiffs filed a reply, containing a general denial, and specially denying that plaintiffs had received the note in satisfaction of any claim against the defendants; also, denying the execution of said note; and in the fourth count or paragraph of said reply alleging, “that this action is brought to recover damages sustained by plaintiff's upon a written contract, and not for the price of said machine so sold upon rescinding said contract or settlementand then alleging that they “did not discover the fraud, etc., until within two years prior to the commencement of this action, to wit, in the spring of 1877.” The execution of the note was denied under oath. After the issue had been thus made up, the defendant Marbourg filed a motion for judgment on the pleadings, which motion was overruled. Trial was then had, which resulted in a judgment in favor of the plaintiffs; and from such judgment Marbourg brings error.
Four principal grounds of error are presented:
1. It is alleged that the court erred in overruling'the motion for judgment on the pleadings. In this we think the criticisms of the learned counsel for plaintiff in error technical rather than sound. The action was commenced before a justice of the peace, and the plaintiffs’ first pleading was a bill of particulars, and not a petition. We think, from the plaintiffs’ pleadings, it sufficiently appears that defendant-was employed to sell certain machines of the plaintiffs under a contract by which the former was to sell only for cash or the notes of responsible parties; that defendant did sell a machine otherwise than for cash or good notes, and received and turned over to plaintiffs as the payment received by him, what purported to be the note of one Patrick Flynn; that he represented that said note was genuine and the maker responsible; that such representations were false and fraudulent, the note fictitious, and the pretended maker irresponsible ; that, relying upon such representations, the, plaintiffs accepted the note for the machine, and did not discover the fraud until within two years prior to the commencement of suit, and that they had consequently been damaged to the extent of the value of the machine.
It may be that the pleader was in doubt whether to count upon the simple breach of the contract in selling contrary to its terms, or in an action of deceit for passing off upon the plaintiffs, by false and fraudulent representations, a worthless piece of paper as a note of value, and so has stated all the facts in the history of the case. It certainly seems to us he has stated enough, and if he has stated more than enough it-is not matter to the prejudice of defendant.
2. It is objected that the action was barred by the statute of limitations. A sufficient reply to this objection is, that nowhere in the record, as it comes to this court, is it shown when the action was commenced. The date when certain pleadings were filed appears, but the first pleading preserved is an amended bill of particulars, and how many pleadings preceded that, and when filed,, we can only conjecture. It would seem probable from the allegations in the reply, as well as from a portion of the testimony, that the suit was not commenced until the spring of 1877; but such probability will not warrant us in disturbing a judgment rendered upon a knowledge of the exact facts.
3. It is insisted that there was error in the admission of testimony. It appears from the testimony of plaintiffs’ agents that defendant represented that Patrick Flynn lived in the southern part of Brown county, near Kennekuk; that that was his post-office address; that he was a good farmer, and had made him a nice property statement. Besides the testimony of parties living in or near Kennekuk as to their knowledge of any person of such name, plaintiffs offered the testimony of the register of deeds of Brown county to the effect that he had examined the indices of the records of his office without finding any such name, and of the county clerk that no such name appeared on the assessment rolls. Similar testimony was also offered from the county officers of Atchison and Doniphan, two adjoining counties. Of this testimony defendant complains, but we think it was competent. It was testimony tending to show that no one answering to the description and name given did in fact live in the vicinity of Kennekuk. Proof of a negative is often difficult, and consists of a variety of circumstances, and the silence of the county records is a circumstance tending to show that no well-to-do farmer of that name was living in the county. Of course such silence is not conclusive, but it is a significant fact, and worthy of the consideration of the jury.
4. A final error is alleged in the instructions. The court charged that “the time when the statute of limitations would commence to run would not be when mere suspicions were aroused, as that could not be in itself regarded as a discovery, but as a circumstance leading to further investigation. So that in this case, if you find from the evidence as adduced any fraud on the part of defendant, the discovery of such fraud would be when the plaintiffs had knowledge thereof, and not when they had mere suspicions only.” The testimony upon which such instruction was founded was that of plaintiffs’ agent, that when he made settlement with defendant and received the note his suspicions were aroused by noticing that it was all in the handwriting of the defendant, the maker not signing but making his mark; that thereupon he inquired of defendant concerning the maker, and received in reply the statements and representations heretofore noticed; that these suspicions were afterward strengthened by the return of a letter uncalled for, which he had directed to Patrick Flynn, at ICennekuk. Now in view of these facts, we think the instruction correct. “Discovery of the fraud” is the language of the statute. That implies knowledge, and is not satisfied by mere suspicion of wrong. The suspicion may be such as to call for further investigation, but is not of itself a discovery. A party, even though his suspicions have been aroused, may well be lulled into confidence, and take no action by such representations as were made. And it would be strange if a party who had disarmed suspicions by his representations could thereafter plead those suspicions as ground for immediate inquiry and action. This is not a case where a party is chargeable with notice of existing equities or the rights of third parties, but involves simply the question of liability between the immediate parties.
Other matters are noticed in counsel’s brief, but we deem these the most important; and upon the' whole case we think the judgment was right, and must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This is an action in the nature of ejectment, brought by the defendant in error against the plaintiffs in error, to recover possession of a tract of land which she claims by virtue of an allotment to her under the Pottawatomie treaty of 1861. (12 Stat. at Large, p. 1191.) The plaintiffs claim under the patentee, Anthony F. Navarre, who, as head of the family of which defendant in error was a member, received the patent for the land in controversy as provided by section 6 of the treaty of 1867. (15 Stat. at Large, p. 536.) The case was tried by the court without a jury, and the findings of law and fact are embodied in the record. The certificate of allotment for the land in question, issued to the defendant in error, and the patent to Anthony F. Navarre as head of the family, are both recited in full in the findings of fact. The conclusions of law were as follows:
“1. That the said treaty of November 15, 1861, and the action had thereunder, including the issuance of the said certificate by the commissioner of Indian affairs, operated as, and constituted a grant of the land in controversy to said Susan Let-ranch (now Susan Maynes, plaintiff); to which conclusion of law the said defendants then and there excepted.
“2. That the said treaty of February, 1867, did not authorize the issuance of the patent to said Anthony F. Navarre; to which conclusion of law the said defendants then and there excepted.
“3. That said patent, so issued .on the 16th day of May, 1870, to said Anthony F. Navarre, is null and void; to which conclusion of law the said defendants then and there excepted.
“4. That the said plaintiff at the time of the commencement of this action, was and now is the owner of said land and premises in her petition described, and entitled to the immediate and exclusive possession thereof; to which conclusion of law the defendants then and there excepted.”
The defendants, being in possession and holding under a patent from the United States, were entitled to judgment unless a better title in the plaintiff was shown; and that better title of necessity implied, not simply an irregularity in the issue of the patent, for that would be a matter between the government and the patentee, but a want of title in the government, or at least of a right to convey at the time it issued the patent. In other words, it implied the invalidity of the patent because of a prior vesting of either the legal or equitable title in the plaintiff. To determine this question, it becomes necessary to examine the treaties between the government and the Pottawatomie Indians of 1846, 1861, and 1867. By them must be determined the extent of the interest vested in the allottee and the power by treaty betweén the Indians and the government, to thereafter locate the legal title to the tract covered by the allotment. We quote the various sections which are claimed by counsel to affect this question, premising the quotations by saying that certain rules of construction seem to have become settled concerning Indian treaties and titles, and that the language of the various sections must be construed in the light of these established rules. The treaty of 1846 (9 U. S. Stat., p. 853) provided for concentrating the various bands of the Pottawatomie Indians into one nation, to be known as the Pottawatomie nation, their cession of all lands owned or claimed by them, in consideration of $850,000, to be used or invested, as further specified in the treaty. Section 4 then reads: “'The United States agree to grant to the said united tribes of Indians, possession and title to a tract or parcel of land containing . . . and to guarantee the full and complete possession of the same to the Pottawatomie nation, parties to this treaty, as their land and home forever; for which they are to pay the United States the sum of $87,000, to be deducted from the gross sum promised to them in the third article of this treaty.” No other provisions of this treaty seem to throw any light on the question. The treaty of 1861, proclaimed April 19, 1862, (12 U. S. Stat., p. 1191,) is the next in order, and contains these sections:
“Article 1. The Pottawatomie tribe of Indians, believing that it will contribute to the civilization of their people to dispose of a portion of their present reservation in Kansas, consisting of five hundred and seventy-six thousand acres, which was acquired by them for the sum of $87,000, by the 4th article of the treaty between the United States and the said Pottawatomies, proclaimed by the President of the United States on the 23d day of July, 1846, and to allot lands in severalty to those of said tribe who have adopted the customs of the whites and desire to have separate tracts assigned to them, and to assign a portion of said reserve to those of the tribe who prefer to hold their lands in common; it is therefore agreed by the parties hereto that the commissioner, of Indian affairs shall cause the whole of said reservation to be surveyed in the same manner as the public lands are surveyed, the expense whereof shall be paid out of the sales of lands hereinafter provided for, and the quantity of land hereinafter provided to be set apart to those of the tribe who desire to take th'eir lands in severalty, and the quantity hereinafter provided to be set apart for the rest of the tribe in common; and the remainder of the land, after especial reservations hereinafter provided for shall have been made, to be sold for the benefit of said tribe.
“Art. 2. It shall be the duty of the agent of the United States for said tribe to take an accurate census of all members of the tribe, and to classify them in separate lists, showing the names, ages and numbers of those desiring land in severalty, and of those desiring lands in common, designating chiefs and head-men respectively,' each adult choosing for himself or herself, and each head of a family for the minor children of such family, and the agent for orphans and persons of an unsound mind. And thereupon there shall be assigned, under the direction of the commissioner of Indian affairs, to each chief at the signing of the treaty, one section; to each head-man, one half-section; to each other head of a family, one quarter-section; and to each other person, eighty acres of land; to include in every case, as far as practicable, to each family,-their improvements and a reasonable portion of timber, to be selected according to the legal subdivision of survey. When such assignment shall have been completed, certificates shall be issued by the commissioner of Indian affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned respectively, and that said tracts are set apart for the perpetual and exclusive usé and benefit of such assignees and their heirs. Until otherwise provided by law, such tracts shall be ex empt from levy, taxation, or sale, and shall be alienable in fee, or leased, or otherwise disposed of only to the United States, or to persons then being members of the Pottawatomie tribe, and of Indian blood, with the permission of the president, and under such regulations as the secretary of the interior shall provide, except as may be hereinafter provided. And on receipt of such certificates, the person to whom they are issued shall be deemed to have relinquished all right to any portion of the lands assigned to others in severalty, or to a portion of the tribe in common, and to the proceeds of sale of the same whensoever made.
“Art. 3. At any time hereafter, when the president of the United States shall have become satisfied that any adults, being males and heads of families, who may be allottees under the provisions of the foregoing article, are sufficiently intelligent and 'prudent to .control their affairs and interests, he may, at the request of such persons, cause their lands severally held by them, to be conveyed to them by patent in fee simple with power of alienation; and may, at the same time, cause to be paid to them in cash or in the bonds of the United States, their proportion of the cash value of the credits of the tribe, principal and interest then held in trust by the United States, and also, as the same may be received, their proportion of the proceeds of the sale of lands under the provisions of this treaty; and on such patents being issued and such payments ordered to be made by the president, such competent persons shall cease to be members of said tribe, and shall become citizens of the United States; and thereafter the lands so patented to them shall be'subject to levy, taxation and sale, in like manner with the property of other citizens: Provided, That before making any such application to the president they shall appear in open court in the district court of the United States for the district of Kansas, and make the same proof and take the same oath of allegiance as is provided by law for the naturalization of aliens, and shall also make proof to the satisfaction of said court that they are sufficiently intelligent and prudent to control their affairs and interests, that they have adopted the habits of civilized life, and have been able to support, for at least five years, themselves and families.
“Art. 4. To those members of said tribe who desire to hold their lands in common there shall be set apart an undivided quantity sufficient to allow one section to each chief, one half-section to each head-man, and one hundred and sixty acres to each other head of a family, and eighty acres of land to each other person; and said land-shall be held by that.portion of the tribe for whom -it is set apart, by the same tenure as the whole reserve has been held by all of said tribe under the treaty of 1846. And upon such land being assigned in common, the persons to whom it is assigned shall be held to have relinquished all'title to the lands assigned in severalty, and in the proceeds of sales thereof whenever made.’. ■
The treaty of 1867, proclaimed August 7, 1868, (15 U. S. Stat., p. 531,) provides for securing a home for the Pottawatomies in the Indian country, and the removal thither' of such as desire to be removed. The 1st, 2d and 3d sections relate to the selection, payment, etc., of the new reservation. The 4th, 6th and 8th sections, so far as they bear upon the question, are as follows: • , '
“Sec. 4. A register shall be made under the direction of the agent and the .business committee of the tribe within two years, after the ratification of this treaty, which shall show the names of all members of the tribe'who declare their desire to remove to the new reservation, and of all who desire to remain and become citizens of the United'States; and after the filing of such register in the office of the commissioner of Indian affairs, all existing restrictions shall be removed from the sale and alienation of lands by adults who shall have declared their intention to remove to the new reservation; but provided that no person shall be allowed to receive to his own use the avails of the sale of his land, unless he shall have received the certificate of the agent and business committee that he is fully competent to manage h(is own affairs; nor shall any person also be allowed to'sell and receive the proceeds of the sale of the lands belonging to his family, unless the certificate of the agent and business'committee shall declare him competent to take the charge of their property; but such persons may negotiate for the sales of their property, and that of their families; and any contracts for sales so made, if certified by the agent and business'cotnmittee to be at reasonable rates, shall be confirmed by the secretary of the interior, and patents shall issue to the purchaser upon full payment, and all payments for such land shall be made to the agent,” etc.
“Sec. 6. The provisions of article 3 of the treaty of April 19th, 1862, relative to Pottawatomies who desire to become ■citizens, shall continue in force, with the additional provision that before patents shall issue and full payments be made to such persons, a certificate shall be necessary from the agent and business committee that the applicant is competent to manage his own affairs; and when computation is made to ascertain the amount of the funds to the tribe to which such applicants are entitled, the amounts invested in the new reser-' vation provided for in the treaty shall not be taken into account. When any member of the tribe shall become a citizen, under the provisions of said treaty of 1862, the families of said parties shall also'be considered as citizens, and the head of the family shall be entitled to patents and the proportional share of funds belonging to his family; and women who are also heads of families, and single women of adult age, may become citizens in the same manner as males.”
“Sec. 8 [as amended]. Where allottees under the treaty of 1861 shall have died, or shall hereafter decease, such allottees shall be regarded, for the purpose of a careful and just settlement of their estates, as citizens of the United-States and of the state of Kansas; and it shall be competent for the proper courts to take charge of the settlement of their estates, under all the forms and in accordance with the laws of the state, as in the case of other citizens deceased. And in cases where there are children of allottees left orphans, guardians for such orphans may be appointed by the probate court of the county in which such orphans may reside; and such guardians shall give bonds, to be approved by the said court, for the proper care of the person and estate of such-orphans, as provided by law.”
The starting-point is, of course, the treaty of 1846. By that the first cession of this land was made to the Pottawatomies, and it is claimed that by it something more than the ordinary Indian title was granted to the nation. Stress is laid-upon the words “possession and title,” and the use of the latter, it is said, implies something more than the mere right of occupancy, for that would pass under the former word. It may be that those words in the language of a grant to a cor-; poration or citizen would imply the grant of the title of the grantor. A contract between individuals to convey title might mean full title. But these words in the treaty must be construed in the light of the recognized relations between the government and the Indians, and the established policy of the former toward the latter. Title does not necessarily mean title in fee simple; it may mean any kind of title, even the mere title by occupancy. The Indian title has been constantly recognized as simply this inferior title. The government has uniformly asserted its holding of the fee, and has recognized the Indian right as only one of possession. The supreme court reports are full of this doctrine.
In Doe v. Wilson, 23 How. 463, the court uses this language: “The United States held the ultimate title, charged with the right of undisturbed occupancy and perpetual possession in the Indian nation, with the exclusive power in the government of acquiring that right.” See also Johnson v. McIntosh, 8 Wheat. 603.
As recently as 1877, the supreme court, in the case of Beecher v. Wetherby, (95 U. S., 525,) has reasserted the doctrine that the Indian right to land is a mere possessory one, and yet the land in question was described as “owned and occupied by the Menominee Indians,” and it was “set apart”' for their future homes. So in the case of the United States v. Cook, (19 Wall., 591,) the chief justice, delivering the opinion of the court, said:
“The right of the Indians in the land from which the logs were taken, was that of occupancy alone. They had no-power of alienation, except to the United States. The fee was in the United States, subject only to this right of occupancy. This is the title by which other Indians hold their lands. The right of the Indians to their occupancy is as sacred as that of the United States to their fee; but it is only a' right of occupancy.”
Take the Osage reservation, which was set apart for that, tribe by most solemn words of perpetual ownership. The supreme court said, in Leavenworth, Lawrence & Galveston R. R. Co. v. United States, (92 U. S., 733,) “That in the free exercise of their choice they might hold it forever,” but they could only hold it. The fee was in the United States, subject to the right of the Indians.
Now, that the government had power to depart from this traditionary policy and vest the fee as well as the right of occupancy in the Indians, is unquestioned, but if a departure had been intended, words more apt and clear would undoubtedly have been used. There is nothing in the balance of the treaty to distinguish it from ordinary Indian treaties. The tribal existence was fully recognized. No provision was in it for changing the relations of the tribe to the government, or for naturalizing the individual Indian. There is no restriction on the power of alienation, and no reservation to the government of the sole or prior right of purchase. So that if the fee passed, the tribe could the next day have conveyed full title to an individual, or to any other purchaser, even a foreign nation. More than that, the further language of the section indicates the extent of the intended grant. It is “to guarantee the full and complete possession ... as their land and home forever.” But if the fee was granted, the courts would always protect the title. Possession was guaranteed to the Indians, and not to them and their grantee. In short, there is nothing in or about the treaty to indicate that any other right or title was granted than that “ by which other Indians hold their land,” and that is the right or title of occupancy.
With this understanding, then, of the import of this treaty, we pass on to consider the subsequent treaties. Chronologically, the treaty of 1861 next demands attention. This treaty is a departure. It was a movement toward the disintegration of the tribe and the absorption of the individual Indians into the body of American citizens. No universal or abrupt change was contemplated, and such limitations and checks were placed as it was thought would sufficiently protect these wards of the nation from the schemes of the designing. In carrying out this obvious purpose, three steps were prescribed: the division of property, the conveyance of title, and the naturalization of the person. When these were accomplished, the individual passed out from tribal control, and became an American citizen with separate and absolute property. Yet by the terms of the treaty (article 3), all this was possible only for the adult male heads of families. All others, ex necessitate,, remained- within the tribe, bound by its laws and concluded by its treaties, notwithstanding a certain holding of lands in severalty was possible for any and all. The treaty provided for a survey of all the lands and a census of the entire tribe, and then that certain quantities of land be assigned in severalty to those who desired thus to hold, and in-common to the remainder. Now what was intended by this division — that the title be thus divided up, or the mere matter of occupancy? Of course either was within the power of the contracting parties. . They might provide for a division among the several Indians which should vest an absolute title in each, beyond the power of the tribe or the government to disturb without the personal consent of the individual-; or they might provide for an individualizing of the right of occupancy, giving to each person a sole right of occupancy-in a particular tract, a right guaranteed against invasion by any individual, but still within the power of the tribe as a tribe to convey by treaty. ■ In other words, while that remained the- tribal home each -individual desiring it -should have separate control of certain lands, yet subject to the ultimate power of the tribe to change their home and to make absolute conveyance of the whole body of lands. The power of the tribe, as a tribe, remained undisturbed over both the allotted lands and those held in common. That this was the intent and effect-of the treaty, we are constrained to hold, .and this notwithstanding many expressions which, if- used in ordinary contracts between individuals, would have marked significance to the contrary.
The allottee remained a member of the tribe. We.are not advised by anything in the record as to the extent of the power of the tribe .over -the individual, but whatever that power was, it remained in full vigor over-the allottee.. ■ There was no separation of the allottee.from’.the nation, and no express restriction upon the power of the tribal authorities to: act for him -as fully as for any other members of the tribe. And that which thereafter the tribal authorities assumed to do for him, may well be assumed, in the absence of proof of limitations upon their power, to be within the scope of that power as recognized by the laws and customs of the nation. It must be remembered that, in a large sense, an Indian tribe is to be considered as a foreign nation, and its laws and customs matter of proof, and not to be judicially taken notice of. The powers of the supreme authority differ in different nations, and an act of such supreme authority of a foreign nation should not be presumed to be .beyond its powers simply because such an act would be beyond the powers of the supreme authority of our own nation. The full force of this argument will hecome more apparent when we consider the subsequent treaty of 1867. At present it is enough to notice that the allottee remained a member of the tribe, and if the intention had been to enlarge his title from the ordinary Indian title, one of occupancy, to that of a fee-simple, the intention would, it seems, have been expressed in unmistakable terms. If, on the other hand, a difference was to be made in the mere manner in which the various Indians occupied the tribal home, it was enough that that difference was made clear, and language used to indicate that should not be carried to some further meaning.
If it be said that the allotted tracts were set apart for the perpetual and exclusive use and benefit of the several allot-tees, and that each allottee relinquished all interest in other allotments as well as in the lands held in common, we reply that these words are no stronger than those which have frequently been used to vest title in an Indian tribe, no stronger than those used in the treaty of 1846 with this same tribe, which we have heretofore noticed. So far as the exclusive benefit is concerned, it was the proffer of an inducement to the allottee to improve his land, in the hope that this incentive would tend toward habits of industry, and consequently civilization. To perfect the guarantee of exclusive benefit, exclusive possession while tribal occupancy remained and receipt of full proceeds of the sale of the separate tract when it was sold, were sufficient. To them no title need be added, or at least none greater than the ordinary. Indian title of exclusive occupancy.
Again, the treaty provided in the 3d article for the conveyance of title. This was made only to those who left the tribe and became citizens. Upon their naturalization, a title in fee simple, with power of alienation, was conveyed; and at the same time their proportion of the personal property of the tribe was transferred. At this time appears the complete separation and individualization. Prior thereto their interest in the lands and personalty was tribal; thenceforward personal. The fact that this provision here appears, tends to support the claim that before this nothing was intended, save a separate occupancy, with the benefit of all improvements personally made. We might notice other matters in the treaty tending in the same direction, but the foregoing are sufficient. This same question has recently been before Judge Foster of the United States Court, and his opinion, concurred in by Judge Dillon, very clearly and forcibly expresses the same conclusion. We quote his language:
“It has been uniformly held by the supreme court that the Indian title was but a right of occupancy, the fee remaining in the United States. (United States v. Cook, 19 Wall. 592; Johnson v. McIntosh, 8 Wheat. 574; Worcester v. Georgia, 6 Pet. 580; Cherokee Nation v. Georgia, 5 Pet. 48; Fletcher v. Peck, 6 Cranch, 142; 1 Kent’s Com. 259.) And unless there is a clear and explicit provision in the treaty, showing that thé government intended to make a grant in fee simple, the court will not presume a new departure has been made, or that a different policy from that pursued in the past was intended. Now there is but little in this treaty to justify the court in finding a grant made, or intended to be made, to the allottees. It was undoubtedly the desire of the government to induce the Indians to adopt the modes and habits of civilized life whenever it could be accomplished, and as a step in that direction the plan of allotment in severalty to those of the tribe who had adopted the customs of the whites, and were willing to abandon all claims to the common lands and funds, was adopted. It was optional with the adult Indian to have his land in common with the tribe, or to have it allotted to him in severalty; the head of the family choosing for the minor children, and the agent for orphans and those of unsound mind.
“ It further provides that certificates shall issue' to the allottees for the tracts assigned in severalty, specifying the individuals to whom they had been assigned respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of said assignees and their heirs. The allotted lands were exempt from taxation and sale, and were not alienable by the allottee. That the contracting parties to this treaty did not regard the fee as becoming vested in the allottee by virtue of article 2, and the certificate issued in pursuance thereof, is demonstrated by the next article, for it is therein provided how the adult allottee may obtain that title. It provides in substance that when he should make it appear to the United States district court that he had adopted the habits of civilized life, and that he was sufficiently intelligent and prudent to control his own affairs, and take the oath of allegiance, etc., he could then apply to the president of the United States for a patent, and the president on being satisfied that he was competent to control his own affairs might cause the lands'to be conveyed to him by patent in fee simple with power of alienation; and when the patent was made and the fund distributed the patentee became a citizen of the United States and ceased to be a member of the tribe, and the lands were subject to taxation, sale, etc. That the contracting parties anticipated that these allotments would ultimately ripen into perfect titles through the proceedings specified in article 3, is altogether probable. But that event might or might not happen.”
Passing now to the treaty of 1867, we find that it is between the same contracting parties as that of 1861. Where contracts are entered into between parties, the construction put by the parties themselves in the latter contract upon the provisions of the earlier, is strong evidence of their real scope and effect. Without doubt, as we have seen, there is obscurity in the treaty of 1861. Now within six years the same parties enter into a further treaty concerning the same subject-matter. In so far as in this they put any interpretation upon the provisions of that, it is entitled to great weight. Indeed, except so far as adverse and vested rights are concerned, it might fairly be said to be controlling.
And first it may be noticed that the treaty is with the ti’ibe as a tribe, and concerning the allotted lands as well as those held in common. Notwithstanding the treaty of 1861 had specified that the several allottees should be “deemed to have relinquished all right to any portion of the lands assigned to others in severalty or to a portion of the tribe in common,” yet the dealings in 1867 are not separately with each allottee for his tract and with those holding in common for their body of land, but with the tribe as a whole and for all the lands. The very manner of thus dealing shows that the parties thereto did not understand that the treaty of 1861 placed the allotted lands any more than the allottees themselves outside the limits of tribal control. If the legal title, or even a full equitable title, was vested by the allotment in the allottee, then, by our laws at least, no divesting of that title save by the personal assent of the allottee was possible; and any contract therefor would have to be made with each allottee personally. Now without noticing all the various provisions indicating an assumed tribal control, it is enough to refer to article 7, which authorizes in certain cases, and after the lapse of five years, a peremptory sale and removal to the new reservation. It is true, there is a provision for securing to each allottee the benefits of the sale of his allotment. But this is simply carrying out the intent foreshadowed in the treaty of 1861, and heretofore noticed in this opinion, of encouraging each Indian to the improvement of his separate tract by the assurance that the full benefit of his labor and those improvements should inure to himself. Again, article 6 specifically provides that the “ head of the family shall be entitled to patents and the proportional share of funds belonging to his family.” This is an express provision, and the clearest assertion of the understanding of the parties of the scope and import of their contract in 1861. It is also an assertion of tribal power which, as already suggested, must be assumed to be within such power'as recognized by established laws and customs of the tribe. Counsel would have us interpret these words as meaning simply that the head of the family should be entitled to the custody of the patents issued to the allottee members of his family. But this does violence to the language. The mere custody of the evidence of title would scarcely be dignified with a separate provision in the treaty, and if that were in fact intended, words more apt would assuredly have been used. Clearly the money and the lands which, under the division, would be or had been assigned to the minor members of his family, were to go directly to him. As head of the family he represented it, and to him the treaty intended should it pass whatever was the family share of the tribal property.
In further support of these views, it may be noticed that the action of the ministerial officers of the government has been in the line of this construction of the treaty, and that so far as appears without objection from the tribe. Again, in 1869, an attempt was made by congress to withhold from the head of the family the.minors’ share of the tribal funds. (16 Stat. at Large, p. 29.) But this act was repealed in 1870, (16 Stat. at Large, p. 370,) as in conflict with the prior treaties. In other words, when the attention of congress was called to the matter, it recognized the fact that by treaty the head of the family was entitled to such funds. If entitled to the funds, why not also to the lands?
Our conclusion then is, that the treaty of 1867 authorized a patent in fee simple to the head of the family of lands prior thereto allotted to the members of his family, and that such provision was not invalidated by any prior treaties or in derogation of any vested rights.
The judgment of the district court will therefore be reversed, and the case remanded with instructions to render judgment on the findings in favor of plaintiffs in error, defendants below.
It is understood that the same question controls the case of Taylor v. Wilbers; and the judgment in that case 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 C. B. Myton against James Thurlow on a promissory note. The note was given by Thurlow to Myton on the purchase and sale of a horse. It was dated August 2, 1876, due October 1, 1876, for $100, and drawing 12 per cent, per annum interest. Thurlow claims that the sale was fraudulent; that Myton sold him an unsound and worthless horse, representing and warranting it to be a good, sound and valuable one; and therefore that said promissory note was given without sufficient consideration, and therefore that he is not bound to pay the same. Upon this question of fraud the evidence was very conflicting, and pretty evenly balanced, but the jury found in favor of the defendant, which was probably right. The plaintiff not only denied said claim of fraud, but set up in reply thereto, that the defendant, after becoming acquainted with all the facts, freely and voluntarily ratified and confirmed the entire transaction, including said sale and note, by giving to the plaintiff additional security on the note, and accepting in consideration thereof a credit on the note of $30. That the defendant did give said additional security and did accept said credit, are admitted facts in the case; but the defendant says that he did these things from misapprehension and fear, caused by the fraud, threats and duress of the plaintiff and one E,. B. Shadduck. The evidence was very conflicting on this question also — defendant testifying on one side, and the plaintiff and Shadduck on the other. The defendant’s testimony upon the subject is as follows:
“Shadduck and Myton came to my place about nine o’clock at night; I was asleep in my barn. They called me down, Myton said he had heard the horse was dead, and that if I did not fix the matter up that he was going to arrest me for mortgaging property that was not my own; that if I would give him an additional chattel mortgage on a field of corn, that he would credit the note with $30, leaving me only $70 to pay. I was about half asleep; I did not know what kind of trouble Myton could put me to by arresting or trying to arrest me, and to save trouble and keep from being arrested, I gave the chattel mortgage on the field of corn, and he said he would credit the note with $30. The horses I mortgaged were in litigation at the time I mortgaged them. I claimed them, and thought they were rightfully mine. I signed the mortgage I gave on the horses previously without reading it, and Myton did not read it to me. It was some weeks after the horse died that Myton and Shudduck came to my house at night, and called me out from where I was sleeping in the barn.
Gross-examined by plaintiff’s counsel. — “I made the additional mortgage to Myton and accepted the credit of $30, as the best arrangement I could make from a business standpoint, because I did not know what trouble Myton could put me to.”
The plaintiff’s and Shadduck’s testimony was substantially that the defendant gave said additional security freely and voluntarily, on account of a partial failure of the previous security and on account of said credit of $30; and that said credit was given because of said additional security, and because the horse for which the note had been given had died. On this question the jury found in’favor of the defendant— that is, they found a general verdict in favor of the defendant, and against the plaintiff; and also, in answer to the following question, they made the following answer, to wit: “Was there a settlement between Myton and Thurlow of their differences concerning the horse, after the death of the horse, in consideration that Myton-was to deduct $30 from the note?” Answer: “No.”
It is possible that this verdict would be allowed to stand, if it did not appear that the jury were probably misled by the charge of the court. The court charged the jury, among other things, that: “If a single word be dropped by the vendor which does mislead the purchaser, the principle ‘that a vendor is not bound to disclose defects when the chattel sold is equally open to inspection by the purchaser’ will not be allowed to operate;” and “if the jury believe that there was fraud in the original sale, and the note sued on was obtained by fraud on the part of the plaintiff, then fraud renders the contract void, and not voidable merely, and the contract cannot be confirmed without a new consideration.”
The above instructions we think are hardly correct. The first one is’ a little too strong. It leaves out of consideration the motives of the vendor; his good faith, or bad faith. It also leaves out of consideration the question, whether the misleading word was the expression of an opinion merely, or the statement of a fact; and also, whether it had reference to the past, or to the present, or the future. Certainly if it was merely the bona fide expression of an opinion, as to something to take place in the future, the vendor should not be held responsible for it, although the vendee might have been misled by it. Suppose that the horse had injured his leg in the presence of the vendor and vendee, and the vendor had then expressed his honest opinion that the leg would be well within ten days; and the vendee had relied upon that expression of opinion, and had purchased the horse, and the leg had not got well in ten days, but from some unknown cause, had mortified, and the horse had died, would the vendor be held responsible for thus misleading the vendee? We would think not. (2 Pars, on Cont., 6 ed., p.778.) But this instruction is not so erroneous for this case as the second one above quoted. The jury found that the plaintiff committed a fraud in the sale of the horse, and probably he did; though the question was hardly submitted fairly to the jury. But assuming that he committed a fraud in the sale of the horse, then was the entire contract absolutely void — so void that the •defendant could not ratify it or confirm it, if he had so chosen, without a new consideration passing? We think it was not void to such an extent as that. It was void only at the ■option of the innocent party. He could consider it void, if he chose to do so; or he could consider it valid, if he chose ±o do so. And if he chose to consider it valid, it would be valid, without any new consideration passing; and even against the will and the wishes of the guilty party. And after the innocent party became acquainted with all the facts, he could, by. agreement with' the other party, make the contract valid and binding upon both the parties, so that neither of them could afterward ignore it, or repudiate it, or rescind it, except with the consent of the other, (Bigelow on Fraud, p. 184, and cases there cited); or they might modify the contract as they chose, ( as the plaintiff claims they did in this case,) and the new and modified contract would be valid and binding upon both parties. The jury were led to believe in this case, that not only the same, but everything subsequently transpiring, was void; for there was no claim that any new consideration passed from the plaintiff to the-defendant. Indeed, the only consideration that ever passed from the plaintiff to the defendant was said horse that afterward died.- We do not wish to say that the verdict of the-jury is wrong. It may be right. But we cannot say that it is necessarily right. It might, perhaps, have been different,, except for said erroneous instructions. And not knowing, the effect that said erroneous instructions may' have had upon the jury, we shall have to order that the judgment of the court below be reversed, and the cause remanded for a new trial.
All the-Justices concurring.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for the death of a daughter of plaintiffs when the car in which she was riding collided with a bus operated by defendant. Judgment was for plaintiffs. Defendant appeals.
Deceased worked in Wichita. The driver of the car in which she was riding when she was killed picked her up at her place of employment about 6:30 in the evening. He drove east on Murdock street to the intersection of that street with Topeka avenue. As he approached that intersection from the west a bus, operated by defendant, approached it from the south. The bus and the car came together in such manner that the car skidded to the north and east against the north curb of Murdock avenue, turned over once or twice, and finally came to rest a number of feet east of the intersection. The daughter of plaintiffs was killed instantly. The manner in which the collision took place is the subject of this lawsuit. Plaintiffs in their petition charge defendant with several acts of negligence, among them that of approaching an intersection without keeping a lookout for other traffic which was approaching the intersection and without keeping a lookouUfor other cars which had already entered and were proceeding through the intersection. The answer, besides a' general denial, accused the driver of the car in which deceased was riding, as well as deceased, of several acts of negligence that were the proximate cause of the collision, among them being that deceased failed to warn the driver of the car of the approaching danger in time to avoid the collision, and was further guilty of negligence in failing to demand that the driver drive the car at a lawful speed and in a careful and prudent manner.
The driver of the car in which deceased was riding testified that as he approached the intersection he was traveling at the rate of about fifteen or eighteen miles an hour; that as he proceeded east he looked to the south; that as he was about in the middle of the intersection he saw the bus entering the intersection; that it was coming at a speed of about thirty-five miles an hour; that the bus came straight north and the front of the bus struck the right rear bumper of the car. He further testified that just as he saw the bus coming he stepped on the accelerator and veered his car to the left; that he was in the intersection when the bus entered; that the front end of his car was already past the east curb line of Topeka avenue. There was other testimony offered, some of which agreed with that of the driver of the car, and some of which contradicted it on the main points.
When the case was submitted to the jury a verdict in favor of plaintiffs was returned in the amount of $2,500. Special questions were submitted to the jury. This appeal turns upon the answers to some of these questions and the failure of the jury to answer certain others. These questions and answers were as follows:
“1. At what rate of speed was the bus moving as it entered the intersection? A. Undetermined miles per hour.
“2. At what rate of speed was the Riley automobile moving (a) as it entered the intersection? A. (a) Undetermined miles per hour, (b) At the time of the collision? A. (b) Undetermined miles per hour.
“3. At the time of the collision was the bus (a) stopped? A. (a) No. (b) Practically stopped? A. (b) Undetermined.
“4. Which of the vehicles entered the intersection first? A. Undetermined.
“5. What, if anything, did Riley do to attempt to avoid a collision with the bus? A. Swerved to left and increased speed.
“6. Was the manner in which the Riley automobile was driven the sole and proximate cause of the collision? A. No.
"7. Was Riley guilty of negligence which directly and proximately caused the collision? A. Yes.
“8. If you have answered the preceding question in the affirmative, state in what that negligence consisted. A. He did not see the bus in time to avoid collision.
“9. What, if any, negligence do you find against the defendant bus company? A. Bus driver did not see car in time to avoid collision.
“10. If you find for the plaintiffs, then state the amount of the contributions made by the said Agnes Clawson to the plaintiffs herein from the time she reached twenty-one years of age until the date of her death. A. Approximately $10 per month.
“11. What, if anything, do you allow plaintiff for—
(a) Funeral expenses: A. $800.
(b) Financial loss by reason of death of Agnes Clawson: A. $1,700.
“(Signed) Harry T. Morgan, Foreman.”
It will be noted that the jury answered “Undetermined” when asked what the rate of speed of the bus was at the time it entered the intersection, the rate of speed at which the car in which plaintiff was riding was traveling when it entered the intersection and at the time of the collision, also whether the bus was practically stopped at the time of the collision, and which of the vehicles entered the intersection first. Defendant asked that the jury be required to answer these questions. The trial court denied this request. The defendant filed a motion for judgment notwithstanding the general verdict, also a motion for a new trial on various grounds, among them being the refusal of the court to require the jury to answer questions 1, 2, 3b and 4. These motions were overruled. Defendant appeals.
The argument on this appeal is that defendant is entitled to a new trial on account of the failure of the jury to answer these questions. The position of plaintiffs is that the jury by its general verdict in favor of plaintiffs, and by answering question No. 6 as it did, settled all the questions in the case in favor of plaintiffs. It will be noted that the jury when asked what, if any, negligence it found against the defendant, answered, “Bus driver did not see car in time to avoid collision.” Plaintiffs argue that this in effect finds the defendant guilty of the negligence charged in the petition, that is, “Approaching an intersection without keeping a lookout for other traffic which was approaching said intersection from other directions, and particularly from the west, and without keeping a lookout for other traffic which had already entered and was proceeding through said intersection;” and that once the defendant was convicted of that act of negligence it did not matter which vehicle entered the intersection first, the rate of speed the vehicles were traveling or whether the bus was stationary at time of the collision. Authorities where this court has held that the failure of the jury to answer certain questions where the answers to other questions compelled a judgment was not grounds for a new trial are cited and relied upon.
The trouble with that argument as applied to this case is that the questions the jury refused to answer in this case are bound up with the question of whether or not'the defendant was guilty of the negligence found. Just how the jury could find that defendant did not keep a proper lookout when it could not find which vehicle entered the intersection first, or the speed of the respective vehicles, is not readily discernible to us. All these matters were based on disputed testimony.
The purpose of. special questions is discussed in a manner upon which we cannot improve in Morrow et al. v. Comm’rs of Saline Co., 21 Kan. 484, and there the court said:
“Turning now to the special questions, we find that to several the jury simply answered, ‘Don’t know.’ We have had occasion heretofore to refer to the irregularity of such answer. Answers should be direct and positive. A case is to be tried upon the evidence, and, according as an alleged fact is or is not established by that evidence, it does or does not, for the purpose of that case, exist.
“The main object of special questions is to bring out the various facts separately, in order to enable the court to apply the law correctly, and to guard against any misapplication of the law by the jury. It is matter of common knowledge that a jury, influenced by a general feeling that one side ought to recover, will bring in a verdict accordingly, when at the same time it will find a certain fact to have been proved which in law is an insuperable barrier to a recovery in accord with the general verdict. And this does not imply intentional dishonesty in the jury, or a failure on the part of the court to instinct correctly, but rather a disposition to jump at results upon a general theory of right and wrong, instead of patiently grasping, arranging, and considering details. Scarcely any jury will, when questioned as to a single separate fact, respond that it exists, without some sufficient evidence of its existence. Its response will, as a rule, be correct, if direct, and if not correct, then evasive and equivocal. And such evasive and equivocal answers always cast suspicion on the verdict. The suggestion springs almost involuntarily that the answers are thus evasive and equivocal from an unwillingness on the part of the jury to stultify themselves so far as to say that the facts were or were not proved, mingled with a fear that a direct and positive answer will avoid the effect of the general verdict they have returned. We do not mean to affirm that this is always the case, or that, in fact, such were the motives that influenced the action of this jury; for sometimes, doubtless, the jury are really uncertain as to the fact, and' at the same time their verdict should be in favor of the one party, whether the fact did or did not exist. It is therefore a right of a party to have a direct response to the questions.” (p. 503.)
Applying the reasoning of that opinion to the facts in this case, it would seem that this was a case where the jury determined to find for the plaintiffs without taking the responsibility of examining all the facts upon which that finding must of necessity be based. Indeed, outside of the evidence in the case as to the speed of the car and of the bus, and as to which one entered the intersection first, we see no evidence of a failure of the driver of the bus to keep a proper lookout. There was evidence on all these points. It was contradictory, to be sure, but it was the duty of the jury to resolve it one way or another and to answer these questions. (See Lamb v. Liberty Life Ins. Co., 132 Kan. 383, 295 Pac. 698.) The failure of the jury to answer these questions evinces a lack.of appreciation of its duty. The defendant was not accorded a fair trial of the issues in the case. Such a verdict should not be permitted to stand.
Another manifestation of this attitude on the part of the jury was the fact that it allowed an item of $800 for funeral expenses when the evidence of plaintiffs showed an expenditure for this item of only $305.30. This difference was remitted voluntarily by plaintiffs so that it is no longer a part of the judgment, but this remittitur could not obviate the fact that the finding of the larger amount by the jury is an indication of its failure to have a proper idea of its duty.
The judgment of the trial court is reversed with directions to order a new trial.
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The opinion of the court was delivered by
Allen, J.:
This was an action by real-estate brokers to recover under an oral contract for services in procuring and bringing about a sale to defendants of an interest in an oil and gas lease. The compensation claimed was $4,000 in cash and 20,000 barrels of oil out of any oil produced from the land described in the lease. Defendants’ motion to strike that part of the petition relating to the 20,000 barrels of oil was overruled. A demurrer to the petition was also overruled. From these orders and judgments defendants appeal.
The petition recites:
“3. That on or about the first day of September, 1935, the defendants orally employed plaintiffs for the purpose of inducing and bringing about the sale to defendants of a six-sixteenths interest in a certain oil and gas lease covering land in Rice county, Kansas, and described as follows, to wit:
(Description of land.)
“4. That for their services in procuring and bringing about such sale and purchase, defendants orally contracted and agreed to pay to plaintiffs the sum of four thousand dollars ($4,000) cash, and twenty thousand (20,000) barrels of oil out of any oil produced from said land hereinabove described.
“5. The plaintiffs, in performance of such agreement, brought together the Harburney Oil Company, owner of said six-sixteenth interest in said oil and gas lease, and defendants, and on or about September 14, 1935, defendants and the owner of said six-sixteenths interest in said oil and gas lease entered into a written contract for the sale and purchase of said interest, and said contract of sale and purchase was thereafter fully performed and carried out.
“6. That thereafter said oil and gas lease was fully developed, eight (8) wells having been drilled thereon, and each of said wells then produced, and are now producing, oil in large quantities, said eight (8) wells now having a potential flow in excess of fifteen thousand (15,000) barrels of oil per month.
“7. That pursuant to and in part performance of said agreement between plaintiffs and defendants, defendants paid to plaintiffs for their said services rendered to defendants, the sum of two thousand dollars ($2,000) cash, but although demand has been made upon defendants the defendants have wholly failed, neglected and refused to pay to plaintiffs the balance of two thousand dollars ($2,000) cash, and twenty thousand (20,000) barrels of oil due and owing plaintiffs under the terms and conditions of said contract of employment between plaintiffs and defendants, and there is now justly due and owing to plaintiffs from defendants the sum of two thousand dollars ($2,000) cash, and twenty thousand (20,000) barrels of oil.
“8. That twenty thousand (20,000) barrels of oil from the production of oil from said oil and gas lease hereinabove described is of the reasonable market value of twenty-six thousand dollars ($26,000).
“Wherefore, plaintiffs pray judgment against defendant in the sum of twenty-eight' thousand dollars ($28,000), with interest thereon at the rate of six (6) percent per annum from January 1, 1937, and all costs in this action accrued.”
The question presented is whether the oral agreement, so far as it relates to the twenty thousand barrels of oil, is within the statute of frauds.
Our statute, G. S. 1935, 33-106, so far as presently material, provides:
“No action shall be brought wherebj'- to charge a party . . . upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, . . .”
In 2 Williston on Contracts (Rev. ed.), section 493, it is stated:
“It is only contracts for the sale of any interest in land which are affected by the statute. Accordingly, contracts which relate to land but do not involve agreement for its sale are not within the statute.”
Not every contract that touches or concerns land is within the statute. Thus a contract to settle a disputed boundary, if the line agreed upon is not the true line, would seem necessarily to involve a contract to convey land — yet such contracts, though not in writing, are upheld. (Edwards v. Fleming, 83 Kan. 653, 663, 112 Pac. 836; Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019.)
An oral contract to partition land would seem to be unenforceable as within the statute of frauds as it involves a conveyance, or promise to convey land, but such contracts are sustained. (McCullough v. Finley, 69 Kan. 705, 77 Pac. 696; McCullough v. McCullough, 109 Kan. 497, 200 Pac. 298.)
We have held an oral agreement to give security on real estate may be enforced. (Farmers State Bank v. St. Aubyn, 120 Kan. 66, 242 Pac. 466.)
Ordinarily a building is a part of the land upon which the building is located (Docking v. Frazell, 34 Kan. 29, 7 Pac. 618), but a chattel mortgage on a hotel building has been sustained (Docking v. Frazell, 38 Kan. 420, 17 Pac. 160), and a parol contract for the sale of a dwelling house has been held to be enforceable. (Wetkopsky v. New Haven Gas Light Co., 88 Conn. 1, 90 Atl. 30, Ann. Cas. 1916D, 968.)
In the Wetkopsky case, which is a leading case on this subject, the court said:
“The plaintiff claims that the sale of a house to be immediately removed from the land on which it stands and to which it is affixed is a sale of personal property and not of an interest in real estate, and so is not within the section of the statute of frauds which prevents the maintenance of an action upon agreements for the sale of real estate unless the same shall be in writing.
“Browne, in his first edition, after reviewing the early cases relating to this section of the statute as bearing upon sales of fixtures, buildings, standing trees,' growing crops, etc., attached to the soil, drew therefrom the general rule that ‘if the contract when executed is to convey to the purchaser a mere chattel, though it may be in the interim a part of the realty, it is not affected by the statute.’ (Browne on Statute of Frauds [1st ed.], sec. 249.) Benjamin, after quoting with approval the language of Lord Blackburn (from his work on Sales), lays down the rule that ‘an agreement to transfer the property in anything attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is trans ferred to the purchaser, is an agreement for the sale of goods, an executory agreement.’ (1 Benjamin on Sales, sec. 133.) Williston says: ‘If the contract is to sell and deliver a house, even though the house is at the time affixed to the realty, it is a contract for the sale of goods, for the parties contract to buy and sell a house separated from the realty and moved from its foundations. On the other hand, if the parties attempt to make a present transfer of a building or materials fixed in a building, it is evident that they are attempting to make a sale of realty, even though it is also agreed that the subject matter of the sale shall be severed in a short time.’ (Williston on Sales, sec. 66.) The supreme judicial court of Massachusetts, speaking in a case where the contract related to growing trees, said: ‘It may be difficult in many cases to determine, from the terms of the contract, whether the parties intend to grant a present estate in the trees while growing, or only a right, either definite or unlimited as to time, to enter and cut, with title to the property when it becomes a chattel. If the former be the true construction, then it comes within the statute, and must be in writing; if the latter, then, though wholly oral, it may be enforced.’ (White v. Foster, 102 Mass. 375, 378.)" (p. 4.)
In Maguire v. Kiesel, 86 Conn. 453, 85 Atl. 689, the plaintiff and defendant entered into an oral agreement to share equally from the profits that should be made from the purchase and sale of land. The court said:
“The agreement was not within the operation of the statute.' The statute ‘contemplates only a transfer of lands, or some interest in them.’ (Bostwick v. Leach, 3 Day, 476, 484; Hall v. Solomon, 61 Conn. 476, 483, 23 Alt. 876.) The subject matter of the agreement was not land or any interest therein. It was a fund of money representing profits from a joint enterprise in the nature of a partnership. . . . This enterprise, to be sure, was one which contemplated and involved a real-estate transaction, and the fund to be divided was to be derived from that source. . . . The overwhelming weight of authority in other jurisdictions is to the same effect, that an agreement for a joint enterprise in the nature of a copartnership which has for its purpose the purchase, improvement, and sale of real estate for the profit arising therefrom to be divided among the joint undertakers as among partners, and which does not undertake to operate upon the ownership of or title to the realty, or anything annexed thereto as a part or parcel of it and transferable alone by deed, is not within the statute.” (pp. 457, 458) (See Huston v. Cox, 103 Kan. 73, 172 Pac. 992; Bird v. Wilcox, 104 Kan. 799, 180 Pac. 774; Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043.)
In Bresee v. Robinson, 236 Mich. 633, 211 N. W. 59, the court said:
“The oral arrangement between Bresee and Robinson was not that Robinson should have any interest in the land, but that he was to have only an interest in the avails of a sale — his advances, charges, and one-half the profits —that Bresee should account to him. This does not offend the statute cited. The matter has been considered so many times that we refrain from quoting from the decisions. (See Carr v. Leavitt, 54 Mich. 540 [20 N. W. 576]; Davis v. Gerber, 69 Mich. 246 [37 N. W. 281]; Petrie v. Torrent, 88 Mich. 43 [49 N. W. 1076].) See, also, Tuttle v. Bristol, 142 Mich. 148 [105 N. W. 145], where the matter is discussed fully.” (p. 636.)
If a contract for the sale of timber contemplates that the purchaser shall become the owner of the timber while still uncut, the agreement, if oral, is within the statute and unenforceable. If, however, the bargain is for ownership in the wood only after it has been cut, it is valid. (Restatement, Contracts, sec. 195, b, Illustrations 6 and 7.)
The general rule is that things attached to and forming part of the realty which are agreed to be severed therefrom before the sale or promptly after the formation of the contract are not an interest in land within the statute. Minerals, though part of the realty, may be severed, and when severed become goods. A contract to sell severed iron ore would be a contract to sell goods even though the ore which the parties expected, or even contracted, should be the subject of the sale, was not yet mined. (2 Williston on Contracts, Rev. ed., § 518.)
We have held that a contract to execute or to transfer an oil and gas lease is a contract for the sale of an interest in land and therefore within the statute. (Robinson v. Smalley, 102 Kan. 842, 171 Pac. 1155; White v. Green, 103 Kan. 405, 173 Pac. 974; Gates v. Syndicate Oil Corp., 132 Kan. 272, 295 P. 2d 649; Derby Oil Co. v. Bell, 134 Kan. 489, 7 P. 2d 39.)
But in Robinson v. Smalley, supra, it was held that an oral contract by a husband, whereby for a consideration he agreed to procure his wife to sign an oil and gas lease, was enforceable. The court said: “The contract was purely one of employment to produce a stated result, and consequently the statute of frauds has no application.”
In Dashko v. Friedman, (Tex. Civ. App.) 59 S. W. 2d 203, the facts were similar to the case at bar. The defendant Friedman wished to acquire a certain oil and gas lease. He verbally agreed with the plaintiff Dashko, a real-estate broker, that if Dashko would procure the lease, in consideration of his services “the defendant agreed, bound and obligated himself to assign and to transfer to the plaintiff, as soon as said lease was secured, an undivided 8/ie of y8 of the oil and gas produced and to be produced from said leased premises, as, if, and when produced, and in that event only, as an overriding royalty, free of cost and all expense of development and operation of said property.” (p. 203.) It was later agreed that plaintiff’s interest in the lease should be ¥ie of y8. The trial court sustained special exceptions to plaintiff’s petition on the ground that the contract was in contravention of the statute of frauds. On appeal the judgment of the trial court was reversed. The court said:
“The question presented by this appeal for determination is whether or not the subject matter of the contract, alleged in plaintiff’s petition as entered into between plaintiff and defendant, is personal property or real estate. If it was the intention of the plaintiff and defendant, as evidenced by the terms of the oral contract between them, to provide for a conveyance by the defendant to plaintiff of an interest in the mineral in place, then the contract would be within the statute of frauds. If it was their intention to stipulate for an assignment thereof, and if terms of the contract so dealt with the minerals only, after they were produced, then the contract would not be prohibited by the statute of frauds. We are of the opinion that the oral contract as alleged in plaintiff’s petition whereby it is alleged that defendant agreed to transfer and assign to plaintiff ‘%e of the oil and gas produced and saved from said land, as, if, and when produced, and in that event only,’ clearly evidences the intention of the parties to, and that they thereby did, contract with relation to the oil and after it should be produced and saved, and in that event only, and not as a mineral interest in the land. The fact that the oil and gas to be received by appellant under the contract is designated as an ‘overriding royalty’ does not make it real estate, or prohibit it from being personal property. It merely denotes its freedom from the burden of production expenses. The contract alleged between the plaintiff and defendant did not undertake to deal with the mineral in fee; but undertook to deal with it, as, if, and when (after) produced (taken out of and severed from the land), and in that event only; that is, after it became personal property, and is not within the statute of frauds (Rev. St. 1925, art. 3995). The question here presented was decided by the Commission of Appeals in Jones v. O’Brien, 251 S. W. 208, and the holding again approved in deciding questions certified to by the court of civil appeals of the ninth supreme judicial district in the case of Hager v. Stakes, 116 Tex. 453, 294 S. W. 835, 838; Judge Greenwood, speaking for the supreme court, said: ‘Jones v. O’Brien, (Tex. Com. App.) 251 S. W. 208, which was correctly followed in O’Brien v. Jones, (Tex. Civ. App.) 274 S. W. 242, determined nothing except that parties may contract for the sale of oil as personalty, after its severance from the soil, and that such a contract is without the statute of frauds.’
“We are of the opinion that the court erred in holding that the overriding royalty sued for by defendant constitutes an interest in real estate.” (p.204.)
The Dashko case- was cited with approval by the circuit court of appeals, fifth circuit, in Standley v. Graham Production Co., 83 F. 2d 489, wherein it was held that an assignment and transfer of an undivided % of % of all the first oil and as produced, saved and marketed from the leasehold estate “if, as and only when same is produced, saved and marketed therefrom” until a certain sum of money was received by the conveyee, did not create an estate in the land, but only a lien on the oil after it had been separated from the soil.
The contention is made that the agreement to give plaintiffs 20,-000 barrels of oil out of any oil produced from the land granted to plaintiffs an overriding royalty; that an overriding royalty is an interest in the lease, and that an agreement to buy or sell an oil and gas lease or any interest therein is within the statute of frauds. In support of these contentions defendants refer to and rely upon Sheffield v. Hogg, 124 Tex. 290, 77 S. W. 2d 1021, 80 S. W. 2d 741; Tennant v. Dunn, 110 S. W. 2d 53; Cates v. Greene, 114 S. W. 2d 592, and other cases, in which, counsel contend, the Texas courts hold that an overriding royalty is an interest in land and cannot be alienated except by an instrument in writing. As we hold the agreement before us does not purport to assign or transfer an overriding royalty, we find it unnecessary to determine whether such royalty is real or personal property. (For the purpose of taxation an overriding royalty is classified as personal property, Robinson v. Jones, 119 Kan. 609, 240 Pac. 957.)
Counsel for defendants assert that the case of Danciger Oil & Refining Co. v. Burroughs, 75 F. 2d 855, “involves facts almost identical to those here involved, raises every point raised by this appeal, and authoritatively establishes the contentions of defendants herein.”
In that case the plaintiff owned eight lots in a block of thirty-two. He entered into an oral agreement with defendants to execute leases to defendants on his eight lots, and to obtain for defendants leases from the respective owners on the remaining lots in consideration of defendants’ promise to pay him $500 in cash and to convey a Vm overriding royalty to him. In the opinion it was said:
“Both parties approach the contract as one exclusively for services on plaintiff’s part, and argue the case upon that assumption. Plaintiff relies upon King v. Gants, supra, and the trial court apparently predicated its decision upon that case. Defendants concede that the principle decided in that case applies here, but insist that the case was overruled by Hall v. Haer, supra, and urge that we must follow the last expression from the supreme court of the state. It is unnecessary to consider whether there is conflict between the two cases, and, if so, which applies here, because we do not share the view that the contract now under consideration was one exclusively for services on plaintiff’s part. It overlooks an important fact. The contract consisted of two integral parts on each side. In addition to the services rendered in securing leases from other owners, plaintiff was required to execute a lease upon his own property constituting virtually one-fourth of the entire area. Under the authorities previously cited, that lease constituted a conveyance of an interest in real estate. In addition to paying the S500 in cash, defendant Danciger Oil and Refining Company was required to convey to plaintiff an overriding royalty. That constituted a conveyance of an interest in land because it is the general rule that an assignment of an overriding royalty carries an interest in the real estate. (United States v. Noble, 237 U. S. 74, 35 S. Ct. 532, 59 L. Ed. 844; Homestake Exploration Corp. v. Schoregge, 81 Mont. 604, 264 P. 388; Sunburst Oil & Refining Co. v. Callender, 84 Mont. 178, 274 P. 834; Robichaux v. Bordages, [Tex. Civ. App.] 48 S. W. 2d 698; Emerson v. Little Six Oil Co. [C. C. A.] 3 F. 2d 265; Mills-Willingham, Law of Oil-Gas, sec. 128.) These two constituent elements on each side of the contract were inseparable. Manifestly, neither party would have entered into the agreement without both being required of the other. We, therefore, have a case in which the parties agreed, among other things, to an exchange of interest in land, and the contract has been fully performed on plaintiff’s part. Can a court of equity compel specific performance in that situation?” (p. 857.)
As the agreement was for an exchange of interest in land it came within the ban of the statute.
In the case at bar the plaintiff was employed to bring about the sale to defendants of an undivided Via interest in an oil and gas lease — as compensation the plaintiff was to receive 20,000 “barrels of oil out of any oil produced from said land.” In the Danciger case the plaintiff not only agreed to give a lease on his land, but the defendants agreed to convey an interest in the lease to the plaintiff. It was these provisions that the court stressed in holding the brokers’ agreement was not one exclusively for services.
Under the authorities above cited an oral contract for the sale of a present interest in stone, coal, iron or other mineral in the ground, or for uncut timber, is a contract for the sale of an interest in the land within the statute and unenforceable. But under the common law there may be a constructive severance of such material, and an executory agreement for the sale thereof as goods or personal property when severed. The agreement sued on was not for a present interest in oil in the ground, or for the transfer of an interest in an oil and gas lease.
The subject matter of the action was to recover compensation for services performed. A part of his compensation was a certain number of barrels of oil when produced from the land. We think the agreement was one relating to personal property, and therefore enforceable.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted to establish title in the plaintiff to land on the theory of a constructive trust. Plaintiff also sought to recover certain rents and profits from the land, and to eject the principal defendant, Theodore C. Rasmussen, her divorced husband, therefrom. Plaintiff has appealed from a ruling sustaining defendant’s demurrer to plaintiff’s evidence on the question of title and from the general judgment in favor of defendant Rasmussen on the issue of rents. The relationship of other defendants to certain transactions will be disclosed in the course of the opinion.
The material averments of plaintiff’s petition were in substance as follows: Plaintiff and the defendant, Theodore C. Rasmussen, were married in 1895. Plaintiff was entirely inexperienced in business matters. By reason of the intimate and confidential relationship, defendant knew of plaintiff’s aversion and obsession against signing notes and mortgages. In about the year 1931 difficulties and disagreements arose between them, and defendant conceived the plan of obtaining his freedom from plaintiff, and preventing plaintiff from receiving any property owned by the parties. Defendant planned, connived and conspired to effect and enter into a property settlement with plaintiff under a postnuptial agreement, whereby, owing to plaintiff’s aversion to signing notes and mortgages, he would obtain the property which plaintiff would receive under his contemplated postnuptial agreement. In keeping with such a scheme, defendant Rasmussen induced defendants M. M. Smith, C. C. Smith and R. 0. Smith to loan to him certain sums of money in order to carry out his plan. The plan was to have plaintiff promise in the postnuptial agreement to take the particular property herein involved, to wit: The southwest quarter of section 11, township 7, of Clay county, Kansas, which land had been sold under mortgage foreclosure by the Farmers and Merchants State Bank, of Morgan-ville, Kan., which bank then held a certificate of purchase therefor. The plan was further to have plaintiff agree to fully pay and discharge the amount of the foreclosure judgment, which, by reason of plaintiff’s aversion to signing notes or mortgages, the defendant Rasmussen had reason to believe she would not do. Defendant, therefore, on or about January 8, 1932, arranged with one C. C. Smith, one of the defendants herein, to buy the certificate of purchase and to sell it to him (Rasmussen), with the result that he would acquire the title to the land in question. Pursuant to such plan and scheme, plaintiff did, at the request of the defendant, enter into such a postnuptial agreement. Among other things, that agreement provided plaintiff should receive from the defendant a quitclaim deed to the property heretofore mentioned, and that she was to have the right to redeem the same. The mortgage on this particular land had been signed by the defendant alone. On April 25, 1932, defendant filed an action for divorce against the plaintiff and therein requested the court to declare an emergency and, as grounds therefor, stated that he desired to refinance the properties he had received under the postnuptial contract. That application showed defendant knew of plaintiff’s aversion to signing notes and mortgages. An emergency was declared, the divorce was granted, and the postnuptial agreement entered into on January 23, 1932, was approved by the court, with the result that plaintiff received only the property above mentioned.
That about April 6, 1934, the plaintiff failed to redeem the property which she was to receive by reason of the postnuptial agreement and decree of divorce, by reason of her business inexperience and aversion to signing notes and mortgages. On April 7, 1934, a sheriff’s deed was executed and delivered to defendant, C. C. Smith. Pursuant to defendant’s plan and conspiracy to defraud plaintiff, the defendant Rasmussen obtained a warranty deed to the property on April 11, 1934. That deed purported a consideration of $2,200. On April 11, 1934, defendant Rasmussen executed and delivered to defendants M. M. Smith, C. C. Smith and R. 0. Smith his note and mortgage in the sum of $2,300, covering that real estate. In this manner defendant Rasmussen completed his plan and conspiracy to obtain a divorce from plaintiff and also prevented her from receiving any of their property. That by reason of defendant’s plan and conspiracy and the fraud perpetrated upon the plaintiff, defendant Rasmussen should be declared to be the trustee ex maleficio of the property involved, and plaintiff should have the property, subject only to the lien of the foreclosure judgment, with interest. At all times since January 23, 1932, the land was of the fair value of $6,500, with the result that defendant has unjustly and inequitably benefited himself through the plan herein described. That defendants M. M. Smith, C. C. Smith and R. O. Smith took from defendant Rasmussen the above-mentioned note and mortgage for $2,300 with knowledge of the fraudulent purpose and acts. That such mortgage should be canceled and those mortgagees should be entitled to a lien only for such sum as was actually paid upon the original foreclosure, judgment with interest, taxes and costs, which amounts plaintiff now offered to assume and agreed to pay. That on July 9, 1932, plaintiff made demand in writing upon defendant Rasmussen for the return of the property.
The second cause of action was for rents and profits. After incorporating the allegations contained in the first cause of action it alleged, in substance: Plaintiff had never recorded the quitclaim deed she received to the property. During the period of the equity of redemption, nor at any time since, had she received any income from the property except for the year 1932. Defendant had received all income since January 23, 1932, in the sum of at least $2,000 and should be required to account to plaintiff therefor.
The third cause of action was one in ejectment. It incorporated the allegations contained in the first cause of action and alleged plaintiff was the lawful owner of the property, that the defendants, Arthur Cyr and his wife, were in the possession, thereof as tenants of defendant Rasmussen, and that they should be ejected therefrom and plaintiff placed in possession.
The verified answer of defendant Rasmussen was as follows:
“That the relationship of principal and agent did not exist between plaintiff and defendant Theodore C. Rasmussen regarding the possession and management of the real estate involved. That defendants admitted the marriage, the foreclosure sale and buying of the certificate of purchase by Clay C. Smith, the execution of the postnuptial contract, the suit for divorce by Theodore C. Rasmussen, the granting of an emergency, the entry of a decree of divorce, the issuance of a sheriff’s deed to the land involved, and that the property was sold to Theodore C. Rasmussen all as alleged in plaintiff’s petition.
“That on March 1, 1918, Anna M. Rasmussen sued Theodore C. Rasmussen for separate maintenance; that she alleged that for nearly two years she and her husband had not lived together and that because of his conduct to her she was unable to live with him as her husband without fear for her personal safety, and that her health and peace of mind required that she live separate from Theodore C. Rasmussen, a copy of said petition being attached and marked exhibit A; that from the time of such suit for separate maintenance up to the time of the divorce the Rasmussens had never lived together as husband and wife; there was no reconciliation; that they lived apart as if they were strangers, and that plaintiff’s attitude toward Theodore C. Rasmussen was hostile, and that no fiduciary or confidential relation existed between said parties.”
Plaintiff’s reply contained a general denial and in addition thereto the following:
“Plaintiff admitted that she had brought suit for separate maintenance, but alleged that such suit was later dismissed, but that notwithstanding such suit a confidential and fiduciary relationship existed between plaintiff and Theodore C. Rasmussen and that said defendant was in no way excused of his duty to deal fairly with the plaintiff; that plaintiff was entirely inexperienced in business and at great disadvantage in business transactions and has certain peculiarities, all of which were known to Theodore C. Rasmussen as shown by paragraphs 3 and 7 of exhibit 'A,’ attached to defendant’s answer: Wherefore plaintiff prayed judgment as prayed for in her petition.”
Upon the issues thus joined the parties proceeded to trial. They filed an agreed statement of facts. While it did not preclude the introduction of other evidence, it did contain certain admissions of fact touching the question of title which, in substance,, were:
Plaintiff and the defendant, Rasmussen, were married in the year 1895. A divorce was granted on June 6, 1932, in favor of the husband (defendant herein), on the ground of the wife’s (plaintiff herein) abandonment; previously and in July of 1915 the plaintiff herein was adjudged insane and committed to the state hospital. In December of 1916 she was adjudged to have been restored to her right mind and her citizenship was restored by judicial decree. By reason of friction and disagreements between them the parties con tinuously and uninterruptedly lived separate and apart after about 1917 until the divorce in 1932. In March of 1918 the plaintiff herein filed an action against the defendant herein 'for separate maintenance, which was finally dismissed on the court’s own motion on March 26, 1923. Although the parties were not living together, defendant Rasmussen continued to manage and control all of their property during those years, and also provided for and assisted in the maintenance and support of his wife. That in 1931 defendant Rasmussen, alone and without the signature of his wife, had executed two notes to the Farmers and Merchants State Bank of Morganville in the total sum of $4,063.17. To secure that amount he also executed a real-estate mortgage in favor of that bank. The mortgage showed a consideration of one dollar and advancements upon various tracts of real estate, including that involved in the instant case. . That mortgage was subject to another mortgage in favor of Chris Pinkbiner. It was executed by Louisa Rasmussen alone, and covered only one-half of the property herein involved. Later in the year 1931 the defendant Rasmussen alone executed another small note to the same bank. In. August of the year 1931 he alone executed a mortgage in favor of George L. Davis and W. M. Beall, as trastees, in the sum of $4,060.05, covering various lands, including that herein involved. That mortgage appears also to have been given for the purpose of securing notes to various parties. In September of 1931 the Farmers and Merchants State Bank of Morganville filed a mortgage-foreclosure action upon the land involved herein, together with other lands covered in the mortgage to that bank. In that action the mortgagee, Chris Pinkbiner, filed his answer and cross petition for the foreclosure of his mortgage. In October of 1931 Davis and Beall, trustees, filed their answer and cross petition asking for a foreclosure upon the lands here involved and other lands covered in their mortgage. Plaintiff, Anna M. Rasmussen, was not made a party to that action. The defendant, Rasmussen, did not contest that action. The land here involved was sold at sheriff’s sale in December of 1931 to the Farmers and Merchants State Bank of Morganville, for $1,711.79, and a certificate of purchase therefor was issued to the bank on January 8, 1932, and was assigned to the defendant, Clay C. Smith, on the same day. On June 13, 1933, a written agreement for the purchase of the land herein involved was entered into by the defendant, Rasmussen, and Smith Brothers. In the previous year, and on January 23, 1932, the plaintiff, Anna M. Rasmussen, and the defendant, Theodore C. Rasmussen, entered into a written postnuptial agreement. Under that agreement the property here involved was to be the separate property of this plaintiff, subject, however, to two agricultural leases on separate portions of the land for the year 1932. Under the express terms of that agreement plaintiff was to have this property, with the distinct understanding and agreement that she would promptly and without unnecessary delay, and not later than sixty days from the date of that agreement, pay off and fully discharge the amount for which the land was sold at sheriff’s sale to the Farmers and Merchants State Bank of Morganville. Other lands were set aside to the defendant. In that agreement plaintiff further expressly agreed that during the continuance of the marriage relation each party would, at the request of the other, sign, execute, acknowledge and deliver any deed, mortgage or other instrument of conveyance of the other, without any cost to' such other party, and with the distinct understanding that the party executing such papers should in no wise be personally liable upon any promissory note, debt or obligation secured by such mortgage. In that agreement it was expressly provided:
“7. It is further agreed that if in the future either of said parties should institute an action against the other for divorce, he or she shall do so at his or her own expense and cost, and each covenants and agrees with the other that in such event neither will claim, demand or receive any property from the other in such action, and that the settlement herein stipulated and contained is intended for, and is, a full, final and complete settlement and adjustment and division of the property matters between said parties and shall be final and conclusive upon them in any court of record.”
The agreed statement of facts contained, in substance, the further provisions: On April 25,1932, the defendant instituted an action for divorce on the ground of abandonment, and a decree of divorce was granted in his favor upon that ground on the 6th day of June, 1932. In that decree the postnuptial agreement was by the court declared to be a fair, just and equitable agreement, and that it had been understanding^ entered into. That agreement was approved, ratified and confirmed by the court, and it was made a part of the decree of divorce. A period of sixty days had not elapsed between the filing of the action for a divorce and the decree, but an emergency had been declared under the provisions of G. S. 1935, 60-1517. In support of the emergency decree plaintiff had filed a verified application for the declaration of an emergency. The grounds for the application were, in substance:
The land set aside to plaintiff and defendant in the postnuptial agreement had been sold under the same sheriff’s sale. The defendant was endeavoring to redeem the land reserved to him in that agreement. He had negotiated with Smith Brothers to refinance the property reserved to him. Although the issues in the divorce action had been fully joined, and although he had made all arrangements to complete the loan to refinance his properties, his wife refused to execute the papers as she had agreed to do in the postnuptial agreement. He had every reason to believe defendant would never join in the execution of the necessary papers. It was extremely doubtful whether the lenders would be willing to wait sixty days from the date of the filing of the petition for divorce, to make the loan. Unless he was able to negotiate with them for that loan, he did not know where he could possibly obtain the necessary money with which to redeem the land. Upon that showing an emergency was declared and the decree of divorce was rendered.
In addition to all of the above-admitted facts, oral testimony was offered by both sides for the purpose of throwing additional light on the question of alleged fraud, and on the question of whether there had been a breach by defendant of a fiduciary and confidential relationship of the parties, while such a relationship in fact existed, and also on the further questions of whether the defendant, during the confidential relationship of the parties, had actually acquired knowledge of plaintiff’s peculiarities and aversion for signing notes or mortgages, and whether after that relationship ceased defendant used that knowledge for the purpose of depriving the plaintiff of her property. No useful purpose can be served by a review of that evidence. The action was tried by the court. It was the trier of the facts. It resolved those issues against the plaintiff and in favor of the defendant. There was an abundance of substantial evidence to support the judgment in favor of the defendant on those issues. There was no evidence plaintiff was insane. She had been restored to sanity by judicial decree in 1916. This action was not commenced until July 9, 1936. True, there was evidence she had been and still was weak, physically and mentally, and was not experienced in business dealings. She was, however, represented throughout by counsel. It is not suggested her counsel at any time were unfaithful to the trust bestowed or in any sense inefficient in representing and protecting her interests. The trial court, throughout the instant litigation, was exceedingly cautious and repeatedly in quired from witnesses called in her behalf and from her counsel whether,- in their opinion, plaintiff was insane or unable to carry on the instant litigation. The answers without exception were to the effect it was not contended plaintiff was insane or unable to carry on the litigation. It was only contended plaintiff was mentally weak and had a peculiar aversion to signing notes or mortgages, and that defendant had learned those facts during his confidential relationship with her and had taken advantage thereof by arranging a plan and scheme whereby she would be deprived of her property by reason of her failure and refusal to sign notes and mortgages. Had the court found these contentions of the plaintiff were supported by the evidence, then we undoubtedly would be obliged to give careful consideration to the numerous authorities cited in support of her contention. Unfortunately for her, the court reached a different conclusion. While the court did not make formal findings of fact, it did summarize the issues and the evidence on the hearing of the motion for a new trial. That summary was:
“The Court: Well, of course, I feel, as I indicated at the time of the hearing, the plaintiff’s right is dependent, in the first place, upon establishing some sort of trust relationship or fiduciary or other confidential relationship between her and the defendant. On the question of the fiduciary or confidential relationship, the evidence pretty strongly negatives that. The relationship was very strained, so much so that they have had no dealings, social or otherwise, with each other for twenty years or thereabouts.
“The lcey to plaintiff’s claim was a claim of knowledge on the part of the defendant, during the existence of the marital relationship, of a peculiarity, idiosyncrasy, whatever we want to call it, on the part of the plaintiff against signing papers, notes, mortgages; and there just is no evidence to substantiate that claim. The plaintiff was permitted to offer evidence of a refusal on her part to sign something. But, as I recall it, without exception those incidents occurred after the divorce, and there was no evidence of any knowledge or information of those transactions having come to the defendant.
“Of course, another vital step seemed to be the element of collusion or agency with the Smiths. There could be no doubt from the evidence that the Smiths came into the possession of this certificate of purchase in an ordinary business transaction, in due course of their business, and without any suggestion, or even knowledge, on the part of the defendant. He had nothing to do with that. The defendant undoubtedly was aware of the fact that his wife was not exercising the right which she had under the law given to her by the contract, and made arrangements, if she did forego that right, by which he could purchase the farm. She still had the full right, and she was urged to exercise it. According to her own testimony she was threatened by some of her own relatives that if she did not go down and redeem this land they would not have anything more to do with her, they would not help her any more. She testified that one of her brothers said that he was absolutely through with her if she passed this up.
“Now, fraud on the part of the defendant which required that much fortitude on the part of the one defrauded, to withstand the threats of all her friends and relatives and her attorneys, when all she had to do was merely do what they asked her to do, and his entire fraudulent scheme fell, seems rather far-fetched to the court.
“The contract was fairly entered into. It has now been twice before this court. Her relatives and others of her own selection were there at the time the contract was entered into, and she was represented by counsel. Is that correct, or was she? Did you act merely as scrivener for both parties? It was at your office.
“Mr. Beall: She was represented by Mr. Harlan.
“The Court: Oh, yes, that is right. She was represented by counsel, by thoroughly capable counsel. I think we could all agree on that.
“So, as I say, I am utterly unable to see anything for a court of equity to lay hold on. Of course, the result is that she lost this farm, but, to borrow a term from another field of the law, it certainly cannot be said that anything the defendant did was the ‘proximate cause.’ The whole thing was the result of some notion of her own, and there is no evidence that her husband had any reason to suppose that she would take such an attitude at the time the contract was entered into.
“So, the motion for new trial will be overruled.”
The summary of the evidence discloses the court, in effect, made not only definite findings of fact on the controverted issues, but it also discloses at least a portion of the evidence which supports those findings. Under these circumstances there are no facts out of which this court can create a constructive trust. The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This action was originally for judgment on a note given for the balance of the purchase price of a lot from a bank and for forfeiture of a contract of purchase by reason of the failure to pay the note representing the balance of the purchase price.
The petition was attacked by various motions and demurrers of the defendants. The demurrer to the forfeiture cause of action of the petition was sustained and subsequent amended petitions were filed, so that the final pleading filed by the plaintiff is denominated second amended and supplemental petition. In one cause of action plaintiff sought judgment on the note, and in another an equitable foreclosure of the contract of purchase. To this pleading the defendant filed a verified answer denying certain matters and admitting others. The trial court sustained the motion of the plaintiff for judgment on the pleadings and rendered judgment on the note, making it a lien on the lot but denying a foreclosure, and from this ruling the defendants appeal.
A preliminary matter is presented by the defendants in the form of a motion for leave to amend their notice of appeal. This new notice of appeal has been served on the attorney for the appellee and adds to the one ground covered by the former notice, viz., appeal from the ruling on the motion for judgment on the pleadings, the earlier adverse rulings on the motions of defendants attacking the petition. Since the record shows the appeal from the final ruling was taken in time under the provisions of chapter 268 of the Laws of 1937, the earlier rulings in the case are subject to review under section 5 of that chapter, and leave will be granted to include such rulings in the notice of appeal.
The second amended petition alleged that on March 18, 1922, the Farmers State Bank of Glaseo, Kan., sold the lot in question to the defendants, who are husband and wife, for $1,050, for which the defendants paid $650 in cash and gave their note for $400, and they entered into a contract with the bank for the purchase of the lot; that the note was not paid, and another note and contract were substituted on June 5, 1926, for the first, which note and contract were not signed by the wife; that on November 18, 1931, another note and contract were substituted for the former, but were not signed by the wife, the note being for $400 and to become due and payable May 18, 1932. This last note and accompanying contract were the basis of the petition in this case, which was filed May 11, 1937, which was seven days less than five years after the note became due. The amended petition stated how the plaintiff, an individual, became the owner and holder of the note and contract, as well as the deed to the lot in question, for value after the bank went into the hands of a receiver; that the defendants went into possession of the lot when the first contract was made and that they have enjoyed the rents and profits thereof ever since, and refuse to surrender possession thereof. The amended petition concluded with a prayer for judgment on the note and for the foreclosure of the contract as an equitable mortgage.
The joint answer of the' defendants “denies that the defendant wife entered into either the contract of June 5, 1926, or of November 18, 1931, or had any understanding with respect thereto; denies that plaintiff became or is the owner of the 1931 contract and note or the real estate; denies that defendant husband was ever requested by the bank or plaintiff for payment; denies that any demand for surrender and possession was ever made on defendants; denies that there was ever a tender of performance by plaintiff or his alleged predecessors in interest; denies that they owe the sum of money demanded; and admits all other allegations.” It then alleged that the receiver’s sale to the plaintiff had never been confirmed by any court of competent jurisdiction.
The wife filed a separate answer in which she denied that she had anything to do with the last two notes and contracts and that she had ever consented to the same. She stated therein that she, hex* husband and family went into possession of the lot involved immediately after the making of the note and contract dated March 12, 1922, and have been in possession thereof ever since, and she prayed that the real property be adjudged to be her homestead.
As above stated, the trial court sustained the motion of the plaintiff for judgment on the pleadings, rendering judgment for plaintiff against the husband on the note with interest and costs, and denying plaintiff any moi'tage foreclosure and the defendants any homestead exemptions, but making the indebtedness of the husband on the note a judgment lien against the premises for the payment of the obligation contracted for the purchase thereof.
Aside from the question of the rights of the plaintiff as a purchaser from the receiver of the bank, which will be considered later, there can be no question under the pleadings as to the right of the plaintiff to recover a judgment against the husband for the amount of the note signed by him together with interest and costs. The trial court declined to render judgment for plaintiff on his motion for judgment on the pleadings as to plaintiff’s second claim for mortgage foreclosure, and plaintiff has taken no appeal. So the ruling on the foreclosure feature of the case is in favor of the appellants and therefore calls for no review. However, appellants complain of the order making the judgment against the husband a judgment lien on the premises in derogation of the wife’s homestead right.
Appellants cite G. S. 1935, 79-3101, which defines the words “mortgage of real property” as including every, instrument by which a lien is created, and insist if any lien is created by the note and contract of the husband it must be a mortgage lien under this defn nition, .and appellants further cite in this connection Phoenix Mutual Life Ins. Co. v. Aby, 144 Kan. 544, 61 P. 2d 915, and Home Owners’ Loan Corp. v. Jaremko, 146 Kan. 328, 69 P. 2d 1099. Both these cases had to do with mortgages really executed; in the latter case there was no mortgage at first, but only an option as in the case at bar, but before the action was commenced a mortgage was executed and the prayer of the petition was for foreclosure. The real question of dispute in both cases was the extent of the period of redemption.
Appellants also cite Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448, where an action was brought for specific performance of a contract for purchase of real property and because of the contract containing a special provision as to performance in case of purchaser collecting a certain obligation due him, which he later did collect, it was held by this court that such addition made it a contract for the sale of real estate even though it was called an option to purchase. The case was not reversed on that ground because that was the same as the ruling made by the trial court, but it was reversed on the ground of not complying with the provisions of G. S. 1935, 79-3107, the mortgage-registration tax law. That case, however, differs from the one at bar in that the wife in the latter case did not join in the contract of purchase or option, whichever it may be called. The wife in the case at bar alleged in her answer that she never did join in the execution of the note and contract on which the plaintiff’s action was based and that they were executed by her husband without her knowledge or consent. So this could not be a mortgage-foreclosure case, as it was held to be in the Given case.
In the case of Walz v. Keller, 102 Kan. 124, 169 Pac. 196, it was held:
“A homestead right attaches to land obtained under a contract of purchase where the purchaser and his wife occupy the land as a residence, and a new contract modifying the contract of purchase and stipulating for a surrender of possession in certain events, and also a contract of lease executed between the purchaser and the seller, none of which were signed by the wife and to which she gave no consent, are absolutely void.” (Syl. ¶1.)
Section 9, article 15, of the constitution of Kansas provides for homestead exemption, but follows the provision with the following words: “and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises.” This identical language is used in the statute on exemptions, under the head of civil procedure, G. S. 1935, 60-3501.
In the case of Greeno v. Barnard, 18 Kan. 518, it was held, after reversing the lien part of a judgment, that—
“The judgment in such a case should be an ordinary personal judgment against the defendant for the amount of the note, and costs, authorizing an ordinary execution to be issued against the property in general of the judgment-debtor subject to execution; and on such an execution the officer, after exhausting the personal property of the judgment-debtor subject to execution, might levy on such real estate (or on any other real estate of the judgment- debtor subject to execution) whether the real estate first mentioned were occupied as a homestead or not.” (Syl. ¶ 2.)
The trial court in the case at bar in effect followed the holding last above cited in rendering a judgment against the husband on his note and giving appellee no lien except such as it would have as a judgment where there were no homestead exemptions.
The appellants cite authorities as to amendments to petitions not relating back to the filing of the original petition when made after the statute of limitations had run. But they apply only to cases where the original petition did not state a cause of action. A cause of action was fully stated as to the suit on the note. The amendments made did not apply to that cause of action but to the foreclosure cause of action. Now, since no foreclosure has been sustained, that assignment of error becomes immaterial in this appeal.
The fifth and seventh subdivisions of appellants’ brief concerning the necessity of pleading a tender of the deed before foreclosure and the wife’s right of homestead are also immaterial when there was no foreclosure, and under the constitution above quoted the wife had no right of homestead when the obligation for the purchase thereof has not been met in some way.
Appellants complain about the plaintiff acquiring title to the note, contract and deed from the receiver of the bank without such sale ever being confirmed by the court. The journal entry of judgment shows both parties stipulated that the proceedings in the receivership case should be introduced in evidence and considered by the court, and they show that on the same day the report of the receiver as to the sale of the assets of the bank was submitted for approval, there was also submitted to the court for approval the offer of the plaintiff herein for the purchase of the note, contract and deed in this case for a specified amount, and the court approved the offer and directed “the receiver to assign all of his right, title and interest in and to said agreement and promissory note and to sell and by proper instruments of conveyance, convey, all his right, title and interest in and to said real estate, as prayed for.” We think this was equivalent to a formal approval.
The earlier rulings which appellants claim were erroneous and which we hold can be reviewed herein, although not mentioned in the first notice of appeal, were the overruling of defendant’s demurrer to the amended petition, except that part concerning a forfeiture which the court did sustain, and a number of motions. The demurrer was properly overruled as to the note and later the court followed the theory of the appellants in rendering the judgment holding there was no foreclosure properly in the action. The two motions particularly urged as to additions to the petition were concerning the mortgage-registration tax which, as mentioned before, went out of the case when it ceased to be a foreclosure action.
We find no error in the judgment as rendered.
The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was a prosecution for robbery in the first degree. The defendant was convicted and appeals.
There is no contention the evidence was insufficient to sustain the conviction. The first complaint is the court unduly restricted the cross-examination of two of the state’s witnesses. That part of the attempted cross-examination of both witnesses pertained to the same subject matter and related to nothing covered directly or indirectly in the direct examination of the witnesses. It pertained to purely collateral matters and involved the facts as to when they were married and whether their children were legitimate. The conceded purpose of the cross-examination on such collateral matters was, first, to see whether the witnesses would tell the truth concerning those matters, as defendant conceived the truth to be, and second, to offer rebuttal testimony to impeach the credibility of the witnesses in the event their answers conflicted with what defendant conceived the truth to be. In other words, it was a clear attempt to impeach the credibility of the witnesses on collateral matters elicited only on cross-examination. It is obvious the permission of such cross-examination would have necessitated a trial of collateral issues, and the question would still have been, which of the witnesses were telling the truth about those matters. Clearly the extent of such cross-examination must be left in the sound discretion of the trial court. (State v. Pfeifer, 143 Kan. 536, 539, 56 P. 2d 442, and cases therein cited.)
Unless it is shown the cross-examination was unreasonably restricted and resulted in substantial prejudice to the defendant, there can be no reversal. (See G. S. 1935, 62-1718, and numerous cases cited thereunder.) The record in the instant case fails to disclose such facts.
Appellant relies upon decisions holding that a witness may be cross-examined concerning specific past conduct and definite acts which tend to disgrace him for the purposes of impeaching his credibility. The latitude of such cross-examination, as heretofore stated, rests in the sound discretion of the trial court. If, under the proper application of that rule, the answers impeach or tend to impeach the credibility of the witness, the desired purpose has been accomplished. It must, however, be remembered that if a party seeks on cross-examination, as here, to enter a field of strictly collateral subject or matters, which are entirely foreign to the direct examination of the witness, such party is bound by the answers of the witness. (State v. Alexander, 89 Kan. 422, 131 Pac. 139; State v. Smith, 103 Kan. 148, 174 Pac. 551; State v. Pfeifer, supra, and cases therein cited.)
Appellant suggests the jury was not properly instructed. The record discloses no objection to the instructions at the time of trial, nor that the attention of the trial court was specifically directed to any alleged error therein on the hearing of the motion for a new trial. No specific complaint is made now concerning any instruction given, and the alleged error will not be considered.
Appellant contends the court should have given certain requested instructions. One of them specifically advised the jury that two of the state’s witnesses were accomplices in the commission of the crime. The rejection of that instruction was, of course, proper. These witnesses were not charged with the commission of a crime and if they had been, it would have been within the province of the jury, under proper instructions, to determine whether they were accomplices in fact. Assuming they had been accomplices, such fact could not have acquitted the defendant, with whose conviction alone we are now concerned.
Appellant also requested an, instruction relative to the degree of credence which should be given to the testimony of an accomplice. The same instruction advised the jury that the testimony of an accomplice alone was insufficient. That instruction was also properly rejected. In this state it is well settled that the uncorroborated testimony of an accomplice, if otherwise sufficient, will sustain a verdict of guilty. (State v. McIntyre, 132 Kan. 43, 294 P. 2d 865.) We might also say the evidence concerning the connection of the two witnesses with the crime was wholly insufficient to justify an instruction on the question of their being accomplices, and hence any instruction as to the credence to which their testimony was entitled, on the theory they were accomplices, would have constituted error.
The judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Harvey, J.:
This was an action, commenced November 8, 1937, for the declaration of the rights of the parties respecting the title, possession and rents of four tracts of land aggregating about ninety acres, to which the same questions apply, and for judgment in accordance with the rights of the parties as found. All the property is farm land; the residence and other farm improvements are on one of the tracts.
Plaintiff is the widow of J. L. Collins and the sole devisee and legatee under his will, probated April 27, 1937, shortly after his death. The defendant, Kenneth B. Collins, is the son of plaintiff and J. L. Collins, and Annie Welsh Collins is his wife. Hereinafter these parties will be referred to as defendants unless the party referred to is specifically designated. Prior to October, 1930, the real property in question was owned by the heirs of Richard Welsh, deceased, one of whom is the defendant Annie Welsh Collins. The Welsh heirs had not paid the taxes on the land, and it was subject to tax deeds. On October 18,1930, J. L. Collins purchased tax deeds upon the land, one for each of the four tracts. On receiving and recording these deeds he went to the persons then occupying or farming the land as tenants of the Welsh heirs and procured possession of the property and collected rents from them. In March, 1932, the defendants moved onto the improved tract and began paying rent to J. L. Collins at the rate of $25 or $27 per month.. Other tenants farmed the other tracts and paid as rent a share of the crop to J. L. Collins. This continued until March, 1934, since which time defendants farmed all the land and delivered the landlord’s share of the crop to J. L. Collins. This continued until the death of J. L. Collins in 1937. In the meantime defendants procured deeds to themselves from the other Welsh heirs, and upon the death of J. L. Collins filed those deeds of record and claimed to be the owners of the property. They harvested the wheat crop of 1937 and placed the landlord’s share in storage, with directions that it should not be delivered to plaintiff. Plaintiff served written notice on defendants for the termination of their tenancy of the premises on March 1, 1938. The petition alleged the sums paid by J. L. Collins for the tax deeds and the amount of taxes paid thereafter; alleged defendants went on the property as tenants of J. L. Collins and plaintiff, and that the cash payments and share of the crops which had been delivered were payments of rent; alleged defendants secretly obtained deeds from the other Welsh heirs and wrongfully asserted a claim of title; alleged that in settling the rent for 1936' defendant Kenneth B. Collins had given his note to plaintiff for $176.39, a copy of which was attached, and which was unpaid; alleged that plaintiff was entitled to a share of the crop for 1937, and asked for judgment for its value. The petition further alleged that on December 1, 1933, plaintiff- and her husband, J. L. Collins, had borrowed $2,000 from Ada P. Mellinger, and to secure it had given a mortgage upon the real property, and that later, in December, 1933, plaintiff and her husband gave a deed to Vance W. Collins, which was in fact a second mortgage, to secure the balance due upon a note previously executed by them to Vance W. Collins, and these persons were made parties defendant for the purpose of having the instruments adjudged to be first and second mortgages upon the property.
Plaintiff prayed judgment to the effect that she had title in fee simple to the real property, subject only to the liens of the mortgages to Ada P. Mellinger and Vance W. Collins, and to the tenancy of the defendants; that the tenancy expired March 1, 1938, and that defendants have no title or estate in the real property other than as tenants of plaintiff, and are estopped from claiming any other title thereto, and for judgment on the note for the balance due on the rent of 1936 and for the rent of 1937. In the alternative plaintiff prayed that if the title of the defendants be adjudged superior to the title of plaintiff that she be adjudged to have a lien upon the premises for the cost of the tax deeds and the amount of taxes paid on the property thereunder.
Defendants demurred to the petition. At the hearing of this demurrer it was orally stipulated in open court that each of the tax deeds is void on its face. The demurrer was considered and overruled.
The defendants, Ada P. Mellinger and Vance W. Collins, filed separate answers, in which they set up their respective liens on the property and asked that they be protected as such.
The answer of defendants contained a general denial; admitted that prior to October 18, 1930, the title to the property was in the Welsh heirs; that J. L. Collins purchased the tax deeds on the property and thereafter paid the taxes thereon, as alleged in the petition; that plaintiff is the sole devisee of the will of J. L. Collins; that the notice to terminate the tenancy of defendants on March 1, 1938, ■was served as alleged, and that they had received and recorded deeds from the other Welsh heirs, but denied they were secretly procured. It was further alleged that immediately prior to October 18,1930, the fact that the property was to be sold for taxes came to the knowledge of J. L. Collins, and in order to save the real property for defendants,- and to keep it from being sold to a stranger at tax sale, J. L. Collins undertook to purchase the tax deeds.
“For the purpose of holding the title to said real estate and under his intention and agreement to so hold said title for these answering defendants until such time as the said J. L. Collins was reimbursed for the amount that he, the said J. L. Collins, had expended at said pretended tax sale, with interest thereon, and also any taxes paid by the said J. L. Collins on said real estate subsequent to the 18th day of October, 1930, with interest on said tax payments; and said J. L. Collins intended and agreed, in consideration of said repayment, to deed said real estate to the defendant, Kenneth B. Collins, and his wife, Annie Welsh Collins.”
That subsequent to October 18, 1930, and in order that defendants would have good title to the real property when he was reimbursed the sum he had paid for the tax deeds and taxes, with interest, J. L. Collins advised defendants to secure quitclaim deeds from the other Welsh heirs, and aided defendants in doing so. It is further alleged that J. L. Collins collected rents from the real property from the tenants thereon in the amount set forth in a statement ¡attached and made a part of the answer; that after defendants entered upon the real property they made valuable and lasting improvements under a claim of title, and from time to time made payments in various amounts to J. L. Collins, “which payments were not made as payments of rent, but as a reimbursement to said J. L. Collins of the amount he had paid” in taxes upon the premises, and the cost of such improvements and the payments so made are set forth in an exhibit attached to the answer, and that J. L. Collins had received the refunds of taxes from a road-benefit district in an amount unknown to defendants, but for which they should have credit. In order to have affirmative relief the allegations of the answer, by reference, were made a cross petition. The prayer was that defendants be adjudged to have title to the real property, “subject only to a lien thereon in favor of the plaintiff,” in the amount paid by J. L. Collins for the tax deeds and subsequent taxes, with interest, less the amount shown by the exhibits to the answer, and less the refund from the road-benefit district, and less the amount of the note set up in plaintiff’s petition, and that Ada P. Mellinger and Vance W. Collins be .adjudged to have no lien upon the real property as against the defendants.
The reply contained a general denial of the affirmative defendants pleaded in the answer and cross petition of defendants, and alleged that if, as claimed by them, the moneys paid to plaintiff’s testator were not rents, then defendants are indebted to plaintiff for the rent of the property from March, 1932, to March, 1938, in the sum of $3,534.50, and alleged that defendants, by reason of their conduct and the allegations of their answer, are estopped to claim any interest in the property except as tenants.
It will be observed that the principal controverted question raised by the pleadings was whether defendants went into possession of the property as tenants of plaintiff and her husband, J. L. Collins. In effect, at least, the trial court found that they did, and the judgment rendered was in accord with that view. While some details of the evidence pertaining to that question are discussed in the brief as being open to a different view, there is an abundance of evidence to sustain the finding and judgment of the court on that question. Indeed, defendant, Kenneth B. Collins, testified that when he went into possession of the residence in March, 1932, he paid cash rent to his father for the use of those premises until March, 1934, at which time he took over the operation of thé entire premises, and thereafter delivered to his father one half of the crops grown, but paid no cash rent. Other testimony disclosed this was the customary landlord’s, share of the crop.
As opposed to that contention defendants had pleaded an agreement between them and J. L. Collins by which he bought the land and was to pay the taxes for their benefit, and when they reimbursed him for the sum he had paid, out, with interest, that he was to convey the property to them. They offered no evidence at all of such an agreement. The nearest evidence they had on that matter was the testimony of witnesses to whom J. L. Collins had talked at various times. One of them testified that about the time the deeds were taken J. L. Collins said he disliked to see the valuable land fall into the hands of outsiders, because he didn’t want to see Annie lose her inheritance on account of the mismanagement of the Welsh boys. Sometime after the deed was issued he heard Mr. Collins say that he wanted to see Annie redeem the property. “He said he expected to get out of it what it cost him, and interest. He never said anything about whether amounts paid to him from time to time would be applied on that. I never heard him say anything about it.” This, of course, was no evidence that the specific agreement alleged in defendants’ answer ever was made.
With respect to the allegations of defendants about making repairs, they offered in evidence bills of merchandise purchased by defendants and used in making such repairs. On rebuttal it was shown that in a statement prepared by the defendant Kenneth B. Collins in 1936, he had taken credit for these items of expenditure upon sums he owed his father for shares of crops, and according to this statement there was a balance due his father of $176.39, for which he gave his note to plaintiff.
Among the items set out in one of the exhibits to the answer, for which*plaintiff claimed credit, was a check for $500, of the date of May 4, 1931, which had a notation in the lefthand corner, “payment on taxes.” It was contended by defendants that the taxes referred to were those represented by the deeds upon the land involved in this action. In rebuttal, evidence was offered tending to show that the land owned by the Welsh heirs included a pasture in addition to the four tracts involved in this action; that J. L. Collins got a tax deed on that at the same time he did on the other land, and on the day this check was given, plaintiff and her husband executed a deed to defendants for this pasture land; that the taxes paid on that land, with accrued interest, aggregated $869.40, and that this check applied to the taxes on that land. The result was, the court declined to give credit to defendants for the amount of this check as a payment of taxes on the land involved in this action.
J. L. Collins and plaintiff had received three checks from the state highway commission, aggregating $81.30, being refunds of taxes paid upon this land as a part of a benefit-road district. Defendants contended in their answer and at the trial that they should have credit for these items. At the trial there was some discussion about when they were paid, or who paid them, but no direct evidence on those points, and the court declined to give defendants credit therefor. Plaintiff, as appellee in this court, advises us that she is now convinced that the credit should have been given, and consents that the judgment rendered should be modified in that respect.
With respect to the deeds obtained by defendants from the other Welsh heirs, the evidence tends to show that J. L. Collins assisted defendants in procuring those deeds, and when he did so he left them for safekeeping at the office of an abstracter with whom he did business. After his death, in some way unknown to the abstracter, defendants obtained possession of these deeds and recorded them.
At the closé of the trial, and on March 26, 1938, the court found that the defendants are the owners of the legal title to the real property, subject to a lien to plaintiff for taxes, by virtue of the tax deeds, in the sum of $4,927.29, and that defendants should redeem the real property from this lien by December 1, 1938, or lose all title and interest in the property; that plaintiff is entitled to possession of the real property until such redemption is made; that the tenancy of defendants expired March 1, 1938; that the indebtedness of plaintiff to Ada P. Mellinger and Vance W. Collins was a valid first and second lien on this redemption money; that defendants are indebted to plaintiff for rent for 1937 in the sum of $1,262.55, and the further sum of $182.39 upon the note for a balance of prior rents. Judgment was rendered accordingly. Defendants have appealed.
In this court appellants contend the evidence does not show an oral lease between J. L. Collins and appellants. True, it does not show specifically the lease agreement, but as previously stated it does clearly show they went onto the place as tenants and paid rent, both in cash and in share of crops. There is no evidence that they occupied the premises in any other capacity than as tenants prior to the death of J. L. Collins. They also contend this was not a possessory action and plaintiff below had no right to have her tax lien declared or enforced. Appellants are in no position to raise this question. The court followed the prayer of their answer and cross petition and adjudged the legal title to be in them, “subject only to a lien thereon in favor of the plaintiff,” for the cost of the tax deeds and taxes subsequently paid thereunder, with interest. There is nothing in the record which indicates that defendants at any time in the court below contended such a judgment would not be proper. The pleading on both sides requested such a judgment, and the conduct of the trial throughout was in harmony with the request. The only controversy was as to the amount of the lien. Aside from this, the point is not well taken. The controversy concerned real property. The district court had jurisdiction to entertain the action; indeed, it is not contended the court did not have such jurisdiction.
Appellants contend the plaintiff, as a tax deed holder in possession, has no right to have a tax lien declared. This appears to be a new thought, contrary to the position taken by them in the trial court. The correct rule of law respecting the rights of the holder of a tax deed in possession is that he is entitled to stay in possession until his tax deed is adjudged invalid as a conveyance of title, and until the amount of the taxes due him under and by virtue of the tax deed is determined and paid (G. S. 1935, 79-2506), and in the meantime he is not required to account for rents to any prior owner of the property. (Duff v. Penick, 138 Kan. 288, 26 P. 2d 603.)
Appellants contend the ruling of the court was erroneous in that it makes it impossible for them to redeem one parcel of the real estate and not the other. In the court below the four tracts were treated as one, so far as the trial of the rights of the parties are concerned and the entering of judgment. We are advised in the brief of appellee that counsel for appellants personally computed the amount of the tax lien upon the property as a whole, and upon their recommendations of its correctness it was accepted by the court and judgment entered in accordance therewith. This is not controverted. Perhaps appellants at the time preferred it that way. But without regard to the purpose, any error committed by the trial court in that regard was induced and brought about by the conduct of appellants. They cannot be heard to complain. The petition, in separate counts, set out each of the tax deeds, the cost of each, and the taxes paid on each separate tract of property. It would not have been difficult to have computed the taxes as to each tract separately. No doubt the court would have done so, and made its judgment accordingly, had any request of that kind been made.
Appellants contend that the portion of the judgment and decree of the court in which defendants were given until December 1, 1938, to pay plaintiff’s tax lien, and providing in case they failed to do so “all their interest in and title to said real estate shall vest in plaintiff and said defendants shall be forever barred and foreclosed of and from all interest, right, title, lien or estate in and to said real estate,” is erroneous, as not being in harmony with our statute. (G. S. 1935, 79-2506.) The point is well taken. Appellee, to sustain this part of the decree, cites Henthorn v. Security Co., 70 Kan. 808, 79 Pac. 653, and Sutor v. First Nat’l Bank, 146 Kan. 52, 69 Pac. 315, where the court applied rules of equity to the rights of mortgagees in possession. These rules of equity are not applicable here. The rights of parties respecting taxes and tax deeds are governed by statute. In Taylor v. Adams, 89 Kan. 716, 132 Pac. 1002, it was held: “The rights of a tax-title holder are statutory and not equitable.” (Syl. ¶ 3.) That doctrine has been announced frequently in other decisions. (See Reitz v. Cooper, 123 Kan. 755, 762, 256 Pac. 813, and cases there cited.) What is said here about the rights of the parties being governed by statute applies also 'to some argument made by appellants upon another point in their brief.
A brief outline of our statutes pertaining to tax deeds, so far as here applicable, may assist in making our views clear. A tax deed must be recorded within six months after it is issued. (G. S. 1935, 79-2512.) Here the deeds were issued October 18, 1930, and recorded January 21, 1931, which was within the time. By recording the tax deed the holder is deemed to have set up a claim of title to the land (G. S. 1935, 79-2507), and the holder of the tax deed has two years from that time in which to bring an action for possession of the property. (G. S. 1935, 60-304, 3d clause; Main v. Doty, 126 Kan. 667, 271 Pac. 287.) Naturally, if he can get possession of the property peaceably within that time it is not necessary for him to bring an action for possession. (Buckner v. Wingard, 84 Kan. 682, 115 Pac. 636.) Here the holder of the tax deeds got peaceful possession of the property soon after the tax deeds were recorded, and immediately leased the property and collected the rent for 1931 and subsequent years. With respect to the title to the property, a tax deed may be valid, or invalid. If it is valid and the holder gets possession of the property, or brings his action for possession within two years after it is recorded, the deed evidences a new title in fee simple and cuts off all prior titles and liens. (Cone v. Usher, 86 Kan. 880, 884, 122 Pac. 1049; Beeler v. Elwell, 92 Kan. 586, 590,141 Pac. 551.) If the tax deed is invalid it does not have the effect of vesting title in fee simple, but it is not void for all purposes. It still sets up a claim of title in the holder and authorizes him to get possession of the property peaceably, or to maintain an action for its possession. (G. S. 1935, 79-2507; Pierce v. Adams, 77 Kan. 46, 93 Pac. 594.) As was well said in Brenholts v. Miller, 80 Kan. 185, 186, 101 Pac. 998:
“The tax deed was not a nullity, but gave the plaintiff rights and equities in the land, although void as a muniment of title (citing cases). Whether it conveyed the title, however, or was only evidence of a lien for taxes, or what its legal effect was, were questions presented to the court, requiring judicial consideration and determination.”
Proof of the invalidity of a tax deed as a muniment of title may be shown in the tax deed itself. In such cases it is common to say the tax deed is "void on its face,” or the thing which makes the tax deed invalid as a muniment of title may be an invalid tax, or an invalid proceeding on which the deed is based, not shown on the face of the deed, but which may be shown in an appropriate proceeding. It is common to speak of such tax deeds as being “voidable,” but the legal effect is the same whether the deed is spoken of as being “void on its face,” or “voidable.” It does not vest a fee-simple title in the holder. It is invalid as a muniment, but it does entitle the holder to a lien for taxes, unless his delay in getting possession of the property, or bringing an action for that purpose, bars his right thereto. Here there was no such delay.
The lien may be established in an action brought for the possession of the property by the holder of the tax deed, who is out of possession. (G. S. 1935, 60-304, 3d clause, 79-2506.) Or, if the holder of the tax deed is in possession of the property, the lien may be established in an action brought against him by the holder of the title prior to the issuance of the tax deed. The statute fixes five years from the date of recording the tax deed for the bringing of such an action. (G. S. 1935, 79-2505.)
Strictly speaking, plaintiff did not bring an action for possession of the property under G. S. 1935, 60-304, 3d clause; neither did defendants bring an action for possession of the property under G. S. 1935, 79-2505. Neither party pleaded any statute of limitations against the other, hence any such statute applicable to the controversy was waived. Perhaps the reason for not conforming strictly to the statute was the conflicting claims of the parties respecting the legal status of the possession of the property by defendants. Plaintiff brought the action on the theory that she was in possession of the property by her tenants, the defendants; asked for a decree that her title was good under her tax deeds, and in the alternative that she be adjudged to have a lien for taxes upon the property. Defendants in -their answer claimed to be in possession under a title from the Welsh heirs, but conceded that plaintiff had a lien for taxes under her tax deeds. In a colloquy between court and counsel as to the issue to be tried, after it had been stipulated that the tax deeds were invalid as a conveyance of title, counsel concurred in advising the court that the controverted issue was the tenancy; that is, whether defendants were tenants of plaintiff, and next, the amount of the lien; and at the same or another time counsel for defendants specifically stated to the court an admission that plaintiff had a tax lien, and the amount of it as computed from the tax deeds and tax payments, but contended the amount of the lien should be reduced by deductions claimed by defendants. With respect to the legal status of defendants on the property, the trial court found they were tenants of plaintiff, and denied the contention of defendants that they were in possession under the Welsh title, or deeds from the Welsh heirs. As previously indicated, we approve that portion of the judgment and decree. But when the court found plaintiff was in possession of the property, she having originally taken possession under tax deeds now conceded to be invalid as muniments of title, and having determined, at the request of both parties, the amount of plaintiff's tax lien therein, the decree should have followed the statute (G. S. 1935, 79-2506) with respect to the enforcement or collection of such lien. Under this statute plaintiff is entitled to retain possession of the property until her lien is paid, and in the meantime she is not required to account to defendants for rent, or to credit any of the rents or income from the property upon her tax lien. (Duff v. Penick, 138 Kan. 288, 26 P. 2d 603.) Appellants endeavor to distinguish that case because this court spoke of the tax deed there involved as being voidable (although the trial court, in ruling upon the validity of the tax deed, had held it to be void). Counsel refer to the stipulation in this case, that the tax deeds under which plaintiff acquired possession of the property are void, and argue if the tax deeds are void the case of Duff v. Penick, supra, has no application. What we previously said with respect to invalid tax deeds demonstrates that this is a distinction without a legal difference.
Since the court found defendants were occupying the property only as tenants of plaintiff, and that their tenancy had been terminated lawfully, the proper decree would have been one ousting defendants from their occupancy or possession of the property and decreeing that plaintiff should remain in possession of the property until her tax lien is paid.
The result is, the judgment and decree of the trial court should be modified as follows: It should be affirmed in all respects except two, (1) the amount of the tax lien should be decreased by $81.30, plus interest on the items which made up that sum from the time they were received by the plaintiff or her husband, and (2) that part of the judgment and decree giving defendants until December 1, 1938, to pay plaintiff’s tax lien, and providing the consequences of their failure to pay within that time, should be set aside and in lieu of it defendants should be ousted from any occupation or possession of the property, and the decree should provide that plaintiff remain in possession until her tax lien is paid. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
Defendant appeals from a conviction on two counts of an information charging assault with intent to commit rape of two girls. The evidence showed one girl to be twelve years of age, the other fifteen.
It is first contended the evidence did not support the offenses charged; that all that was proved was defendant may have made an indecent assault, but that there was no evidence of intent. In support State v. Kendall, 56 Kan. 238, 42 Pac. 711, and authorities from other states are cited. We find it unnecessary to discuss them, for the argument is predicated on a part only of the evidence. Each girl testified that defendant partially disrobed her, exposed his own private parts and assumed an appropriate position to have sexual intercourse. In one case the following question was asked and answer given:
“Q. Did he try to get it into your body. A. Well, he did once or twice.”
And in the other case, as abstracted:
“He exposed his private person in my presence. . . . He tried to get his private person into my private person.”
That such evidence showed intent seems too clear for further discussion. We are not persuaded by the argument that because defendant desisted voluntarily before he consummated the act that he had no intent to commit it. Under the circumstances, what he intended was a question for the jury to determine.
It is further argued that the evidence was unbelievable and preposterous. Appellant recognizes that the weight of evidence is for the jury, but argues the entire situation disclosed leads to a conclusion the verdict is not supported by sufficient evidence. This is predicated on the fact the offenses were committed in broad daylight in the rear of a furniture store, the front windows of which were not curtained, the front and back doors of which were open; that persons could enter either the front or rear door, etc. It ignores testimony the offenses took place in the workshop portion of the main room, separated from the main room by partitions, the height of which was not shown, and that in that portion were a desk and workbench. We shall not relate the rather detailed evidence of what took place in that workshop. All of this evidence was before the jury.
In State v. Tinkler, 72 Kan. 262, 265, 83 Pac. 830, it was said:
“The credibility of the evidence, if within the bounds of reason, rests with the jury and trial court, and cannot be considered here.”
Matters of the kind detailed by these two young girls are, of course, unusual, but we cannot and will not say they are beyond the bounds of reason. The jury heard the entire story as presented by the state’s witnesses, as well as defendant’s version, and gave credence to the state’s evidence by its verdict, which the trial court approved. We cannot say the verdict was not supported by sufficient evidence.
Appellant also contends the trial court erred in striking out certain evidence offered by him. The question is not open to review, for the reason that in the motion for a new -trial no mention was made thereof. (See State v. Heustis, 118 Kan. 152, 233 Pac. 801.) Notwithstanding, we have examined the complaint. Appellant called certain persons as witnesses, each of whom stated they knew defendant’s general reputation as a truthful and law-abiding citizen. On cross-examination each stated he had talked with no one and had given his personal opinion. Each then stated he had never heard anything derogatory to appellant’s reputation. On motion by the county attorney, the first portion was stricken. It is to be observed the trial court did not strike the negative testimony. Other witnesses, concerning whose qualifications there was no question, testified that defendant’s reputation for being a truthful, law-abiding citizen was good. Appellant relies on State v. McClellan, 79 Kan. 11, 98 Pac. 209, where it was held to be error to strike out the evidence of a witness whose qualification was limited to talking to members of his own family. The state directs our attention to, and relies on, a statement from State v. Simmons, 74 Kan. 799, 801, 88 Pac. 57:
“Reputation is the evidence of character, and character is not to be established by the opinions or conclusions of witnesses, nor by the personal knowledge of the witness or by particular acts or circumstances, but, in the respect involved, is proved by evidence of the general reputation which one bears in the locality where he resides as to that particular trait.” (p. 801.)
Ordinarily, reputation is not proved by the personal opinion of the witness, although as held in State v. McClellan, supra, his negative evidence of good character is competent. (See, also, annotation, 67 A. L. R. 1210.) The negative evidence here was not stricken, only the personal opinions of the witnesses. We are of opinion that under the above decisions, and also State v. Patterson, 112 Kan. 165, 171, 210 Pac. 654, the ruling of the trial court was not prejudicial to the appellant.
Appellant also complains of the instructions given. The contention is that the trial court did not instruct on the element of intent, and in part is covered by the matter heretofore discussed. Without going into detail, we find the court defined “intent” to the extent of saying that “a person intends the natural and probable consequences of his acts intentionally done and that an unlawful act implies an unlawful intent.” Whether the instructions were fully sufficient or not, however, is no longer open to question. The record shows the trial court, before giving its instructions to the jury, inquired of counsel for the state and for the defendant whether either had any objections to the instructions or any requests to make, and each answered “No.” Appellant will not now be permitted to say the instruction on intent was not as full and complete as it might well have been had he directed the trial court’s attention to what he now contends was not a full and complete instruction.
It has not been made to appear that the trial court committed any prejudicial error, and its judgment is affirmed.
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Per Curiam:
In this case plaintiff, by an action in the nature of
specific performance, sought to recover the entire estate of his grandfather, Edward J. Weber, who died February 27, 1937, because of an oral contract alleged to have been made about December 1,1932, between Edward J. Weber and his son, Lester Weber, Sr., who died in June, 1936, father of plaintiff, to the effect that if Lester Weber, Sr., would come from his home in St. Joseph, Mo., to Hanover, Kan., and live with and care for his father, Edward J. Weber, the father at his death would leave his entire estate to his son, Lester Weber, Sr. It was alleged the oral contract had been performed by Lester Weber, Sr., but that Edward J. Weber, by his will, had disposed of his property otherwise. Plaintiff claims the estate by virtue of this oral contract and as an heir of his father, Lester Weber, Sr.
Plaintiff’s first and primary burden was to establish by proof the oral contract alleged. (Dreher v. Brumgardt, 113 Kan. 321, 214 Pac. 419; Laupheimer v. Buck, 135 Kan. 631, 11 P. 2d 721.) On this question a number of witnesses testified. Some of these were called by plaintiff, others by defendants. There was documentary evidence which had some bearing on the question. On plaintiff’s request the trial court made findings of fact. One of these was to the effect that the evidence was insufficient to establish the contract alleged by plaintiff, and the court specifically found “there was no such contract.” There was a conclusion of law to the same effect, and judgment was rendered for defendants.
Plaintiff has appealed, and presents as the sole question to be reviewed “whether the evidence on behalf of the plaintiff was suffi-' cient to establish facts sufficient to prove his cause of action.” This calls for weighing the testimony and passing on the credibility of witnesses called by plaintiff. These were functions of the trial court. More than that, there was testimony and documentary evidence offered by defendants, all of which it was the duty of the trial court to consider, which duty no doubt was performed. There is no serious contention here that there is no competent, substantial evidence to support the findings of the trial court. The argument is, if the. court had given greater credibility to plaintiff’s witnesses and greater weight to their testimony that would have been sufficient in itself to support plaintiff’s case.
It seems clear to us that this presents no legal question for review. (See Bell v. Van Meter, 133 Kan. 236, 299 Pac. 606, and the many cases collected in Hatcher’s Digest, Appeal and Error, § 496.) The appeal, therefore, is dismissed.
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The opinion of the court was delivered by
Allen, J.:
By this action certain landowners, appellees herein, seek an injunction to restrain the taking or appropriation of any portion of their land by the Cities Service Gas Company, appellant, under condemnation proceedings. Judgment was for the plaintiffs, and the gas company brings this appeal.
The property of the appellees sought to be appropriated “is a horizontal stratum of the thickness of 480 feet, beginning at a horizontal plane 570 feet subjacent to the surface of said land and ending at a horizontal plane 1,050 feet subjacent to said surface, excepting therefrom said oil sand and a horizontal stratum containing same 50 feet thick, the top of which is 670 feet below said surface,” together with necessary easements, to be used by the gas company as a storage reservoir for gas.
In the petition for condemnation the appellant states that it is a gas pipe-line company and also a gas company, and that it is now and has for many years been engaged in producing, buying, transporting, storing, selling and delivering natural gas; that it sells gas to public utility companies supplying domestic consumers in more than one hundred cities in Kansas and Missouri; that it also sells gas directly to federal and state institutions in Kansas. The petition alleges that because of the sudden and drastic changes in the temperature in Kansas and Missouri during the colder seasons of the year, it is necessary for the petitioner, in order to maintain continuous, dependable and uniform service to its customers, not only to increase the pressure at its compressor stations, but it is also necessary to have storage reservoirs to hold the gas in readiness for delivery as needed; that the storage reservoirs will obviate the danger to the gas consumers that would result from an interruption of the gas supply; that to accomplish this end it has established gas storage reservoirs in depleted gas sands at three different places in Kansas, and has found it necessary to establish another underground reservoir in a fourth depleted field. It is further alleged that there is a depleted gas field in Anderson county, known as the “South Welda field,” consisting of about 4,000 acres; that the gas transportation line of petitioner runs through this field; that it has secured gas-storage leases from all the landowners except the landowners involved in this action; that these landowners refuse to grant storage rights, except at an exorbitant price, and that it is necessary to appropriate this land by condemnation proceedings.
The petition for condemnation was filed in the district court of Anderson county in February, 1937; appraisers were appointed, but they failed to agree. Thereupon a supplemental petition was filed, appraisers were appointed, notice given, and a report of their proceedings filed with the clerk of the court. In April, 1937, the gas company paid to the clerk of the court the amount of the award of the appraisers, together with the fees of the appraisers and costs. A transcript of the proceedings was filed with the register of deeds. The landowners appealed.
In the petition for the injunction it was alleged:
“That said pretended condemnation proceedings are null, void and of no effect, due to the reasons herein stated.
“That there is no law under which the land of these plaintiffs, or any interest or easement therein, can be taken or appropriated, against these plaintiffs’ will, for the' purpose for which said land is sought to be appropriated in said pretended condemnation proceedings.
“That the purpose for which said land, or an easement therein, is sought to be taken under said pretended condemnation proceedings is for private purposes, not for public uses, and is not such a use as would entitle defendant to the right of eminent domain.
“That an interpretation of the alleged laws under which said pretended condemnation proceedings were had, interpreting said laws to apply favorably with said pretended condemnation proceedings, would be unconstitutional and void.
“That the proceedings in said pretended condemnation proceedings are illegal and void, and are contrary to the general eminent domain laws of the state of Kansas.
"That an ex parte finding of said court without notice to these plaintiffs, and without a hearing whereat these plaintiffs were given an opportunity to present themselves and be heard on the matter, deprives these plaintiffs of their constitutional right, their day in court, and is an attempt to take the property of these plaintiffs without due process of law.”
The trial court held there was no legislative sanction for the proceedings. This is the vital question in the case.
It is the settled law that private property is not to be taken for private use. In Bangor and Piscataquis R. R. Co. v. McComb, 60 Me. 290, 295, this fundamental concept was thus expressed:
“This exercise of the right of eminent domain is, in its nature, in derogation of the great and fundamental principle of all constitutional governments, which secures to every individual the right to acquire, possess, and defend property. As between individuals, no necessity, however great, no exigency, however imminent, no improvement, however valuable, no refusal, however unneighborly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate. The constitution protects him and his possessions, when held on, even to the extent of churlish obstinacy.”
See Irrigation Co. v. Klein, 63 Kan. 484, 488, 65 Pac. 684; Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603.
The power of eminent domain can only be exercised by virtue of a legislative enactment. The right to appropriate private property to public use lies dormant in the state until legislative action is had, pointing out the occasions, modes, conditions and agencies for its appropriation. (1 Lewis, Eminent Domain, 3d ed., § 367.)
In Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603, it was said:
"No man can be divested of his land, or of any part thereof or interest therein, through the exercise of the power of eminent domain, or of any other power, except under the provisions of express and positive constitutional or statutory law; and he cannot be divested through the exercise of such power of any more or greater interest in his land than the constitution or statutes expressly provided for.” (Syl. ¶ 1.)
We must find in our statutes authority for this condemnor to take the subterranean sands of these landowners for a gas-storage reservoir.
Our statute, G. S. 1935, 26-101, outlines the procedure for the condemnation of land by a corporation having the right of eminent domain. It contains no grant of power.
Section 17-618 provides that lands may be appropriated for the use of oil companies, pipe-line companies, and for the piping of gas “in the same manner as is provided . . . for railway corpora-
tions, as far as applicable;” and any oil company, pipe-line company or gas company desiring the right to conduct oil in pipes or to conduct gas in pipes, may obtain such right or the right of way for all necessary pipes “in manner as aforesaid;” and such pipes may be laid on, through or over any land or lot, or through any street or alley or public ground of any city of the second or third class.
Our statute authorizing railway corporations to condemn land, referred to in the foregoing section, being G. S. 1935, 66-901, provides for the taking of a strip of land one hundred feet wide for its right of way “and also such land as may be deemed necessary for sidetracks, depots and workshops, and water stations, materials for construction, except timber, a right of way over adjacent lands sufficient to enable such company to construct and repair its roads and stations, and a right to conduct water by aqueducts, and a right of making proper drains.”
The evolution of these statutes has been traced in our decisions and need not be repeated. (See La Harpe v. Gas Co., 69 Kan. 97, 76 Pac. 448; Ritchie v. Atchison, T. & S. F. Rly. Co., 128 Kan. 637, 279 Pac. 15.)
As stated above, the principal question in the case is the right of the appellant to condemn land for the underground storage of gas. The trial court held the statutes do not give appellant that right. Certainly the statutes do not do so in express terms. Normally, at least, statutes granting the right of eminent domain should never be enlarged by implication. Appellant contends, and its reasoning leads to that end, that the statutes should be interpreted as giving it the right to condemn any property necessary, or which it deems necessary, in the conduct of its business. Obviously, this contention is too broad. It would authorize appellant to condemn any land in which its officials thought gas might be found, if more gas than it had available was thought necessary to supply its demands. This would disrupt the whole theory of gas ownership, production and distribution which now prevails. Certainly our legislature never contemplated granting gas companies such authority.
Here appellant sought to condemn for gas storage a tract of land known to contain two gas sands and one oil sand and possibly more of each. Appellant says gas in the gas sands has been exhausted. Appellees contend otherwise. The trial court was of the opinion that whether the gas in the known sands was exhausted was not material on the question of plaintiffs right to condemn. In other words, that plaintiff’s right to condemn for gas storage purposes does not depend on how many gas sands there are in the land or whether any or all of them have been exhausted. It seems to us that necessarily is true. It also seems to be true that if appellant has a right to condemn land in which to store gas, irrespective of whether the land contains one or more known gas sands or whether such sands have been depleted of gas, it would have the same right to condemn the land if it knew or thought it contained gas-bearing sand from which the gas had not been taken, for the purpose of taking the gas therefrom, if such gas was needed in the conduct of its business.
The use of the earth as a storage place for gas is an idea so novel we cannot believe the legislature had such matter in contemplation when the power of eminent domain was given to pipe-line companies. If the rights contended for by appellant are to be given to gas pipeline companies, it is a matter for the consideration of the legislature. To stretch the statute to cover the case here presented would be little short of judicial legislation.
In this view of the case it becomes unnecessary to review the other questions pressed upon us. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This action was brought by the Kansas Utilities Company, a corporation, as a taxpayer in the city of Paola, to enjoin the issuance and disposal of general obligation bonds of that city in the sum of $225,000. Against plaintiff’s petition the defendant city leveled a general demurrer and also filed a motion to dismiss the action for want of equity, both of which were sustained. From those rulings plaintiff has appealed.
We shall first consider the ruling on the demurrer. While the petition contained allegations concerning a mass meeting held in the defendant city, at which there was discussed, in connection with the report of an engineer, the subject of the city purchasing plaintiff’s existing electric distribution lines, the parties have argued the ruling on the basis of the sufficiency of the ordinance, the notice of the election and the ballot. Copies of these various instruments were attached to the petition. The pertinent portions thereof were as follows.
“Ordinance No. 1458
“An ordinance providing for the calling of an election in and for the city of Paola, Kansas, for the purpose of submitting to the electors of said city the proposition of authorizing the said city of Paola and the governing body thereof to issue bonds in a sum not exceeding the sum of $225,000 for the purpose of purchasing, constructing, and building an electric light plant and the distribution lines for the purpose of supplying the said city and its inhabitants with electric current.
“Be it Ordained by the Mayor and Councilmen of the City of Paola, Kansas: “Section 1. That an election be held along with the regular city election on the 6th day of April, 1937, for the purpose of submitting to the electors of said city of Paola, Kansas, the proposition .of authorizing the governing body of said city to issue bonds in a sum not exceeding the sum of $225,000 for the purpose of paying the direct and indirect cost for the acquisition of the necessary land and right of way, and for the building and construction of an electric light and power plant, and the distribution lines for the purpose of supplying the said city and its inhabitants with electric current.
“Sec. 5. That the form of the ballots to be used at the said election shall be prepared and issued as required by law and upon such ballots shall be printed the following proposition, to wit:
“ ‘Shall the governing body of the city of Paola, Kansas, be authorized to issue general obligation bonds of said city in a sum not exceeding $225,000 for the purpose of paying the direct and indirect cost for the acquisition of the necessaiy land and right of ways and for the building and construction of an electric light and power plant, and the construction and purchase of distribu tion lines for the purpose of supplying the said city and its inhabitants with electric current.’
“That the said proposal shall be preceded by the words ‘Shall the following be adopted,’ and followed by the words,
“ ‘To vote in favor of the said bonds make a cross (X) mark in the square after the word “Yes.”
“ ‘To vote against the bonds make a cross (X) mark in the square after the word “No,” and followed by sufficient squares.’ ”
“Election Proclamation
“And pursuant to Ordinance No. 1458, I, A. A. Bryan, mayor of the city of Paola, Kansas, by virtue of the authority in me vested by law hereby give further notice and proclaim that on the 6th day of April, 1937, an election will be held in said city at the places above mentioned in each of the respective wards of said city for the purpose of voting to authorize the governing body of the city of Paola, Miami county, Kansas, to issue general obligation bonds of said city in a sum not exceeding $225,000’ to hereby obtain funds to purchase, build and construct an electric light plant and distribution lines for the purposing of supplying said city of Paola and its inhabitants with electric current.”
“city ballot
“Shall the following be adopted?
“Shall the governing body of the city of Paola, Kansas, be authorized to issue general obligation bonds of said city in a sum not exceeding two hundred twenty-five thousand dollars ($225,000) for the purpose of paying the direct and indirect cost of the acquisition of the necessary lands and rights of way and for the building and construction of an electric light and power plant, and the construction and purchase of distribution lines for the purpose of supplying the said city and its inhabitants with electric current.
“To vote in favor of said bonds make a cross (X) mark in the square after the word ‘Yes.’
“To vote against the bonds make a cross (X) mark in the square after the word ‘No.’”
The petition further alleged:
“10. After the calling of said election by the governing body of the city of Paola, the citizens of that city in their discussion of the proposed bond issue, in pursuance to the preliminary report of the said W. B. Rollins which constituted the initiation of the movement, and in pursuance to the notice of election, understood that in the event the proposed bond issue should carry it would be for the consideration of the governing body that the existing distribution lines of this plaintiff might be purchased. (Italics inserted.)
“13. The defendant city and its governing body are now threatening to cause said bonds to be issued and tender the same for registration and offer the same for sale, and said bonds are unauthorized by law and their issuance would be illegal in the following respects:
“(a) In section I of said Ordinance No. 1458, which constitutes the pretended authority for the calling of the election to vote upon the issuance of said bonds it is ordained that the election be held for the purpose of submitting the proposition of authorizing said bonds, ‘for the purpose of paying the direct and indirect cost for the acquisition of the necessary land and right of way, and for the building and construction of an electric light and power plant, and the distribution lines for the purpose of supplying the said city and its inhabitants with electric current.’
“(b) While the authority for the calling of the election as so ordained does not provide in any way for the purchase of the distribution lines owned by this plaintiff, yet the ballot in pursuance to section 5 of said ordinance pretended to submit a proposition for the ‘construction and purchase of distribution lines,’ and the ballot upon which the voters registered their approval of the issuance of the bonds for the purpose of ‘construction and purchase of distribution lines’ contains a proposition entirely different from that which the ordinance ordained should be submitted and different from the proposal authorized to be submitted by the ordinance in question.
“(c) The form of the ballot submitted was misleading and confusing and submitted more than one proposition to the electors of the city of Paola in that by the language ‘construction and purchase of distribution lines’ it is impossible to determine what the proposal in this connection really intends.” (Italics inserted.)
From the petition it is clear that plaintiff owned and was operating in the city of Paola electric distribution lines, and that the city authorities, whom we shall refer to as the city, had under consideration the subject of purchasing those existing lines and also the question of constructing its own lines and acquiring rights of way therefor, as well as the construction of a light and power plant and the acquiring of a site therefor. It is obvious the city did not intend to purchase the existing distribution lines and also to construct a new system of distribution lines. The question is, which of these propositions was submitted to the voters, the proposition of purchasing or the proposition of constructing new distribution lines, and for which of these propositions did the electors vote. That the city was fully authorized to submit either of these questions separately cannot bo doubted. (G. S. 1935, 12-801.) That the city was likewise authorized to submit both propositions on the same ballot, by separately stating and numbering the respective propositions, in order to ascertain the preference of the electors, is equally clear. (G. S. 1935, 10-120, 25-605; Lewis v. Comm’rs of Bourbon County, 12 Kan. 186, 213.) The ballot plainly reveals there was no attempt to em ploy the latter method. It must be remembered the purpose and intent of G. S. 1935, 12-801, was not merely that of enabling a city to determine whether its electors desired to operate under a system’ of municipal ownership, but that it was calculated to enable the electors to determine the manner in which the city should acquire a municipal system in the event it desired such a system — that is, whether it would acquire such a system by purchasing the existing system or such part or parts thereof as it desired or by building and constructing a new system. The statute also provides for an election to determine whether the electors desired to vote bonds for an extension of such works irrespective of how it might have acquired the same. The statute reads: “for the purpose of purchasing, constructing or extending.” It has been definitely held that the purchasing of an existing plant and the construction of a new one constitute separate and distinct methods of executing the design of acquiring a plant, and that the submission of a proposition to issue bonds “to purchase, procure, provide or contract for the construction of waterworks,” is dual and for that reason illegal. (Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400.) G. S. 1935, 10-120, expressly provides the notice of the election, in this case the mayor’s proclamation, shall state not only the time and place but the purpose of the election. That statute further provides:
“ . . . If more than one proposition or question be submitted on said ballot the different propositions or questions shall be separately numbered and printed and be separated by a broad, solid line one eighth of an inch wide. ...”
To the same effect is G. S. 1935, 25-605. In other words, the obvious purpose and intent of these statutes was to make certain the question or questions to be voted upon should be clearly stated so that the electors might not be misled thereby. Unless clearly stated some electors may have voted for the purchase of the existing lines while others may have cast their ballot in favor of the construction of new lines, with the result that the mandate of the people, which the election was designed to obtain, constituted no mandate at all. In justice to the electors and in plain fairness to the parties owning an existing system, the lawmakers contemplated and plainly intended the proposition or propositions should be submitted in such manner as to promote clarity and not confusion and uncertainty. In keeping with this principle this court in Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 122, 45 P. 2d 877, said:
“Our election laws contemplate that when a special proposition is submitted the ballot shall clearly state the substance of the proposition. If the proposition on the ballot is stated in equivocal terms 'the purpose of the election is vitiated in advance. (R. S. 25-605; R. S. 10-120; Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400; 44 C. J. 1138.)
“Our reports contain cases where want of clarity in the recitals of ballot propositions and other nonconformities in election matters have been held insufficient to vitiate the election (State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618, and citations), but nothing in any of these has modified the rule announced in Leavenworth v. Wilson, supra.”
The doctrine was reaffirmed in a recent mandamus action whereby it was attempted to compel the state auditor to register certain bonds which had been voted in the city of El Dorado for school purposes. (Board of Education v. Powers, 142 Kan. 664, 668, 51 P. 2d 421.) In that El Dorado case we concluded as follows:
“In the case before us the question of the sufficiency of the notice has been timely raised. In our view, the notice of the election did not clearly and fully apprise the electors of what the board of education proposed to do in erecting the new building, and for that reason the notice of the election and the proposition as stated on the ballot were insufficient.” (p. 669.)
In the instant case the mayor’s proclamation did not mention the purchase of a site for a power and light plant or the purchase or other method of acquiring the necessary lands for rights of way for distribution lines. Section one of the ordinance, which specifically ordained the purpose of the election, provided for the “building and construction” of distribution lines. Section five of the ordinance, however — which section specifically directed what should be submitted on the ballot — provided for the submission of two propositions, namely, the “construction and purchase of distribution lines.” These two propositions, however, were not separately stated and numbered on the ballot. The city reminds us the title of the ordinance should be considered as well as section one of the ordinance, and that the title provided not only for the construction, but also for the purchase, of distribution lines. It contends the ordinance, the proclamation and the ballot should be construed together, and that they are substantially the same. We do not think they are substantially the same. Moreover, the contention, if it were sound, would not relieve the city from the effect of having improperly submitted two propositions on the ballot without having given the electors an opportunity to vote for either as against the other. Did the electors vote to purchase or to construct transportation lines? Did some of them vote to purchase and did others vote to construct these lines? Frankly, we do not know. Plaintiff contends:
“No one can tell what those words really mean. One voter may well have intended by his affirmative vote to authorize the governing body either to purchase or construct distribution lines as in its judgment should be done. Another voter by his vote may well have intended to buy the existing lines and construct additional lines as extensions of the present lines, while another voter might have intended to purchase materials and construct an entirely new line. The ballot was ambiguous and misleading.”
It seems to us the contention is sound. Appellee urges for our consideration Thomas v. Covell, 119 Kan. 684, 240 Pac. 574; Pitts-burg Board of Education v. Davis, 120 Kan. 768, 245 Pac. 112; State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618, and Robertson v. Kansas City, 143 Kan. 726, 56 P. 2d 1032. We have again reviewed those decisions and do not find them in conflict with the views herein expressed. Some of those cases were discussed in the Eureka case, and still others in the El Dorado case. Touching, however, the McCombs and Robertson cases, it is well to bear in mind that the proposition submitted in each of them was held to be essentially single in character, a fact clearly disclosed in each of those opinions. It cannot, of course, be seriously contended that the methods of acquiring distribution lines by “purchase” and by “building and construction,” are anything other than two separate and distinct methods of acquisition. The method of acquisition would be one or the other, and not both.
Both parties have cited cases from other jurisdictions. They have been noted, but a discussion of them is not deemed necessary in view of our own previous pronouncements on the principle involved in the instant case. The demurrer to the petition was improperly sustained and the ruling is hereby reversed.
Coupled with the demurrer the city joined a motion to dismiss the action for want of equity. This action was brought timely and before the bonds were issued. That an entirely different situation is presented from the standpoint of equities where an action is instituted without unnecessary delay, as in the instant case, than where a party is dilatory in presenting his complaints and the rights of third parties have intervened, has' been clearly recognized in our previous decisions. (Board of Education v. Powers, supra, p. 669, and cases there cited.) Here the action was instituted promptly, the petition stated a cause of action, an appeal was perfected immediately, and the ruling sustaining the motion to dismiss is reversed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for divorce brought by the husband. The divorce was granted to the wife on her cross petition. She was given the custody of her minor son, six years of age, and plaintiff was ordered to pay $25 per month for the child’s support. She also was given alimony in the sum of $7,500, to be paid $75 per month. These payments and judgments were specifically decreed “to be a lien upon all of the property, assets and earnings of the plaintiff,” and it was further “decreed that all parts, payments or installments of this decree and judgment, not paid when due, shall bear interest from the date payable at the rate of (8%) percent per annum.” Defendant has appealed.
Appellant first complains that the court did not award her specific property. The pertinent portion of the applicable statute (G. S. 1935, 60-1511) reads:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife . . . shall be allowed such alimony as the court shall think reasonable, . . . which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable.
Under this statute it was within the sound judgment and discretion of the court whether the alimony should be decreed in property or in money. Appellant’s specific complaint is that the court did not give her the home, which was the only real property involved. With respect to that, plaintiff testified it cost $1,900; that he borrowed the money to buy it, and had not repaid the debt. The record tends to show the court had in mind the possibility of an action by the creditor to subject this property to sale for the payment of the purchase price, having in mind our constitutional provision (art. 15, § 9) and some of our decisions bearing on that question, such as Foster v. Bank, 71 Kan. 158, 163, 80 Pac. 49, and Bank v. Pickering, 111 Kan. 132, 135, 205 Pac. 1110. By the decree appellant was given a lien upon this and all other property of plaintiff. Whether this lien was superior to any claim for the purchase price of the property we cannot now determine. There is nothing in this record to indicate appellant is not in as good a position with respect to this property as she would have been if it had been given to her as a part of the alimony.
Appellant contends the court erred in not taking into consideration the husband’s past conduct and the possibility of his future as well as his present earnings in determining alimony, and a number of our cases are cited, such as Francis v. Francis, 108 Kan. 220, 221, 194 Pac. 641; Mann v. Mann, 136 Kan. 331, 334, 15 P. 2d 478; Landers v. Landers, 138 Kan. 538, 27 P. 2d 231, holding that these are matters which a court may take into consideration in determining the amount of alimony. There is nothing in the record indicating the court did not take these matters into consideration, unless it is this: After defendant had introduced evidence to establish grounds for divorce against plaintiff he conceded the divorce should be granted to her, and virtually conceded that all of appellant’s allegations in her cross petition should be taken by the court as fully established. In this situation the court stated further evidence on that branch of the case need not be produced, and some witnesses defendant had called in support of those allegations were not used. We think there was no error in this respect.
Appellant complains of the amount of alimony allowed. Plaintiff’s business appears to have been that of a salesman for a manufacturing company. At defendant’s request an auditor had been employed to ascertain his earnings and his interest in the business. He had some difficulty in making a report as accurately as he would • like to have made it. There was conflicting evidence respecting plaintiff’s interest in the business and his earnings. In his brief counsel for appellant makes a computation from the evidence to the effect that plaintiff’s worth at the time of the trial was slightly less than $10,000. This includes the estimated value of a used car, concerning which we find no evidence in the record, and also commissions drawn by defendant, a part or all of which the evidence tended to show had been consumed, and did not make a deduction of $1,900 which plaintiff testified he still owed for the purchase price of the home. From reading this record it would appear that the amount of alimony equaled or exceeded plaintiff’s worth at the time of the trial. The amount to be allowed for alimony was not only within the jurisdiction of the trial court, but within its sound judicial discretion. Several hearings had been had in the case, the court was thoroughly familiar with it — much more so than it is possible for this court to be — -and we find no reason to say that the amount allowed was so small as to indicate that the court abused its discretion.
Appellant complains that she was not given the custody of another son, more than fourteen years of age. Her counsel concedes that for her own good and the welfare of the younger son this boy should not be in the actual care of the mother; but it is argued plaintiff is an unfit person to have the custody of the boy, and that the court should have given such custody to appellant with a provision that plaintiff pay her enough to maintain him at a military academy or some other school. That, too, was within the sound discretion of the trial court.
On the whole, we find no error in the case. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order overruling defendants’ demurrer to plaintiff’s petition. The question involved is the constitutionality of chapter 186 of the Laws of 1933. The title and first two sections of this statute read as follows:
“An Act relating to fees and salaries of certain county officers, employees and other persons therein named, for the ' time, term and emergency herein provided.
“Be it enacted by the Legislature of the State of Kansas:
“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.
“Sec. 2. That all officers herein mentioned in all counties of this state shall receive for their services the compensation herein allowed, and no other fees, mileage, salaries, commissions, perquisites, costs or other things of value of any kind or nature whatsoever unless specifically allowed them by the terms of this act.”
These are followed by a number of sections fixing the fees and salaries of county officers, the amount they shall be allowed for deputy hire, and, with respect to sheriffs, the amount they shall charge for the services required by law to be performed by them, and the mileage to be charged by them in the performance of their duty. The act does not purport to amend or repeal prior existing statutes with respect to the fees and salaries of county officers and the amounts to be charged by them for their services. Generally speaking, it reduced the compensation of county officers for the time the act was to be in effect from that provided by the general statutes (R. S. 28-101 et seq., as amended) relating to fees and salaries.
Plaintiff alleged that he was sheriff of Reno county, Kansas; that his salary under the general statutes relating to fees and salaries at the time of the enactment of chapter 186 of the Laws of 1933, was at the rate of $3,499.92 per year, and that he was entitled to mileage at the rate of ten cents per mile; that for the months from April to December, 1933, defendants refused to pay him salary at that rate, but paid him at the rate of $2,800 per year, and for his mileage at the rate of five cents per mile, as provided in chapter 186 of the Laws of 1933; that chapter 186 of the Laws of 1933 is void as being in violation, (1) of section 10 of article 1 of the constitution of the United States; (2) of section 7 of article 15 of our state constitution; (3) of section 14 of article 2 of our constitution; and (4) of section 16 of article 2 of our constitution. He sued for $524.94, being the difference in salary under the two statutes for the months from April to December, 1933, and for an additional sum for the difference in mileage.
Defendants demurred to the petition on the ground and for the reason that it does not state facts sufficient to state a cause of action. The trial court overruled the demurrer upon the sole ground that chapter 186 of the Laws of 1933 is in violation of section 16 of article 2 of our constitution.
We shall speak of the parties as they appeared in the trial court. In this court plaintiff does not contend the statute in question should be held void as being in violation of section 10 of article 1 of the federal constitution, or of section 7 of article 15 or of section 14 of article 2 of our state constitution, hence, these contentions originally made by plaintiff may be regarded as having been abandoned. Indeed, it is at least tentatively conceded by plaintiff that his original contentions on these points previously have been decided adversely to him. Plaintiff argues, however, that the trial court correctly held the statute to be in violation of section 16 of article 2 of our constitution, which, so far as here pertinent, reads as follows:
“. . . and no law shall be revived or amended, unless the new act contain the entire act revived or the section or sections amended, and the section or sections so amended shall be repealed.”
It is argued that since the act in question does not specifically repeal previous existing sections of the statute relating to fees and salaries it fails to comply* with the above-quoted section of our constitution and is therefore invalid. The point is not well taken. Statutes may be repealed by implication (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009). Such repeals do not come within the purview of section 16 of article 2 of our constitution. (State, ex rel., v. Cross, 38 Kan. 696, 700, 17 Pac. 190.) But we do not predicate our decision upon the doctrine of repeal by implication. The statute in question was not intended or designed to repeal existing statutes on fees and salaries, or any other statute. It was enacted as a temporary measure for “a term and emergency herein provided” (as the title states) and for a time “commencing April 1, 1933, and ending March 31, 1935,” as provided in section 1 of the act. Its purpose was to supersede for the time stated the general statute relating to the subject covered by the act, and was not designed to repeal it. The section of the constitution above quoted does not prohibit that class of legislation.
It is familiar law under our form of government that originally all governmental powers were vested in the people; that they surrendered a part of such powers by delegating them to the federal government when it was organized, hence, the federal government, by its constitution, is one of granted or delegated powers; that all governmental powers not so granted or delegated to the federal government were retained by the people of the respective states; that in the formation of state constitutions the people sometimes restricted the exercise of their own governmental powers in certain respects, and that the people of a state now have and may exercise all governmental powers not delegated to the federal government and in the exercise of which they have not restricted themselves by the terms of their own constitution. Among the general governmental powers retained by the people, and to be exercised by them through their legislatures, is the power to enact, amend and repeal statutes (12 C. J. 805) and to suspend for a time the operation of statutes previously enacted. In 2 Cooley’s Constitutional Limitations, (8th ed.) p. 809, (7th ed.) p. 558, it is said:
“The legislature may suspend the operation of the general laws of the state ; but when it does so the suspension must be general, and cannot be made for individual cases or for particular localities.” (Citing cases.)
See, also, the same author, page 232: “The suspension of a statute is a legislative act.”
In 59 C. J. 940 it is said:
“The suspension of a statute means a temporary stop for a time. It is a legislative act, unless based on some condition, contingency, exigency, or state of facts, declared by legislative enactment to be sufficient to warrant suspension by an executive or administrative body whose duty it is to execute or administer the law suspended; and ordinarily the legislature alone has the power to suspend the operation of a law, ... In exercising its power of suspension, the legislature must make the suspension general. The suspension may be either express or implied. When it is not express, but only implied, it must be inferred from necessity. An act suspended for a fixed period of time becomes effective automatically, and without reenactment, on the expiration of that period.”
The confusion which might arise from suspension of statutes has been recognized by the framers of the constitutions of some states. In Massachusetts, article 20 of the declaration of rights reads:
“The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”
For construction of this, see In re Opinion of the Justices, 286 Mass. 611, 191 N. E. 33. Similar provisions are found in the constitutions of Maine (Declaration of Rights, § 13), New Hampshire (Bill of Rights, art. 29), Ohio (Bill of Rights, §18), Vermont (Declaration of Rights, art. 15), and perhaps in some other states. These declarations, however, do .not differ materially from the principles of law stated by Cooley, and in 59 C. J., above quoted. Our constitution contains no specific declaration respecting authority to suspend laws, hence contains no restriction on such action, and the question in this state is governed by the general rules of law above quoted.
The time a statute is in force may be limited at the time it is enacted by fixing a date, event, or circumstance for its termination (26 A. & E. Ency. of Law, 2 ed., p. 534), and when the time so limited expires it ceases to operate (Id. p. 715). See, also, 1 Lewis’ Sutherland Statutory Construction, 2d ed., §244; 25 R. C. L. 765. When an act expires by its own limitations the effect is the same as though it had been repealed at that time. (25 R. C. L. 932.) In Cassell, Etc., v. L., H. & P. T. R. Co., 10 Ky. Law Rep. 486, 9 S. W. 502, it was held that the repeal of a suspending act forthwith restores the operation of the suspended act. The suspended act, of course, is not repealed. (26 A. &. E. Ency. of Law, 2d ed. 715.) We need not examine other cases bearing upon the question; they are collected in the American Digest under “Statutes,” sections 171 to 173.
Our own decisions recognize the principles above discussed. In 1895, to relieve the work of the supreme court, the legislature created the court of appeals. The act creating it (Laws 1895, ch. 96) provided the court should expire on the second Monday in January, 1901 (§ 17), and gave the court exclusive appellate jurisdiction from the final judgment of district courts in civil actions where the value or amount involved did not exceed $2,000, and in some other cases (§9). Effective March 22, 1901, the legislature enacted a statute (Laws 1901, ch. 278), specifically restoring to the supreme court appellate jurisdiction in all the classes of cases had by the court of appeals under the act creating it (Laws 1895, ch. 96). In an action tried in the district court final judgment was rendered for plaintiffs for $250 on January 26, 1901. It will be noted this was after the expiration of the court of appeals and before the effective date of the act restoring appellate jurisdiction in that class of cases to the supreme court. Defendant undertook to appeal to the supreme court. A motion to dismiss the appeal was denied. In Railway Co. v. Morris, 65 Kan. 532, 70 Pac. 651, the court held:
“By the act of February 27, 1895 (Laws 1895, ch. 96), the general provisions of the statute then in existence conferring jurisdiction on the supreme court were not repealed, but suspended during the existence of the courts of appeals, and immediately upon the expiration of the courts of appeals such provisions became operative again.”
This ruling was specifically followed and approved in Bank v. Harding, 65 Kan. 655, 657, 70 Pac. 647, and in Johnson v. State, 66 Kan. 111, 113, 71 Pac. 267. The rule there announced is particularly fitting here. Chapter 186 of the Laws of 1933 did not repeal the general statutes relating to fees and salaries (R. S. 28-101 et seq., as amended), but simply suspended them, and immediately upon the expiration of that act on March 31, 1935, the general statutes pertaining to the fees and salaries of county officers again became operative. We have several other cases in which the legal principle involved has been applied. (State v. Thomas, 74 Kan. 360, 366, 86 Pac. 499; State v. Prather, 84 Kan. 169, 112 Pac. 829; State, ex rel., v. City of Wichita, 100 Kan. 399, 406, 164 Pac. 290; Great Western Portland Cement Co. v. Public Service Comm., 121 Kan. 531, 532, 533, 247 Pac. 881; Lemen v. Kansas Flour Mills Co., 122 Kan. 574, 576, 253 Pac. 547; State, ex rel., v. Rural High-school District, 126 Kan. 166, 267 Pac. 2; Crawford County Comm’rs v. Radley et al., 134 Kan. 704, 707, 8 P. 2d 386; Putnam v. City of Salina, 136 Kan. 637, 641, 642, 17 P. 2d 827; Kansas City S. Rly. Co. v. Cherokee County Comm’rs, 138 Kan. 534, 537, 27 P. 2d 220.)
We deem it unnecessary to analyze these in detail. It is sufficient to point out that our own decisions are in harmony with the principle of law respecting the suspension of statutes hereinbefore described. They are in harmony with the ruling of the supreme court of Ohio, construing section 16 of article 2 of the constitution of that state, identical with our section 16 of article 2, which was taken literally from the Ohio constitution. (See Kinsinger v. Bd. of Edn., 101 O. S. 298, 137 N. E. 874.) We are, confident, also, that our conclusion is in harmony with the legislative intent and the common understanding of the people throughout this state. 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. Recognizing that county officials, under normal circümstances, were not overpaid, the legislature did not desire to reduce their fees and salaries permanently, and hence enacted chapter 186 of the Laws of 1933, as a temporary measure, fixing a specific time limit for its operation. It is a matter of common knowledge that it was conformed to for the time it was in effect, and immediately upon its expiration, and since then, county officers have been paid fees and salaries in harmony with the general statutes pertaining thereto. There has been no serious misunderstanding about it, either so far as the legislature, the county officers, or the general public was concerned.
In this court plaintiff has asked us to pass upon the validity of chapter 302 of the Laws of 1933. The record does not disclose that any question concerning the validity of this statute was raised or determined in the trial court, hence the validity of this statute is not before us for determination.
We see no reason to hold the law unconstitutional. Certainly it cannot be said to be in violation of section 16 of article 2 of our constitution. The result is, the judgment of the court below must be reversed with directions to sustain the demurrer to the petition. It is so ordered.
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The judgment of the district court is reversed on authority of Dunn v. Jones, ante, p. 218, 53 P. 2d 918, and the cause is remanded with direction to overrule the demurrer to the petition.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought under the workmen’s compensation act. Hugh McCormick, an employee of Kansas City, a municipal corporation, was accidentally injured on March 19, 1924, while working in a steam-heating plant, which is a part of the water and light department of the city, operated for trade and gain. He was an engineer who assisted in operating the plant which was some distance away from the city hall, and from which steam was furnished to heat the city hall and the fire department. At the close of plaintiff’s evidence the defendant filed a demurrer against it upon the ground that the plant in which the plaintiff was working was maintained to furnish heat to the officers and employees occupying the city hall who were there engaged in the governmental functions of the city, and that the case did not come within the compensation act. In considering the demurrer the court reviewed the evidence produced by plaintiff and made the following findings of fact:
“The defendant, Kansas City, Kan., is a municipal corporation, and that as such defendant owns, maintains and operates a water and light department, and is engaged in connection therewith in business trade and gain; that it manufactures, furnishes light and power to the citizens of Kansas City, Kan., and receives pay for said service; that it furnishes heat, light and power to various manufacturing plants and establishments operating in said city and receives pay for said services.
“The court further finds, that on the 19th of March, 1924, the plaintiff was in the employ of the said defendant; that he was running an engine in the boiler room, maintained and operated by the defendant at Sixth street and Armstrong in Kansas City, Kan.; that said boiler room was maintained by said defendant for the purpose of furnishing heat to the city hall in Kansas City, Kan.; that the city water and light department maintained its main office in said city hall; that' the water and light bills for water and light service furnished by the defendant are paid at the office in said city hall; that the commissioner of the water and light department is housed in the city hall; that in the basement of the city hall the said water and light department keep a large amount of the supplies of said department, the water meters are kept and repaired there, the light bulbs, wires and supplies are kept at said place and are sold by the city to purchasers at said place; the water and light department keep trouble men in the basement, to make repairs upon various appliances in the water and light department in said place and for the purpose of going out on calls to the various parts of the city to make repairs in connection with said department; that the basement is heated from the boiler room in which the plaintiff was working while in the employ of the defendant.
“The court further finds that on the aforesaid date, to wit: the 19th of March, 1924, the plaintiff while shoveling coal from the upper deck in said boiler room was caused to slip and fall and receive a serious injury, which caused him to be totally incapacitated for all time-; that he suffered said injury by accident growing out of and in the due course of his employment.
“The court further finds that after the plaintiff’s injury he made all necessary, due and legal demands upon said city for the payment of compensation.
“The court further finds that after the plaintiff was injured as aforesaid that the defendant paid him his full wages from the date of his injury up to the 15th of June, 1924, and thereafter paid him one-half of his wages until the 15th of October, 1925, and paid the plaintiff’s hospital bill; in all, the defendant' paid him the sum of sixteen hundred seventy-five dollars ($1,675).
“The court further finds that prior to the bringing of the aforesaid action the plaintiff consented to an arbitration of his claim, and the defendant refused to arbitrate.
“The court further finds that if plaintiff had been entitled to recover under the workmen’s compensation act of Kansas, that he should recover for total incapacity amounting to sixty-two hundred, twenty-five dollars ($6,225), less the sixteen hundred seventy-five dollars ($1,675) already paid him, or the sum of forty-five hundred fifty dollars ($4,550), but the court found that at the time plaintiff was injured he was not working under and subject to the terms of the workmen’s compensation act of Kansas, and was not entitled to recover compensation for said injuries, and for that reason the plaintiff is denied a recovery.”
The demurrer was sustained and judgment was rendered for the city.
The facts fairly raise the legal questions argued by the plaintiff, to wit: That the work in which the plaintiff was engaged was hazardous in its nature and was service for a department of the city engaged in business for trade and gain, which fairly brings the claim of plaintiff within the provisions of the compensation act. He contends that the work was directly and intimately connected with the water and light department so that it became a part of it. There is the further contention that the transactions between the plaintiff and the defendant city amounted to an agreement to be governed by-the terms of the workmen’s compensation act, the defendant having paid plaintiff for eighteen months under the terms of the act.
Proceeding to the consideration of the question involved in the case, we come first to the concession that the city through the water and light department is engaged in the exercise of its proprietary functions, in that it manufactures and furnishes to its citizens and customers light and power, and receives pay for the services rendered, and also furnishes heat, light and power to various manufacturing plants for compensation. It is therefore conducting employment for business, trade and gain within the meaning of the statute (R. S'. 44-505), and is liable for compensation to injured employees if the plaintiff comes within the class protected by the statute. There can be no question, either, that the work being done by the plaintiff when injured was hazardous in its nature, and that he is entitled to the protection of the act if his relation to the proprietary functions exercised by the city brings him within the scope of these functions. It is contended that the relationship is not sufficiently close to justify him in claiming compensation. It is said that the boiler plant in which he was working was used only to furnish heat to officers and employees of the city housed in the city hall, and in that respect the city was only exercising a governmental function, and cannot be regarded as carrying on a trade or business for gain, and therefore the workmen’s compensation act does not apply. It is probable that the greater part of the heat furnished from the boiler plant in which plaintiff was employed was used for the benefit of officers and others conducting the governmental functions of the city, but it is clear that a real and substantial part of it was used for the benefit of those engaged in carrying on the proprietary functions of the city. As the findings of the court show, the main offices of the water and light department which was conducting a business for gain were in the city hall, where the accounting was done and all bills for water and light sold to customers were paid. The commissioner in special charge of that department kept his office in the city hall. The department kept a large amount of the supplies in the building, as well as a shop to repair water meters used in the proprietary business of the city. In that building the department kept a stock of light bulbs, wires and like merchandise which the city sold to customers coming to its market. A number of employees of the department, designated as trouble men, were housed in the building, who were engaged in making repairs on the water and light system, which was conducted for profit when trouble or need of repairs on the lines arose, and when calls for help came in they went out and corrected the trouble and made repairs, and thus helped to promote the business conducted for gain. The boiler plant in which plaintiff was working supplied service to all of these officers and employees of the department acting in the proprietary capacity as well as to those performing governmental functions in the city hall. From the undisputed facts the employment of plaintiff was not only an incident of that carried on by the water and light department, but it had a direct and intimate relation to it and was an essential part of the proprietary function of the department. To bring the work within the compensation act, it is not necessary that it should be the principal part of the service of the business of the department. It is enough if the work is so related to the business of the department as to be incidental and appropriate to the carrying on of the entire business. In Smith v. Boiler Works Co., 104 Kan. 591, 180 Pac. 259, a compensation case, an employee who was a night watchman in a boiler factory was killed by burglars while he was in the performance of his duties. Compensation was sought for a dependent. The employer resisted, claiming that the hazard was not incidental to and did not inhere in the operation of a boiler plant. In deciding the case the court said:
“Regarding for the moment the operating of machinery as the acme of the employment, all that combines to make it such, everything integrated with it essential to effective functioning — other conditions being fulfilled — is included in the hazard.” (p. 593.)
The principle, it was said, was illustrated by a New York case where a drug company was engaged in the hazardous business of manufacturing drugs and chemicals. An employee of the company who acted as porter, elevator man, and as general handy man about the premises, was injured while acting as a carpenter in building a shelf near an elevator well. It was contended that this work, although incident to the employment and necessary to carrying on the business, was not so immediately connected with the hazardous characteristic feature of the business as to make it compensatory. In meeting this contention the court said:
“We -feel perfectly secure, however, in holding that where, as in this case, an employee is injured while performing an act which is fairly incidental to the prosecution 'of a business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the precise and characteristic process or operation which has been made the basis of the group in which employment is claimed.” (Matter of Larsen v. Paine Drug Co., 218 N. Y. 252.)
It is not essential to a recovery that the work of plaintiff should have been independent of and unconnected with the performance of governmental functions. In the course of the opinion in Todd v. Drainage District, 109 Kan. 754, 201 Pac. 1096, it was said:
“So the nonperformance by a city of a class of duties described as ‘ministerial’ is held to constitute actionable negligence, even though such duties are connected with the performance of governmental functions.” (p. 757.)
The question was dealt ivith in Wendt v. Industrial Insurance Commission, 80 Wash. 111, where a company operating a department store had employed a carpenter to make shelving and alterations and repairs in the store. The store, although not of itself a hazardous business, had in connection therewith a repair shop with some tools and machinery operated by an electric motor maintained by the company. The employee turned on the power to run a grindstone so that he might sharpen a chisel, and a high voltage passed through his body and killed him. The main business of the company was the operation of a store, but it operated the shop in which machinery was employed that rendered it hazardous. The defendant insisted that the plaintiff could not recover unless it was shown that the company was engaged in extra hazardous work in respect to the whole business or of some department thereof. The court said:
“If we could so construe the act that the extra hazardous character of the employer’s business was to be determined by the business he was principally engaged in, we might accept the finding of the commission; but the act, as we have seen, recognizes the fact that the same employer may conduct different departments of business, some of which fall within the act, some of which do not. And in this connection it matters not which is the principal business and which is the incidental business. If the employer conducts any department of his business, whether large or small, as an extra hazardous business within the meaning and defined terms of this act, his workmen would come within the class designated by the act, and be entitled to the protection of the act. Such interpretation, we believe, falls within the letter as well as the spirit of an act that, because of its humaneness and declaration of a new public policy, should be interpreted liberally and broadly, in harmony with' its purpose to protect injured workmen and their dependents independent of any question of fault.” (p. 117.)
The Washington act differs in some respects from our own, but the principle stated applies here. See, also, Phillips v. Kansas City L. & W. Rly. Co., 126 Kan. 133, 267 Pac. 4; State v. Business Property Security Co., 87 Wash. 627; Cox’s case, 225 Mass. 220; Matter of Fogarty v. Nat. Biscuit Co., 221 N. Y. 20; Matter of McNally v. Diamond Mills Paper Co., 223 N. Y. 83; 1 Schneider on Workmen’s Compensation Law, 246.
The question whether a part is so related to other parts as to constitute and be regarded as an entity is illustrated by the cases where cars going from one point in the state to another point in the same state are placed in a train consisting largely of interstate cars, and the question was whether a brakeman killed in coupling the cars onto the train was engaged in interstate commerce. It was held that he was so engaged, that such commerce could not be separated into its several elements and the nature of each determined regardless of its relation to others, but should be considered as to the relationship and bearing of the acts upon interstate commerce. (Thornbro v. Railway Co., 91 Kan. 684, 139 Pac. 410, and cases therein cited.)
We think the work in which the plaintiff was engaged in the boiler plant was so directly connected with the operation of the water and light department and the prosecution of the business as to bring his claim within the compensation act. The defendant cites Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43, as an authority against the allowance of compensation, but that case is clearly distinguishable from this as to the character of employees involved. There the employer could not be regarded as within the act unless it was shown that fifteen persons were employed in the plant, and this number could not be regarded as so employed unless mere clerical officers in the office of the city clerk should be counted. It was held that they could not be counted as employees of the plant, and hence compensation was denied.
The trial court found that if plaintiff was entitled to compensation he should recover for total incapacity amounting to $6,225, less the amount already paid to him, which was $1,675, to wit: the sum of $4,550.
It follows that the judgment of the court must be reversed and the cause remanded, with directions to enter judgment for the plaintiff in the sum of $4,550, with the interest due thereon. It is so ordered.
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The opinion of the court was delivered by
Dawson, J.:
This appeal questions the validity of proceedings relied on by plaintiffs to keep alive a judgment entered in their behalf against the appellant in 1912.
The action was brought by plaintiffs to recover on certain promissory notes for the • aggregate sum of $660 executed by defendants, Andrew Perry, Silas T. Perry and the present appellant Emily Ebright Willis. The two Perrys defaulted and on May 21, 1912, judgment was entered against them. Appellant appeared by counsel, who consented that judgment might be entered holding her jointly liable with the two Perrys for the amount of the judgment, $660, and judgment was rendered accordingly on May 25, 1912, four days after its rendition against her codefendants.
On March 7, 1913, defendants paid $200 on the judgment.
On September 2, 1918, plaintiff filed a motion for an order reviving the judgment. Notice was served on defendants and on October 21, 1918, the order of revivor was granted. On September 2, 1922, an execution was issued on the judgment, which was returned with the sheriff’s entry thereon, “No goods . . . No property found to levy on in Republic county.”
On February 27, 1928, plaintiffs applied for another order of revivor. This application was resisted by this appellant on the ground that the proceedings pertaining to the first revivor of the judgment on October 21, 1918, were invalid and because the execution issued pursuant thereto on September 2, 1922, was void. These objections were overruled and the order of revivor was granted May 8, 1928.
Emily Ebright Willis appeals, and her first point is that there were two judgments entered in the action in 1912, one against her codefendants on May 21, 1912, and another against herself on May 25, 1912. From this premise she argues that the subsequent proceedings to keep alive the judgment against her were ineffectual since there was no separate execution issued thereon. We think not. There were not two judgments. There was but one cause of action based upon one joint liability of defendants and but one final determination of the rights and liabilities of all the parties thereto. (R. S. 60-3101.) Those rights and liabilities were defined in one judgment, and the fact that part of that final determination was reached on May 21 and part on May 25 is of no consequence. This court has even gone so far as to declare that a single execution may issue on two wholly unrelated judgments rendered in separate actions where the parties concerned were identical. (Dugan v. Harman, 80 Kan. 302, 102 Pac. 465.)
A more serious question raised by appellant concerns the validity of the execution issued in 1922. It was inaccurate in several particulars. It recited that the judgment which the execution sought to satisfy was entered on October 21, 1918, which was the date of the first order of revivor, not the date of the judgment itself. It also recited that the total judgment of $660, interest and costs remained unsatisfied when, in fact, $200 had been paid on the judgment in 1913. Appellant contends that the recitals in the writ were too inaccurate to identify the execution process with the judgment of 1912, and that the sum named in the process to be collected was so grossly excessive that its issue and the sheriff’s perfunctory return thereto were insufficient to keep alive the judgment of 1912. Appellant cites respectable authorities in support of both these contentions, but the consistent attitude of this court over a long period of years has been that where there is no special reason for strict formality of procedure the existence of irregularities therein does not render void the judicial processes by which parties endeavor to maintain their rights. On this subject see the concurring opinion of Mr. Justice Mason in Dugan v. Harman, 80 Kan. 302, 305, 307, 102 Pac. 465.
How would the due administration of justice be furthered by a strict construction of the recitals of the execution of 1922? How is justice perverted by a liberal interpretation of that execution? Appellant has owed this debt since 1912. Aside from a payment-of $200 in 1913 appellees have waited all these years to receive that which has been adjudicated in their behalf. They have endeavored in good faith to keep their judgment alive. The erroneous recital in the execution touching the.date of the judgment did not mislead appellant. She knew the date quite well. It was not suggested at the proceedings below, nor here in review, that the number and caption and other means of identification provided by the files of the district court left any room for doubt that the execution process of 1922 pertained to that judgment of 1912. There is no hint anywhere that it might pertain to some other judgment between these litigants or between appellant and some other judgment creditor. In 23 C. J. 406 it is said:
“An execution should recite the date of the judgment. It is proper to recite the judgment as of the date of its rendition notwithstanding the subsequent amendment of the judgment nunc pro tunc. . . . By the strict rule that used to prevail a misrecital as'to the term in which a judgment was rendered made the writ void. The modern rule, is part and parcel of the general rule that if the judgment can be clearly identified mistakes in its recital will not vitiate the writ, that is so long as the judgment may be identified a mistake in the date of its rendition, or even an omission of the date, does not make the execution void, but such mistake or omission is a mere irregularity.”
Touching the want of accuracy in the execution process as to the amount due on the judgment and its failure to show the payment of $200 made thereon in 1913, this court declines to hold that this inaccuracy and noncompliance with the statute (R. S. 60-3406) vitiated the process. The execution was fruitless because returned nulla bona, but even if goods or other property of the defendants had been seized and sold under its terms the process could not have been deprived of all its validity because of the excess. The 'incident would merely have furnished a basis for its correction by the court on timely application of the judgment debtor. Such was the ruling in Bogle v. Bloom, 36 Kan. 512, 13 Pac. 793. See, also, St. L. & S. F. Rly. Co. v. Rierson, 38 Kan. 359, 16 Pac. 443.
The judgment is affirmed.
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'The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of violating the prohibitory liquor law.
There was evidence substantially to this effect: That about dark on the evening of July 25, 1928, the defendant was seen at the intersection of a street and alley in Wellington, under circumstances indicating that something had been left in the alley; that a search was instituted and a quart bottle of liquid found which bore the appearance of whisky; that the defendant came, smelled the contents of the bottle, said it belonged to him, that it was medicine and that he had put it there (it was found under the frame of an old automobile); that the defendant was taken into custody by a deputy sheriff; that he was surrendered to the sheriff, who placed him in jail, where he was held until the next day when the deputy sheriff who had arrested him swore to a complaint charging him in two counts with possession and transportation of intoxicating liquor; that the bottle and its contents were preserved and introduced at the trial; that it had the appearance of and smelled like whisky, and that it also smelled as if it had been treated with some other ingredient.
The defendant contends (first) that his arrest was void for the reason that the deputy sheriff had no warrant for him at the time of arrest; (second) that the proceedings were illegal because the complaint was filed and warrant issued and served on him while he was unlawfully held in j ail, and (third) that the arresting officer did not have personal knowledge of facts necessary to constitute the offense charged against the defendant. These contentions are without substantial merit because it appears that the defendant was first tried and convicted in the court of a justice of the peace on complaint sworn to by the arresting deputy sheriff and a warrant duly executed and served upon the defendant, based upon such complaint. The first count of the complaint charged possession of intoxicating liquor. The second count, as originally filed, and to which objection is made, reads:
“And A. J. Turner, being duly sworn, deposes and says that for a second further and different count, that on or about the 25th day of July, 1928, in Sumner county, Kansas, one Loren Beard did then and there unlawfully transport certain intoxicating liquors from one place to another within the state of Kansas, to wit, from the south end of the alley running north and south between Fourth and Lincoln streets and C and B streets, city of Wellington, Sumner county, Kansas. A. J. Turner.
“Subscribed and sworn to before me this 26th day of July, a. d. 1928.
A. W. Lynn,
Justice of the Peace.’’
The warrant was drawn to correspond to the complaint. At the beginning of the trial in the district court the county attorney asked leave to amend the complaint by inserting, after the words “Sumner county, Kansas,” the words "thence north into said alley.” Covering this phase of the proceeding, the journal entry reads:
“The court, being well and truly advised of all the facts in the premises, finds that this is an appeal case from the justice court and that said defendant was there apprised fully of the charge against him, and that said amendment is a matter of form and not of substance and will not work a surprise nor prejudice the rights of said defendant in any way; that the same should be and is hereby allowed and the county attorney is authorized and is permitted to so amend the complaint; thereupon the complaining witness, A. J. Turner, resigns and reverifies the amended complaint and the same is refiled.”
The amendment was permitted in accordance with that provision of the statute which reads:
“The district or criminal court shall hear and determine any cause brought by appeal from a justice of the peace upon the original complaint, unless such complaint shall be found insufficient and defective, in which event the court at any stage of the proceedings shall order a new complaint to be filed therein, and the ease shall proceed thereon the same in all respects as if the original complaint had not been set aside.” (R. S. 63-402.)
It is perfectly apparent that if the district court had the power to order a new complaint filed “at any stage of the proceedings," it had the power to permit the amendment in question to be made. It may be observed, however, that the original complaint was not insufficient. It was alleged therein that the defendant “did then and there unlawfully transport certain intoxicating liquors from one place to another within the state of Kansas.” This allegation was sufficient without any further specific statement of transportation.
Complaint is made of various trial errors. Some eight assignments of error with argument and citations of authorities in support thereof have been considered but cannot be sustained and do not warrant elucidation.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by M. F. Gatton to subject a ten-acre tract of land in Shawnee county to payment of a judgment. The judgment was one in plaintiff’s favor and against P. M. Harmon. The record title to the land stood in the name of Katherine Medlock. Plaintiff was defeated, and appeals.
In September, 1926, plaintiff recovered a judgment for $1,000 against Harmon in the district court of Shawnee county. Harmon owned a half interest in an apartment house in Manhattan, and in October, 1926, plaintiff perfected a judgment lien on that real estate. Harmon traded his interest in the Manhattan real estate to R. Hart for the Shawnee county tract. The trade was consummated on July 13 or 14,1927. The Manhattan real estate was subject to mortgage, tax, and other liens. There was evidence that in the negotiations resulting in the trade, Hart agreed to satisfy plaintiff’s lien on the Manhattan real estate, but the deed to Hart was not made that way. It recited that the conveyance was subject to the liens.
The counter abstract recites that the deed of the Shawnee county land was taken in the name of Harmon’s daughter, Katherine Med-lock. The recital is incorrect. Hart executed, acknowledged and delivered to Harmon a deed of the Shawnee county real estate, blank as to grantee. Some time afterward Harmon filled the blank space by inserting the name of Katherine Medlock. The deed was filed for record on September 17, 1927. There was evidence sufficient to sustain a finding that Katherine Medlock purchased for value.
In October, 1927, Hart paid plaintiff $100, and plaintiff delivered to Hart a release of the judgment lien on the Manhattan real estate. The release reserved judgment lien on other land of the judgment debtor and the judgment creditor’s rights against the judgment-debtor. The apartment house was in bad repair and heavily encumbered.' Harmon derived no revenue from it, was unable to sell it for money, it had become trading property, and Harmon had only a half- interest in it. But there was some evidence that his interest was of sufficient value to pay the judgment in full.
The court found plaintiff’s judgment against Harmon was not satisfied, but otherwise found generally for defendants, and quieted the title of Katherine Medlock.
Tho counter abstract says Harmon exchanged his interest in the Manhattan property with R. Hart for the Shawnee county property. That was precisely what occurred. The counter abstract further says the exchange occurred on or about September 17, 1927. The statement is incorrect. The exchange was complete when deeds were exchanged in July, 1927. Hart’s deed to Harmon was not effective as a conveyance for lack of name of the grantee, but Harmon nevertheless became owner of the Shawnee county land from the moment the deeds were exchanged. Besides being owner, Harmon had in his possession a deed which he could convert into an effective conveyance by virtue of his power to fill in the name of the grantee. As a matter of fact, pursuant to a practice of real- estate traders, Harmon’s deed to Hart was also blank as t'o grantee, and when the blank deeds were exchanged Hart became owner of Harmon’s interest in the Manhattan real estate, just as Harmon became owner of Hart’s interest in the Shawnee county real estate.
Mrs. Medlock had no dealings with Hart. She purchased of her father. The price had been advanced to her father, and the land satisfied the debt. Harmon might have made a quitclaim deed to Mrs. Medlock, which would have passed title to all the interest he obtained from Hart. (Klopf v. Klopf, 113 Kan. 568, 215 Pac. 827.) Harmon and Mrs. Medlock chose to complete and use the blank Hart deed as the instrument of title, but she took her father’s interest in the land. When Mrs. Medlock took her father’s interest in the Shawnee county land, she took it with constructive notice of the lién of the judgment, and subject to the lien.
’ Mrs. Medlock contends that Hart assumed and agreed to satisfy plaintiff’s judgment; that Hart, therefore, became principal debtor, and Harmon became surety; that plaintiff released his judgment lien on the Manhattan real estate, which was sufficient to satisfy the judgment; and that the release discharged the surety, Harmon. The article on Suretyship in 27 A. & E. Enc. of L., 2d ed., 516, is cited in support of the contention. The text reads:
“If a creditor without the consent of the surety parts with or renders unavailable any security or fund which he has a right to apply in satisfaction of the debt, the surety is exonerated or discharged to the extent of the value of such security or to the extent of the impairment in its value.”
. In the same article may be found the following:
“A further qualification of .the law of discharge to be made in certain cases is found in the rule that the creditor, at the time of entering into an agreement with the principal which would ordinarily discharge the surety, may reserve his rights against the surety and subsequently proceed against him. . . .” (p. 530.)
32 Cyc. 165 is to the same effect, and there is no dispute that plaintiff reserved his rights against Harmon.
In 32 Cyc. 158 appears the following:
“In order that a surety, as such, may be discharged by acts of the creditor or obligee, the latter must have knowledge of the existence of the relation; ...”
Hart did not, in the deed'to him, assume or agree to pay the judgment, and plaintiff derived no information concerning any surety-ship relation from that source. Plaintiff asserts there was no evidence that plaintiff was a party to the agreement between Harmon and Hart, and no evidence that plaintiff had any knowledge of the agreement. The abstract and counter abstract contain no such evidence. The court has read the transcript, and it contains no such evidence. The result is that Harmon was not discharged, and so far as he was concerned, plaintiff was at liberty to collect his judgment from any real estate Harmon owned subject to the lien. So far as Mrs. Med-lock was concerned, she purchased with notice of plaintiff’s judgment lien on the Shawnee county land.
When plaintiff procured payment of $100 on the judgment by Hart, plaintiff took a deed from Hart of the Shawnee county land. Mrs. Medlock says that constituted an election to waive the judgment. Her deed was already on record, and she was not misled or prejudiced. The mere taking of the deed did not, in law or in fact, constitute a waiver of the judgment, and the effect of the testimony on the subject was that the deed was taken to protect the judgment.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for plaintiff.
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The opinion of the court was delivered by
Burch, J.:
The action was one to foreclose a real-estate mortgage. The mortgagee was awarded a first lien, and a defendant holding a mechanics’ lien appeals. The question is whether the court erred in rendering judgment on the pleadings and an agreed statement of facts.
Carleton purchased from the lumber company material which' he used in the erection of a dwelling house. The lumber company filed a mechanics’ lien. Carleton desired to borrow money from the building and loan association, to be secured by real-estate mortgage. The building and loan association required a waiver of priority so that its mortgage would be a first lien. The manager of the building and loan association and the manager of the lumber company discussed the subject, and the required waiver was executed by the lumber company and delivered to the building and loan association. The building and loan association completed its arrangement with Carleton, filed its mortgage for record and paid the proceeds of the loan to Carleton. Carleton failed to pay the lumber company.
The petition of the building and loan association was in the usual form. Carleton defaulted. The answer of the lumber company alleged that the building and loan association agreed the lumber company should be paid from the' proceeds of the loan to Carleton; that the lumber company relied on the agreement when the written waiver was executed; that the agreement constituted the sole consideration for execution of the waiver; and that instead of paying the lumber company the building and loan association wrongfully diverted the funds to other uses. The lumber company pleaded its mechanics’ lien and prayed for foreclosure and a first lien. The reply denied responsibility of the building and loan association for the lumber company’s failure to obtain satisfaction of its lien.
When the case was called for trial the attorneys for the contesting parties presented to the court an agreed statement of facts which was read into the record. The agreed statement of facts recited execution of the loan company’s waiver of priority of lien but contained nothing regarding the circumstances under which the waiver was executed. The building and loan association moved for judgment on the pleadings and the agreed statement of facts. The motion was allowed and judgment was rendered for foreclosure of the mortgage and of the mechanics’ lien. The mortgagee’s judgment was ordered to be paid first out of the proceeds of sale.
Judgment was rendered on November 2, 1927. On November 3 the lumber company filed a motion for new trial. One of the grounds for new trial was that the lumber company was not afforded reasonable opportunity to present its evidence and to be heard on the merits. The motion for new trial lay dormant until a motion to confirm the sale of the real estate, made pursuant to the judgment, was heard on April 9, 1928.- On that day a statement signed by the attorneys for the contesting parties was filed which, after identifying the case and the judgment, read as follows:
“1. That the stipulation filed in this case was intended to cover certain facts only, and that the balance of the facts were to be submitted for1 determination by a jury; that there was no agreed statement of facts purporting to cover all the facts, filed in the case, and that only the stipulation as above stated was filed in the case; that where the journal entry reads agreed statement of facts, is meant the stipulation above described.
“2. That the court sustained the motion for judgment on the pleadings and the stipulation of defendant lumber company, and rejected testimony offered to prove the circumstances under which the waiver was signed by the. Hardman Lumber Company.
“3. That a jury of twelve men were properly impaneled and sworn to try the case, and the defendant Hardman Lumber and Coal Company was ready to make its opening statement to said juiy at the time the motion for judgment on the pleadings and stipulation was filed.”
The motion for new trial was denied, the motion to confirm the sale was allowed, and the lumber company appealed. One of the grounds of appeal stated in the notice of appeal is the following:
“Sustaining the objections of the plaintiff to the introduction of evidence in support of the answer and cross petition of the said Hardman Lumber and Coal Company . . .”
The court was authorized to render the judgment which was rendered unless the agreed statement of facts read into the record at the beginning of the trial was supplemented by evidence defeating effectiveness of the waiver. The agreed statement did not recite that it was limited to certain facts only, and that -the parties were at liberty to introduce evidence respecting subjects not covered by the agreed statement. Execution of the waiver of lien was expressly admitted in the agreed statement without suggestion that effectiveness of the waiver was to be contested by proof of circumstances under which the instrument was executed. The journal entry of judgment does not disclose that the limited character of the agreed statement was brought to the attention of the trial court at the beginning of the trial — the only stage of the proceedings at which the matter was material. The journal entry of judgment does not show that the lumber company asked leave to offer evidence, or that any offered testimony was rejected. At the hearing on the motion for new trial no showing was made by affidavit of witnesses or otherwise of what the lumber company might have proved if it had-offered testimony. The recital relating to rejection of testimony contained in paragraph 2 of the attorneys’ statement filed April 9, 1928, was not in accord with the recitals of the journal of the court. The court knew what occurred at the trial. No motion was made to correct the record, and this court is bound by the record. The result is the motion for new trial was 'properly denied, and the ground of appeal stated in the notice of appeal and noted above has no support in the record.
There is nothing else of importance in the case, and the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the right to- possession of a portion of a levee at Lawrence. Plaintiffs, through their grantors, claim to have had possession of the land in controversy for forty years through a contract with the city of Lawrence executed in 1872; defendants claim, through adverse possession for more than fifteen years, and a license from the city of Lawrence executed in 1923, to operate a sand plant. The plaintiffs sought to enjoin the defendants from entering upon or operating on the land, were defeated and appeal.
The record shows substantially that in 1872 the city of Lawrence leased a portion of the levee situated on the south bank of the Kansas river, from Massachusetts street to New York street (with certain exceptions), to Orlando Darling upon condition that he erect and maintain a dam across the Kansas river, and water power thereon and adjacent thereto. In 1873 this lease was assigned by Darling to the Lawrence Land and Water Power Company. The original lease was modified in some respects in 1875. In 1879 the title and rights of the Lawrence Land and Water Power Company were conveyed to J. D. Bowersock. At that time the dam had been constructed, the water-power machinery installed, a flour mill built, and between that time and 1890 a warehouse, grain elevator and several other buildings had been erected upon the leased property by Bowersock and persons holding through or under him. These buildings, except a small pumping station, were all located east of Massachusetts and west of Rhode Island streets. The tract in controversy is east of Rhode Island street. The plaintiffs, through Bowersock, have since 1908 been occupying the property east of the flour mills and south of the Santa Fe railroad tracks which cross the levee from east to west. There were also constructed and in use by them, for the purpose of securing necessary water, a- pump house and several wells just west of New York street between the Santa Fe and the river bank. These were on the property now in controversy, as were also wires and a pipe line connecting them with the paper plant. In 1912 the plaintiffs moved into a large building erected sometime about 1890 by the Consolidated Barb Wire Company, north of the Santa Fe and just west of Rhode Island street. This they have since occupied with other buildings, in the conduct of their business. In 1915 a concrete pump house was built practically on the west line of New York street on the land in controversy, and is connected with the plant by an underground pipe line and by an electric power line which furnishes power to run the pump. Bowersock died in 1922, his rights passing by will and by agreement to a portion of the levee, including the property in. controversy, to the plaintiffs. The tract claimed by the defendants involves a portion only of that claimed by the plaintiffs. It is a portion of the south bank of the Kansas river north of the Santa Fe right of way, east of the extended east line of Connecticut street and west of the extended west line of New York street. There was testimony showing that various and sundry- parties had intermittently removed sand from the river at or near the vicinity of the property in controversy, during a period of perhaps twenty years, but no question appears to have been raised as to the title claimed under the Darling lease and no substantial adverse possession asserted by anyone previous to the present controversy. The evidence is indefinite, for the most part, as to just where these various parties operated. It may or may not at times have been on the property in controversy, but in any event no connection appears between them and the defendants which could be said to constitute a continuous or adverse possession. On the other hand, during all the time mentioned the holders under the original Darling lease had, by actual construction of buildings and the installation of wells, pipe and power lines, actually and practically used the ground. They installed, repaired and altered these appurtenances to their plants and moved the wells from place to place as the conditions of their business required.
In December, 1924, the defendants began moving materials upon the land in controversy west of New York street for the erection of a tower to be used in removing sand from the river. Attention of the plaintiffs- was drawn to such activity and the defendants were asked to desist. They continued, however, and in January, 1925, another warning was given. The plaintiffs then erected a barbed-wire fence substantially on the west line of New York street extended from the north line of the right of way of the Santa Fe to the concrete pump house above mentioned and from th'ere to the river. Defendants cut this fence and again came upon the land. It was repaired by the plaintiffs and the defendants again threw it down. The plaintiffs sent men to the premises in controversy with instructions to remove the materials and keep defendants off. The defendants interfered forcibly with the removal, and plaintiffs' employees withdrew to avoid a physical encounter. This action was then instituted and the defendants temporarily restrained. Trial to the court resulted in judgment for the defendants.
It is agreed that the title to the land is not in dispute. The de fendants contend that the issue was one of fact, was^ found in their favor on disputed evidence and that the judgment of3 the district court is conclusive; that the Darling lease is void, being a violation of the rule against perpetuities, and that those claiming under the Darling lease failed to comply with its terms and conditions and abandoned it.
We cannot sustain defendants’ contentions. The lease from the city of Lawrence to Orlando Darling which passed to his successors constitutes a color of title under which it appears plaintiffs and those under whom they hold have exercised possession of the land in controversy for many years. Even a void deed is sufficient color of title upon which to base possession of real estate. In 2 C. J. 169 it is said:
“A claim asserted to property under the provisions of a conveyance, however inadequate to carry the true title to such property, and however incompetent may have been the power of the grantor in such conveyance to pass a title to the subject thereof, is strictly a claim under color of title.”
This court has said:
“Although the deed under which he claimed was void, it afforded color of title.” (Goodman v. Nichols, 44 Kan. 22, 29, 23 Pac. 957.)
Under this color of title plaintiffs and those under whom they claim have been in possession of the premises in controversy for more than forty years. The use of the land for wells, pumps, pipe line and electric lines was an actual occupation thereof. Actual possession is a possession of the character required by the nature and situation of the land. (Allaire v. Ketchum, 55 N. J. Eq. 168, 35 Atl. 900.)
“Possession is actual when there is an occupancy according to its adaptation to use.” (Morrison v. Kelly, 22 Ill. 610.)
“By actual possession ... is meant that he shall be in actual use and enjoyment of the land for such purpose as it is capable of and not that he shall be actually present at the time.” (State v. Newbury, 122 N. C. 1077, 29 S. E. 367. See, also, Felber v. Ausenhause, 19 Ariz. 594.)
In the instant case the plaintiffs have for years used the land for such purposes as it was adapted to and as they required in their business. Needing water for their boilers and the manufacture of paper, they caused wells to be driven on the premises, a pump and motor to be installed in a pump house, and proper pipe and electric lines constructed over the premises to the plant. The wells had to be moved and were moved from time to time; the motor and pump and lines required attention. Plaintiffs’ employees must go and did go over the premises to attend to these things. Clearly the use made by plaintiffs of the land in question was such as is adapted to the character of the land, was appurtenant to the plants actually operated by them upon the western portion of the lease, and was of a nature to require a constant dominion over the premises. Moreover, the fence erected by plaintiffs prior to the actual entry of defendants was of itself sufficient to constitute a practical inclosure of the entire tract, and to preserve the actual possession of the plaintiffs. The railroad right of way on the south, the river on the north, the plants of the plaintiffs on the west, and the fence on the east, completely surrounded the land. (See Knowles v. Crocker Estate Co., 149 Cal. 278, 86 Pac. 715; Hammond v. Doty, 184 Ill. 246, 56 N. E. 371.)
“The general rule is well settled that where a person enters, under color of title, into the actual occupancy of a part of the premises described in the instrument giving color of title, his possession is not considered as confined to that part of the premises in his actual occupancy, but that such occupant acquires possession of all the lands embraced in the instrument under which he claims.” (2. C. J. 235. See, also, Goodman v. Nichols, 44 Kan. 22, 23 Pac. 957; Smith v. Gale, 144 U. S. 509, 526.)
The Darling lease and the subsequent transfers cover the entire river bank from Massachusetts street to New York street, and even disregarding the actual use made of the premises east of Rhode Island street, the erection of buildings and operation of plants on the western part of the leasehold established a possession of the whole. We are of the opinion that the plaintiffs are correct in a contention that the defendants attempted a forcible entry. The plaintiffs already had the requisite possession under the lease. The defendants began moving materials on in December, 1924, and persisted after two warnings by plaintiffs to desist. Then plaintiffs erected a barbed-wire fence, which defendants cut and threw down. Plaintiffs repaired the fence and defendants again tore it down. Plaintiffs then sent men to remove the materials and keep defendants off, and were threatened by defendants with force. The mere cutting and throwing down of a fence has been held to be sufficient to constitute a forcible entry. (See Campbell v. Coonradt, 22 Kan. 704, 706; Doty v. Cone, 85 Kan. 1, 115 Pac. 977.) In the latter case this court said:
“It is admitted by the defendant in' his testimony, that shortly before the commencement of the action the plaintiff had the property in controversy in closed with a post-and-wire fence, and that he — the defendant — went upon the land, tore down the fence and took possession of the property. This constituted a forcible entry.” (p. 3.)
We are not overlooking the evidence of prior sand-dipping operations on or near the premises in controversy, but the individual cases were not connected one with another so as to constitute adverse possession, nor was there privity between them and the defendants. Therefore no defense could be predicated upon their acts by the defendants. We conclude that plaintiffs, having been in possession under color of title for a long period of years, were entitled to have such possession protected against the defendants, and were therefore entitled to an injunction as prayed in their petition.
The judgment is reversed and the case remanded with directions to grant the injunction.
Dawson and Harvey, JJ., dissenting.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover a commission for the sale of real estate. Judgment was for plaintiff. Defendants appeal.
Defendants are three sisters and the husbands of two of them. Mrs. Morrow, Mrs. Finical and Alice Graham each owned an undivided one-third interest in a building in Girard. In his bill of particulars plaintiff alleged that he had a contract with defendants whereby he was to secure a buyer for the building for a price so that defendants would receive $2,100 for it and plaintiff was to receive as commission all over that for which he might be able to sell the property. The bill of particulars then alleged that plaintiff had found a buyer for the propoi fcy for $2,400 and that he was entitled to a commission of $300, v liich defendants refused to pay.
The answer of defendants alleged that the contract they had with plaintiff was that he was to find a buyer for the property at a price of $2,100 and was to receive a commission of $100. The answer then alleged that plaintiff procured a buyer at a price of $2,400 instead of $2,100; that plaintiff reported to defendants that he had procured a buyer under the terms of the original agreement but did not disclose that he had secured a buyer for the sum of $2,400; that he did not give a faithful report of his dealings and did not act in good faith toward defendants and had forfeited his rights to any commission. The case was tried in justice court, where there was a judgment for plaintiff. On appeal to the district court the case was submitted to a jury. A verdict was returned in favor of plaintiff. Judgment was rendered accordingly. Hence this appeal.
The questions raised by this appeal are mainly based on the admissibility of evidence. The way the matter comes up is about as follows: Plaintiff testified that H. E. Morrow, the husband of Grace Morrow, told him to get a buyer for the building; that he could get the sisters to take $2,000 for the building and pay him $100. He testified to a later conversation with Mr. Finical and Mr. Morrow, and the price mentioned then was $2,000. Plaintiff then testified that while he and Mr. Morrow were out riding at Carthage, Mo., Mr. Morrow said, “I don’t care what you get for it; they wanted to sell it and I don’t care what you get for it.” Defendants objected to the admission of this evidence on the ground that it was a statement made out of the presence of Mrs. Finical, Mrs. Morrow or Mrs. Graham, and without any proof having been made bf Mr. Morrow’s having been acting as agent for any of the defendants. This objection was overruled. The plaintiff then testified that Thomas, the man to whom he sold the property, was talking to him and that plaintiff called Mr. Finical and told him that Thomas had made him an offer of $2,400 if some furniture were thrown in. He testified that Mr. Finical said to sell it to him. The same objection was made to this and overruled. He then testified that he sent a wire to Mr. Finical for authority to close the deal on the building at $2,100 and got back a wire “All right to sell building and fixtures as per your wire.” He testified that he and Thomas signed a contract for the sale of the building at a price of $2,400 and that he did not send a copy of the contract to any of the defendants. He did not show Thomas the wire to Mr. Finical or his answer. He testified as to a letter he and a Mr. Stalker wrote to Mr. Finical in which they spoke about a price of $2,100 for the building and a commission of $100. He testified that when all the parties met in the office of a lawyer to sign the deed Mrs. Graham refused to sign the deed at first when she found that the purchase price was $2,400 instead of $2,100. Thomas testified to the same general effect as plaintiff. At the close of the above evidence for the plaintiff the defendants demurred to it on the ground that it did not prove the cause of action stated in the bill of particulars. This demurrer was overruled. Defendants introduced their evidence and the jury found for plaintiff. Judgment was entered in accordance therewith.
It will be noted that it is necessary to consider the evidence as to the conversations of plaintiff and Mr. Finical in order to have any evidence at all as to a contract whereby the property should be sold for any price other than $2,100. Another such conversation must be considered to have any evidence that there was a contract whereby plaintiff whs to receive all the property sold for over $2,100. A further search of the record shows it to be devoid of any evidence that Mr. Finical or Mr. Morrow had any authority to bind the other defendants, the owners of the property. Once this conclusion has been reached the case becomes one where an agent agreed to find a buyer for a piece of property at a certain price and then sold it for a higher price without disclosing the higher price to his principal and attempted to retain the difference. We have held many times that such conduct results in the agent not being entitled to any commission. (See Avery v. Baird, 106 Kan. 507, 188 Pac. 254; also Schlesener v. Mott, 107 Kan. 41, 190 Pac. 745; also Jones v. Hall, 113 Kan. 368, 214 Pac. 621.) We conclude, therefore, that the demurrer of defendants to the above evidence of the plaintiff should have been sustained.
The judgment of the trial court is reversed with directions to render judgment for defendants.
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The opinion of the court was delivered by
Thiele, J.:
The defendant corporation appeals from a judgment awarded plaintiff for unpaid salary.
Prior to May 1, 1929, one Busenbark owned a printing establishment at Garden City, Kan., and published The Garden City News. At the same time plaintiff was engaged in the publication of a magazine and owned certain equipment and property connected with his business. On that date they entered into an agreement whereby each sold to the other a one-half interest in his business, and they became equal partners in publishing the newspaper and the magazine. We are not concerned with the terms of the contract further than it provided:
“Each of the parties hereto shall be entitled to draw from the profits of said business (if sufficient for the purpose) the sum of ¡¡{250 per month as and for their personal salaries.”
and made provision for excess withdrawals not here important. It was further provided:
“It is contemplated that the parties hereto may incorporate said business at some future date, and upon such incorporation it will be the purpose and intention of conveying and transferring to the corporation the aforesaid business and property, and the parties hereto will take in payment therefor the capital stock of said corporation. It is agreed that such stock, when issued, shall be equally divided between the parties hereto, but if . . .”
The contract then referred to the stock standing as security for any amounts remaining due from Stowell to Busenbark growing out of the mutual sales first mentioned. Each further agreed he would not sell his shares to any third person without giving the other fair opportunity to purchase at the offered price.
On May 31, 1931, the business was incorporated under the name of the Garden City News Corporation. Salary withdrawals continued as before, there being no definite system, each drawing at will.
On November 13, 1934, plaintiff brought his action against the corporation, alleging he was employed by defendant, at a salary of $250 per month, and that there was a balance due him of $2,915.06, and interest. Defendant’s answer admitted incorporation and denied it ever employed plaintiff; alleged that plaintiff was a director of defendant corporation and was vice-president and one of the managing officers thereof. Otherwise it denied plaintiff’s allegations. We mention a second cause of action and defendant’s counterclaim only to say there is no appeal from the judgment insofar as they are concerned.
On trial of the action, plaintiff offered the above contract. Other evidence was offered, and it may be said there was no proof of express ratification of the above contract so far as salaries were concerned, nor any proof of any other agreement with respect to salaries. During the course of the trial it was suggested by the court, and agreed to by plaintiff and defendant, that an audit of the books be made to determine what had been done with reference to payments to Stowell and Busenbark by the defendant corporation. That audit showed and the court found that each had drawn salaries and other amounts; that Busenbark had overdrawn; that the profits were not available to pay salaries in full, and that giving effect to overdrawals by Busenbark and shortage of profits, there was due to plaintiff a sum, which with interest on May 15, 1935, amounted to $1,534.75, and judgment for that amount was rendered in favor of plaintiff and against the defendant corporation.
Defendant appeals, assigning as error that the court erred in admitting the contract in evidence, in overruling its demurrer to plaintiff’s evidence, and in rendering judgment in favor of plaintiff. It also assigns error in that the court erred in admitting evidence of implied contract. As to the last assignment, it needs no discussion further than to say the trial court struck out all evidence as to value of services as on quantum meruit, and decided the cause upon the contract. Substantially, the only question presented is whether the corporation was responsible for salary under the contract made between the parties on May 1, 1929, prior to the incorporation.
The appellant argues in its brief that the contract is not binding, and that if appellee is entitled to recover it is only on quantum meruit, while appellee insists the corporation, by its course of conduct, in effect adopted the partnership contract insofar as salaries are concerned.
Much confusion will be found in the authorities bearing on the question of the liability of a corporation for debts of a partnership which it succeeds or whose assets it acquires. In some of the cases the rights of creditors, who were not partners, are involved. In others, an existing corporation has purchased partnership assets, in others elements of fraud are involved. There is also involved the question of express assumption of all or part of the obligations of the partnership. These elements are lacking in the case at bar.
We are concerned with a partnership contract specifically providing for salaries, contemplating incorporation and division of stock in exact accord with the shares in the partnership, and even providing to an extent for sale of stock to a third person.
In 8 Fletcher on Corporations, (Perm. ed.) § 4014, p. 406 et seq., it is said:
“So a corporation formed by and consisting of the members of a partnership, which takes a conveyance or assignment of all the assets of the partnership for the purpose of continuing the business, is presumed to have assumed the partnership debts and is prima facie liable therefor. This is certainly the better rule where it appears that no consideration has been paid for such assets or property other than the issuance of stock in the corporation and where the corporation has no other property or assets than those so acquired, and where, to use the apt words of some cases, the members of the partnership may be said to have simply put on a new coat, or taken on a corporate cloak, and the corporation is a mere continuation of the partnership. The rule is in accordance with the tendency of decisions to disregard the mental conception that a corporation is an entity separate from its corporators, as in many instances it is simply a ‘stumbling block’ in the way of doing justice between real persons. The principle that the fiction of corporate entity will be disregarded by the courts and looked beyond when the ends of justice require it will be applied when the partners seek to evade and avoid their individual obligations.”
In 7 R. C. L. 85 (Corporations, § 63) appears the following:
“And it is held that if, for the purpose of continuing a business, it is changed from a partnership to a corporation, the latter taking all the property of the partnership, by the members of the firm transferring their respective interests therein to the corporation, and receiving a like interest in the capital stock oft the company in consideration of the transfer, and the parties remain the same, the debts of the firm become the debts of the corporation, which is answerable therefor, whether it has expressly assumed them or not. Such a transaction is not a sale of property by one to another. The corporation cannot retain the property and repudiate the liability.”
Other authorities dealing with the subject are 14 C. J. 305 (Corporations, § 368) and 4 Thompson on Corporations (3d ed.) §§ 2436, 2438, pages 20 to 22, inclusive; and see the leading case of Andres v. Morgan, Trustee, 62 Ohio St. 236, 56 N. E. 875; 78 A. S. R. 712.
The question of rights and liabilities arising from the incorporation of a partnership, under circumstances similar to that now before us, does not seem to have been considered heretofore by this court — the briefs of the parties cite no cases and our search has disclosed none.
It may be said that the contract for wages is not a debt. It was a binding contract, however, as long as the partnership persisted. The partnership contract contemplated incorporation and division of the stock according to the interests in the partnership; it contemplated acquisition of the partnership assets. All that was done. While that contract made no provision for assumption by the corporation of the salary contract, it likewise made no provision that would rebut the presumption the owners would be entitled to the same pay from the corporation they were receiving from the partnership. There is no showing the corporation ever adopted any resolution as to salaries of either plaintiff or his former partner, Busenbai'k, or anyone else. Although it is undisputed that each former partner! did draw salary after the incorporation, one received more than his due, the other less, but the original contract contemplated that. And there seems to have been no objection by the corporation or its board of directors. Whether it be said the corporation ratified .the original contract is not of great importance, for it clearly appears the corporation was a mere continuation of the partnership, and that so far as plaintiff’s employment was concerned, it continued without interruption. By course of conduct the corporation adopted the contract of employment, and cannot now be heard to say that Stowell is relegated to an action as on quantum meruit.
In our opinion, the trial court correctly decided the cause, and its judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Upon an examination of appellee’s motion for a rehearing, it appears that no arguments bearing on the question of homestead are presented which were not considered on the original submission of the cause, and said motion is denied. However, our attention is directed to the question of appellee’s right to an extended period of redemption, a matter not heretofore presented.
The trial court refused to confirm the sale of real estate held March 19,1934, holding the real estate to be a homestead and exempt from sale on execution. We held the trial court erred, and directed the sale be confirmed. The' result is that appellee had no opportunity to redeem within the statutory period, which expired while the cause has been pending in this court. Equity demands that appellee have a fair opportunity to redeem from said sale, and, upon consideration, we find she should have until July 15, 1936, in which to redeem.
Our former opinion is supplemented to this extent: The trial court, in confirming the sheriff’s sale, is directed to fix a period of redemption expiring on July 15, 1936. In all other respects the original opinion is adhered to.
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The opinion of the court was delivered by
Smith, J.:
This was an action upon a verified account. It was filed in the city court of Wichita. Judgment was had there for the plaintiff for $1. The plaintiff attempted to appeal to the district court of Sedgwick county. Judgment there was for plaintiff in the full amount of his claim. Defendant appeals.
The plaintiff filed this action in the city court of Wichita to recover $208 from defendant. Defendant filed a verified answer denying liability and at the same time filed a cross bill of particulars for $104 against plaintiff. Judgment was given for plaintiff in the sum of $1. Plaintiff attempted to appeal by filing notice of appeal and by filing an appeal bond in the following words and figures:
“Whereas, the plaintiff, the Owen-Fields, Inc., intends to appeal to the district court of said county from a judgment rendered in favor of the plaintiff Owen-Fields, Inc., for the sum of 81 and costs on 9th day of November, 1934, by the city court of Wichita.
“Now, we the undersigned, residents of said county, bind ourselves to the defendant in the sum of 100 dollars, that said plaintiff shall prosecute its appeal to effect and without unnecessary delay, and satisfy such costs and the costs of this appeal in the city court and the district court as may be rendered against it therein.”
Soon after this appeal was docketed defendant moved to dismiss the appeal on the ground that no valid appeal bond had been filed within the required time. The district court held that the bond was defective because it was for a stated amount and was only given to pay the costs that should be adjudged against the plaintiff. The court held, however, that the bond was sufficient to confer jurisdiction on the district court, and permitted plaintiff to file an amended bond. A new bond, which did not have the two defects of the first bond, was then filed.
We have concluded that the appeal bond did not comply with the statute and did not confer any jurisdiction on the district court. (See Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585; Ohio Hydrate & S. Co. v. H. W. Underhill C. Co., 141 Kan. 213, 40 P. 2d 337; and Morse v. Schaake, 141 Kan. 473, 41 P. 2d 1009.)
Defendant argues that the first bond that was given was an attempt to comply with the statute as to appeal and furnishing bond and that since there was a bond of some sort to pay costs it conferred jurisdiction on the district court and plaintiff should have been permitted to amend it. An examination of the bond discloses that it binds the sureties on it to pay such costs as should be assessed against the party making the appeal. With this provision in the bond it comes under the rule laid down in the cases cited above.
Plaintiff argues that the defendant waived the deficiency in the bond when it filed its answer and cross bill of particulars. These were first filed when the case was pending in the city court of Wichita. At that time there was no thought of an appeal bond. Later, after the filing of the amended bond, defendant did secure leave and file an amended answer and cross petition. Plaintiff contends that by this action defendant waived any deficiency in the appeal bond. Defendant had raised the question of the insufficiency of the bond. Its motion to dismiss had been denied. The district court was about to try the case on its merits. Under such circumstances defendant was not compelled to depend on his motion to dismiss being good and stand by and let plaintiff take judgment.
The judgment of the district court is reversed with directions to dismiss the appeal.
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The opinion of the court was delivered by
Hutchison, J.:
The only matter involved in this appeal is the statute of limitations and a determination as to when the action accrued. A claim for care and attention bestowed upon the deceased for approximately one year prior to her death was filed against the estate of the deceased by the Emanuel Home, where she lived and was cared for during the last year of her life. The administrator demurred to the same because the statute of limitations had run against the claim. The demurrer was sustained in the probate court, and when the case was appealed to the district court the demurrer was again filed and sustained, from which ruling the plaintiff appeals.
Martha Edling entered the Emanuel Home September 5, 1924. She died there August 9, 1925. An administrator was appointed August 21,1925. This claim was filed in probate court October 26, 1927, and is for $1,221.50 on a quantum meruit basis for board, room, care, attention, and expenses for medical attendance.
It is not contended by the appellant that the claim was filed within the one year allowed for the filing of claims ordinarily, but that it was filed within the time required by section 6 of the same act, chapter 161 of the Laws of 1925, being an amendment of R. S. 22-729, the first part of which is as follows:
“Any creditor of the deceased whose right of action shall not accrue within the said one year after the date of the administration bond, may present his claim to the court from which the letters issued at any time before the estate is -fully administered, and if on examination thereof it shall appear to the court that the same is justly due from the estate it may, by consent of that creditor and the executor or administrator, order the same to be discharged in like manner as if due, after discounting interest as mentioned in this article.”
The estate was not closed or completely settled when the claim was presented, and in connection with the claim was an objection to the approval of the final report of the administrator, which had not then been approved. The appellant insists that its claim properly comes within the provisions of the statute just quoted, because it did not in fact accrue until March 22, 1927, and it sets out in its claim so filed the facts which it alleges delayed the accrual of the claim, which are briefly as follows: That on January 9,1926, about five months after the appointment and qualification of the administrator, the appellant filed in the probate court its claim for $2,000 on a note given by the deceased to the Emanuel Home before she entered it, for the purpose of compensating the home for her care, board, room, and attention during the remainder of her life; that this claim was resisted by the administrator upon the ground that the deceased was incompetent and not of sound mind at the time she executed such note, and the jury so found, and the court after several hearings and many delays approved such finding and overruled the appellant’s motion for a new trial in that action on the note on March 22, 1927, about seven months before the filing of the quantum meruit claim in this case.
Appellant strongly maintains that the deceased was presumed to be sane and capable of transacting business for herself, and, as the home had an express contract with her for her care and keep, as evidenced by the note, it had no right to assert and urge an implied contract while the express contract' existed and was in force, and that its rights under an implied contract did not and could not accrue until the jury and court found the deceased to have been of unsound mind and irresponsible at the time when she executed the note.
Appellant cites eminent authorities giving definitions of the word “accrue,” among them one that was quoted with approval in the case of Bruner v. Martin, 76 Kan. 862, 868, 93 Pac. 165, as follows:
“ ‘The true test, therefore, to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result.’ ”
It then shows by the decision in Ray v. Railway Co., 90 Kan. 244, 247, 133 Pac. 847, that “it is a general rule that a contract will not be implied where a specific contract has been entered into and acted upon by the parties to a transaction,” and cites other cases and good authorities to the same effect, and concludes that this’ present action on an implied contract could not have been maintained to a successful result until the express contract had been held to have been of no effect or void, which was at the close of the litigation on the note. We do not think that is the correct application of the rule. It is true that one cannot recover on an implied contract as against an existing express contract or when it is shown an express contract is outstanding covering the same subject, but the inhibition has reference to the recovery upon the contract rather than the accruing thereof. (Watt v. Railway Co., 82 Kan. 458, 108 Pac. 811; Ray v. Railway Co., supra.) There is no reason why an express and an implied contract covering the same transaction or service may not accrue at the same time, and they can both be included in the same petition or claim as different counts.
“In an action for a commission a real-estate broker may join a count for the reasonable value of his services with a count based upon an express contract to pay a stated commission.” (Berry v. Craig, 76 Kan. 345, syl., 91 Pac. 913.)
In the opinion of the case just cited it is said of such pleading:
“The two counts were entirely consistent. Neither contradicted the other. The facts stated in the first might be true'and the facts stated in the second also might be true. If an express contract existed, recovery could not be had upon an implied contract; but to meet possible exigencies of the proof the plaintiff had the right to go to the jury upon both sets of allegations.” (p. 346. See, also, Merywethers v. Youmans, 81 Kan. 309, 105 Pac. 545; Brigham v. Carpenter, 110 Kan. 104, 202 Pac. 976.)
In a comparatively recent case this matter was ably discussed when the claims filed in probate court were in the reverse order from the way they have been presented in this case. The first was for reasonable allowances for services rendered and the next an express contract, and in the opinion it was said:.
“This court is fully committed to the doctrine that a suit on an implied contract to pay the reasonable value of services rendered does not deny existence of an express contract to pay a definite sum for the same services; that action on one theory is not incompatible with recovery on the other, notwithstanding the difference in proof and measure of recovery; that both theories may be tendered as grounds for recovery in the same action; and that, although there can be but one recovery, plaintiff may not be required to elect, but may go to the jury on both.” (Darnell v. Haines, 119 Kan. 633, 635, 240 Pac. 582.)
If the estate ever owed the home anything on an implied contract it was as complete an obligation as it ever could be at the death of the lady, for whom the services were rendered. It accrued at her death, and delays for convenience or other reasons add nothing to it in the way of maturity; neither are delays permitted to toll the statute of limitations. In the case Milbourne v. Kelly, 93 Kan. 753, 145 Pac. 816, it was held where a claim was filed in the probate court two days after the statute of limitations had run that the time could not be extended by the allegation and proof that the claimant had frequently talked with the administrator about the claim and efforts had been made to adjust and settle it. A further decision in that case was that the administrator was not estopped by such negotiations from pleading the statute of limitations. The claimant must take the proper affirmative action within the statutory time in order to protect his interests. (Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051; Brown v. Baxter, 77 Kan. 97, 94 Pac. 155; Harwood v. Railway Co., 101 Kan. 215, 171 Pac. 354; Hoover v. Hoover’s Estate, 104 Kan. 635, 641, 180 Pac. 275; Clark v. Eaton, 109 Kan. 574, 201 Pac. 71.)
“The limitation of two years prescribed in the act in which such action must be commenced is a condition imposed upon the exercise of the right of action granted, and this time is not extended by the pendency and dismissal of a former action.” (Rodman v. Railway Co., 65 Kan. 645, syl. ¶ 2, 70 Pac. 642.)
Appellant cites the case of Finley v. Gilmore, 107 Kan. 349, 191 Pac. 256, where it was held the action did not accrue until the termination of a former action. That was an action by one partner against the estate of the other partner for a large balance shown by the settlement of the partnership estate to be due from the deceased to the surviving partner, because not until the partnership accounts were adjusted and the partnership property disposed of could anyone know which way the balance would go or for how much. No such reason exists in the case here on trial. A similar exception was expressed in Henshaw v. Smith, 102 Kan. 599, 171 Pac. 616, where the tenant was to recover for the valuable improvements made by him on the farm on the strength of an oral agreement, payment to be made when he had to leave the farm. It was held that the statute of limitations did not begin to run until the obligation was due and that was when he left the farm, although the oral contract had been made many years before. As long as the tenant remained bn the farm there was no obligation on the part of the owner to reimburse him for the improvements.
Appellant insists that the administrator is estopped to plead the statute of limitation. The case of Milbourne v. Kelley, above referred to, holds otherwise, and we know of no good reason why he may not make any legal defense of which the case is susceptible. It is claimed this is in a measure an equitable proceeding, and that idea is coupled with the feature of estoppel, but we think otherwise. We find no error in the ruling of the trial court in sustaining the demurrer to the claim.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was a taxpayers’ suit to enjoin the collection of special assessments levied against plaintiffs’ properties to pay the cost of certain sewer construction in and about Kansas City.
The case was essentially a companion case to that of Alber v. Kansas City, 138 Kan. 184, 25 P. 2d 364, where the pertinent facts were stated so fully that it is needless to repeat them here.
In brief, the present plaintiffs to the number of 438 allege that they are resident property owners in sewer district 31, of Kansas City; that various egregious irregularities were committed by the city in creating the sewer district, in contracting with an adjoining drainage district to divide the expense of building a trunk-line sewer to serve their joint needs; that the Union Pacific Railroad Company dictated the terms of that contract, that the city’s share of the expense raised the city’s indebtedness beyond its authorized statutory maximum, that the city officials were not acting in good faith when they set about the sewer project, that the sewer itself was mostly constructed outside the city limits, and that as constructed the sewer is of no practical service to the properties of plaintiffs, and that it never will be unless laterals or subsewers are constructed to connect their properties with this trunk-line sewer. Based on these allegations plaintiffs prayed for an injunction against the city.
Some pertinent dates gleaned from this record, and from the Alber case to which we are referred in the brief of appellants, are as follows:
May 27, 1924, Kansas City and the Fairfax drainage district signed the contract for the construction of the sewer.
July 16, 1925, 'construction of sewer completed.
July 7, 1927, sewer district No. 31 organized.
December 7, 1927, ordinance No. 24010, levying assessments on plaintiff’s properties, adopted.
January 5, 1928, ordinance No. 24010 published.
December 16, 1930, this action by plaintiffs was begun to enjoin assessments levied under ordinance No. 24010.
March 20, 1931, general demurrer to plaintiffs’ petition filed.
The action was permitted to slumber on the dockets until October 9, 1934, at which time, following arguments of counsel, the trial court sustained the demurrer, and this appeal followed.
The obvious basis for the trial court’s ruling on the demurrer was the thirty days’ statutory limit in which a taxpayer’s suit challenging the validity of special assessments may be instituted. (R. S. 12-608; R. S. 1933 Supp. 13-1088.)
How then could this action be maintained — begun, as it was, 2 years, 11 months and 10 days after the publication of the ordinance levying the special assessments?
Counsel for appellants cite Randal v. Arkansas City, 114 Kan. 178, 217 Pac. 298, in which it was held that where the city had no power to make the improvement (a sewer outside a city of the second class) the thirty days’ limit in which to bring an action to enjoin the collection of special assessments did not apply. But that case cannot help these plaintiffs. Here Kansas City, a city of the first class, did have statutory power to make the contract for the building of the sewer which lay partly outside the city (R. S. 13-1013 to 13-1016, inclusive, and R. S. 13-1029, also R. S. 24-408 by necessary implication).
Other arguments urged in support of plaintiffs contention that the thirty days’ limit should not be applied have been carefully considered, but all such arguments have been met and demolished by frequent and familiar decisions of this court. Thus in Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299, where a taxpayer’s suit to enjoin a special assessment levied; to pay for street paving was held to have been begun too late, it was said:
“The statute provides that: ‘No suit to set aside the said assessments shall be brought after the expiration of thirty days from the time the amount due on such lot liable for-such assessment is ascertained.’ (Gen. Stat. 1909, § 1420.) This limitation is valid and covers all irregularities and defects in the proceedings. It is contended that by reason of the insufficiency of the petition the mayor and council had no jurisdiction to act; and that therefore the thirty-day statute of limitation did not begin to run, but it has been often held that such defects are waived and cured by the limitation. (Wahlgren v. Kansas City, 42 Kan. 243, 21 Pac. 1068; Doran v. Barnes, 54 Kan. 238, 38 Pac. 300; Railroad Co. v. Kansas City, 73 Kan. 571, 85 Pac. 603.) It has been ruled that the statute applies and cuts off defenses that the improvement proceedings are void by reason of fraud or other defects. (City of Topeka v. Gage, 44 Kan. 87, 24 Pac. 82; Kansas City v. McGrew, 78 Kan. 335, 96 Pac. 484.)” (p. 514.)
In Park Association v. City of Hutchinson, 102 Kan. 488, 490- 491, 171 Pac. 2, where plaintiff sought to enjoin a special -assessment, it was said; ' -
“Plaintiff did not commence this action until ten months after the assessment had been ascertained. It is insisted by the plaintiff that the city acted without authority in that it assessed property not adjoining the street to be improved, and also that the assessment attempted was not made in the manner prescribed by law. The bar of the statute applies even if the defendants acted without authority in the inclusion of property that was not subject to assessment. It has already been determined that the thirty-day limitation applies to void assessments as well as to irregular ones. (City of Topeka v. Gage, 44 Kan. 87, 24 Pac. 82.) In Rockwell v. Junction City, 92 Kan. 513, 141 Pac. 299, and the same case on rehearing, 93 Kan. 1, 142 Pac. 268, it was ruled that the limitation in question cuts off all defenses of every kind and character, including assessments fraudulently made and those which were made without jurisdiction or authority. That holding has been followed and approved in Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836; Arment v. Dodge City, 97 Kan. 94, 154 Pac. 219; Wyandotte County v. Haskell, 97 Kan. 304, 154 Pac. 1029. . . . The legislature manifestly intended to bar an action for every defect, whether it be for irregularity or invalidity, if not begun within the prescribed time. Within that time the plaintiff might have contested the right of the city commissioners to make an assessment on property which the appraisers had not included in their report, and also where the taxing district had extended beyond the legal limits. The intention of the legislature was that public improvements should not be long delayed by contests of this character, nor the assessment proceedings interrupted by belated litigation; and so, property owners who propose to challenge an assessment for any kind of defect are required to do so promptly, or not at all. The validity of such a law is beyond question.”
See, also, Schenk v. Kansas City, 134 Kan. 181, 5 P. 2d 842, and citations.
In the Alber case this court was able to do something for the complaining taxpayers because that suit was begun within the time allowed by statute. Here the long delay in seeking judicial redress renders it altogether impossible to render a similar judgment in the case at bar.
The judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a policy of robbery insurance. The decision turns upon the question whether the plaintiff lost its right of recovery by failure to send a guard with the messenger who was robbed. The defendant appeals from an order overruling a demurrer to plaintiff’s petition. The pertinent part of the petition alleged that—
“In the statements made by plaintiff to the defendant, which are part of the policy hereto attached as ‘exhibit A,’ the plaintiff stated that one guard would at all times accompany the custodian while conveying insured property outside the, premises of plaintiff. Plaintiff says that at the time and place of the robbery as hereinbefore described, no guard was accompanying said messenger or custodian. This, however, resulted from an unforeseen contingency beyond this plaintiff’s control in this, to wit: that M. L. Briedenthal, cashier and managing agent of the plaintiff had, prior to the robbery hereinbefore set forth, instructed the employees of this plaintiff whose duty it was to send messengers or custodians with or to secure money, that a guard should accompany such messenger or custodian at all times, which instruction was violated on this particular day, during the absence of said M. L. Briedenthal, and without his fault or knowledge, or the fault or knowledge of the officers or directors of plaintiff; that prior to the robbery mentioned herein no violation of such instructions had occurred to the knowledge of the officers or directors of plaintiff; that the failure of a guard to accompany such messenger at the time of the robbery was due to the violation of the instructions given by said cashier and managing agent, as aforesaid, by the employee sending such messenger, and was wholly without the knowledge of the officers or directors of the plaintiff; that it was impossible for plaintiff.to foresee that such instructions would be violated and beyond its control to prevent it in this instance, its officers or directors having no knowledge thereof.”
The clause of the policy under which the plaintiff sought to avoid failure to send a guard with the messenger reads:
“If from some unforeseen contingency, beyond the control of the insured, the insured is unable to maintain any service or to perform any act specified in the schedule, and the risk assumed hereunder by the company is increased, the insurance granted, by this policy shall not be forfeited, but the liability of the company shall be limited to such amount of insurance as the premium paid would have purchased under the company’s published manual of rates which was in force at the time of the issue of this policy.”
The policy also provided:
“The following precautions will always be taken by the insured to prevent loss:
“(a) One guard (state number of guards who will accompany each custodian, while conveying the insured property outside the premises).
“This policy does not cover . . . loss or damage unless the insured has taken all reasonable precautions to safeguard the insured property nor unless the commission of the robbery, if any, is established by reasonable evidence.”
The defendant contends that the failure to send a guard as required by the policy voided liability thereunder; that the facts pleaded in the petition do not bring the case within the “unforeseen contingency” clause of the policy. We are of the opinion that the failure of the plaintiff to comply with the provision of the policy with respect to sending a guard with the messenger increased the risk of loss by robbery and may reasonably be said to have constituted a direct cause of the loss in question. It has been held that the violation by the insured of his contract obligation con tained in the policy precluded recovery by him. (See Cobb v. Insurance Co., 17 Kan. 492; Insurance Co. v. Knerr, 72 Kan. 385, 83 Pac. 611; Hammond v. Insurance Co., 92 Kan. 851, 142 Pac. 936; Cranden v. Insurance Co., 99 Kan. 785, 163 Pac. 458; Wood v. Insurance Co., 109 Kan. 801, 202 Pac. 82.)
Kean v. National Surety Co., 241 N. Y. 252, 149 N. E. 849, was a suit upon a policy of robbery insurance wherein the insurer agreed to indemnify the insured against loss by reason of holdup or robbery while property was in transit, within twenty miles of insured’s office, in the custody of an employee of the insured. The policy contained a provision that if the property in transit amounted to more than $250,000 it should be in the custody of a partner of the insured or a regular employee, accompanied by two guards at least 24 years of age, or if the employee or custodian should be 24 years of age, the guards should not be less than 21 years of age. At the time of the loss in question government bonds in the sum of $400,000 were being transported outside of the premises of the insured by one Young, who was accompanied only by one youth 18 years of age. During the'course of his journey and while within 20 miles of the place of business of the insured he was held up and robbed of the bonds. The court said:
“This condition the plaintiffs failed to fulfill. They did not perform their part of the contract, a condition precedent to liability. The bonds were carried through the street by Young, an employee, accompanied by a lad 18 years of age. The risk was materially increased by this fact. It was a vital and important part of the agreement. And what is more, the' omission was known to Young, for he frankly states in his testimony that he knew when he left the plaintiffs’ offices to make delivery of the bonds that he should have taken with him two guards of the required age.
“The plaintiffs cannot expect the defendant to keep its part of the obligation when they have omitted a vital prerequisite of their own. We take this bond as we find it, placing upon the parties merely the obligations which they have voluntarily assumed, and holding them to the natural consequences of their defaults. An insurance policy or bond is no different than any other contract and comes within the same rules of construction. The purpose and attempt of the courts is to give to the language used by the parties its usual and ordinary meaning in the light of all the circumstances and conditions, having in mind, as did the parties, the nature of the transaction.” (p. 258.)
We are of the opinion that the plaintiff cannot avoid the consequences of its default by bringing itself within the provisions of another clause of the policy which, by the plain meaning of its language, is not applicable nor intended to excuse the default of which the plaintiff was guilty. The employee who dispatched the messenger is presumed to have been acting within the scope of his employment. He was performing one of the acts for which he was employed. Ordinarily the act of a duly appointed agent, within the scope of his employment, is in legal effect the act of the principal. To hold otherwise would be to permit one to transact his business through agents and derive all of the benefits thereof without suffering any of the detriments which might be encountered. It cannot reasonably be said that the mere failure of an agent to comply with the letter of instructions issued to him by his principal constitutes a departure from the scope of his employment. Moreover, the plaintiff is a corporation. In the very nature of things it can act only through the physical agencies of its directors, officers and agents. The act of an officer or agent of a corporation, within the scope of his authority, is in fact the act of the corporation. In the instant case the act of the employee of the plaintiff, in dispatching the messenger without a guard, was the act of the plaintiff corporation itself. It is perfectly apparent that the plaintiff in the instant case “did not take all reasonable precautions to safeguard the insured property” for which reason the policy does not cover the loss.
The judgment is reversed and the cause remanded with instructions to sustain the demurrer to plaintiff’s petition.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Dawson, J.: Plaintiff brought this action against defendant to recover on the latter’s guaranty of a promissory note for $838.89 executed by John C. Smith, payable to S. A. Day on or before April 24,1922, and transferred to plaintiff and indorsed thus: “Payment guaranteed by S. A. Day.”
Accompanying the transfer of the note was a written contract between the parties covering details of the business transaction whereby plaintiff acquired the note, one paragraph of which, in part, reads:
“Party of the second part [S. A. Day] agrees to guarantee payment of the notes after the party of the first part [plaintiff] has made every reasonable effort to collect same. If suit is entered against any note maker the party of the second part is to be consulted as to the expense in proceeding to collect by suit and the expense of suit shall be arranged for between the parties to this contract. Notes are not to be renewed or extended under this guarantee longer than September 1, 1922, without the approval of party of second part.”
The defense to the action was chiefly based upon plaintiff’s alleged want of energy to collect from the maker—
“Defendant further alleges that plaintiff and said J. C. Bogart failed to make reasonable effort to collect said note from the maker thereof, to wit: John C. Smith; that plaintiff and said J. C. Bogart renewed and extended said note to a date subsequent to September 1,1922, without the approval of this defendant. That on and prior to September 1, 1922, the said John C. Smith was financially responsible and able to pay said note, and that if plaintiff had made reasonable effort he could have collected said note with the interest thereon from the said John C. Smith on and prior to September 1, 1922.”
Plaintiff’s reply contained the following:
“ ... At frequent intervals both before and after September 1, 1922, this plaintiff conferred with defendant as to means and methods of collecting the note in suit from the maker thereof; that he, the said plaintiff, under the direction of the defendant herein, both before and after September 1, 1922, spent a great deal of time and some money in an attempt to collect said note from its maker.”
Jury trial; verdict for- plaintiff; two lists of special questions were answered thus:
“Q. 1. After September 1, 1922, did John C. Smith have property which with reasonable effort Bert Bogart could have found in collecting the note in question in this case? A. Doubtful.
“Q. 2. Did Bert Bogart make reasonable-effort to collect said note from John C. Smith after September 1, 1922? A. Doubtful.
“Q. 1. What was the financial worth of John C. Smith upon April 24, 1922? A. Doubtful.
“Q. 2. What effort did plaintiff, Bert Bogart, make to collect the note in question from John C. Smith? A. Bogart interviewed Smith on or about the due date of note. Made two trips to Arkansas.
“Q. 3. Did plaintiff ever notify defendant that he, plaintiff, was unable to collect said note from John C. Smith? A. Yes.
“Q. 4. Did plaintiff notify defendant that said John C. Smith had failed to pay said note? A. Yes.
“Q. 5. If you answer question 4 in the affirmative, state the date of such notice. A. 1923-1926.”
Defendant’s motion foi; judgment on the special findings was denied, and judgment was entered for plaintiff.
Defendant assigns error on the overruling of his demurrer to plaintiff’s evidence, his theory being that it failed to show that plaintiff had put forth the prescribed effort to collect the note which was the condition precedent to the enforcement of his rights under defendant’s guaranty. However, plaintiff’s evidence did show that a few days before the note was due he talked with defendant, telling him it would be necessary to do something about it, and defendant told plaintiff he did not think anything could be done at that time, that he could not then collect from Smith, the maker; and that he knew of nothing in the hands of Smith that would be subject to levy, and defendant asked plaintiff to carry the note for a while. About a year later plaintiff again talked with defendant about the note, and defendant told plaintiff he did not believe Smith was ever going to be able to pay. The parties discussed the advisability of levying on a wheat crop belonging to Smith, and defendant, said he did not think it would pay expenses. Smith had a truck which was security for the note, but it was not in good condition and plaintiff did not take it, or subject it to legal process, because it would not pay the incidental expense to its taking. In this opinion defendant agreed, saying the truck “didn’t amount to much.” Once, when the possibility of getting Smith to pay was the subject of discussion, defendant suggested to plaintiff, “We could take it out of Smith’s hide.” Smith moved to Arkansas and plaintiff made two futile trips to that state endeavoring to collect from him, but could find no property of Smith’s which could be subjected to the payment of the note.
The foregoing summary of plaintiff’s evidence sufficiently shows, if true, that about all plaintiff failed to do was to reduce the note to judgment against Smith and cause- an execution to issue thereon. This possibility was contemplated by the terms of the guaranty, and the expense of such suit was not to be undertaken without the assent and cooperation of the defendant guarantor. Moreover, it was quite clear, as against a demurrer to the evidence, that such a judgment and execution would have been altogether fruitless, and such proceedings were not a condition precedent to the enforcement of the guaranty. In Furst v. Buss, 104 Kan. 245, 178 Pac. 411, it was .said:
“Where a principal obligor is admittedly insolvent, an indemnified party may proceed at once against such obligor’s guarantors, without first pursuing a futile action against the principal..” (Syl. ¶ 3.)
See, also, 28 C. J. 970, 971.
The demurrer to plaintiff’s evidence was properly overruled.
Error is also assigned on the overruling of defendant’s motion for judgment on the special findings of the jury. It is argued that the jury’s special findings make it conclusive that plaintiff did not exercise reasonable diligence to collect; that to interview the maker about the time the note was due and to make two trips to Arkansas was not such a degree of diligence as contemplated by the guaranty. And defendant further argues that the jury’s first finding that it was “doubtful” if plaintiff made reasonable effort to collect is a negative finding, a finding that he did not exert the requisite effort to collect. That argument might be difficult to overcome but for the other special findings of the jury. What Smith was worth on April 24, 1922 (the due date of the note), was “doubtful”; and what he was worth on September 1, 1922 (the time limit for any renewal of the note), was likewise “doubtful.” Those are likewise negative findings. Defendant had based his defense on his allegations that at and about those dates Smith was financially responsible and if plaintiff had made reasonable effort he could have collected. It was incumbent on defendant to maintain such pleaded defense. This he did not do, and the jury’s special findings are to the contrary. It therefore followed that however diligent and energetic plaintiff might have been he could not have collected, and consequently the guarantor was not excused.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injuries sustained by plaintiff in a collision with a street car alleged to have • been caused by the negligence of defendant. The trial court sustained a demurrer to plaintiff’s evidence, and he has appealed.
While other questions are argued, we find it necessary to consider but one, that of plaintiff’s contributory negligence. The evidence, so far as it relates to that question, is as follows: Plaintiff, a man well along in years, whose home is at Pratt,' was in Wichita the evening of February 5, 1927. He was near 622 East Douglas avenue on the north side of the street and started south across the street on his way to the Union station when he was struck by a street car and seriously injured. Douglas avenue is one of the principal east-and-west streets of Wichita and at the point in question usually has heavy vehicular traffic, and has two street-car tracks, the south track being used for eastbound street cars and the north track for westbound cars. The evidence as to how the casualty occurred is the testimony of plaintiff and three other witnesses. Plaintiff testified in substance that the place he started to cross the street was not a street intersection but was where an alley connected with the street, and that there was some pedestrian traffic .across Douglas- avenue at this point. It was about eight o’clock in the evening and was dark; and on coming to the place where he started to cross the street he did not stop at the curb, but swung around and started to cross the street; that “there didn’t seem to be any traffic, I don’t think there was any” on the street; that he walked across the street in a natural gait; that when he got to within, two or three feet of the street-car track he looked each way and saw no street car, nor the lights of any car. “I didn’t clear exactly stop, but might just about as well. I looked this way and that way, and the way was clear, and I started. ... I saw nothing.” He proceeded across the street and hadn’t gone very far when the next thing he knew he was in the hospital.
Harry Smith, a witness called by plaintiff, twenty-two years of age, who lived with his parents and was a plasterer, saw the accident. He was riding on the rear end of a Ford roadster going west. He was facing east. Two other young men were riding on the rear end of the car, as he was. The automobile was making about fifteen miles per hour. There were two parallel street-car tracks there. He saw plaintiff just as he was leaving the curbing on the north side of the street. There was lots of traffic in the street. Plaintiff passed right behind the car in which witness was riding. “He was walking fast until he got about to the south side of our car. There was another car following us, and he jumped to get out from in front of this car.” He was about fifteen feet from the street car then. The street car was coming from the west and the witness heard the bell ring twice, and the northeast corner of the street car struck plaintiff. The street car was moving about eighteen miles per hour going east. There was nothing between the witness and the street car. The street car was lighted inside and its headlight was on. There was nothing in the way to prevent plaintiff from seeing the street car after he passed the automobile in which witness was riding. The car in which witness was riding was about thirteen feet north of the south street-car track.
Richard Howell, a witness called by plaintiff, was on the Ford car with Smith, facing east, and saw plaintiff as he stepped off the curb on the north side of the street starting south. He saw the street car, which was traveling about fifteen miles per hour. Plaintiff seemed to be walking at an ordinary gait until he got onto the street-car track, and he did not look in either direction, but went straight ahead and walked into the front end of the street car. The street car ran its length and about ten feet more, before it stopped.
James Howell, called as a witness for plaintiff, was riding on the Ford car with Smith and saw the injury occur. The northeast corner of the street car struck plaintiff. The gong was sounded just about the instant the car struck him. There was nothing to prevent the motorman from seeing him, and there was nothing, after plaintiff had passed behind the car in which witness was riding, to prevent plaintiff from seeing the street car.
That is all the evidence relating to the manner in which the casualty occurred. From this evidence it seems clear that plaintiff was negligent in not looking for or seeing the street car approaching him. It is true he testified that he looked and saw no street car or any other obstruction on the street, but the fact that the car struck him is conclusive evidence that it was there, and from the testimony of all the witnesses it is clear that plaintiff crossed a distance of as much as thirteen feet from the south street-car track to the car in which Smith and other witnesses were riding, within which space there was nothing to prevent his seeing the street car approaching him, if he had looked.
Generally speaking, it is well settled, of course, that contributory negligence is a matter of defense and that the burden of proving it does not shift to plaintiff. (Eidson v. Railway Co., 85 Kan. 329, 116 Pac. 485.) But it is also true that if plaintiff’s evidence establishes his contributory negligence this bars his recovery just as effectively as though the evidence on that point had been introduced by defendant. (45 C. J. 1178; Dewald v. K. C., Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101; Thomas v. Railway Co., 79 Kan. 335, 99 Pac. 594.) Where the facts relating to contributory negligence are in dispute, or are of such character that reasonable minds might reach different conclusions thereon, it is a question for the jury to determine. But where the facts disclosed by the evidence are not controverted and are such that reasonable minds could reach but one conclusion thereon, the question is one of law, to be decided by the court, and not one of fact, to be determined by the jury. (K. P. Rly. Co. v. Pointer, 14 Kan. 37; Beaver v. A., T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136.) It is well settled, also, that a pedestrian, upon approaching a street-car track, must look for approaching cars. (Thomas v. Railway Co., supra; Weir v. Railways Co., 108 Kan. 610, 196 Pac. 442; Ogden v. Wilson, 120 Kan. 269, 243 Pac. 284.)
The evidence in this case is in dispute only as that of the plaintiff differs from that of other witnesses called in his behalf, but these differences are not controlling upon the vital point here. Plaintiff said there was no traffic in the street when he started across; the other witnesses say there was heavy traffic in the street; but for the distance of about thirteen feet north from where he was struck by the street car all of them agree that there was nothing which interfered with his seeing the approaching street car. He testified that he looked before going upon the track and saw nothing. At least some of his other witnesses testified that he did not look. The very fact that he was struck by the street car conclusively demonstrates that the car was near to him when he started across the track, and must be held conclusively to establish the fact either that he did not look, or if he did look, he saw the car and knew it was approaching. In 25 R. C. L. 1299, it is said:
“When the facts clearly proven or admitted are such that a person injured at such a crossing must have seen and heard the approaching car in time to have enabled him to avoid the injury if he had looked and- listened, it has often been held that his protest that he did not see or hear it goes for naught, for when a person does look he is bound to see what is clearly visible and be guided by the knowledge thus obtained.”
In any. event it is clear that with an unobstructed view, and with a lighted street car, with the headlight burning, near and approaching, he started to cross the track. Reasonable minds could reach no other conclusion than that his negligence in doing so was the cause, or at least one of the causes, which contributed to his injury.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for the recovery of a balance alleged to be due for the erection of a house. The case was referred to a referee, who returned findings and conclusions favorable to plaintiffs. The court approved such findings and conclusions, and defendants appeal.
The facts are substantially as follows:
On September 1, 1926, the parties executed a contract wherein the plaintiffs agreed to erect a bungalow according to certain plans which called for a house of the approximate dimensions of 24 feet by 48 feet for an agreed price of |1,800, the material in an old house and barn on the premises to be used where suitable. The referee found:
“That there was a mutual mistake in writing said contract, in that the dimensions of said house were written ‘dimensions of said house to be 24 feet by 38 feet by 9 feet to eaves’ when it should have read ‘24 feet by 48 feet by 9 feet to eaves.’
“That plaintiffs, who were experienced contractors, prepared said contract and presented same to the defendants, who were inexperienced in such matters, for execution, and neither the defendants or their attorney, who examined said contract prior to its execution by them, observed such discrepancy between the floor plan and the written contract.
“That plaintiffs thereafter erected on said premises a bungalow of the dimensions of 24 feet by 40 feet with a back porch, .completing same on January 3, 1927.
“That by several oral agreements, made subsequent to said written contract, the length of the house was fixed at 40 feet and a rear porch added. Many other changes in the floor plans as shown by said ‘bungalow No. 124’ were made by the plaintiffs in the erection of said house, but the testimony as to the authority for making such changes is so conflicting that your referee is unable to find that said changes were agreed upon, or accepted by the defendants. The floor plans of ‘bungalow No. 124’ were not presented to the defendants at the time said oral agreement was made to change the length to 40 feet.
“That said house, as built, is reasonably worth the sum of $350 less than a house of the same class of materials and workmanship, built in accordance with the floor plans of said ‘bungalow No. 124’ shown on said exhibit A and •described in said contract.
“That by reason of said changes in plans, the extra labor and materials -furnished by plaintiffs were of the reasonable value of $494.54.
“That the reasonable value of said back porch is $116.80 and the reasonable value of the extra 2-foot extension at 27 cents per cubic foot (as fixed by the witness Smith) is $116.64. Both of these items are included in the item of •extra labor and materials set out in finding No. 7.
“That the plaintiffs left the cellar and cellarway in an unfinished condition, to remedy which the defendants were compelled to expend the sum of $25.
“That the account between the parties is as follows:
•Original contract....................................... $1,800.00
Extra labor and materials............................... 494.54
$2,294.54
Paid to plaintiffs and for labor and materials in their behalf and on and prior to February 7, 1927.............. $1,571.79
IRepairs on cellar and cellarway.......................... 25.00
.Balance due plaintiffs................................... 697.75
$2,294.54
“Conclusions.
“1. That the plaintiffs are entitled to judgment in the sum of $697.75, with interest from February 7, 1927, at the rate of 6 per cent. That said sum constitutes a valid first lien on said premises, and plaintiffs are entitled to foreclose said lien.
“2. That the costs should be equally divided.”
Plaintiffs filed a motion for judgment on findings of fact and conclusions of law. Defendants filed a motion for judgment on the special findings, notwithstanding conclusions of law. The court sustained plaintiffs’ motion and accordingly entered judgment.
Defendants contend that the findings and conclusions of the referee are so inconsistent that the judgment should be reversed and directed in their favor, for the difference between the amount due under the contract and the sum of $350 (the amount found by the referee to be the difference between the contract price and the value of the house as constructed). The referee found that there was a mutual mistake in writing the contract wherein the dimensions of the house were stated as 24 feet by 38 feet instead of 24 feet by 48 feet and that the house as built was worth $350' less than the house actually agreed upon.
It will be noted that the referee also found that extra labor and materials were furnished by the plaintiffs by oral agreement made between the parties subsequent to the execution of the written contract; that of these extras the back porch is of the reasonable value of $116.80 and that the reasonable value of an extra two-foot extension was $116.64, but that other than concerning these the testimony as to authority for changes was so conflicting that the referee was unable to say that they were agreed upon or accepted by the defendants.
We conclude that the plaintiffs are entitled to recover the original contract price of $1,800, in addition to the two extra items agreed upon ($116.80 and $116.64) less the several amounts for which the defendants are entitled to credit, viz., $1,571.79 already paid; $350, because the house as constructed is worth that amount less than the original agreed price; and $25, which defendants were obliged to expend for repairing the cellarway and for which the referee found the defendants should be allowed credit; and that the judgment be modified accordingly.
The judgment as modified is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover taxes paid under protest. It was tried to the court, which made findings of fact and conclusions of law and rendered judgment for defendants. The plaintiff has appealed.
The plaintiff is a mutual building and loan association organized under the statute (R. S. 17-1001 et seq.), without capital stock. Its shares of stock issued to its members have cash withdrawable value computed in accordance with the by-laws of the association. For the purposes of taxation the withdrawable value of the shares are taxed to the individual shareholders (R. S. 79-327). For the taxation of the association itself the statute reads:
“Every building and loan association doing business in this state without permanent and fixed capital stock shall return for assessment and taxation the actual value in money of its office furniture and fixtures, and also the values of its assets in excess of the cash surrender value of the withdrawable shares outstanding on the first day of March, deducting therefrom the assessed value of any real estate to which said building and loan association holds the title in fee simple in which its surplus assets may be invested, and such real estate shall be assessed as other lands and lots are assessed.” (R. S. 79-326.)
While in a sense all of the assets of the association belong to the shareholders, yet such assets are usually, perhaps always, in excess of the cash surrender value of the withdrawable shares held by members as computed by the by-laws’ of the association. R. S. 79-326 was designed to provide for the taxing of the assets of the association in excess of the cash surrender value of the withdraw-able shares, the taxation of which was provided for by R. S. 79-327. These statutes were enacted in'1909.' At the November election, 1924, our constitution was amended so as to authorize the legislature to classify mineral products, money, mortgages, notes, and other evidence of debt for the purpose of taxation. In 1925 the legislature (Laws 1925, ch. 273) provided for a registration fee, properly a tax, on real-estate mortgages to be paid at the time they are filed for record, and provided that thereafter such mortgages, and the notes secured thereby, shall not be otherwise taxable. This statute does not purport to amend R. S. 79-326, and the two statutes should be construed in harmony so far as that can be done. On all the mortgages made by the association after chapter 273, Laws of 1925, went into effect, the registration fees were paid. The findings of fact made by the trial court are as follows:
“1. At all times to which the issues in this action refer the plaintiff was a building and loan association, doing business under the laws of Kansas, with its principal office and place of business in Arkansas City, Cowley county, Kansas, and at all of said times was a mutual building and loan association having no permanent or fixed capital stock.
■“2. All of the shares of the plaintiff were at all times withdrawable shares. The cash withdrawal value of the shares was fixed by the by-laws of the association, providing for return of the amount paid in plus certain varying percentages of accumulated profits, according to the age of the shares, and more particularly set out in the by-laws, defendant’s exhibit No. 1 of the record.
“3. On March 1, 1927, at the time the assessment complained of was made, the total value of all of the assets of the plaintiff was $1,413,821. These, assets are classified in the assessment return made by the plaintiff, the amount and classification of which is not in dispute. They are as follows:
Cash on hand ......................:............................. $42,815
Loans to members on real estate .................................. 1,247,900
Loans on shares .................................................. 42,610
Bonds of all kinds............................................... 60,000
Real estate owned in Kansas other than office building............. 15,766
Due on real estate sold on contract................................ 3,206
Sundry personal accounts ......................................... 24
Office furniture and fixtures ....................................... 1,500
“Included in the bonds listed by the plaintiff at $60,000 were United States second and third Liberty loan bonds in the principal sum of $10,000. Included in the amount loaned to members on real estate at $1,247,900 is $449,100 of mortgages on Kansas real estate which the plaintiff had theretofore recorded and on which it had paid the mortgage registration fee as provided by chapter 273, Laws of Kansas 1925, and amendments thereto.
"4. On March 1, 1927, the cash withdrawal value of withdrawable shares of the association was $1,247,948. The mortgages on Kansas real estate on which registration fee had been paid amounted to $449,100. The par value of the United States Liberty loan bonds was $10,000. The assessed value of real estate owned by the association was $9,840. The value of furniture and fixtures of the association was $1,500.
“5. At the time for assessment for 1927 the plaintiff in due time made its return to the taxing authorities of Cowley county, Kansas, on forms provided therefor by the public service commission of the state, on which it listed its assets as set out in paragraph three hereof. Against the total of these items it set up deductions of: United States bonds, $10,000; Kansas real estate owned, at assessed value, $9,840; Kansas real-estate mortgages on which mortgage registration fee had been paid, $449,100; and cash surrender.value withdrawable shares, $1,247,948.
“6. The plaintiff did not return its furniture and fixtures for assessment, but in its pleading in this case admits liability for its taxes on the valuation of $1,500 furniture and fixtures, as assessed, and before the commencement of the action made payment of that sum, and does not seek recovery for the taxes on that valuation for furniture and fixtures.
“7. . . . The taxing authorities of Cowley county entered on the tax rolls of the county a valuation of $156,033 against the plaintiff and levied a tax for the year of 1927 at the rate of $3.80 per hundred, being the amount of state, county and municipal tax of the city of Arkansas City, all of which amounted to $5,929.34, one-half of which was in apt and due time paid, in December, 1927, duly protested, except $28.50, and that payment forms the basis of this action.
“8. Prior to the commencement of this action and prior to December 20, 1927, the plaintiff tendered to the county treasurer of Cowley county, Kansas, without protest, the sum of $28.50, the same being the December half tax for 1927 on the assessed valuation of furniture and fixtures belonging to the plaintiff, which was rejected, and immediately thereafter and before December 20, 1927, tendered to the county treasurer of Cowley county, Kansas, the sum of $2,964.67, being the December half tax demanded by the county on $156,033 at the rate of $3.80 per hundred, together with the written protest of the plaintiff against the legality of such tax, except as to $28.50 on furniture and fixtures; and thereafter the plaintiff commenced this lawsuit to recover the amount of the tax so paid, except the sum of $28.50, which it concedes to be a legal tax on the furniture and fixtures.
“9. The association reports as the true value of all its assets, $1,413,821.
It claims it should pay no tax upon United States Liberty bonds____ $10,000
Real-estate mortgages on which registration fee has been paid...... 449,100
Real estate assessed value......................................... 9,840
Cash surrender value of withdrawable shares...................... 1,247,940
Total $1,716,880
“It claims it should be relieved from tax on alleged exemptions of $303,067 more than its total assets.
“10. It is clear under the evidence that some part, just how much is not shown, of the $10,000 United States bonds, and of the $449,100 in real-estate mortgages upon which the registration fee has been paid, and real estate of the assessed value' of $9,840 is included in and is a part of the assets of the association that make the withdrawable shares of the value of $1,247,940. And when this sum is deducted some part, possibly all, of the value of the United States bonds, real-estate mortgages and real estate is a part of this $1,247,940 deduction, and to deduct these items again as claimed by the plaintiff would -clearly be a double deduction, and as shown amount to allowing a claimed exemption to the association of more than $300,000 above its total assets.
“11. Plaintiff has not shown what part, if any, of its United States bonds, its mortgages upon real estate, or its real estate, has been taxed by the taxing officers.”
Plaintiff excepted to the findings of fact under 9, 10 and 11 and asked other specific findings in lieu of them. The requested findings, in so far as they differ from findings made, simply present plaintiff’s theory of the case, as distinct from that found by the court. The use of the word “exemption” in findings 9 and 10 is criticized. Plaintiff was not claiming exemptions, but the word is used in the sense of deduction and is not seriously misleading.
Plaintiff contends that its government bonds, to the value of $10,000, are not taxable under state law. This may be conceded. (Salthouse v. McPherson County, 115 Kan. 668, 224 Pac. 70; Life Insurance Co. v. Anderson et al., 117 Kan. 451, 232 Pac. 592.) It further contends that the registration fees having been paid on mortgages to the amount of $449,100, held by the association as a part of its assets, such mortgages cannot be further taxed. And this may be conceded, for the statute (Laws 1925, ch. 273) specifically so provides. But these conclusions do not determine the question before the court in this case. The question here is, Which party, considering the shareholders collectively as one and the association itself as the other, is entitled to have these matters considered in determining the amount of the taxes it should pay?
The total assets of the association, meaning by that all property under its management and control as an association — in this case of the value of $1,413,821 — is for the purposes of taxation (R. S. 79-326, 79-327) divided into two funds, namely (1) the cash surrender value of all withdrawable shares of stock — in this case of the value of $1,247,984 — which is taxed to the individual shareholders, as provided by R. S. 79-327; and (2) the difference between such cash surrender value withdrawable shares and the total assets, which difference in this case is $165,873, and is spoken of as a surplus, which is taxed to the association as provided by R. S. 79-326. Under this statute there is first taxed to the association the value of its office furniture and fixtures, which in this case is $1,500. Evidently the legislature assumed that this class of property would have been purchased out of that part of the assets of the association which we speak of as its surplus. There is further deducted the assessed value of real estate owned by the association “in which its surplus assets may be invested.” In this case $9,840 was claimed by the association and allowed for this item. We note there appears to have been no showing that the surplus assets of the association were invested in this real property, but since that question was not raised in the court below we pass it. However, the statute obviously contemplates that such showing be made before the deduction is allowed, for if that part of the assets of the association which constitutes the cash value of its withdrawable shares were invested in real property, the proper party to have a deduction allowed by reason thereof is the shareholders, as distinct from the association.
Making this deduction of $9,840 from the surplus assets of the association, $165,873, leaves $156,033, which is the amount for which the association was taxed. This is correct as computed under R. S. 79-326. Plaintiff concedes that it should pay taxes on the value of its office furniture and fixtures, $1,500, but contends that the amount taxed to it in excess of this sum, namely, $154,533, is erroneously taxed to it, for the reason that it has among its gross assets government bonds not taxable and mortgages on which the registration fee has been paid, by reason of which they are not further taxable. Plaintiff’s contention on this matter would be sound if it had shown that its surplus funds were invested in such government bonds and in such mortgages. No showing of that kind was made. The trial court found there was no such showing, and plaintiff, in its brief and argument in this court, concedes that no such showing was made. Plaintiff contends that it is not possible for it to make such a showing, that its assets are not, in fact, segregated into the two funds above mentioned, that “its dollars are not earmarked,” that its books are not kept so as to show, nor from them can it be determined, which of its assets go to make up the cash value of withdrawable shares and which go to make up its surplus. Here is plaintiff’s real difficulty in this case. It is clear that it must make such a showing before it is entitled to the relief sought. The statute (R. S. 79-326) evidently contemplates that such assets can be kept separately, at least in a manner that is approximately accurate, and that they must be kept separately to the extent, at least, that a showing must be made as to whether or not it is the surplus funds of the association that are invested in real estate before the association itself is entitled to a deduction of the assessed value thereof. One who contends that its property is not subject to taxation, for whatever reason the contention may be made — whether the claim is the property is exempt from taxation, or whether the claim is that it has been otherwise or elsewhere taxed — has the burden of establishing such contention. In this case plaintiff has not established that any of its surplus funds, taxable to it under the provisions of R. S. 79-326, are invested in government bonds not taxable, or in real-estate mortgages on which the registration fees have been paid. Having failed to make such showing, it is not entitled to the relief sought, and the judgment of the court below must be affirmed. >
It is so ordered.
Hutchison, J., not sitting.
Burch and Marshall, JJ., dissenting.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel defendant to maintain its bridge across the Missouri river at Leavenworth for pedestrian and vehicular traffic. All the facts have been agreed upon except on the issue of the income and expense of conducting such bridge, and on this issue depositions were taken. The record has been abstracted and the case has been briefed and argued.
The pertinent facts, as stipulated and established by the evidence, are as follows: The Missouri river at the point in question is a navigable stream and forms the boundary between the states of Kansas and Missouri. Congress, by the act of February 25, 1889 (25 U. S. Stat., 691), authorized the Leavenworth and Platte County Bridge Company, a Kansas corporation, to construct and maintain a bridge across the Missouri river at the point in question for the passage of railway trains, wagons and -vehicles of all kinds, steam and street cars, animals, foot passengers, and for all road travel, for such reasonable rates of toll and “under such reasonable rules and regulations as may be prescribed by said corporation, its successors and assigns,, and-be approved from time to time by the secretary of war.” The bridge so built was to be a lawful structure, recognized as a post route, upon which no higher charges should be made for the transmission of the mails, the troops and munitions of war of the United States, than the rate per mile paid for the transportation over the railroad or public highways leading thereto; the bridge to enjoy the rights and privileges of other post roads, and equal privileges in the use there.of to be granted to all telegraph companies, and the United States to have the right of way across the same for postal telegraph purposes. The design of the bridge was outlined in the statute, the plans were to be approved by the secretary of war, and it was provided that the railroad companies desiring to use the bridge should have equal rights to the passage of trains over the same upon the payment of reasonable compensation for such use, and in case the owner of the bridge and the several railroad companies failed to agree upon such payment and upon rules and conditions to which each should conform in using the bridge, all matters at issue between them should be decided by the secretary of war upon a hearing and proof. The right to alter, amend or repeal the act was expressly reserved. By the act of July 25, 1890 (26 U. S. Stat., 291), congress authorized a change in the design and structure of the bridge, the plans to be submitted to and approved by the secretary of war.
The defendant, The Leavenworth Terminal Railway and Bridge Company, is a Kansas corporation and is the successor in interest of the Leavenworth and Platte County Bridge Company mentioned in the acts of congress above referred to. The purpose for which the company was organized, as shown by its original charter filed in January, 1892, is the construction and maintenance of a railroad and of bridges in connection therewith, the railroad to be for the transportation of passengers and merchandise and to furnish terminal facilities for other railroads in the city of Leavenworth, and to run from some point in the city of Leavenworth to some point in the state of Missouri, an estimated length of fifteen miles, and the Missouri, river was to be bridged and crossed. By its amended charter filed March 2,1892, the declared purpose of the corporation was to construct, maintain and operate a railroad, as stated in its original charter, and to exact and collect for itself toll and charges for the use of the bridge, railroad tracks and terminal facilities; to acquire any such bridge, tracks, or terminal facilities by purchase; to acquire franchises, and to hold, purchase, sell or mortgage such real and personal property.
On July 18, 1922, the city of Leavenworth, by ordinance granted to defendant a franchise (being a renewal or an extension of a previous franchise) of the right .of way, to construct, maintain and operate its railroad and terminal facilities in the city of Leavenworth, on the conditions and provisions, among others, that the railway and wagon bridge across the Missouri river and approaches shall always be kept open, maintained and operated in such a way as to afford speedy and safe facilities for the use of the bridge for highway purposes, and to accommodate both wagon and railroad travel over the same.
The bridge, as constructed and used for some time, was a steel bridge consisting of two 330-foot pin-connected truss spans and ■one 400-foot pin-connected swing span located on piers. The bridge was 16 feet wide, with a single track of railroad through the center. Planks were laid on top of the ties to the height of the rail, forming the floor for vehicular and pedestrian traffic. In 1916 a walk-way four and one-half feet wide was built on the south side of the bridge, with a wooden railing on the outside of it. Three railroads use this bridge for their trains, and together operate from 55 to 60 trains across the bridge each 24 hours. Vehicles and trains could not use the bridge at the same time. Prior to June, 1926, there was no other bridge across the Missouri river at Leavenworth, but in that month there was completed by the federal government a bridge across the river at Leavenworth, and within two miles of this bridge, for the use of vehicular and pedestrian traffic, free of toll charges. This connected with the main streets of Leavenworth and improved roads in Kansas and with improved roads on the Missouri side. This resulted in a substantial decline of the use of defendant’s bridge for such purposes. New persons would pay toll to cross defendant’s bridge when, just as conveniently, or with but little further travel, on paved or otherwise well-improved roads, they could cross a better bridge free of toll.
The use of the bridge for railroad purposes is necessary, and for many years it formed a part of the interstate lines of railroads engaged in interstate commerce, and the transportation of the United States mail, and for these purposes must be maintained.
Generally speaking, the bridge was used for two classes of traffic —for the use of railroads, all of which was interstate commerce, and for vehicular and pedestrian traffic, which may or may not have been classified as interstate commerce. After the opening of the free bridge by the government the revenues from the vehicular and pedestrian traffic on defendant’s bridge were insufficient to pay the operating cost and other proper expenses of defendant incident to such traffic.
About February or March, 1927, defendant ceased to maintain or operate its bridge for pedestrian and vehicular traffic.
The city of Leavenworth has never at any time, by ordinance or otherwise, attempted to forfeit the franchise rights of the defendant granted to it by ordinance previously mentioned; neither has the state attempted to forfeit the corporate franchise of defendant.
Turning now to the legal questions presented, it will be noted that this is not an action on behalf of the city of Leavenworth to forfeit defendant’s franchise on the ground that defendant is not complying with its provisions, nor to seek any damages for breach thereof. Neither is it an action in which the state seeks a dissolution of the corporation because of its failure to continue to perform all of the classes of business proposed by its charter. The action is to compel defendant to carry on a branch of its business which, through no fault of its own, has become unremunerative. Plaintiffs assert their right to the relief sought on the grounds that the provisions of the acts of congress above referred to, the purposes for which defendant was incorporated, as shown by its amended charter and the provisions of the franchise ordinance of the city of Leavenworth, are mandatory in their nature and require defendant to continue to maintain and operate its bridge for vehicular and pedestrian traffic even though defendant does so at a financial loss. Defendant argues that the provisions of the acts of congress and of its charter are but grants of authority which it may exercise or not at its option. But we need not discuss these arguments further, for the action must be dismissed for a reason suggested by defendant.
Defendant argues that since the Missouri river is a navigable stream, forming the boundary between the two states, that congress, in the exercise of its power to regulate interstate commerce and of its authority over navigable streams, was authorized to enact the statutes above referred to, and that in doing so it reserved to itself and to the federal government all questions relating to the structure of the bridge or nature of the traffic- over it, even to the extent of determining the tolls or charges which might be made, and rules or regulations concerning its use; hence, that this court is without authority to compel defendant to construct its bridge in any specific way, or so as to accommodate any specific travel, or compel defendant to permit any specific traffic on the bridge, especially one which would cause it a financial loss, ,01- to provide the tolls, charges, or rules or regulations for such traffic.
This argument is sound and must be sustained. That congress has power to regulate commerce among the states, and authority to supervise structures over navigable streams, is well settled; indeed, it is not here controverted. Congress may', directly or through a corporation created for that purpose, construct bridges over navigable streams between states for the accommodation of interstate commerce by land, and has frequently done so. (Luxton v. North River Bridge Co., 153 U. S. 525, 38 L. Ed. 808, 14 Sup. Ct. Rep. 891.) Here, by the -act authorizing its construction, the federal government has assumed complete control over the structure and use of the bridge. (N. Y. Central R. R. v. Hudson County, 227 U. S. 248, 57 L. Ed. 499, 33 Sup. Ct. Rep. 269; St. Louis, Iron Mt. & S. Ry. v. Edwards, 227 U. S. 265, 57 L. Ed. 506, 33 Sup. Ct. Rep. 262; Erie R. R. Co. v. New York, 233 U. S. 671, 58 L. Ed. 1149, 34 Sup. Ct. Rep. 756.) This court can exercise no authority over this bridge' indirectly that it could not do directly. (Kansas Southern Ry. v. Kaw Valley Dist., 233 U. S. 75, 58 L. E. 857, 34 Sup. Ct. Rep. 564.)
Since this court has no jurisdiction of questions involving the structure of the bridge, or the character of the interstate traffic over it, this proceeding should be dismissed.
It is so ordered.
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The opinion of the court was delivered by
Garver, J. :
The plaintiff in error contends that the evidence fails to show culpable negligence on the part of the railroad company, and that it does show contributory negligence on the part of the parents of the child injured. The allegations of negligence' contained in the petition are of a somewhat general nature, but specifically charge negligence on the part of the employees in charge of the train in failing to give any warning signals of the approach of the train to the crossing, and also in failing to observe the child upon the track in time to prevent the train from run'ning against or over it. The jury found that the bell of the engine was rung, but the whistle not blown, for the crossing, though the whistle was sounded within an audible distance of the crossing as the train was approaching it. It was also found by the jury that the engineer and fireman, while in their proper places, were not looking ahead intently enough to observe the children upon the track, and this failure on their part, in "not keeping a proper and careful lookout ahead,” is the particular act of negligence found by the jury as the basis of the plaintiff’s right to recover. This finding of negligence, it is claimed, is entirely unsupported by the evidence.
It is evident that the injury complained of was caused by the train. But, outside of mere inferences and conjectures, there is no evidence which shows the proximity of the children to the railroad-track immediately before the train reached the crossing, nor whether they were on, or at the side of, the track when the train struck them. The engineer and fireman both testified that they saw nothing of the children at the crossing, and knew nothing of any one being struck or injured at that point until the train arriyed at Kansas City, when information of the accident was conveyed to them by telegraph. The finding of the jury that the children were standing between the rails and were struck by the pilot of the engine has its support in the testimony of a witness who saw the children as they lay upon the ground, within a few minutes after the accident, and who stated that a straight line drawn from where the surviving child lay through two marks upon the ground, which looked as if the body had struck at those points, and extended in a southwesterly direction, would cross the track at a point where the traveled part of the public highway and the railroad-track intersected each other; that the distance from this point in the center of the track to the first mark on the ground was 13 feet, to the second mark 20 feet, and to where the body lay 31 feet. The children were found lying from three to six feet apart, and about five or six feet west of a board fence which extended north from the cattle-guard on the east side of the public road. There were marks on and near this fence, indicating that, when struck by the train, the deceased child was thrown against the fence and rebounded to the place where he lay. The physician who was called in and who testified as a witness for the plaintiff below gave it as his opinion that the injuries, other than those to the head, were caused by contact with the fence. The evidence also shows that the children, when last noticed at the house, were playing with a small wagon, which was, after the accident, found in pieces and scattered along between the rails at and for some distance east of the crossing. It is, in our opinion, extremely doubtful that the jury drew a correct inference from these facts as to the situation of the children when struck by the train. There was no mark on or about the engine or cars, or within a distance of 13 feet of where the jury found the children were when struck by the train indicating what position they were in. Even assuming that the two marks upon the ground-were made by the body of the surviving child striking at these points, and that the body was thrown in a direct line from the point where it was struck to where it was afterward found, yet there is no more reason to infer that the child, when struck, was at a point on this line between the rails than that it was on the same line outside of the north rail. It is also inconceivable that the pilot of an engine running at a speed of 30 or 35 miles an hour could strike a child without breaking its legs and without leaving upon them any marks of violence ; or that it could be struck with such terrible force and not thrown with greater violence, and in an entirely different manner, from that supposed in this case. The injuries upon the head, the other injuries of the arm and thighs, the marks upon the ground and the absence of injuries to the legs indicate with more reasonableness that they, in some way, were struck by the side of the train as it rushed past them. However, conjectures of this kind are now unimportant, except as they show the danger of a jury being carried away by the sentiment and sympathy aroused by the narrative of such a sad occurrence, and of their failing to weigh the evidence, under the instructions of the court, with that even-handed impartiality and fairness which should prevail in every case.
Is there any evidence to sustain .the finding of the jury as to the particular acts of negligence upon which the general verdict was based? The burden of the proof of negligence rested upon the plaintiff: and, while negligence might be inferred from the other facts which were established by the evidence, it could not be based entirely upon mere presumptions not founded on facts. The learned trial judge very fully and clearly instructed the jury that they could not presume negligence on the part of those in charge of the train from the mere fact that the child was injured, and that the presumption of law, in the absence of evidence to the contrary, was that the engineer and other employees in charge of the train were in the proper performance of their duties. This burden of proof upon the plaintiff, and these presumptions of law in favor of the defendant, were controlling in the entire course of the trial; the verelict and findings of the jury should have been directed and formed by them until they were superseded by evidence which satisfies and convinces. An examination of the record fails to disclose a single line of evidence tending to show that these children should have been seen by the engineer or fireman, if in the proper discharge of their duties, in time to have averted the accident. How close they were to the track, and at what point on the public highway a moment before the train reached the crossing, are left to mere conjecture. On the west side of the highway and extending to within four or five feet of the track was a board fence to obstruct the view of the engineer and fireman, and tending to prevent their seeing a small child on the highway. There is no evidence that they did see them, or that they could have seen them by a careful lookout. Can it be said, under such circumstances, that it may be presumed that the children were on or so near to the track, and were for such a length of time before the train reached them, that the train men could and should have seen them in time to have avoided the injury? We think not. It will not do to say, even against a railroad corporation, that the days of pure accident have passed, and that injuries are not sustained except through the culpable negligence of another. This unfortunate occurrence appeals strongly to human sympathies, and invites the aid of the helping hand to alleviate suffering and bereavement; but by no such consideration should the rights of parties be measured in courts of justice. For every wrong there should be an adequate remedy, but for injuries inflicted without wrong there is no legal compensation. The law does not justify the mulcting of a party in damages simply because he may have been the innocent cause of an injury and consequent loss to another. It is true the jury in this case were not concluded by the testimony of the engineer and fireman that they were on the lookout, and did not see the children upon the track or about the crossing; but if their testimony be laid out of the case entirely, there is nothing to show what they did see, or could or should have seen, if at their posts in the proper performance of duty. In that situation the jury should have been governed by the rules of law laid down in the instructions of the court, which required the plaintiff to prove negligence as a basis of a right to recover, and wdiich shield the defendant by the presumption that its employees were in the proper performance of duty and operating the train with due care. Beyond the fact of the injury and the location of the children thereafter, there is no direct proof of any fact tending to show how or why the accident occurred. The inferences drawn from the testimony are, for the most part, based upon other inferences and presumptions which just as reasonably warrant different conclusions. Mere theories and inferences' do not authorize a verdict in a case of this nature, unless they are the only conclusions which can reasonably be drawn from facts proven. (Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600, 40 Pac. Rep. 915; Railway Co. v. Henrice, 92 Pa. St. 431; United States v. Ross, 92 U. S. 281.) As the verdict of the jury was based upon this finding of negligence, we are of the opinion that it is not supported by the evidence, and should have been set aside and a new trial granted. It is not a case of conflicting evidence, but there is an entire absence of evidence to prove the fact found.
Another error assigned is, that the evidence shows contributory negligence on the part of the parents of the children. It is contended that because they lived in such close proximity to the railroad, on which frequent trains were passing every day, the exercise of ordinary care required such watchfulness as would 'have prevented the children from wandering to or upon the track. We cannot agree with the counsel in this contention. We do not understand that the law is so severe as to require families situated as this one was to surround their infant children with impassable barriers, or to employ a custodian or nurse who would keep them away from'danger. While the house and yard were not inclosed with a fence or other obstruction to prevent the children from getting upon the public highway, yet the testimony does not show that they were inclined to wander from home, or were in the habit of going toward the railroad, or that any immediate danger in that respect was to be apprehended. The evidence, we think, shows that these parents were reasonably watchful, and were at this time in the exercise of ordinary care. In any event, we think the evidence shows a case of such, nature as to make the question of contributory negligence a proper one to be determined by the jury. (Smith v. A. T. & S. F. Rld. Co., 25 Kan. 742; A. T. & S. F. Rld. Co. v. Calvert, 52 id. 547.)
There is one other matter of which complaint is made to which we will refer before closing this opinion. The petition alleged that the plaintiff had been duly appointed by the probate court of Douglas county administrator of the estate of Oden Toyne, deceased, and that he had qualified as such. The answer in the case was a general denial, unverified. On the trial the railroad company offered to show that Oden Toyne died possessed of no estate either in Douglas county or elsewhere, and that, consequently, the probate court of Douglas county having no jurisdiction or authority to appoint an administrator, the appointment of the plaintiff was void. This offer was refused by the court. We think the ruling, was proper. This was simply an attempt to show that the jAaintiff did not have the legal capacity to maintain this action, because he was not the administrator of the estate of the deceased. Section 108 of the code provides that all allegations of any appointment or authority shall be “taken as true unless the denial of the same be verified by the affidavit of the party, his agent, or attorney.” The allegation of the due appointment of one as administrator of an estate imports something more than the mere fact of his being named as such ; it implies legal authority for the appointment, and, when not denied under oath, the trial proceeds upon the conclusive admission that the party thus claiming to act by virtue of such an appointment or authority has had the same legally conferred. (Walker v. Fleming, 37 Kan. 171; Rogers v. Coates, 38 id. 232.) The case of Perry v. St. J. &c W. Rld. Co., 29 Kas. 420, to which we are referred by counsel for plaintiff in error, has no application in this case, for there the validity of the appointment of the plaintiff as administrator was challenged by the pleadings, and was properly made an issue in the case.
Other rulings of the court are complained of in the brief of the plaintiff in error, but as they will probably not arise upon another trial it is not necessary to consider them.
Judgment will be reversed, and the case remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
The plaintiff in error, Pomeroy, commenced this action in the district court of Graham county to enjoin the removal of a frame stable from certain lots in Hill City which he had purchased at a sheriff’s sale made pursuant to a judgment of foreclosure of a mortgage held thereon by him. The premises were bid in by him for $75. A temporary injunction was granted by the probate judge, which, on motion of the defendants, was dissolved by the district court. To reverse this order these proceedings in error were instituted. The subject of controversy is a certain frame stable situated on the mortgaged lots. The evidence does not show its value, but the petition for the injunction alleges that the plaintiff purchased the lots and building at the sher ifFs sale for $75, aiid that the lots, exclusive of the stable, are not worth to exceed $10. A proceeding in error cannot be taken to this court or to the supreme court, in any civil action, “unless the amount or value in controversy, exclusive of costs, shall exceed $100,” except in certain specified classes of cases to which this case does not belong. Accepting the allegations of the petition in this case as the only evidence of the amount or value in controversy, it is clear that-the case was not appealable. But, without this, the result would be the same, for the record must in all cases affirmatively show jurisdiction. (Loomis v. Bass, 48 Kan. 26; Packard v. Packard, 56 id. 132, 42 Pac. Rep. 335.)
If we look to the merits of the case, we find little conflict in the evidence as to the ownership of the stable in controversy. The preponderance of the evidence goes to show that the stable was not on the land at the time the mortgage was executed; that it never belonged to the owner of the lots,-but was moved thereon with his consent by other'persons. The building was not placed upon a permanent foundation and could be easily removed without injury to it or the lots. We think the decision of the court is amply supported in the evidence.
For the reasons first given the case will be dismissed.
All the Judges concurring.
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The opinion of the court was delivered by
Clark, J. :
This action was brought in the district court of Riley county by James Stagg to recover from R. T. McCamon a small tract of land embracing about 8-J acres lying south of a line running east and west equi-distant from the northern and southern boundaries of section 26, township 10, range 7 east, in said Riley county, and between the Kansas river on the southwest and the half quarter-section line running north and south through the southwest quarter of said section. The plaintiff claims title through successive conveyances from the original patentee, to whom the land was conveyed by the government on August 16, 1860. The original plat of this section shows that at the time the survey was made the Kansas river ran through said section in a southeasterly direction, entering it on the west at a point 26.40 chains' south of the northwest corner of the section. The official plat of the original survey shows that a portion of the section is designated as “Lot 1,” and contains 34-/-^ acres, and that it is bounded on the north by the northwest quarter of the northwest quarter of the section, on the east by a line running north and south through the center of that quarter-section and extending to the Kansas river on the southwest quarter of the section, on the south and southwest by the Kansas river, and on the west by section 27. It is admitted by the plaintiff in error that the plaintiff below established a clear title to lot 1. Since the original survey was made and the patent issued, the course of the river has very materially changed, so that the land lying south of the northwest quarter of the section, and between the Kansas river on the south and southwest, and the half quarter-section line running north and south on the east, embraces about 8i acres, while under the original survey the land thus bounded embraced only about 1¿ acres and was platted as a part of lot 1. The defendant established a perfect chain of title in himself from the government to lot 2 in said section 26, which contained, as shown by the original survey and official plat thereof, 22T8-g-°7r acres, the half quarter-section line running north and south through the southwest quarter of the section being the boundary line between lots 1 and 2. The defendant claims that, as the com*se of the river has changed so that its left bank is now south and west of its former location (at the time the original survey and official plat were made), the new land formed by reliction, both on the south and southwest of lot 2, became a part of lot 2. The plaintiff does not controvert this claim as to the accretions on the south of lot 2, (which increases the number of acres in that lot from 22-^g- to more than 40,) but contends that the new land thus formed which lies west of the half quarter-section line, and adjoining the original southern boundary of lot 1, became a part of lot 1; making the number of acres in that lot SdyW, an increase of only Tsg-8-g- of an acre over that shown by the original survey. The trial court sustained the plaintiff in this claim, and in this we see no error. It is said in New Orleans v. United States, 10 Pet. 662, that
‘1 The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations shall still hold the same boundary, including the accumulated soil. No other rule can be applied on-just principles. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory, and, as he is also without remedy for his loss in this way, he cannot be held ac^ countable for his gain.”
The quantity of land embraced in that part of lot 1 which lies north of the half-section line was, by the changes in the course of the river, diminished about seven acres. As the southern boundary of lot 1, as shown by the official plat of the original survey, was the Kansas river, that boundary remains unchanged. In like manner the boundary line between lots 1 and 2 is an extension of the half quarter-section line running north and south to the river, and the owners of these lots are entitled to the accretions on the left bank of the river which lie south of the line which originally formed their southern boundaries, respectively.
The defendant also contends that no part of the southwest quarter of the section was ever properly included in lot 1; that the statutes regulating the survey of public lands forbade such a division of territory, and that, if the statute were complied with, the half-section line running east and west should be extended through to the river, and the triangular tract of land, embracing about li acres, which lies south of such line, and which is shown by the plat to be a part of lot 1, should have been platted as a part of lot 2. We are unable to discover any error, in the survey, and the presumption is that the rules prescribed by law for the subdivision of the section were followed, both in making the survey and the official plat thereof. Section 2897 of the Revised Statutes of the United States provides that, “ in every case of the division of a quarter-section, the line for the division thereof shall run north and south.” This rule was complied with by the surveyor in the division of the southwest quarter of the section, and lot 2 lies wholly east of that line. That section further provides, that “in every case of a division of a half quarter-section, the line for the division thereof shall run east and west.’ ’ This rule was also followed whenever a subdivision of a half quarter-section was made. The divisions of the' several quarter-sections were made by lines running north and south, and in the division of the half quar ter-sections the lines were run east and west, as prescribed by the statute.
We think the court properly held that the' plaintiff was not precluded from maintaining this action by the bar of the statute of limitations, and as no errors appear in the record, the judgment of the court will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
The errors assigned are : (1) The court erred in overruling the plaintiff’s motion to be allowed the full amount of taxes so paid by him, with interest and costs allowed by law; (2) the court erred in admitting testimony over plaintiff’s objection to show the excessive assessment in 1884 by the township trustee; and (3) the court erred in overruling' plaintiff’s motion for a new trial, and in rendering judgment for only $9.40, when, according to the law of the land, the judgment should have been' for $160.
Paragraph 6996 of the General Statutes of 1889 reads as follows :
‘ ‘ If the holder of a tax deed ... be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed . . . the full amount of all taxes paid on such lands, with all interests and costs as allowed by law up to the date of said tax deed, including the costs of such deed and the re cording of the same, with interest on such amount at the rate of 20 per cent, per annum.”
While the language of the statute is very broad, or, as was said in Jackson v. Challiss, 41 Kan. 258, the terms thereof are “sweeping and vigorous,” yet they mean precisely what they say, viz., “that the party paying the taxes, or holder of a tax deed, when defeated in an action, shall be entitled to recover the full amount of taxes paid, with interest and costs as allowed by law.” Not such portion of them as a court may years after reassess ; not a part of them, but the fall amount paid. And the court had no authority to go back and hear evidence on the value of the real estate, and virtually usurp the office of township trustee for the time, and reassess the property to the prejudice of the purchaser, who is in no way to blame for the excessive assessment in the first place, even if it wTas fraudulent. What difference can it make to him what the reason is that renders his deed invalid? He innocently and in good faith invested his money on the assurance of the law that, should he be defeated in his title to the land for any reason, he should recover the amount he had invested, with interest and costs. And our supreme court has repeatedly and uniformly so held the law to be.
It is admitted that this land was subject to taxation for the year 1884. There was no dispute as to the amount of taxes paid, nor the amount of interest and costs as allowed by law. Ik was the duty of the defendant to pay his taxes, and, if they were erroneously assessed, it was his duty to have the mistake corrected in the way provided by law, or suffer the consequences of his neglect in the matter. As between him and a purchaser at a tax sale, he is the least innocent of the two and should be the one to’ suffer, if either. He cannot say to a court of equity that he is free from blame. He has permitted his lands to be sold for non-payment of taxes, and to permit a court to play assessor at this late date, and leave the plaintiff, who has expended his money on the strength of the public record, without any remedy for the wrong done him, is certainly beyond equity and good conscience ; and if the decision in this case were permitted to stand as correct it would practically abrogate said paragraph 6996. In Coonradt v. Myers, 31 Kan. 31, the court says :
‘ ‘ In an action for the recovery of possession between the holder of a tax title and the original owner of the land, if the tax title is adjudged invalid, can the holder of such title recover all the taxes theretofore paid by him, with interest, or can he recover only those paid within three years prior to the commencement of the suit? This question must be answered in favor of the recovery of all taxes. . . . The theory upon which this court has acted, which is the general rule of construction in other states, and which is the obvious policy of our statutes, is to secure to the tax purchaser either the land, or his tax investment with its large statutory interest. In that way it compels the prompt payment of taxes by holding out large inducements to tax purchasers to invest upon the delinquencies of original holders.”
Under the ruling of the court below, the plaintiff not only lost the land, but lost nearly all of his investment ; this through no fault of his, and in the face of a statute that expressly says he shall recover the full amount of taxes paid on such lands, with all the interest and costs, without the restriction of limitation of any kind or character. The position taken by the defendant in error is not only novel, but unauthorized by law. “Equity has no jurisdiction under its general power to correct merely unequal or unjust assessments where there is a statutory board that may do so.” (Cooley, Tax. [1st ed.] 528 ; Rhoads v. Cushman, 45 Ind. 85.) He has not attempted to take advantage of any of the remedies afforded him by statute. The county board of equalization is authorized at its meetings to correct and equalize the assessment made, and at such times the owner of such property has an opportunity for a hearing at which to contest the legality of the assessment; and the statute further provides a remedy by injunction to enjoin the illegal levy of any tax, charge, or assessment, or, if the levy has been made, to enjoin the collection, or any proceeding to enforce the same, if commenced within the time limited by law. None of these remedies had the defendant thought fit to invoke, but he has lain quietly by for more than six years without complaint. We think the plaintiff is entitled to all the taxes which he paid, and all interest and costs as allowed by law.
The judgment in this case will therefore be reversed, and the cause remanded with instructions to render judgment in accordance with the views herein expressed.
All the Judges concurring.
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The opinion of the court was delivered by
Garver, J. :
The plaintiffs in error, Golding and others, were the defendants in an action brought by Eidson and others on a note and mortgage. The case was tried by the court, and, as shown by the journal entry, the court, after hearing the evidence, found that all of the allegations and averments contained in the petition of said plaintiffs were true, and that there was due from the said defendants G. E. Golding and A. W. Golding to the said plaintiffs, on the note and mortgage sued on in this action, the sum of $1,010.
The error complained of and urged as the ground for the reversal of this judgment is the ruling of the court in sustaining an objection made by the plaintiffs below to the introduction of any evidence under the answer of the defendants, on the ground that the answer did not state facts sufficient to constitute a defense. The answer of the defendants was very in-artistically drawn, and, except by the most liberal construction, could not be held to state any defense. But, conceding that the ruling of the court upon the objection was erroneous, can it be reviewed by this court? If the trial was regularly conducted, which we must assume to be the case, the plaintiffs would, under the pleadings, have first introduced their evidence and rested, and then, in the very midst of the trial, would have occurred this objection and the ruling of the court thereon. The objection being sustained, there remained as a basis for the judgment the pleadings and evidence introduced by the plaintiffs. It was this ruling of the court during the trial of the case which deprived the defendants of the benefit of any evidence which' they might have introduced in support of the allegations of their answer. This must be held to be a ruling occurring at the trial, for which, if erroneous, a new trial could have been granted by the district court. (Gen. Stat. 1889, ¶4401.) The record in this case does not show that a motion for a new trial was made in the district court on this or any other ground. The rule is well settled in this state, that ‘ ‘ errors of law occurring at the trial ’ ’ for which a new trial may be granted by the trial court are waived, and cannot be reviewed by an appellate court when a motion for a new trial was not made. (Nesbit v. Hines, 17 Kan. 316; Decker v. House, 30 id. 614; Buettinger v. Hurley, 34 id. 585; Duigenan v. Claus, 46 id. 275.)
On the authority of the above cases, the judgment must be affirmed.
All the Judges concurring.
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' The opinion of the court was delivered by
Cole, J.:
The defendants in error executed their promissory note for $130 to one T. C. Mitchell, who afterward assigned said note to plaintiffs, in error, said assignment being indorsed upon the note in the following words :
“Without recourse, pay to D. W. Stauffer, or order, $55, and to N. C. Jones, or order, $75, each with the interest thereon.
T. C. Mitchell.”
Plaintiffs in error brought their action before a justice of the peace upon said note and recovered; and, the cause being appealed to the district court, it was tried without a jury, and a judgment rendered against the plaintiffs in error for costs. From the decision of the district court plaintiffs in error bring the case here for review.
Several errors are alleged, but all maybe considered together. The trial court held that the assignment of the note was an attempted assignment to each of the plaintiffs in error, and was therefore void, and hence they could not maintain the action; and it is here contended that, even if the assignment was valid, the plaintiffs in error could not maintain a joint action on the note in question. We think the trial court was in error. Our statute prescribes (paragraph 4103) :
1 ‘ Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 28.”
It further provides, in paragraph 4114 :
“Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants.”
Section 28, referred to in the first section quoted, is as follows:
“An executor, administrator, guardian, trustee of an express trust . . . may bring an action without joining with him the person for whose benefit it is prosecuted.”
We suppose that it will not be questioned that if the above assignment had been made to Stauffer and Jones without specifying the particular interest of either in the note, they could have maintained a joint action thereon, however unequal their interests might have been, and, under the section of the statute last quoted, if the assignment had been made to another person as trustee for the plaintiffs in error such trustee could have maintained an action for the benefit of plaintiffs in error, although their interests in the note were unequal. We fail to see why an action could be maintained by a trustee for the benefit of the plaintiffs in error, or by the plaintiffs in error, where the amount of interest of each is not disclosed, and yet that an action may not be maintained like the present one. The interest of the plaintiffs in error is a common interest. It is true each is not interested to the same degree, but the community of interest exists in the one cause of action upon which they seek to recover against the same parties defendant.
In the case of Swarthout v. Railroad Co., 49 Wis. 625, an action was brought by Swarthout and several insurance companies for damages caused by the railroad company. Prior to the beginning of the action each of the insurance companies paid to Swarthout the amount of its respective policies, and Swarthout delivered to each of said companies a written assignment of his claim to the extent of the several payments made. It was objected in that case that the rights so acquired by the insurance companies were distinct and several, and that therefore there could not be a joinder of the insurance companies as parties plaintiff, but that each must sue separately for its own individual injury. In delivering the opinion of the court in that case, Cole, J., said :
‘ ‘ But it is insisted that the facts stated show that the plaintiffs have no right to join in bringing the suit. . . . It is said if the defendant is liable at all it is separately and distinctly liable to each insurance company to the amount paid on its policy. But it seems to us it would be an intolerable rule to allow each insurance company to bring a separate suit. The railroad might well say, were this attempted: ‘ The claim is indivisible ; there is but one wrongful act complained of, one loss, and one liability.’ ”
In the same case the doctrine laid down in School District v. Edwards, 46 Wis. 150, is approved. In that case, Lyon, J., in delivering the opinion of the court, at page 158, says :
“The fact that the several school districts are en titled to the money in unascertained, and probably in unequal, proportions, is no impediment to this action. This is a matter between the districts, with which the appellants have no concern. It is sufficient for the purpose of maintaining the action that they are jointly entitled to the money claimed.”
In the case of the A. T. & S. F. Rld. Co. v. Huitt, decided by this court (1 Kan. App. 788, 41 Pac. Rep. 1051), the facts were the same as in Swarthout v. Railroad Co. In that case Dennison, J., in delivering the opinion of the court, says:
‘‘ Who are interested in the subject-matter of this action? The insurance companies, to the extent of the amount paid by them, respectively, and the interest thereon, and Huitt & Johnson for the remainder; and, clearly, all of them are interested in obtaining the relief demanded. The relief demanded was the judgment against the railroad company for the burning of the barn.”
In this case neither the execution of the note sued upon nor the written assignment thereof has been put in issue, and, such being the case, it stands admitted that the defendants in error executed the note, and that it was duly assigned. Paragraph 491, General Statutes of 1889, provides as follows :
“It shall be lawful for any person or persons, having the right to demand any sum of money upon any protested bill of exchange, bond or note, as aforesaid, to commence and prosecute an action for principal, damages, interest, and charge of protest, against the drawers or indorsers, makers or obligors, jointly or severally, or against either of them separately.”
Paragraph 4492, General Statutes of 1889, provides :
“Judgment maybe given for or against one or more of several plaintiffs, and for or against one or more of several defendants. It may determine the ultimate rights of the parties on either side, as between them selves, and it may .grant to the defendant any affirmative relief to -which, he may be entitled.”
The plaintiffs in error had obtained the title to the note in question by a legal assignment. That which they obtained was a single cause of action, and they were equally interested in that cause of action being upheld. They were suing upon a single contract, and the statute last above cited provides the manner in which judgment might be rendered in said cause. It is the policy of our code to avoid a multiplicity of actions, and to simplify the manner in which relief shall be obtained in the different courts of this state, and, whatever may have been the rule under the common law, to hold that under our code an assignment like the one in question may not be recovered upon is, in our opinion, opposing not only the spirit but the letter of the statute. We have examined the cases cited by counsel for defendants in error, and, while some of them hold a different doctrine from that, which is above announced, such holding was under statutes entirely different from those of our state. On the other hand, the cases are numerous which hold as we do upon this question. So far as the cases from this state cited by counsel are concerned, we believe this decision to be in harmony with them.
The judgment of the district court will be reversed, and this cause remanded for further proceedings in accordance with this opinion.
All the Judges concurring.
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The opinion of the court was delivered by
Dennison, J. :
In determining the priority of liens in this case, two questions are raised: First, was the lien of Bagby’s judgment prior to the lien of Kingsley’s mortgage? Second, if so, did Bagby lose his priority by failing to issue and levy an execution within one year from the rendition of his judgment? We must answer the first question in the affirmative, and the second in the negative.
“Judgments of courts of record of this state shall be liens on the real estate of the debtor within the county in which the judgment is rendered from the first day of the term at which the judgment is rendered. . . .” (Gen. Stat. 1889, ¶ 4515.)
Our statutes clearly classify -terms of the district court into regular terms and special terms. The regular term is one which is held at the time fixed by statute, and a special term is one which is called by the judge according to paragraph 2086 of the General Statutes of 1889. Said paragraph 2086 also empowers the judges of the several district courts to hold such adjourned terms as they may deem necessary. An adjourned term is not an original term ; the definition of the word “adjourned ’’ precludes it. There must be either a regular or a special term in session, and the business of that term delayed, postponed, or put off until some more convenient time. This more convenient time would be an adjourned term, and a continuation of the regular or special term.
“An adjourned term is but a continuation — a part of the regular term. Giving the district court power to hold an adjourned tejm gives it power, not to adjourn from day to day, but to adjourn over a length of time over intervening obstacles to the holding of court. It seems to contemplate just such an exigency as the present, where the business in one county is incomplete, and yet the day fixed for the commencement of tlie term in another has arrived.. The time of such adjournment is not restricted, unless it is deemed to be by the commencement of the succeeding regular term in that county.” (The State v. Montgomery, 8 Kan. 351.) See, also, Sawyer v. Bryson, 10 Kan. 199; and In re Millington, 24 id. 224.
We therefore hold that on March 28, 1888, the regular January, 1888, term of the district court in and for Finney county, Kansas, was in session, and a judgment rendered on that day would be a lien upon the real estate of the judgment debtor from and after January 3,1888, and prior to the lien of the mortgage executed February 22, 1888.
Did Bagby lose his priority of lien by failing to have an execution issued and levied within one year from the rendition of his judgment ?
“No judgment heretofore rendered, or which hereafter may be rendered, on which execution shall, not have been taken out and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of any debtor, to the prejudice of any other judgment creditor. . . . Nothing in this section contained shall be construed to defeat the lien of any judgment creditor who shall fail to take out execution and cause a levy to be made, as herein provided, when such failure shall be occasioned by appeal, proceedings in error, injunction, or by vacancy in the office of sheriff or coroner, or the disability of such officer, until one year after such disability shall be removed.” (Gen. Stat. 1889, ¶4566.)
In this case the stay bond as provided for in paragraphs 4652 and 4655 was given. The question raised in this case seems never to have been decided by our supreme court. The plaintiff in error contends that, because Bagby did not give the bond provided for in paragraph 4656, and was not refused leave by the court to enforce his judgment, his lien is subordinate to that of Kingsley. Defendant in error contends that he is not required to issue execution even if no stay bond has been filed ; and, even if this proposition is not correct, that the lien of Kingsley would not take precedence, because he was not a judgment creditor. As to the first proposition of the defendant in error, it is not necessary, in deciding this case, to consider it, because in this case the bond for a stay of execution was filed. Upon the second proposition, the facts do not bear out the contention. Kingsley became a judgment creditor of Stevens in May, 1891. When an appeal or proceedings in error have been filed in the appellate court seeking to reverse a judgment, and the bond for a stay of execution provided for in paragraphs 4652, 4654 and 4655 has been filed, the judgment creditor does not forfeit his lien by failure to take out and levy an execution until one year after the finding of the reviewing court. To hold otherwise would be manifestly unjust to the judgment creditor as well as to the judgment debtor. The judgment debtor has given a bond to stay execution. He does this because he does not want his property sold at a forced (and probably a sacrifice) sale, when by no possibility can he recover more than rhe money it sold for and the interest thereon from the time of sale. The judgment creditor probably considers his claim safe after the bond is filed. He does not want unnecessarily to oppress the debtor, neither does he care to go to the expense and trouble of selling the property until he is sure his judgment will be affirmed.
Paragraph 4656, however, provides that the judgment creditor may, by giving a bond and obtaining leave of the court, proceed to enforce his judgment. This leaves it to the sound discretion of the court, and it would undoubtedly require- a showing that injustice would be done the judgment creditor before the court would permit the execution to issue.. It is absurd to suppose that the legislature would permit a judgment debtor to give a bond to procure a stay of execution upon a judgment and then compel the judgment creditor to give a cóunter-bond and enforce his judgment or lose his lien.
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. :
This suit was commenced by J. J. Short in the district court of Rice county against J. W. Kimble and H. B. Revel, to restrain them from enforcing a certain judgment rendered by PI. B. Revel, a justice of the peace of Pioneer township, in Rice county, Kansas, on the 23d day of March, 1892, in a certain action before said H. B. Revel, justice of the peace, wherein J. W. Kimble was plaintiff and J. J. Short was defendant, and to set said judgment aside and hold the same for naught, and to allow the parties a trial of the matters involved in such action. The plaintiff below, in his amended petition alleges that H. B. Revel was on tlie 23d day of March, 1892, a justice of the peace of Pioneer township, in Rice county, Kansas, and that J. W. Kimble commenced an action before said justice of the peace against plaintiff below to recover $298, and such action was set for trial before the justice of the peace on March 23, 1892. Plaintiff below alleges that he was not indebted to J. W. Kimble at the time of the commencement of the action before H. B. Revel as justice of the peace, in the sum of $298, or in any other sum; that he then had and ever since has had a good, valid and meritorious defense to the pretended claim of J. W. Kimble ; and he says that he prepared an answer in defense to the cause of action set forth by the plaintiff in his bill of particulars filed before said justice, and, on the return-day of said summons, at the hour required by said summons, he appeared before said justice, and filed his answer setting up a full and complete defense to the action then pending before such justice ; that upon the filing of the answer, he stated to the justice of the peace and the plaintiff and plaintiff’s attorney that he did not desire to have the case tried before the justice of the peace; that he intended to appeal the case to the district court on any judgment which might be rendered against him before said justice of the peace ; whereupon said defendant and said justice,-conspiring, confederating, and agreeing, and intending to cheat, wrong and defraud this plaintiff, and for the purpose of preventing him from having a fair trial, or any trial, and for the purpose of obtaining an unjust and unlawful judgment against him, did fraudulently, wrongfully and unlawfully state, by and through said justice of the peace, to this plaintiff that if he would confess judgment he could take an appeal to the dis trict court. He further says, that he was then and there in said justice’s court without counsel and without witnesses, and not expecting to try said case ; that he is a farmer; that he was not at said time familiar with the rules of law regarding appeals from justice’s court to the district court; that he relied upon and believed the statements of said justice so made to him touching his rights of appeal after a confession of judgment, and thereupon said that if that was right, and if that was the law, he supposed he would have to confess judgment, as he wanted to appeal to the district court. He further says, that the defendant Kimble, and his attorney, C. F. Foley, an attorney and counselor at law, were then and there present during the aforesaid conversation between the plaintiff and said justice, and that neither of them dissented from the legal proposition as stated by said justice of the peace, but that, on the other hand, very shortly thereafter the said counsel for said Kimble did draw and draft an appeal bond from the justice’s to the district court, for the use of said plaintiff in taking his intended appeal, which he used.
He further says, that he did not, in the presence of said justice or elsewhere, state that he was indebted to said Kimble in the sum of $298, or in any other sum, and that, he was not so indebted ; that he did not intend that said Kimble should have final judgment against him for such sum or any other sum, but that what transpired as above set forth was done on his part for the sole and only purpose of getting said cause transferred to the district court for trial; but he says that the part taken therein by said justice of the peace, and assented to by said Kimble, was taken and assented to with a fraudulent purpose and design on their part to wrong and defraud this plaintiff, and prevent him from having any trial on the merits of said cause as tendered by the pleadings therein, and of obtaining an unlawful judgment against and an advantage over him ; and he says that he then and there, for the purpose of effectuating and perfecting his said appeal, did sign and execute said appeal bond, and in the presence and with the Knowledge of said justice of the peace, said Kimble, and his said attorney ; and the plaintiff says that the said justice of the peace did thereafter make an entry of judgment in said case, and attaches a copy of said judgment to his petition. He further alleges that said justice, after the filing of the appeal bond, transmitted to the clerk of the district court a copy of the entry of judgment and the files and records of said case; and he also says that thereafter, at the April term of the district court of Rice county, the said Kimble, in pursuance of the fraudulent and unlawful design as aforesaid, and for the purpose of preventing plaintiff from having any trial on the merits of said action, and for the purpose of taking, holding and enforcing said judgment so fraudulently obtained, did move the district court to dismiss the appeal of plaintiff below, on the ground that, the record showing that the judgment was one made by confession, the same was not appealable, although, said justice, Kimble and his counsel well knew that said J. J. Short fully intended and expected to appeal, and they had before said justice of the peace, at the time of the alleged confession of judgment, read plaintiff’s answer, as had also said justice. He further alleges, that the district court did, upon Kimble’s motion, and over the objection of plaintiff below, dismiss his attempted appeal ; whereupon, he duly made a motion before the justice of the peace to vacate, set aside and hold for naught the alleged judgment by confession so wrongfully obtained, and to grant a new trial therein, which motion defendant Kimble, by his counsel, did oppose, and which the said justice, in pursuance of said fraudulent design, did overrule. He further alleges, that before the commencement of the action by Kimble before the justice of the peace, the said justice did act as agent and attorney in fact for said Kimble, and came to this plaintiff and presented said claim, which was thereafter sued on before said justice, and said justice urged this plaintiff to pay the same. He further alleges, that the judgment and costs of action were wrongfully, unlawfully and fraudulently obtained as against equity and good conscience, and were obtained by misrepresentation and fraud on the part of said defendants ; that he relied, as he had a right to, upon the representations and statements made to him by the justice, and acquiesced in by said defendants and his counsel, touching his right to an appeal; that what he said and did before said justice of the peace in the way of a confession of judgment was said and done because he was misled by said justice, Kimble and his attorney as to what his rights were in the premises; and that he is not now and never was indebted to said Kimble in the sum represented by said judgment.
The petition of the plaintiff is duly verified. On the filing of the petition in the district court, and on proof that the judge of the district court was absent from the county, a temporary injunction was granted by the probate judge. A demurrer to the original petition was filed and sustained. The plaintiff below, by leave of court, amended his petition, and a demurrer was then filed to the amended petition, which was overruled by the court, and defendants below duly excepted to the judgment of the court overruling said demurrer, and this ruling of tlie court is tlie first error assigned by tlie plaintiffs in error.
The demurrer to tlie amended petition was a general one, for tlie reason that the amended petition wholly failed to state facts sufficient to constitute a cause of action against the defendants below and to entitle the plaintiff below to any relief. The amended petition charged Revel, the justice of the peace, and Kimble, the plaintiff in tlie suit before Revel, and Kimble’s attorney, with conspiring to defraud .the plaintiff below, and to obtain an undue advantage over him, and, by fraud, falsehood, and deceit, procuring the judgment by confession to be entered up by said justice against him; that said Revel, Kimble and his attorney well knew that he did not confess to be indebted to Kimble in any sum, but wholly denied any indebtedness, and at the same time filed with such justice a written answer denying specifically any indebtedness to Kimble, and attached to said answer a copy of a receipt in full, dated just 12 days before tlie commencement of said suit, signed by Kimble, acknowledging the receipt of $30 in full of all demands up to date; and Short, at the time of filing such answer, told the justice, Kimble and his attorney that he did not want to try the case before the justice ; that whatever judgment was rendered he intended to appeal the case to the district court. And the amended petition further charged, that Justice Revel was acting as attorney for Kimble in the prosecution of said claim against the plaintiff below, and, for the purpose of defrauding and cheating him, falsely and deceitfully stated to him that he could not appeal the matter then, but that he must do one of three things, either stand a trial before Revel, take a change of venue, or confess a judgment, and he could then appeal. Short, being there without an attorney, being a farmer and not knowing the effect of such judgment, told the justice, Revel, Kimble and his attorney if that was the law, and he could appeal, he would confess judgment and appeal, and upon that statement alone the justice entered up a judgment by confession, and, after some considerable delay, approved an appeal bond, and sent a transcript of the judgment and proceedings-had before him to the district court; and then, in furtherance of such fraudulent purpose, on motion of Kimble’s attorney, the appeal was dismissed, for the reason that the record showed a judgment by confession, which was not appealable. The demurrer to this amended petition admits the truth of all these charges. The petition and amended petition state such facts as entitled the plaintiff below to the relief therein sought.
The contentions of counsel for plaintiffs in error are : (1) That in the case of Kimble against Short an appeal was taken to the district court, which appeal was by the court dismissed, and no exception to the judgment of the court being taken or review had, that judgment is conclusive against Short; (2) that the motion to vacate the judgment in the case of Kimble against Short was filed before Justice Revel, and was, upon hearing, overruled; that the action of the district court in dismissing the appeal in the case of Kimble against Short, whether such judgment was right or wrong, as a legal proposition, was absolutely binding upon the parties.
We do not think this position tenable. The appeal was dismissed for want of jurisdiction of the district court over the parties and of the action. The justice-of the peace entered up judgment against Short by confession, and it so appeared on his transcript of the record filed in the district court. Under section 132, chapter 81, General Statutes of 1889, no appeal is allowed on a judgment rendered by confession; and, where no appeal is allowed, the district court cannot acquire jurisdiction of either the parties or the subject of the action by a mere attempt to appeal. When the record of the justice shows a judgment rendered on confession, the appeal must be dismissed. In order to give the district court jurisdiction of a cause appealed from the justice of the peace, the transcript of the justice must show that the appeal bond was filed within 10 days after the rendition of the judgment, and that the case is one that is appealable. The district court cannot try the truth of the recitals in the record of a justice of the peace on an appeal. If there are facts material that are omitted from the transcript of record, or which are untruthfully stated, the party may, by suggestion of a diminution of the record, have the justice ordered to send up a corrected transcript of his record ; but the district court cannot control the justice as to what the record must show.
The petition in this case alleges that the judgment „was wrongfully, unlawfully and fraudulently obtained, and is against equity and good conscience, and was obtained by misrepresentation and fraud on the part of the defendants below; that the plaintiff below relied upon the representation and statements made to him by said justice, and acquiesced in by Kimble and his attorney, touching his right of appeal; that what •he said and did before said justice in the way of alleged confession of judgment was said and done because he was misled by the justice as to what his rights were in the premises. We do not think the dismissal of the appeal was in any sense an adjudication of the rights of Short. The district court could not do otherwise than dismiss the attempted appeal as shown by the records of Justice Revel. If Short had excepted to the dismissal of the appeal and gone to the supreme court, the order of dismissal would have been affirmed, for the reason that the record in the district court showed that the judgment attempted to be appealed from was rendered on a confession.
We do not think the second position of counsel is well taken. The justice of the peace could not vacate and set aside the judgment unless a motion for that purpose was made within five days after the judgment was entered up. This is a proceeding to set aside a judgment obtained by fraud and conspiracy between the justice of the peace, the plaintiff in that action, and his attorney. It is claimed that the party was misled, deceived, defrauded, and induced to do an act that he did not intend to do, and was induced to do so by falsehood and deceit, and that thereby an undue advantage was taken of him ; that if the judgment is permitted to stand and be enforced, the plaintiff in that suit and the justice will receive from him the payment of money that was wrongfully, unjustly and dishonestly, procured; tliat they will thereby be permitted to take advantage of their own wrongful and fraudulent acts. Counsel seems to confound this judgment, and the proceedings to enjoin and set it aside - and give the parties a fair trial of the matters therein involved, with the proceedings to set aside and avoid a judgment obtained irregularly. High, in his work on Injunctions, §190, says :
“Where the judgment was obtained through such fraudulent conduct, or such deceitful representation has prevented the defendant from asserting his rights in the court where the case was pending, and where, through fraud upon the part of the plaintiff or his representatives, defendant is prevented from making Ms defense, equity will relieve against such, a judgment.”
In Carrington v. Holabird, 17 Conn. 530, the rule is thus stated:
‘ ‘ Where the person aggrieved shows a good reason why the defense was not made at law when he shows a meritorious defense to the action wMch he seeks to enjoin. This being shown, and it appearing that defendant was prevented from the assertion of his rights' by fraud, unmixed with negligence of his own, a court of equity will afford relief, either by opening the case and allowing another trial, or by awarding a perpetual injunction.”
In the case of Pearce v. Olney, 20 Conn. 544, the court says:
“Indeed, this falls directly within and is but an illustration of the general rule that equity will interfere to restrain the use of an advantage gained in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice in all cases where such advantage has been gained by the fraud, accident or mistake of the opposite party.”
In the case of Babcock v. McCamant, 53 Ill. 214, the supreme court says :
“But it is urged that the remedy was complete under the statute, by applying to the circuit judge at chambers to order a stay of proceedings under the execution, until a motion to quash the execution and levy could be heard at the next term. This may be true of the execution and the levy, but it is not clear that the circuit court could correct the judgment on a motion. But, even if it could, it is more satisfactory and complete to grant the relief in equity. The facts alleged and admitted by the demurrer show gross fraud, and fraud is a matter of equity jurisdiction, and that court did not lose it by statute conferring similar jurisdiction upon the courts of law. If, then, under the statute, or the inherent power of a court of law to control its process and records, that court could correct the judgment, still it would not deprive equity of jurisdiction. Plací the only relief sought been to quash the execution and set aside the levy, the proper course would have been to apply to the judge at chambers, and obtain an order staying further proceedings until the hearing of the motion; but the relief goes to the judgment itself, and to relieve against a fraud.”
In the case of Rickle v. Dow, 39 Mich. 91, being an injunction to restrain the collection of a judgment, the court says:
“ While the judgment might bind complainant personally, yet it would not affect the security or prevent claimant from having the mortgage set aside, upon showing that the obligation it had been given to secure had in fact been paid. The fact that a judgment had wrongfully been obtained upon the note, binding upon the defendant in that case, would be no answer in the suit to have the mortgage set aside and his real estate released from the mortgage cloud resting thereon. The court, having obtained j urisdiction for this purpose, may, we think, well proceed and examine into the whole case, and give complete relief in the premises.”
There was no error in the order of the court overruling and denying the demurrer to the amended petition.
After the court had overruled the demurrer of the defendants below to the amended petition of the plaintiff below, then the defendants filed an answer to said petition, setting up the proceedings had before Justice Revel in the suit of Kimble against Short, setting out the judgment, alleging the appeal therefrom by Short to the district court, the motion to dismiss the appeal, the dismissal thereof, and that afterward Short, the defendant in said proceedings, filed his motion to vacate the judgment before Revel. The order overrul ing such motion and alleging that Short is estopped by the judgment of the district court in dismissing such appeal, and also that the judgment of the justice in overruling the motion to set aside and vacate the judgment, is also an estoppel against Short. A demurrer was interposed by the plaintiff below to the second count in the answer, which demurrer was sustained, and defendants below filed an amended answer setting up substantially the same matters, and plaintiff below demurred to said amended answer, which demurrer was by the court sustained, and defendants duly excepted. The judgment and order of the court in sustaining the demurrers to.the second count in the answer and amended answer are the second assignments of error complained of by the plaintiffs in error. The second count of the defendants’ answer pleads as a defense, in substance, that in the suit of Kipible against Short said Short appealed from the judgment of Revel to the district court of Rice county; that his said appeal was upon motion dismissed; that the judgment of the district court was a full and complete adjudication of the questions involved between Kimble and Short; that it decided the identical question sought to be relitigated by Short in the present suit, and was and is res judicata; and this count sets out, as exhibits, copies of the motion to dismiss and the journal entry of judgment in the case of Kimble against Short.
The argument of counsel is based on the theory that the order and judgment of the justice of the peace in overruling the motion of Short to set aside and vacate the judgment of Kimble against Short having been overruled, and no appeal or proceeding in error having been taken from such ruling, the matter is therefore res judicata, and conclusive on Short. This motion was made several weeks after the judgment was rendered, and was after the justice of the peace had lost jurisdiction to hear a motion to set aside and vacate the judgment. The justice could not entertain a motion to vacate the judgment unless the motion was made within five days after the rendition thereof. The action of the justice where he has no j urisdiction is not binding on any person ; it is a mere nullity. The right to hear and determine a case is jurisdiction ; it is coram judice; and where the court has jurisdiction of the subject-matter and of the parties its judgments and orders are binding upon the parties. No matter how irregular the judgment and proceedings may be, they are valid and binding until set aside or vacated in some action authorized for the purpose, and cannot be disregarded in any collateral proceeding; but where the court has no jurisdiction of the action, or has not acquired jurisdiction of the parties, or where it has once had jurisdiction of the subject of the action and of the parties, and that jurisdiction has spent its force by final judgment or lapse of time, its orders and judgments made therein are without jurisdiction and void, and may be treated so in any court of competent jurisdiction when brought in question. The proceedings had before Justice Revel on the motion to set aside and vacate the judgment were unauthorized, and of no force whatever, and are not binding on either party. The proceedings thereon are the same as though no motion had ever been filed. The authorities cited by counsel for plaintiffs in error and relied upon in their arguments based thereon are not applicable to a suit to enjoin and set aside a judgment obtained by fraudulent conduct. Where a judgment is tainted with fraud, equity will interfere, and restrain the party obtaining such ad vantage by reason of Ms own wilful fraud, and not permit him to reap the benefits of an advantage so wrongfully and fraudulently obtained. Fraud vitiates and destroys all advantages attempted to be gained thereby. It is an elementary principle of law that a person shall not be allowed to profit by a known fraud practiced by him upon another. Therefore, the demurrers to the answer and the amended answer were properly sustained.
The third error complained of by plaintiffs in error is in the judgment of the'court overruling and denying the defendants’ demurrer to the plaintiff’s evidence. The same reason urged against the judgment of the court in sustaining the demurrer to the defendants’ answer and amended answer is used to support the contention of counsel against the judgment of the court in overruling the demurrer to the evidence. The plaintiff below proved all the allegations set out in his petition, and it was sufficient to authorize the court to grant the relief sought in this suit; and it follows from the reasons already given in the former portion of this .opinion that the demurrer to the evidence was properly overruled.
It is contended by counsel for plaintiffs in error that the court erred in excluding testimony offered by defendants on the trial, to wit, the transcript of Justice Revel, the motion to dismiss the appeal, and the journal entry of judgment in the district court. These proceedings were all a part of the petition of the plaintiff below, and attached to his petition, and were a part of the record, and the proof of their contents was immaterial, because the whole matter was before the court in the pleadings, and admitted by the pleadings, and it would have been surplusage to have received any evidence of what was admitted by the pleadings. The trial of the allegations of fraud involved what took place at the justice’s office, which brought about the confession of judgment; and the entry afterward made by the justice in his docket had only a very re mote connection with what the journal entry of the judgment dismissing the appeal had with the rights of the party on the trial of this cause. The same reason urged for the admission of these proceedings was urged in the argument of counsel on the proposition of sustaining the demurrer to the second count in the answer and amended answer of the defendants. Whatever the journal entries do show does not relieve the case from the fraud practiced by the successful party in obtaining the judgment in this case. They simply show what was done in pursuance of the fraudulent design of the justice of the peace, the plaintiff in the case before the justice, and Ms attorney ; and they were properly excluded as evidence on the trial of the case.
The final, complaint of plaintiff's in error is, that the court erred in overruling the motion of defendants below for a new trial. The case was tried by the court without a jury, and, after hearing all the evidence and taking the matter under advisement for a number of days, the court found all the allegations set forth in the plaintiff’s petition to be true.
We have examined the evidence in this case with great care, and think that the findings of the court are fully justified under the evidence ; and, there being no error in the proceedings upon the trial of the case, therefore the judgments of the district court is affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Gar ver', J. :
Minnie Hopkins, as assignee of Smith & Hopkins, brought this action against the plaintiffs in error to recover the sum of $761.54, alleged to be due on account of a deposit of money made by Smith & Hopkins in the Bank of Dorrance, which was owned and controlled by plaintiffs in error, and for which deposit, it is claimed, they were liable as partners. The defendants answered the petition by a verified answer consisting of a general denial, and the further allegation that “all of the dealings and transactions stated in said plaintiff’s petition were had, if at all, with the Bank of Dorrance, the same being a duly organized and existing corporation under the laws of Kansas.” No reply was filed to this answer, but a trial was had the same as if issue had been formally joined upon all material facts in dispute, and judgment was rendered against the defendants, now plaintiffs in error, holding them individually liable as partners for the full amount of the claim.
The record shows that about April, 1886, A. N. Mc-Lennan and his codefendants, with others, agreed to establish a bank for the transaction of a banking business at Dorrance, Kan., with a capital of $50,000, divided into shares of $100 each. Pursuant to such agreement, the several parties interested signed a paper, each agreeing to take certain shares of stock. Certain ones of their number were chosen to act as directors, and W. Z. Smith was elected .president and L. B. Hail cashier. The full' amount of the capital stock was subscribed and two assessments of 10 per cent, each paid in by the subscribers shortly after the subscriptions were made, and thereafter a dividend of the profits of the business was made of from 2 to 5 per cent., which was applied by the bank as a further payment on the stock. A seal was provided arid used, and a regular' banking business of discount and deposit was carried on under the name of the Bank of Dorrance until December, 1889.
About the time of the organization of the bank, under the direction of the president, articles of incorporation of some kind were drawn up, the record not disclosing what such articles contained ; neither does it show by whom they were signed, though the evidence tends to show that they were signed by some of the directors, and thereafter delivered by the president of the bank to the cashier. No articles of incorporation, or statement of any kind concerning the organization of said bank, were filed or recorded in the office of the register of deeds of Russell county, where said bank was located, nor any copy or other instrument filed in the office of the secretary of state. With the exception of the president, none of the stockholders seems to have given any attention to the incorporation of the bank, but to have allowed the business to be carried on believing that it was duly incorporated, and not intending at any time to assume any liabilities other than such as might attach to them as stockholders in a corporation organized under the laws of Kansas. Smith & Hopkins in their dealings with the bank regarded it as a corporation, and knew nothing to the contrary until about the time of the failure of the bank in 1889, and after the deposits, sought to be recovered, were made.
The main question to be decided in this case is, whether one having a claim as a depositor in this bank for the recovery of an unpaid deposit can hold the several persons who own the bank individually liable as partners, or whether, having dealt with the bank as a corporation, he is estopped from claiming any other than a corporate liability. It is contended for plaintiffs in error that the bank was at least a de facto corporation, and that one dealing with it as such cannot, in this collateral way, attack the validity or regularity of its incorporation.
On the trial of the case an objection was made by the defendants to the introduction of any evidence by the plaintiff, on the ground that “ upon the pleadings filed there were no issues formed to be tried, and that the plaintiff was entitled to recover nothing herein.” It is argued that this objection was well taken, for the reason that the answer alleged that the dealings, alleged to have been had by plaintiff’s assignors with the Bank of Dorrance, were with such bank as a duly organized and existing corporation under the laws of the state of Kansas. We cannot agree with counsel in this view of the pleadings. By the denial under oath of the allegations of the petition, the plaintiff was put upon proof of the alleged fact that defendants were doing business as partners, and thus was joined the principal issue upon which the liability of 'the defendants was to be determined. This issue was not changed or broadened by the averment of the answer that the Bank of Dorrance was a corporation. In this respect, the whole answer taken together amounted to nothing more than a general denial. If plaintiff failed to show that the defendants sustained such a relation to the business of the Bank of Dorrance as in law would make them liable as partners, it was quite unimportant whether such failure was because the bank was a corporation or for other sufficient reason. When an answer, though containing special denials or affirmative allegations of facts inconsistent with the petition, amounts to no more than a general denial, no reply is necessary. (City of Burrton v. Savings Bank, 28 Kan. 390.)
• Were the defendants liable as partners? It must be conceded that they were jointly interested in the business carried on in the name of the Bank of Dorrance, and jointly concerned, though perhaps in different degrees, in the profits and losses of that institution. The business for the conduct of which the bank was organized was such as could very properly and legally be carried on by one or more persons without regard to laws for the incorporation of such enterprises. Incorporated banks do not have, either in law or in fact, an exclusive right to engage in the business of receiving deposits, loaning funds, selling exchange, and the like, such as was conducted by the Bank of Dorrance. Being thus jointly engaged in such business, there is no presumption of individual non-liability. Persons engaged in business as a corporation, whether their charter rights and privileges are conferred by a special or general law, are relieved from individual liability for the acts of the association with which they are connected; the law pertaining to incorporated bodies clothes the individual with an immunity from liabilities which otherwise would fall upon him. Hence it follows that, to enable one to avoid such individual liability for a transaction with which he is connected on the ground that it was the act of a corporation in which he was only a stockholder, it must appear that such steps have been taken to incorporate as will give those concerned in it at least a legal semblance of corporate existence. When the question arises collaterally, as it does in this case, it is not necessary that the various steps prescribed by law should have been fully and regularly taken, or that the corporation should exist de jure; it is sufficient that enough has been done to make it a corporation de facto. To this extent we agree with counsel for plaintiffs in error.
The question still remains, Was the Bank of Dorrance a corporation de facto ? We think not. It is difficult and perhaps unnecessary to attempt to reconcile the many decisions bearing on this question. Between some of them there is an irreconcilable conflict, so that, when we come to determine what is a de facto corporation, we are met by a diversity of authority. The rule recognized by the supreme court of this state is thus stated by Mr. Justice Brewer in Pape v. Capitol Bank, 20 Kan. 440:
‘‘When parties have associated themselves together for the purpose of organizing a corporation under a general law, and have proceeded in good faith to take all the steps supposed necessary to complete such incorporation, and on the faith thereof engage in business as a corporation for a series of years, a party who has repeatedly dealt with 'them as such corporation will not, when sued on a note and mortgage held by it, be permitted to show, as a defense to the action, that there was some mere technical omission in the steps prescribed for incorporation. The corporation is one defacto, and only the state can then inquire, and that in a direct proceeding, whether it be one de jure. . ' . There must in.such cases be a law under which the incorporation can be had. There must also be an attempt in good faith on the part of the incorporators to incorporate under such law. And when, after this, there has been for a series of years.an actual, open and notorious exercise, unchallenged by the state, of the powers of a corporation, one who is sued on a note held by such corporation will not be permitted to question the validity of the incorporation as a defense to the action. No mere matters of technical omission in the incorporation, no acts of forfeiture from misuser after the incorporation, are subjects of inquiry in such an action.”
The attempt to incorporate referred to in that case must be something more than the mere physical organization or formal arrangement into a working force of the promoters of the enterprise. Something must be done beyond the mere transaction of business in the manner and form usually adopted by corporations. There must also be something more tangible and effective than a mere mental operation in the direction of what is intended. The steps taken and the attempt made must, to some extent and in some degree, have resulted in the effecting of those things which the law designates as prerequisite to a corporate existence, however informal and irregular such proceedings and results may be.
Fiad the articles of incorporation been prepared, and recorded or filed, as required by the statute, and had the organization otherwise been effected as shown in this case, no question could be thus raised as to the fact of a corporate existence because of defects and irregularities in the attempted organization or in the articles of incorporation. But, an entire failure on the part of the officers of the bank to prepare and execute the certificate, or articles of incorporation, required by law, and an entire failure to file a certificate or statement of any kind whatever in the office of the register of deeds of the county or in the office of the secretary of state, left the organizers of this bank without a shadow of legal corporate existence. There was no substantial compliance with the law, and there could be no de facto corporation. We are supported in this conclusion by the following cases: Bigelow v. Gregory, 73 Ill. 197; Kaiser v. Lawrence Savings Bank, 56 Iowa, 104; Sheble v. Strong, 128 Pa. St. 315; Hill v. Beech, 12 N. J. Eq. 31; Stout v. Zulick, 48 N. J. L. 599; Abbot v. Omaha Smelting Co., 4 Neb. 416; Society of Perun v. Cleveland, 43 Ohio St. 481; Railroad Co. v. Cary, 26 N. Y. 77; Hart v. Salisbury, 55 Mo. 310; Granby Mining and Smelting Co. v. Richards, 95 id. 106; Whipple v. Parker, 29 Mich. 369.
In the cases cited there was a failure on the part of the organizers of the claimed corporation to do some act, generally the neglect to file the articles of association or incorporation made by the statute prerequisite to corporate existence, and the rule clearly and forcibly laid down is that in such cases there is no de facto corporation, and that the claimed corporate existence may be attacked collaterally. An exception to this rule exists in cases where one is sued by the alleged corporation upon a contract in which the corporate capacity is recognized. To this effect are: Jones v. Cincinnati Type Foundry Co., 14 Ind. 89; Meikel v. German Savings Fund Society, 16 id. 181; Fresno Canal and Irrigation Co. v. Warner, 72 Cal. 379; Massey v. Building Ass’n, 22 Kan. 624. In those cases another principle is invoked, which does not permit a party to avoid the obligation, of his contracts upon the mere technical objection that the party with whom he contracted had not the legal capacity to enter into the contract of which he has' had the benefit. The distinction between that class of cases and the case under consideration is obvious.
It is equally well settled that a substantial, though imperfect and irregular compliance with the law, in a bona fide attempt to incorporate, followed by a user of corporate rights, will create a de facto corporation, and the corporate existence cannot be collaterally questioned by one dealing with it as a corporation. To this effect are: Baker v. Neff, 73 Ind. 68; Williamson v. Building and Loan Ass’n, 89 id. 389; Rice v. R. I. & A. Rld. Co., 21 Ill. 93; B. & A. Rld. Co. v. Cary, 26 N. Y. 75; Mining Co. v. Woodbury, 14 Cal. 424; O. & V. Rld. Co. v. Plumas, 37 id. 361; Swartwout v. M. A. L. Rld. Co., 24 Mich. 389.
We think the facts shown by the record justified the trial court in holding the plaintiffs in error liable as partners for the debts of the bank. Other questions are suggested by the record as to the right of the plaintiff below to recover in this case, but, as they are not presented by the pleadings nor in the briefs, we shall not consider them.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
Cole, J. :
This was an action brought in the district court of Rice county by The Sultan Cart Company, a copartnership, to recover the balance due upon an account for certain carts sold to the defendant in error, who set up in his answer certain damages alleged to have been sustained by reason of the failure of a certain warranty given with the goods purchased by him. The jury rendered a verdict for plaintiffs in error, but for a much less amount than that which was claimed, allowing the defendant a large sum for damages. From a judgment upon such verdict the plaintiffs in error bring the case here for review.
The record discloses that in October, 1888, the Sultan Cart Company, through its agent, sold to C. K. Beckett a car-load of carts, which were to be shipped from White Pigeon, Mich., to San Jose, Cal., and there sold upon the market. Accompanying the contract of sale was a written warranty, which reads as follows :
“We warrant all of our work to be of good material, and made in workmanlike manner. In case breakage shall occur within one year by reason of defective material, we will replace all broken parts free of charge, but the agent must be cautious and use his judgment in the matter. We will not make good any breakage only such that is defective.”
No question is raised in this case as to the delivery of the carts, or as to the balance unpaid upon the account ; but in his answer the defendant sets up in several distinct counts various claims for damages alleged to have been sustained by the failure of the above warranty. It was the theory of the defendant in error, and also of the trial court, that the warranty in question was a general and continuing warranty with regard to workmanship and material, and a further warranty limited to the space of one year as to repairs made necessary by breakage occurring without fault of the purchaser. The contention of the plaintiffs in error is, that the warranty of workmanship and material is limited by the latter clause thereof to one year, within which time the plaintiffs'in error would replace all broken parts where the breakage was caused by reason of a defect in material or workmanship ; that the, measure of damages for the failure of said warranty would be the cost of placing any defective cart in such condition that it would answer the warranty in case plaintiffs in error refused so to do. Quite a number of errors have been assigned in this case, but our view is that all which are of importance may be considered in the determination of the question as to whether or not the trial court correctly construed the warranty in question. We are clearly of ’the opinion that the trial court committed error in this regard. The warranty in question must be construed to be one of material and workmanship, and containing an agreement to make good any defective cart or part thereof for a period of one year. The first portion of the warranty is to the effect that the carts in question are to be of good material and made in workmanlike manner. A failure of this portion of the warranty, then, must arise either from defective material or workmanship. A defect in material or workmanship is either patent or latent. If patent in the carts sold, then under the warranty the defendant in error was not compelled to accept the same, but could insist that any part showing the defective material or workmanship should be replaced with a similar part of good workmanship and material. If the defective material or workmanship entered into the whole cart or into a number of carts as a whole, then he could insist on the defective cart or carts being replaced with those which comply with the warranty. The latter part of the warranty recognized the fact that there might be latent as well as patent defects in the carts in question, and that, if there were such latent defects, they would become patent when the defective part broke, and under the warranty such part was then to be replaced, if said breakage occurred within one year.
Again, when a breakage occurred in any part of a cart, it was for one of two reasons — either on account of defective material or workmanship, or from a misuse of the cart or the part so breaking, for which neither the workmanship nor material was blamable. Now, under this warranty, if the breakage occurred for the first of these reasons, within the period prescribed in the warranty, the defendant in error was to be made whole ; if for the latter reason, the person so causing the breakage was the loser. This interpretation of the warranty gives full force and effect to every part thereof, and is in harmony with the decisions of our supreme court in cases decided by it where warranties somewhat akin to this have been in question. (Raynor v. Bryant, 43 Kan. 492.) Under this warranty, plaintiffs in error should have been given the opportunity to replace any of the carts sold to defendant in error, or any parts thereof which were defective in workmanship or material, and in case plaintiffs in error had refused to replace any defective cart or part thereof upon demand, then the measure of damages of defendant in error would be the necessary cost incurred to make the article fulfil the warranty.
The construction given to this warranty by the trial court entered into the character of testimony admitted, the instructions to the jury, and the overruling-of the motion for a new trial. "We therefore consider it unnecessary to review the errors relating to each specific branch, of the trial, as they are such as will not occur upon a retrial of the case.
The judgment of the district court is reversed, and the cause remanded for a new trial.
All the Judges concurring.
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The opinion of the court was delivered by
Gilkeson, P. J. :
Action in mandamus to compel the plaintiff in error to pay to the defendant in error certain sums of money collected by him, to wit, interest and penalties upon delinquent taxes levied by the defendant in error for special sidewalk improvements. The facts are : In 1882 the city of Frankfort, by ordinance, caused certain sidewalks to be built within its corporate limits, and in payment therefor issued to the contractor its warrants or scrip, bearing 10 per cent, interest from January 1, 1883. In 1884 the city made an assessment for these improvements upon lots 10 and 11, in block 95, and lot 24, in block 27, for the sum of $94.66 per lot; and thereafter this assessment was certified to the county clerk of Marshall county to be, and was, placed upon the tax-roll of the county to be collected. These assessments were unpaid, and the property was offered for sale at an annual tax sale. There being no purchaser, they were bid off by the county treasurer, September, 1, 1885. In 1887, June 16, one George A. Walker offered to, and did, pay the amount due thereon, and certificates were issued by the county treasurer, and assigned to him by the county clerk. The amount received- by the county clerk included all penalties, costs, and charges, and interest up to June 16, 1887. Of the amount received, the county treasurer turned over to the treasurer of the city of Frankfort the sum of $283.98, being the actual or face amount of the assessments made upon this1 property, retaining the interest and penalties. The city brought this action to compel the county treasurer to pay to it the penalties and interest on the taxes and penalties from the time said property was bid off, September 1, 1885, until the certificates were issued, June 16,1887. The court below held that the city was entitled to the interest, and the county to the penalty, and granted the peremptory writ of mandamus, requiring the plaintiff in error (defendant below) to pay over to the plaintiff below (defendant in error) the sum of $121.23, being the amount of interest received. Of this the defendant complains, and brings the case here for review.
The question presented for our consideration has never been passed upon in this state, and we have been unable to find among the vast number of adjudications upon the subject of taxation anything in line with it under statutes like ours ; and only after careful examination of the system and theory of taxation, as shown by the statutory enactments of this state from its earliest history to the present day, have we been able to arrive at a conclusion that is entirely satisfactory to us. If, in connection with the system of taxation, we trace the history of cities of the third class in Kansas, we find that they came into existence under the act of March 1, 1869, which went into effect July 12 of that year; and prior to that time, under chapter 108, General Statutes of 1868, incorporated towns and villages were the municipalities of a corresponding grade (out of these cities of the third class were created), and they were governed by a board of trustees with certain powers expressly conferred upon them ; among others, “ to build sidewalks, and to recover from the owner and occupiers of the adjacent lots the full expense thereof, by action of debt in the name of the corporation.” Now, it is fair to presume that when the trustees recovered in their action they received interest upon the debt, and we cannot believe that -it was the intention of the legislature, when it elevated these towns and villages to the dignity of cities (creating additional officers for them to support, and in other ways increasing their expenses), to deprive them of any of their, resources, unless it is expressly so declared, or the inference so plaih from the terms of the act that no other conclusion can be reached. And neither of these conditions exists. On the contrary, we find that the provisions of the tax law with reference to municipal authorities, certifying taxes to the county clerk to be placed upon the tax-roll, the collection thereof by the county treasurer and his duty upon collecting are substantially the same now as in 1868.
But the plaintiff in error contends that ‘ ‘ the law for the assessment, collection and disbursement of taxes, penalties and interest thereon must be found expressly written in some statute, and is not to be inferred from what is written or from what is not written.” Let us apply this rule to a few sections of the tax law and notice the result: f íAll taxes and assessments levied under authority of this act shall be certified to the county clerk . . . to be placed upon the tax-roll for collection,” etc., etc. (Gen. Stat. 1889, ¶ 968, cities of the third class.) Here we find ‘ ‘ expressly written ’ ’ in the statutes that taxes and assessments shall be collected. Again : “All taxes collected by the county treasurer are to be paid over to the city treasurer as fast as collected,” etc., etc. (Gen. Stat. 1889, ¶969, cities of the third class.) Now, under the rule adopted by the plaintiff in error, what becomes of the assessment after it is collected? There is nothing “expressly written” in the statutes, and we cannot infer it from what is or what is not written. Does the county treasurer keep it? "We think not; but we only think so from inference. The clear intention of the law is, that he shall turn over the assessment, and the word taxes is here used in its general sense, and includes assessment, and we are compelled to hold that it also includes interest, it being merely an incident to the tax.
Our attention is specially called to the proviso in paragraph 6940, General Statutes of 1889, “Taxation ” ( and great stress is laid upon it) , which reads : ‘ ‘Provided, All penalties shall be credited to the county fund, and all rebates charged to the same fund. ’ ’ Now, if we apply the rule requested by plaintiff in error to this, we find that the only thing expressly written is in reference to the penalties and rebates. There is not the slightest reference therein to interest, and certainly under this clause there is no authority either to charge or credit the county fund with any interest. Nor does it in any manner indicate how the interest shall be disbursed, and it is a very significant fact that, in all the legislation we have had iii this state upon the subject of taxation, the law has always remained silent as to the disbursement of interest, clearly indicating that the legislature has always considered it as incident to and following the principal. So, we fail to find anything “expressly written” in any statute directing — much less authorizing — the county to retain the interest; and under what rule of law or equity it can be claimed that the county shall be benefited by the misfortune of the municipalities within its limits the plaintiff in error has fails*! to call our attention to, and we have been unable to find it. Is it to compensate the county? If so, for what? It has 'been paid all its costs, under a special pro vision of the statute. Is it for risk incurred? There is none. It is not responsible to the city if its taxes are not paid. No obligation is imposed upon it by the statutes for these taxes ; nor is there any authority given for it to assume any. True, - the law imposes certain duties on the county officers in the collection of these taxes, but these duties are imposed on the officers, not on the county, and if any compensation is to be rendered it should be to the officers, not the county. The officers, not the county, are the agents of the city in the collection of its taxes, and they are collected by them for the benefit of the city, and the city has the sole right to the benefit derived, as well as the right to compel the officers to perform these duties. The city has contributed its share to the salaries of these officers, and the amount thereof does not in any manner depend upon the collection of the city taxes. It would be the same if there was not an organized city within the county limits, provided the population justified it; so the question of compensation, at least, so far as the county or its officers are concerned, is out of the question. On the other hand, what is the object of the interest? We think it twofold : (1) To imhurse the municipality entitled to the tax for the delay in receiving it; (2) to reimburse it for any expense the delay has caused. And it is admitted in this case, that for this identical tax the city was compelled to issue its warrants, drawing 10 per cent, interest, to meet its obligation to the workmen who built these sidewalks; and why the city should be compelled to pay its debts with funds which cost it 10 per cent, interest to obtain, and not receive from the parties primarily indebted to it for the work the interest the law says they shall pay for the privilege of withholding this money and using it for some other purpose, we cannot understand. It seems to us as a mere business proposition that the city is entitled to the interest.
But the plaintiff in error contends that these lots have been sold to the county, and consequently the county is entitled to the interest up to the time they are redeemed. We think not. In one sense it is a sale; more properly speaking, a disposition of them for a time; certainly not a sale in the strict acceptance of the term,-which implies a consideration paid. The county does not become possessed of anything more than it originally had, nor has it parted with one cent, or become liable to any one for even that amount. It does not in any respect stand in the position of a purchaser. It has no option, no choice in the matter. It merely by statutory enactment has placed in its name that which no one else would purchase. Further than this, it could not purchase if any one else desired so'to do, but is prohibited by law from so doing. It does not even receive the evidence of title. No certificate is issued to it, nothing to show that it has any more interest in it at the date of the sale than it had on the 1st of November, when it was placed on the tax-roll, viz., the record of the treasurer’s office. It is merely transferred from, one record to another to await purchase or redemption, while, on the other hand, the purchaser receives a certificate, which, in time, entitles him to a deed. He becomes the owner. His title is only defeasible by redemption, and that which he purchases will ripen into an absolute title. This ' can ■ never happen to the county. Paragraph 6960 provides : ‘ ‘ The person ... offering to pay the taxes and charges . .• . shall be the purchaser.” Paragraph 6962: “The county treasurer may, in Ms discretion, require immediate payment, . . '. and in all cases where payment is not made in 24 hours after the bid, he may declare such bid canceled and sell the land again, or may sue the purchaser.” Paragraph 6965:- “The county treasurer shall give each purchaser, on payment of his bid, a certificate, . . . which certificate shall -be assignable. .' . . All asssignments shall be entered on the treasurer’s sale book and the clerk’s duplicate.” Paragraph 6963 provides : “If any parcel of land cannot be sold for the amount of taxes and charges thereon, it shall be bid off by the county ' treasurer in the name of the county for such amount.” Paragraph 6966 : “When any land or town lots shall . 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. . . . Whenever any person shall pay into the county treasury a sum of money equal to the cost of redemption . . . the county treasurer shall give such person a certificate.” The argument advanced by plaintiff in error is, that if some one had purchased the lots at the time they were bid off to the county, and held them as long as the county did, the owner who then offered to redeem them would have to pay the amount of the tax and interest to the holder of the certificate, and he would have kept it. Certainly he would, for, from the date the party purchased, the city would have no interest therein. It would' have been transferred to the purchaser, he having paid the city, through the county, all it was entitled to up to that date; and if the county treasurer did his duty, the city would at once have received all it was entitled to, viz., the tax and interest up to the date of the purchase.
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
Garvek, J. :
The plaintiff in error, who was plaintiff below, commenced an action under section 481 of the code, for the purpose of subjécting to the payment of a judgment which he had obtained against the Abilene Bridge Company, a Dickinson county warrant drawn in favor of the bridge company and in the hands of M. H. Bert, as county clerk of that county. In his petition the plaintiff alleged the recovery of a judgment before a justice of the peace against said bridge company ; the issuing of an execution, and the return thereof unsatisfied for the want of personal property on which to levy the same ; the issuing of a garnishment summons to the said M. H. Bert and his answer thereto, before the justice, admitting the holding by him, as county clerk, of a county warrant of the value of $126, drawn by him, as county clerk of Dickinson county, on the treasurer of said county, payable to the order of the Abilene Bridge Company. Plaintiff further alleged, that said bridge company was wholly insolvent, and that it had no other property out of which the plaintiff could make his judgment.. The plaintiff, asked that a receiver be appointed to take possession of said county warrant, and collect and apply the same to the payment of said judgment. Issues were joined upon this petition by answers filed by the Abilene Bridge Company, as well as by the county clerk, setting up as defenses a general denial, and further alleging that the money due on the warrant did not belong to the Abilene Bridge Company, but had, prior to the commencement of the action, been assigned and transferred to other parties. A trial was had by the court and judgment rendered for the defendants, the court assigning as the reason therefor ‘c that the county warrant mentioned in the plaintiff’s petition is not such property as is liable to be garnished or taken to be applied to the payment of the plaintiff’s judgment.”
We think the decision and judgment of the trial court must be sustained, whatever may be the views of this court as to the reasons assigned therefor. A decision which the record shows is the only proper one that could have been made will not be disturbed by an appellate court simply because it may not agree with the particular reason assigned by the trial court for its conclusions. No satisfactory reason has been suggested why the section of the statute under which this proceeding was had is not broad enough to embrace anything of value, without regard to its character or situation, which is not subject to levy on execution. Property in the hands of a public officer, such as a county clerk, cannot be reached by a proceeding in garnishment. (Switzer v. City of Wellington, 40 Kan. 250; National Bank v. City of Ottawa, 43 id. 294.) But a rule which rests simply upon grounds of public policy, and is enforced merely to avoid interference with public duties, certainly does not wholly exempt property so situated from the claims of a creditor. Ail action of this nature, we think, may be maintained for the purpose of reaching any property of a judgment debtor, when, because of its peculiar character or situation, it cannot be subjected to the payment of the judgment, either by an execution, or by the more summary proceedings in aid thereof. (Ludes v. Hood, 29 Kan. 55; Pendleton v. Perkins, 49 Mo. 565.) Be this as it may, however, before such an action can be maintained, it must be shown that the judgment debtor proceeded against “ has not personal or real property subject to levy on execution sufficient to satisfy the judgment.” The record before us, purporting to include all the evidence introduced upon the trial, contains nothing tending to show the financial condition of the Abilene Bridge Company. For all that appears, there may have been both personal and real property upon which an execution could have been levied, and which would have been sufficient to satisfy the judgment. In this respect the plaintiff failed to prove material and essential allegations of his petition. Counsel for the plaintiff in error, in his brief, says, that it was agreed in the beginning of the case that the only question to be submitted for the decision of the trial court was the right of the plaintiff, by this action, to subject this county warrant to the payment of his debt. Counsel for the defendants in error denies that any such agreement was made, and in his brief makes the specific objection, “that it was not shown anywhere that the judgment debtors have no property, personal or real, subject to levy on execution, sufficient to satisfy the judgment.” This court cannot consider agreements of counsel affecting the proceedings in the lower court unless they are embraced in the record. The reason assigned by the trial judge for his decision indicates that the trial may haye been conducted upon some such understanding or agreement as claimed by counsel for plaintiff in error ; but we have no right to review the case upon mere presumptions of what may haye occurred.
The judgment will be affirmed.
All the Judges concurring.
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The opinion of the court was delivered by
G-xlkeson, P. J. :
The errors complained of on the part of the plaintiff in error are in giving certain instructions and the overruling of the motion for a new trial. The sole ground for recovery laid in the petition was the fraud and deceit of the defendant in making the trade. Nothing of an equitable nature was claimed. The case was tried on the theory of fraud, yet the instructions of the court attempted to and did change the nature of the case, and authorized the jury to give the plaintiff relief upon the ground of mutual mistake and negligence, and the jury must have rendered their verdict upon the theory of mutual mistake and negligence, for they found that the examination of the land was without fraud or procurement on the part of any one, but was a mutual mistake ; and they specifically found that the defendant Munger did not intentionally, for the purpose of deceiving Erb, show him the wrong tract of land, and that there was no collusion or agreement between the defendants by which it was agreed and understood that Munger should show Erb the wrong tract of land, and that Hallowell did not know, prior to the final consumma tion of the trade in question, that Erb had examined the wrong tract of land.
As we have said, the charge of the court and findings of the jury are all based upon the theory that the plaintiff could recover after there had been a mutual mistake, or if Hallowell was guilty of negligence. As far as false or fraudulent representations being made are concerned, there is a total failure of proof, as the records show that the only representation made by Hallowell was, as mentioned in his letter, that the land was neither hilly nor stony. Smith never offered to rescind the contract after he discovered what he terms the fraud, which was in the summer of 1887, nor offered to return the property which was in his possession and under his control at the time this suit was commenced, but waited until after Hallowell had disposed of the horse -before bringing his suit for damages. Counsel say that he could, not rescind and return the property at the time the suit was brought, as Hallowell did not have the horse in his possession or under his control. This is true ; but there was ample time for him to have done so between the date of the discovery of the fraud and the sale of the horse ; “and where grounds for rescission of a contract exist, a party desiring to avail himself of them must act with reasonable promptness in returning the property.” This Smith did not do, and very potent reasons are discoverable by an examination of the record why he did not want the property returned to him. Of course, it is his right to make an election, but when he has made it, he must be bound by it. Under the circumstances, we think this action must be governed by the rules of law which govern actions for fraud and deceit in effecting sales. Hence, if there was no fraud or deceit, no moral turpitude or obliquity on the part of Hallowell in effecting the sale, the plaintiff cannot recover. We know of no exception to this rule, and we know of no decision that has ever expressed a different doctrine. (Chandler v. Lopus, 1 Smith’s Lead. Cas. 238, and cases cited in Hare and Wallace’s notes; DaLee v. Blackburn, 11 Kan. 190.) We know that courts of equity, in granting equitable relief, go much further. “Equitable relief may often be granted for purely innocent mistakes, but relief can never be granted in such cases as this where the relief asked is of a purely legal character.” (DaLee v. Blackburn,. supra.)
Now if all the.other necessary facts were shown, then, if Hallowell committed any fraud in making such statements as he did make, he certainly was liable for the fraud ; and if he made the statements knowing and believing them to be false, for the purpose of effecting the sale, and did thereby effect the sale, he certainly did commit fraud; or, even if he made the statements as though he knew or believed them to be true, while in fact he had no knowledge or belief on the subject, he was equally guilty of committing fraud ; and there are many other ways in which fraud could have been committed, and in which Hallowell could have made himself liable. But if he committed no fraud he is certainly not liable in this action.
The code provides :
“Sec. 133. No variance between the allegations in a pleading and the proof is to be deemed material unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. ...
“Sec. 134. When the variance is not material, as provided in the last section, the court may direct the fact to be found, according to the evidence, and may order an immediate amendment without cost.
“Sec. 135. When, however, the allegation of the claim or defense, to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.”
The code here described three grades of disagreement between the proof at the trial and the allegations in the pleading to which such proofs are directed : (1) An immaterial variance, and in such case the courts will order an immediate amendment. (2) An immaterial variance where the proof has some relation to and connects with the allegations, yet the difference is so substantial that the adverse party is misled ; then upon a proper showing the court will permit an amendment. (3) Complete failure of proof ; that is, where the proofs did not materially fail to conform with the allegations in some particular or particulars, but in its entire scope and meaniug. In other words, where the proofs establish something wholly different from the allegations of the pleadings. In such a case no amendment can be permitted, but the action should be dismissed. As we have said, the sole ground for recovery laid in the petition was the fraud and deceit of Hallowell in making the trade. In other words, the allegations in the petition, in its general scope and meaning, are, that the defendant Plallowell was guilty of actual fraud and conspiracy against the plaintiff, whereby he was injured, while the proof directed to those allegations and the special findings of the jury are, that he was not guilty of fraud or conspiracy, but at most was negligent, and that the injury, if any happened, was caused by his negligence or the mutual negligence and mistake of the parties to the transaction. This is not an immaterial variance, under sections 133 and 134, but a total failure of proof, under section 135 of the code.
The judgment in this case is reversed, and cause remanded with instructions to render judgment therein, for Hallowell upon .the special findings.
All the Judges concurring.
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Per Curiam:
This is an appeal from an order denying movant relief after an evidentiary hearing upon his petition filed under K. S. A. 60-1507. Appellant was charged with first degree murder of a fellow inmate in the Kansas State Penitentiary. Pursuant to plea bargaining between appellant’s attorney and the county attorney, appellant entered a plea of guilty to second degree murder.
Appellant contends that his plea was induced by the county attorney’s agreeing to make no recommendation as to the sentence to be imposed. The record shows that when the plea was entered the county attorney requested a life sentence. Two weeks elapsed between the plea and the sentencing. Appellant was then sentenced to twenty-five years, to run consecutively with the sentence he was then serving. At the time of the plea and later at the sentencing there was no objection by either appellant or his attorney to the recommendation.
At the evidentiary hearing on the present motion appellant and his co-defendant testified the county attorney had agreed to make no recommendation as to the sentence. Appellant’s former attorney testified that he did not remember any agreement beyond the reduction of the charge to second degree murder. The attorney was sure the prosecutor did not say he would remain silent and that the sentencing was not contrary to plea negotiations. The trial court believed appellant’s former attorney and found that the county attorney fulfilled all promises made dining the plea negotiations.
The court below was the trier of the facts and the judge of the credibility of the witnesses. Its findings are based on substantial competent evidence and will not be overturned on appeal. (Burns v. State, 215 Kan. 497, 524 P. 2d 737.)
Affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This litigation stems from the granting of a certificate of convenience and necessity by the State Corporation Commission to appellee (P. L. Woodbury, d/b/a Mo'bilfone of Kansas) to perform services as a radio common carrier in the vicinity of McPherson. The granting of the certificate was challenged by appellant (General Communications Systems, Inc.) who appeared as a protestant at the hearing before the commission. The appellant will hereafter be referred to as General and the appellees as Wood-bury and the commission.
Woodbury held certificates to operate as a radio common carrier in Topeka, Manhattan, Emporia, Great Bend and Hays. Woodbury’s capacity, financial or otherwise, to provide the services in McPherson is not questioned. On August 26, 1970, Woodbury filed the instant application for authority to operate from a base station in McPherson. Orthal D. Vrana is the owner and president of General which holds certificates to operate in Salina and within a radius of fifty miles therefrom and a certificate to operate from Wichita within a radius of fifty-five miles. McPherson lies within the overlapping certificated areas of both Salina and Wichita.
After the Woodbury certificate was granted, General made application for rehearing which was denied. Pursuant to K. S. A. 66-118a, et seq., General made application for review by the district court of McPherson County. On January 14, 1974, the district court found the certificate issued by the commission to be lawful and reasonable and General perfected this appeal.
General specifies ten points of error. In its first four points General attacks the commission’s proceedings, claiming it failed to set forth an adequate statement of facts; that there was no substantial competent evidence upon which the findings could be made or that would support the conclusions of law; and that there was no substantial evidence upon which the commission could make a finding of public need. General’s other points go to the proposition that the commission failed to apply basic public utility law, particularly with respect to public need and 'the protection of the territorial integrity of General.
This is the first case to reach this court involving the regulation of this relatively new industry.
In 1969 the legislature saw fit to declare radio common carriers to be public utilities and subject to regulation as such by amend ment to K. S. A. 66-101. The scope of the services to be regulated was set out in K. S. A. 66-1,143, which reads:
“The term radio common carriers’ as used in this aot [*] shall include all persons and associations of persons, whether incorporated or not, operating a public ‘for hire’ radio service engaged in the business of providing a service of radio communication, one-way, two-way or multiple, between mobile and base stations, between mobile and land stations, including land line telephones, between mobile stations or between land stations, but not engaged in the business of providing a public land line message telephone service or public message telegraph service within this state.”
Under the provisions of K. S. A. 66-1,144 the transaction of business as a radio common carrier was prohibited without securing:
“. . . [A] certificate from the corporation commission that public convenience will be promoted by the transaction of said business and permitting said applicants to transact the business of a radio common carrier in this state.
The statute also provided for the “grandfathering” in of any person engaged in the business at the time of the enactment of the act by providing that such person:
“. . . [S]hall receive a permit to transact business from the corporation commission authorizing such person to continue the construction or operation of such radio common carrier in the territory professed to be served by such person on the effective date of this act [*]: Provided, That within sixty (60) days after this act [°] becomes effective, such person shall file with the corporation commission an application for such certificate, including copies of any license or licenses issued by the federal communications commission' to such person showing the area professed to be served by such person.”
Woodbury and General obtained their existing certificates under the grandfather provision.
Agreements to interconnect with telephone companies serving the area certificated were authorized by K. S. A. 66-1,145 which further provided that if such an agreement could not be reached, the commisison could, on a showing of necessity, order an inter■conmiection on reasonable terms to be established by the commission.
Following the enactment of the statutes referred to the commission invited ¿11 radio common carriers of the state to participate in a proceeding docketed and entitled “In the matter of the general investigation of radio common carriers.” Both General, and Wood-bury participated in these proceedings, and both parties and the commission refer in their briefs to the memorandum opinion of the commission filed at the conclusion of the proceedings. The purpose of tire memorandum opinion is stated by the commission in paragraph No. 6 thereof which is quoted in the commission’s brief as follows:
“ ‘6. This memorandum opinion is solely for the previously stated purpose of establishing tentative guidelines and to lay the basic ground rules for Commission policy and precedent as we proceed in this beginning phase of the regulation of radio common carriers.’ ”
At the instant hearing before the commission, applicant, Wood-bury, called three witnesses — himself, Mr. Ward H. Thompson, holder of a certificate to operate in Lawrence, and Mr. Donald F. Lett, holder of a certificate and operating a station in Hutchinson within a radius of forty miles. Protestant, General, called one witness, Mr. Orthal D. Vrana, owner and president of General.
The evidence disclosed that McPherson was located in the certificated operating radii of three stations — those operated by General at Salina and Wichita and a station operated by Mr. Lett in Hutchinson, which is the closest of the three. None of the three provided “local service” in McPherson; that is they 'could not provide non-toll interconnecting service with the local land line telephone company serving the McPherson area. It was also established that none of the three could provide “paging” service in the McPherson vicinity, that the normal range of reception for “pagers” at the present stage of the art is about fifteen miles. A pager is an electronic device usually carried upon the person of a customer by means of which a signal from a station may be received.
Mr. Woodbury testified that he had received requests for service from potential customers located in McPherson and several nearby towns; that his proposed service would interconnect with the local telephone system so that a subscriber could make local telephone calls at the established call rate in the area “without the necessity of going through long distance call charges”; and that he would be able to serve pagers in the immediate area of McPherson.
Mr. Lett testified that his area of authorization was a radius of forty miles from Hutchinson which completely covered the community of McPherson. He stated that the location of a station in McPherson would be advantageous to his subscribers in Hutchinson. Mr. Lett also related a telephone conversation with Mr. Vrana, of General, concerning the Woodbury application. In this connection he testified:.
“Q. Have you inquired of Mr. Vrana who runs General Communications whether he desired and intended to put a station in here?
“A. Mr. Vrana has called me in regard to this before this came up, and I have specifically — he had objected that Mr. Woodbury was going to put that in, and I had specifically asked him at least twice if he had intentions of putting it in, and he didn’t give me any clear-cut answer that he did, and I said, ‘I can’t see no reason why he can’t put it in then. If you’re not going to put it in, why not have him put it in. It’s a benefit to the whole service.’ He said, ‘Well, it’s a precedent. It’s a precedent. If he comes in and puts it in McPherson because his pattern covers that, he can come into' Wichita.’ My pattern covers it much better than any other. I can’t interconnect. It’s still an advantage to me if I’m not going to put it in to have someone else to go in; and if Mr. Woodbury doesn’t go in there, then I would go in. It’s a benefit to the industry. I look at it as a benefit to the industry. It doesn’t make any difference to me if Mr. Vrana goes down there or he goes down there. That is what I’m here to tell you the best I can.”
Mr. Lett also testifies that he had received requests from. McPherson residents for telephone service, but it was not feasible to provide such service “because they can’t interconnect.”
Mr. Ward Thompson had authorization as a radio common carrier in Lawrence. He testified that other radio common carriers located in Kansas City and Topeka could be received in Lawrence at the time he secured his certificate, but that he provided local interconnecting and paging services.
Mr. Vrana, of General, testified that he had not received any demand for additional service in the McPherson area, but if it were demanded he would be prepared to provide it. He testified that he was not, at the present time, actually providing radio ooirmon carrier services to any subscriber at McPherson, but that he had solicited about sixty-five people in the McPherson area and found no interest. He further testified that with present facilities he was not able to serve McPherson paging customers and that there was no way he could directly interconnect a McPherson subscriber directly into McPherson.
On November 4, 1970, the commission filed its certificate and order in which it reviewed the testimony of all of the witnesses, made findings of fact and extensive conclusions of law. It is true, as General points out, that some of the conclusions of law actually include findings of fact — however, we find no error of substance in this regard.
The commission’s findings of fact are as follows:
“That the Applicant is requesting a certificate of convenience and necessity to transact the business of a Radio Common Carrier at and within a service area of approximately a 50 mile radius from a base station tower located at latitude 38° 22,32" N-longitude 97° 35'56" W (2 miles east of McPherson, Kansas).
“2. That applicant proposes to file an application with the Federal Communications Commission for a license to operate on the base station frequency of 152.12 MC and on the mobile station frequency of 158.58 MC.
“3. That there is no radio communications service based out of McPherson and that there is no radio communication service that directly interconnects into the land line system at McPherson.
“4. That as a consequence, although there is some service available in the area from certificated service that overlaps from other base stations, it is not of the same nature that would be available if the service were based in the City of McPherson itself and directly interconnected with the land telephone business.”
In its conclusions of law the commission found that, although regulation of radio common carrier service is comparable to other utilities, the rules pertaining to utilities generally are not completely compatible to regulation of radio common carriers. The commission noted that as a utility service radio common carriers are still in an early stage of development and consequently regulatory 'aspects of the service are likewise in an early stage, but that the flexibility in administrative regulatory rules and procedure will permit the regulatory agency to examine the circumstances and nature of the service. The commission considered in depth the requirement of necessity with respect to certification of other utilities and rationalized a distinction with respect to the strict application of the necessity requirement in the case of a radio common carrier application. The commission found that the evidence herein showed only “nebulous” necessity because necessity at the present stage of development is not really clear until the service is developed and promoted. The commission reasoned that in a case such as that at bar, where there is no service with direct land line interconnection available, an applicant willing to invest in such service and promote it should be given the opportunity to> do so.
On judicial review the trial court noted the limitations on review prescribed by K. S. A. 66-118d; found that the commission’s order was supported by substantial competent evidence; and that while there was Wichita and Salina service available to McPherson residents, -there is no McPherson radio common carrier service available. The trial -court -concluded that the commission’s order was lawful and reasonable.
Turning to General’s contentions on appeal, we find no merit in its assertion that the commission failed to set forth adequate facts. This court, on numerous occasions, has stated that the commission in compliance with the requirements of our Public Utilities Act (K. S. A. 66-101, et seq.) and in accord with, its own regulation (K. A. R. 82-1-232) must expressly state the basic findings of fact upon which its action is based. (Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660.) In the instant case the commission’s findings cover the basic issues and are set out with sufficient specificity to allow the court to perform the function of judicial review assigned by statute. There is substantial competent evidence consisting of the testimony of applicant’s three witnesses, and also that of the protestant, that Woodbury would be able to perform a specialized carrier service different from and more suitable to the needs of McPherson users than any other service now available.
The central thrust of General’s position is that the commission failed to apply basic utility law to protect its territorial integrity in that necessity, as well as convenience, must be shown in order to grant the certificate sought by Woodbury and that a showing of necessity should be the same as that required in the case of other utilities.
General correctly points out that although the general public utility statute, K. S. A. 66-131, unlike K. S. A. 66-1-114, pertaining to certification of motor carriers, only requires that a certificate of public convenience be obtained in order to carry on public utility operations, the courts have always spoken in terms of public necessity, as well as convenience, when making rulings concerning issuance of public utility certificates, e. g., Telephone Co. v. Telephone Association, 94 Kan. 159, 146 Pac. 324.
In its conclusions of law the commission recognized that the requirement of necessity has been added, by judicial implication, to the statutory requirement of convenience. In this connection, the commission said in conclusion No. 4:
“4. Both parties have emphasized the term ‘necessity’, the protestant pointing out that there is no great public demand for applicant’s service:, hence no ‘necessity’. The Applicant, on the other hand, points out that K. S. A. 66-1,144 makes no requirement of necessity, but refers only to a certificate of convenience. The point is not too well taken, however, in light of the fact that K. S. A. 66-131, pertaining to utilities generally, refers only to ‘public convenience’. The term ‘necessity’ has developed through the years and has been approved by judicial interpretation of K. S. A. 66-131 and related statutes. The term has come into use by judicial implication, rather than express statutory statement.”
The commission went on to rationalize a need for different application of the necessity requirement to the issuance of certificates in the new and still developing services of radio common carriers from the application thereof to the more traditional utility services. In this connection the commission observed:
“Certainly Radio Common Carrier service is a convenience to any subscriber who can afford it. The matter of necessity is something else. The ‘necessity’ for gas, electric and telephone service is obvious in this day and age. Every one considers one or more of these services a necessity, although there was probably a time when this was not so clear — and it may be that there will come >a day and age when availability of Radio Common Carrier service is just as much a necessity as is the telephone or other type of utility service.
“At the present time, however, Radio Common Carrier Service remains in the category of a specialized service to meet the immediate needs of a relatively small number of subscribers whose professional or occupational activities are capable of enhancement by more immediately available communications.
“The obvious distinction between Radio Common Carrier service and more traditional utility service is that in the latter the subscriber is aware of his need without being told. Radio Common Carrier service, on the other hand, remains to a great extent a service to be promoted and sold — the potential subscriber has still to be convinced of his need. Thus, a survey showing the number of people in an area without gas, or electric or telephone utility service, indicates some necessity by mere absence of available service. The same oannot be said of Radio Common Carrier service. It is of nebulous necessity, and we reach the hazardous conclusion that the necessity at the present stage of development is not really olear until it is developed and promoted.”
Following the foregoing analysis the commission concluded:
“5. That in an instance such as the case now at issue, when there is no base station service with direct land line interconnection presently available, the only available service being that of extension from a base station in another community, we must conclude that an applicant willing to invest in such service and promote it should be given the opportunity to do so.
“6. The Applicant having established his qualifications, and having committed himself to render service based out of McPherson should be granted a certificate for the area.”
While there was evidence of some demand for localized service in McPherson, the commission’s description of the necessity shown as “nebulous” is probably appropriate. We believe, however, that the handling of the matter properly falls within the realm of administrative expertise, and we are not inclined, nor are we permitted, to impose judicial interference unless the commission’s action is shown to be unlawful or unreasonable (66-118d).
While it cannot be said that Woodbury’s proposed service is shown to be necessary in the sense of being indispensable, we believe the testimony of Lett and Woodbury indicates an element of public need that is more than a mere showing of convenience.
We considered the meaning of the word “necessity” as used in cases dealing with the regulation of public utilities in the case of Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P. 2d 1, wherein Mr. Justice Fromme speaking for the court said:
“. . . Public necessity does not necessarily mean there must be a showing of absolute need. As used, the word ‘necessity’ means a public need without which the public is inconvenienced to the extent of being handicapped. . . .” (pp. 676, 677.)
The evidence shows that at least the segment of the public desiring to make- use of the proposed services would be inconvenienced to the extent of being handicapped.
The authority and jurisdiction of the commission to supervise and control the public utilities in this state are conferred by statute (K. S. A. 66-101.) Discretionary authority was delegated to the commission, not to the courts. (Central Kansas Power Co. v. State Corporation Commission, supra.) Considering the facts of this case in the light of the early stage of the development and regulation of radio common carrier services, we are unable to say that the commission’s action was unreasonable. We deem it unnecessary to again review the many cases in which this court has called attention to the limitations imposed on the judicial review of commission proceedings. In summary, it may be said the end result of judicial review is to determine whether the commission’s order is lawful and reasonable. In making such review, the district court is required to search the record to ascertain whether there is substantial evidence to support the basic findings of fact made by the commission and the court is not authorized to substitute its judgment for findings of the commission if the matter is within the realm of fair debate. (Cities Service Gas Co. v. State Corporation Commission, supra; and Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P. 2d 515.) Appearing time and time again in our opinion is a succinct statement made for the first time by Justice Dawson in Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985:
“. . . It is only when such determination is so wide of the mark as to be outside the realm of fair debate that the courts may nullify it. . . .” (p. 622.)
See, also, Central Kansas Power Co. v. State Corporation Commission, supra; Missouri Pacific Rld. Co. v. State Corporation Com mission, 205 Kan. 610, 470 P. 2d 767; and Atchison, T. & S. F. Rly. Co. v. State Corporation Comm., 182 Kan. 603, 322 P. 2d 715.
General argues the commission acted unlawfully in that it made no finding that the existing radio service at McPherson was inadequate. This is not a case involving inadequate existing service. There is Wichita and Salina service available to McPherson, but the record makes clear there is no McPherson radio common carrier service available in McPherson. This circumstance is set out in the commission’s findings of fact Nos. 3 and 4.
General contends that after assigning territory to existing carriers, as provided in 66-1,144, it became tire commission’s duty to protect these carriers against invasion of their territories by others. General says that this proposition is further evidenced by language found in the commission’s memorandum opinion issued following the general investigation proceedings, heretofore referred to. In its brief the commission answers this assertion by quoting a portion of the opinion not referred to by General. It reads:
“ ‘When the base stations are not the same, but the geographical areas substantially overlap, is another matter. It then becomes a factual question as to the abilities of the competing companies to render service from their respective base stations. It could well be that the variance in location could cause a serious difference in the service available, and the choice would be dependent upon each subscribers’ needs. Thus, service available in one community, but based in another community, might not be as adequate as service based in the community of the subscriber s residence. Particularly is this so when the service is also dependent upon interconnection capability with the land line system.’ (Emphasis supplied.)”
The last statement quoted fits closely the facts of the instant case. Supported by substantial evidence the commission found that service now offered by General in McPherson is not of the same nature that would be available if the service were based in the city itself and directly interconnected with the local land line telephone as Wood-bury proposes. Viewed in this light the certificating of Woodbury cannot be said to constitute an invasion of General’s territorial integrity. The proposed service does not duplicate existing service. There is no claim or showing by General that it would suffer economic injury or limitation to its ability to provide the present service offered in its territory which is a fundamental consideration involved in the application of so-called basic public utility law. A careful scrutiny of the testimony in this case indicates that General simply does not desire to furnish service based in McPherson, but at the same time hopes to prevent any other carrier from doing so.
In an attempt to support its position General cites several cases from other jurisdictions, which we have examined and found not to be persuasive on the facts herein. Generally, the cases cited dealt with duplication of existing services and direct competition between the applicant and the existing operator.
The case of Radio-Fone, Inc. v. A. T. S. Mobile Telephone, Inc., 187 Nebr. 637, 193 N. W. 2d 442 (1972), involved an appeal by Radio-Fone, Inc. from the Nebraska commission’s order denying its application in Omaha within a thirty-five mile radius. A. T. S. Mobile Telephone, Inc., also based in Omaha, holder of a certificate for a thirty-five mile radius, protested before the commission. Radio-Fone, Inc., submitted evidence that it was prepared to offer a more sophisticated two-way service than that which could be furnished by A. T. S. because of involvement in certain legal difficulties. On the other hand, A. T. S. submitted evidence that its legal difficulties had been resolved, that it had received necessary permits from the Federal Communications Commission and was prepared and capable of offering services comparable to those offered by Radio-Fone, Inc. The Nebraska Supreme Court affirmed the commission’s order essentially on the ground that under the pertinent Nebraska statute (section 75-604, R. R. S. 1943) no duplication is permitted unless the existing company (A. T. S.) i's not and will not in a reasonable time furnish adequate service. The case is readily distinguished from the facts at bar — both companies were based in Omaha with the same thirty-five mile operating radii, and the applicant proposed to offer essentially the same service which the protestan! was prepared to offer.
For the same reason the decision in the case of Utilities Commission v. Radio Service, Inc., 272 N. C. 591, 158 S. E. 2d 855 (1968), is not pertinent to the issue herein because there the appealing applicant was seeking to serve the same area near the city of Albemarle as that served by the existing company who was the protest'ant. The North Carolina Supreme Court found no substantial difference in the nature of the service proposed by the applicant and that proposed by the protestant. The judgment of the lower court overruling the order of the North Carolina commission was reversed because the Supreme Court found the commission’s findings were supported by substantial competent evidence and, thus, binding on the reviewing court. The Supreme Court directed that the commission’s order denying a certificate to applicant be reinstated.
General cites White v. Louisiana Public Service Commission, 259 La. 363, 250 So. 2d 368. The case involved a controversy between two radio common carriers over territory surrounding the city of Abbeville. Reversal of the judgment of the lower court was based on the ground that a Louisiana procedural statute (LSA-R. S. 45: 1194) had been violated in that the lower court had received into evidence depositions of several witnesses which had never been received or considered by the commisison. The Louisiana Supreme Court did not rule upon the merits of the case, but remanded it to the commission for further proceedings with instructions to prepare a record sufficient to afford adequate judicial review.
Insofar as the cases discussed above stand for the proposition that a certificate should not be granted to another service, which will duplicate the existing service unless the regulatory authority first determines that existing service is inadequate and that the person operating the same is unable or refuses to provide such service, we agree. However, this is not a case of duplication of services now offered or proposed by the existing operator. Our holding herein is not intended to erode the theory of regulated monopoly in public utility law which has long been recognized in this jurisdiction. (Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097.) The theory was restated in the recent case of Central Kansas Power Co. v. State Corporation Commission, supra, in these words:
“The statutes authorizing the commission to supervise and control corporate action in the utility field have been generally understood as an expression of the legislature’s administrative policy designed to protect against ruinous competition, to promote adequate and efficient service and to limit the waste attendant on unnecessary duplication of facilities designed for the same purpose in the same area.” (p.677.)
In their briefs all of the parties refer to the fact that there is dual regulation of radio common carriers shared by the state and federal communications commission. It is pointed out that the FCC in granting channel certificates to radio common carriers offers protection only to the “reliable service area” which is encompassed in what is labeled a “37 D. B. U. contour” which, the commission says is more like twenty-five to thirty-five miles, rather than fifty or fifty-five. The commission says that subsequent to its assignments of service areas under the “grandfather” clause of 66-1,145 it has become better informed concerning what might be considered reliable service area. The matters mentioned are not in the record, nor were they before the commission at the hearing and, therefore, cannot be relied upon in the determination of this appeal. However, the new information concerning reliable service area gives validity to what was said by the commission in conclusion No. 3, wherein it observed that radio common carrier service and regulatory aspects thereof are both in an early stage of development and require flexibility in administrative regulatory rules and procedure permitting the administrative agency to examine the circumstances and nature of the service.
It is true, McPherson lies within the far reaches of the radii authorized to the Salina and Wichita stations, but the services proposed by Woodbury are not in duplication of existing services. There is no claim made that General would suffer economic injury, nor is there any evidence that its ability to furnish services now offered would be limited or hindered. It is true, the evidence does not show a need for the services proposed by Woodbury in the sense that such services are indispensable, but we are satisfied with the differentiation made by the commission between the application of the necessity requirement with respect to the particular circumstances in this case and the application thereof in a case involving a general utility application.
The record fails to establish that the commission's order was unlawful or unreasonable, therefore the judgment below is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This appeal involves a claimed violation of the right of privacy. Various other claims and counterclaims of the parties have been determined either by settlement or by jury verdict. This is the final chapter of prolonged, complicated litigation that began in 1967. The original appellants in this case were the Security State Bank of Fort Scott, Kansas, and its president, Floyd Dotson. The appellees are Harold McLaughlin and his wife, Norma Jean McLaughlin. Most of the facts in this case are not in dispute and are essentially as follows: Prior to March 1966 the appellee, Harold McLaughlin, owned and operated four White Grill Restaurants at Nevada, Missouri, and at Chanute, Fort Scott and Pittsburg, Kansas. McLaughlin had secured a $60,000 loan from the Small Business Administration in 1963 for the construction of the Chanute restaurant. Subsequent thereto he obtained a second SBA loan in the amount of $20,000. The Security State Bank had a ten percent interest in the first loan and a twenty percent interest in the second loan. The SBA loans were apparently subject to a first deed of trust held by a creditor of McLaughlin in the state of Missouri. In March of 1966 the employees of the Small Business Administration believed that its loans to McLaughlin were in danger and that the White Grill restaurants were in financial difficulties. The record is undisputed that the holder of the first deed of trust was threatening to foreclose its security. At that time McLaughlin owed approximately $13,000 to $14,000 on restaurant open accounts and it is undisputed that McLaughlin had written a number of' insufficient fund checks in payment of business obligations. McLaughlin had written among others an insufficient fund check to the Internal Revenue Service in order to cover his taxes. It was necessary for McLaughlin to go around to each of his four restaurants to make that check good from cash on hand. He did not have sufficient money in any of his business bank accounts to pay the check. McLaughlin testified, however, that he did not think that at the time he was in any severe financial straits.
About April 1, 1966, at the request of the SBA, McLaughlin met with two SBA officials and Dotson at the bank. The SBA officials expressed their concern over McLaughlins financial affairs and the status of the SBA loans. They discussed the management of the four White Grill restaurants. Dotson suggested that the financial control of the four restaurants should be taken over by himself acting for the bank. It was proposed that there be established four different accounts in the Security State Bank in which all receipts from the four restaurants would be deposited and from which all obligations of the four restaurants would be paid. Dotson also suggested that McLaughlin sell his Cadillac, which was heavily mortgaged, and personally manage the restaurant at Chanute. McLaughlin did not immediately consent to this arrangement. A few days later Dotson again called McLaughlin to the bank. According to Dotson at that time McLaughlin consented to having Dotson take over the running of the financial affairs of the restaurants and McLaughlin also agreed to sell his Cadillac. McLaughlin testified that he was advised by Dotson that if he did not agree to this arrangement, the SBA loans would be foreclosed and he would be out of business. McLaughlin testified he thought that he did not have any alternative but to agree to this procedure since he presumed that the bank could foreclose its loan if he refused to go along. Dotson took over the handling of the financial affairs of the four restaurants on April 12, 1966, and continued to handle them until May 10, 1967, a period of 13 months. It should be noted that McLaughlin brought all of the books of his businesses to the bank and thereafter did deliver to Dotson all of the receipts from his restaurants and also all of the bills. Dotson got in touch with McLaughlin’s creditors, advised them of the arrangement, and stated that current bills would be paid along with pro rata payments on older obligations. All in all, it was a very unsatisfactory arrangement to Harold McLaughlin and his wife, Norma Jean McLaughlin, whom Harold married during this period. During the period Dotson was in charge of the financial affairs of the four restaurants, the restaurant at Nevada was sold as was also McLaughlin’s residential property in that city. The proceeds of these sales were placed in the bank accounts and used to pay McLaughlin’s debts. Prior to relinguishing control of the three remaining businesses back to McLaughlin, Dotson obtained from Mr. and Mrs. McLaughlin their signatures on a release which stated that the bank and Dotson were fully released from liability arising from Dotson’s handling of the restaurants’ financial transactions.
The present litigation was provoked when an action was filed by Omaha Steaks International, Inc. against Harold Dotson and the Security State Bank to recover for food and restaurant supplies sold and delivered to the restaurants between December 27, 1965, and May 16, 1967. Both Dotson and the bank filed in addition to an answer a third-party petition against McLaughlin. The substance of the third-party petition against McLaughlin was that McLaughlin had purchased the goods from Omaha Steaks and that if there was anything due Omaha Steaks on that account, it was the obligation of McLaughlin and not of Dotson or of the bank. McLaughlin filed his answer to the third-party petition in which he pleaded that the bill for the merchandise claimed by plaintiff was the obligation of the bank and Dotson. In addition he filed a counterclaim in which he alleged that Dotson and the bank had forcibly and illegally taken possession of his four restaurants, that Dotson and the bank had mismanaged his financial affairs, and furthermore that they had caused McLaughlin to suffer mental anguish, pain and physical disability. McLaughlin sought to recover compensatory damages in the amount of $15,000 and punitive damages in the amount of $15,000. Furthermore he prayed for a complete and full accounting from Dotson and the bank in the handling of the finances of McLaughlin’s restaurants. The case became even more complicated when the Security State Bank filed a reply to the counterclaim of the third-party defendant McLaughlin claiming the right to recover on a note executed to the bank by Harold A. and Norma Jean McLaughlin in May of 1967 when the handling of the financial affairs of the restaurants was turned back over to the McLaughlins.
Some time later Omaha Steaks International, Inc. dismissed its petition and dropped out of the litigation. The record does not show whether this claim was paid or how the dismissal came about. On March 25, 1968, a pretrial conference was held in the case. On September 18, 1968, an additional pretrial conference was had with reference to the various claims of the Security State Bank, Dotson and McLaughlin. The issues of fact were stated to be as follows:
(1) The manner in which Dotson and the bank took over the handling of the McLaughlin accounts.
(2) Whether or not there was an unlawful and illegal taking over of McLaughlin’s business.
(3) Whether or not as a result of a proposed accounting McLaughlin is entitled to recover from Dotson and the bank.
(4) The extent of McLaughlin’s damages, if any.
(5) Whether or not the McLaughlins had executed a valid release discharging Dotson and the bank from liability.
(6) Whether or not tire note executed by the McLaughlins to the bank is an existing obligation because it was obtained by duress.
A number of difficult legal questions were also raised concerning the statute of frauds, the validity of the release, whether or not the bank was operating a business in violation of the banking statutes, and whether any acts by the bank and Dotson were malicious and wilful so as to permit recovery of punitive damages. It should be noted that there was no reference in the pretrial order as to any violation of McLaughlin’s right of privacy.
On May 25, 1970, the parties filed a document entitled “Designation of Issues by Plaintiff and Third Party Defendants”. In this document it was claimed by McLaughlin that Dotson drew insufficient fund checks on the restaurant accounts and made unauthorized disbursements. It was again asserted that the release signed by the McLaughlins had been obtained by fraud, misrepresentation and duress and that the release was unconscionable. Also for the first time it was claimed that Dotson and the bank had invaded McLauhgliris right of privacy causing him disgrace, humiliation, mental pain and anguish, and physical disability, and that such acts were wilful, wanton and malicious, by reason of which McLaughlin is entitled to punitive damages. It was about at this time that the petition of Omaha Steaks International, Inc. was dismissed on its own motion.
The case was finally tried to a jury in January of 1973, more than five years after the case was originally filed. The case was submitted to the jury on the various theories discussed above including the misappropriation of restaurant funds by Dotson and the bank, breach of contract, fraud, duress, the right of McLaughlin to an accounting, violation of the right of privacy, punitive damages, and the claim of the Security State Bank against the McLaughlins on McLaughlins’ note and mortgage. Suffice it to say it was a difficult case for the court, counsel and the jury. The case was submitted on four specific questions which were answered by the jury as follows: The jury found that the Security State Bank was entitled to recover on its note and mortgage from the McLaughlins in the principal sum of $3,982 with interest. As to McLaughlin’s claim for an accounting for the mishandling of the financial affairs of the restaurants, the jury found that the McLaughlins were entitled to recover nothing. The jury found that Harold McLaughlin was entitled to recover on his claim of invasion of privacy in the amount of $8,000 and the further sum of $8,000 as punitive damages. After postjudgment motions were overruled, all parties appealed.
In November 1973 a joint motion to dismiss their appeals was filed by the Security State Bank and the McLaughlins based upon an agreed settlement. The appeals of the bank and McLaughlin were dismissed. This left the appeal of the appellant, Floyd Dotson, as the only appeal pending in this court for determination. Dotson’s appeal involves only the propriety of the judgment entered against him for $8,000 for the alleged violation of McLaughlin’s right of privacy and $8,000 for punitive damages. It is important to take note of the fact that with the exception of the right of privacy issue all other claims in the case have been fully adjudicated between the parties. These include McLaughlin’s right to an accounting from Dotson for the way he handled the restaurants’ financial affairs and the claim of the Security State Bank against McLaughlins on their note and mortgage executed just prior to the time the restaurant businesses were turned back over to the McLaughlins. There are a number of points raised on this appeal. The major issue confronting this court is whether the evidence presented at the trial was sufficient to establish a submissible case of invasion of privacy for which the jury might award damages. We will determine this case on that single point, and hence it will not be necessary to determine the other points raised by the appellant Dotson.
At an early date Kansas recognized invasion of the right of privacy as a tort upon which a cause of action could be based. (Kunz v. Allen, 102 Kan. 883, 172 Pac. 532 [1918].) Kunz involved the unauthorized exhibition of a photograph of a person taken without her consent and for the purpose of exploiting the publisher’s business. Our next right of privacy case was in 1953 when we decided Johnson v. Boeing Airplane Co., 175 Kan. 275, 262 P. 2d 808. Johnson involved an alleged invasion of plaintiff’s right of privacy by the unauthorized publication of plaintiff’s photograph by the Boeing Airplane Company in business advertisements in certain national magazines. We again recognized the existence of the right of privacy but held that under the factual circumstances the plaintiff had waived his right by consenting to the use of his photograph by the company. In the syllabus we defined the right of privacy as follows:
“The doctrine of the ‘right of privacy’ is defined as ‘the right to be let alone,’ the right to be free from unwarranted publicity, the right to live without unwarranted interference by the public in matters with which the public is not necessarily or legitimately concerned, and the right to be free from unwarranted appropriation or exploitation of one’s personality, private affairs and private activities.” (Syl. ¶ 1.)
The right of privacy was before the court in Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P. 2d 1063. There we held that only unwarranted invasions of the right of privacy are actionable and that the right of privacy does not prohibit the communication of any matter though of a private nature, when the publication is made under circumstances which would render it a privileged communication according to the law of libel and slander.
Professor William L. Prosser in his Law of Torts, 4th Ed., Privacy, § 117, discusses in depth the origin and development of the right of privacy. He points out the difficulties the courts have had in fixing the boundaries for its recognition. One federal judge described the state of the law on the right to privacy as that of a haystack in a hurricane. (Ettore v. Philco Television Broadcasting Corporation, 229 F. 2d 481.) Professor Prosser analyzed all of the cases on the subject and concluded that the law of privacy comprises four distinct kinds of torts which are tied together by the common name, but otherwise have almost nothing in common except that each protects against interference with the right of the plaintiff “to be let alone.” The Restatement of the Law, Second, Torts (Tentative Draft 13) § 652 adopted Prosser’s four-pronged concept of the right of privacy. In Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993, Mr. Justice Owsley discussed the right of privacy in a case involving the unauthorized invasion of the plaintiff’s hospital room for the purpose of obtaining hair samples from the plaintiff’s hair brush. Froelich is important in this jurisdiction because it brought the right to privacy into sharper focus and gave recognition to the analysis of the right of privacy as made by Prosser and the Restatement of the Law, Second, Torts.
The Restatement of the Law, Second, Torts § 652, provides as follows:
"§ 652A. MEANING OF INVASION OF PRIVACY
“THE RIGHT OF PRIVACY IS INVADED WHEN THERE IS
“(a) UNREASONABLE INTRUSION UPON THE SECLUSION OF ANOTHER, AS STATED IN § 652B; OR
“(b) APPROPRIATION OF THE OTHER’S NAME OR LIKENESS AS STATED IN § 652C; OR
“(c) UNREASONABLE PUBLICITY GIVEN TO THE OTHER’S PRIVATE LIFE, AS STATED IN § 652D; OR
“(d) PUBLICITY WHICH UNREASONABLY PLACES THE OTHER
IN A FALSE LICHT BEFORE THE PUBLIC, AS STATED IN § 652E.”
Ҥ 652B. INTRUSION UPON SECLUSION
“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable man.” (p. 103.)
Ҥ 652C. APPROPRIATION OF NAME OR LIKENESS
“One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” (p. 108.)
Ҥ 652D. PUBLICITY GIVEN TO PRIVATE LIFE
“One who gives publicity to matters concerning the private life of another, of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy.” (p. 113.)
"§ 652E. PUBLICITY PLACING PERSON IN FALSE LIGHT
“One who gives to another publicity which places him before the public in a false light of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy.” (p. 120.)
We believe that the analysis of the right of privacy as contained in the Restatement, Second, Torts § 652, is sound and that the courts of this state should follow it in fixing the boundaries for its protection.
We should now turn to the evidentiary record before us to determine whether or not a claim for invasion of the right of privacy has been made out under any of the four categories discussed above. There is a real problem presented in this case when one seeks to understand just what counsel for McLaughlin meant in making a claim for invasion of privacy and in just what manner it came to be made. As pointed out above the right of privacy is not mentioned in the pleadings or in the two pretrial orders filed in the case. The right of privacy is first mentioned in the “Designation of Issues by Plaintiff and Third Party Defendants” filed on May 25, 1970. Exactly how the right of privacy of McLaughlin was invaded is not set forth with particularity. In the brief filed by the McLaughlins in this court, counsel points out that the counterclaim states in substance that Dotson and the bank illegally, unlawfully and forcibly took over the operation of McLaughlin s restaurant businesses and interfered in their operation. He further argues that Dotson mishandled the business funds which came into his hands. There is some testimony in the record by McLaughlin that Dotson called him by telephone every day in regard to the financial operations of the company and that this resulted in McLaughlin’s inability to sleep and caused him to develop high blood pressure. He testified that he was humiliated, worried crazy, and harassed and finally at age 62 took his social security because he was unable to work as he formerly did 10 to 12 hours a day.
We have concluded that on the basis of the record before us McLaughlin has failed as a matter of law to establish an invasion of his right of privacy. It seems obvious to us that we do not have involved here the appropriation of McLaughlin’s name or likeness (§ 652C) or unreasonable publicity given to McLaughlin’s private life (§ 652D) or publicity which unreasonably placed McLaughlin in a false light before the public (§ 652E). If an invasion of privacy is to be made out from the evidence, it, of necessity, must be based upon some unreasonable intrusion upon McLaughlin’s seclusion as defined in Restatement, Second, Torts, § 652B. In our judgment McLaughlin has not made out a case for violation of his right to privacy under that theory. There is no evidence whatsoever to show physical intrustion into a private place which McLaughlin had secured for himself or any type of act in the nature of a prying or intrusion into any private or secured area of McLaughlin’s life. Any interference here by Dotson and the bank was in the area of McLaughlin’s business interests, not in the area of his private affairs. The wrongful taking over of the financial assets of a business by a creditor may constitute a conversion of property but it does not in itself constitute a violation of the right of privacy of the debtor. Hence we have concluded that it was error for the trial court to submit this case to the jury on the theory of violation of McLaughlin’s right of privacy.
The failure of McLaughlin to establish a case of invasion of his right of privacy does not necessarily mean, however, that he is without remedy for abusive acts committed by -his creditor. There is another theory in tort 'closely allied to invasion of the right of privacy which protects a debtor from outrageous conduct on the part of his creditor. In Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P. 2d 104, we held that a creditor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the debtor is subject to liability for such emotional distress, and if bodily harm to the debtor results from it, for such bodily harm. In so holding we recognized and applied Restatement, Second, Torts § 46 (1) which provides as follows:
§ 46. Outrageous Conduct Causing Severe Emotional Distress
“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
It should be noted that a cause of action based upon outrageous conduct of a creditor against a debtor is not included under § 652 governing invasion of the right of privacy but is recognized as a completely independent tort. It has been referred to in recent years as the tort of “outrage.” In Dawson we adopted the rule of Restatement, Second, Torts §46 (1) in cases involving debtor harassment. We pointed out in the opinion that the right of a debtor to be left alone is qualified by the rights of others. When one accepts credit, the debtor impliedly consents for the creditor to take reason able steps to pursue payment even though it may result in actual, though not actionable, invasion of privacy. In the debtor-creditor situation the right of a debtor to privacy is subject to the right of a creditor to take reasonable steps to collect the debt. Furthermore in Dawson we emphasized that in. this area of the developing law, the business community must be given some latitude to pursue reasonable methods of collecting debts even though such' methods often might result in some inconvenience or embarrassment to the debtor. Debtors’ tender sensibilities are protected only from oppressive, outrageous conduct.
Comment d under § 46 of the Restatement, Second, Torts, restricts a right of action under that section to extreme and outrageous conduct. Comment d states:
“The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’
“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . .” (p. 73.)
In paragraph f of the comment it is noted that the extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. In Dawson we held that the factual circumstances were sufficient to raise a jury question of outrageous conduct causing severe emotional distress by a creditor by virtue of the fact that the defendant creditor knew that its debtor, the plaintiff, was suffering from multiple sclerosis and would be peculiarly susceptible to emotional distress because of that disease. There were also other circumstances present in that case which are not present here.
In Dawson we further pointed out that under comment h, § 46 (1), of the Restatement, Second, Torts, it is for the court to determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so, and where reasonable men may differ, the question is for the jury to determine. We have carefully examined the evidentiary record in this case and we have concluded that as a matter of law the conduct of Dotson and the bank was not sufficiently extreme or outrageous to justify liability to McLaughlin on the theory of debtor harassment. Here it was undisputed in the evidence that McLaughlin was indebted to the bank and to the Small Business Administration and that the SBA officials were concerned over McLaughlin’s financial affairs and the status of the SBA loans. When Dotson insisted, McLaughlin turned over his books to Dotson and then proceeded to deliver all of the receipts from his restaurants and also all of the bills. The mere fact that Dotson telephoned McLaughlin frequently about the financial affairs of the restaurants is not sufficient in itself to establish extreme or outrageous conduct on the part of Dotson. There is nothing in the record to show that abusive language was used by Dotson in these telephone calls. Nor do we regard any statements made by Dotson that the SBA loans would be foreclosed if McLaughlin did not cooperate as sufficiently extreme or outrageous to give rise to liability under the theory of debtor harassment. Stated in another way we cannot say the conduct of Dotson was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. We have concluded that the case should not have been submitted to the jury on the theory of debtor harassment.
In view of the fact that we are setting aside McLaughlin’s judgment based upon an alleged invasion of his right of privacy, we must, of necessity, set aside the verdict awarded by the jury in the amount of $8,000 for punitive damages. Before exemplary damages may be awarded, the party claiming damages must establish actual damages and the right to recover therefor. (Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 399 P. 2d 822.) The jury by its special verdict found that neither Dotson nor the bank owed McLaughlin anything under his claim that Dotson had mishandled the financial affairs of his restaurants and misappropriated his funds.
The conclusions which we have reached are decisive of this appeal. Under the circumstances we will not consider the other points raised by the appellant Dotson. The costs of this appeal are taxed to the appellee, Harold McLaughlin. The judgment of the district court is reversed, the judgment awarded in the district court to McLaughlin against Floyd Dotson is set aside, and judgment is hereby entered in favor of Dotson on McLaughlin s counterclaim.
Owsley, J., not participating.
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The opinion of the court was delivered by
Owsley, J.:
This is an action for breach of contract brought by Robert L. and Judy E. Kern against Vern Miller, Gary Porter, Mar cus Preston, and Jack Collier. Plaintiffs sought damages for the loss of business reputation and good will, and the wrongful conversion of business assets and income. The trial court granted defendants’ motion for summary judgment and dismissed the case on the ground the four individual defendants were immune from suit under K. S. A. 46-901, 46-902, 46-903, and 75-3111.
Since we are concerned with a motion for summary judgment, this court on review can only assess the propriety of the trial court’s action based upon the pleadings of the parties and matters established by affidavits, depositions, answers to interrogatories and requests for admissions. (K. S. A. 60-256 [c].) Here, we have the pleadings only. The petition reads:
“Come now the plaintiffs and for their cause of action against the defendants, allege:
“1. That prior to October 23, 1973, plaintiffs owned and operated The Non-Establishment, a tavern in Parsons, Kansas; that they had been having trouble and had sought help from law enforcement officials; that they thereafter were contacted by persons calling themselves Marcus Preston and Jack Collier who later identified themselves as agents for the Kansas Bureau of Investigation, working for Vem Miller, Attorney General of the State of Kansas; that plaintiff, Robert L. Kern, required identification, and assurance of their identity and was given this by Gary Porter, also an agent working for Vem Miller.
“2. That said so-called agents, acting on behalf of Vem Miller, and all four defendants acting outside the scope of the duties of the Attorney General of the State of Kansas, made arrangements to take over and operate The Non-Establishment and agreed as consideration therefor to provide the usual profit on the business and not damage the .value of the business.
“3. That to maintain the appearance of a legal transaction, the defendants procured a so-called ‘option to buy the business which later plaintiffs were required to pay for; that the two persons who were acting as employees and agents of Vem Miller took over and operated the tavern in an inefficient manner as a drug rendezvous, giving away part of the assets of the business .and taking money from the business for personal use and selling and buying drugs and committing illegal acts in the operation of said business, thereby damaging the trade and reputation of the premises; that the defendants operated the business until November 16, 1973, when they had the authorities close the business at their request; that plaintiffs are preparing to reopen the business, but the reputation and good will of the business, the actual furniture, fixtures and supplies and the loss of income over the period it was operated by the defendants has cost or damaged the plaintiffs in the amount of $8,890.00, which plaintiffs hereby demand.”
The answer reads:
“1. Except as is hereinafter admitted, explained or specified in part, defendants specifically deny each and every allegation set forth in the petition filed by plaintiffs.
“2. That defendants are without knowledge of information sufficient to form a belief as to the truth of plaintiffs’ averment that prior to October 23, 1973, plaintiffs owned and operated The Non-Establishment, a tavern in Parsons, Kansas as set out in paragraph numbered one of plaintiffs’ petition, defendants specifically admit the averment contained in paragraph one that plantiffs had been ‘having trouble and had sought help from law enforcement officials.’ Defendants specifically deny the remainder of paragraph numbered one wherein plaintiffs allege ‘that they thereafter were contacted by persons calling themselves Marcus Preston and Jack Collier who later identified themselves as agents for the Kansas Bureau of Investigation, working for Vem Miller, Attorney General of the State of Kansas; that plaintiff, Robert Li. Kern, required identification and assurance of their identity and was given this by Gary Porter, also an agent working for Vem Miller.’ Defendants explain that defendant Jack Collier did in fact contact plaintiff Robert L. Kem and identified himself as a Special Investigator for the Attorney General of the State of Kansas. Defendants also explain that defendant Gary Porter was contacted by plaintiff Robert Kern and was given assurance that defendant Jack Collier was in fact a Special Investigator employed by the office of the Attorney General.
“3. That defendants specifically deny each and every allegation contained in paragraph numbered two of plaintiffs’ petition and explain as follows: That defendant, Vem Miller, is the duly elected Attorney General of the State of Kansas and has held said office since January 11, 1971, and in the performance of his official duty as the elected chief law enforcement officer of the State of Kansas has employed Special Agent defendant Gary Porter and Special Investigators Marcus Preston and Jack Collier, to aid and assist in the control of illegal drug use within the State of Kansas; that, defendant, Special Investigator Jack Collier, did make arrangements with plaintiff Robert Kem whereby defendant Investigator Collier and defendent Investigator Preston would work as undercover investigators to investigate the illegal drug activity at the tavern known as ‘The Non-Establishment’ that was at that time and at all times thereafter operated by plaintiffs. Plaintiffs maintained custody of all aspects of the business operation.
“4. That defendants specifically deny each and every allegation contained in paragraph numbered three of plaintiffs’ petition.
“5. Defendant, Vem Miller, is the duly elected Attorney General of the State of Kansas having held that office since January 11, 1971, defendant Gary Porter is and has been a duly appointed Special Agent of the office of the Attorney General since January 15, 1971; that defendant Marcus Preston is and has been a duly appointed Special Investigator of the office of the Attorney General since December 1, 1972; that defendant Jack Collier is and has been a duly appointed Special Investigator of the office of the Attorney General since September 25, 1973. That pursuant to K. S. A. 1972 Supp. 46-901 et seq., state officials and their agents are ‘immune from liability and suit on an implied contract or for negligence or any other tort. . . .’
“6. Defendants Marcus Preston and Jack Collier at all times while working at ‘The Non-Establishment’ conducted themselves in an efficient and prudent manner and in fact increased the business and profits of the business by their labor; and that if the reputation of the business was damaged, the cause was plaintiffs’ inefficient business practices. Defendents further assert that at all times pertaining to this suit plaintiff was fully advised of the true nature of defendants’ objective as undercover agents.”
Prior to the trial of the issues, defendants filed a motion to dismiss plaintiffs’ cause of action for failure to state a claim for which relief could be granted, and requested the motion be treated as one for summary judgment pursuant to K. S. A. 60-256. In support of their motion defendants argued they were officers and agents of the State of Kansas during the period of the alleged injury to plaintiffs and that K. S. A. 46-901, et seq., provides immunity to defendants. The trial court sustained defendants’ motion based upon a finding of immunity.
Summary judgment is authorized in K. S. A. 60-256. We have repeatedly stated that in accord with subsection (c) thereof, before a motion for summary judgment may be granted the record before the court must show conclusively that there remains no genuine issue as to material fact, and that a moving party is entitled to judgment as a matter of law. A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues exist. In making its determination, the court must give to the party against whom summary judgment is sought the benefit of all the inferences that might reasonably be drawn from the facts under consideration. (Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770; Albright v. McElroy, 207 Kan. 233, 484 P. 2d 1010.)
If we should determine a material issue existed, based on the pleadings, we must remand the case for a trial where further evidence may be presented and the facts properly determined.
The trial court granted summary judgment in reliance upon K. S. A. 46-901. That section is entitled “Governmental immunity of state; implied contract, negligence or other tort; notice in state contracts,” and provides as follows:
“(a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
“(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
“(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.
“(c) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit.”
Defendants claim immunity under subsection (b). They argue the attorney general, as a constitutional officer and part of the executive branch of the Kansas government, is a “member” of the class “state of Kansas” set forth in 46-901 (a) (1), and that his agents are similarly members of that class. The trial court agreed.
In our judgment, the immunity granted by 46-901 (a) is limited to claims against the State of Kansas and its boards, commissions, departments, agencies, bureaus and institutions; and all committees, assemblies and groups authorized to act on behalf of the state. Subsection (b) of the statute refers to “members of the classes described.” We interpret these words to mean the various boards, commissions, etc., which make up the classes described in subsection (a), and not the individuals composing the several classes. This interpretation is consistent with the title of the act which refers to “Claims Against the State” (Article 9). Subsection (b) was included in 46-901 to extend the application of the immunity to all classes described in subsection (a), whether or not the individual board, commission, etc., was in existence on the effective date of the act.
Since we have determined defendants have no individual statutory immunity we turn to our case Jaw on this subject. As a general rule it has been stated that public officers, when performing the duties imposed upon them by statute and exercising in good faith the judgment and discretion necessary therefor, are not liable personally in damages for injuries to private individuals resulting as a consequence of their official acts. (Gresty v. Darby, 146 Kan. 63, 68 P. 2d 649; Tillotson v. Fair, 160 Kan. 81, 159 P. 2d 471.) As plaintiffs point out, however, this general rule of immunity is limited to acts performed within their jurisdiction. If public officers act outside the scope of their authority they may be held liable for damages resulting from their acts. (Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489; Tillotson v. Fair, supra.)
Plaintiffs’ petition specifically alleges all four defendants were “acting outside the scope of the duties” of the attorney general when they entered into the contract to take over the plaintiffs’ business. The determination of the issue of scope of authority should follow the fact-finding procedures in the trial court. Any effort to determine the issue as a matter of law at this stage in the proceedings would require improper speculation. We believe the orderly process of trial and the ultimate determination of facts should precede a decision on this issue.
Reversed and remanded.
Fatzer, C. J., and Prager, J., concur in the result, but dissent from Syllabus ¶ 2 and the corresponding portions of the opinion.
Fromme, J., not participating.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal by the state from an order of the district court sustaining defendant Henry John Dolak’s motion to dismiss an information charging him with aggravated kidnapping. (K. S. A. 21-3421.) The complexity attending this appeal requires a detailed recital of the facts.
The victim and complaining witness has given testimony that in the 'early morning hours of October 7, 1970, she ran out of gasoline and Dolack pulled up beside her in his car and forced her at gun point to get into his car; that they drove from Missouri to Kansas City, Kansas, and still at gun point, Dolack forced her to have sexual intercourse with him in his car; that they then drove to a motel in Johnson County, Kansas, and on the way to Dolack’s room she started screaming and fell to the pavement, and that the defendant, after encountering a police officer in a patrol car who was responding to her screams, went to his car and drove off. The victim testified she had a gun, but that it was in her purse which the defendant threw into the back seat of his car.
Five days later, and on October 12, 1970, a complaint was filed in the Magistrate court of Johnson County, Kansas, in, Case No. 22233,’ charging the defendant with aggravated kidnapping (K. S. A. 21-3421), and rape (K. S. A. 21-3502). A warrant was issued for the defendant’s arrest.
On the same day the complaint was filed and the arrest warrant issued in Johnson County, the defendant was arrested in Saskatchewan, Canada. He was sentenced to a term of two years in a Canadian penal institution on unrelated Canadian charges.
On October 21, 1970, an indictment was returned by a federal grand jury for the district of Kansas, charging that on or about October 7, 1970, the defendant unlawfully transported in interstate commerce from Kansas City, Missouri, to Kansas City, Kansas, a named female person who theretofore had been unlawfully kidnapped and held for sexual gratification, and that the female person was not liberated unharmed, but was raped, lacerated and bruised by the defendant in violation of 18 U. S. C. § 1201.
On May 26, 1971, some seven months after the federal indictment was returned, Dolack was “unofficially” informed by Canadian officials of the indictment. Upon learning of the indictment, Dolack wrote the chief judge of the United States District Court for the District of Kansas of his incarceration, his expected release date, and that he was a United States citizen “without fund, real or otherwise to employ counsel, and, there are no interested parties to absorb such costs.” He requested the court to appoint counsel to represent him, to grant appointed counsel travel expenses to confer with him at the Canadian prison, and to grant appointed counsel the authority to employ a private investigator to assist him in his defense. Dolack also requested a copy of the federal charges be sent him. His letter was filed with the federal court on June 3, 1971.
The court denied Dolack’s request with the notation that “Motion denied until such time as deft present in this District,” and “Copy of indictment mailed to Deft on 6/4/71.”
On June 6, 1972, Dolack was released by Canadian authorities to the Federal Bureau of Investigation. On June 7, 1972, he was arraigned before a United States Magistrate in Port of Raymond, Montana. On the following day, June 8, 1972, he was delivered to the county jail in Yellowstone County, Montana. On or about June 24, 1972, he was transferred to the Wyandotte County jail in Kansas City, Kansas, where he was held for trial in default of a $20,000 bond.
In June, 1972, during the pendency of the federal prosecution against Dolack, the Johnson County attorney decided to prosecute on the state charges alleged in Case No. 22233, and directed the sheriff to lodge a detainer with the United States marshal. Dolack learned of the state’s intention when he was conferring with his federally appointed counsel in the Wyandotte County jail in August 1972.
On October 16, 1972, Dolack was brought to trial in the United States District Court for the District of Kansas, on the charge of kidnapping. Two days later, on October 18, 1972, he was convicted by a jury of the federal charge. Dolack’s motion for a new trial was denied, and he was sentenced for a term of 25 years in the federal penitentiary at Leavenworth, Kansas.
On November 8, 1972, Dolack perfected an appeal to the United States Court of Appeals for the Tenth Circuit. As hereafter indicaJted, the appeal was heard and the court’s opinion was filed on September 14, 1973, reversing the conviction and directing dismissal of the indictment against Dolack.
In the meantime, and on or about November 16, 1972, the sheriff of Johnson County lodged a detainer against Dolack with the warden of the federal prison. Dolack was informed of the detainer, and on January 23, 1973, he wrote the Johnson County attorney that “[i]f your office intends to prosecute the cause I am hereby giving notice I wish to have a speedy trial pursuant to the laws and Constitutions of the United States and the state of Kansas as well as the rulings of the Supreme Cfourt of the United States”; that “[s] hould you feel it necessary I shall file a formal motion for speedy trial with the court as well as motions for bar to prosecution for want of prosecution; and on grounds of double jeopardy,” and that “I am available for trial. I wish a speedy trial or dismissal of the detainer and prosecution.”
On February 21, 1973, the district attorney of Johnson County (office of county attorney abolished, K. S. A. 22a-101) wrote Dolack the state intended to prosecute and “[i]f you want to request final disposition of this detainer you can contact the Warden’s Office and request the proper forms that are available to you pursuant to the Uniform Agreement on Detainers. [K. S. A. 22-4401 et seq.] As soon as we are in receipt of your properly executed requests . . . we will take the necessary steps to bring you before the Johnson County Magistrate Court.”
Failing to hear from Dolack, the district attorney wrote the Warden of the federal penitentiary on March 27, 1973, advising that “. . . To date we have not received his properly executed request,” and asking the warden to inform “this office whether or not the inmate intends to proceed with his request.”
On April 4, 1973, the Warden wrote the district attorney that Dolack “informed us that he was not going to file formally under the Agreement on Detainers,” and “[i]t is evident that the inmate will not be the moving party in any action to return him to your jurisdiction.” In a letter to' the judge of the Magistrate court, dated April 21, 1973, Dolack requested counsel be appointed to represent him as to the state charges.
Being aware that Dolack refused to invoke the processes of the Agreement on Detainers for his voluntary return to the Kansas jurisdiction, the district attorney initiated proceedings under Article IV of the Agreement on Detainers (K. S. A. 22-4401) to require his return to the Kansas courts. It is unnecessary to detail the various steps of those proceedings, except to say that necessary documents were prepared and executed by the proper officials. In accordance with Article V of the Agreement on Detainers, temporary custody was allowed, and on June 11, 1973, Dolack was received at the Johnson County jail at Olathe. On the same day, he was taken before the judge of the Magistrate Court where counsel was appointed to represent him. On June 18, 1973, counsel filed a motion to dismiss the complaint and a request to' produce materials in the file of the district attorney. The motion requested dismissal of Court I in accordance with K. S. A. 21-3108, and alleged jeopardy had attached for the offense of aggravated kidnapping by virtue of the federal conviction, and further alleged the venue of the charge of rape was in Wyandotte County.
On June 29, 1973, the defendant’s motion was sustained by the Magistrate Court of Johnson County, and its journal entry reads, in part:
“The Court . . . finds and determines that Kansas Statutes Annotated 21-3108 applies in that the indictment and conviction of the defendant in the U. S. District Court for the District of Kansas' was proceeded under U. S. C. 1201 which lists Kidnapping and the elements required to prove rape under the State statute.
“It is therefore by the court ordered and adjudged that the motion to dismiss should be and is hereby sustained and the defendant is ordered remanded to the custody of the Federal' Marshal to be returned to the U. S. Penitentiary located in Leavenworth, Kansas.”
On July 3, 1973, following the dismissal of Case No. 22233 by the Magistrate Court, and pursuant to Article V (e) of the Agreement on Detainers, Dolack was returned to the custody of the Warden of the federal penitentiary.
On September 14, 1973, Dolack’s conviction was reversed by the Court of Appeals, Tenth Circuit, and remanded with directions to the Federal District Court to dismiss the case and the indictment against him on which he was tried. (United States v. Dolack, 484 F 2d 528 [1973].) In the opinion the court said:
“This case, of course, does not directly concern the issue of whether or not the defendant was denied his right to a speedy trial or whether the principles enunciated by the Supreme Court in Dickey v. Florida, 398 U. S. 30, 90 S. Ct. 1564, 26 L. Ed. 2d 26, (1970) and Smith v. Hooey, 393 U. S. 374, 89 S. Ct. 575, 21 L. Ed. 2d (1967), are applicable where the defendant is incarcerated in a foreign nation. What is before us is whether the defendant’s assertion, after indictment, of his right to counsel, notwithstanding the fact that he was then in a Canadian prison, and the denial of counsel at that time violated his Sixth Amendment rights. We hold that it did. The position taken by the Supreme Court in the Kirby, Dickey, Hooey, and Wingo cases dictates this result. Thus under these decisions, the failure to appoint counsel for defendant soon after the need became apparent, coupled with the fact that no ex parte hearing was held on the matter of investigative assistance (18 U. S. C. § 3006A (e) (1), while Dolack was in jail awaiting trial requires that this case be reversed.
“At this time, a new trial would serve no useful purpose, and we are likewise compelled by the Supreme Court’s decision in Strunk v. United States, 412 U. S. 434, 93 S. Ct. 2260, 37 L. Ed. 2d 56, 1973, to order the ‘severe,’ but ‘only possible,’ remedy of dismissal in this case. Accordingly, this case is reversed and remanded to the district court with instructions to' dismiss the case and the indictment against Henry John Dolack on which he was here tried.
“Reversed.” (pp. 530, 531.)
On October 12, 1973, the opinion and mandate of the United States Court of Appeals were received and filed by the federal district court, and on October 15, 1973, an order was filed dismissing the case and indictment against Dolack. Certified copies of the order were mailed the same day to counsel and to the interested parties.
On October 16, 1973, a second complaint was filed in the Magistrate court of Johnson County, Case No. 26097, charging Dolack with aggravated kidnapping of the named female person on October 7, 1970, in violation of K. S. A. 21-3421. On the same day, a warrant was issued for his arrest. On October 17, 1973, Dolack was arrested upon his release from the federal penitentiary and he was brought before the Magistrate court of Johnson County where counsel was appointed that same day to represent him. Counsel filed a motion to dismiss the complaint against Dolack, which was taken under advisement. On October 18, 1973, the Magistrate court ruled Dolack should be held for a preliminary hearing, and overruled the motion to dismiss.
The scene now shifts to the district court of Johnson, County. Dolack sought release under a Writ of Habeas Corpus. The case was heard by the Honorable Herbert W. Walton on October 23, 1973, and decided October 25, 1973. The issues to be determined were primarily law and not of fact. Judge Walton made findings of fact from the record, delineated the issues to be determined, and stated the legal principles controlling his decision, all in accordance with Rule 116 of the supreme court and K. S. A. 60-252.
The Writ of Habeas Corpus was denied and Dolack was remanded to the custody of the sheriff. In its decision, the district court discussed and decided the points raised in the pleadings in the Habeas Corpus action. These are quoted from the record as follows:
“1. Is the prosecution barred by K. S. A. 21-3108 and K. S. A. 22-4301, et sequitor? The former statute being the statute of time limitations and the latter being the Uniform Mandatory Disposition of Detainers Act.
“2. Is the prosecution barred by the provisions of K. S. A. 21-3108 or the statutes relating to the effect of former prosecution? Stated another way, are the prosecution proceedings barred for the reasons set forth in the opinion of the United States Court of Appeals, Tenth Circuit?”
There was no appeal from the district courts rulings, and we summarize its memorandum opinion on the points stated above. Dolack first alleged the complaint and warrant recited the alleged act occurred on October 7, 1970, a period in excess of two years, and that the prosecution was barred by the statute of time limitation. The record disclosed that Dolack was absent from the state of Kansas from October 12, 1970, until June 6, 1972. K. S. A. 21-3106 (3) (a) provides that the time within which a prosecution must be commenced does not include any period in which the accused is absent from the state. Since this prosecution was commenced October 16, 1973, the court held the prosecution was timely commenced and was not barred under the circumstances, noting, however, that good pleading required the state to allege the reasons in the complaint why the bar of the statute was not applicable.
Dolack next asserted the state had to bring him to trial within 180 days after receipt of his request for trial pursuant to the Uniform Mandatory Disposition of Detainers Act (K. S. A. 22-4301 et seq.) and that such period had long since expired which bars further prosecution of the case.
The state contended Dolack was in fact brought to trial within 180 days when he was returned to Kansas jurisdiction on June 11, 1973, and brought before the Magistrate court. Thereafter, and on June 29, 1973, the Magistrate court sustained Dolack’s motion to dismiss the complaint filed in Case No. 22233 on the basis of double jeopardy by reason of the conviction in the federal district court, which conviction was ultimately reversed by the United States Court of Appeals with direction to the federal district court to dismiss the case and the indictment against Dolack upon which he was tried. The state further argued that while Dolack was unable to stand trial by reason of the double jeopardy ruling of the Magistrate court on June 29, 1973, after reversal of his conviction by the United States Court of Appeals on September 14, 1973, and dismissal of the indictment by the federal district court on October 15, 1973, there was no valid federal conviction upon which he could base a claim of jeopardy, hence, Dolack could be required to stand trial on October 16,1973.
The district court found the argument of the state persuasive, and concluded Dolack was brought to trial within the contemplation of the Uniform Act within 180 days when the proceedings against him were terminated by the Magistrate court on June 29, 1973. The court further concluded Dolack’s contention would emasculate K. S. A. 21-3108 (4) (c), which reads:
“A prosecution is not barred under this section: ... If subsequent proceedings resulted in the invalidation, setting aside, reversal or vacating of the conviction, unless the defendant was adjudged not guilty.”
Dolack next alleged that the effect of the former prosecution in the federal court for the same crime as charged in the complaint in Case No. 26097 barred further prosecution by reason of K. S. A. 21-3108 (1) (b) and (3) (a) ¡and (b).
The district court concluded that the decision of the United States Court of Appeals was not tantamount to a judgment of acquittal, but only a bar to further proceedings in the federal court. As indicated, the Writ was denied and Dolack remanded to the custody of the sheriff.
Following the rendition of judgment denying the Writ, colloquy was had between the defendant, his counsel, and the court wherein the defendant sought an allowance for investigative services in the amount of $500, and further requested access to the Johnson County law library to enable him to provide research assistance to his counsel. The court concluded it had no authority in a Habeas Corpus proceeding to entertain such a request and indicated such a request should be made of the judge of the Magistrate court.
Thereafter, and on October 26, 1973, the Magistrate court authorized investigative services in an amount not to exceed $500 and Dolaek was granted access to the Johnson County law library for two hours each day, except Saturdays, Sundays, and holidays.
On November 5, 1973, the state filed an amended complaint without objection from the defendant, alleging that between October 21, 1970, and October 15, 1973, a prosecution was pending against Dolaek in the United States District Court for the District of Kansas for the interstate transportation of a female for the purpose of rape under 18 U. S. C. § 1201, and further that between October 12, 1970, and June 1972, Dolaek was absent from the state of Kansas. Following a two-day preliminary hearing, which commenced November 16, 1973, Dolaek was bound over to the district court for trial for the offense of aggravated kidnapping (K. S. A. 21-3421) as alleged in the amended complaint in Case No. 26097.
On November 28, 1973, an information was filed in the district court charging Dolaek with aggravated kidnapping. Following the defendant’s formal arraignment on November 28, 1973, he entered a plea or not guilty. The district court continued the provisions of the order of the Magistrate court granting Dolaek access to the Johnson County law library, and authorized further investigative services in an amount not to exceed $500 — this was in addition to the amount previously ordered by the Magistrate court.
On December 11, 1973, Dolaek filed a motion to dismiss the information, alleging the charges against him should be dismissed pursuant to Article 44, Chapter 22 of Kansas Statutes Annotated; that he had been denied his rights to counsel, speedy trial, and due process under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution; that the matter had been previously adjudicated in the Magistrate court of Johnson County and in the United States Court of Appeals for the Tenth Circuit, and that pursuant to K. S. A. 21-3108 the case against him should be dismissed.
On December 18, 1973, Dolack’s motion was heard in division No. 5 of Johnson district court. The motion was sustained on January 2,1974, and the court’s decision reads:
“The Court, after having reviewed the pleadings and briefs of the parties, after having heard evidence and argument of counsel, and after being fully advised in the premises, finds that Defendant’s motion to dismiss should and is hereby sustained with the argument set forth in Defendant’s brief and reply brief adopted as the conclusions of the Court.”
Immediately after the district court announced its decision, the state'filed a notice of appeal to this court. On January 3, 1974, the state moved the district court to make findings of fact and state the legal principles controlling its decision in accordance with Rule No. 116 of this court, and K. S. A. 60-252. That motion was denied.
The state’s appeal is based upon K. S. A. 22-3602 (a). Its statement of points is far from being concise, but it does present the controlling issues: (1) Whether Dolack’s prosecution is barred by the jeopardy statute, K. S. A. 21-3108; (2) whether he has been denied a speedy trial pursuant to Article III of the Agreement on Detainers, K. S. A. 22-4401; (3) whether he was denied his right to counsel, and (4) whether he was denied his right to due process of law under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution.
Dolack first contends that the effect of the former prosecution in the federal district court for the same crime as alleged in the information, bars further prosecution of this case. The language of Section 10 of the Bill of Rights of the Kansas Constitution is very similar to language contained in the Fifth Amendment to the Constitution of the United States providing in effect that no person shall be twice put in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to the accused than does Section 10 of the Bill of Rights of the Kansas Constitution. Those constitutional provisions provide protection against a second prosecution for the same offense after acquittal; protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense. (North Carolina v. Pearce, 395 U. S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.)
In Kansas, the effect of former prosecution is clearly delineated by K. S. A. 21-3108. It would unduly extend this opinion to quote the provisions of the statute in full, and in view of our decision on this point, we deem it unnecessary to quote subsections (1) (b) and (3) (a) and (b) relied upon by Dolack in the court below and in this court on appeal as barring the prosecution.
Dolack misconceives the effect of the reversal of his conviction by a jury. While the decision of reversal and remand was a final order as denominated in 21-3108 (1) (b) and (3) (b), its effect was to nullify the federal prosecution in its entirety by reason of the government’s denial of Dolack’s constitutional rights prescribed by the Sixth Amendment. The federal district court, having jurisdiction to try the issue of Dolack’s guilt or innocence in the first instance, found him guilty, which adjudication was held to be void by the federal appellate court for the reason the defendant’s constitutional right to counsel was violated.
The “severe” but “only possible” remedy of dismissal imposed by the federal appellate court was clearly not tantamount to a verdict of acquittal at the hands of a jury — on the contrary, it was the result of a denial of a constitutional right, i. e., the failure to timely appoint counsel to represent Dolack after his indictment. Whether that decision is a bar to further proceedings in the federal courts is not for this court to say, but it is clear that under the circumstances which attend, such determination in nowise prevents the state of Kansas from prosecuting the instant case. Moreover, it was not material whether Dolack’s conviction was set aside by the federal appellate court as a result of a collateral attack, or a direct appeal from his conviction. In either event, he had waived his claim to> second jeopardy. (K. S. A. 21-3108 [4] [c].) See, also, Comments of the Judicial Council in the Annotation.
It follows that when the federal indictment against Dolack was dismissed by order of the United States Court of Appeals, Dolack stood subject to prosecution by Kansas for a violation of its criminal law as though the proceedings in the federal courts had never occurred. In law, those proceedings were void, and they afforded no valid basis for any claim of prior jeopardy. (K. S. A. 21-3108 [4] [c].) Claims by Dolack to the contrary are without merit and cannot be sustained. Moreover, the statutory policy (K. S. A. 21-3108) is sound in that while it is fair to the defendant that he should be tried but once for his misconduct, by whatever jurisdiction, it is likewise fair to the state that the errors of another sovereignty should not deprive Kansas of its right to try one alleged to have violated its criminal laws.
Professor Raymond L. Spring (Now Dean of the Washburn University School of Law), in an article reviewing the provisions of K. S. A. 21-3108, succinctly stated the effect of subsection (4) (c) as follows:
“When the former conviction, by direct or collateral attack, is set aside, reversed, or vacated, the defendant cannot claim former jeopardy as to the crime of which he was convicted. Since he cannot subsequently be tried for a higher degree of the crime of which he has been convicted, it is difficult to conceive of a case in which such action would be taken except at the instance of the defendant. Where the action is taken at the defendant’s instance, he clearly waives his right to claim former jeopardy, even though the conviction may be reversed or set aside for reasons not urged by defendant. Under subsection 21-3108 (4) (c), however, it would make no difference whether the defendant urged the setting aside of the conviction, because even if the conviction were set aside on the court’s own motion, former jeopardy would not bar retrial. The defendant can only benefit by such action.” (Spring, The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108, 9 Washburn L. J. 179, 191 [1970].)
We approve of what was stated by Dean Spring. Likewise we agree that the decision of the Johnson district court was correct on this point when it concluded in the Habeas Corpus proceeding that the state’s prosecution was not barred by the double jeopardy statute. (K. S. A. 21-3108.) We therefore conclude the state’s prosecution was not barred in the instant case.
We next turn to the claim that the state of Kansas denied Dolack a speedy trial as prescribed by Article III (a) of the Agreement on Detainers (K. S. A. 22-4401), when, as he contends, it failed to bring him to trial within the prescribed 180 days. We have previously set out in detail the chronology of events pertaining to' this argument, and it would serve no useful purpose to repeat them. It is a well-established rule the Legislature may, within reason, define what is meant by the constitutional guarantee to a speedy trial, and has consistently done so. (Townsend v. State, 215 Kan. 485, 524 P. 2d 758, and cases cited.)
The district court concluded die state had not failed to bring Dolack to trial within 180 days when he was returned to Johnson County on June 11, 1973, and when his motion to dismiss the complaint in Case No. 22233 was sustained by the Magistrate court on June 29, 1973. Dolack was then returned to the federal prison pursuant to Article V (e) of the Agreement on Detainers.
In reaching its conclusion, the district court referred to the Uniform Mandatory Disposition of Detainers Act (K. S. A. 22-4301 et seq.) rather than Article III (a) of the Agreement on Detainers Act (K. S. A. 22-4401 et seq). The fact the two Acts were used interchangeably is immaterial since the rights of inmates to a speedy trial are governed solely by the detainers statutes — the Uniform Mandatory Disposition of Detainers Act (22-4301 et seq) relates to prisoners confined in penal institutions in this state, while the Agreement on Detainers (22-4401 et seq.) is applicable to inmates confined in penal institutions in another state (this includes the federal penitentiary at Leavenworth).
To obtain a speedy trial guaranteed by Section 10 of our Bill of Rights, as legislatively defined by either of the two Acts just referred to, it is incumbent upon an accused incarcerated in a penal institution to comply with all the provisions of the Act applicable to his incarceration, including the preparation of his written request for disposition of detainer to be addressed to' the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it. (State v. Brooks, 206 Kan. 418, 479 P. 2d 893; Townsend v. State, supra; State v. Otero, 210 Kan. 530, 502 P. 2d 763.)
As previously indicated, Dolack declined to execute the necessary documentation for final disposition of the detainer after being so advised by the state and the warden of the federal penitentiary. For over three months after requesting a speedy trial or dismissal of the detainer early in 1973, Dolack took no action whatsoever, save delaying disposition. When his intentions became apparent, the state initiated proceedings under Article IV of the Agreement on Detainers to return him to Kansas jurisdiction, and we have no hesitancy in finding 'the provision of the Agreement on Detainers as to a speedy trial were not violated. When the total facts are considered, the state made a “diligent good-faith effort” (State v. Hooey, 393 U. S. 374, 383, 21 L. Ed. 2d 607, 89 S. Ct. 575) to proceed on the pending charges against Dolack.
Was Dolack denied the assistance of counsel? K. S. A. 22-4503 implements the constitutional guarantee of counsel in a criminal case. We deem it unnecessary to quote the statute in full, but, generally speaking, it provides that a defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to the assistance of counsel in every stage of the proceedings against him. Further, if a defendant appears before any court or magistrate without counsel to assist him and conduct his defense, it is the duty of the court or magistrate to inform the defendant he is entitled to counsel and that counsel will be appointed to represent him if he is not financially able to employ an attorney.
The alleged crime occurred on October 7, 1970. Thereafter, and until June 6, 1972, Dolack was incarcerated in a Canadian prison. The Canadian Extradition Act, R. S. C. 322, S. 24 provides:
“A fugitive who has been accused of an offense within the Canadian jurisdiction, not being the offense for which his surrender is asked, or who is undergoing sentence under conviction in Canada, shall not be surrendered until after he has been discharged, whether by acquittal or by expiration of his sentence, or otherwise.”
Upon being released by Canadian authorities, Dolack was in custody of federal officials awaiting prosecution. Shortly after he was sentenced to the federal penitentiary in October 1972, the state lodged a detainer with the warden. Between the date when he learned of the Kansas charges in August 1972, and his letter in January 1973, demanding a speedy trial, Dolack did nothing to bring about a disposition of those charges. As between state and federal courts, the court first obtaining jurisdiction over the accused retains it until exhausted. This right of priority may be waived, as under Agreement on Detainers, and jurisdiction of either the federal or the state court to try an offender is not affected by the fact that he was in custody of the other court before being turned over for prosecution. (22 C. J. S., Criminal Law, § 145, p. 384.) While Do-lack requested a speedy trial, he declined to proceed under the agreement on Detainers, although then represented by Kansas counsel appointed by the federal court.
On April 4, 1973, the Johnson County officials were notified of Dolack’s refusal to invoke the Agreement on Detainers. Concurrent with all of this, and on April 2, 1973, Dolack wrote the Magistrate court of Johnson County and requested that counsel be appointed to assist in his defense. He was then confined in the federal penitentiary. His letter attempted to re-create the situation with the Magistrate which he had created in his letter to the chief judge of the United States District Court for the District of Kansas, and which had been so useful to him. In any event, on June 11, 1973, the same day that temporary custody was obtained of Dolack by state authorities, solely through their efforts, counsel was appointed by the Magistrate court to represent him. Counsel’s motion to dismiss the charges against Dolack — then pending in the Magistrate court — was sustained, and the charges against him were dismissed on June 29, 1973. That ended the processes under the Agreement on Detainers and the state’s first case against Dolack passed in to oblivion.
As indicated, after dismissal of the federal indictment, Dolack was arrested on October 16, 1973, on the charges involved in this appeal. He was brought before the Magistrate court of Johnson County on the same day and counsel was appointed to represent him. Thus, in every stage of the proceedings against him in the state courts, Dolack was provided with the assistance of counsel and investigative assistance. (K. S.A. 22-4508.) In addition, he was given access to the Johnson County law library two hours a day except Saturdays, Sundays and holidays so that he might assist his court appointed counsel. Clearly, Dolack was timely provided with the assistance of counsel in every stage of the proceedings against him. There was no violation of his right to counsel under K. S. A. 22-4503.
Finally, the state contends Dolack was not denied his right to due process of law under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Section 10 of the Bill of Rights of the' Constitution of Kansas.
The record on appeal has been fully reviewed, and we find Do-lack has not been denied his right to due process of law. The chronology of facts previously set out clearly indicate a large part of the delay incident to this case has been occasioned by Dolack’s actions, not by the state. (Roy v. State, 213 Kan. 30, 514 P. 2d 832.) See, also, State v. Yanich, 110 Ariz. 172, 516 P. 2d 308.
The district court, somewhat haltingly, identified the passage of time as the detriment to the defense. While some three years and six weeks expired between October 12, 1970, the day the initial complaint was filed, and Dolack’s arraignment before the district court on November 28, 1973, approximately three years of that time was involved in Canadian and United States government custody of Dolack. As indicated, Dolack tested the water with his letter of January 23, 1973, but declined to come under the Agreement on Detainers. In addition, whatever Dolack might wish to discover about witnesses whose names were endorsed on the information, the fact remains he has been confronted with witnesses at the federal trial, and has confronted the witnesses at the preliminary hearing in the instant matter. Nor, as previously indicated, can it be said that the failure of Kansas authorities to attempt to extradite Dolack from a Canadian prison was a denial of due process. We are of the opinion that any claim Dolack purports to make with respect to a denial of due process of law comes as an unsubstantiated whisper. Moreover, the record suggests the pattern of events is not indicative of any intent on Dolack’s part to have himself brought to trial. In addition, his reliance on State v. Otero, supra, is not well taken since the opinion expressly states the Agreement on Detainers was not effective during any part of the delay there involved.
Refore concluding, we note again the district court’s failure to make findings of fact and conclusions of law pursuant to Rule 116 of this court and K. S. A. 60-252, when it sustained Dolack’s motion to dismiss the information on January 2, 1974. In so doing, we are asked to give appropriate weight to a bare conclusion illuminated by the standard that the district court found all matters to be “intellectually stimulating.” Stimulating or not, this case represents the efforts of a sovereignty to bring an accused to trial for a crime alleged to have occurred, and should be handled with appropriate gravity and appropriate findings. The presiding judge of tenth judicial district is directed to reassign this case to another judge of that district for trial upon the merits in accordance with the views expressed in this opinion. Further comment on this matter is not necessary.
It is abundantly clear that such findings and conclusions would have been most helpful to this court in reviewing this appeal. The complexity of the facts attending this litigation warrants, we believe, an admonition for the court’s failure to clearly delineate its findings and conclusions. This is not a case upon which the guilt or innocence of an accused was tried to the district court and the case of State v. Scott, 201 Kan. 134, 439 P. 2d 78, is not in point.
The judgment of the district court sustaining Dolack’s motion to dismiss the information is reversed, and the cause is remanded to the district court with directions to restore this case to the trial docket and proceed forthwith with a trial upon the merits. It is so ordered.
Fromme, J., not participating.
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The opinion of the court was delivered by
Fromme, J.:
The plaintiffs filed this action to require the City of Derby to reassess special tax assessments levied in 1970 to pay for street and sewer improvements in Holbrook Addition to the City of Derby. In the alternative plaintiffs prayed for a money judgment against Vanlahi, Inc. and Harter & Sons, Inc., the previous owners and developers of the addition. The plaintiffs allege in their petition that the cost of these street and sewer improvements is illegally spread against their properties. Their claim of illegality is based upon allegations that other property owned by Vanlahi, Inc. was benefited by the improvements but was not included in the improvement district subject to the cost.
The plaintiffs do not contend that the city failed to comply with the procedural requirements set forth in the general improvement and assessment law (K. S. A. 1973 Supp. 12-6a01, et seq.). Their quarrel with the special tax levy is based solely upon the action of the city governing body in determining the area benefited by the improvements and in designating the area as the improvement district. This determination was made by the city in 1970.
The trial court dismissed the action against the City of Derby. The dismissal was based upon K. S. A. 12-6all which reads:
“No suit to set aside the said assessments or otherwise question the validity of the proceedings shall be brought after the expiration of thirty (30) days from the publication of the ordinance fixing said assessments.”
The 30-day period for bringing such an action had long since expired when the present action was filed in 1973. No appeal has been taken from this order of dismissal and we are not concerned with any claim against the city.
However, the trial court refused to apply the statute in favor of the other defendants, Vanlahi, Inc. and Harter & Sons, Inc., and they have preserved the question by cross-appealing from that part of the order.
After interrogatories were submitted to and answered by the plaintiffs, the defendants filed a motion for summary judgment. This motion was sustained by the trial court. The basis for entering that judgment is not set forth in the court’s order. Looking to the defendants’ motion we find three grounds stated: “I. That more than two (2) years have expired since the commencement of the alleged wrongful acts on the part of the defendants. The Statute of Limitations have [sic] expired. II. That the defendants were the owners of the property at the time the alleged wrongful actions occurred and the plaintiffs bought the property from the defendants subject to these existing assessments. III. That this is not a proper class action.”
The exact basis upon which the summary judgment rests is further obscured by the record and briefs filed in this appeal. Plaintiffs-appellants in their statement of points list six separate reasons why the trial court erred in sustaining defendants’ motion for summary judgment. However, their brief speaks to only four and these are under differently worded headings.
The defendants-appellees, not being content to answer the four points presented in appellants’ brief, separate their argument under six headings. The headings adopted by them do not follow either the appellants’ statement of points or the points argued by the appellants. Accordingly, the briefs of the opposing parties are like strangers who nod politely as they pass on separate ways.
No question has been raised as to the sufficiency of the statement of points so we will not base our decision on requirements of our rules. (See Rule No. 6 [d], Rules of the Supreme Court, 214 Kan. xxiii.)
In all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts required by • K. S. A. 60-252, briefly state the legal principles controlling the decision. (Rule No. 116, Rules of the Supreme Court, 214 Kan. xxxvii.) The above rule applies to summary judgments entered by a trial judge. Compliance with the rule would have alleviated some of our problems in this appeal.
The judgment of a trial court, if correct, should be sustained on appeal even though the court may have relied on an erroneous reason for its decision. (Tripp v. The Reliable Life Insurance Co., 210 Kan. 33, Syl. ¶ 2, 499 P. 2d 1155.) In the present appeal no reason, erroneous or otherwise, is given for the decision. However, a summary judgment entered by a trial court, if correct, should be sustained on appeal if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, appearing in the record show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (See K. S. A. 60-256 [c] and case annotations listed thereunder.)
Before proceeding further we will review some of the facts disclosed by the pleadings and files. The claim of illegal action against the city governing body is based upon failure to' include two additional areas (Reserve A and Reserve B) within the boundaries of the improvement district. These areas were assessed for one half the cost of a street (Mary Etta Street) which separates the improvement district from “Reserve A and B”. However, “Reserve A and B” were not placed in the improvement district and are not burdened with the cost of sewer and street improvements constructed in the adjacent improvement district. The area within the improvement district is platted and contains 91 building lots served by sewer improvements and by two internal streets. The adjacent areas, “Reserve A and B”, are not divided into building lots and no sewer or street improvements were made within their boundaries. Sewers from the improvement district were stubbed into “Reserve A and B” which are a part of the Holbrook Addition.
Vanlahi, Inc. was the owner and Harter & Sons, Inc. was the developer of Holbrook Addition to the City of Derby when the improvements were made in 1970 and when the improvement district was defined. The improvement district was defined by the city acting under authority of K. S. A 1973 Supp. 12-6a01, et seq. The ordinance required to fix the amounts of the special tax assessments to pay for the improvements was published. The 30-day period within which suits may be brought to set aside or question the assessments had expired before any of the plaintiffs acquired an interest in this property.
This action was filed in 1973, more than two years after the bar of the statute fell. Some of the plaintiffs had acquired their properties direct from Vanlahi, Inc. and Harter & Sons, Inc., while others purchased their properties from intermediate purchasers. The plaintiffs purchased subject to the special tax assessments of record in the office of the city clerk. (See K. S. A. 12-6a09.) They make no claim that they were in any way prevented from determining such amounts prior to purchase. They merely allege they did not know said assessments were illegally spread until sometime in March of 1972. They claim the assessments were illegal because the city, acting in consort with the owner and the developer, failed to include “Reserve A and B” in the improvement district.
The appellants rely heavily on Snyder Realty Co. v. City of Overland Park, 208 Kan. 273, 492 P. 2d 187, to support their claim that the improvement district was improperly constituted and that the special tax assessments should be reassessed and relevied against an expanded improvement district. The case cited is not applicable here and will not support such a conclusion. In the Snyder Realty Co. case,.the action to enjoin the special tax assessment against plaintiff s real estate was filed within the 30-day period limited by K. S. A. 12-6all. Therefore in that case it was permissible to inquire into whether the governing body acted in good faith and within the standards imposed by the improvement and assessment law. This is not true here.
In our present case appellants’ cause of action depends upon appellants’ ability to question the proceedings, establish illegality and set aside the 1970 assessments. They are prevented from doing so by the bar of the 30-day statute.
In Schenk v. Kansas City, 134 Kan. 181, 5 P. 2d 842, this court speaking of the effect of a similar thirty-day statute of limitations states:
“. . . The idea that taxpayers may sit idly by while public improvements are made and while the city incurs obligations to pay for them, and then after the lapse of years institute proceedings challenging the validity of such city’s obligations, and the assessments and levies made to meet them, does not address itself favorably to a court of equity. Time and again this court has said that belated proceedings seeking to defeat payment for public improvements are not looked upon with favor. [Citations omitted.]” (p. 185.)
It should be pointed out that the one-count petition filed in this case sets forth but a single claim based upon the alleged improper action of the city in defining the boundaries of the improvement district. No separate claim of fraud or misrepresentation in the sale of the properties to the plaintiffs-appellants is alleged. Given the most liberal interpretation the language in the petition cannot serve as a basis upon which to predicate a claim of fraud and misrepresentation against Vanlahi, Inc. and Harter & Sons, Inc. K. S. A. 60-209 (h) requires that a party set forth with particularity the circumstances constituting fraud or mistake. No specific facts constituting fraud appear in appellants’ petition in this case.
The appellants next argue that a proper class action was stated in the petition. The appellees contend otherwise. Whether or not a proper class action was pleaded would have little bearing in this case on tibe question of the propriety of entering summary judgment. The 30-day limitation on bringing the action would apply in either event. In addition, failure to' plead an action which can be prosecuted as a class action under K. S. A. 1973 Supp. 60-223 is not fatal to a plaintiff’s action based on his individual rights. (Schupbach v. Continental Oil Co., 193 Kan. 401, 394 P. 2d 1.)
One final contention of the appellants should be mentioned. They argue that judgment should not have been granted because the appellees had not had time to answer appellants’ interrogatories. Generally a motion for sumary judgment should not be granted if the opposing party is proceeding with pretrial discovery and has not had an opportunity to complete it. (Lawrence v. Deemy, 204 Kan. 299, 302, 461 P. 2d 770.) However, appellants do not contend there were discoverable facts which would remove the bar of the statute of limitations. When the pleadings and files conclusively show that the only cause of action pled in the petition is barred by an applicable statute of limitations, and no suggestion is made to the trial court of any additional facts tending to remove the bar of the statute, the petitioner cannot escape summary judgment merely because pretrial discovery is not complete. (Gray v. Ray Gill, Frontier Industries, Inc., 208 Kan. 95, 97, 490 P. 2d 615; Sade v. Hemstrom, 205 Kan. 514, 521, 471 P. 2d 340; Meyer, Executor v. Benelli, 197 Kan. 98, 100, 415 P. 2d 415.)
Accordingly we hold that plaintiffs’ claim against the defendants-appellants is essentially one to question the validity of proceedings under K. S. A. 1973 Supp. 12-6a01, et seq., the general improvement and assessment law, and that such a suit cannot be successfully maintained after the expiration of thirty (30) days from the publication of the ordinance fixing said assessments.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C:
Clarence Hays Banks was convicted by a jury of the offense of theft of property of more than fifty dollars. His motion for new trial was overruled, he was sentenced and now appeals.
The principal question presented relates to rulings which appellant Banks contends denied him adequate assistance of counsel— specifically the court improperly denied him a continuance of the trial to allow withdrawal of counsel and appointment of new counsel.
The complaint charged appellant and another individual with burglary and felonious theft. Thereafter, George Eamshaw, a member of the Johnson county bar, appeared at the preliminary hearing on behalf of both. Mr. Earnshaw was the second court-appointed attorney for appellant. The two persons charged were bound over for trial on both counts of the complaint. In distriot court appellant was granted a separate trial, which commenced on Monday, January 15, 1973. Immediately before the trial started Mr. Earnshaw requested permission to withdraw as counsel for appellant for the reason there was a conflict between his duty to defend his client and his duty as an officer of the comí:. Mr. Eamshaw stated appellant wanted the case 'tried in a different manner than counsel felt the case could be tried and that the problem had not arisen until the Friday prior to the scheduled start of the trial on Monday. In response to questioning by the court he stated that the conflict was of such nature it would arise with any other member of the bar representing appellant.
The trial court denied the request to withdraw, stating the case was the oldest on the docket, had been set on December 29, 1972, for trial January 15, 1973, and the motion was not timely made. The court also stated the request should be denied inasmuch as the same situation would arise with any other member of the bar.
Appellant addressed the court and stated he wanted counsel to withdraw because counsel refused to use a certain witness in his behalf; counsel had informed appellant he would not use the witness because he felt it would conflict with his duty as an officer of the court. The court again denied the request but indicated full inquiry into the nature of the conflict would be made at the conclusion of the case. Throughout the proceeding the trial court was careful to protect the confidentiality of the lawyer-client relation.
Thereafter trial proceeded that day with the impaneling of a jury and presentation of evidence by the prosecution. The following day, January 16, 1973, appellant refused to enter the courtroom for resumption of the trial. He was brought into the courtroom but he refused to sit down. The trial judge directed appellant be seated. He refused. The trial judge repeatedly requested appellant to be seated and twice admonished him he could be found in direct contempt of court. Appellant refused to sit and continued speaking. Eventually he was found guilty of direct contempt of court and sentenced to confinement in the county jail for thirty days. At the trial court’s direction appellant was forcibly seated in a chair. The court painstakingly reviewed and explained the law applicable to the rulings it had made concerning the request for withdrawal of counsel. Appellant again stood up and refused repeated requests by the court to be seated and persisted in interrupting the court and speaking of his right to call his witness. Again appellant was adjudged in contempt of court and sentenced to an additional thirty days.
The trial judge again attempted a review of the proceedings and the law in order to explain why counsel had not been allowed to withdraw. Appellant refused to listen and persisted in interrupting. The trial judge ordered appellant gagged and then reviewed again the reasons for denial of the withdrawal request. He also cautioned appellant he would be removed from the courtroom if his disruptive behavior continued. The gag was then removed from appellant. All the foregoing occurred outside the presence of the jury.
The jury returned to the courtroom and trial proceeded. The state having completed its evidence, appellant’s counsel advised the court appellant would present no evidence. Appellant then remarked to the jury that he had evidence but they wouldn’t let him present it. The jury was excused from open court and again the court made a lengthy and detailed explanation of the action taken. Inquiry was made of appellant whether he would continue his disruptive behavior when the jury returned. He answered in the affirmative and was ordered removed from the courtroom. Appellant expressly stated he did not desire to remain in open court. The trial proceeded in his absence. The jury acquitted appellant of the burglary charge but found him guilty of felonious theft.
Upon the hearing of the motion for new trial further inquiry was made into the basis of counsel’s refusal to use the witness in question. Appellant’s counsel stated the witness had indicated he would testify in a certain way; however, his statements were contrary to others the witness had previously made to counsel and to the police. Counsel stated that in his opinion calling the witness to the stand would violate his professional responsibility as an officer of the court and that any attorney replacing him would make the same decision; counsel believed the witness would hurt rather than help appellant and also that “His story wouldn’t have been helpful no matter what his story was”; he asked appellant if he wanted him to present the motion for new trial and appellant told him to go ahead, it was nothing personal and if appellant got in trouble again “he would hire me to argue his case”; the calling of the one witness was tibe only conflict. The trial court denied the motion for new trial and this appeal ensued.
Appellant contends the trial court erred in not permitting his court-appointed attorney to withdraw and in not permitting a continuance so another attorney could be appointed, thus allowing appellant to have “the opportunity to call an alibi witness”.
The conflict between appellant and his court-appointed attorney arose solely because the latter chose not to call a certain witness. Counsel indicated calling the witness would violate his professional responsibility as. an officer of the court and that any attorney replacing him would make the same decision; also that calling the witness would hurt rather than help appellant.
An indigent criminal defendant has a right to be represented by counsel; however, he does not have right to be represented by a particular lawyer (State v. Walker, 202 Kan. 475, 449 P. 2d 515). An indigent criminal defendant may not demand a different appointed lawyer except for good cause (United States v. Young, 482 F. 2d 993 [CA 5]). As a general rule whether the dissatisfaction of an indigent accused with his court-appointed counsel warrants discharge of that counsel and appointment of new counsel is for the trial court, in its discretion, to decide (State v. Walker, supra).
In United States v. Young, supra, it is stated:
“In order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. [Citations] If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. [Citation] In the absence of a conflict which presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion.” (p. 995.)
As long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel (State v. Henderson, 205 Kan. 231, 468 P. 2d 136).
The ABA Standards, The Defense Function § 5.2 (1971) provide:
“(c) If a disagreement on significant matters of tactics or strategy arises between the lawyer and his client, the lawyer should make a record of the circumstances, his advice and reasons, and the conclusion reached. The record should be made in a manner which protects the confidentiality of the lawyer-client relation.”
Prior to the selection of the jury counsel requested permission to withdraw and explained the reasons for the request as clearly as he felt possible without violation of the lawyer-client privilege. The court made inquiry into the nature of the problem. The appellant then chose to explain the exact nature of the conflict, i. e., counsel would not call a certain witness. The trial court believed, due to the nature of the problem, that the same conflict would arise with any newly appointed counsel and the request was denied.
The code of professional responsibility provides that a lawyer shall not knowingly use perjured testimony nor participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false (214 Kan. lxxxvii; see also State v. Henderson, supra). Thus, there was a legitimate basis for counsel’s refusal to call the witness and the same conflict could have been precipitated by appellant with respect to new counsel who might have been appointed.
Appellant’s dissatisfaction related solely to counsel's refusal to call the witness; otherwise there was no dissatisfaction with counsel's representation. Since the court’s inquiry had elicited the fact that the same conflict quite probably would arise with any other counsel and appellant had no other objections to counsel’s representation, the court properly concluded that the attorney-client relationship had not deteriorated to the point where counsel could no longer give effective aid in the fair presentation of a defense.
Aside from the foregoing, it is within the province of the lawyer to determine what witnesses to call. In State v. Hazlewood, 209 Kan. 649, 498 P. 2d 607, it was contended the court erred in refusing to permit court-appointed counsel to withdraw because of an alleged conflict of interest. The asserted conflict arose from the refusal of counsel to call certain witneses. The court found no merit to the assertions, saying:
“An attack by an indigent defendant upon his court-appointed counsel in the trial of a criminal action and a subsequent attempt by court-appointed counsel to withdraw on the ground of ‘conflict of interest’ are unavailing, where the record discloses court-appointed counsel competently represented the defendant in the criminal action, and there was no actual conflict of interest.” (Syl. f 4.)
In Winter v. State, 210 Kan. 597, 502 P. 2d 733, we held:
“In the conduct of the defense of a criminal case the technical and professional decisions, which require trained professional skill and judgment, must rest with the lawyer. The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Syl. f 2.) (Emphasis supplied.)
See also ABA Standards, The Defense Function § 5.2 (b) (1971).
Appellant argues the cumulative effect of refusal to appoint a new attorney was to deny him adequate assistance of counsel. However, counsel represented appellant in such a manner he was ultimately found not guilty on one of the charges. At the hearing on the motion for new trial the trial court commented that Mr. Eamshaw had vigorously defended appellant’s rights and the case was well tried. In Winter v. State, supra, the general rule is stated:
“The adequacy and effectiveness of an attorney’s services on behalf of an accused in a criminal action must be gauged by the actual representation afforded the accused in its totality. To be a denial of an accused’s constitutional rights it must clearly appear that the representation of the accused was wholly ineffective and inadequate. The burden is on the petitioner to show the representation by his attorney was so incompetent and-inadequate that the total effect was that of a complete absence of counsel.” (Syl. f 4.)
Here appellant’s attorney obviously believed the prospective witness was going to commit perjury and further believed the testimony would harm rather than help his client. This is not conflict of interest presenting constitutional denial of the right to the effective assistance of counsel. The trial court did not abuse sound discretion in the rulings complained of.
Finally, appellant contends the trial court “erred in not instructing the jury that the fact defendant was removed from the courtroom for destructive conduct during the trial should not be considered in determining the guilt or innocence of the defendant”. The point has no merit. The court did tell the jury appellant had elected not to remain in the courtroom and it gave the following instruction:
“No. 8A. You are instructed that any disruptive conduct of the defendant occurring during the trial of this proceeding cannot be considered by you in determining the guilt or innocence of the defendant.”
The instruction adequately safeguarded appellant’s rights and from any standpoint cannot be said to be improper. The trial court acted as it did only after meticulously, patiently and repeatedly explaining appellant’s rights and responsibilities, the reasons for the actions taken and the consequences of appellant’s further misconduct. Its actions in gagging appellant and eventually removing him from the courtroom for repeated disruptive behavior were within the guidelines prescribed by Illinois v. Allen, 397 U. S. 337, 25 L. ed. 2d 353, 90 S. Ct. 1057, reh. den. 398 U. S. 915, 26 L. ed. 2d 80 90 S. Ct. 1684, and there is no contention to the contrary. We find nothing in the record to warrant disturbing the judgment and it is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fromme, J.:
Raymond D. Pettay appeals from, judgment and and sentence for felony theft. The evidence at the trial was uncontradicted. Pettay was seen shopping in an electronics store in Hutchinson, on February 6, 1974. While in the store Pettay removed a tape recorder, from a store shelf, walked out of the store with the recorder under his arm and proceeded down the street. Pettay was observed by a customer in the store who advised Mr. Lett, the proprietor. Mr. Lett pursued the appellant Pettay and stopped him two and a half blocks from the store. At the request of Mr. Lett the appellant voluntarily returned to the store and waited while the police were called.
It is stipulated that the recorder- was valued at over fifty dollars. The police officer, who was called to the store, testified at the trial that he arrested the appellant and gave him the Miranda warning. He asked the appellant if he understood each of the rights contained in the Miranda warning. The appellant responded that he did. The officer further testified that the appellant volunteered the statement that he had been drinking all day and did take the recorder from the store. The officer testified that he smelled no odor of alcohol on the appellant when he was arrested and noticed nothing which would indicate that appellant had been drinking when he took the tape recorder.
On appeal the appellant argues that the evidence was insufficient to establish the criminal intent required by K. S. A. 21-3201 (1) (Weeks). Under this statute criminal intent is an essential element of the crime of felony theft, and criminal intent may be established by proof that the conduct of the accused was willful.
K. S. A. 21-3201 (2) (Weeks) provides:
“(2) Willful conduct is conduct that is purposeful and intentional and not accidental. As used in this code, the terms ‘knowing,’ ‘intentional,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘willful.’ ”
On appeal the appellant argues that he is an epileptic subject to psychomotor seizures, that he has no recollection of the theft with which he is charged and that his actions were without criminal intent because he was suffering from a psychomotor epileptic seizure when the theft occurred.
There was medical evidence introduced at the trial that appellant had in the past suffered from epileptic seizures identified as both the grand mal and the psychomotor type seizure. If the theft occurred while appellant was suffering a psychomotor seizure the medical evidence introduced at the trial would support a jury finding that appellant’s actions were not voluntary and at that point in time he lacked the required criminal intent necessary to commit the crime of theft.
No question is raised by appellant concerning the jury instructions. We must assume the jury was properly instructed as to the law. When an unlawful act is proven it will be presumed that the act was willful for a person is presumed to intend the natural and probable consequences of his voluntary and deliberate acts. (State v. Eye, 161 Kan. 69, 166 P. 2d 572; State v. Cooper, 190 Kan. 101, 372 P. 2d 289; State v. Darling, 208 Kan. 469, 493 P. 2d 216.)
In order for appellant to establish the defense urged by him it was not sufficient to prove he was an epileptic before or after the commission of the crime. To establish such a defense the jury must find he was in the throes of an epileptic seizure at the precise time of the commission of the crime and that the seizure rendered his actions unintentional and involuntary. If an epileptic is not in the throes of an epileptic seizure at the time he commits a crime he may be held criminally responsible for such crime. (People v. Codarre, 245 N. Y. S. 2d 81, 20 A. D. 2d 98, aff’d. 200 N. E. 2d 570, 14 N. Y. 2d 370, 251 N. Y. S. 2d 676, cert. den. 379 U. S. 883, 13 L. Ed. 2d 89, 85 S.Ct. 153.)
Evidence on the subject was presented to the jury and the jury found that appellant’s actions were voluntary and criminal in nature.
An appellate court upon reviewing the sufficiency of the evidence examines that evidence which favors the verdict, it does not weigh the evidence, and if the essential elements of the charge are sustained by any competent evidence the conviction should stand. (State v. McCollum, 211 Kan. 631, 507 P. 2d 196; State v. Kelly, 210 Kan. 192, 499 P. 2d 1040.) There is sufficient evidence in the record to support a finding that appellant was not in the throes of an epileptic seizure when the crime was committed and that he possessed the requisite criminal intent when he removed the tape recorder from the premises.
Appellant next complains that the closing argument of the prosecution was improper and deprived appellant of a fair trial. The appellant states in his brief that the improper argument consisted of reading portions of the deposition testimony of the doctor previously admitted into evidence on behalf of the appellant.
Although it is alleged that the county attorney read portions of the deposition during the closing argument, the closing argument was not transcribed and does not appear in the record on appeal. The appellant cites no authority and we know of none which precludes reference during closing arguments to depositions introduced at the trial.
The appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of a record showing prejudicial error the appellate court must assume that the action of the trial court was proper for it is precluded by the record from adequately reviewing an unsubstantiated claim of error. (State v. Montgomery, 175 Kan. 176, 179, 261 P. 2d 1009; Kohn v. Babb, 204 Kan. 245, 248, 461 P. 2d 775.)
The final point urged by appellant is that his sentence is disproportionate to the offense and constitutes cruel and unusual punishment. He was found guilty of felony theft, a class D felony, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the trial court at not less than one (1) year nor more than three (3) years and the maximum of which shall be ten (10) years. (K. S. A. 21-4501 [Weeks].) Appellant had two prior felony convictions and was sentenced under K. S. A. 21-4504 (2) (Weeks). This statute provides that if the defendant has previously been convicted of two or more felonies the court may fix a minimum sentence of not more than three times the minimum sentence authorized in 21-4501, supra, and may fix a maximum sentence of not more than life. It is clear that appellant’s sentence fixed by the court at a minimum of nine (9) years and a maximum of thirty (30) years is within the permissible limits of the applicable statutes and is not erroneous.
When a sentence is fixed by the trial court within permissible limits of the applicable statutes the sentence is not erroneous. In the absence of special circumstances showing an abuse of judicial discretion it cannot be determined on appeal that such a sentence is excessive or so disproportionate to the offense as to constitute cruel and unusual punishment. (Clinton v. State, 210 Kan. 327, 502 P. 2d 852; State v. Huesing, 211 Kan. 610, 506 P. 2d 1140; State v. Miles, 213 Kan. 245, 515 P. 2d 742.)
The judgment is affirmed.
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The opinion of the court was délivered by
Schroeder, J.:
This appeal stems from a ruling by the Kansas Labor Commissioner, denying the appellant an evidentiary ruling, after a full hearing, by invoking the jurisdictional fifteen-day appeal provisions of K. S. A. 44-710b (a). The district court sustained the ruling of the commissioner and appeal has been duly perfected to this court.
The appellant contends the commissioner’s decision is unreasonable, arbitrary and capricious.
The facts are stipulated. On July 30, 1969, Delbert C. Loughery, (hereafter referred to as claimant) was discharged from the employment of B & G Chrysler-Plymouth (hereinafter sometimes referred to as the preceding employer). Thereafter claimant registered for the receipt of unemployment benefits. On August 11, 1969, a notice was sent pursuant to K. S. A. 44-709 (b) informing the preceding employer that in the event they disputed benefits paid the claimant, which were charged to their experience rating account, they must file an appeal within twelve days of the date of mailing. This notice was not returned as undeliverable, and the preceding employer did not file an appeal to this charge determination.
Benefits were paid to claimant for a period from August 16, 1969, until February 9, 1970, totaling $1,430.
On October 16, 1969, Bill George Chrysler Plymouth, Inc., appellant, acquired all the assets of B & G Chrysler-Plymouth, and on November 3, 1969, the appellant applied for a transfer of experience rating, pursuant to K. S. A. 44-710a (b). Shortly thereafter, on November 26, 1969, the appellant was assigned the preceding employer’s contribution experience rating of 1.15%.
On January 15, 1970, the appellant received notice that its contribution rate for the year 1970 would be at 1.00%.
On January 11, 1971, the appellant was notified his contribution rate for 1971 would be 2.15%. This notice charged the appellant’s account with $1,430 for benefits paid to claimant. Thereafter the appellant complained of errors in the computation of his contribution rate on matters not in issue in the case at bar. The employment security division (hereinafter referred to as the agency) adjusted the contribution in an amended experience rating order dated March 15, 1971. The appellant corresponded with the agency on April 30, 1971, as to why his experience rating had been increased so sharply over the prior year. The agency replied on May 11, 1971, and no further action was taken by the appellant at that time.
After being discharged by his preceding employer in August 1969, claimant filed an action with the National Labor Relations Board on December 23, 1969, contending he was wrongfully discharged. A hearing was held on March 9, 1971, and the appellant was ordered:
“. . . [T]o reinstate Loughery to his former or substantially equivalent employment and to make Loughery whole for any loss of pay he may have suffered because of the discrimination against him, by paying to him a sum of money equal to the amount he would normally have earned from August 1, the date of the discrimination against him, to the date respondent makes a firm and good faith offer of reemployment to him.”
Pursuant to the N. L. R. B. order Loughery received $2,600 less deductions for a net sum of $1,717.30 on June 3, 1971.
Shortly after being reinstated claimant again became -unemployed and was qualified to receive unemployment benefits for a second time by virtue of the back wages paid pursuant to the N. L. R. B. ruling. (Social Security Board v. Nierotko, 327 U. S. 358, 90 L. Ed. 718, 66 S. Ct. 637, 162 A. L. R. 1445.) Claimant received benefits in the amount of $304 as a result of the second termination, and that amount was charged to the appellant’s experience rating account and reflected in his experience rating notice for 1972, dated January 10, 1972.
On January 18, 1972, the appellant wrote the agency and complained about the new rate. Subsequent to sending this letter the appellant filed a formal application for review and redetermination of the appellant’s “rate determination heretofore received on or about the 10th day of January, 1972, and on which objection was mailed January 18, 1972, within the 15 day requirement of K. S. A. 44-710b, no reply having been received thereto.”
A hearing was conducted on May 15, 1972, concerning the appellant’s application for review. As a preliminary matter the Hearings Officer observed that neither the application for review nor its envelope disclosed a date but he noted “the application for review and redetermination does say that it was mailed January 18, 1972. So I think we can safely assume here that it was filed, it was a timely filed appeal.” (Emphasis added.)
The Hearings Officer found in his recommended decision to the commissioner that the N. L. R. B. back pay award constituted wages paid by the appellant for the period of time covered by the order; the benefits charged to the appellant’s experience rating account in the amount of $1,430 in the amended experience rating notice mailed March 15, 1971, represents unemployment dining the time the appellant was later required to pay claimant wages; therefore, the hearing examiner concluded, the employer should not have charged to its experience rating account the $1,430 paid as unemployment insurance benefits to claimant, and the experience rating account for the employer should be recomputed beginning with the year 1971.
The Hearings Officer noted the decision did not determine an overpayment against claimant for the $1,430 because claimant was not a party to this appeal, and the issue of an overpayment was not before the commissioner.
Following the hearing the appellant, through counsel, sent a letter to an agency attorney over concern expressed regarding the appellant’s failure to file objections when the rating was originally increased, stating:
“1. At the time the original payment was made, there was no objection on our behalf for two reasons: (a) We were not the employer, it being the former corporation, and (b) The N. L. R. B. action had not been instituted.
“2. My client, Bill George, purchased the company on October 16, 1969. Any further correspondence to the former owners went to the former president who then moved to Louisiana.
“3. The N. L. R. B. complaint was instituted December 23, 1969, and the final ruling made thereon March 9, 1971.
“So, until we found that we were liable for wages to Mr. Loughery, we had no reason to follow the statutory procedure on objecting to the inclusion of the 1969 payment in our rate determination.”
On January 17, 1973, a rehearing was conducted concerning the appellant’s application for review. At this proceeding Mr. Duane Roberts, chief attorney for the agency, submitted for the record his interpretation of the applicable statutes and their application to the facts of this appeal. Mr. Roberts stated it has always been the position of the agency’s legal department, in. appeals from K. S. A. 44-710b for review of assigned contribution rates that K. S. A. 60-206 of the Civil Code of Procedure applied and may be used by the State Labor Commissioner for the purpose of enlarging the appeal time as a result of excusable neglect. Mr. Roberts further stated under K. S. A. 44-703 (m) an individual shall be deemed unemployed for a particular week only where he performed no services and where no wages are payable to him with respect to that week (see Erickson v. General Motors Corporation, 177 Kan. 90, 276 P. 2d 376). There fore, claimant was not “unemployed” within the meaning of the act for the period from August 1969 to February 1970, because he received wages pursuant to the N. L. R. B. order. Mr. Roberts also noted the appellant made contributions into the employment security fund on the back wages, and the claimant was permitted to receive unemployment benefits after his second termination on the basis of having received $2,600 (minus deductions) as wages. Mr. Roberts continued as follows:
“. . . However, under the letter that is in exhibit here, it appears to me regardless of any questions of appeal time from Notices of Determination, that certainly there would be, at least the employer would be entitled to consideration as to whether or not there is excusable neglect for not filing [an appeal for] the period of time when the $1430. was reported against his account.”
On March 1, 1973, after reviewing all the evidence together with transcripts of the hearings, the commissioner found benefits paid to the claimant in the amount of $1,430 were properly assessed against the appellant’s experience rating account. The rationale of the decision barring the appellant’s application for review on the ground of failure to assert a timely appeal is twofold: (1) B & G (appellant’s predecessor) was notified pursuant to 44-709 (b) that the Loughery benefits would be charged to B & G’s account and no appeal was taken within the prescribed twelve day appeal period; consequently, the charges were binding on B & G. The commissioner concluded the appellant was also bound by B & G’s failure to appeal because the appellant was a successor employer (K. S. A. 44-710a [b]). The decision notes that as a successor employer the appellant enjoyed the benefit of a contribution rate somewhat lower than would have been assigned had the appellant not obtained such a classification, and that along with the benefits of the classification, the appellant must “assume certain liabilities which are set out in the law and one of those is the liability for benefits paid a claimant who was discharged by his predecessor employer.”; (2) On January 11, 1971, the appellant received notice (pursuant to K. S. A. 44-710b) that his contribution rate for 1971 would be 2.15% and this notice became final when the appellant failed to appeal the determination within fifteen days. The commissioner concluded the appellant could not now seek a review for the benefits paid the claimant amounting to $1,430 which were assessed against the appellant’s experience rating account.
Thereafter the appellant filed a petition in the Wyandotte County District Court for judicial review of the commissioner’s decision as provided by K. S. A. 44-710b (b). The appellant’s petition alleged the commissioner’s decision “was unreasonable, arbitrary and capricious and considered only the timeliness of petitioner’s original appeal filing and not the true issues involved, from which petitioner has no adequate remedy at law.”
The district court after reviewing the transcript of the proceedings and evidence affirmed the commissioner’s decision. Thereupon an appeal was duly perfected to this court pursuant to K. S. A. 44-710b (c).
What the appellant seeks in this case is an interpretation of the Employment Security Law which the labor commissioner construed as limiting his jurisdiction.
Where the facts are undisputed, as here, the applicability of a statute to the facts is a question of statutory construction to be determined by the court. (Social Security Board v. Nierotko, supra.) In Tillotson v. Abbott, 205 Kan. 706, 472 P. 2d 240, this court said:
“The interpretation placed upon a statute by an administrative agency whose duties are to carry the legislative policy into effect should be given consideration and weight when the statute is ambiguous and the intent of the legislature is not cletar. (See Lowden v. Garvie, 152 Kan. 388, 103 P. 2d 832; Graves v. Armstrong Creamery Co., 154 Kan. 365, 118 P. 2d 613, 140 A. L. R. 1267n.) However, this does not mean this court must follow an administrative interpretation placed upon a statute when the interpretation of the administrative body is erroneous. We will examine this statute in light of the facts of this case to determine its applicability.” (p. 713.)
As a preliminary matter it must be recognized that “back pay” awards constitute wages paid by the employer for the period of time covered by the order. The United States Supreme Court in Social Security Board v. Nierotko, supra, held “back pay” awarded by the National Labor Relations Roard upon the reinstatement of a wrongfully discharged employee, upon being credited to the employee’s old age benefit account under the Social Security Act (49 Stat. 662), must be allocated to the calendar quarters of the year in which the money would have been earned if the employee had not been wrongfully discharged. In the opinion the court said:
“. . . [W]e think it plain that an individual, who is an employee under the Labor Act and who received ‘back pay’ for a period of time during which he was wrongfully separated from his job, is entitled to have that award of back pay treated as wages under the Social Security Act definitions which define wages as ‘remuneration for employment’ and employment as ‘any service . . . performed ... by an employee for his employer. . . .’” (p. 364.)
The rule finds support in language used by 'this court in Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 371 P. 2d 134, 93 A. L. R. 2d 1312, establishing the criteria for defining wages within the Employment Security Law, where it was said:
“. . . Generally speaking, wages are tied to the week of work and not to the week in which they are paid. In order to associate pay with specific weeks, there must be some connection between the two. The termination allowances here involved were in no way related to or dependent upon the claimants’ employment status after termination. . . .” (p. 605.)
Another decision supporting the rule is CCH [February, 1972 —March, 1973, Transfer Binder] Unemployment Insurance Reporter f 16726, where payments were made by a corporation to its employees resulting from a suit for violation of Title VII of the Civil Rights Act of 1964. These were held to be includible as compensation in the employees’ gross income and to be “wages” for employment tax purposes. Since the payments were ordered as “remuneration” for services, they were said to be wages for the purpose of taxes imposed by the Federal Insurance Contributions Act, the Federal Unemployment Tax Act, and the Federal Income Tax.
In the instant case the claimant employee was reinstated by an order of the N. L. R. B. and 'the wages paid to him were for a specific period of time. Federal and state withholding tax deductions were made from the $2,600 which the N. L. R. B. ordered the appellant employer to pay.
Until the appellant paid the claimant wages in 1971 pursuant to the N. L. R. B. order, requiring the appellant to reinstate the claimant and to make him whole for any loss of pay he may have suffered, which covered the period of time the claimant was paid benefits of $1,430 under the Employment Security Law, the appellant had no valid cause for complaint by reason of experience rating notices.
Had the appellant filed an application for review and redetermination pursuant to an experience rating notice, establishing the employer’s rate of contributions and of its benefit liability, prior to the notice of January 10, 1972, the appellant could have set forth no valid reasons to justify a review and redetermination as required by K. S.A. 44-710b (a). Accordingly, the appellant cannot be charged with neglect in failing to file an application for review and redetermination prior to the application made on Janu ary 18, 1972. This appeal was filed within fifteen days of the Experience Rating Notice disclosing the determination of the appellant’s 1972 contribution rate, as required by 44-710b (a), supra.
It is clear from the Employment Security Law, and in particular K. S. A. 44-710a, that the contribution rates fixed by the commissioner for an employer are determined by classifying the employer in accordance with the employers actual experience in the payment of contributions on the employer’s own behalf “and with respect to benefits charged against” the employers accounts. Computation of the employer’s experience takes into consideration all of the employer’s contributions paid on its own behalf for all “past years” and the total benefits charged to the employers account for all such years. Therefore, the experience rating of an employer is directly dependent upon the employers experience for all prior years regarding the cost of benefits paid that are attributable to service in the employment of such employer.
Since the facts giving rise to the erroneous experience rating of the appellant for the year 1972 first occurred in the year 1971, establishing that the employer should not have charged to its experience rating account the sum of $1,430, paid as unemployment insurance benefits to the claimant, the appellant is entitled to have his experience rating recomputed beginning with the year 1971. The first opportunity the appellant had to challenge the erroneous determination of its experience rating was by appealing from the experience rating notice dated January 10, 1972. An appeal was duly perfected within fifteen days from this date.
The judgment of the lower court is reversed with directions to remand the case to the labor commissioner for action consistent herewith.
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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, Jon Richard Deffenbaugh, was convicted of five separate counts charging possession of illegal drugs — cocaine, morphine, methadone, marijuana, and amphetamines. Following the filing of the information the defendant by written motion moved to suppress certain evidence consisting of a quantity of drugs found in the defendant’s possession at his home by police officers upon execution of a search warrant. The motion to suppress was over ruled. Defendant waived trial by jury and the case was tried to the court. The defendant was found guilty on all five counts. The defendant has appealed to this court claiming trial errors.
The factual circumstances as disclosed in the record are confusing since they must be pieced together from fragments of testimony given at the hearing on the defendant’s motion to suppress evidence and testimony offered after conviction on the defendant’s motion for a new trial. The factual difficulty arose in this case because the state did not want to disclose the name of an undercover informant who furnished the police officers the information on the basis of which a search warrant was issued for the search of the defendant’s room at his home. It is clear from the record that for a number of months prior to April 16, 1973, Kirk Hiatt, a resident of Leawood, Kansas, had served as an undercover agent and. informer for law enforcement agencies in Johnson county. His own testimony establishes the fact that he had provided information to the police about drug activities in the county on seven different occasions and had been paid money each time for such information. On April 11, 1973, a robbery occurred at the Kansas University Medical Center at which time narcotic drugs were taken. On April 16, 1973, shortly before noon the defendant Deffenbaugh, was at the home of Kirk Hiatt in Leawood. Hiatt’s testimony, taken in another criminal case in Wyandotte county arising out of the robbery of the KU Medical Center, disclosed that he knew police officers were watching his home on April 16 when the defendant was there. Apparently police officers were keeping his home under surveillance in view of his participation in drug activities as an undercover agent for the police. At the same time defendant was in Hiatt’s home, Steve Shults, a Leawood police officer, was parked at the intersection a short distance from the house. It was his testimony that the Hiatt house was not under surveillance but according to Hiatt’s testimony such was not fact. Officer Shults observed the defendant Deffenbaugh leave the Hiatt home and proceed east in his automobile on 103rd Street. Shults stopped the defendant’s vehicle and without a search warrant searched the defendant’s vehicle. He then took the defendant Deffenbaugh to the Leawood police department where defendant was interrogated and his person was searched. He was then released. During the search of defendant there was discovered on his person a “list of things to do” and the names of certain people. The list of things to do led the police officers to the home of Bruce Davis. There a blue box was discovered which contained evidence of having been used to contain drugs. Later that afternoon Davis was questioned by the police officers at the Leawood police station. During the interrogation Davis suggested to the police that Kirk Hiatt may have been involved in the KU Medical Center robbery. Davis also indicated that defendant Deffenbaugh owned a similar blue box. Davis was then released.
The record shows that on April 16 at approximately the same time the defendant was arrested by Officer Shults, Kirk Hiatt drove away in his automobile from his home and proceeded to Kansas City, Missouri. There Hiatt was stopped by Officer Buford who told Hiatt to “call Shults”. Some time between 12:30 and 1:00 p. m. on April 16 Hiatt called Shults at the Leawood police department. There is nothing in the record to show that at the time of that call Hiatt knew that defendant had been arrested or that he was at the police station. In the telephone call Hiatt told Shults that he could provide information about the robbery of the KU Medical Center.
On the following day, April 17, 1973, Hiatt had discussions with the police officers about the medical center robbery. On the morning of April 18, Hiatt went to the Johnson county sheriff’s office where he gave full and complete information to the police officers including the fact that Hiatt had observed a quantity of drugs in the defendant Deffenbaugh’s room. Hiatt informed them that the narcotics were kept in a blue box. Shortly after noon on April 18 the police officers obtained from Magistrate Judge Earle D. Jones a search warrant for the search of the defendant’s residence located in Overland Park. The affidavit for a search warrant which was presented to Magistrate Judge Earle D. Jones was as follows:
“AFFIDAVIT FOR SEARCH WARRANT
“Lewis Hoskins and Bruce Shuman, Johnson County Deputy Sheriffs, and Steve Shults, Leawood Police Department, affiants, now appear before the undersigned magistrate, authorized to issue warrants in criminal cases, and make this affidavit in support of the issuance of a search warrant to search the following described place:
“a residence located at 5231 West 96th Street, Overland Park, Johnson County, Kansas, a part of the Villa Medici, and the attic and garage connected therewith;
and there to seize, secure, tabulate and make return thereof according to law the following property or things which have been used in the commission of a crime or which are contraband or which is property which constitutes or may be considered evidence, fruits or instrumentalities of a crime:
“cocaine, methadone, dexadrines, morphine, demarol, marijuana and a blue-green metal box approximately 18" x 6" x 8" with a combination type lock.
“Affiants say that they have probable cause to believe that the above listed things to be seized are located upon said described premises based upon the following facts:
“1. A reliable informant has advised affiants that he has seen quantities of the foregoing substances in the foregoing residence and also in the foregoing described box within (48) forty eight hours previous to the making of this affidavit.
“Affiant Steve Shults states this informant on two different occasions gave information which resulted in arrests for possession of marijuana; and later gave information for a search warrant for marijuana which resulted in an arrest and conviction.
“Affiant Bruce Shuman states that this informant has given information which has proven correct; and has on one occasion made arrangements for purchase of narcotics by an undercover agent, said purchase was actually made.
“Affiant Lewis Hoskins states that approximately five times in the past informant has given intelligence information concerning narcotics users and dealers which has proved reliable through sources at the Bureau of Narcotics and Dangerous Drugs and Drug Abuse Law Enforcement. Having known informant for three years, affiant Hoskins states that the informant has been a user and dealer in narcotics and therefore is able to recognize different kinds of narcotics as previously set forth.
“/s/ Lewis Hoskins
“/s/ Bruce Schuman
“/s/ Steve G. Shults
“Subscribed and sworn to before me this 18th day of April, 1973.
“/s/ Earle D. Jones.”
Armed with a search warrant police officers went to the defendant’s place of residence, searched his room, and discovered quantities of cocaine, morphine, methadone, amphetamines, and marijuana in a blue-green metal box. There was apparently no dispute that the box belonged to the defendant and that he had possession of illegal drugs. The defendant Deffenbaugh was arrested and charged with the five counts of possession of drugs as discussed above.
The defendant’s motion to suppress the evidence found in his home was filed on June 1, 1973. In his motion the defendant alleged that the search of his motor vehicle and his person at the police station on April 16, 1973, was an illegal search since it was carried out without a search warrant and without probable cause; that the unlawful search on April 16, 1973, provided the information which brought about the search of the defendant’s room on April 18, 1973; and that as a result thereof the search warrant and the evidence discovered thereby were tainted under the doctrine of the “fruit of the poisonous tree” and therefore the evidence obtained from the execution of the search warrant on April 18 should be suppressed. On June 14, 1973, the district court conducted an evidentiary hearing on the defendant’s motion to suppress. At this hearing there was testimony from Officer Shults in regard to the stopping and search of the defendant’s vehicle and the subsequent search of defendant’s person at the Leawood police station on April 16, 1973. Shults testified that the information which was included in the affidavit to obtain the search warrant on April 15 came from a confidential informant and was not the result of the interrogation and search of defendant Deffenbaugh on April 16. Officer Shults denied that he had any contact with the informant on April 16 and that his first conversation with the informant was on April 17. At this hearing there was also testimony from Detective Hoskins of the Johnson county sheriff’s department about the information received from the confidential informant. Similar testimony came from Officer Allen Buford of the Leawood police department who had stopped Kirk Hiatt in Missouri. Bruce Davis testified that late in the afternoon of April 16 he had suggested that the police officers should contact Kirk Hiatt in regard to the KU Medical Center robbery.
Throughout this proceeding the state refused to reveal the name of its confidential informant and the trial court did not compel the state to do so. Counsel for the defendant was obviously of the opinion that Kirk Hiatt was the informant. He subpoenaed Hiatt to appear at the hearing on the motion to suppress. When advised of his rights by the court, Hiatt requested counsel be appointed for him. When called to the witness stand Hiatt took the Fifth Amendment and refused to answer most of the questions propounded by defendant’s counsel to him. At the conclusion of this hearing the district court overruled the defendant’s motion to suppress evidence. The court made extensive findings of fact. The trial court specifically found that the search of the defendant Deffenbaugh on April 16, 1973, by Officer Shults was in violation of the defendant’s constitutional rights. The trial court further found that there was no evidence to show that the blue box containing narcotics found in the possession of the defendant on execution of the search warrant on April 18 was the identical blue box discovered in the possession of Bruce Davis on April 16 and that the affidavit for the search stated facts sufficient to show probable cause so as to justify the issuance of the search warrant by Magistrate Jones on April 18. The trial court specifically found that the information contained in the affidavit which was the basis of the search warrant issued on April 18 was from a fully and completely independent source, the confidential informant, and was not the result of information obtained from the illegal search of defendant Deffenbaugh on April 16. On the basis of these findings the district court overruled the motion to suppress. The major issues which are raised on this appeal arise from the refusal of the district court to suppress the evidence of narcotics found in defendant’s possession at his home on execution of the search warrant on April 18, 1973.
The defendant’s first point on this appeal is that the court erred in overruling the defendant’s motion to suppress the evidence obtained in the execution of the search warrant on April 18, 1973. In support of his position the defendant relies upon the “fruit of the poisonous tree doctrine”. The fruit of the poisonous tree doctrine is one facet of the exclusionary rule of evidence, which bars the admissibility in a criminal prosecution of evidence obtained in the course of unlawful searches and seizures. In that context, the fruit of the poisonous tree doctrine is held to extend the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search. When applicable, the fruit of the poisonous tree doctrine bars not only derivative physical evidence, but also derivative testimonial evidence, such as confessions and admissions obtained as a result of confronting the accused with information learned in an unlawful search, and the testimony of witnesses discovered as a result of an unlawful search. (Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 [1963]; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. Ed. 319, 40 S. Ct. 182 [1920]; and Nardone v. United States, 308 U. S. 338, 84 L. Ed. 307, 60 S. Ct. 266 [1939].) The doctrine was reoognized and applied to exclude proffered evidence in State v. Lekas, 201 Kan. 579, 442 P. 2d 11. The standard for determining whether proffered evidence is the fruit of the poisonous tree was enunciated in Wong Sun. There the United States Supreme Court stated that the fruit of the poisonous tree doctrine is inapplicable where the government learns of the evidence from an independent source or one wherein the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. It is the position of the defendant Deffenbaugh that the information obtained by the police which was the factual basis for the search warrant executed on April 18, 1973, was directly connected with and the result of the illegal search of the defendant Deffenbaugh on April 16. The state contends that there was no connection and that thg information which was the basis of the search warrant obtained on April 18 came from a completely independent source, the confidential informant. This was the issue of fact which had to be determined by the district court at the hearing on the motion to suppress.
The district court found that the affidavit and search warrant of April 18, 1973, did not emanate from the unlawful search on April 16, 1973, but from a fully and completely independent source, the confidential informant. This finding by the trial court is supported by the evidence and cannot be disturbed on this appeal. Furthermore the testimony of Kirk Hiatt, which was furnished the court by the defendant on his supplemental motion for a new trial, clearly established that it was Kirk Hiatt, then a confidential informant, who had furnished the information which resulted in the search warrant of April 18. As pointed out above Kirk Hiatt had been a paid informer and undercover agent for the Johnson county police authorities for months prior to the robbery of the KU Medical Center on April 11, 1973. At the time Hiatt called Officer Shults on April 16 at the request of police Officer Ruford, it does not appear that Hiatt knew Deffenbaugh had been searched or that the police had obtained any information from, Deffenbaugh pertaining to a blue box. It seems obvious to us that the illegal search and interrogation of the defendant Deffenbaugh by the Leawood police officers was completely independent of and had nothing to do with the flow of information from Hiatt to the police officers. Under these circumstances the evidentiary record does not support the position of the defendant Deffenbaugh that the evidence of narcotics found in defendant’s possession on April 18, 1973, was inadmissible under the fruit of the poisonous tree doctrine. We therefore, reject the defendant’s first point as being without merit.
The defendant’s next point is that the district court erred in failing to compel Kirk Hiatt to answer questions propounded by defendant’s counsel at the hearing on the motion to suppress. Hiatt was represented by counsel upon whose advice Hiatt relied in refusing to testify. Under the circumstances we oannot say that the trial court should have required Hiatt to testify against himself. We cannot see how the defendant could reasonably contend that his right of confrontation and cross-examination of witnesses guaranteed him by the Sixth and Fourteenth Amendments to the Constitution of the United States was violated. In our judgment the right of confrontation is not involved here because the state never called Hiatt to testify in its behalf against the defendant. It was the defendant Deffenbaugh who was seeking to compel Hiatt to testify. We find no error in the refusal of the trial court to compel Kirk Hiatt to testify against himself contrary to advice of counsel.
The defendant maintains that the trial court erred in failing to compel the state to disclose the name of the confidential informant at the hearing on the motion to suppress evidence. It seems clear from the record that the defendant’s counsel knew that the confidential informant was Kirk Hiatt. Furthermore, the governmental privilege against disclosure of the identity of an informer is well established and long familial to the law of evidence. K. S. A. 60-436 places a broad discretion in the trial judge to require or refuse to require the disclosure of the name of an informer. When the issue is probable cause for search, and not guilt or innocence of the defendant, the state generally is not required to disclose the identity of an informant. (State v. Robinson, 203 Kan. 304, 454 P. 2d 527.) We cannot say here that the trial court abused its discretion in refusing to compel the state to disclose the identity of the confidential informant since the issue at the hearing was probable cause for the search and not guilt or innocence of the defendant.
As his fourth point the defendant maintains that the court erred in imposing an increased sentence under K. S. A. 21-4504. Here the trial court sustained the state’s motion for an increased sentence and sentenced the defendant to concurrent sentences of three terms of six to twenty years in the state penitentiary and two terms of one year in the county jail. At the time of sentence there was evidence presented that defendant had been previously convioted of a class C felony, possession and sale of LSD. Under the circumstances we cannot say that the trial court abused its discretion in imposing the sentence which it did impose. Nor oan we say that the increased sentence here constituted cruel and unusual punishment prohibited by the Constitution of the United States.
The defendant’s final point is that the court erred in overruling his motion for a new trial based on the discovery of new evidence, the testimony of Kirk Hiatt in the Wyandotte county proceeding that he was the confidential informant who had supplied the information to the police officers. We find nothing in this testimony which would have justified the district court in granting a new trial. The testimony of Hiatt clearly showed that he was the confidential informant and had been serving as such for months prior to April of 1973. This testimony of Hiatt’s clearly showed that there was no connection between the search of defendant Deffenbaugh on April 16 and the information which was the basis of the search warrant obtained on April 18,1973.
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
Harman, C.:
This is a declaratory judgment action wherein the parties seek determination whether defendant-appellant Continental Insurance Company’s policy covers plaintiff-appellee Stanley E. Pfannenstiel, including the corresponding duty to defend him in a separate damage action. The trial court dismissed the action and this appeal ensued.
Initially, the parties and their relation to the action should be identified. United States Fidelity and Guaranty Company issued its liability policy of insurance on a vehicle owned by Connie E. Pfannenstiel, which policy covered his son, Stanley E. Pfannenstiel. Continental Insurance Company issued Clarence J. Rohr a policy covering his 1965 Ford Mustang. The policy’s omnibus clause provided liability coverage to any person using the vehicle with permission of the named insured. Gary L. Rohr is the son of Clarence J. Rohr.
On either July 14 or 15, 1972, Stanley Pfannenstiel, while driving the 1965 Ford Mustang owned by Clarence Rohr and insured by Continental, struck and injured Larry Morris. Thereafter USF & G requested Continental to take over the investigation and defense of the potential claim by Morris. Continental refused and denied coverage on the ground Stanley Pfannenstiel was operating the Rohr vehicle without the permission of its named insured.
On January 26, 1973, Larry Morris filed in the district court of Ellis county, Kansas, a tort action against Stanley Pfannenstiel claiming $746,436.20 damages as a result of the collision in July, 1972. On February 6, 1973, Morris filed an amended petition naming Clarence Rohr as an additional party defendant in the negligence action.
The present action, brought by USF & G and its two insureds, Stanley Pfannenstiel and his father, was filed February 16, 1973, in the district court of Ellis county, Kansas. Named as defendants were Continental, Gary Rohr and his father, Clarence Rohr, and Larry Morris. The plaintiffs asserted Stanley Pfannenstiel had implied permission of Clarence Rohr to operate the vehicle; that Continental should provide coverage for Morris’ claim; Continental’s coverage was primary and it should provide the defense in the Morris tort action. Continental and the Rohrs thereafter filed an answer denying that Stanley Pfannenstiel had either express or implied au thority to operate the Rohr vehicle; they requested the court to determine that Stanley Pfannenstiel was not covered under Continental’s policy and that USF & G be determined primarily and solely liable for defense of the Morris action and any judgment rendered in it.
On July 2, 1973, at a hearing before the trial court on a motion to advance the present action, the court indicated it thought a -declaratory judgment might be premature and moot and that the issue of which insurer should defend could be handled through third party practice under K. S. A. 60-214. The parties submitted briefs on the matter and thereafter the court dismissed the declaratory judgment action. In doing so it made the following findings and rulings:
“No. 1
“This is not a case for interpretation of written instruments. The written instruments (insurance policies) are clear in their meaning and there is no dispute of their meaning.
“No. 2
“This is a case of asking trial of a factual issue, namely whether the driver of an automobile had authority or permission, expressed or implied, by the owner thereof at the time of a specific automobile collision, which is the subject of another action in this court, namely case No. 15,514, wherein Larry Morris (defendant herein) is plaintiff and Stanley E. Pfannenstiel and Clarence J. Rohr (defendants herein) are defendants.
“No. 3
“The factual issue referred to above in finding 2 is one of the factual issues in case No. 15,514 as shown by the pleadings therein.
“No. 4
“The Kansas decisions have upheld the position that bodily injury and property damage liability in automobile insurance policies means substantially indemnity liability for judgments; and insurance companies are zealous in their contention that they are legally immune from suit until after judgment has been obtained against their policy holders.
“No. 5
“The Court finds that Stanley E. Pfannenstiel, plaintiff herein and defendant in case No. 15,514, as well as Clarence J. Rohr, defendant in both actions, have complete statutory remedy in third party practice provided by K. S. A. 60-214.
“No. 6
“The factual issue of authority or permission of a driver at the time of automobile collision in case No. 15,514, should not be made the subject of a separate action for declaratory judgment, namely this case No. 15,530.
“No. 7
“The question of separation of issues for trial or waiver of jury for trial of specific issues in case No. 15,514, should be submitted to the court in that case for the court’s consideration.
“No. 8
“The Court finds that this case, No. 15,530, should be dismissed because there is already a case pending in this court, namely No. 15,514, involving the same subject matter and the same personal parties, and wherein the corporate parties may be brought into the action by third party practice provided in K. S. A. 60-214.”
Continental and the two Rohrs have appealed from the judgment dismissing the declaratory action. They contend the trial court erred in concluding Clarence Rohr possesses a statutory remedy under third party practice to litigate the coverage and defense issues involved here and further in dismissing the present action because a prior action was pending, in the same court involving the same subject matter and the same personal parties and wherein the corporate parties’ rights might be litigated under third party practice.
Appellees USF & G, the two Pfannenstiels and Larry Morris have filed no separate brief. Instead they have requested and received permission to join in and adopt the brief filed by appellants. Their oral argument here has generally coincided with appellants’ position. Appellee Morris’ counsel has indicated throughout the course of this action that he believes quick settlement will ensue in the tort action once the declaratory judgment action is decided. Although the parties’ positions here are thus one-sided our concern is not only that justice be done between them but also that due regard be given to precedent, past and for the future, under the particular circumstances.
One objective of the declaratory judgment action was to determine whether under its policy Continental had the duty to defend Stanley Pfannenstiel as an additional insured under its omnibus clause. This court has long recognized that an insurer is not bound to defend its insured in an action brought wholly outside any coverage obligations assumed in the policy (Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P. 2d 403) however, liability coverage and the duty to defend under an automobile policy not infrequently depend on the facts and circumstances under which a particular vehicle has been operated (see, e. g., Gangel v. Benson, 215 Kan. 118, 523 P. 2d 330). And an insurer must consider any facts brought to its attention, or which it could reasonably discover, in determining whether a “potential of liability” exists under its policy so that it has a duty to defend (Spruill Motors, Inc. v. Universal Underwriters Ins. Co., supra).
Statutory authority for declaratory judgment actions, if any be needed, has long existed in Kansas. K. S. A. 60-1701 provides:
“In cases of actual controversy, courts of record within, the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and. no action or proceedings shall be open to objection on the ground that a judgment or order merely declaratory of right is the only relief requested.
K. S. A. 60-257 and 60-1702 recognize the right to trial by jury where such actions involve the determination of issues of fact.
Appellants argue that in this case two insurers are in good faith seeking to determine their obligation to provide a defense in a tort action against an individual who may be insured by them and that the trial court has arbitrarily and unreasonably frustrated their attempt and has foreclosed any possibility of settlement in the damage action. They point out neither insurer was a party to the tort action and they assert a third party petition to determine whether either has an obligation to defend is unauthorized and would be improper.
The use of a declaratory judgment action, generally at the instance of the insurer prior to the commencement of a tort action, to determine the insurers liability with respect to particular matters of coverage is well known. Such actions have been used primarily to adjudioate questions of law, such as interpretation of policy clauses, although actions involving issues of fact are not precluded so long as they are merely incidental to the determination of the main issue (see 5 Vernons K. S. A. Code of Civil Procedure, § 60-1701, p. 488). However, there is no absolute right to maintain such an action. The rule has been that the granting of relief by way of declaratory judgment rests largely in the trial court’s discretion (22 Am. Jur. 2d, Declaratory Judgments, § 9; 10 Wright & Miller, Federal Practice and Procedure: Civil §2759). This principle applies as well where the issue is the existence of liability insurance coverage or the duty to defend (20 Appleman, Insurance Law and Practice, § 11351; 18 Couch on Insurance 2d §74: 130). Appellants emphasize that K. S. A. 60-257 provides that the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. A similar provision is contained in the federal rules of civil procedure, respecting which, in 10 Wright and Miller, supra, § 2758, it is stated:
“Thus the general principle is, as stated in the rule, that the existence of another adequate remedy does not bar a declaratory judgment. The court, however, in the exercise of the discretion that it always has in determining whether to give a declaratory judgment, properly may refuse declaratory relief if the alternative remedy is better or more effective.
“The same principles control if there is a pending action raising some of the questions posed by the declaratory action. The pendency of the other suit does not bar declaratory relief if the issues in the declaratory action will not necessarily be determined in tire other suit. Even if the parties and the subject matter are the same in both actions, the pendency of a prior action in another federal district court does not necessarily require dismissal of the declaratory judgment action. But the declaratory action may be dismissed or stayed if the other suit will satisfactorily resolve the controversy between the parties.” (pp. 770-773.)
The trial court here based its dismissal upon three circumstances: The parties sought resolution of a fact issue; the same fact issue was involved in a pending action, and the insurers could be impleaded in the pending action wherein the issue could be resolved. We have precedent as to each. In Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380 P. 2d 413, a case where the first circumstance above was involved, we held:
“While a declaratory judgment action may be maintained although it involves the determination of a disputed question of fact, it may not be used where a question of fact is the main issue or where the object of the action is to try such fact as a determinative issue.” (Syl. ¶ 2.)
Although the foregoing may be diluted by the subsequent direction in 60-257 that the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate, we think that ordinarily declaratory judgment action should not be used where a question of fact is the main issue or where the object of the action is to try such fact as a determinative issue.
Respecting the second circumstance, we note State Automobile & Casualty Underwriters v. Gardiner, 189 Kan. 544, 370 P. 2d 91, a declaratory judgment action brought after another suit involving the same issue had been filed. There the insurer’s liability policy covered M’s trucks and persons using them with M’s permission. G was involved in a collision while using one of the trucks. As a result tort actions were filed against G and M. The insurer sought declaratory judgment that G did not have M’s permission to drive the truck; therefore the insurer had no duty to defend G nor was it liable to the plaintiffs in the tort actions. This court reversed, holding:
“The record is examined in an appeal in a declaratory judgment action where the face of the petition shows the controversy sought to be determined by plaintiff (insurer) actually is an attempt to deny liability under an automobile insurance policy, and where the record includes exhibits in the form of petitions in four separate and independent tort actions against defendant growing out of the same accident, but in which plaintiff here is not a party, it becomes apparent that for this court to determine the controversy for which this declaratory judgment action was brought would predetermine a ve'y cogent element of the above-mentioned separate tort actions. Such is not the purpose for seeking relief by declaratory judgment, and it is held, the trial court erred in entertaining the action.” (Syl.)
The third reason for dismissal given by the trial court was that the insurers could be impleaded in the tort action and the issue of the duty to provide a defense and coverage could be litigated in that action. Despite appellants’ contentions to the contrary we must agree. Although its propriety was not challenged such impleader in a tort action of two contesting insurers occurred in a comparable factual posture in Qangel v. Benson, supra. Our third party practice (K. S. A. 1973 Supp. 60-214) is modeled after federal rule 14. In 6 Wright and Miller, supi'a, § 1449, the following appears:
“May a defendant in a negligence action implead his liability insurer under Rule 14? This question, which has been much discussed, is in fact not a difficult one to analyze. Both on the basis of principle and authority it is clear that the answer must be in the affirmative if the conditions set forth in Rule 14 have been satisfied. It is worthy of some discussion, however, because it is a very striking example of how Rule 14 works.
“At the outset it should be noted that the question of impleading an insurer pan arise only in that limited class of cases in which the insurer has disclaimed liability and refused to defend on behalf of the insured. . . .
“When the insurer disclaims liability and refuses to defend on behalf of the insured, the federal courts, as well as state courts with procedural rules similar to the federal rules, uniformly recognize the propriety of impleader. These decisions have been supported by numerous commentators, including Judge Charles E. Clark, the principal draftsman of the federal rules. However, two federal district courts have refused to allow impleader under these circumstances as a matter of discretion. In both instances the court noted that in tire case before it little would be gained by way of economy from the-joinder of the claims, and that impleader might well be prejudicial to the original action by causing additional delay and confusion if the unrelated matters were litigated together. The better approach might be to allow impleader as a matter of course in this situation and then, with an eye toward effective judicial administration and fairness to the parties, determine whether a severance or separate trials should be ordered as is expressly authorized by Rule 14(a).” (pp. 267-269.)
Illustrative of the cases elsewhere for present purposes is Baker v. Moors, 51 F. R. D. 507 (W. D. Ky., 1971). There an insurer denied coverage under an omnibus clause which stated that any person using the described automobile with permission of the insured was covered. The driver of the vehicle at the time of the accident filed a third party complaint against the insurer to have the issue of coverage determined in the tort action filed against him. The court ruled impleader was proper, stating:
“It is generally agreed, and conceded by [the insurer], that where an insurer refuses to undertake the defense of its insured, the insured may implead the insurer in the tort action and have the issue of policy coverage decided in the same case as the issue of tort liability. The only difference between the circumstances of this case and the perhaps more normal or frequent case is that Moors is not the named insured, but that is not to say that Moors is expressly excluded from coverage under the policy.
“. . . The purpose of Rule 14, which is to be liberally construed, is to dispose of an entire subject matter in one economic and expeditious action. If it becomes apparent that the ancillary controversy in this action will inordinately complicate and prejudice the original claims, separate trials may be ordered under Rule 42(b) of the Federal Rules of Procedure.” (pp. 509-510.)
Here in the declaratory judgment action the parties sought resolution solely of a question of fact. That question, whether Stanley Pfannenstiel had Clarence Rohr’s permission to drive the Rohr vehicle at the critical time, was a principal issue in the previously filed tort action. The trial court was concerned with just, expeditious and economic disposal of the claims arising from the injury to Larry Morris. Needless to say, litigation should not be tried piecemeal where it can judiciously be avoided. More than a single appeal in the same litigation is generally not desirable. Third party practice is aimed at the settlement in a single lawsuit of as many aspects of a controversy as possible. It is designed to avoid multiplicity-of actions and to assure consistency of results in the determination of those issues which are common to the main claim and the third party claims (see James, Civil Procedures, § 10.20). Here, because separate suits were filed, the trial court was faced with the possibility of two separate appeals as a matter of right with consequent delay (that the court’s ruling may ultimately result in two appeals prior to termination of the entire litigation is not controlling either for disposal or precedential purposes). Joinder of the two insurers by third party practice with separation of issues for trial, as the trial court had in mind, would not be unjust to anyone and should result in a more economical and expeditious disposition than full-blown trial in two separate actions. Application for such joinder by the defendants in the tort action is, of course, not mandatory upon them. There was a reasonable basis for the trial court’s exercise of its discretion in dismissing the declaratory judgment as it did.
The judgment is affirmed.
APPROVED BY THE COURT.
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Per Curiam:
The plaintiffs sued to recover on an indebtedness represented by a promissory note in the amount of $1,860. In their petition, plaintiffs admitted payments had been made and that they did not know the amount of the unpaid balance. The plaintiffs alledged that the defendants knew the balance due on the promissory note. Defendants admitted liability for $84.35. There was testimony on both sides, but no evidence on the actual number of payments that had been made, the parties asserting ignorance on this point. There being nothing before the court upon which to> base a finding other than the defendants’ admission of liability for $84.35, the court rendered judgment for that amount, with interest and costs against the defendants.
On appeal, plaintiffs claim judgment should have been for the full amount of the original debt, as evidenced by the note, and that the burden was upon the defendants to show payment.
Although the note was attached to the petition the action was not on the note, but was for an undetermined balance due under an allegation that payments had been made, thus destroying the prima facie value of the note as evidence of the present indebtedness. It was up to the plaintiffs to introduce some evidence to establish the amount of the “balance” they claimed. This they did not do.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by John A. LaRue (defendant-appellant) from an order of the Franklin County District Court dissolving his marriage with Nina Davis LaRue (plaintiff-appellee) and dividing their property.
The appellant contends: (1) There was no substantial evidence to support the trial court’s finding that the parties were incompatible; (2) the trial court erred in giving credence to the appellee’s testimony in view of her demeanor; and (3) the property settlement award granted the appellee is not supported by substantial evidence.
Nina Davis LaRue and John A. LaRue were married February 12, 1945. At the time of their marriage Nina was a 56-year-old widow and John was 39. The parties were living in Carthage, Missouri, where Nina managed a hotel and John worked as a projectionist in the hotel theater.
In 1947, the couple moved onto a 210 acre farm northeast of Ottawa, Kansas, owned by Nina. She inherited the farm from her previous husband. The parties farmed the tillable land and raised cattle.
On May 15, 1973, John became ill, and Nina called an ambulance to have him taken to a hospital where he underwent surgery. Upon release from the hospital, John was not permitted by Nina to return to their home. John initially stayed in a motel and then moved into a small boarding home.
On July 6, 1973, Nina sued for a divorce alleging irreconcilable incompatibility. John answered with a general denial, and filed a cross-petition in which he also sought a divorce on the ground of irreconcilable incompatibility. John abandoned his claim for divorce at the trial.
The appellant first asserts the trial court’s conclusion that the parties were incompatible is unsupported by the evidence. It is argued the record is void of any showing of temperament that represents the destruction of the parties’ marital relationship and the appellee’s testimony does not establish an irremediable rift or discord.
The only testimony included in the record on appeal concerning the parties’ marital relationship is that of the appellee. She was asked by her attorney why, after 28 or 29 years of marriage, all of a sudden when the appellant went to the hospital, she filed for a divorce. The appellee replied as follows:
“. . . Cause he hadn’t done anything for so long and I got tired of keeping him and cooking for him, and cooking fish and hamburgers. He couldn’t eat anything else and I just decided that I didn’t want to do it any longer, I couldn’t do it any longer. . . .”
The appellee further stated:
“. . . I was so sick and tired of looking at him that I hated him and then I said when I — they took him out of that door, when they took him onto that little back doorstep and I made up my mind this is the last time I want to see you, I am through.”
The appellee also complained that the appellant never really did any of the farm work because he was “too damn lazy”, and on at least one occasion the appellant refused to assist with the dehorning, branding, clamping of the cattle and the loading for market. The appellee claimed the cattle belonged to her and she had raised them. Furthermore, according to the appellee, the appellant tried to get money from her all the time and he used to get into her pocketbook and take money before she stopped him.
Also indicative of state the parties’ marital relationship was the appellee’s repeated reference to the appellant as “that thing over there”, and descriptions of the appellant such as “dumb” and “lazy”.
The appellant argues that the foregoing evidence falls short of establishing the couples’ incompatibility.
Recently, this court had occasion to consider incompatibility as a ground for divorce in Berry v. Berry, 215 Kan. 47, 523 P. 2d 342. There it was said incompatibility may be broadly defined as such a deep and irreconcilable conflict in personalities or temperaments of the parties as makes it impossible for them to continue a normal marital relationship. The conflict of personalities and dispositions must be so deep as to be irreconcilable and irremediable.
It is also recognized in Berry, supra, that incompatibility does not refer to petty quarrels and minor bickerings which are merely evidence of normal human frailty, but refers to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital • relationship.
While a divorce should not be granted perfunctorily or merely upon a party’s charge of incompatibility without real proof of the fact, undoubtedly the legislature in supplying the additional ground of incompatibility intended to liberalize our divorce laws by broadening the basis upon which it may be granted. (Berry v. Berry, supra.)
In our opinion the appellee’s testimony sufficiently supported the trial court’s finding of incompatibility. Her testimony clearly demonstrates a long-standing, deep-seated dispute between the parties as to work load responsibilities on the farm and financial matters generally. The appellee quite evidently harbors nothing but hostility and resentment for the appellant. It is inconceivable that appellant’s temperament can be compatible with the appellee’s, if hers is incompatible with his. (Burch v. Burch, 195 F. 2d 799 [3rd Cir. 1952].)
The appellant contends the trial court abused its discretion by not requiring corroboration of the appellee’s testimony. The appellant states if he is “correct in his contention that there is no evidence on record showing the parties incompatible, the trial court abused its discretion by not requiring corroborating testimony to fill the void of the Appellee’s direct testimony.”
Actually, the appellant seems to be reasserting his argument that there is insufficient evidence to support the finding of incompatibility. Having already concluded that sufficient testimony exists, this claim has no merit. It was recognized in Berry v. Berry, supra, that our law is now changed so that either party may, in the trial court’s discretion, obtain a decree of divorce or separate maintenance upon the uncorroborated testimony of either or both of the parties. (K. S. A. 1974 Supp. 60-1609 [d].) The record does not disclose any abuse of the exercise of the power of discretion in the instant case.
The appellant contends the trial court erred in the weight and credibility given the appellee’s testimony because of her demeanor as shown by the record. It is readily apparent from the record the appellee, 85 years of age at the time of trial, was uncooperative and refused to testify as to the disposition of certain assets; she refused to abide by the court’s order restraining her from disposing of liquid assets; she was evasive, and rude to the court and counsel. However, there is no indication in the record the trial court was deprived of its ability to weigh the evidence and determine this case by reason of the appellee’s demeanor during the trial. The point is sufficiently answered by the long standing rule that the district court as the trier of facts in a case, is the sole judge of the credibility of the witnesses and of the weight to be given the evidence presented at the trial. (Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215; and Saint v. Saint, 196 Kan. 330, 411 P. 2d 683.)
Did the trial court err in dividing the parties’ property?
There is no dispute between the parties as to the factual findings of the court. The journal entry discloses after the parties’ marriage in 1945, John entered the military service and was discharged on November 2, 1946, when he became 40 years of age. During this time John’s allotment was approximately $30.00 per month. Upon release John drew veteran’s pay of approximately $20.00 per week until June 13, 1947. Then for two years in 1948 and 1949 he drew $87.50 veteran’s training pay.
Nina owned a 210-acre farm northeast of Ottawa which was inherited from Mr. Davis, her first husband who died in 1935. In 1947, they moved to the farm. She states that at the time of the marriage she had “plenty” of money in the bank and bonds “and bought a new car every year.” However, she either doesn’t remember or refuses to state what her financial status was at that time.
A tractor had been purchased in 1947 while the parties still lived in Missouri. John started farming in 1948 and they bought their first cattle that year. They have tried to keep about twenty stock cows and raise the calves past the weaning age. Except for two years, about 1949 and 1950, when appellant was ill and underwent surgery, he farmed all of the 100 acres of farm ground until about 1957. He continued to farm part of it as late as 1965. His outside work was generally limited to hauling grain for the neighbors in their 1946 International truck.
When the parties moved to the farm, they lived in a log cabin. John built new fences on part of the farm. He quarried the rock for the construction of a 20' x 60' barn. Later a house 40' x 5& was built partially with funds appellant received from the settlement of his mother’s estate in the amount of $7,269.46. A mortgage was placed on the farm in October 1947 apparently to complete the construction of the home and purchase of machinery, in the amount of $5,300. On January 15, 1954, it was consolidated with an obliga tion at the Production Credit Association and increased to $8,000.
In 1967, at age 62, John began drawing Social Security with a lump sum payment of $683.30. His benefits started at $60 per month and are now $85.20. He also receives monthly V. A. benefits of $127. In 1955, Nina began drawing Social Security with a lump sum payment of $777. Her benefits started at $51.80 and are now $101.00 per month.
There remains 150 to 155 acres of the farm. Twenty-five acres were taken in 1957 for 1-35 at a compensation of $12,300 plus a few hundred dollars for some additional burdens on the remaining tract. This was used to remove the mortgage from the farm and to purchase a 1957 Chrysler for $4,300 which the parties still own.
On May 2, 1973, a preliminary contract was signed by Nina and by Joe Hiatt, a neighbor, for the purchase by the latter of the “landlocked” tract of “33 acres more or less” lying south of 1-35 for $4,500 with $500 being paid as “good faith deposit” to the real estate agent. The real estate contract was signed May 3, 1973, by Hiatt and his brother, both single, and Nina and John. At the outset of the trial of this case, the court on December 14 ruled that the agreement constituted a valid contract and adjudged the Hiatts to be the owners thereof upon payment of the balance of the purchase price. The Hiatts have since paid in the balance of $4,000 to apply thereon. Also, the agent has paid in $230, the balance of $500 earnest money after deducting a $270 commission.
On May 15, 1973, John entered the hospital and underwent surgery. When Nina did not permit him to return to the farm, John eventually moved into a small boarding home where he is currently receiving board and room within the total of his Social Security and V. A. benefits. He paid for the ambulance in cash, $22.50. He purchases approximately $5.50 worth of medicine each week. His unpaid medical and hospital bills amount to $1,581.50.
In May or early June, after John entered the hospital, Nina sold some $5,200 worth of cattle. While she refused to testify regarding the disposition of the proceeds, she opened a savings account in Peoples National Bank on June 7, 1973, with a deposit of $5,317.28.
Withdrawals were subsequently made as follows:
October 3, 1973 .......................... $1,000.00
November 3, 1973, to checking account 1,894.62
December 14,1973, to checking account ... 1,000.00
At the time of trial December 14, 1973, Nina had in her checking account in Peoples National Bank (opened July 5, 1973) the amount of $1,743.29. This account was subsequently, about December 27, 1973, withdrawn and closed by Nina.
The court found that the remaining portion of the real estate is valued at $400 to $500 per acre, or at least $62,000. The court further found 'the personal property owned by the parties was valued at $24,621.38. Included in this figure was the amount of $1,700 withdrawn by Nina on December 27, 1973, from the Peoples National Bank checking account and $2,999.90 in a savings account. At the time of the trial the com crop growing on the farm had not been harvested, consequently its value was undetermined.
The outstanding obligations of the parties amounted to $4,660.25. This figure included, among other things, the 1973 real estate taxes, the appellant’s medical expense, and the balance due on attorneys’ fees for three attorneys.
In the original journal entry, the trial court awarded the farm and all other assets to Nina except that John was granted a judgment against Nina in the amount of $10,000, “being approximately one-half of the [personal property] assets less the obligations as determined in the findings.” John also received one-half of the landlord’s share of the corn to be harvested.
The journal entry also inoluded a memorandum opinion, which offers some insight into the court’s reasoning in dividing the property. It states:
“It is clear that at the time of the marriage twenty-nine years ago, plaintiff owned the 210-acre farm and, no doubt had other assets. Also, until they moved to the farm in 1948, she continued her employment managing a hotel in Carthage, Missouri. The defendant’s inheritance of $7,269.46 went into the common venture of the parties, primarily the construction of the residence on the farm. On the other hand, the proceeds from the depletion of the farm from 210 to 155 acres by the taking for 1-35 in 1957 and the recent sale of 33 acres south of 1-35 has inured to the benefit of both parties. An award to defendant of one-half of the assets other than the real estate will not give him any benefit from improvements of the real estate to which he has contributed physically, as well as financially, and nor of the increase in value thereof over twenty-nine years which has been substantial, it does give him a portion of the assets accumulated during the marriage. While defendant apparently was not a vigorous breadwinner, he has put a reasonable effort into the marriage in farming, caring for the livestock and in improvements, including buildings and fences.”
Subsequently, after a hearing on the appellant’s motion for new trial or to amend the findings of fact, memorandum of opinion and conclusions of law, the court amended the award to allow the appellant an additional $800, due to the inadvertent omission of the equity owned by the parties in the Ottawa Cooperative Association, and also some expenditures by the appellee for an attorney prior to commencing this action on a matter not disclosed by the record.
The thrust .of the appellant’s argument as to the property division is that the trial court erred by looking only to the source of the real property and granting it to the appellee, where the house and barn were built in part from the appellant’s $7,269.46 investment (the inheritance from his mother) and his physical labors. It is argued that under K. S. A. 1974 Supp. 60-1610 (b) a court is directed to disregard the source of all income and to place all the parties’ assets into a hodgepodge to be equitably and reasonably divided. The appellant contends the trial court abused the exercise of its power of discretion in granting the real property to the appellee and in dividing only the personal property between the parties.
The appellant further argues that if his $7,269.46 investment on the house had been invested elsewhere at 3% simple interest the earnings would have been $6,324.32 for a $13,593.78 total of the principal and earnings, which exceeds his judgment by $2,793.78. It is asserted by the appellant that the award to him is approximately 10% of the net assets of the parties, which is so inadequate and inequitable as to constitute an abuse of the trial court’s discretion in dividing the property.
The statute governing the trial court as to the division of property in divorce cases is K. S. A. 1974 Supp. 60-1610 (b). It reads:
“The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint efforts, in a just and reasonable manner, either by a division of the property in kind, or by setting the same or a part thereof over to one of the spouses and requiring either to pay such sum as may be just and proper, or by ordering a sale of the same under such conditions as the court may prescribe and dividing the proceeds of such sale.”
The foregoing section was adopted by the legislature in 1963 (L. 1963, ch. 303) and brought about a change in the prior law.
Under the foregoing section the district court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action, and its exercise of that discretion will not be disturbed on appeal in the absence of a showing of a clear abuse. (Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, Syl. ¶ 1.) One seeking to establish an abuse of discretion assumes a heavy burden, for “If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.” (Stayton v. Stayton, supra, p. 562.) On the other hand, “The discretion vested in the trial court must be exeroised in whole-hearted good faith and be guided by the statutes, not by the court’s private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is inequitable, it will be set aside.” (St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206, Syl. ¶ 6; and Almquist v. Almquist, 214 Kan. 788, 522 P. 2d 383.)
In commenting upon the changes in our divorce law wrought by the 1963 enactment of that statute in Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478, the court said:
“The significant change in the law regarding division of property is that the court is no longer required to set aside to the wife the separate property which she brought to the marriage or acquired with her own funds after the marriage. The court now is given authority to divide all of the property owned by the parties, regardless of the source or manner in which acquired, in a just and reasonable manner.” (p. 459.)
The foregoing section of the statute was discussed and applied in St. Clair v. St. Clair, supra, and in the more recent case of Almquist v. Almquist, supra.
Under our decisions the trial court in divorce cases under the foregoing statute is required to make a just and reasonable division of all the property of the parties between them, and in determining a just and reasonable division the trial court should take into consideration the following factors: (1) The ages of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source and manner of acquisition of the property; (6) family ties and obligations; (7) the question of fault; and (8) the alimony allowance or lack thereof. (Almquist v. Almquist, supra, and authorities cited therein.) In Almquist the court merely added consideration of “lack of alimony” to the factors to be given weight as previously announced in Zeller v. Zeller, supra, and Saint v. Saint, 196 Kan. 330, 411 P. 2d 683.
Nowhere in any of our decisions is it suggested that a division of all the property of the parties must be an equal division in order to be just and reasonable, as suggested in the appellant’s brief.
In Almquist the majority of the court found that the trial court’s property settlement order was based upon the “manner of acquisi tion” of a parcel of real estate, which it considered to be the sole and controlling factor in determining the disposition of that property. The court there held the trial court’s property settlement fell short of the “just and reasonable requirement of the statute” and that such failure constituted an abuse of discretion. The opinion reflects concern for a consideration of the combination of alimony and property settlement awards in determining “just and reasonable” results. In the opinion the court said:
“We do not mean to suggest that the line between alimony and property division drawn in Drummond [209 Kan. 86, 495 P. 2d 994] and Beck [208 Kan. 148, 490 P. 2d 628] should be blurred. We do think that neither can be fixed by itself, without giving appropriate consideration to the other. Mrs. Almquist was entitled to expect from the court that appropriate weight be given to all the factors mentioned in such cases as Zeller and Saint, and also to the lack of alimony. While she was optimistic about her prospects of self-support, her after-tax earning from all sources for the first nine months of 1972 were only about $200 per month. About half of that came from her real estate work, and the balance from her cooking. Without the homestead to reside in, merely housing herself in Salina will make serious inroads into her income. It seems apparent that in order to survive she will be required to dip into her share of the property. This factor should, we think, have weighed more heavily in the balancing of the parties’ over all financial position.” (pp. 793, 794.)
In the instant case there is no suggestion in the appellant’s brief the findings made by the trial court were not supported by the evidence. The appellant’s argument proceeds on minor distinctions in values or suggested omissions from the court’s findings. The appellant suggests that a valuation of $500 per acre should have been assigned to the remaining 155 acres of the farm which the appellee inherited from her first husband. The trial court found the real estate should have been valued at $400 to $500 per acre, or at least $62,000. The appellant contends the court failed to account for $5,200, the proceeds of cattle sold in 1973, whereas, the trial court found that $5,200 worth of cattle were sold, and the court associated that sale with the opening of a savings account in the Peoples National Bank on June 7, 1973, with a deposit of $5,317.28. The appellant suggests the trial court considered only the property acquired by the joint efforts of the parties, owned or acquired after the date of the marriage, and contrary to 60-1610 (b), supra. This suggestion disregards findings made by the trial court wherein the court notes that 25 acres of the farm were taken by condemnation in 1957, and that more than $12,000 received for this property was used to remove the mortgage on the farm and purchase a 1957 Chrysler automobile. The trial court also found a sale of approximately 33 acres of the farm produced $4,500 which went into the assets subject to division by the court.
It should be noted that only 100 acres of the original 210 acres in the farm were tillable, but the record does not reflect how many of the 155 remaining acres were tillable.
A careful review of the record indicates the trial court gave consideration to the foregoing enumerated factors in determining a just and reasonable division of the property. Among these factors the trial court gave consideration to the present and future earning capacities of the parties, and their source of livelihood. That the trial court considered the time, source and manner of acquisition of the property of the parties is adequately reflected throughout its findings of fact.
The matter of obligations were clearly and elaborately considered by the trial court, and the assets in the possession of the appellee were charged with responsibility for meeting all of those obligations. The trial court even reconsidered this matter after hearing the motion for a new trial, and specifically charged the appellee with obligations that may have been considered her separate obligations, although the appellant’s individual obligations relative to medical treatment were made a responsibility of the appellee by the trial court.
The only reference to alimony in the record pertains to the appellant’s motion for temporary alimony and the trial court’s order of August 24, 1973, which continued indefinitely the appellant’s motion for temporary alimony, but required the appellee to pay at that time $300 to be applied on the appellant’s attorneys fees.
. The 155 acre farm provided a home for the appellee and it provided her only source of income, other than her meager social security benefits of $101 per month at the time of trial. She was 85 years of age, seventeen years older than the appellant. The appellant had social security benefits and a V. A. pension amounting to a total of $212 per month at the time of trial.
The trial court reviewed and considered all of the factors which this court has indicated as elements to be considered in determining a just and reasonable property settlement. Its action was not arbitrary or unreasonable. The record discloses substantial evidence to support the district court’s findings, conclusions and a judgment.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is a rear end collision case in which the jury rendered a verdict for the defendant (Mary M. Luthy) and plaintiff (William E. Zell) has appealed. The ultimate question presented is whether the giving of an instruction on the doctrine of sudden emergency amounted to prejudicial error requiring a reversal. Plaintiff also contends the verdict was contrary to the evidence.
At approximately 4:45 p. m. on the afternoon of February 13, 1970, plaintiff was driving his automobile south on Nall Avenue toward the intersection of 83rd Street in Prairie Village. At the point in question Nall Avenue is a normal two-way street with a ditch on either side and no curb and is approximately twenty-eight feet in width. The posted speed limit is thirty-five miles per hour. At a point about 600 feet north of 83rd Street there is a crest of a small hill with a decending grade of 'twenty to' twenty-five degrees incline as Nall Avenue runs south to 83rd Street. Plaintiff testified that as he came over the crest, heading south on Nall, he was traveling about twenty miles per hour; he started to slow his automobile as approached the stop sign on Nall at the 83rd Street intersection. As to the condition of Nall Avenue plaintiff testified:
“I consider the place on the road where the accident happened to be somewhat dangerous. It was slick, as was the whole area from the crest down to the base. I had been sliding somewhat from the time I went over the crest down to the point where the accident happened. I would not use the word fishtailing, although my car may have slid slightly. I was having a slight difficulty in coming to a stop, but my vehicle was definitely never out of control. Rather, I had full control although I had previously slid slightly.”
Plaintiff further testified that he had new snow tires on his automobile; that he had slowed his speed to approximately three to five miles per hour at the time of impact; and that he had not yet reached the stop sign on Nall Avenue preceding the 83rd Street intersection. His first notice of the accident was when defendant blew her automobile hom, which occurred almost simultaneously with the impact. The impact spun plaintiff’s automobile around so that it was facing in a northerly direction on Nall Avenue and came to resit about forty to fifty feet north of the 83rd Street intersection.
At the time of the accident defendant was enroute home from her place of employment. She testified that it had started to snow before she left work about 4:30 p. m.; and that she was driving cautiously because of the snow. Her automobile was equipped with Uniroyal Master snow tires and was in good mechanical condition. She did not encounter any slick places on her route until she reached the scene of the accident. Defendant testified that she had stopped at four previous stop signs along the way and had encountered no difficulty, although there was snow on the pavement. She had traveled the same route many times since it was her normal way home from work, and had also traveled the street many times when it was snowing. Defendant’s testimony describing the circumstances preceding the collision is narrated as follows:
“As I came over the top of the crest of Nall, I noticed Mr. Zell’s car for the first time. You really can’t see 83rd and Nall until you reach this crest. To the best of my judgment, I was going 20 miles per hour when I reached the crest of the hill, and I was being cautious because it was snowing. I saw Mr. Zell’s car zigzagging in front of me and I realized at that moment that it was slick up ahead. By zigzagging, I mean that it was just sliding toward the intersection, although it remained entirely within its own lane. Realizing that it was slick ahead, I tried to stop and could not, so' T just leaned on the horn rim and prayed.’ I put the brake on and I guess I kept it on. My car did slow some before I slid into the back of Mr. Zell’s car, which was still moving at the time. After impact, my car went sideways and into a little depression on the side of the street. . . .”
Officer Milan VanHouton, of the Prairie Village Police Departments;, arrived at the scene soon after the accident. He testified it was snowing and that the street was slick at the scene of the accident. He related defendant’s statement to him—
. . She said that as both vehicles attempted to stop for the four-way stop, she lost traction on her rear wheels and struck Mr. Zell in the rear end.
There is no testimony from Officer VanHouton that he gave either of the parties a citation for a traffic violation.
Over objection of plaintiff’s counsel, the trial court submitted PIK [Civil] 8.81 relating to the sudden emergency doctrine. The instruction reads:
“When one is suddenly confronted by an emergency not of his own making, consisting of circumstances that call for immediate, instinctive action, he is not required to exercise the same degree of care that he would be required to exercise had he time for reflection. Under such circumstances he is required to exercise such care as an ordinary 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 fault or did not use ordinary care to avoid it.”
Plaintiff strenuously argues that there was no emergency and in the alternative if there was defendant created it and, therefore, it was prejudicial error to submit the instruction.
Defendant says that the emergency which confronted her was a slick street and she argues that the emergency was “sudden” because until the time of the accident she had not encountered any icy or slippery conditions sufficient to cause her to slide and, therefore, she had no reason to anticipate the slick spot that caused the accident.
Although the “emergency” instruction cannot be said to be erroneous as an abstract proposition of law (Mesecher v. Cropp, 213 Kan. 695, 518 P. 2d 504), we have questioned the practice of giving it in several recent cases. Even though not confronted with a specific claim of error based on giving or failing to give the instruction in Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770, the reasoning expressed therein serves to explain the court’s view concerning application of the doctrine in a negligence action. In Lawrence the question arose by appeal from a summary judgment for defendant rendered on the basis that discovery depositions disclosed undisputed facts establishing that defendant had acted in a sudden emergency and, therefore, was not negligent as a matter of law. In reversing the judgment below we had this to say:
“The doctrine of sudden emergency cannot be regarded as something apart from and unrelated to the fundamental rule that everyone is under a duty to exercise ordinary care under the circumstances to avoid injury to others. A claim of emergency is but a denial of negligence. Application of the doctrine is really application of the test for negligence couched in language tailored to a peculiar situation. The fact that a person is confronted with a sudden emergency not caused by his own tortious conduct which requires rapid decision is merely a factor in determining the reasonable character of his choice of action and whether his conduct constituted negligence. . . .” (p. 303.)
Lawrence v. Deemy, supra, was followed by our decision in Kline v. Emmele, 204 Kan. 629, 465 P. 2d 970, wherein we elaborated on the reasoning of Lawrence and held:
“A defense of sudden emergency is but a denial of negligence and where negligence, burden of proof and proximate cause have been properly defined in the instructions, whether an instruction should be given on sudden emergency rests in the sound discretion of the trial court.” (Syl. ¶ 2.)
In the Kline opinion it was further stated:
“We are impressed with the suggestion that where there is definite evidence of negligence on the part of the defendant, the weight of such evidence might be entirely destroyed by an instruction of sudden emergency. Such an instruction might well cause the jury to lose sight of the negligence which caused the emergency.” (p. 632.)
Kline was followed by Mesecher v. Cropp, supra, wherein we held:
“An instruction on ‘sudden emergency’ should not be given where there is definite evidence of negligence on the part of the defendant and such an instruction might well cause the jury to lose sight of the negligence which caused the emergency.” (Syl. ¶ 7.)
Following our decision in Mesecher the PIK Committee in its 1975 supplement recommended that no instruction be given on the doctrine of sudden emergency. After reviewing the cases heretofore mentioned the Committee commented:
“The Committee believes there is no valid justification for the continued giving of the instruction. The emergency circumstances are a proper matter for argument by counsel.” (p. 88.)
Finally, in Hallett v. Stone, 216 Kan. 568, 534 P. 2d 232, we found prejudicial error in giving an emergency instruction, when defendant, by her own testimony, admitted negligence which preceded and created the situation which she claimed to be a sudden emergency.
Unlike the situation in Hallett, we are unable to say that as a matter of law defendant in the case at bar, by her own negligence, created the situation she found herself in. Neither are we able to say, under the evidence adduced, that as a matter of law no emergency existed. Generally, both propositions may be considered by the jury together with all of the relevant evidence adduced in determining whether a party was guilty of negligence which was the proximate or direct cause of the accident in question. The PIK Committee’s recommendation that no instruction be given is in harmony with our recent decisions, but this does not mean that evidence of emergency circumstances is inadmissible and not to be considered by the jury. We agree with the Committee’s comment that emergency circumstances are a proper matter for argument by counsel. In the instant case the critical question for the jury’s determination was whether, under all the circumstances shown to exist, defendant’s actions in handling her automobile, preceding the collision, constituted negligence which caused the accident. The fact that defendant’s automobile skidded on a street, that was slippery because of ice and snow and defendant lost control of it, does not in and of itself require a finding that the collision was caused by her negligence. (Carpenter v. Gillard, 166 Kan. 689, 204 P. 2d 595.)
The acts of negligence with which defendant was charged were enumerated in plaintiff s petition as follows:
“(6) That the defendant at said time and place negligently and carelessly operated her vehicle as follows:
“(a) In driving her vehicle at an excessive rate of speed under the conditions then and there existing;
“(b) In failing to maintain a proper lookout for plaintiff and others using the streets;
“(c) In failing to keep her vehicle under control;
“(d) In failing to apply her brakes;
“(e) In following plaintiff’s vehicle too closely.”
The court’s instructions recited the acts of negligence charged and included a full recitation of applicable rules of the road and a definition of negligence.
Defendant testified that she was driving cautiously because of the snow, although she had not experienced any difficulty prior to the accident. She stated that she was driving at a reduced speed of twenty miles per hour (the same speed testified to by plaintiff) when she came over the hill on Nall, she saw plaintiff’s car as she came over the rise and “when I first saw it, it seemed like a long ways.” Defendant was charged with failing to apply her brakes, she testified that she did apply the brakes and slowed her automobile before the impact. There is no specific testimony by Officer VanHouton, or by the plaintiff, as to what defendant did or did not do under the circumstances that constituted negligence. In other words, if the jury gave full credit to defendant’s testimony, which it had a right to do and apparently did, the result would be a defendant’s verdict, which was the case. In the light of the evidence in this case counsel, of course, would argue that the accident resulted from the circumstances rather than from any of the acts of negligence charged against defendant — regardless whether an emergency instruction was submitted. Under the particular facts and circumstances disclosed by the record before us, we are unable to say that the jury was prejudiced by the submission of the instruction in question.
Cases from several jurisdictions dealing with the giving of sudden emergency instructions involving street and road conditions are annotated in 80 A. L. R. 2d, Anno., § 11, pp. 44, 45, and in the later case service supplement. Generally, it may be said that the decisions noted are based upon the facts and circumstances of the particular case. Plaintiff cites Hughes v. Polk, 40 Mich. App., 634, 199 N. W. 2d 224, involving a rear end intersection collision on an icy street wherein the Michigan Court of Appeals found the submission of an emergency instruction to be prejudicial and one of several trial errors which compelled a reversal of the judgment. The instruction in Hughes was tied to the Michigan “assured-clear-distance” statute [MCLA 257.627; MSA 9.2327 (a)] and the facts are distinguishable from those at bar. Other jurisdictions have approved emergency instructions in automobile negligence actions involving snowy or icy roads, e. g., Gran v. Dasovic, 275 Minn. 415, 147 N. W. 2d 576; and Peterson v. Sapp, (Okla.) 385 P. 2d 498.
As indicated in our decisions previously discussed, we take the view that the better practice is to leave the jury wholly free to give whatever consideration it deems appropriate to evidence of emergency circumstances in determining the reasonable character of a person’s choice of action and whether his conduct constituted negligence. (Lawrence v. Deemy, supra.) However, upon all the instructions given and the evidence presented by the record in this case, we do not think the giving of the instruction was prejudicial to the plaintiff. We reached the same conclusion when confronted with the question in Montgomery v. Morgenson, 213 Kan. 167, 515 P. 2d 746; and Harbaugh v. Darr, 200 Kan. 610, 438 P. 2d 74, wherein we found that although the doctrine of sudden emergency was inapplicable the giving of an instruction thereon was not prejudicial.
The general verdict, which was warranted under the evidence adduced, absolved the defendant of negligence and, therefore, the judgment below must be affirmed.
Fatzer, C. J., dissenting.
Fromme, J., not participating.
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The opinion of the court was delivered by
Foth, C.:
Appellant Michael Duane (“Mike”) Pyle was convicted by a jury of the first degree murder of his grandmother, Mrs. Golda (“Goldie”) Millar, and of arson for the burning of her house.
Mrs. Millar was last seen by her customary associates on April 5, 1971. Her ranch home in Kiowa county, between Haviland and Belvidere, burned to the ground in the early morning hours of April 8, 1971. No one has seen or heard from her since, and no trace of her body has ever been found.
The absence of a body gives rise to two of appellant’s contentions on appeal, namely, that the state failed to prove either the corpus delicti or the venue of the alleged murder. He also contends that a series of incriminating statements he made were improperly admitted, that he was precluded from making an insanity defense because of an erroneous ruling on the doctor-patient privilege, and that the court should have instructed on a lesser degree of homicide. To evaluate these contentions it is necessary to examine the state’s evidence in some detail.
Background
Goldie Millar was 78 when she disappeared. She owned a 3100 acre ranch near Belvidere, worth more than $340,000. She had two daughters, Mrs. Lois Allen of Hampton, Virginia, and Mrs. Billie Kratzer of Colorado Springs, Colorado. Mrs. Kratzer was the mother by a former marriage of the appellant Michael Pyle.
Mike had been a troubled child, presenting discipline problems punctuated by aggressive assaults on younger boys, including his brother. The result was a referral at the age of twelve to The Menninger Foundation at Topeka for a psychiatric evaluation, followed shortly by five years at a military academy. Attempts at higher education were failures, and in 1964 or 1965 he went to live with his grandmother Goldie on her ranch. Relations between them'were harmonious for several years; in 1967 Goldie made a will in which she left the bulk of her estate to Mike, including the ranch. In 1968 Mike married Linda Clarkson, and he and his wife went to live on the ranch. It appears that some hostility soon developed between Goldie and the new bride.
In 1969 relations between Mike and his grandmother also began to deteriorate. That summer he beat her, cutting her lip and bruising her arms. In July of that year Goldie withdrew her will from the probate court where it had been deposited, took it to her lawyer’s office, and there revoked it by tearing off her signature. As it later developed, Mike was unaware of the revocation and in April, 1971, still thought he was her primary beneficiary.
In August, 1969, Mike administered yet another beating to her, and later that month she was forced to call the sheriff to quell a violent argument between herself and Mike and Linda. At that time the sheriff suggested that the young people should, leave the ranch. Mike agreed, but told the sheriff as he left, “This is my ranch and I am going to have it, one way or the other.”
In 1969 Mike sought to enlist the aid of his aunt, Lois Allen, to have Goldie- declared incompetent so that he could gain control of the ranch. He already had a power of attorney. Her response was to call her mother, Goldie, and urge that she revoke the power of attorney. Goldie said she would.
Over the fall and winter of 1969-70 matters became progressively worse. On one occasion Mike removed some tools and other property from the ranch, and Goldie wanted to prosecute him for theft. The sheriff and county attorney mediated the dispute. On another occasion, Mike attempted to remove a water pump from the ranch. Goldie called the undersheriff, who came out and persuaded him to reinstall it.
In the spring of 1970 Goldie suffered a slight stroke. Mrs. Allen came from Virginia to be with her mother, and discovered that Mike’s power of attorney was still outstanding. She took Goldie to a lawyer where a formal revocation was prepared and Goldie executed it. Mrs. Allen had told Mike she would have no part of his plan to have Goldie committed.
In 1970 Mike sued Goldie on a note.
That October Goldie entered into negotiations with Alfred Barby, of Meade, to sell him the ranch. They agreed on a price of $110 an acre for a little more than 3100 acres and had contract papers prepared, but at the last minute she backed out. Instead, in November she leased the land for two-and-a-half years at $4 per acre per year. When she approached Barby again in December, 1970, the proposition was less attractive to him because of the outstanding lease.
That is the way matters stood when the parties entered the fateful days of April, 1971. Goldie was at the ranch, wishing to sell. Mike and his wife, Linda, were living in Pratt, some thirty-odd miles away, but Mike still came to the ranch on occasion and still got some mail at Belvidere. Relations between Goldie and Mike were strained.
The First Week of April, 1971
Thursday, April 1: Goldie went into Belvidere and picked up her mail. Belvidere is a town of some twenty persons, about two to three miles south and east of the ranch. There she visited with, among others, Geneva Braden, the postmistress, and Ellen Davis, keeper of the general store and gas station. She seemed fine to them. Both were longtime friends who saw Goldie at least every few days and sometimes every day. Neither has seen her since, although Geneva Braden talked to her on the telephone the next Monday.
Friday, April 2: Luther Lemon was on the ranch taking care of cattle for his employer, Stanley Dannebohm, who leased the 3100 acres of pasture. He saw Goldie standing in the yard talking to Dannebohm and his son, and later stopped and visited with her. He observed nothing unusual about her. He never saw her again.
Saturday, April 3: Dannebohm was at the ranch again. Goldie called him in the house and attempted to sell him the 3100 acres he was renting from her. At her asking figure of $123 per acre the price was too much for him to handle, and he told her so. He never saw or heard from her again.
That same evening Alfred Barby, who had almost bought the ranch before, was passing through Haviland and called Goldie to talk to her about it once more. They again agreed on a price of $110 per acre. Goldie wanted him to come to the ranch that night and give her $5,000 earnest money, but he demurred. It was late, they had no contraot, she was just recovering from the flu, and he didn’t want to tangle with her dog, who had “got a hold of” him a time or two before. He would call her within two weeks.
Sunday, April 4: This appears to have been a day of solitude for Goldie. No one reports seeing or talking to her.
Monday, April 5: Bill Hogan, Kiowa county sheriff, telephoned Goldie about 5:53 p. m. He had a Pratt county warrant for Mike’s arrest on bad check charges. He hadn’t seen Mike for some time, and wondered if he was living at the ranch. Goldie told him Mike lived in Pratt, but she was expecting him that evening and would tell him to see the sheriff about the warrant.
Around 7:00 to 7:30 p. m. Mrs. Harley Septer telephoned Goldie to see about some materials Goldie was to furnish to fence off some cultivated land on the ranch. Mr. Septer was to do the fencing next day for Harlin Yost, who rented the cultivated land. Goldie told Mrs. Septer the material would be in the yard, and that if she wasn’t in the yard when her husband arrived the next day he should not come in the house because she had a bad headache.
Around the same time Geneva Braden, the Belvidere postmistress, also called. Mike had telephoned from Haviland to see about picking up his mail, and Mrs. Braden wondered if Goldie would like him to get hers while he was there. Goldie said yes, she would appreciate that very much.
Those two calls, from Mrs. Septer and Mrs. Braden in the evening of Monday, April 5, represent the last contact with Goldie by anyone other than Mike. The balance of the tale must therefore focus on his activities.
Around 8:00 or 8:30 that Monday evening Mike appeared at the Belvidere post office and picked up his and Goldie’s mail from Geneva Braden. Around 8:45 he burst into sheriff Hogans house, visibly upset. He ignored Mrs. Hogan — an unusual thing for him to do — and demanded to talk to the sheriff. Mike said his grandmother had been drunk for three weeks and was vomiting blood. He had been having to go to the ranch twice a day to take care of the dog because she was in no condition to do so. When the sheriff asked him about the bad check charge, Mike said he had plenty of money to take care of it, but didn’t want Goldie to know how much he had. He and sheriff Hogan agreed he would go to the Pratt county sheriff’s office the next morning and take care of it, rather than submit to arrest in Kiowa county. Mike never kept that appointment.
Tuesday, April 6: Harley Septer went to the ranch looking for the fencing material Goldie had said would be laid out in the yard. He found no material, and saw no one around the place, so he left.
Around 9:00 to 10:00 that morning Mike, with his wife Linda, appeared at Linda’s sister’s house in Sawyer, some twenty miles east of the ranch. Linda asked if she could spend the day, and when the sister said yes, Mike left Linda and went on. Linda explained to her sister that Mike had been informed of a fire at his grandmother’s and was going down to check; he didn’t want Linda or their dog along down at the ranch. In mid-afternoon Mike called Linda and reported, as Linda told her sister, that there hadn’t been a fire at the ranch that day, after all.
Wednesday, April 7: Mike and Linda went to a farm sale in the morning. Around 11:00, Mike picked up his mail from Mrs. Braden. She asked about Goldie’s flu of the previous week, and Mike replied that she “gets her flu in pint bottles.”
In the early afternoon Mike called his stepfather, Bill Kratzer, in Colorado Springs, charging the the call to Goldie’s number. Mike said he had some business to discuss, and they agreed he would go to Colorado the next day.
Around 4:00 to 5:00 that afternoon Mike and Linda were in the Belvidere general store. While there, he told Ellen Davis that his grandmother was on “a helluva binge.” She was -unconscious, he said, and he was going to Colorado to the next day to see his mother to see what could be done. Mrs. Davis saw him dial Goldie’s number on the store’s phone, but he got no response. He had also mentioned Goldie’s drinking to Mrs. Davis a couple of days before— the first time he had ever talked about her like that.
Thursday, April 8: At 5:15 a. m., a truck driver reported to a Greensburg policeman that there was a fire somewhere south of Haviland. Pratt police were alerted by the dispatcher but were unable to locate the fire. The Haviland city marshall was called at 5:20, and he drove south until he located first a glow, then a pasture fire, and finally the ranch house burned to the ground. The ranch is some ten to twelve miles south of Haviland. He arrived at 5:55 a. m., and was soon joined by firemen he had summoned on the way, and other police officers.
Ten minutes later Mike called his mother in Colorado Springs from Lamar, Colorado. It was 5:05 a. m., Mountain time. He wanted to announce that he would be there in a few hours. When his mother asked how Goldie was, Mike told her it was not a business trip, that his grandmother was very sick, and that “this time she isn’t going to make [it] if you don’t come and take her to the hospital.”
Twenty to thirty minutes later, around 5:30, Mrs. Kratzer had another call, this time from Ellen Davis of Belvidere. Mrs. Davis broke the news that Goldie’s house had burned down, and that neither Goldie nor her dog could be found. Mrs. Kratzer had given the dog to her mother, and knew he was her constant companion.
Yet a third call came to the Kratzer house at 8:00 a. m. This was from a ham radio operator, saying that Mike had called him on his truck radio and asked him to relay a message that he would arrive in about fifteen minutes. At 8:15, Mountain time, Mike arrived as promised. He then learned from his stepfather, ostensibly for the first time, that his grandmother’s house had burned.
In the meantime, however, more than two hours earlier, Mike had made the telephone call that was eventually to lead to his undoing. Mrs. Mildred Elving operated the apartment house where Mike and Linda lived in Pratt. At 7:00 a. m. Central time (6:00 Mountain time) her phone rang and it was Mike. He asked her to go down to their apartment and get Linda — it was an emergency. Mrs. Elving did, and Linda came to the phone. She became hysterical while listening, and after she hung up reported “That was Mike, and he said that his grandmother burned up in a fire.”
The Aftermath
Mike’s first reaction to the news of his grandmother’s probable death was silence, so his stepfather invited him into the house. There the first thing he did was to call the electric company serving the ranch and arrange for a hot wire at the transformer so> the yard light would be on twenty-four hours a day. Then, about 10:30, he and his mother got in his truck and headed for the ranch. En route his mother wondered out loud how the fire could have started. Mike suggested first that Goldie hung her clothes around the hot water heater, and second, that she kept gasoline around for dry cleaning. The conversation turned to the state of Goldie’s affairs, and Mike reassured his mother that they were all in order. He added: “Don’t forget, I don’t want it to cause hard feelings— But — the will is made out to me. Your sister and you get one thousand dollars apiece, and I think Carla and Bill [Mike’s sister and brother] get something, but it’s all mine.”
They arrived at the ranch around 5:30 p. m., to find numerous police officers at the scene. At that time Mike told a K. B. I. agent that he had been at the ranch shortly after midnight to check on his grandmother. She was very drunk when he left her to go to Colorado; he only learned of the fire when he got to his mother’s house at Colorado Springs. He speculated first that the fire was caused by the furnace, which had been acting up, and later thought the cause might have been pack rats chewing through the electrical wiring. He delivered to the officers the keys to Goldie’s car, which was still in the garage.
An intensive and extensive search was conducted for Goldie Millar or her body, extending over a period of several weeks. The ashes at the house were sifted and resifted; the ranch was combed by men on foot, in trucks and on horseback; missing persons bulletins were circulated. Skin divers and scuba divers searched the ponds, and airplanes surveyed the landscape.
The ashes of the house produced nothing in the way of human remains. Expert testimony was that a normal house fire is not hot enough to bum a human body without leaving a trace. The ashes did yield the badly charred remains of Goldie’s dog, a German shepherd named Brandie. He was described as having been very devoted to and protective of her. No stranger could approach unless Goldie told Brandie to stay back. (This was the same dog that had “got hold of” Alfred Barby in the past.) Brandie’s head was charred but largely intact. Later medical examination revealed a .22 caliber shell casing lodged in one eye socket. The cartridge had exploded from heat, and bore no marking from a firing pin. A .22 pistol was found in the ruins in the basement.
The officers’ investigation as well as the search for Goldie continued. On April 29, K. B. I. agent Dewey interviewed Mike again, and heard him recount again his midnight visit to the ranch and his trip to Colorado. He again told of Goldie’s heavy drinking, this time adding that “the house was full of Old Charter whisky bottles.” He again asserted that the first he learned of the fire was in Colorado Springs at 9:00 Central time, when his stepfather told him of Ellen Davis’s call.
Continued investigation began to turn up weaknesses in Mike’s story. Contrary to his tales about her three week binge, all the witnesses who saw Goldie during the first week of April — and they were many — testified that she seemed normal, cheerful, and totally sober. They detected no evidence that she had been drinking. A sifting of the house ashes turned up no molten glass globules of the dark brown color characteristic of Old Charter bottles; expert testimony indicated that they would be there if such bottles had been in the house. Most critical of all, the investigators turned up Mike’s telephone call to Linda, telling of the fire and his grandmother’s death some two hours before he was supposed to have learned of it.
Armed with this information the officers again confronted Mike and secured a series of statements, to be discussed later, implicating him in the death of Goldie and in setting the fire. The result was a charge of first degree murder and aggravated arson, and the present conviction of first degree murder and simple arson. This appeal followed.
I. The Corpus Delicti
The foregoing, rather lengthy exposition of the state’s evidence is made necessary primarily by the claim on appeal that the state failed to prove the corpus delicti. While we have no reported murder case in this state in which no portion of the victim’s body was found, we have recognized that “It is well-established that any material facts, including the corpus delicti itself, may be proved by direct testimony or by indirect or circumstantial evidence, or a combination of both.” State v. Griffin, 210 Kan. 729, 731, 504 P. 2d 150. To the same effect, we have observed that “No exclusive mode of proof of the corpus delicti is prescribed by the law.” State v. Phippen, 207 Kan. 224, 230, 485 P. 2d 336.
As to what must be proved we have said, “In homicide cases the corpus delicti is the body or substance of the crime which consists of the killing of the deceased by some criminal agency and is established by proof of two facts, that one person was killed, and that another person killed him.” State v. Phippen, supra, Syl. ¶ 3. See also, State v. Doyle, 201 Kan. 469, 441 P. 2d 846.
Even though we have not previously had occasion to consider a homicide case in which the proof of the corpus delicti was purely circumstantial the foregoing principles clearly establish that such proof is sufficient. Many other jurisdictions have so held in murder cases where no body was found. The applicable rules are aptly stated and amply supported by citations of authority in People v. Bolinski, 260 Cal. App. 2d 705, 714-15, 67 Cal. Rptr. 347, 353:
“The corpus delicti of murder consists of two elements: the death of the alleged victim and the existence of some criminal agency as the cause, either or both of which may be proved circumstantially or inferentially. [Citations omitted.] The elements must be established independently of admissions or confessions of the defendant . . . but as a basis for introduction of the defendant’s confession or admission, the prosecution is not required to establish corpus delicti by proof sis clear and convincing as is necessary to establish guilt; a slight or prima facie showing is sufficient. [Citations omitted.] Once corpus delicti is shown by independent evidence, the degree of the crime not being a part of the corpus delicti, the circumstances of the minder and its degree may be shown by extrajudicial statements of the accused. [Citations omitted.] It is for the trial court to determine whether a prima facie showing has been made. [Citations omitted.]
“Production of the body of the missing person or of evidence of the means used to produce death are not essential to the establishment of corpus delicti or to sustain a murder conviction. [Citations omitted.]”
In this case there was ample evidence, independent of Mike’s admissions, from which first the court and later the jury might infer that Goldie was dead, and that she had been the victim of foul play. Such evidence included: the fact that she was never heard from after April 5 by her friends and customary associates; the strained relations between Mike and Goldie; the carefully constructed alibi consisting of his fabricated charges of drunkenness and the all-night trip to Colorado; the false-alarm fire of two days before; Mike’s avowed intention to get the ranch “one way or the other;” and ultimately his premature display of knowledge of the fire and her death. Some of this evidence served a dual purpose; it not only showed that Goldie was dead by criminal means, but pointed the finger of guilt at Mike. The fact that it bore also on who was guilty does not detract from the efficacy of this evidence in establishing the corpus delicti.
The defense moved for an acquittál on the ground that the corpus delicti was not proved. The motion was properly overruled.
II. Venue
Appellant argues that in the absence of a body it was impossible to prove that the murder took place in Kiowa county. The state’s evidence indicated that Goldie did not in fact die in the fire. The jury convicted of simple arson (K. S. A. 21-3718 [Weeks 1974]), and not aggravated arson as charged (K. S. A. 21-3719 [Weeks 1974]). Since the difference is the presence of a human being in the burned building in aggravated arson, he concludes the jury found that Goldie was not in the house. From this he argues that, even if Mike killed her, he might have done so anywhere. He points out that venue is jurisdictional, and must be proved by the state. See, e. g., State v. Jones, 204 Kan. 719, 466 P. 2d 283, and cases cited.
Venue, however, is a question of fact to be determined by the jury, and like any other fact may be proved by circumstantial evidence. State v. Addington, 205 Kan. 640, 472 P. 2d 225; State v. Fleury, 203 Kan. 888, 457 P. 2d 44; State v. Joseph. Little, 201 Kan. 101, 439 P. 2d 383. Our applicable venue statute, K. S. A. 22-2603 (Weeks 1974) provides that “Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.” The question, therefore, is whether the jury could infer that the murder, or any act “requisite” to it, occurred in Kiowa county.
A somewhat similar situation was presented in State v. Zimmer, 198 Kan. 479, 426 P. 2d 267. There a little girl was abducted in Shawnee county and her body later found in Pottawatomie county. The question was whether venue for a felony murder charge lay in Shawnee county. This court held it did, under the forerunner of 22-2603. The court observed that the place where the body was found was within five or six minutes driving time from three adjoining counties, and commented (p. 499): “A murderer should not escape punishment because the exact place of his crime is concealed.”
More directly in point is People v. Scott, 176 Cal. App. 2d 458, 1 Cal. Rptr. 600, the only case cited or that we can discover dealing with venue in a missing-body murder case. In that case the defendant was convicted of murdering his wife, who had simply disappeared without a trace. The court there reviewed at length a number of cases, including one from New Zealand and on'e from England, in which murder convictions had been upheld in the absence of a body. On the corpus delicti aspect of the case it reached conclusions which generally were in accord with those in People v. Bolinski, supra.
On venue, the evidence indicated that the missing wife was last seen alive in her home in Los Angeles County on a May 16th, and that she disappeared that night. The court found “If she was murdered on that night, it was either in her home or by someone who spirited her away with the intention of taking her life and disposing of her body so it could not be found. If the latter, and if she met her death outside the county of Los Angeles, jurisdiction would be in Los Angeles County as in any other county in which she might have met her death.” (P. 501.)
In so holding, the court relied on § 781 of the California penal code, a venue statute providing:
“When a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory.”
The similarity to our own K. S. A. 22-2603 is apparent.
So, in the present case, if Goldie was removed from her home arid killed in another county, the removal was an act “requisite” to the commission of the murder; venue would still be proper in Kiowa county. The motion for acquittal on this ground was also properly overruled.
III. The Confessions
Mike confessed or made damaging admissions on six separate occasions. The first, from which all the others are claimed to flow, came on May 11, 1971. On that day, at about 1:10 p. m., K. B.I. agents Duarie Bell and Alvin Dewey met with Mike and his retained attorney, Harold S. Herd, in Herd’s office in Coldwater, in the adjoining county of Commanche.
After first advising him fully of his rights, the agents confronted him with their knowledge of his premature phone call to his wife in which he told her about the fire. At 2:00 Mike broke off the interview and went to have coffee and confer privately with his attorney. They returned about 3:00, but Mike left again almost immediately, and returned ten minutes later. He again asked to confer privately with his attorney in another room. There he revealed that he had just taken an overdose of pills in an effort to commit suicide.
Mr. Herd promptly informed the K. B. I. agents, who called the sheriff. The three officers took Mike to the emergency room of the Coldwater hospital where a physician induced vomiting. Particles of a capsule were retrieved which proved to be Librium. Although there is no evidence in the record as to the nature or effect of this drug, we assume it is the rather commonly prescribed tranquilizer of that name. (See Lingeman, Drugs from A to Z: A Dictionary [1969], McGraw-Hill Book Co.) Agent Bell testified that Mike was ill for just a few minutes after vomiting.
The two agents remained iri the emergency room while Mike was treated, and when the doctor left two nurses also remained. Some time later Mike asked 'the nurses to leave, saying he wanted to talk to the agents alone. After the nurses left he told the agents, “I don’t know how much Mr. Herd would want me to tell you men but I am going to tell you exactly what happened.”
He then proceeded to describe the difficulties that had developed between him arid Goldie ever since he had been married. He attributed most of the trouble to his grandmother’s hatred of his wife Linda, saying she had threatened to kill her and had once attacked her. Goldie had been urging him to divorce Linda and even, he said, offered to pay for the divorce.
On the night of April 7 he had arrived at the ranch about 11:00 p. m. to find Goldie drunk and still drinking. Goldie again abused Linda verbally and urged divorce. When he refused, he said, Goldie threatened to “get rid of Linda one way or another, just like she did Bud Pyle.” Bud Pyle was Mike’s father, who had committed suicide when Mike was a boy.
At that point, Mike said, he was scared, but agreed to go to Colorado to talk to his mother. At Goldie’s urging he napped for an hour or so before starting out. When he awoke he found her passed out on the floor in the dining room hallway. He then went to the garage, got three one-gallon jugs of transmission fluid, and poured it on the floor of the living room. When he ignited it, it burned “very fast.” When he left the floor and one chair were in full blaze.
He then told of going to Colorado, and of calling Linda from Las Animas, Colorado, while en route. At the conclusion of his story he turned to agent Bell and said, “I hope you and Mr. Dewey will understand why I had to kill my grandmother.”
After making this statement Mike was formally placed under arrest for murder. At his request he was permitted to telephone Linda at the house where they were then living near Jetmore. He was then booked into the Comanche county jail about 5:30 p. m. That evening the agents took Linda some money he gave them and his car keys. He drew a map showing how to get to the house, which they successfully followed.
The next day, May 12, the agents returned to the Comanche county jail to get Mike’s statement in writing. He was again advised of his rights and agreed to retell his story, slowly, so it could be taken down. He declined to sign it, however, until after he had talked to his attorney. This statement was substantially the same as his oral statement of the day before.
That same day Clark Yost, a friend of Mike’s came to visit Mike in the Comanche county jail. Yost described their conversation:
“. ■ ■ He asked me first if I wondered why he was there. I told him it really didn’t matter that I’d just come up to visit him. He said Mrs. Millar had been upset with Linda and had threatened her a couple of times and he didn’t like it and was going to put a stop to it. He said he just burned her up. He said he recalled that he had seen a check written for $22,000 in payment to someone for part payment to do away with Linda. When he used the phrase “burned her up’, he said he’d done that to protect Linda.”
Yet a fourth admission (the third that day) came when sheriff Hogan visited with Mike while he was still in the Comanche county jail. Sheriff Hogan gave him a complete Miranda warning, and the two of them talked for about an hour and a half. Mike went over his life from the time he was a little boy, through military school, the troubles over the years at the ranch, and events since the fire. In particular Mike recalled a time some two weeks after the fire when he, the sheriff and some other men had gone to the tenant house on the ranch to get some furniture Mike had stored there. Two men were loading a truck and John Wallace, the undersheriff, had gone down to the creek, leaving Mike and the sheriff sitting in the yard alone. Sheriff Hogan recounted Mike’s reminiscences about that episode:
“ ‘That when we were down there sitting in the yard visiting, Mr. Hogan, I come almost telling you about this.’
“And he said, ‘If Mr. Wallace hadn’t come back when he did I was going to.’
“Then he went into other stories, and he said about school, about all the trouble they had had, the financial trouble of the ranch, and built up into the animosity Mom [Goldie] had against Linda Pyle, Mike’s wife, till he made the statement that, 1 should have cut her throat one other time.’
“I said, T don’t know what you mean, Mike.’
“He said, ‘You recall when Mom was going to tear down my fence off of my porch?’ And I said, ‘Yes, I recall that.’
“Well, it seems as though there was a little 10 or 11-year old niece of Linda’s, I believe it was, that was staying with them. Mrs. Millar supposedly had a knife and was after Linda and nearly scared the little girl to death.”
This reference to throat cutting was the first reference, albeit obscure, to the possibility that Goldie might have died otherwise than in the fire.
By the next day, May 13, Mike had been removed b> the Kiowa county jail. There agent Bell stopped by and Mike asked him for some cigarettes. Bell describes the encounter that ensued shortly after noon:
“A. I took the cigarettes to Mike, and at that time he told me, he said, ‘Mr. Bell, I haven’t been completely honest with you.’ He said, ‘I’ve decided to tell you where Mrs. Millar’s body is.’ He said, ‘It’s so gruesome and horrible I only want to tell it once. Will you go get Bill Hogan and bring the Sheriff in so I can tell you both at the same time.’ I told him, ‘Yes, Mike, I will. But tell me one thing: will we be able to recover the body?’ And he answered, ‘Yes, sir.’ I then left the jail area to walk out the door where I met Sheriff Hogan and Linda Pyle. Linda said, ‘I want to see my husband.’ And I said, ‘Linda, Mike wants to talk to us a little bit first.’ And she said, ‘No, I want to see him right now.’ And she brushed past me and walked into Mike’s cell, went into the cell block area.
“Q. Then what occurred?
“A. About 45 minutes later I and Sheriff Hogan went back in to talk to Mike again and asked Mike if he wanted to tell us where the body was; and he said, ‘I’ve changed my mind. She died in the fire.’ ”
The sixth and last confession came later that day in an office in the Kiowa county court house. Present were agents Rell and Dewey, Mike, and Mike’s attorney Mr. Herd. In this version he again told how Goldie had been drinking heavily, but this time he related a conversation in which she told him that she was going to sell part of the ranch to pay debts, and wasn’t going to leave him anything in her will. He became angry because he couldn’t stand to see her sell part of the ranch. He again told of her passing out in the dining room, of his spreading the three gallons of transmission fluid, and of his starting the fire. After he left, however, he said he had a change of heart and attempted to go back in to get her out. He tried the front door but it was locked and he couldn’t get in, so he went to the back door and kicked it in. Two attempts to reach her failed because of the heat and smoke, so he got in his car and drove to Colorado.
At the end of his story his attorney asked if this was a true and complete confession, and Mike said that it was.
On appeal the attack on these confessions is made on two grounds. First, it is contended that the first confession, made at the hospital in Coldwater, was involuntary because it was not immediately preceded by a warning as to his rights. There is no merit to this contention. Just three horns earlier he had been given a concededly complete warning in his attorney’s office. His attorney was present and specifically asked him if he understood his rights, and he replied that he did. His remark that “I don’t know how much Mr. Herd would want me to tell you men” evinces an understanding of those rights. Once a suspect is fully advised of his rights and understands them, it is not necessary to give repeated Miranda warnings each time he is interviewed. See, State v. Boyle, 207 Kan. 833, 486 P. 2d 849; State v. Riedel, 211 Kan. 872, 508 P. 2d 878.
The second attack on the confessions goes to Mike’s mental ca pacity to give them voluntarily and knowingly. A pretrial motion to suppress the confessions was filed, based on his alleged insanity and emotional stress at the time he made them. The trial court conducted a Jackson v. Denno hearing to determine their admissibility. (Jackson v. Denno, 378 U. S. 368, 12 L. Ed 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205. See also, State v. Milow, 199 Kan. 576, 433 P. 2d 538.)
At the hearing the state introduced the testimony of agent Bell, who described his several meetings with Mike. He started with the arrival of Mike and his mother at the fire scene on the evening of April 8, included a portion of the interview of April 29, and ended with the various meetings at which Mike gave his divers statements. He described giving the Miranda warning at each meeting starting with that of April 29, except for the discussion at the hospital which Mike initiated. On each occasion Mike appeared normal, in control, and to have full knowledge and understanding of his position. He pointed to the accurate and detailed map of the route from Coldwater to the rural house near Jetmore as demonstrating Mike’s firm grip on reality at the time he was in the Cold-water hospital.
The defense countered with expert psychiatric testimony. Following Mike’s arrest and the filing of charges he was referred to the state security hospital at Larned to determine his competency to stand trial. He was received there May 26,1971. At the end of 60 days it was determined that he was not competent, and he remained at the hospital. On September 10, 1971, he was determined by the staff to be competent. A Lamed staff psychologist, staff neurologist and staff psychiatrist all testified, along with a clinical psychologist who had examined Mike in the Kiowa county jail before the referral. While these experts varied somewhat in their diagnoses, they all agreed that he was suffering from some form of mental aberration which in their opinion made him incapable of giving a voluntary admission or confession. The psychiatrist, however, when asked if Mike understood what he was doing the day he talked to the officers, responded, “I think he probably did understand what he was doing.”
The state then introduced its own expert, Dr. Francis Broucek, a psychiatrist at The Menninger Foundation who had supervised a three day evaluation in December, 1971, and who had available the records of Mike’s stay there in 1956. In his opinion no psychiatrist — neither he nor those at Larned — could project backward from the time of his examination and determine whether in April or May, 1971, Mike “understood what he was doing, whether he knew right from wrong, [or] whether he understood the nature and quality of the acts that he was going through.”
The quoted phrase will be recognized as the traditional M’Naghten test for criminal responsibility, which is the test applicable in this state. State v. Andrews, 187 Kan. 458, 357 P. 2d 739. This same test of mental competence is used to determine whether an accused is so incompetent as to be unable to confess to a crime voluntarily. Andrews v. Hand, 190 Kan. 109, 117, 372 P. 2d 559, cert. den. 371 U. S. 880, 9 L. Ed. 2d 117, 83 S. Ct. 152.
There is no doubt that Mike was under considerable mental strain at the time he confessed in the hospital; his suicide attempt attests to that. After all, his alibi had just evaporated. But in the absence of insanity meeting the M’Naghten test, “[t]he mental condition of a defendant at the time he makes a statement is relevant to the issue of voluntariness but is not necessarily conclusive; its weight is for the trier of fact.” State v. Brunner, 211 Kan. 596, 507 P. 2d 233, Syl. ¶ 5. At a Jackson v. Denno hearing such as this the trial court “is not bound to adopt the opinion of a medical doctor qualified in psychiatry to the exclusion of nonexpert testimony on the issue of the defendant’s mental condition ... at the time the defendant was advised of his constitutional rights and interrogated.” State v. Harden, 206 Kan. 365, 480 P. 2d 53, Syl. ¶ 3.
The trial court overruled the motion to suppress, thereby impliedly finding that the confessions were knowingly and voluntarily made, and that Mike was not insane at the time of making them. Such a finding is binding on this court if supported by substantial competent evidence. State v. Wilson, 215 Kan. 28, 523 P. 2d 337; State v. Creekmore, 208 Kan. 933, 495 P. 2d 96.
In this case the defense’s evidence fell far short of asserting that Mike’s mental state when he confessed met the M’Naghten test of insanity. The defense psychiatrist’s testimony, in particular, was to the contrary. Even if there had been such evidence, the trial court would not have been bound to accept it, particularly in view of the doubt cast on its validity by the testimony of Dr. Broucek. On the other side, the lay evidence of Mike’s awareness was sufficient to support the trial court’s finding of sanity and voluntariness. Cf. State v. Blake, 209 Kan. 196, 495 P. 2d 905, Syl. ¶ 3; In re Estate of Roberts, 192 Kan. 91, 386 P. 2d 301, Syl. ¶ 2.
It was not error to overrule the motion to suppress or to admit the confessions into evidence.
IV. The Doctor-Patient Privilege
In October, after Mike had been at the Lamed hospital for over four months, a notice was filed on his behalf of his intention to rely on insanity as a defense. At the close of the state’s case the defense proffered the testimony of the psychologist, neurologist and psychiatrist from Lamed who had examined him on his competency to stand trial, and who had testified on the pretrial motion to suppress. Before putting them on the stand, however, counsel asked for a mling on the applicability of what is now K. S. A. 22-3302 ( 3) (Weeks 1974), dealing with proceedings to determine a defendant’s competency to stand trial. The last sentence of that section provides:
“. . . No statement made by the defendant in the course of any examination provided for by this section, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against him in any criminal proceeding.”
The trial court made the following ruling:
“The statute makes it a privileged communication, anything the defendant may have told them during their examinations for determination of whether or not the defendant would be able to stand trial, but if the doctors that you have named doing that examination should testify on matters that might involve conclusions that would be based on what they might have been told by the defendant, the court rules that the privilege would be waived and cross-examination would be allowed as to any basis they may have for the conclusions they may testify to resulting from the interview with the defendant.”
We think that ruling was eminently correct. The purpose of the quoted portion of 22-3302 ( 3) is to facilitate a complete and thorough psychiatric examination of a defendant whose competency is in doubt, unhampered by any fear that what the defendant tells the doctor may be turned against him. Psychiatry being what it is, the need for free and open oral communication between the defendant and the doctor is obvious. Anything less would automatically cast doubt on the validity of the diagnosis.
But the establishment of an insanity defense is an entirely different matter. For that purpose a notice is required whereby the defendant agrees to submit to such mental examinations as the court may order. (K. S. A. 22-3219 [Weeks 1974].) Further, under that statute a report of each mental examination, including any by physicians of defendant’s own choosing, is to be filed with the court and supplied to counsel for each side. Where a defense is to be based on mental disease or defect, complete disclosure is the rule.
The reason for this rule is apparent. If the proffered defense witnesses in this case had testified they presumably would have offered expert opinions couched in conclusionary terms. (K. S. A. 60-456.) On cross-examination the state would be entitled to elicit from each witness, the “data” upon which his opinion was based. (K. S. A. 60-458. Cf., Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518; Ziegler v. Crofoot, 213 Kan. 480, 516 P. 2d 954.) In our adversary system no other way exists to test the credibility of an expert witness or the validity of his opinion. In the case of a psychiatric expert the underlying “data” would, presumably, be in large part the communications made by the subject to the doctor.
In this connection a colloquy at the hearing on the motion to suppress is illuminating. The Lamed neurologist was testifying on behalf of the defendant, and the state objected to his recitation of Mike’s medical history as being hearsay. Defense counsel responded:
“. . . I think it is rather important to all of us, including the court, to know the ingredients that made up the ultimate diagnosis of the man and to determine whether or not he was competent. I am going to ask this doctor to talk about the dates of the admissions in the past, and I think for him to draw some conclusions about that we are all entitled to know the ingredients that led up to it and that would justify his having drawn those conclusions, and the medical history he used is a part and parcel of it, all coupled with his knowledge of it.” (Emphasis added.)
We agree. The value of an expert’s conclusion can only be assessed in the light of the data available to him or, as counsel put it, “the ingredients that made up the ultimate diagnosis.”
In State v. Campbell, 210 Kan. 265, 500 P. 2d 21, a psychiatrist was appointed as a commission to determine competency under former K. S. A. 62-1531, the predecessor to 22-3302. A similar claim of privilege was set up as to the defendant’s communications to the doctor. We held that there was no privilege for three reasons. First, since the defendant had not sought out the doctor for any purposes relating to diagnosis or treatment, under K. S. A. (then 1971 Supp.) 60-427 (a) he was not a “patient.” Second, there is no doctor-patient privilege in felony cases under 60-427 (b). Third, since the condition of the defendant was an element of his defense, there was no privilege under 60-427 (d).
The competency statute in effect when the Campbell case was tried contained no specific prohibition against the use of statements made to the sanity commission; the privilege was to be determined under the evidentiary rules relating to the doctor-patient privilege generally. The new statute alters that decision to the extent that, if a doctor is not called by the defendant, the privilege is absolute. We do not believe, however, that the statute was intended to extend the privilege beyond the extent necessary to effectuate its purpose. It is designed as a shield, not a sword. If the defendant proposes to alter the roles of the examining doctors from competency examiners to insanity defense experts, he must comply with the disclosure provisions of the insanity defense statute. If they take the stand, they, like any other experts, are subject to cross-examination as to the basis for their opinions. If the opinions are based on statements made by the defendant, those statements must be revealed, and to that extent the statutory privilege is waived.
In this case the trial court properly ruled on the claim of privilege. The fact that the defendant then chose not to call the doctors does not mean that his right to defend was improperly impaired, and there was no error.
V. The Lesser Included Offense
Appellant’s final argument is that the court should have, as he requested, instructed on the lessor included offense of voluntary manslaughter. That crime is “the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.” (K. S. A. 21-3403 [Weeks 1974].)
On when the duty to instruct on lesser included offenses arises we said in State v. Masqua, 210 Kan. 419, 502 P. 2d 728, Syl. ¶ 4:
“The district court has an affirmative duty to instruct on lesser included offenses even in the absence of a request by defense counsel or the prosecution; however, that duty arises only where the omitted instruction is required by the evidence and under circumstances where the appellant might reasonably have been convicted of a lesser offense if the instruction had been given.”
Similar holdings may be found in State v. Schriner, 215 Kan. 86, 523 P. 2d 703, and State v. Hollaway, 214 Kan. 636, 522 P. 2d 364.
There is in the evidence in this case simply nothing from which the jury could have inferred that Mike killed Goldie, but did so “without malice” as is required by the voluntary manslaughter statute. “Maliciously” is currently defined as “wilfully doing a wrongful act without just cause or excuse.” PIK 56.04 (a). It denotes an evil state of mind. State v. Roberson, 210 Kan. 209, 214, 499 P. 2d 1137, and cases dted. There is nothing to indicate that Mike’s killing of Goldie was not wrongful, or that he had just cause or excuse. Neither was there the slightest scintilla of evidence that they had a “sudden quarrel” or that Mike ever reached a “heat of passion.”
Looking at all the evidence, we find the issues before the jury to have been whether Goldie was killed at all, and if so whether the defendant killed her. If both questions were to be answered yes, then it had to be on a finding that Mike planned the killing, either for greed or to “protect” his wife Linda. All the evidence that points to Mike as the killer also points to a carefully contrived plan to make the death look accidental and provide him with an alibi.
Added to the mass of circumstantial evidence we have the extrajudicial confessions. That part of them which put Goldie in the house when Mike started the fire was discredited by the physical evidence and by his admission that he knew where the body was, and that it could be found. Those portions of the confessions in which he described his motives and the formulation on an intent to kill her, and in which he admitted killing her one way or another, were all unrebutted and were consistent with the other evidence in the case. If Mike did it, it was a premeditated killing — first degree murder, not something less.
We conclude that it was not error to refuse an instruction on voluntary manslaughter.
The judgment is affirmed.
APPROVED BY THE COURT.
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Per Curiam:
Isaiah T. Straughter was convicted by a jury of the offense of burglary.
Upon appeal he asserts the evidence was insufficient to sustain the charge. Appellant and a codefendant were discovered in the rear part of a Kings X Restaurant warehouse. The oodefendant was inside a walk-in food freezer with a crowbar in his hand. Appellant was just outside the freezer. The latch had been beaten off the freezer. The two .gave the explanation they were looking for work at a nearby carwash. It was raining and the carwash was closed. When this explanation was considered unsatisfactory by the employees the two ran. They were followed and persuaded to return. The day before they had been seen standing in front of the same freezer. Food had previously been stolen from it. The codefendant testified as a witness for appellant; he stated the two had gone inside the building to relieve themselves while waiting for the carwash to open; when discovered they were frightened and ran. The .codefendant testified he had pleaded guilty to burglarizing 'the building at the time in question. No- question is raised concerning the admissibility of any of the evidence and it sufficiently supports appellant*s conviction.
Appellant further complains that, over his objection, the co-defendant was permitted to* remain seated at the counsel table with the prosecuting attorney while the testimony was being taken.
The general rule on the subject is stated in 23 CJS, Criminal Law,- § 968, as follows:
“. . . the presence in the courtroom during trial of other persons under indictment for the same offense, but who are to be tried separately, is within the discretion of the court, and it may refuse such presence, or it may permit or require such a person to be present, such as for purposes of identification, or in order that accused’s counsel may consult with him. . . .” (p. 876.)
Our only case on the subject is in accord with the foregoing. In State v. Shive, 59 Kan. 780, 54 Pac. 1061, it was held that, although a severance has been granted where two defendants are jointly charged, the trial court may on the trial of one require the presence in court of the other defendant so as to permit the witnesses to identify him. Here it was necessary for several Kings X employees to identify the codefendant as being in appellant’s company on several occasions and there was the possibility of hearsay problems arising so as to require the eodefendant’s availability for cross-examination. Additionally the codefendant was appellant’s only witness in a fruitless effort to exonerate him. Although the better practice might be to have the codefendant brought into court upon occasions as they singly arise, we cannot say the trial court abused its discretion in the procedure employed.
Judgment affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
The Kansas Commisison on Civil Rights (hereinafter referred to as Commission), Anthony D. Lopez (executive director of the Commission), and Harriet Graham (investigator for the Commission) appeal to this court from an order of the District Court of Shawnee County, Kansas, permanently enjoining the appellants from enforcing or seeking to enforce a subpoena duces tecum served upon the Atchison, Topeka and Santa Fe Railway Corporation (hereinafter referred to as Santa Fe) in the course of an investigation of a complaint alleging discrimination, to the extent that the subpoena would require the production of “Arrest and Conviction Records” of all employees hired into the “Track-man” classification during the year 1972 in the eastern division of Santa Fe.
The parties agree the issues to be determined are:
(a) Is there a constitutionally protected right to privacy extending to the arrest and/or conviction records as reflected in the personnel files of Santa Fe’s employees?
(b) If such right exists, would the divulging of such information pursuant to the Commission’s subpoena be a defense to possible actions brought against Santa Fe by its employees for violation of their constitutional rights?
(c) Is there a compelling public necessity for disclosing the arrest and conviction records overriding the right of privacy, if such exists?
The facts are not in dispute. On April 4, 1972, Arnold S. Lopez, a 29 year old Mexican-American, filed an application for employment with the eastern division of Santa Fe as a trackman. A track-man is one of 25 or 30 different classifications of maintenance of way employees. Lopez was placed on the job at that time and his application was forwarded to the special services department for processing. Included in the application was a question relating to crimes for which the applicant had been convicted, and Lopez answered by writing: “parole 2 Mont Carroll Wray Misdemeanor”. In his application Lopez consented to fingerprinting and authorized Santa Fe ti> check them with, or furnish them to, any federal, state or local government agency. Pursuant to company procedure, a check was made by the superintendent of special services on the applicant’s past criminal record. The superintendent filed his report by letter dated April 10, 1972, showing twenty convictions for various offenses including assault and battery, drunk, driving while intoxicated, resisting arrest and numerous traffic offenses. Seven other entries are shown indicating possible arrests or inquiries concerning Lopez. The recommendation on the report was not to employ Lopez. On April 14, 1972 a certified letter was mailed to Lopez informing him that, “it is necessary your services be discontinued, account your application disapproved.”
In May of 1972 Lopez filed a complaint with the Kansas Commission on Civil Rights charging Santa Fe and its representatives with violating the Kansas Act Against Discrimination “for terminating me because I am a Mexican American.”
Lopez’ complaint was served upon Santa Fe on May 24, 1973, and Harriet Graham, investigator or field representative of the Commission, initiated an investigation to ascertain whether there was any basis for the complaint. It soon became evident to the Commission that Lopez had been discharged due to the nature of his police record and the investigation was directed toward determining whether Lopez’ record had been considered in the same light as the records of other employees and applicants, as well as to determine whether the employer had considered factors which had a disparate impact on persons of Lopez’ ancestry and for which there was no valid business purpose. Santa Fe cooperated in the investigation by furnishing lists of employees and other records to Ms. Graham.
However, Santa Fe refused to make arrest and conviction records of its employees available to the Commission; consequently, on September 27, 1973, Ms. Graham served a subpoena duces tecum signed by Lopez upon a Santa Fe attorney seeking:
“Complete and total personnel records, including, but not limited to the ‘Arrest and Conviction Records’, of all employees hired into the ‘Trackman’ classification during the calendar year 1972, in the Eastern Division, Atchison, Topeka and Santa Fe Railroad, Emporia, Kansas.”
This action was filed October 3, 1973, by Santa Fe and requested the court to- temporarily and permanently enjoin and to restrain the Commission from enforcing or seeking to' enforce the above subpoena which would require the production of “Arrest and Conviction Records” as may be shown in the personnel files of any Santa Fe employees. The petition alleged that furnishing the arrest and conviction records sought by the subpoena duces tecum would constitute denial of the civil rights of the employees in the designated classes in violation of numerous statutes and constitutional provisions, both state and federal; compliance would subject Santa Fe to suit for damages for violation of its employees’ civil rights; and by reason of its dilemma in choosing between damage suits by its employees and contempt action by the Commission, Santa Fe was subjected to irreparable damage. The petition also alleged a procedural defect in the subpoena.
Thereafter, the Commission issued an identical subpoena but cured the procedural defect contained in the original subpoena, and Santa Fe amended its petition to refer to the second subpoena. The parties agreed the issues were the same in both petitions and the court should determine the matter.
A temporary injunction was issued and thereafter consideration of a permanent injunction was before the trial court on December 7, 1973, for a hearing on Santa Fe’s motion for judgment on the pleadings. Affidavits were presented to and accepted by the trial court and due notice having been given, with all parties having a reasonable opportunity to present pertinent material, and there being no genuine issue as to any material fact, the court treated the motion as one for summary judgment in accordance with K. S. A. 1973 Supp. 60-212 (c). The trial court granted a permanent injunction and found:
“1. That for plaintiff to release data relating to criminal records of employees would violate the rights of such employees to privacy and would violate their confidential rights.
“2. That no immunity can attach to plaintiff for compliance with the subpoena — K. S. A. 1972 Supp. 44-1004 (5) specifically denies it immunity.
“3. That there is no compelling public necessity for such disclosures of such third persons’ rights.
“4. That the subpoena duces tecum issued by the defendants is under all of the circumstances, improper.
“5. That unless permanent injunction is issued plaintiff will suffer irreparable damage, and will have no meaningful relief.”
The scope of the Kansas Act Against Discrimination may be briefly summarized. The first act was originally passed in 1953 and it has been amended and expanded on a number of occasions since that time. K. S. A. 44-1001 declares in substance that it is the policy of the State of Kansas to eliminate and prevent discrimination in all employment relations, in places of public accommodations, and in housing. It is not only race discrimination which the act seeks to avoid; it also seeks to eliminate discrimination based upon religion, sex, physical handicap (1974), national origin and ancestry. K. S. A. 44-1004 sets forth the functions, powers and duties of the Commission. It is given broad powers to adopt suitable rules and regulations to carry out the provisions of the statutes. Under 44-1004 (5) it has the power to subpoena witnesses, compel their appearance, require the production for examination of records, documents and other evidence or possible sources of evidence. The commission may issue subpoenas to compel access to or the production of such materials, or the appearance of such persons, and may issue interrogatories to a respondent to the same extent and subject to the same limitations as ivould apply if the subpoenas or interrogatories were issued or served in aid of a civil action in the district comt. The Commission may administer oaths and take depositions subject to the same limitations as would apply if the depositions were taken in the aid of a civil action in court. In case of refusal of any person to comply with any subpoena, the district court of any county may, upon application of the Commission, order compliance and failure to obey the order may be punished by the court as contempt. It may negotiate conciliation agreements, conduct hearings, and may make final orders, after a public hearing, granting relief to correct patterns of discrimination and to- prevent their reoccurrence. K. S. A. 44-1004 ( 9), (10), (11), and (12) authorizes the Commission, in cooperation with the State Department of Education, to carry out an educational program, to study the problems of discrimination and to encourage community effort to eliminate discrimination and foster good will among all elements of the population of the state. Under K. S. A. 44-1005 the Commission is granted broad powers of investigation where a verified complaint is filed, and it is given the same broad powers of investigation even though a formal complaint is not filed. K. S. A. 44-1005 further provides that if after such investigation it appears that probable cause exists for crediting the allegations of the complaint, the Commission may endeavor to eliminate the unlawful discriminatory practice by conference and conciliation.
In respect to the various powers conferred and the duties imposed upon the Commission by the legislature, 44-1005 specifically proscribes: “The members of the commission and its staff shall not disclose what has transpired in the course of such endeavors.” (Emphasis added.)
If the Commission s efforts to eliminate an unlawful discriminatory practice by conference and conciliation fails, 44-1005 authorizes further proceedings upon a complaint wherein notice and hearing is contemplated. At this juncture the investigative function of the Commission ends and its adjudicatory function begins. (See, Atchison T. & S. F. Rly. Co. v. Commission on Civil Rights, 215 Kan. 911, 529 P. 2d 666.)
Limitation on the administrative power of investigation by the Kansas Commission on Civil Rights was under consideration in Yellow Freight System, Inc., v. Kansas Commission on Civil Rights, 214 Kan. 120, 519 P. 2d 1092, where the court had before it a subpoena, issued by the Commission in the course of investigating complaints charging discriminatory “layoff” practices, which ordered the employer to produce employment histories of all employees in the same class as the complainants. In answer to the employer’s contention that the Commission was under a burden to prove the relevancy of the subpoenaed information to the specific acts of discrimination charged in the complaint, the opinion stated:
“The weight of authority of administrative law refuses to apply the stringent relevancy requirements of subpoenas in aid of civil or criminal litigation to agency subpoenas. The test of relevancy we approve is set forth in Brovelli, [56 Cal. 2d 524, 15 Cal. Rptr. 630, 364 P. 2d 462], where it is held:
‘“. . . [I]t requires only that the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and that the information sought be reasonably relevant. (United States v. Morton Salt Co., supra, 338 U. S. 632, 651-654; Oklahoma Press Pub. Co. v. Walling, 327 U. S. 186, 202 et seq. [66 S. Ct. 494, 90 L. Ed. 614 166 A. L. R. 531].)’ (p. 529.)” (p. 125.)
It was further held in Yellow Freight, that where there is a possibility of relevancy in the documents subpoenaed and there is no showing that the subpoena is unreasonable or oppressive the statutes granting the power to subpoena should be liberally construed to permit inquiry.
Recently, the Tenth Circuit Court of Appeals concluded in Equal Employment Opportunity Commission v. University of New Mexico, 504 F. 2d 1296 (10th Cir. 1974), that administrative subpoenas which were previously condemned as “fishing expeditions” are now permitted, and that administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose.
The appellants argue under the broad public policy mandate of the legislature, to eliminate and prevent discrimination in all employment relations, it was incumbent upon them in the course of investigating Lopez’ complaint to seek answers to the following questions:
“1. Did appellee consider the arrest records of employees in contravention of the well settled rule of Gregory v. Litton Systems, Inc., 316 F. Supp. 401, mod 472 F. 2d 631 (D. C. Cal 1970, which holds that arrests are irrelevant to the issue of employment, and that their consideration, in light of the generally recognized fact that members of minority groups are more frequently arrested than Caucasians, would have a disparate and unlawful discriminatory effect upon members of minority groups?
“2. Did appellee, in contravention of the rule announced by the Supreme Court in Griggs vs Duke Power Company, 401 U. S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971), engage in an employment practice which operated to exclude minorities by consideration of factors not related to job performance; i. e., the consideration of a conviction when the nature of the conviction did not relate to the nature of the employment?
“3. Did appellee disqualify Arnold S. Lopez because of convictions yet knowingly hire others with the same or similar convictions?
“4. Did appellee’s agents or employees who compiled the police records upon which employment decisions were made make ‘errors’ detrimental to members of minority groups while stating correctly the records of Caucasians, thereby procuring management decisions discriminatory to members of minority groups?
The appellants argue the subpoenaed material is relevant to the determination of the second, third and fourth possibilities quoted above. The appellants do not dispute the Santa Fe’s claim that the arrests (as opposed to convictions) of Lopez were not considered in its decisions not to hire him.
The Santa Fe takes the position the disclosure of the subpoenaed material does not reach any of the issues in Lopez’ complaint charging the Santa Fe with discrimination based upon his race. Santa Fe urges that conviction records may only be considered by an employer in determining whether or not to hire an individual when the convictions are job related, and that Lopez’ long record of drinking, fighting and traffic offenses was an appropriate consideration for the position of “Trackman”. Santa Fe argues from affidavits in the record that “Trackmen” operate in gangs that vary from five to eleven people, live together in “bunk cars” or hotels for substantial periods of time and are occasionally authorized to drive then-own cars to the work site. Thus, Santa Fe contends the only questions raised by Lopez’ complaint is the extent to which his conviction record may lawfully be said to be job related, and that this question is not a comparative one; consequently, the conviction records of other employees are irrelevant.
The thrust of the appellants’ argument may be summarized as follows: The controlling issue is not whether Santa Fe’s alleged reasons for the dismissal of Lopez have merit, per se, but whether those reasons are pretextual and whether they reflect bias, conscious or subconscious, based on national origin. On this point we conclude it is relevant to the complaint that the Commission be permitted to investigate the subject personnel files in order to determine how “Trackmen” of national origins other than Lopez were treated in comparable situations.
Persuasive authorities supporting our conclusion are McDonnell Douglas Corp. v. Green, 411 U. S. 792, 36 L. Ed. 668, 93 S. Ct. 1817, and Equal Employment Opportunity Commission v. University of New Mexico, supra.
In McDonnell Douglas Corp. v. Green, supra, the United States Supreme Court dealt with a case involving a complaint under Title VII of the Civil Rights Act of 1964 filed by a black civil rights activist when his re-employment application was rejected because he had previously engaged in disruptive and illegal activity against McDonnell Douglas Corporation (McDonnell). A part of his pro test was that his discharge as an employee of the firm was based upon McDonnell’s racially motivated general hiring practices. The court held that even though McDonnell’s assigned reason for rejecting the complainant’s re-employment application was sufficient to discharge its burden of proof at that stage to meet the complainant’s prima facie case of racial discrimination, still the inquiry must not end there.” The court said:
“. . . While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner [McDonnell] to use respondent’s [complainant] conduct as a pretext for the sort of discrimination prohibited by §703 (a) (1). On remand, respondent must ... be afforded a fair opportunity to show that petitioner’s stated reason for [his] . . . rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against [McDonnell] of comparable seriousness . . . were nevertheless retained or rehired. [McDonnell] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.
“. . . In short, on the retrial respondent [complainant] must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision.” (pp. 804, 805.).
In Equal Employment Opportunity Commission v. University of New Mexico, supra, a case similar to the one at bar, the E. E. O. C. was investigating a complaint filed by an associate professor, who had been dismissed from the University’s faculty, charging that he had been “discriminated against because of my national origin, Yugoslav.” The University’s reason for terminating the complainant alleged “poor performance and antagonistic attitude” which was “■unacceptable and detrimental” to his department. In the course of its investigation, the E. E. O. C. issued a subpoena duces tecum for copies of personnel files of faculty members terminated from the complainant’s department during a specified time interval, and copies of personnel files of all faculty members of the complainant’s department as of a specified date. The E. E. O. C. instituted an action to compel the University to comply with the subpoena. The E. E. O. C. contended the information sought by its subpoena was necessary comparative data essential to ascertaining whether any transgressions attributed to the complainant had been committed by other employees who have been treated in the same manner as complainant. The University argued, in effect, that evidence of the complainant’s poor job performance was so compelling that it constituted the exclusive reason for his termination and, therefore, there was no need to investigate or inquire further. The Tenth Circuit held that the “broad sweep” of the Civil Rights Act dictated that such an inquiry could be pursued; the subpoena was relevant to the charge; the subpoena sufficiently described the information sought and was not overbroad and unreasonable in scope; it did not violate the Fourth Amendment prohibition against unreasonable searches, and was not arbitrary, capricious and unreasonable; and that the subpoena was enforceable without modification.
In the case at bar the trial court found the subpoena duces tecum issued by the Commission was under all of the circumstances improper; that for Santa Fe to release data relating to criminal records of its employees would violate the rights of such employees.
Having established the relevancy of the subpoenaed information, our inquiry will now be focused upon whether there exists a constitutionally protected right to privacy extending to the arrest and/or conviction records as reflected in the personnel files of the Santa Fe’s employees.
It must be conceded, as Santa Fe argues, that the doctrine of respondeat superior creates a duty to the public on the part of the employer, a public carrier in this case, to> know the background and history of a prospective employee before placing such employee in a position to act on behalf of Santa Fe. But this, Santa Fe contends, does not mean that every applicant for employment has surrendered his reasonable and legitimate expectations of privacy.
The record in this case discloses a high regard by the Santa Fe for the privacy and dignity of its employees. An adverse report as to a “criminal record” is not handled in a manner which is open to the eyes of any clerk processing papers. Such a report is sent to the division superintendent under a “personal-confidential” cover. If this report, as in the instant case, results in a decision not to hire, both the notice to the applicant and the company records prepared for payroll purposes disclose only “discharged account application disapproved.” It is only when, as here, the applicant himself places the matter in issue that adverse data is ever disclosed by Santa Fe.
Here, however, the actual persons whose rights to> privacy would be violated by compliance with the subpoena have raised no complaint. They have not placed their personal histories, in issue. We are advised in Santa Fe’s brief that in the course of the hearing on December 7, 1973, Santa Fe tendered to the court for examination in camera a sealed envelope containing the conviction records sought by the Commission. The court was advised the envelope contained eleven such records, that six of the applications had been disapproved, and that of the balance, two had since resigned. It is these records, plus the records of employees who have only “arrest records”, that the Commission seeks by its subpoena.
Santa Fe’s employees in their application for employment authorized Santa Fe to obtain data regarding the applicants “personal record and reputation”; the applicant was required to consent to finger printing, and to disclose any history of crimes. Santa Fe argues that by so doing the employees no more surrendered their right to privacy as to any arrest or conviction records, than they surrendered their right to privacy as to their medical records by authorizing Santa Fe to conduct physical examinations or re-examinations.
Here the Commission does not challenge Santa Fe’s right to raise constitutional issues of parties not before the court. The employees whose constitutional rights Santa Fe seeks to protect in this case are employees of Santa Fe who have made no complaint to the Commission, nor have they raised an issue as to the disclosure of adverse data in their personnel file.
In this connection see Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 836; Barrows v. Jackson, 346 U. S. 249, 97 L. Ed. 1586, 73 S. Ct. 1031; Griswold v. Connecticut, 381 U. S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678; and Eisenstadt v. Baird, 405 U. S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029, which seem to authorize Santa Fe to raise the constitutional right of third parties in a civil rights case.
Santa Fe contends the right of privacy which it seeks to protect on behalf of its employees is a constitutional right.
Constitutional rights, in and of themselves, do not create privileges. The constitution protects against improper invasion of such rights. This is illustrated by the issuance of a search warrant ex parte upon a showing of probable cause by the applicant, who believes that evidence may be found within the described premises. It is also illustrated in cases involving the warrantless search of a person, where a person may be “frisked” incident to an investigative stop based on less than probable cause to arrest, Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; and also in cases where a full search of a person under lawful custodial arrest is a reasonable search under the Fourth Amendment, United States v. Robinson, 414 U. S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467. The basic requirement of the constitution and the courts is that an intrusion of a constitutional right is permissible if reasonable.
Here the Commission argues that there is no constitutionally guaranteed right to privacy extending to arrest and conviction records maintained in Santa Fe’s personnel files which would prevent the subpoena of such records. It is argued the constitution only protects people from unreasonable intrusions into their privacy just as they are protected only from unreasonable searches and seizures, and that the intrusion into the employee’s privacy in this case is reasonable.
Two decisions of the United States Supreme Court, Griswold v. Connecticut, supra, and Katz v. United States, 389 U. S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507, are frequently asserted as supportive of a constitutionally guaranteed right to privacy.
In Griswold it was held a Connecticut statute forbidding the use of contraceptives violated the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. There was sharp disagreement within the court as to which sections of the Bill of Rights were applicable. The majority opinion stated that the case concerned “a relationship lying within the zone of privacy created by several fundamental constitutional guarantees” and the Connecticut statute as applied invaded that protected area.
In Katz, supra, the court found the FBI’s eavesdropping of the petitioner’s telephone conversation, by attaching an electronic listening and recording device to the outside of the telephone booth from which the calls were made without obtaining a search warrant, constituted an unlawful search in violation of the Fourth Amendment. The court stated that the Fourth Amendment protects people, not places, and what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The court also stated that the Fourth Amendment cannot be translated into a general constitutional “right to privacy”, though that amendment protects individual privacy against certain kinds of governmental intrusion. The court noted that other constitutional provisions protect personal privacy from other forms of governmental invasion, but
“. . . [T]he protection of a person’s general right to privacy — his right to be let alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual States.” (pp. 350, 351.)
Justice White’s concurring opinion in Griswold, supra, contains the following with respect to determining what invasions of privacy are constitutionally impermissible:
“An examination of the justification offered, however, cannot be avoided by saying that the Connecticut antiuse statute invades a protected area of privacy and association or that it demeans the marriage relationship. The nature of the right invaded is pertinent, to be sure, for statutes regulating sensitive areas of liberty do, under the cases of this Court, require ‘strict scrutiny,’ Skinner v. Oklahoma, 316 U. S. 535, 541, and ‘must be viewed in the light of less drastic means for achieving the same basic purpose.’ Shelton v. Tucker, 364 U. S. 479, 488. ‘Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.’ Bates v. Little Rock, 361 U. S. 516, 524. See also McLaughlin v. Florida, 379 U. S. 184. But such statutes, if reasonably necessary for the effectuation of a legitimate and substantial state interest, and not arbitrary or capricious in application, are not invalid under the Due Process Clause. Zemel v. Rusk, 381 U. S. 1.” (pp. 503, 504.)
The test as stated in Justice Goldbergs concurring opinion (joined by Chief Justice Warren and Justice Brennan) in the Gris-wold case, supra, follows:
“In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. ‘Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling,’ Bates v. Little Rock, 361 U. S. 516, 524. The law must be shown ‘necessary, and not merely rationally related, to the accomplishment of a permissible state policy.’ McLaughlin v. Florida, 379 U. S. 184, 196. See Schneider v. Irvington, 308 U. S. 147, 161.” (p. 497.)
When the foregoing reasoning is applied to the instant case, we have no hesitancy in holding that enforcement of the Commission s subpoena requiring disclosure of the arrest and conviction records of the specified “Trackmen” for the purposes of its lawful investigation is not constitutionally impermissible as violative of the employees’ right of privacy. The public policy of this State as declared in the Kansas Act Against Discrimination compels that the interests of the individuals affected by the disclosure be subordinated in order “to eliminate and prevent discrimination in all employment relations” (K. S. A. 44-1001).
However, the Santa Fe is rightfully concerned over any misuse of its employees’ arrest and conviction records by the Commission. Public disclosure of such information could detrimentally affect the employees of Santa Fe. The sole justification for compelling the disclosure of such information by Santa Fe is to permit the Commission to investigate possible unlawful employment practices pursuant to K. S. A. 44-1001 et seq.; therefore, the Commission must honor the confidentiality of the arrest and conviction records it seeks from Santa Fe and any use or dissemination of the disclosed information beyond the legitimate scope of its investigation is prohibited.
The duty of the Commission to maintain the confidentiality of the arrest and conviction records of Santa Fes employees, which the Commission demands by the issuance of the subpoena herein, is imposed by the legislature in the Kansas Act Against Discrimination. K. S. A. 1972 Supp. 44-1005 (L. 1972, ch. 194, § 5) covers the subjects of verified complaints by or for aggrieved persons, investigations, hearing commissioners, conferences and conciliation and subpoenas, among others. In this section of the statute the legislature specifically proscribes: “The members of the commission and its ■ staff shall not disclose what has transpired in the course of such endeavors.” (Emphasis added.) The foregoing is an admonition by the legislature that the Commission, any member or members of the Commission, and any member or members of the Commissions staff are required to treat any and all information gathered in the course of an investigation by the Commission as confidential, even where such information is gathered pursuant to its power of subpoena, as here.
A similar situation confronted the United States Court of Appeals, Tenth Circuit, in Equal Employment Opportunity Commission v. University of New Mexico, supra. There the University contended the subpoenaed information was not sufficiently identified to protect University personnel from disclosure of confidential information, and that the subpoena must be modified, if enforceable, so as to describe the information sought in the various personnel files with particularity. It was stipulated at the trial that the subpoenaed personnel files and records were “both confidential and extremely sensitive.” The court held the subpoena duces tecum “sufficiently describes the information sought and that although the information sought is confidential it must be, as stipulated, treated as such in the course of the investigation.” As to' the confidential nature of the files subpoenaed, the court said:
“. . . It is specifically proscribed, that any officer or employee of the Commission who makes public in any manner such information obtained in the course of investigation shall be guilty of a misdemeanor and, upon conviction, subject to a fine of not more than $1,000.00 or imprisoned not more than one year. 42 U. S. C. § 2000e-8 (e). See United States v. Powell, supra. Just as the Court in Powell, supra, did not require a showing of probable cause in order to sustain an IRS administrative summons of taxpayer accounts in a tax fraud investigation, so, too, in dictum, the Court observed that the ‘probable cause’ requirement has been rejected in like circumstances involving other government agencies. 379 U. S. at 57. The Court there cited Oklahoma Press Publishing Co. v. Walling, Wage and Hour Administrator, 327 U. S. 186 (1946), and United States v. Morton Salt Co., supra, for the rule that the enforcement of administrative subpoenas rests upon showings that the investigation; (a) will be conducted pursuant to a legitimate purpose; (b) that the inquiry is relevant to the purpose; (c) that the information sought is not already in the possession of the administrative body; and (d) that the administrative steps required by Code have been followed.
“We thus conclude that under the statutes here applicable that subpoena duces tecum is enforceable even though no ‘probable cause’ has been shown that the University has violated the Act. . . .” (p. 1303.)
The Santa Fe contends the furnishing of arrest and conviction records by its officers, employees or servants pursuant to the subpoena issued by the Commission would place Santa Fe in jeopardy of suit for damages by all members of the class, and as a result it will suffer irreparable damage.
It is clear under K. S. A. 1972 Supp. 44-1004 (5) that no immunity could attach to Santa Fe by complying with the subpoena in question. The statute provides that no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he testifies or produces evidence, unless the person, so testifying commits perjury. This section of the statute then provides: “The immunity herein provided shall extend only to natural persons.”
By reason of the foregoing, Santa Fe argues, that if it complied with the subpoena, a cause of action could be stated against it in tort, under the doctrine respondeat superior, for invasion of the privacy of this class of employees. (Citing, Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993.) Santa Fe further argues the threat of an action under 42 U. S. C. § 1981 et seq., is more ominous. Section 1983 of the Federal Civil Rights Act provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Santa Fe cites Monroe v. Pape, 365 U. S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473; Adickes v. Kress & Co., 398 U. S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598; and Whirl v. Kern, 407 F. 2d 781, 787 (5th Cir. 1969), for the proposition that there can no longer be any question but that the “under color of” provision applies as well to unconstitutional actions taken without state authority as to unconstitutional action authorized by state authority.
It must be conceded that no grant of immunity by the state would be binding in a federal court in an action brought under Section 1983, supra, (Kletschka v. Driver, 411 F. 2d 436, 448 [2nd Cir 1969]).
A fundamental requirement for sustaining a suit for damages under 42 U. S. C. § 1983 is that the citizen of the United States or other person within the jurisdiction thereof be deprived of ". . . any rights, privileges, or immunities secured by the Constitution and laws. . . .” Since we have determined that Santa Fe’s disclosure of the subpoenaed information would not violate the constitutional rights of its employees, there is no basis for the employees to maintain a Section 1983 action against Santa Fe in a federal court. The broad sweep of the Federal Civil Rights Act is for all practical purposes identical to the broad sweep of the Kansas Act Against Discrimination, having as one of its directed purposes the elimination of discrimination in all employment relations. Under these circumstances we find it unnecessary to pursue further Santa Fe’s argument that it would not be protected by proceeding “under color of” state laws.
Santa Fe contends it would be susceptible to a common law suit for invasion of privacy if it discloses the subpoenaed information.
This jurisdiction has recognized invasion of the right of privacy as a tort upon which a cause of action may be based. (Kunz v. Allen, 102 Kan. 883, 172 Pac. 532; Johnson v. Boeing Airplane Co., 175 Kan. 275, 262 P. 2d 808; Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P. 2d 1063; and Froelich v. Adair, supra.) In Froelich, supra, this court quoted the following rule from American Law Institute, Restatement of the Law Second, Torts, Tentative Draft No. 13, § 652D:
“One who gives publicity to matters concerning the private life of another, of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy.”
By its subpoena the Commission sought a compilation made by Santa Fe of arrest and conviction records of specified employees. Arrests are frequently made in public and are publicized in the news media. Furthermore, pleas of guilty and convictions must be made in open court. Court records, subject to exceptions not here applicable, are open for inspection by any citizen (K. S. A. 45-201). In order to maintain an action for the public disclosure of private facts, the facts disclosed to the public must be private ones, and not public ones (Prosser, Law of Torts [4th Ed.] p. 836).
The legislature recognized the necessity to protect certain privileged communications by enacting statutes found between K. S. A. 60-423 and 60-440, including the revisions found in K. S. A. 1973 Supp. 60-426, 427, 428 and 439. Such privileges include those of an accused to refuse to testify, the privilege against self-incrimination, the lawyer-client privilege, physician-patient privilege, the marital privilege, the penitential communication privilege, and those privileges relative to religious beliefs, political votes, trade secrets, secrets of state, official information, communications to a grand jury and identity of an informer. Even these privileges are subject to certain reasonable intrusions as enumerated by the statutes. Most important, none of these privileges could in any way be tortured to extend to communications between an applicant and a prospective employer, nor do any of these privileges in any way deal with arrest and conviction records.
Thus it seems reasonably clear that neither the courts of this state nor the legislature have ever recognized any constitutionally guaranteed or protected right to privacy which extends to arrest and conviction records. (See, Menard v. Mitchell, 430 F. 2d 486 [D. C. Cir. 1970], reh. 328 F. Supp. 718 [D. D. C: 1971].)
Under K. S. A. 1972 Supp. 44-1004 ( 5) the Commission is authorized to issue subpoenas to compel access to, or the production of, such materials to the same extent and subject to the same limitations as would apply if the subpoena were issued or served in aid of a civil action in the district court. It could not be successfully argued that arrest and conviction records required in aid of a civil action in the district court could not be subpoenaed.
By reason of the foregoing we concluded it would not be oppressive or unreasonable to enforce the Commission s subpoena.
The judgment of the lower court is reversed.
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The opinion of the court was delivered by
Smith, J.:
This was an appeal from an award made by a board of county commissioners in a proceeding to relocate a county road. A motion of the county attorney to dismiss the appeal on account of a defect in the appeal bond was sustained. Claimants appeal. ' There were four separate awards made denying claimants’ claim for damages. In each case the appeal was to the district court by filing notices of appeal and appeal bonds. These bonds were substantially alike and were as follows:
“Appeal Bond
“Witnesseth : That whereas Henry Fredelake did on September 16, 1937, appeal from the.action of the board of county commissioners of Ford county, Kansas, taken on September 7, 1937, in which said board did deny his claim for damages in connection with the relocating of the road between sections eight (8) and five (5), township twenty-six (26), range twenty-one (21), Ford county, Kansas, and partitioned for by Joseph B. Klenke, et al., of Wheatland township, Ford county, Kansas.
“Now, therefore, The undersigned, Henry Fredelake, as principal, and Tony Fredelake, as surety, are held and firmly bound unto the state of Kansas in the penal sum of $100. The condition of this bond is such that if the costs of said appeal are paid promptly when due, and if the said Henry Fredelake will prosecute said appeal without unnecessary delay, then this bond shall be void; otherwise in full force and effect.”
The county attorney on behalf of the county commissioners filed motions to dismiss these appeals because the bonds were each in the penal sum of $100. When the motion came on to be heard it was agreed that all the cases should be consolidated and heard together. The trial court dismissed the appeals.
At this hearing the trial court heard evidence as to the accrued costs in the cases and as to the probable costs. The court made the following finding:
“The court further finds that if the court had the power to fix the amount of said bonds, the court would find that said bonds are good and sufficient to secure the costs of said appeals; the court further finds as a matter of law under the present decisions of the supreme court of Kansas that said bonds are legally insufficient to confer jurisdiction on the court for the reason that said bonds are in the penal sum of $100.”
Claimants argue that since the record discloses and the court found in effect that the amount in which the bonds were given was adequate to pay whatever the costs would amount to, then the bonds should have been held to be good and sufficient as provided in the statute. This argument depends for its potency on the power of the, trial court to make the finding quoted.
The pertinent statutes are as follows: G. S. 1935, 68-107, which reads:
“Any person feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decisions of said board of county commissioners to the district court upon the same terms, in the same manner and with like effect as in appeals from judgments of justices of the peace in civil cases . . .”
And G. S. 1935, 61-1002, which reads:
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal. . .
This court has held that under the above statutes the filing of a proper bond was jurisdictional and that in- order for a bond to confer jurisdiction on a trial court, compliance must be had with the statute. See Jenson v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080, and cases cited. The result is that the trial court had no jurisdiction to make any findings in these appeals. No appeal had been perfected.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Allen, J.:
This was an action to recover the value of wheat deposited by plaintiff in defendant’s elevator. The jury returned a verdict in favor of the plaintiff. The court sustained defendant Carlson’s motion for judgment notwithstanding the general verdict. Plaintiff appeals.
The controversy hinges on whether the petition states a cause of action upon an implied contract for the value of the wheat or in tort for the conversion thereof.
The amended petition alleges:
“1. That plaintiff is a farmer, a resident of Pratt county, Kansas, and his post-office address is St. John, Kan.; that the defendant H. W. Carlson was during the years of 1931 and 1932 engaged in business at Iuka, Pratt county, Kansas, under the trade name and style of H.W. Carlson Grain Company, and was engaged in the business of buying and selling wheat and other grains; that the defendant L. M. Dillon was employed by the said H. W. Carlson during the years 1931 and 1932 in connection with the grain business at Iuka, Kan., under circumstances that are more particularly set out in the next succeeding paragraph.
“2. That previous to about the month of June, 1931, for several years the said H. W. Carlson had been engaged in the grain business at Iuka, Kan., and operating- a grain elevator, and the said defendant L. M. Dillon was employed to assist in the work of buying, selling and handling grain generally in and about said elevator and the office connected therewith.
“3. That sometime previous to June, 1931, the exact date of which is unknown to plaintiff, the defendant H. W. Carlson secured employment in Wichita, Kan., with a firm, company or corporation engaged in buying and selling grains, and was thus absent from Pratt county and could not give his personal attention and all of his time to the handling' of grain at Iuka as hereinbefore set out; that he thereupon authorized, permitted and directed his employee, L. M. Dillon, to operate said grain business and elevator at Iuka, Kan., and at all times hereinafter set out, until about the 5th day of June, 1932, the said L. M. Dillon was in active charge of said grain business at Iuka, Kan., as the employee of the said H. W. Carlson, and in connection with such employment obtained and had full knowledge and information concerning the transactions hereinafter set out.
“4. That the defendant H. W. Carlson while operating said grain elevator and grain business at Iuka, Kan., as hereinbefore stated, by and with the active assistance of the said L. M. Dillon, held out to the farmers in the vicinity of Iuka that he would receive and store wheat for farmers in the vicinity of Iuka who desired to have their wheat stored, to be redelivered to them at any future time when they should elect to have the same returned to them or sold on their behalf and for their account.
“5. That during the year 1932 the plaintiff and one-Russell delivered to the defendant H. W. Carlson, at his grain elevator in Iuka, Kan., for storage, wheat on the dates and in amounts and grades as hereinafter set out, to wit:
Ticket Date
No. Mo. Day Test
1837 Feb. 27 1 truckload containing 69 bu., 30 lbs............... 60
(There are then set out 39 tickets showing the delivery of wheat from February 27, 1932, to June 2, 1932, totaling 3,285 bushels, 20 lbs., all of which tested 60.)
“That on the several dates hereinbefore mentioned, and at the time each truckload of wheat was delivered, a ticket was issued by the said H. W. Carlson, doing business as the H. W. Carlson Grain Company. Attached as exhibit ‘A’ is a copy of ticket No. 1837; that each of the other tickets representing the several- truckloads of grain hereinbefore mentioned were of the same form as exhibit ‘A,’ differing only in dates, numbers of bushels, weights, tests and discounts. That all of said tickets indicate that said wheat was received from Russell & Kipp. Plaintiff says that said wheat was grown on the land owned by the plaintiff and occupied by his tenant —-Russell, under a lease agreement by which each, landlord and tenant, received one-half the crop; that the said-Russell, tenant, received payment for his one-half of said wheat, to wit, 1,642 bu., 40 lbs., and plaintiff’s one-half thereof, to wit, 1,642 bu., 40 lbs., remained in storage and no part thereof has been withdrawn by the plaintiff- or sold or disposed of in any way.”
The petition then sets out similar allegations as to other deposits of wheat. It alleges a “demand on the defendant H. W. Carlson for the return of said wheat, or in lieu thereof, for payment to plaintiff of the value thereof, and the defendant refused to redeliver such wheat or to pay for the same.”
The petition further alleges:
“6. That at all times when wheat was delivered by the plaintiff to the defendant H. W. Carlson at his elevator in Iuka, Kan., as hereinbefore set out, the defendant L. M. Dillon was in charge of the grain elevator belonging to the defendant H. W. Carlson, and knew that said grain was delivered as aforesaid for the purpose of storage to be held for and on the account of the plaintiff, and notwithstanding the knowledge of the said wheat being thus put in storage for the plaintiff, he actively aided, abetted and assisted the defendant H. W. Carlson in transferring said wheat from the elevator into cars on the Missouri Pacific Railway at Iuka, Kan., and caused said cars thus loaded with plaintiff’s wheat to be forwarded by the Missouri Pacific Railway Com pany over its lines to destinations unknown by the plaintiff, and the plaintiff does not now know and cannot state what became of his wheat or where it is at the present time.
“That by reason of the above and foregoing things done and acts performed by the two defendants acting jointly and collusively, the defendants have been guilty of converting plaintiff’s wheat of the value of $6,253 to their own use and for their own benefit, to the damage of plaintiff in the sum of $6,253.
“Wherefore, plaintiff prays judgment against the defendants in the sum of sixty-two hundred fifty-three dollars ($6,253), with interest, and for all other proper relief and for the costs of this action.”
Defendant contends that the plaintiff’s petition states a cause of action in tort for conversion, and that plaintiff cannot, after a trial of the issues as framed, shift his hold and recover on the inconsistent theory of an implied contract.
Plaintiff asserts the petition states a good cause of action for conversion or upon an implied contract; that the allegations as to conversion should be considered as surplusage., He claims that as the case was tried upon the theory of implied contract, and it not appearing the defendant was prejudiced in any way in the presentation of his defense, it was error to set aside the verdict.
In K. P. Rly. Co. v. Kunkel, 17 Kan. 145, 166, it was said:
“While the distinction between actions on contract and those for tort is plain and broad, yet, . . . it is not always easy to determine from the allegations of the petition in. which class the action must be placed; for contracts are often alleged in actions which clearly sound in tort, and as often tortious acts and conduct of the defendant are averred in actions purely ex contractu.”
In Pomeroy on Code Remedies, 5th ed., section 464, it is stated:
“But when the contract relied upon is implied, and is simply the fictitious promise which the law infers from the tortious acts themselves, it may be doubted whether it is possible, in accordance with the true principles of the reformed pleading, to frame a complaint or petition in all cases which shall show on its face that the plaintiff has elected to bring his action either in tort or on contract. In one class of liabilities it is certainly possible to do so; namely, in those which result from the defendant’s fraudulent representations and deceits. The allegation of a scienter is indispensable in the action ex delicto based upon such a liability, and distinguishes it in a marked manner from the correlative action based upon the implied promises. But when the liability results from the wrongful taking or conversion of chattels, from trespasses, negligences, or other similar kinds of wrongs, the vefy facts which are alleged in the action of tort are the facts from which the promise is inferred; and, according to the true theory of pleading, these facts must also be stated in the action ex contractu, without any legal inferences or conclusions. It conclusively follows, that in this general class of liabilities, as the facts which constitute the cause of action are the same in each, the averments of the complaint or petition must be the same in each kind of action, if the essential principles of the reformed system are complied with, so that it is impossible to indicate upon the face of the pleading alone the election which the plaintiff has made.”
When doubt exists as to whether the action is based on tort or on quasi contract, it has often been held by this court that words appropriate to an action for tort will be disregarded, and the petition will be interpreted as counting on quasi contract. (Webb v. Crawford County Comm’rs, 127 Kan. 547, 274 Pac. 249; Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230; State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P. 2d 131.)
Under the code section G. S. 1935, 60-704, the plaintiff’s petition must contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. It cannot be doubted that the petition in this case stated a cause of action in quasi contract for the value of the wheat. We think the allegation in the petition that “acting jointly and collusively, the. defendants have been guilty of converting plaintiff’s wheat” may be regarded as surplusage. In Delaney v. Implement Co., 79 Kan. 126, 98 Pac. 781, when a similar question was before the court, it was said: “In our opinion the petition stated a cause of action on contract, and the language seeming to indicate the contrary must be regarded as surplusage.”
In McGinn v. Butler, 31 Ia. 160, plaintiff alleged he deposited wheat with defendant under agreement to return on demand. The petition states that plaintiff demanded the wheat of defendants, but they had, before demand, shipped and sold the same. Appellant contended the action was in tort. The court said:
“We are clear that this action is not founded on tort. It is most manifestly an action to recover for the breach of an alleged contract. The gravamen of the action is the failure of the defendants to deliver to the plaintiff on demand the wheat stored by him with the defendants, according to the contract alleged. The allegation of the petition that defendants had shipped and sold the grain, and thereby converted it, is an unnecessary averment. It was but evidence and should not have been stated (Rev., § 2945), and might have been stricken out on motion.” (p. 162.)
See, also, 1 C. J. S., 1115, and cases cited, note 44.
An examination of the record discloses that the allegations in the petition were supported by the evidence. The unnecessary words as to conversion of the wheat do not, in our opinion, justify the action of the court in setting aside the verdict. Neither do we find that the defendant was in any manner prejudiced by the trial of the action on the theory of an implied contract.
It is urged that while the court in Pratt county had jurisdiction over the defendant (a resident of Sedgwick county) in a tort action, it did not have jurisdiction in an action on an implied contract. It is not contended that Carlson entered a special appearance to challenge the jurisdiction of the court. On the contrary, the record discloses that he entered a general appearance and filed divers motions, a demurrer to the petition, an answer, an amended answer, a demurrer to the evidence, a motion for a directed verdict, etc. Defendant objected to the submission of the case to the jury on the ground that the allegations in the petition stated a cause of action for conversion, and that the instructions of the court submitted the case on the theory of an implied contract. As we have seen, the petition stated a cause of action upon an implied contract. The defendant entered a general appearance and submitted to the jurisdiction of the court. In Bury v. Conklin, 23 Kan. 460, it was said: “It is a general principle of law, with probably no exception, that where a party voluntarily appears to the merits of any controversy, he thereby waives all irregularities which may have intervened in getting him into court.” It is now too late to raise a jurisdictional question.
Reference is made to Kipp v. Goffe & Carkener, 144 Kan. 95, 58 P. 2d 102. In that case the controversy was between the depositor of the wheat and the purchaser from the operator of the elevator. In the present case the wheat was delivered to the elevators in the crop year 1931, during which time Dillon was operating the elevators as the agent of Carlson. In the cited case the wheat was delivered during the crop year of 1932, during which time Dillon operated the elevators on his own behalf under a lease from tire owner. This action is against Carlson as the operator of the elevators, while the cited case was an action against the purchaser of the wheat. Under the facts in the cited case we found there was a sale and that Kipp was estopped by his conduct. That case rests on its own facts and is not controlling here. (The writer is unable to concur in this paragraph of the opinion.)
The judgment of the court in setting aside the verdict and entering judgment for defendant is reversed and the cause remanded with directions to enter judgment for the plaintiff on the verdict.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by an employee against a corporation to recover, under the first count, wages alleged to be due him, and under the second count, a penalty for failure to pay the same under the provisions of G. S. 1935, 44-301 and 44-302. The trial court overruled the demurrer of the defendant, The Kansas Electric Power Company, to plaintiff’s evidence on the first count and sustained its demurrer to the evidence on the second count. The defendant introduced its evidence and the trial court made findings of fact and conclusions of law. Judgment went for the plaintiff on the first count and against him on the second count. From the judgment and from the order overruling its motion for a new trial defendant appealed. Plaintiff cross-appealed only from the order sustaining defendant’s demurrer to his evidence on the second count.
We shall first consider errors urged by the defendant. The pertinent facts found by the trial court were:
“1. The court finds that on and prior to July 13, 1937, the defendant, The Kansas Electric Power Company, a corporation, was operating and maintaining in the city of Emporia, Kan., a system of motor-bus transportation under and by virtue of a valid franchise granted to said company by the city of Emporia, and an ordinance relating thereto, introduced in evidence, by stipulation of the parties, as plaintiff’s exhibit ‘A.’
“2. The court further finds that on July 13, 1937, the defendant entered into a written contract with Elmer Z. Reeves and Ernest Callison, of Winfield, Kan., whereby for a valuable consideration, the defendant assigned and contracted to the said Reeves and Callison, aforesaid, the operation of motor buses for the transportation of passengers in the city of Emporia, Kan., for a term of five years, and thereby delegated for said period of time, to the said Reeves and Callison the work of operating said transportation system required to be maintained and operated by the defendant under the franchise and ordinance heretofore referred to.
“3. The court further finds that pursuant to said contract the said Reeves and Callison took over the operation of said buses and transportation system in the city of Emporia, and between the first day of September, 1937, and the 14th day of October, 1937, inclusive, were operating and maintaining said transportation system pursuant to the written contract, heretofore referred to, entered into between the defendant and the said Reeves and Callison, which contract was introduced in evidence as plaintiff’s exhibit ‘B’ by stipulation of the parties.
“4. The court further finds that the city of Emporia, Kan., by resolution, duly enacted, voiced no objection to said contract, but specifically did not grant any rights to the said Reeves and Callison, nor waive any of its rights as against the defendant under its franchise and specifically reserved to said city its right to demand the faithful performance of the conditions of said franchise by the defendant under any and all circumstances, as disclosed by plaintiff’s exhibit ‘C’ introduced in evidence in this case by stipulation of the parties.
“5. The court further finds that on September 1, 1937, the said Reeves and Callison, a partnership, by and through Ernest Callison, orally employed the plaintiff as a mechanic and as an employee of the said Reeves and Callison to keep in repair the buses used in the operation of the transportation system to be maintained under said franchise, and that the said Reeves and Callison agreed to pay the said plaintiff the sum of forty cents per hour for his services.
“6. The court further finds that plaintiff, pursuant' to said oral agreement, commenced work and performed labor and services as a mechanic for the said Reeves and Callison continuously from noon, September 1, 1937, to noon, October 14, 1937, and that, pursuant to said agreement, said plaintiff worked at least four hundred and thirty hours as a mechanic for the said Reeves and Callison, and is entitled to forty cents per hour for four hundred and thirty hours of work, or one hundred and seventy-two ($172) dollars for the services and work so performed by said plaintiff.”
The trial court concluded the provisions of G. S. 1935, 44-306, were applicable and that the defendant was liable for the wages of the plaintiff in the same manner and to the same extent as Reeves and Callison, who had employed the plaintiff. That section provides:
“Whenever any such corporation shall contract any or all of its work to any contractor, then it shall become the duty of such corporation to provide that the employees of such corporation or contractor shall be paid according to the provisions of this act, and such corporation shall become responsible and liable to the employees of such contractor in the same manner as if said employees were employed by such corporation.”
The trial court further concluded:
“From a careful examination of plaintiff’s exhibit ‘B,’ being the agreement entered into between the defendant and Reeves and Callison, it is apparent that the defendant'did not sell the franchise to the said Reeves and Callison, and that the city did not approve any such sale, but that the defendant merely, under said contract, delegated the operation of the transportation system, to be maintained under said franchise, to the said Reeves and Callison for the period of five years, and that the defendant merely delegated the work and service of maintaining a transportation system to the said Reeves and Callison for a period and term of five years under the terms, conditions and restrictions set forth in said contract.
“There is no question in the mind of the court but that the defendant contracted its work of maintaining a transportation system in the city of Emporia to the said Reeves and Callison and that the said Reeves and Callison was a contractor within the meaning of said section.” (Italics inserted.)
The defendant contends Reeves and Callison were not contractors who were doing work for it, but were lessees or assignees of a franchise and were engaged in an independent enterprise. Defendant also insists it exercised no supervision or control over the business management and operations under Reeves and Callison. It further urges it paid nothing to the latter for the operation of the transportation system.
We need not determine whether the facts in the instant case are such as would constitute Reeves and Callison independent con tractors within a strict and technical, sense under other relations and circumstances. The question here is whether they should be regarded as contractors, in the instant case, in view of the apparent intent and purpose of the act in question. The answer must be found not only in the letter but in the spirit of the act, and in the terms and provisions of the contract involved. Let us first see whether Reeves and Callison were engaged in the operation of an independent enterprise as urged by defendant. That the franchise itself was not sold and that the fixed term over which Reeves and Callison were authorized to operate the transportation system as an independent enterprise, free from conditions and restrictions placed upon them by the defendant, will be amply disclosed by an analysis of the contract. Furthermore, as will presently appear, the city of Emporia refused to release defendant from its liability and responsibility under the franchise even for the limited five-year period. It may also be conceded the evidence did not disclose interference by defendant with the details of actual operation during the brief period Reeves and Callison were in charge. That fact alone, however, can hardly be said to constitute operation of an independent enterprise by Reeves and Callison. The contract itself, in a very real sense, constituted an instrument of supervision and control by defendant in important respects. It contained numerous specific provisions as to the manner and method of operation in default of which defendant retained the right to demand and assume immediate possession and control. The contract made mandatory the employment by Reeves and Callison of all bus drivers of the defendant company. It also provided these bus drivers could be discharged only for cause. The contract designated the location of the principal office and the location of a repair shop. It prescribed definitely the number and type of new buses Reeves and Callison would be required to furnish and the time 'within which they were to be placed in operation. In the contract defendant at least participated, if it did not in fact determine, the time schedule of buses. The contract actually fixed in advance the various rate schedules. It also required Reeves and Callison to carry liability and property damage insurance in an amount fully adequate to cover any liability which Reeves and Callison might incur for personal injuries or property damage. It required Reeves and Callison to execute a surety bond in a sum of not less than $10,000 in favor of defendant, conditioned upon the faithful performance of the agreement. Clearly these vari ous requirements and restrictions cannot well be said to be in harmony with the theory of operating an independent enterprise nor with the theory of operating independently the enterprise of another. When the terms and provisions of this contract are construed in their entirety, as they must be, we think the trial court correctly concluded it was in substance a contractual delegation of authority to operate the bus business under defendant’s franchise. This we think was sufficient, within the intent and purpose of G. S. 1935, 44-306, to render the defendant liable for plaintiff’s wages.
Defendant urges Reeves and Callison were not contractors as it paid them nothing for their services. The form of the compensation is not very material if in fact material at all. True, the record discloses no direct payment from defendant to Reeves and Callison for operating the system. We must assume, however, that the benefits which were intended to flow from defendant to Reeves and Callison, under the terms of the contract, must have been regarded by the latter as satisfactory compensation for the performance of the contract.
Defendant urges a franchise is subject to sale. (City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, 33 Pac. 309; Utilities Co. v. Railway Co., 108 Kan. 285, 195 Pac. 889.) That may be conceded as an abstract proposition, but it does not require a reversal of the judgment in the instant case. What were the terms, conditions and restrictions of the original franchise under which defendant obtained its grant of authority? We do not know. The terms of that franchise have not been presented to us. We do have before us the resolution which was adopted by the governing body of the city of Emporia when the instant contract, between the defendant and Reeves and Callison, was submitted to the city. The resolution clearly indicates the city refused to release defendant from its liability and responsibility to operate under the franchise. The pertinent portion of that resolution provided:
“Now, therefore, be it resolved that the governing body of the city of Emporia, Kan., has no objections to said contract and the terms and conditions thereof, it being specifically understood that the city, in taking this action, does not grant any rights to said Reeves and Callison nor waive any of its lights as against the said The Kansas Electric Power Company under its franchise, and specifically reserving to said city its rights to demand the faithful performance of the conditions of said franchise by the said The Kansas Electric Power Company under any and all circumstances.”
In view of all these circumstances we think the trial court correctly concluded that Reeves and Callison were contractors within the intent and purpose of G. S. 1935, 44-306, and that defendant was liable for the unpaid wages.
What about plaintiff’s cross-appeal on the question of his right to recover a penalty from defendant by reason of the failure of Reeves and Callison to pay the wages due? G. S. 1935, 44-307, provides:
“It shall be unlawful for any firm or corporation employing labor within this state, to refuse or neglect to pay to any person leaving its service either by resignation or discharge any money due as wages within ten days from the termination of such services, and such payment must be made either at the place of discharge or at any office of such company or corporation within the state as may be designated by the party employed, he giving notice in writing, to the foreman or party in charge of such work.” (Italics inserted.)
The trial court ruled against the penalty claim on the ground that this section applied only to a firm or corporation which actually employed the workman. Plaintiff, a mechanic, was employed by Reeves and Callison and not by the defendant. In view of the record before us it is unnecessary to decide whether liability for a penalty is necessarily, and under all circumstances, restricted to the party actually employing the laborer. Irrespective of that question, the demurrer was properly sustained. The lawmakers have prescribed the conditions under which the penalty may be imposed. Failure to comply with the statutory conditions defeats the claim. The conditions are few and practical. The demand must be in writing, addressed to the foreman or party in charge of the work, and it must designate as the place of payment one of the places named in the statute. (Hurt v. Edgell, 147 Kan. 234, 75 P. 2d 834; Gawthrop v. Missouri Pac. Rly. Co., 147 Kan. 756, 78 P. 2d 854.) With these conditions precedent plaintiff failed to comply.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an original action in mandamus to determine the question whether the plaintiffs are exempted from making contributions to the unemployment compensation fund created by the statute of 1937. (Laws of 1937, ch. 255, G. S. 1937 Supp., 44-701 et seq.) This statute was enacted to articulate with certain acts of Congress, the federal home loan bank act, 12 U. S. C. A., p. 962 et seq., and the federal social security act, 40-42 U. S. C. A. (Supp.), p. 126 et seq. Another Kansas statute to be considered is chapter 143 of the Laws of 1933, G. S. 1935, 17-10a01, which authorizes building and loan associations to subscribe for the stock of a federal home loan bank and thus become members of its corporate entity.
Except as exempted by the terms of our local statute, every employer of eight or more persons for as much as twenty weeks per calendar year is required to make contributions to an unemploy ment compensation fund calculated upon a specified percentage of the wages paid to his employees. The fund thus provided is administered by the unemployment compensation division of the Commission of Labor and Industry, the official personnel of which are the defendants named in this action.
Section 3 of the statute, G. S. 1937 Supp., 44-703, subparagraph (i), in part reads:
“. . . The. term ‘employment’ shall not include ... (2) Service performed in the employ ... of the United States government, or of an instrumentality ... of the United States . .
Plaintiffs herein are Kansas corporations duly organized and operating as building and loan associations. All three of them have exercised the privilege of subscribing' for shares of the capital stock of the Federal Home Loan Bank of Topeka, which is admittedly a federal instrumentality. (Smith v. Kansas City Title Co., 255 U. S. 180, 41 S. Ct. 243, 65 L. Ed. 577; Federal Land Bank v. Priddy, 295 U. S. 229, 55 S. Ct. 705, 79 L. Ed. 1408.)
Plaintiffs contend that by virtue of their stock ownership in this federal instrumentality and their consequent membership in its corporate entity they themselves are likewise federal instrumentalities, and under the terms of our local statute quoted above they, too, are exempt from the making of contributions to- the unemployment compensation fund.
The defendant commission of labor and industry declines to accept plaintiffs’ construction of the statute and insists upon their contributing to the unemployment compensation fund in conformity with the percentage rates which employers of individuals in general are required to pay.
At the outset, we think it clear that in the enactment of our statute of 1937 the legislature had no thought of enlarging the existing exemptions from state taxation which were and are the right and privilege of federal instrumentalities. The statutory provision concerning exemption of federal instrumentalities from taxation was merely declaratory of existing law, for certainly if that statutory declaration of exemptions had been omitted entirely, any and all federal instrumentalities would ordinarily have been exempted from state taxation except as federal legislation might expressly permit it, as in the familiar instance of state taxation of national banks. (Owensboro National Bank v. Owensboro, 173 U. S. 664; Bank v. Geary County, 102 Kan. 334, 339-341, 170 Pac. 33.) See, also, Railroad Company v. Peniston, 85 U. S. (18 Wall.) 5.
Does an ordinary building and loan association organized under Kansas corporation law actually become a federal instrumentality from the mere fact that it acquires five or more shares of stock in a federal home loan bank, and to that extent becomes a member of the corporate entity of the latter institution?
On behalf of plaintiffs, their counsel argue that by precedent and analogy an affirmative answer to this question is required.
Looking first.into the authorities relied on to support plaintiffs’ contention, we note that on February 1, 1937, the internal revenue department promulgated a rule to guide its revenue collectors and all concerned with the affairs of that department. As quoted in plaintiffs’ brief it reads:
“Building and loan associations, savings and loan associations, cooperative banks, homestead associations, insurance companies and savings banks chartered by the' various states which are members of the federal home loan bank system are instrumentalities of the United States within the above-stated rule and that services performed by individuals in their employ come within the exception extended by sections 811 (b) (6) and 907 (c) (5) of the social security act. The organizations and their employees are not, therefore, subject to the taxes imposed by titles VIII and IX of the social security act.”
It may readily be admitted that the federal revenue department is staffed with competent lawyers, and that the department’s opinions are entitled to respect and consideration; but those opinions are ex parte opinions and do not have the convincing weight of adjudications arrived at in sharply contested judicial proceedings. In our often quoted case of Harrison v. Benefit Society, 61 Kan. 134, 59 Pac. 266, where the power and duty of the clerk of this court to collect certain fees from litigants was called in question, we said:
“In all cases of ambiguity of statutes, the contemporaneous construction of the legislative and executive departments, and of the officials whose duty it is to carry the laws into effect, will be allowed great and, oftentimes, determining weight.” (Syl. ¶ 2.)
In promulgating its rule quoted above, the federal revenue department was considering the matter of exemptions from the payment of taxes under the federal act, so it cannot be said that its interpretation of the federal law is authoritative in the interpretation of our local statute, although it is entitled to careful consideration for two good reasons, first, because of the probability that the federal ruling is correct, although not the result of a contested lawsuit, and second, because of the desirability that the interpretation of state and federal statutes should be harmonious and free from inconsistency wherever practicable.
But the diligence of counsel for the defendant commission has unearthed and submitted for our further instruction the opinions of various other public officials whose duty it has also been to consider the general subject with which we are presently concerned. These include official opinions of the attorney general of Missouri, dated March 10,1938, and of the attorney general of North Carolina, dated December 11, 1937. Of equal significance is another opinion which appears in the appendix of defendants’ brief — that of the general counsel for the Social Security Board, dated December 21,1937, some ten months subsequent to that of the federal revenue department quoted above. Reduced to a sentence, this opinion, as well as those of the attorneys general we have perused, holds that building and Ran associations and similar financial institutions do not become instrumentalities of the federal government so as to exempt them from contributing to the various state unemployment compensation funds from the mere fact of their acquisition of stock ownership and consequent membership in the corporate entity of a federal home loan bank which is itself an instrumentality of the United States and is itself exempt from such state taxation.
Counsel for plaintiffs also cite for our consideration certain cases where prosecutions and convictions under federal criminal laws have been sustained against officers or employees of state corporations on the ground that such corporations were instrumentalities of the federal government. We would agree that if the state corporation was actually performing a substantial service for the federal government, and if the performance of that service was or might be impaired in any appreciable degree by the delinquency of the officer or employee of the state corporation, a federal prosecution could be maintained, as indeed, of course, a state prosecution could likewise be maintained, for it is altogether possible for a single misdeed to be a crime against the United States and likewise a crime against the state where the misdeed was perpetrated. (Fox v. The State of Ohio, 46 U. S. [5 How.] 410; The United States v. Marigold, 50 U. S. [9 How.] 560, 569; United States v. Lanza, 260 U. S. 377, 43 S. Ct. 141, 67 L. Ed. 314.) It is also quite understandable that the delinquency of an officer or employee of a state corporation might materially affect its capacity to perform some'duty for the federal government with which it was charged. Instances of that sort were Westfall v. United States, 20 F. 2d 604, 274 U. S. 256, 47 S. Ct. 629, 71 L. Ed. 1036; Hiatt v. United States, 4 F. 2d 374; Doherty v. United States, 94 F. 2d 495.
' In the Westfall case, a state bank in Michigan had become a member of the Federal Reserve System. One Himmell was its manager. Pie and Westfall made an arrangement whereby certain drafts, notes and checks of Westfall were carried as cash items in the state bank, to the amount of $9,650. To deceive the examiners who were about to visit the bank a certificate of deposit for $10,000, for which nothing was paid, was issued to Westfall and deposited in the bank by him as collateral to this large amount of items carried as cash. The pertinent federal statute which was held to cover his offense provided that state banks “and the officers, agents and employees thereof shall be subject ... to the penalties prescribed by section 5209 of the Revised Statutes.” The conviction did not rest on any mere judicial deduction that the state bank in Michigan was a federal instrumentality, whether such was the fact or not. It rested on the plain violation of a penal statute enacted by congress for the protection of the Federal Reserve System.
In Hiatt v. United States, the defendant was president of the Dickinson Trust Company, an Indiana corporation, which was a member of the Federal Reserve System. He was indicted in the federal court for a number of penal offenses, a typical one of which charged him •with making a false entry in a report of his corporation to the Federal Reserve Bank in Chicago. As in the Westfall case, Hiatt’s conviction was affirmed on the simple ground that his offense was clearly a violation of the federal statute. (12 U. S. C. A., § 592.)
In Doherty v. United States, 94 F. 2d 495, Doherty was convicted of embezzling funds from the Bank of Paxton, a Nebraska corporation, which was insured under the Federal Deposit Insurance Corporation, and of misapplying the bank’s funds, and of making false entries on the bank’s records. The Bank of Paxton was not a member of the Federal Reserve System. As in the Westfall and Hiatt cases, his conviction for breach of the federal penal statute was affirmed. But here again it was held, quite properly we think, that the fedez’al statute clearly covez’ed the offenses charged against him. See, also, an earlier chapter in the same case in 18 F. Supp. 793.
Another criminal case was Weir v. United States, 92 F. 2d 634, where appellants were convicted in the federal court on indictments charging them with embezzlement of the funds of three state banks which were insured in the Federal Deposit Insurance Corporation •and of falsifying their banks’ reports to that company. In affirming the judgments against appellants, the circuit court of appeals referred to the Westfall and Hiatt cases and continued thus:
“From Mr. Justice Holmes’ reasoning, it follows quite logically that if a state bank chooses to become an insured bank and thus to obtain and enjoy the benefits of deposit insurance furnished by the government through its agency created by congress, it thereby submits itself to the penalties for violation of the law creating the benefits. The statute making such violations punishable evidently had for its intent the preservation of the Federal Deposit Insurance Corporation without loss. Congress recognized that every such fraud weakens the Insurance Corporation, and thereby, the federal system and scheme.” (p. 637.)
We think there is no helpful analogy between these criminal cases and the one with which we are presently concerned.
Looking next into some of the civil cases cited by plaintiffs, our attention is directed to Clallam County v. United States, 263 U. S. 341, 44 S. Ct. 121, 68 L. Ed. 328. In 1918, at the instance of the federal director of aircraft production, a corporation was organized under the laws of the state of Washington, entitled “The United States Spruce Production Corporation.” The federal government conveyed to it certain lands and other property. The government subscribed for all its corporate stock except the requisite qualifying shares for the corporation’s trustees. All the corporation’s activities were devoted to the production of aircraft materials' for the prosecution of the war with Germany. The taxing authorities of Clallam county, Washington, imposed taxes on the corporation’s properties situated within their bailiwick. The litigation which ensued was conducted on behalf of the corporation by the legal department of the federal government. The federal district court ruled against the county taxing officials, and the case went to the circuit court of appeals, which certified it to the supreme court to obtain .an authoritative answer to the main question — whether the property of the corporation was subject to state taxation upon the submitted facts, about which there was no dispute. The supreme court held that the corporation’s property was not taxable under the state laws of Washington. Excerpts from the opinion of Mr. Justice Holmes read:
“In. short, the Spruce Production Corporation was organized by the United .States as an instrumentality for carrying on the war, all its property was conveyed to it by or bought with money coming from the United States and was used by it solely as means to that end. . . Upon these facts immunity is claimed from taxation by a state.
“The immunity is claimed under the constitution of the United States. . .
“The state claims the right to tax on the ground that taxation of the agency may be taxation of the means employed by the government and invalid upon admitted grounds, but that taxation of the property of the agent is not taxation of the means. We agree that it ‘is not always, or generally, taxation of the means,’ as said by Chief Justice Chase in Thompson v. Pacific Railroad, 9 Wall. 579, 591. But it may be, and in our opinion clearly is, when as here not only the agent was created but all the agent’s property was acquired and used, for the sole purpose of producing a weapon for the war. This is not like the case of a corporation having its own purposes as well as those of the United States and interested in profit on its own account. The incorporation and formal erection of a new personality was only for the convenience of the United States to carry out. its ends. It is unnecessary to consider whether the fact that the United States owned all the stock and furnished all the property to the corporation taken by itself would be enough to bring the case within the policy of the rule that exempts property of the United States. (Van Brocklin v. Tennessee, 117 U. S. 151.) It may be that if the United States saw fit to avail itself of machinery furnished by the state it would not escape the tax on that ground alone. But when we add the facts that we have recited we think it too plain for further argument that the tax could not be imposed.” (pp. 344, 345.) (Italics ours.)
We do not discern any analogy between the Clallam county case and the one at bar.
Another case cited for our consideration is N. Y., ex rel. Rogers, v. Graves, 299 U. S. 401, 57 S. Ct. 269, 81 L. Ed. 306. There, too, a railroad corporation had been created by the laws of New York. Its corporate purposes were the construction and operation of a railroad across the Isthmus of Panama. In 1904 the federal government acquired the entire capital stock of the corporation except-the requisite qualifying shares of its directors. The government thus became sole owner, and its entire directorate was thereafter named by the Secretary of War. While the railroad rendered transportation services for all who applied, its principal corporate business pertained to the construction, operation, maintenance and defense of the Panama Canal. As such, the United States supreme court declared that it was a governmental agency; and that its employees were to be regarded as in government service so as to render exempt from the income tax of the state of New York the salaries and compensation paid to them by the railroad company. This case is of no consequence here except as a good instance of a state corporation acting as a federal instrumentality.
Without further discussion of federal cases cited for our consideration, we think none of them is sufficiently analogous to guide us to a correct decision in this case; although the language we have italicized in the excerpt quoted above from the opinion of Mr. Justice Holmes in Clallam County v. United States, supra, indicates that the supreme court clearly recognized that a corporation which might perform some governmental function in addition to the conduct of its own private corporate business was not exempt from state taxation.
The term “federal instrumentality” is not defined in our statutes, but it is a common one in the law books. An instrumentality is anything used as a means or agency. (32 C. J. 947.) Therefore a federal instrumentality is a means or agency used by the federal government. In the law books the terms “federal agency” and “federal instrumentality” are used interchangeably. Thus in 2 Cooley on Taxation (4th ed.) 1300, it is said: .
“A corporation cannot escape state taxation merely because it was created by the federal government, nor because it was subsidized by it, nor because it is employed by the federal government, wholly or in part, unless it is really an agency or instrumentality for the exercise of the constitutional powers of the United States.”
In Clallam County v. United States, supra, the court speaks of the United States Spruce Production Corporation as an “instrumentality for carrying on the war,” and also as an “agent . . . created ... for the sole purpose of producing a weapon for the war.”
On the other hand, the supreme court has also said:
“It is apparent that not every person who uses his property or derives a profit, in his dealings with the government, may clothe himself with immunity from taxation on the theory that either he or his property is an instrumentality of government within the meaning of the [immunity] rule.” (Metcalf & Eddy v. Mitchell, 269 U. S. 514, 522-523.)
In the same case it was said:
“Just what instrumentalities of either a state or the federal government are exempt from taxation by the other cannot be stated in terms of universal application . . .
“As cases arise, lying between the two extremes, it becomes necessary to draw the line which separates those activities having some relation to government, which are nevertheless subject to taxation, from those which are immune. Experience has shown that there is no formula by which that line may be plotted with precision in advance. But recourse may be had to the reason upon which the rule rests, and which must be the guiding principle to control its operation.” (pp. 522, 523.)
In Baltimore Shipbuilding Co. v. Baltimore, 195 U. S. 375, the state’s right to tax certain land and dry dock property was chai lenged on the ground that it was only held by the company under a conditional grant from the United States that it construct and maintain a dry dock for the repair of the government’s ships free of docking charges. The land was subject to reverter if or when the government’s purposes in making the grant should fail of fulfillment.' The grantee corporation contended that its property which the state sought to tax was a federal agency and actually used by the United States, and hence not subject to taxation. In affirming a judgment sustaining the state’s right to tax the property, the supreme court said:
“It seems to us extravagant to say that an independent private corporation for gain, created by a state, is exempt from state taxation, either in its corporate person, or its property, because it is employed by the United States, even if the work for which it is employed is important and takes much of its time.” (p. 382.)
.Again, in Fidelity & Deposit Co. v. Pennsylvania, 240 U. S. 319, 36 S. Ct. 298, 60 L. Ed. 664, the state’s right to impose a tax on -the premiums collected on surety bonds given by federal officers was the subject of the lawsuit. In accordance with an act of congress, the attorney general of the United States authorized the company to enter into fidelity and surety obligations required by federal statutes. The company had entered into such obligations and because of these it contended that it was a federal instrumentality and therefore immune from state taxation. The supreme court declined to sanction that contention, saying—
“That the challenged tax ‘is an exaction for the privilege of doing business,’ seems plain (Equitable Life Ass. Soc. v. Pennsylvania, 238 U. S. 143); and undoubtedly a state may not directly and materially hinder exercise of constitutional powers of the United States by demanding in opposition to the will of congress that a federal instrumentality pay a tax for the privilege of performing its functions. (Farmers’ Bank v. Minnesota, 232 U. S. 516; Choctaw & Gulf R. R. v. Harrison, 235 U. S. 292.) But mere contracts between private corporations and the United States do not necessarily render the former essential governmental agencies and confer freedom from state control. (Baltimore Ship Building Co. v. Baltimore, 195 U. S. 375.)” (p. 323.)
We shall not- stop to consider whether the opinion from which we have just quoted accords completely with the opinion of the learned district judge in United States v. Doherty, 18 F. Supp. 793. The two cases were concerned with vitally different questions — the one with a question of taxation, the other with the question of federal criminal law.'
With the aid of the cases noted above, as well as others which we have assiduously studied, let us turn again to the statute which authorizes the plaintiffs to enter into its relations with the federal home loan bank. Section 1 (G. S. 1935, 17-10a01) provides that building and loan associations may subscribe for stock in a federal home loan bank; may borrow money from such bank; may assign their mortgages to it as security for such borrowings; may avail themselves of all the advantages and privileges offered by such bank while they are members of it — that is, while they are stockholders of it— for membership is manifestly a loose expression capable of no other significance; and they are also authorized to comply with the pro-. visions of the federal home loan bank act.
Articulating with this Kansas statute are the provisions of the' federal statute of July 22, 1932, and its amendments (12 U. S. C. A. p. 965), the pertinent parts of which read:
“(a) Any building and loan association . .' . shall be eligible to become a member of, or a nonmember borrower of, a Federal Home Loan Bank if such institution ... (3) makes such home mortgage loans as, in the judgment of the board, are long-term loans (and in the case of a savings bank, if, in the judgment of the board, its time deposits, as defined in section 461 of this title, warrant its making such loans). No institution shall be eligible to become a member of, or a nonmember borrower of, a Federal Home Loan Bank if, in the judgment of the board, its financial condition is such that advances may not safely be made to such institution or the character of its management or its home-financing policy is inconsistent with sound and economical home financing, or with the purposes of this chapter.
“(b) An institution eligible to become a member or a nonmember borrower under this section may become a member only of, or secure advances from, the Federal Home Loan Bank of the district in which is located the institution’s principal place of business, or of the bank of a district adjoining such district, if demanded by convenience and then only with the approval of the board.”
Section 1426 of the federal statute (12 U. S. C. A. p. 966) fixes the par value of the bank stock at $100 per share, and the minimum subscription to the bank’s stock required of a building and loan association is an amount equal to one percent of the unpaid principal of the subscriber’s home mortgage loans, but at least to the amount of $500, or five shares. The same section provides that on six months’ notice any member (stockholder) may withdraw from membership upon the execution of certain formalities, needless to state here.
In the Home Owners’ Loan Act of 1933, 12 U. S. C. A. § 1464, it is provided that any member of a Federal Home Loan Bank may be employed as fiscal agent of the government, and when so designated it shall perform all such reasonable duties as fiscal agent as may be required of it. Neither of these plaintiffs has been so employed by the federal government nor by any other instrumentality of the United States, and under the rule that statutory exemptions are to be strictly construed we could not sanction a view that because plaintiffs may at some time become fiscal agents of the federal government they are now exempt from taxation for the benefit of the unemployment compensation fund. Certain phases of this general subject were exhaustively treated in Clinton v. State Tax Commission, 146 Kan. 407, 71 P. 2d 857.
Tested by all the light the diligence of counsel for the litigants has supplied us, as well as by our own researches, we do not regard the plaintiffs’ mere stockholder membership in the Federal Home Loan Bank of Topeka, with the privileges and duties attendant on that relationship, as sufficient to constitute them federal instrumentalities, nor to relieve them from making contributions to the unemployment compensation fund created by the statute of 1937.
The writ must therefore be denied, and defendants are entitled to judgment. It is so ordered.
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The opinion of the court was delivered by
Allen, J.:
Paul Linville was convicted of manslaughter in the second degree, and appeals.
It appears that the defendant Linville operated a night club southeast of Iola. On the evening in question one Lanferman arrived at the night club about ten o’clock. Lanferman had been drinking — the evidence was conflicting as to the degree of his intoxication. The defendant undertook to remove Lanferman from the building by way of the door to the northeast room. The defendant testified:
“. . . He started to settle down like he was going to fall on the floor. I went around and said, ‘Come on, Ab, let’s get out of here and get some fresh air.’ I put my arm around him. He slipped and fell and threw me over his shoulder. He went down on his head on the concrete and I went clear over his head to the concrete on my hands and knees. I tried to get him up. Two fellows helped Lanferman up. Some one had vomited on the steps. When we fell, I got vomit all over me: Had it all over my hands. I went upstairs, washed my hands and cleaned the vomit off. I put iodine on my shin and shoulder. Lanferman came in in about thirty or forty minutes. . . .”
As to the events that occurred after the return of Lanferman to the house, defendant testified:
“He was staggering around among the people and the tables, covered with vomit. I asked him to leave; about the third time I took hold of his arm and started to the door; when I got to the door with him, he wheeled around; I had my arm around him just as I had before, and as he turned I reached out with my other arm to the jamb of the door to keep from falling out as I did before, and just then he slipped out of my arm and fell out the door, and as he fell I fell right after him. I grabbed the door to keep from falling. I did not push him or hit him. He was not in any condition for anyone to be in and I felt sorry for him. . . .”
Stella Goszdak, a witness for the state, testified:
“Q. Now, you say Mr. Linville was mad? A. He was mad when he pushed him out.
“Q. How do you know? A. I could tell it.
“Q. Well, how? The jury can decide from what you say whether you could tell it. Just tell the jury how you knew he was mad. A. Paul said to me that he had just put up enough with Mr. Lanferman.
“Q. And that’s the reason why you thought he was mad, is it? A. Well, he was mad.
“Q. And just tell the jury what he did and how he showed that he was mad. A. Mr. Linville didn’t like it because Mr. Lanferman came back in the second time; and right there at the bar, I could tell it on him that he didn’t like it. . . .
“Q. . . . Just describe to the jury how Mr. Linville pushed Lanferman out the door. A. He had one arm, one hand, on his shoulder, and with the other arm he pushed him out.
“Q. Do you know with what of Mr. Lanferman’s body that the other hand came in contact? A. His left hand was on Ab Lanferman’s shoulder, and with the other, his right hand, he pushed him out.”
Carl Huckleberry, a witness for the state, stated that the defendant did not appear to be mad.
Wallace Smith, a witness for the defendant, testified:
“I live in Iola; I am employed as a burner at the Lehigh Portland Cement Co. I was at Linville’s on the night of the accident. I saw Lanferman about 11:30 or later. We were going home and started out, then I saw Linville escorting Lanferman to the door. It looked to me as if Linville was trying to get him out of there. They were not quarreling or fussing. I just noticed them going out the door. I did not see Linville push Lanferman. He was just taking him to' the door. Linville appeared to be disgusted. The next thing I saw was that they were both out doors and Linville said Lanferman was hurt.”
There was a cement sidewalk in front of the door. The door was about twenty-four inches above the sidewalk, with three steps leading up to the door.
Doctor Reed testified that when he arrived he found Lanferman unconscious; that he remained in a semiconscious or semicoma condition for-a period of ten or twelve days and then died. The doctor stated that upon the first examination he could not tell much about him — whether he was suffering from an injury or the effects of alcohol. An X ray was taken, “but it didn’t show a fracture, but from his symptoms he undoubtedly had an injury at the base of the skull.”
The information charged the defendant with manslaughter in the second degree under G. S. 1935, 21-411. At the close of the evidence on the part of the state, defendant demurred to its sufficiency to establish the crime charged in the information, and moved for a directed verdict of not guilty. The motion was overruled.
The court instructed the jury as to manslaughter in the second degree, manslaughter in the fourth degree, and simple assault. The jury found the defendant guilty of manslaughter in the second degree.
Defendant contends the court erred in instructing the jury as to manslaughter in the second degree. Our statute G. S. 1935, 21-411, provides:
“The killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.”
The essential elements to constitute the crime of manslaughter in the second degree specified in the statute, the killing of a human being without a design to effect death in the heat of passion and in a cruel and unusual manner, were neither established by direct evidence nor by legitimate inference. (State v. Knoll, 72 Kan. 237, 83 Pac. 622.)
In the definition of manslaughter as homicide committed without premeditation but under the influence of “sudden passion” it has been held that these words mean any intense and vehement emotional excitement of the kind prompting to violent and aggressive action, as rage, anger, hatred, furious resentment or terror. (Stell v. State [Tex. Cr. App.], 58 S. W. 75; State v. Johnson, 23 N. C. 354, 362, 35 Am. Dec. 742; Winton v. State, 151 Tenn. 177, 268 S. W. 633.) We think the words “heat of passion,” as used in G. S. 1935, 21-411, have the same significance. The record before us discloses that the defendant Linville and the deceased Lanferman had been friends. There was no evidence of an altercation or angry controversy, the usual concomitants of that degree of emotional excitement known as “heat of passion.” One witness stated the defendant was mad; another witness said he was not mad; a third witness stated the defendant appeared disgusted. There was nothing-in the demeanor of the defendant to indicate he was acting in the heat of passion in the expulsion of Lanferman. Compare Steinmetz v. Kelly, 72 Ind. 442, 37 Am. Rep. 170.
Instruction given to the jury should be based on the evidence in the case. (Bigelow v. Henniger, 33 Kan. 362, 6 Pac. 593; State v. Ryno, 68 Kan. 348, 74 Pac. 1114.) The facts were simple and there was little dispute in the testimony. Where the question is purely one of law, although arising in a criminal case, it is exclusively for the court. (State v. Bowen, 16 Kan. 475; State v. Truskett, 85 Kan. 804, 118 Pac. 1047.)
As the evidence failed to support the charge of manslaughter in the second degree, we think it was error to instruct the jury as to that crime and to submit such issue to the jury. (State v. Furthmyer, 128 Kan. 317, 277 Pac. 1019; State v. Thompson, 119 Kan. 743, 241 Pac. 110; State v. Hartsock, 140 Kan. 428, 37 P. 2d 36.)
As this conclusion requires a reversal of the judgment and the granting of a new trial, it is unnecessary to consider the other assignments of error.
The judgment is reversed, and a new trial is directed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff has appealed from the ruling of the trial court sustaining defendant’s motion for judgment on the petition and opening statement of counsel for plaintiff.
The petition and opening statement may be summarized as follows: Plaintiff is fifty-three years of age. Defendant is his mother and is about eighty years of age. Plaintiff’s father died when plaintiff was about six months old. He and his mother have always lived together until shortly before this action was brought. In 1911, with their joint funds, they purchased certain described vacant lots in ■Kansas City. The title was taken in the mother’s name. About ten years later the lots were improved with their joint funds by the construction of a residence thereon, which since that time has been their home. Plaintiff has been employed for several years and from his earnings has assisted in maintaining the home and has given his mother money to pay the taxes thereon. Plaintiff married three or four- years ago. Shortly before this action was filed defendant left the home (the inference being because of domestic discord) and brought in the city court an action against this plaintiff for peaceable entry and forcible detainer of the premises.
This action was to enjoin defendant from prosecuting the forcible detainer action in the city court and to quiet plaintiff’s title to the real property involved. The trial court was of the opinion the petition and opening statement did not set forth grounds for the relief sought. We agree with this view.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Allen, J.:
The defendant was found guilty of obtaining money from Charles A. Beeler and Lottie Beeler by means of and by the use of false and fraudulent representations, in violation of our statute G. S. 1935, 21-551, and appeals.
The facts established by the state may be summarized as follows:
Charles A. Beeler is a locomotive engineer and has been employed by the Atchison, Topeka & Santa Fe Railway Company since the year 1890. At the time of the trial he was 68 years of age. The defendant was introduced to Mr. Beeler by a man named Barber, at Beeler’s home, about fifteen days prior to June 6, 1936.
On June 6, 1936, the defendant came to the Beeler home and told Beeler and his wife that he had a money-making proposition at the state lake at Tonganoxie to supply it with electricity and water, and that he had a 99-year franchise; that he had a contract with the city of Jarbalo’to furnish electricity there; “that he had all those things lined up, Senator Miller, with the state utility people, with the Kansas Power & Light Company, with Jarbalo, and with lighting the dam.”
Mrs. Lottie Beeler testified that the defendant had said that he “had a franchise on the ground around the state lake and that he had the privilege of putting electricity in the several different homes around there and supplying them with light, and that all he needed was the money to put this in, and he had the contract of putting in lights for Senator Miller, and he also had the poles in from the line down to Senator Miller’s farm. He seemed to have a large farm with a barn, a house, and a small house, and he had a contract for to put the lights in at Jarbalo.”
The Beelers, before their transaction with the defendant, owned some stock in the Federal Reserve Life Insurance Company, the Argentine Building & Loan Association, and the Guarantee Building (fe Loan Association of Dallas, Tex. The par value of the building and loan stock was $7,290, and there were certain shares of stock in the Federal Reserve Life Insurance Company.
On June 6, 1936, a written contract was entered into between the defendant Barger and his wife, first parties, and Beeler and his wife, second parties. The contract recited that the Bargers were the owners of a 99-year franchise to furnish power, light and water to the Flint addition, consisting of 85 acres adjoining the state lake park in Leavenworth county; that the Beelers were the owners of building and loan and life insurance stock of the total value of $8,-390; that the Beelers agreed to sell their stock to the Bargers and agreed to take the note of the Bargers for the $8,390, payable in one year with interest, payment to be secured by assignment of one-half interest in the franchise; upon payment of the note the Beelers were to receive one fourth of the net proceeds of the franchise for the life of the franchise.
On the same date the Beelers turned over to the defendant their building and loan and life insurance stock, at a valuation of $8,-390, fixed by the defendant. The defendant told the Beelers that every cent of the money realized from the sale of the stock would be put into his proposition and that there was no way for them to lose, because their money would be in it and they were the owners of a half interest in the franchise by virtue of an assignment of interest given them by the defendant. The Flint property covered by the franchise consists of 85 acres of land near the Tonganoxie state lake and had two houses on it.
At the time the defendant obtained the stock from the Beelers he did not have any contract to furnish electric power to Senator Miller; he had no contract or no arrangements to furnish power to the town of Jarbalo; he had no contract, agreement or understanding with the Kansás Electric Power Company, under the terms of which power would be furnished to him for his proposed line; he did not have a certificate of convenience from the Corporation Commission of Kansas.
On October 8, 1936, the defendant was arrested, charged with obtaining the stock from the Beelers by false pretenses. After that date the defendant visited Senator Miller and Mr. Jaseph, of Jarbalo, and obtained from them letters indicating that he had discussed the establishment of power lines with them. After June 6, 1936, and on July 17, 1936, the defendant obtained a certificate of convenience to transact the business of an electric utility in a territory near the state lake. The territory described in his certificate of convenience does not include and is nowhere near the town of Jarbalo, and does not include the Miller farm nor the state lake property.
After June 6, 1936, and on July 31, 1936, the defendant entered into a contract with the Kansas Electric Power Company under the terms of which the defendant was to purchase electric energy from that company for a period of one year.
On July 6, 1936, the defendant paid the amount due on a note secured by a mortgage on the defendant’s home in the sum of $1,300, and after June 6, 1936, the defendant paid the amount necessary to secure the release of a mortgage on his son’s car.
At the time he obtained the stock from the Beelers the defendant gave to the Beelers a promissory note signed by himself and bearing the signature of Elizabeth Barger. The signature of Elizabeth Barger appears also on the assignment of interest in the Flint franchise and on the contract between Barger and the Beelers. The Beelers were told that this was the signature of Barger's wife; it later developed that the Elizabeth Barger who signed the contract, note and assignment was the daughter-in-law of the defendant.
About six weeks after the Beelers had surrendered their stock to the defendant he came to their home to ask for more money. The Beelers, having begun to suspect that all was not as it should be, questioned him and demanded the return of the money realized’from the sale of their stock. The defendant told them to “shoot their wad.”
1. The defendant complains that the only evidence supporting the allegations of the information was the testimony of the complaining witness and his wife. “In general, the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict.” (4 Wigmore on Evidence, 2d ed., § 2034.)
Credibility does not depend on the number of witnesses. The verdict of the jury does not proceed solely on the story told by a witness, but on the moral conviction of its truth, based on its intrinsic probability and his manner of giving his evidence. Besides, the statement of these witnesses was corroborated by the presumption arising from the absence of counter proof or explanation. (See 16 C. J. 760.)
2. Appellant contends the court erred in overruling defendant’s motion to strike the first amended information from the record. He argues that after the state had failed to amend- within the time permitted to amend there was nothing left to amend. The defective information had not been stricken from the files, nor had the proceedings been dismissed. An amendment of substance as well as to form has been held permissible where it did not affect the substantial rights of the defendant. (State v. Morris, 131 Kan. 282, 291 Pac. 742.) The subsequent action of the court showed consent to. have the information amended after expiration of the time originally-granted. It is not shown that the allowance of the amendment in any way prejudiced the defendant in making his defense. The point is not well taken.
3. Appellant maintains that the court erred in overruling his motion to be discharged for the reason that more than three terms had intervened since the filing of the information. The statute G. S. 1935, 62-1432, provides that where a person charged with an offense shall not be brought to trial before the end of the third term of the court in which the cause is pending is entitled to be discharged “unless the delay happen on his application or be occasioned by the want of time to try such cause at such third term.”
The defendant was first tried at the fourth term held after the information was filed. An examination of the record shows that prior to his trial the defendant had filed four motions attacking the information. Each of these motions required preparation and argument, and the information was amended three separate times to meet defendant’s objections.
In State v. Lewis, 85 Kan. 586, 118 Pac. 59, this court, in construing G. S. 1935, 62-1432, stated:
“It is not essential, under this statute, that the application should be one specifically for delay. It is sufficient if some application on the part of the defendant necessarily and directly cause the delay to happen. The word 'application’ is not to be restricted to its literal, etymological meaning. In the case of The State v. Dewey, 73 Kan. 739, 741, 88 Pac. 881, it was said that it signifies means to accomplish an end and denotes affirmative action, not passive submission. In this case the defendant’s objection was an affirmative act interposed as a means to prevent a trial before the judge pro tern. A postponement of the trial was inevitable, and consequently happened on the defendant’s application.” (p. 589.)
In the case at bar the motions attacking the informations served the purpose of delaying trial until disposed of and until the state amended to meet the objections raised. In filing these motions the defendant effectively postponed the time of trial on his own application within the meaning of G. S. 1935, 62-1432.
Was the delay occasioned by want of time to try such cause at such third term?
The third term held after the information was filed in this case was the September (1937) term of the district court. During that term the defendant filed a motion to strike the amended information from the record. This motion was argued and overruled by the court on November 22,1937, shortly before the end of the September term.
On the same date a general order of continuance was entered in the journal of division No. 4 of the district court, which recited that because of lack of available funds it was impractical to call an extra jury panel before the commencement of the December term of court; that no person charged with crime was demanding immediate trial and for that reason all criminal cases then pending in the district court of Wyandotte county were continued for the term “because of want of time to try each case.”
This order amounts to a finding by the judge of the criminal division of the district court of Wyandotte county that all delays in the trial of criminal cases then pending in that court were occasioned by the want of time to try such cases during that term within the meaning of G. S'. 1935, 62-1432.
It is clear, therefore, that the delay in the trial of the case was on the application of the defendant, and for want of time to try the case at the third term of the court held after the information was filed.
4. It appears the amended information had been amended by interlineation by leave of the court, and thereafter had not been resubscribed, reverified and refiled. As stated above,.in the original information the defendant had been charged in the language of the statute. It charged that the appellant did “unlawfully, willfully and feloniously, with intent to cheat and defraud one Charles A. Beeler and one Lottie Beeler by means and by use of false and fraudulent representations, statements and pretenses, ... to wit” (setting forth the representations) and obtained from the Beelers property described of the value of $8,390. The words interlined “by means of said false and fraudulent statements” and also that the representations were false, etc., did not add to or take from the charge previously made. The words were evidently inserted to meet the re peated attacks of defendant. The interlined amendments were surplusage. There was no error in refusing to quash the amended information. (State v. Morris, supra; State v. Fleeman, 102 Kan. 670, 171 Pac. 618; G. S. 1935, 62-1718.)
5. It is asserted the court erred in refusing to give instructions requested by defendant. The instructions given by the court are not set forth in the abstract. In this situation this court will presume that the instructions given were correct and fully covered the law of the case. (Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P. 2d 1.)
6. It is claimed that error was committed in overruling defendant’s motion to discharge the defendant for the reason the evidence did not show that a public offense had been committed. From the evidence as outlined above it appears that the representations related to then existing facts or past events, and constituted false pretenses as often defined by this court. (State v. Briggs, 74 Kan. 377, 86 Pac. 447; State v. Clark, 46 Kan. 65, 26 Pac. 481; State v. Matthews, 44 Kan. 596, 25 Pac. 36; In re Snyder, Petitioner, &c., 17 Kan. 542.)
From the record there can be no doubt that the false pretenses charged were in fact made, that they were made for the purpose of cheating and defrauding the Beelers, and that the Beelers were in fact cheated and defrauded to the extent charged. While it is true the Beelers accepted the note mentioned in the contract, there is ample evidence that they parted with their property by reason of the false representations made to them by the appellant. It is not necessary to a conviction that the false pretenses be the sole inducement to the obtaining of the money or property. (State v. Briggs, supra.)
We have examined other errors assigned, but there is nothing substantial in them. As no error is found, the judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This action was brought to question the authority -of defendant to issue its bonds, to be used with PWA funds, for the purpose of purchasing a site and constructing and equipping a high-school building under the authority of chapter 314 -of the Laws of 1937 (G. S. 1937 Supp. 72-1745). The facts were stipulated. Judgment was for defendant, and plaintiff has appealed.
The statute in question became effective February 26, 1937, and reads:
“The board of education of any city of the first class having a population of more than 18,000 and less than 21,000 and located in a county having no city of the second class is hereby authorized to issue bonds for the purpose of purchasing a site and constructing and equipping a high-school building: Provided, That the question of issuing bonds for such purpose shall be submitted to a vote of electors at a regular city election or at a special election called for such purpose by the city commission. The issuance of bonds hereunder shall be in accordance with the requirements of the general bond law except as otherwise provided herein. None of the restrictions or limitations provided by law regarding the amount of bonded indebtedness outstanding shall apply to the bonds issued under the provisions of this act. The amount of bonds issued under this act shall not exceed $375,000.”
Under the stipulation defendant comes within the purview of this statute in all respects unless it is with respect to the population of the city. The enumeration of the inhabitants of the city of Salina, taken as of March 1 each year, was 19,136 for 1936, 20,396 for 1937 and 21,587 for 1938. The election at which the bonds in question were voted upon favorably was held August 30, 1938. The question is, Can defendant, under the authorization of this election and acting under the authority of the statute above quoted, issue the bonds in question?
Briefly, plaintiff argues that since the statute is not applicable to a board of education of a city which has a population in excess of 21.000, and since the city of Salina had a population in excess of that number at the time the bonds here involved were voted upon, a favorable vote at that election did not authorize defendant to issue the bonds. We feel compelled to concur in this view. Certainly the statute does not apply to the board of education of a city of the class mentioned, which has a population of less than 18,000 nor more than 21.000. Whatever might cause the population of the city to increase or decrease, the statute applies only when the population of the city is within the figures mentioned. We need not stop to inquire why the legislature made this classification. No one contends the statute is invalid because of this restricted classification. Indeed, defendant depends upon this statute for authority to conduct the election and issue the bonds. Under the wording of the statute it seems that the time when the bonds are issued is the controlling time with respect to the population of the city. Also, under the statute, the bonds cannot be issued until there is a favorable vote upon the proposition to issue them.
In support of its authority to issue the bonds in question it is argued on behalf of appellee that the enumeration of inhabitants taken by the deputy assessors as of March 1 each year does not become effective until published by the state board of agriculture; that a census, to be effective, must be published, and that the only statute we have for the publication of enumerations taken by assessors as of March 1 is the publication or report made by the state board of agriculture, under G. S. 1935, 11-107. Let us examine appellee’s argument on this point. G. S. 1935, 11-101 et seq., provides for the enumeration of the inhabitants of a county and of the governmental subdivisions therein each year, as of March 1 (State, ex rel., v. Duncan, 134 Kan. 85, 96, 4 P. 2d 443). This enumeration is made by deputy assessors, upon blanks furnished them by the county assessor, which blanks had been prepared and furnished to the county assessor by the state board of agriculture. The deputy assessors are required to make and deliver their reports of such enumeration to the county assessor by June 1 of each year. The county assessor abstracts this data, sends the abstract to the state board of agriculture on or before July 15, retaining a copy in his office. The state board of agriculture is required to classify this information “and publish the same in the biennial reports of the board” (G. S. 1935, 11-107) made to the state legislature (G. S. 1935, 74-504), but it is authorized “to gather, prepare, and publish, in the form of reports, pamphlets or press notices, such other information as shall be deemed of value in promoting the agricultural industry of the state, or calculated to encourage immigration.”
It will be noted that the only time the state board of agriculture is required to publish the statistical information it collects relating to population' — in fact, the only time it is authorized to publish such information, unless it is deemed of value in promoting the industry of agriculture or encouraging immigration — is in its biennial report made to the legislature for its general information. No statute makes its report of population the official census from the date of its publication, or gives to it any other legal status than that of an informative report. Counsel for appellee advise us that the state board of agriculture has a practice of publishing quarterly bulletins, and in its bulletin for “the quarter ending September 30, 1938,” it published a list of the counties and cities of the state, with the population of each as shown by the enumeration taken by deputy assessors as of March 1 of- that year. Counsel argue that, legally speaking, the population of the city of Salina did not change from the enumeration taken in 1937, which showed less than 21,000, until the state board of agriculture published its bulletin on September 30, 1938, or at some indefinite date thereafter, setting out the population of counties and cities enumerated as of March 1 of that year, and that since the bond election was held August 30, 1938, before this bulletin was published, the city, in legal contemplation, had a population of less than 21,000 at the time the election was held. We do not concur in this view. Counsel cite cases from other states and argue they support this view. Typical of them is Broyles v. Mahaska County, 213 Ia. 345, 239 N. W. 1. There the question was the official census of Oskaloosa for 1925. The court turned to the statutes of the state and found they provided for taking the enumeration and for the filing of a certificate thereof with the secretary of state, and specifically making such certificate the official record from the date it was filed. We have no such specific statute in this state, and certainly none making the publication by the state board of agriculture — indefinite as to time of publication and general in its purposes — the date from which legal changes of population are to be computed. Our statute does fix a reasonably definite date “on or before July 15” (G. S. 1935, 11-102), when the county assessor shall make an abstract in duplicate of the enumeration, certified as to its accuracy, and forward one to the state board of agriculture and retain the other “in the archives” of his office. In most of our counties, including Saline, the county clerk is its ex officio county assessor (G. S. 1935, 19-401); hence, one of the duplicate copies is filed in the office of the county clerk. In considering the effect of the filing of this verified abstract, it was said, in State, ex rel., v. Montgomery County Comm’rs, 125 Kan. 379, 381, 264 Pac. 84:
“The verified and certified enumeration so made is official and is to be used in the • application of the statutes requiring the redistricting of counties, the fixing of salaries of county officers and other provisions where the operation of a statute is governed by the population of counties or other municipalities.”
In the syllabus this is spoken of as “the last official census.” So we have in our statutes duties of officials to be done, their work officially abstracted, and the certified abstract to be filed as a part of the records of a public office, that of the county clerk, on a date reasonably definite, “on or before July 15 of each year,” which our courts have held becomes, and is, the official census when “the operation of a statute is governed by the population of counties or other municipalities.” Appellee argues that the favorable vote at the election August 30, 1938, was not an issuance of the bonds, that the board of education is the entity which issues the bonds. While this is true, the favorable vote at the election was a prerequisite to the authority of the board of education to issue the bonds. It could not do so without such a vote.
Appellee points to the steps taken by it — some of them in 1937, others in 1938, and before July 15 — as giving authority to issue the bonds. These were preliminary steps, some of them necessary to a bond issue, but none of them alone, or all of them together, authorized the issuance of bonds. One thing essential to authorize the bond issue was a favorable vote at an election on the proposition. This election was not held prior to the time the official census showed the population of the city to be in excess of 21,000. It seems clear the statute (G. S. 1937 Supp. 72-1745) was no longer applicable to appellee.
From what has been said it necessarily follows that the judgment of the trial court must be reversed, with directions to render judgment for plaintiff. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the mortgagee in a, foreclosure action from the ruling of the trial court, upon a rehearing of the matter, fixing the period of redemption at eighteen months instead of six months, as it was originally fixed. There are therefore two matters -here for consideration: first, whether the district court had power and authority to vacate or modify its own judgment or order after the term at which the judgment or order was rendered; and second, whether the mortgage being foreclosed was a purchase-money mortgage.
Personal service was had on the defendants in this action and they filed an answer in the form of a general denial, and they also denied that the mortgage being foreclosed was a purchase-money mortgage. Judgment was rendered in favor of the plaintiff and the property was ordered to be sold by the sheriff, but no finding was made as to whether or not the mortgage was a purchase-money mortgage and no ruling was made as to the length of the period of redemption. On the motion to confirm the sheriff’s sale both parties were represented, the sale was confirmed and the mortgage was found to be a purchase-money mortgage and the-period of redemption was reduced to six months. This ruling was made on February 12, 1938. Two days later, or February 14, 1938, the defendants filed a motion for a new trial or modification of these rulings as to the mortgage being a purchase-money mortgage and as to the length of the period of redemption. On March 3, 1938, a rehearing was granted by the trial court and additional evidence was introduced and the district court changed the ruling as to the kind of a mortgage it was and as to the period of redemption, making it eighteen months instead of six months. The new term began on February 21, 1938, so this granting of a rehearing or new trial on these particular points was at a subsequent term of court, although less than a month had passed since the original hearing and ruling on the motion to confirm the sheriff’s sale. Under several rulings, the strongest and most recent of which is Federal Land Bank v. Richardson, 146 Kan. 803, 73 P. 2d 1005, it was held:
“A motion asking the court to reconsider its rulings or orders made on the hearing of a motion to confirm a sale in an action to foreclose a real-estate mortgage, and to find the reasonable value of the property sold, by whatever name called, is a motion addressed to the court’s judicial discretion, which it has jurisdiction to pass upon at the term of court at which the order was made, but not thereafter.” (Syl. ¶ 3.)
In support of this ruling the opinion cites Schubach v. Hammer, 117 Kan. 615, 232 Pac. 1041; J. B. Colt Co. v. Clark, 125 Kan. 722, 266 Pac. 41; Thornton v. Van Horn, 140 Kan. 568, 37 P. 2d 1015; and Drury v. Drury, 141 Kan. 511, 41 P. 2d 1032.
Appellant cites Publishing House v. Heyl, 61 Kan. 634, 60 Pac. 317; Barnett v. Insurance Co., 78 Kan. 630, 97 Pac. 962; and Home Owners Loan Corp. v. Holmberg, 148 Kan. 50, 79 P. 2d 859. In the first of the cases last cited it was contended that as the judgment could not be set aside and a new trial granted in accordance with the method pointed out by the code, the assistance of equity might be invoked to effect that end, but the-court held that the procedure provided in the code must be followed. In the Barnett case it was held that a valid judgment cannot be vacated except for cause and within the provisions of the statute made for that purpose. The last case above cited is very similar to the case at bar except in three particulars: first, the defendants, served personally, did not make any defense; they surrendered possession of the property and changed their residence to another state; second, the court, in its decree of foreclosure, fixed the period of redemption at six months, whereas in the case at bar it made no ruling whatever on that matter until the motion was made to confirm the sale; third, no effort was made by the defendants to defend or protect their rights in the matter by answer or otherwise until nearly eight months after the judgment was rendered and nearly six months after the sheriff’s sale was made and confirmed. A motion was then made to modify the decree of foreclosure, and the court held it was properly overruled.
The motion made by the defendants in the case at bar was filed within time and was made as soon as it could have been made to cover the two questions involved, namely, whether the mortgage being foreclosed, was a purchase-money mortgage, and whether the period of redemption should be eighteen months or six months, because no ruling was made upon these two questions, or either of them, when the judgment was rendered. They were both definite and specific issues under the pleadings, the petition alleging that the mortgage was a purchase-money mortgage and less than one third the purchase price had been paid, and that the period of redemption should be six months. The defendants in their answer not only put these points in issue by a general denial but also by a special denial, both parties referring in their pleadings to the particular section of the statute with reference to these matters, namely, G. S. 60-3466.
The defendants, in their motion for new trial or rehearing, referred 'to the erroneous ruling of the court made with reference to the ^period of redemption at the time the sheriff’s sale was confirmed. (With this point and the question of purchase-money mortgage being specifically put in issue by the pleadings in the case and entitled to a ruling and decision thereon at the time the case was tried, and not being any part whatever of the motion to confirm the sale, the defendants did not have their day in court on these issues, made so by the pleadings, until the court acted upon them, and therefore this motion for new trial is a real motion for a new trial upon two of the important issues in the case upon which no decision was rendered until at the time of the hearing of the motion for the confirmation of the sale, and we hold that such motion for new trial on rulings involving the real issues made by the pleadings does not come within the rule above stated as to the jurisdiction of the district court to pass thereon being limited to the term of court at which the ruling was made, but not thereafter.
The evidence on the rehearing or new trial showed that the defendants purchased the land here involved for $8,500 in 1925, paying $2,500 in cash for it and assuming a mortgage thereon for $6,000 held by the Liberty Savings and Loan Association. This mortgage was twice reduced and renewed, the last renewal being made June 1, 1932. On October 1, 1932, two instruments were executed in connection with this property and the mortgage thereon. One was a deed by the owners to the Liberty Savings and Loan Association, and the other a contract made the same day and signed by both parties. The contract is quite lengthy and contains^ clause stating that it is in no sense a mortgage, but strictly a contract for the sale of land. Other parts of the contract must be considered in reaching any conclusion on that question.
In 19 R. C. L. 245 it is said:
“The rule here laid down, is embodied in the maxim of equity, once a mortgage, always a mortgage, by which is meant in this connection that the character of a transaction involving the conveyance of property is fixed at its inception, and if at that time the conveyance is intended to operate by way of security and as a mortgage, a mortgage it must remain with all the incidents thereof despite express stipulations to the contrary in the instrument of conveyance looking to the abrogation of the mortgagor’s equity of redemption.” (See, also, Charpie v. Stout, 88 Kan. 318, 128 Pac. 396.)
The contract gives the consideration as $3,900, which is with interest thereon to be paid the loan company in 180 monthly installments “on the same basis as the regular fifteen-year loan plan of the Liberty Savings and Loan Association.” This is a usual building and loan mortgage plan for the payment of a mortgage indebtedness. The contract contained within it all the provisions of a mortgage with the defendants’ promise to pay and the plaintiff’s right to demand possession after continued failure for twelve months to comply with the terms thereof. It also contained the usual terms requiring the defendants, while occupying the land, to pay the taxes and carry insurance thereon. It also contained the agreement of the loan company to sell the land to the defendants upon full payment by them as therein specified.
Can an instrument containing all the provisions of a mortgage be made a sale contract simply by denominating it as such and by taking a deed the same day as a part of the same transaction? This is not in accord with the usual conception or practice followed in such matters. The promise to give a deed is no more than the ordinary promise to give a release in the usual manner when the debt is paid. The taking of a deed the same day the contract was made was simply taking security for the debt which still existed.
Another clause in the contract shows plainly that the author was afraid of the matter therein being submitted to an investigation in the courts, and inserted the following provision, which is in violation of the rules and principles of our form of government: “. . . no court shall relieve the parties of the second part from a failure to comply strictly and literally with this contract.”
In 6 R. C. L. 752 it is said:
“But although it is permissible to submit to arbitration pending lawsuits or existing differences, it is not permissible for persons to stipulate in advance that in the event of differences arising in the future they will deny themselves the right to resort to the courts for their settlement.” (See, also, 13 C. J. 455, and Richardson v. Emmert, 44 Kan. 262, 24 Pac. 478.)
. About a year and a half after the giving of the deed to the loan company and the making of the contract just considered, the loan company made and delivered a deed to the defendants, and a few days thereafter the defendants signed a note payable to the Home Owners Loan Corporation for $5,475.43, and executed a mortgage on this land to that corporation to secure the payment of the same, and the Home Owners Loan Corporation delivered to the Liberty Savings and Loan Association bonds in the sum of $4,500.
The question is whether or not this last mortgage was a purchase-money mortgage. The trial court on the rehearing or hearing on the new trial granted, held it was not a purchase-money mortgage and allowed eighteen months as the period of redemption. Appellant insists this ruling was erroneous and cited, among other cases, that of Home Owners Loan Corp. v. Torrey, 146 Kan. 332, 69 P. 2d 1096, which case is very similar to the case at bar, and the Home Owners Loan Corporation is plaintiff in both of them. In that case there was a mortgage to a bank which was regularly foreclosed and sheriff’s deed issued to the bank, which of course cut off all the interests of the mortgagors in or to the property foreclosed. Some time after this foreclosure proceeding was completed the former owners, finding they could borrow money from the Home Owners Loan Corporation, negotiated with the bank to repurchase the property and made a contract for that purpose and used the money borrowed from the Home Owners Loan Corporation to pay the purchase price, and this court held:
“A contract granting an option to purchase real estate which provides that time is of its essence, and which provides for no down payment, but only for payment of insurance, taxes and interest, if the property be occupied by the optionee or his tenant, and for conveyance of the property if the option be exercised and the principal sum paid, does not in and of itself constitute an equitable mortgage and create the relation of mortgagee and mortgagor between the parties.
“In such a case, where the optionee exercises his option to purchase, and to procure the entire purchase price mortgages the real estate to a third person, the mortgage is a purchase-money mortgage.” (Syl. ¶¶ 1, 2.)
Another very recent case where the same corporation was plaintiff, Home Owners Loan Corp. v. Sanford, 147 Kan. 597, 77 P. 2d 937, was where, without any previous relations shown between the parties, the defendants entered into a contract with an investment company owning property that was for sale. It was sold to the defendants for a definite sum on monthly payments and the purchasers were let into possession. The contract had certain provisions in case of default of payments. The purchasers borrowed the full amount of the remainder of the purchase price from the Home Owners Loan Corporation, and it was held to be a purchase-money mortgage.
Both these cases are very different from the case at bar. In the first the original mortgage relation was entirely extinguished by the foreclosure proceedings and the issuance of the sheriff’s deed before the subsequent arrangement was commenced. -In the second case there was no previous relationship, the first being the contract for purchase, and the money was procured by the purchaser from the Home Owners Loan Corporation to pay the entire remaining purchase price, instead of its being paid in monthly installments.
The case of Langworthy v. Martin, 129 Kan. 159, 281 Pac. 879, was one where an agreement was made between the vendor and purchaser of land that two thirds of the purchase price should be borrowed and secured by a mortgage on the farm and the balance paid in cash and that the mortgage should be executed by vendor and the land transferred to the purchaser subject to the mortgage, which was done. Later, when default was made by the purchaser, the mortgage was foreclosed, and it was held that notwithstanding the formalities of borrowing the money and executing the mortgage were undertaken by the vendor rather than the purchaser, the lien was essentially one for the purchase price. While this case sheds light upon the subject generally, the facts seriously differ from those in the case here under review.
The case of Home Owners’ Loan Corp. v. Jaremko, 146 Kan. 328, 69 P. 2d 1096, appears to be more nearly like the one at bar except that substantial payments had been made and a longer time intervened between the making of the contract and the execution of the mortgage by which the money was obtained to pay the balance of the purchase price, and it was there held that—
"In an action to foreclose a mortgage it appeared that the mortgagors had entered into a contract whereby they had an option to buy the property in question which could be kept in force by making monthly payments. They made a substantial payment on the purchase price at the time they entered into the contract and substantial payments were later made on the purchase price under the contract. After this contract had been in effect about three years the mortgage sought to be foreclosed in this action was executed. Held, that it was not a purchase-money mortgage- and that the mortgagor was entitled to eighteen months in which to redeem, even though more than two thirds of the amount of the original purchase price was obtained on the mortgage.” (Syl.)
The same line of reasoning is found in Verdon State Bank v. Smyth, 137 Kan. 1, 18 P. 2d 897, and Union Central Life Ins. Co. v. Kershaw, 137 Kan. 819, 22 P. 2d 481.
We conclude that the giving of the deed by the defendants to the Liberty Savings & Loan Association and the making ’of the contract the same day with the association as to the sale and purchase of the land which contained a promise to pay the debt and a provision for forfeiture upon failure to do so, constituted an equitable mortgage and therefore the subsequent mortgage given by defendants to the plaintiff to borrow the money to finish the payment of the purchase price was not a purchase-money mortgage. If it was not a purchase-money mortgage the eighteen-month period of redemption was correct.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to determine the constitutionality of the lien provision of the social welfare act.
The pertinent facts which laid the foundation for this test case were as follows:
Nellie Hawkins, a widow aged 68 years, owned a small house and parcel of ground in Oskaloosa. It was valued at $550, and was her homestead. Her 42-year-old son lived with her. On'September 2, 1937, she applied to the county for old-age assistance. Among the pertinent recitals of her written and verified application was one which read:
“I have not made a transfer or assignment of property within two years prior to this application for the purpose of procuring assistance except as it refers to a lien to the county or state.”
Her application was granted on September 8, 1937, and on the same day she was notified that on or about September 10 she would get her first monthly check pursuant thereto. On the same day she was notified that the state’s statutory lien on her property as author ized by the social welfare act had been filed in the office of the register of deeds, and it was duly recorded the same day.
Thereafter Mrs. Hawkins received monthly checks for old-age assistance in amounts varying from $19.45 to $11.70. She had some little additional income — $4 for the monthly rent of two rooms of her house, and she also received some clothing from the WPA — but these details are of no present concern.
On December 2, 1937, Mrs. Hawkins commenced this action, pleading the foregoing facts at length, and complaining about the statutory lien which had been recorded against her homestead. She alleged that the provision of the social welfare act which authorized it (Laws 1937, ch. 327, sec. 17), was in conflict with the homestead provision (art. 15, sec. 9) of the state constitution, and therefore void. She prayed that the state’s lien be declared void and canceled, and that the register of deeds be directed to release it of record.
The cause was heard at length, but developed no material dispute of fact. The trial court sustained the contention of plaintiff, holding so much of section 17 of the social welfare act as conferred on the state a lien on the homestead unconstitutional, and gave judgment for plaintiff as prayed for.
The cause has been brought here for review.
The title to the act with which we are now concerned reads:
“An act setting up a state board of social welfare and county boards of social welfare; providing for the members of each, providing for the employment and control of the personnel of state boards, fixing compensation for each thereof; providing for state appeal committees and the procedure thereof; providing for the establishment of state and county social welfare funds and the disbursement thereof; and authorizing assistance to those over sixty-five years of age, and to the blind, and to dependent children; and other general welfare.”
The statute creates a state board of social welfare, county welfare boards and other functionaries, and authorizes the state board to cooperate with the federal government’s program for financial assistance in the field of social welfare. Power is conferred upon the state board to determine policies relating to all forms of social welfare which it is to supervise and administer, and to make rules and regulations therefor. It is also authorized to make contracts and “may sue and be sued on such contracts.” (Sec. 8, subdiv. k.)
In section 8a the statute provides that subject to specified requirements, “Assistance shall- be granted to any needy aged person . . . who has attained the age of sixty-five years. Such assistance shall be known as old-age assistance.”
Section 10 provides that the county welfare board shall provide assistance to the needy “in accordance with state laws and the rules and regulations of the state board.” Section 12 provides that a person desiring public assistance shall make an application therefor, and
“Such application shall be under oath and contain a statement of the amount of property, both personal and real, in which the applicant has an interest and of all income which he may have at the time of the filing of the application and such other information as may be required by the state board. All applications for old-age assistance shall be signed by the applicant and spouse, if any. The form of application and the procedure for the determination of need, the amount and kind of assistance shall not be inconsistent with the state law and the rules and regulations of the state board, (i) The county board, on the death of a recipient of old-age assistance, may pay reasonable funeral expenses, not exceeding one hundred dollars, if the estate of the deceased is insufficient to pay the same.”
The section of the act whose validity is particularly subjected to challenge in this lawsuit reads, in part, thus:
“Seo. 17. The state of Kansas shall have a lien upon any real property which the recipient of any old-age assistance under this act may be the owner of or come in possession of after the granting of any assistance, which lien shall be senior and superior to any lien placed on any such real property after the time such recipient shall first become a client as defined in this act. . . . The filing of such statement [with the register of deeds] shall constitute public notice of the lien and shall remain in full force until discharged as herein provided without any further additional steps being taken. . . . On the death of any recipient the total amount of assistance' paid under this act shall be allowed as a claim against the estate of such person after funeral expenses not to exceed one hundred dollars have been paid, and after the expenses of administering the estate have been paid. . . . The lien created against the real estate of the recipient shall not be enforced against the same during his lifetime or while any real estate is being occupied as a home by the surviving spouse.”
The same section also provides that where the federal government contributes to the fund out of which the old-age assistance is given, it shall share in any moneys repaid by the recipient of such assistance, or by recovery from the estate of the recipient under the lien provided by the statute.
The constitutional provision which this statutory lien is said to violate is the homestead section, which for three quarters of a century has been so justly prized by the people of this state. It reads:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.” (Const., art. 15, sec. 9.)
It will be noted, of course, that where this statutory lien does not rest on the homestead of the recipient of old-age assistance, the constitutional provision just quoted has no application. It is where the real property owned by the recipient of old-age assistance is her homestead, as in the case before us — her small house with its three town lots in Oskaloosa valued at $550 — that the question of the constitutionality of the statutory lien arises. We are all agreed, as evidenced by oft-repeated decisions of this court, that this homestead provision of the constitution is to be liberally interpreted to safeguard its humanitarian and soundly social and economic purposes; and that nothing less than the free consent of the resident owner of the homestead, and joint consent of husband and wife where that relation exists, will suffice to alienate the homestead, except to enforce payment of its purchase price, or for improvements erected thereon, or for payment of its fair burden of taxation. (Citations under art. 15, sec. 9, in G. S. 1935, pp. lxxi et seq.; G. S. 1937 Supp., p. xvi.)
While the statute defines the state’s claim on the real estate of a recipient of old-age assistance as a lien, and of course it is a lien, it is not the sort of lien which the state as lienholder can enforce and foreclose on plaintiff’s homestead as in the case of an ordinary lien. This statutory lien is altogether inoperative and cannot be enforced during the lifetime of the recipient, or during the life of the recipient’s surviving spouse if the property covered by the lien continues to be used as the homestead of such surviving spouse. In other words, so long as the property is the homestead of the recipient or of his or her surviving spouse, it cannot be alienated under the constitution, and neither can it be alienated under the statute. The statute expressly so declares. It is only when the property ceases to be a homestead and after the death of the owner who is the recipient of old-age assistance, that the property can be subjected to the statutory lien.
If the foregoing does not suffice as a complete answer to the contention that section 17 violates the homestead section of the constitution, there is another answer which in the opinion of a majority of this court is equally good. The recipient of old-age assistance applied for and accepted the old-age assistance granted her under the terms of the statute. That application, the grant of assistance, and the acceptance of that assistance constituted a contract between the plaintiff and the official boards having to do with the matter of the old-age assistance granted to her. Plaintiff entered into that contractual relation with defendants on the only terms they were authorized to deal with her — the terms of the statute — so she must be held to have consented to the lien which the statute enacted as a condition of the granting of the old-age assistance she thus obtained.
It will not do to say that her consent was not voluntary, was not contractual — for if that contention were at all tenable, the primary legal question raised by the state in the district court and still insisted on in this court, would force itself to the front. That question is: By what authority did the district court obtain jurisdiction of the state social welfare board, so as to subject it to a lawsuit in Jefferson county? Either the relationship between plaintiff and defendants was contractual, in which case the statute says the state board may sue or be sued (McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651, 296 Pac. 720), or it was not maintainable at all. (Construction Co. v. Board of Administration, 105 Kan. 291, 182 Pac. 386; Phillips v. State Highway Comm., ante, p. 702, 84 P. 2d 927, this day decided.)
Another objection to the lien provision of the statute is that the matter contained in section 17 is not fairly indicated in the title to the act. The lien feature is a germane and pertinent detail of the act, and that is quite sufficient to satisfy the constitutional requirement of article 2, section 16, that the subject matter of an act be clearly expressed in the title, and that no bill contain more than one subject. See discussion of this constitutional point in City of Wichita v. Sedgwick County, 110 Kan. 471, 473, 204 Pac. 693, and citations under article 2, section 16 of the state constitution, in G. S. 1935, pp. xlviii et seq.; G. S. 1937 Supp., p. xv.
There is no constitutional infirmity in section 17 of chapter 327 of the Laws of 1937 (G. S. 1937 Supp. 39-719); and the judgment of the district court must therefore be reversed and the cause remanded with instruction to enter judgment for defendants. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action by a father and mother to recover from their son and his wife an annuity of $150 for the five years preceding the filing of the action and to have a judgment for the same and all future annuities made a lien upon the McDonald land now owned by both defendants. The case involves questions as to the extent of liability of the son under a written agreement, the statute of limitations, the statute of frauds, the defense of homestead rights and the application of a judgment lien.
The case was tried by the. court. Findings of fact and conclusions of law were made, and judgment was rendered in favor of plaintiffs and against the son for $750, with interest from the date of filing the action, and $300, with interest, from date of judgment, and the total judgment was made a lien on the McDonald land. The annuity of $150 was decreed by the court to be an obligation of the son during the life of the survivor of the parents. After the motion for a new trial was overruled the defendants appealed, raising the questions above indicated, and also the sufficiency of the evidence to support the findings of the trial court, and especially the finding and judgment making the judgment a lien upon the McDonald land.
Plaintiffs also have filed a cross-appeal raising two points in particular: First, the failure of the trial court to make a finding as to the joint consent of the defendant, Mary Kalivoda, to the transfer of plaintiffs’ lien to the McDonald land, which the plaintiffs claim was established by the evidence. We will defer consideration on this first point in the cross-appeal until we reach the points raised by the appeal concerning the evidence and the findings of fact. The second point raised by the cross-appeal is that the appellants did not file their motion for a new trial within the three-day limit required by statute after the court had made its decision, so that there would be nothing that could come up on their appeal except the question as to the sufficiency of the findings and conclusions to support the decree. (Perkins v. Accident Association, 96 Kan. 553, 152 Pac. 786, and Benson v. Rosebaugh, 128 Kan. 357, 278 Pac. 41.) Findings of fact and conclusions of law were filed September 28, 1937. The defendants, on September 30, 1937, filed a motion requesting additional findings and conclusions. On October 21, 1937, the trial court, in compliance with such motion, filed additional findings and conclusions. Two days later the defendants filed another similar motion for additional findings and conclusions, and on November 17, 1937, this motion was heard and overruled and judgment was that day rendered, and on the same day, November 17, 1937, defendants filed their motion for a new trial. This was the first and only motion for a new trial that was filed by the defendants. Counsel for plaintiffs are correct as to the rule that the announcement of findings of fact and conclusions of law constitutes the decision, of the court within the meaning of the code requiring a motion for a new trial to be filed within three days after the decision, is rendered. (Milling Co. v. Schreiber, 102 Kan. 172, 169 Pac. 222; Brubaker v. Brubaker, 74 Kan. 220, 86 Pac. 455; and Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 291 Pac. 935.) When this matter was presented and urged by the plaintiffs before the trial court the court denied the motion, but not on this ground, stating plainly that it was not the understanding of the court that those earlier findings were the final findings of the court, which in effect canceled the filing dates on the preliminary findings. The trial court is the one to say whether or not his preliminary findings are to be final. They and the conclusions, when complete, constitute the decision of the court, and the judge is the one to say when his decision is rendered. Both parties furnished the court with suggested findings and conclusions, and after the court furnished a set of findings and conclusions both parties moved for additions and changes. As a result of these motions several changes were made and three new findings were added. So the court’s view that these earlier findings were only preliminary and not final until November 17, 1937, is reasonable, and it is within the power of the trial court to say when his decision has been properly filed. This leaves open for consideration the errors assigned by the appellants in addition to the matter of the decree being supported by the pleadings, findings and conclusions.
Some of the undisputed facts out of which this controversy later grew are as follows: The plaintiffs herein, father and mother of the defendant Stephen, in December, 1915, conveyed to him 120 acres of land in Republic county for the consideration of one dollar and love and affection, and the warranty deed given to him, which was recorded a few days later, contained the following statement: “Except the second party hereby agrees to pay to first parties, or either of them, during their natural life, the sum of $150 in each year.” Stephen later married, and about March 1,1917, decided to purchase the Lahodney tract for $14,000, and to accomplish this purpose he sold part of the 120-acre tract to his brother and the remaining portion of it to his father for a total of $10,000, which enabled him to substantially pay for the Lahodney land with such funds and some borrowed money which his father had helped to secure for him and which in settlement included $300 for two annual payments under the original contract. It was orally agreed between the father and son that the $150 annuity should be transferred from the 120-acre tract to the Lahodney tract, and they entered into the following agreement in writing, signed and sworn to by the plaintiffs and son, on November 20, 1917:
“It is therefore agreed by and between the parties to this agreement that said real estate first described herein (the 120 acres) be released fully and completely from any and all claims by said parties of the first part for the payment of said annual amount of 55150, and that said agreement as to the payment of said annual sum as provided in said deed herein described be continued in full force and effect, but to become a lien upon the property last described (the farm bought from Lahodney)
Stephen and his wife moved on the Lahodney land about the time they purchased it, and made it their homestead until March 1, 1927. In the fall of 1926 the defendants contracted to sell the Lahodney farm for $16,000 and to purchase the McDonald farm for $22,000. The court found that it was orally agreed by the father and son that the lien should be transferred to the McDonald farm. There was sufficient evidence, if believed,, to support this finding, and there was evidence to the contrary. A release of the lien on the Lahodney farm was signed by the plaintiffs and they say they also signed the agreement to transfer the lien to the McDonald farm, but it was never signed by the son nor his wife. The son and his wife moved from the Lahodney farm to the McDonald farm about March 1, 1927. It was conveyed to both of them and it has been their homestead ever since. Payments of the $150 annuity were made from time to time until about 1927, when the son’s wife refused to make further payments. Sometimes the amount paid was less than $150 if the father asked for only a lesser amount. The father later found that the transfer of the lien was still at the bank and had not been signed by the son or his wife, and this action was commenced on May 20, 1936, for five years’ back payments of annuity, the petition asking for judgment against Stephen and wife and for a judgment lien on the McDonald farm.
The court in its conclusions of law held that the agreement of November 20, 1917, signed by both plaintiffs and by the son, sufficiently reduced to writing the understanding of the parties in reference to the payment of $150 annuity during the lifetimes of the plaintiffs, or the survivor, to fully comply with the statute of frauds. Further, that the contract to pay the $150 is a continuing contract, and recovery may be had for each annuity within five years after the year in which said annuity is due, and that plaintiffs are now entitled to the sum of $1,050, with interest on $750 thereof at six percent from May 20, 1936. The third, fourth, fifth and sixth conclusions of law concern the question of such judgment becoming a lien on the McDonald land. They are as follows:
“No. 3. The original conveyance from John Kalivoda to Stephen Kalivoda being without consideration except for the agreement to pay the $150 yearly, and the sale of that land enabling Stephen Kalivoda to pay for the Lahodney land, and the sale of the Lahodney land in turn enabling Stephen Kalivoda to buy the McDonald land, requires in equity that the court decree a lien on the interest of Stephen Kalivoda at least in the McDonald land to secure the payment of this annuity, or the $150 payment, whatever it may be called.
“No. 4. The right of John and Antonie Kalivoda to the annual payment of $150 is superior to the defendants’ claim of homestead in the McDonald land.
“No. 5. Neither the statute of frauds nor the statute of limitation bars the plaintiffs’ right to recover annuities due within five years, nor the right to have a lien established against the McDonald farm.
“No. 6. The court finds that it is equitable that an order to sell the McDonald farm should not issue at this time, but that jurisdiction should be retained to enforce the same in the nature of a trust in the land, and the right to appoint a receiver to assume charge of the real estate and do the necessary things to secure payment of the $150 annual payments is reserved.”
Judgment was rendered on November 17, 1937, in favor of the plaintiffs and against the son Stephen, in accordance with the above-described findings and conclusions.
As to the action being barred by the statute of limitations and the contract being in disregard of the statute of frauds, the pleadings and the evidence unmistakably show the action against the son covered only a period of five years prior to the filing of the action, and that the contract was alleged and admitted to have been in writing. So these two assignments of error cannot be maintained. These two grounds are substantially all that are urged against the findings, conclusions and judgment against the son, Stephen, for $1,050, with interest and costs.
The question receiving the most serious attention in this case is whether the plaintiffs have a right to a judgment lien on the McDonald land, the application of the homestead exemption privileges and the matter of joint consent of the son’s wife to the transfer of the annuity lien to the McDonald land. The conclusions of law above quoted make the judgment a lien on this land, although there is no writing signed by the son to that effect, and although the ownership of the land is in the name'of the son and his wife and it is occupied by them as a homestead. The theory of the plaintiffs is sound and reasonable in their insistent request for a finding that joint consent should have been made from the evidence, if it was not shown to have been in writing. But the court made no such finding, even after its.attention had been specifically called to.the testimony claiming to have established it. A careful review of the evidence on this subject is not convincing that the court erred in failing to make such a finding. Answers were made to several questions along this line before a ruling of the court was entered sustaining an objection to the question asked, and there was a conflict in the evidence as to such joint consent. Without such joint consent and with the undisputed fact as to the wife’s owning the land jointly with her husband we think the right of homestead enters into the feature of even making the judgment a lien on the son’s interest in the land. It is suggested that the proceeds of the 120-acre tract, being a gift from the parents, have been traced into the purchase fund of the McDonald place, but without any writing to that effect or a showing that it was borrowed money “for the payment of obligations contracted for the purchase of said premises,” as provided by the constitution (art. 15, § 9), there is a homestead exemption if there is no joint consent of husband and wife established.
Appellees cite Foster v. Bank, 71 Kan. 158, 80 Pac. 49, and other authorities on this question which make, as above quoted from the constitution, obligations contracted for the purchase of the property a proper exception from the requirement of joint consent. With the release of the lien on the Lahodney land there was no obligation as to the use of the proceeds thereof except the oral agreement of the son. The continuing annuity is not the purchase money nor the obligation contracted therefor. We think the trial court, without a finding of joint consent, went one step too far in concluding that this obligation of the son was a lien upon the newly purchased land by the son and his wife and occupied by them as a homestead. We find no other errors in the rulings, findings, conclusions or the judgment. The judgment should be modified by eliminating the lien feature thereof, but sustained in all other particulars.
The judgment is affirmed in every respect except as to the lien on the McDonald land, and the cause is remanded with directions to eliminate the lien on that land.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment of the district court overruling, a motion for a rehearing of a prior motion of appellant to declare a judgment satisfied. To a considerate review of the question presented, some precedent matters must be stated in detail :
On July 27, 1928, Robert L. Hill and wife procured a loan of money from the plaintiff company and executed their promissory note for the repayment thereof. On April 15, 1930, Hill filed a voluntary petition in bankruptcy in which he scheduled the indebtedness evidenced by that promissory note. That bankruptcy proceeding was dismissed or otherwise disposed of without Hill having applied for a discharge. On January 30, 1931, Hill filed a second voluntary petition in bankruptcy, and again he listed the promissory note in his schedule of indebtedness. This secondary bankruptcy proceeding was also dismissed without any order for a discharge being asked or granted. On June 15, 1933, Hill filed a third voluntary petition in bankruptcy, again naming this plaintiff company as a creditor and scheduling the promissory note as one of his debts. On February 18, 1936, pui’suant to this third petition in bankruptcy, Hill was adjudged a bankrupt and discharged from all debts and claims provable against his estate, which existed on June 15, 1933, “excepting such debts as have been listed in previous bankruptcy proceedings.”
On May 28, 1936, plaintiff commenced an action in the district court to recover the amount due on the promissory note. Defendant Hill answered that the note had been discharged in the bankruptcy proceeding. The trial court ruled to the contrary, and on October 29, 1936, it gave judgment for plaintiff. From that judgment no appeal was taken.
On November 6, 1936, Hill filed a motion to declare the judgment satisfied, relying on our local statute (G. S. 1935, 60-3602), which provides that when any person is discharged of his debts under the federal bankruptcy act the state court, on a proper showing of the facts, shall endorse on the judgment record a recital that the judgment is discharged by virtue of the bankrupt law and thereafter such judgment shall be deemed discharged and satisfied.
The trial court overruled that motion on December 12, 1936, and no appeal was taken from that ruling.
On January 4, 1937, appellant Hill filed in tbe district court another motion — the one with which we are presently concerned. While no copy of it has been supplied, it can be inferred that it was addressed to the trial court’s discretion, and that Hill persisted in his claim of right to have the judgment canceled on the strength of the statute cited above. On December 24, 1937, that motion was denied, and that ruling is the basis of this appeal The single specification of error presented by appellants reads:
“The trial court erred in overruling the motion to discharge the judgment, rendered in favor of the appellee, because of the discharge in bankruptcy of the appellant Robert Hill, under the statute of Kansas, section 60-3602, G. S. 1935. ”
On technical grounds, this appeal will have to be dismissed. In the lawsuit which culminated in the judgment entered in favor of plaintiff on October 29, 1936, the effect of the bankruptcy proceedings and of the limited discharge granted appellants on February 18, 1936, was in issue, and an adjudication was had thereon. Whether that adjudication was correct or not is of no consequence now, since it has become res judicata. (Manley v. Park, 62 Kan. 553, 562, 64 Pac. 28; Rennolds v. Guthrie, 103 Kan. 829, 177 Pac. 359; Riley v. Riederer, 144 Kan. 422, 61 P. 2d 106.)
Moreover, the propriety of the court’s ruling on appellants’ motion of November 6, 1936, which was made on December 12, 1936, is not now open to our review under the authorities cited above.
So all that is now technically before this court is the trial court’s ruling on appellants’ motion filed on January 4, 1937. If that motion could be given any potency whatever — which, under all the circumstances, we are much inclined to doubt — it could only have been addressed to the trial court’s discretion; and certainly its ruling thereon would present nothing for an appellate court to lay hold of. Furthermore, if we were to pass by these technical difficulties which preclude appellants’ right to have the trial court’s ruling reviewed, we would at once be met with a mass of federal decisions which hold that appellants’ contention that his limited discharge in bankruptcy extinguished the plaintiff’s judgment is altogether untenable. (See Hill v. Railroad Industrial Finance Co., 92 F. 2d 973, and citations.)
The appeal is dismissed.
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The opinion of the court was delivered by
Allen, J.:
Lillie Tuffli, who was seized and possessed of 160 acres of land in Lincoln county, died testate on April 25, 1937. At her death she left surviving her husband, Otto Tuffli, and no issue.
By her last will, dated February 1, 1936, she devised and bequeathed to her husband, Otto Tuffli, one half of her property. The other one half she devised to her four brothers and one sister, share and share alike.
The surviving husband elected to take under the law.
On August 7, 1937, Adele (Yordy) Parks, a sister and one of the devisees in the will of Lillie Tuffli, alleging that she was entitled to an undivided one-tenth interest, brought an action asking for partition of the 160 acres of land owned by Lillie Tuffli at her death. The defendants in the suit were Otto Tuffli, the surviving husband, and the brothers of the plaintiff.
To this petition the defendant Otto Tuffli filed an answer, in which it was alleged that he was the surviving husband of Lillie Tuffli, deceased; that the plaintiff Adele Parks and the defendants Gottlieb, Louis, Dan and James Yordy are not and never have been members of the family of Lillie Tuffli, deceased, but are the sister and brothers of the testatrix. It was further alleged that at the time of her death, and for a long time prior thereto, Lillie Tuffli and her husband continuously occupied the land in question as their homestead; that said land, consisting of 160 acres, was not within the limits of any incorporated city; that this defendant is the sole heir and surviving husband of Lillie Tuffli; that he has remained unmarried and has continuously occupied the said land in question as his homestead; that he has no intention to abandon it or live elsewhere, and the land remains his homestead and is not subject to partition.
To the answer plaintiff filed a demurrer on the ground that the part of the answer above summarized did not state facts sufficient to constitute a defense to the cause of action alleged in the petition.
The demurrer was overruled, and plaintiff appeals.
As shown above, the defendant alleged that the land was occupied by Lillie Tuffli as her homestead at the time of her death.
In determining the sufficiency of the answer on the demurrer, the matters therein that are well pleaded are admitted to be true.
The precise question before us is whether a homestead occupied by a childless woman and her husband at the time of her death, and thereafter occupied by her surviving husband, and who elects to take under the law instead of under the will of his deceased wife, may be partitioned without his consent at the suit of collateral heirs and devisees who were never members of the family of the deceased testatrix.
In Breen v. Breen, 102 Kan. 766, 173 Pac. 2, the syllabus reads as follows:
“A homestead occupied by a childless testator and his wife at the time of his death, and thereafter occupied by the widow, who elects to take under the law rather than under the will, cannot be partitioned without her consent at the suit of collateral heirs who were never members of the testator’s family.”
Breen v. Breen was followed in Campbell v. Durant, 110 Kan. 30, 202 Pac. 841, and is the settled law of this state. In the two cases just mentioned the owner of the homestead was the husband; in the instant case the owner was the wife. Under our law, G. S. 1935, 22-127, the husband of a deceased wife has all the rights that are given the widow of a deceased husband.
Plaintiff argues that under the provision of the constitution as to homesteads, our statutes and certain of the decisions of this court, we should no longer follow the rule laid down in Breen v. Breen. We have examined the very able brief with attention.
In Foreman v. Foreman, 251 N. Y. 237, 240, 167 N. E. 428, Cardozo, Ch. J., speaking of the construction placed upon a statute, used the following language:
“. . . Criticism of the rule as involving a partial repeal of the prohibition of the statute is heard from time to time in commentary and treatise. Whatever force the criticism may have had while the rule was in the making has vanished with the years. By long acquiescence, the exception, if such it be, has wrought itself by construction into the body of the statute as if written there from the beginning. . . . ”
For twenty years the rule announced in Breen v. Breen has been accepted by the bench and bar as the law of this state. We do not think it should be departed from at this late date. The point is at rest, and the action of the court in overruling the demurrer to the answer of Otto Tuffli must be sustained.
A cross appeal in the case must be considered. The brothers of the plaintiff, being the defendants Gottlieb, Louis, Dan and James Yordy, filed an answer and cross petition in the original action. The first count, in effect, adopts plaintiff’s petition. The second count charged that Lillie Tuffli, before her marriage to the defendant Otto, owned the land in question in fee simple. At the date of the marriage Otto was 37 years of age and Lillie 53. Before the marriage Otto was a wandering farm hand, without money or property. After the marriage he became indolent, shiftless and worthless. Then follows a recital of cruel and abusive treatment leading to a divorce proceeding brought by Lillie, to which Otto made no appearance. Before the divorce case was tried and a decree secured, Lillie died. The remaining portion of the cross petition seems to be an argument that under the constitution and laws of Kansas the cross petitioners are entitled to partition.
From this document it is clear these suitors look upon Otto as a worthless vagabond, deeply afflicted with moral -turpitude, and that they are entitled to some form of relief against his claims. The petitioners, however, neglect to suggest any known form of equitable relief that is available to them. Otto may belong to the sans-culotte tribe, but it is not denied that he is a surviving husband of the deceased owner of the homestead. Bjis rights attach by virtue of that relationship.
A motion to strike specified portions of the cross petition was sustained. We think this action of the court was correct.
Finding no error in the record, the judgment is affirmed.
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